Henry and Repatriation Commission
[2004] AATA 691
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 691
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/950
VETERANS' APPEALS DIVISION )
Re UNA HENRY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – entitlement – whether causal link between veteran’s death and his war-caused emphysema – death from supra-nuclear palsy – no causal connection between death and war service - no grounds for determining that death was war-caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 5(b), 6(a), 8, 11, 13, 14, 119, 120, 120A
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Bey (1997) 149 ALR 721
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205REASONS FOR DECISION
30 June 2004 Mr IR Way, Member 1. This is an application by Una Henry for review of a decision of the Repatriation Commission made on 27 March 2003 and affirmed by the Veterans’ Review Board (“VRB”) on 14 August 2003, that determined that the death of the applicant’s late husband, Norman Henry (“the veteran”), was not war-caused.
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 R1Report of Dr Richard Boyle dated 9 December 2003 with referral letter of Robert Bax and Associates dated 3 December 2003
Exhibit R2Report of Dr Jane Smeeton dated 19 March 2003 with attached Impairment calculations dated 18 November 1999
Exhibit R3Report of Dr Peter Rossberg dated 19 May 1999 with attached METS Assessment dated 25 May 1999
Exhibit R4Report of Dr Barry Hickey dated 31 May 1999 with attached Vitalograph dated 31 May 1999
Exhibit R5Report of Dr Glenda Powell dated 27 September 2001
Exhibit R6Repatriation Commission decision dated 22 November 1999
Exhibit R7Report of Dr Peter Grant dated 19 January 2004
3. The applicant was self-represented and gave oral evidence. She was assisted by her daughter, Ms Henry. Mr B Williams, Departmental Advocate, represented the respondent.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (the Act), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14.
5. The applicant is the widow of a veteran who rendered operational service as defined in sections 5(b) and 6(a) of the Act, namely, continuous full-time service outside Australia during World War II.
6. The veteran rendered operational service in the Australian Army from 12 January 1942 to 24 June 1946, including service in the south-west Pacific area.
7. The veteran’s accepted service-related disabilities were:
§ Bilateral sensori-neural hearing loss with tinnitus
§ Other speech disturbance
§ Emphysema
8. The veteran’s non-service-related disabilities were:
§ Motor neuron disease
§ Progressive supra-nuclear palsy
§ Death
9. The veteran was born on 3 October 1922 and died on 11 January 2003 aged 80 years. The cause of death shown on the veteran’s death certificate is:
“1. Supranuclear palsy (7 years)
2. Aspiration pneumonia (6 days)”
10. The applicant has raised the hypothesis that there is a causal link between the veteran’s death and his war-caused emphysema. The applicant has also raised the contention that because there is no known cause of supra-nuclear palsy it cannot be proved that the veteran’s supra-nuclear palsy was not war-caused and she should be given the benefit of the doubt and the Tribunal should accept that the veteran’s death was war-caused.
Legislative Scheme
11. The question whether the death of each veteran who has rendered operational 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:
“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;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly, the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.”
12. Section 120 describes the relevant standard of proof:
“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 defence-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 provisions of the Act in respect of 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.
Note: See subsection (4) about the application of this subsection.
(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 that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.
16. Section 120(3) provides that the decision-maker 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 decision-maker, 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 Repatriation Medical Authority (“RMA”) has neither determined nor declared that it does not propose to make a Statement of Principles (“SoP”) in respect of supra-nuclear palsy.
18. The RMA has determined an SoP in respect of emphysema, namely Instrument No 73 of 1997, Chronic Bronchitis and Emphysema.
Applicant’s Evidence
19. The applicant was born on 26 August 1932 and first met the veteran in 1957. They were married in 1960. Although she did not have any direct knowledge of the veteran during the war years she said she thought her husband first started smoking in 1943 and that he continued to smoke until 1993. During the time she knew him she put his smoking habit at 20 to 30 cigarettes per day.
20. The applicant told the Tribunal that the veteran suffered from bronchitis during his Army service. She said she also thought he suffered from pneumonia during his service. The Tribunal notes that the veteran’s record of service shows that he was admitted to hospital in April 1943 for bronchitis but there is no record of his suffering from pneumonia.
21. The applicant told the Tribunal that a Dr Lim had opined that her husband suffered from motor neuron disease in 1999 and that Dr Murphy had diagnosed dysphasia in 1997. She also told the Tribunal that the veteran had witnessed his best mate’s head being blown off and she thought he suffered from post traumatic stress disorder as a result of this. She also drew the Tribunal’s attention to the fact that her husband’s aspiration pneumonia probably resulted from him not being able to swallow food properly and food going into his lungs.
22. Mrs Henry told the Tribunal that she needed the Gold Card because of her medical conditions, being on her own, being on the pension and having limited financial resources. She described her current financial situation as desperate.
