Gundry and Repatriation Commission - [2002] AATA 640

DECISION AND REASONS FOR DECISION [2002] AATA 640

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/831

VETERANS APPEALS DIVISION           )
           Re      MAVIS GUNDRY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date26 July 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  ........ Sgd. Mr J. Handley ............
  Senior Member
CATCHWORDS
Veterans' Entitlements - whether death war-caused; whether diagnosis by reference to a Statement of Principles - whether entitlement can be found under s.8(1)(a) only - decisions affirmed.
Woodward & Repatriation Commission (V2001/935 and V2001/936)
Benjamin v Repatriation Commission [2001] FCA 1879
Veterans Entitlements Act 1986 (Cth)
McKenna v Repatriation Commission [1999] FCA 323
Keeley v Repatriation Commission [1999] FCA 1103
Repatriation Commission v Deledio (1997) 25 AAR 396; (1998) 49 ALD 193
Statement of Principles Instrument No. 59 of 1996
Statement of Principles Instrument No. 85 of 2001
Statement of Principles Instrument No. 73 of 1997

REASONS FOR DECISION

26 July 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 23 May 2000. The VRB then affirmed the respondent's decision made on 14 December 1997, to refuse her claim for widow's pension.
Mrs Gundry brings this application as the widow of the late Ernest Gundry, who was born on 27 February 1921 and died on 20 September 1997. The late Mr Gundry was a member of the Australian Army between 14 December 1941 and 17 May 1946. He served overseas and Mrs Gundry is entitled to the beneficial standard of proof.
The cause of death was certified to be "respiratory failure - 2 days: emphysema - 10 years; asthma - 60 years; cardiac failure - 1 year".
The hearing commenced in Albury on 14 March 2001. Ms Bornstein acting as Counsel appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. Mrs Gundry then gave evidence.
The hearing of the application was adjourned part heard to permit the representatives of the parties to mutually obtain a further medical opinion from Doctor David Hart, a consultant respiratory physician. This course of action was considered appropriate and necessary having regard to a number of differing Statements of Principles concerning both asthma and chronic bronchitis.
A number of events subsequently emerged which have, in part, been responsible for the delay in the delivery of these reasons, namely-
i)         obtaining three medical reports from Doctor Hart on 29 May 2001, 7 August 2001 and 7 February 2002 and subsequent Directions Hearings having regard to issues that emerged from those reports; and
ii)        contentions on behalf of Mrs Gundry that her claim be determined under s.8(1)(a) of the Veterans Entitlements Act 1986 ('the Act"), without reference to a Statement of Principles; and
iii)       the hearing of an application where an equivalent legal argument to the above was raised and subsequently decided in an application of Woodward and Repatriation Commission ("Woodward", V2001/935 and V2001/936.). That application was also pursued by the solicitors for Mrs Gundry. The decision in Woodward will be delivered at the same time and date as this decision. To the extent that there is similarity in the legal argument raised, references will be made in this decision to the decision of Woodward.
When the application was heard in Albury, the Tribunal was then constituted by Doctor Re and myself. Subsequently, the term of the appointment of Dr Re has expired and at the present time, she is not a member of this Tribunal. The representatives of the parties consented on 9 July 2001 for the Tribunal to be reconstituted and for these reasons for decision to be delivered by me alone.
Mavis Gundry
Mrs Gundry filed a proof of evidence prior to the commencement of the hearing, which was received into evidence as Exhibit A. That statement is reproduced as follows-
"I married Earnest Gundry on 16th April 1949. We first met when he moved to Wangaratta in order to undertake a rehabilitation course straight after his discharge from the Army. He served in the Australian Army from 14th December 1941 to 17th May 1946. I understand that he did serve in New Guinea during his war-service years.
Ern was born on 27th February 1921 and died on 20th September 1997.
Ern suffered shortness of breath from when we first met. He did tell me that he suffered pneumonia during his war service years and that he was hospitalised as a consequence. He never indicated one way or the other to me whether he had suffered shortness of breath before the bout of pneumonia.
Ern rarely spoke about his war service. He told me about the pneumonia only after he had suffered a bout of pneumonia in about 1990. He suffered a further bout of pneumonia about 1 year before his death. He was hospitalised after both these bouts of pneumonia.
Ern had bronchial problems for the whole time that I knew him. He always suffered a wheeze and was prone to chest colds - particularly in winter. The colds were always productive.
Ern was never a smoker or a drinker of alcohol to my knowledge.
Whilst Ern rarely talked about his war-service he did indicate that living conditions during service were primitive at times. He indicated that he slept on straw palliasses, which were uncomfortable. I am not sure what his living conditions were like overseas; I am not sure even whether he slept in tents or huts.
