McPherson and Repatriation Commission
[2007] AATA 1148
•20 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1148
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/1262
VETERANS’ APPEALS DIVISION ) Re FRANK McPHERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N. Isenberg, Senior Member
Dr I. Alexander, MemberDate20 March 2007
PlaceSydney
Decision The decision under review is affirmed.
……..……...[sgd]................
N. Isenberg,
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that hypertension and ischaemic heart disease were war-caused – consideration of evidence, legislation and Statement of Principles – the Tribunal decides that the decision under review is affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 120(1), 120(3), 120(4), 120A, 196B,
Statement of Principles – Instrument No 35 of 2003 concerning Hypertension; Instrument No 53 of 2003 concerning Ischaemic Heart
Bull v Repatriation Commission (2001) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Milenz [2006] FCA 1436
REASONS FOR DECISION
20 March 2007
Ms N Isenberg, Senior Member and Dr I Alexander, Member
DECISION UNDER REVIEW
1. The decision under review is the decision of the Repatriation Commission dated 17 August 2004 as affirmed by the Veterans’ Review Board (“the VRB”) on 8 September 2005 that refused the claim by Frank McPherson (‘the veteran’) that his hypertension and ischaemic heart disease were related to service.
ISSUE(S) BEFORE THE TRIBUNAL
2. The issues to be considered by the Tribunal are whether Mr McPherson’s hypertension and ischaemic heart disease were war (or defence) caused.
BACKGROUND
3. Mr McPherson served in the Royal Australian Navy from 18 January 1950 to 17 January 1956 and from 16 July 1956 to 19 September 1977. His eligible war service was from 28 February 1962 to 16 March 1962. There was no dispute that this was operational service as defined in S 6C of the Veterans’ Entitlements Act 1986 (“the VE Act”).
4. Mr McPherson also rendered eligible defence service as defined in Part IV of the VE Act from 7 December 1972 to 19 September 1977.
LEGISLATIVE FRAMEWORK
5. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, if, inter alia, it resulted from an occurrence that happened while the veteran was rendering operational service.
6. Notwithstanding the submissions made on Mr McPherson’s behalf it was also necessary to consider the less beneficial provisions applicable to the veteran’s eligible defence service.
7. In considering Mr McPherson's eligible defence service subsection 120(4) applies and we must decide whether his conditions were defence caused on the balance of probabilities.
8. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.
9. Under s 120A of the VE Act, where the Repatriation Medical Authority (“RMA”) has issued a Statement of Principle (“SoP”) in respect of a particular kind of injury or disease pursuant to Section 196B, the reasonableness of an hypothesis is to be assessed by reference to that SoP.
Consideration
10. The claimed conditions of hypertension and ischaemic heart disease are the subject of SoPs.
11. The hypothesis submitted by Mr Winship, the solicitor for Mr McPherson, was that Mr McPherson had suffered a stressful event during his operational service which led to an increase in alcohol consumption which gave rise to his hypertension, which led to his ischaemic heart disease. Alternatively he submitted, in relation to hypertension, that Mr McPherson’s pre-existing hypertension had been worsened by his increase in alcohol consumption following the stressful event during his service.
12. The relevant factors for hypertension are as follows:
5. …
(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or
…
(q) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical worsening of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or
…
13. The relevant factor for ischaemic heart is:
5. …
(a) the presence of hypertension before the clinical onset of ischaemic heart disease;
…
14. There was no dispute that if Mr McPherson succeeded in relation to hypertension, his claim for ischaemic heart disease would succeed also.
15. Where a SoP exists we must apply the test out in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97.
16. In Deledio (supra) at 97 the Federal Court said that the first step for the Tribunal is to determine whether the material points to a hypothesis connecting the injury, disease or death with the circumstances of service. No question of fact finding arises at this stage. The second step is to ascertain whether there is a SoP in force in respect of the relevant injury. The third step is to consider whether the hypothesis raised is reasonable in terms of the template in the SoPs. The final step is whether the decision-maker is satisfied beyond reasonable doubt that the injury, disease or death is not war-caused. It is only at this stage that fact finding is required.
17. In considering whether there is an hypothesis connecting Mr McPherson’s conditions with his war service, and in applying the relevant Deledio steps to that end, we must consider all of the material before the Tribunal, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
18. An hypothesis that could be said to be ‘obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous’ would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a ‘reasonable hypothesis’ involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
19. The first matter was to look to the date of clinical onset of hypertension. Mr McPherson’s solicitor suggested that the date of clinical onset of hypertension was in about 1964. We had before us a document which had been tendered to the VRB in an earlier hearing. Mr McPherson had apparently extracted information from his medical documents as to his blood pressure readings. At first Mr Winship, for the Applicant, suggested that the document could not be relied on as it was not primary evidence. It was pointed out that it was largely the same as information provided by Dr Wyndham in a report dated 12 May 1992 after the doctor’s perusal of Mr McPherson’s medical documents. Mr McPherson had made the following relevant entries:
Date Age Blood Pressure recorded (mmHg)
22/12/55 26 150/80
16/07/56 27 160/80
10/09/57 28 160/80
04/11/58 29 160/80
28/12/58 29 160/80
20. The Statement of Principles for hypertension contains the following definition of the condition:
Kind of injury, disease or death
2. …
(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:
(i)a usual blood pressure reading where the systolic reading is greater or equal to 140mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, pre-eclampsia or medications.
21. According to the definition Mr McPherson suffered hypertension when his ‘usual’ reading was at the elevated levels identified in the definition, that is, well before his operational service.
22. We note that in Repatriation Commission v Gosewinckel (1999) 59 ALD 690:
“Section 120A and the associated provisions in Part XIA of the VE Act [which include’s 196B] were introduced in order to take the determination of ‘purely medical … issue’s out of the hands of bodies such as the [Tribunal].”
23. We are of the view that the definition clearly provides what is to be regarded as hypertension when applying the SoP. Whether, as was submitted, ‘in those days’ the readings would not have been regarded as hypertensive, is irrelevant.
24. To meet the template of a factor the occurrence said to give rise to the condition must have happened while the veteran was rendering operational service or was attributable to his operational service: section 9. Because Mr McPherson’s hypertension pre-dated his operational service, his circumstances cannot be said to have met the template. Therefore there can be no reasonable hypothesis that his hypertension was initially caused by his operational service.
However, we turned to consider the alternative hypothesis, namely that Mr McPherson’s hypertension was clinically worsened by his operational service.
25. ‘Clinical worsening’ requires a ‘medical-scientific standard not a lay standard’, with ‘features or manifest symptoms of the disease’ (Repatriation Commission v Milenz [2006] FCA 1436). Unfortunately the SoP provides no guidance as to what might amount to a clinical worsening of hypertension. We looked at whether the blood pressure readings after Mr McPherson’s operational service were more elevated than beforehand. The additional readings recorded by the veteran were:
Date Age Blood Pressure recorded (mmHg)
19/07/62 33 125/80
14/08/64 35 150/90
18/11/69 40 150/90
(We note that there was either an additional reading or a misprint in lieu of 19 July 1962 recorded by Dr Wyndham on 14 September 1962, at 125/80). The majority of blood pressure readings between 1955 and 1969 are consistent with the SOP definition of hypertension but do not suggest any clinical worsening. In fact, after Mr McPherson’s operational service, his blood pressure marginally improved between 1962 and 1969.
26. We therefore find that Mr McPherson’s circumstances do not fit the template for the factor 5(q) of the hypertension SoP in that there was, following his operational service, no clinical worsening of his hypertension.
27. Although it was not part of the Applicant’s submission, we next turned, for completeness, to consider whether there had been a clinical worsening of Mr McPherson’s hypertension associated with his eligible defence service.
28. In 1975 Mr McPherson had an acute collapse resulting in a hospital admission. At that time he had significantly raised blood pressure readings and antihypertensive medication was administered. The recorded readings were as follows:
Date Age Blood Pressure recorded (mmHg)
-/04/75 46 140/100 (sitting)
14/07/75 46 210/120
14/07/75 46 190/120 (prone)
28/07/75 46 165/115 (sitting)
11/07/75 46 140/85 (prone)
13/08/75 46 180/120 (standing); 180/110 (sitting)
14/08/75 46 170/110 (sitting)
16/08/75 46 170/120
26/09/75 46 140/95 (prone); 180/110
30/10/75 46 140/95 (prone)
13/11/75 46 160/115 (sitting); 125/90 (prone)
1/12/75 46 140/95 (sitting)
16/12/75 46 135/100 (sitting); 130/90 (prone)
29. We were reasonably satisfied that the objective evidence of the acute collapse with such elevated readings amounted to a clinical worsening of his hypertension.
30. We turned then to his alcohol history. There was an abundance of other evidence in relation to Mr McPherson’s alcohol history, notwithstanding that he was unable to give evidence before the Tribunal.
31. At the hearing, Mr Bruce Bounds, a friend of Mr McPherson’s gave evidence. He said that he had known Mr McPherson while they were doing training from early 1951. At that time Mr McPherson was ‘a very moderate’ drinker. They would drink in the mess about once per fortnight, consuming 2-3 middies. They would spend time together on leave, visiting each other’s families and they were both then ‘moderate’ drinkers consuming approximately 7 oz of beer every second day. This continued until the early 1960s. (Mr Bounds told Dr Miller that by 1957 Mr McPherson was drinking 3-4 beers, 2-3 times per week). On Mr McPherson’s returned from his deployment with the FESR they resumed their friendship and he observed his friend to be drinking ‘fairly heavily’. When he asked Mr McPherson why he was drinking so much he told him about the incident aboard HMAS MELBOURNE.
32. In his statement Mr Bounds wrote:
“Over the following years when Frank was promoted to a Chief Petty Officer and then to a Warrant Officer I observed he was a very hardened drinker.”
33. Mr Bounds told Dr Miller that in 1962 the veteran would want to go early in the day to the Club and stay for a long time and would drink for 4-5 hours, consuming 6-8 middies.
34. His evidence was that Mr McPherson was drinking ‘heavily’ in the late 1960s and early 1970s. Mr Bounds told Dr Miller that by the late 1960s Mr McPherson was drinking ‘pretty heavy’, including drinking at lunchtime. [Before the 1970s] he would consume wine until the opened bottle was empty.
35. Mr McPherson was unable to give evidence about the incident at the hearing himself. However he had given evidence before the VRB on 26 February 2003. In its decision the Board recorded his evidence as follows:
“In response to the Board’s questions about his time on the [MELBOURNE], Mr McPherson replied that his memory is not as good as he would like it to be. He described living on the [MELBOURNE] as “awful”. Such were the pressures on board, that he just waited to get to shore so he could “get stuck into the grog.” As Petty Officer, he was not subject to disciplinary actions of his superiors, but he had to discipline his subordinates. This caused him problems, especially with aircraft maintenance.
He described one incident in which he was on the flight deck and he was testing one of the aircraft during the action stations period. He found the wings would not fold properly. He knew that there was a problem. The aircrew were getting very uptight. It upset him “something terrible.” There were fully loaded aircraft ready to go. He was out on the catapult, and was working on the aircraft behind. He removed the pump on the aircraft and found that one of the maintenance crew had left a quill drive out of the hydraulics. It was “a massive relief” to have found the cause of the problem”
36. In an application for service pension received by the Department on 12 May 1988 Mr McPherson wrote that the stress of service began to affect him shortly after his posting to the Wessex helicopter squadron at HMAS ALBATROSS on 8 October 1969 and worsened when posted [to Darwin] on 13 October 1970, which he left in November 1972.
