Milagros Green and Repatriation Commission
[2013] AATA 174
[2013] AATA 174
Division Veterans' Appeals Division File Numbers
2008/5727
Re
Milagros Green
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Miss E A Shanahan, MemberDate 27 March 2013 Place Melbourne 1.The decision of the Repatriation Commission made 4 July 2002 is set aside.
2.In substitution for the decision set aside it is decided that the death of the late Wallace Henry Green on 29 May 1992 is war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) and that Mrs Green qualifies for the Widow’s pension.
......[sgd J W Constance].................
Deputy President J W Constance
CATCHWORDS
VETERANS' AND MILITARY COMPENSATION – widow’s pension – whether death was war-caused – suicide – malignant neoplasm of the larynx – depressive disorder – whether material raises an hypothesis connecting the death with the circumstances of operational service – smoking and supply of cigarettes to members of the Australian Defence Forces – sub‑hypotheses – decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 7(1), 8(1), 9(1), 120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 74 ALD 68
McKenna v Repatriation Commission (1996) 86 FCR 144
Re Dell and Repatriation Commission (1986) 9 ALD 596
Re Robertson and Repatriation Commission [1988] AATA 127
Repatriation Commission v Budsworth (2001) 66 ALD 285
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690Repatriation Commission v Green [2008] FCA 1614
SECONDARY MATERIALS
Documentary material referring to the supply of cigarettes to members of the Australian Defence Forces
REASONS FOR DECISION
Tribunal: Deputy President J W Constance
Miss E A Shanahan, Member
INTRODUCTION
Mrs Green is the widow of the late Mr Green who died on 29 May 1992.[1] She has applied to the Commission for a widow’s pension under the provisions of the Veterans’ Entitlements Act 1986 (Cth). Her application has been refused on the ground that Mr Green’s death was not war-caused. Mrs Green has applied to the Tribunal to review this decision.
[1] Date of marriage 15 May 1990, exhibit A2; Certificate of Death: exhibit A8 p.90-91.
For the reasons which follow the Commission’s decision will be set aside. In substitution it will be decided that Mr Green’s death was war-caused and that Mrs Green qualifies for a widow’s pension.
MATERIAL BEFORE THE TRIBUNAL
Evidence of Mrs Green
Mrs Green provided statements dated 4 September 2002,[2] 23 July 2005[3] and 9 February 2012[4] and an undated statement.[5] She gave evidence.
[2] Exhibit A8 p106.
[3] Exhibit A1.
[4] Exhibit A2.
[5] Exhibit A6.
Mr and Mrs Green met in 1979 when they were both living in the Philippines. They commenced living together later that year and continued to do so until Mr Green's death in 1992. They married in May 1990. Mrs Green described her husband as being very happy and friendly[6] and socialized with others.
[6] Transcript 29.8.12 p 11.
Mrs Green gave evidence that at the time they first met Mr Green smoked approximately 40 to 50 cigarettes (two packs) per week. In her statements of 23 July 2005 and 9 February 2012 she stated that he smoked approximately one pack per day.
From 1979 onwards, at the request of Mrs Green, Mr Green reduced his consumption of tobacco. On several occasions he attempted to quit smoking but his attempts were unsuccessful until he ceased smoking a couple of months before he died.
When they discussed his smoking habit Mr Green told Mrs Green that he had started smoking sometime in 1942 when he was in the Australian Army. He told her that he only started smoking as a result of boredom and that in the Army almost everybody was smoking. [7]
[7] Exhibit A1 para.3.
From about 1988 Mr Green began to complain of pain in his throat and began to cough up blood. He sought medical advice but this was very limited as he was unable to pay the fees required. He was advised to use throat lozenges and to take antibiotics. Mrs Green was able to obtain some of these for him. From the same time he became moody, intolerant of noise and irritable.
Dr Laigos, who was the Green’s landlord, told Mrs Green in 1988 that Mr Green was depressed because of his illness caused by his throat. Dr Laigos made this comment as he was walking around the neighbourhood; he was not consulted by Mr Green. Dr Laigos suggested that Mr Green seek specialist advice but he could not afford the fees required.
Mr and Mrs Green’s daughter was born in 1989. Mrs Green recalls that at about this time Mr Green further reduced his smoking. He continued to complain of the pain in his throat. About six months after the birth Mrs Green observed Mr Green holding a knife. He told her that he wanted to end his life because he was suffering too much pain.[8]
[8] Transcript 29.8.12 p.13.
