Piscioneri and Repatriation Commission

[2010] AATA 995

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 995

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5962

VETERANS' APPEALS  DIVISION		)
Re		MARIE THERESA PISCIONERI

Applicant

VETERAN:  JOSEPH   AUGUSTUS   PISCIONERI   (DECEASED)

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date13 December 2010  

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - war widow's pension - death of veteran from metastatic pancreatic cancer - no reasonable hypothesis raised connecting the veteran's death with the circumstances of his service - decision under review affirmed

Veterans' Entitlements Act 1986, ss 8, 13(1) 120, 121, 196B(14)

Statement of Principles - Chronic Pancreatitis (No. 57 of 2001)

Statement of Principles - Malignant Neoplasm of the Pancreas (No. 45 of 2005)

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Hill (2002) FCAFC 192

East v Repatriation Commission (1987) FCR 517

Knight v Repatriation Commission [2010] FCA 1134

Repatriation Commission v Deledio [1998] 49 ALD 193

Hill v Repatriation Commission 2009 FCAFC 91

Byrnes v Repatriation Commission [1993] 177 CLR 564

REASONS FOR DECISION

13  December 2010 Ms A F Cunningham (Senior Member)   

1.      The applicant, Mrs Marie Theresa Piscioneri, lodged a claim for a war widow's pension based on the death of her husband, Joseph Augustus Piscioneri (the veteran).  On 21 September 2009 the Veterans' Review Board decided to affirm a decision of the Repatriation Commission which refused the claim on the basis that the late veteran's death was not due to war service.  Mrs Piscioneri seeks a review of that decision by this Tribunal. 

background

2.      The veteran served in the Australian Army from 23 March 1943 until 5 June 1946.  The whole of his war service constitutes operational service for the purposes of the Veterans' Entitlements Act 1986 (VE Act) because he served outside Australia. 

3.      The veteran died on 25 October 2008 at the age of 86 years. 

4.      Mrs Piscioneri and the veteran married on 28 December 1946. 

5.      Mrs Piscioneri's claim for war widow's pension was made on 16 January 2009 and as a result the earliest date of effect for payment of pension if the Tribunal were to determine the claim in her favour would be 26 October 2008, being the day after the veteran's death.

6.      At the time of his death the veteran had the following accepted disabilities:

oBilateral Sensorineural Hearing Loss

oOsteoarthrosis Affecting Both Knees

oAcquired Cataracts in Both Eyes

His claim for hypertension had not been accepted.

7.      The cause of the veteran's death as stated in the Medical Certificate of Death was metastatic pancreatic cancer. 

the issues

8.      The issues for the Tribunal to determine are the kind of death suffered by the veteran and whether the veteran's death was war-caused.

the legislation

9.      Mrs Piscioneri's claim for pension is made pursuant to section 13(1) of the VE Act which states that if the death of a veteran was war-caused the Commonwealth is liable to pay pension to a dependant of the veteran.   A widow is defined as a dependant under section 11 of the VE Act.

10.     A war-caused death is defined in section 8 of the VE Act.  The relevant provision in this case is sub-paragraph (b) which reads:

"The death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran".

11.     The standard of proof is described in section 120 of the VE Act.  As the veteran rendered operational service the Tribunal must apply the "reasonable hypothesis" standard of proof set out in sections 120(1) and 120(3) of the Act.  Section 120A of the VE Act states that the reasonableness of a hypothesis is to be assessed by reference to Statement(s) of Principles. 

kind of death

12.     Both parties to the appeal submitted that the Tribunal could accept on the balance of probabilities that the kind of death suffered by the veteran was metastatic pancreatic cancer  as identified in the Medical Certificate of Death. 

13.     The expression "kind of death" has been accepted as the medical cause of death (Hill v Repatriation Commission 2009 FCAFC 91 at 25).  None of the medical experts who were called to give evidence suggested that there was any other underlying cause of the veteran's death other than as stated in the death certificate.  Professor Cade said he would not question the Certificate of Death as "it had been very soundly based" and been confirmed on a number of fronts and treated by specialists in that area. 

14.     There is considerable documentation which confirms that the underlying cause of the veteran's death was metastatic pancreatic cancer and the Tribunal so finds. 

was the veteran's death war-caused

15.     The leading case that sets out the process that should be followed in the application of sections 120(1) to 120(3) of the VE Act is the Full Court decision in Repatriation Commission v Deledio [1998] 49 ALD 193 at 206 which is:

"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".

16.     Thus the first task for the Tribunal is to assess whether the material before it raises a hypothesis connecting the veteran's death with the circumstances of his service.  This is a question for the Tribunal to determine on the basis of all of the material before it.   

17.     The term "hypothesis" was considered in the recent Federal Court decision of Knight v Repatriation Commission [2010] FCA 1134 where Katzmann J referred to the Shorter Oxford English Dictionary (1993) definition as:

"A proposition put forward merely as a basis for reasoning or argument, without any assumption of its truth.  A supposition, an assumption; esp. one made as a starting- point for further investigation of research from known facts".

18.     Katzmann J went on to refer to the meanings of the term given by the Full Court in East v Repatriation Commission (1987) FCR 517 where it said at 533 that a reasonable hypothesis is "an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities" and that it was insufficient that the hypothesis be merely open (see para 38 of Knight v Repatriation Commission).

