Johnson and Repatriation Commission
[2004] AATA 57
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 57
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/40
VETERANS' APPEALS DIVISION ) Re RITA PEACE JOHNSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date23 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran was caused by his war service – ischaemic heart disease – reasonable hypothesis cannot be established – decision affirmed
Veterans’ Entitlements Act 1986, ss 8, 13, 14, 120
Repatriation Commission v Cooke (1998) 160 ALR 17
Ferriday v Repatriation Commission (1996) 42 ALD 526
Repatriation Commission v Deledio (1998) 83 FCR 82Budworth v Repatriation Commission (2001) FCA 1421
ReCowie and Repatriation Commission [1999] AATA 334
Re Campbell and Repatriation Commission [2001] AATA 559
Re Lewis and Repatriation Commission [2003] AATA 1078
McKenna v Repatriation Commission (1999) 86 FCR 144Re May and Repatriation Commission [2003] AATA 1216
REASONS FOR DECISION
23 January 2004 Mr I R Way, Member 1. This is an application by Rita Johnson for review of a decision of the Repatriation Commission dated 28 July 1997 and affirmed by the Veterans’ Review Board (VRB) on 23 November 1999, which determined that the death of Mrs Johnson’s husband, Herbert Johnson (the veteran), was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§ Exhibit A1 Statement of Rita Johnson dated 23 October 2000
§ Exhibit A2 Statement of Malcolm Johnson dated 16 February 2001
§ Exhibit A3 Statement of Glenda Phillips dated 23 February 2001
§ Exhibit A4 Report of Dr Janis Carter dated 13 June 2002
§ Exhibit R1 Report of Dr Mulholland dated 13 January 2003
3. The applicant was represented by Mr A Harding and the respondent by Mr J Kelly. The applicant gave oral evidence. The applicant’s son, Mr M Johnson, and her daughter, Mrs G Phillips, gave oral evidence. Dr Carter, Psychiatrist, gave evidence by telephone and Dr P Mulholland, Psychiatrist, gave oral evidence.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.
5. The veteran was born on 22 December 1920 and served in the Australian Army from 14 August 1941 to 1 December 1943, including service overseas in Timor in late 1942 and early 1943. As such the whole of his service is operational service.
6. The veteran died on 3 February 1997 at age 76, the cause of death being recorded on his death certificate as coronary occlusion (immediate), with an antecedent cause of coronary arteriosclerosis (3 months). At the time of his death the veteran had no accepted service related disabilities and no non-service disabilities, apart from death, the subject of this review.
Legislative Framework
7. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 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:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
8. Section 120 describes the relevant standard of proof:
“(1)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.
…
(3)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)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
9. Other relevant provisions of the Act in respect of a claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
10. Section 120A provides that the reasonableness of the hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP):
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
11. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
12. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
13. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless a relevant SoP upholds the hypothesis.
14. The applicant has raised the hypothesis that the veteran suffered death from ischaemic heart disease which was contributed to by the veteran’s war-caused panic disorder and that therefore the veteran’s death was contributed to by his service.
15. It is common ground between the parties and the Tribunal accepts that the relevant Statement of Principles (SoPs) in this matter are:
§ Instrument No 53 of 2003 – Ischaemic Heart Disease
§ Instrument No 9 of 1999 (as amended by Instrument No 58 of 1999) – Panic Disorder
16. Instrument No 53 of 2003 relevantly provides as follows:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b)For the purposes of this Statement of Principles, ‘ischaemic heart disease’ means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
(c)Ischaemic heart disease attracts an ICD-10-AM code in the range I20 to I25.
(d)In the application of this Statement of Principles, the definition of ‘ischaemic heart disease’ is that given at para 2(b) above.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
…
(n)for angina, acute myocardial infarction or sudden death from ischaemic heart disease only, suffering from panic disorder or phobic anxiety with panic attack, within the 12 months immediately before the clinical onset of ischaemic heart disease;
Other definitions
8. For the purposes of this Statement of Principles:
‘death from ischaemic heart disease’ in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘panic attack’ means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1) palpitations, pounding heart, or accelerated heart rate; or
(2) sweating; or
(3) trembling or shaking; or
(4) sensations of shortness of breath or smothering; or
(5) feeling of choking; or
(6) chest pain or discomfort; or
(7) nausea or abdominal distress; or
(8) feeling dizzy, unsteady, light headed or faint; or
(9)derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or
(10) fear of losing control or going crazy; or
(11) fear of dying; or
(12) paresthesias (numbness or tingling sensations); or
(13) chills or hot flushes;
‘sudden death’ means death within one hour of onset of acute symptoms;
‘terminal event’ means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.”
