Poulton and Repatriation Commission (Veterans' entitlements)
[2017] AATA 566
•24 April 2017
Poulton and Repatriation Commission (Veterans' entitlements) [2017] AATA 566 (24 April 2017)
Division:VETERANS’ APPEALS DIVISION
File Number:2015/3319
Re:Daphne Poulton
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:24 April 2017
Place:Sydney
The decision under review, being the decision by the Repatriation Commission on 4 June 2015 to refuse Mrs Daphne Poulton’s claim for the war widow’s pension, is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
Veterans’ affairs – entitlements – war widow’s pension – hypertension causing death – where hypertension caused by consumption of alcohol – whether there is a causal connection between consumption of alcohol and operational service – decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Collins and Repatriation Commission [2009] FCAFC 90
SECONDARY MATERIALS
Statement of Principles concerning Hypertension (No. 64 of 2013)
Statement of Principles concerning Ischaemic Heart Disease (No. 2 of 2016)
REASONS FOR DECISION
Dr L Bygrave, Member
24 April 2017
INTRODUCTION
The applicant, Mrs Daphne Poulton, applied to the Administrative Appeals Tribunal for a review of the decision by the Repatriation Commission made on 4 June 2015 that refused her claim for a war widow’s pension in accordance with the Veterans’ Entitlements Act 1986 (Cth) (the Act).
The matter was heard in Sydney on 20 March 2017. Mrs Poulton was unable to attend the hearing either in person or by telephone due to her poor health. Mrs Poulton had legal representation and her daughter, Mrs Sandra Eke, gave evidence at the hearing.
BACKGROUND
The late veteran, Mr Clifford Poulton, was born in 1919. He enlisted in the Australian Army on 1 October 1941 and was medically discharged on 1 August 1944. This period of time constitutes ‘eligible service’ as defined in the Act.
Mr Poulton married Mrs Poulton in January 1944 and their daughter, Mrs Eke, was born in 1950.
Mr Poulton’s death certificate stated that he died on 19 June 2013 at the age of 93 years due to:
(I) (a) Multiorgan failure (2 days)
(b) bowel ischaemia (2 days)
(II) (a) ischemia heart disease
(b) type II diabetes.[1]
[1] Exhibit T, p 18.
ISSUES
The issues for determination by the Tribunal are:
(a)the kind of death suffered by Mr Poulton, within the meaning of sections 120A and 120B of the Act; and
(b)whether the death of Mr Poulton was connected with his eligible war service.
RELEVANT LEGISLATION
In accordance with sections 120A and 120B of the Act, the relevant Statement of Principles (SOP) in this matter are:
(a)Hypertension (No. 64 of 2013);
(b)Ischaemic Heart Disease (No. 2 of 2016).
Pursuant to subsection 196B(14)(d) of the Act, a factor causing or contributing to death is related to service if ‘it was contributed to in a material degree by, or aggravated by, that service’.
The standard of proof in this matter is that of reasonable satisfaction, or the balance of probabilities.
EVIDENCE
The Tribunal considered evidence from Associate Professor Richard Haber (Consultant Physician, Cardiologist), Dr Robert Smith (Consultant Cardiologist), Mrs Poulton and Mrs Eke. This evidence is set out below.
Associate Professor Richard Haber (Consultant Physician, Cardiologist)
Associate Professor Haber provided a report dated 10 February 2016 and gave oral evidence at the Tribunal hearing. In his report, Associate Professor Haber stated:
[Mr Poulton] presented to St George Hospital at the age of 93 on 17 June 2013 with rectal bleeding… As part of treatment his aspirin were stopped… He died during that admission. He had coronary artery bypass graft, due to ischaemic heart disease for treatment of which he took aspirin. His general condition and age precluded investigations.[2]
[2] Exhibit A2, p 2.
Associate Professor Haber contended that, while Mr Poulton died of multi-organ failure and bowel ischemia, ischaemic heart disease contributed to his death.
