Mortensen and Repatriation Commission
[2005] AATA 230
•17 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 230
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/698
VETERANS' APPEALS DIVISION
Re: IRENE MAVIS MORTENSEN AND WILLIAM HAROLD JAMES MORTENSEN (as Executors of the estate of Harold Francis Mortensen (deceased))
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 17 March 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s conditions of depressive disorder, ischaemic heart disease and hypertension were war‑caused, with effect from 5 August 2003.
(sgd) G.D. Friedman
Member
VETERANS’ AFFAIRS – depressive disorder ‑ ischaemic heart disease ‑ hypertension ‑ circumstances of breakout from Japanese prisoner of war camp ‑ whether conditions related to service
Veterans’ Entitlements Act 1986 ss 9(1), 119 (1)(h), 120(4), 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
17 March 2005 G.D. Friedman, Member
1. This is an application by Irene Mavis Mortensen and William Harold James Mortensen (as executors of the estate of Harold Francis Mortensen [deceased] [the veteran]) (the applicants) for review of a decision of the Veterans’ Review Board (VRB) dated 13 May 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 18 December 2003, that the veteran’s conditions of hypertension and ischaemic heart disease were not war‑caused.
2. At the hearing on 17 February 2005 Ms A. Magee of counsel represented the applicants and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T23), with three exhibits (Exhibits A1‑A3) tendered by the applicants and four exhibits (Exhibits R1‑R4) tendered by the respondent.
BACKGROUND
4. The veteran was born on 2 May 1917. After leaving school he worked on his parents’ farm in Koo Wee Rup, Victoria, for two years before obtaining employment at a cheese factory and as a milk deliverer. He enlisted in the Australian Army on 27 June 1940 and was discharged on 16 December 1946. He served in training battalions in various locations in Australia before service for about one month in New Britain and New Guinea in 1945, and his Army service constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).
5. After leaving the Army the veteran joined the Victoria Police, where he served until he retired in 1972 due to ill‑health. Following his discharge from the Army he sought treatment for a number of conditions including depression, hypertension, cataracts, cancer of the lower lip and ischaemic heart disease. In 2003 he suffered a heart attack. On 5 November 2003 the veteran made an application for disability pension in relation to acquired cataracts, hypertension and ischaemic heart disease. In his claim form the veteran stated that he believed that his hypertension was caused by the stress and depression he suffered during his service, and that the hypertension caused his ischaemic heart disease (T5, page 19). On 18 December 2003 the respondent accepted the claim for acquired cataracts and refused the claim for hypertension and ischaemic heart disease.
6. On 23 December 2003 the veteran applied to the VRB for review of the respondent’s decision of 18 December 2003. On 13 May 2004 the VRB affirmed the decision. In addition to hypertension and ischaemic heart disease the veteran had been suffering from depression, cancer of the prostate, renal failure, insulin‑dependent diabetes and skin cancer of the lower lip. He died on 10 June 2004, prior to the completion of the review process. On 17 June 2004 the applicants sought review of the VRB decision by the Tribunal.
7. The issue before the Tribunal is whether the depressive disorder, hypertension and ischaemic heart disease suffered by the veteran were related to his war‑service.
EVIDENCE
8. In a written statement dated 11 June 2004 (Exhibit A1) Mrs I. Mortensen, widow of the veteran, said that she met him in 1939 and they were married on 14 January 1941. She stated that prior to enlistment the veteran was a quiet person who was sensitive and a deep thinker. She stated that by the time of his discharge there was a clear difference in his outlook:
…By that stage he was much more reserved, more quiet, didn’t enjoy socialising, was irritable on occasions, was sombre and morose and depressed. It is my belief that he suffered depression from the time of his war service.
9. Mrs Mortensen stated that the veteran did not talk much to her about his war service, but referred to two incidents. The first concerned the death of James Wadsley, a friend whose family came from the Koo Wee Rup area. She said that Mr Wadsley had been in New Guinea with the veteran in 1945 and died after being shot (the Wadsley incident). She said that the veteran was with his friend when he died and the death had upset the veteran. Mrs Mortensen said he never spoke much about the incident.
