Humphris and Repatriation Commission
[2007] AATA 1316
•14 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600252
VETERANS’ APPEALS DIVISION ) Re DOROTHY JUNE HUMPHRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date14 May 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS’ AFFAIRS ‑ widow’s pension ‑ veteran with multiple disabilities – eligible war service - kind of death ‑ whether Statement of Principles met – decision affirmed
Veterans’ Entitlements Act 1986 ss 8(1), 9(1), 119, 120(4), 120B, 196B(14)
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
14 May 2007 Regina Perton, Member 1. Clifford George Humphris died on 5 January 2001, after 59 years of marriage to Dorothy June Humphris. He was 85 years old. Mr Humphris served in the Royal Australian Air Force (RAAF) from 5 August 1940 to 11 January 1941. That period is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Mr Humphris then continued as a member of the RAAF Reserve until 30 October 1946. During that period, he worked at the Commonwealth Aircraft Corporation (CAC). The latter period is not classified as eligible war service under the Act.
2. Mr Humphris suffered from a number of medical conditions. The Repatriation Commission accepted that one of those conditions, malignant melanoma of the skin, was service-related. The Commission determined that Mr Humphris was eligible for treatment of squamous cell carcinoma of face (NSR) and all other malignancies, although it did not accept that condition was service-related. The Commission did not accept that solar skin damage, headache, bilateral sensorineural hearing loss, cerebral ischaemia and ischaemic heart disease were service-related.
3. Mr Humphris’ death certificate indicates that the cause of death and duration of illness was cerebrovascular accident – 1 week; ischaemic heart disease.
4. Mrs Humphris first lodged a claim for a war widow’s pension on 6 March 2001. The Commission refused the claim on 9 March 2001 on the basis that there was no evidence to suggest that Mr Humphris’ death was the result of accepted service-related disabilities. This decision was affirmed by the Veterans’ Review Board (VRB) on 15 January 2002.
5. Mrs Humphris again applied for a war widow’s pension on 8 August 2003. The Commission refused the claim on 14 August 2003 as it did not consider that Mr Humphris’ death was related to his service.
6. On 29 July 2005, Mrs Humphris lodged a third claim for war widow’s pension. On 27 October 2005, the Commission rejected the claim on the basis that the death was not related to Mr Humphris’ service. The VRB affirmed the decision on 13 March 2006.
7. On 30 March 2006, Mrs Humphris lodged an application for review with the Tribunal. In her letter constituting the application, Mrs Humphris stated:
The reasons you give for your decision, no doubt you see as right, but I feel my husband enlisted as a free man & should be the same as any other war veteran…
8. In considering whether Mrs Humphris is eligible for a war widow’s pension, the Tribunal has to determine whether Mr Humphris death can be related to his service, taking into account the requirements of the Act and legislated instruments.
Mr Humphris’ service
9. When Mr Humphris joined the RAAF he was 25 years old. His application for enlistment lists his occupation as fitter and turner. He indicated that he would like to train as an instrument maker in the RAAF.
10. Mr Robert Piper of Military Aviation Research Services provided a report dated 6 September 2006 concerning Mr Humphris’ RAAF service. The chronology of his service was as follows:
Date: Place: Details:
5 August 1940 Sandringham, Vic enlisted….
19 August 1940 Ultimo, Sydney 3 School of Technical Training.
15 November 1940 Evans Head, NSW 1 Bombing & Gunnery School.
(approx)
10 January 1941 Evans Head, NSW Discharged to civil employment & RAAF Reserve.
29 October 1946 Melbourne Discharged from RAAF Reserve.
11. Mr Piper, citing RAAF records, stated that Mr Humphris was accepted into a position as an instrument repairer. On 15 November 1940, Mr Humphris applied to be released to a civilian position at CAC. The CAC was a government organisation building aircraft and components for the defence of Australia and the war effort. CAC held a unique status that enabled it to secure military personnel to be employed in specialist positions. As an instrument repairer, Mr Humphris had the type of skills CAC needed.
12. Mr Piper stated that after his training course in Sydney, Mr Humphris served less than eight weeks at Evans Head. Evans Head was a training school for wireless operators and air gunners. Mr Piper described the nature of Mr Humphris’ duties as follows:
The veteran’s duties…would have been to service and repair the instruments on the Fairey Battle aircraft. There would not have been flying duties involved unless the member was taken for a local joy flight. The Fairey Battle was a two seater aircraft with a pilot and drogue operator/observer or gunner in the back seat.
13. Mrs Humphris told the Tribunal that her husband had wanted to go overseas with the RAAF but due to an illness that caused her to be bedridden for some six months, he thought it more important to be there for her. She described the stresses he experienced in working varying shifts at CAC which she believes significantly affected him.
