Marshall and Repatriation Commission
[2003] AATA 350
•17 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 350
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/1137
VETERANS' APPEALS DIVISION )
Re FAYE LOIS MARSHALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date17 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................(Sgd)....................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether the death of the veteran was war-caused – ischaemic heart disease – whether a reasonable hypothesis can be raised connecting the veteran’s death with his war-service
Veterans’ Entitlements Act 1986 ss 5B, 6A, 8, 11, 13, 14, 120
Evidence Act 1995 (Cth) s 153
Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission [2001] FCA 1879Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Gosewinckel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
17 April 2003 Mr IR Way, Member 1. This is an application by Faye Lois Marshall (“the applicant”) for review of a decision of the Repatriation Commission made on 29 June 1999 and affirmed by the Veterans’ Review Board (“VRB”) on 10 November 2000, which determined that the death of the applicant’s husband, Norman Marshall (“the veteran”) was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§Exhibit A1 Statement of Faye Lois Marshall dated 20 December 2000
§Exhibit A2 Statement of Judy Bourseguin dated 21 February 2001
§Exhibit A3 A report of Dr Colin B Jones dated 2 May 2001
§Exhibit A4 Report of Dr G Entsch dated 1 August 1990
§Exhibit A5 Report of Dr G Entsch dated 1 May 2002
§Exhibit A6 Report of Dr Judith M Chittenden dated 4 May 2001
§Exhibit A7 Report of Dr Judith M Chittenden dated 21 February 2002
§Exhibit R1 Report of Dr John Wainwright dated 2 July 2001
§Exhibit R2 Report of Dr P Grant dated 12 February 2001 with attached clinical notes of Dr Lewis
§Exhibit R3 Report of Dr Colin B Jones dated 26 February 2001 with attached clinical notes
§Exhibit R4 Various medical opinions of Dr P Grant
3. The applicant was represented by Mr R Clutterbuck of Counsel, instructed by Streeting Haney, and the respondent was represented by Mr M Smith, Departmental Advocate. The applicant, the applicant’s daughter, Judy Bourseguin, Dr Entsch and Dr Wainwright gave oral evidence. Dr Chittenden gave evidence by telephone.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14 of the Act.
5. The applicant is a widow of a veteran who rendered operational service as defined in subsections 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II.
6. The veteran was born on 28 October 1924 and rendered operational service in the Australian Army during World War II from 7 August 1941 to 26 March 1946. He also rendered non-operational service from 19 August 1946 to 3 December 1948. This matter is contested on the basis of the veteran’s operational service.
7. The veteran died on 21 January 1999, aged 74. The cause of the veteran’s death is recorded in the veteran’s death certificate as:
“(a) Myocardial infarction (b) Rheumatoid arthritis (c) Cholecystectomy”.
with the duration of the last illness being “(a) immediate”.
8. At the time of his death the veteran’s accepted service-related disabilities were:
§Left Chronic Adhesive Otitis Media
§Conductive Hearing Loss Left Ear
and his non-service-related disabilities were:
§Death
§Bilateral Sensori-neural Hearing Loss
§Rheumatoid Arthritis
9. The applicant has raised the hypothesis that the veteran experienced stress during his operational service which led to the veteran suffering a war-caused psychiatric disability, namely panic disorder, and this resulted in the veteran suffering war-caused ischaemic heart disease, this disease contributing to his death.
Legislative Framework
10. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 provides:
“(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;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and Sections 120A and 120B do not apply.
but not otherwise.”
11. Section 120 describes the relevant 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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
12. Other relevant provisions of the Act in respect of a claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
13. Section 120A provides that the reasonableness of hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP).
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(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 subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
14. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
15. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
16. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless the SoP upholds the hypothesis.
17. It is common ground between the parties, and the Tribunal accepts, that the relevant SoPs in this matter are:
§Ischaemic Heart Disease – Instrument No 38 of 1999
§Panic Disorder – Instrument No 9 of 1999
18. The Tribunal is satisfied that the following SoP may be of relevance:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999).
Applicant’s Evidence
19. In a written statement dated 22 June 1999, the applicant stated (T4/31-33):
“…I met my husband, Norm, during the war and we married in April 1946. Immediately after we were married I noted that he was having regular nightmares which involved him threshing around in the bed, calling out loudly and using derogatory language towards the Japanese. He woke from these nightmares with his hear racing, sweating profusely and in a state of fright. At that time he was having 3 or 4 nightmares a month.
Norm rarely talked about his war service with me or anyone else in detail, but he did tell me that when he was serving in Borneo he was required to disinter soldiers who had been killed and hastily buried for subsequent proper burial in official war graves. It was clear to me from our discussions that this was a terrible experience for him and affected him badly. He also said that although the war was over or nearly over while he was in Borneo, many of the Japanese in the jungle did not know that the war was over, and he and his mates were still worried about being shot. …
Norm did not wish to seek treatment for his nightmares and I believe this was because he had many mates also involved in those duties in Borneo, and he thought he should be able to deal with the problem himself.
In 1949 we went to live in New Guinea where Norm worked as a driver, and later he developed his own transport business. During the period we were in New Guinea, Norm’s nightmares subsided but did not stop altogether. The nightmares continued about once or twice a month, and I believe this gradual decline occurred because Norm was actively involved in his business and his mind was distracted from the memory of his war service.
However, when we returned to Australia about 1970 the nightmares returned to their previous frequency. Norm was no longer able to work because of a serious deterioration in the condition of his knees, and the nightmares returned to their previous prominence in our daily lives, and they maintained this level of frequency for the remainder of Norm’s life.
The nightmares were very difficult for me – they always woke me because of the way Norm threshed around and called out. I was concerned for Norm of course, but I was also concerned for my own safety and mental wellbeing. In an attempt to stop the problem I asked our LMO to prescribe sleeping tablets for Norm, but these had no noticeable effect.
In January this year Norm had the worst nightmare in my experience. I woke with Norm’s hands around my throat shaking me vigorously while he was calling out in a loud, threatening voice, again with derogatory references to the Japanese, and I feared for my safety. Norm subsequently released me and then began kicking me violently – this must have taken great physical effort because of the stiffness of his legs caused by his artificial knee joints. My severely bruised leg arising from this event was noted by my daughter. Several days later on 21 January this year, Norm died of a heart attack. …”
20. In her written statement dated 20 December 2000 (Exhibit A1), the applicant said:
“At my last interview with the Veterans’ Review board on June 20 this year I detailed to the best of my ability the nightmares and panic attacks my husband suffered.