.
17. There is no dispute between the parties that the veteran died of a sudden heart attack and in view of this and on the material before it the Tribunal so finds.
18. Instrument No 9 of 1999 (as amended by Instrument No 58 of 1999) relevantly provides:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about panic disorder and death from panic disorder.
(b)For the purposes of this Statement of Principles, “panic disorder”, means a psychiatric condition characterised by the following diagnostic criteria:
(A) the person has experienced both:
(1) recurrent unexpected panic attacks; and
(2)(i) has experienced at least four panic attacks in four weeks, or
(ii)in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:
(a) persistent concern about having additional panic attacks; or
(b) worry about the implications of the panic attack or its consequences; or
(c) a significant change in behaviour related to the panic attacks; where
(B)the panic attacks can occur in the presence or absence of agoraphobia; and
(C)the panic attacks are not due to the direct physiological effects of a substance or a general medical condition; and
(D)the panic attacks are not better accounted for by another mental disorder, such as social phobia, specific phobia, obsessive-compulsive disorder, post traumatic stress disorder, or separation anxiety disorder,
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that panic disorder and death from panic disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting panic disorder or death from panic disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder; or …
Other definitions
8. For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
‘panic attack’ means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1) palpitations, pounding heart, or accelerated heart rate; or
(2) sweating; or
(3) trembling or shaking; or
(4) sensations of shortness of breath or smothering; or
(5) feeling of choking; or
(6) chest pain or discomfort; or
(7) nausea or abdominal distress; or
(8) feeling dizzy, unsteady, light headed or faint; or
(9)derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or
(10) fear of losing control or going crazy; or
(11) fear of dying; or
(12) paresthesias (numbness or tingling sensations); or
(13) chills or hot flushes;”
19. The Tribunal is mindful that the respondent has accepted that the veteran, during his service in World War II as a Commando in Timor, suffered a severe stressor within the meaning of that term in the relevant SoPs. In view of this and on the material before it the Tribunal so finds.
20. The issue then in this matter is whether there is a causal link between the veteran’s war service and his death.
Applicant’s Evidence
21. The applicant provided a written statement dated 23 October 2000 (Exhibit A1) in which she stated:
“I met my husband in approximately September 1941. He was already in the Army at that stage and was due to go to the Middle East before that fell through. He volunteered for the commandos and was sent to Timor. As I understand he had a very hard time during his service in Timor and had to live off the land for much of this time.
…
From the time of my husband’s discharge I noticed he was a very nervous person. He was very fiddly and constantly on edge and these traits became more evident as he got older.
My husband did not speak a great deal about the war or as to why he had this nervous nature about him. He did speak a lot more though to my son Malcolm in his later years.”
22. In her oral evidence the applicant told the Tribunal that she saw the veteran once a fortnight mainly at church or church social functions on a number of occasions when he was on leave from the Army and after she first met him and prior to his departure in September 1942 to Timor. She said the veteran seemed to be a very calm person when she first met him, however, when he returned from Timor in January 1943 he was not the same calm person, seemed nervy, could never sit quietly, was constantly fiddling and had to be occupied. She said she never knew her husband to go straight to sleep on going to bed and that he was jumpy from when he returned from Timor. She said they had become engaged in June 1943 on his return from Timor and were married later in 1943 during a period when the veteran was granted compassionate leave to tend to his father’s farm (from May 1943 to November 1943).
23. The Tribunal notes that the veteran was discharged on 1 December 1943 to enable him to take up employment in an essential industry or occupation, namely running his father’s farm.
24. The applicant was taken to Dr Carter’s report (Exhibit A4) where Dr Carter recorded the applicant telling her of the veteran’s symptoms with respect to panic attacks. She said that apart from not recollecting telling Dr Carter that her husband had a fear of losing control or going crazy, she had told Dr Carter about the other symptoms recorded. She said that from the early days of their marriage she could recollect the veteran experiencing at least four of the recorded symptoms at one time and that this happened at least four times in four weeks. However, it was the applicant’s evidence the symptoms generally got worse as he got older. This applying in particular to his suffering chills and hot flushes. She also clarified the symptoms of feeling dizzy, unsteady, light headed and faint as occurring occasionally and a little after two years after he returned from Timor.
