Schofield and Repatriation Commission - [2000] AATA 1048

DECISION AND REASONS FOR DECISION [2000] AATA 1048

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1996/1146

VETERANS' APPEALS DIVISION       )
           Re      MARY AGNES SCHOFIELD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date28 November 2000
PlaceSydney

Decision      The decision under review is set aside. In substitution therefor the Tribunal decides that the Applicant qualifies for a War Widow Pension with a date of effect of 22 July 1995.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow pension – war-caused death – cerebrovascular accident – ischaemic heart disease – clinical onset – statement of principles

Veterans' Entitlements Act 1986 ss 6A, 7(1)(a), 8(1), 11, 13, 120, 120A

Keeley v Repatriation Commission (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

28 November 2000 Mr M J Sassella, Senior Member Dr P D Lynch, Member

APPLICATION

On 18 September 1995 Mary Schofield ("the Applicant") lodged a claim for a War Widow Pension under s 14 of the Veterans Entitlements Act 1986 ("the Act") (T5). On 9 October 1995 the Repatriation Commission ("the Respondent") decided (T2) to reject the Applicant's claim on the basis that the death of the deceased veteran, Mr Charles Schofield, was not causally related to service.
On 22 January 1996 the Department of Veterans' Affairs ("DVA") received a letter from the Applicant seeking to appeal against the decision (T12). This request was referred as normal to the Veterans' Review Board ("VRB").
On 23 July 1996 the VRB decided to affirm the decision under review (T15). On the same day the VRB sent a letter to the Applicant to inform her of the decision (T16).
On 24 September 1996 the Applicant lodged with the Tribunal an application for review of the decision (T1).
At the hearing the Applicant was represented by Mr Vincent of counsel and the Respondent was represented by Mr Modder, an advocate from the Department of Veterans' Affairs.
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken in as evidence (Exhibit TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 A8 A9 R1 R2 Report of Dr Cameron Report of Dr Cameron Applicant's Statement of Facts and Contentions Report of Dr Schiller Report of Dr Cameron Applicant's Hypotheses Report of Dr Foster Report of Dr Foster Report of Dr Foster Respondent's Statement of Facts and Contentions Clinical records from Calvary Hospital 3 March 1997 29 May 1997 11 August 1998 1 September 1998 8 May 2000 undated 13 February 1990 17 April 1990 20 July 1990 19 August 1998 various

LEGISLATION

Section 13 of the Act provides that a pension is payable to dependants of a veteran whose death is "war-caused". Section 11 of the Act defines dependant as including the widow of a veteran.
The veteran rendered operational service as defined by section 6A of the Act from 19 January 1942 until…

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 Schofield and Repatriation Commission

Details

AGLC: Schofield and Repatriation Commission [2000] AATA 1048
Case: [2000] AATA 1048
Decision Date: 28 November 2000

CaseChat Overview and Summary

The matter of Schofield and Repatriation Commission involves a claim for a war widow pension following the death of Mr Schofield, who was a veteran. The dispute centres on whether Mr Schofield's death was caused by his war service, specifically if his cerebrovascular accident and ischaemic heart disease were related to his service. The case was heard by the Administrative Appeals Tribunal (AAT).

The primary legal issue before the court was whether Mr Schofield's death could be classified as war-caused under section 13 of the Veterans' Entitlements Act 1986. This involved examining the evidence regarding Mr Schofield's medical conditions, particularly his anxiety neurosis, colon cancer, and the cerebrovascular accident, and determining if these conditions were connected to his war service. The court had to assess the Statements of Principles concerning strokes, ischaemic heart disease, and hypertension to ascertain if Mr Schofield's conditions met the criteria outlined in the legislation.

The Tribunal found that Mr Schofield's anxiety neurosis was war-caused, as evidenced by Dr Cameron's reports, which detailed Mr Schofield's severe chronic anxiety and panic attack disorder. Dr Cameron's reports further established that Mr Schofield's hypertension and cerebrovascular accident were related to his anxiety, which was in turn linked to his war service. The Tribunal concluded that Mr Schofield's death was war-caused in accordance with section 13 of the Act, thereby substituting the decision under review with a decision that the Applicant qualifies for a War Widow Pension with effect from 22 July 1995.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Schofield had an unpleasant final year of life. He was diagnosed with cancer of the colon. He spent a lengthy time in hospital. He had hallucinations in which he thought he was back in the army. He did not trust doctors with needles. He found it difficult in hospital to recover from his stroke and his operation. DR CAMERON'S EVIDENCE Dr Cameron had provided a number of reports. These included T14 (6 June 1996), Exhibit A1 (3 March 1997), Exhibit A2 (29 May 1997) and Exhibit A5 (8 May 2000). In T14 Dr Cameron said he could not link Mr Schofield's colon cancer or alcohol consumption to his war service. However, he suffered from anxiety neurosis which was war-caused. Mr Schofield's death from colon cancer "definitely was hastened by his chronic severe anxiety and stroke." Had he signed the death certificate he would have added the anxiety and "CVA" to the list of contributing factors on the death certificate. In Exhibit A1 Dr Cameron said that in over 20 years of busy general practice Mr Schofield was by far the most severely anxious patient he had seen. Dr Cameron wrote that he believed that the colon cancer killed Mr Schofield but he could have continued living at home longer if he had not been afflicted with anxiety. His death was therefore hastened by his chronic severe anxiety and stroke. In Exhibit A2 Dr Cameron referred to Mr Schofield's mild persistent hypertension between 1984 and 1995. He had episodes of moderate hypertension during bouts of extreme anxiety. His hypertension was well controlled but definitely occurred and was a risk factor for his cardio-vascular accident ("CVA"). Anxiety can cause increase in blood pressure and Mr Schofield had severe chronic anxiety to such a degree that the link was acceptable. He could not attribute Mr Schofield's blood pressure to direct war service, except as due to anxiety. In Exhibit A5 Dr Cameron addressed the Statements of Principles ("SoPs") relevant to strokes, IHD and hypertension. He said there was a reasonable hypothesis that Mr Schofield's CVA was related to his war service in that, as required in the SoP, he suffered from panic disorder before the clinical onset of the stroke; he was unable to do more than mild physical activities for at least five years before the CVA; and labile hypertension existed before the stroke. Mr Schofield had the most severe, chronic phobia anxiety and panic attack disorder possible and this did not cease before the stroke. The criteria for panic disorder and minimum symptoms as described in the SoP on IHD were easily met. Dr Cameron believes that Mr Schofield did not reach any physical activity greater than a slow walk (less than 120 metres) which is about 3 METS. Mr Schofield suffered labile hypertension associated with his panic states. None of these conditions have any causal relationship to colorectal cancer. However, the discharge note from Calvary Hospital (T7 by Dr Rodrigues) indicated that his stroke had left him confused with possible impaired swallowing and aspiration pneumonia. It is not unreasonable to suggest that this state hastened his death and should have been included as a contributing cause on the death certificate.

Decision

Reasons for decision

The Tribunal has concluded that Mr Schofield's death was war-caused in accordance with s 13 of the Act. DECISION The decision under review is set aside and substituted by a decision that the Applicant qualifies for a War Widow Pension with a date of effect of 22 July 1995.I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, MemberSigned: ..................................................................................... AssociateDate of Hearing 4 July 2000 Date of Decision 28 November 2000Counsel for the Applicant Mr M Vincent Representative for the Respondent Mr S Modder

Ratio Decidendi

Legal Principle Established

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