I also explained my usual method of waking him was to leave the bedroom and make household noises such as getting a glass of water, coughing, flushing the toilet, etc. By the time I returned to the bedroom he would usually be sitting on the side of the bed – his heart racing – tense and trembling, more like shivering.
Should I have tried to wake him by touching him he would have become more violent so it was always best to rouse him with noise in another part of the house.
I also told the Board of his reaction to the TV new bulletin of the recovery of the bodies from the Belangalo State Forest murders. Right at the end of my interview I was asked if he had any reactions during his waking hours to that question, I replied NO. Thinking back that was not a correct answer. I was quickly trying to think of physical reactions such as the vomiting attack following the Belangalo episode and the awful thrashing about during the nightmares. However, during the waking hours I would often find him lying down, his heart racing and out in a sweat. On asking if he was alright, he would assure me he would soon calm down – it was as though he’d had a bad fright. This could happen several times a week or go a few weeks without occurring. …
My husband was adamant he could handle these problems himself and he refused to seek professional help. Any attempt I then made to draw it to the attention of his GP, he always forestalled. The nightmares and panic attacks were always an acute embarrassment to him and something I now sincerely regret was not brought to light.”
21. In her oral evidence, the applicant said she had first met her husband in 1942 and saw him subsequently in 1944 when he was on leave, and that they were married on 3 April 1946. She said her husband was always bright and cheerful before he went to Borneo during the war but he was an entirely different person when he returned from Borneo, having become very quiet, reserved, nervous and frightened by loud noises such that he would quietly go off to their bedroom and he would be shaking, sweating and his heart would be racing. She reinforced her written statements about the veteran’s nightmares and said he never said what he had been dreaming about during the nightmares. However, he would scream out about the Japanese. She said her husband was not violent at other times. However, he reacted badly to seeing photographs or television coverage of casualties.
22. With respect to the veteran’s heart condition, the applicant said her husband was on heart tablets and she thought at one stage he had worn a heart monitor but she could not recall when.
23. She said that her husband liked to have company at home, he liked to read and that they “didn’t go out a lot”, because of her husband’s arthritis.
24. In answer to questions from the Tribunal the applicant confirmed that the veteran had put his age up to enlist and that he had actually been 16 years old when he first joined the Army. The applicant said that after the veteran rejoined the Army in August 1946 he was living mostly in Barracks during the week, but he got home as often as he could. She said her husband had at this stage volunteered for the Occupation Forces in Japan but he decided not to go because of the birth of their baby girl in February 1947.
25. After discharge from the Army in 1948 the applicant said she and her husband went to New Guinea where they lived for some twenty years. She said they did well in business in New Guinea and lived comfortably. On return to Australia in 1970, the applicant said they lived off rent from property they owned in New Guinea and shortly after this went into a motel business on the Gold Coast for three years. After selling the motel (in 1975) the applicant said the veteran had not worked.
26. In answer to questions in cross-examination, the applicant said that her husband’s panic attacks did not occur during the day in the early years of her marriage but started in the 1970s, occurring sometimes two or three times a week but he could go a month with no attacks.
27. The applicant’s daughter, Judy Bourseguin, provided a written stated dated 21 February 2001 (Exhibit A2). In her statement, Mrs Bourseguin recalled the nightmares her father had, the effects of these nightmares and her father’s reluctance to seek medical help about them because the doctors “would think he was nuts”. She stated:
“…I don’t know what Dad went through during the war but what he did mention to me a few years before he died, because the war years came up in conversation and I wanted to know why he didn’t get back to Australia until six months after the war was over, was that he was in Borneo reburying Australian soldiers who had been hastily buried during the fighting – this was something that I think affected him for the rest of his life – his description of the smell and the corpses falling to pieces as they tried to move them must have been the most disturbing, distressing, frightening experience a young twenty one year old could have to endure.
My Day was not a nut. He was to our family and friends strong, caring, funny and I wish we could have come up with something over the years to have stopped these ugly memories slowing taking their toll on his health. …”
28. In her oral evidence, Mrs Bourseguin said she had observed her father watch things like “The World at War” and that he could “watch the German sort of things because that didn’t worry him, but Japanese type things he wasn’t very good on” and she described his reaction to these sorts of things as “becoming very quiet and quite moody”. Apart from this, it was her evidence that she did not observe him suffering “panic attacks” during the day time.
29. The Tribunal notes that this evidence was mainly based on Mrs Bourseguin’s recollections of her father from 1950 to 1965.
Medical Evidence
30. Dr Judith M Chittenden, Psychiatrist, extensively interviewed the applicant on 28 March 2001 and provided two written reports, one dated 4 May 2001 (Exhibit A6) and one dated 21 February 2002 (Exhibit A7). Dr Chittenden diagnosed the veteran as suffering from war-caused post traumatic stress disorder, accompanied by clear signs of panic disorder without agoraphobia. Dr Chittenden expressed the opinion:
“It would be difficult in some cases to distinguish Post Traumatic Stress Disorder and panic attacks, as extreme anxiety which one views in Post Traumatic Stress Disorder would be very like panic attacks in practise, and these conditions in Mr Marshall’s case could be described as being fairly difficult to distinguish between his fairly severe symptomatology.
Of note would be Mr Marshall’s last severe nightmare when he virtually throttled his wife and injured her leg as a result of an assault upon her (quite unknown to himself), to the extent that when he woke up he was mortified by seeing the marks he had made upon his wife. This was only I understand a short time before his death, and it would appear a great source of distress to both Mr and Mrs Marshall that this had occurred.
The fact that Mr Marshall undoubtedly had severe rheumatoid arthritis and yet was able to move around and exert himself in the way that he did in a nightmare, merely suggests that he would have been terrified at the time and his dream would have been very vivid. Due to his illusions to Japanese, often in very derogatory terms, one can only make the connection that he must have been very frightened indeed for his life during these nightmares, to the extent that his movement was extreme in trying to get away or defend himself from the danger that he had in his nightmare.
Sadly, Mr Marshall never did approach a doctor with regard to his psychological disabilities, which were extreme at times. This was because of his fear of mental illness, common to his generation, and also his extreme shame as to what he saw as his ‘weakness’. As it was, he only got peripherally treated for his disability (sleeping tablets for his inability to sleep and restlessness at night etc), and the full import of his symptomatology was never discussed with a medical person. His wife, and his son and daughter respected his privacy and his wish to confidentiality, and the ‘secret’ was kept within the family, as it turned out, greatly to their detriment.”
