Morton and Repatriation Commission - [2002] AATA 232

DECISION AND REASONS FOR DECISION [2002] AATA 232

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1295

VETERANS APPEALS DIVISION        )
           Re      JAMES MORTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date28 March 2002
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that ischaemic heart disease is war-caused. The application is remitted to the respondent to assess the rate of any pension payable.
  ......….Sgd. Mr J. Handley..……..
  Senior Member
CATCHWORDS
Veterans Affairs - Veteran increased smoking by service - inconsistencies in evidence - whether applicant ceased smoking - whether smoking within 15 or 20 years prior to clinical onset of ischaemic heart disease - decision set aside.
Repatriation Commission v Deledio 1998 49 ALD 206
Deledio v Repatriation Commission 1997 47 ALD 261
Harris v Repatriation Commission 2000 31 AAR 270
Arnott v Repatriation Commission 2001 32 AAR 445

REASONS FOR DECISION

28 March 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veteran's Review Board ("VRB") made on 5 August 1999, which affirmed a decision the respondent previously made to reject a number of injuries as war-caused and to continue disability pension at 60% of the general rate.
Whilst the respondent and the VRB reviewed whether there was any association between service and subsequent illnesses, this review only concerns the rejected disability of ischaemic heart disease. In the applicant's Statement of Case, it was indicated that the applicant's appeal was withdrawn with respect to all rejected disabilities that were the focus of the earlier review, subject to proceeding only with respect to entitlement of ischaemic heart disease.
Mr Morton was engaged in overseas service and it is not in dispute that he is entitled to the beneficial standard of proof.
The hypothesis the applicant advanced, connecting ischaemic heart disease with service is by smoking of cigarettes. Necessarily, having regard to the date that the application was issued, the review will concern the reasonableness of the applicant's hypothesis by reference to a Statement of Principle "in force". An issue however has emerged as to the identification of the Statements of Principles. That is to say, Instrument No. 140 of 1996, received its assent on 9 October 1996. The applicant made his claim on 29 September 1998. Instrument No. 80 of 1998 revoked Instrument No. 140 of 1996 on 9 December 1998. The primary decision of the respondent was made on 2 February 1999. Instrument No. 38 of 1999 revoked Instrument No. 80 of 1998 on 12 May 1999.
The Veterans Review Board made its decision on 5 August 1999. At that stage it decided that the applicant had not engaged in operational service and considered Instrument No. 39 of 1999 being an Instrument which applied with respect to determination of entitlement on the balance of probabilities.
The above issues, with respect to the application of Statements of Principles, are referred to later in these reasons.
Mr Morton (the applicant) is presently 91 years of age, born on 29 June 1910. He and his wife both suffer Alzheimer's Disease and are presently residents of a special accommodation centre in Sydney. The applicant's son, Mr Ian Morton, who gave evidence in these proceedings, resides in Sydney and has frequent contact with his parents.
It appears that the diagnosis of Alzheimer's Disease was made with respect to the applicant in 1994. Dr Pattison, the applicant's former treating general practitioner, prepared a report that was lodged for the purpose of these proceedings. In part he stated that the "symptoms of forgetfulness began approximately late 1994 at the age of 84 years". The date of diagnosis of Alzheimer's Disease was important in the present application, because the applicant completed a smoking questionnaire on 17 May 1994 (T-docs, p.35). The respondent relied upon the contents of that questionnaire, but the applicant's representative submitted that little weight should be attached to it.
With respect to the clinical onset of ischaemic heart disease, Dr Patterson reported (he was not called to give evidence) that the "initial onset was March 1986" and it is noted that the applicant underwent coronary bypass surgery in June or July of 1986. Mr DeMarchi who appeared on behalf of the applicant submitted that he had some "notes" of "symptoms" in November 1985. Those notes were not ever identified or put into evidence. It follows therefore that on the documented evidence, the earliest date of the clinical onset of ischaemic heart disease is March 1986. This has particular significance with respect to the Statements of Principles (refer later).
The respondent conceded at the commencement of the hearing that the applicant increased his smoking habit during service and that the increase was associated with service (transcript p.2). This was with respect to the hypothesis the applicant advanced that there was an association between smoking and ischaemic heart disease. It appears that the concession as to the increase in cigarette smoking follows the references the applicant made in various documents lodged prior to the hearing, namely that he commenced to smoke cigarettes prior to enlistment. The respondent's concession also appears to follow a questionnaire the applicant's son (who holds a power of attorney) completed that his father smoked "approx 2-3/day" before he became a "regular smoker".
Ian James Morton
Mr Morton is the son of the applicant. He completed a smoking questionnaire dated 9 May 2000. In the questionnaire Mr Morton recorded that his father did smoke tobacco in the form of cigarettes, from the age of 18 or 19 years, commencing in the mid 1920's. The questionnaire records that his father smoked regularly because "it seemed to be the thing to do". Mr Morton has recorded that his father smoked a "minimum of a packet (or the equivalent roll your own) per day after he became a regular smoker" and that his father ceased smoking "around 1967-1968". It is stated that his father ceased smoking because he "experienced some respiratory illness, coughing etc"
Mr Morton said that the information obtained in the smoking questionnaire, which he completed on 9 May 2000, was obtained from his mother. On reflection, Mr Morton said that recording of his father ceasing to smoke "around 1967-1968" was a mistake. He said that he had previously been living overseas and returned to Australia in 1969 or 1970 and remembered his father "botting" cigarettes from him at the Airies Inlet Hotel during holidays in 1969 or early 1970. He also recalled his father walking through his house, which was under construction in Toorak, in 1976 "holding a cigarette". Mr Morton concluded that his father "continued" to smoke throughout the 1970's, but he did not know when he ceased smoking. He said the last time that he could recall his father smoking was in 1976.
In cross-examination Mr Morton was taken to a number of entries within the T-documents where a number of doctors have taken histories from the applicant with respect to his smoking. Specifically Mr Morton was drawn to-

