Higgins and Repatriation Commission

[2003] AATA 1262

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1262

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/682

VETERANS'      APPEALS       DIVISION		)
Re		IVY HIGGINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date12 December 2003

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS – Widow’s application – death by pulmonary fibrosis – overseas service at Tarakan – deceased engaged in building demolition – exposure to asbestos alleged and disputed – inability to satisfy Statement of Principles – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth), s 120B(4)

Statement of Principle No.15 of 1998

Statement of Principle No.138 of 1996

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

12 December 2003   Mr J Handley, Senior Member

1.      This is an application by Ivy Higgins the widow of the late Ronald Higgins who died on 17 July 2000.  The certified cause of death was pulmonary fibrosis.

2.      Mr Higgins was born on 22 January 1924 and was 76 years of age at his death.

3.      In his lifetime he had the condition of vertiligo accepted by the respondent and received pension at 20% of the General rate.  The injuries/diseases of pulmonary fibrosis, hypertension, ischaemic heart disease and diverticular disease were rejected by the respondent.

4.      This review concerns an appeal against a decision made by the Veterans’ Review Board (“VRB”) on 8 January 2002 which affirmed a decision made by the respondent on 1 September 2000 to reject the claim made by Mrs Higgins that the death of her husband was war-caused.  The application upon the respondent was only to connect service with death by pulmonary fibrosis.

5.      The late Mr Higgins was a member of the Australian Army who enlisted on 3 February 1942.  He was engaged in overseas service at Moratai between 16 April 1945 and 17 May 1945 and at Tarakan between 18 May 1945 and 23 December 1945.  His service in Moratai comprised 33 days and his service in Tarakan comprised 217 days.  Mr Higgins was a member of the 17 Australian Advanced Ordnance Depot (“17 AAOD”).

6.      The hypothesis advanced connecting service with death by pulmonary fibrosis was exposure of the deceased to asbestos in the course of his service at Tarakan.  It was alleged that the late Mr Higgins was involved in the demolition of buildings and other structures in order to obtain, salvage and process materials to construct an airstrip.  In the course of those duties it was said that Mr Higgins was exposed to asbestos which was ultimately responsible for the finding at death of pulmonary fibrosis.

7.      The hearing of the application was convened in Wangaratta on 25 November 2003.  Mrs Higgins appeared unrepresented.  Mr Douglass appeared on behalf of the respondent.  Evidence was not heard but Mrs Higgins relied on documents lodged which will be referred to in these reasons.

8. The documents lodged, comprising materials provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and clinical notes of doctors who treated the deceased for many years, highlight some uncertainty as to the diagnosis of the illness suffered by the deceased.

9.      In a report of 23 September 2003 by Dr David Hart, a consultant respiratory physician (the report being obtained at the request of the respondent), it was reported “the term “pulmonary fibrosis” used on the Death Certificate is a descriptive one and does not refer to a specific diagnosis.  Under this label are included diverse diseases commonest amongst them being idiopathic pulmonary fibrosis”.

10.     A number of doctors described (and diagnosed) the condition suffered by the deceased as “pulmonary fibrosis” namely Dr Morgan (page 11), Dr Hickey (page 41), Dr MacKay (page 50) and Dr Benjamin (page 8).  Dr Daunt (page 42), a radiologist, was given a history of the deceased suffering pulmonary fibrosis but upon examination of an x-ray on 12 December 1996 he found “extensive interstitial fibrosis”.  A similar description of injury was given by offices at the St Aubyn’s Hospital (page 58).  In a further report by Dr Hickey of 17 September 2002 (addressed to a senior medical officer of the Department of Veterans’ Affairs) the cause of death was described by him as “idiopathic fibrosing lung disease which would come under the definition of idothpathic fibrosing alveolitis in the terminology used in England or sometimes called a usual interstitial pneumonitis in America, or even an idiopathic pulmonary fibrosis.  All of these terms essentially mean the same thing”.  In a report of Dr Grant, the senior medical officer to the Department of Veterans’ Affairs, on 30 October 2001 (page 73), he thought that the “most likely” diagnosis of the late Mr Higgins was of “idiopathic pulmonary fibrosis (“synonym: idiopathic fibrosing alveolitis)”.  He thought the clinical onset was in 1982 and he acknowledged that a diagnosis was variously made by medical officers of “idiopathic pulmonary fibrosis”.  Dr Grant said the most likely Statement of Principle applicable was “idiopathic fibrosing alveolitis”.