31. In her second report (Exhibit A7), Dr Chittenden opined that the veteran “clearly exhibited all the signs and symptoms of panic attacks as recounted by his wife (and according to the Statement of Principles concerning Ischaemic Heart Disease)”.. In her oral evidence Dr Chittenden was taken to Dr Wainwright’s report where he opined that there was no objective evidence that Mr Marshall had a psychiatric disability. She said that perhaps she had asked different questions and got different answers and arrived at different interpretations of these answers.
32. In answer to questions in cross-examination, Dr Chittenden said that the veteran would certainly appear to have most of the criteria, or all of the criteria, with regard to PTSD but he particularly presented with panic attacks and that these can be part and parcel of PTSD.
33. Dr Chittenden confirmed her diagnosis of the veteran suffering from PTSD and panic disorder and that panic disorder can be part of another psychiatric syndrome. She also stated that nightmares and waking up sweating of themselves are not symptoms of panic disorder but it is the aftermath of nightmares which constitute panic attacks. She reinforced her opinion that the veteran clearly met the criteria for panic attack. When asked if she had been able to exclude organic disease as a reason for the applicant’s symptoms, she said that this was not in her sphere. She said she is aware that the veteran suffered from arrhythmia and that this could cause symptoms of the same kind as those suffered by the veteran. However, it was her understanding that the veteran’s panic attacks occurred at times other than when he was suffering atrial fibrillation (at which time she would have expected him to be more worried about his heart than cues relating to his war time experiences).
34. With respect to frequency of panic attacks, Dr Chittenden said that she had not checked any connection between the applicant’s attacks of atrial fibrillation and his panic attacks. However, she understood his panic attacks were fairly frequent, of the order seven to eight times per month, although they waxed and waned, being not as frequent during the veteran’s time in New Guinea.
35. The Tribunal notes that the veteran’s medical history (T4/10) records the veteran’s brother having experience a nervous breakdown in 1942 and that when asked about the significance of this, Dr Chittenden expressed the opinion that she could not make any useful comment without knowing more of the history of the brother’s condition.
36. Dr Chittenden in her report of 21 February 2002 (Exhibit A7), in addressing the question of the veteran’s heart condition, said:
“As far as I am aware, one of the symptoms that one may have before a Myocardial Infarction is that of ‘Ischaemia’ due to narrowing of the blood vessels to the heart. This is often terms ‘Ischaemic Heart Disease’ and ‘death from Ischaemic Heart Disease’, and is in a general sense the same as a total Myocardial Infarction.
Mr Marshall had several symptoms which indicated he may have heart disease. He had hypertension (noted by General Practitioner), and he also had several attacks of Atrial Fibrillation of ‘unknown cause’.. This suggests that Mr Marshall had an unstable heart condition under stress (e.g. surgery). Mr Marshall’s heart condition was treated with Digoxin which did help his heart condition. This is a general non-specialist description of Mr Marshall’s heart condition from the notes I received. …
As Mr Marshall’s panic/anxiety attacks have never been well documented (due to Mr Marshall’s reticence), whether Mr Marshall had an anxiety/panic attack around the time of his final surgery can only be conjecture, but if he did, it would put extra pressure on an already damaged heart. …
Mr Marshall was known to have previous heart pathology and the stress of his operation and other medical illnesses would certainly put a huge stress on his cardiac system, but surgery had to be done, and appeared to be done in the most supportive medical circumstances. …
If in conjecture, Mr Marshall had had a panic attack (which had occurred on frequent occasions at his home as previously described), an event such as that could well have ‘tipped the balance’ and in fact resulted in Mr Marshall’s death. …”
37. Dr G Entsch, Consultant Physician, provided four written reports:
§10 August 1990 (T4/23)
§17 October 1990 (T4/24)
§1 August 1990 (Exhibit A4)
§1 May 2002 (Exhibit A5).
38. On 1 August 1990, Dr Entsch observed the veteran in Pindara Hospital and noted:
“…no chest pain…fairly rapid irregular pulse but adequate blood pressure. ECG showed rapid atrial fibrillation with minor ST and T wave changes. Transferred to coronary care and reverted spontaneously. … No definite past history of same.”
39. On 10 August 1990, Dr Entsch in a report to Dr Watson said:
“No further atrial fibrillation…suggest he stays on the Digoxin long term in view of the two episodes of arrhythmia. …”
and in a further letter to Dr Watson, dated 17 October 1990, Dr Entsch stated:
“...pulse rate of about 120…I understand normal ECG in hospital and was satisfactory there…
150/70 lying. Sinus rhythm. Heart clinically normal. No failure. ECG showed Digoxin effect but otherwise normal.”
40. In his report of 1 May 2002 (Exhibit A5), Dr Entsch opined:
“The crux of the problem is whether the patient is likely to have died from myocardial infarction or ischaemic heart disease…
…The most frequent causes of atrial fibrillation in this age group would be coronary artery disease, hypertension, cardiomyopathy, including alcohol and thyrotoxicosis, primary mitral valve disease.
Diagnosed in 1985 as hypertensive, according to your letter, but I note that in Dr Clark’s letter of 1995 there is no mention of this diagnosis and he was not on blood pressure lowering medication, Dr Clark states that his blood pressure at the time was 140/80. Alcohol history was apparently negative. There was no clinical evidence of primary mitral valve disease mentioned.
By exclusion it would seem statistically likely that this man had some coronary artery disease, perhaps contributing to his atrial fibrillation.
The sudden death three days after cholecystectomy is somewhat suggestive of pulmonary embolism or coronary artery disease with lethal arrhythmia. Usually atrial fibrillation is not lethal, but could be as a final complication of other heart disease or pulmonary embolism.
From this distance one could only say that on probability this man probably did have some coronary artery disease, and coronary artery disease is a frequent cause of sudden death, but I could not speculate beyond this on the information available.
Although there is no statement on thyroid function tests in my letter of 1st August 1990, I state he was ‘clinically euthyroid’, which means no clinical evidence of thyrotoxicosis.”
41. In his oral evidence, Dr Entsch, when asked to expand on the comment in his report (Exhibit A5) that “by exclusion, it would seem statistically likely that this man had some coronary artery disease perhaps contributing to his atrial fibrillation”, said:
“In view of his age, and also slightly affected by the fact that he had had the current atrial fibrillation, and the fact that he died suddenly without any obvious preceding symptoms, that total scenario is moderately suggestive that he had coronary artery disease.”