notes of a medical examination of 17 September 1948 where the applicant is recorded as "smokes cigarettes 3ozs" (p. 21).
notes of a medical examination of 7 September 1951 where it is recorded "smokes - very little lately" (p. 22).
notes of a medical examination of 6 July 1966 where it is recorded "tobacco nil" (p. 23)
notes of a medical examination of 2 October 1960 where it is recorded "cigs - nil last two yrs" (p. 105)
notes of a medical examination of 8 January 1970 where it is recorded "does not smoke" (p. 106).
notes of medical attendance on 4 June 1984 where it is recorded "non smoker" (p. 120).

With respect to the above points Mr Morton said that he was unable to convert the number of cigarettes from an ounce of tobacco but he had a memory of his father who "always seemed to have a fag in his mouth". In 1948 when a Doctor recorded that his father was then smoking "3 ounces", Mr Morton said he was then 11 years of age. With reference to the entry in 1951, Mr Morton said that he could not recall his father "dropping off" smoking, nor could he recall his father having given up cigarettes for two years at 1960. Mr Morton said that he had been a student prior to 1962 when he then departed for overseas. He said he had a recollection of his father then smoking cigarettes.
With respect to the entry in 1970, Mr Morton said that he had then returned to Australia and he had a recollection in 1970 of his father smoking.
With respect to the Alzheimer's Disease the applicant suffered, Mr Morton said that he doubted whether that had been correctly diagnosed. Nonetheless, he acknowledged that Doctor Pattison had reported that his father displayed "symptoms of forgetfulness" from late 1994 when he was then aged 84 years. Mr Morton obtained an enduring power of attorney over his father's affairs in 1998. He recalled that in 1998 his father's memory was "not too bad" but he was (then) forgetful.
The year 1994 is important in this application because on 17 May 1994 the applicant completed a smoking questionnaire found at T-16, p.35. In that document the applicant records that he began to smoke regularly in 1940 and when he became a regular smoker he consumed "about four ozs plus cigarettes if available". He also records that he gave up smoking in 1950 when aged 40 because he was "coughing too much". Later the questionnaire asks whether the amount that he smoked decreased and he answered "1950 cut right out - coughing too much". The questionnaire concludes by asking whether there is "anyone who can confirm the details of your smoking history prior to or during service". The applicant has answered "J Frazer" and provided an address. It was learnt during the hearing that Mr Frazer had died some years prior to the hearing.
Mr Morton said in evidence (after he became acquainted with this document) that his father did smoke cigarettes after 1950 and said "he kept on smoking, I can assure you".
Mr Morton said that he had no conscious recollection of how many cigarettes per day his father did consume, but he did recall that he rolled his own cigarettes as opposed to purchasing tailor made cigarettes because his father had told him they were "too expensive".
When asked to comment on the apparent inconsistencies between documented evidence completed by Doctors, the questionnaire his father completed and the evidence given at the hearing, Mr Morton said that after 1950 he can recall his father "coughing a huge amount and still smoking" but " …… he may have had a crack at trying to stop smoking lets put it that way".
On further questioning, Mr Morton acknowledged that the questionnaire that he completed as the attorney under power of his father on 1 May 2000 was completed with reference to information his mother provided to him. He acknowledged that part of the document was incorrect, especially where it referred to ceasing smoking in 1967 or 1968 because he - the witness - was then living overseas and had no knowledge of his father's smoking habits during the years that he was away. He also said that he recalled his father "botting" cigarettes at the Airies Inlet Hotel in the early 1970's and also observed his father with a cigarette at his house under construction in Toorak in 1976.
When pressed further on these events, Mr Morton acknowledged that he did not "have any general memory of his - the extent of his smoking, but I certainly remember him smoking". This answer was given in response to a suggestion that at best Mr Morton could only give evidence of "isolated episodes" of his father's smoking after he returned from overseas, namely the episode at the Airies Inlet Hotel and at the house in Toorak.
