Lewis and Repatriation Commission

[2005] AATA 849

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/557

VETERANS’ APPEALS DIVISION		)
Re		HENRIETTA MARGARET LEWIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 September 2005

PlaceBrisbane

Decision The decision under review is affirmed. The late veteran’s death was not attributable to his war service.

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SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – war widow’s pension – war-caused death arising out of injury obtained during naval service – diagnosis of psychiatric conditions in issue – anxiety condition – phobic anxiety – panic disorder – panic attacks – hypertension considered - applicant’s husband suffered ischaemic heart disease – whether veteran suffered an acute severe stressor not established – relevant SoPs unsatisfied – veteran’s conditions not found to be attributable to his eligible service – decision under review is affirmed.

Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 83 FCR 82; (1998) 27 AAR 144

REASONS FOR DECISION

2 September 2005                Senior Member B J McCabe

introduction

1.      Mrs Henrietta Lewis is the widow of the late Stanley Lewis. Mr Lewis served in the Navy from 4 November 1943 to 28 August 1946. He married the applicant, Henrietta Lewis, on 15 February 1986. He died on 16 November 1996 as a result of heart problems. The applicant says his death was war-caused. She says he suffered from a psychiatric condition as a result of stressors experienced during his time in the Navy that link the heart condition with his war service. On that basis, she claims to be entitled to a service pension paid by the respondent pursuant to the Veterans’ Entitlements Act 1986 (the Act). The respondent and the Veterans’ Review Board rejected the claim. The applicant has asked the Tribunal to reconsider that decision.

material before the tribunal

2.      The matter was originally heard by the Tribunal in 2003. There was an appeal and the matter was remitted to the Tribunal for a fresh hearing by consent. At the re-hearing, the Tribunal was provided with the following material:

·The Appeal Papers – incorporating: the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in the original hearing (Q2000/622); materials tendered as exhibits in the original hearing; and the transcript of the original hearing before the Tribunal (exhibit 1);

·A letter from Dr Robinson to the Australian Government Solicitor dated 7 January 2005 (exhibit 2); and

·Summons documents from the Royal Brisbane Hospital received 13 January 2005 (exhibit 3).

3.      The applicant gave evidence at the hearing. Doctors Robinson, Carter and Kingswell also gave evidence.

4.      Mrs Lewis was represented by Mr Harding of counsel. The respondent was represented by Mr Derrington, SC.

the factual background to the dispute

5.      The late Stanley Lewis served in the Navy aboard the vessels HMAS Uralba and HMAS Waree and at HMAS Melville (a depot ship in Darwin) in the latter stages of World War II. The Uralba and the Waree were deployed in the waters off New Guinea. The Uralba was a mine tender, which meant the vessel worked in mine fields. There was presumably some danger of an explosion, but Professor McCarthy notes (exhibit 1 at 68) the ships’ records have been lost so it is difficult to know of any specific danger. The Waree was a tug. Its records have also been lost.

6.      Mr Lewis was admitted to hospital in Darwin on 23 October 1945. Dr Carter’s report of 19 February 2003 recounts her understanding (based on an interview with Mrs Lewis and a medical history sheet completed by Mr Lewis in connection with an earlier claim for compensation in 1965) that the applicant had been hospitalised because of anxiety, and had remained heavily sedated in hospital for at least a week. The contemporaneous medical records suggest Mr Lewis was kept in hospital overnight for epigastric pain.

7.      There was no reference to any medical conditions in Mr Lewis’s medical examination prior to demobilisation in 1946. He was given a clean bill of health on discharge.

8.      Mr Lewis completed his apprenticeship as an upholsterer after he left the services. He worked on a farm owned by his wife’s family. I understand he ultimately bought the farm with the assistance of his mother-in-law. He also ran his own upholstery business. His marriage was unhappy, and there was conflict with the in-laws. The marriage was dissolved in 1986.