From about 1989 onwards Mrs Green noticed that Mr Green was losing weight. He only wanted to eat soft food as he was having difficulty swallowing. He became weak and tired easily when walking. He appeared to be having difficulty breathing. His voice became weak and hoarse.
When she gave evidence Mrs Green said that prior to his death Mr Green's throat appeared to be swollen.[9] In her statement of 9 February 2012 she said that she did not notice any lumps or swelling around his throat.[10].
[9] Transcript 29.8.12 p.41.
[10] Exhibit A2 para. 10.
In her statement dated 4 September 2002 Mrs Green stated, in part:
Years later, when we were married, I have personally witnessed his bitterness and desperation, the pain and physical weakness he suffered. He was diagnosed several times with a malignant tumor in the neck.
Also from about 1988 Mr and Mrs Green began to experience financial difficulties and were unable to pay their rent. Their landlord allowed the arrears of rent to accumulate. They were unable to pay for the food they purchased and incurred increasing debt with their local shopkeeper. Mrs Green said that Mr Green became embarrassed and worried by reason of their lack of money. Neither of them was employed after they moved from Manila to La Union in around 1986.
Evidence of Dr Collins, Consultant Forensic Pathologist
Dr Collins considered various documents provided to him by Mrs Green's Solicitors. He also spoke to Dr Parado, the Medical officer who provided the Death Certificate and the Post-mortem Certificate. He provided reports dated 30 June 2011[11] and 29 September 2011[12] and gave evidence.
[11] Exhibit A4.
[12] Exhibit A5.
On 30 June 2011 Dr Collins reported in part:
3. … in broad terms, there may be an overlap of symptomology caused by malignant as opposed to non-malignant throat disease conditions, although it should be emphasized that a number of benign processes, such as chronic laryngitis and laryngeal nodules are commonly present in heavy smokers.
4. Whilst I have not yet read a detailed statement prepared by Ms Milagros Green, it appears to me that the over-riding symptom complained of by her late husband was long-standing pain in the throat, which was of such severity it precipitated the event that took his life.
It would be unusual for an individual to experience organic pain of such intensity to significantly disturb the mind, if the condition were of a benign aetiology. In other words, if my interpretation of the degree of pain being experienced by the late veteran is correct then, in my view, the most likely causation of such a symptom would be an infiltrating malignant disease process, for example, laryngeal carcinoma.[13]
[13] Exhibit A4 pp.3-4.
When he gave evidence Dr Collins said that the various symptoms described by Mrs Green, when taken with Mr Green’s history of smoking, made carcinoma of the larynx a more likely diagnosis than that of a benign condition.[14]
[14] Transcript 29.8.12 p.56.
Evidence of Professor Fox, Consultant Physician
Professor Fox provided reports dated 12 April 2009[15] and 2 April 2012[16] and gave evidence.
[15] Exhibit R1.
[16] Exhibit R2.
Based on the symptoms described by Mrs Green, Professor Fox expressed the opinion that Mr Green suffered from a malignancy of the larynx or throat. He said that the main symptoms which influenced his opinion were the pain, loss of voice and loss of weight.
Evidence of Dr Walton, Consultant Psychiatrist
Dr Walton considered the material before the Tribunal. He provided reports dated 4 May 2009[17] and 28 March 2012[18] and gave evidence.
[17] Exhibit R3.
[18] Exhibit R4.
On 28 March 2012 Dr Walton reported, in part:
I certainly agree with Dr Kaplan that if the veteran’s spouse’s most recent accounts of her husband’s symptoms are accepted then it is a reasonable proposition indeed that he had succumbed to a depressive disorder prior to committing suicide. Whether or not the precise diagnosis was that of a major depressive disorder or an adjustment disorder is of no particular relevance, except that major depressive disorders typically are more severe and more commonly associated with suicide attempts.
In addition Dr Walton said that if Mr Green had been suffering from intense protracted pain he may have concluded that he was suffering from a serious condition which in turn could have contributed to a depressive condition. However he was unable to make any conclusion as to the relative contributions to a depressive condition which may have been made by the pain and by any financial difficulties faced by Mr Green.
Evidence of Dr Kaplan, Psychiatrist
Dr Kaplan considered the material before the Tribunal and spoke to Mrs Green. He provided a report dated 21 November 2011[19] and gave evidence.
[19] Exhibit A7.
In the opinion of Dr Kaplan Mr Green suffered from a Depressive Disorder as a consequence of the pain he experienced in his throat and his belief that he was suffering from a condition which would prove to be fatal. Dr Kaplan noted the following:
oMr. Green intentionally took his own life.
o3.(b) My understanding from the attached documentation is that it is accepted that his suicide was related to relevant service (4).
oHe experienced a Category 1A stressor within the 5 years before the suicide (an illness he believed was fatal) (c).
oHe became socially isolated and was unable to maintain friendships or family relationships due to his medical and psychiatric illnesses (9a).
oHe suffered from a medical illness which resulted in, and where the prognosis involved, a severe level of disability at the time of his suicide (6l).
oHe suffered from chronic pain of at least 3 months duration at the time of the suicide (6n).
oMr. Green was suffering from either an Adjustment Disorder or a Depressive Disorder at the time of his suicide.[20]
[20] Exhibit A7.
Dr Kaplan stated that the impoverishment, the pain, the belief that he had a fatal illness, and his inability to afford medical assistance would have been factors in Mr Green’s decision to suicide.[21]
[21] Transcript 30.8 12 p.113.
Evidence of Professor Cade, Principal Specialist in Intensive Care
Professor Cade reviewed material before the Tribunal. He provided a report dated 6 April 2009[22] and gave evidence.
[22] Exhibit R5.
In his report Professor Cade stated, in part:
The veteran’s widow has reported that he suffered from persistent throat problems, comprising reduced voice and discomfort. … The most likely causes would be chronic non-specific inflammation (chronic laryngitis) and tumour (either benign or malignant).
…
No firm diagnosis can be made based on these symptoms alone. However, the most likely diagnosis is chronic laryngitis. In addition, this is the only diagnosis that was made medically at the time (by Dr Laigos), and there is no evidence available to suggest that this diagnosis was incorrect in this case.
Professor Cade gave evidence that his opinion that chronic laryngitis was the most likely diagnosis was not based on the symptoms but on statistics which indicated that chronic laryngitis was a more common disease than laryngeal carcinoma.
Documentary material referring to the supply of cigarettes to members of the Australian Defence Forces
On 30 November 1942 it was reported in The Daily News (Perth) that since April of that year the Australian Comforts Fund had distributed tens of thousands of cigarettes to the Australian troops in New Guinea.[23]
[23] Exhibit A13.
On 2 June 1943 The West Australian reported that the Minister for the Army issued a statement concerning the supply lines between Australia and the troops in New Guinea. He referred to the supply of cigarettes.[24]
[24] Exhibit A14.
On 18 December 1943 The Mail (Adelaide) reported that the Australian Comforts Fund had received 1,000,000 cigarettes for distribution to the troops in New Guinea.[25]
[25] Exhibit A12.
The report of Military and Aviation Research Services
This report was dated 10 October 2012 and was prepared by Mr Piper.[26] Mr Piper gave evidence.
[26] Exhibit A17.
Mr Green was engaged in training courses during various periods in 1942-43 and 1945. Cigarettes and tobacco would have been freely available during training.
Mr Green was posted to fortress sites near Newcastle from August 1942 until 14 October 1943 (with the exception of nine weeks when he attended training course) and in New Guinea from 10 December 1943 until 23 February 1945.
In the opinion of Mr Piper the Newcastle posting would have been fairly remote and monotonous.[27] Most of his posting in New Guinea was to Paga Fortress on a hill overlooking Port Moresby harbour. This posting would have been hot, sticky (high humidity and tropical) and mostly very monotonous. … At this stage of the war Moresby was virtually a backwater as the main Allied forces had moved much further north towards the Philippines and Japan.[28] Cigarettes and tobacco would have been freely available at both sites.
[27] Exhibit A17 p.4.
[28] Exhibit A17 p.5.
Evidence before the Veterans’ Review Board
Mrs Green's application was heard in part by the Veterans’ Review Board on 18 January 2005. On that occasions Mrs Green's representative, Ms Baful, informed the Board that she had spoken to Dr Laigos and that all that he could recall concerning Mr Green was that in the early 1980’s he started treating him for chronic laryngitis.[29]
[29] Exhibit A8 p.125.
Opinions in Articles
In an extract from Pathologic Basis of Disease (Third Edition)[30] by Robbins, Cotran and Kumar the following symptoms of throat cancer are recorded:
[30] Last updated 28 July 2004.
When throat cancer affects your vocal cords, the first symptom is a change in the sound of your voice, especially a persistent rasp or hoarseness. Other symptoms of throat cancer include:
·painful or difficult swallowing
·persistent sore throat
·a sense of a “lump in the throat” or a need to swallow
·swelling or pain in the neck
·enlarged glands (lymph nodes) in the neck
·a persistent cough
·wheezing or raspy breathing
·unexplained weight loss
·coughing up blood[31]
[31] Exhibit A8 p 143.
