Ritchie and Repatriation Commission
[2004] AATA 298
•19 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/74
VETERANS' APPEALS DIVISION ) Re PEGGY CONSTANCE RITCHIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date19 March 2004
PlaceHobart
Decision The decision under review is affirmed. [Sgd B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Appeals - disability - eligible war service - widow's pension - onset of condition - cause of death - whether war-caused - asthma - bronchitis - smoking habit - hypertension - ischaemic heart disease - Statements of Principle (SoP) - Veterans' Review Board (VRB).
Veterans' Entitlements Act 1986 - ss120(1), 120(3), 120A.
Statements of Principle issued by the Repatriation Medical Authority
Guide to the Assessment of Rates of Veterns' Pensions (GARP), 5th Edition 1998.
Deledio v Repatriation Commission (1998) FCA 391
Byrnes v Repatriation Commission (1993) 177 CLR 564
Meehan v Repatriation Commission (2001) FCA 597
Whitworth v Repatriation Commission (2003) FCA 1530
Bushell v Repatriation Commission (1992) 109 ALR 30
REASONS FOR DECISION
19 March 2004 Associate Professor B W Davis AM (Part-time Member) The Application
1. The applicant, Peggy Constance Ritchie, seeks review of a decision made by a delegate of the Repatriation Commission on 6 April 2001, subsequently affirmed by a decision of the Veterans’ Review Board on 1 March 2002, that the death of her husband Peter Clement Ritchie was not related to war service (i.e. not war-caused).
The Issue
2. The issue is whether Peter Clement Ritchie’s death was service related.
Eligible Service
3. Peter Clement Ritchie (the “veteran”) was born on 18 July 1918 and died on 21 January 1979.
4. The veteran served in the Royal Australian Navy from 22 October 1940 to 13 December 1945.
Standard of Proof
5. In respect of the late veteran’s operational service (which is also eligible service) subsections 120(1) and 120(3) of the Veterans’ Entitlements Act 1986 apply. The Tribunal is therefore required to find that his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied, if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect his death with the circumstances of the particular service rendered.
6. As the claim was lodged after 1 June 1994, the Tribunal is also required to apply s120A of the Act in reaching its decision. This means the Tribunal is required to assess the reasonableness of the hypothesis in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. That Statements are binding on decision-makers at all levels, including the Veterans’ Review Board.
Causation
7. The Act provides that a veteran’s death is war-caused, if it, in effect:
· Resulted from an occurrence on operational service;
· Arose out of or was attributable to eligible war service;
· Resulted from an accident while travelling to and from duty;
· Was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or
· Was due to a condition that was contributed to in a material degree or aggravated by eligible war service.
Background
8. The veteran, Peter Clement Ritchie, died on 21 January 1978 at the age of 60 years. The cause of death was certified to be:
(i) (a) Acute pulmonary oedema 5 minutes
(b)Bronchial asthma 4 days
(c) Acute bronchitis 4 days
(ii) Hypertension 1 year
9. The death certificate was signed by a Dr Gollan, himself now deceased. Dr Gollan’s medical notes are no longer available and some hospital records relating to Mr Ritchie have also been destroyed.
10. The applicant, Peggy Constance, Ritchie, lodged a claim for widow’s pension on 20 February 2001. A delegate of the Repatriation Commission decided on 6 April 2001 that Peter Clement Ritchie’s death was not related to service. The delegate had attempted to distinguish between the stated cause of death and circumstances which had led to death, including prior medical conditions and Mr Ritchie’s smoking habit. A medical opinion by a DMO (Department Medical Officer) dated 2 July 1998 indicated that pulmonary oedema was the mode of dying, not the underlying cause of death. The DMO indicated there was no reason to believe the veteran’s kidney disease or hypertension contributed to his death and the only conclusion to be drawn was that he had died of an acute and severe asthmatic attack.
11. The relevant Statement of Principle (SoP) for asthma at that time was Instrument No 59 of 1996, as amended by Instrument No. 75 of 1997. Smoking was not one of the factors listed as involved in the development of asthma. The delegate of the Repatriation Commission considered other factors, such as inability to obtain appropriate clinical management of the disease or exposure to occupational antigens, but none raised a reasonable hypothesis connecting the death of the veteran with operational service. The decision-maker was therefore unable to accept the death as war-caused.
