James Weston, the Legal Personal Representative of the Late Harry Weston and Repatriation Commission

[2008] AATA 798

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 798

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/308

VETERANS' APPEALS DIVISION		)
Re		JAMES WESTON, THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE HARRY WESTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member

Date9 September 2008

PlaceSydney

Decision The decision under review is set aside and substituted for that decision is the decision that Mr Weston's Alzheimer's disease is war-caused. The matter is remitted to the Commission for assessment of Mr Weston’s rate of pension.

................[sgd]..........................

Presiding Member
  Senior Member, Mrs Josephine Kelly

CATCHWORDS

VETERANS’ AFFAIRS -  Claim for war pension – Alzheimer’s disease - Whether material raises hypothesis connecting Alzheimer’s disease with service  - Statement of Principles concerning Alzheimer’s disease – Head injury – Loss of consciousness for 15 minutes – Post-traumatic amnesia for 30 minutes - Service records considered – Historians evidence considered – Extract from ‘The Island Campaigns’ considered - Medical reports considered – Decision set aside – Decision substituted Alzheimer’s disease war-caused

Veterans’ Entitlements Act 1986, ss 120, 120A, 196B

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Statement of Principles concerning Alzheimer ’s disease (No. 17 of 2001)

Allan S Walker, The Island Campaigns (1957)

REASONS FOR DECISION

9 September 2008 Senior Member, Mrs Josephine Kelly
Dr J Campbell, Member     

1.      Mr Harry Weston was a World War II army veteran.  He was wounded while fighting on Labuan Island in June 1945 with A Company of 2/28 Battalion. Mr Weston’s wife applied in 2005 to have her husband’s Alzheimer’s disease accepted as being war-caused.  The application was refused by the Repatriation Commission (the Commission) and the Veterans’ Review Board (VRB).   Mr Weston died on 15 August 2007.  His son, Mr James Weston, appeared for his father’s estate at the hearing.  He argued that Mr Weston’s Alzheimer’s disease was “war-caused”.

2.      For the reasons that follow, we conclude that the decision under review should be set aside, and substitute therefor the decision that Mr Weston's Alzheimer's disease was war-caused.

THE ISSUES

3.      The issues in this case were:

1.Does the material raise a hypothesis connecting Mr Weston's army service with his Alzheimer's disease?

2.        Does the hypothesis satisfy the Statement of Principles  (SoP) for Alzheimer's disease?

3.       Is the hypothesis disproved beyond reasonable doubt?

CONSIDERATION

Does the material raise a hypothesis connecting Mr Weston's army service with his Alzheimer's disease?

4.      Mr James Weston argued that the material before us raised an hypothesis that Mr Weston suffered a shrapnel wound to the head in June 1943 on Labuan Island which caused him to lose consciousness for a period of more than 15 minutes or to suffer post-traumatic amnesia for more than 30 minutes, which relevantly caused his Alzheimer’s disease.

5.      The Repatriation Commission accepted that Mr Weston suffered from Alzheimer's disease and we did not understand the Commission to argue that the material before us does not raise the hypothesis proposed.  In any event, in our opinion, the material before us does raise the proposed hypothesis and therefore satisfies that first step of the analysis set out in Repatriation Commission v Deledio at 97 – 98 , in relation to s 120(3) of the Veterans' Entitlements Act 1986  (the Act).  In coming to that conclusion we make no findings of fact in relation to that material.

6. The material before us included Mr Weston’s Army medical records, a statement from Mr James Weston which included extracts from “The Island Campaigns” by Allan S. Walker,[1] and an historian’s “Report on Harry Weston,” by Ms Jennifer Cornwall. The historian provided her analysis of what happened to Mr Weston based on the available records, some of which she attached to her report.

[1] Allan S Walker, The Island Campaigns (1957).

7.      Ms Cornwall helpfully set out the procedure for the treatment of casualties during World War II, which assisted our understanding of the records of Mr Weston's wounding and treatment. Those records included a number of Field Medical Cards, several Hospital or Sick List Record Cards, Specialist Reports, the Service and Casualty Form in which the critical entry appears, the Medical History Sheet of Mr Weston, and the Final Medical Board record. 

8.      The hypothesis relies on one record in Mr Weston’s Army medical records.  It appears on his Service and Casualty Form which is in a table format.  The date of the entry is 22 June 1945. It was received from “Landforces Melbourne 2/28 Bn”.  The record of casualty begins:  Brunei Bay casualty wounded in action.  Next to that in the column headed "Date of Casualty" is written "17.6.45".   

9.      The following appears on the next two lines in the "Record of casualty" column but is crossed out (the parenthesis symbol embraced both lines): 

16.6.45 & placed on S.I. List 17.6.45       } stet

(B. W. Grenade abdomen) with 2/2/8 BN.}

10.     On the next line is the critical entry: 

no date given & placed on S.I. List 17.6.45 (Shrapnel wound head).

It was apparent during the hearing, the "S.I. List" means "Seriously Injured List".

11.     There is no other reference to a shrapnel wound to the head.  There is a reference to a shrapnel wound to the right shoulder blade in the Final Medical Board record signed by Mr Weston on 10 June 1946. The first 2 records in Part 1 Statement of Member are as follows:

1. What is the disability or disabilities of which you complain?

Give date and place of origin.

- Numbness of Right thigh over site of G.W.S.

- 16 Jun 45 – Labuan

2.  From what other disabilities, wound, or injuries have you suffered during your service?

Give dates and places of origin.

- Shrapnel wound Rt shoulder blade

- Jun 45 – Labuan

12.     Ms Cornwall included in her report Routine Orders No. 470, Part I, 19 June 1945, p 4 forming part of the 2/28 Battalion Unit War Diary bundle of documents, which lists Mr Weston as having been wounded on 13 June 1945.  Ms Cornwall reported that Part I of Routine Orders No. 471 was missing from the 2/28 Battalion Unit Diary.  She asserted that it would have included the list of A Company casualties for 16 June 1945.  

13.     Ms Cornwall's opinion, based on the available records, was that Mr Weston had sustained two injuries while fighting on Labuan Island – a shrapnel wound to the head and gun shot wounds to the abdomen.  She considered that it was possible that the entry relating to the shrapnel head wound which stated the date as "SI list" 17 June 1945, was incorrectly transcribed from its original source, Part II of the Routine Orders, which was not available to her, or to the Tribunal.  Given the record of wounding on 13 June 1945 in the 2/28 Battalion Unit War Diary, she concluded that "This most likely relates to the shrapnel head wound".   

14.     The gunshot wounds to the abdomen were recorded as occurring on 16 June 1945.   There was a considerable volume of material in the service records about those wounds, the surgery that followed, Mr Weston's evacuation and the progress of his recovery.

15.     Mr James Weston argued that the evidence showed that Mr Weston had been wounded twice.  He also relied on his own experience during the Vietnam war. He stated that during action:

The situation is marked by confusion, haste boarding on the chaotic.   

16.     He stated that, while there is little evidence of treatment for the head trauma,:

in battle situation wounds are … often self treated and the digger returned to action.    

17.     He had witnessed that himself.  He thought the fighting in the Vietnam jungles and Borneo was similar.

18.     He wrote:

In the perplexity and confusion of dealing with the immediacy of dealing with numbers of wounded, the process of triage, treating and recording injuries and treatment at the moment is fraught with the possibilities of brevity.  Furthermore, the later transcribing of these notes, made amidst the turmoil of the instant, into more cogent notes is liable to further errors or misinterpretations.

19.     He also noted that Part II of the Routine Orders were missing, which might support his case.

20.     Mr James Weston also relied on Ms Cornwall's conclusion that: 

“… it is possible that the veteran did suffer a loss of consciousness for a period of time but that medical personnel were unaware of this and only treated him for superficial head wounds.  Similarly, the possibility that the veteran played down his injuries cannot be ruled out".    

21.     Mr James Weston added: “knowing my father this is a … very real possibility.” 

22.     We had two reports from Dr Coffey, consultant neurologist, prepared in 2006.  On the basis of material provided to him by a legal aid solicitor, who had acted for Mr Weston previously, Dr Coffey concluded that the head injury Mr Weston sustained in action on 16 June 1945 was minor and non-significant in nature, that is, most probably a superficial scalp wound which is not associated with any fracture of the underlying skull or with any overall impairment of consciousness.  Dr Coffey set out information about the range of severity of head injuries. 

23.     In a second report, Dr Coffey added to his earlier opinion, that he thought it most unlikely that Mr Weston sustained a head injury with loss of consciousness or more than fifteen minutes with a period of post traumatic amnesia of more than thirty minutes:

as I feel that a period of unconsciousness of this duration would have been noted in the medical records at the time of his original assessment.

24.     Dr Coffey was apparently not provided with the information that Mr Weston was recorded as being injured on 13 June 1945.  His report assumed that the shrapnel wound to the head occurred at the same time as the gun shot wound to the stomach.  The historian's opinion that there were two separate injuries and that the shrapnel wound to the head occurred on 13 June is significant.   In that context,  Dr Coffey's evidence about the degrees of severity of head injuries and associated loss of consciousness or not, and the duration of post traumatic amnesia supports the hypothesis.  Dr Coffey's evidence was that:

minor head injuries are those in which the period of post traumatic amnesia is measured in minutes eg up to 5 minutes PTA is very mild, up to 60 minutes mild..

Does the hypothesis satisfy the SoP for Alzheimer's disease?

25. It was not in dispute that there was a SoP for Alzheimers Disease determined by the Authority under s 196B(2) of the Act. The applicable SoP is Instrument No. 17 of 2001 (the SoP). Therefore the second step in the analysis set out in Deledio is satisfied.  

26.     The case for the Commission was that the third step in that analysis was not met because the Tribunal could not form the opinion that the hypothesis raised is a reasonable one because it was not consistent with the "template" in the SoP.  It argued that none of the factors which the Authority has determined to be the minimum which must exist, could be related to Mr Weston's service. 

27.     The SoP provides that the factor “that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Alzheimer’s disease with the circumstances of a person’s relevant service” is:

suffering from a head injury at least 10 years or more before the clinical onset of  Alzheimer’s disease.

28.     The Commission did not argue that the 10 year requirement was not met.  The report of Dr Walsh dated July 2005 referred to a two year history of Mr Weston's Alzheimer's Disease, which suggests a date of clinical onset between 2003 and 2005, almost 60 years after the hypothesised injury occurred.  

29.     “Head injury,” as defined in cl 8 of the SOP:

means trauma to the head which results in:

fracture of the skull; or

loss of consciousness for more than 15 minutes, or

post-traumatic amnesia for more than 30 minutes; or

a cerebral laceration or contusion.

30.     The Commission submitted that “shrapnel wound to the head” is not included in the definition of head injury in the SoP and therefore the hypothesis is not consistent with the SoP. In our view “shrapnel wound to the head” may be a trauma to the head.  

31.     As set out earlier, Mr James Weston hypothesised that Mr Weston had suffered either a loss of consciousness for more than 15 minutes or post-traumatic amnesia for more than 30 minutes.  He referred to his own experience and Ms Cornwall's comment as quoted above to support those aspects of the SoP.

32.     This case is analogous to Byrnes v Repatriation Commission.  The severity of the shrapnel wound is not known.  As in Byrnes (at 571), the case has "to be determined by examining whether it was a reasonable hypothesis" that that wound resulted in the period of unconsciousness or post-traumatic amnesia specified on the SoP.

33.     As was stated in Deledio at 97:

If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

We do not consider that it is contrary to proved or known scientific fact or otherwise fanciful that Mr Weston lost consciousness for more than 15 minutes or suffered post-traumatic amnesia for more than 30 minutes after suffering a shrapnel wound to the head. We are therefore satisfied that the hypothesis is reasonable (s 120(3) and s 120A(3) of the Act).

Is the hypothesis disproved beyond reasonable doubt?

34. We did not understand the Commission to argue that, if the hypothesis was reasonable, the Tribunal would be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination, as required by s 120(1) of the Act (which is the fourth step in the Deledio analysis). 

35.     The highest the evidence came on this aspect of the case was that of Dr Coffey which was summarised earlier in this decision.  Importantly, Dr Coffey did not address the possibility that Mr Weston had suffered a shrapnel wound to the head on 13 June and later on a separate occasion, probably 16 June 1945, gunshot wounds to the stomach. His opinion that it was most unlikely that Mr Weston had suffered a loss of consciousness was based on his understanding that Mr Weston was treated shortly after being wounded, when fairly detailed notes about his condition were taken.  Dr Coffey did not say that it was not possible that Mr Weston had suffered a loss of consciousness.  In any event, the  hypothesis proposes a different chronology of events as explained earlier.

36.     Taking into account all the material before us, we are not satisfied beyond reasonable doubt that Mr Weston's Alzheimer's Disease was not war-caused.

CONCLUSION

37.     Mr Weston's application has been successful.  We note that the current claim is for a “closed period”, from 21 April 2005 to 15 August 2007.  Mr Weston’s widow has been receiving a pension since 15 August 2007.   

DECISION

38.     For the reasons set out above, the decision under review is set aside and substituted for that decision is the decision that Mr Weston's Alzheimer's disease as war-caused. The matter is remitted to the Commission for assessment of Mr Weston’s rate of pension.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr J Campbell, Member.

Signed: ………[sgd].….…..

Steven Mulipola, Associate

Date of hearing:  24 April 2008

Date of final submissions:  2 May 2008

Date of decision:  9 September 2008

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Advocacy Section, Department of Veterans’ Affairs