George and Repatriation Commission
[2002] AATA 681
•13 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 681
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1998/56
VETERANS' APPEALS DIVISION )
Re NORMA ETHEL GEORGE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member
Date13 August 2002
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension – solar keratoses – adjustment disorder with depressed mood – suicide – whether conditions related to eligible service – decision affirmed
Veterans' Entitlements Act 1986 ss 20(1), 120(1), (3), (4), 120A(3)
Statement of Principles 71/96 concerning suicide as amended by SoP 177/96
Statement of Principles 47/2001 concerning solar keratoses as amended by SoP 55/2001
Statement of Principles 57/96 concerning adjustment disorder
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Williams, Repatriation Commission v [2001] FCA 1195
REASONS FOR DECISION
13 August 2002 Mr M J Sassella, Senior Member
This is an application for review by the Administrative Appeals Tribunal ("the tribunal") of a decision of the Veterans' Review Board ("the VRB") on 12 November 1997 (T32). In that decision the VRB affirmed a decision of the Repatriation Commission ("the respondent") dated 12 April 1995 (T2). In its decision the respondent had rejected the claim by Norma Ethel George ("the applicant") for a War Widow Pension made by her on 30 June 1994 (T16). The applicant's claim was on the basis that the death of her husband, John George ("the veteran"), on or about 3 January 1984 (T6), had been war-caused. The death certificate described the cause of death as the "[e]ffects of poisoning by carbon monoxide, self administered with the intention of taking his own life".
The tribunal convened a hearing in this matter in Canberra on 28 August 2000. That hearing was adjourned in order to permit the applicant's representative to provide further material to the respondent and to allow the respondent to consider that material. With the agreement of the parties the matter was resumed on 27 August 2001 in Canberra. At the close of that hearing the applicant's representative had some problems with some sun exposure figures that had been entered into evidence and it was agreed that the parties would cooperate to assess these figures and process any amended figures. The tribunal was notified when this work was completed and issued directions for final written submissions from the parties. The last of these was received by the tribunal on 18 February 2002.
Documentary evidence before the tribunal was:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T36) provided by the respondent.
Exhibit A1 – Material from the veteran's DVA medical file.
Exhibit A2 – Report by psychologist Ms K Barrelle, 21 February 2000.
Exhibit A3 – Statement by applicant, undated.
Exhibit A4 – Veteran's DVA solar damage assessment, 14 September 2000.
Exhibit A5 – Veteran's postings while in navy service.
Exhibit A6 – Letter dated 23 September 1998 from Ms F Coleman to applicant's solicitor.
Exhibit A7 – Report by Dr H A Whiteford, psychiatrist, 30 September 1998.
Exhibit A8 – Applicant's further amended statement of facts and contentions, 25 August 2000.
Exhibit R1 – Report by Dr R D Lewin, psychiatrist, 30 March 1999.
Exhibit R2 – Report by Dr Lewin, 21 August 2000.
Exhibit R3 – Respondent's amended statement of facts and contentions, 27 August 2000.
Exhibit R4 – Report by Dr E Lobel, occupational dermatologist, 6 November 2000.
Exhibit R5 – Report by Commodore P M Mulcare, 17 December 2000.
Exhibit R6 – DVA calculation of solar UV damage factor.
Exhibit R7 – Medical report from 1976 claim by veteran, undated.
Exhibit R8 – Further material on DVA calculation of solar UV damage factor, undated.
Exhibit AH1 - Further material on DVA calculation of solar UV damage factor, undated.
Exhibit AH2 – Applicant's final written submissions, 18 December 2001.
Exhibit AH3 – Respondent's final written submissions, 5 February 2002.
Exhibit AH4 – Applicant's response to respondent's final written submissions, 18 February 2002.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The veteran served in the Royal Australian Navy ("the RAN") and rendered operational service from 28 June 1946 to 2 January 1949 and from 31 August 1951 to 23 February 1952 (T2). He rendered defence service from 7 December 1972 to 1 August 1976.
The applicant lodged a valid claim on 30 June 1994 (T16).
The date of effect of any decision favourable to the applicant would be 30 March 1994 (s 20(1) of the Act).
The standard of proof in relation to whether his suicide was a war-caused injury or disease is the reasonable hypothesis standard (s 120(1), (3) of the Act).
