Howard and Repatriation Commission (Veterans' entitlements) - [2020] AATA 67

Howard and Repatriation Commission (Veterans' entitlements) [2020] AATA 67 (28 January 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/4808
Re:Dell Howard
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 January 2020
Place:Brisbane

I affirm the decision under review.
.........................[sgd]...............................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS AFFAIRS – claim for war widow’s pension – veteran deceased – death from chronic obstructive pulmonary disease and ischaemic heart disease – Deledio principles – hypothesis connecting the death of the veteran with his operational service – whether hypotheses raised reasonable – Statement of Principles do not uphold hypotheses that the veteran’s death is related to service – decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
STATEMENTS OF PRINCIPLE
Statement of Principles for Anxiety Disorder (No. 102 of 2014)
Statement of Principles for Chronic Obstructive Pulmonary Disease (No. 37 of 2014)
Statement of Principles for Ischaemic Heart Disease (No. 1 of 2016)
Statement of Principles for Post-Traumatic Stress Disorder (No. 82 of 2014)
CASES
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 177 FCR 280
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Warren [2008] FCAFC 64
Stevens v Repatriation Commission [2018] FCA 1866
Summers v Repatriation Commission (2007) 230 FCR 179
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 January 2020
BACKGROUND

Ms Dell Howard (‘the applicant’) made a claim for widow’s pension on 7 July 2015 on the basis that the death of her de-facto partner, the late Mr Edwin Lee (‘the veteran’) was war-caused under the Veterans’ Entitlement Act 1986 (‘the Act’). The veteran was not in receipt of a pension under the Act prior to his death.
On 5 October 2015 the respondent determined that the death of the veteran was not service related.
On 20 July 2016 the Veterans’ Review Board (‘VRB’) affirmed the decision of the respondent.
On 9 September 2016 the applicant made an application to this Tribunal to review the respondent’s decision.
The applicant did not give evidence at the hearing of this application. There was no medical certificate which confirmed her unavailability to give evidence. However, Dr Victoria Howard, her daughter, gave oral evidence (which I certainly accept) that the applicant was not medically fit to participate in the proceedings. Dr Howard (who does not have a medical doctorate) informed the Tribunal that her mother had an anxiety condition which was being treated. She remarked: “Mum would never want to go to court. I can relate back to when my father passed away, and she could have gone to court to have been eligible to continue with his own pension, and she wouldn’t do it”. I was advised that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Howard and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 67
Decision Date: 28 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Howard, against a decision of the Repatriation Commission concerning a claim for a war widow's pension. The veteran, the applicant's deceased partner, died from chronic obstructive pulmonary disease and ischaemic heart disease. The core of the dispute revolved around whether the veteran's death was sufficiently connected to his operational service to warrant the pension, applying the principles established in *Deledio*.

The court was required to determine whether any hypotheses connecting the veteran's death to his operational service were raised and, if so, whether those hypotheses were reasonable. This involved assessing whether the relevant Statements of Principles (SoPs) supported such a connection, given the accepted causes of the veteran's death. A preliminary issue regarding the nature of the de facto relationship between the applicant and the veteran was also addressed, with the respondent ultimately not pressing the point.

The court considered medical evidence and expert opinions, including the veteran's service medical records which indicated a history of dermatitis accepted as due to or aggravated by war service, though no pension was payable for this condition. Expert opinion confirmed that the veteran did not suffer from clinically significant mental health disorders as specified in the relevant SoP, nor did he seek treatment for such conditions. Ultimately, the court found that the SoPs did not uphold hypotheses linking the veteran's death to his service, despite acknowledging his military service and the applicant's care for him.

