Perrin and Repatriation Commission - [2001] AATA 26

DECISION AND REASONS FOR DECISION [2001] AATA 26

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/767

VETERANS' APPEALS DIVISION          )
           Re      Marjorie Perrin
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr JD Campbell

Date22 January 2001
PlaceSydney

Decision      (a)      the late veteran had a condition of chronic airways limitation; and (b)        this condition of chronic airways limitation was a war caused disability; and (c) this war-caused disability made a contribution to the death of the late veteran; and (d)           the Applicant is entitled to a widow's pension with date of effect being 21 April 1997.
  ……………………….
  Member
CATCHWORDS
Veterans' entitlement and widow's pension – death of veteran – cause of death – chronic obstructive airways disease – issue of contribution

Veterans' Entitlement Act 1986 ss 8, 120, 120A, 196B

Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Bendy (1989) 10 AAR 323
Repatriation Commission v Hughes (1990) 13 AAR 34
Henry v Repatriation Commission (1992) 29 ALD 289
Asquith v Repatriation Commission (1989) 18 ALD 479

REASONS FOR DECISION

Dr JD Campbell

Mrs Perrin ("the Applicant") in this matter seeks review of the decision of the Repatriation Commission ("the Respondent") dated 31July 1997 which found that the death of her late husband, Mr Sydney Perrin, was not related to service and subsequently her claim for a widow's pension was refused. This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 9 February 1999.
A hearing was held before the Tribunal on 11 September 2000 at which the Applicant was represented by Mr Sherlock, an advocate from the Veterans' Advocacy Service. The Respondent was represented by Mr Wallis, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.
The following material was placed in evidence before the Tribunal:
T1–T13, pp1 –118 Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit A1     Applicants letter dated 19 October 1999.
Exhibit A2     Statement of Applicant dated 16 November 1999.
Exhibit A3     Medical Report by Dr Rodriguez dated 18 October 1999.
Exhibit A4     Advice by Dr Green re Applicant dated 31 October 1999.
Exhibit A5     Applicants Statement of Facts and Contentions dated 12 November 1999.
Exhibit R1     Clinical notes of Dr Dunn dated 8 February 2000.
Exhibit R2     Clinical notes of Calvary Hospital dated 23 March 2000.
Exhibit R3     Medical report of Dr Breslin dated 1December 1999.
Exhibit R4     Respondents statement of facts and contentions dated 7 April 2000.

ISSUES

The relevant issues in this matter are:
(a) whether the late veteran suffered from chronic airflow limitation due to chronic bronchitis or emphysema, and whether this condition was a war caused disability; and if so
(b) whether this war caused disability cause or contribute to the death of the veteran.

LEGISLATION

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 8(1), 120(1), (3), (4), 120A and 196B.
BACKGROUND
The Applicant lodged a claim for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perrin and Repatriation Commission

Details

AGLC: Perrin and Repatriation Commission [2001] AATA 26
Case: [2001] AATA 26
Decision Date: 22 January 2001

CaseChat Overview and Summary

The case before the Court involved a claim for a widow's pension by the Applicant, following the death of her husband, Mr Sydney Perrin, who had served in the armed forces. The claim was initially rejected but later amended with additional medical information. The crux of the dispute was whether Mr Perrin's chronic obstructive airways disease contributed to his death, which was ultimately attributed to a brain tumour. The legal issues revolved around interpreting the Veterans' Entitlement Act 1986 and determining if the disease sufficiently contributed to the veteran's death to warrant a widow's pension.

The Court examined the medical evidence and the veteran's service records to assess the contribution of the airways disease to his death. The evidence showed that Mr Perrin had been diagnosed with chronic obstructive airways disease years prior to his death, and he had been treated for respiratory issues on multiple occasions. The Tribunal considered the interplay between his respiratory condition and the brain tumour, ultimately finding that the respiratory disease met the criteria for chronic outflow limitation as defined in the Statement of Principles. The Court also noted the veteran's heavy smoking habit, which began during his service and continued post-service, as a contributing factor to his respiratory condition.

In its reasoning, the Court concluded that the chronic obstructive airways disease did contribute to the veteran's death, as it was a significant factor in his overall health decline and necessitated oxygen therapy during his final days. The Court found that the respiratory disease met the legislative requirements for contributing to the veteran's death, thus entitling the Applicant to a widow's pension. The decision hinged on the interpretation of the relevant provisions of the Veterans' Entitlement Act 1986 and the weight given to the medical evidence provided.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant lodged a claim for a widow's pension on 21 February 1997. The claim related to the death of her husband, Mr Sydney Perrin ("the late veteran") who died at Calvary Hospital on 3 July 1998. The death certificate cited a brain tumour (glioma) as the cause of death. Her claim was rejected on 31 July 1997 (T6). Following further enquiries by the Applicant, an amended death certificate was issued by the Registry of Births, Deaths and Marriages on 16 June 1998, citing as an additional cause of death chronic obstructive airways disease. The matter was reviewed by the VRB and in a decision dated 9 February 1999 death of the late veteran was found not to be related to his service (T12).ARGUED FACTS AND ISSUES Both parties agree on the following facts and issues:(a) that the late veteran had the following conditions accepted as war caused disabilities:(i) Threadworm Infestation;(ii) Functional Dyspepsia;(iii) Anxiety State with Depression;(iv) Haemorrhoids;(b) that the late veteran had operational service from 20 April 1942 to 11 January 1944; and(c) that the date of effect is 21 April 1997, if the Applicant is successful in her appeal. The Applicant informed the Tribunal that she met her late husband in 1950 and married him in 1959, being the second marriage for both. The Applicant said that her late husband had been a dairy farmer before the war, with a number of young children. In relation to the late veterans' smoking, the Applicant stated that he was a very heavy smoker at the time they first met, smoking at least 60 cigarettes per day. The Applicant further stated that he continued to be a very heavy smoker until 1979 or 1980, when Dr Alford indicated that he would be unwilling to treat the late veteran if he did not stop smoking. In further evidence, the Applicant stated that the information about her husband's smoking pattern prior to their initial meeting in 1950 was derived from conversations with the late veteran. As a consequence she was able to state that her husband was a non-smoker prior to his service; being a fastidious man, he did not think it appropriate to smoke and milk cows by hand. He started to smoke in Darwin, and while generally not speaking much about his war experiences, he did mention the bombing raids in Darwin. The Applicant stated that her late husband was discharged with nervous dyspepsia and emotional problems and that after leaving the service he had four bouts of pneumonia, one of which was prior to the marriage, and three after. Further she stated that in later years he used a Ventolin spray to assist with his breathing difficulties, which seemed to get progressively worse. In 1988 he was ill for three weeks in bed, during which time a nebuliser was used, and a second opinion was obtained resulting in a CAT Scan, the diagnosis of a brain tumour, his admission to Port Macquarie Hospital and later transfer to Prince Henry Hospital for neurosurgery. In response to questions from the Respondent, the Applicant said that in November 1987 they had travelled to New Zealand. There had been no changes in the late veteran's behaviour, but he had been unwell for three months prior to his final illness, and there were times when she had observed him sitting under a tree gasping, and finally, on a day she went to tennis, he did not get out of bed and remained there for three weeks prior to his hospital admission in June 1988.MEDICAL EVIDENCEDr Dunn