42. Dr Entsch was asked to comment on an opinion expressed by Dr P Grant (Exhibit R4) that the veteran’s death might have been as a result of a pulmonary embolus, a myocardial infarct or sudden cardiac arrhythmia. Dr Entsch said:
“Pulmonary embolus can cause sudden relatively silent death, but it is more likely to cause symptomatic death.. He was in hospital after all, and presumably if he was obviously breathless or had called out in pain, then he presumably would have been seen. So although the list he gives is a good list, I would think in the circumstances where he dies silently in a hospital setting that it is most likely the third; sudden cardiac arrhythmia of which the usual cause is coronary artery disease without its complication of myocardial infarction.”
43. The Tribunal notes that Dr Dick, Consultant Physician, saw the veteran on 17 November 1987 after his hemicholectomy for bleeding from a diverticulum and after the veteran had developed a rapid tachycardia. When Dr Dick saw the veteran, his heart was regular 96 per minute, blood pressure 120/80 and no ECG signs of ischaemia. Dr Dick made no mention of the presence of ischaemic heart disease. Dr Entsch opined that this did not mean that ischaemic heart disease did not exist, simply that there was no other evidence of ischaemic heart disease at the time, atrial fibrillation having many possible causes.
44. In cross-examination, Dr Entsch said that when he examined the veteran on 1 August 1990 at Pindara Hospital following his left total knee replacement, the ECG showed rapid atrial fibrillation with minor ST and T wave changes which could be consistent with ischaemic heart disease or could be just secondary to a rapid rate, there being no way of differentiating just on one ECG.
45. Dr Entsch agreed that the veteran showed a pattern of atrial fibrillation shortly after surgery and that there was no evidence of heart failure up until 1995.
46. The Tribunal notes that Dr Clark, Consultant Physician saw the veteran in February 1995, prior to surgery to replace his right knee. Dr Clark records the applicant denying angina, myocardial infarction and an ECG showing sinus rhythm, and opines that the veteran was a reasonable candidate for an operation despite his proneness to supra-ventricular tachycardia (Exhibit R2).
47. In re-examination, Dr Entsch said there was no conclusive evidence to show that the veteran did not have coronary artery disease even though there were no firm clinical manifestations of coronary artery disease in the letters up until 1995. He agreed that ischaemic heart disease builds up over a period of time and could become symptomatic at any time. He said the veteran:
“could be non-completely, non-symptomatic prior to his surgery but in the period post surgery could become symptomatic. The commonest mechanism would be a thrombosis occurring in the coronary artery which can occur over minutes to hours; builds up, is completely silent until the patient either gets pain, shortness of breath or arrhythmia.”
48. Dr JS Wainwright, Psychiatrist, provided a written report dated 17 August 2000 (T4/56-57) and a further report (after interviewing the applicant) dated 2 July 2001 (Exhibit R1).
49. Dr Wainwright opines that there is no objective evidence that the veteran had a psychiatric disability and said:
“In my opinion, there is still no objective evidence that Mr Marshall had a psychiatric disability. Mr Marshall’s cardiac arrhythmias (ie palpitations, pounding heart, accelerated heart rate) have been diagnosed by three different specialists as having been due to supraventicular tachycardia/paroxysmal atrial fibrillation. It is scarcely credible that Mr Marshall could have had two different conditions with the same symptomatology, ie it is highly unlikely that he could have had both paroxysmal atrial fibrillation and Panic Disorder. Since Mr Marshall’s symptoms were due to a general medical condition, he did not fulfil the diagnostic criteria for a diagnosis of Panic Disorder.
In my opinion, Mr Marshall did not have Post Traumatic Stress Disorder (Diagnostic and Statistical Manual of Mental Disorders – fourth edition). Mr Marshall did not show any persistent avoidance of stimuli associated with the trauma, and continued working in the Army following the end of his time overseas. He then worked and lived in tropical countries, which one would normally expect to bring back memories of any traumatic experiences in tropical countries such as Borneo and New Guinea. He enjoyed books about both WW1 and WW2. Similarly, there was no numbing of general responsiveness: Mr Shall did not show any diminished interest or participation in significant activities. There was no feeling of detachment or estrangement from others, and there was no restricted range of affect, or sense of a foreshortened future: rather, he had a very happy and fulfilled marital life, with many friends, and a close relationship to this children. The history suggests that Mr Marshall did not have any clinically significant distress or impairment in his social, occupational, or any other important areas of functioning: his working life was satisfactory, his social life was satisfactory, his marital relationship was good, and his relationship with people generally was also good. Mr Marshall therefore did not fulfil the diagnostic criteria for a diagnosis of Post Traumatic Stress Disorder.
In summary, I do not consider that either the diagnosis of Post Traumatic Stress Disorder or Panic Disorder can be justified on the basis of the current evidence. There is no evidence that Mr Marshall suffered from any other psychiatric disorder.”
50. In his oral evidence, Dr Wainwright accepted that the veteran suffered from unpleasant nightmares that were very likely due to his war-time experiences. However, Dr Wainwright expressed the opinion that bad dreams alone do not constitute panic disorder and that the veteran’s daytime episodes of returning to his bed shaking, sweating and with heart racing could be explained by his condition of atrial fibrillation, and before making any psychiatric diagnosis you must eliminate physical causes.
51. In cross-examination, Dr Wainwright said he had no doubt that the veteran suffered some terrible things during the war. However, he was of the view that recalling or re-experiencing unpleasant experiences or having intrusive recollections was normal and did not constitute a psychiatric disorder.
52. With regard to palpitations, pounding heart, accelerated heart rates and sweating, Dr Wainwright agreed that these were all symptoms of panic attack. However, he said you cannot take symptoms in isolation to an assessment of a person’s whole life. Dr Wainwright said that although the veteran may have some psychiatric symptoms and may have been troubled greatly from time to time with war memories, this did not constitute a psychiatric disorder.
53. Dr Grant, Senior Medical Officer for the respondent, provided a written medical opinion dated 12 February 2001 (Exhibit R2) and a number of other medical opinions (Exhibit R4).
54. Dr Grant noted that Dr Lewis, the veteran’s LMO from 1985 to January 1990, diagnosed “anxiety state” in 1992 and prescribed diazepam; that depression was noted in June 1992, for which tryptanol was prescribed; that atrial fibrillation was diagnosed in 1995 and treated with digoxin; and that he could find no mention of ischaemic heart disease or myocardial ischaemia, or ongoing psychiatric problems, or arrhythmia being sustained.