The decision under review was affirmed, meaning the applicant's claim for a war widow's pension was unsuccessful.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A Statement of Principle (‘SoP’) is binding on the respondent and this Tribunal.EVIDENCEThe veteran’s service medical records The veteran’s service medical records indicate that the veteran had a long-standing history of eczematous dermatitis. On 26 February 1947 a medical officer considered that the incapacity from dermatitis did not result from an occurrence happening during the period when the veteran was a member of the armed forces.[1] The condition was accepted by the respondent on 26 March 1947 for the purpose of providing medical treatment as being ‘due to or aggravated by war service’.[2] However, the respondent determined that there was no pension payable for this condition.[3] [1] Exhibit A, T-Documents, T17, p.181. [2] Exhibit A, T-Documents, T17, p. 183. [3] Exhibit A, T-Documents, T17, p. 184. Other medical records There are also other references throughout the material to the veteran suffering from other issues including sciatic pain, and bowel problems.[4] It was also noted that the veteran suffered from pain in his right calf and lower back from November 1980.[5][4] Exhibit A, T-Documents, T17, p. 238-240. [5] Exhibit A, T-Documents, T17, p. 245. A patient assessment dated 3 September 2005 recorded that the veteran was suffering from hypertension.[6] It was also recorded that the veteran consumes two wines per night and ceased smoking 50 years ago. [7] [6] Exhibit H, Summons documents.[7] Exhibit H, Summons documents. On 25 July 2007 a patient assessment again recorded that the veteran was suffering from hypertension.[8] However, the assessment recorded that the veteran drinks alcohol socially and that he ceased smoking in 1945.[9] There was no record of the veteran suffering from ‘depression/anxiety’ or ‘post-traumatic stress disorder’. [8] Exhibit H, Summons documents. [9] Exhibit H, Summons documents. In a health history questionnaire dated 16 May 2007 the veteran recorded being ‘partnered’ in response to ‘marital status’.[10] The veteran also recorded consuming fourteen drinks of alcohol per week, namely: ‘beer, wine, whisky’.[11] [10] Exhibit H, Summons documents. [11] Exhibit H, Summons documents. On 12 October 2007 Dr Robert Campbell, consultant neurologist reported: “Features of depression are starting to become apparent to Mr Lee and his family. It is not as bad as what was evident in the first week after surgery but I suspect it will need to be monitored and perhaps specific treatment commenced.” [12][12] Exhibit H, Summons documents, p. 22. On 21 November 2007 Dr Mark Weller, general practitioner reported that the veteran “still suffers quite badly, short term memory is reduced and he was a little depressed. He seems to have improved with Sertraline 50mg… Energy is slightly reduced & he has a recurrent occipital headache”.[13] Dr Weller’s report recorded in the veteran’s past history that the veteran had ‘depression – reactive’ since 7 November 2007.[14] [13] Exhibit H, Summons documents, p. 23.[14] Exhibit H, Summons documents, p. 23.

Decision

Reasons for decision

The veteran at a young age volunteered to defend Australia at a time when the very existence of our nation was under threat. I acknowledge the service of the veteran who served in a theatre of war and the sacrifices he made for our country. I further acknowledge the role of the applicant in caring for the veteran as his health deteriorated. However, under the scheme of the Act, I am unfortunately unable to grant this application. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Varghese confirmed that he disagreed with Dr Rees’ opinions and considered there to be no evidence that the veteran suffered any clinically significant disorder of mental health as specified in accordance with SoP No. 1 of 2016. Dr Varghese also considered that the veteran did not seek treatment from a psychiatrist, counsellor or general practitioner for any disorder and there is nothing in the documentation suggesting the veteran warranted ongoing management. CONSIDERATION There are some preliminary matters that need to be determined. First, prior to the hearing of this application there was an issue whether the veteran and the applicant were in a relationship from about 1989 until the time of the veteran’s death in May 2015. On the second day of the hearing the respondent indicated that it would not press the point made in its statement of facts, issues and contentions that put in issue whether the applicant and the veteran were in a de-facto relationship at all relevant times. I am satisfied that it was proper for the respondent to take this attitude having regard to the factors in s 11A of the Act. There is evidence concerning the nature of the de-facto relationship. I give great weight to the fact that in 2007 the veteran had described himself as “partnered”.[26] I accept the evidence of Dr Howard, the daughter of the applicant, that the applicant and the veteran had a commitment to each other. There is evidence of the financial relationships of the applicant and the veteran in that there is evidence that the applicant and veteran held the Hazeldean property as joint tenants. The title search as at 8 May 2018 indicates that the Hazeldean property was transferred from the veteran’s name to the veteran’s and applicant’s names as ‘joint tenants’ effective from 27 July 2007.[27] The title search also indicates that the property was later transferred out of their names on 6 June 2013 to third parties.[28] The applicant and the veteran both lived together in that property which is certainly indicative of the parties being in a de-facto relationship. In my opinion the issue of whether the applicant and veteran were in a de facto relationship should have been thoroughly investigated by the respondent prior to the hearing.[26] Exhibit H, Summons documents.[27] Exhibit I, Title Search dated 8 May 2018.[28] Exhibit I, Title Search dated 8 May 2018. Second, I am required to make a finding as to the kind of death suffered by the veteran having regard to s 120A of the Act. This was explained by Selway J in Repatriation Commission v Hancock [2003] FCA 711 at [9]. In reliance on the death certificate, I find that the death of the veteran at a time when he had bronchopneumonia was caused by chronic obstructive pulmonary disease and ischaemic heart disease. These causes of death are accepted by both parties as being the cause of the veteran’s death. There can be more than one medical cause for the death of a veteran.[29] [29] See Collins v Repatriation Commission (2009) 177 FCR 280 at 289 -290.