The SoPs relevant to the determination of this matter are, prima facie:
SoP 71/96 concerning suicide as amended by SoP 177/96;
SoP 47/2001 concerning solar keratoses as amended by SoP 55/2001; and
SoP 57/96 concerning adjustment disorder.
If the hypothesis fails in relation to any of the SoPs identified above as currently in force, then the equivalent SoP (if any) in force at the time of the primary decision (12 April 1995) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
the hypothesisThe hypothesis connecting the veteran's operational service with his death by suicide was put by the applicant's representative (ex AH2) as:
The veteran had a war-caused disease in solar keratoses with squamous cell carcinoma. The treatment and worsening condition of this disease caused the veteran to suffer from an adjustment disorder. The veteran committed suicide while suffering from the adjustment disorder.
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant.
The second step is to ascertain whether there is a relevant SoP in force.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
At base is the proposition that Mr George suffered from skin cancer which was related to his eligible service. In ex AH2 it was asserted that Mr George "had an accepted disability of solar keratoses with squamous cell carcinoma". It was said that notifications of 9 July 1981 and 3 August 1981 identified solar hyperkeratoses and squamous cell carcinoma as an accepted disability. These were attached as annex A to ex AH2. In ex AH3 the respondent refuted the suggestion that solar hyperkeratoses was an accepted disability. The tribunal has considered ex A1 from where the relevant documents have been taken. This perusal convinces the tribunal that solar hyperkeratoses was not accepted as a war-caused disease.
Exhibit A1/6-20 shows the fate of a set of claims made by Mr George for a Disability Pension in 1977. He claimed in respect of solar hyperkeratoses with squamous cell carcinoma, sensori-neural deafness, essential hypertension, gout, degenerative arthritis in feet and ankles and lumbar spondylosis. The claim was allowed in respect of only sensori-neural deafness (ex A1/6-7) but the Repatriation Board did allow coverage for treatment of solar keratoses with squamous cell carcinoma.
Exhibit A1/5 shows that Mr George wrote to DVA on 2 July 1981 seeking a document to support his claim against his employer for "war service sick leave" which he wanted to take when having skin cancer treatment, paid for by DVA, instead of taking his normal sick leave. The documents provided in reply referred, without distinguishing between a disease accepted as caused by eligible service and a disease accepted only for treatment, to both the accepted hearing disability and the cancer disability accepted for treatment only. The tribunal view is that ambiguous language in a document that is not a document evidencing the making of a decision cannot be taken to be recognition of a new war-caused disease.
It is, of course, possible that the veteran's skin disease can now be recognised as a war-caused disease and, in its earlier phase, this matter was conducted with that in view. In the applicant's statement of facts and contentions (ex A8) reference was made to Mr George's naval service in tropical areas and to his fair complexion. It was said that he suffered from skin cancers from at least 1955 which eventually affected his entire body. The hypothesis raised to connect Mr George's skin cancers with his operational service was that the cancers were caused by Mr George's exposure to excessive ultraviolet ("UV") light while he was on operational service. This was said to satisfy factor 5(b) of SoP 33/96 concerning chronic solar skin damage, ie having a solar UV damage factor of at least 1.1.
There are three diagnoses of Mr George's skin conditions. When he was in the RAN he was diagnosed with hyperkeratoses in 1965 (T3/55). Dr D A R Shephard, a dermatologist, treated Mr George shortly before he died. He referred to Mr George's solar keratoses in his report of 1 September 1988 (T11). He referred to a single incidence of a basal cell carcinoma on Mr George's left leg which had been excised on 23 April 1981. Dr F A Powell, a psychiatrist, wrote on 21 April 1989 (T14) that he had examined the post-mortem report on Mr George and noted that the pathologist had observed severe atopic eczema involving the whole of both legs. Dr E Lobel (ex R4) wrote a report on 6 November 2000 in which a number of useful matters were discussed:
Most of the treatments for the hyperkeratoses were cryotherapy, ie a process involving freezing off the lesions. Initially a carbon dioxide slush (or snow) was used. Later liquid hydrogen was used. On two occasions (7 May 1965 and 31 January 1973) galvano-cautery and curettage were used. This treatment involved burning off the lesions under local anaesthetic. He thought it possible that this method was used more often but the records do not say so. He was clear, however, that Dr Shephard's treatment from 1981 was exclusively liquid nitrogen cryotherapy to the face and hands, except for the basal cell carcinoma that was excised. These cryotherapeutic methods do not result in smell of burning flesh.
