JUNE L’ESTRANGE and REPATRIATION COMMISSION
[2010] AATA 150
•1 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2008/1515
VETERANS’ APPEALS DIVISION ) Re JUNE L’ESTRANGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr T Austin AM, Member
Date01/03/2010
PlaceSydney
Decision The decision under review is SET ASIDE and substituted with the decision that the veteran’s death was war-caused, and that the Commonwealth is required to pay pension to the Applicant. ....................[SGD}..........................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that the veteran’s death was war-caused – consideration of Statement of Principles – Reasonable hypothesis - the Tribunal decides that the decision under review is set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Statement of Principles – Instrument No of concerning
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Fitzgerald v Penn (1954) 91 CLR 268
Fogarty v Repatriation Commission (2003) 37 AAR 363
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission [1999] FCA 323
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
Ms N Isenberg, Senior Member Dr T Austin AM, Member 1. The decision under review is the decision of the Repatriation Commission dated 12 May 2006, as affirmed by the Veterans’ Review Board (the VRB) on 8 August 2006. That decision refused the claim that Mr L’Estrange‘s death was service related.
ISSUE BEFORE THE TRIBUNAL
2. The issue to be considered by the Tribunal is whether the veteran’s death was war-caused.
BACKGROUND
3. Mr L’Estrange first enlisted in the Australian Army on 5 October 1940 and served until 31 May 1946. He served on large barge companies or small ships companies, in the South Pacific.
4. The whole of that service was operational service as defined in section 6A of the Veterans’ Entitlements Act 1986 (the VE Act).
LEGISLATIVE BACKGROUND
5. Section 8 of the VE Act provides for when an injury or disease is taken to be war-caused:
War-caused death
(1)Subject to this section and section 9A, 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;
…
(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;
…
6. Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow.
7. As the veteran had operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3). These subsections stipulate that a veteran’s death was war‑caused unless one is satisfied beyond reasonable doubt that there is no sufficient ground to make that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect the veteran’s death with his service.
8. The Repatriation Medical Authority (RMA) was established under section 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (SoP) (s 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section s 196B(14). Relevantly, therefore: a factor causing an injury is “related to service” rendered by a person if it is a result of an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
THE EVIDENCE
9. Evidence was given by the Applicant and statements were provided by her children, Hume L’Estrange, Dinah Moran and Catherine O’Neill. An Historian’s Report was provided by Mr O’Keefe. Medical reports were provided by consultant psychiatrists Drs Dinnen and Lewin, who also gave evidence. A medical report was provided by Professor O’Rourke, cardiologist.
CONSIDERATION
10. There was no dispute that the “kind of death” suffered by the veteran was from ischaemic heart disease: see Repatriation Commission v. Hancock [2003] FCA 711.
11. Where a SoP exists, we must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
1The 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.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).
3.If an [sic] SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). 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.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
12. The Applicant’s submission proffered a chain of causation: that Mr L’Estrange’s ischaemic heart disease, which resulted in his death, was as a result of an anxiety condition which was related to his service. Where a chain of causation is relied upon, each condition in that chain must be considered before proceeding further: McKenna v Repatriation Commission [1999] FCA 323.
13. The current Statement of Principles relevant to the hypothesis are:
·Statement of Principles No 89 of 2007 as amended on 1 July 2009 by No 43 of 2009 concerning ischaemic heart disease
·Statement of Principles No 101 of 2007 concerning anxiety disorder.
·Statement of Principles No 5 of 2008 concerning post traumatic stress disorder.
14. In relation to ischaemic heart disease, the Tribunal is obliged to consider the claim in the context of the current SoP unless the SoP at the date of the decision under review is more favourable: Repatriation Commission v Gorton [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108.
15. Under clause 5 of the ischaemic heart disease SoP, at least one of the factors set out in clause 6 must be related to the veteran’s relevant service (being in this case, operational service).
16. The Applicant’s case relies on factor 6(v)(iv) SoP No. 89 of 2007 as amended by 43 of 2009 which provides as follows:
having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease;
Where:
‘a clinically significant anxiety spectrum disorder is defined as:
(a) …;
(b) generalised anxiety disorder;
(c) …;
(d) …;
(e) posttraumatic stress disorder; or
(f) anxiety disorder not otherwise specified,that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
17. Only after it is determined that a veteran suffered from a particular condition does the question arise as to whether the particular condition was war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. The issue whether a disease exists is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307.
The sub-hypothesis in relation to anxiety disorder
18. The Applicant’s submission in relation to anxiety disorder was two-fold: that the veteran suffered either a generalised anxiety disorder; or an anxiety disorder not otherwise specified. Both are to be considered under the above SoP in relation to anxiety disorder. Each is separately defined in the SoPs, with generalised anxiety disorder requiring more rigorous diagnostic criteria (based on DSM-IV).
19. Whether a veteran is suffering from a disease, and the diagnosis of that disease, are to be determined to the Tribunal’s reasonable satisfaction; that is, in accordance with s 120(4) of the VE Act: Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200.
