McPhee and Repatriation Commission
[2006] AATA 771
•8 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 771
| ADMINISTRATIVE APPEALS TRIBUNAL VETERANS’ APPEALS DIVISION | ) ) N2005/1567 ) | |||
| Re | RONALD MCPHEE | |||
| Applicant | ||||
| And | REPATRIATION COMMISSION | |||
| Respondent | ||||
| DECISION | ||||
| Tribunal | Mr I R Way, Member | |||
| Date | 8 September 2006 | |||
| Place | Sydney | |||
| Decision | The decision under review is affirmed. | |||
[Sgd] Mr I R Way
Member
CATCHWORDS
VETERANS’ ENTITLEMENT – decision under review concerning Applicant’s claim for dilated cardiomyopathy – consideration of legislation – issue as to whether the Applicant’s alcohol consumption during the relevant period is connected with the circumstances of his eligible war service – consideration of any causal connection and whether the Applicant’s cardiomyopathy is on the balance of probabilities connected with his service – consideration of evidence and legislation - the decision under review is affirmed.
Veterans’ Entitlement Act 1986 – sections 7(1)(c), 9(1)(b), 196B(14).
Administrative Appeals Tribunal Act 1975
Kattenberg v Repatriation Commission [2002] FCA 412
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Repatriation Commission v Tuite (1993) 29 ALD 609
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
REASONS FOR DECISION
| 8 September 2006 | Mr I R Way, Member |
| introduction |
This is an application by Mr Ronald McPhee (“the Applicant”) for review of a decision made by the Veterans’ Review Board (“VRB” or “the Board”) on 18 November 2005, affirming a decision of the Repatriation Commission (“the Respondent”), dated 27 March 2003, which refused the Applicant’s claim for Dilated Cardiomyopathy.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T18) and other documentary evidence marked as Exhibits A1 to A5 for the Applicant and R1 to R5 for the Respondent.
Mr McPhee’s application to this Tribunal was dated 15 December 2005. Sadly, the Applicant passed away on 16 April 2006. In his last will and testament, the Applicant appointed his wife Barbara McPhee as the sole executrix of his will and she duly appointed Mr Tony Latimore (of the Vietnam Veterans’ Association) as the deceased’s representative to continue his application. Mr Latimore appeared before the Tribunal and presented the Applicant’s case. Mr Tim O’Reilly represented the Respondent. Mrs McPhee gave evidence by telephone.
background
There is no dispute about the background facts in this matter and in view of this and on the material before it the Tribunal makes the following findings of fact:
(a)The Applicant was born on 29 April 1925 and served in the Royal Australian Air Force from 18 December 1943 to 26 July 1945, the whole of the service being on the eastern seaboard of Australia.
(b)The Applicant rendered eligible war service under section 7(1)(c) of the Veterans’ Entitlement Act 1986 (“the Act”).
(c)The Applicant suffered from Dilated Cardiomyopathy which had its clinical onset in 1997.
(d)The relevant Statement of Principles for the Applicant’s heart disorder is Instrument No 20 of 1998, Cardiomyopathy (as amended by Instrument No 23 of 2002) (“the Relevant SOP”).
(e)The only relevant factor in this case in the Relevant SOP is Factor 5(a), namely “… drinking at least 300kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy”.
(f)The Applicant’s circumstances satisfy Factor 5(a) as set out above based on his consumption during the period from the early 70s to the early 80s.
(g)The Applicant had “accepted” and “not accepted” disabilities (Exhibit R5) as follows:
Accepted
·21 October 1999, Chronic Bronchitis, Accepted (VEA)
·21 October 1999, Peptic Ulcer Disease, Accepted (VEA)
·21 October 1999, Solar Keratoses, Accepted (VEA)
·15 October 2002, Bilateral Sensorineural earing loss, Accepted (VEA)
·07 January 2005, acquired Cataracts in both eyes, Accepted (VEA)
·07 January 2005, Bilateral Tinnitus, Accepted (VEA)
Not Accepted
·24 January 2000, No Malignancy, Rejected (VEA)
·18 November 2005, Dilated Cardiomyopathy, Rejected (VEA)
·22 June 2006, Osteoarthritis affecting both knees, Rejected (VEA)
·22 June 2006, Osteoarthritis affecting both hips, Rejected (VEA)
·22 June 2006, Renal Failure, Rejected (VEA)
issues and legislative framework
The sole issue before the Tribunal is whether the Applicant’s alcohol consumption during the relevant period is connected with the circumstances of his eligible war service. In considering whether there is any causal connection between the Applicant’s service and his cardiomyopathy, the standard of proof is that specified in section 120(4) of the Act. The Tribunal has to decide whether the Applicant’s cardiomyopathy is, on the balance of probabilities, connected with his service.
In respect of causation the Act relevantly provides in section 9(1)(b):
“…
9.War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) …
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
And section 196B(14) provides:
“…
196B Functions of Authority
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) … or
(b) it arose out of, or was attributable to, that service; or
(c) … or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) …
…
(ii)… or
(f) in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g) …
…”
evidence of the applicant and mrs mcphee
The Applicant provided a written statement late in 2005 (Exhibit A5) in which he stated:
“On enlistment in the RAAF and being accepted as a trainee pilot my pride and esteem, in the small coal mining town of Dudley, became very high. I was the first Dudley boy to gain entrance to the Newcastle boys High and eventually gained the Leaving Certificate at Canterbury Boys High School.
I was the eldest of six children and it was up to us all to make the best of ourselves through Education. Five boys and one girl was a drain on finances, as my father was only a Blacksmith in the mines and so couldn’t afford to deep me at school. Therefore I was sent to live with an Aunt and Uncle at Canterbury.
I was the only local boy to get into selection for Pilot Training. My family at Dudley and the whole community were following my career most carefully.
To wear the uniform and forage cap with its little while blaze was a great honour, boosting my ego and ambition to succeed.
After the initial selection of aircrew, the trainee pilots were kept in Australia instead of going to Canada for further training. This started the disillusionment and the interest of the neighbours and local town people, who were mostly English. People were hoping I would go to England after training in Canada, and would be able to make contact with families and relatives to give personal message from Australia. As time went on, this caused a lot of sadness for me and my family, as it became apparent that I was going to be unable to make these connections.
After graduation from E.F.T.S. at Temora I thought I was off to the next step in my training at Malabar. The fading out of training developed my misgivings and my self-esteem started to decrease. This “let down” caused the onset of depression. Because we were only four weeks from finishing training, when we were told we “would be digging ditches until further notice”. This situation continued to graduation. The hope and high design to obtain my “wings” was out of my reach. This started to create a feeling of failure and loss of ambition and self-esteem.
With this sudden discontinuation of training we had time on our hands so we spent much time drinking.
I was just a young fellow with a damaged ego and feeling of “being let down” and, a strong feeling of disillusionment with life. Digging trenches was such a mindless activity. A few drinks was one way to boost self-esteem and blot out unpleasant thoughts.
This gradually caused the starting of the deterioration of physical and metal health and developed into continued heavy drinking. Drinking became a balm or medicine to boost my lost self-esteem.
It all started here as drink and smoking was not affordable in our family. Such money could be used for food, clothes and shoes for boys who went mainly barefooted.
If only we could turn back the clock and do things differently!”
The Tribunal is mindful that the VRB in its reasons for decision dated 18 November 2005 records Mr Latimore telling the Board (T16 p57):
“…
… The advocate said that after discussions with the veterans’ wife, the period from the early 1970s to the early 1980s was the period of heaviest consumption. The veteran was consuming four to five large bottles of beer a day with possible additional alcoholic drinks. The advocate said that this translated to 10 to 13 standard drinks a day.
… He had been a trainee pilot and on the completion of his training, he believed he was to have posted to New Guinea, so he underwent a period of apprehension on that issue. However, on graduation, the veteran was instead sent to Toowoomba digging ditches and he felt very let down and his self-esteem suffered. As a result the veteran began drinking heavily. The advocate said that the veteran was free to come and go as he pleased from the camp and he would go to town at will. As a result, he was drunk four to five nights a week. This habit continued into the veteran’s civilian life.
…”
Mr Latimore told the Tribunal that the Applicant had told him about being free to come and go as he pleased from camp and that he would go to town at will, and as a result he was drunk four to five nights a week.
Mrs McPhee provided a written statement dated 10 March 2005 (Exhibit A1) and gave evidence by telephone. In her written statement, Mrs McPhee stated:
“When I met my husband in 1963 in Bega he was only a social drinker, a fairly heavy drinker, but most of the younger people we associated with were also drinkers. Ron told me before we were married that he had only started drinking and smoking when he had joined the Air Force. As time passed the smoking and drinking habit became worse. From about the middle of the 1970’s he was drinking 3 to 4 large bottles of beer a night. Then in the 1980 period on he would drink 4 bottles of beer before he would eat his dinner and he was drinking wine as well sometimes during the day. In the evenings I would have to keep his meal warm until he was ready.
…
During holidays and on weekends he would sometimes buy wiskey [sic] or wine which he would hide over in his work shed.
Sometimes he would fall down both in the house and in the yard. I would have to get him up and to bed. When he was very sick in hospital with Pneumonia I spoke to our Doctor about his drinking and smoking problem. Dr Erwin organised for Ron to go by ambulance to a Private hospital in Kogarah when he had recovered from the Pneumonia. He was about Eight weeks in the Kogarah Clinic and had stopped smoking and drinking. He was supposed to attend AA meetings after a few times he refused to go – “no patience with those people” – I think he was too embarrassed, it is only a small town.
Then when he retired in 1985 (1-7-1985) his alcoholism started all again as bad or sometimes worse. It wasn’t possible to discuss this problem with him he would only get angry. So I made it hard by hiding any cash, restrict the money; hunt out bottles whenever possible and empty them; refuse to have boxes of beer in the fridge. The rest of the time try to cover up what was happening in front of other people and pretend everything was OK.
Finally […] in 2002 he had a hip replacement because arthritis had completely destroyed the joint, he was unable to drive and I retired and stayed at home. So I was around all the time being a “watch dog”. During the hip operation period the Doctors were worried about Ron’s breathing problems and found he had a heart condition which let to him having a “pace maker” installed.
Even though he wasn’t able to drive and he was so sick, he still tried to get alcohol by getting a man, I had occassionally [sic] doing some odd jobs when necessary around the house, to bring in wine or wiskey [sic] – this had to be stopped.
…”
In her evidence by telephone Mrs McPhee told the Tribunal she first met the Applicant in 1961, became engaged to him in 1963 and after a period of two years or so when she was absent overseas they were married in 1966. She said she did not know her husband prior to 1961. She said that when she first met him he was very outgoing, cheerful, easy to talk to, interested in sport but a very private and sensitive person who was reticent about what he had achieved during the war years. When asked to clarify what she had said in her written statement about her husband being “only a social drinker, a fairly heavy drinker”, she said she meant that he would only drink when he was out with a group at parties or dinner and did not spend time drinking in hotels; and that on these social occasions she said he never was drunk and had no alcohol-related legal problems.
Mrs McPhee said that when she and her husband moved to Nowra in 1967, he talked more about the war and she knew he was disappointed about not being a pilot and being told to dig ditches. She said he was very patriotic, liked watching Anzac Day marches on television but did not march or attend reunions. She said he had become anti-social after they moved to Nowra and closed in on himself. She said she thought he probably saw a psychiatrist during his hospitalisation at Kogarah but he could not be convinced he needed help with his various problems. She described the various disappointments and problems he faced during their marriage, mainly in relation to being depressed about not getting teaching positions he expected to get and the impact of bad droughts on their hobby farm, and how these sorts of problems always led to him drinking heavily to block out things he found stressful, to hide away and to boost his ego. She said her husband described his drinking as “Ron’s medication”. Mrs McPhee said her husband was an intelligent man, who had graduated from teacher training school at college after the war and had had a successful career as a high school teacher from that time to his normal retirement in 1985 at aged 60. She said he had stopped drinking over the last four or five years of his life because of his ill health.
Mrs McPhee put her husband’s drinking problems down to the fact he started to drink on service, this carrying through to social drinking in the 60s and later much heavier consumption.
submissions
Mr Latimore in his Statement of Facts and Contentions submitted that the stress associated with the loss of the Applicant’s career as a pilot and redeployment to what he perceived as degrading ditch digging work contributed to a development of his alcohol consumption which continued at a high level for many decades after his service.
In oral submissions, Mr Latimore highlighted the great blow to the Applicant’s self-esteem as a result of the shattering of his dreams of becoming a pilot and being consigned to perform unskilled labour. He submitted that the Applicant was seen as a local hero and being cast as an unskilled labourer and being reduced to below the status of his own blacksmith father was particularly degrading to a young, idealistic and aspirational person such as the Applicant. All of this, Mr Latimore contended, was psychologically damning to the Applicant, as a result of which he learnt to use alcohol when he was low and after service he continued to use it as self-medication to help him cope with stressful situations and difficulties.
Mr Latimore submitted that the Tribunal, based on all evidence before it, should find that the Applicant’s eligible war service was such that it contributed in a material degree to the Applicant’s alcohol consumption, this leading to his cardiomyopathy, and that the Tribunal therefore should be reasonably satisfied that his cardiomyopathy was war-caused. In consideration of this matter Mr Latimore referred the Tribunal to Kattenberg v Repatriation Commission [2002] FCA 412 and Treloar v Australian Telecommunications Commission(1990) 26 FCR 316.
Mr O’Reilly submitted that there was no causal link between the Applicant’s alcohol consumption and his period of eligible war service and therefore the decision under review should be affirmed. In so submitting Mr O’Reilly noted that there is no contention of stressful service nor any concerning any psychiatric or substance abuse conditions.
Mr O’Reilly contended that Kattenberg (supra) can be distinguished in that this case refers to a service-related increase in smoking. And in its consideration of this matter Mr O’Reilly referred the Tribunal to Repatriation Commission v Tuite (1993) 29 ALD 609; the departmental guidelines on alcohol habituation (Exhibit R2) (“the Advisory Note”) and Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
In respect of Mr Latimore’s submissions, Mr O’Reilly agreed that the Applicant could be described as “aspirational” and that this was borne out by his successful career and marriage [post service], his service in no way detracting from his aspirations. Mr O’Reilly also submitted that there was no evidence to support Mr Latimore’s conjecture that the Applicant suffered because he considered digging ditches to be below the status of his father’s employment.
consideration
The Tribunal is mindful that the Respondent, in considering the question of alcohol habituation, takes into account internal advice (Exhibit R2) in respect of whether a “habit” of alcohol drinking continues from the service environment into the community after discharge from service. Relevant extracts from the Advisory Note are as follows:
“…
Habits are normal behaviours
The area of specific interest for the Repatriation Commission was whether a ‘habit’ of alcohol drinking continues from the service environment into the community after discharge from service.
The members of the RMA considered this matter. The advice is that “habituation” to alcohol, or indeed any other habit, which falls within the spectrum of normal human activity, is not a disease under the VEA. Habits should be considered under the psychology of normal human behaviours.
The relationshiop between the normal human behaviours (such as habits), social environments (for example military service) and individual biological and genetic vulnerability to disease is complex. This relationship can influence differently the exposure of each individual and thus the development of disease.
Links to service
The link to service for the consumption of low doses of alcohol not defined as alcohol dependence or alcohol abuse must be considered on an individual case by case basis
Is habituation a disease?.
The answer is simply, no. There is and will not be any SoP on alcohol habituation. Therefore a claim cannot be based on an investigation of the cause of habituation and the non-SoP rule applied. Each case would need to be examined to see if there is a connection between service and the consumption of alcohol. What those connections might be will depend on the claim submitted.
Alcohol abuse and alcohol dependence are two of the possible connections to service but are separately recognised diseases according to the International Classification of Diseases and have SoPs issued. Alcohol abuse/and/or dependence are not the inevitable end result of a ‘habit’.
…”
The Tribunal is mindful that in Drake (supra) per Bowen CJ and Deane J it was said:
“…
The Tribunal is entitled to take account of any relevant ministerial policy but is not, in the absence of a specific statutory provision, entitled to abdicate its function of determining whether, on the material before the Tribunal (as distinct from that before the decision-maker), the decision is the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general policy might be. The uncritical application of policy is to be distinguished from the application of an unobjectionable policy based upon the Tribunal’s concluding that the need for consistency in a particular area of administrative decision-making makes the decision resulting from the application of that policy to the facts the correct or preferable decision in the instant case.
…”
The Tribunal is satisfied that the guidelines, as set out above, are unobjectionable and do represent a considered view that should be taken into account by the Tribunal in determining this matter.
The Tribunal has considered the cases to which it has been referred. While Kattenberg (supra) and Tuite (supra) relate to smoking and therefore, in this respect, can be distinguished from the matter before the Tribunal, both these cases and Treloar (supra) make it clear that issues of causation must be approached in a factual and common sense way and as Davies J said in Repatriation Commissionv Bendy (1989) 18 ALD 144:
“…
6.In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is deminimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term ‘material’ is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely, ‘of substantial import or much consequence’ but rather in its legal sense of ‘pertinent’ or ‘likely to influence’.
…”
The Tribunal has looked carefully at the Applicant’s evidence in respect of his service. In so doing the Tribunal is mindful that there is a paucity of details about where and when he served and in what capacity he served. The Applicant has not completed an alcohol questionnaire and his statement does little to explain the extent of his drinking during his service either in quantity or in time. The Applicant talks about having time on his hands when his pilot training ceased towards the end of the war and filling in this time drinking – a few drinks being one way to boost his self-esteem and blot out unpleasant thoughts. He talks about sadness at not being sent to England where he could make contact with family members of neighbours and local townsfolk from his small home town (Dudley) and a feeling of failure and loss of ambition and self-esteem because he had not been allowed to complete his pilot training.
On the other hand, he apparently told Mr Latimore that he had been apprehensive about being posted to New Guinea and this of course did not occur. He also apparently told Mr Latimore that he could come and go as he pleased from camp at Toowoomba and was drunk four to five nights a week. The Applicant claimed that this gradually caused the start of a deterioration of physical and metal health and developed into continual heavy drinking. The Tribunal has difficulty in accepting this statement. There is no evidence about the Applicant’s drinking pattern during the post-WWII to the early 60s (some 15 or so years) when Mrs McPhee became acquainted with the Applicant. The picture she paints of the Applicant at that time and during the 1960s is of a well-adjusted successful school teacher who enjoyed a drink only at social events with friends but not to excess or to the point where he became drunk. The Tribunal accepts her evidence in this respect.
The Tribunal is of the view that there is insufficient evidence to support the inference drawn by Mr Latimore that the Applicant was subject to peer pressure, boredom or apprehension in respect of him visiting the local hotel and drinking at the hotel during his war service.
In determining if the Applicant satisfies Factor 5(a) of the Relevant SOP in respect of consumption of alcohol, the Tribunal has found that the Applicant drank heavily from the early 1970s. Taking into account the Respondent’s Advisory Note about habituation, all of the material and submissions before it and the authorities as set out above, the Tribunal is satisfied, on balance, that the influence, if any, of the circumstances of the Applicant’s eligible war service on the Applicant’s consumption of alcohol in and post the 1970s was minimal and had no effect on his pattern of drinking at that time.
It follows from the above reasoning and findings that the Tribunal is reasonably satisfied that the Applicant’s cardiomyopathy is not war caused and the Tribunal so finds.
The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.
Signed: Associate
Date of Hearing 14 August 2006
Date of Decision 8 September 2006
Representative for the Applicant Mr Tony Latimore, Vietnam Veterans’ Association
Advocate for the Respondent Mr Tim O’Reilly, Department of Veterans’ Affairs
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