55. In his report dated 14 May 2001, Dr Grant referred to the report of Dr Jones dated 2 May 2001 (see paragraph 57) and opined:
“I note the comments of Dr Jones in his report of 2 May 2001. I interpret his reasons for electing to record ‘myocardial infarction’ on the death certificate are that Mr Marshall died suddenly and unexpectedly in the early post-operative phase. This diagnosis was favoured over other possible causes in view of the relatively short period of time between surgery and death, the absence of stigmata of deep venous thrombosis or pulmonary embolus, and the history of a heart condition. In way of passing, I can find no evidence of an autopsy being performed and it would appear that the body was cremated.
2. The latter term is limited to atrial fibrillation based on the clinical notes on file – atrial fibrillation is an important factor in terms of sudden cardiac death. This is a well-recognised cause of death and it is distinct from myocardial ischaemia or infarction [see the attachment from Harrison’s Principles of Internal Medicine (14 edition) Online].
3. To address your four questions as of 8 February 2001 again, the diagnosis of ‘myocardial infarction’ on the death certificate appears to be based on speculation. Sudden cardiac death would have been more appropriate as a diagnosis in my opinion. The identifiable cardiac condition to be considered is atrial fibrillation [a common supraventicular tachycardia (ICD 427.89)]. Ischaemic heart disease was never diagnosed when Mr Marshall was alive. On reading the Statements of Principles for atrial fibrillation, none of the risk factors appears to be satisfied, in my opinion.
4. If myocardial infarction is accepted then clinical onset was on the day of death. Dr Jones provides no material to corroborate myocardial infarction nor is there any electrocardiographic evidence of an arrhythmia due to myocardial ischaemia. The atrial fibrillation was consistently reported as being of unknown origin. The most likely cause of death is sudden onset of a fatal arrhythmia during the early post-operative phase with atrial fibrillation a likely factor in my opinion. There is no history of panic disorder or phobic anxiety.”
56. In his report of 28 May 2002, Dr Grant opined that the presence of atrial fibrillation is not synonymous with ischaemic heart disease, paroxysmal atrial fibrillation being more common in those with normal hearts and it would be speculation to conclude that the presence of paroxysmal atrial fibrillation meant that the veteran had underlying ischaemic heart disease and that there had been no confirmation of the veteran suffering from ischaemic heart disease. Dr Grant expressed the opinion that in view of the proximity of the veteran’s death to his gall bladder surgery, it would not be unreasonable to consider that the cause might have been a pulmonary embolus, a myocardial infarct or sudden cardiac arrhythmia.
57. Dr Colin B Jones, Surgeon, who performed the operation on the veteran’s gall bladder on 18 January 1999, in a written report dated 2 May 2001 (Exhibit A3), stated:
“Following our telephone conversation and my letter of the 26th of February 2001. Mr Norman Marshall underwent cholecystectomy on the 18/1/99. He had a previous history of heart disease for which he was receiving Lanoxin and also had a 40 year history of rheumatoid arthritis much improved on Methotrexate. Previously he had undergone abdominal surgery including defunctioning colostomy for diverticular disease as well as ERCP twelve months prior to admission.
The operation proceeded satisfactorily as was his post operative course. The following day he was mobilised and commenced diet and his nursing notes prior to his death recorded at 21.30 hours on the 20/1/99 – ‘the patient was tolerating diet’ and indeed ‘was taken for a walk’.. However, at 2.40 hours on the 21/1/99 the patient was found unresponsive with no pulse and a code blue was called. In spite of attendance by the arrest team and rigorous efforts at resuscitation this was unsuccessful.
The following day after consultation with the appropriate authorities and in view of his previous cardiac problems it was felt that he had had a cardiac arrest secondary infarction and it was on this basis that the notation on the death certificate was completed.”
Submissions
58. Mr Clutterbuck for the applicant submitted that the veteran’s death certificate should be accepted as prima facie evidence of the cause of the veteran’s death, pursuant to section 153 of the Evidence Act1995 (Cth), and that on all of the medical opinions before it the Tribunal would be satisfied that the veteran’s cause of death was myocardial infarction and that the veteran suffered from ischaemic heart disease.
59. Furthermore, it was submitted that the veteran suffered from panic disorder, within the meaning of that condition in the relevant SoP (Instrument No 9 of 1999) and that this condition was causally related to his war-time experiences in Borneo, the veteran satisfying factor 5(a) of the SoP, namely, experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder. This being so it was submitted that the veteran’s ischaemic heart disease was causally related to his war-time experiences in that he met factor 5(o) of the relevant SoP for ischaemic heart disease, namely:
“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;”
60. As such, it was submitted that the veteran’s death was war-caused and that the applicant should be paid a war widow’s pension.
61. Mr Smith, for the respondent, submitted that in the first instance the Tribunal needed to be reasonably satisfied as to what was the diagnosis of the cause of the veteran’s death and in this respect the Tribunal was referred to Repatriation Commission v Cooke (1998) 160 ALR 17 and Benjamin v Repatriation Commission [2001] FCA 1879.
62. It was the respondent’s submission that Dr Entsch confirmed the opinion of Dr Grant that there was never any evidence of the veteran suffering ischaemic heart disease in general, or myocardial infarction in particular, although there was a long history of atrial fibrillation. Furthermore, it was submitted that Dr Entsch agreed that atrial fibrillation could have been a cause of death and could exist in the absence of any other heart disease; that in this case, although the veteran suffered from arrhythmia, there is no ECG evidence of myocardial ischaemia and that attributing death to myocardial infarction was based on probabilities.
63. It was submitted by Mr Smith that for a reasonable hypothesis to be raised, it is not sufficient that the material before the Tribunal merely leaves open the hypothesis, it must actually point to it (see Repatriation Commission v Bey (1997) 149 ALR 721 at 730). In this case, while it is certainly possible that ischaemic heart disease manifested itself for the first time at the time of death, it is merely left open by the evidence, not pointed to by the evidence.
64. With respect to panic disorder, it was submitted that the correct assessment of the veteran’s psychiatric state was made by Dr Wainwright, namely, that the veteran suffered nightmares as a result of his war service. However, these were not sufficient to amount to a psychiatric disorder. Furthermore, it was submitted that if Dr Chittenden’s opinion is to be preferred, the fact that she diagnosed the co-existence of both panic disorder and PTSD leads to a legal difficulty, in that paragraph (2)(D) of the panic disorder SoP, consistent with DSM-IV, requires “the panic attacks are not better accounted for by an another mental disorder, such as … post traumatic stress disorder…”.