Based on Mrs Poulton’s statement that her husband drank ‘more than six beers a day’ and ‘three scotches on Saturday and Sunday’, which equated to 480 grams of alcohol per week,[3] Associate Professor Haber opined that Mr Poulton satisfied factor 6(b) of SOP No. 64 of 2013 which connected his alcohol consumption with the clinical onset of hypertension. Associate Professor Haber concluded:
[Mr Poulton’s] drinking habit almost certainly contributed to his hypertension and therefore to his ischaemic heart disease.
He was treated with aspirin for his ischaemic heart disease which contributed to his rectal bleeding which was a terminal event.[4]
[3] Exhibit A2, p 3.
[4] Exhibit A2, p 4.
At the Tribunal hearing, Associate Professor Haber acknowledged his opinion relied on the accuracy of Mrs Poulton’s statement about her husband’s alcohol consumption. He also accepted his understanding of the medical evidence was that Mr Poulton was treated for hypertension in 1990 and 2012, and developed ischaemic heart disease on or about 2000.[5]
[5] Exhibit A2, p 3.
Dr Robert Smith (Consultant Cardiologist)
Dr Smith was Mr Poulton’s Cardiologist from 1997, when he presented with advanced ischaemic heart disease requiring multivessel bypass surgery. The Tribunal was provided with Dr Smith’s clinical notes and medical letters dated 10 February 1997, 18 March 1997, 4 June 1997, 2 November 2000, 14 May 2009, 4 November 2009, 15 April 2014, 2 September 2014 and 17 March 2015.
In a report dated 18 March 1997, Dr Smith noted Mr Poulton ‘has had hypertension for 40 years and has been on medication all the time’.[6] This would place the onset of Mr Poulton’s hypertension from the late 1950s.
[6] Exhibit A6.
In reply to questions from an RSL Advocate, Dr Smith reported on 17 March 2015:
Mr Poulton had advanced severe diffuse coronary artery disease which was certainly potentiated by his underlying risk factors of being a long-standing sufferer of hypertension and later in life a diabetic. He also had underlying hyperlipidaemia. His heavy drinking habit certainly could have been a potential factor in predisposing him to hypertension and perhaps the development of diabetes. There is no doubt that all of these factors interacted with each other to contribute to the development of advanced vascular disease which culminated in his death.
Dr Smith also reported on 4 November 2009 that Mr Poulton was admitted to Sutherland Hospital in September 2009 ‘with post haemorrhoidectomy PR bleeding requiring transfusion…’.
Mrs Daphne Poulton
Two written statements by Mrs Poulton were provided to the Tribunal. In a statement dated 29 April 2014, Mrs Poulton recalled:
I first met my husband about 1939. … When I first met him he did not drink alcohol of any sort whatsoever. Also he did not smoke tobacco products.
Cliff enlisted in the Army in October, 1941… I noticed after he was on [sic] the Army for about 6 months he started to drink alcohol and smoke cigarettes. When I asked him about this he would say that everybody in the Army smoked and drank alcohol. He told me it was peer pressures and the stresses of Army life with all the hard training and prospects of being sent overseas to fight the Japanese.
I noted that as time went on he started to drink heavier. It was mainly beer at first but then he would start drinking spirits as well. Sometimes when he was on leave we would go out and he would get fairly inebriated…. We married in 1944 and his drinking beer and spirits did not decrease….
When the war finished we lived at Hurstville. My husband joined the Earlwood Bardwell Park RSL and he was on the committee. It was common for him to come home after he appeared to have drunk too much. … I asked him why he drank so much beer and spirits and he would just say that the pressures of service life started it all and I just became used to drinking so much.
I would estimate that when he was home he would drink more than six beers a day and on weekends he would drink wine and spirits on the weekend. He continued this throughout our married life…. [emphasis added][7]
[7] Exhibit T, p 13.
In another written statement dated 31 May 2016, Mrs Poulton recalled:
[my] husband did not drink before his service. I recall he started drinking and smoking during service. He … continued to drink until he went to the nursing home.
… my husband drank a large amount – about four glasses of scotch every day, sometimes more … [emphasis added][8]
[8] Exhibit A1.
An alcohol questionnaire completed by Mrs Poulton on 10 April 2014 also stated that Mr Poulton drank beer, wine and spirits every day; he consumed ‘at least 6 standard drinks of beer every day when available and wine and spirits on a weekend’ [emphasis added].[9] In 2000, this amount ‘reduced to 2-3 beers a day & 2 scotches’, and in 2012, ‘2 or 3 glasses of scotch a day’.[10]
[9] Exhibit T, p 16.
[10] Exhibit T, p 17.
Mrs Sandra Eke
Mrs Eke is the daughter of Mr and Mrs Poulton. She provided a written statement dated 19 November 2015 and gave oral evidence at the Tribunal hearing.
In her written statement, Mrs Eke recalled that her father ‘would have a couple of scotches every night and a beer in the afternoon’ [emphasis added].
At the Tribunal hearing, Mrs Eke said she lived with her parents until she married in 1977; she then left home until she returned to live with her parents in 2010 after her father became ill.
Mrs Eke told the Tribunal that her father always followed a routine: on weeknights after work her father would have a beer and then a couple of scotches at home; on a Saturday, he would stop for a beer at the pub on the way home from work.
CONSIDERATION
Mrs Poulton’s legal representative submitted that Mr Poulton’s service related alcohol consumption caused his hypertension, which in turn caused his ischaemic heart disease that was the cause of his death; and consequently, Mrs Poulton is entitled to the war widow’s pension. Based on Mrs Poulton’s evidence, she contended that:
·Mr Poulton consumed an average of at least 500 grams of alcohol per week for at least six months before the clinical onset of hypertension as set out in factor 6(b) of SOP No. 64 of 2013; and
·Mr Poulton had hypertension before the clinical onset of ischaemic heart disease as required by factor 9(1) of SOP No. 2 of 2016.
There is a paucity of information before the Tribunal to support this contention, in part due to Mrs Poulton being unable to attend the Tribunal hearing and clarify the information in her statements.
The written statements of Mrs Poulton in relation to the amount of alcohol consumed by her husband are neither internally consistent nor consistent with the evidence of Mrs Eke. I note that Mrs Poulton’s statement dated 31 May 2016 and Mrs Eke’s evidence indicate that Mr Poulton did not consume at least 500 grams of alcohol per week. Due to these discrepancies, I find that I am unable to place any significant weight on Mrs Poulton’s evidence.
As Associate Professor Haber’s opinion relies on Mrs Poulton’s evidence about her husband’s alcohol consumption, I also find that I am unable to place any weight on Associate Professor Haber’s opinion.
I have regard to the decision by the Full Federal Court in Collins and Repatriation Commission,[11] in which their Honours decided that a medical cause of death must be the medical condition/s that were the ultimate cause of death and it is not sufficient for a medical condition to hasten the death.
[11] [2009] FCAFC 90, at [82].
Based on Mr Poulton’s death certificate, I am satisfied that he died of multiorgan failure and bowel ischemia. I am not satisfied, on the balance of probabilities, that his death resulted from ischaemic heart disease and hypertension caused by his consumption of alcohol that was connected with his eligible war service.
DECISION
The decision under review, being the decision by the Repatriation Commission on 4 June 2015 to refuse Mrs Poulton’s claim for the war widow’s pension, is affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.
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Associate
Dated: 24 April 2017
Date(s) of hearing: 20 March 2017 Counsel for the Applicant: R Mansted, 11 Wentworth Chambers Solicitors for the Applicant: S Khan, Kemp & Co Lawyers Solicitors for the Respondent: A Markus, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Causation
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Procedural Fairness
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Statutory Construction
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