MARJORIE PHYLLIS BERGHOFER and REPATRIATION COMMISSION
[2004] AATA 58
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] 58
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/253
VETERANS' APPEALS DIVISION )
Re MARJORIE PHYLLIS BERGHOFER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date23 January 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of the veteran, Charles Edward Berghofer, was war-caused and that the applicant, Marjorie Phyllis Berghofer, is entitled to a war widow’s pension with effect from 21 June 1998.
...................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – ischaemic heart disease – hypothesis – veteran suffered from panic disorder prior to the onset of ischaemic heart disease – severe stressors – reasonable hypothesis raised connecting veteran’s death with his service - decision set aside
Veterans’ Entitlements Act 1986 ss 8, 120(1), 120(3)
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
23 January 2004 Mr O Rinaudo, Member 1. The applicant, Mrs Marjorie Phyllis Berghofer, makes application for war widow’s pension as provided for in the Veterans’ Entitlements Act 1986 (“the Act”).
Decision Under Review
2. On 5 February 1999, the Department of Veterans’ Affairs determined that the evidence available at that time did not raise a reasonable hypothesis connecting the death of Charles Berghofer with his operational service. The death was therefore not accepted as war-caused. This decision was affirmed by the Veteran’s Review Board by decision dated 20 January 2000.
History
3. The applicant is the widow of the late Charles Edward Berghofer who rendered operational service from 13 April 1942 until 20 May 1946. Mr Berghofer died on 20 June 1998. Cause of death was recorded as chest infection.
Issue
4. The issue for the Tribunal is whether the death of Mr Berghofer was war-caused within the meaning of section 8 of the Act.
Standard of Proof
5. Pursuant to the provisions of sub-section 120(1) and 120(3) of the Act, the standard of proof applicable to this application, having regard to the veteran’s operational service, is that of reasonable satisfaction.
Legislation
6. The legislation relevant to this application is contained in section 8 and section 120 of the Act, which state:
“8. War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.
…
120. Standard of proof
(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.”
Evidence
7. The applicant gave evidence at the hearing. Dr J Carter and Dr K Ratnam also gave evidence. The following exhibits were tendered:
Exhibit 1 “T” Documents
Exhibit 2 Undated Statement of Marjorie Phyllis Berghofer
Exhibit 3 Report of Dr Janis Carter dated 16 July 2002
Exhibit 4 Report of Dr KK Ratnam dated 28 August 2002
Exhibit 5 Diary ExtractExhibit 6Claim for Medical Treatment /War Pension, 21 February 1970
Exhibit 7 Medical History Sheet dated 23 February 1970
Exhibit 8 Request and Report Form dated 6 March 1970Exhibit 9Medical examination of cardiovascular system, 13 October 1993
Exhibit 10Report of Dr Alan Freed dated 27 October 1993
Exhibit 11Occupational Therapy and Home Visit Report, 21 August 1995
Exhibit 12Occupational Therapy and Home Visit Report, 7 June 1995
Exhibit 13Clinical notes of Dr JM Schultz
Exhibit 14Letter from Dr L Prado dated 21 January 2002 and attachments
8. Mrs Berghofer gave evidence that she first met the veteran in late 1946. She said that she had known him a short time before 1946. She stated that after they formally met in 1946, they started going out and married in 1949. She said that prior to 1946 she did not know the veteran well although she had seen him around and at church. Mrs Berghofer regarded the veteran as having changed when he returned after the war.
9. Before the war she described him as being quite mentally strong. She said that the veteran had for many years been receiving treatment for his heart condition. He was on medication for many years. Prior to his enlisting he had been very fit and had been an active sportsman succeeding at bike riding, hockey and tennis.
10. In 1969, his heart condition worsened and he resigned at the age of 62 years. He suffered from a heart condition over the next 29 years although he was almost completely bedridden after 1992. Mrs Berghofer cared for him around the clock after this time. Mrs Berghofer said that the veteran suffered attacks almost daily and at times, during serious attacks, would be unconscious for 30 to 40 minutes. She stated that, in respect of the veteran’s panic attacks, she recalled him suffering from the following:
(1) palpitations pounding heart or accelerated heart rate;
(2) sweating;
(3) trembling and shaking;
(4) sensations of shortness of breath or smothering;
(5) feeling of choking;
(6) chest pain and discomfort;
(7)feeling dizzy, unsteady, light-headed or faint (she described the veteran as saying that his head was full of cotton wool);
(8) paraesthesia (numbness or tingling sensations); and
(9) chills or hot flushes.