19.     The High Court stated in Byrnes v Repatriation Commission [1993] 177 CLR 564 at 569:

"The material before the Commission (or Tribunal) must raise some fact or facts which give rise to the hypothesis".

20.     In this case Mr Mackie has sourced the hypothesis from the elements of factor 6(d) in the Statement of Principles concerning Malignant Neoplasm of the Pancreas (No. 45 of 2005).  Mr Mackie stated that Mrs Piscioneri relies on the hypothesis that Mr Piscioneri had chronic pancreatitis for at least two years before the clinical onset of malignant neoplasm of the pancreas.  Mr Mackie made no submissions as to how the veteran's death was related to the circumstances of his service or whether there was any evidence to connect the veteran's death with his service. 

21.     In Repatriation Commissionv Hill (2002) FCAFC 192 the Full Court commented on the primary Judge's statement that it was sufficient in order to satisfy sections 120(3) and 120A(3) of the Act for the hypothesis relied upon by Mr Hill to fit the SOP and said at paragraph 53:

"... As the authorities show, however, in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP.  In order to satisfy these provisions, the material must "raise" or "point to" such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP ..."

And further at paragraph 55:

"Where s 120A(3) of the Act applies to a claim and there is a relevant SoP in force, whether or not an element is essential to a hypothesis will depend upon the terms of the SoP. As Goldberg J said in Repatriation Commission v McKenna (1998) 52 ALD 72 at 80:

For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by the Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles. ..." .

22.     Once a hypothesis is raised that connects the veteran's death with the circumstances of his service, it will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SOP.  (See Deledio v Repatriation Commission (1997) 47 ALD 261 at 274 to 275)

23.     At paragraph 57 the Full Court said in Repatriation Commission v Hill (supra):

"Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable".

And at para 59:

"Plainly enough, before making a finding of this kind, the Tribunal must consider all the material before it. Having done so, the question whether the material raises or points to a relevant hypothesis of connection is essentially a matter for the Tribunal. As the primary judge emphasised, proof of facts is not in issue at this stage: Byrnes at 571 and Deledio at 97-98. The Tribunal may conclude that the material does not raise or point to a hypothesis that fits the template of a relevant SoP and that the hypothesis cannot, therefore, be accepted as reasonable. This decision cannot be the subject of an appeal under s 44(1) of the Administrative AppealsTribunal Act 1975 ("AAT Act"), unless, in making it, the Tribunal has acted otherwise than in accordance with the law".

24. What is required in step 1 of the Deledio process is for the Tribunal to consider all of the material before it which must include the circumstances of the veteran's service which potentially contributed to his death. Howevever there was no evidence led by the applicant regarding the circumstances of the veteran's service. The only documentation that related to service was that contained in the T Documents submitted pursuant to section 37 of the AAT Act which included the decisions under review, copies of the veteran's service and casualty forms, the applicant's claim for pension and the letter requesting review. 

25.     None of the medical evidence produced related the circumstances of the veteran's service to his death.  The evidence of the applicant regarding the veteran's health did not refer to the circumstances of his service.  It was Mrs Piscioneri's evidence that the veteran had never been a particularly well man and although he was very unwell in the last two years of his life, for as long as she had known him, he had a delicate digestive system.  Mrs Piscioneri stated that the veteran had always been careful with what food he ate and that certain food did not agree with him.  There was no relevant evidence regarding the state of the veteran's health during his service or that any of the circumstances of his service for example diet, contributed adversely to his state of health.

26.     The applicant in this case has simply ignored the provisions of the VE Act that requires the veteran's death to be connected to his eligible service.  Section 8 states that the death of a veteran should be taken to have been war-caused if it "arose out of, or was attributable to, any eligible war service rendered by the veteran".   Section 13, with respect to eligibility for pension, requires that the death of a veteran was war-caused.  Section 120(1) requires that the death of the veteran relates to the operational service rendered by him.  Section 196B(14) states that a factor in a Statement of Principles is related to service rendered by a person if it "... arose out of, or was attributable to, that service".   The Statements of Principles with respect to Malignant Neoplasm of the Pancreas and Chronic Pancreatitis both include provisions that require one of the factors to be related to relevant service rendered by the person.  These provisions are not considered until the third stage in the Deledio process, that is, after the Tribunal is satisfied that the material raises a hypothesis pursuant to step 1 and that there is a relevant SoP pursuant to step 2.

27.     However in the current case, the Tribunal is unable to consider the terms of any relevant SoP because the applicant has failed to establish a reasonable hypothesis. 

conclusions

28.     The Tribunal accepts the evidence that the cause of the veteran's death was metastatic pancreatic cancer and that he served in the Australian army from 23 March 1943 to 5 June 1946 which constitutes operational service under the VE Act.   The Tribunal is however satisfied beyond reasonable doubt that there is no basis upon which it can determine that the veteran's death was war-caused because there is simply no evidence connecting the circumstances of his service with his death.  The applicant has failed to raise a reasonable hypothesis which connects the veteran's death with the circumstances of his service.  For these reasons the Tribunal determines to affirm the decision under review and reject Mrs Piscioneri's claim for a war widow's pension. 

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:    R Hunt (Administrative Assistant)

Date/s of Hearing  18 November 2010
Date of Decision  13 December 2010
Counsel for the Applicant         Mr Craig Mackie
Solicitor for the Applicant          Mackie Crompton , Barristers and Solicitors
Counsel for the Respondent     Mr Gerald Purcell
Solicitor for the Respondent    Repatriation Commission