65. It was submitted, therefore, that the diagnosis of PTSD rules out panic disorder. It was further submitted that even if Dr Chittenden’s opinions were to be accepted, the correct diagnosis, based on the criteria she identified, is PTSD and not panic disorder. Mr Smith referred the Tribunal to Repatriation Commission v Gosewinckel [1999] FCA 1273 (paragraphs 50-68), in consideration of this matter.
66. Furthermore, it was submitted that in this case the panic attacks the veteran suffered from were in fact atrial fibrillation, it being possible that all of the thirteen symptoms of panic attack (vide the relevant SoP) could occur in an attack of atrial fibrillation (a condition from which the veteran was known to suffer).
67. It was also submitted that even if the Tribunal were to accept that the veteran suffered panic attacks such attacks did not amount to a panic disorder, as on the evidence of the applicant and Mrs Bourseguin, it could not be concluded that the veteran suffered from such attacks within the timeframe of two years of the severe stressor, as called for by the relevant SoP.
68. It was the respondent’s submission that the veteran did not suffer from a war-caused panic disorder and that there is no evidence pointing to the cause of death as ischaemic heart disease.
Consideration
69. The first question before the Tribunal is what was the cause of the veteran’s death. The applicant is of the view that the veteran’s death certificate should be accepted whereas the respondent is of the view that there is no evidence pointing to the cause of death as ischaemic heart disease.
70. With respect to the death certificate the Tribunal accepts the applicant’s submission that this document is prima facie evidence. However, as Dr Entsch testified, death certificates are not infrequently made on probabilities, particularly in cases such as this where the veteran died suddenly in hospital and where there was no autopsy. The Tribunal therefore accepts the respondent’s submission that death certificates cannot be taken to be 100% correct.
71. The Tribunal therefore is of the view that it has to consider the opinions of all of the medical witnesses in this case and determine on the balance of probabilities what was the cause of the veteran’s death. At arriving at this view, the Tribunal accepts that the death certificate is an official document which has been lawfully done and performed and that what appears in the document, in this case, can be taken as a true record of that which it purports to be and to be evidence of the facts it contains. However, such conclusions do not stand in the way of the Tribunal considering whether the cause of death, properly recorded in the certificate, is the correct cause of death.
72. In considering the evidence in this matter, the Tribunal is mindful that in Repatriation Commission v Cooke (supra) the Full Federal Court said (at p 20):
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
73. In Benjamin v Repatriation Commission (supra) the Full Federal Court said:
“55. The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
56. However, if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all of the evidence available to it, whether s 120(3) is satisfied, without reference to s 120A(3).
57. That is to say, if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the Veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Commission will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of s 120(1).”
74. Dr Jones, who certified the cause of death, was the veteran’s treating surgeon at the time of his death and made the notation on the death certificate after consulting with the appropriate authorities and taking into account the veteran’s previous cardiac problems. It was on this basis that Dr Jones felt that the veteran had had a cardiac arrest secondary infarction.
75. Dr Entsch, Consultant Physician, who saw the veteran in 1990, recorded the veteran’s ECG as showing rapid atrial fibrillation with minor ST and T waves that reverted spontaneously.
76. Dr Dick, Consultant Physician, who had performed bowel surgery on the veteran in 1987, had at that time reported the veteran suffering a supraventicular tachycardia that reverted after intravenous digoxin.
77. Dr Clark, who replaced the veteran’s right knee joint in 1995 and was aware that the veteran was prone to SVT, recorded an ECG showing sinus rhythm and that the veteran denied angina, myocardial infarction or cerebro-vascular infarct. Furthermore, Dr Clark, in February 1995, recorded the veteran’s blood pressure as 150/80 and did not record hypertension or the veteran taking any blood pressure pills at that time.
78. Dr Entsch went on to opine that the most frequent cause of atrial fibrillation in the veteran’s age group would be coronary artery disease, hypertension, cardiomyopathy including alcohol and thyrotoxicosis and primary mitral valve disease. As there is no clinical evidence of hypertension, primary mitral disease or a history of alcohol abuse, Dr Entsch, by exclusion, opined that it would seem statistically likely that the veteran had some coronary artery disease, perhaps contributing to his atrial fibrillation and that in view of his age, his history of atrial fibrillation and the fact that he died suddenly without any obvious preceding symptoms, the circumstances were moderately suggestive that the veteran had coronary artery disease.
79. Dr Grant, Senior Medical Officer for the respondent, opined that it would not be unreasonable to consider that the cause of the veteran’s death might have been a pulmonary embolus, a myocardial infarction or sudden cardiac arrhythmia.
80. Dr Entsch agreed that this opinion was reasonable and further agreed that the third cause was the most likely, again reinforcing his view that the usual cause of sudden cardiac arrhythmia is coronary artery disease.
81. The applicant, in part, has relied on the opinion of Dr Chittenden, where she opined that the veteran had several symptoms which indicated that he may have heart disease, namely, hypertension and attacks of atrial fibrillation of unknown cause and that any panic attack, particularly a severe attack, that the veteran suffered around the time of his surgery would have put extra pressure on to his already damaged heart. In making these comments, Dr Chittenden quite rightly pointed out that she was answering questions put to her about matters which are outside her speciality and where it would be more appropriate to seek further information from a physician. The Tribunal agrees with Dr Chittenden in respect of her speciality and has therefore given little weight to her opinion that the veteran had several symptoms which indicated that he may have had heart disease. In any event, the evidence before the Tribunal is that the veteran was not being treated for hypertension.
82. In considering the cause of the veteran’s death, the Tribunal on the material before it accepts the respondent’s submission that there is no ECG evidence of the veteran suffering myocardial ischaemia and therefore it cannot be said that the veteran meets that part of the definition of ischaemic heart disease in the relevant SoP, namely “arrhythmia with ECG evidence of myocardial ischaemia”.
83. Discounting Dr Chittenden’s views (for the reasons given above) the Tribunal notes that both Dr Grant and Dr Entsch agree that it is not unreasonable to consider the causes of the veteran’s death to have been a pulmonary embolus, a myocardial infarct, or sudden cardiac arrhythmia.
84. Dr Grant has expressed the view that the latter cause is the likely cause and in his oral evidence Dr Entsch agreed with this opinion. In view of this and after careful consideration of all of the material before it, the Tribunal is satisfied, on balance, that the cause of the veteran’s death was sudden cardiac arrhythmia and furthermore the Tribunal is reasonably satisfied that the death certificate, while clearly an official document, lawfully done and performed, does not record the actual cause of death. In so finding the Tribunal is satisfied the veteran did not suffer a myocardial infarction at the time of his death.
85. That being so, the Tribunal must then turn its attention to the consideration of the hypothesis put forward by the applicant.
86. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:
“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). 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.”
87. After careful consideration of all of the material before it, the Tribunal is satisfied that the material before it does point to an hypothesis as contended by the applicant and furthermore that there are relevant SoPs in place, namely Ischaemic Heart Disease (Instrument No 38 of 1999) and Panic Disorder (Instrument No 9 of 1999).
88. The Tribunal then must consider whether the hypothesis put forward by the applicant is a reasonable one.
89. In the first instance it is appropriate to assume that the veteran suffered from war-caused panic disorder and that therefore factor 5(o) of Instrument No 38 of 1999 (Ischaemic Heart Disease) is to be considered. Factor 5(o) states:
“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;”
90. In order for the applicant’s case to succeed, the applicant’s hypothesis must fit the template of the SoP. In this case, as the Tribunal has already found, the veteran did not suffer a myocardial infarction nor did the veteran suffer arrhythmia with ECG evidence of myocardial ischaemia. The applicant’s hypothesis with respect to factor 5(o) therefore does not fit the template of the SoP and as such the hypothesis is not a reasonably hypothesis.
91. The applicant submitted that the Tribunal should not discount factor 5(p) of Instrument No 38 of 1999 in its consideration of this application.
92. Factor 5(p) states:
“experiencing a severe stressor immediately before the clinical onset of ischaemic heart disease;”
93. Experiencing a severe stressor means:
“the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
94. In this case the Tribunal is satisfied that the veteran suffered a severe stressor within the meaning of that term during his service in Borneo during World War II. However, there is no evidence of the applicant suffering from any cardiac disability immediately after the war and therefore factor 5(p) cannot be satisfied.
95. The Tribunal is therefore satisfied that the hypothesis that the veteran died from war-caused ischaemic heart disease is not a reasonable hypothesis.
96. While it is, strictly speaking, unnecessary to then resolve the question whether the veteran suffered from panic disorder, the Tribunal has, for the sake of completeness, done so.
97. Panic Disorder is relevantly defined in SoP Instrument No. 9 of 1999 as:
“(b)For the purposes of this Statement of Principles, ‘panic disorder’ means a psychiatric condition characterised by the following diagnostic criteria:
(A)the person has experienced both:
(1)recurrent unexpected panic attacks; and
(2) (i) has experienced at least four panic attacks in four weeks, or
(ii)in the case of fewer panic attacks, at least one of the panic attacks has been followed by 30 days (or more) of one (or more) of the following:
(a)persistent concern about having additional panic attacks; or
(b)worry about the implications of the panic attack or its consequences; or
(c)a significant change in behaviour related to the panic attacks; where
(B)the panic attacks can occur in the presence or absence of agoraphobia; and
(C)the panic attacks are not due to the direct physiological effects of a substance or a general medical condition; and
(D)the panic attacks are not better accounted for by another mental disorder, such as social phobia, specific phobia, obsessive-compulsive disorder, post traumatic stress disorder, or separation anxiety disorder, attracting ICD-9-CM code 300.01 or 2300.21.”
98. Panic attacks are defined as follows:
“‘panic attack’ means a condition, as defined in DSM-IV, meeting the following criteria:
the person has experienced a discrete period of intense fear or discomfort, in which four (or more) of the following symptoms developed abruptly and reached a peak within 10 minutes:
(1)palpitations, pounding heart, or accelerated heart rate; or
(2)sweating; or
(3)trembling or shaking; or
(4)sensations of shortness of breath or smothering; or
(5)feeling of choking; or
(6)chest pain or discomfort; or
(7)nausea or abdominal distress; or
(8)feeling dizzy, unsteady, light headed or faint; or
(9)derealisation (feelings of unreality) or depersonalisation (being detached from oneself); or
(10)fear of losing control or going crazy; or
(11)fear of dying; or
(12)paresthesias (numbness or tingling sensations); or
(13)chills or hot flushes.”
99. The Tribunal notes that the above criteria are consistent with the criteria in the definitions of “panic attack” and “panic disorder” in the SoP for Ischaemic Heart Disease and that they are derived from the diagnostic criteria for panic attack and panic disorder in the Diagnostic and Statistical Manual of Mental Disorder (“DSM-IV”).
100. The Tribunal is satisfied that it is the above SoP (and criteria) that must be considered in determining whether the applicant suffered from panic disorder.
101. In considering whether the veteran suffered from panic disorder the Tribunal is required to determine to its reasonable satisfaction whether such a diagnosis is appropriate (see Repatriation Commission v Cooke (supra) and Benjamin v Repatriation Commission (supra)).
102. With respect to the diagnosis of the veteran’s psychiatric condition, there are two conflicting psychiatric medical opinions before the Tribunal, one from Dr Chittenden, who diagnoses the veteran as having suffered PTSD accompanied by clear signs of panic disorder, and one from Dr Wainwright, who is of the opinion that a diagnosis of PTSD or panic disorder cannot be justified.
103. Both Dr Chittenden and Dr Wainwright recognise the difficulty in determining what was the veteran’s psychiatric condition in the absence of any direct evidence from the veteran and in the absence of medical records of the veteran reporting relevant symptoms. In respect of the question as to why the veteran did not reveal any significant symptoms of anxiety (or “panic attacks”) to his local or treating medical practitioners, the Tribunal notes that on all accounts, the veteran had been extremely reluctant to talk about his war-time experiences. The Tribunal also notes the applicant’s submission that the veteran’s generation generally was reluctant to reveal any feelings of anxiety for fear of being labelled mentally ill or being seen as atypically unable to cope with post-war living.
104. Both doctors relied substantially on the recollections of the veteran’s wife (and to some extent the veteran’s daughter) about the veteran’s behaviour and symptoms. When asked to comment on Dr Wainwright’s opinion that there was no objective evidence that the veteran had a psychiatric disability, Dr Chittenden said that perhaps she had asked different questions and therefore got different answers and arrived at different interpretations of these answers. However, the Tribunal notes that both doctors have recorded essentially the same history.
105. The Tribunal is mindful that the veteran’s medical history shows that he had a brother who experienced a nervous breakdown in 1942 and accepts the opinion of Dr Chittenden that this medical history is of little assistance in assessing the veteran’s psychiatric condition, without there being further evidence about the circumstances of his brother’s breakdown.
