Slack and Repatriation Commission
[2000] AATA 886
•9 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q98/1105
VETERANS' APPEALS DIVISION )
Re KENNETH HARLAND SLACK
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date9 October 2000
PlaceBrisbane
Decision The Tribunal varies the decision of the Repatriation Commission dated 22 January 1998 which refused a claim for chronic bronchitis by determining that the condition chronic bronchitis is accepted as war-caused pursuant to the provisions of the Veterans' Entitlements Act 1986 and that the applicant is entitled to be paid disability pension at 50% of the General Rate with effect from 13 December 1996.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – entitlement – chronic bronchitis – reasonable hypothesis – credibility of applicant's evidence.
Veterans' Entitlements Act 1986
REASONS FOR DECISION
9 October 2000 Deputy President DP Breen, Presidential Member
This was an application for review of a decision of a delegate of the Repatriation Commission dated 22 January 1998. The applicant, Kenneth Harland Slack, was appealing that aspect of the decision which refused a claim for chronic bronchitis on the grounds that it was not war-caused. That aspect of the decision was affirmed on review by the Veterans' Review Board on 14 September 1998.
The matter was heard before me on 10 May 2000 in Brisbane. The matter was adjourned part-heard for the parties to organise assessment of impairment, which was finalised on 25 September 2000. Mr Hume of Counsel, instructed by Messrs Gilshenan and Luton, represented the applicant and Mr R Morison, Departmental Advocate, represented the respondent.
Oral evidence was give by Mr Slack and Dr M Heiner. The following documents were also admitted into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Report of Dr M Heiner dated 11.2.00
Exhibit 3 Service Chronology from the Defence Personnel Executive
Exhibit 4 Statement of Kenneth Harland Slack dated 4.8.99
Exhibit 5 Supplementary Statement of Kenneth Harland Slack dated 5.1.00
Mr Slack joined the Royal Navy in January 1952 and transferred to the Royal Australian Navy in September 1955. His periods of operational service are from 19 September 1955 to 18 October 1955 and then from 10 April 1957 to 25 June 1957. He left the Navy for two years in 1961 and was finally discharged in 1970. Due to Mr Slack's operational service, the standard of proof in these proceedings is the "reasonable hypothesis".
Mr Slack began smoking when he enlisted in 1952 but his smoking habit was quite light at that stage. After transferring to the Royal Australian Navy the applicant was sent to Kure, Japan. His smoking increased during this time due to the issue of free cigarettes and the stress of being in an operational area. It is the Tribunal's assessment that at this time the applicant was smoking around 20 cigarettes per day.
During 1957 the applicant was posted to the Far East Strategic Reserve. Once outside of the three mile limit, cigarettes were sold duty free at around 6 pence per packet. It was the applicant's evidence that he would buy the cigarettes by the 500 pack carton at that price. His smoking habit increased as a result of this increased availability of cigarettes and the stress of his duties. Mr Slack was a flight deck handler and during this operation the planes were flying 24 hours a day. Night take-offs were done whilst under power with no lighting. It was the applicant's evidence that he "nearly used to eat cigarettes during night operations due to the stress". It is the Tribunal's assessment that the applicant was smoking around 40 to 50 cigarettes per day during this period of operational service.
Mr Slack's smoking decreased slightly when he returned to Australia to around 20 to 25 cigarettes per day as the stressors were no longer present and the cigarettes were more expensive. After the HMAS Melbourne collided with the HMAS Voyager in 1964 his smoking increased to around 30 cigarettes per day and he was still smoking that amount in 1969 when the HMAS Melbourne collided with the HMAS Evans. After discharge in 1970, the applicant's cigarette consumption decreased to around 25 per day until he quit in 1982.
The Tribunal accepts the evidence of the applicant as to the conditions of his service and finds that these conditions led to an increase in his smoking habit. The Tribunal also accepts that the applicant has in the past under-estimated the level of his smoking habit as he did not want to prejudice a thorough investigation into his claim for asbestosis. The Tribunal accepts his oral evidence during the hearing as more accurately reflecting his smoking habit.
For a disease to be considered war-caused pursuant to Section 13 of the Veterans' Entitlements Act 1986, the applicant must satisfy the relevant Statement of Principles. Under the Statement of Principles for Chronic Bronchitis, the applicant is required to have smoked ten pack years by the time of clinical onset of chronic bronchitis. A "pack year" is defined as smoking one packet of 20 cigarettes per day for one year.
Medical evidence was given by Dr Maurice Heiner. Dr Heiner's letter dated 11 February 2000 stated that he believed Mr Slack had developed chronic bronchitis by 1965. Upon questioning by the Tribunal, Dr Heiner made the following statements:
"Now, to be strict to the definition, the definition of chronic bronchitis is if a person coughs and produces sputum for each and every day of a three month period over two years consecutively, the person, by definition, has simple chronic bronchitis. So if you go to the first paragraph of my letter, as I said, 'were productive of sputum which was present most days' – I didn't say every day – so on most days at age 30, by the strict criteria, he did not have simple bronchitis. So I think that at the age of 30, he was certainly in line for developing chronic bronchitis."
A statement of Mr Slack's was then put to the doctor, which read:
"I had a coughing fit every morning and was coughing up a fair amount of mucus at the end of the 70's and early 80's".
Dr Heiner then stated that in his view this would be consistent with the clinical onset of chronic bronchitis.
As such, it is the Tribunal's finding that the applicant would have smoked 10 pack years by the time of clinical onset of chronic bronchitis in the late 1970s. The level of tobacco consumption was directly related to the applicant's service. Therefore, the disease is war-caused. This leads the Tribunal to the question of assessment of incapacity. The applicant was assessed by the Repatriation Commission between June and September 2000 and was rated by Dr P Grant, the Senior Medical Officer, at 32 points which gives him a pension of 50% under the relevant table. The Tribunal accepts this assessment.
For the above reasons, the Tribunal varies the decision of the Repatriation Commission dated 22 January 1998 which refused a claim for chronic bronchitis by determining that the condition chronic bronchitis is war-caused pursuant to the provisions of the Veterans' Entitlements Act 1986 and that the applicant is entitled to receive disability pension at 50% of the General Rate with effect from 13 December 1996.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 10.5.00
Date of Decision 9.10.00
Counsel for the Applicant Mr R Hume
Solicitor for the Applicant Messrs Gilshenan and Luton
Counsel for the Respondent
Solicitor for the Respondent Mr R Morison, Departmental Advocate
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