Sun cancers and "pre-cancers" (which he noted in parenthesis as hyperkeratoses) are caused by sun damage in the skin induced 10-20 years or more prior to the development of sun cancers and pre-cancers. The tribunal notes that Mrs George said that the hyperatoses emerged in 1955. There is RAN material to support this. Mr George was born on 15 April 1923 (T16). In oral evidence at the tribunal Mrs George said that her husband lived near the beach when he was younger and that he liked swimming. She had no knowledge of him sunbathing. This would serve as circumstantial evidence suggesting that the seeds for Mr George's hyperkeratoses were sown in the 1930s, well before he embarked on operational service.
Dr Lobel considered that Mr George's hyperkeratoses were of a moderate degree of severity because liquid nitrogen cryotherapy is used only on mild to moderate lesions. The larger and more severe variety are subjected to surgery or radiation therapy.
Mr George's daughter had described seeing Mr George's legs in December 1983 (weeks before his death) (ex A6). From the shins down the legs were swollen, including around the ankles and feet. The skin was red in colour, dry and flaky. Dr Lobel saw these observations as pertinent to Mr George's eczema, not his hyperkeratoses which may have been masked by the eczema.
Dr Lobel had not previously heard of a sufferer of hyperkeratoses committing suicide because of the need for treatment. He said the cryotherapy was painful but that the pain subsided quickly and patients regarded it as worthwhile for its beneficial effect.
From the above it appears that Mr George suffered from longstanding hyperkeratoses, from later onset eczema, and, in 1981, from basal cell carcinoma. Dr Lobel stated that sun-caused skin cancers and pre-cancers are permanent conditions. Mr George would certainly have suffered from hyperkaratoses at the time of his death. That would make a SoP concerning hyperkeratoses relevant in the present case. To the extent that eczema was a direct or indirect cause of Mr George's death, no hypothesis connecting Mr George's service with eczema has been raised, nor can the tribunal conceive of any. The tribunal notes that there is no SoP concerning eczema. That may indicate that no service connection has commonly been able to be established.
He tribunal finds itself reasonably satisfied that, in accordance with s 120(4) of the Act, that Mr George suffered from solar keratoses at the time of his death. The relevant SoP is 47/2001 concerning solar keratosis as amended by 55/2001. In accordance with the Deledio (above) principles it is necessary to see whether the SoP is consistent with the hypothesis as raised. The relevant SoP factor is 5(b), "having a solar UV damage factor ratio of at least 1.1 for the affected area at the time of the clinical onset of solar keratoses".
The definition of "solar UV damage factor ratio" appears in clause 8 of the SoP and is as follows:
"solar UV damage factor ratio" means the value obtained by applying the solar UV damage factor ratio formula. This may be calculated by using the computer program, UV Risk Version 3.3 (created by the Australian Radiation Laboratory using MicrosoftÒ Visual BasicÔ Programming System for WindowsÔ Professional Edition, Version 3.0) to the data concerning the exposure of the person to ultra violet (UV) radiation;
Note: (this note does not form part of the instrument) The computer program UV Risk Version 3.3 can be run on a personal computer with at least 8 megabytes of Random Access Memory, using the MicrosoftÒ WindowsÔ version 3.1 graphical user interface. Further information may be obtained from the Department of Veterans' Affairs, PO Box 21, Woden ACT 2606.
