Hammond and Repatriation Commission
[2003] AATA 311
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/885
VETERAN’S APPEALS DIVISION ) Re GLORIA HAMMOND Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date4 April 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefore determines that the death of Raymond Hammond was war-caused and that his widow Gloria Hammond is entitled to a War Widow’s pension on and from 18 February 2000.
...................(Sgd)...................
Mr I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war-widow’s pension – whether veteran’s death was war caused – whether veteran’s death arose out of or was attributable to his war service – whether applicant entitled to pension
Veterans Entitlements Act 1986 ss 8, 9, 119, 120, 123
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 30 ALD 1Doolette v Repatriation Commission (1990) 21 ALD 489
Re Blythe and Repatriation Commission (1982) 4 ALD 147
Repatriation Commission v Bendy (1989) 18 ALD 144
Benjamin v Repatriation Commission [2001] FCA 1879
Re Hawkins v Repatriation Commission (1993) 30 ALD 59Repatriation Commission v Bendy (1989) 18 ALD 144
Statements of Principle
No 73 of 1997
No 136 of 1996
REASONS FOR DECISION
4 April 2003 Mr I R Way, Member 1. This is an application by Gloria Hammond (the applicant) for review of a decision of the Repatriation Commission made on 7 August 2000, and affirmed by the Veterans’ Review Board (VRB) on 17 August 2001, that the death of her husband, Raymond Hammond (the veteran), was not war-caused within the meaning of section 8 of the Veterans Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
Exhibit A1 Statement of the Applicant dated 3 October 2002
Exhibit R1 Opinion of Dr Grant
Exhibit R2 Mayne Health recordsExhibit R3 Medical Impairment Assessments
3. The applicant was represented by Mr E Muir and the respondent by Mr B Williams. The applicant gave oral evidence. Dr W L Wakefield gave evidence by telephone and Dr P A Grant gave oral evidence.
4. Under section 13 of the Act the Commonwealth is liable to pay a pension by way of compensation to the dependents of a veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (section 11), may make a claim for pension under section 14 of the Act.
5. The applicant is a widow of a veteran who rendered operational service as defined in sub-sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War II.
6. The veteran rendered operational service as he served in the Royal Australian Airforce from 10 July 1941 to 8 November 1945 during Word War II, including service outside Australia.
7. The veteran was born on 12 November 1912 and died on 17 February 2000 aged 87 years. The cause of the veteran’s death is recorded (at folio 13) as cardio respiratory failure (one week) due to or as a consequence of advanced dementia (2 years), with severe Paget’s disease (years) being a significant condition contributing to his death but not related to the diseases or condition causing it.
8. The veteran’s accepted service related disabilities were:
§ Chronic airflow limitation (because of his war-caused smoking habit)
§ Peptic ulcer disease
9. His non-accepted disabilities were:
§ Paget’s disease of bone
§ Death (the subject of this appeal)
10. The applicant has raised the hypothesis that the veteran’s accepted disability of respiratory tract disorder contributed to his death and in so doing the applicant relies on the opinion to this effect expressed by Dr Wakefield, the applicant’s General Practitioner.
Legislative Scheme
11. The question of whether the death of a veteran who has rendered operation service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression war-caused, the relevant part of section 8 provides:
“8 War-caused death
(1) 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;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
12. Section 120 describes the standard of proof as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
13. Other relevant provision of the Act in respect to the claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
14. Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SoP);
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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);
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
15. Section 120(1) provides the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
16. Subsection 123(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
17. The Act provides that a hypothesis is not reasonable for the purpose of sub-section 120(3) unless the SoP upholds the hypothesis.
18. The date of lodgment of the applicant’s informal claim is 22 February 2000 and the date of lodgment of the formal claim is 23 March 2000.
19. There is no disagreement between the parties and the Tribunal is satisfied that the relevant SoP in this matter at the time of the applicant’s claim is Instrument No 73 of 1997, Chronic Bronchitis and Emphysema (which replaces Instrument No 136 of 96 concerning Chronic Airflow Limitation).
