Lewis and Repatriation Commission

[2003] AATA 1078

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1078

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/622

VETERANS' APPEALS DIVISION		)
Re		HENRIETTA MARGARET LEWIS

Applicant

And REPATRIATON COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date29 October 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) B J McCabe
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran was related to his war service – ischaemic heart disease with hypertension and diabetes – whether reasonable hypothesis can be established connecting death with service

Veterans’ Entitlements Act 1986

Repatriation Commission v Cooke (1998) 160 ALR 17

Statement of Principles No 38 of 1999

REASONS FOR DECISION

29 October 2003	Mr B J McCabe, Member
Introduction

1.      Mrs Henrietta Lewis is the applicant in these proceedings. Her late husband served with the navy in the waters off New Guinea during World War II. The applicant says her husband’s death was service related and she should be entitled to a pension as a result. The respondent and the Veterans’ Review Board disagreed, and the applicant has sought relief from this Tribunal.

2.      After reviewing the facts and considering the provisions of the Veterans’ Entitlements Act 1986, I am unable to accept Mr Lewis’s death was service-related. I have set out my reasons for that conclusion below.

The Material Before the Tribunal

3. The Tribunal was supplied with the materials required under section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1).  It was also provided with the following material:

§  Exhibit 2              Statement of applicant dated 23 March 2001

§  Exhibit 3              Report of Dr Janis Carter dated 15 November 2001

§Exhibit 4             Supplementary Report of Dr Carter, 29 February 2003

§Exhibit 5             Record of Treatment

§Exhibit 6            Claim for Medical Treatment and War Pension

§Exhibit 7            Medical History Sheet

§Exhibit 8            Treatment and Report Form dated 15 June 1965

§Exhibit 9            Copy of a Report of a Medical Practitioner upon the Incapacity of the Member dated 28 June 1965

§Exhibit 10          Summary of Submission to Board or Commission

§Exhibit 11          Summary of Case History dated 8 November 1968

§Exhibit 12          Report of Dr Nicole Laherty dated 4 February 2002

§Exhibit 13          Report of Dr William J Kingswell dated 8 August 2002

§Exhibit 14          Report of John McCarthy dated 19 April 2002

§Exhibit 15          Form – Claim for Service Pension by a Veteran or Mariner lodged 7 October 1985

§Exhibit 16          Service Pension Application Pro Forma (undated)

Mrs Lewis and Drs Carter and Kingswell gave oral evidence at the hearing. The applicant was represented by Mr Harding of Counsel. Mr Kelly represented the respondent.

The Facts and the Medical Opinions

4.      The late Stanley Norman Lewis served with the Royal Australian Navy from 4 November 1943 to 28 August 1946. The whole of that service occurred overseas, which means it qualifies as operational service for the purposes of the Veterans’ Entitlements Act 1986.

5.      The applicant met Mr Lewis in 1984. They were both keen Scottish Country Dancers. The applicant would see Mr Lewis on weekends when he came down from the country. They were married in 1986. He died on 16 November 1996. The death certificate recorded the cause of death as myocardial infarction and ischaemic heart disease with hypertension and diabetes as contributing factors. Before his death, the respondent accepted Mr Lewis suffered from an anxiety state and peptic ulcer.

6.      The applicant was admitted to hospital in Darwin during the war. The applicant says she was told it was because of anxiety. She understood he remained in hospital for a week. He was heavily sedated, she said. But primary medical records do not bear this out. They suggest he was only admitted overnight for treatment of swollen glands and gastro-intestinal pain. There is no record of treatment for a nervous condition of any kind at that point. Mr Lewis was subsequently hospitalised in 1965 in connection with his anxiety, and he made a successful claim in respect of his peptic ulcer during the same period.

7.      The applicant conceded Mr Lewis did not talk much about his experiences during the war. She said he would only make light-hearted references to those times. He worked on a minesweeper for part of his period overseas. It was undoubtedly a stressful job. The vessel carried high explosives on occasions and had to search out and destroy mines. Professor McCarthy suggested in his report there was limited danger of air or submarine attack by the time Mr Lewis was in the area. He also worked on a tugboat, but – once again – Professor McCarthy says he was unlikely to be in any danger from air or submarine attack in that period. I accept Professor McCarthy’s uncontradicted evidence.