9.      Mr Lewis sought compensation from the respondent in 1965. His claim in respect of a peptic ulcer was accepted. He was also diagnosed with a mild anxiety state although the Treatment and Report form (exhibit 1 at 52) suggested that condition was of more recent origin. He was hospitalised in 1968 because of his ulcer and anxiety conditions. The Summary of Case History included in the medical documents suggests his work and domestic circumstances contribute to the anxiety condition. The treating doctor does not mention anything about his war service.

10.     The applicant met Mr Lewis in 1984 at a Scottish country dancing event. She explained in her evidence at the original hearing that “he couldn’t do the dances very well, but he was eager to try, and mixed well with other people.” (Transcript, p 11) They married in 1986. By all accounts, they had a happy life together. Mr Lewis continued his upholstery work part time, and taught classes at the local TAFE. He exhibited examples of his work at the Kingaroy Show. Mr and Mrs Lewis took dancing classes and regularly attended dances with other couples.

11.     Dr Robinson was Mr Lewis’s general practitioner from 1972 until Mr Lewis’s death in 1996. Dr Robinson recalled treating Mr Lewis for anxiety during the 1970s. He said he had a good relationship with his patient. Dr Robinson said he did not have to treat Mr Lewis for anxiety after his marriage to the applicant. Mr Lewis was settled and content. Dr Robinson said Mr Lewis was active and pursued several hobbies, including dancing, upholstery, wood-turning and farming.

12.     Mrs Lewis recalls the applicant suffering two episodes during the course of their marriage. She later came to describe them as panic attacks. One of them occurred early in the marriage in New Zealand at a Scottish dance festival. Mrs Lewis recalled at the first hearing before the Tribunal that her husband did not know the steps to a dance, and some of the other dancers had suggested he leave the dance floor. She said he was wringing wet and speechless – his reaction was more extreme than simple embarrassment.

13.     The second episode occurred during a visit to Newcastle in about 1989. Mr Lewis accompanied his wife to a shopping mall. She left him alone for a while. She found him some time later sitting in a car park, looking lost. He did not recognise her immediately. She said he looked distressed, like a lost child. It took her about 15 minutes to calm him down and reassure him.

14.     Mrs Lewis agreed she was not aware of any other episodes occurring before or during the marriage. She pointed out in her testimony at the first hearing she was not able to recognise panic attacks because she had never seen them before. Her evidence left open the possibility that he may have experienced other episodes, but she was unable to identify any.

15.     After his death, the applicant came across a letter her late husband had written some years before. The letter had never been sent. The letter suggested he thought he was going to die.

the medical evidence

16.     I have already referred to the medical evidence relating to Mr Lewis’s hospitalisation in Darwin during the war, his successful claim for a pension paid by the respondent in 1965 and his hospitalisation in 1968. I have also referred to the evidence of Dr Robinson about the improvements in Mr Lewis’s anxiety condition after he remarried.

17.     Mr Lewis had seen Dr Robinson about heart problems in late 1992. Mr Lewis had been suffering from chest and epigastric pain for up to two months (see exhibit 1 at 61). Dr Robinson referred Mr Lewis to a specialist at the Royal Brisbane Hospital. Mr Lewis was seen on 11 January 1993 for tests. Dr Lorna Kratzing concluded Mr Lewis was suffering from ischaemic heart disease. Further tests confirmed that diagnosis.

18.     Mr Lewis subsequently saw Dr Wilkinson on 23 April 1993. Dr Wilkinson agreed Mr Lewis suffered from severe coronary artery disease which originally manifested itself as angina.  Mr Lewis was also exhibiting symptoms of congestive cardiac failure. Mr Lewis was provided with medication and attended a clinic on a number of occasions in 1993. He attended the emergency room of Royal Brisbane Hospital on 23 July 1994 with chest pains. He was admitted for tests and developed an infection. The tests did not show his condition had deteriorated and he was discharged on 24 July 1994.

19.     None of the medical notes relating to this period record the applicant complaining of panic attacks or similar episodes. The notes were summarised and examined in a report by Dr Laherty dated 4 February 2002.

20.     Mr Lewis died on 16 November 1996. The death certificate records the cause of death as “1. (a) Myocardial infarct, (b) Ischaemic heart disease; 2. Hypertension, non-insulin dependent diabetes mellitus.”

21.     The applicant consulted Dr Carter in 2001 after the claim for a pension was made. Dr Carter’s first report is dated 15 November 2001. She concludes from the information provided to her that the late veteran experienced “very well entrenched panic attacks, associated with his anxiety disorder, that were certainly of a phobic nature”. She wrote a supplementary report on 19 February 2003 in which she enlarged on her conclusions. That report took into account the report of Professor McCarthy which suggested the applicant’s service in the Navy had elements of danger. She diagnosed the veteran as suffering from phobic anxiety with panic attack. Dr Carter pointed out that panic disorder was also available as a diagnosis, but Mr Lewis’s attacks were brought on by his reaction to a specific stressor – namely, performance.

22.     Mr Derrington, for the respondent, pointed out in cross examination of Dr Carter that there were a number of errors in the history she took from Mrs Lewis. In particular, Dr Carter was proceeding on the assumption that Mr Lewis suffered reasonably frequent panic attacks. The applicant’s evidence confirms this was not the case. Dr Carter was also proceeding on the basis the applicant had been hospitalised for a week in Darwin towards the end of the war due to anxiety. The contemporary medical records do not bear that out.

23.     Dr Kingswell also reviewed the files. He conceded in his report dated 8 August 2002 that Mr Lewis may have had an anxiety condition in the past, particularly during his unhappy first marriage. He also conceded the applicant may have experienced panic attacks. But he emphasised there was no history of avoidance behaviour. Dr Kingswell opined the most likely cause of the applicant’s symptoms was his heart condition. He said the applicant did not suffer from panic disorder or phobic anxiety.

the legislation

24.     Applications for a pension under the Act must be assessed according to the standard of proof laid down in s 120. Sections 120(1), (3) provide:

(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.

25.     Section 120A requires that the reasonableness of any hypothesis must be tested with reference to any statements of principles (SoPs) relating to the conditions in question that are issued by the Repatriation Medical Authority.

26.     The Federal Court has explained in cases like Repatriation Commission v Deledio(1998) 49 ALD 193 that the Tribunal satisfies the requirements imposed by s 120 by adopting a four step process. After settling on a diagnosis – which is decided to the reasonable satisfaction of the Tribunal (see s 120(3)) – the Tribunal must identify the applicant’s hypothesis connecting the condition with the veteran’s service. If there is no material raising the hypothesis, the claim fails. It is not enough that the material is not inconsistent with the hypothesis; the material must actually point to the hypothesis before it can be considered.

27.     The Tribunal must then identify the applicable statement of principles (SoP). Once it has the SoP in hand, the Tribunal must determine whether the applicant’s story “fits” within the template provided by the SoP. The Tribunal is not making findings of fact at this point: it takes the story as it is told. If the story as told cannot fit the template, the hypothesis is presumptively unreasonable. If the story is capable of fitting the template, the Tribunal goes on to make findings of fact.

application of the law

28.     There is no dispute Mr Lewis died as a result of ischaemic heart disease.

29.     The applicant claims Mr Lewis experienced stressful events during his war service which brought on an anxiety condition, which manifested as panic disorder or phobic anxiety with panic attack. Those conditions contributed to the development of ischaemic heart disease, she argued.

30.     Little is known of Mr Lewis’s war service. He may have been in danger, although Professor McCarthy suggests there was limited danger of attack at that time in those waters. The only evidence that he suffered from any sort of anxiety comes from Mr Lewis’s suggestion nearly 20 years after the war finished that he was hospitalised in Darwin in 1945 because of anxiety. That evidence is inconsistent with the contemporaneous medical records. I doubt that is enough to point to the hypothesis the applicant has raised, but I will give her the benefit of the doubt.

31.     The relevant SoPs are those relating to ischaemic heart disease (No 80 of 1998) and panic disorder (No 31 of 1998). I will deal firstly with ischaemic heart disease.

