Margetts and Repatriation Commission - [2001] AATA 879

DECISION AND REASONS FOR DECISION [2001] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1377
VETERANS' APPEALS DIVISION
  Re:         SYDNEY ARNOLD MARGETTS
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             23 October 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the secondary cardiomyopathy suffered by the applicant is war-caused with effect from 26 August 1999.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - secondary cardiomyopathy - excessive consumption of alcohol - whether war-caused
Veterans' Entitlements Act 1986 s9, 119(1)(h), 120(1), 120(3), 120(4)
Re Bridgeman and Repatriation Commission (AAT 12658, 29 January 1998)
Critch v Repatriation Commission (1996) 43 ALD 574
Lowerson v Repatriation Commission (1994) 33 ALD 385
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission vLaw (1980) 31 ALR 140
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

23 October 2001 G.D. Friedman, Member

This is an application by Sydney Arnold Margetts (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 20 October 2000. The VRB affirmed a decision of a delegate of the respondent dated 5 January 2000 to refuse a claim for disability pension for incapacity from ischaemic heart disease and primary cardiomyopathy.
At the hearing of this matter on 5 September 2001 and 10 October 2001 the applicant was represented by Ms J. Bornstein of Counsel and the respondent was represented by Mr G. Purcell of Counsel.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T96), together with four exhibits lodged by the applicant (Exhibits A1-A4) and two lodged by the respondent (Exhibits R1-R2). The Tribunal heard oral evidence from the applicant.
BACKGROUND
The applicant was born on 25 April 1927. He left school when aged 14 years and worked as a labourer until joining the Australian Army on 11 June 1945. His service included a 20-month tour of duty with the British Commonwealth Occupation Force in Japan. Whilst in the Army he injured his right knee and contracted hepatitis. He claimed that before enlisting in the Army he was a non-smoker and a non-drinker.
On discharge from the Army on 23 January 1948 the applicant undertook various labouring jobs until he commenced automotive studies and subsequently operated his own business as an auto electrician. In about 1980 he developed symptoms of weakness and general malaise, and was diagnosed as suffering from anaemia. In 1989 he was diagnosed as suffering from an ulcerated lipoma (tumour) in the small intestine and the lipoma was removed surgically. In about 1993 he underwent a cardiac evaluation and was told his heart was diseased. Two years later he developed shortness of breath and chest pains, and in 1999 was diagnosed as suffering from cardiomyopathy.
On 26 November 1999 the applicant lodged an application with the respondent for medical treatment and disability pension for incapacity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Margetts and Repatriation Commission

Details

AGLC: Margetts and Repatriation Commission [2001] AATA 879
Case: [2001] AATA 879
Decision Date: 23 October 2001

CaseChat Overview and Summary

The case of Margetts and Repatriation Commission involves an application for a medical treatment and disability pension for incapacity from ischaemic heart disease and primary cardiomyopathy. The Tribunal reviewed the decisions made by the Veterans' Review Board (VRB) regarding the applicant's claims. The primary legal issue was whether the applicant's cardiomyopathy was war-caused, particularly in relation to his excessive alcohol consumption during and after his military service.

The Tribunal assessed the evidence provided by the applicant, including his testimony about his drinking habits and the impact of his military service on his lifestyle. The applicant claimed that he started drinking heavily due to peer pressure, availability of alcohol, and lack of recreational activities during his service in Australia and Japan. He stated that his daily alcohol consumption was equivalent to three or four 750-ml bottles of full-strength beer, except on duty days, and that this continued after his discharge from the Army.

Dr. J. Hammond, a consultant physician, supported the applicant's claim by noting the significance of the applicant's alcohol consumption history in diagnosing cardiomyopathy. Dr. Hammond's report highlighted that the applicant's drinking habits fit within the criteria of the Statement of Principles (SoP) Nº 19 of 1998, which recognises heavy alcohol consumption as a factor that could connect cardiomyopathy to war service. The Tribunal also considered the applicant's admission of lying to doctors about his alcohol consumption due to embarrassment.

