Frew and Repatriation Commission

[2010] AATA 1043

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/2826

VETERANS’ APPEALS DIVISION		)
Re		YVONNE FREW

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.

Date 22 December 2010

PlaceBrisbane

Decision  The Tribunal sets aside the decision under review and decides in substitution that the claim should be accepted with a date of effect of 12 January 2007.

.....................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS’ COMPENSATION – widow’s pension – whether late husband’s death attributable to service – whether veteran’s alcohol consumption linked to service or contributed to the conditions that caused death – kind of death – causal connection established – alcohol was consumed at required level over long period – decision set aside.

Veterans’ Entitlements Act 1986 (Cth)

Collins v Repatriation Commission [2009] FCAFC 90

REASONS FOR DECISION

22 December 2010 Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.      

1.      Mrs Yvonne Frew was married to the late Robert Frew, a veteran who served in World War II. She says his death on 10 January 2007 was related to his service. She applied for a widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”) on that basis. The Repatriation Commission and the Veterans’ Review Board say her late husband’s death is not attributable to his service. The matter has now come before the Tribunal.

2.      In order to decide this case, we must examine whether:

·     the veteran’s alcohol consumption is linked to his service during World War II, and

·     service-related alcohol consumption contributed to the conditions that ultimately caused his death.

Background to the claim

3.      The veteran fought in Papua New Guinea during World War II. He was wounded on one occasion. He developed an anxiety condition and a peptic ulcer that are accepted as service-related. There is evidence that the applicant began to drink reasonably heavily while he was in the Army, and that he continued to drink reasonably heavily after his return from war service. We note he never made a claim in respect of an alcohol abuse/dependency condition.

The kind of death

4.      We must first reach a conclusion as to the kind of death the veteran experienced. That question must be decided to our reasonable satisfaction. Once we have identified the kind of death, we can determine which statements of principles apply and set about determining whether there is a link with the veteran’s war service.

5.      The death certificate was included in the “T” documents. It certified the cause(s) of death on 10 January 2007 as (1) pneumonia (1 week); and (2) gastro-oesophageal reflux (“GORD”), dementia (years). The applicant says we should accept the certificate as a statement of the kind of death that the veteran experienced and commence our analysis of causation with reference to the statement of principles relating to GORD. She relies in particular upon the evidence of Dr Herdy, who completed the death certificate, and Dr Vincent, the general practitioner who treated the late veteran over a number of years.

6.      The respondent takes a different view. While it does not deny that the veteran suffered from GORD, it argues GORD had little if anything to do with the veteran’s death. The medical evidence establishes that the late veteran was a very sick man immediately before his death. He had suffered from a number of falls and had been hospitalised for a hip fracture. He was not a candidate for surgery and he was returned to the nursing home in which he resided for palliative care. The respondent argues that the consequences of the falls and the veteran’s neurological conditions were the underlying cause of the decline that made him vulnerable to the onset of aspiration pneumonia. As we understand it, the respondent is effectively saying the veteran’s condition in the days before his death was such that his GORD condition might have impacted on the precise timing of his death, but it did not contribute to his deterioration or change the course of his inexorable decline. To that extent, the circumstances of this case are reminiscent of the facts in Collins v Repatriation Commission [2009] FCAFC 90.

7.      Mr Williams, for the respondent, referred us to the report of Dr Herdy who opined (in exhibit 8):

Due to the enforced bed rest occasioned by the hip fracture, and the diminished alertness, he was considered to be at even higher risk of aspiration. He was nursed conventionally for a patient under such circumstances. It was considered inevitable that he would gradually just fade out and die. Not unexpectedly, in the last few days of his life he developed a febrile illness, which I considered to be an aspiration pneumonia, and that was the terminal event in a long and progressive decline.

8.      That passage suggests the veteran’s health was seriously and inexorably deteriorating, leaving little if any role for the GORD condition. But we note Dr Herdy’s evidence did not end there. He added the following passage immediately after the one above:

His death was contributed to by his dementia and his gastro-oesophageal reflux disorder.

9.      That evidence is generally consistent with the evidence of Dr Davis. Dr Davis is certainly a well-credentialed expert. He was clearly of the view that the veteran’s neurological conditions of dementia and Parkinson’s disease were the primary explanation for his demise. But he appeared to accept the GORD condition might have made at least a minor contribution to the veteran’s death. In his oral evidence, after noting the important contribution of the degenerative neurological conditions to the onset of aspiration pneumonia, he added:

The other complicating factor which relates to Mr Frew as well is his gastro-oesophageal reflux disease which also allows the stomach to regurgitate food and fluids in the oesophageus in the reverse direction where one encounters these impaired mechanisms that I referred.

10.     We also note Dr Davis agreed (in exhibit 9) that GORD could lead to an increased risk of regurgitation although we acknowledge he thought that was unlikely to lead to pneumonia and death in the absence of “a marked impairment of airways defences.”

11.     We accept the veteran’s death was the result of a number of factors. We are reasonably satisfied from the medical evidence that one of those factors was the GORD condition. We accept it was unlikely to be an important factor: the degenerative neurological conditions and the consequences of the veteran’s hip injury were more decisive. But we accept the evidence we have referred to establishes that the GORD condition made more than a de minimis contribution to his demise. It follows that we accept the death certificate as an adequate description of the veteran’s kind of death.

The applicant’s hypothesis

12.     Mrs Frew says her late husband aspirated food into his lungs, which caused the pneumonia that led to his death in January 2007. While no one can say for sure what caused the food he was presumably chewing to go into his lungs, she argues it was probably caused by difficulty in swallowing as a result (or partly as a result) of his GORD condition. She then argues that the GORD condition was brought on many years ago as a consequence (or one consequence) of excessive alcohol intake that began during Mr Frew’s war service, and which had continued in response to his accepted anxiety condition.

13.     The respondent accepted that the late veteran was consuming an excessive amount of alcohol over many years prior to his death, and that his alcohol intake was connected to his service. We accept that concession was properly made given the evidence. The real question is whether there is a connection between alcohol-related GORD and the veteran’s death.

14.     We note there were only passing references at the hearing to a potential link between the applicant’s dementia and his service. The applicant’s final submissions did not squarely ask us to address the alternative hypothesis that a service-related anxiety condition and excessive alcohol intake led to hypertension, which led to dementia, which led to difficulty in swallowing, which led to aspiration pneumonia. That possibility was raised in paragraph [7.4] of the submissions but it was not otherwise addressed.

Establishing a causal connection

15.     The statement of principles (“SoP”) published by the Repatriation Medical Authority that deals with GORD is No 11 of 2005. The applicant has referred us to factor 5(d) in particular. That factor refers to “consuming an average of at least 300 grams of alcohol per week for at least the 12 months before the clinical onset of gastro-oesophageal reflux disease”.

16.     We have already noted that the respondent concedes Mr Frew was consuming alcohol at the required level over a long period, and that his excessive alcohol consumption could be traced back and linked to the circumstances of his war service. There was some dispute in the medical evidence over when precisely his GORD condition manifested, but there does not appear to be any dispute that it was preceded by the excessive intake of alcohol over a 12 month period.

17.     It follows we are satisfied the material fits the template in the SoP.

18.     We were not provided with any evidence that would cause us to doubt events unfolded as the applicant claims. It follows we are satisfied the claim has been made out.

Conclusion

19.     The decision under review must be set aside and the claim should be accepted. The date of effect is 12 January 2007.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.

Signed: ..................................[Sgd].........................................
  Patrick MacDonald

Dates of Hearing  1 July 2009
  25 August 2010 
Date of Decision  22 December 2010
Counsel for the Applicant              Mr P O’Neill
Solicitor for the Applicant               Ms K Oakley, Files Stibbe Lawyers

Advocate for the Respondent        Mr B Williams