Jones and Repatriation Commission

[2008] AATA 764

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 764

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600825

VETERANS' APPEALS DIVISION		)
Re		BETTY JONES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date29 August 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.............Signed.................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – claim for widow’s pension – veteran died of congestive cardiac failure – veteran had an accepted condition of “insomnia with sleep apnoea” – for death to have been war-caused the condition of sleep apnoea needed to have pre-dated the clinical onset of hypertension – evidence indicates that veteran was suffering from hypertension before sleep apnoea was diagnosed – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) – ss 13, 120, 120B

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Cornelius [2002] FCA 750

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

29 August 2008 Deputy President P E Hack SC    

1.Harold Sydney Jones served in the Royal Australian Air Force between April 1941 and November 1945. Mr Jones died on 4 March 2005. On 28 November 2005 his widow, Mrs Betty Jones, applied to the respondent, the Repatriation Commission, for a widow’s pension. That claim was refused by the Commission on 20 April 2006 and the Commission’s decision was affirmed by the Veterans’ Review Board on 21 June 2006.

2.Mrs Jones now seeks a review of the decision in this Tribunal.

3.By virtue of s 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VEA) 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. It is accepted by Mr Harding, counsel for Mrs Jones, that Mr Jones’ service was not operational service[1] but was eligible war service. The consequence of that concession is that the determination of whether Mr Jones’ death was war-caused is to be undertaken by reference to the standard of reasonable satisfaction[2]. Additionally, that determination is required to be undertaken by reference to the applicable Statement of Principles published by the Repatriation Medical Authority[3].

[1]It is accepted as well that the claim to the contrary in the Statement of Facts and Contentions lodged on behalf of Mrs Jones is wrong.

[2] See s 120(4) of the VEA.

[3] See s 120B of the VEA.

4.The first enquiry in a case such as the present is to determine the “kind of death”[4]. The case for Mrs Jones was put on the basis that the cause of death of Mr Jones was congestive cardiac failure and I am satisfied that this was the case by reference to the death certificate.

[4]        See for example Repatriation Commission v Hancock (2003) 37 AAR 383.

5.It then becomes necessary to determine the relationship between the service of Mr Jones and that condition. To understand the contention advanced by Mr Harding it is necessary to record that the Commission had earlier accepted that Mr Jones had a condition described as “insomnia with sleep apnoea” and that that condition was war-caused. On that basis it was submitted that I ought be reasonably satisfied that sleep apnoea caused Mr Jones’ hypertension which, in turn, lead to the ultimately fatal condition. There is a Statement of Principles for hypertension[5] which defines hypertension as meaning:

“permanently elevated blood pressure, evidenced by:

(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90mmHg; or

(ii)the regular administration of antihypertensive therapy to reduce blood pressure.”

[5]Instrument No 36 of 2003 (as amended by Instrument No 4 of 2004).

6.Clause 5 of the Statement of Principles sets out the factors that must exist before it can be said that, on the balance of probabilities, death from hypertension is connected with the circumstances of a veteran’s relevant service. The factor relied upon here is that in paragraph (l), “suffering from sleep apnoea at the time of the clinical onset of hypertension”. The case for Mrs Jones is that I ought to be satisfied, on the material before me, that her husband suffered from sleep apnoea prior to, and thus at the time of, the onset of hypertension. Mr Kelly, who appeared for the Commission, accepted that, if this question were answered favourably to Mrs Jones, the causative link between hypertension and congestive cardiac failure was accepted by the Commission.

7.I will consider first the question of sleep apnoea. It is not clear from the material before the Tribunal when this condition was accepted as being war-caused. Mrs Jones gave evidence of having been told by her late husband “long before he retired” (which was in 1983 or 1984) that his treating general practitioner was concerned with his sleep problems and wanted him to go away “for a couple of days for tests”. She was unsure whether this was to Townsville or to Brisbane; she was, however, sure that the tests were not to be undertaken in Mt Isa where the couple lived at the time. Mrs Jones was not able to be any more precise in her estimate of when this event took place, nor was she able to say when she first noticed that her late husband had difficulties with sleep. I intend no criticism of Mrs Jones in saying that; the events in question happened a long time ago and it is perfectly understandable that she is unable to recall these matters.

