Lecole and Repatriation Commission
[2005] AATA 327
•12 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 327
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/994
VETERANS' APPEALS DIVISION )
Re DAPHNE LECOLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date12 April 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mrs Lecole’s application for review is unsuccessful.
..................[Sgd].........................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – colorectal cancer – alcohol threshold – reasonable hypothesis raised by assumed or raised fact – satisfaction of Statement of Principles – war-caused death
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 196
Repatriation Commission v Deledio 1998) 49 ALD 193
Critch v Repatriation Commission (1996) 43 ALD 574
Byrnes v Repatriation commission (1993) 177 CLR 564
Connors v Repatriation Commission [2000] FCA 783
Borrett v Repatriation Commission [2000] FCA 1829
Re Borrett and Repatriation Commission [2000] AATA 481
Kattenberg v Repatriation Commission [2002] FCA 412REASONS FOR DECISION
12 April 2005 Dr EK Christie, Member 1. The Tribunal issued the following Direction as part of its decision made on 24 September 2004 following the hearing of this application for review.
“(a)the respondent arrange for a posthumous psychiatric evaluation of the kind of injury that the late Mr Lecole may have suffered in the immediate post-war service period as well as in the later part of the post-war period. The standard of proof in this regard to be the ‘reasonable satisfaction’ standard in subsection 120(4); and
(b)the matter be relisted for a resumed hearing on a date to be fixed.”
2. The respondent responded in good faith and arranged for the posthumous psychiatric evaluation as specified in the Tribunal’s Direction. Dr William Kingswell, Consultant Psychiatrist, prepared a report regarding the mental health of the late Mr Lecole. His expert report was filed with the Tribunal on 23 February 2005.
3. A Telephone Directions Hearing was held on 11 March 2005 to determine with the parties, the most effective case management process for addressing Dr Kingswell’s report and further submissions. The parties agreed that written supplementary submissions in response to the expert medical report was the preferred process for proceeding to complete the information and evidence before the Tribunal. Supplementary submissions from the applicant and the respondent were filed with the Tribunal on 18 March 2005 and 23 February 2005, respectively.
Earlier Findings By The Tribunal
4. With respect to “Deledio Step 3” [“Whether the Hypothesis is a Reasonable One”], the Tribunal concluded:
“57. In relation to the hypothesis identified in [the instant case], and pursuant to subsection 120(3) of the Act, the following factors are contained within the [Malignant Neoplasm of the Colorectum] SoP and are consistent with the template or factor:
‘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 malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service are:
…..
(c)drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum; …’
58. The hypothesis relied upon is that the late veteran commenced drinking during the war. Inferentially, that this was brought about by the circumstances of his operational service and that this drinking pattern continued in the post-war period and ultimately leading to his death through colorectal cancer.
…..
61. … the assumed fact in this application for review – the inference that the late Mr Lecole’s alcohol consumption was war-caused - must be considered in the light of all of the other material, and not raised by the assumed fact in isolation. Much of the other material bears directly upon the hypothesis. The material before the Tribunal points to the fact that the late veteran did not drink before his war service, that he drank during war service, and that he was drinking when he returned after the war, following his discharge from the Army. Furthermore, on return from the war he drank because of his nerves. Other material plainly points to the fact that he continued to consume alcohol over a very long period of time following operational service.
62. The important issue is whether the assumed fact – the inference between the circumstances of the late veteran’s service leading to the continuation of consuming alcohol in the post-war period, is raised by the material, rather than in the abstract: see Critch’s case.
63. Furthermore, it may be that it is the assumed fact which makes the hypothesis reasonable. By applying the reasoning and criteria contained in the ‘Legal Framework’, the Tribunal concludes that the facts that may properly be assumed to support an inference, are raised by the following material. This material relates the circumstances of the late veteran’s service to his drinking patterns:
(a) that the late veteran did not drink prior to enlistment (Mrs Lecole’s evidence);
(b)that the late veteran experienced distressing events while on operational service ;
(c)that he had continued to drink post-war because of his nerves and that his drinking pattern was associated with exposure to stressful situations during operational service; and
(d) that he never spoke about the war to his family and friends.
64. Accordingly, based on the evaluation of all the material, including assumed facts, the Tribunal concludes that there is an hypothesis that points to a connection, which starts with a disease (colon cancer), in respect for which the application is made, and ends with the service. That connection comprises a number of links: operational service, assumed facts relating to exposure to stressors during operational service and the subsequent impacts on the drinking pattern of the late veteran, the existence of a drinking pattern following operational service because of “nerves” and the subsequent death of the late veteran because of colon-rectal cancer. Applying Byrnes and Connors, the Tribunal finds the hypothesis to be reasonable.