In re-examination Mr Morton said that when he visited his father at home in the 1970's he recalled that there were ashtrays throughout the house but he could not remember whether they had cigarette butts in them. He said that his mother was "spotlessly clean and that his mother would have cleaned them out frequently ….. and quickly". He said his father used to smoke roll your own cigarettes and tobacco was kept in a pouch which he kept in a cupboard near his bed. He said when his parents' house was eventually cleaned out prior to them moving to Sydney, he found cigarette papers in the drawer of a cupboard.
Frederick Albert Cullen
Mr Cullen is a former President of the Ivanhoe branch of the Returned Services League. He provided a letter dated 13 June 2001 with respect to the applicant.
The existence of that letter was first known to the Tribunal and the respondent on the day that the application was first listed for hearing. A facsimile imprint on the document records the date of hearing and records that it was forwarded by facsimile transmission from the RSL to the applicant's solicitors office on that day. The identity of Mr Cullen as a witness in these proceedings was not known prior to that day and the document was not lodged as part of the pre-hearing documents, nor in compliance with the Tribunal's Directions.
The application did not proceed on the first day of hearing (for reasons which are not presently relevant) and Mr Cullen's letter eventually formed part of the evidence in the proceedings. Omitting irrelevant parts the letter reads-
"This is to confirm that Mr James Morton, of 15 Burton Crescent Ivanhoe East to my knowledge has been a member of the Ivanhoe RSL since 1959 and served on the committee in the 1950's and 1960's.
I have always known James Morton to be a smoker of roll your own cigarettes and I believe he smoked approximately 20 cigarettes per day.
To the best of my knowledge James continued to smoke at the same level until approximately 1976".

Mr Cullen said in evidence that he recalled the applicant being a smoker of roll your own cigarettes and recalled that he was capable of rolling cigarettes one handed.
He said that he recalled that Mr Morton ceased smoking in about 1976 because that was at or about the time that the applicant retired.
In cross-examination, Mr Cullen said that he recalled Mr Morton attending the RSL Club a "couple of times a week" in the 1960's where he and other members were involved in garden maintenance. He said he could recall Mr Morton "seemed to be smoking pretty frequently. Like, he - oh, let us see - probably had a cigarette in his mouth most of the time". He said that he also had a "clear recollection" of Mr Morton being a smoker of cigarettes in the 1960's "because the frequency with which he made cigarettes and he would then - sometimes there would be stopping and he would make them up - make up, you know, half a dozen or more. You know that sort of thing". He said this habit continued "into the 70's".
When asked to comment on the applicant's recording in his smoking questionnaire that he ceased to smoke in 1950, Mr Cullen said he first met Mr Morton after 1959 when he (Mr Cullen) first joined the RSL in Ivanhoe. He said that his recollection of the applicant smoking was after 1959. He said that he was aware of persons not disclosing that they smoked cigarettes "because smoking is seen to be a bad thing, they tended to write it down, thus to appear in better light before a Doctor or before some Authority or other". He said that he had been involved "in numerous cases like this where people have said they didn't smoke. But they were smoking quite regularly and heavily. Or didn't drink". Mr Cullen acknowledged that Mr Morton did acknowledge to others that he did consume alcohol. He said that veterans disclosing that they smoked cigarettes was "a bit like on discharge, veterans say there is nothing wrong with them".
Statements Of Principles
In Instrument No. 140 of 1996 Factor 5(e) appears to be relevant. It provides that a reasonable hypothesis will be raised connecting ischaemic heart disease with service by-
"smoking at least five cigarettes per day or the equivalent thereof in other tobacco products for at least three years before the clinical onset of ischaemic heart disease and where smoking had ceased the clinical onset has occurred within fifteen years of cessation".
Instrument No. 80 of 1998 contains factor 5(f) which reads as follows-
"(f)      where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)        smoking one or more but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)       smoking five or more but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)      smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products and clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or"