10. The second incident concerned the veteran’s presence at the breakout of Japanese prisoners of war from a camp in Cowra, New South Wales, on 5 August 1944 (the Cowra incident). Mrs Mortensen said:
…He told me that the Japanese broke out and that some people were killed. He said that the Japanese had done terrible things to themselves rather than being captured. I was left in no doubt that Hal had witnessed deaths during the breakout.
Mrs Mortensen stated that the incidents had a marked effect on the veteran, and when mentioning them he became very emotional and teary. She said that he had also become emotional on a later visit to Cowra with their children, and when one of his daughters gave him documentary videos of World War 2.
11. In oral evidence Mrs Mortensen said that after the war the applicant would not discuss his feelings, and would cry often. She told the Tribunal that in 1946 the veteran’s general practitioner prescribed medication for his nerves, and he continued to take anti‑depressant medication until his death. In relation to the Cowra incident, she said that the veteran told her that he was involved in the rounding up of escaped prisoners, and had seen Japanese bodies. She said that he was horrified. In relation to the Wadsley incident, she said that she and the veteran named their son after Mr Wadsley. She stated that the veteran was upset at Mr Wadsley’s death, but she learned recently that he had not been shot, but had died from a condition unrelated to any injury sustained during his war service.
12. Under cross‑examination Mrs Mortensen acknowledged that the veteran had told her that Mr Wadsley had died and was buried in New Guinea, and she had assumed that he died of a war‑related wound. In relation to the Cowra incident Mrs Mortensen agreed that she was unaware of details of the layout of the prisoner of war camp, the role of the veteran’s recruit training battalion or other units, and the number or nature of casualties. She said that she had no knowledge of the contents of various applications lodged by the veteran for war‑related pensions, or whether he had included the Cowra incident or the Wadsley incident in these applications.
13. In a written report dated 31 August 2004 (Exhibit A3), Dr M. Epstein, consultant psychiatrist, said that he had seen Mrs Mortensen on 23 August 2004 in relation to her application, and had been provided with relevant material including the veteran’s service history and reports from various medical practitioners. He noted that the veteran was diagnosed with anxiety and depression in about 1946 and had episodes of depression since then. Dr Epstein stated:
…
Harold Mortensen does appear to have been involved in the breakout which occurred at the prisoner of war camp in Cowra in August 1944. It is unclear as to his degree of involvement. Certainly he witnessed dead bodies and was presumably horrified by the experience, according to the behaviour described by his wife which he manifested subsequently. It was after that time that he first began having episodes of depression with bouts of uncontrollable weeping and they seemed to continue intermittently after that.
14. Dr Epstein also stated in his report and in oral evidence that the veteran was distressed at the death of Mr Wadsley, whom Dr Epstein stated was shot in action. Under cross‑examination Dr Epstein agreed that his report was based on the materials provided and the history related by Mrs Mortensen.
15. In a written report dated 9 November 2004 (Exhibit R1), Associate Professor J. McCarthy, Australian Defence Force Academy, stated that his research indicated that the veteran served mainly with training battalions until 1945. He said that on 22 May 1944 the veteran was detached to 3 Recruit Training Battalion (3 RTB) in Cowra, and was an acting sergeant at the time of the breakout. He said that 3 RTB was located about two miles (three kilometres) from the prisoner of war camp, and would have been involved in contingency planning to counter a breakout of prisoners of war. He stated:
…
It is impossible to determine precisely how 3rd Recruit Training Battalion did react when the Japanese break-out occurred at approximately 2am on the morning of 5 August 1944. A search of the Australian War Memorial Archives has revealed that the War Diary of this unit only exists for a relatively short period in 1946…
16. Professor McCarthy noted that other recruit training battalions stationed at Cowra were involved in patrols which searched for, and re‑captured, escaped Japanese prisoners and they returned dead Japanese to the prisoner of war camp. He said he could find no direct evidence that the veteran or 3 RTB was involved in any of these activities, but concluded that it may be reasonable to argue that a similar pattern was followed by 3 RTB:
…Situational logic, however, suggests there is a high probability that members of this Battalion were so involved particularly when the perimeter of the camp were manned…
In oral evidence Professor McCarthy stated that it was unlikely that bodies were brought to the recruit training battalions’ camp. Under cross‑examination he stated that, based on Mrs Mortensen’s comments, the veteran might have been involved in the recovery of escaped Japanese prisoners, particularly as he was an acting sergeant at the time.