8.Included within the material is a document described as a “Medical Impairment Assessment” of Mr Jones’ insomnia with sleep apnoea undertaken by Dr Brennan O’Dempsey in July 1999. Whilst that document demonstrates a diagnosis at that time there is nothing about it to indicate the duration of the condition. There is some evidence of duration supplied by a claim for sleep apnoea lodged by Mr Jones in December 1994. That document indicates, in the part to be completed by the veteran, that Mr Jones first became aware of the condition in 1990.

9.There is, as well, some material that touches upon the question of hypertension. The first in time is a document described as a “Medical History Sheet”, completed in February 1967 in part by Mr Jones and in part by Dr Keith Archer, a medical practitioner from Mt Isa. The document appears to have been completed in support of claims made by Mr Jones to the then Repatriation Department that conditions described as “stomach condition, eyes condition, blood pressure” were due to war service. There are handwritten notations on the three pages of the documents. I am unable to discern any notation directly relevant to the question of “blood pressure” beyond the recording of a reading of 140/96. The document indicates a referral to Dr R. A. Douglas in Townsville.

10.There is next a report from Dr Previtera, who was acting as locum for Dr Douglas in February 1967 and who saw Mr Jones on 24 February 1967. Within the report Dr Previtera recounted the following relevant history:

“He recently noticed some dyspnoea [laboured or difficult breathing] on bending while doing his welding and was found to have a high blood pressure six weeks ago. He was put on treatment for this and his blood pressure is now better, he has had no treatment for the past four to five days.”

Mr Jones’ blood pressure on examination was 140/90.

11.In July 1967 there is a further Medical History Sheet in connection with a claim on the Repatriation Department for “Stomach and blood pressure”. In that part completed and signed by Mr Jones he noted that the “blood pressure” condition produced “no symptoms” and that he first noticed the condition in 1967. Blood pressure readings by an unidentified medical practitioner were 150/100 recumbent and sitting up.

12.Finally, in June 1985, Dr Previtera again saw Mr Jones He noted a “past history of hypertension for the last four years”. The report, which was to Mr Jones’ general practitioner, continued:

“As you indicated he has hypertension controlled by treatment. He had been on Digoxin for about 18 months with Lasix and Slow K but the indication for this was not clear and he denied any chest pains or dyspnoea.”

Blood pressure recorded on this occasion was 130/80. During the hearing a question arose as to the nature of that medication. With the agreement of the parties Dr Barrie Morley, a Member of the Tribunal and in practice at the time, advised that Digoxin was a medication used to control an irregular heartbeat, that Lasix was a mild anti-hypertensive and diuretic medication and that Slow K was a medication to counter the effects of Lasix. The parties have agreed to my having regard to this information. 

13.Mr Harding submitted that this evidence supported a conclusion that the condition of hypertension first manifested itself in about 1981 i.e. four years prior to his consultation with Dr Previtera in June 1985, and that, on the basis of the evidence of Mrs Jones, I ought conclude that the condition of sleep apnoea pre-dated the clinical onset of hypertension.

14.I am unable to agree. I do not regard either conclusion to be open.

15.It is first necessary to consider what is meant by clinical onset. There are two cases where the expression has been considered – Repatriation Commission v Cornelius[6]  and Lees v Repatriation Commission[7].

[6][2002] FCA 750.

[7] (2002) 125 FCR 331.

16.In Cornelius[8] Branson J referred with evident approval to the remarks of the Tribunal in ReRobertson and Repatriation Commission[9] where it had been said:

“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …”

[8] [2002] FCA 750 at [26].

[9] (1998) 50 ALD 668 at 670, [23].

17.Subsequently in Lees, a Full Court of the Federal Court (Heerey, Moore and Kiefel JJ), having referred to Cornelius, said[10]:

“The purpose of the definition [of the injury or disease] is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from [the injury or disease].”

[10] (2002) 125 FCR at 337, [16].

18.Despite the reference in 1985 to a four year history of hypertension the material demonstrates that Mr Jones’ blood pressure was a concern to him and to his general practitioner as early as 1967. In February of that year he was noted as having received treatment for high blood pressure. His blood pressure readings on two occasions in February 1967 and on a further occasion in July 1967 evidence hypertension in accordance with the Statement of Principles’ definition.

19.On the basis of this evidence I conclude that the clinical onset of hypertension was in or about February 1967.