23. With respect to her husband’s medical condition, Mrs Henry said that in her view the doctors really did not know the cause of her husband’s death and that two of the specialists who expressed opinions about his condition had never seen him. She said:
“They started with motor neurone disease, Parkinson’s disease, alsimer’s [sic] disease, stroke, PSP. They don’t know as far as [I’m] concerned. They don’t know it wasn’t war related. I think I should have the benefit of the doubt. Where is the proof. None.”
Medical Evidence
24. Dr Glenda Powell, Consultant Geriatrician, saw the veteran on a number of occasions. In a report dated 10 August 2000 (T4/52), she noted:
“Mr Henry returned for review today with his daughter who tells me that they have seen Peter Silburn who confirmed my suspicions of Progressive Supra Nuclear Palsy as his most likely diagnosis. Since seeing me last he has had a fall with a resulting fracture of the left ulna.”
25. On 27 September 2001, Dr Powell stated (Exhibit R5):
“This gentleman was seen for review on the 26.9.01 and accompanied by his daughter. He is really thrilled with his voice communicator and is making some use of it. His daughter was concerned about his inability to cough, his pooling becoming greater and the noise that he makes on attempting to clear keeping his wife awake at night. Apparently he sleeps sitting up and his wife is somewhat exhausted. While she describes some increasing difficulty on swallowing Mr Henry denies this. Apparently he was given some thickening powder to use with thin fluids but to date has not availed himself of this.
…
I felt that his cognition was a little more impaired than when I had seen him some months ago and his daughter stated that the speech therapist had felt that his comprehension had also decreased. This is difficult to test since he is illiterate and can neither write nor communicate his answers via speech.
…
I have discussed the possibility of respite care with his daughter and she states that both Mr and Mrs Henry are prepared to accept this and she believes that he has been referred to the Aged Care Assessment Team.
His daughter was anxious to know the progress of this disease and sadly I could only say it was all down hill and I will speak with Peter Silburn who I am sure would be happy to discuss this further with her by phone. …”
26. On 20 November 2002, Dr Powell said she last saw Mr Henry in September 2001 and opined (T4/54):
“In my opinion he was suffering from progressive supra nuclear palsy and there was no evidence of motor neurone disease in my examination of him up to that stage. The cause of this condition is unknown.”
27. The Tribunal notes that Dr Powell saw the veteran in May 2000 at which time she was of the view that the veteran’s symptoms and progress were consistent with a diagnosis of supra-nuclear palsy and she referred the veteran to Dr P Silburn, Neurologist, for a second opinion (referred to above).
28. Mr R Boyle, Consultant Neurologist, on review of the veteran’s medical and other documents, reported on 9 December 2003 (Exhibit R1):
“It is not possible for me to say in retrospect whether the patient was suffering from motor neurone disease. However, on reviewing the clinical information supplied and, in particular, that supplied by Dr Glenda Powell, it would appear that the diagnosis of progressive supranuclear palsy was correct. Both supranuclear palsy and motor neurone disease can have, as part of the clinical picture, severe difficulties with speech and swallowing. However, the feature which would make the diagnosis of progressive supranuclear palsy secure in the case of Mr Henry was that he lost his voluntary eye movements but retained his reflex eye movements. This feature is not part of the clinical spectrum of motor neurone disease but is a classical feature of progressive supranuclear palsy.
The cause of progressive supranuclear palsy is unknown. There are no known events in a patient’s history which would make him or her more likely to develop progressive supranuclear palsy and, thus, one could not say that the development of this condition was service related. There is no known relation between cigarette smoking and the development of progressive supranuclear palsy.”
29. Dr V Hickey, Thoracic Physician, saw the veteran and, on 31 May 1999, reported on his condition as follows (Exhibit R4):
“I suspect that he does have a very mild degree of emphysema based particularly on the x-ray. It does not appear that he has any significant degree of chronic airflow limitation as judged by his best spirometry. I do not believe he has any chronic bronchitis from cigarettes.
…
For pension purposes therefore, he does not have chronic bronchitis and has minimal emphysema without significant airflow limitation.”
30. On 29 November 2002, Dr S Hergenham, Compensation Medical Adviser, provided a medical opinion as follows (T4/55):
“In 1999, Mr Henry submitted a pension claim for ‘stroke’. His principal symptom was speech difficulty, clinically described as dysarthrophonia. Based on a history of sudden onset of the symptoms, a vascular event was assumed to be the underlying pathology (letter from Dr Glenda Powell folio 65). The condition ‘Other Speech Disturbance’ was accepted.
In December 2000 Mr Henry submitted a pension claim for motor neurone disease. This condition was rejected although there is no confirmatory diagnosis on file.