8.      Mrs Lewis said she did not notice any evidence of panic attacks until after she and Mr Lewis married. She says he had one attack while they were together at a dance. He had another in 1987 or 1988 while they were visiting his brother in Newcastle. He had a third attack when they were together at a shopping centre. Mrs Lewis was unable to remember any other attacks. She said her husband told her he suffered from attacks while he was in the Navy – the period during which he was supposedly hospitalised for a week in Darwin was an example.

9.      During the attacks:

§  Mr Lewis’ heart would “pound”;

§  He would sweat excessively and his clothes would be soaked;

§  His hands would shake to the point he was unable to write legibly;

§  He would become breathless;

§  Sometimes he thought he was choking;

§  He would experience discomfort and pressure in his chest, albeit not pain; and

§  He often thought he was going to die.

10.     On one occasion in 1994, Mr Lewis apparently wrote to his wife saying he believed he was going to die and made funeral arrangements. She found the letter some time later, but it has since been lost.

11.     The symptoms would occur and build towards a crescendo in the space of about ten minutes. Dr Carter said the applicant had at least seven and possibly eight of the symptoms associated with panic attack, which was enough to justify a diagnosis. She said the symptoms were not better accounted for by another disorder. She noted the symptoms would often present when Mr Lewis was required to perform certain tasks. In the circumstances, she also diagnosed phobic anxiety.

12.     The diagnosis is important because the Statement of Principles relating to ischaemic heart disease provides (Statement of Principles No 38 of 1999 at factor 5(o)) that where myocardial infarction is the cause of death and the deceased suffers from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of the ischaemic heart disease, a reasonable hypothesis is raised connecting that person’s death with their service.

13.     Dr Kingswell arrived at a different diagnosis. He says the applicant’s symptoms are better explained by the onset of ischaemic heart disease. He said there was evidence the applicant was suffering from a heart condition since at least the early 1990s: Dr Kingswell noted Mr Lewis had been examined in Royal Brisbane Hospital in 1993 and he was clearly suffering from the condition at that point. He said it was inappropriate to proffer a psychiatric diagnosis when there was a clear physiological explanation for the symptoms.

14.     In any event, Dr Kingswell said Mr Lewis’ condition could not satisfy the requirements imposed by the Statement of Principles relating to panic disorder. The doctor said the definition of panic disorder requires evidence the patient experienced persistent concerns over a month following an attack that he or she would have another attack, worry about possible implications or consequences of attacks, or experience a significant behavioural change. There was no evidence of this, he said. Dr Kingswell also said there was no evidence of phobic anxiety. One would expect to see evidence of phobic avoidance if there was phobic anxiety, he explained. Dr Carter said the anxiety would arise in relation to occasions of performance like dancing, but Dr Kingswell noted Mr Lewis remained a keen dancer. He was not avoiding the dance floor or other people. His functioning was not impaired in the ways anticipated in the relevant Statement of Principles.

15.     Dr Kingswell conceded Mr Lewis did suffer from anxiety, and may have suffered from panic attacks. But that is not enough to satisfy the Statement of Principles, which requires panic disorder or phobic anxiety with panic attacks.

16.     The Full Federal Court concluded in Repatriation Commission v Cooke (1998) 160 ALR 17 that the Tribunal must satisfy itself of the correct diagnosis on the balance of probabilities. I prefer Dr Kingswell’s diagnosis in the circumstances. I am satisfied there was a physiological explanation for the symptoms that were reported. While Mr Lewis did suffer from anxiety, there is not enough evidence to conclude he suffered from panic disorder or phobic anxiety with panic attack as required under the Statement of Principles.

Conclusion

17.     The decision of the Veterans’ Review Board affirming the respondent’s decision is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         .......................................................................................
  Associate

Date of Hearing  26 February 2003
Date of Decision  29 October 2003

Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan & Luton
For the Respondent                  Mr J Kelly, Departmental Advocate