Oldham and Repatriation Commission
[2006] AATA 568
•29 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 568
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/647
VETERANS' APPEALS DIVISION
Re:JOHN ERNEST OLDHAM
Applicant
And:REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 29 June 2006
Place: Melbourne
Decision: The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s ischaemic heart disease is defence‑caused. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements – ischaemic heart disease ‑ smoking – whether defence caused – decision set aside
Veterans’ Entitlements Act 1986 ss 8(1)(b), 70(5), 120(4), 120B, 196B(14)
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 29 ALD 609Roncevich v Repatriation Commission [2005] HCA 40
REASONS FOR DECISION
29 June 2006 Regina Perton, Member
1. John Ernest Oldham was born on 3 August 1950. He served in the Royal Australian Air Force (RAAF) from 26 July 1971 to 1 August 1980. He worked as an instrument fitter for most of his service. His service was wholly in Australia. His service constitutes eligible service as defined in the Veterans’ Entitlements Act1986 (the Act).
2. Mr Oldham lodged a claim for a disability pension on 31 March 2003 for heart problems and breathing problems. On 26 June 2003, a delegate of the Repatriation Commission classified the heart condition as ischaemic heart disease and refused the application. The delegate found that there was no medical evidence to support the claim for breathing problems. On 5 April 2004, the Veterans’ Review Board (VRB) affirmed the decision under review. Mr Oldham lodged an application for review with the Tribunal on 28 May 2004.
3. There is no dispute that Mr Oldham suffers from ischaemic heart disease. The issue before the Tribunal is whether the medical condition was defence-caused. The ischaemic heart disease may be attributable to Mr Oldham’s smoking. Mr Oldham is no longer pursuing a separate claim concerning breathing problems.
EVIDENCE
Mr Oldham
4. In a written statement dated 10 December 2004 (Exhibit A1), Mr Oldham stated:
…
2. I was 20 years of age when I enlisted in the RAAF. I was a non-smoker. I commenced smoking when I was posted to Pearce Air Force Base in Western Australia in early 1973. I was a long way from home, there was a lot of responsibility and pressure involved with working on aircraft. On one occasion I towed an oxygen cylinder from an aircraft while it was still attached and damaged the aircraft. I was subsequently charged for that. It was around this time that I started to smoke.
3. Smoking in the services was actively encouraged. Every time there was not much to do, we were told to sit down and have a smoke. This happened quite regularly. If one did not smoke, one did not fit in. I found smoking relieved stress and the pressure of responsibility associated with the job..
4. I started off smoking in 1973 and by the end of the year was smoking 20 cigarettes per day. By 1975 I was smoking 40 cigarettes per day. Bt 1979 I was smoking 60 cigarettes per day as well as a pipe. By 1981 I left the Air Force, and I reduced my smoking to 30 per day, as I was unable to smoke during the day in the job I was in. Around 1987 I stopped smoking altogether because my doctor had told me many times to give it away. I had been diagnosed with hypertension, I was having chest pains.
…
5. In his claim for Disability Pension lodged on 31 March 2003, to a question as to why he believed that his heart problems were caused, contributed to or aggravated by his service, Mr Oldham responded as follows:
Condition caused by service acquired heavy smoking habit. Bypass surgery performed in Nov 2002 at Epworth Hospital.
6. Mr Oldham indicated in the form that the disability was affecting his employment: At that time, he was unemployed.
The claimed conditions are having an effect on my current employment. I am hoping that my recovery from heart surgery will be full and complete. At present, I am not experiencing any great improvement in my state of health.
7. In a Department of Veterans’ Affairs (DVA) form entitled Claimant Report – Cigarette Smoking completed on 11 March 2003, Mr Oldham stated that he first started smoking on a regular basis when he was posted to Pearce Air Force Base (Pearce) in Western Australia in 1973. As to why he started smoking on a regular basis, Mr Oldham stated:
I had completed my recruit and trade training and was really in the air force. I was very happy and wanted to fit in. Smoking in the services was actively encouraged. In addition I was a long way from home, family and friends and was, initially a bit homesick.