17. In a written report dated 3 October 2004 (Exhibit R3) Mr R.K. Piper, Military Aviation Research Services, stated that the personnel files show that the only time the veteran and Mr Wadsley could have been in contact with each other in New Guinea was between 23 and 28 January 1945. He confirmed that Mr Wadsley died from a non‑combat disease on 8 March 1945, five weeks after the veteran left New Guinea. In relation to the Cowra incident Mr Piper said that the veteran was at Cowra during the breakout as an instructor. He stated:
…
I am unable to determine Mr Mortensen’s exact involvement in the roundup of POWs or exact nature of any danger he faced. However, he was part of a training unit which was involved in the firing at, search and apprehension of Japanese POWs in which lives had been lost on both sides over a series of days…
18. In an appeal dated 27 March 1974 (T16, page 71) against a decision of the respondent, the veteran stated that he should have referred to hypertension rather than nervous condition. He said that the hypertension was contributed to by his war service, mostly as an instructor over a long period. He also stated:
…Finally I felt that I could no longer perform those duties to the best of my ability while posted at a unit in Cowra, N.S.W. I suffered a break down and after a discussion with my Company Commander I was posted to my original unit in New Britain who ironically posted me back to a school at Seymour.
19. In a statement dated 6 July 1974 (T17, page 76), in support of a claim for medical treatment and pension, the veteran stated that his depression and nervous tension were suffered over years of duty as an instructor and attendance at many schools of instruction.
CONSIDERATION OF THE ISSUES
20. Section 9(1) of the Act provides:
(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;
…
21. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s 120A of the Act. It provides:
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) 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);
…
22. The principles to be applied, in cases where s 120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 an SoP 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 an 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.
23. The parties agreed that the relevant Statement of Principles (SoP) for depressive disorder is N° 58 of 1998. Factor 5(b) of the SoP provides:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder…
In paragraph 8 of the SoP:
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
24. The relevant SoP for ischaemic heart disease is N° 53 of 2003 as amended by N° 9 of 2004. Factor 5(m) of the SoP provides:
…
(m)suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease; or
…
25. The relevant SoP for hypertension is N° 35 of 2003 as amended by N° 3 of 2004. Factor 5(o) of the SoP provides:
…
(o)suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension; or
…
In paragraph 8 of the SoP:
"clinically significant depressive disorder" means any depressive disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
26. Ms Magee submitted that the applicants relied upon a reasonable hypothesis that the veteran suffered from depressive disorder, as defined in SoP N° 58 of 1998. She submitted that the depressive disorder caused the ischaemic heart disease and the hypertension and that the depressive disorder, ischaemic heart disease and hypertension were war‑caused conditions (McKenna v Repatriation Commission (1999) 86 FCR 144).
27. Ms Magee said that Mrs Mortensen’s evidence was forthright and without embellishment, and her recollections about the veteran’s statements to her were not challenged. In respect of depressive disorder, Ms Magee submitted that the material demonstrates that the veteran had suffered from this condition since 1946. Ms Magee acknowledged that Mrs Mortensen’s conclusions about the death of Mr Wadsley were based on factual inaccuracies. She said that the evidence about the veteran’s role in the Cowra incident was supported by Dr Epstein and was consistent with the historical record of the event as described by Professor McCarthy and Mr Piper and that this constitutes a severe psychosocial stressor. Ms Magee stated that the Cowra incident satisfies factor 5(b) of SoPN°58 of 1998 relating to depressive disorder. She said that depressive disorder was war‑caused and that it resulted in the ischaemic heart disease and the hypertension. Therefore, the necessary link between depressive disorder, ischaemic heart disease and hypertension is established and the conditions are war‑caused.
28. Ms McCulloch agreed that if the veteran satisfied the criteria for the SoP concerning depressive disorder, the applicants would establish the link with ischaemic heart disease and hypertension and would succeed in their application. In respect of the Wadsley incident, she submitted that the Tribunal could be satisfied, beyond reasonable doubt, that Mr Wadsley died from a non‑combat medical condition rather than a gunshot wound, and the veteran was not present at the time of his death. In respect of the Cowra incident, she submitted that the Tribunal could be satisfied, beyond reasonable doubt, that the veteran was not involved in the recapture of Japanese prisoners following the breakout and had not seen bodies. Ms McCulloch stated that for these reasons neither incident constitutes a severe psychosocial stressor.