In an article published by Cornell University Medical College under the heading Otorhinolaryngology[32] (last updated 2 December 2003) it is stated:
Laryngitis is often characterized by a raspy or hoarse voice due to inflammation of the vocal cords. Laryngitis can be caused by excessive use of the voice, infections, inhaled irritants, or gastroesophageal reflux (the backup of stomach acid into the throat).
LEGISLATIVE BACKGROUND
[32] Exhibit A8 p.148.
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be war‑caused. The relevant parts of that section are:
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) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
…
Section 8(1)(b) provides:
8 War-caused death
(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 7(1)(a) provides:
7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
Standard of proof
Section 120 relevantly provides:
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.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
APPLYING THE LAW
In Repatriation Commission v Deledio[33] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[33] (1998) 83 FCR 82, 97-98.
ISSUES FOR DETERMINATION
We have to determine the following issues.
1)Did Mr Green render operational service and if so, when?
2)What was the “kind of death” met by Mr Green?
3)What medical conditions, if any, did Mr Green suffer at the time of his death?
4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
5)If such an hypothesis is raised, is there a relevant Statement of Principles in force?
6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
7)If so, are we satisfied beyond a reasonable doubt that the death of the late Mr Green was not war-caused?”
DETERMINATION OF THE ISSUES
Issue 1: Did Mr Green render operational service and if so, when?
The Commission has conceded that Mr Green rendered operational service from 23 July 1942 until 23 October 1945.[34] We are satisfied that this is a proper concession.[35]
[34] Further Statement of Facts and Contentions of the Respondent dated 23 August 2012.
[35] See exhibit A8 pp. 19-21.
Issue 2: What was the kind of death met by Mr Green?
On the basis of the Certificate of Death[36] we are satisfied that the immediate cause of Mr Green’s death was cardiorespiratory arrest subsequent to massive exsanguination and incised wound, lateral aspect, neck L and the kind of death was suicide. This is agreed by the parties.
[36] Exhibit A8 p.90.
Issue 3: From which medical conditions, if any, did Mr Green suffer at the time of his death?
Mrs Green alleges that at the time he committed suicide Mr Green was suffering from malignant neoplasm of the larynx and from a depressive disorder.[37]
[37] It is necessary to decide the relevant diagnoses before considering the application of the Deledio steps: Repatriation Commission v Budsworth (2001) 66 ALD 285; Benjamin v Repatriation Commission (2001) 70 ALD 622; Repatriation Commission v Cooke (1998) 90 FCR 307.
It is necessary to determine, on the balance of probabilities, whether Mr Green suffered from the conditions alleged: Repatriation Commission v Green.[38] In delivering judgement in an appeal against a previous decision of the Tribunal in this matter Ryan J said:
… the decision-maker is required to review the collection of symptoms disclosed by the evidence and determine whether or not it fits within the template afforded by any SoP considered applicable. … The task for the decision-maker is to find whether, on the balance of probabilities, the veteran suffered from a condition specified in the SoP, in this case, “malignant neoplasm of the larynx” and whether at least one of the factors set out in cl 6 of the SoP was related to the veteran’s war service.[39] (Emphasis added).
[38] [2008] FCA 1614.
[39] At p.23.
On the basis of the evidence of Mrs Green, Dr Walton and Dr Kaplan we are satisfied that Mr Green suffered from a depressive disorder at the time he committed suicide.[40]
[40] Depressive disorder is defined in clause 3 of the Statement of Principles No.27 of 2008.
Based on the evidence of Mrs Green, Dr Collins and Professor Fox, we are satisfied that on the balance of probabilities Mr Green suffered from malignant neoplasm of the larynx at the time he died. We have reached this conclusion on the basis that the symptoms described by Mrs Green are consistent with the symptoms of carcinoma of the larynx to which both Dr Collins and Professor Fox referred. We prefer their opinion to that of Professor Cade as his opinion that it was more likely that Mr Green suffered from chronic laryngitis was based simply on the proposition that statistically laryngitis is a more commonly occurring condition than carcinoma of the larynx. He did not support his opinion on a diagnostic basis. Furthermore Professor Cade said that if Mr Green was not a heavy smoker it made the diagnosis of carcinoma of the larynx more likely.[41]
Issue 4: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
[41] Transcript 30.8.12 at p.137.