65. Furthermore, the Tribunal finds this hypothesis to be reasonable because, pursuant to subsection 120(3) of the Act, Factor 5(c) of SoP Instrument No 1 of 2004 (Malignant Neoplasm of the Colorectum) is contained within the SoP and is consistent with the template or factor.”
5. With respect to “Deledio Step 4” [Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof”], the Tribunal concluded:
“..…
70. The difficulty for the applicant’s case is establishing, at the requisite level of proof under subsection 120(1), the connection between operational service and the continuation of the late veteran’s drinking patterns in the post-service period. For example, there is no factual evidence to support the applicant with respect to the existence of some defined psychiatric condition in the late veteran. In this regard, the Tribunal agrees with the limitations raised by Mr Smith’s concluding submissions, in terms of the available medical evidence before the Tribunal.
…..
78. In this application for review the Tribunal has concluded:
(a) that a reasonable hypothesis exists;
(b)that the late veteran had developed a pattern of alcohol consumption which continued after service; and
(c)that the threshold amount for alcohol consumption for colorectal cancer over the prescribed period has been met.
79. However, in order to establish a connection between operational service, alcohol consumption (particularly in the post-service period) and death from colorectal cancer, the Tribunal concludes that an additional step is necessary before undertaking Step 1 of Deledio. That is, there is a need to identify the kind of psychiatric injury that may have been suffered by the late veteran in the post-service period. The Tribunal accepts the evidence of Mrs Lecole, Kerry Bliesner, Kim Lecole and Mark Lecole that the late veteran was exposed to stressful or distressing events during service. [Emphasis added]
6. The Tribunal then referred to Borrett v Repatriation Commission [2000] FCA 1829) and made the following observation.
“80. Turning to Borrett’s case, there was expert evidence before the Tribunal that the late veteran had become nervous as a result of his war-time experiences. In addition, that his anxiety may well have become chronic and alcohol becomes a form of self-medication. Furthermore, that there was a pattern of anxiety after the war related to alcohol consumption; and that the late veteran experienced nervous psychological disturbances in the period after the war that contributed to his drinking pattern.”
7. The Tribunal made the further observation in Borrett’s case that the decision-maker had the advantage of psychiatric opinion. In contrast “this application for review has none [psychiatric opinion] whatsoever”.
8. It was for these reasons the Tribunal issued its Direction as part of the decision made following the hearing of this application for review.
Expert Medical Report of Dr Kingswell
9. Dr Kingswell’s opinion in relation to posthumous psychiatric evaluation he had completed can be summarised as follows:
“Joseph [Lecole] died aged 74 from metastatic cancer of the rectum on 25 May 1997. At that time Joseph was a retired father of six living with his wife at Bribie Island. Joseph had complained to his wife of an anxious concern about finances, health and her welfare. At times, Joseph complained of anxiety associated with shortness of breath. These episodes were brief and self limiting. Joseph did not seek or receive treatment for the problem.
Joseph had no personal history of psychiatric disorder prior to joining the Royal Australian Air Force and no family history of mental illness suggesting any predisposition to psychiatric disorder. His experience of his father’s strict critical approach might have had some impact on his self confidence and propensity to anxiety.
…..
Joseph did not receive treatment for psychiatric disorder during his life. Joseph until the onset of a terminal illness functioned perfectly normally in social and occupational spheres. Joseph worked full time and in his spare time managed a small farm. Joseph fathered six children. Mrs Lecole said her husband was devoted to family and enjoyed the company of a small number of friends. Joseph’s mild anxiety and occasional panic attacks would not reach the threshold that would allow the diagnosis of a specific anxiety disorder. (Emphasis added)
Joseph reportedly suffered mild subjective distress from anxiety and Mrs Lecole believed his anxiety was relieved by alcohol. Anxiety is a universal human experience and anxiety disorder extremely common. Joseph’s anxiety was reported to have commenced during his overseas service. Stressful life experiences are not necessary or sufficient to cause anxiety disorder (other than PTSD) but might have a role. Alcohol use as well as alcohol abuse and dependence is associated with anxiety disorders. Joseph’s experience of anxiety might have contributed to his alcohol use.
However non hazardous alcohol use is extremely common in our community and not all those who drink have an anxiety disorder.”
Contentions and Submissions of the Parties
10. Mr O’Neill (for the applicant) submitted that the “Malignant Neoplasm of the Colorectum” did not have any requirement for “alcohol abuse” or “alcohol dependence” to be satisfied.
