LKFC and Repatriation Commission
[2008] AATA 535
•26 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0217
VETERANS' APPEALS DIVISION ) Re LKFC Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), MemberDate26 June 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd]...........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – war widow’s pension – whether death of veteran was war-caused – veteran died from neuroblastoma – satisfies statement of principles for malignant neoplasm of the brain – applicant not exposed to atomic radiation – statement of principles cannot be contradicted by scientific evidence – death of veteran was not war-caused – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss8, 9, 13,120,196A, 196B, 120A.
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
26 June 2008 Dr P McDermott, RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), MemberINTRODUCTION
1. The applicant (whose name is subject to a confidentiality order) was a dependent of a veteran who served his country during World War II as a pilot with the Royal Australian Air Force. She has applied for a war widow’s pension. In these proceedings we have to decide whether the death of the late veteran was related to his service.
DECISIONS
2. On 11 April 2007 a delegate of the Repatriation Commission rejected a claim by the applicant for war widow’s pension on the ground that the death of the veteran was not related to his service.
3. The applicant sought a review of this decision from the Veterans’ Review Board. On 12 December 2007 the Veterans’ Review Board affirmed this decision.
4. The applicant now seeks to review the decision of the Veterans’ Review Board.
SERVICE
5. The late veteran rendered a period of service with the Australian Army from 12 August 1940 until 21 April 1943. The veteran also served with the Royal Australian Air Force from 22 April 1943 to 4 April 1946. A certificate of service of the veteran with the Royal Australian Air Force was in evidence before us[1].This service of the veteran with the Australian Army and the Royal Australian Air Force is certainly operational service for the purposes of the Act.
[1] Exhibit A: T4, Folio 3.
MEDICAL EVIDENCE OF DEATH OF THE VETERAN
6. We are required to initially determine the “kind of death” that is applicable to the veteran[2].
[2] See Repatriation Commission v Hancock [2003] FCA 711.
7. The death certificate records that the veteran died on 8 August 2001 at the age of 81 years. The death certificate records the causes of death as “neuroblastoma”[3].
[3] T4, fol 21.
8. There is also specialist medical evidence that the veteran had a “tumour of the left temporal lobe, the size of a golfball” and that it was a “highly aggressive, poorly differentiated brain tumour, which was eventually classified as a glioblastoma multiforme”[4].
[4] T4, fol 18.
9. Having regard to the death certificate and the specialist medical evidence we are satisfied that a malignant neoplasm of the brain was indeed the cause of the death of the veteran.
CIRCUMSTANCES OF VETERAN
10. On behalf of the applicant it was pointed out that during his operational service the veteran flew in the United Kingdom in Spitfires, Mosquitoes and Wellingtons.
11. One witness before us had remarked that as a child she recalled her father using a heat lamp on his left shoulder and right arm. The witness mentioned that the tumour was present in the left temporal lobe of the brain in the direction of the infrared beam. The witness also opined that the veteran may have had a crash injury[5].
[5] T4, Folio 19.
12. The service medical records of the veteran were admitted before us as evidence. There is no record of the veteran being injured by an airplane crash. There is, however, a record of the veteran sustaining a motorbike crash in 1942. There are also records of the veteran having received heat treatment for his right elbow.
13. We note that the ruptured tendon right elbow of the veteran is an accepted disability. The veteran had suffered this injury in 1945 whilst representing the RAAF at a tennis tournament at Wimbledon[6].
[6] T4, Folio 9.
LEGISLATIVE FRAMEWORK
14. Section 8 of the Veterans’ Entitlements Act (“the Act”) provides for when the death of a veteran shall be taken to be war-caused. The provision applies where “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
15. Section 13(1) of the Act provides that where the death of a veteran was war-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the veteran.
16. As the veteran has performed operational service the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
17. The Act provides that where a claim 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[7].
[7] See s120(1)
18. The Act also provides that in applying subsection 120 (1) 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[8].
[8] S120(3)
STATEMENT OF PRINCIPLES
19. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority. Section 196B of the Act provides that if the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the Repatriation Medical Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting 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 an injury, disease or death of that kind with the circumstances of the veteran’s service.
20. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
21. In the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of s 120A(3), which provides that for the purposes of s120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under s196B(2) or (11); or
(b)a determination of the Commission under s180A(2);
that upholds the hypothesis.
ISSUES
22. These proceedings concern whether the death of the late veteran was war- caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”) and whether the contentions of the applicant satisfy the Statement of Principles for Malignant Neoplasm of the Brain (Instrument No 17 of 2003).
CONSIDERATION
23. We are bound by authority to apply the following test in Repatriation Commission v Deledio[9]:
“1 The 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an 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.”
[9] (1998) 83 FCR 82
“First Deledio step”
24. We must now consider all the material which is before us and determine whether that material points to a hypothesis connecting the condition of the veteran which caused his death with the circumstances of the particular service rendered by the person. We consider that the material before us points to a hypothesis connecting the infrared lamp and the death of the veteran. We mention that there are records which evidence that the lamp was given on loan to the veteran to treat him for his accepted condition of a ruptured tendon.
25. Accordingly, the “first step” in Repatriation Commission v Deledio[10] is, in our view, satisfied.
[10] (1998) 83 FCR 82
“Second Deledio step”
26. The “second step” in Repatriation Commission v Deledio[11] requires us to ascertain whether there is a Statement of Principles which has been determined by the Repatriation Medical Authority.