Evidence

Evidence Before The Court

In response to questions from the Respondent, the Applicant said that in November 1987 they had travelled to New Zealand. There had been no changes in the late veteran's behaviour, but he had been unwell for three months prior to his final illness, and there were times when she had observed him sitting under a tree gasping, and finally, on a day she went to tennis, he did not get out of bed and remained there for three weeks prior to his hospital admission in June 1988.MEDICAL EVIDENCEDr Dunn The clinical notes from Dr Dunn include a note to the Respondent stating that within their file:"I would note that there is evidence of acute respiratory infection but not of long standing respiratory disease." (Exhibit R1, p11) At page four of Dr Dunn's clinical notes, there is a letter to Dr Dunn from Dr Epstein, a consultant physician dated 14 June 1985 in which it is stated:"He had known chronic obstructive airways disease. He was taking bibramycin, ventolin and brondecon." (Exhibit R1, p4) Through June 1984 to December 1984 there is evidence of the late veteran being treated for flu on two occasions and bronchitis on one occasion, requiring antibiotics and treatment for cough on each occasion (Exhibit R1, pp19-20). In May 1985 the late veteran was again treated for flu with antibiotics and cough medication. In June 1995 the late veteran was treated for acute asthma, was hospitalised and was treated with antibiotics, ventolin inhaler and cough medication as well as Bricanyl, with lung function tests showing a reduced FEV1 (forced respiratory volume) of 1.47 – which is noted as being 66 per cent (Exhibit R1, p23). Further evidence of mild upper respiratory tract infection in August 1985 (p24) and commenced on prednisolone 5mgs dosage daily in October 1985 for polymyositis rheumatica (p26). A further episode of cough is noted in mid February 1986 with a repeat of lung function tests and treatment with vibramycin, brincanyl and ventolin. In late February 1986 the late veteran suffered further respiratory difficulties, requiring further antibiotics and an increased dose of prednisolone, which was decreased over the ensuing month to 1mg twice daily. In June 1986 the late veteran was noticed to be a little cyanosed, and in August 1986 he had a further episode of flu. Because of increased muscular pain his dosage of prednisolone was increased in late 1986, but decreased again in the early months of 1987, and was again increased in mid 1987 and varied over the next 12 months on the level of muscular pain and well being. The late veteran suffered from respiratory infections in September and October 1987, prior to a continuance of his complaint of muscular pains and bad flu in early May 1988, which lingered and eventually a diagnosis of a brain tumour was made after a CAT Scan in early June 1988 (Exhibit R1).Dr Rodriguez Dr Rodriguez, a specialist anaesthetist and a specialist in palliative care stated, in a report dated 18 October 1999, that as a consequence of reviewing the late veteran's medical file at Calvary Hospital the following matters were evident:(a) the diagnosis of chronic obstructive airways disease is documented in the medical record and the referring letter from Prince Henry Hospital; and(b) there is ample documentation in the notes of delirium, confusion and disorientation which could be worsened by hypoxia secondary to the emphysema.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent contends that the chronic obstructive airways disease from which the late veteran is alleged to have suffered, did not contribute to nor aggravate the primary cause of death. To support his contention the Respondent relies upon the opinion of Dr Breslin.consideration and findings This matter, in the Tribunal's view, has evolved into a complex issue as a consequence of particular clinical material being less than detailed as regards the clinical description of the late veteran's circumstances. The Tribunal recognises that this may have occurred as a consequence of the dominance of the dominant clinical condition, once diagnosed. As a consequence of the Tribunal's review of the Applicant's evidence and the various clinical notes of Dr Dunn, Prince Henry Hospital, Hastings District Hospital, Calvary Hospital and the opinions of Drs Rodriguez and Breslin and the two death certificates, the Tribunal makes the following findings of fact:(a) that for a number of years prior to his final diagnosis of brain tumour and admission to hospital in June 1988, the late veteran suffered intermittently from respiratory tract infection and a cough for which he was treated with antibiotics, bricanyl on occasions, ventolin inhaler, becotide inhaler and prednisolone, as well as having recorded a forced expiratory volume in one second of less than 1.57 on three occasions and a ratio of FEV1 to forced vital capacity of between 66 per cent and 72 per cent on three occasions (Dr Dunn's notes);(b) that in June 1985 Dr Epstein, a consultant physician, stated that the late veteran "had known chronic obstructive airways disease" (Exhibit R1, p4);(c) that the letter of referral from Hastings District Hospital to Prince Henry Hospital dated 4 June 1988 (T11, p41), the clinical notes of Prince Henry Hospital (T11, p54), the clinical discharge summary of Prince Henry Hospital dated 22 June 1988 (T11, p50) and the clinical notes of Calvary Hospital (Exhibit R1) all nominate that the late veteran suffered from and was being given medication for chronic obstructive airways disease;(d) that the late veteran commenced smoking whilst on operational service in Darwin and that a smoking habit was well developed by the time he left the service in 1944 (Applicant's evidence);(e) that the late veteran's dominant diagnosis that led to his hospitalisation and treatment in June 1988 was a glioma of the right fronto-parietal lobe of the brain;(f) that the late veteran was treated with varying degrees of moderate to heavy sedation and restraint during the last weeks of his life and that he was not cooperative with taking oral medication, in that he was confused, delirious, restless, disorientated and aggressive at varying times; and(g) that the late veteran died at Calvary Hospital on the evening of 3 July 1988, having required oxygen therapy during the afternoon. As a consequence of the Tribunal's finding of facts, the Tribunal further finds that the late veteran suffered from chronic outflow limitation as defined in paragraph 2 of Statement of Principles ("SOP") Instrument no 136 of 1996. In so finding the Tribunal has noted the continued reference to such a disorder in many of the clinical notes, but more importantly notes the various readings in Dr Dunn's notes, where a vitallegraph was used to measure the late veteran's forced expiratory volume in one second and the forced vital capacity in 1985 and 1986, and that paragraphs 1(a) and (b) of the definition are satisfied. The Tribunal's finding in relation to this diagnosis is made on the balance of probabilities.