The Tribunal concluded that the evidence was sufficient to raise a reasonable hypothesis that the applicant's cardiomyopathy was connected to his war service. It found that the applicant's excessive alcohol consumption during and after his military service was war-caused, thus satisfying the criteria under s9 of the Veterans' Entitlements Act 1986. The Tribunal set aside the VRB's decisions and determined that the secondary cardiomyopathy suffered by the applicant was war-caused with effect from 26 August 1999.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T96), together with four exhibits lodged by the applicant (Exhibits A1-A4) and two lodged by the respondent (Exhibits R1-R2). The Tribunal heard oral evidence from the applicant. BACKGROUND The applicant was born on 25 April 1927. He left school when aged 14 years and worked as a labourer until joining the Australian Army on 11 June 1945. His service included a 20-month tour of duty with the British Commonwealth Occupation Force in Japan. Whilst in the Army he injured his right knee and contracted hepatitis. He claimed that before enlisting in the Army he was a non-smoker and a non-drinker. On discharge from the Army on 23 January 1948 the applicant undertook various labouring jobs until he commenced automotive studies and subsequently operated his own business as an auto electrician. In about 1980 he developed symptoms of weakness and general malaise, and was diagnosed as suffering from anaemia. In 1989 he was diagnosed as suffering from an ulcerated lipoma (tumour) in the small intestine and the lipoma was removed surgically. In about 1993 he underwent a cardiac evaluation and was told his heart was diseased. Two years later he developed shortness of breath and chest pains, and in 1999 was diagnosed as suffering from cardiomyopathy. On 26 November 1999 the applicant lodged an application with the respondent for medical treatment and disability pension for incapacity from ischaemic heart disease and primary cardiomyopathy. On 5 January 2000 the respondent refused the application on the grounds that the conditions were not war-caused. On 21 August 2000 the VRB affirmed the decision in relation to ischaemic heart disease and adjourned the hearing in relation to cardiomyopathy pending further investigation. On 20 October 2000 the VRB amended the diagnosis from primary cardiomyopathy to cardiomyopathy and affirmed the decision under review on the grounds that alcohol consumption was not war-caused. On 15 November 2000 the applicant sought review by the Tribunal of both decisions of the VRB. On 29 June 2001 the applicant's solicitors informed the respondent that the applicant's doctors had advised the applicant that there was no evidence of ischaemic heart disease. Therefore the applicant had decided not to pursue that claim. In its Statement of Facts and Contentions dated 30 August 2001 the respondent conceded that the applicant suffered from secondary cardiomyopathy, but did not concede that the alcohol consumption was causally related to operational service.EVIDENCE The applicant told the Tribunal that he commenced drinking alcohol and smoking after enlisting in the Army. He said that peer group pressure, the ready availability of alcohol and the lack of recreational activities at the bases where he was stationed in Australia and Japan caused him to commence drinking heavily. He told the Tribunal that he drank the equivalent of three or four 750-ml bottles of full-strength beer each day except when he was on guard or other duty. There was no limit to the amount of alcohol that could be purchased. He said that he frequently became intoxicated. In Japan there were long periods of inactivity, including periods when heavy snow prevented him from leaving the base, and this provided ample opportunity for binge drinking.