11.     Irrespective of the diagnosis as to the disease suffered by the deceased in his lifetime and the cause of his death, it is beyond doubt that the late Mr Higgins suffered from a brutal and aggressive airways disease which caused him to be oxygen dependent.  He was a sick person for many years.  He was nursed by Mrs Higgins, the applicant in these proceedings and there is much to suggest that she was devoted to him and provided care of an exemplary nature.

12.     The critical issue in this review however is whether the late Mr Higgins was exposed to asbestos in service.  A number of doctors have referred to the possibility of his lung disease being a consequence of asbestos exposure.  The possibility of the deceased suffering from emphysema (having its origin in prior cigarette smoking) was considered by Dr MacKay and Dr Hickey (page 50) but dismissed.  It was thought by both doctors that the pulmonary changes evident upon x-rays were a consequence of pulmonary fibrosis which was thought to be “the only significant respiratory condition”.

13.     In his lifetime, Mr Higgins made two claims for acceptance of the condition of pulmonary fibrosis (page 11, 28 and 32).  On each occasion he associated the pulmonary fibrosis with cigarette smoking which he alleged arose from service.  On each occasion the claim was rejected.  On the first occasion that a claim was made (and subsequently rejected) the VRB assessed the relationship between service and pulmonary fibrosis only on the basis of prior cigarette smoking.  Mrs Higgins made her claim for widow’s pension asserting that death by pulmonary fibrosis was related to cigarette smoking (page 65) but it was only during the appeal at the VRB that the possible association between service and asbestos exposure was first raised.  Mrs Higgins then relied on a written submission prepared on her behalf by Mr Daniel Ford who apparently conducted some research into building materials used in construction at Tarakan and the likelihood of the deceased being exposed to asbestos dust.  It was suggested that asbestos was commonly used in building materials and in the course of demolition of those materials the deceased would have necessarily been exposed to asbestos.  The danger of asbestos exposure was discussed and the submission concluded “it is proposed that Mr Higgins was exposed to respirable asbestos fibres, disturbed by others as they moved about”.  It was also submitted “it is claimed that in addition to exposure during work, Mr Higgins was exposed to respirable asbestos fibres as he slept” (page I).

14.     The VRB was not prepared to find that the deceased died from asbestosis but did conclude that there was a “real possibility” that the appearances of the deceased’s lungs were suggestive of asbestos exposure.  The VRB ultimately inferred that there may have been asbestos contained within some of the building materials to which the deceased was exposed but dismissed the appeal on the basis that remaining parts of an applicable Statement of Principle had not been satisfied.

15.     The only applicable Statements of Principles were No.15 of 1998 (entitled “Idiopathic Fibrosing Alveolitis”) and No.138 of 1996 (entitled “Asbestosis”).  The only factor within Instrument No.15 of 1998 is 5(a), which must exist as a minimum before a reasonable hypothesis could be raised connecting idiopathic fibrosing alveolitis and death from it by service, being “inability to obtain appropriate clinical management for idiopathic fibrosing alveoltis”.  The other Statement of Principle, (No.138 of 1996) contains two applicable factors which are recorded as follows:

5.(a)being regularly exposed to respirable asbestos fibres for a period or periods of time totalling at least 200 days, in an enclosed area when such fibres were being:

(i)applied; or

(ii)removed; or

(iii)dislodged; or

(iv)cut; or

(v)drilled,

and where the first day of exposure occurred at least five years before the clinical onset of asbestosis; or

(b)inability to obtain appropriate clinical management for asbestosis.

16.     For the purposes of this latter Instrument, the words “an enclosed area” and “exposed to respirable asbestos fibres” are defined at paragraph 7 as follows:

“an enclosed area” means a substantially enclosed space, for example, the interior of a building, ship or aircraft, a covered workshop or a factory.

“exposed to respirable asbestos fibres” means being in an environment within which asbestos particles become airborne and are able to be breathed into the lungs.

17.     The condition “pulmonary fibrosis” is not the subject of a Statement of Principle.

18. Irrespective of whether a Statement of Principle applies or whether the condition of pulmonary fibrosis is to be assessed by the principles applicable when deciding whether a reasonable hypothesis has been achieved, (refer s120B(4) of the Veterans’ Entitlements Act 1986), there must be a finding on the balance of probabilities that the deceased was exposed to asbestos and the exposure occurred in service.

19.     In a report obtained from the files of the Greenslopes Private Hospital in Queensland dated 23 February 1987, an examining medical officer obtained a history from Mr Higgins that he was not ever exposed to asbestos.  Dr John MacDonald states in his report of 23 August 2002 that the late Mr Higgins reported that he had not been exposed to asbestos.  Mrs Higgins in evidence to the VRB denied that her husband had ever told her that he had been exposed to asbestos (VRB transcript, page 18).  She made a similar statement at the hearing in Wangaratta.

20.     The respondent engaged Mr Robert Piper, a military historian, to research whether Mr Higgins was exposed to asbestos during service.  In a report of 24 October 2003 he concluded – having conducted extensive research including an examination of records of the 17 AAOD – that no mention was made in any of the documents to the use of asbestos in building materials during service.  It was acknowledged that asbestos was used as an insulator of clothing and was also used in some weapons and in some plumbing but Mr Piper could find no reference to building materials containing asbestos.

21.     I am unable to find on the material lodged in these proceedings, the evidence at the VRB and the submissions at the hearing in Wangaratta, that the deceased was exposed to asbestos during service.

22.     Factor 5(a) of Instrument No.15 of 1998 and factor 5(b) of Instrument No.138 of 1996 cannot be satisfied.  The late Mr Higgins had access to a number of competent medical practitioners in his lifetime and it could not ever be established that he had any inability to obtain appropriate clinical management for his pulmonary disease, or asbestosis (if that condition was suffered).

23.     Instrument No.138 of 1996 is of course based upon a diagnosis of asbestosis (which I am unable to make) set against a finding of inhalation of asbestos fibres (which I am also unable to make) – refer paragraph 2 of Instrument No.138 of 1996.

24.     Even if the deceased had been exposed to asbestos – which by these reasons I find as a fact that he was not – I could not find on the analysis prescribed by Repatriation Commission v Deledio (1998) 83 FCR 82 that a reasonable hypothesis has been raised. Whilst a hypothesis has been advanced and there is a Statement of Principle applicable, the claim would fail at the third stage because the material is not consistent with, nor does it point to, satisfaction of the template of the Statement of Principle. This is because there is no material which points to the deceased being “regularly exposed to respirable asbestos fibres” for any period and certainly not for a total of 200 days in an “enclosed area”..  The service documents record that the deceased was located at Moratai for 33 days but it appears that he was then in transit and was not exposed to any demolition at all.  The demolition work – to which it was suggested that he was exposed to dust – was at Tarakan only.  There would need to be material which points to exposure to respirable asbestos fibres for 200 of the 217 days that Mr Higgins was at Tarakan.  There is no such material.  Additionally there would need to be material which points to “exposure to respirable asbestos fibres” in “an enclosed area”.  There is no such material.  Indeed there is much to suggest that he was not engaged in demolition in “an enclosed area”.

25.     In all of the circumstances I am unable to find that a reasonable hypothesis has been raised connecting service with exposure to asbestos and it contributing to death.

26.     In the event that an analysis was made of the hypothesis concerning death by pulmonary fibrosis (absent an applicable Statement of Principle), a similar conclusion as above would occur.

27.     In all of the circumstances the decision under review must be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.

Signed:         Elsa Genovese
  Personal Assistant

Date/s of Hearing  25 November 2003
Date of Decision  12 December 2003
Representative for the Applicant     Self-Represented
Counsel for the Respondent           Mr R Douglass