[11] (1998) 83 FCR 82
27. We have already referred to the Statement of Principles for Malignant Neoplasm of the Brain (Instrument No 17 of 2003).
28. This Statement of Principles was in force at the date of the claim of the applicant. This Statement of Principles expressly provides that it applies to claims under s 120A of the Act.[12]
[12] Clause 9 of the Statement of Principles.
“Third Deledio step”
29. Having completed the “second step”, we now turn to the “third step” in Repatriation Commission v Deledio[13]. We are required to determine whether the relevant hypothesis complies with one or more of the factors referred to in the relevant Statement of Principles.
[13] (1998) 83 FCR 82
30. Clause 5 of the Statement of Principles lists a number of factors. Any factor “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the brain … with the circumstances of a person’s relevant service”.
31. The veteran has primarily relied upon factor 5 (b) which refers to a veteran “undergoing a course of therapeutic radiation to the head or neck before the clinical onset of malignant neoplasm of the brain where the first exposure to therapeutic radiation occurred at least two years before the clinical onset of malignant neoplasm of the brain”.
32. In applying factor 5(b) it is necessary that we first determine when there was the clinical onset of the malignant neoplasm of the brain.
33. The meaning of “clinical onset” was considered by the Full Court of the Federal Court of Australia in Lees v Repatriation Commission[14]. The Full Court referred to the analysis of this Tribunal in Re Robertson and Repatriation Commission[15], in which Senior Member Dwyer concluded that:
“... 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 at that time.”
[14] (2002) 125 FCR 331.
[15] (1998) 50 ALD 668 at 670.
34. This analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius[16].
[16] [2002] FCA 750 at [26]. See also Youngnickel v Repatriation Commission [2004] FCA 1691 at [26] per Bennett J.
35. Neither the applicant nor the respondent has made any submissions concerning when there was the clinical onset of the condition. We have noted the medical evidence that the cancer was in an aggressive form and that the death certificate records the duration of his illness as being for four months. In these circumstances we are prepared to find that the time of the clinical onset of the condition was, at the latest, sometime in 2000 or 2001.
36. We have considered whether there is material before us concerning whether the veteran was “undergoing a course of therapeutic radiation to the head or neck before the clinical onset of malignant neoplasm” within the meaning of factor 5 (b) of the Statement of Principles. There is no material before us that the veteran ever underwent a course of therapeutic radiation to the head or neck. We do not consider that the use of a heat lamp would be “a course of therapeutic radiation” as that expression is defined, in clause 8 of the Statement of Principles, as being ionizing radiation.
37. At the hearing the applicant mentioned that reliance was being also placed on factor 5(c) of the Statement of Principles which refers to a veteran “having received a cumulative equivalent dose of 0.05 Sievert (Sv) of atomic radiation to the brain where the first exposure to the brain was where this dose was accumulated at least five years before the clinical onset of malignant neoplasm of the brain”.
38. The applicant postulated that the war-time flights of the veteran may have exposed him to the necessary level of atomic radiation as mentioned in factor 5(c), although the applicant recognised that there was no evidence that the veteran had been exposed to this level of atomic radiation.
39. There is also a difficulty in the applicant relying on factor 5(c) as the term “atomic radiation” is defined, in clause 8 of the Statement of Principles, to exclude natural background radiation, therapeutic radiation and radiation from diagnostic procedures. It has not been necessary for us to decide what is meant by “natural background radiation”.
40. We mention that the respondent had in a filed statement of issues of 13 February 2008 sought information as to what factors in the Statement of Principle was being relied upon by the applicant. The applicant had not filed any material which indicated that the veteran would rely on factor 5(c). The applicant also stated that she had no documents which evidenced the flights of the veteran.
41. We have therefore come to the conclusion that neither factor 5 (b) or factor 5(c) of the Statement of Principles is established.
“Conclusion of Third Deledio step”
42. For these reasons we consider that the “third step” in Repatriation Commission v Deledio[17] is not satisfied. The claim of the applicant must therefore fail.
[17] (1998) 83 FCR 82
WHETHER A STATEMENT OF PRINCIPLES MAY BE CONTRADICTED BY SCIENTIFIC EVIDENCE
43. The applicant had, quite properly, recognised that there was no evidence before us to satisfy the relevant Statement of Principles. The applicant nevertheless raised for our consideration whether it was possible to lead scientific evidence in an endeavour to prove that the malignant neoplasm of the brain condition was war-caused. The applicant had forwarded to the respondent the first page of an article which suggested that heat was a cause of malignant neoplasm of the brain. The respondent was not in a position to properly evaluate this article before the hearing. For this reason of fairness alone it would be inappropriate for us to rely on the article.
44. However, there is a more fundamental reason why we cannot rely on the article. The Federal Court of Australia has recognised in Repatriation Commission v Gosewinckel[18]that s 120A of the Act was introduced in order to take the determination of “purely medical … issues” out of the hands of bodies such as this Tribunal[19]. In Repatriation Commission v Gosewinckel[20] Weinberg J remarked: “the tribunal cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP”.
[18] (1999) 59 ALD 690 at 704-705.
[19] See also Explanatory Memorandum to the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at 3.
[20] (1999) 59 ALD 690 at 704.
DECISION
45. For these reasons, we affirm the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.
Signed: .....................[Sgd]........................................................
Elizabeth Young, Research AssociateDate/s of Hearing 17 June 2008
Date of Decision 26 June 2008
Applicant was represented by her daughter
Solicitor for the Respondent Mr Jeff Kelly, Departmental Advocate
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