Harmer and Repatriation Commission

[2006] AATA 663

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 663

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1559

VETERANS APPEALS  DIVISION		)
Re		KATHLEEN HARMER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date28 July 2006

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Harmer’s death was war caused.  The date of effect of this decision is 11 September 2002.

................................................

Ms N Bell
  Senior Member  

VETERANS’ ENTITLEMENT – Widow Pension – Eligibility Turned on Cause of Death – Carcinoma of the Prostate – Veteran Undertook Operational Service – Standard of Proof - Reasonable Hypothesis – Cause of Death Attributable to Fat Intake – Decision Under Review Set Aside.

Veterans’ Entitlement Act 1986 (Cth)

Statement of Principles No.28 of 2005 Concerning Malignant Neoplasm of the Prostate

Deledio v Repatriation Commission [1997] 1047 FCA

Repatriation Commission v Deledio (1998) 27 AAR 144

Kattenberg v Repatiration Commission (2002) 34 AAR 562

REASONS FOR DECISION

28 July 2006 Ms N Bell, Senior Member

1.      Mrs Harmer sought a widow’s pension and, to be eligible for that pension, her late husband’s death must be war caused.  Mr Harmer died on 6 July 1990 from carcinoma of the prostate which had its clinical onset in 1987.  The Repatriation Commission contends that his death was not war caused.

2.      Mr Harmer served in a number of South West Pacific theatres of war in World War II.  They were married for 3 years before he went to war in 1942.  When he returned they lived in Temora (about 1 hour outside Wagga) and then moved to Wagga in 1952.  Mrs Harmer remains in Wagga.

issues

3.      The central issue in this application is whether Mr Harmer’s death was war caused.  There is no dispute that his service was operational service and therefore the issue of war causation must be considered according to the standard of reasonable hypothesis.   The steps to be taken by a decision maker in determining whether, in these circumstances, a death (or injury or disease) is war caused were set out by Heery J in Deledio v Repatriation Commission [1997] 1047 FCA and confirmed by the Full Federal Court in Repatriation Commission v Deledio, (1998) 27 AAR 144.

4.       The hypothesis identified by Mrs Harmer is succinctly stated in the final submission prepared by her Counsel, Mr Karp:

“…the veteran, a small, wiry man who lived in straightened circumstances, had a poor appetite and a limited diet prior to enlistment in the Army in 1942.  During his war service, and at least partly due to the stressful nature of his active service in New Guinea, he developed a liking for the more fatty food which he ate during that service.  He carried this liking into civilian life after demobilisation, and was able to indulge himself in fatty food, to the extent required by the relevant SoP, because of his and his family’s much improved circumstances after the war, and especially after 1952 when they moved to Wagga Wagga.”

5.      It is not in dispute that the Statement of Principles (SoP) relevant to this hypothesis is SoP No. 28 of 2005 concerning Malignant Neoplasm of the Prostate. 

6.      Mr Crowe, for the Commission, made it clear that the first two steps identified in Deledio involve no dispute (a hypothesis of war causation pointed to by the material before the Tribunal and a relevant SoP in force).  It remains to consider the third and fourth steps: whether the hypothesis is consistent with the template contained in the SoP; and, if so, whether I am satisfied beyond reasonable doubt that there is no sufficient ground on which to determine that Mr Harmer’s death was war caused.

7.      As to the question of whether the hypothesis conforms with the SoP, Mr Karp identified factor 5(c) of the SoP as relevant to the hypothesis:

5(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty five years before the clinical onset of malignant neoplasm of the prostate…”

8.      Mr Crowe indicated at the hearing that conformity of the hypothesis with the template in paragraph 5(c) of the SoP is contested only in respect of the hypothesised connection between Mr Harmer’s service and an increase in his consumption of fat.

9.      A more extensive dispute arises, however, in the context of the fourth step concerning the proof, beyond reasonable doubt, of the non existence of a fact crucial to war causation (s. 120(1)).  It is in the context of this step that most of the evidence concerning an increase in Mr Harmer’s consumption of fat over the relevant period will be considered.  This includes the evidence of Mrs Harmer, analyses of fat consumption done on the basis of dietary information provided by Mrs Harmer and the evidence of expert nutritionists, Drs Volker and English.

does the hypothesis conform to the template in the sop?

10.     The combined effect of the material from Mrs Harmer, Dr Volker and the analysis of the pre and post war dietary information provided by Mrs Harmer is to point to that part of the hypothesis that has Mr Harmer increasing his consumption of fat from pre war to post war by at least 40% and to a level of at least 50 gm/day and maintaining that level of fat consumption for 5 years within the 25 years leading up to the onset of carcinoma of the prostate in 1987.

11.     Mr Crowe took issue with that part of the hypothesis that connects the above increase in fat consumption with Mr Harmer’s service.  In this respect, I note Mr Crowe’s concession that Mr Harmer’s service was stressful.  I also note the evidence of Mrs Harmer that Mr Harmer returned from service a changed man and that he was irritable, had begun to drink and smoke heavily and expressed a negative attitude to his service experiences and their commemoration.  She said, in answer to questions asked by Dr Volker, that on his return from service he developed a liking for sugar, condensed milk, cake biscuits, ice cream, bacon and eggs and food fried in dripping.  I also note the evidence of Dr Volker that stress can cause people to eat “comfort foods”, typically the foods they grew up with and, particularly in relation to veterans, condensed milk.

12.     Mr Crowe submitted that Mrs Harmer’s evidence as to the reasons for Mr Harmer’s change in diet was inconsistent and that in cross examination she gave other reasons, not connected with service, for her husband’s change in diet such as increased income in 1952 and consequent increased availability of food.  I do not consider that Mrs Harmer’s evidence of the existence of additional reasons for her husband’s change in her husband’s diet necessarily contradicts her evidence that his diet preferences changed as a result of service.  I accept Mr Karp’s submission that a contributory relationship between service and the relevant factor will suffice (Kattenberg v Repatriation Commission (2002) 34 AAR 562).

13.     On this basis I consider there is material before me which points to a relationship between Mr Harmer’s service and his increased consumption of fat.  There is also material that points to that increase in consumption being facilitated by an increase in income for Mr Harmer in 1952.  However, as Mr Karp submitted, the causal nexus can be established if war service contributes to the relevant SoP factor (Kattenberg). I consider that the material before me points to such a contribution.  The third step in the Deledio sequence is therefore met.

can i be satisfied beyond reasonable doubt that mr harmer’s death is not war caused?

14.     To answer “yes” to this question, I must be satisfied that an essential feature of Mrs Harmer’s hypothesis is disproved beyond reasonable doubt.  The Commission contends there is evidence that disproves, to that standard, an increase in Mr Harmer’s animal fat consumption to the degree required by the SoP, ie, an increase of at least 40% to at least 50 gm/day and maintained for at least 5 years within the 25 years prior to 1987.

15.     The Commission contends the hypothesised increase in Mr Harmer’s consumption of animal fats cannot have occurred.  It relies, in this view, on the evidence of Dr Ruth English to establish other facts concerning Mr Harmer’s basal metabolic rate (BMR), activity and weight stability which are, it argues, inconsistent with the level of fat consumption involved in the hypothesis.

16.     The detail of the hypothesis is that prior to service Mr Harmer consumed approximately 82 gms of animal fat per day and that post service his consumption of animal fat could be estimated at 226.5 to 236.5 gms per day, allowing for some over reporting.  These figures are based on the details given by Mrs Harmer according to her recollection of Mr Harmer’s pre and post service diets.  Calculations were made by the dieticians on the basis of those details.

17.     At the hearing some time was spent on the question of whether a nutritional survey conducted in 1938 should be used to approximate Mr Harmer’s pre service fat intake.  However, I note that Mr Crowe, for the Commission, in his written submission, said:

“The questionnaires do not portray an accurate picture of Mr Harmer’s diet in the post war years.

The Commission does not intend to debate the accuracy of the consumption rate for the pre-service periods, but rather to explore the alleged change itself.”

18.     On the basis of this concession, I will concentrate on the evidence concerning the amount of Mr Harmer’s post war animal fat consumption and the contended sustained increase in that consumption.

19.     In summary, Dr English’s evidence was that Mr Harmer’s post war fat consumption cannot be “validated” and was “gross over reporting” because, in her view, the reported food intake would have produced a weight increase of 0.8 kilograms per week and such an increase did not occur.  Dr English reached this view on the basis of calculations using a certain activity level and a certain BMR.

20.     Dr Volker’s view was that, while there was some over reporting by Mrs Harmer, Mr Harmer’s possible activity level and BMR (as affected by a range of matters including bouts of malaria, smoking and Mr Harmer’s lean body mass) make the contended increase in fat consumption possible.

21.     I note that each of the experts uses a different formula to estimate BMR.  Dr Volker uses a computer program called “Foodworks” which is an amalgam of 3 equations, including the “Schofield” formula while Dr English uses the “Schofield” formula alone.  Each expert was critical of the other’s method.  Dr English said the “Foodworks” program is contrary to the “recommendations of expert national and international bodies”.  Dr Volker said the “Schofield” formula is a formula used for populations and uses age ranges that are too wide to accurately assess individuals. 

22.     According to medical and service records, Mr Harmer’s weight on enlistment was 9 stone.  His weight, three years later, just prior to discharge was 9 st 6 lbs.  His post war weight fluctuated but remained above his weight on enlistment.  The next record of his weight is in September 1963 when he was 10 st, then 11st 11lb in May 1965 and then 3 months later he was 12st 8lbs.  Eleven years later he lost 2 st in 18 months and was 10 st 4 lbs in April 1978 and finally 9 st 10 lbs in January 1979.  I also note Mrs Harmer’s evidence that after the war Mr Harmer’s trouser size increased and he put on weight.

23.     As to Mr Harmer’s activity level, Mrs Harmer’s evidence was that Mr Harmer returned to work as a painter after the war.  Her evidence was also that he became a foreman “for the last 18 years of his working life”.  Mr Crowe has this change to the position of foreman taking place in 1962.  Mr Karp submits that, given Mr Harmer turned 65 in 1982, then he would have begun as a foreman in 1964.  It was also submitted by Mr Crowe that, as a foreman, Mr Harmer would have had a lower activity level.  Mr Karp noted there was no evidence to this effect, except for Mrs Harmer’s evidence that Mr Harmer put on weight over this period.  I agree that it is impossible to accurately assess his activity level at this time. I also note that both experts agreed that the measurement of activity levels is inexact.Dr English conceded that it requires the use of predictive equations “doing the best we can” with data from Mrs Harmer and from available scientific data.

24.     In relation to BMR, Dr Volker’s evidence was that, between individuals, BMR may vary as much as 60 to 80 %.  She based this view on her knowledge from clinical research and an understanding of the effect of a range of variables on metabolic rate.  By contrast, Dr English’s evidence was that an individual’s metabolic rate could vary by up to 17% from the mean.  She reached this view on the basis of her knowledge of the relevant literature.

25.     Dr Volker said:

“As far as metabolism is concerned, there are a number of factors that effect markedly one’s metabolism or metabolic rate and that is age, body shape, size, lean body mass, gender, climate, pregnancy, illness and the specific thermodynamics of food, and then you could put in cultural factors, so there are nine – nine effects there – and you can put in particular drugs – so 10 factors that could affect the metabolism of an individual.” (transcript, p.38)

26.     Dr English, when asked about the factors that might produce a change in BMR, said that age, weight and sex are the three factors that feature in the predictive equations.

27.     An additional factor acting on metabolic rate is cigarette smoking.  Mrs Harmer’s evidence was that whereas prior to service Mr Harmer smoked only occasionally, by the late 1950’s he was smoking 2 packets per day.  Both experts agreed that smoking raises BMR but neither put a figure on it.  However, I note that, in their analysis, neither expert factored in smoking.

28.     Finally, it is common ground that Mr Harmer suffered from recurrent bouts of malaria.  Mrs Harmer’s evidence was that when he had a bout of malaria he would shiver so as to make the bed rattle and would perspire profusely.  She said this happened many times “for years and years” and petered off as he got older but he would still have small attacks.  She said attacks would last from a few days to more than five days and sometimes he would need hospitalisation.  In all cases he would be bedridden.   Dr Volker considered that an episode of malaria will increase BMR by 10%.  I note that an article entitled “Insights into energy requirements in disease” (Elia, Marinos in Public Health Nutrition, Vol. 8 Number 7(A), October 2005) indicates that a persistent fever will increase BMR by between 20% and 30% (Exhibit R4).  However, I have only Mrs Harmer’s recollection of the frequency and duration of the bouts of malaria.  Depending on that frequency and duration, they may have had a significant impact on Mr Harmer’s BMR.  It may also be the case that they had, as Dr English said, the effect of decreasing activity level while Mr Harmer was bedridden but I note she allowed that Mr Harmer’s shaking would impact on his activity level.

29.     Ultimately I cannot be satisfied, beyond reasonable doubt, what Mr Harmer’s BMR was and therefore what its effect was on the possibility of the fat consumption hypothesised. The range of matters unknown, including those concerning Mr Harmer’s BMR (as affected by smoking, malaria and lean body mass) and his activity level (as affected by work activity and the effects of malaria) prevent me from being satisfied, beyond reasonable doubt, on the basis of Dr English’s opinion, that Mr Harmer’s fat consumption was not at the level required by the SoP.  It follows that I am not satisfied, beyond reasonable doubt, that Mr Harmer’s death was not war caused.

decision

30.     The decision under review is set aside and instead the Tribunal decides that Mr Harmer’s death was war caused.  The date of effect of this decision is 11 September 2002.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ..........[Linda Blue]....................................
  Associate

Dates of Hearing  13 and 14 March 2006
Date of Decision  28 July 2006
Counsel for the Applicant         Mr Karp
Solicitor for the Applicant          Legal Aid Veterans' Advocacy Service
Solicitor for the Respondent     Department of Veterans' Affairs