20.It is thus impossible to conclude that Mr Jones was suffering from sleep apnoea at the time of clinical onset of hypertension. As high as the evidence puts it is that there was some medical concern about his sleeping patterns “long before he retired”. Retirement can be fixed as having occurred around 1983 or 1984. Additionally, Mrs Jones told the Veterans’ Review Board that her late husband was “never a good sleeper”. But these matters could not enable me to conclude that a diagnosis of sleep apnoea could be made, or had been made, at any time prior to 1990. As is apparent from the definition of the condition in the Statement of Principles for sleep apnoea[11], the condition is one that involves an array of clinical consequences of “sleep disordered breathing”. There is no evidence of any of those consequences. At best, there is what may be accepted to be a self-diagnosis of that condition in 1990.

[11]        Instrument No 14 of 2005, paragraph 2(b).

21.It follows that I am not satisfied that Mr Jones was suffering from sleep apnoea at the time of clinical onset of hypertension. Given that that was the only basis upon which it was said that the application could succeed I would affirm the decision under review.  

22.I want, finally, to mention some concerns that I have about the preparation that appears to have been undertaken of the case for Mrs Jones. The Tribunal’s General Practice Direction requires the lodging of a Statement of Facts and Contentions which “must clearly and concisely set out the facts upon which the party relies and the contentions to be drawn from those facts”. The purpose of such a document is to inform the Tribunal and the other party of the facts to be relied upon at the hearing and the way in which the applicant intends to advance the case. Given that the respondent is required to lodge a similar document, attention to the requirements of the Practice Direction will enable the respondent to accept or admit facts where appropriate and identify, in the interests of all concerned, the real issues of fact or law that the Tribunal will ultimately be required to decide.

23.The document lodged on behalf of Mrs Jones in this case[12] does not even remotely answer that description or allow any informed view of the way in which her case was to be put. It commences with what is either an assertion of a conclusion of law or of mixed fact and law, namely that Mr Jones had rendered operational service. Had the author considered, or set out, the facts relied upon for that conclusion it would have been apparent that that conclusion could not be sustained. Brief reference is then made to other facts including that Mr Jones “snored and had trouble sleeping since 1942”. Thereafter it was contended, baldly, that there was clinical onset of sleep apnoea shortly after a head injury in 1942. The shortcomings in the document, insofar as it sought to inform the Commission and the Tribunal of the case, are self-evident.

[12]        Exhibit 2.

24.Curiously, the Statement makes reference to a statement of the applicant contained within the s 37 documents. No such statement was able to be located at the hearing. It indicated that it was not intended to call any witnesses. In fact, at the outset of the hearing it was announced that it was intended to call Mrs Jones who gave evidence by telephone from hospital where she was waiting to go to an operating theatre.

25.I am unaware whether any consideration was ever given to the merits of the case for Mrs Jones. As it seems to me there was never any reasonable prospect of success of the case that was articulated in the Statement of Facts and Contentions. I am concerned about the expenditure of limited legal aid funds where there was no evident consideration given to the way in which the case was to be presented.

26.And I am gravely concerned that the interests of Mrs Jones were not adequately advanced where she was required to give evidence from a hospital bed. No witness, especially a witness of advanced age, can be expected to provide a good account of the factual matters of importance when required to give evidence in these circumstances. The matters that Mrs Jones was asked to turn her mind to in the witness box ought to have been the subject of a considered statement. I am not able to say whether Mrs Jones’ recollection of events could have been better in different circumstances; certainly the note of her evidence at the Veterans’ Review Board seems to suggest that she gave a better account there. My concern is that, through inadequate preparation, she has not given as good an account as might otherwise have been possible.  

27.I am in no position to reach any concluded view on the matters that concern me and do not do so. I propose however to have the District Registrar of the Tribunal refer these remarks to the Chief Executive Officer of Legal Aid Queensland and to the Legal Services Commission to enable those bodies to investigate whether the grant of legal aid has been appropriately incurred and whether the interests of Mrs Jones have been adequately advanced. I should add that I do not intend, in taking those steps, to criticize the conduct of the hearing. My concerns extend only to the preparation for it.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ...................Signed.................................................
  Jacqueline Woods, Associate

Date of Hearing  20 May 2008
Date of last submissions          24 August 2008
Date of Decision  29 August 2008
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Cockburn Legal & Consulting
For the Respondent                  Mr J Kelly, Departmental Advocate