Instrument No. 38 of 1999 provides factor 5(e) which reads as follows-
"(e)     where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)        smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)       smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)      smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or"
In each of Instruments No. 80 of 1998 and No. 38 of 1999 the definitions of "cigarettes per day or the equivalent thereof in other tobacco products" and "pack years of cigarettes or the equivalent thereof in other tobacco products" are identical.
The definition of "cigarettes per day or the equivalent thereof, in other tobacco products" is found in each instrument at paragraph 8 and reads as follows:
""cigarettes per day or the equivalent thereof, in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarettes approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;"
The definition of "pack years of cigarettes or the equivalent thereof, in other tobacco products" is also found in each instrument at paragraph 8 and it reads as follows-
""pack years of cigarettes or the equivalent thereof, in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the "standard" cigarette pack contents) per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;"

Conclusion & Reasons For Decision

In Repatriation Commission v Deledio 1998 49 ALD 193 at 206 the Full Federal Court summarised the four stages which must be followed in order to determine whether injury disease or death of a veteran is related to service.
Those four stages are as follows-
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
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."

The first stage is satisfied to the extent that a hypothesis does exist connecting the injury of ischaemic heart disease with Mr Morton's service. That connection exists per force of the respondent's concession that the applicant increased cigarette consumption by way of service, which gave rise to ischaemic heart disease. At this stage of the Deledio analysis fact finding is not relevant.
The second stage is also satisfied because there are a number of Statements of Principles "in force" (refer earlier).
The third stage requires an analysis of whether the hypothesis is "reasonable".
The three Statements of Principles referred to earlier variously record that if the applicable factors exist as a minimum a "reasonable hypothesis has been raised". There is no onus of proof upon a claimant in veterans applications and as Heerey J said in Deledio v Repatriation Commission 1997 47 ALD 261 at 273, the 1994 amendments which introduced Statements of Principles "left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly the new regime of SoP's has to be given an operation consistent with s.120(i) and 120(3) as expounded by the High Court in Bushell and Byrnes".
An analysis of stage 3 of Deledio was discussed by Finn J in Harris v Repatriation Commission 2000 31 AAR 270. His Honour then said-
["it is important to bear in mind that the Tribunal when dealing with stage 3 of Deledio was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris's case but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly as Heerey J noted in Deledio an hypothesis can be so upheld notwithstanding that "one of the disputed facts happens also to be a component of an SoP"].
Additionally in Arnott v Repatriation Commission 2001 32 AAR 445 a Full Federal Court again discussed the third Deledio stage as follows-
"However as explained above in carrying out the third step in Deledio namely of forming an opinion as to whether the hypothesis raised is a reasonable one the AAT is required to determine whether the "particular claim" fits the "template laid" down in the SoP. As was stated by the Full Court at 95-96 in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis with proof of the relevant facts not being in issue at that stage".
Having regard to what has been read and heard in these proceedings, I am satisfied that there is material that permits a hypothesis to be raised that is reasonable. This is because the material contains factors which are determined to exist as a minimum and the hypothesis is consistent with the template of the Statement of Principle.
Insofar as the fourth stage is concerned, the respondent's representative contended that the application should fail because I could not be satisfied beyond reasonable doubt that the smoking habit was war-caused "because the facts are either insufficient or are so inherently unreliable to justify that finding". (transcript p. 52).
It must be acknowledged that the smoking history of the applicant is by no means clear. There is much evidence of recorded conversations between the applicant and his medical practitioners indicating that smoking had all but ceased by 1951 (refer paragraph 13 earlier). Additionally, there is the questionnaire that Mr Morton completed at page 35 where he records that he stopped smoking in 1950. The applicant's son admitted to imperfections in memory and a mistake in the questionnaire that he completed as to his father's smoking habit. His evidence of his father "botting" a cigarette at Airies Inlet in 1970 and "holding" a cigarette in 1976 would not suggest that at 1970 and 1976 that his father was a smoker of cigarettes, but participated only for recreational or social purposes.
