JACQUELINE TOMLINSON and REPATRIATION COMMISSION
[2009] AATA 704
•10 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 704
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3647
VETERANS' APPEALS DIVISION ) Re JACQUELINE TOMLINSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr D. Weerasooriya, MemberDate10 September 2009
PlacePerth
Decision The reviewable decision of the Repatriation Commission made 26 May 2005 is affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – widow pension – cause of death – hypothesis connecting death to service rendered – material does not point to hypothesis – decision under review affirmed
Veterans’ Entitlements Act 1986 – Sections 7, 8, 13, 120
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
10 September 2009 J.W. Constance, Senior Member
INTRODUCTION
1. Mrs Tomlinson is the widow of the late Mr Tomlinson who died on 7 June 2002. I am satisfied of these facts (which are not in dispute) on the balance of probabilities based on the evidence of Mrs Tomlinson and the copy of the death certificate.[1]
[1] T9.
2. On 3 May 2005 Mrs Tomlinson lodged a claim for a pension as the widow of a deceased veteran. This claim has been rejected. The decision under review is that of the Repatriation Commission made 26 May 2005, which was affirmed by the Veterans’ Review Board on 22 June 2007, that there was no sufficient ground for determining that Mr Tomlinson’s death was war-caused.
3. There has been substantial delay in completing the hearing of this matter, well beyond a period which would normally be acceptable. However, the Members of the Tribunal formed the view that it would be of assistance to hear from Dr Leckie, the Local Medical Officer who attended Mr Tomlinson at the time his condition, which ultimately led to his death, was diagnosed. The matter was adjourned part heard until Dr Leckie was available to give evidence.
SERVICE
4. It is not in dispute that Mr Tomlinson served in the Royal Australian Air Force from June 1941 to November 1945 and that this service was operational service within the meaning of the Veterans’ Entitlements Act 1986 (Cth).[2] A copy of Mr Tomlinson’s Record of Service is in evidence.[3]
DETERMINATION OF THE “KIND OF DEATH”
[2] See section 6A.
[3] T3.
5. To reach a decision in this matter it is necessary to determine the kind of death suffered by Mr Tomlinson. Based on the death certificate, I am satisfied on the balance of probabilities that the cause of death was schwannoma of posterior fossa of the brain.
ISSUE FOR DETERMINATION
6. I am to determine whether the death of Mr Tomlinson was war-caused. If it was, Mrs Tomlinson is entitled to the pension she seeks.
STATUTORY BACKGROUND
7. Subject to the provisions of the Act, the Commonwealth is liable to pay to the widow of a veteran a pension where the death of the veteran was “war-caused”.[4] For the purposes of the Act the death of a veteran shall be taken to have been war-caused in a number of circumstances. The relevant circumstance in this application is where the death “arose out of, or was attributable to, any eligible war service rendered by the veteran”.[5]The rendering of operational service is taken to be the rendering of eligible war service.[6]
[4] Subsection 13(1).
[5] Subsection 8(1).
[6] Subsection 7(1).
8. As Mrs Tomlinson’s claim is in respect of the death of a veteran relating to operational service, section 120 sets out special provisions as to the standard of proof we are to apply in determining the claim. Subsection 120(1) provides:
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.
Subsection 120(3) relevantly provides:
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) …
(b) …
(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.
CONSIDERATION
9. The steps I am required to take in determining the issue before me are set out in the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio.[7] For the purposes of these reasons it is sufficient to set out the first step which is as follows:
The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
[7] (1998) 83 FCR 82 at 97.
Step One: does the material point to a hypothesis connecting the death to the service rendered?
10. I must consider all the material before me and determine whether it points to a hypothesis connecting the death with the service rendered by Mr Tomlinson. The material to which I refer in the paragraphs under this heading is all before me.
11. The submissions of the Repatriation Medical Authority in relation to acoustic neuroma (also referred to as acoustic schwannoma) indicate that it rarely causes symptoms before the third decade of life and most commonly during the fifth decade. There is research which has found that there is an early peak for males in the 30-39 age group. The tumour grows slowly and focal signs commonly exist for years before those of increased intracranial pressure develop.
12. Mrs Tomlinson has stated in her claim form and in evidence that her husband experienced difficulty with his hearing within 6 months of leaving the Air Force in 1945 and that these difficulties gradually worsened. His left ear was worst. In addition, Mr Tomlinson experienced unexplained irritation in his left eye and would often cover it with his hand. For about 9 years prior to his death on occasions Mr Tomlinson suffered severe pain in the left side of his face. Mrs Tomlinson also stated that Mr Tomlinson had balance problems which started 10-15 years ago and that on many occasions he fell over for no apparent reason.
13. An audiogram carried out on Mr Tomlinson in January 2000 showed a severe-profound high frequency loss in both ears, worse on the left. A report by Dr Watson, Consultant Physician, sets out his opinion that the tumour had been present for well over a decade and in January 2000 the asymmetric hearing loss was evidence of the existence of the tumour.
14. I have been advised on behalf of the Commission that it is likely that the Department of Veterans’ Affairs referred Mr Tomlinson to the audiologist. Dr Leckie was Mr Tomlinson’s Local Medical Officer at the time, but no-one advised Mr Tomlinson of a possible diagnosis of an acoustic neuroma or suggested to him any possible treatment until March 2002.
15. There is material supporting a hypothesis that Mr Tomlinson first developed the tumour before or during his eligible service. This material is that (a) the peak age group for development of the tumour in males is 30-39, and (b) a deterioration in hearing (a known symptom of the tumour) manifested itself within 6 months of Mr Tomlinson’s demobilization.
16. However, even on the basis that the tumour was in existence before or during the eligible service, there is no material supporting a hypothesis that there is a link between the death caused by the tumour and the service,
17. Dr Leckie gave evidence. He treated Mr Tomlinson whilst he was a General Practitioner at the Carnarvon Hospital between 1997 and 2004. Dr Leckie stated that there was a CT scan of Mr Tomlinson’s head in January 1998 conducted by Dr Carroll, Neurologist. This scan showed no evidence of neuroma at that time. A small neuroma may have not been evident in this scan. Mr Tomlinson was referred by Dr Leckie to Dr Carroll by reason of his experiencing unsteadiness on his feet and having fallen.
18. Dr Leckie also had available to him the results of audiograms performed in May and June 1988, December 1999 and September 2000. All audiograms showed a significant hearing loss bilaterally at the higher frequencies and there was asymmetry in that the hearing loss was on the left-hand side.
19. In 2000 and in 2001 Dr Leckie referred Mr Tomlinson for specialist assessment for double vision.
20. In her Statement of Facts and Contentions[8] Mrs Tomlinson put forward that Mr Tomlinson’s death “was a result of his accepted disability “Bi-lateral Sensorineural Hearing Loss” with the development of the Schwannoma”. However, there is nothing in the material before us on which to base a hypothesis that the neuroma was in any way caused by the hearing loss.
[8] Dated 15 January 2008.
21. During the hearing Counsel for Mrs Tomlinson suggested an alternative hypothesis, namely that the calibre of World War II Veterans was such that they did not complain and that this characteristic was instilled into Mr Tomlinson by his war- service. He argued that the hypothesis I should determine is that by reason of Mr Tomlinson’s reluctance to seek treatment for the symptoms of the neuroma he did not receive timely treatment, and the neuroma progressed to a stage of causing death more quickly than it would have done had treatment been undertaken. Whilst Mrs Tomlinson said that Mr Tomlinson was reluctant to seek medical advice, there is no material before me to support a hypothesis that his reluctance was instilled in him by his service or was otherwise linked to his service.
22. Although it was not raised on behalf of Mrs Tomlinson, I have given consideration to whether a hypothesis arises that Mr Tomlinson was unable to seek clinical management other than that offered under the Repatriation system and that the medical practitioners within the system failed to diagnose the condition, promptly hastening his death. However, there is nothing before me which gives rise to a hypothesis that Mr Tomlinson was unable to seek medical advice outside the Repatriation system had he sought to do so. The material does show that Mr Tomlinson suffered medical conditions which were not related to his service in respect of which he sought appropriate clinical management. I have taken into account that the material must point to a hypothesis which cannot be merely fanciful.
CONCLUSION
23. As we have determined that the material before us does not point to a hypothesis connecting the death with the circumstances of the service, Mrs Tomlinson’s application must fail.
DECISION
24. The reviewable decision of the Repatriation Commission made 26 May 2005 is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Dates of Hearing 7 July 2008, 11 December 2008 & 12 June 2009
Date of Decision 10 September 2009
Counsel for the Applicant Mr P. LofdahlCounsel for the Respondent Mr C. Ponnuthurai, Department of Veterans’ Affairs
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