12. Mrs Peggy Constance Ritchie disagreed with this assessment and sought review by the Veterans’ Review Board on 5 July 2001. The VRB conducted its hearing in Launceston on 1 March 2002. At the VRB hearing Mrs Ritchie attended and gave oral evidence. She was accompanied by her daughter, who was not called. Mrs Gill James MHA, represented the applicant at the hearing, there was no appearance on behalf of the Repatriation Commission.
13. The VRB noted that the original decision-maker had viewed the veteran’s death as being caused by bronchial asthma and acute bronchitis. The applicant disagreed with this assessment, arguing that despite Dr Gollan’s notations, her husband was not and never had been asthmatic. He had suffered hypertension for several years, not one year as Dr Gollan had recorded. She consider Dr Gollan’s statements on the death certificate as not particularly accurate and noted comments by Dr Henry Brigden querying why if asthma was the cause of death, it had failed to respond to treatment when the veteran was in hospital. She also drew attention to medical notes by Dr Dorney, diagnosing hypertension with co-existing renal problems in April 1975. Mr Ritchie had required a nephrectomy and while there was a marked improvement following surgery, he continued to have related problems, including a large hernia.
14. Mrs Ritchie claimed there were at least three alternative hypotheses about her husband’s disabilities and subsequent death. The first was her belief her husband may well have been a sufferer of sleep apnoea, given the choking and wheezing he experienced at night. She claimed this was not a bronchial sound but `something else’.
15. The applicant’s second hypothesis was that her husband had a form of obstructive airways disease and this resulted from his war-caused smoking habit. Dr Dorney had noted in 1975 “some degree of AOD”, even though her husband had become a non-smoker three years earlier in 1972. The applicant drew attention to a smoking questionnaire she had completed in 1998, claiming the veteran commenced smoking during operational service in 1941, that his rate of smoking was about 20 cigarettes per day and only stopped permanently around 1976, when he was diagnosed with hypertension.
16. Mrs Ritchie’s third contention was that the hypertension itself was caused by his war-caused kidney disease and smoking habit. Dr Gollan had grossly under-estimated the length of time her husband had suffered hypertension.
17. The VRB considered Mrs Ritchie to be a credible and earnest witness, but did not consider it could go behind the medical evidence, since it lack discretion to accept her claims without considering all available evidence and legislative requirements. While there might be questions about the likelihood of death in hospital from asthma in 1979, the VRB noted a comment by Dr Brigden following detailed scrutiny of the medical evidence:
“… on the currently available information there is nothing to indicate that Mr Ritchie’s death was due to a service-related smoking habit. On the evidence of the death certificate it was presumably due to a severe asthmatic attack.”
Dr Brigden also wrote on 16 March 2001:
“… There is no reason to believe that the nephrectomy had any significant bearing on this health. Normal renal function only requires the equivalent of about half of one kidney.”
18. Guided by this medical evidence, the death certificate and the lack of any other helpful medical evidence to the contrary, the VRB found that the cause of death was a severe asthmatic attack. The relevant SoP for asthma was No 85 of 2001. The VRB also noted an earlier SoP No 56 of 1996 and used that as well.
19. Regarding the contention of sleep apnoea, the VRB considered this was at best speculative, there being no medical evidence to support the claim. The hypothesis concerning obstructive airways disease also suffered from a dearth of supportive medical evidence, other than a brief and general comment by Dr Dorney in 1975. The VRB did not make specific comment about kidney disease and possible linkage to smoking, but merely noted that when all evidence was taken into account, there was insufficient material to raise a reasonable hypothesis that the veteran’s death was related to service. The VRB therefore affirmed the decision under review.
20. The applicant then lodged an application for review by the Administrative Appeals Tribunal dated 20 June 2002.
Facts and Contentions
21. A statement of facts and contentions was submitted by the applicant on 26 March 2003, but subsequently amended at commencement of the AAT hearing on 21 January 2004. The primary contentions were that the veteran’s cause of death was ischaemic heart disease linked to service-related smoking, that hypertension had existed for several years and not one year as Dr Gollan had stated that the period of smoking was from 1941 until 1972, rather than 1976, although there was some speculation about the final date. It was also claimed the veteran had smoked at least 20 pack years of cigarettes and the clinical onset of ischaemic heart disease had occurred within 20 years and not 5 years of cessation.
22. The respondent agreed with much of the background details and factual statements of the case, but stated it was for the Tribunal to determine whether the veterans’ death was attributable to ischaemic heart disease and/or hypertension and whether the veteran’s death was war-caused.