Applicant’s Evidence
20. In her claim for war widow’s pension, dated 23 March 2000, the applicant stated (T4/9):
“The cause of my husband’s death on the death certificate is Cardio Respiratory Failure. My husband suffered from respiratory symptoms for many years and had Chronic Airflow Limitation as an accepted disability from 16.5.96.”
21. In her written statement, dated 3 October 2002, the applicant stated (Exhibit A1):
“1. I am the applicant herein.
2.I had been married to my decreased husband Raymond Hammond for 47 years.
3.To my knowledge my husband did not suffer from advanced alzheimers. He knew me, he recognised me every time I visited and was able to carry on conversation.
4.At the time my late husband was in hospital on the last occasion I was informed by the nursing staff that he was having trouble with his breathing and that he had been moved into another ward by himself.
5.In June 1999 my late husband had a turn for the worst and was taken to hospital under the care of Dr Merson.
6.At that time the Department suggested that my husband go into a hostel because of the steps in our accommodation and that he would find it easier to move within the new hostel situation. My husband was suffering paget’s disease. The suggestion made by the Department was because of his paget's disease and not because of any suggestion that he had alzheimers.
7.I dispute that my late husband had alzheimers to the extent expressed by medical reports. I believe he could converse sensibly. He did not at any stage appear to be suffering alzheimers in any degree.
8.My husband suffered airflow problems.”
22. In her oral evidence the applicant told the Tribunal that her husband smoked three packets of cigarettes a day having started his smoking habit while he was in the Air Force during Word War II. She said that his smoking habit had been with him until the last few years of his life even though he had tried to give up smoking prior to this.
23. The applicant said that her husband received a disability pension in 1996 as a result of his accepted disabilities of chronic airflow limitation and ulcers and that during the last few years of his life used a “puffer” to alleviate his breathing problems. She said the “puffer” was not prescribed by a doctor and her husband would buy “puffers” over the counter at a chemist shop.
24. Mrs Hammond said that she had visited her husband during his final two weeks in hospital during which time she was told by a nursing sister that her husband was having trouble breathing and she noticed this also. With respect to Alzheimer’s disease Mrs Hammond reinforced what she said in her written statement, namely that her husband could recognise her and he was quite normal to talk to during the last period of his life. In answer to a question in cross-examination she said she had no nursing or medical qualifications.
Medical Evidence
25. Dr Wakefield in a letter to the Department of Veterans’ Affairs dated 2 August 2000 (at T4/14) stated:
“Mr Raymond Hammond was admitted to Pindara Private Hospital on 19 January with a deterioration of his general medical condition. His condition fluctuated while in hospital but he was on a gradual downhill decline and passed away on the 17th February. Unfortunately I took ill myself about a week prior to this and hence did not care for Mr Hammond in the week prior to his death.
Previously it had been noted that he did have cadiomegaly and in the couple of weeks prior to his death he did have some episodes where he lost consciousness, became very pale, and had a very weak pulse. It was thought that these maybe were cardiac in origin and it was felt that his continued demise was due to a deterioration in his cardiac function.
Although his chronic airflow limitation may not have been the cause of his death, this certainly would have contributed to his death. As his cardiac function decreased his already reduced respiratory function would not have been able to compensate for this and would have hastened his death.
Mr Hammond also had advanced dementia. This had been diagnosed as an Alzheimer type of dementia by the Director of the Mental Health Services for the elderly at the Gold Coast Hospital.”
26. On 28 August 1996, Dr Wakefield completed a DVA Medical Impairment Assessment of the veteran’s respiratory condition (CAL) (Exhibit R3) in which he records spirometry results of FEV1-FVC of 2.2/2.9 and states that the veteran “experiences severe shortness of breath couple times per week mainly at night”. In his oral evidence Dr Wakefield could not recall the results of the spirometry tests.
27. Dr Wakefield told the Tribunal that he had been treating the veteran since 1988. He said he could not find the deceased’s medical records however he could recall the veteran being a heavy smoker and he said it was probably correct that the veteran suffered CAL. Dr Wakefield could not recall prescribing any medication for the veteran with respect to his breathing problems. However, he confirmed it was possible the veteran could have bought “puffers” without a prescription. He said that he was in hospital himself during the last week of the veteran’s life and during this time Dr S D Shepherd, a partner in the same practice as his, attended the veteran. The Tribunal notes that the medical certificate of the cause of death (T4/13) is signed by Dr Shepherd.
