Nora Ellis and Repatriation Commission

Case [2013] AATA 433

[2013] AATA 433

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/4875

Re

Nora Ellis

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 26 June 2013
Place Melbourne

The decision under review, being the decision of the Repatriation Commission made      21 February 2012 rejecting Mrs Ellis’s claim for a pension in accordance with the Veterans’ Entitlements Act 1986 (Cth), is affirmed.

.........................[sgd]...............................................

Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – widow’s pension – whether death was war-caused –– diabetes mellitus – malignant neoplasm of the liver – whether material raises an hypothesis connecting the death with the circumstances of operational service – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A

CASES

Dixon v Repatriation Commission [1999] FCA 582

East v Repatriation Commission (1987) 16 FCR 517
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1996) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS

Guide to the Assessment of Rates of Veterans’ Pensions, Fifth Edition

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

  1. Mrs Ellis is the widow of the late Mr Ellis who served in the Australian Army during the Second World War. 

  2. Mrs Ellis has applied for a pension under the Veterans’ Entitlements Act 1986 (Cth). Her application has been refused by the Commission on the ground that the death of her late husband was not war-caused. Mrs Ellis has applied to this Tribunal for a review of that decision.

  3. Mrs Ellis argues that the cause of Mr Ellis’ death was carcinoma of the liver which was contributed to by his having suffered diabetes mellitus for many years. She argues further that the diabetes mellitus was in turn contributed to by his inability to exercise and his being overweight, both caused by a knee injury Mr Ellis suffered during his period of operational service in the Army.

  4. For the reasons which follow the decision under review will be affirmed.

    MATERIAL BEFORE THE TRIBUNAL

    Mr Ellis’s service records[1] 

    [1] Exhibit A3.

  5. Mr Ellis was born in 1924.  He rendered operational service in the Australian Army from 8 April 1942 until 11 June 1947.  He served in Morotai and Japan.

  6. In 1947 Mr Ellis injured his right knee.  Subsequently the conditions of “internal derangement of the right knee” and “secondary localised osteoarthritis of the right knee” were accepted by the Commission as being war-caused.

  7. A medical report by two members of the War Pensions Assessment Appeal Tribunal and  dated 20 April 1977 [2] states:

    Has not been in employment for the past 10 months. The main factor affecting his activity is his right knee. This has become much worse in past 3 years. It is painful, unstable and swells a lot. He wears a calper, [sic] and with this he can walk up to about ½ mile but no more.

    O.E Right knee:

    Quadriceps wasting, no restriction of movement and no crepitus on movement. No excess fluid in joint.

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Nora Ellis and Repatriation Commission [2013] AATA 433
Case
[2013] AATA 433
Decision Date

CaseChat Overview and Summary

In the case of Nora Ellis and the Repatriation Commission, the primary issue was whether the death of Mr Ellis was war-caused, which would entitle Mrs Ellis to a widow's pension under the Veterans' Entitlements Act 1986. The Court had to determine whether the death of Mr Ellis, who suffered from diabetes mellitus and a malignant neoplasm of the liver, was connected to his operational service during the war.

The legal issues involved whether the material presented raised a hypothesis connecting Mr Ellis's death with his war service, and if this hypothesis fit within the relevant Statements of Principles concerning diabetes mellitus and malignant neoplasm of the liver. Additionally, the court had to decide whether the burden of proof, which requires the Commission to determine that the death was war-caused unless satisfied beyond reasonable doubt that there was no sufficient ground for such a determination, was met.

The court found that the material did point to a hypothesis connecting Mr Ellis's death to his war service. However, neither hypothesis advanced by Mrs Ellis's counsel was consistent with the templates set out in the relevant Statements of Principles concerning diabetes mellitus. As a result, Mrs Ellis's application for a pension must fail. The court concluded that the decision of the Repatriation Commission, which rejected Mrs Ellis’s claim, was correct.

In summary, the court affirmed the Repatriation Commission's decision, finding that the evidence did not sufficiently connect Mr Ellis's war service to his subsequent health conditions in a manner that met the legislative requirements for a war-caused death.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The records show Mr Ellis’ height and weight as follows:08/04/1942 5’8” 10 stone[6]10/01/1949 11 stone 11 lbs[7]14/04/1949 12 stone[8]30/03/1953 6’0” 12 stone 7 lbs[9]11/06/1953 12 stone 11 lbs[10]26/06/1953 12 stone 7 lbs[11]08/10/1976 6’0” 12 stone[12]20/04/1977 13 stone 7 lbs.[13]LEGISLATIVE BACKGROUND[6] Exhibit R3 p.8.[7] Exhibit A3 p.3.[8] Exhibit A3 p.9.[9] Exhibit A3 p.10.[10] Exhibit A3 p.11.[11] Exhibit A3 p.13.[12] Exhibit A3 p.20.[13] Exhibit A3 p.24.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.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.…(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

About the time Mr Ellis told Mr Richard Ellis that he had been diagnosed as suffering from diabetes he began to lose weight. Mr Richard Ellis does not recall when Mr Ellis told him this. He does recall that his brother said that he had been given medical advice that he should lose weight. Evidence of Dr Prowse, Medical Practitioner Dr Prowse was Mr Ellis’ treating practitioner from late 1991 until his death in 2012. Mr Ellis consulted Dr Prowse at the Ocean Grove Medical Clinic. The Patient Health Summary[4] held by the Clinic has a record that Mr Ellis was diagnosed with diabetes in 1975.[5] [4] Exhibit R1.[5] At p.234. Mr Ellis had a right tibial osteotomy performed in 1985. At that time he reported pain in his right knee for several years. In the opinion of Dr Prowse, Mr Ellis would have been unable to engage in activity greater than three METS at that time and, at least, from that time until his death. Having looked at the photograph of Mr Ellis taken in 1971, Dr Prowse formed the opinion that at that time Mr Ellis had a significant abdominal girth and had a BMI greater than 25.Metabolic Equivalent Tasks (METs) Mrs Ellis recalled that from the time they married Mr Ellis was able to engage in the following activities:·mowing the lawn (until about 2009);·going for a walk, although very slowly;·playing lawn bowls (until about 2010);·washing windows;·riding a bicycle to and from shops about six town blocks from his home;·making his bed (until about 2011);·gardening for about an hour at a time (until about 2011);·washing the car;·going on fishing and shooting trips of about two weeks duration. Mr Peter Wells gave evidence of the following activity engaged in by Mr Ellis:·he always walked slowly and with a limp;·he had difficulty getting out of a chair;·he used to sit on a stool behind the bar at the hotel.Records of Mr Ellis’ height and weight The records show Mr Ellis’ height and weight as follows:08/04/1942 5’8” 10 stone[6]10/01/1949 11 stone 11 lbs[7]14/04/1949 12 stone[8]30/03/1953 6’0” 12 stone 7 lbs[9]11/06/1953 12 stone 11 lbs[10]26/06/1953 12 stone 7 lbs[11]08/10/1976 6’0” 12 stone[12]20/04/1977 13 stone 7 lbs.[13]LEGISLATIVE BACKGROUND[6] Exhibit R3 p.8.[7] Exhibit A3 p.3.[8] Exhibit A3 p.9.[9] Exhibit A3 p.10.[10] Exhibit A3 p.11.[11] Exhibit A3 p.13.[12] Exhibit A3 p.20.[13] Exhibit A3 p.24.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.Standard of proof

Decision

Reasons for decision

As neither hypothesis advanced on behalf of Mrs Ellis is consistent with the templates set out in the Statement of Principles concerning Diabetes Mellitus her application for a pension must fail.CONCLUSION The decision under review, being the decision of the Repatriation Commission made 21 February 2012 rejecting Mrs Ellis’s claim for a pension in accordance with the Veterans’ Entitlements Act 1986 (Cth), will be affirmed.

Ratio Decidendi

Legal Principle Established

I am satisfied on the basis of the evidence referred to that these are the correct dates of clinical onset of both conditions.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? It is put on behalf of Mrs Ellis that the material before me points to the following hypotheses.First hypothesisa.Mr Ellis’ knee injury limited his physical activity to such an extent that he became overweight;b.Mr Ellis’ excessive weight contributed to his developing diabetes mellitus;c.the diabetes mellitus contributed to the development of carcinoma of the liver;d.carcinoma of the liver caused Mr Ellis’ death.Second hypothesisa.Mr Ellis’ knee injury limited his physical activity;b.Mr Ellis’ limitation of physical activity contributed to the development of diabetes mellitus;c.the diabetes mellitus contributed to the development of carcinoma of the liver;d.carcinoma of the liver caused Mr Ellis’ death. The hypothesis under consideration must be more than one which is left open on the material before me. It must be a hypothesis which is pointed to, or supported by, the material. For the reasons which I set out in Forrester and Repatriation Commission [18] I am of the view that the requirement that the material before the Tribunal “points to a hypothesis connecting the … death with the circumstances of the particular service …”[19] (emphasis added) means that the hypothesis advanced must be reasonable. [18] [2012] AATA 846.[19] Repatriation Commission v Deledio supra. The determination of whether the hypothesis is pointed to or supported by the material or is reasonable is not to be confused with the reasoning required at the third step of the Deledio process. That step requires the determination of whether the hypothesis fits the “template” to be found in any relevant Statement(s) of Principles. If the hypothesis does not fit the template it will be deemed not to be reasonable. Having considered all of the material before me I determine that it does point to each of the hypotheses put forward connecting Mr Ellis’s death to his operational service. The material points to Mr Ellis:·having suffered problems with his knee from the time he was injured in 1947;·not being active and to his engaging in limited physical exercise;·having gained substantial weight which he retained until he was diagnosed as suffering diabetes mellitus;·suffering diabetes mellitus which contributed to the development of carcinoma of the liver which caused his death.Issue 5: Is there a relevant Statement of Principles in force? As the hypothesis links two medical conditions it is necessary to consider whether there is a Statement of Principles in force for each of those conditions.[20][20] McKenna v Repatriation Commission (1996) 86 FCR 144, 151-152. I am satisfied that there are two relevant Statements of Principles in force being the Statement of Principles No. 21 of 2011 concerning Malignant Neoplasm of the Liver and the Statement of Principles No. 89 of 2011 concerning Diabetes Mellitus. This is not in dispute.