Milagros Green and Repatriation Commission

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[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, Member
Date 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 690

Repatriation 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

  1. 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.

  2. 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

  3. 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.

  4. 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.

  5. Mrs Green…

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Details
Case
[2013] AATA 174
Decision Date

CaseChat Overview and Summary

Milagros Green sought a review of a decision by the Repatriation Commission, which determined that her late husband's death was not war-caused, and thus she was not entitled to a Widow's pension under the Veterans' Entitlements Act 1986 (Cth). The primary issue before the court was whether the death of Wallace Henry Green was attributable to his war service, specifically his consumption of tobacco during his service, which may have led to a malignant neoplasm of the larynx.

The court had to determine whether Mr Green's death was war-caused under the Act, considering the medical evidence and the connection to his war service. It was necessary to assess if there was a reasonable hypothesis connecting his death to his war service and if there was a relevant Statement of Principles in force that covered the circumstances.

The court concluded that, based on the balance of probabilities, Mr Green suffered from malignant neoplasm of the larynx at the time of his death. The symptoms described by his wife were consistent with carcinoma of the larynx, as corroborated by the evidence of Dr Collins and Professor Fox. The court preferred their opinions over that of Professor Cade, who believed Mr Green suffered from chronic laryngitis. The court found that the material before it did point to a hypothesis connecting Mr Green’s death with his operational service. Specifically, Mr Green's heavy smoking during his service likely caused his carcinoma of the larynx, which led to his depression and subsequent suicide.

The court also found that Instrument No. 11 of 2010, Statement of Principles concerning Suicide and Attempted Suicide, was in force and relevant. Therefore, the decision of the Repatriation Commission was set aside, and it was decided that Mr Green's death was war-caused, entitling Mrs Green to the Widow's pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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;

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.