Martin and Repatriation Commission

[2003] AATA 1242

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1242

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/380

VETERANS' APPEALS DIVISION		)
Re		THELMA MARIE MARTIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date10 December 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran causally related to his war service - ischaemic heart disease – phobia with panic attacks – beating in Military prison led to development of phobia with panic attacks - reasonable hypothesis raised – claim barred - beating flowed from veteran’s misconduct - decision affirmed

Veterans’ Entitlements Act 1986, s 8(2)

Re Nelson and Repatriation Commission (1988) 15 ALD 49
Re Lester and Repatriation Commission (1991) 23 ALD 69

REASONS FOR DECISION

10 December 2003 Senior Member B J McCabe        

Introduction

1.      Mrs Thelma Martin is seeking a war widow’s pension following the death of her husband, Mr William Martin. Mr Martin saw operational service with the RAAF and the AIF during World War II in Papua New Guinea and Canada. Mr Martin died on 6 July 1999. His wife says his death was related to his service. The respondent disagreed, and the Veterans’ Review Board affirmed that decision. Mrs Martin has now applied to the Tribunal to review the decision.

2.      The essence of Mrs Martin’s case is as follows. Her late husband’s cause of death is certified as “extension of myocardial infarction”.. A myocardial infarction is a form of ischaemic heart disease, which means the Tribunal must have regard to Statement of Principles No 38 of 1999. She says her late husband suffered from phobia with panic attacks, which is a factor referred to in the Statement of Principles that could give rise to a reasonable hypothesis connecting the circumstances of service with Mr Martin’s death.

The Material Before the Tribunal

3. The Tribunal was supplied with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). It was also supplied with a statement from the applicant (Exhibit 2), and the following medical reports:

§Report of Dr Carter dated 15 May 2001 (Exhibit 3)

§Report of Dr Carter dated 1 February 2002 (Exhibit 4)

§Report of Dr Mulholland dated 6 February 2001 (Exhibit 11)

§Report of Dr Mulholland dated 23 May 2002 (Exhibit 12)

4.      The Tribunal was also provided with the following documentary evidence:

§Record of Service of William Messina (Exhibit 5)

§Medical Board Report dated 29 May 1942 (Exhibit 6)

§Service and Casualty Form (Exhibit 7)

§A copy of the Army’s medical records for William Messina (Exhibit 8)

§An extract from DSM-IV (Exhibit 9)

§A copy of Dr Carter’s clinical notes (Exhibit 10)

5.      The following witnesses also gave evidence:

§Thelma Martin

§Dr Janis Carter, and

§Dr Peter Mulholland

6.      Mr Harding represented the applicant. Mr Smith represented the respondent.

The Facts

7.      The applicant married Mr Martin (or Messina, as he was then known) in 1947. They met the previous year, after the war concluded.

8.      Mr Martin enlisted in the RAAF on 22 July 1940. He served with the RAAF from that point until he enlisted in the AIF on 17 February 1943. He served with the AIF until 14 September 1943 before returning to the RAAF where he remained until 13 July 1945.

9.      Mr Martin was sentenced to serve 28 days in detention while a member of the AIF. He had encouraged his brother, who was also a member of the AIF, to stand up to the Military Police. It seems the late veteran was beaten while in custody. He was hospitalised from 14 August to 30 August 1943. Army medical records say Mr Martin suffered from a serious concussion, and suffered from headaches and nausea.

10.     The applicant said in her statement that Mr Martin suffered from headaches for the rest of his life. She also claimed he suffered from asthma that began as bronchitis during the war. He continued to suffer from shortness of breath and other asthma-like symptoms for the rest of his life. She said he had a collapsed lung in 1949. He often complained of pains in the chest, pins and needles and numbness in his arms. She said he also suffered from palpitations. He was operated on for an abdominal aortic aneurism in 1994.

11.     Mrs Martin says her husband developed a psychiatric condition as a result of his experiences while in detention. She said in her statement that he was easily panicked and avoided crowds. He was a loner, she explained. He preferred not to mix with people. He would often feel dizzy.  He sweated and would complain of hot flushes in the morning. He trembled and shook and could become irritable. Little things would “set him off”, she said. He was “nervy” although he never complained of nerves. She also said her late husband’s father had suggested Mr Martin might have received psychiatric care as a child.

What the Doctors Say

12.     The applicant called Dr Janis Carter to give evidence. Dr Carter did not meet with Mr Martin in person; she interviewed his widow and reviewed the army medical documents and the report of Dr Peter Mulholland that was prepared on behalf of the respondent. Dr Carter concluded in her report of 15 May 2001 that Mr Martin suffered from post traumatic stress disorder (PTSD). She amended her diagnosis in a subsequent report dated 1 February 2002 after her attention was drawn to the details of the beating in custody. She said Mr Martin was suffering from a social phobia with panic attacks, which is one of the factors referred to in the Statement of Principles relating to ischaemic heart disease. She related the condition back to the beating. She said in any event he developed the condition during the war because he was normal before he enlisted, but came back a changed man. (I note there is no independent evidence of Mr Martin’s condition before the war and in its immediate aftermath. Certainly the applicant did not meet him until 1946). Dr Carter referred to evidence that the applicant developed palpitations, would sweat, tremble and shake, and would experience sensations of being short of breath and feared losing control or going crazy. She also noted Mr Martin suffered from bouts of malaria. She said malaria could affect one’s mood and confidence.

13.     Mr Smith, for the respondent, suggested to Dr Carter that most of the symptoms she described could be accounted for by the asthma. She disagreed.

14.     Dr Peter Mulholland declined to offer a diagnosis. He pointed out it was always difficult to make a posthumous diagnosis without the opportunity of speaking to the subject. He doubted whether the applicant’s beating would lead to a social phobia, as those conditions tend to be the product of constitutional factors. (He noted the applicant had obtained psychiatric help as a child). He accepted that a significant head injury could result in anxiety and other problems, but not necessarily a social phobia. He also doubted the connection between malaria and a social phobia. But he said it was difficult to rule out panic attacks and conceded in cross-examination that there might have been some sort of phobic disorder. He suggested it might have been agoraphobia.

Analysing the Medical Evidence

15.     The applicant relies on factor 5(o) in the Statement of Principles relating to ischaemic heart disease – that is, she claims her late husband suffered from phobic anxiety with panic attack. Dr Carter says Mr Martin suffered from a phobic anxiety; Dr Mulholland was more circumspect. But he accepted the history was suggestive of a phobic anxiety (specifically, agoraphobia). There is also some evidence offered by Mrs Martin of her husband suffering from panic attacks. Mr Smith suggested most of the symptoms could be explained as asthma, but the applicant made it clear her late husband would become irritable and shake, and that he disliked crowds.

16.     I am satisfied in all the circumstances that there is evidence to sustain the applicant’s claim that Mr Martin suffered from phobic anxiety with panic attacks. I am satisfied there is evidence that the beating he received while in custody provides a reasonable hypothesis connecting the late veteran’s war service with his psychiatric condition, which was a factor in the development of ischaemic heart disease.

17. There is one further matter. It was argued the applicant’s claim must fail even if a link could be established between the beating and the ischaemic heart disease because s 8(2) excludes claims relating to events arising out of a serious breach of discipline by the veteran. Mr Smith, in written submissions, argued that a beating in prison flowed from misconduct. He relied on the decisions of the Tribunal in Re Nelson and Repatriation Commission (1988) 15 ALD 49 and Re Lester and Repatriation Commission (1991) 23 ALD 69. In Nelson, the Tribunal concluded the development of an anxiety state arising out of time spent in prison was excluded under s 8. Senior Member Hayes said it was not necessary to establish a direct causal link between the misconduct and the condition: it was enough if the applicant’s condition arose as a result of a chain of events that began with the misconduct and which included chance intervening events that were unrelated to the misconduct. He gave the example of a deserter who was injured in a road accident as a result of the negligence of another motorist.

18.     In Lester, the applicant alleged he had been beaten regularly, and claimed the beatings led to the development of the compensable condition. While the Tribunal doubted whether the beatings really occurred, it concluded the condition produced by the beating necessarily arose out of the serious breach of discipline: s 8(2)(b)(i).

19.     That result seems harsh. But the decision of the full Tribunal, in Lester in particular, is clear and compelling. I am constrained to agree with its reasoning and affirm the decision under review.

Conclusion

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

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

Date of Hearing  28 May 2003
Date of Decision  10 December 2003
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan & Luton
For the Respondent                  Mr M Smith, Departmental Advocate