The AAT hearing
23. The AAT hearing was conducted in Hobart on 21 January 2004. The applicant was represented by Mrs O McTaggart of counsel and the respondent by Mr M Castle.
24. After clarifying some elements of the statement of facts and contentions, counsel for the applicant stated that the principal issue was whether Peter Clement Ritchie, the veteran, had died from a war-related condition and whether one of the contributing factors in his death was ischaemic heart disease, caused by his war-related smoking habit. It was also intended to call a Dr Sands, to show that prior to death the veteran was probably suffering ischaemic heart disease and it was incorrect to describe the cause of death as bronchial asthma, when it was really cardiac asthma leading to acute pulmonary oedema. There was also evidence of an enlarged heart, but it was Mr Ritchie’s longstanding smoking habit, service induced, which was the underlying cause.
25. Mrs Peggy Constance Ritchie, the applicant, was then sworn and responded to a number of questions relating to her husband’s smoking habit and disabilities. She stated that Peter Clement Ritchie had smoked approximately 20 cigarettes a day for many years and she thought he had given up in 1976 or perhaps a little earlier in 1972. She disagreed with a diagnosis his death had been caused by asthma; while there had been instances of it within the family, her husband had never had to use a “puffer”, he was short of breath, but did not have a wheezing chest, but rather a gurgling noise in the throat. It was so bad she had to sleep in a separate room. It was not asthma, but other factors which had caused his death.
26. Dr John Sands, medical practitioner, was then called as witness, making reference to a report he had prepared for counsel dated 18 December 2002, and other notes, as well as documents in the case. Dr Sands noted that medical records by others relating to Mr Ritchie had earlier been destroyed, as had been some hospital records.
27. Dr Sands made reference to a note written by a Dr Dorney dated 28 February 1978, in which Dr Dorney had made reference to an “an apex beat beyond the nipple line”.. Dr Sands said this was indicative of an enlarged heart. He considered that if there were other symptoms, such as lack of energy, malaise or shortness of breath, these were factors which might indicate the heart was perhaps failing. Ischaemic heart disease is the most common form of heart failure and once the symptoms are present a prognosis of five years plus or minus is likely.
28. Dr Sands then commented on the death certificate, noting a strong association between smoking and arterial disease, leading to myocardial ischaemia, heart disease and failure. In Mr Ritchie’s case there was no prior indication of asthma and it simply could not result in death in four days within a hospital setting, the death certificate did not make sense and it would appear Dr Gollan had mistakenly written bronchial asthma when he really should have written cardiac asthma.
29. Counsel for the respondent queried Dr Sands about the role of “puffers”, given evidence Mr Ritchie had once possessed one but never used it. Dr Sands said there were several kinds of puffers for different purposes, but he could go no further than that. He agreed that if Dr Gollan had treated Mr Ritchie at home for a few days before he went to hospital, the death certificate was not a brief fait accompli, Dr Gollan should have known what the causes were, nonetheless he still queried what the death certificate stated. Dr Sands further noted the evidence the veteran possessed an enlarged heart, but there was no detail about that matter.
30. In written closing submissions, counsel for the applicant analysed the medical evidence she claimed indicated the veteran suffered from ischaemic heart disease and did not suffer from asthma. In particular she emphasised Dr Sand’s evidence that an enlarged heart, coupled with heavy smoking habit, the veteran’s high blood pressure, “gurgling” airway and lack of energy were all symptomatic of prospective heart failure. Counsel relied upon Mrs Ritchie’s evidence, to claim there was no history of asthma and the death certificate was incorrect in that regard.
31. Counsel for the respondent argued that the death certificate constituted the only tangible evidence available, being completed by Dr Gollan who had been the veteran’s GP for several years and who accompanied him from home to the hospital where he died. Hypotheses conducted by Mrs Ritchie and Dr Sands were speculative, based upon a presumption Mr Ritchie suffered ischaemic heart disease, while ignoring the possible existence of asthma, even though Dr Gollan had prescribed a “puffer” at one stage. There was not sufficient material to warrant the Tribunal rejecting the prima facie evidence of the death certificate, thus the decision under review should be affirmed.
Analysis
32. The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, giving due weight to statutory provisions and government policy, as well as any relevant case determinations.