29. Ms McCulloch submitted further that the date of clinical onset of the conditions under review is difficult to determine because of conflicting evidence contained in the material before the Tribunal. She said that the veteran had not referred to the Wadsley incident or the Cowra incident specifically when lodging various claims with the respondent.
30. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.
31. The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities under s 120(4) of the Act. There was no dispute between the parties that the veteran suffered from depressive disorder, ischaemic heart disease and hypertension.
32. In respect of the first step of Deledio, regarding depressive disorder, ischaemic heart disease and hypertension, the Tribunal finds that the material points to hypotheses connecting the conditions with the circumstances of the veteran’s service. In respect of the second step the Tribunal notes that SoPs are in existence and are relevant. In respect of the third step the Tribunal finds that Mrs Mortensen was a credible witness whose recollection of events that occurred nearly sixty years ago was given without exaggeration and was plausible. Her evidence to the Tribunal of the matters told to her by the veteran was not seriously challenged in cross‑examination, and was consistent with her answers to questions posed by Dr Epstein.
33. In relation to the Wadsley incident, the Tribunal takes into account that the veteran made only brief mention of it to Mrs Mortensen, and that Mr Wadsley did not die from gunshot wounds and the veteran was not present at his death. Although the veteran may have been upset at the death of his friend, on balance the Tribunal finds that this incident does not fulfil the criteria of severe psychosocial stressor.
34. In relation to the Cowra incident the Tribunal notes that the account given by Mrs Mortensen concerning the veteran’s involvement cannot be verified accurately by reference to official documents. The Tribunal takes into account the beneficial nature of the Act and the effect of the passage of time, the deficiency in official records and that direct evidence from the veteran was not possible (s 119(1)(h) of the Act). However, the evidence given by Mrs Mortensen, about the veteran telling her that he saw bodies and was horrified by the incident, is consistent with the evidence given by Professor McCarthy and Mr Piper concerning the likely role of the veteran as an acting sergeant with 3 RTB in the aftermath of the breakout.
35. The Tribunal takes these matters and the medical evidence as a whole into account and accepts the submission from Ms Magee that there was an identifiable occurrence and that the veteran experienced substantial distress in reaction to it. On all the material before it, the Tribunal is satisfied that the veteran suffered a severe psychosocial stressor, namely the Cowra incident, and finds that the clinical onset of depressive disorder was in 1946, when the veteran was first diagnosed and treated for nerves. Therefore, the severe psychosocial stressor was suffered within the two years immediately before the clinical onset of the depressive disorder. It follows that the relevant factor in the SoP relating to depressive disorder is satisfied.
36. In respect of hypertension and ischaemic heart disease, the Tribunal finds that clinical onset occurred in 1971, when the veteran was first diagnosed with the conditions (T18, page 79), and that the depressive disorder was clinically significant at that time. In these circumstances, the Tribunal finds that there is material or evidence pointing to the veteran meeting factor 5(o) of SoP N° 35 of 2003 concerning hypertension, and factor 5(m) of SoP N° 53 of 2003 concerning ischaemic heart disease. Therefore, each of the hypotheses raised is reasonable, and is consistent with the template in the relevant SoP (Repatriation Commission v Hill (2002) 69 ALD 581.
37. In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypotheses cannot be sustained, the Tribunal is called upon to make findings of fact. The Tribunal has considered all the material, including the historical accounts of the Cowra incident, and finds that there is no material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the conditions of depressive disorder, ischaemic heart disease and hypertension were war‑caused. Therefore, the Tribunal finds that the fourth step is satisfied.
38. For these reasons the necessary link between depressive disorder, ischaemic heart disease and hypertension is made out and the applicants succeed in their application.
DECISION
39. The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s conditions of depressive disorder, ischaemic heart disease and hypertension were war‑caused, with effect from 5 August 2003.
I certify that the thirty‑nine [39] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 17 February 2005
Date of decision: 17 March 2005
Counsel for applicant: Ms A. Magee
Solicitor for applicant: Williams Winter SolicitorsAdvocate for respondent: Ms J. McCulloch
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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