32.     There is no question Mr Lewis suffered from ischaemic heart disease as contemplated by the SoP. But are any of the factors referred to in clause 5 of the SoP present in this case? If they are not, the claim must fail.

33.     The applicant relies on factor 5(o) of the SoP. It refers to individuals experiencing a myocardial infarction who also suffer from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of ischaemic heart disease.

34.     Dr Carter went through the criteria for panic attack set out in DSM-IV and concluded Mr Lewis experienced panic attacks on several occasions. Even Dr Kingswell agreed Mr Lewis may have experienced a panic attack on two occasions, although Dr Kingswell suggested he thought the heart condition provided a better explanation for the phenomenon. But merely experiencing panic attacks as that term is defined in clause 8 of the SoP relating to ischaemic heart disease is not enough. The veteran must suffer from panic disorder (of which I will say more shortly) or panic attacks with phobic anxiety.

35.     The expression phobic anxiety is defined in clause 8 of the SoP. The definition says in part that the condition:

…significantly limits an individual’s normal routine, occupational and social activities by excessive or unreasonable persistent fears brought on by the presence or anticipation of certain situations or objects.

36.     The evidence given by the applicant and Dr Robinson in particular make it clear the applicant’s occupational and social activities were not the least inhibited by his condition, however it is characterised. He continued to attend dances and conduct his hobbies and carry out his normal routine throughout his married life. There was no avoidance behaviour evident. As Dr Kingswell explained – and I accept, given the evidence - this man did not suffer from phobic anxiety.

37.     What of panic disorder? The definition of panic attack in the SoP relating to panic disorder is the same as in the SoP relating to ischaemic heart disease. It follows Mr Lewis can be said to have suffered two panic attacks. But that is not enough to satisfy the definition of the condition in clause two. In order to make a diagnosis, a clinician would ordinarily identify at least four episodes of panic attack. That has not occurred here. Where fewer than four episodes are relied on for the diagnosis, it is necessary to identify an ongoing experience of worry or concern about the panic attack or the prospect of further attacks. There is no evidence of that occurring here. Moreover the definition points out the diagnosis should not be made where another medical condition can explain the panic attacks. As Dr Kingswell points out, that is almost certainly the case here.

38.     Even if I were to accept that a diagnosis of panic disorder was open, there is no evidence that Mr Lewis experienced an acute severe stressor (as defined in clause 7) within two years immediately before the clinical onset or worsening of panic disorder. Quite apart from the fact it is almost impossible to determine the date of onset of that condition from the available evidence, there is no evidence the applicant experienced an acute serious stressor.

39.     The only other possible avenue for a claim that arises out of the death certificate is a claim for hypertension. I note the applicant’s notice of appeal from the original decision criticised the Tribunal’s failure to consider and apply the SoP in respect of hypertension. Regrettably, none of the evidence at the rehearing was directed to that issue. For the sake of completeness, I will address the issue briefly.

40.     Instrument No 35 of 2003 deals with hypertension. Factors that might link the condition and service include obesity (some of the medical evidence notes Mr Lewis was obese) and having a clinically significant anxiety disorder for the six months preceding the clinical onset of hypertension.

41.     Some of the medical evidence notes Mr Lewis was obese. There is no evidence to suggest the late veteran’s weight is attributable to his service. It follows that his hypertension cannot be linked to his service by reason of his weight.

42.     The date of onset of the applicant’s hypertension is unclear. He may have had an anxiety condition earlier in his life, but Dr Robinson confirms Mr Lewis did not have one by the time he married the applicant. Even if he did have an anxiety condition immediately before the onset of his hypertension, there is no evidence that Mr Lewis would be able to satisfy the SoP in respect of anxiety disorder – so that any anxiety condition cannot be linked back to his experiences in the Navy.

conclusion

43.     The decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  17 May 2005
Date of Decision  2 September 2005
The applicant was represented by Mr Harding of Counsel.
The respondent was represented by MR Derrington, SC.