11. She said that she could recall the veteran suffering most of these from the 1950s on. She could not recall the veteran suffering from the following:
(1) nausea or abdominal distress;
(2)derealisation (feelings of unreality) or depersonalisation (being detached from oneself);
(3)fear of losing control or going crazy; and
(4)fear of dying.
12. She said that she recalled the veteran having feelings of frustration. In particular, she recalled him being frustrated when he had car problems which they could not afford to fix. He would palpitate. She said that he was often sweating from the effects of malaria. She recalled him having chest pains from the early 1950s. She said that most of the symptoms would be brought on when things went wrong.
13. Mrs Berghofer stated that the veteran was seriously ill for about four or five years before his death.
14. Dr Janis Carter, Consultant Psychiatrist, gave evidence to the Tribunal. She had completed a report dated 16 July 2002 after reviewing substantial material and interviewing the applicant on six occasions. Dr Carter confirmed her opinion that the veteran was suffering from panic disorder within the meaning of Instrument No 9 of 1999. She concluded that the veteran’s panic disorder was connected with his service, in that he witnessed severe stressors within two years of the onset of the condition. She also believed that the veteran fulfilled the diagnostic criteria of phobic anxiety state and concluded that:
“The veteran’s panic disorder had its onset probably during the war, but certainly within a very short time of his returning from the war experience. Hence, it happened long before his myocardial infarction.”
15. Dr Carter told the Tribunal that she formed this view based on assumptions and the information provided by the applicant and the veteran’s diary notes. She said that the symptoms spoken about by the veteran in his diary seemed to stem from anxiety not physical problems. Dr Carter believed that panic disorder had existed in 1946. She stated that two diseases can be co-existent.
16. In respect of requirement 2 of the panic disorder SoP, Dr Carter gave evidence that the applicant could not be absolutely sure that the veteran fulfilled the criteria of having four panic attacks each month; however, she was satisfied on the information provided by the applicant that the veteran satisfied the requirements of clause 2(b)(A)(2)(ii). Dr Carter noted that, although having fewer panic attacks, at least one of the panic attacks he suffered had been followed by 30 days or more of the following symptoms:
(a)He had persistent concern about having additional attacks like this, which he did not call panic attacks.
(b)He would worry about the physical implications of these panic attacks or physical attacks, and the consequences.
17. She concluded that he therefore satisfied the criteria for panic disorder.
18. Dr Carter was satisfied in respect of the definition of “panic attack” that, based on the information provided to her by the applicant, the veteran experienced at least 10 of the 13 matters listed. Dr Carter said:
“Marjorie is not sure whether he always experienced the same 10, but he would experience most of them in each panic attack. Hence, it seems quite clear that he suffered from panic attacks.”
19. In respect of factor 5(a) of the panic disorder SoP, Dr Carter reported, at page 4 of her report, that:
“The next factor which must be discussed is, did he suffer a severe stressor within the two years immediately before the clinical onset of panic disorder. Marjorie gives a clear history that her husband was mentally very strong prior to going to New Guinea. She says that he coped very well with the breakdown of his first marriage, even though he was very upset about it, and didn’t disintegrate about that. However, when he returned, he was a lot more emotionally fragile, and he did suffer, from the early days, from these symptoms of panic disorder. You will remember that they mixed in the same group of the Salvation Army, and although she wasn’t married to him within the two years, she still knew him. Marjorie tells me that her husband was a champion bike rider for Queensland, and she said that he had to be both physically and mentally strong to attain that title. Hence, it seems quite clear that he suffered from panic disorder, and that the stress of the war contributed to this.”
20. Dr Carter provided a brief personal history of the veteran as follows:
“He was born in Brisbane after a normal pregnancy and childbirth. His early development was normal. He attended Dutton Park Primary School. He didn’t do Scholarship. He left school at the age of 14, and became a saddler. He wanted to be a pastrycook. After that, he became a builder’s labourer, then he worked at Pennys as a cleaner, then he went to the war, and returned and worked at Pennys as a cleaner. Mr Berghofer had two children prior to going away to the war. His wife became pregnant to someone else, and that marriage broke down. There were no children of his marriage to Marjorie.”