106. In summary, Dr Wainwright accepted that the veteran suffered from symptoms such as those required for a diagnosis of panic attack. However, he attributed these symptoms to the veteran’s atrial fibrillation. Hence, he was of the view that it was highly unlikely that the veteran could have had both paroxysmal atrial fibrillation and panic disorder, and therefore as the veteran’s symptoms were probably due to a general medical condition, the veteran did not meet the diagnostic criteria of panic disorder.
107. The Tribunal notes that both Dr Wainwright and Dr Chittenden agreed that the reported symptoms the veteran suffered could all be due to atrial fibrillation. When asked in cross-examination whether she had considered the likelihood of the veteran’s symptoms being attributed to atrial fibrillation, Dr Chittenden said she had not attempted to exclude organic disease as this was not in her sphere. However, in her oral evidence she opined that there is no connection with the veteran’s panic attacks and his attacks of atrial fibrillation, these being related to his various operations.
108. With respect to the veteran’s recorded attacks of atrial fibrillation, Dr Wainwright summarised these on page 10 of his report (Exhibit R1). The Tribunal notes that Dr Wainwright’s summary is entirely consistent with the medical evidence set out in these reasons for decision.
109. Dr Chittenden diagnosed the veteran as suffering from chronic and extremely severe PTSD when he returned from World War II service which waxed and waned over the years. She opined that the veteran’s PTSD was accompanied by clear signs of panic disorder and it was difficult to distinguish the two with reference to his symptomatology. However, she said she had no doubt that the veteran’s psychiatric symptoms were entirely due to his war service.
110. In respect of PTSD, Dr Wainwright opined that the veteran did not fulfil the diagnostic criteria for PTSD and in particular referred to the lack of persistent avoidance of stimuli associated with trauma; a lack of any indication of diminished interest or participation in significant activities; a lack of any feeling of detachment or estrangement from others; and no signs of clinically significant distress or impairment in his social, occupational or other important areas of function.
111. The Tribunal notes that the diagnostic criteria for PTSD are set out in the relevant SoP for Post Traumatic Stress Disorder (as derived from DSM-IV) namely, Instrument No 3 of 1999.
112. With respect to PTSD, after careful consideration of all of the material before it, the Tribunal prefers the opinion of Dr Wainwright that the veteran did not suffer from PTSD, and so finds. In arriving at this view the Tribunal has accepted that the veteran was exposed to a traumatic event and suffered severe stressful events during his war service and that he had distressing dreams of the events and that he avoided thoughts, feelings or conversation associated with a trauma. However, the Tribunal is satisfied that the other necessary diagnostic criteria for PTSD are not met and that Dr Wainwright’s assessment of the veteran’s condition as set out in paragraph 49 is correct.
113. With respect to panic disorder, a significant aspect is the reported frequency of the veteran’s panic attacks. There is no dispute between the parties, and the Tribunal accepts that the veteran suffered from nightmares as a result of his war-time experiences and that these commenced on his return home from Borneo.
114. The Tribunal also accepts that as a result of these nightmares the veteran would thrash about and call out in his sleep and wake up sweating, trembling and with heart racing. On the evidence before the Tribunal, the frequency of these nightmares varied considerably, at worst two a week, at best one every two or three months while the veteran was working in New Guinea. It was the applicant’s evidence, however, and the Tribunal accepts this evidence, that the veteran only began to suffer panic attacks (not related to nightmares) from the 1970s and the frequency of these would vary from once or twice a week to no attacks in a month.
115. Furthermore, the Tribunal accepts the applicant’s evidence that during these attacks the veteran would for no apparent reason quietly go off and lie down in his bedroom shaking, sweating and with heart racing. Prior to these daytime attacks the evidence is that the only symptoms displayed by the veteran were nightmares and their immediate aftermath.
116. The Tribunal is satisfied that the veteran’s nightmares do not constitute panic attacks within the meaning of that term and in so finding the Tribunal has accepted Dr Wainwright’s opinion that even though the veteran suffered from unpleasant nightmares, very likely due to his experiences in Borneo, bad dreams only do not constitute panic disorder.
117. With respect to the daytime attacks, the Tribunal is satisfied that at the time these attacks began, the medical evidence indicates that the veteran suffered from atrial fibrillation since at least 1987.
118. The Tribunal is mindful that Dr Chittenden did not initially consider the question of excluding organic medical causes for the veteran’s daytime symptoms and that subsequently in her oral evidence, focused on the outcomes of the veteran’s operations.
119. Furthermore, the Tribunal notes and agrees with the respondent’s submission, in effect, that even if the veteran had suffered from panic disorder, the evidence of the applicant and the applicant’s daughter was that the onset of daytime panic attacks was in the 1970s and, as such, factor 5(a), namely, experiencing a severe stressor within the two years immediately before the clinical onset of panic disorder, cannot be satisfied.
120. After consideration of all the material before it, the Tribunal prefers the medical opinion of Dr Wainwright that the veteran’s daytime attacks are causally related to his atrial fibrillation and finds that the veteran did not suffer from panic disorder.
121. Clearly, the Tribunal’s findings with respect to panic disorder is such that an hypothesis connecting the veteran’s death to war-caused panic disorder is not a tenable hypothesis.
122. However, the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war-caused.
123. In view of the Tribunal’s finding of the cause of the veteran’s death, the Tribunal has considered whether the applicant’s case can be favourably considered within the context of the relevant SoP for Atrial Fibrillation (Instrument No 9 of 1996). To fit the template of this SoP the veteran must have suffered from cardiac disease at the time of the clinical onset of atrial fibrillation or suffered from thyrotoxicosis at the time of the clinical onset of atrial fibrillation and these conditions must be connected to his service.
124. The medical evidence before the Tribunal is that the veteran was first diagnosed as suffering from atrial fibrillation in 1987 and at this time he was not suffering from a cardiac disease nor was he suffering from thyrotoxicosis. There is an indication that the veteran may have suffered from atrial fibrillation prior to 1987 but even if this were so, this does not alter the conclusion that the veteran was not suffering from a cardiac disease or thyrotoxicosis at this earlier time. The Tribunal is of the view that there is no reasonable hypothesis connecting the veteran’s death with atrial fibrillation, and so finds.
125. For the reasons given above, the Tribunal is satisfied, beyond reasonable doubt, that the material before it does not raise a reasonable hypothesis connecting the veteran’s death with the circumstances of his service and the Tribunal therefore finds that the veteran’s death was not war-caused.
126. The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death was war-caused.
127. The Tribunal affirms the decision under review.
I certify that the 127 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDates of Hearing 14 February 2003 at Southport and
3 March 2003 at Brisbane
Date of Decision 17 April 2003Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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