14. The Act does not allow Mr Humphris’ period of service in the RAAF Reserve to be considered eligible war service. Hence, the Tribunal must consider whether Mr Humphris’ death was due to a condition that resulted from his service between 5 August 1940 and 11 January 1941.
Kind of Death
15. Mr Humphris died on 5 January 2001. Dr B Boan, his general practitioner, noted on the death certificate that the death was due to a cerebrovascular accident a week earlier and that Mr Humphris’ last illness was ischaemic heart disease.
16. Professor J F Cade, Director of Intensive Care at the Royal Melbourne Hospital, provided two reports, dated 2 November 2006 and 27 December 2006, in which he reviewed the available medical documentation concerning Mr Humphris. This included Dr Boan’s clinical notes and the patient records from the St Benedict Nursing Home, to which Mr Humphris was transferred in November 2000. Prior to that transfer, Mr Humphris had been at the Pembridge Nursing Home since 1996, suffering from dementia, hypertension, ischaemic heart disease and another stroke. Mr Humphris has suffered his first stroke in 1992 after which he had been cared for at home by Mrs Humphris. Unfortunately, by 1996, he had deteriorated so much that he needed professional, full-time care. At the time Mr Humphris was transferred to St Benedict’s, he was very ill. He had limited comprehension, was unable to feed and dress himself, had limited communication and comprehension skills, was doubly incontinent and weighed only 46 kg. He remained under the care of his long-time general practitioner, Dr Boan.
17. Professor Cade stated (in his report dated 27 December 2006) that:
The veteran clearly died from advanced cerebrovascular disease, with progressive dementia, recurrent strokes and a neurological deterioration about one week before he died. The associated ischaemic heart disease had also been well documented. No other significant conditions were recorded. This, the death certificate may be regarded as correct.
18. The Tribunal is satisfied that Mr Humphris died of cerebrovascular accident with associated ischaemic heart disease.
Legislative Background
19. Section 8(1) of the Act provides:
(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:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
20. Section 9(1) of the Act provides:
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) …
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
21. Section 120(4) of the Act provides that the standard of proof to be applied as to whether the disease contracted arose out of eligible service is that of reasonable satisfaction. That means the Tribunal must decide whether Mr Humphris’ death was war-caused on the balance of probabilities.
22. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. That means that where there is a Statement of Principles (SoP) formulated by the Repatriation Medical Authority pursuant to s 196 of the Act, the Tribunal must apply the SoP in deciding whether there is a connection between Mr Humphris’ eligible war service and the disease that led to his death.
23. When formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition. Section 196B(14) of the Act states:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
Statements of Principle In Force
24. The Tribunal is satisfied that Mr Humphris’ death was due to cerebrovascular accident and ischaemic heart disease. The current SoP for cerebrovascular accident is No. 52 of 2006. At the time the claim was lodged, the pertinent SOP for cerebrovascular accident was No. 53 of 1999. The SoP for ischaemic heart disease is No. 54 of 2003. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision. If the requirements of that SoP are not met, the Tribunal can then consider other SOPs that were current at the time of the claim and between the claim and the Tribunal’s decision.
25. The three relevant SoPs set out a multiplicity of conditions and/or habits arising out of eligible war service that could be linked to the kind of death suffered by Mr Humphris. It is not enough that he suffered from one of the precursor criteria. There must be a link between what happened during, or arose from, eligible war service and the precursor condition or incident that led to the cerebrovascular accident or ischaemic heart disease.
26. SoP No. 52 of 2006 provides a lengthy list of factors, some of which Mr Humphris suffered, prior to his fatal cerebrovascular accident. These include suffering from hypertension at time of clinical onset and an inability to undertake a certain prescribed level of physical activity. However, there is no evidence of any link between these conditions or disabilities to Mr Humphris’ eligible war service. The only possible link that may be able to be made is one between Mr Humphris’ smoking and his cerebrovascular accident.
Factor 6(l) in SoP No.52 of 2006 sets out those criteria:
(l) for cerebral ischaemia only,
(i) where smoking has not ceased before the clinical onset of cerebrovascular accident
(A) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of cerebrovascular accident; or
(B) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of cerebrovascular accident; or
(ii) where smoking has ceased before the clinical onset of cerebrovascular accident:
(A) having smoked an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident, and the clinical onset of cerebrovascular accident has occurred within five years of cessation; or
(B) having smoked an average of at least twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident;
27. Mrs Humphris’ evidence about the frequency and timing of her late husband’s smoking has been somewhat varied over the years because of the lengthy period of time involved. Mrs Humphris’ memories of the level of her husband’s smoking are made more difficult by him apparently not smoking in front of her or in their home. She did not like people smoking.