21. However, Dr Carter said the veteran does not fulfil the diagnostic criteria of phobic anxiety state.
22. Dr Carter also concluded that the veteran’s post traumatic stress disorder is connected to his service, in that he witnessed severe stressors prior to its onset. Dr Carter confirmed in cross-examination that she had based her opinions on the material before her and particularly the evidence of the applicant. She was particularly interested in the report of Dr Freed of October 1993.
23. Dr Freed had reported, based on information supplied by the veteran, that:
“…‘I was Corporal for Salvation Army for Red Shield’. ‘We trained at Gandawinda and also Bogganvilla’.
…‘I was in the infantry. I saw people killed, mainly Japs. I lost friends, a mate of mine. He was coming down the shute. He lost his kit overboard and his girlfriend back in Australia’.
‘I was upset – saw nurses staked to the ground with their breasts cut off. It comes back to me at night time’. Before being disabled the Red Shield van needed a driver. I did it’.
‘My mind flashes back to Burma. There was a lot of action there. I was a batman to the chap sent over to the infantry. I never had to kill anyone at any stage’.
‘There were Japs up the trees acting as snipers. They got shot and fell not to the ground they just hung from the trees’.
‘I used to cry over the nurses at night. I got word that my wife was playing around, I went home to see my wife’.
‘I got malaria and was sent to Redbank Hospital. I wanted to go back cause I had mates there. Before the war I was a bike rider in my young days and a builder’s labourer and was not nervous’.
‘After the war I was a nervous man. I worked at Coles 210 store’…”
24. Dr Ratnam gave evidence. He had provided two reports dated 15 October 1998 and 28 August 2002 (Exhibit 4). In his report of 28 August 2002, Dr Ratnam notes:
“The situation was that Mr Berghofer had been asphyxiating at home. There was some concern that he had a cancerous lesion in the gullet. I then referred him to Dr Copp who performed an endoscopy. Unfortunately, Mr Berghofer died soon after this procedure as a result of his general frailty caused by Ischaemic Heart disease, Angina Pectoris, Headaches, Cervical and Lumbo-sacral disc degeneration, Diverticular Disease, Post Herpetic Neuralgia, Peptic Ulcer Disease and Renal Calculi. When I examined Mr Berghofer a week before he died, he did not have a chest infection. It is possible he developed a chest infection a few days prior to having the endoscopy. Bear in mind he had been coughing and choking on his food for some time prior to the endoscopy.
In my opinion the death certificate did not reflect the correct causes of death. The Doctors who performed the endoscopy were not the patient’s attending physicians and they did not have a complete medical history available when the death certificate was completed. From my observations of the patient, Ischaemic Heart Disease greatly contributed to Mr Berghofer’s frailty and general debility. Had I been contacted or had I filled out the certificate myself I would certainly have placed Ischaemic Heart Disease on it as a significant contributing cause of death.”
25. Dr Ratnam said that he had been treating Mr Berghofer for approximately three years before his death. He said that the veteran had been bed-bound and that when he was called to attend to the veteran he would do so. Dr Ratnam said he did not resolve from the matters set out in his reports.
Discussion and Decision
26. The applicant seeks a war widow’s pension on the basis that her husband, Mr Charles Edward Berghofer died from war-caused illness.
27. The hypothesis which is contended by Counsel for the applicant is as follows:
§Although the death certificate of the veteran shows that the cause of death was chest infection, the applicant contends that the actual cause of death was ischaemic heart disease. In this regard evidence of Dr Ratnam is applicable.
§The veteran had a myocardial infarction and/or arrhythmia with ECG evidence of myocardial ischaemia which satisfies the provisions of factor 2(b) of the Statement of Principles concerning ischaemic heart disease (Instrument No 38 of 1999).
§That Statement of Principles requires, at factor 5(o), that:
“for myocardial infarction or arrhythmia with ECG evidence of myocardial ischaemia only, suffering from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of ischaemic heart disease;”
§The applicant contends that the veteran was suffering from panic disorder and that this panic disorder was connected to his service in that the veteran witnessed severe stressors within two years of the onset of this condition (see report of Dr Janis Carter).
§This satisfies the requirements of factor 5(a) of the Statement of Principles concerning panic disorder (Instrument No 9 of 1999 as amended by Instrument No 58 of 1999).