8. In the form Mr Oldham indicated that his consumption increased from 20 cigarettes per day in 1973 to 40 per day in 1975. He estimated that by 1978 he was smoking 40 cigarettes per day plus a pipe and 60 per day as well as a pipe in 1979. In 1981 he reduced his consumption of cigarettes to around 30 per day. He stopped smoking in 1987.
9. In oral evidence Mr Oldham stated that he joined the RAAF in 1971 when he was 20 years old. He was a non-smoker at that time. He commenced smoking in early 1973. He was posted to Pearce where his role was to prepare aircraft for their daily flights and sign off that he had done the requisite maintenance. He said that the he would see off the planes in the morning and do after-flight inspections when the planes returned. He said that he was reminded regularly that the consequences of doing something incorrectly could be a matter of life and death. He stated that were a few occasions when the aircraft did not return. He said that he and others in similar roles were not always informed that certain planes would not be returning to base. The non- commissioned officers (NCOs) would ask who had signed off on a particular aircraft and tell them that it had not returned. He said it was a relief to find out that the aircraft had landed some hours later. He said that he did not know if it was RAAF policy or the NCOs taking advantage of the situation but that it used to put a lot of pressure on us.
10. Mr Oldham said that he coped with the pressure by pacing up and down. He initially lit cigarettes for others. Then the persons for whom he lit the cigarettes suggested he continue smoking the one he had just lit and light another for them. He said that his smoking increased from there.
11. Mr Oldham said that the RAAF actively encouraged smoking. He said that if you did not smoke, you did not feel part of the group as many of your colleagues smoked. He indicated that they were encouraged to go and have a smoke when on a break. He confirmed that his smoking was at the level given in the documents cited above.
12. Mr Oldham stated that when he left the RAAF, his level of smoking reduced as he was working in a computer environment where you could not smoke in the workplace. He said that he gave up smoking in 1987 due to chest pain, hypertension and shortness of breath. Mr Oldham said that he is now working again. He has been employed full-time as a bus driver since February 2006. He is therefore no longer seeking a special rate pension.
13. Under cross‑examination by Mr Purcell, counsel for the Repatriation Commission, Mr Oldham confirmed that he had been in the workforce for 3 years before joining the RAAF and did not smoke at that time. Mr Oldham indicated that he coped well with his initial 10 weeks’ training in Adelaide. He then undertook approximately a year of training at Wagga Wagga (Wagga), leaving there in about October 1972 as a trained instrument mechanic. He returned to Wagga for conversion training as an instrument fitter later. Mr Oldham confirmed that many of his colleagues in his first two years of RAAF service smoked. He also agreed that there were smokos and opportunities to smoke in both Adelaide and Wagga. He confirmed that he did not smoke at that time. Mr Oldham stated that he lived on base in both Adelaide and Wagga. He agreed that in his leisure activities or when he was having drinks on base, many of his companions smoked but he did not.
14. Mr Purcell questioned Mr Oldham further about the comments in his smoking questionnaire completed on 11 March 2003. Mr Oldham stated that in the questionnaire he was referring to the time that he was posted to Pearce. He confirmed that he was happy in the RAAF and wanted to fit in with the rest of the group. He had mentioned in the statement that one of the reasons for taking up smoking was that he was a long way from home. Mr Oldham agreed that he had been living away from home for a considerable period. He commented that while he was at Wagga, it was only a four hour trip to his Victorian home. He said that he comes from a close family. He still lives in the old family house where he grew up and which he purchased from his father. In response to Mr Purcell’s comment that Mr Oldham had not stated in the questionnaire that responsibility and pressure of work were factors in his smoking, he said that he had put that information in his later statement.
15. Mr Oldham indicated that at Pearce, he was required to certify that he had done the air maintenance task he was assigned to do on Macchi jet trainers. He stated that he had been conscientious in his work and in the documentation. In response to Mr Purcell’s suggestion that he was doing work for which he was properly trained by the RAAF, Mr Oldham stated that he was not fully trained. He said that he was required by his superiors to do the work of a fitter, but at that time he had not yet done the fitters’ conversion course. Mr Oldham said that he found the job stressful at Pearce as it was specifically brought to the fitters’ attention that any mistakes could cost lives or aircraft.