Ern suffered badly from his respiratory illness during our marriage. He was on medication (a puffer) which he used when he was out of breath.
Ern received treatment from the Ely Street Clinic, 19 Ely Street, Wangaratta from about 1983. His treating general practitioner at that clinic over the last period of his life was Doctor S. Moroney. Ern's treating physician was Doctor MacLeish.
Ern never mentioned to me that he had ever suffered childhood asthma.
My husband's breathing problems gradually deteriorated. Over the last few years he suffered particularly badly at night times when he would wheeze.
My husband died at home. His last hospitalisation was when he suffered a bout of pneumonia in about January 1997'.
In evidence, and in addition to the above, Mrs Gundry said that she first met her husband in 1949 in Wangaratta. He then had "bronchial problems" and he had had those "problems" for the whole of their marriage. She recalled that Mr Gundry had always had a productive cough. She said that during every winter, on approximately 3 occasions, and during summer and spring, on approximately two occasions, he had recurring chest infections. She said that he always produced sputum with his cough, which was worse when his chest was infected. She said that infections would last for between two and four days. He was always prescribed antibiotics and given certificates from his Doctor to evidence incapacity from work.
Mrs Gundry was unable to say how long her husband had had chest infections before she met him in 1949.
Doctor David Hart
Doctor Hart did not give evidence either in Albury or subsequently, however, he provided four medical reports.
In his report of 11 December 2000, Doctor Hart referred to a number of medical records and reports that were forwarded to him in order to assist in the preparation of an opinion. It is clear that the records available were of some vintage, because he referred to hospital admissions in 1941 and 1943. Doctor Hart then concluded that the admission to hospital in Wangaratta in 1943 suggested that the deceased then suffered an attack of asthma. Doctor Hart concluded "I think it is a reasonable hypothesis that Mr Gundry first developed asthma as a result of his 1941 respiratory infection and that chronic asthma has lead to the subsequent development of severe pulmonary emphysema".
Dr Hart was provided with a summary of the evidence of Mrs Gundry that the parties' representatives jointly prepared, in the absence of a transcript from the hearing in Albury. In his report of 29 May 2001, Dr Hart concluded that the symptoms of the deceased satisfied the definition of "chronic bronchitis", as that definition appears in Instrument No. 73 of 1997 being a Statement of Principles concerning chronic bronchitis. However, he remained of the opinion that the deceased did suffer from chronic asthma. This is because of the production of sputum is consistent with a diagnosis of chronic asthma, as opposed to chronic bronchitis. Dr Hart considered whether a diagnosis of "asthmatic bronchitis could reasonably be substituted". The definition, however, of that condition, within Instrument No. 73 of 1997, "specifically excludes asthma".
In his report of 7 August 2001, Doctor Hart concluded that his interpretation of the definition of "asthmatic bronchitis" could not be satisfied upon the evidence of Mrs Gundry. He remained "convinced Mr Gundry suffered from chronic asthma, (and) the diagnosis of asthmatic bronchitis cannot be invoked". This report was apparently requested in order to clarify some issues which emerged from the 29 May 2001 report.
In his last report of 7 February 2002, Doctor Hart was asked to comment upon a recently issued Statement of Principle - No. 85 of 2001 - entitled "asthma". It was his opinion, having observed that new instrument, that the deceased did suffer asthma as defined within that Instrument.
Conclusion & Reasons For Decision
Diagnosis Statement of Principles
Subsequent to the hearing in Albury, the Full Federal Court of Moore, Emmett and Allsop JJ, heard an appeal in Benjamin v Repatriation Commission [2001] FCA 1879 ("Benjamin"). The appeal was heard on 13 November 2001 and decided on 21 December 2001. Neither party referred to this decision in the written submissions subsequently lodged, however for reasons which follow, consideration of the decision in Benjamin would be immaterial to the conclusions that I have reached. That is to say, irrespective of the decision in Benjamin, I am not satisfied that Mrs Gundry is able to satisfy any applicable Statement of Principles.
In Benjamin (para 41), the Full Court decided that a diagnosis of injury is not to be made by reference to a Statement of Principle. The Court continued, in reference to some earlier decisions of the Tribunal and the Federal Court, that diagnosis is to be determined upon the balance of probabilities. By reason of the inquisitorial nature and responsibility of the Tribunal, consideration should not be given only to the "case" the parties articulate. With those issues in mind, it is obvious from the reports of Doctor Hart that he did have reference to a number of different Statement of Principles. Indeed, he specifically referred to some definitions within the Statements of Principles that were submitted to him. I understand from the reading of his reports that he made those enquiries by way of assistance to the parties and - to his credit - in apparent recognition of the beneficial nature of repatriation legislation - to determine whether Mrs Gundry might satisfy a Statement of Principles.