28. At the hearing on 13 April 2007 Mrs Humphris gave oral evidence by telephone. Mrs Humphris initially said that she had not seen her husband smoking. She said that he might have smoked outside. She said that she had not seen a cigarette in his hand. However, she had smelled smoke on him when he came home from CAC after they were married. She assumed, therefore, he must have been smoking due to the stress of the work there. Mrs Humphris said that she was not sure of his level of smoking. Under cross-examination Mrs Humphris said that she might have seen her husband with a cigarette. When asked to explain what she meant by might have, she said that she probably did see him. When asked if she had ever seen cigarettes in the house, she said no in the first instance and yes later. Mrs Humphris initially said that she had not seen her husband smoking, but later said that she had seen him doing so in the yard in the early 1940s, a little in the 1950s but did not know about later.
29. Asked whether Mr Humphris smoked before joining the RAAF, Mrs Humphris said that he smoked when they met in 1938 but that she did not know how much. She did not see him while he undertook his service at Evans Head. After his return to work at CAC, he lived with his parents, until they were married in 1942. After another smoking related question, Mrs Humphris said that she did not wish to discuss smoking any longer and could not understand why she was still being asked questions about his smoking. She stated that she just wanted to be treated in the same way as the widows whose husbands went overseas as it was not her husband’s fault that he was not able to serve overseas. At this point Mrs Humphris said that she did not want to answer any more questions. She had been giving evidence by telephone and she chose to hang up.
30. In June 1993, Mrs Humphris stated that her husband began smoking at around 25 years of age and ceased when he was about 26 years of age. In May 2000, she stated that she was confused and stressed when she filled out the June 1993 questionnaire and gave incorrect information. Mrs Humphris stated that her husband began smoking in November 1940, starting with 5 cigarettes per day. She stated that he increased his smoking in mid-1941 to 20 per day; and that he ceased smoking in 1990. On 17 August 2000, Mrs Humphris stated that when she met her husband in 1938, he was a smoker but not much. She could not recall if he had a packet of cigarettes in his hand. She attributed her husband’s increase in smoking to the stressful nature of his service as an instrument repairer between 1940 to January 1941. She told the VRB that she saw her husband smoke when he returned to Melbourne in January 1941.
31. On 22 January 2001, Mrs Humphris stated that her husband began to smoke on enlistment or shortly thereafter. He was said to smoke 20 cigarettes per day. On 19 July 2001, Mrs Humphris stated that she did not see her husband smoke before the war. She stated that she knew her husband smoked during the war as a large number of packets of cigarettes were given to each member of the RAAF. On 15 January 2002, Mrs Humphris stated that when she met her future husband in 1938, he might have been smoking a little bit at that time. She could not recall if he smoked between when they first met and when he joined the RAAF. At that time they usually saw each other once a week. Mrs Humphris only saw Mr Humphris occasionally over the first 12 months after his return to Melbourne in January 1941 as he lived with his parents, but she knew he was smoking as she could smell cigarettes. She also said that after they married in 1942, he smoked occasionally in the house but mostly he smoked outside.
32. SoP No. 53 of 1999 concerning cerebrovascular accident contains similar factors to the current SoP. While Mr Humphris appears to have had, for example, an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of the fatal cerebrovascular accident (factor (5(d)) (he had been debilitated by stroke, dementia and other illnesses from about 1992), there is nothing linking that to his five months of eligible service some 60 years earlier. Again, there is a smoking factor that can be considered.
33. The SoP for ischaemic heart disease, No 54 of 2003, also lists conditions that Mr Humphris may have suffered from prior to his fatal stroke but there is no evidence linking those conditions to his service.
34. The Commission rejected Mr Humphris’ claims for cerebrovascular accident (from his earlier stroke in 1992) and ischaemic heart disease as being war-caused conditions. Regarding the claims that his death from cerebrovascular accident and ischaemic heart disease were related to his service, it is even more difficult to find a link. Unfortunately, Mrs Humphris has not been able to provide any evidence beyond her own recollections as to how much her husband smoked. She did not call evidence from her children or from contemporaries or medical practitioners about his smoking. Dr Boan’s clinical notes could not be located. There is no reference to smoking in the records since Mr Humphris’ first stroke in 1992. Furthermore, there is nothing in the nature of his service, as described by Mr Piper in his report, that provides evidence that the work in the RAAF was a causal factor in Mr Humphris taking up smoking.
35. The Tribunal takes into account the beneficial nature of the Act and the passage of time (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1)(h) cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that there is no evidence of the facts necessary to support Mrs Humphris’ application. Therefore, s 119(1)(h) of the Act does not assist her such as to enable the Tribunal to find in her favour. Her claim does not succeed.
DECISION
36. The Tribunal affirms the decision under review.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
signed: Ursula Noyé
Clerk
Date of hearing: 13 April 2007
Date of decision: 14 May 2007Advocate for applicant: Self-represented
Advocate for respondent: Mr K Rudge
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
0
1
0