28. With respect to dementia Dr Wakefield said that while he would describe the veteran as suffering from dementia, the veteran knew him and he would not consider his dementia to be advanced. The Tribunal notes that Dr E Merson, Consultant Physician specialising in geriatric and psycho-geriatric medicine, in a letter to Pindara Private Hospital dated 15 June 1999 (Exhibit R2) stated:
“I reviewed Mr Hammond’s dementia after he was admitted to Pindara via A & E. I performed a MMSE in which his score was 10/30. I am not sure how long this process has been going on, probably several years.
He is going for a Ceretec Scan on 22/6/1999 and he had a normal CT. Other investigations have shown no specific biochemical or endocrinological cause of dementia.
He was at Ozanam Villa, Burleigh Heads and there is a bed available in the Dementia Unit at Ozanam Villa, Labrador.
…
He is discharged on the following medications:
Rani inocte
Panamax II
Serenace 2.5mg nocte PRN for confusion”
29. With respect to the veteran’s enlarged heart, Dr Wakefield expressed the opinion that this was more due to the veteran’s heart and lung condition than dementia.
30. Dr Wakefield told the Tribunal that in his opinion the applicant’s CAL would likely have affected the amount of oxygen flow to his heart such that the heart would have had to compensate for an inadequacy of oxygen and this would have accelerated his demise.
31. In cross-examination Dr Wakefield was unable to recall whether there had been any spirometry retesting of the veteran; if the veteran had been referred to a specialist with respect to his CAL; and as he had not been present in the last week of the veteran’s life was unable to say if the hospital had been treating the veteran for breathing problems prior to his death. In answer to questions from the Tribunal Dr Wakefield expressed the opinion that the veteran was not suffering from emphysema or asthmatic bronchitis and it was possible that he suffered from chronic simple bronchitis.
32. On re-examination Dr Wakefield was taken to Dr I Smith’s letter of 4 August 2000 (T4/15) wherein Dr Smith expressed the opinion:
“The ‘advanced dementia’ was diagnosed as Alzheimer’s disease. In my opinion this was the principal cause of death.
The local medical officer, Dr Wakefield notes that the veteran had cardiomegaly and had other clinical features of cardiac failure during his final illness. I do not concur that chronic airflow limitation contributed significantly to the veteran’s death. When last assessed the airflow, as measured by FEVI and FVC was superior to normal (127% and 102% predicted respectively).
The cause of the veteran’s cardiac failure is not clear. While ischaemic heart disease is common in the cohort of elderly male veterans, there is no positive indication of this. Paget’s disease itself is a rare cause of cardiac failure.
On the evidence available I can only identify Alzheimer’s disease as the cause of death.”
33. Dr Wakefield said that in his opinion the cause of the veteran’s death was more from cardiac conditions than Alzheimer’s disease.
34. Dr PA Grant, Senior Medical Officer DVA provided a written report dated 28 May 2002 (Exhibit R1) and gave oral evidence.
35. In his written report Dr Grant said:
“I have reviewed the terminal illness notes from Pindara Private Hospital as well as the other photocopies provided with your minute of 15 May 2002. As well, I have read the opinion of Dr Smith, then a Compensation Medical Adviser.
The issue remains as to what information, if any, there is to be found in the supplied clinical notes to support the hypothesis that smoking-related chronic airflow limitation made a significant contribution to death. Whilst a diagnosis of ‘COAD’ (ie chronic obstructive airways disease) was recorded on transfer from Pindara to Ozanam Village on 16 September 1999, Dr Merson, Geriatrician, had raised concerns on 13 June 1999 as to the validity of that diagnosis. Furthermore, a chest x-ray on 13 June 1999 was reported to show left ventricular enlargement whilst the lung fields were clear. There was a localised eventration in the right hemidiaphragm. Neither the heart enlargement or that change supports a diagnosis of chronic airflow limitation.