25. In cross-examination the applicant said the veteran always had paraesthesia and tingling sensations in his extremities, was always trembling or shaking, always had a funny little cough which was quite nervous and anxious. She was unable to recall if the veteran had palpitations and a pounding heart at the same time as the other symptoms. However, the veteran had told her of these symptoms in the early days and that his symptoms of chest pain and discomfort occurred later but not really recently.
26. Apart from re-enforcing the veteran’s problem with coughing, the applicant was unable to clarify whether the veteran, when experiencing four of the above symptoms, experienced a discrete period of intense fear or discomfort with the symptoms developing abruptly and peaking within ten minutes. Nor could she recall whether the symptoms came “out of the blue” or because of stressors or something else.
27. The Tribunal is mindful that the veteran and the applicant had trouble with the veteran’s father and mother in the first few months after the veteran’s discharge, to the point where he contemplated leaving the farm and going to live with the applicant’s family. However, this situation was resolved when the veteran’s father and mother decided to retire and live in Warwick. The veteran’s dairy farm activities were initially successful. In 1948/9 the couple started a Youth Hostel with managers appointed to run the farm. After some three years, with problems both in farm management and hostel finances, the veteran and the applicant closed the hostel and returned to the dairy farm.
28. Mrs G Phillips, the applicant’s daughter, provided a written statement dated 23 February 2001 (Exhibit A3) and gave oral evidence. In her written statement Mrs Phillips said:
“2. I recall that my father was always a very nervous person. He was also quite restless and fidgety and could not sit still for very long. I recall that my mother mentioned that he always twitched in his sleep and often had nightmares.
3. My father often hid things from my mother. I remember that he would sometimes come into my room and talk to me and cry. This was particularly the case when the family was suffering financial difficulties. My father would get quite upset and would often confide in me.
4. My father never stuck at anything for very long. I believe this is part of the reason why the family had so many financial difficulties. My father was quite impulsive. However, he did like to make plans. Although these plans never turned out the way he had hoped. It was after these plans failed that he would often crumble down into an emotional heap again. It was at these times that my father would confide in me. He struggled in this way all of his life.
5. I recall that my father was always very outgoing and often seemed larger than life. I do realise however that this was probably a cover up. Ordinary people were likely to have thought that he was a very strong successful business man. However, to truly know my father you would realise that this was not the case.
6. My father did not talk about the war except to relate amusing anecdotes. I remember, however, that my father refused to march in Anzac Day marches up until about 1988. After this time I believe that he started to feel some pride in having served his country and he marched in numerous Anzac Day marches after this time.”
29. The Tribunal notes that Mrs Phillips was born in 1956.
30. Mr M Johnson, the applicant’s son, provided a written report dated 16 February 2001 (Exhibit A2) and gave oral evidence. In his written statement Mr Johnson said:
“2. I recall that my father was always a very outgoing man however I always felt that this somewhat of a facade. Underneath my father always seemed rather nervous and I remember noticing that he had a twitchy eye.
3. My father would never speak about his experiences during his services at all. He liked to keep everything to himself. I do recall however that he was unable to keep his mind on any task. I feel that he may have felt like he was a failure because of this. This was despite the fact that my father was the biggest do gooder I have ever met. As was stated at his funeral my father was a befriender of awkward people. I remember that he would often bring disadvantaged persons home and give them work to do around our property.
4. I also recall that his heart disease was quite worrying to him and added to his nervousness and stress.”
Medical Evidence
31. Dr J Carter, Psychiatrist, provided a written report dated 13 June 2002 (Exhibit A4) and gave evidence by telephone.
32. In her written report Dr Carter stated that the veteran had eight of the thirteen requirements for panic attack and that these occurred in the early days on his return from Timor. She opined that the veteran also met the requirements of paragraph 2(b) as set out in Instrument No 9 of 1999, in that he had recurrent unexpected panic attacks and experienced at least four panic attacks over a four week period from the early days until the end of his life.
33. It was Dr Carter’s opinion that the veteran also suffered from symptoms of PTSD.
34. In her summary Dr Carter concluded:
“It would seem certain that Herbert Johnson did have a severe stressor, and came within an ace of being killed by the Japanese. He was a very religious man, and felt that God had protected him, and that it was divine providence that he was saved. He did not deteriorate into drinking alcohol to excess.. As well as his post traumatic stress disorder, it seems as though he did have the separate condition of panic disorder, to the severity of having a separate diagnosis. I don’t think there is any doubt that this veteran really did see active service, and was in the front line, and saw action of a type to produce the stressors for both post traumatic stress disorder and panic disorder.”