Evidence

Evidence Before The Court

On 15 November 2000 the applicant sought review by the Tribunal of both decisions of the VRB. On 29 June 2001 the applicant's solicitors informed the respondent that the applicant's doctors had advised the applicant that there was no evidence of ischaemic heart disease. Therefore the applicant had decided not to pursue that claim. In its Statement of Facts and Contentions dated 30 August 2001 the respondent conceded that the applicant suffered from secondary cardiomyopathy, but did not concede that the alcohol consumption was causally related to operational service.EVIDENCE The applicant told the Tribunal that he commenced drinking alcohol and smoking after enlisting in the Army. He said that peer group pressure, the ready availability of alcohol and the lack of recreational activities at the bases where he was stationed in Australia and Japan caused him to commence drinking heavily. He told the Tribunal that he drank the equivalent of three or four 750-ml bottles of full-strength beer each day except when he was on guard or other duty. There was no limit to the amount of alcohol that could be purchased. He said that he frequently became intoxicated. In Japan there were long periods of inactivity, including periods when heavy snow prevented him from leaving the base, and this provided ample opportunity for binge drinking. The applicant stated that after his discharge from the Army he continued to drink to the same degree, both at home and after work. He explained that in about 1981 he suffered anginal pain and breathlessness, and was told by a doctor that this was probably a heart attack, although he did not seek medical treatment. In 1984 the applicant retired from his business after suffering from anaemia, which he said was not diagnosed for some years. He said that he had been feeling unwell since about 1980. In the 1950s the applicant underwent medical examinations for possible recurrence of hepatitis and for liver damage. In his evidence at the hearing and in a written statement dated 9 November 2000 the applicant stated that whilst undergoing tests in the 1980s to ascertain the cause of his ill-health he was admonished by a doctor for his high level of alcohol consumption. He said that as he was unable to reduce his consumption. He was embarrassed to admit to drinking heavily, so he lied to doctors during medical examinations by understating his actual consumption. Under cross-examination he said that for the same reasons he has lied to doctors since 1951. For instance on 2 March 1951 his level of consumption is recorded as Beer occasional glass. In a medical examination dated October 1957 under the heading Personal Habits the examining doctor has recorded 4 daily, although there is no indication in the report whether this refers to four ounces (as specified on the form) or some other measurement. On 31 March 1970 a medical history records Alcohol – 8 gls/day, which the applicant stated could have referred to 8 glasses (either 200ml or 280 ml) per day.

Decision

Reasons for decision

For these reasons the Tribunal is not satisfied beyond reasonable doubt that the disease was not war-caused as set out in s9 of the Act or that the hypothesis cannot be sustained. DECISION The Tribunal sets aside the decision under review and substitutes a decision that the secondary cardiomyopathy suffered by the applicant is war-caused with effect from 26 August 1999. I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision herein of G.D.Friedman, Member(sgd) Catherine Thomas ClerkDate of hearing: 5 September 2001, 10 October 2001 Date of decision: 23 October 2001Counsel for applicant: Ms J.BornsteinSolicitor for applicant: Williams, Winter & HiggsCounsel for respondent: Mr G.Purcell Solicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In a written report dated 7 June 2001 (Exhibit A2), Dr J. Hammond, consultant physician at the Melbourne Hypertension Clinic, stated that the applicant reported commencing drinking alcohol during Army service because of boredom, peer group pressure and the ready availability of alcohol, and that he remained a heavy drinker after his discharge from the Army. In Dr Hammond's opinion the applicant's history of alcohol consumption is of significance in relation to the diagnosis of cardiomyopathy, and the causality of the cardiomyopathy fits within factor 5(b) of the Statement of Principles (SoP) Nº 19 of 1998.CONSIDERATION OF THE ISSUES Ms Bornstein, on behalf of the applicant, said that the SoP indicates that the calculation of alcohol contained within alcoholic drinks is to be assessed on the basis of 10 grams of alcohol per standard alcoholic drink. She submitted that the applicant's drinking habits would satisfy the requirement of 250 kilograms of alcohol within a 10-year period as raising a reasonable hypothesis to connect the condition of cardiomyopathy with war service. Ms Bornstein referred to the report from Dr Cole and noted his conclusion that the applicant's drinking increased considerably whilst he was serving in Japan and that Dr Cole believed that the applicant's excessive drinking can be related to his war service. She submitted that the applicant's excessive consumption of alcohol during service and after discharge was war-caused within the meaning of s9 of the Veterans' Entitlements Act1986 (the Act). Ms Bornstein noted that there was no dispute between the parties that the applicant had rendered operational service, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that the disease was a war-caused disease unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. She said that the process of deciding whether the material before the Tribunal raises a reasonable hypothesis is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant. In submitting that the hypothesis was raised, Ms Bornstein relied on the report from Dr Hammond and the reports from Dr B. Wood, dated 30 August 1999 and 5 September 2000, which identified cardiomyopathy and the applicant's use of alcohol after he enlisted in the Army. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. In relation to cardiomyopathy Ms Bornstein submitted that the applicable SoP is Instrument Nº 19 of 1998 which recognises the following factor as raising a reasonable hypothesis to connect that condition to war service: . . .5(b)for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy.