McKay and Repatriation Commission
[2006] AATA 190
•2 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 190
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1328
GENERAL ADMINISTRATIVE DIVISION ) Re MOLLY CAREY MCKAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Ms R Hunt
Member Dr P LynchDate2 March 2006
PlaceSydney
Decision The tribunal affirms the decision under review. ..............................................
Ms R Hunt
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – War widow’s pension – Operational World War II service – Kind of death– Contention that panic disorder led to death - Hypothesis comprising a sub-hypothesis – Hypothesis that war service caused panic disorder which caused death by stroke – No sufficient grounds for making that determination - Not “reasonable hypothesis” – Death not war caused – Decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 ss 120, 120A
Statement of Principle concerning panic disorder, Instrument No 9 of 1999
Statement of Principle concerning cerebrovascular accident, Instrument No. 52 of 1999
CASELAW
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Deledio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 65 ALD 609
Byrnes v Repatriation Commission (1993) 177 CLR 564
Butler and Repatriation Commission [2005] AATA 1302REASONS FOR DECISION
3 March 2006 Senior Member Ms R Hunt
Member Dr P LynchSUMMARY
1. Mrs McKay applied to the tribunal for review of a decision made by the Repatriation Commission which refused her a war-widow’s pension based on the death of her late husband, William McKay. The Commission and the Veterans’ Review Board, on review, found his death was not war-caused. We agree with this decision for the reasons set out below.
BACKGROUND
2. Mr McKay served in World War II between 1 October 1941 and 25 February 1946. His service is accepted by the Department as operational service pursuant to the Veterans’ Entitlements Act 1986 (the Act). The earliest date of effect the tribunal can approve for a decision granting pension is 8 May 2003, the day following the death of Mr McKay. When Mr McKay died on 7 May 2003 he was 85 years of age. The cause of his death was noted on his death certificate as:
·Stroke (2 weeks)
·Atherosclerosis (10 years)
ISSUES
3. Mrs McKay contends that her late husband experienced a severe stressor during his war service which led to the development of panic disorder and ultimately to cerebrovascular accident, commonly known as stroke. The issue was whether death was war-caused within the meaning of section 120(1) of the Act. The tribunal must decide if Mr McKay did suffer from the disorder claimed in accordance with the legislative requirements for acceptance of Mrs McKay’s claim. The hypothesis postulated to link Mr McKay’s operational service with his death is as follows:
· Mr McKay suffered panic disorder because of his service.
· His panic disorder resulted in death by cerebrovascular accident (stroke)
LEGISLATIVE PROVISIONS GOVERNING
4. Section 120 of the Act sets out the required standard of proof. Subsection 120(1) makes it clear that where a claim for a pension in respect of the death of a veteran relates to operational service, the tribunal shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination.
5. Subsection 120(3) then goes on to explain that, in applying subsection (1) of section 120 in respect of the death, the tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war-caused. After consideration of the whole of the material before it, if the tribunal is of the view that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the veteran’s service, then the applicant for a pension cannot succeed in the claim.
6. Subsection (3) is affected by section 120A. Section 120A(3) of the legislation addresses the reasonableness of the hypothesis and that it must be assessed by reference to any existing Statements of Principles (SoPs). It points out that if a SoP is in place in respect of a kind of injury or disease, then the end hypothesis put forward by the applicant must be tested against that SoP.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
7. The Commission previously accepted a number of war-caused disabilities suffered by Mr McKay. One of these was an anxiety state with stomach symptoms. However, it did not accept Mrs McKay’s claim that the anxiety state brought about his death nor that Mr McKay suffered war-caused panic disorder leading to his death. Mrs McKay claimed that her late husband experienced a severe stressor in his war service which led to the development of panic disorder. Further, she claimed factor 5(b) of the SoP concerning panic disorder, Instrument No. 9 of 1999, was satisfied. Mrs McKay then argued the panic disorder led to the development of cerebrovascular accident. This resulted in factor 5(c) of the SoP concerning cerebrovascular accident, Instrument No. 52 of 1999, being satisfied.
8. In her original application for review, Mrs McKay made the alternative or additional claim that Mr McKay developed a smoking habit as a result of service and that this habit led to the development of atherosclerosis. Mrs McKay became upset when being questioned about her husband’s smoking history and discontinued this aspect of her case. The only remaining claim before the tribunal was the attribution of Mr McKay’s death by stroke. There was no dispute that Mr McKay died as a result of suffering a stroke.
9. Mrs McKay made a written statement dated 16 March 2005. She set out that she met her late husband in 1946, shortly after he returned home from the war. Mr and Mrs McKay married on 11 October 1947. Mrs McKay told the tribunal that Mr McKay always suffered from panic attacks which she claimed were evidence of panic disorder. She wrote, in her statement, that her husband was given a drug called “Amatyl” (sic) to calm his nerves and anxiety shortly after his return from the war. She said he remained on this drug until 1975 or 1979 when he switched to Normison. Mrs McKay stated that her late husband suffered anxiety and walked out of three jobs as a result of his condition. She said that, throughout their married life, Mr McKay suffered from constant nerves, anxiety and flashbacks. He often had attacks of stomach discomfort and belching. At mealtimes, he would jump up from the table and rush outside tearing off his clothes saying that he was choking. Mr McKay’s son also made a statement describing his father’s anxiety, uncontrollable crying, excruciating pain and extraordinary behaviour.
10. The Commission conceded Mr McKay may have suffered a severe stressor in 1944 in Papua New Guinea when he was on a mail plane that made an emergency landing. Remaining at issue was whether Mr McKay developed a psychiatric disorder as a result of his war service. His “nervous dyspepsia” was accepted as a gastrointestinal disorder and not as a psychiatric disorder. Mrs McKay’s case is based on an incident recorded in 1944 and a history of anxiety symptoms observed after the war.
Step 1
13. Step 1 for the tribunal is to identify the cause of death. Justice Selway held in Repatriation Commission v Hancock (2003) 37 AAR 383 that two preconditions other than causation must be dealt with before proceeding to step one of the four steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82. In regard to the first precondition, there is no dispute that Mr McKay was a veteran who died and that Mrs McKay is his widow. The next pre-condition is to identify, on the balance of probabilities, the “kind of death” the veteran suffered. It is not in dispute that one of the causes of death or part of the kind of death Mr McKay suffered was cerebrovascular accident. Therefore, the next step is to determine if Mr McKay’s death was war-caused.
14. In a claim relating to "operational service", the death will be war-caused unless the tribunal is satisfied to the contrary beyond reasonable doubt. See section 120 (1) as qualified by section 120 (3) and section 120A(3). If there is a relevant SoP, the Tribunal must undertake the analysis discussed in Deledio. That is, we must “consider all the material … and determine whether that material points to a hypothesis connecting the … death with the circumstances of the particular service rendered by the person”. Further, according to Deledio, no question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
Does the material before the Tribunal point to a hypothesis connecting the death with Mr McKay’s service?
15. The hypothesis we have identified is that Mr McKay developed panic disorder related to operational service and that this lead to his death by stroke. We conclude that the material before us does point to the hypothesis that connects Mr McKay’s service with his death. The material supporting the hypothesis comes from the statements of Mrs McKay, her son, the clinical notes made during service in 1944 and some of the later medical reports before us.
Is the hypothesis connecting the death with Mr McKay’s service reasonable?
16. The SoPs for panic disorder and cerebrovascular accident are in force and must be part of the tribunal’s consideration according to section 120A(3). The SoP concerning panic disorder, Instrument No 9 of 1999, was amended by Instrument No 58 of 1999, which made a minor amendment to the definition of “experiencing a severe stressor” (T19 p 83-84). The SoP concerning cerebrovascular accident is Instrument No 52 of 1999 (T18 p 72-8). Two steps may follow. We must decide if the hypothesis put to us is reasonable. If it is, we must decide whether Mr McKay’s death actually was war-caused.
17. The SoP for panic disorder, Instrument No. 9 of 1999, identifies experiencing a severe stressor related to service as a minimum before a reasonable hypothesis is raised. (See factor 5(a)). The Commission has conceded that Mr McKay was exposed to a severe stressor or at least that the emergency landing he experienced may have been such a stressor. However, there are considerable further criteria set out in the SoP for panic disorder, including a definition of the term “panic attack” in clause 8 and the meaning of “panic disorder” as set out in clause 2(b). Clause 2(b) includes the requirement for the purpose of the SoP that the person has experienced both recurrent panic attacks and at least four in four weeks or, in the case of fewer attacks, other indicia such as persistent concern and significant change in behaviour for 30 days after at least one of the attacks. We note that the definition of panic attack accords with that for diagnosis in the Diagnostic Statistical Manual of Mental Disorders – Fourth Edition, Text Revision (DSM IV). However, as section 120A (3) provides that the reasonableness of a hypothesis must be assessed by reference to the governing SoP, we next considered Mr McKay’s condition in respect of the SoP criteria.
18. In this case, the hypothesis in respect of the kind of death suffered by Mr Mckay and the hypothesis linking that death and his service relies on a sub-hypothesis based on his suffering panic disorder, which is also the subject of a SoP. This type of situation was considered in McKenna v Repatriation Commission (1999) 86 FCR 144. On the basis of McKenna, the hypothesis will be reasonable only if both SoPs are met, linking the veteran’s death to his service. This link follows in the present case as panic disorder is one of the factors accepted in Instrument No. 52 of 1999 as a cause of cerebrovascular accident. Therefore, if the claimed panic disorder is established as war-caused, the ensuing stroke will be war-caused. If the hypothesis is not established to the level of satisfaction required under section 120, we will not need to consider diagnosis on the balance of probabilities.
19. In McKenna, the full court of the federal court held that, since there were SoPs in respect of the kinds of disease suffered by Mr McKenna, the next step, after noting the hypothesis, required formation of an opinion whether the hypotheses pointed to by the material before the tribunal were reasonable. The tribunal “was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant Statements of Principles”. In the court’s view, for either of the hypotheses to be upheld by a SoP, as required by section 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. We have followed this method in making our findings and have first considered that part of the hypothesis about panic attacks and relationship to panic disorder.
20. The full court in McKenna said that although it might be argued that the sub-hypothesis is itself “a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person” within the meaning of section 120A (3) of the Act, the preferable view was that the hypothesis referred to in section120A (3) is the same hypothesis as that referred to in section120 (3). That is, in the circumstances of this case, the hypothesis connecting Mr McKay’s attacks, disorder and stroke with the circumstances of the particular service rendered by him.
21. In order to determine if the hypothesis is reasonable, we must also determine the date of clinical onset of panic disorder, if this was Mr McKay’s condition according to the SoP, before we can make a finding about the reasonableness of the hypothesis. This is because the SoP requires clinical onset within 2 years of relevant service. In Lees v Repatriation Commission (2002) 125 FCR 331, the Court said, in relation to the SoP in question, the definition of the condition did not suggest that the disease exists if only some but not all of the symptoms (or features) were manifest. It noted the “purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from (the condition)”.
22. In our opinion, and as we have already stated, the scheme of the legislation as discussed in Deledio and McKenna does not require diagnosis at this point although the tests in the SoP are very similar to those for diagnosis and it can be a difficult exercise to determine the reasonableness of the hypothesis without diagnosis. We agree with Senior Member Kelly and Member Alexander in Butler and Repatriation Commission [2005] AATA 1302 that section 120 (1) is the key provision. What we are concerned with is the claim for a pension in respect of Mr McKay’s death, which must be war-caused for the claim to succeed. The hypothesis with which we are concerned is that linking the “kind of death”, that is cerebrovascular accident, with operational service. If this were a case where there was a dispute about the “kind of death”, that would have to be determined on the balance of probabilities in accordance with section 120 (4). See Repatriation Commission v Cooke (1998) 90 FCR 307. However, there is no dispute as to the cause, only as to the link with service. We agree with the reasoning in Butler that in Lees and McKenna the court was considering the “hypothesis” and “reasonable hypothesis” steps of the analysis required by the legislation, not the determination of the “kind of death”, which occurs at an earlier point in the analysis.
23. It is necessary to link Mr McKay’s accepted kind of death to service in the “hypothesis”, “reasonable hypothesis” and fourth step in Deledio, that is, the tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused. If we are satisfied beyond reasonable doubt that Mr McKay did not suffer from panic disorder or that onset occurred more than two years after any severe stressor which happened during service, Mrs McKay’s case will fail as the hypothesis cannot then be reasonable. Accordingly, we next turned to the evidence before us as to Mr McKay’s condition and any link with service.
Did Mr McKay suffer from panic attacks and panic disorder according to the relevant SoP?
24. The earliest incident occurred in 1944. On 14 March 1944, following hospitalization for malaria, a clinical note records Mr McKay suffered from abdominal discomfort, particularly after eating. His discomfort was considered psychogenic and the note recorded “belching all the time”. A note made two days later, on 16 March 1944, recorded Mr McKay “feels very well now” (T3 p 17). A report of 20 March 1946, two years later, noted that his nerves were “only fair” and he was described as “weak and jumpified” and diagnosed Mr McKay as suffering from an anxiety state (Ex R1 p 61 & R4 at p 2.2). On 30 January 1959, Mr McKay had symptoms suggestive of nervous dyspepsia (Ex R1 p 22). There is the history of Mr McKay apparently having seen a psychiatrist in Sydney in 1950 (Ex R2 p 23.5).
25. Then, there was a long gap until 8 February 1978 when Dr Robbie reported vague abdominal symptoms with a tendency to choking feeling at night with meals. The choking feelings were said to be a complication of anaesthesia for prostatectomy 12 months earlier. The choking generally came when he ate. There would be a spasm and a sensation of air hunger. Mr McKay would rush outside to loosen his clothing, followed by his wife and son. He had 3 attacks in the previous 12 months. This was said to be “definitely hypnagogic” (sic) and he was described as irritable and jumpy without medication but Dr Robbie concluded that Mr McKay did not have a psychiatric condition (Ex R1, p 10-12).
26. We note that Mrs McKay and her son both gave evidence that Mr McKay had always displayed some troubling symptoms of his disorder but there is no further medical reference before us until 1984. On 27 August 1984, Dr Thursby, Consultant Physician, wrote that he had seen Mr McKay on several occasions (T4 p 30.4) and that Mr McKay described himself as a worrier (T4 p 31.3). Dr Thursby noted he suffered from aerophagy, which Dr Thursby attributed to emotional factors (T4 p 31.9), colonic symptoms largely attributable to irritable colon (T4 p 32.3) and an anxiety state that perpetuated his symptoms (T4 p 32.6). In particular, Dr Thursby wrote that he had observed him in “one of his attacks”. Dr Thursby described how:
“he walks around the room burping furiously bringing up large quantities of wind but taking down probably even more. His abdomen at the time was slightly resonant over his epigastrium consistent with increased air in his stomach. He was not particularly tender and there was no significant abnormality, gastroscopy had shown no obstruction in his stomach. I think a lot of this attack was due to emotional factors …”.
We note the reference by Dr Thursby to “observing him in one of his attacks” suggests that Dr Thursby was aware that this was not an isolated incident and that the characterisation of what happened as an “attack” suggested it was quite dramatic.
27. On 17 January 2005, Dr Zwatrzka, Senior Medical advisor (Compensation) wrote that she had reviewed all relevant information, including quite extensive treating clinicians and hospital/NH files, and concluded that Mr McKay had suffered with anxiety since his service days and the anxiety disorder was clinically significant for the whole of the Mr McKay’s post service life (Ex R3).
28. Dr Dinnen wrote in his report that Mr McKay had a panic disorder associated with a chronic anxiety disorder and the panic disorder was noted on 14 March 1944 (Ex A5 p 5.7). In his evidence to the Tribunal, Dr Dinnen said the description in the documents was a classic description of panic disorder and he would fail a medical student who did not pick it up. Dr Dinnen further stated that it was the only explanation for what Dr Thursby described. Furthermore, the fact that he was belching in 1944 and better 2 days later, suggested that what happened then was episodic and consistent with panic disorder and reasonable to suppose he suffered a panic attack at the time. He also testified that the attacks described by Dr Robbie provided very good evidence of panic attacks.
29. On the other hand, in his report dated 23 February 2005, Dr Haik wrote he could find no evidence of psychiatric disorder in the files (Ex R4 p 1.9). He said the stomach symptoms were a result of pancreatic disease due to alcohol (Ex R4 p 1.6). We accept that this does not explain the situation in 1944 and that the evidence is that the pancreatitis began in 1985. However, in addition, Dr Haik, states his opinion that Mr McKay did not have any psychiatric disorder until he was in his 70s or 80s and that any disorder by then was attributable to cerebral atrophy and a dementing process not related to his military service. In his oral evidence to the tribunal, Dr Haik accepted that Mr McKay had some attacks which may have been part of an anxiety state but were not part of a panic disorder, which he observed was a very disabling condition. Dr Haik further noted that the treating general practitioner was not aware of panic attacks and Mr McKay was able to function effectively, as shown by his working life and senior positions with the RSL. While Mrs McKay gave evidence that her late husband did not like to confide in doctors, this history does not indicate a seriously disabling condition. He had the ability of Mr McKay to function to a degree that enabled him to work and hold responsible positions such as president of the local RSL.
30. We have not ignored Mrs McKay’s description of Mr McKay always being verbally abusive of her and having arguments and physical fights with his sons (R11, p118.4), and of his sometimes being violent, out of control and using abusive language, whether or not drunk (T14, p61.7). While this points to problems that made him dysfunctional within his domestic environment, we can see no strong link to panic attacks or panic disorder. We note that Dr Haik may not be correct in thinking Mr McKay’s panic attacks were always triggered by eating. There is no evidence that the attack observed by Dr Thursby occurred when Mr McKay was eating. Furthermore, Dr Robbie reports that the choking “generally” came when he ate (Ex R1, p10-12). This implies a history of attacks that came on at other times. Nevertheless, we are not persuaded that the hypothesis is reasonable when looking for the date of clinical onset, as well as having doubts about the cause of Mr McKay’s mental condition.
31. Clinical onset of the condition must have occurred by 1946 to meet the clinical onset requirement of Instrument No. 9 of1999. The only evidence of any psychiatric problem or condition by 1946 was one episode in March 1944, from which he had recovered a few days later, and brief reference in the report of 20 March 1946 that his nerves were “only fair”, that he was “weak and jumpified” and the diagnosis of an anxiety state.
32. The SoP criterion in factor 2(1) depends on recurrent unexpected panic attacks and factor 2(b)(A)(2) expects 4 attacks a month or similar frequency. We have no evidence before us of recurrence or of such frequency during service up to and by 1946. Only 1 episode is recorded in all that time. As well, the SoP defines panic attacks to include experiencing intense fear or discomfort in which four or more symptoms described developed abruptly and reached a peak within 10 minutes. We note that the symptoms described to us include three of those set out in a list of 13. Mr McKay experienced “sensations of shortness of breath”, “feeling of choking” and “nausea or abdominal distress”. While these symptoms are part of the panic attack definition, we can identify no other symptom meeting the definition. The SoP, 9 of 1999, requires the presence of four symptoms. On the evidence available to us, Mr McKay may have suffered a panic attack in 1944 but not the disorder. The materials before us support less than the indicia for the disorder required by the relevant SoP.
33. Mrs McKay argued her husband had the condition all his life and there is clear evidence he had some sort of disorder, but this was diagnosed and accepted as an anxiety disorder. Dr Haik’s evidence impressed us as a thorough consideration and he rejected a diagnosis of panic disorder, although he conceded that Mr McKay may have had some panic attacks. Dr Michael O’Rourke on 10 March 2005 observed that there was no diagnosis of panic disorder during service or over the following 50 years and found no clinical onset before the cerebrovascular accident.
34. It follows that we are unable to be satisfied that Mrs McKay’s claim meets the reasonable hypothesis test. The evidence as to Mr McKay’s condition in 1944 to 1946 does not establish that he suffered a series of panic attacks. This means he was not suffering from panic disorder according to the criteria in instrument no. 9 of 1999. The one incident in 1944 is too slender a link to find a reasonable hypothesis that he had the disorder by 1946. We find that, as no reasonable hypothesis has been established, we cannot be not satisfied beyond reasonable doubt that Mr McKay’s death was war-caused. There is no sufficient ground for determining that Mr McKay’s death was war-caused. As we make this finding, the claim must fail.
35. The fourth step according to Deledio is to consider, under s 120(1), whether we are satisfied beyond reasonable doubt that the death was not war-caused. It is only at this stage of the process that the Tribunal is required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption is involved. See McKenna. We find no claim has been made out in accordance with s120 (1). As we are not satisfied that Mr McKay suffered from panic disorder, according to the relevant SoP, we are satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr McKay’s death was war-caused.
decision
36. The tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms R Hunt
Member Dr P LynchSigned……………………………………….
Margaret A Driscoll
AssociateDate/s of Hearing 28 November 2005
Date of Decision 3 March 2006
Counsel for the Applicant Craig Colborne
Solicitor for the Applicant Elizabeth Wells
Counsel for the Respondent Greg Doube
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