33. Given that this case is to be decided in accordance with ss120(1) and (3) of the Act, including s120A, the appropriate procedure to adopt is identified in Deledio v Repatriation Commission (1998) FCA 391 (22 April 1998) namely:
“(a)Determine whether the material before the Tribunal 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.
(b)If the material does raise an hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11) of the Act.
(c)If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.
(d)The Tribunal must then consider under s120(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 or disability. If not so satisfied, the claim must succeed.”
34. It should be noted that the focus of attention has shifted during this case. The original decision under review is that made on 6 April 2001, that the death of Peter Clement Ritchie was not war-caused. The prospective causation link being investigated at that time was whether service-related smoking was a cause or contributed to bronchial asthma, hypertension and ultimately death of the veteran from pulmonary oedema. Mrs Ritchie had rejected the notion her husband suffered from asthma and posed three alternative scenarios, which were not accepted by the VRB. The Board ruled there was insufficient material to raise a reasonable hypothesis that the veteran’s death was related to operational service. On the basis of further medical evidence from Dr Sands, Mrs Ritchie then lodged an application for review by the AAT, with a principal contention her husband had died from ischaemic heart disease linked to service-related smoking.
35. Following Deledio the first matter for the Tribunal to decide is whether any prospective hypothesis can be identified which might relate the cause of the veteran’s death to claimed circumstances of service. Such an hypothesis must not be fanciful or absurd, but no question of fact arises at this stage. (Bushell v Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 177 CLR 564).
36. It is clear from medical and other evidence available that the veteran had a significant smoking habit, claimed to have started during Naval service and extending later until 1972, perhaps 1976. Mr Ritchie only ceased smoking when hypertension was diagnosed and it is common medical opinion that smoking may be a factor in subsequent disabilities, including heart disease. On this basis a tentative hypothesis is raised, linking service and disabilities.
37. The next matter to be determined is whether a SoP exists, authorised by the Repatriation Medical authority, relevant to the claimed disabilities or claimed cause of death. The applicant refutes the notion of asthma as a cause of death and relies upon a claim of ischaemic heart disease as principal cause. The relevant SoP for ischaemic heart disease is Instrument No 38 of 1999, especially Factor 5(3)(iii) relating to smoking.
38. The origins of Mr Ritchie’s smoking habit are not fully explained, however neither of the parties has disputed that the habit was substantial and of many years duration from 1941 until at least 1972. In a smoking statement completed by the applicant in 1998 it is claimed the veteran smoked about 20 cigarettes per day. If this is true, then the claim of smoking at least 20 pack years of cigarettes, or the equivalent thereof in tobacco products, would meet criteria specified in Factor 5(e)(iii) of the SoP for ischaemic heart disease. It would also meet the requirement of clinical onset of heart disease within 20 years of cessation, as Mr Ritchie gave up smoking in 1972 or perhaps 1976 and died in January 1979.
39. But all of this is predicated upon a claim by the applicant that the cause of death was ischaemic heart disease; it remains for the Tribunal to determine whether this is likely. Mrs Ritchie claims her husband was not asthmatic, and Dr Sands says it is probable that Dr Gollan should have written “cardiac asthma” rather than “bronchial asthma” on the death certificate, but all of this is speculative even if possible or probable. Taken collectively, the veteran’s enlarged heart, smoking habit, breathing difficulties, hypertension and lack of energy are symptomatic of prospective heart failure. As against this, the respondent is correct in noting that the death certificate is the only tangible evidence, written by a GP with experience of Mr Ritchie’s situation. On balance the Tribunal is bound to consider both scenarios in dealing with the final step in Deledio, which is to determine whether Mr Ritchie’s death was service-related or war-caused.
40. Here there are difficulties also, since there is no evidence other than Mrs Ritchie’s claim in 1998 that the veteran’s operational service was stressful. No evidence was tendered to the Tribunal about his service and both the original decision-maker and the VRB decided there was insufficient material to raise a reasonable hypothesis linking service conditions and the veteran’s death. The Tribunal notes that the Act is intended to be beneficial, but having examined all evidence anew, the Tribunal concurs with earlier decision-makers that there is insufficient material to raise a reasonable hypothesis in this case.
Decision
41. The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A M (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 21 January 2004
Date of Decision 19 March 2004
Counsel for the Applicant Mrs O McTaggart
Counsel for the Respondent Mr M CastleSolicitor for the Respondent Department of Veterans’ Affairs
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