Garrett and Repatriation Commission
[2009] AATA 314
•19 January 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 314
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6327
VETERANS’ APPEALS DIVISION ) Re PRAXEDES GARRETT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton, Member Date19 January 2009
PlaceMelbourne
Decision For reasons given orally at the hearing, the Tribunal affirms the decision under review.
[sgd] Regina Perton
Member
VETERANS’ ENTITLEMENTS – widow’s pension – operational service – kind of death – causal or temporal connection with service - whether Statements of Principles – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 8(1), 120(1) and (3), 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
6 May 2009 Regina Perton, Member 1. Martin John Garrett died on 4 December 1997. He was 57 years old. Mr Garrett served in the Royal Australian Air Force (the RAAF) from 17 February 1960 to 16 February 1966. His service included periods of operational service in Malaysia and Thailand.
2. Mrs Garrett first lodged a claim for a widow’s pension on the basis that her husband’s death was service-related in June 2002. In July 2002 the Repatriation Commission determined that Mr Garrett’s death was not service related. The Veterans’ Review Board (VRB) affirmed the decision in February 2003. In July 2003 this Tribunal, differently constituted, also determined that Mr Garrett’s death was not service related.
3. Mrs Garrett lodged a second claim, which is the subject of this review, on 12 November 2004. The Commission determined on 4 March 2005 that Mr Garrett’s death was not service-related. On 4 September 2007 the VRB affirmed the Commission’s decision. Mrs Garrett lodged an application for review with the Tribunal on 28 December 2007.
4. In deciding whether Mr Garrett’s death was related to his RAAF service, the Tribunal considered Mr Garrett’s kind of death and the requirements of the Veterans’ Entitlements Act 1986 (the Act) and legislative instruments. On 19 January 2009 the Tribunal gave its reasons orally for affirming the Commission’s decision. Mrs Garrett has now requested that the Tribunal provide written reasons for the decision.
legislation
5. Section 8(1) of the Act relevantly provides:
Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
6. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
7. The provisions for dealing with the standard of proof in claims made on or after 1 June 1994 are found in s 120A of the Act. It provides:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2)
…
8. The principles to be applied in cases where s 120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
9. However, the Tribunal is required to determine the kind of death, on the balance of probabilities, before it can determine whether there is an appropriate SoP and if it applies.
Kind of Death
10. Mr Garrett died on 4 December 1997 in the Philippines where he had lived for many years. Dr Cerna, the certifying medical practitioner, indicated in the death certificate that the cause of death was:
intracranial hemorrhage, massive, with skull fracture, traumatic.
11. In response to a prompt question on the claim form asking why she believed her late husband’s service caused or contributed to his death, Mrs Garrett stated:
My husband Martin John Garrett was suffering from osteo-arthritis, a debilatating [sic] bone disease, contacted while he was still in service of the ROYAL AUSTRALIAN AIR FORCE and which qualified him for a monthly Australian Disability Pension from Department of Social Security. Several years upon his retirement his osteoarthritis became worse or severe that he had difficulty in walking because of joint pain, until on December 4, 1997 while he was walking, he accidentally fell down because of severe pain, hitting his head hardly against a hard blunt object causing skull fracture and massive intracranial hemorrhage which was the immediate cause of death.
12. In her oral evidence given by telephone from the Philippines with an interpreter facilitating communication, Mrs Garrett told the Tribunal that she was convinced that her husband’s fall was due to his osteoarthritis. She said that her husband had blamed his osteoarthritis on his RAAF service.
13. Mrs Garrett noted that her husband’s RAAF medical records showed that he had suffered from back strain during his service. She provided a medical report from Dr Antonio C Tautjo Sr in which he diagnosed Mr Garrett as suffering multiple joint arthritis. She linked the back strain and the osteoarthritis to her husband’s difficulty in walking and submitted that the conditions were linked to her husband’s death.
14. Mrs Garrett said her husband had sustained his fatal injury in the early morning when he was walking down the five steps outside the front of their house. He had been advised of the need to walk to prevent his arthritic symptoms getting worse. Mrs Garrett said that she did not see him fall, having been inside cooking breakfast at the time. She found him lying seriously injured and summoned medical assistance but by the time her husband arrived at hospital he was beyond help.
15. In a letter dated 26 May 2008, Dr Tautjo stated that he saw Mr Garrett four times between 15 November 1991 and 21 February 1995. He stated that he only became aware of Mr Garrett’s death in March 2002 when Mrs Garrett came to his office seeking a medical certificate in relation to a consultation with Mr Garrett which occurred on 9 June 1994. He indicated that he had not seen a death certificate. Dr Tautjo provided details of his consultations with Mr Garrett. The first consultation in November 1991 was for chronic furunculosis in his beard area with discussion about Mr Garrett’s heavy alcohol use. On 9 June 1994, Dr Tautjo noted the following:
- Multiple joint pains and stiffness specially for upper extremities; few pruritic popular lesions; occasional numbness of upper extremities
- ….
16. Consultations in January and February 1995 concerned a ringing sound in Mr Garrett’s ear which was diagnosed as a congested left auditory canal at the first appointment and an improvement noted at the second appointment.
17. Mrs Garrett provided radiologist reports based on x-rays taken in February 1993 of Mr Garrett’s left and right hands which generated findings consistent with degenerative osteoarthritis. She also provided hand-written Rheumatology Notes dated 18 April 2005 of Dr Josephine Abao-Lim, in the field on internal medicine-rheumatology. There is no indication that Dr Abao-Lim saw Mr Garrett while he was alive. Dr Abao-Lim gives an opinion that Mr Garrett suffered from joint pains of the hands and hips from osteoarthritis. She goes on to state:
His work as an air craft mechanic required him to constantly use his hands aside from prolonged standing or weightbearing activities entailed in his work. As such, weightbearing activities can be a risk factor for osteoarthritis as this can cause degeneration of the cartilage, which acts as a “shock absorber” for our joints. This is evidenced by his x-ray findings of the hands and non-inflammatory indices like a normal CRP and RF test. Altho’ he had no x-ray of the hips or spine, it is presumable that his difficulty in walking could be due to osteoarthritis of the hips. This eventually lead to his accidental fall causing a skull fracture & intercranial hemorrhage. The underlying osteoarthritis then of his hip joints has lead to his death and the former could be incurred from his weightbearing activities even during his younger days at the start of his work. As such, it can be concluded that the osteoarthritis he acquired during his service which became severe has lead to his death and therefore there is a causal link between the onset of his osteoarthritis and his service.
18. Mrs Garrett also provided a letter dated 5 October 2005 from the doctor who provided the death certificate, Dr Cerna. He stated that he conducted an autopsy of Mr Garrett following his death due to severe head injuries, with skull fracture and subdural hemorrhage. He went on to state:
Postmortem investigation aside from the autopsy conducted, personal and medical history showed that the deceased had long been suffering and complaining of pain in his joints especially that in the hip, wrist and hand joints. It was learned that MR MARTIN JOHN GARRET [sic], had worked as an aircraft mechanic while in Australia. With such kind of profession, where he had to stand most of the time for a prolonged period while doing his work, his hip joints or “weight bearing” joints is prone or most likely to develop degenerative changes in the cartilage supporting or acting as shock-absorber on the bones comprising the joint, and consequently “osteo-arthritis” causing pain and difficulty in walking or movement.
Therefore, in my honest opinion as a medico-legal or forensic expert, and basing upon the different X-ray findings or results, the osteo-arthritis or degenerative changes in the bones the deceased was suffering of prior to his death as a result of fall from their stairs and caused severe head injuries, was service connected.
19. As stated earlier, the Tribunal is required to determine the veteran’s kind of death on the balance of probabilities. The death certificate indicates that Mr Garrett died of intracranial hemorrhage, massive, with skull fracture, traumatic. No one witnessed the fall which resulted in the fatal injuries. Mrs Garrett gave evidence that she was inside the house at the time her husband fell on the stairs outside the house.
20. Dr Abao-Lim and Dr Cerna gave their opinions based on information provided to them several years after Mr Garrett’s death. Their observations about the risk factors leading to osteoarthritis may well be valid but it is not clear that they were made aware of the actual nature of the work undertaken by Mr Garrett or the requirements of Australian legislation for a condition to be considered service related.
21. The Commission accepts that Mr Garrett suffered from osteoarthritis at the time of his death as does the Tribunal. However, there is no objective evidence indicating why he fell or that it was his osteoarthritis that contributed to his fall. The Tribunal finds that, following a fall, Mr Garrett died of the causes cited in the death certificate, namely intracranial hemorrhage, massive, with skull fracture, traumatic.
22. There is no Statement of Principles relating to Mr Garrett’s kind of death. Hence, the Tribunal is unable to relate the circumstances of Mr Garrett’s death to his operational service.
23. Notwithstanding that the Tribunal was not satisfied that the kind of death suffered by Mr Garrett was due to his osteoarthrosis, the Tribunal considered the relevant Statement of Principles (No. 31 of 2005 concerning osteoarthrosis). The Tribunal had before it a report describing the nature of Mr Garrett’s duties while on operational service prepared by Mr M J Brennan of Writeway Research Service Pty Ltd on 2 May 2008. The report described in detail the nature of the work undertaken by Mr Garrett. It demonstrated that he would have been unable to meet any of the criteria in that Statement of Principles based on his operational service. An extract from the transcript in which the Tribunal attempted to explain its reasoning on this issue to Mrs Garrett:
… It’s very difficult I know for you, particularly when your husband died so unexpectedly. However, I can only make a decision based on the evidence that I have, and the laws that the Australian Government has made. Unfortunately the law for getting a widow’s pension, based on your husband’s service outside Australia, is a very narrow law. In other words, it’s very hard to be able to prove that your husband’s death was due to his military service in Malaya and Thailand.
The medical evidence, which I think is clear, is that your husband died of the…[inter‑cranial] haemorrhage, as a result of fracturing his skull following his fall down the stairs. Therefore I must decide that his kind of death, according to the law, is due to his…[ inter-cranial] haemorrhage.
Now, unfortunately, because your husband was alone and there were no witnesses, we don’t know what caused him to actually fall on that particular day, and to fall the way he did, so I can’t say that his cause of death – the kind of death, was due to osteoarthritis, but I can look at whether that might have contributed. I’m satisfied that he had osteoarthritis, there is no dispute about that, however, it may or may not have been the reason he fell on that particular day and fell so awkwardly.
However, the next problem, even if it was a fall because of his osteoarthritis, I have to find a link between his air force service outside Australia in that two-year period, for me to find that you are eligible for the pension. Investigations of the type of work that your husband did as an instrument fitter reveal that there was very little lifting involved in his work during two-year period. He might have had to lift the occasional oxygen cylinder that weighed at least 25 kilograms, but it was not often, and people who did his type of work usually worked on the instruments in the airplane, rather than lifting things, at that stage of his career. There is also no evidence that he suffered an injury to his hip.
He certainly had a back strain and it was severe enough for him to be hospitalised for it, and that appears to have been from lifting something awkwardly, but unfortunately, the injury to the joint must be to the actual joint that gets the osteoarthritis, rather than some other injury. I have had a very thorough read of all documents in this case before we talked today because on a personal level I am very sympathetic… to your situation, so I’ve tried to see whether we could fit you into any of the little boxes that exist in the statement of principles, but unfortunately, I could not find any way to fit your late husband’s circumstances into the osteoarthritis being related to his service between 1964 and ‘66.
Mrs Garrett, I know that you have gone to a lot of trouble …and expense to provide information to the tribunal, but unfortunately I have to refuse your request because it doesn’t meet the requirements under veterans’ law in Australia. I’m sorry that I have to affirm the decision that was made at the Veterans’ Review Board and by the commission. I can understand you would be very unhappy with this outcome, but there is no other outcome I can come up with.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
(sgd): Leah Berardi
Clerk
Date of hearing: 19 January 2009
Date of decision: 19 January 2009
Advocate for the applicant: Self-representedAdvocate for the respondent: Mr R Douglass
Review Section, Department of Veterans’ Affairs
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