The assessment that Dr Smith refers to in his opinion appears to be that by the local medical officer in 1996. Whilst the late veteran had a regular cough, the spirometry figures are above the predicted range thereby excluding chronic airflow limitation, in my opinion. The most that could be made of the local medical officer’s description is chronic simple bronchitis. I have compiled a Cardiorespiratory Impairment Worksheet to support this view.
The maximum effort tolerance limitations can easily be attributed to a combination of generalised debility and lack of fitness due to advanced Alzheimer’s disease and hart enlargement. For the latter, it needs to be considered if this was due in part to relatively advanced Paget’s disease causing shunting of blood or hypertension or a combination.
Summaries such as that of 20 December 1999 by a registered nurse fail to mention any form of respiratory disease. As well, the late veteran does not appear to have been treated regularly with medication that might reasonably be considered to be for chronic lung disease.
On reading the nursing notes from 4 February 2000 until the day of death, I can find no notes to suggest that Mr Hammond was troubled by a cough, wheeze or shortness of breath. The nursing comments are consistent with advanced dementia, double incontinence, and bed sores, as being major problems with a probable fall on 7 February 2000.
The late veteran was reviewed in the Accident and Emergency Department that day with drowsiness and the wound on his head sutured. He proved hard to rouse and Dr Wakefield reviewed Mr Hammond the following day who reduced the dose of risperidone and ceased temazepam. The late veteran could not be roused on 14 February 2000 and Dr Wakefield commenced parenteral morphine for pain. The decline in mental status was uninterrupted and associated with increasing problems with pressure area care and incontinence up until death.
In summary, I do not consider that the clinical notes make it reasonable to conclude that Mr Hammond’s demise was in any way due to a smoking-related chronic lung condition. The diagnosis of chronic airflow limitation remains questionable in any case.”
36. Dr Grant also provided a cardio respiratory worksheet for the veteran (attached to his report) in which, based on the spirometry tests (as already noted, and a METs level 3-4 (from GARP 5) concluded that the veteran’s respiratory condition resulted in a physiological impairment rating of “0”.
37. In his oral evidence Dr Grant said he had never met or treated the veteran nor could he be sure he has talked to Dr Wakefield. He said all of his opinions were expressed as a result of the various documents on departmental files, advocacy files, various submissions and nursing notes. Dr Grant was taken to the extensive medical records relating to the veteran and provided by Mayne Health (Exhibit R2), in particular the summaries of hospital admissions covering the periods 1981 to 2000, the Pindara Private Hospital progress notes with respect to the veteran’s admission and treatment during the period 4 February 2000 to his death on 17 February 2000; and Dr Merson’s hospital progress notes relating to the mental state examination of the veteran on 13 June 1999 (after the veteran’s wife found him “unresponsive, cold and confused”) leading to her report of 15 June 1999 (as quoted above).
38. Dr Grant confirmed that he could find nothing in the hospital notes or in any other records to indicate that the veteran was being treated for chronic lung disease or of the veteran suffering CAL or being treated for such a disease. Furthermore Dr Grant reinforced his opinion that the veteran’s left ventricular enlargement was not in any way significant with respect to CAL, nor was the localised eventration of the right hemidiaphragm; or the veteran’s Paget’s disease or his cognitive state of deterioration.
39. When asked about dementia Dr Grant said that the mental state examination score 10/30 obtained by Dr Merson indicated the veteran was at the upper end of moderate dementia. It was Dr Grant’s opinion that the nature of the veteran’s presentations during his final stay in hospital appeared to relate to a state of advanced disablement (including a fall) requiring close nursing care but not related to CAL.
40. When asked in cross-examination to comment on Dr Wakefield’s opinion that it was possible to still have CAL even though spirometer tests were satisfactory, Dr Grant said that the relevant SoP did not allow for this and the current SoP required a diagnosis based on a person’s Forced Expiratory Volume of 85% or less compared with normal predicted values and a ratio of Forced Expiratory Volume to Forced Vital Capacity of 75% or less. Furthermore Dr Grant said he would not be prepared to make a diagnosis of CAL unless he had access to spirometry tests which were within the parameters set out in the SoP. When asked to comment on Dr Wakefield’s opinion that CAL could have a cardio-respiratory effect, Dr Grant said that he could not see any pattern in the veteran’s symptoms or treatment to support this contention and even assuming a diagnosis of CAL was correct, any cardio-respiratory effect would have been minimal in this case.
Submissions
41. Mr Muir, for the applicant, submitted that the Tribunal should accept Dr Wakefield’s opinion, as the veteran’s treating doctor, that the veteran suffered from CAL which would have accelerated his death and therefore, as CAL was an accepted war-caused disability, it can be said that the veteran’s death, pursuant to section 8(1)(b) of the Act, arose out of or was attributable to his service. Mr Muir also submitted that there was a gap (between 1996 and 2000) in the medical records and the lack of such records was an important factor which complicated the determination of the veteran’s medical condition prior to his death.
42. Mr Williams, for the respondent, submitted that in the first instance the Tribunal should consider whether the applicant’s case could be determined pursuant to section 8(1)(f) whereby the applicant would succeed in his claim if the Tribunal was reasonably satisfied that the veteran died as a result of a disease that had been accepted by the respondent, in accordance with section 9 of the Act, to be a war-caused disease. It was the respondent’s submission that even if the Tribunal were to find that CAL had been determined, pursuant to section 9 of the Act, the evidence before the Tribunal did not support a finding that the veteran's CAL caused his death.
43. Mr Williams submitted that if the Tribunal were to accept the respondent’s submission with respect to section 8(1)(f) of the Act, then the Tribunal would need to consider whether, pursuant to section 8(1)(b), the veteran’s condition arose out of or was attributable to any eligible war service rendered by the veteran. In so considering the matter, it was submitted that the Tribunal would need to firstly be reasonably satisfied that the veteran died from a disease in accordance with the relevant SoP and if so to then consider whether the hypothesis put forward by the applicant is a reasonable hypothesis. In this case Mr Williams submitted that the only condition the veteran suffered was from chronic simple bronchitis and that on all of the material before it the Tribunal would be satisfied beyond reasonable doubt that the veteran’s death was not connected to chronic simple bronchitis and that therefore the respondent’s decision should be affirmed.
Consideration
44. The Tribunal is satisfied that on 11 September 1996 the respondent determined, pursuant to section 9 of the Act, that the veteran suffered from war-caused Chronic Airflow Limitation with date of effect 16 May 1996. The Tribunal accepts that in making this determination the respondent was satisfied that the veteran’s smoking habit was such that he met factor 5(a) of the SoP then in force. (Instrument No 136 of 1996) having smoked at least 10 pack years of cigarettes before the clinical onset of chronic airflow limitation.
45. At this stage it is appropriate to set out the following provisions of Instrument No 73 of 1997 with respect to the meaning of various relevant terms:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about chronic bronchitis and/or emphysema and death from chronic bronchitis and/or emphysema.
(b) For the purposes of this Statement of Principles,
(i)‘chronic bronchitis’ means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;
(ii)‘emphysema’ means a respiratory tract disorder which is bilateral and diffuse and which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of alveolar septa, attracting ICD code 492. This may be accompanied by a degree of chronic airways obstruction or limitation. This definition specifically excludes isolated emphysematous bleb and surgical, traumatic, unilateral, focal or localised emphysema including that seen in Swyer-James syndrome, MacLeod's Syndrome, or hyperlucent lung.
(c) The predominant functional assessment of chronic bronchitis and emphysema utilises pulmonary function testing to demonstrate pulmonary obstruction. Pulmonary obstruction is usually defined by a low forced expiratory volume in one second (FEV1) and FEV1/FVC ratio. For the purposes of this Statement of Principles,and for other than chronic simple or chronic mucopurulent or asthmatic bronchitis, the diagnosis of chronic bronchitis and/or emphysema requires evidence of significant irreversible chronic airflow obstruction or diminished pulmonary gas exchange in the lung.
This is considered to be present if there is:
(i)(a) a decrease in the person’s Forced Expiratory Volume in one second (FEV1) to 85% or less of the normal predicted value for a person of the same age, height and gender; and
(b)a ratio of FEV1 to Forced Vital Capacity (FVC) of 75% or less;
which is not attributable to other disease; or
(ii)specialist medical assessment indicative of a diagnosis of pulmonary obstruction, including evidence of significant irreversibile small airways dysfunction as measured by FEV25-75 (Forced Expiratory Flow between 25% and 75% of the vital capacity) which is not attributable to other disease, or
(iii)specialist medical assessment indicative of a diagnosis of emphysema, including evidence of significant irreiversible diminished carbon monoxide diffusing capacity, which is not attributable to other disease.
Where no pulmonary function tests can be performed because the person is deceased, an antemortem clinical history and findings at postmortem (if any) consistent with 2(b)(i) and/or 2(b)(ii) above may be used in the diagnosis of chronic bronchitis and/or emphysema.
…
Other definitions
7. For the purposes of this Statement of Principles:
‘acute respiratory symptoms’ means symptoms such as throat discomfort, continuous hoarse coughing, nasal discharge, copious mucus production and haemoptysis which have developed due to inflammation of the mucosa of the respiratory tract and which may be manifested by laryngitis, tracheitis, or bronchitis;
‘asthmatic bronchitis’ means chronic bronchitis with demonstrated productive cough, exertional dyspnoea and airflow limitation. These symptoms, and the limitation, reverse significantly in response to inhaled beta-agonists, anticholinergics, methylxanthines, and corticosteroids (used either alone or in combination). In asthmatic bronchitis sufferers progressive airflow limitation occurs over time and becomes less reversible. This definition specifically excludes asthma;
‘being exposed to mustard gas or Lewisite’ means having inhaled sulphur mustard or Lewisite vapours, resulting in the development of symptoms of rhinitis, laryngitis, tracheitis, and bronchitis within the 48 hours immediately after exposure;
‘chronic mucopurulent bronchitis’ means chronic bronchitis with either nil or minimal pulmonary obstruction and which is characterized by persistent or recurrent purulence of sputum in the absence of localized suppurative diseases such as bronchiectasis;
‘chronic simple bronchitis’ means a chronic bronchitis with either nil or minimal pulmonary obstruction and which is characterized by mucoid sputum production;
‘ICD code’ (at T4/14) means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
‘irritant gas’ means the gaseous forms of irritant chemicals, for example, chlorine, ammonia, phosgene, phthalic anhydride, nitrogen dioxide and sulphur dioxide;
‘pack-year’ means 7 300 cigarettes, or 1 460 cigars, or 7.3kg of pipe tobacco;
‘relevant service’ means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service.”
46. The Tribunal notes that the spirometry parameters as set out in paragraph 2(c)(i) (above) are identical to those set out in Instrument No 136 of 1996 where it is stated at 2(b) for the purposes of this Statement of Principles that “chronic airflow limitation” means a permanent obstruction of airflow due to chronic bronchitis or emphysema, measured by:
“(a)a decrease in the person’s FEV, to 85% or less of the normal predicted value; and
(b) a ratio of FEV, to FVC of 75% or less”
And that the relevant ICD Codes are also the same.
47. Turning then to consideration of the application of section 8(1)(f).
48. As indicated above the Tribunal is satisfied that pursuant to section 8(1)(f) of the Act the respondent determined in 1996 that the veteran suffered war-caused CAL (based on the SoP then in existence). In being so satisfied the Tribunal notes that the respondent does not dispute this fact. Whether the diagnosis of CAL was correct at this time is not relevant to the Tribunal ‘s consideration of the application of section 8(1)(f). The question then is whether the Tribunal can be reasonably satisfied that this disorder was the cause of the veteran’s death.
49. As is often the case in matters such as this there is a conflict of medical opinion. Dr Wakefield, the applicant’s treating General Practitioner, is of the view that the veteran’s CAL has contributed to his death.