16. Mr Oldham stated that he had left Pearce around May 1973 for further training at Wagga. At that time he was already smoking. The training took some 9 months. It was 95 per cent in the class room. They were permitted to smoke in some of the classrooms, which Mr Oldham did. He said that his smoking habit in his second round of training at Wagga was around 20 cigarettes per day. He conceded that there was less stress and responsibility at Wagga. Mr Oldham believed that his smoking had become a habit by the time he returned to Wagga. He said that he did not try to give up smoking at that time.
17. Mr Oldham was transferred to the East Sale airbase in late 1974. He agreed that he was fully trained by then and he worked on various aircraft. He confirmed that his training enabled him to cope with the duties but that he still found it a bit stressful when considering the consequences of a mistake. He completed his service at that posting. Mr Oldham lived on base initially but later moved into a shared house off-base. He was questioned about his smoking levels and his alcohol intake while based at East Sale.
18. Mr Purcell drew Mr Oldham’s attention to his responses to the VRB’s questions at a hearing on 5 April 2004 (Exhibit R1). He cited the exact words that Mr Oldham used in several responses to the VRB concerning his smoking. Before the VRB Mr Oldham had stated that all the people he worked with sort of smoked there and he started lighting cigarettes for others and then progressed from there. He had said that he was a bit lonely, he was a long way from home and he joined in the group mentality. He later commented to the VRB that he had smoked just to fit in with everybody. Mr Oldham said that the responsibilities and pressures involved with the aircraft had been one of the reasons he started smoking. He said that his other responses concerned smoking as a habit which was reinforced by regular smokos and the group’s culture. Mr Oldham stated that he had a charge pending at the time and he was stressed about it and the smoking relaxed him. He was admonished for what he had done but nothing further happened as he had erroneously undertaken a task he was directed to do but had not been trained for.
19. Under re-examination Mr Oldham reiterated that he felt stressed when he started smoking because he was doing work that he was not fully trained for.
Dr Matar
20. In a report dated 7 May 2003, Dr M G Matar concurred that his patient suffered from ischaemic heart disease. He stated that there was a history of angina with onset in 1987 and ischaemic cardiomyopathy with onset in 1987. In relation to prior conditions, he indicated that Mr Oldham had suffered from hypertension since 1990 and sleep apnoea since 2001, but that both conditions are now controlled. He also indicated that Mr Oldham has suffered from obesity since 1998. Dr Matar indicated that Mr Oldham had suffered an increase in angina in 2002 which led to open heart surgery in November 2002. He indicated that Mr Oldham had suffered memory problems following the surgery. Dr Matar’s clinical notes (Exhibit R3) include copies of several reports from Dr A S Walton, a cardiologist based at the Epworth Hospital, concerning Mr Oldham’s pre and post operative conditions following cardiac surgery.
Dr Robertson
21. In a report dated 8 May 2003 (T11), Dr D G Robertson, a consultant respiratory physician, indicated that he did not believe that Mr Oldham’s dyspnoea was the result of any respiratory disease. He attributed the symptom to Mr Oldham’s weight combined with his ischaemic heart disease.
Professor Pain
22. In a report dated 18 February 2005 (Exhibit A2), Professor M Pain indicated that he performed a clinical examination and lung function test on Mr Oldham on that day. He summarised his findings as follows:
…
1. I can find no evidence of chronic obstructive lung disease (chronic bronchitis, obstructive bronchitis or emphysema) in Mr Oldham despite his heavy past tobacco consumption.
2. His ventilatory capacity is impaired due to lung restriction (not obstruction) and I believe this restriction is a result of his cardiac surgery. It is probably a permanent sequelae.