11. Mr O’Neill further submitted that the events experienced by the late Mr Lecole whilst serving in a combat zone (e.g. seeing dead bodies, the constant threat of air raids) affected his behaviour following the war and pointed to a connection with war service.
12. Mr O’Neill contended that the fact that an alcohol consumption habit occurred during service and arose for reasons, including a response to stress, was enough to meet the criteria. Furthermore, that it was not necessary to prove that Mr Lecole experienced particularly stressful events during his service as might be defined in various other Statements of Principles.
13. It was his further contention that the connection between alcohol consumption and service was more than temporal or circumstantial – it was also causal.
14. Mr O’Neill submitted that a causal relationship between the late Mr Lecole’s war service and his drinking habit could not be excluded beyond reasonable doubt.
15. Mr O’Neill concluded with the contention that the late Mr Lecole’s cancer was caused as a direct result of his alcohol consumption which in turn was war-service-related.
16. Mr Smith, for the respondent, submitted that the applicant’s case could be distinguished from Borrett’s case in that in Borrett there was expert psychiatric evidence that the veteran used alcohol to self-medicate a war-caused anxiety disorder. In contrast, Dr Kingswell’s opinion was that the late Mr Lecole’s mild symptoms did not reach the threshold of a diagnosable anxiety disorder.
17. In relation to the “distressing events” experienced by the late Mr Lecole during operational service, it was Mr Smith’s contention that the events in Mr Lecole’s service did not reach the threshold for the meaning of a “severe psychosocial stressor” as defined in SoP Instrument No. 1 of 2000 (Anxiety Disorder).
18. Mr Smith submitted that the applicant’s case could be summarised as follows: mild events (not equivalent to a “severe psychosocial stressor”) → mild symptoms (not equivalent to a diagnosable disorder) → mild symptoms relieved by a long-term drinking habit (not equivalent to alcohol abuse or dependence).
19. Mr Smith contended that it would be “highly perverse” if discretionary drinking could be more easily linked to service than alcohol abuse or dependence.
20. Mr Smith further submitted that on analysis of settled “similar fact” cases, the applicant could not succeed because it failed to contain the following elements: self-medication of a war-caused psychiatric condition, or war-caused alcohol abuse or dependence.
Consideration Of The Issues
21. In discussing the statutory framework with respect to SoPs and raising a "reasonable hypothesis" connecting a disease with the circumstances of service, Emmett J in Kattenberg v Repatriation Commission[2002] FCA 412 stated:
"8. Section 196A of the Act establishes the Repatriation Medical Authority ("the Authority"). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles ("SoP") in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors "must be related to service rendered by a person", before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.
9. Section 196B (14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase "related to service". That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
…..
(b) it arose out of, or was attributable to, that service; or
.....
(d) it was contributed to in a material degree by, or was aggravated by, that service;
…..
(f) in the case of a factor causing, or contributing to a disease-it would not have occurred ... but for the rendering of that service by the person.”
22. Later, in Kattenberg’s case, Emmett J stated:
“42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14)…..”
and then concluded at [para.42]:
“Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service."
23. Applying the reasoning in Kattenberg’scase and the requirements imposed by s 196B(14), the requirements of the “Malignant Neoplasm of the Colorectum SoP” that the relevant SoP factor is related to the veteran's service will be satisfied if there is shown to be a causal relationship between the specified alcohol consumption in the 40 year period immediately before the clinical onset of malignant neoplasm of the colorectum and operational service – or, alternatively, if the factor would not have occurred but for the rendering of that service.
24. In Borrett v Repatriation Commission [2000] FCA 1829 – a case referred to by the Tribunal in its earlier decision because of reasonably similar factual evidence, Tamberlin J stated (at paragraph 32, p. 11):
“35. The statement that the veteran only began to drink to any extent after he found employment as a salesman and that he continued to drink both as a means of relaxation and as an aid to maintaining goodwill with customers is not inconsistent with alcohol induced relaxation being also engaged in as a consequence of the psychological disturbance caused by his war-time experience. The evidence that during the six month period after service the veteran experienced recurrent nightmares, had restless sleep in which his feet would jerk, and that he suffered from nervous anxiety for years after the war, forcefully point to a conclusion of a connection with war service.
In addition, the assertion that at no time was the partaking of alcohol by the veteran ‘a habit’, when there was evidence that he drank three to six schooners (four and a half to nine standard drinks) per working day over a twenty-five year period, is indicative of an erroneous approach.”