20. There was clear evidence that in 1947 Mr L’Estrange attended a Repatriation Commission doctor complaining of irritability and emotional instability. He was referred to a psychiatrist, Dr Page, who diagnosed “a mild degree of anxiety state [sic]” and prescribed a mixture of bromide luminol and belladonna to be taken three times daily.
21. Mrs L’Estrange gave evidence that she met her husband in 1950 and married him the following year. From the outset her husband was a “keyed up” person and was unable to relax, other than when they would go away on holidays. He was always busy, engaging in a variety of community activities. She described him to Dr Dinnen as being “highly strung.” The veteran’s son described his father as “never being at peace with himself.”
22. Mrs L’Estrange said that throughout their marriage her husband had ongoing indigestion which was exacerbated by spicy food. He self-medicated with Mylanta and Quick-Eze, which he took with some regularity. The veteran’s daughters wrote of his “indigestion” and his use of antacids. Mrs L’Estrange told Professor O’Rourke that her husband had consulted his GP about the indigestion, though in evidence she could not recall if he had ever been prescribed medication for the condition.
23. Dr Dinnen observed that Mr L’Estrange had served 336 days outside Australia. He noted that Mr L’Estrange had reported as early as January 1947 – after discharge in May 1946 – with symptoms including irritability and emotional instability, which had been present for three to four months. He considered that it was highly likely that Mr L’Estrange suffered an anxiety condition due to service. He found the report of Dr Page (from 1947) to be “convincing” of the presence of a clinically significant anxiety disorder. He thought that contemporary diagnosis – some 60 years later – would have classified the condition as post traumatic stress disorder. In 1947 patients were diagnosed according to the clinical features they presented. The relevance of traumatic service experience was not as well understood as it is today. Dr Dinnen found Mrs L’Estrange’s description of the veteran’s emotional state through the years to be very convincing with regard to diagnosis of an anxiety disorder.
24. In his evidence, Dr Dinnen described that the medication combination and dosage prescribed by Dr Page suggested Mr L’Estrange’s condition was more than just minor anxiety. He said that anxiety can produce a range of somatic effects such as gastrological problems including “nervous dyspepsia”, such as Mr L’Estrange had suffered most of his married life. The condition was not explained medically and he agreed with Dr Lewin’s description of it as “nervous dyspepsia.”
25. In his report, Dr Lewin wrote:
Some ongoing, somatic concerns (“nervous dyspepsia”) may have been present on a long-term basis. Intermittent anxiety at times of great demand in an obsessional individual may or may not signify a diagnosable psychiatric condition. It is possible that these matters represent a transient pattern of anxiety below the threshold for specific diagnosis.
26. However in his evidence he said that there was reasonably good evidence of a chronic anxiety condition because of the information provided about the veteran’s “nervous dyspepsia.” He observed that while the public considers “nervous dyspepsia” to be a gastrological problem, doctors recognise it as a chronic anxiety disorder.
27. From the 1947 psychiatrist’s report we accept that at that time the veteran suffered an anxiety condition. Few details accompany the Repatriation Commission psychiatrist’s notes and diagnosis. We acknowledge the relative lack of sophistication in veterans’ psychiatry of the time. On the basis of Mrs L’Estrange’s evidence and the statements of the veteran’s children, we accept that Mr L’Estrange had ongoing symptoms of “nervous dyspepsia” which, from the evidence of both Drs Dinnen and Lewin, we accept to have been a manifestation of his ongoing anxiety.
28. Because neither psychiatrist had the opportunity to examine the veteran, the scant nature of the records from 1947, and the complete absence of GP records, we prefer, on the balance of probabilities, the diagnosis of the veteran’s condition is “anxiety disorder not otherwise specified.”
29. Being reasonably satisfied as to diagnosis we turned to consider the Deledio steps in relation to the condition.
Steps 1 and 2: is there a hypothesis and is there a SoP?
30. The hypothesis is that Mr L’Estrange experienced stressors in the course of his service which resulted in him suffering anxiety, and that that condition is therefore war-caused. The relevant factors are:
6(a)(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
6(a)(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or …
a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)…
(c)…
and
a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)…
(d)…
(e)being an eyewitness to or participating in, the clearance of critically injured casualties; …
Step 3: does the hypothesis conform to the template in the SoP?
31. This step entails ascertaining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. It requires considering all of the material before the Tribunal. No findings of fact are determined at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
32. The Tribunal must consider all of the material before it, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
33. A reasonable hypothesis involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
34. The question before the Tribunal at this stage is therefore: is there material pointing to each element of either factor? Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material. Every essential element of the factor must be pointed to by that material.
35. As to clinical onset, there was clearly material pointing to the clinical onset of anxiety in 1947.
36. As to whether Mr L’Estrange experienced a category 1A stressor, we observe that the historian’s report stated that there were cyclones in March 1944 and April 1945. Concerning the cyclone of April 1945, the historian concluded that Mr L’Estrange, serving on landing barges at that time, “would very likely have encountered cyclonic conditions during the voyage [en route from Townsville to Torokina].” Mrs L’Estrange gave evidence that she heard her husband discussing the cyclone with her father, who co-incidentally had also been caught in the cyclone in which lives were lost.
