Ian Williams and Repatriation Commission
[2013] AATA 760
[2013] AATA 760
Division VETERANS' APPEALS DIVISION File Number
2011/4135
Re
Ian Williams
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 24 October 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
VETERANS' AFFAIRS – Benefits and entitlements – Eligibility for pension – No connection between eligible defence service and condition – Not entitled to any benefits – Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning chronic bronchitis and emphysema No. 31 of 2004
REASONS FOR DECISION
Dr M Denovan, Member
24 October 2013
The applicant in these proceedings is Mr Ian Williams. Mr Williams served in the Royal Australian Air Force (“RAAF”) from 15 January 1963 until 31 December 1992. He has eligible defence service from 7 December 1972 until his discharge. He has been diagnosed with both chronic bronchitis and with emphysema. Mr Williams says his chronic bronchitis and emphysema is linked to his service in the RAAF, by way of a service caused cigarette addiction. He has sought medical treatment and pension for incapacity from the condition under the Veterans’ Entitlement Act 1986 (Cth) on that basis.
The question for me is whether there is, with reference to the relevant Statement of Principles, a connection between Mr Williams’ chronic bronchitis and emphysema, and his defence service.
Mr Williams’ case can be outlined as follows. Mr Williams was a minor when he joined the defence force. He commenced smoking prior to his eligible defence service, in the first 3 months after he enlisted. The other boys smoked and he wanted to do the same thing. He was not a heavy smoker until the early part of his eligible service. In 1973 he increased the number of cigarettes he smoked to 20 cigarettes a day, plus some pipe and cigar smoking, until 1983 when he ceased smoking completely. He was hospitalised to treat a congenital chest wall defect in October 1972. When discharged he was on convalescent leave for one month. During that time he commenced smoking heavily. In late 1973 his duties in the overhaul workshop at Amberley became extremely stressful and demanding, and at this time he further increased the number of cigarettes he smoked.
The relevant Instrument for the applicant’s conditions and eligible defence service, is the Statement of Principles concerning chronic bronchitis and emphysema No. 31 of 2004 (“the SoP”). Mr Ryan, for the applicant, said Mr Williams was relying on only one factor, 5(a) of the SoP which reads:
smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco product, before the clinical onset of chronic bronchitis and/or emphysema.
The difficulty with Mr Williams’ claim is that he has provided inconsistent evidence about his smoking history. In the initial smoking questionnaire completed by
Mr Williams on 9 May 2008,[1] he indicated he had a well-established smoking habit of up to 20 cigarettes a day, interspersed with pipe smoking and the occasional cigar, many years before his eligible defence service commenced.
[1] Exhibit 1, T-Document 8, pp. 42-44.
Mr Williams contends I should disregard the information he provided in that questionnaire. He said the form confused him, and at the time he completed it he was extremely sick, and had been poorly advised by his then advocate. During the hearing
Mr Williams described the intellectually challenging positions he held both during and after his eligible defence service. The smoking questionnaire is a relatively simple form that is easy to understand, and I do not accept it would be difficult for a man of
Mr Williams' intelligence and experience to understand. Further, he completed the questionnaire many months after he was discharged from hospital for the illness he claims was affecting him. Many weeks before he completed the questionnaire, he had returned to his full quota of hours at his part time job. I do not accept that incapacity due to illness explains the discrepancy in the information provided by Mr Williams in
May 2008 with the history he would now have me accept.
Even during the hearing Mr Williams’ evidence about his smoking history was inconsistent at times. Although he claims his increase in smoking was gradual, on more than one occasion he identified his hospitalisation at the end of 1972 as a trigger for increasing his smoking considerably and rapidly. Mr Williams said his hospitalisation was a very traumatic time for him, and it was very apparent to him that after going through what he did, his pattern of smoking changed. Mr Williams told me his experience during hospital scared him to the point that he feared for his life.
He recalls smoking about 10 cigarettes to a packet weekly prior to being hospitalised.
He could not smoke such at all whilst in hospital, due to lack of opportunity. After he was released on convalescence, he began to smoke heavily, he smoked like a ‘chimney’, and on some days he was chain smoking. He commenced buying cigarettes by the carton instead of the packet from that time on, and his smoking continued at a heavy rate from that time until he ceased in 1983.
Records from the Prince Charles hospital indicate that Mr Williams was admitted on
17 October 1972 and discharged on 31 January 1973.[2] He was readmitted to have an area of septic necrosis removed from the wound, on 9 February 1973 and discharged on
12 February 1973. The initial surgery was to treat a congenital condition, an extensive funnel chest. Mr Williams was entitled to treatment for this condition during his service, however the connection is temporal only. The complications secondary to the original surgery were the result of a local wound sinus formation.
[2] Exhibit 9.
There is no suggestion in the evidence before me that these secondary complications were in any way avoidable, or were related to Mr Williams’ eligible defence service. Even if they were it would not matter as Mr Williams’ evidence is that he commenced smoking heavily as soon as he was discharged from hospital as a way of coping with the stress. It is clear that he was referring to his discharge from the initial surgery, for which Mr Williams was hospitalised for more than three months. Mr Williams did not suggest the secondary complications to his surgery were of a stressful nature, and the evidence from surgeon Dr M Windsor is that as a result of the complications
Mr Williams required regular dressings, and his return to work was postponed, but he was otherwise well.[3] The second procedure was relatively minor and Mr Williams required only 3 days in hospital.
[3] Exhibit 8.
I find that Mr Williams commenced smoking in 1963, and developed a habit of smoking heavily either before his eligible defence service, or immediately after he was discharged from hospital in January 1973. If the latter is true, the cause of the escalation of his smoking habit was the stress he experienced as a result of a three-month hospitalisation to treat a congenital abnormality in his chest. There is no causal relationship with that condition and Mr Williams’ defence service.
Mr Williams already had a well-established heavy smoking habit by the time he worked at Amberley, and I do not accept that he increased the amount of cigarettes he smoked as a result of any service related reasons.
In his claim he also relied on factors 5(b) and 5(i) of the SoP. Mr Ryan said that the claim in relation to those factors was withdrawn. No evidence was led in relation to those factors, although there is some material in the evidence before me of relevance. For the sake of completeness I will briefly discuss those factors.
Although Dr Maurice Heiner, respiratory physician, is aware Mr Williams claims to have been exposed to some respiratory tract irritants during his defence service, he states that Mr Williams’ chronic bronchitis and emphysema is due to cigarette smoke.[4] Dr Heiner suggested Mr Williams’ condition might have been worsened by exposure to respiratory tract irritants. Factor 5(b) of the SoP is therefore not satisfied, however, Dr Heiner’s opinion raises the possibility of factor 5(f) being relevant to this claim.
From the medical evidence before me, I have concluded that the likely clinical onset of chronic bronchitis was in about 1980, and for emphysema on 7 August 2012. Because the clinical onset of emphysema was many years after his service, this condition could not have been worsened in a manner that would satisfy factor 5(f). There is no medical evidence which points to Mr Williams having “signs and symptoms of acute and serious insult to the lower respiratory tract”, which is a requirement for factor 5(f). There is no material before me which points to factor (i) being satisfied. As none of the factors in the SoP are established by the evidence before me, Mr Williams’ claim is not successful.
[4] Exhibit 4.
CONCLUSION
I am not satisfied there is a connection between Mr Williams’ condition of chronic bronchitis and emphysema, and his eligible defence service.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
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Associate
Dated 24 October 2013
Date of hearing 18 September 2013 Advocate for the Applicant Mr Peter Ryan Advocate for the Respondent Mr Bruce Williams, Departmental Advocate
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