3. His obesity may be contributing to his exertional breathlessness.
4. Mr Oldham has coronary artery disease which is also contributing to his exercise limitation.5. Although outside my area of expertise, I think it is well accepted that tobacco smoking is a risk factor for the development of coronary atherosclerosis and as Mr Oldham commenced smoking during his RAAF service, it seems reasonable to argue that his coronary artery disease results from his service in the RAAF. You would need the opinion of a cardiologist about this. His lung restriction due to cardiac surgery thus could be considered service-related.
Professor Harper
23. Professor Richard Harper prepared three reports. In a report dated 22 February 2005 (Exhibit R4), Professor Harper stated that he believed that based on Mr Oldham’s history and treatment, he was of the view that clinical onset of hypertension was in 1987. In response to a specific question as to whether Mr Oldham satisfied any of the factors in the Statement of Principles (SoP) in relation to ischaemic heart disease, Professor Harper wrote (at page 4):
…I believe that Mr Oldham’s ischaemic heart disease is a result of hypertension, smoking, obesity and hyperlipidaemia. If it were accepted that any of these factors were related to Mr Oldham’s service in the RAAF then his ischaemic heart disease could be related to his service.
With respect to the issue of smoking, it is clear that Mr Oldham began smoking whilst serving in the RAAF. It seems a reasonable assumption to me that the high level of responsibility given to him as a young serviceman in combination with peer pressure contributed to him taking up smoking.
24. On 20 September 2005, after Mr Oldham undertook a Stress Echocardiogram, Professor Harper provided a further report. He summarised his findings as follows:
In summary Mr Oldham had only a mild limitation of exercise. It is very unlikely that this limitation is due to myocardial ischaemia. More likely it is a result of obesity and general unfitness, perhaps some mild respiratory disease and perhaps some hypertensive heart disease.
25. On 28 February 2006, Professor Harper provided a further report after reading the reports of Professor Pain and Dr Walton. He maintained the views expressed in earlier reports.
CONSIDERATION OF THE ISSUES
26. Section 70(5) of the Act provides:
For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
27. For claims made after 1984, it is necessary to apply any relevant Statement of Principles (SoP) issued by the Repatriation Medical Authority. Where there is an SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant’s condition and the applicant’s service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant’s service (s 120B(3)(b)). The relationship to service must be one of the relationships prescribed in s 196B(14) of the Act.
28. Section 196B (14) of the Act provides:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
29. In coming to a decision, the Tribunal must form an opinion whether the contention raised by Mr Oldham fits within or is consistent with a factor set out in the SoP.
30. There was no dispute between the parties that Mr Oldham had rendered eligible service, so that s 120(4) and s120B of the Act apply. This means that the Tribunal must decide the matter to its reasonable satisfaction.
31. The current SoP for ischaemic heart disease is No. 54 of 2003 as amended by No. 10 of 2004. At the time of lodgement of the claim, the relevant SoP was No. 39 of 1999 as amended by several subsequent SoPs. However, in this case, there is no dispute that Mr Oldham meets a factor in SoP No. 54 of 2003 concerning smoking so there is no need to consider both instruments.
32. Ischaemic heart disease is defined in paragraph 3(b) of Instrument No. 54 of 2003:
For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
33. A large number of factors may result in a finding that the circumstances of a person’s relevant service are connected with the condition. The parties and the Tribunal concur that the factor that best fits Mr Oldham’s circumstances is factor 5(f) of Instrument No. 54 of 2003 which states:
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; …
34. In reaching its decision, the Tribunal takes into account the oral and written evidence and the submissions made at the hearing. The standard of proof to be applied is that set out in s120(4) of the Act. The Tribunal must first be satisfied that an applicant suffers from the claimed condition. In this case, there is no dispute between the parties that Mr Oldham suffers from ischaemic heart disease and the Tribunal finds to its reasonable satisfaction that Mr Oldham has that condition.
35. There is no definition of the term clinical onset in the relevant SoP or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other earlier cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or when the condition is actually found on diagnostic testing, regardless of the extent of symptoms. The medical evidence presented to the Tribunal indicates that Mr Oldham was diagnosed with the condition in 1987. The Tribunal finds that the clinical onset of Mr Oldham’s ischaemic heart disease was in 1987.
36. Mr Oldham’s evidence in relation to his level of smoking and its timing was not disputed by the Repatriation Commission. His evidence has been consistent and the Tribunal accepts the levels cited by him in his written and oral evidence. The Tribunal is satisfied that Mr Oldham’s level of smoking satisfies factor 5(f) of SoP No. 54 of 2003. Therefore, the Tribunal is reasonably satisfied that there is a temporal connection between Mr Oldham’s smoking and his service.
37. In respect of any causal connection, the Tribunal notes that in Repatriation Commission v Law (1980) 31 ALR 140 at 151 the Federal Court of Australia held, in interpreting the words attributable to in s 8(1)(b) of the Act:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.
38. In Roncevich v Repatriation Commission [2005] HCA 40 the High Court of Australia held, at paragraph 27:
A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
39. In Repatriation Commission v Tuite (1993) 29 ALD 609 at 614 Burchett and Einfeld JJ accepted the Tribunal’s reasoning that the conditions experienced while in camp had caused the applicant to commence smoking:
The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and instances of camp life were clearly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance of the habit until the inevitable onset of nicotinic addiction.
Davies J stated, at 612, that the relevant question will usually be whether life in camp was a contributing cause, not merely the setting in which the event occurred. He said:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.
40. In Kattenberg v Repatriation Commission (2002) 73 ALD 365 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated at 374:
…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996.
41. Mr Oldham did not take up smoking in his first two years of his RAAF service. He gave evidence that many of his colleagues during his basic and technical training smoked but he did not. Nor did he smoke prior to joining the RAAF at the age of 20, after three years in the workforce. If peer pressure or being away from home were the only causal factors leading Mr Oldham to smoke, it appears to the Tribunal that he would have taken it up at an earlier stage of his RAAF career.
42. The Tribunal is of the view that the nature and circumstances of Mr Oldham’s work at the time he started smoking is of particular relevance in determining whether it is service caused. Mr Oldham gave evidence that he began smoking at Pearce. He was required to undertake duties for which he had not yet been fully trained, namely as an instrument fitter, when his training had been as an instrument technician. As a result, he made an error for which he was eventually admonished, rather than given a more serious penalty, as it was recognised he had been directed to undertake work for which he did not have the requisite training. The stress was exacerbated for this particular applicant by the NCOs’ style of management, in keeping the newer staff in a state of anxiety when the aircraft they serviced failed to return at the anticipated time. The workplace environment of smokos may also have contributed as a causal factor; but on its own, would not have led to a finding in Mr Oldham’s favour. Each of the circumstances of Mr Oldham’s service at Pearce would not of its own be sufficient for the Tribunal to consider it to be the sole or dominant cause. However, as was pointed out in Roncevich, it does not need to be. The combination of stress from undertaking duties for which he was not trained, group pressure in that workplace and the impact of his responsibilities on Mr Oldham provide a plausible explanation as to why he commenced smoking at that time. The Tribunal notes that Professor Harper commented that he believed it was a reasonable assumption that the high level of responsibility given to him as a young serviceman in combination with peer pressure contributed to him taking up smoking.
43. Considering the material as a whole, the Tribunal is reasonably satisfied that the taking up of smoking and subsequently the smoking of the requisite number of cigarettes by Mr Oldham was contributed to in a material degree by Mr Oldham’s service and that it would not have occurred but for the rendering of that service. Therefore, there is both a temporal and causal connection between Mr Oldham’s level of smoking and his eligible service.
DECISION
44. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s ischaemic heart disease is defence‑caused. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
I certify that the forty‑four [44] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
signed: Olympia Sarrinikolaou
Clerk
Date of hearing: 5 April 2006
Date of decision: 29 June 2006
Advocate for the applicant: Mr D De Marchi
Solicitor for the applicant: De Marchi & Associates
Counsel for the respondent: Mr G Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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