McSweeney and Repatriation Commission

[2008] AATA 356

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3918

VETERANS’ APPEALS  DIVISION		)
Re		PAULINE MCSWEENEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G Maynard, Member

Date2 May 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review. The Tribunal decides in substitution that the veteran’s death was war-caused.

........................[Sgd]......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – applicant fell and died from bilateral pneumonia and C3 incomplete tetraplegia – whether applicant’s death occurred as a result of war-related injuries – war-related injuries included lumbar and thoracic spondylosis – decision set aside – substituted that war-related injuries caused applicant’s death

Veterans’ Entitlements Act 1986 (Cth), s120

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364

REASONS FOR DECISION

2 May 2008 Senior Member Bernard J McCabe and Dr G Maynard, Member                  

1.      Mrs Pauline McSweeney, the applicant, is the widow of Mr Edward McSweeney, a war veteran who died in February 2006. Mr McSweeney’s death followed a fall in October 2005 in which he broke his spine. Mrs McSweeney says the veteran’s death was attributable to his war service because the fall occurred as a result of his war-related back injuries. She applied for a pension payable to war widows under the Veterans’ Entitlements Act 1986 (“the Act”) on that basis.

2.      The Repatriation Commission, the respondent, claims Mrs McSweeney is not eligible to receive a pension because her late husband’s death was not war-caused. The Commission says Mr McSweeney’s accepted back condition did not play a role in his death.

3.      After reviewing all of the evidence – including evidence that was not available to the Commission or the Veterans’ Review Board – we have concluded the veteran’s death was war-caused. We have therefore decided to set aside the decision under review. We explain our reasons below.

The applicant’s story

4. Mr McSweeney served in the Army during World War II. The whole of his service therefore qualifies as “operational service” for the purposes of the Act. He became a policeman after the war. He was injured and hospitalised following a fall in late 2005. He died on 20 February 2006. He was 82 years of age.

5.      The Commission accepted that the late veteran suffered from lumbar spondylosis and thoracic spondylosis as a result of his war service. (Several other conditions were accepted, but they are not relevant for the purposes of this application.) Mrs McSweeney gave evidence that her late husband struggled with back-pain over a long period. He was a big man, and he often moved awkwardly. She explained his accepted back condition was such that he could not lower himself in a controlled way when he sat down. He flopped. She said flopping into chairs was a long-standing practice and Mr McSweeney had always explained to her that it was a consequence of his back pain.

6.      Mrs McSweeney said her late husband attempted to remain active after he left the police force despite his back pain. One of his preferred pursuits was lawn bowls.

7.      Mr McSweeney was scheduled to compete in a bowls tournament at the West Toowoomba Bowls Club on 29 October 2005. It was a Saturday. He set out from his home in Brisbane in the morning. Mrs McSweeney said her late husband would have experienced significant discomfort on the drive which would have taken about two hours. He was accompanied by his son, who is handicapped. Mr McSweeney arrived at the club in Toowoomba without incident. He went on the green and began to play. And then something happened.

8.      We know for sure that Mr McSweeney toppled backwards over a low brick wall at the rear of the bowling green. He fractured his spine in the fall. The applicant’s son may have witnessed the fall, but he was unable to give evidence. Nobody else saw what happened.

9.      Mrs McSweeney said in her testimony that her husband told her he had fallen backwards when he went to sit down on the wall because of back pain. It is not clear whether Mr McSweeney told her he merely needed to sit because of the back pain (ie, the back-pain was the motivation for sitting but not the cause of the fall that ensued), or if he actually toppled off the wall because his back pain caused him to flop down awkwardly and overbalance. Mrs McSweeney also referred us to a statement prepared for her husband which appeared to indicate he fell as a result of his back pain.

10.     Mr Smith, for the respondent, pointed out the statement was apparently taken at a time when the veteran’s hospital records indicated he was having difficulty talking. It was unclear how the veteran could have communicated his story. In those circumstances, we adjourned the hearing to allow evidence to be taken from the applicant’s daughter who held her father’s power of attorney and signed the statement in question.

11.     The applicant’s daughter was unable to explain how the statement was prepared because it was based on a statement taken by Mr McSweeney’s solicitors in anticipation of personal injuries proceedings. She confirmed her father had indicated he agreed with the contents of the statement that was tendered in these proceedings before she signed it. She acknowledged her father did not actually tell her he had fallen because of back pain. She admitted she simply assumed the back condition explained the fall because she had seen her father flop down awkwardly so often in the past. A further adjournment was allowed so that evidence could be taken from the solicitors who had interviewed Mr McSweeney in hospital and drawn the statement.

12.     Mr Brad Russell is a partner with McCullough Robertson. His firm was retained by Mr McSweeney to advise in relation to a personal injuries’ claim following the accident. Mr Russell said he attended at Mr McSweeney’s bedside in hospital on several occasions in order to take a statement.

13.      The original statement and a corrected version were provided to the Tribunal. I understand the Commission was not aware of those documents. They formed the basis for the statement that was subsequently provided to the Tribunal, and which formed the basis of the applicant’s claim that her late husband fell as a result of back condition.

14.     The statement says:

Upon reaching the wall, I turned around so that I was facing the bowling greens. I therefore had my back to the wall. As I went to sit down I stumbled. I think this was because of back pain. I do not think I slipped or tripped on anything. I did not feel dizzy or have a ‘blackout’. As I was stumbling, I fell backwards towards the wall. There was nothing to prevent me from falling over the wall.

15.     Mr Russell says he remembered the veteran using these words. He said the veteran was quite clear that he was not experiencing any disorientation at the time of the fall. Mr Russell said that may have been an issue in any personal injury proceedings, so he was careful to record the veteran’s comments.

The medical evidence

16.     The veteran’s death certificate records the causes of death as follows:

1. Bilateral pneumonia. 2. C3 incomplete tetraplegia (spinal cord injury)

17.     As the respondent explained, Mr McSweeney effectively died as a consequence of his broken neck. We understand there is no dispute about that.

18.     Mr McSweeney was 82 years of age when he died. He was a large man and we were given the impression that he was not very nimble. Both of his hips had been replaced some years ago and he suffered from arthritis and restricted movement. He also suffered from diabetes. There was evidence that he had experienced dizzy spells in the past, and that he had also experienced episodes of diabetic neuropathy. Diabetic neuropathy results in a loss of sensation. Dr Gan explained in his evidence that the loss of sensation would affect the veteran’s gait and make it more difficult for him to place his feet. If those symptoms were present, they might explain the veteran’s fall, although there was no evidence that Mr McSweeney experienced those symptoms on 29 October 2005.

19.     The Commission said it was impossible to be sure why the veteran fell. We were referred to the evidence of Dr Casperson, who said (at Exhibit One, at 308):

I am unable to propose any mechanism of injury that links the veteran’s fall and C4 fracture to his accepted spondylosis conditions. There are several alternative reasons for the stumble-and-fall injury, including instability of his knees, ankles &/or hips, syncope, blood sugar disturbance, Vertebro-Basiliar Insufficiency, Transient Ischaemic Attack, hypotension, dehydration, cardiac arrhythmia, vertigo, and misjudging the distance to the wall

Establishing a causal link between the veteran’s service and his death

20. Section 120 of the Act says a veteran (or, in this case, his widow) may be eligible for compensation if it is possible to identify a reasonable hypothesis connecting the circumstances of the veteran’s service and the cause of his death. Section 120A requires that the reasonableness of the hypothesis be assessed against the statements of principles issued by the Repatriation Medical Authority. The assessment process has been discussed in a number of cases, most famously Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.

21.     After one has determined the cause of death (in this case, a fracture of the spine leading to pneumonia), the first step is to determine whether there is material that points to the hypothesis. It is not enough that the material is merely consistent with the hypothesis: see Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 372 per Northrop ACJ, Sundberg, Marshall and Merkel JJ.

22.     The respondent says the claim should fail at this point. It relies in particular on the evidence of Dr Casperson, who suggested there were a number of plausible alternative explanations for the fall. We agree there are a number of plausible explanations for what occurred, but the evidence from Mr Russell and the statements he furnished from his files point to the spondylosis conditions as the cause of the fall. We note that evidence was not available to the Commission or Dr Casperson.

23.     Mr Smith submitted that the relevant statement of principles (“the SoP”) is No 53 of 2006, which relates to fractures. That SoP refers to “receiving physical trauma involving the affected bone at the time of the clinical onset of fracture” (at [6(a)]). The applicant must ultimately establish that Mr McSweeney’s fall – the “physical trauma” – was connected with his service-related back condition if she is to succeed in her claim.

24.     The applicant says her late husband experienced service-related back-pain that caused him to sit heavily and awkwardly on a low wall in such a way that he tumbled off and fractured his neck. We accept that story is capable of satisfying the template in the SoP. But should we accept that is what actually occurred given there are other plausible explanations for the same event?

25. Section 120(1) says we should determine the veteran’s death was war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. We think the evidence supplied by Mr Russell makes it impossible for us to be satisfied beyond reasonable doubt that Mr McSweeney did not fall and injure himself because of his service-related back condition. His statement makes it clear: he stumbled and fell backwards against and over the wall because of his back-pain. He addresses other potential causes and expressly rejects them. We have no reason to doubt the evidence and it should be accepted.

Conclusion

26.     The decision under review is set aside. The Tribunal decides in substitution that Mr McSweeney’s death was war-caused. The date of effect is 25 February 2006.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G Maynard, Member

Signed: ...............................[Sgd]......................................................

Michael Buckingham, Associate

Dates of Hearing  15 February, 4 April and 14 April 2008
Date of Decision  2 May 2008
Counsel for the Applicant         Mr R Clutterbuck
Solicitors for the Applicant        Sciaccas Lawyers   
Solicitor for the Respondent     Departmental advocate