§Medical evidence from both Dr Nelson (report dated 2 January 2002) and Dr Rankin (report dated 23 February 1970) confirm myocardial infarction as established by ECG. The report of the physician, Dr Jackson, was “postero-lateral myocardial ischaemia”. Dr Jackson diagnosed the veteran has having “coronary artery disease with myocardial ischaemic”.. Accordingly, a reasonable hypothesis is established that the veteran’s death was war-caused.
28. It should be noted that the veteran suffered from service-related disabilities of sensori-neural hearing loss and post traumatic stress disorder. At the time of his death the veteran was suffering from conductive hearing loss, coronary heart disease, malaria after effects which had been rejected as service-related.
29. At the time of his death the veteran was suffering from the following for which no claim had previously been lodged for acceptance as service-related:
§Transient ischaemic attacks
§Ischaemic heart disease
§Paget’s disease
§Parkinson’s disease
§Generalised osteoarthritis
§Chronic neuralgia
§Hiatus hernia
§Hypertension
§Peptic ulcer disease
§Diverticular disease
30. In considering the issues in this application the Tribunal had had regard to the steps to be followed in cases such as this, as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82, where the Full Court (Beaumont, Hill and O’Connor JJ) said at 97-98:
“…we would restate the course which the Tribunal is to take, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
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 s196B(2) or (11) [of the 1986 Act].. 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 s196B(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 s120(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.”
31. In relation to step 1, the Tribunal finds that the veteran rendered operational service. On the material before it, particularly the evidence of the applicant, Dr Carter and Dr Ratnam, the Tribunal is satisfied that a hypothesis connecting the death of the veteran to the service rendered by the veteran is established.
32. In relation to step 2, the Tribunal is satisfied that a Statement of Principles exist with respect to ischaemic heart disease, being Instrument No 38 of 1999, and panic disorder, being Instrument No 9 of 1999 as amended by Instrument No 58 of 1999.
33. In relation to step 3, the Tribunal is satisfied in this case that the hypotheses raised - that is, that the veteran suffered panic attacks as described in Instrument No 9 of 1999 as a result of experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder and that the veteran was suffering from panic disorder at the time of clinical onset of ischaemic heart disease – are reasonable in accordance with the relevant SoPs.
34. And, in relation to step 4, the respondent’s representative argued that the Tribunal should not accept the evidence of Dr Carter being as it was a posthumous diagnosis. The respondent argued that the veteran did not suffer from a service-related panic disorder. There was no evidence to satisfy the Tribunal that the onset of panic disorder was within two years of experiencing a severe stressor. The veteran left New Guinea in July 1943. At the veteran’s Final Medical Board examination on 14 May 1946, the veteran claimed the only symptoms he was suffering were due to malaria.
35. An examination by a neurologist in 1984 revealed nothing abnormal with the veteran’s nervous system. In 1991, Dr Freed diagnosed the veteran as suffering the features of moderate post traumatic stress disorder. Although Dr Freed was aware that the veteran flustered easily and tended to panic, he did not diagnose panic disorder.
36. The respondent contends that the applicant’s knowledge of the veteran is only after 1946 and that she knew little of him prior to that.
37. Further, the respondent contends that many of the symptoms described by the applicant were not suffered by the veteran until the late 1960s.
38. Whilst the Tribunal acknowledges the submissions made by the respondent, the Tribunal must be satisfied beyond reasonable doubt that the reasonable hypothesis put forward by the applicant is not sustainable. On the basis of the evidence provided to the Tribunal, the Tribunal cannot be satisfied beyond reasonable doubt that the hypothesis is not reasonable.
39. The veteran rendered operational service. During that service it is clear that the veteran suffered severe stressors. Although there was no direct evidence, the evidence as provided by the applicant and the opinions provided by Dr Carter based on the evidence available is that the veteran was suffering from panic attacks within two years of experiencing the severe stressors.
40. The veteran’s ischaemic heart disease is well-documented. Accordingly, the Tribunal is reasonably satisfied that panic disorder was present at the onset of ischaemic heart disease.
41. The Tribunal is also satisfied that the treating doctor, Dr Ratnam, is clearly of the view that the veteran died of ischaemic heart disease notwithstanding the notation on the death certificate of “death by chest infection”.. The Tribunal has no reason to disbelieve this evidence of the treating doctor.
42. Accordingly, in the circumstances, the Tribunal is satisfied that the veteran’s death was war-caused and that the applicant is entitled to a war widow’s pension.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 20 March 2003
Date of Decision 23 January 2004
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
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