In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
“a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts”.[42]
[42] Re Dell and Repatriation Commission (1986) 9 ALD 596, 615.
In deciding this issue we must consider all the material, not only that which supports the hypothesis: Repatriation Commission v Deledio.[43]
[43] (1998) 83 FCR 82, 97.
Taking into account all the material before us we determine that the material does point to a hypothesis which connects Mr Green’s death with the circumstances of his operational service. The hypothesis, as propounded on behalf of Mrs Green, is that:
oMr Green commenced smoking as a result of boredom and isolation availing himself of the ready supply of cigarettes provided to him as a member of the Armed Forces while performing operational service;
ohis smoking habit caused him to develop carcinoma of the larynx;
ohe became depressed as a result of the pain caused by the carcinoma;
ohe committed suicide as a result of the pain and/or the depression caused by the carcinoma.
There is nothing in the material before us that prevents the determination of the hypothesis set out above.
Issue 5: Is there a relevant Statement of Principles in force?
As this is a complex hypothesis involving several sub-hypotheses the Tribunal must consider all Statement of Principles so attracted as failure to satisfy any element renders the hypothesis unreasonable.[44] There is no dispute that Instrument No.11 of 2010, Statement of Principles concerningSuicide and Attempted Suicide is in force and relates to the death of Mr Green.
[44] McKenna v Repatriation Commission (1996) 86 FCR 144, 151-52.
The Statement provides that the Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that suicide can be related to relevant service rendered by members of the Forces.
As the hypothesis put forward by Mrs Green includes medical conditions which link Mr Green’s suicide to his operational service it is necessary to determine whether there are Statements of Principles in force for any of those conditions. We will deal with this issue when determining whether the hypothesis is consistent with the Statement of Principles concerning Suicide.
Issue 6: Is the hypothesis consistent with the “template” within the Statement of Principles concerning Suicide and Attempted Suicide and therefore a reasonable one?
Clause 5 of the Statement of Principles provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6 provides in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide …with the circumstances of a person’s relevant service is:
…
(b)having a psychiatric disorder as specified at the time of the suicide or the attempted suicide; or
…
(n)having chronic pain of at least three months duration at the time of the suicide or the attempted suicide; …
In clause 9 a psychiatric disorder as specified is defined in part as:
one of the following Axis I or Axis II disorders of mental health listed below:
…
(h) depressive disorder.
Chronic pain is defined to mean:
(a)continuous;
(b)almost continuous; or
(c)frequent, severe, intermittent pain,
which may or may not be ameliorated by analgesic medication and is of a level to cause interference with usual work or leisure activities or activities of daily living. This definition excludes normal, long-term healing processes associated with acute injury or surgical repair
(1) Is the hypothesis consistent with the requirement of the Statement of Principles that the factor of having a psychiatric disorder as specified at the time of the suicide be related to Mr Green’s operational service?
In clause 9 the disorder of mental health relied upon as satisfying the definition of a psychiatric disorder as specified is depressive disorder. Therefore it is necessary to consider the Statement of Principles which relates to depressive disorder, namely Statement of Principles concerning Depressive Disorder No.27 of 2008 as amended by No.40 of 2010.
Clause 6 of the Statement of Principles concerning Depressive Disorder provides, in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder … with the circumstances of a person’s relevant service is:
…
(a)(ix) having chronic pain of at least three months duration at the time of the clinical onset of the depressive disorder.
Chronic pain is defined in clause 9 to mean:
…continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living.
There is material before us that Mr Green suffered frequent and increasingly severe episodes of severe pain in his throat from about 1988 until his death in 1992. Mrs Green gave evidence of this. In this regard the hypothesis is consistent with the template in the Statement of Principles concerning Depressive Disorder as there is material pointing to Mr Green’s suffering from chronic pain over a period of about four years.
The meaning of clinical onset as used in the Statements of Principles was considered by the Tribunal in Re Robertson and Repatriation Commission:[45]
…… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …
This interpretation has been approved and adopted thereafter by the Federal Court.[46]
[45] [1988] AATA 127.
[46]See Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Lees v Repatriation Commission (2002) 74 ALD 68.
As the hypothesis advanced by Mrs Green is that Mr Green suffered chronic pain as a result of his suffering from laryngeal cancer it is necessary to determine whether there is in force a Statement of Principles relating to this condition. We determine that there is such a Statement, namely Statement of Principles concerning Malignant Neoplasm of the Larynx No.1 of 2006.
