Patrick Lilley and Repatriation Commission
[2014] AATA 798
•28 October 2014
[2014] AATA 798
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0836
Re
Patrick Lilley
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 28 October 2014 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Ischaemic heart disease – Defence-caused – Whether reasonable satisfaction – Veterans’ Review Board found not defence-caused – Decision affirmed.
LEGISLATION
Veteran’s Entitlements Act 1986 (Cth) ss 68, 70, 120, 120B
CASES
Repatriation Commission v Smith (1987) 15 FLR 327
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease No. 90 of 2007
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
28 October 2014
INTRODUCTION
On 31 May 2013, the applicant lodged a formal claim with the respondent that his ischaemic heart disease is related to his service with the Australian Army. On
11 June 2013 a delegate of the respondent made a decision that the ischaemic heart disease condition of the applicant was not defence-caused. On 9 December 2013, that decision was affirmed by the Veterans’ Review Board (“VRB”). The applicant has now sought a review of the decision.
SERVICE
The applicant served in the Australian Army from 1972 until 1991. There is no period of operational service.
LEGISLATION
The Veteran’s Entitlements Act 1986 (Cth) (“the Act”) provides that the service of the applicant for the period 7 December 1972 until the date of his discharge is
‘defence service’ under s 68 of the Act. Any incapacity from a defence-caused injury or disease is compensable under s 70 of that Act.
Subsection 120(4) of the Act provides that in determining whether an injury or disease is defence-caused, the respondent is to decide the matter to its ‘reasonable satisfaction’.
In Repatriation Commission v Smith,[1] the Federal Court of Australia held that the expression “reasonable satisfaction” refers to the civil standard of proof which is on the balance of probabilities. Subsection 120(6) of the Act provides that the applicant does not bear any onus of proof.
[1] (1987) 15 FLR 327 at 335.
Subsection 120B(3) of the Act provides:
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);
...
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In determining this application, I am required to apply the Statement of Principles concerning Ischaemic Heart Disease No. 90 of 2007 (“SoP”).
CONSIDERATION
The applicant and the respondent both accept that for the applicant to succeed in his claim, the contention that his ischaemic heart disease condition is defence-caused has to be upheld by the SoP.
The applicant relies upon the factor at cl 6(h) of the SoP which refers to
Where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking an average of at least 5 cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical inset of ischaemic heart disease
There is no issue that the date of clinical onset was in about July 2009 when the applicant had myocardial infarction. A report dated 26 October 2010 confirms that the veteran had a myocardial infarction in July 2009. The respondent its statement of facts and contentions asserts that the applicant smoked in excess of the rate required by factor cl 6 (h) of the SoP.
The contention of the applicant is that his ischaemic heart disease was caused by the commencement of his smoking after he enlisted into the Army. In particular, he states that his rate of smoking increased when he was undertaking duties in Irian Jaya, which is when he was issued with ration packs of cigarettes.
The applicant has completed two smoking questionnaires. In the 2010 and 2011 questionnaires he stated that he first commenced smoking on a regular basis in
June 1971, which was at a time after he enlisted in the Army. In the 2010 questionnaire he stated that the reason why he started smoking was “[p]eer pressure[, e]ncouraged with smoking breaks”. In that questionnaire he stated that he smoked 10 cigarettes a day. However, in his supplementary statement dated 27 June 2014, the applicant gave a different smoking history, stating that when he enlisted he “simply could not afford cigarettes”. He stated that he then would have no more than five to 10 cigarettes per day but with periods of a week or two where he did not smoke at all. In giving evidence he qualified that statement by stating that the period when he would not smoke would be less than a month.
There is a difference between the accounts given by the applicant of when he smoked after he enlisted. The applicant is now effectively asserting that his regular smoking occurred after 7 December 1972 which is the date prescribed by the Act as being when defence service commences.
In the 2010 questionnaire he stated that his consumption changed in May 1976 when he started smoking 25 cigarettes a day. In his supplementary statement he stated that in 1977 his consumption decreased to between five and ten cigarettes a day when he returned to Australia, and increased in 1978 when he returned to Irian Jaya. I accept the evidence of the applicant that the duties of the applicant in Irian Jaya were stressful and that it was an unpleasant environment in which to work. That particular decrease in smoking is not recorded in the smoking questionnaires.
There is an important statement that was made by the applicant in 2009 when he was in hospital. On 18 July 2009 he informed the staff that he smoked 25 cigarettes a day for
40 years.[2] I regard this statement as a clear admission by the applicant that he commenced smoking sometime in or about 1969; this was at a time before he joined the Army. That statement is in the nature of an admission that he regularly smoked cigarettes at the rate of 25 cigarettes a day since 1969 and is quite different from what he said in his supplementary statement or in the two smoking questionnaires.
[2] Exhibit G, document 30.
I give some weight to the statement that the applicant made in the hospital in 2009 to find that the applicant had a regular smoking habit of 25 cigarettes a day which commenced in or about 1969; this was at a time well before when he enlisted in the Army. While I appreciate that the applicant may have been under medication when he made this statement, the statement is quite detailed and reveals detailed particulars of not only the medical history of the applicant but also the medical history of his parents. I consider that the statement is quite accurate. I also consider that the applicant would have given the hospital accurate information to ensure that he received the appropriate treatment. In the circumstances, I cannot regard the smoking questionnaires or the supplementary statement as being an accurate record of the smoking history of the applicant. The questionnaires and the supplementary statement are significantly different from the statement that the applicant made to the hospital in 2009. The statement made in the hospital also does not support any contention that the rate of smoking significantly varied during his service.
While the applicant smoked cigarettes in excess of the rate specified in cl 6(h)(i) of the SoP, this consumption is not related to service as required by the factor in cl 5 of the SoP. I rely upon the record of the statement made by the applicant in hospital in 2009 to find that the applicant had developed a smoking habit in or about 1969, which was is well before his enlistment. The SoP does not uphold the contention of the applicant that his smoking habit is related to his service.
For the sake of completeness I should mention that I have considered the application of the factor in cl 6 (gg) which was raised on behalf of the applicant before the VRB. There is no evidence that would support the application of this factor as there is no evidence that the applicant suffered from ischaemic heart disease while he was serving with the Army. There is also no evidence that would support the application of the factor in cl 6(f) that any dyslipidaemia is related to his service.
DECISION
I affirm the decision under review.
I certify that the preceding 19 (ninteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member .........................[Sgd]...............................................
Associate
Dated 28 October 2014
Date of hearing 3 September 2014 Solicitors for the Applicant Terence O'Connor Solicitor Advocate for the Respondent Repatriation Commission
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