37. In a statement dated 6 November 1991 Mr McPherson wrote:
“Before I returned to the Naval Air Station and joined HS817 WESSEX Helicopter Squadron in September 1969, my service career was fairly relaxed.. I did drink beer socially but quite moderately and seldom more than four middies a day. More often, depending on circumstances, many days I would not drink at all. Throughout the whole of my career I never drank during the working day – never had a beer for “lunch” – or at any time when I was on duty, for example – duty watch.
Shortly after joining HS 817 I found that I was having a beer every day after work and I was drinking 2-3 middies every night. By the time I joined HT 727 WESSEX Squadron in late 1970 I was definitely looking forward to my “stand-down” beer and, I was drinking 4-5 middies.”
38. Mr McPherson completed an alcohol questionnaire on 22 October 2001. There he wrote that in 1957 he was drinking ‘three to four per day (more on the weekend).’ In the 1960s he wrote that he was ‘drinking heavily to 10 per day plus weekends.’ As to why he increased his alcohol consumption he wrote that his ‘habit increased with each promotion and change in responsibility’ and that he ‘always attained high promotional scoring and obviously was good at [his] allotted tasks.’ Further he wrote that in 1972 he had been ‘promoted to Warrant Officer and was drinking 10-15 middies and more per day.’
39. As to how his alcohol consumption was related to service he wrote:
“I began to drink and smoke after enlistment at the end of watch and on shore leave it was how [sic] myself and my mate entertained ourselves.
As time went by and I was promoted and took on more resposnbilities the few beers at lunch time and after work became my normal habit.
Even when civilian hotels etc were closed the Messes were available. Everyone I knew used alcohol socially.
I found it difficult to go one day without alcohol.
I served over 27 years in the RAN. Over 20 of those years as an NCO and Warrant Officer. Alcohol was a major part of my Service Life in. [I]n fact during my service Senior Sailors and Warrant Officers were expected to have a full Messing involvement.”
40. On 31 July 1992 the veteran told the VRB he had maintained a steady but low alcohol habit until he was posted to duty maintaining Wessex helicopters (in Darwin). He said he had increased alcohol consumption from that time.
41. In about January 1994 Mr McPherson had described himself to the Tribunal as having being a ‘steady, but not heavy drinker’ during the period 1950 to 1969. He said it was at that time that he first realised he was staring to drink heavily. He left the Wessex squadron in late 1972.
42. Mr McPherson told the VRB on 26 February 2003 that he had fallen down [drunk] while on shore leave on 15 March 1970 and had required medical treatment.
43. The history given by a veteran to a medical practitioner is also relevant: Lees v Repatriation Commission (2002) 125 FCR 331. On 12 June 1990 Mr McPherson appears to have told Dr Miller, consultant physician that:
“He did not drink before service, he began to drink steadily in the 1950’s mainly because he felt the stress of his job was alleviated when he drank. During the eligible period he was drinking a minimum of four to five middies a day although I note that in July 1975 he is recorded as drinking eight middies a day on a regular basis.”
44. In relation to this Mr McPherson wrote in a statement dated 6 November 1991:
“I must have given Dr G.M. Miller (report 12 June 1990) the impression that by July 1975 I was drinking eight middies of beer a day. This is generally ture except that at that time this would have been the minimum and it was often more. Also, I never drank “Lite” beer. It was not on the market at the time.”
45. Mr McPherson was examined by Dr Lou Goldman on 23 November 1992. He was recorded as having told the doctor that he did not drink before joining the Navy but began to drink steadily in the 1950s during the early stages of his Navy life. As the stress of his job and the demands placed on him increased, he found the need to drink more and more to relieve the stress. It was not until 1969 when he moved away from Darwin that he would drink for 4-6 middies daily.
46. On 24 November 1992 the veteran was recorded by Professor Heather, the Director of the National Drug and Alcohol Research Centre, as saying that he first drank alcohol on his 18th birthday but did not enjoy it. He thought he may have drunk alcohol before he joined the Navy because friends did but he drank only very sparingly. After joining the Navy there was peer pressure to drink but he was conscious of trying not to drink too much. On a few occasions when he drank too much he felt ill afterwards and this put him up off alcohol. The doctor wrote:
"This very moderate pattern of drinking continued until about 1969."
47. When he was posted to Darwin in 1968 there was a strong that drinking culture but he managed largely to resist this pressure and, for example did not even drink in the mess after work.
48. In 1969 he was posted to helicopter maintenance in Nowra and was very stressed about the work:
“He soon got into the habit of going into CPOs’ Mess after work and having 2 or 3 beers before going home. At sea, he began looking forward to drinking the regulation can of beer because, he says, it made him feel more confident. It was during this period, in 1970, that he fell and banged his head while intoxicated after a period of shore leave in New Guinea. Towards the end of this post in 1972, he would go to the mess nearly every night and drink 3 or 4 middies. He would then drive home and continue drinking until perhaps 9 or 10pm with his wife, during which time he would consume perhaps a further 4 cans of beer.”
49. On 6 October 2001 Mr McPherson was examined by Dr Blicharski, psychiatrist, who wrote:
“While in the Navy he began worrying about responsibilities and doing his job properly from 1957 when he was promoted to the rank of Petty Officer. To some extent this worry was precipitated when there was an incident of trying to get a man out of an overturned plane leaking petrol and the crane was not available for use to lift the plane. He felt that he must never make such a mistake.
He was inclined to drink to excess from that time to improve his sleeping. He would drink up to 15 middies a day.”
50. In a report dated 9 July 2004 Mr McPherson was reported by Dr Koller, psychiatrist, as having said he ‘ruminated about the incident (aboard [MELBOURNE]) and said he bartered his beer rations and drank heavily. He was ridiculed by the crew and this led to further drinking to assuage his depressed feelings.’
51. When Mr McPherson was examined by Dr Edwards on 23 February 2006 it was reported that before 1962 he would have ‘a couple of beers at lunchtime’ and ‘4 or 5 beers in the evening’. Immediately after the incident his alcohol use increased considerably – ‘4 or five at lunch’ and ‘I hate to hazard a guess’ in any evening.
52. Professor Mattick examined Mr McPherson on 31 July 2006. Mr McPherson told him that he first drank alcohol at age 19 (approximately 1948), having at least one beer a day and continued to drink that amount until 1962, when he changed to 4 beers per day, until the end of his naval service. Some assistance was provided by his wife, who disputed this latter remark, but it was noted that she did not meet the veteran until 1981.
53. Mr McPherson has given numerous accounts of his alcohol history. His accounts have attributed his drinking, primarily, to stress of service, but in more recent times to an event during operational service. Overall, the evidence was to the effect that Mr McPherson was a light drinker prior to his deployment on MELBOURNE. His drinking increased, probably as a result of work stress. However, well before 1975 when he had his acute hypertensive attack the evidence was that the veteran was consuming significant amounts of alcohol. More relevantly, there is a consistent thread through the evidence that he had substantially increased his alcohol intake prior to his eligible defence service.
54. We therefore could not be satisfied on the balance of probabilities that Mr McPherson’s alcohol consumption was causally related to his eligible defence service. Having failed to meet the relevant factor in the SoP for hypertension, Mr McPherson must also fail in meeting the factor in relation to ischaemic heart disease: McKenna v Repatriation Commission (1999) 86 FCR 144.
Conclusion
55. In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the claimed conditions of hypertension and ischaemic heart disease are related to Mr McPherson’s operational service.
56. Furthermore, we are satisfied, on the balance of probabilities, that there is no connection between Mr McPherson’s claimed conditions of hypertension and ischaemic heart disease and his eligible defence service.
Decision
57. For the above reasons, the Administrative Appeals Tribunal affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed: [sgd] Jun Lee
AssociateDate of Hearing 19 February 2007
Date of Decision 20 March 2007Representative for the Applicant Brian Winship – Winship Lawyers
Representative for the Respondent Tim O’Reilly – Department of Veterans’ Affairs
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