"solar UV damage factor ratio formula" means:
total lifetime UV damage factor
non-service UV damage factor
where:
"total lifetime UV damage factor" means the numerical value calculated by the formula:T
[MED cum (a,T)] b -1 .S PAE (n,M,a) at age (T-t) . ta -b
t=0
for the person's lifetime to the time of the clinical onset of solar keratosis; and
"non-service UV damage factor" means the numerical value calculated by the formula:T
[MED cum (a,T)] b -1 .S PAE (n,M,a) at age (T-t) . ta -b
t=0
for the person's lifetime to the time of the clinical onset of solar keratosis, with the PAE for each month of the person's period or periods of relevant service being the arithmetic mean of the PAE for each and every month of the person's life, other than the period or periods of relevant service, where:
"a " has the value of five and is a numerical constant associated with the age dependence of the cumulative incidence;
"b " has the value of two and is a biological amplification factor;
"a" is an anatomical body site;
"M" is a specified month of the year;
"MED" means minimal erythemal dose, where one MED is equal to 200 Joules of radiation per square metre of skin;
"[MED cum (a,T)]" is the cumulative solar UV dose to the skin for any given anatomical body site for the person's age at the time of the clinical onset of solar keratosis;
"n" has the value specified in column 2 of Table 1 opposite the item in column 1 of that Table for each of the specified life activities set out in column 1:
Table 1—specified life activities
column 1 column 2
Service workday (n1) 1
Service weekend (n2) 2
Service recreation period one (n3) 3
Service recreation period two (n4) 4
Civilian workday (n5) 5
Civilian weekend (n6) 6
Civilian recreation period one (n7) 7
Civilian recreation period two (n8) 8
"PAE" means personal ambient exposure in MEDs, calculated for each and every month of a person's life to the time of the clinical onset of solar keratosis based on an estimate of a typical month during each of the five year periods between the ages of 0 and 20 years and each of the ten year periods thereafter;
"PAE (n,M,a)"means the number calculated by the formula:n8
S MAE (M,Ln) . ABFa . EFn . TRFn . ESFn . CPFn . ERFn . Wn
n1
where:
"ABFa" is the anatomical body factor, and has the value specified in column 2 of Table 2 opposite the item in column 1 of that Table for each of the various body sites set out in column 1:
Table 2—body sites
column 1 column 2
Face 0.15
Hand 0.25
Leg 0.25
Arm 0.40
Back 0.50
"CPFn" is the clothing protection factor, and has the value assigned to a particular anatomical site proportionately according to the amount of protection provided by clothing and sun screen, ranging from a value of 1.00 for no protection to a value of 0.05 for full cover with heavy clothing for a given specified life activity in column 1 of Table 1;
"EFn" is the exposure factor, and has the value specified in column 2 of Table 3 opposite the item in column 1 of that Table for different exposure situations set out in column 1:
Table 3—exposure situations
column 1 column 2
Indoor 0.10
Mainly indoor 0.20
Indoor and outdoor 0.35
Mainly outdoor 0.50
Outdoor 0.60
"ERFn" is the environment reflectance factor, and has the value specified in column 2 of Table 4 opposite the item in column 1 of that Table for the different environment types set out in column 1:
Table 4—environment types
column 1 column 2
Urban 0.95
Rural 1.00
Maritime 1.00
where:
"Urban" means a location that is either a city or a town;
"Rural" means a location that is bushland, pastoral, or agricultural setting;
"Maritime" means either on the sea, lake, major river, or directly adjacent to such a body of water;
"ESFn" is the environment shade factor, and has the value specified in column 2 of Table 5 opposite the item in column 1 of that Table for the different environment shade types set out in column 1:
Table 5—environment shade types
column 1 column 2
Dense shade 0.50
Moderate shade 0.70
Light shade 0.90
No shade 1.00
where:
"Dense shade" means a location that is predominantly under dense shade, such as jungle or dense forest;
"Moderate shade" means a location that is predominantly under moderate shade, such as open forest or high density housing;
"Light shade" means a location that is predominantly under light shade, such as lightly timbered country or low density housing;
"No shade" means a location that is predominantly without shade, such as open fields, tundra, beach, or ocean;
"MAE(M,Ln)" is the average daily ambient exposure for month, M, in location, L, assuming a long term average cloud cover, being the value, obtained from the Table set out in Schedule 1, that is contained in the row that corresponds to the particular latitude (rounded to the nearest five degrees) and is contained in the column that corresponds to the month of the year that is the particular month under consideration, for each specified life activity;
"TRFn" is the terrain reflectance factor, and has the value specified in column 2 of Table 6 opposite the item in column 1 of that Table for the different terrain types set out in column 1:
Table 6—terrain types
column 1 column 2
Brown 1.02
Black 1.04
Green 1.05
Open water 1.08
Sand 1.16
Snow 1.40
where:
"Black" means a terrain predominantly of black material such as asphalt;
"Brown" means a terrain predominantly of bare soil, clay, or buildings;
"Green" means a terrain predominantly of green vegetation;
"Open Water" means an environment surrounded by water;
"Sand" means a terrain predominantly of light material such as white or yellow sand;
"Snow" means a terrain that is predominantly covered in snow;
"Wn " is an estimate of the number of days in a month in which a specified life activity in column 1 of Table 1 is performed, and where, for the purposes of this definition, every month is taken to have 30.4375 days;
"t" is the age in months of the person for the particular specified activity;
"T" is the age in months of the person at the time of clinical onset of solar keratosis;
…Schedule 1
Average daily MED calculated for the given month and latitude
Data assumes long-term average cloud cover
Latitude January February March April May June July August September October November December
85°N 0.00 0.10 0.10 0.10 0.10 1.00 1.00 0.10 0.10 0.10 0.10 0.00
80°N 0.00 0.10 0.20 1.00 2.00 3.00 3.00 2.00 0.50 0.10 0.10 0.00
75°N 0.00 0.10 0.50 2.00 3.00 5.00 5.00 3.00 1.00 0.20 0.10 0.00
70°N 0.00 0.21 0.90 2.95 5.81 7.83 8.01 5.17 1.97 0.44 0.07 0.00
65°N 0.21 0.62 1.66 4.13 7.06 9.42 9.49 6.72 3.11 1.08 0.35 0.18
60°N 0.41 1.03 2.42 5.30 8.32 11.11 11.05 8.38 4.28 1.72 0.60 0.35
55°N 0.62 1.44 3.18 6.48 9.94 12.71 12.71 10.14 5.76 2.61 0.90 0.53
50°N 0.82 1.85 3.95 7.66 11.66 14.37 14.46 12.01 7.37 3.64 1.22 0.71
45°N 1.97 3.46 5.97 9.67 13.35 16.25 15.98 14.68 9.69 5.62 2.67 1.79
40°N 3.12 5.06 7.99 11.68 15.03 18.24 17.51 17.60 12.15 7.66 4.28 2.87
35°N 4.51 7.00 10.45 14.18 17.56 20.58 19.72 19.54 14.74 9.94 6.00 4.24
30°N 6.03 9.10 13.07 16.81 20.25 23.07 22.03 21.48 17.48 12.35 7.86 5.76
25°N 8.86 12.36 16.41 19.68 22.04 22.89 21.58 21.17 18.59 14.74 10.39 8.38
20°N 11.77 15.73 19.91 22.69 23.88 22.68 21.10 20.72 19.57 17.14 12.91 11.01
15°N 14.02 17.69 20.55 21.94 21.88 19.98 19.14 19.27 18.72 17.51 14.81 13.06
10°N 16.07 19.41 20.93 21.04 19.83 17.38 17.26 17.81 17.65 17.47 16.35 14.87
5°N 17.89 19.98 20.28 19.82 18.20 16.31 16.42 17.37 18.68 18.38 17.09 16.49
Equator 19.58 20.35 19.50 18.60 16.65 15.23 15.58 16.93 19.73 19.28 17.73 18.03
5°S 19.41 20.20 19.64 19.81 17.95 16.49 17.39 19.53 22.03 21.63 20.12 19.16
10°S 19.07 20.03 19.76 20.67 18.58 16.95 18.39 21.54 24.12 24.05 22.67 20.16
15°S 23.08 23.28 22.11 19.86 15.96 14.10 15.46 18.73 22.52 24.21 24.43 23.55
20°S 25.26 24.18 21.92 17.36 12.73 10.81 11.94 15.38 19.95 24.03 26.40 25.74
25°S 25.63 23.95 20.30 14.64 9.97 7.91 8.76 11.77 16.29 20.70 24.36 25.80
30°S 25.96 23.59 18.60 11.97 7.32 5.25 5.85 8.45 12.87 17.56 22.39 25.85
35°S 22.99 20.31 15.45 9.42 5.53 3.99 4.38 6.46 10.23 14.48 19.13 22.54
40°S 20.18 17.23 12.51 7.06 3.90 2.80 3.05 4.66 7.82 11.66 16.13 19.45
45°S 17.42 14.15 9.57 5.00 2.62 1.79 2.00 3.29 5.90 9.57 13.77 16.92
50°S 15.74 12.14 7.43 3.18 1.30 0.75 0.90 1.87 4.15 7.68 12.20 15.53
55°S 14.16 10.46 6.08 2.49 1.00 0.57 0.67 1.46 3.40 6.68 10.87 13.99
60°S 12.57 8.78 4.74 1.80 0.69 0.38 0.45 1.04 2.64 5.68 9.53 12.45
65°S 10.98 7.09 3.39 1.11 0.38 0.19 0.22 0.62 1.89 4.68 8.20 10.92
70°S 9.40 5.41 2.05 0.42 0.08 0.00 0.00 0.21 1.14 3.68 6.86 9.38
75°S 6.00 3.00 1.00 0.20 0.10 0.00 0.00 0.10 1.00 2.50 4.00 5.00
80°S 3.00 1.50 0.50 0.10 0.10 0.00 0.00 0.00 0.50 1.50 1.50 2.00
85°S 1.00 0.50 0.10 0.10 0.10 0.00 0.00 0.00 0.10 1.00 1.00 2.00
This is clearly highly technical. As the definition of "solar UV damage factor ratio formula" stated above, DVA has authored a computer program that generates the damage factor ratio once relevant figures are arrived at and put into the program. Essentially the program considers the latitudes in which a veteran served and for how long he or she served in those latitudes. If the latitudes are sufficiently sun-drenched and the veteran's time there sufficiently lengthy then the UV damage factor will rise. In the present case the figures resulted in a factor of 3.3%, well short of the 10% reflected in the SoP requirement for a ratio of 1.1. As the respondent said in ex AH4, "The respondent submits that the UV calculations should come as no surprise and are consistent with the evidence about the veteran and his lifestyle. He was fair skinned of Irish (Celtic) origin, grew up in Bondi, and was an outdoor person who enjoyed sports including swimming and tennis and golf. … The evidence also shows that the veteran spent a considerable portion of his non eligible service in tropical areas including a lengthy posting in Darwin. Conversely, for a large portion of his eligible service he endured a northern hemisphere winter in Korea where sun exposure would have been minimal; and for his final posting he did office work at HMAS Harman in Canberra. … Therefore when eligible service sun exposure is considered in its proper context it can be readily seen why the calculated differential is so minor".
In the conduct of this matter before the tribunal the applicant's representative sought on the first hearing day to provide additional material to the respondent with a view to ensuring that the UV damage factor was as accurate as possible in the interests of the applicant and considering the integrity of the process. That material was provided and the resultant factor of 3.06% was before the tribunal on its second hearing day (ex R6). At that hearing the applicant's representative submitted that the parameters in ex R6 might have been based on false assumptions. The tribunal gave the applicant time to liaise with DVA with a view to arriving at figures based on revised assumptions.
In ex AH3, dated 5 February 2002, the respondent wrote on this point that "At the resumed hearing on 27 August 2001 the applicant's representative intimated that the applicant might wish to submit some 'adjustments' to the data. … To date the respondent has heard nothing further from the applicant and it must therefore be assumed that there is no dispute regarding the data. As matters stand, no challenge has been made to the data or resultant calculations and the respondent submits that they be accepted by the Tribunal as an accurate record of UV exposure".
The tribunal notes that there was nothing in the applicant's final submissions on 18 December 2001 (ex AH2) or in the applicant's response to ex AH3 (ie ex AH4) suggesting that DVA's calculations were incorrect.
In order for the applicant to succeed in relation to solar keratoses it was necessary that the hypothesis raised posited a connection between the veteran's exposure to the sun during operational service (and possibly defence service from 1972 to 1976) that would be consistent with the SoP on solar keratoses. That SoP requires that the veteran's hypothesis must suggest that he spent sufficient time in the relevant latitudes to produce a UV damage factor of 1.1 prior to the clinical onset of solar keratoses. The hypothesis perforce relies on Mr George's operational service but that is insufficient to generate consistency with the quantum of solar exposure required by the SoP.
The tribunal therefore finds, pursuant to s 120(3) and s 120A(3) of the Act, that the hypothesis connecting Mr George's operational service with his operational service is not a reasonable hypothesis because the SoP in force does not uphold the hypothesis.
It is unnecessary to consider step 4 of the Deledio (above) principles as the hypothesis has not survived application of step 3 of those principles.
At the time of the making of the primary decision in this matter, 12 April 1995, there was no SoP in force applicable to solar keratoses or chronic solar skin damage, the title of the current SoP in 1995. The first SoP was operative on 18 July 1995. It is arguable that the tribunal should apply the Federal Court decisions in Gorton (above) and Williams (above) in a case such as this by ascertaining whether the applicant could succeed in her application on the basis that there is a reasonable hypothesis in the absence of any SoP. The earlier authorities such as Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 would apply. Utilising this regime, the rigours of the SoP formula can be avoided.