The condition of motor neurone disease has again been claimed. Since Mr Henry’s initial presentation, it has become apparent that he has a progressive neurological disorder with deterioration of his speech, swallowing difficulties, falls and inability to carry out some of his regular activities. Loss of voluntary eye movements with preservation of reflex eye movements is described. Dr Glenda Powell, specialist geriatrician, supported by neurologist, Dr Peter Silburn has made the diagnosis of progressive supranuclear palsy.
The aetiology of this rare condition is unknown. It is my opinion that, at the current time, there is no reasonable hypothesis linking the development of this condition to Mr Henry’s service.”
31. On 19 March 2003, Dr James Smeeton, Compensation Medical Adviser, provided a medical opinion as follows (Exhibit R2):
“The cause of death on 11 January 2002 is recorded on the death certificate as
1 Supranuclear palsy
2 Aspiration pneumonia
The veteran had an accepted disability of emphysema, the diagnosis of which was first documented in a report dated 31 May 1999 by respiratory physician Dr Barry Hickey (ff44-45). Dr Hickey indicated that the Mr Henry had ceased smoking in 1980 and that ‘he suspected that he had a very mild degree of emphysema based particularly on the x-ray’. Dr Hickey also reported that Mr Henry did no appear to have any chronic bronchitis from cigarettes or any significant degree of chronic airflow limitation as judged by the spirometry.
In my opinion, the available evidence does not support emphysema as a contributing factor in Mr Henry’s death. The condition was regarded as ‘minimal’ in 1999, and the fact that the veteran ceased smoking nineteen years prior to diagnosis suggests the disease is unlikely to have progressed significantly. The cause of death is entirely explainable by the Progressive supranuclear palsy causing difficulty with swallowing and ultimately an aspiration pneumonia, in my opinion.”
32. Dr PA Grant, Senior Medical Officer Compensation, reviewed the medical documents on file which are related to this matter and concluded that the cause of the veteran’s death was supra-nuclear palsy and that there is no plausible causal mechanism connecting the veteran’s supra-nuclear palsy with his service; and that the veteran’s aspiration pneumonia is probably a sequelae of his progressive supra-nuclear palsy. In his evidence by telephone, Dr Grant said that there was no indication of motor neurone disease in the records he consulted and that in his opinion the veteran suffered only minimal functional loss because of his emphysema and that the veteran did not suffer from significant chronic airflow limitation because of his smoking habit.
33. The Tribunal notes that the respondent, on 22 November 1999, accepted the veteran’s emphysema as war-caused on the basis of his cigarette smoking (Exhibit R6).
Consideration
34. There is no dispute that Mr Henry was a veteran who rendered operational service, that the applicant is his widow and that Mr Henry died on 11 January 2003 and the Tribunal so finds.
35. The crucial question before the Tribunal is what “kind of death” Mr Henry suffered. The Tribunal must determine this question on the balance of probabilities (see Repatriation Commission v Hancock [2003] FCA 711).
36. After careful consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied, on the balance of probabilities, that Mr Henry’s death resulted from supra-nuclear palsy and the associated aspiration pneumonia he suffered at death was a sequelae of his supra-nuclear palsy. The Tribunal is of the view that any contribution from the veteran’s emphysema to his death is de minimus and that the veteran did not suffer from motor neurone disease.
37. As has already been indicated, there is no SoP for supra-nuclear palsy (or aspiration pneumonia) and, as such, the question of causation must be determined under subsections 120(1) and (3) of the Act, in accordance with the approach set out in Repatriation Commission v Bey (1997) 149 ALR 721 and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
38. In Bey, at 730, the Full Court commented on the decision in Cooke v Repatriation Commission (1997) 45 ALD 205 as follows:
“In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a ‘reasonable hypothesis’ on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not ‘hypothesis’ but ‘reasonable hypothesis’. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):
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.
It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-570; ALR 214):
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word ‘reasonable’, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister’s second reading speech and with authority.”
39. And in Byrnes at 571:
“The position may be summarized as follows:
(1)First, sub-s (3) of s 120 is applied: do 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.”
40. After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the raised facts do not give rise to any hypothesis connecting the veteran’s death with his war service and that there is no reasonable hypothesis connecting the veteran’s death with his war service. It follows that the applicant’s claim must fail and the Tribunal finds that the veteran’s death is not war-caused.
41. In making this finding, the Tribunal has noted with sympathy the considerable difficulties Mrs Henry has faced for many years caring for her husband prior to his death and the straitened circumstances in which she now finds herself. The Tribunal accepts that these are matters of great concern to Mrs Henry. However, for Mrs Henry’s claim to succeed, the law requires that there must be a causal connection, beyond reasonable doubt, between Mr Henry’s death and his relevant service and unfortunately for Mrs Henry, such is not the case in this matter.
42. The Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 28 May 2004
Date of Decision 30 June 2004The Applicant appeared in person
For the Respondent Mr B Williams, Departmental Advocate
0
6
0