25. Dr Kingswell’s expert psychiatric opinion arising from his posthumous evaluation contained the following conclusions:
(a)The late Mr Lecole complained of anxiety associated with shortness of breath at times. However, these episodes were brief and self-limiting. He did not seek or receive treatment for the problem;
(b)The late Mr Lecole did not receive treatment for psychiatric disorders during his life. Until the onset of his terminal illness, he had functioned perfectly normally in social and occupational spheres;
(c)The mild anxiety and occasional panic attacks experienced by the late Mr Lecole would not reach the threshold that would allow the diagnosis of a specific anxiety disorder;
(d)Whilst the late Mr Lecole suffered mild subjective distress from anxiety and Mrs Lecole believed his anxiety was relieved by alcohol, stressful life experiences were not necessary or sufficient to cause anxiety disorder (other than PTSD) – but he conceded stressful life experiences may have a role; and
(e)The late Mr Lecole’s experience of anxiety might have contributed to his alcohol use. However, non-hazardous alcohol use was extremely common in the community and not all who drink have an anxiety disorder.
26. The Tribunal has considered the opinion of Dr Kingswell, and the conclusions of Tamberlin J in Borrett’s case, against the statutory requirements imposed by section 196 and the legal principles arising in Kattenberg’s case and makes the following conclusions:
(a)Both the late Mr Lecole’s and Mr Borrett’s consumption of alcohol in the post-operational service period was a habit: over a 25 year period, the late Mr Lecole consumed around 3 standard drinks per day (compared with 4½ - 9 standard drinks per day for Mr Borrett);
(b)Dr Kingswell’s posthumous evaluation does not reveal any symptoms for the late Mr Lecole during the post-operational service of “recurrent nightmares, restless sleep in which his feet would jerk and [suffering] nervous anxiety for years after the war.” In contrast, all these features were revealed in expert psychiatric opinion evidence for Mr Borrett;
(c)The late Mr Lecole suffered brief and self-limiting episodes of anxiety associated with shortness of breath; he did not receive or seek treatment for the problem. Furthermore, the late Mr Lecole did not receive treatment for any psychiatric disorder during his life. In addition, Dr Kingswell makes reference in his report that Mrs Lecole was not aware that her husband sought or received any treatment for his nerves during his life.
27. These conclusions clearly distinguish significant factual differences between the late Mr Lecole and Borrett’s case. Whilst both veterans had a drinking habit – the expert medical evidence upon which Tamberlin J could conclude as “forcefully point[ing] to a connection with war service” simply does not exist in the late Mr Lecole’s factual situation. Tamberlin J had also referred to the following expert evidence in Borrett’s case:
“31. ….. Dr Gerther [a psychiatrist] said that it appeared that the veteran became anxious as a result of the war-time experiences and that alcohol may well have become chronic and alcohol become a form of self medication. This is consistent with his anxiety pattern after the war and the subsequent increase in alcohol consumption.”
and (at paragraph 33):
“33. It is evident that the veteran experienced serious psychological disturbances in the period shortly after the war which points to a connection with war service.”
and later (at paragraph 35):
“35. The evidence that during the six month period after service, the veteran experienced recurrent nightmares, had restless sleep in which his feet would jerk, and that he suffered nervous anxiety for years after the war…..”
28. In contrast, Dr Kingswell’s psychiatric opinion, which the Tribunal accepts, does not point to similar characteristics or symptoms in the case of the late Mr Lecole.
29. In the absence of such a “forceful connection” the Tribunal cannot make any conclusions other than to find that factor 5(b) of the “Malignant Neoplasm of the Colorectum SoP” is not satisfied. That is, there is no causal relationship between the alcohol consumption pattern in the 40 year period immediately before the clinical onset of malignant neoplasm of the colorectum and service – or that this factor would not have occurred but for the rendering of operational service.
30. Each case must be considered on its merits. In this particular matter, for all of the above reasons and based on all of the evidence and material before it, the Tribunal finds that for the purposes of subsection 120(1) of the Act, “one or more of the facts that support the hypothesis are disproved beyond reasonable doubt”: Byrne’s case. In particular, the link in the hypothesis, “the existence of a drinking pattern following operational service because of ‘nerves’”.
31. Accordingly, the Tribunal finds there are sufficient grounds for determining, at the requisite level imposed by subsection 120(1) that there is not a connection between the death of the late Mr Lecole and his operational service.
32. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 29 July 2004; 11 March 2005 by phone
Date of Decision 12 April 2005
Counsel for the Applicant Mr P B O'Neill
Solicitor for the Applicant Files, Stibbe and Associates
For the Respondent Mr M Smith, Departmental Advocate
0
6
0