In Bushell (above) Mason CJ, Deane and McHugh JJ said at pages 414-415:
"The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in The Commissioner for Government Transport v. Adamcik ((2) (1961) 106 CLR 292), this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly 20 years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said ((3) ibid., at p 306):
'The most that could be urged against Doctor Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.'
"However, a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature' ((4) ibid.). Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' ((5) East v. Repatriation Commission (1987) 74 ALR 518, at p 533).
"But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."The difficulty in this case is that the hypothesis has been raised, if later jettisoned, but that there has been no material from a relevant medical practitioner to support the hypothesis. To the contrary there has been Dr Lobel's opinion that sun-caused cancers and pre-cancers have a lengthy gestation period. The situation would be very different if there were a medical opinion, albeit a minority view, that there could be a connection here between Mr George's operational service and his keratoses. Absent such an opinion, the position seems to be summarised in the words of their Honours where they say, "a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or the known phenomena of nature'".
The tribunal therefore finds that, considered as a disease not included in a SoP, the veteran's solar keratoses was not a war-caused disease because there was no reasonable hypothesis connecting the disease with Mr George's eligible service.
This finding effectively disposes the hypothesis as raised connecting Mr George's death by suicide with eligible service. However, for the sake of completeness it is necessary to consider the SoP on suicide to ascertain whether any of the factors within that SoP may be applicable. A number can be eliminated immediately. There has been no suggestion that Mr George was a prisoner-of-war, that he suffered from post-traumatic stress disorder, psychoactive substance abuse and dependence, schizophrenia, borderline personality disorder or that he had witnessed or been confronted with traumatic events.
Psychologist Ms Barrelle (ex A2) diagnosed adjustment disorder with depressed mood. This, even if accurate, and Ms Barrelle herself described the diagnosis as only tentative given the lapse of time between Mr George's death and her report (ex R2/2), might suggest that Mr George suffered from depression (factor 5(b)) at the time of his death. This condition is included in the definition of depression in clause 6 of SoP 71/96 concerning suicide.
Ms Barrelle considered that Mr George could also have experienced a severe psychosocial stressor as defined in SoP 177/96 within the two years immediately before the suicide (factor 5(h)). This was his deteriorating skin and numerous skin cancers.
These factors must be related to Mr George's operational service if they are to be relevant (clause 4). The hypothesis does not posit a severe psychosocial stressor immediately prior to the suicide that was related to Mr George's eligible service. The Tribunal has already explained why Mr George's skin condition was not related to his eligible service. Even if this issue is considered as a non-SoP matter because the SoP on suicide dates only from May 1996, the tribunal finds that, as the skin condition was not related to eligible service, the suicide was not related to eligible service.
So far as the adjustment disorder is concerned, this would have to be an accepted disability under SoP 57/96. Factor 5(a) of that SoP allows a connection between eligible service and the adjustment disorder where a veteran has experienced an identifiable psychosocial stressor or stressors within three months immediately before the clinical onset of adjustment disorder. A "psychosocial stressor" can, under clause 7, be a disease that evokes feelings of substantial anxiety or stress such as, arguably, Mr George's skin disease. However, the skin disease in this instance was not related to Mr George's eligible service. The necessary connections are therefore absent and the hypothesis is not consistent with the relevant SoP.
The SoP on adjustment disorder was not promulgated until 1996. However, even if the hypothesis connecting service here with any adjustment disorder suffered by Mr George is considered as a non-SoP matter, there is no reasonable hypothesis connecting eligible service with the adjustment disorder since it is established that the skin disease was not related to eligible service.
The upshot of this analysis is that, as any adjustment disorder suffered by Mr George was not related to his eligible service, if such a disorder was related to his suicide the suicide was not, through that connection alone, related to Mr George's eligible service.
CONCLUSIONThe applicant's application for a War Widow Pension has not succeeded. The tribunal has not found it possible to identify a reasnable hypothesis relating Mr George's death to his eligible service.
DECISIONThe decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 28 August 2000, 27 August 2001, written submissions lodged up to 18 February 2002
Date of Decision 13 August 2002
Counsel for the Applicant Mr P Crabb, Solicitor
Solicitor for the Applicant Snedden Hall & Gallop, SolicitorsAdvocates for the Respondent Mr G Wright and Mr J Marsh, DVA Advocacy Service
Solicitor for the Respondent Mr J Marsh, DVA
0
7
0