Clause 6 of the Statement of Principles concerning Malignant Neoplasm of the Larynx provides in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the larynx ... with the circumstances of a person’s relevant service is:
(a)smoking at least 2.5 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the larynx, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the larynx.
Clause 9 provides that pack years of cigarettes … means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7 300 cigarettes.[47]
[47] Clause 9 of the Statement of Principles.
Mrs Green gave evidence that when she met Mr Green in 1979 he was smoking approximately one pack of cigarettes per day and that he told her that he had commenced smoking in 1942. Further the evidence of Mrs Green is that Mr Green attempted to cease smoking permanently but was only able to do so a couple of months before he died in 1992. This material points to Mr Green having smoked at least 18 250 cigarettes (2.5 pack years) in the period 1942 until 1988.
We determine that the hypothesis that the cancer of the larynx suffered by Mr Green was caused by his consumption of cigarettes is consistent with the template within the relevant Statement of Principles.
On the basis of the evidence of Mrs Green as to what she was told by Mr Green as to the circumstances of his beginning to smoke cigarettes, the report of Military Aviation Research Services, the evidence of Mr Piper and the newspaper reports, we determine that the hypothesis that Mr Green began to consume cigarettes as a result of his rendering operational service is consistent with the template in the Statement of Principles concerning Malignant Neoplasm of the Larynx.
Taking into account all of the material before us we are determine that the hypothesis set out earlier in these reasons is consistent with the template set out in the Statement of Principles concerning Suicide and Attempted Suicide and the various Statements that refer to the related conditions suffered by Mr Green. The hypothesis is a reasonable one.
(2) Is the hypothesis consistent with the requirement of the Statement of Principles concerning Suicide that the factor of having chronic pain of at least three months duration at the time of the suicide, be related to Mr Green‘s operational service?
This question relates to the alternative hypothesis that Mr Green committed suicide as a result of chronic pain rather than as a result of a depressive condition. However as the hypothesis that the suicide was caused by a depressive condition caused by chronic pain associated with the laryngeal carcinoma the same reasoning applies to both hypotheses.
In the Statement of Principles concerning Suicide and Attempted Suicide the definition of chronic pain is slightly but not substantively different to the definition in the Statement of Principles concerning Depressive Disorder to which we have already referred.
We determine that there is material pointing to Mr Green having suffered frequent, severe, intermittent pain from about 1988 until his death, a period substantially in excess of three months. The material also points to it being so severe that it interfered with his activities of daily living to the point that he threatened suicide in 1989. This aspect of the hypothesis is consistent with the template found in the Statement of Principles concerning Suicide and Attempted Suicide.
(3) Conclusion in relation to issue 6.
For the reasons set out we determine that both hypotheses proposed by Mrs Green are consistent with the template to be found in the Statement of Principles concerning Suicide and Attempted Suicide and are reasonable.
Issue 7: Are we satisfied beyond a reasonable doubt that the death of Mr Green was not war-caused?
Counsel for the Commission did not argue that we could be satisfied beyond a reasonable doubt that the death of Mr Green was not war-caused. Having considered all of the evidence it is clear that we cannot be so satisfied and that the Commission’s position on this issue is appropriate.
The evidence of Mrs Green as to her husband’s smoking habits has varied considerably over the time it has taken to have this application finalized. However, taking into account the time which has elapsed since Mr Green’s death and that English is not Mrs Green‘s first language we do not consider that her evidence is so unreliable that we should disregard it.
There have been different views expressed by the medical experts as to the diagnosis of the condition (other than depression) suffered by Mr Green. Professor Cade expressed the opinion that the most likely diagnosis was chronic laryngitis. However in view of the evidence of Dr Collins and Professor Fox we cannot be satisfied beyond a reasonable doubt that Mr Green did not suffer from a malignant neoplasm of the larynx caused by his war-caused consumption of tobacco.
CONCLUSION
The decision of the Repatriation Commission made 4 July 2002 will be set aside.
In substitution for the decision set aside, it will be decided that the death of the late Wallace Henry Green on 29 May 1992 was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth) and that Mrs Green qualifies for the Widow’s pension.
I certify that the preceding 82 (eighty‑two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Miss E A Shanahan, Member.
.....[sgd].....................................................
Associate
Dated 27 March 2013
Dates of hearing 29 and 30 August 2012, 18 January 2013 Counsel for the Applicant Mr C Thomson Advocate for the Applicant Ms R Casamento Solicitors for the Applicant Victoria Legal Aid Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitor
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