On balance, however, I prefer the combined evidence of the applicant's son and Mr Cullen. I also discount the questionnaire Mr Morton completed at page 35 of the T-documents.
Mr Cullen said that in his experience assisting other veterans in Repatriation applications, he became aware of the practice of veterans discounting or denying smoking to medical practitioners. This is not an unusual phenomena or occurrence in evidence heard at this Tribunal in other applications. It would appear that many people do discount or deny cigarette consumption to medical practitioners. The evidence of the applicant's son - which I believe was given honestly - indicates that his father was smoking well after a point in time when he denied to his medical practitioners that he had ceased. I also note the evidence of Mr Morton and Mr Cullen that the applicant seemed to always have a "fag in his mouth". This suggests a person who did not smoke cigarettes socially or for recreation. It does not assist in determining the quantity of cigarettes smoked daily, but the letter Mr Cullen completed estimating 20 cigarettes per day is of assistance. Certainly, his recollection of the applicant making up roll your own cigarettes single handed and then 6 at a time would suggest a significant quantity of cigarettes were smoked daily.
The evidence of Mr Cullen was important also because he recalled Mr Morton smoking cigarettes after 1959 when he first met him, which was well beyond the point in time that medical records suggested that Mr Morton had ceased smoking. Mr Cullen also recorded in his letter that Mr Morton "continued to smoke at the same level (approximately 20 cigarettes per day) until approximately 1976". This is well within the period of 20 years prior to the clinical onset of ischaemic heart disease as recorded in the latter two Statements or Principles and also within the 15 year period referred to the earliest Statement of Principle.
Additionally, Mr Morton recalled his father continuing to smoke cigarettes after he returned to Australia from overseas in 1969 or 1970, which is again well after Mr Morton is alleged to have told Doctors that he ceased smoking.
I am of the view that the questionnaire the applicant completed, found at page 35 of the T-documents, is unreliable and no weight should be attached to it.
I can readily understand that the respondent might attach considerable weight to its content because the applicant completed it and purports to represent that smoking ceased in 1950. That questionnaire was completed in May 1994 at a time when - by reference to other medical material - it would appear that Mr Morton was in the early stages of suffering Alzheimer's Disease. Dr Pattison in a report dated 25 January 2000 records that the "symptoms of forgetfulness" constituting Alzheimer's Disease began in late 1994. Dr Pattison recorded that he "suspected" that the Alzheimer's symptoms "may have been beginning to appear for a year or two prior to this". Dr Darby, who is a behavioural neurologist at the Repatriation Hospital, in a report dated 12 November 1996, recorded that Mr Morton then had a "two year history of forgetfulness". It was noted that Mrs Morton described (to Dr Darby) the applicant as being confused, making up information, being "wildly incorrect" (including not knowing how many children he had) or when he retired. Doctor Darby also noted that the extent of the veterans Alzheimer's Disease had either been unnoticed by Mrs Morton or had been "compensated" by her supervision.
I am of the opinion that the combined effect of the documented evidence of Dr Pattison and Dr Darby (both of whom were not called) suggests that the applicant was at least in the early stages of Alzheimer's disease in 1994. I could not in the circumstances be confident - having regard to the combined evidence of Mr Morton and Mr Cullen- that the contents of the questionnaire at page 35 contain any information which could be reliably accepted.
In all of the circumstances, I am not satisfied that the applicant did smoke cigarettes until 1976. I am satisfied that at 1976 he had smoked at least 20 pack years of cigarettes. I am also satisfied that there is nothing to support a connection of the respondent that the applicant ceased smoking and resumed at a later date (thereby breaking the nexus with service).
It follows therefore that the applicant has satisfied the applicable factors under each of the three Statements of Principles referred to earlier.
Accordingly, I cannot be satisfied beyond reasonable doubt that there is sufficient ground for rejecting the application. The decision under review should therefore be set aside and in substitution the condition of ischaemic heart disease is war-caused.
For the reasons given at the hearing - namely the extent of the infirmity of Mr Morton by reason of his Alzheimer's Disease - it is not possible to assess the degree of incapacity by reason of ischaemic heart disease. Accordingly the application is remitted to the respondent for assessment of any pension entitlement.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ...C. Irons .............................................
  Secretary
Date/s of Hearing  19 December 2001
Date of Decision  28 March 2002
Counsel for the Applicant        Mr De Marchi
Solicitor for the Applicant
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent