Norris and Repatriation Commission
[2003] AATA 312
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/564
VETERANS' APPEALS DIVISION ) Re ROSALEEN EVELYN NORRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date4 April 2003
PlaceBrisbane
Decision The decision under review is affirmed. This means the application by Rosaleen Evelyn Norris is unsuccessful. (Sgd) Dr E K Christie
Member
CATCHWORDS
VETERANS' AFFAIRS - veteran's entitlements - war widow's pension - whether assumed fact reasonably open to be inferred from, pointed to, raised by and so permitted by the material - whether reasonable hypothesis - whether Statement of Principles satisfied - whether death war-caused
Veterans' Entitlements Act 1986 ss 8, 120, 120A
Briginshaw v Briginshaw (1938) 60 CLR 336
Mason v Repatriation Commission [2000] FCA 1409
Brew v Repatriation Commission (1999) 56 ALD 403
Repatriation Commission v Deledio (1998) 49 ALD 193
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564
McLean v Repatriation Commission [2001] FCA 1505
Caswell v Powell Duffryn Associated Collieries 3 [1939] All ER 722
Nicolia v The Commissioner for Railways, New South Wales (1970) 45 ALTR 465
Skolgarev v Australian Fisheries Management Authority (1995) 22 AAR 331REASONS FOR DECISION
4 April 2003 Dr E K Christie, Member 1. This is an application by Rosaleen Norris to review the decision of the Veterans’ Review Board made on 13 June 2001 in which the Board affirmed the decision of the Repatriation Commission that the death of her late husband, James Douglas Norris, was not war-caused.
2. In its reasons for decision the Veterans’ Review Board concluded:
“20. …Even if the veteran only began smoking from when the applicant met him in 1948 and continued only until 1955, he would have smoked 5.6 pack years. His son stated that he remembers his father smoking until 1964 or 1966 (see folio 58, section 137 Report) and thus the veteran’s consumption of tobacco was probably considerably more than the required 5 pack years.
21. As to the onset of the veteran’s ischaemic heart disease, the veteran had a coronary bypass in 1973 (see Veterans’ Review Board decision, 24 January 1996) and his ischaemic heart disease had undoubtedly been present for some time before that. Mr Day contended that onset was possibly as early as 1971 (see folio 56). Thus the veteran might not have ceased smoking until less than 10 years before onset of his ischaemic heart disease. On the evidence, it is possible that the elements of factor 5(e)(ii) relating to quantity and to time of cessation, might both be met.
22. The difficulty for the Board, however, was to determine when the veteran commenced smoking and whether his smoking was caused by his war service. There was simply no clear evidence of this crucial issue. Irrespective of her memory difficulties, the applicant did not meet the veteran until 1948, at least 18 months after he completed his war service. The Board noted that on the two previous occasions that the Board had considered earlier claims by the applicant, in 1990 and 1996, there was also no evidence about the veteran’s smoking history prior to 1948. In the Board’s view, it is mere speculation to suggest that because the veteran was smoking in 1948, the Board should be reasonably satisfied that he commenced smoking during his war service and that he did so as a result of that service.
23. Thus the Board found that the veteran’s circumstances did not meet all the requirements of factor 5(e)(ii) of the Statement of Principles. The Board reviewed all other factors and found that none was met in the veteran’s circumstances.”
3. At the hearing, Rosaleen Norris was represented by Mr R Day, Advocate of Brisbane Legacy. The Repatriation Commission was represented by Mr J Stoner, Departmental Advocate. Neither party called any witnesses to give oral evidence.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. James Norris served in the Australian Army from 7 January 1942 to 1 July 1946 and this constitutes eligible war service, but not operational service, as defined in the Veterans’ Entitlements Act 1986.
6. The late veteran had the following accepted and non-accepted service-related disabilities:
(a) Accepted Disabilities
§Fibrositis
(b) Non-accepted Disabilities
§Left Traumatic Cataract
§Dyspepsia Functional
§Old Fracture Terminal Phalanx Right Mid Finger
§Small Metallic F.B. Mid Finger
§Coronary Artery Disease
§Death
No Incapacity Found
§Right Knee Condition
§Nervous Condition
7. James Norris died on 11 October 1975, at the age of 52 years. In the Death Certificate the cause of death was certified to be:
“1.(a) Coronary occlusion
(b) Coronary arteriosclerosis
2. Generalised fibrositis.”
Issues to be Decided
8. The sole issue for the Tribunal to decide, pursuant to section 8 of the Act, was whether the death of James Norris was war-caused.
Contentions and Submissions of the Parties
9. Mr Day submitted that the following hypotheses were the basis for this application for review that the late veteran’s death was war-caused:
(a)Fibrositis (an accepted service-related disability) was a significant condition contributing to death;
(b)Smoking, ischaemic heart disease and eligible service;
(c)Inability to exercise because of the accepted disability of fibrositis, ischaemic heart disease and eligible service; and
(d)Alcohol abuse/dependence, hypertension, ischaemic heart disease and eligible service.
Hypothesis I – Fibrositis
10. Mr Day referred to the wording on the death certificate [T4 Folio 46] which indicated that fibrositis was a significant condition contributing to the death of the late veteran. Mr Day stated that the late veteran’s treating general practitioner (Dr C McMahon) considered that the “generalised fibrositis over the years was a contributing cause [of death]”, although qualified by Mr Day in submitting “though not a direct one on the day”.
11. Mr Day contended, by taking into account the totality of the effects of fibrositis, especially the generalised chronic pain, together with the late veteran’s other health problems that were “offshoots of fibrositis” (ie, overweight, lack of exercise, alcohol use, a possible nervous condition, analgesic work restrictions), that more weight should be given to the statement of Dr McMahon compared with the opinion of Dr P Grant. Mr Day submitted that Dr McMahon had treated the late veteran over the years and so was best placed to give the opinion as expressed on the death certificate. In contrast, Dr Grant’s opinion was restricted to looking at files, some 25 years later, following the death of the late veteran.
Hypothesis II – Smoking and Ischaemic Heart Disease
12. Mr Day referred to the main concern of the Veteran’s Review Board that Rosaleen Norris’ evidence had not specified whether the late veteran had smoked during service as well as the reasons he had commenced smoking. Mr Day then made reference to the Veterans’ Review Board decision which accepted that the late veteran had taken up smoking in 1948.
13. Mr Day submitted that the late veteran had taken up smoking during the most stressful period of his life – during an extended period of Army service; in contrast, the periods before and after service, were relatively stress free periods of his life.
14. Mr Day submitted that prior to commencing Army service at the age of 19, the late veteran would have been “living a fairly quite life” as he had lived at home with his family and had been brought up in a Methodist environment. He contended that, in such an environment, the late veteran would not have smoked (or consumed alcohol).
15. However, these circumstances changed when the late veteran joined the Army. He was then a teenager, and was transposed from a sheltered family life to military life with its features of exposure to peer pressure, especially from older soldiers – as well as having to live in isolated areas of northern Australia and the associated problems of boredom. Mr Day contended that in this situation, the late veteran would have been tempted to smoke and to drink alcohol.
16. Mr Day further contended that, following the war, the late veteran would have returned to civilian life and so separated from the stressors, encountered in Army service, that would have led him to commence smoking.
Hypothesis III - Fibrositis, Inability to Undertake a Mildly Strenuous Level of Physical Activity and Ischaemic Heart Disease.
17. Mr Day submitted that the generalised fibrositis condition of the late veteran was accepted around 1953. The symptoms were frequent and often caused acute, severe problems for him. By 1963, the lack of ability to exercise was associated with overweight problems.
18. Mr Day referred to the problems that the late veteran had with his back condition. The back condition required hospitalisation, regular time off work and, in the 1960s and 1970s, the need to wear a back brace (from 1963). Mr Day referred to a notation on a Greenslopes Repatriation Hospital record (July 1973) that stated:
“Corset required. Pain is almost a daily occurrence. Some days worse than others.”
19. It was Mr Day’s contention, that because of pain from the accepted disability of fibrositis, the level of physical activity in the late veteran was reduced. In turn, this inactivity had led to increasing weight problems. He further contended that the combination of increasing weight and pain encouraged the late veteran to do less and less physical activity.
20. Mr Day submitted that the late veteran had been employed as a mechanic with the Department of Supply, but, because of his fibrositis/pain/back condition, he was eventually placed on light duties before ultimately losing his job.
21. Mr Day acknowledged that the clinical onset of symptoms of ischaemic heart disease in the late veteran could be established, based on the time the late veteran’s symptoms had been identified in a medical examination (ie, June 1973) – together with the fact that he had complained that these symptoms had been present for some 18 months to 2 years prior to this date.
Hypothesis IV – Alcohol abuse/Dependence, Hypertension and Ischaemic Heart Disease
22. Mr Day contended that because of the late veteran’s Methodist background and age on commencing Army service, that it would have been “most unlikely” that his parents would have allowed him to drink (or to smoke) prior to his period of Army service.
23. It was Mr Day’s contention that the late veteran’s problems with alcohol arose from his fibrositis condition, given that it was associated with pain. He further contended that the alcohol use continued up until the time for “pain relief from his service accepted disability [fibrositis]”.
24. Mr Stoner made the following submissions in relation to each hypothesis advanced by Mr Day.
Hypothesis I - Fibrositis
25. Mr Stoner submitted that the late veteran did not die from fibrositis – rather that he had died with this condition. To establish that the accepted disability of fibrositis had caused the death of the late veteran, it had to be fibrositis itself – not any sequelae or offshoots of this condition, that caused death. The expert medical opinion of Dr P Grant (Exhibit R4, 11 November 2002) indicated that no published research study supported the biological plausibility of fibrositis as a condition that could cause death.
26. Mr Stoner referred to the entry of Dr McMahon on the death certificate and contended that Dr McMahon had merely listed the various conditions of which he was aware that the late veteran had suffered at the time of his death. Moreover, he submitted that death certificates “were presumptive but not conclusive evidence of the cause of death and that the particulars [on the certificate] cannot rise above their source”.
27. Mr Stoner contended that this hypothesis must fail since the operation of subsection 8(1)(f) of the Act only applied when the injury or disease from which the late veteran died was an injury or disease that had been accepted as service-related.
Hypothesis II - Smoking and Ischaemic Heart Disease
28. Mr Stoner acknowledged, on a review of Dr R O’Shea’s medical report (Exhibit R5, 15 June 1973), that the late veteran had been complaining of the symptoms of coronary heart disease for about 1½ to 2 years prior to this consultation. Consequently, the “most likely” date of clinical onset of ischaemic heart disease that could be constructed from this report would be mid to late 1971. This date is common ground between the parties.
29. Mr Stoner, based on his review of the information before the Tribunal, submitted that the central issue in dispute in regard to this hypothesis was the extent of the inconsistencies in evidence. He submitted that it “might” be conceded that the material before the Tribunal may point to the “5 pack” threshold being satisfied. However, no such concession could be made in relation to the time the late veteran commenced smoking and the reasons for doing so. Mr Stoner made the following submissions:
(a)Two smoking questionnaires were completed by Mrs Norris: 20 January 1986 (T4 Folio 13) and 14 January 1999 (T4 Folio 31). Combining these two questionnaires, Mr Stoner submitted that Mrs Norris’ “best evidence” was that the late veteran:
“was smoking when they met [in 1948] she does not know when he started, other than that he said he started during the war, she doesn’t know why he started, and she confirms that he’d ceased smoking by at least 1961. Now, that’s got some implications for whether the factor per se is satisfied, because the factor – the factor is smoking at least five pack years of cigarettes – I’ve already conceded that you can’t be satisfied beyond reasonable doubt that that wasn’t achieved – but the clinical onset of ischaemic heart disease is mid to late 1971. Some time in 1961 is the last possible date on Mrs Norris’s best evidence that smoking was ceased.”
(b)A further smoking questionnaire was completed by the son of the late veteran, Stephen Norris (6 February 2001: T4 Folio 57) in which he gave the following answers to questions:
“Q6: Did the veteran ever stop smoking permanently?
A: Yes. He stopped smoking between 1964-1966”
and then provided the following notation at the bottom of the page:
“I remember him smoking when I worked at his place of employment after Junior 1964, and he had stopped after I finished Senior 1966 and went on a trip.”
30. Mr Stoner contended that the material before the Tribunal was inconsistent and unreliable with respect to the time the late veteran ceased smoking and the requisite period of 10 years before the clinical onset of the symptoms of ischaemic heart disease in mid to late 1971. Moreover, he submitted that the Tribunal could not be satisfied that the late veteran’s smoking habits were related to service. The submissions relied on by the applicant were primarily assumptions for which there was no evidence before the Tribunal.
Hypothesis III - Fibrositis, Physical Activity and Ischaemic Heart Disease
31. Given that the most likely date for the clinical onset of ischaemic heart disease was mid-late 1971, Mr Stoner submitted that the relevant period of time for the Tribunal to consider with respect to the late veteran’s “inability to undertake more than a mildly strenuous period of physical activity” was the seven year period mid-late 1964 to mid-late 1971.
32. However, Mr Stoner submitted that there was no evidence before the Tribunal to point to the late veteran being unable to undertake such a level of activity. Based on Dr O’Shea’s report (Exhibit R5, 15 June 1973), the late veteran was still working for the Department of Supply. In addition, Dr O’Shea had recommended, at this time, that he be employed on light duties. Accordingly, he submitted that for the period 1964 to 1971, if the late veteran was still working, then it could be concluded that he would meet the threshold requirement for 3 METs.
33. Mr Stoner then referred to the medical records of the late veteran which gave a history of his recorded weight change over time (Exhibit R3):
(a) 12 July 1966 69 kg
(b) 28 February 1969 73 kg(c) 20 June 1973 67 kg
34. Mr Stoner submitted that on consideration of the late veteran’s height (163 cm) and calculated BMI, it could not be concluded that he was obese.
Hypothesis IV - Alcohol Abuse/Dependence, Hypertension and Ischaemic Heart Disease
35. Mr Stoner contended that no connection, or linkage, with operational service could be established in relation to alcohol abuse/dependence. Moreover, there had never been any diagnosis of the presence of this condition for the late veteran.
36. Mr Day made the following responses in reply to Mr Stoner’s submissions:
(a)that as the treating doctor of the late veteran, Dr McMahon was aware that he had a “serious” hypertension problem but had overlooked this condition when he completed the death certificate, and submitted that:
“Dr McMahon seems to have thought that the fibrositis and its effects were significant enough to just overlook the hypertension even in the cause of death as a significant condition;”
(b)a document prepared by the Australian Bureau of Statistics (March 1999), ostensibly a set of Departmental Policy Guidelines dealing with the cause of death and certification which (at page 6) contained instructions and responsibilities for medical practitioners in completing a death certificate. Mr Day submitted that the guidelines required conditions that actually contribute to death to be inserted in the death certificate; and
(c)Mr Day conceded that the smoking questionnaire completed by Rosaleen Norris in January 1986 (T4 Folio 52) was an “assemblage of bits and pieces gleaned out of files because of her poor memory”.. He referred to Mrs Norris being in a psychiatric institution at that time and difficulties she had in “her ability to focus and to keep things accurately from memory”.. He submitted that any inconsistencies, if this were the case, were not due to any dishonesty on her part.
Consideration of the Issues
(a) Legal Principles
37. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times. The relevant legislation is the Veterans' Entitlements Act 1986. In respect of the late veteran’s eligible war service, subsection 120(4) of the Act applies. The Tribunal is required to decide all relevant matters to its reasonable satisfaction. This means that the Tribunal has to decide whether, on the balance of probabilities, the death of James Norris was war-caused.
38. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, a decision of the High Court of Australia, Dixon J (as he then was), commenting on the probative value of evidence as to causation in civil cases, stated:
“‘It is said to be that state of mind in which there is felt to be a ‘preponderance of evidence’ in favour of the demandant’s proposition...’ when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.”
and
“…Reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved. The seriousness of the allegations made, the inherent unlikelihood of an occurrence of the given description or the gravity of the consequences from a particular finding…are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal…”
39. Based on the submissions and all the evidence and information before the Tribunal, the Tribunal is aware that subsection 119(1) of the Act may have some application. This subsection makes allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of, or a deficiency in relation official records.
40. Subsection 119(1)(h) requires the Commission to:
“…take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or difficulty resulting from the fact that an occurrence that happened during the service of a veteran…was not reported to the appropriate authorities.”
41. However, this paragraph may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service. Nor does subsection 119(1)(h) authorise or require a decision-maker to ignore the evidence before it and decide the case on the basis of quite different evidence: Mason v Repatriation Commission [2000] FCA 1409.
42. In Mason v Repatriation Commission, Weinberg J stated:
“[56] …The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:
‘…in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal’s obligation to act in accordance with law’.”
43. Nor can subsection 119(1)(h) be directed to impediments to diagnosis and treatment attributable to the state of medical evidence in earlier times. Rather, it is concerned with problems of proof inherent in the nature of the disputes that arise under the Act, which often concern events that happened many years ago: Brew v Repatriation Commission (1999) 56 ALD 403 at 407 (per Sundberg J).
44. In Connors v Repatriation Commission[2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that “no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence”. Her Honour decided:
“If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. If the material did raise the hypothesis, the decision maker must determine whether it is reasonable. It would not be reasonable if the hypothesis did not fit the relevant SoP. That is, the facts of the applicant’s service must satisfy the standards set out in the SoP. ”
45. The Tribunal is further aware that, in relation to difficulties that may lie in the way of establishing the existence of any facts, the applicant in these proceedings has relied on some “assumptions” [or what may also be referred to as “inferences”] in their submissions to the Tribunal.
46. In McLean v Repatriation Commission [2001] FCA 1505, where there was “uncertainty” whether expert medical evidence was able to advance any hypothesis linking aggravation of the veterans back condition to his war service, the Full Federal Court stated:
“In the absence of this expert opinion it may have been permissible, at least, for the purpose of assessing the reasonableness of the hypothesis to infer a causal link between the veteran’s post war symptoms and his heavy duties during war service. However, given that the medical practitioner’s were apparently unable to establish the possibility of such a link, lay opinion could hardly be relied upon to establish it.” [Emphasis added]
47. The decision of Wright LJ in Caswell v Powell Duffryn Associated Collieries 3 [1939] All ER 722 at 733 is particularly relevant with respect to understanding the common law evidentiary requirements that apply to “inferences”:
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
(b) Evaluation of the Evidence
48. The first issue for the Tribunal to consider is whether the late veteran died “from” fibrositis or died “with” fibrositis. Subsection 8(1)(f) of the Act provides:
“The death of the veteran shall be taken to have been war-caused if the injury or disease from which the veteran died is an injury or disease that has been determined in effect to be war-caused.”
49. The Tribunal makes the following findings in relation to the operation of subsection 8(1)(f) to the facts of this application for review:
(a)The expert opinion of Dr Grant provides clear evidence that published research studies do not support the proposition of the applicant that fibrositis is a medical condition that directly causes death;
(b)The decision of the High Court Nicolia v The Commissioner for Railways, New South Wales (1970) 45 ALTR 465 also makes it quite clear that “the probative value of the particular entry cannot, in my opinion, rise above their source”. That is, the entry of “fibrositis” on the death certificate of the late veteran is not conclusive evidence of the cause of his death; and
(c)The Australian Bureau of Statistics “Departmental Policy Guidelines” for medical practitioners completing death certificates are not binding criteria. In a comprehensive review of the principles involved in the application of a policy, Davies J in Skolgarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 335 said:
“Policy does not constitute a binding rule, unless a statute so provides.”
The Veterans’ Entitlements Act contains no such statutory provision. Moreover, there is no evidence before the Tribunal to indicate that Dr McMahon understood and applied these criteria when he completed the death certificate.
50. Accordingly, based on the above findings, the Tribunal concludes that subsection 8(1)(f) does not apply to the late veteran’s circumstances. That is, notwithstanding that fibrositis is an accepted service-related disability, fibrositis was not a disease from which the late veteran died.
51. The next question for the Tribunal to consider is the second hypothesis advanced for smoking and ischaemic heart disease.
52. The Tribunal makes the following conclusions in relation to this hypothesis:
(a)that the material before the Tribunal, including the assumptions [or inferences] for the late veteran commencing smoking, and the reasons for so doing during eligible service, points to an hypothesis connecting ischaemic heart disease with the circumstances of service;
(b)that a SoP is in force: Instrument No 39 of 1999; and
(c)that the hypothesis is reasonable because the assumed facts [or inferences] contain the following factor related to the late veteran’s service:
“5(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)…
(ii)smoking at least five pack years of cigarettes, or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within ten years of cessation.”
53. However, by applying the fact-finding step at the requisite level of proof, the balance of probabilities, [“the Briginshaw test”], the Tribunal concludes:
(a)that the clinical onset of symptoms of ischaemic heart disease was mid-late 1971;
(b)that the Tribunal accepts the evidence of Stephen Norris that the late veteran ceased smoking somewhere between 1964 and 1966;
(c)that the 5 pack years of cigarettes threshold was probably met;
(d)that applying the reasoning in Caswell’s case, there are no objective facts before the Tribunal from which to establish the time that the late veteran commenced smoking and his reasons for doing so. The Tribunal acknowledges the reasons given by Mr Day for the problems associated with the reliability of Mrs Norris’ evidence and the resultant inconsistencies. As a consequence, her evidence does not assist the Tribunal in regard to the hypothesis. Furthermore, subsection 119(1)(h) cannot be applied to establish the necessary connection between service and the disease or for the Tribunal to ignore the evidence before it and to decide the application for review on the basis of quite different evidence (see Mason’s case);
(e)given that there are no positive, proven facts from which to infer that the late veteran commenced smoking during service and the reasons for so doing, the Tribunal can make no other finding other than to conclude that the assumptions advanced by Mr Day that the late veteran’s smoking habit arose out of, or was attributable to, or occurred during eligible war service, are mere speculation or conjecture.
54. Given the above conclusions, the Tribunal finds that, on the balance of probabilities, one or more facts necessary to support the hypothesis have not been proven to the reasonable satisfaction of the Tribunal. Accordingly, in the circumstances of this hypothesis, the death of the late veteran from ischaemic heart disease is not connected with his relevant service.
55. The next question for the Tribunal to consider is the third hypothesis advanced for fibrositis, physical activity and ischaemic heart disease.
56. The Tribunal makes the following conclusions in relation to the hypothesis:
(a)that the material before the Tribunal, including the assumptions [or inferences] in relation to the late veteran’s accepted service condition (fibrositis) affecting his ability to undertake a mildly strenuous level of physical activity and ischaemic heart disease, points to an hypothesis connecting his death with the circumstances of service;
(b)that a SoP is in place: Instrument No 39 of 1999; and
(c)that the hypothesis is reasonable because the assumed facts [or inferences] contains the following factor related to the late veteran’s service:
“5(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of ischaemic heart disease; or …”
and:
“5(c)being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease”
where:
“‘an inability to undertake more than a mildly strenuous level of physical activity’ means the presence of an incapacity which prevents any physical activity greater than 3 METS, where a ‘MET’ is a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. (A MET approximates to the energy required to rest quietly in bed. A 70 kg man would use about 3 METS when walking at 4 km per hour.);
‘being obese’ means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of ‘being obese’ signed by the Chairman of the Authority on 16 August 1996.
The measurement used to define ‘being obese’ is the Body Mass Index (BMI).
The BMI = W/H2, where:
W is the person’s weight in kilograms and
H is the person’s height in metres.
‘Being obese’ is where the BMI is 30 or greater…”
57. However, by applying the fact-finding step at the requisite level of proof, the balance of probabilities, [“the Briginshaw test”] the Tribunal concludes:
(a)that the clinical onset of symptoms of ischaemic heart disease was mid-late 1971;
(b)that the relevant period for considering the late veteran’s ability to undertake “a mildly strenuous level of physical activity” was the seven year period mid to late 1964 – mid to late 1971;
(c)that based on Dr O’Shea’s medical report (Exhibit R5, 15 June 1973), the late veteran was still working for the Department of Supply and, at this time, Dr O’Shea had recommended that he be employed in light duties. Consequently, the Tribunal is reasonably satisfied that as the late veteran was working during the period 1964-1971, the 3 MET threshold would be satisfied during the relevant period;
(d)that the relevant period for the question of obesity and ischaemic heart disease was mid to late 1956 – mid to late 1971;
(e)that the only documented evidence and information to consider any two year period for the issues of weight of the late veteran are 1966, 1969 and 1973 (Exhibit R3) in which the late veteran’s weight varied from 67-73 kg;
(f)that unfortunately, the Tribunal must attach little weight to Mrs Norris’ statement [Exhibit A2, 17 December 2001] that around 1965-1970 the weight of the late veteran was 14 stone [or 89 kg]. This statement is clearly inconsistent with the existing medical records; and
(g)that in calculating the late veteran’s BMI, based on documented records and the SoP formula – as well as the weight change required to satisfy the SoP with respect to “being obese”, the Tribunal is reasonably satisfied that the late veteran was not obese during the relevant period.
58. Given the above conclusions the Tribunal finds that on the balance of probabilities, one or more facts necessary to support the hypothesis have not been proven to the reasonable satisfaction of the Tribunal. Accordingly, in the circumstances of this hypothesis, the Tribunal finds that the death of the late veteran from ischaemic heart disease is not connected with his relevant service.
59. The final question for the Tribunal to consider is the fourth hypothesis advanced for alcohol abuse/dependence, hypertension and ischaemic heart disease.
60. The Tribunal has considered all of the material before it in order to determine whether the material before the Tribunal points to an hypothesis connecting to late veteran’s ischaemic heart disease with the circumstances of service – specifically, the existence of the condition of alcohol abuse/dependence. Without medical expert opinion, lay opinion cannot be relied upon to establish the possibility of such a link (McLean’s case). Moreover, if an essential element, and in this case the condition of alcohol abuse/dependence, is not raised or pointed to by the material before the Tribunal, the hypothesis is not raised by the material (Connor’s case).
61. In this application for review, the Tribunal concludes that there is no medical expert opinion that the late veteran suffered from the condition of alcohol abuse/dependence. In addition, the Tribunal concludes that the assumptions for the late veteran’s drinking habits arising out of, or attributed to eligible service, are mere speculation (see Caswell’s case). Accordingly, the Tribunal can make no other finding than to conclude that the material before it does not point to an hypothesis connecting the late veteran’s death from ischaemic heart disease with the circumstances of his service, specifically the condition of alcohol abuse/dependence.
62. For all of the above reasons the Tribunal finds that the death of the late veteran was not war-caused. Accordingly, the Tribunal has no option other than to affirm the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .......................................................................................
AssociateDate of Hearing 21 November 2002
Date of Decision 4 April 2003For the Applicant Mr R Day, Advocate, Brisbane Legacy
For the Respondent Mr J Stoner, Departmental Advocate
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