35. In her evidence by telephone, Dr Carter said that she had had four interviews with the applicant and included the applicant’s son and daughter in some of these interviews. She confirmed her opinion that the veteran’s panic disorder had a clinical onset soon after his Timor service and within two years of the stressors he suffered during that service. She expressed the view that on the material given to her by the applicant and her children that the veteran had discreet periods of discomfort which came on abruptly and reached a peak within ten minutes. The Tribunal notes that when this matter was put to the applicant during the hearing the applicant was not able to elaborate on the veteran’s intense discomfort other than to identify his nervous cough and that Dr Carter also referred to this aspect of the veteran’s claimed symptoms in forming her view about the veteran having sudden onsets of intense discomfort.
36. When asked to comment on Dr Mulholland’s opinion that the veteran may have suffered from generalised anxiety disorder, Dr Carter said she did not agree with this diagnosis in that she considered the veteran’s anxiety to be more specific and that the veteran did suffer from panic disorder as well as PTSD.
37. When taken to the inconsistencies between her recording of panic attack symptoms and the applicant’s evidence, Dr Carter said that she had recorded what she had been told.
38. The Tribunal notes, as stated above, that the applicant said she had not told Dr Carter that her husband had a fear of losing control or going crazy and that the veteran’s chills and hot flushes had come on later in life rather than soon after his return from Timor.
39. Dr Carter also expressed the opinion that her recording of chest pain and discomfort was not related to the applicant’s ischaemic heart disease, in that the veteran had had discomfort throughout life and pain from ischaemic heart disease was more a feeling of tightness. The Tribunal notes that in her evidence at the hearing, the applicant said that the veteran’s chest pain and discomfort had come on later in life “but not really recently”.
40. Dr Carter highlighted the difficulty in trying to arrive at posthumous diagnoses and she said she had to rely on clinical intuition and the general sense she obtained in taking histories from the applicant and her children.
41. The Tribunal notes there are no medical records which are of assistance in this matter, nor do the limited writings of the veteran (attached to Exhibit A3) go to the question of the veteran’s symptoms.
42. Dr P Mulholland, Psychiatrist, interviewed the applicant in the company of her daughter on 25 Novebmer 2002 and provided a written report dated 13 January 2003 (Exhibit R1) and gave oral evidence. In his written report Dr Mulholland stated:
“13.1 I did not obtain a history that was consistent with the late Mr Herbert Johnson suffering from panic disorder.
13.2 I did not obtain a history that was consistent with the late Mr Herbert Johnson having a post traumatic stress disorder.
13.3 There is a suggestion from the history that the late veteran may have suffered from a chronic anxiety condition namely generalised anxiety disorder.
13.4 In summary to the best of my knowledge there is not enough evidence to conclude on the balance that Mr Herbert Johnson had suffered from panic disorder but there is a possibility that he may have suffered from chronic generalised anxiety disorder.
13.5 Given the circumstances it is a speculative possibility that the possible chronic anxiety condition was contributed to or dates from his service in Timor as there is no history as to what he was like prior to going to Timor. If he had a tendency towards anxiety then it would be likely that his service in Timor would have aggravated same.”
43. In cross-examination, Dr Mulholland agreed that posthumous diagnoses, such as in this case, were mainly reliant on the history taken from the veteran’s wife and children and that in such circumstances two different psychiatrists could hold reasonably different opinions.
44. The Tribunal notes that Dr Carter’s approach to arriving at a diagnosis included going through with the applicant the symptoms as listed in the relevant SoP, whereas Dr Mulholland did not, his approach being to rely on answers to questions about the veteran and the symptoms interviewees observed the veteran to display.
45. The Tribunal notes that Dr de Wytt, Neurologist, records in November 1992 that the veteran had a fifteen year history of intermittent twitching of his left eyelid, this being maximal during periods of stress. A CAT scan taken in December 1992 showed no abnormality. The Tribunal also notes that Dr Lee, General Practitioner, first saw the veteran in November 1996 for hernia repair and in the course of treating the veteran he took a history of the veteran recently suffering chest pain and she determined that the veteran had an abnormal reading ECG consistent with ischaemia and that the Echo was consistent with miocardial ischaemia. Dr Lee opined that her investigations were highly suggestive of the veteran suffering coronary artery disease.
Submissions
46. It was submitted for the respondent that for the veteran’s death to be war-caused, the Tribunal must be reasonably satisfied that the veteran suffered from panic disorder. If the Tribunal was so satisfied, the respondent, as has already been indicated, accepted that the veteran’s panic disorder can be causally linked to severe stressors that the veteran suffered during his operational service; and further to this the respondent would accept that the veteran’s death from ischaemic heart disease can be causally linked to his panic disorder and hence to his war service.
47. However, it was submitted that on the applicant’s evidence and the evidence of her children, the Tribunal could not be reasonably satisfied that the veteran did, in fact, suffer from panic disorder in the two years after his service in Timor and therefore there was no causal nexus between his service and his ischaemic heart disease.
48. The applicant submitted that the respondent was not correct in contending that the standard of proof to be followed in determining whether the veteran suffered from panic disorder is that of reasonable satisfaction.
49. In so submitting the applicant accepted that following Repatriation Commission v Cooke (1998) 160 ALR 17 and Ferriday v Repatriation Commission (1996) 42 ALD 526, the correct standard of proof in determining the veteran’s death was that of reasonable satisfaction.
50. However, it was submitted that once the Tribunal had determined the cause of death, the steps in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96/97 must be followed.
51. In this case it was submitted the veteran suffered death from ischaemic heart disease, that a relevant SoP with respect to death from ischaemic heart disease existed and that the material before the Tribunal clearly fitted the template of the SoP, namely that the veteran suffered from war-caused panic disorder at least twelve months before his death.
52. It was submitted that the Tribunal would be satisfied that a reasonable hypothesis had been raised by the applicant. It was further submitted that the Tribunal, on all of the material before it, could not be satisfied, beyond reasonable doubt that there is no sufficient ground for determining the death of a veteran was war-caused.
53. In effect, the applicant submitted that the Tribunal’s task is to determine whether the veteran’s death was war-caused and in so doing all of the matters connecting the death with service (in this case panic disorder) should be subject to the reverse standard of beyond reasonable doubt.
54. In making this submission the applicant referred the Tribunal to Budworth v Repatriation Commission (2001) FCA 1421, Re Cowie and Repatriation Commission [1999] AATA 334, Re Campbell and Repatriation Commission [2001] AATA 559 and Re Lewis and Repatriation Commission [2003] AATA 1078.
Consideration
55. This matter is contested, in the first instance, on the correct approach to be taken in considering the connection between the veteran’s death and his war-service in Timor.
56. In this case the hypothesis put forward by the applicant is that the veteran suffered death from ischaemic heart disease and that the applicant suffered war-caused panic disorder thereby causally linking his death with his service.
57. As the Full Federal Court determined in McKenna v Repatriation Commission (1999) 86 FCR 144, a hypothesis connecting the veteran’s death with the circumstances of his war service can contain a linking sub-hypothesis, the whole seen as a complex hypothesis with each element being no stronger than each of its elements or parts. Furthermore each element must be upheld by a relevant SoP for the hypothesis as a whole to be a reasonable hypothesis.
58. The Tribunal is of the view that in this case there is a linking sub-hypothesis, namely that the veteran suffered panic disorder as a result of his war-service in Timor, and that this sub-hypothesis must be considered within the context of the steps as set out in Deledio (supra). Furthermore, the Tribunal is of the view that any such consideration requires the Tribunal in the first instance to be reasonably satisfied that the veteran suffered from panic disorder. Such an approach is consistent with what the Full Court said in Cooke (supra).
59. Accepting that consideration of the applicant’s claimed condition of panic disorder is, in effect, a sub-hypothesis of the overall hypothesis, and accepting that the purpose of SoPs is to regulate the reasonability of the medical and scientific components of a hypothesis, the Tribunal is of the view that the diagnosis of each medical condition, in this case the cause of death and panic disorder must be considered within the same standard of proof namely that of the reasonable satisfaction.
60. In arriving at this view the Tribunal has carefully considered the applicant’s submissions in respect of Cowie and Campbell (supra) and in so doing has considered the approach taken by Senior Member McCabe in Re May and Repatriation Commission [2003] AATA 1216. In that decision the Tribunal stated:
“Mr Harding, for the applicant, agreed that where an applicant seeks compensation in respect of an injury or disease as opposed to a death, the diagnosis must be decided on the balance of probabilities. That much seems clear from the decision of the Federal Court in Cooke v Repatriation Commission (1998) 160 ALR 17; see also Budworth v Repatriation Commission [2001] FCA 1421 at para 15. But Mr Harding said the position was different where the question is whether the veteran’s death is war-caused. In death cases, the fact of the veteran’s death is presumably beyond doubt. What remains to be determined is whether death was connected to the veteran’s war service. That question is decided on the reverse criminal standard provided for in s 120(1), Mr Harding explained.
Mr Harding referred to two decisions of the Tribunal: Re Cowie and Repatriation Commission [1999] AATA 334 and Re Campbell and Repatriation Commission [2001] AATA 559. Those decisions appear to support Mrs May’s claim and would result in an applicant for a widow’s pension being treated more favourably than an applicant for a disability pension. I note that in both of these cases, the Tribunal was comprised of three members including Deputy President Forgie. It follows that the decisions necessarily carry considerable weight.
The respondent relies on Cooke. Mr Smith also referred me to the Tribunal’s decision in Re Turner and Repatriation Commission [2002] AATA 799. Senior Member Sassella rejected an argument in similar terms to that pressed by Mr Harding. I note he did not refer to Cowie or Campbell in the course of his reasons, although those cases were decided prior to his decision in Turner. Senior Member Sassella analysed Cooke and Benjamin v Repatriation Commission (2001) 34 AAR 270. He noted the court in Cooke did not differentiate in its reasons between death and disease when it concluded that a diagnosis had to be made out on the balance of probabilities.
With respect, I prefer the reasoning in Turner. If the Tribunal is to identify an appropriate statement of principles as required in cases like Deledio v Repatriation Commission (1998) 49 ALD 193, it must settle on a diagnosis. The same need arises whether the claim is for a pension arising out of a disability or a death. There is no reason to suppose the decision in Cooke intended that the standard of proof applicable to different sorts of claims should differ, given the purpose of the inquiry is essentially the same.”
61. With respect, the Tribunal agrees with the approach taken by Senior Member McCabe.
62. For the reasons given above the Tribunal does not accept the applicant’s submission that once there is a cause of death established, then the consideration of the diagnosis of any other medical condition leading to consideration of a sub-hypothesis is to be undertaken on a standard of proof of beyond reasonable doubt. The Tribunal, in this case, accepts the respondent’s position that the crucial question before the Tribunal is whether the veteran suffered from panic disorder and that the Tribunal must, at the outset, be reasonably satisfied that the veteran did in fact suffer from panic disorder for the hypothesis to be reasonable.
63. Turning then to consideration of the veteran’s psychiatric condition.
64. As is often the case in such matters there is conflicting medical opinion before the Tribunal. Dr J Carter, Psychiatrist, is of the view that the veteran suffered from PTSD and from panic disorder. On the other hand Dr Mulholland, Psychiatrist, is of the opinion that there is not enough evidence to conclude, on the balance, that the veteran suffered from panic disorder and that there is a possibility that he may have suffered from generalised anxiety disorder.
65. Dr Mulholland also stated that he did not obtain a history that is consistent with the veteran having PTSD.
66. The Tribunal is mindful that the applicant made no submissions in respect of PTSD being of relevance to the applicant’s case and that PTSD is not a factor contained within the SoP for ischaemic heart disease.
67. In considering the competing medical opinions the Tribunal has carefully considered the evidence of the applicant and the applicant’s children and has taken into account the difficulty of arriving at a posthumous diagnosis, particularly when the lapse of time has shrouded recollections and when there are few, if any, relevant medical records.
68. The Tribunal is also mindful that the condition of “panic attack” and “panic disorder” are defined in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that the relevant criteria in respect of these conditions are set out in Instrument No 9 of 1999.
69. After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied, on balance, that the veteran did not suffer from panic attacks within the meaning of that term as defined in (DSM-IV). In arriving at this view, the Tribunal, while accepting that the veteran probably suffered from at least three and possibly four of the required symptoms concurrently, is not satisfied that the veteran experienced a discreet period of intense fear or discomfort at that time nor is the Tribunal satisfied that the concurrent symptoms developed abruptly and reached a peak within ten minutes.
70. The Tribunal prefers the opinion of Dr Mulholland and is reasonably satisfied that the veteran suffered from generalised anxiety disorder.
71. It follows from this finding that the linking sub-hypothesis is not a reasonable hypothesis and therefore there is not a reasonable hypothesis linking the veteran’s death from ischaemic heart disease to his war service. As such the applicant’s claim cannot succeed.
72. The Tribunal affirms the decision under review.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 25 November 2003
Date of Decision 23 January 2004Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
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