I understand that the first report of Doctor Hart, made on 11 December 2000, diagnosed the condition of chronic asthma by reference to clinical data. I also understand from his report of 29 May 2001, that he preferred the diagnosis of chronic asthma to a diagnosis of chronic bronchitis. This was with regard to particular symptoms the deceased exhibited in his lifetime and referred to in the evidence of Mrs Gundry.
In my view it is appropriate, having regard to the inquisitorial duty or the Tribunal, to consider the potential of other diagnoses. I am satisfied, however, that on the balance of probabilities the correct diagnosis of the condition the deceased suffered in his lifetime and which was responsible for his death, to be that of "asthma". It therefore follows, as I understand the decision in Benjamin, that the Statement of Principles with respect to "asthma" should be considered.
It is beyond dispute that the two stages of the Deledio analysis (Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 ("Deledio")) would be satisfied. However, I cannot be satisfied that the material raised in these proceedings would satisfy any of the factors in either of the two applicable Statement of Principles concerning 'asthma', current and subsequent to the commencement of the claim, namely Instrument No. 59 of 1996 and Instrument No. 85 of 2001. (Instrument No. 75 of 1997 is not relevant to this analysis because it only amends the definition of "asthma" and contains no reference to or amendments to any of the factors that exist in Instrument No. 59 of 1996).
The factors within Instrument No. 59 of 1996, found at paragraph 5, concern exposure to occupational antigens, exposure to antigenic or non-antigenic stimuli and inability to obtain appropriate clinical management. Those same factors exist within Instrument No. 85 of 2001, however that Instrument also contains factors of suffering from gastro-oesophageal reflux disease and reactive airways dysfunction syndrome.
The hypothesis raised on behalf of Mrs Gundry is not consistent with the "template" within either of the applicable Statements of Principles. This is because the hypothesis does not contain one or more of the factors within the Instruments. As a result, the hypothesis can not be regarded as being "reasonable" and the claim must fail.
Even in the absence of the decision in Benjamin, if enquiry were made of the other potential Statement of Principles ("chronic bronchitis"-Instrument No 73 of 1997), Mrs Gundry would not be able to satisfy any of the applicable factors on the basis of the material raised in the proceedings. That instrument contains factors which refer to smoking (the deceased did not ever smoke cigarettes), being exposed to "airborne irritants", exposure to mustard gas or Lewisite, being exposed to an irritant gas and an inability to obtain appropriate clinical management. For the same reasons given above, there being no material pointing to any of the factors in this Instrument, the hypothesis is not deemed to be "reasonable".
Alternate Submission/Section 8(1)(a)
In the alternative, the applicant argued that a claim should be determined pursuant to s 8(1)(a) of the Act on the basis that the section required "a mere temporal connection between death and service". Additionally, it was contended that s 120A of the Act did not apply and satisfaction of a Statement of Principles was not required, in order to determine the reasonableness of a hypothesis. Section 8(1)(a) of the Act says-
"Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if;
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; ……"
Section 8(1)(a) is identical in terms to section 9(1)(a). The decision in Woodward was concerned with section 9. Nonetheless, I adopt the reasons found at paragraphs 87-91 inclusive in Woodward, following an analysis of both parties' submissions in that application. In summary, I concluded that part of the decision relied upon in McKenna v Repatriation Commission [1999] FCA 323 was obiter. The combined effects of ss 8, 9, 13 and 120A of the Act dictate that a hypothesis will only be reasonable if a Statement of Principles is satisfied, as determined under s 196B for claims made after 1 June 1994. Additionally, a regime of satisfaction of Statement of Principles is consistent with the Parliamentary speeches Heerey J referred to in Keeley v Repatriation Commission [1999] FCA 1103 and Deledio. Furthermore, I can not find any authority in support of the submissions put by the applicant with respect to s 8(1)(a).
The only reference I can find within the Act to determine a claim without reference to a Statement of Principle is under s 8(1)(f), in what must be regarded as discrete and limited circumstances, death being deemed to be war caused if the cause of death was by an injury or disease that was determined to have been war-caused in a veteran's lifetime. Those circumstances do not apply in the present case.
In all of the circumstances I am satisfied that the decision under review must be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         Katherine Navarro...............
  Associate
Date/s of Hearing  14 March 2001
Date of Decision  25 July 2002
Counsel for the Applicant        Ms Judith Bornstein
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr Robert Douglass
Solicitor for the Respondent    Department of Veterans' Affairs