37. Furthermore, the historian recorded that there was some possibility that Mr L’Estrange was involved in the landings of Australian troops against Japanese forces in the northern part of Bougainville in June 1945; and the subsequent evacuation of these troops. The evacuation was described as “very difficult and dangerous”; with five members of Mr L’Estrange’s company being killed and seven wounded.
38. We consider that the evidence in relation to the cyclones and the evacuation of Bougainville both point to Mr L’Estrange experiencing a life-threatening event; that is, Mr L’Estrange experienced a category 1A stressor.
39. The Tribunal has come to the view – without making a finding of fact – that every essential element of the hypothesis is pointed to by the material before it. A reasonable hypothesis, therefore, is raised. It was not necessary to consider if Mr L’Estrange has suffered a category 1B stressor.
Step 4: can We be satisfied beyond reasonable doubt that the veteran’s anxiety disorder was not war caused?
40. This step involves making findings of fact from the material before the Tribunal. Section 120(1) of the VE Act provides that the condition will be war-caused unless one is satisfied beyond reasonable doubt that there are no sufficient grounds for determining as such. In examining this question, it should be noted that there is no onus of proof: s 120(6) of the VE Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
41. We observe the proximity of Mr L’Estrange’s first seeking treatment for anxiety to his service, and that Dr Dinnen considered that significant in itself. There was no evidence of Mr L’Estrange having any other precipitating experiences which may have given rise to his condition. Through the years he experienced the stresses of farm life, but from Mr L’Estrange’s account, coped reasonably well.
42. In our view, no other facts which are inconsistent with the hypothesis based on Mr L’Estrange having experienced life-threatening cyclones, and the devastating evacuation at Bougainville, have been proved beyond reasonable doubt.
43. We are therefore satisfied that the veteran’s anxiety disorder was war-caused.
The remainder of the main hypothesis
44. Having found that Mr L’Estrange suffered war-caused anxiety disorder, we turned to consider the remainder of the main hypothesis; namely whether the anxiety disorder was one which was “clinically significant” as defined.
45. Because the definition forms part of the template for the relevant factor we applied the Deledio steps.
46. Mrs L’Estrange said her husband saw a doctor infrequently. As no medical evidence from his GP was available, it was impossible to confirm – one way or the other - if this was the case. In any event, we observe that the definition does not actually require regular visits to a doctor.
47. Mrs L’Estrange’s evidence was: that for most of their married life her husband treated his “nervous dyspepsia” with Mylanta and Quick-Eze, which he took with some regularity. We considered this as material, pointing to Mr L’Estrange having an anxiety condition which warranted ongoing management.
48. As to whether one can be satisfied beyond reasonable doubt that the veteran’s anxiety disorder was not war-caused; we considered the evidence in relation to the condition in the years after its diagnosis in 1947. Dr Dinnen observed that it was common for veterans not to seek formal follow-up treatment after initial diagnosis. Dr Dinnen even considered it may have been to Mr L’Estrange’s advantage that he did not in fact seek psychological treatment, because such treatment can sometimes be counter-productive. He was of the view that the decision not to seek treatment was a coping strategy in itself. As to whether Mr L’Estrange required treatment, Dr Dinnen observed that such a condition can fluctuate, and although supportive treatment may have helped it would have served to stigmatise the veteran, and thereby jeopardise his otherwise high level of functioning. Significantly, he said he considered the self–medication to be a form of treatment for the somatic symptoms of the anxiety disorder.
49. Dr Lewin gave evidence that most WWII veterans did not seek specialist care for their chronic anxiety. Mrs L’Estrange told Professor O’Rourke that her husband had “seen” his GP for the “indigestion”, which we consider was a somatic effect of his anxiety disorder. A GP’s diagnosis and treatment for “nervous dyspepsia”, Dr Lewin said, was a “face-saving” so as to “avoid opening the Pandora’s Box of emotional problems.”
50. We find that no other facts which are inconsistent with the hypothesis were proved beyond reasonable doubt. Mr L’Estrange suffered an anxiety condition which warranted ongoing management, in that he may have benefited from some support, but more significantly, he required ongoing self-medication.
CONCLUSION
51. For the above reasons, the Tribunal is not satisfied beyond reasonable doubt that the veteran’s death was not war-caused.
DECISION
52. For the above reasons, we set aside the decision under review and substitute it with the decision that the death of the veteran was war‑caused, as defined in the VE Act, and that the Commonwealth of Australia is liable to pay pension to the Applicant as provided for in the VE Act from and including 10 October 2007.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr T Austin AM, Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 3 February 2010
Date of Decision 01/03/2010
Counsel for the Applicant Elizabeth Wood
Solicitor for the Applicant Judith Buss, Legal Aid
Solicitor for the Respondent Anthony Carter, Sparke Helmore
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