50. Dr Smith and Dr Grant are of the view that the veteran’s death was not causally related to CAL.
51. The Tribunal is mindful that the weight to be given to the opinion of treating doctors should not be discounted lightly. However, in this case the Tribunal notes that even though Dr Wakefield had been treating the veteran since 1988, he was unable to produce or refer to any of his relevant clinical notes or records; he could not recall diagnosing CAL or prescribing any relevant medication for the veteran’s condition (and this is borne out by the applicant’s evidence that the veteran self prescribed “puffers”); he could not recall whether he had arranged for spirometry retesting; he did not refer the veteran for any specialist opinion; and in the week prior to the veteran’s death he was unfortunately in hospital himself and not able to tend the veteran.
52. Taking the above matters into consideration the Tribunal is of the view that the evidence of Dr Wakefield cannot be seen to be of more assistance than the evidence of Dr Grant. The Tribunal was impressed by the very thorough and professional analysis undertaken by Dr Grant and the consistency of his opinions with the considerable volume of medical material before the Tribunal (and the opinion of Dr Smith). On balance the Tribunal finds the evidence of Dr Grant persuasive and the Tribunal is reasonably satisfied that his opinion that CAL could have had only a limited effect on the veteran’s death is correct. The Tribunal therefore, on balance, finds pursuant to section 8(1)(f) that the veteran’s accepted disability of CAL is not a disease from which the veteran died.
53. The issue before the Tribunal then is whether pursuant to section 8(1)(b) of the Act the death of the veteran arose out of or was attributable to his eligible war service.
54. The respondent referred the Tribunal to Benjamin v Repatriation Commission [2001] FCA 1879, where the Full Federal Court said (at paragraph 55):
“The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question would be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease calls for determination according to the standard of proof laid down in section 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect to that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within section 120(1). The standard of proof laid down in section 120(1) has no application to the former question.”
55. Following what was said in Benjamin the first question before the Tribunal is what is the correct diagnosis of the veteran’s medical condition. This question must be addressed within the terms of the relevant SoP at the time of the applicant’s claim, namely Instrument No 73 of 1997.
56. For the same reasons as given above and on all of the material before it the Tribunal is reasonably satisfied that Dr Grant is correct in expressing the opinion that the most that could be made of the LMO’s description is that the veteran suffered from chronic simple bronchitis. The Tribunal notes that Dr Wakefield, in answer to questions from the Tribunal, accepted that this diagnosis could be correct. The Tribunal is satisfied that the veteran was suffering from chronic simple bronchitis with a clinical onset in 1996 and so finds.
57. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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.”
58. Following the steps set out in Delediothe Tribunal, after consideration of all of the material before it, is of the view that this material points to an hypothesis as contended by the applicant and that there is in force a relevant SoP, namely Instrument No 73 of 1997.
59. The Tribunal is also of the view that the raised hypothesis is a reasonable hypothesis as it fits within the template of the SoP in that the veteran suffered from chronic simple bronchitis and had a service induced smoking habit of ten pack years of cigarettes before the clinical onset of this disorder in 1996. The Tribunal notes that the SoP is, amongst other things, about death from chronic bronchitis.
60. Having determined that there is a reasonable hypothesis pointed to by the facts of this case even though not proved, the Tribunal must determine, pursuant to section 120(1) of the Act that the veteran’s death was war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In so doing the Tribunal is mindful of what the Full Court said in Deledio (step 4 quoted above) and what the High Court said in Byrnes v Repatriation Commission (1993) 30 ALD 1 with respect to the steps to be taken in applying section 120(1) of the Act as follows (at 6):
“The position may be summarized as follows: (1) First, sub-s (3) of s 120 is applied: to all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service. The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
61. In its consideration of this matter, Mr Muir referred the Tribunal to Doolette v Repatriation Commission (1990) 21 ALD 489 and Re Blythe and Repatriation Commission (1982) 4 ALD 147.
62. Doolette relates mainly to the application of whether a reasonable hypothesis exists and appears to import the concept of different standards of proof in the application of section 120 of the Act. The correct approach, as stated above (Benjamin) is that the existence of a disease and the factual circumstances of service are to be established to the Tribunal’s reasonable satisfaction and tests in section in 120(1) and (3) of the Act only apply to the final determination as to whether there is a reasonable hypothesis and whether it has been disproved. The Tribunal is of the view that the decision in Doolette is of little assistance in this matter. In Re Blythe, the applicant suffered a carcinoma of the colon and the issue before the Tribunal was whether the cancer arose out of his war service. The medical evidence showed that the applicant suffered an irritable colon as a result of his disability during war service. There was no evidence of a direct causal relationship between an irritable colon and a subsequent cancer of the colon. However, expert medical opinion was such that it was not possible to rule out the possibility that an irritable colon was a cause of cancer.
63. It was held that while on the balance of probabilities it was not possible to decide in favour of the veteran, the Commission was required to show beyond reasonable doubt that there was no possibility that irritable colon can be a cause of cancer. Further it was held that if the applicant’s death was hastened because of the accelerated progress of his cancer which acceleration was itself caused by war related ill-health, the proper conclusion would be that the veterans’ death was attributable to his war service within the meaning of section 101(1)(b) – (of the Act as it then was).
64. Consideration of whether there is a reasonable hypothesis and whether a veteran’s death was war-caused as provided for by section 120 of the Act has been dealt with at length since 1990, particularly in the light of the establishment of the Repatriation Medical Authority and its associated scheme of Statements of Principles. Claims lodged on or after the first of June 1994 are to be determined within the SoP framework. The Tribunal has taken the approach in this matter as set out above in Benjamin, Deledio and Byrnes. In so doing, the Tribunal is mindful that what the Tribunal said in Re Blythe is not inconsistent with this approach.
65. As indicated above, in this matter the Tribunal has found that there is a reasonable hypothesis (as contended by the applicant), pointed to by the facts.
66. For the reasons given above the Tribunal has, on balance preferred the opinions of Dr Grant rather than those of Dr Wakefield. However, such a preference does not discount the opinions of Dr Wakefiled to the extent that his opinions carry little or no weight in considering the application of section 120(1). Dr Wakefield has clearly expressed the view that the veteran’s CAL contributed significantly to the veteran’s death. Dr Grant, in his written report, stated that he was of the opinion that the veteran’s demise was not in any way due to a smoking related chronic lung condition and questioned whether a diagnosis of CAL was correct. In his oral evidence Dr Grant stated that the possibility of a heavy smoker, such as the veteran, suffering from CAL was statistically quite high but in this case there had not been any thorough testing of the veteran with respect to his lung condition and even if it was assumed that the veteran suffered form CAL, he was of the opinion, given the pattern of the veteran’s symptoms, that any cardio respiratory effect would be minimal.
67. With respect to the question of “contributing cause” the Tribunal is mindful that in Re Hawkins v Repatriation Commission(1993) 30 ALD 59, his Honour Justice Davies stated:
“a disease will be attributable to service if the service contributed in a material way to its development… The issues of causation must be approached in a factual way in the light of common sense and human experience…”
And in Repatriation Commission v Bendy (1989) 18 ALD 144, his Honour, in addressing the question “materiality” and “contributing cause” said:
“In each case, the reference to materiality served to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is deminimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored, the term ‘material’ is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely ‘of substantial import or much consequence’ but rather in its legal sense of ‘pertinent’ or ‘likely to influence’.”
68. In this case the Tribunal is of the view that the medical opinions before it are such that it cannot be said that there was no possibility that the veteran’s respiratory tract disorder contributed causally and in a material way to the veteran’s death, such that the causal link cannot be said to be diminimus or of no influence in the course of events culminating in the veteran’s death. In arriving at this conclusion the Tribunal has taken into account that on all of the material before it, it cannot be found that the veteran suffered from any more than moderate dementia and that the non-accepted condition of severe Paget’s disease would have been a contributing factor to the veteran’s death.
69. The Tribunal therefore is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death was war-caused.
70. The Tribunal sets aside the decision under review and in substitution therefore determines that the death of Raymond Hammond was war-caused and that his widow Gloria Hammond is entitled to a war widow’s pension on and from 18 February 2000.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 13 February 2003
Date of Decision 4 April 2003For the Applicant Mr E Muir, Solicitor
For the Respondent Mr B Williams, Departmental Advocate
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