Stephen Wildman and Repatriation Commission
[2013] AATA 476
[2013] AATA 476
Division VETERANS' APPEALS DIVISION File Number(s)
2011/5107
Re
Stephen Wildman
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 9 July 2013 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
VETERANS’ AFFAIRS – disability pension – applicant rendered service in Royal Australian Navy – death of fellow apprentice and friend in motor vehicle accident – smoking – whether ischaemic heart disease was defence-caused – relevant Statement of Principles does not uphold connection with service – disease not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986, ss 68, 70(5), 120(4), 120B(3), 196B(14)(d) & (f)
Statement of Principles – Ischaemic Heart Disease No. 90 of 2007
Repatriation Commission v Smith (1987) 15 FCR 327
Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Law [1980] FCA 92
Kattenberg v Repatriation Commission (2002) 73 ALD 365
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
5 July 2013
INTRODUCTION
This is a review of a decision made by the Veterans’ Review Board (“VRB”) on 27 October 2011.
The decision of the VRB affirmed an earlier decision of the Repatriation Commission which had refused Mr Wildman’s claim under the Veterans’ Entitlements Act 1986 (“the Act”) that the ischaemic heart disease from which he now suffers was defence-caused.
Mr Wildman served in the Royal Australian Navy from 11 January 1975 to 25 March 1979. The whole of that period of service was “defence service” within the meaning of that term in section 68 of the Act.
The Repatriation Commission had previously accepted a number of other medical conditions suffered by Mr Wildman as being defence-caused. Those accepted conditions are sensorineural hearing loss, tinnitus, lumbar spondylosis, and ingrown toe nail left big toe. As a result Mr Wildman became entitled to a disability pension at 50% of the General Rate. If it is established that Mr Wildman also suffers ischaemic heart disease he would then be entitled to be paid the pension at a higher rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury or disease which was “defence-caused”. An injury or disease is “defence-caused” if it “arose out of or was attributable” to any defence service. It is sufficient if the injury or disease was “contributed to in a material degree by or aggravated by” any defence service.
Section 70(5) of the Act relevantly provides as follows:
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b) subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c) the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease.”
The standard of proof to be applied to the particular case varies according to the nature of the service rendered. For applicants who have rendered “operational service”, service in a “peace-keeping force” or service determined to be “hazardous service” there is a special reverse standard of “beyond reasonable doubt”. However, as is the case here, for those who rendered other “defence service” the standard of proof is “reasonable satisfaction” (see s 120(4) of the Act).
The “reasonable satisfaction” standard of proof has been held to mean the ordinary civil standard of proof or “on the balance of probabilities” (see Repatriation Commission v Smith (1987) 15 FCR 327).
Prior to 1994 many theories had been advanced to link a particular injury or disease to the person’s defence service with little or no supporting medical/scientific evidence. To address that concern the Statement of Principles (“SOP”) Scheme was introduced for claims lodged on or after 1 June 1994. That Scheme requires that any alleged causal link between an injury or disease and the person’s service must be supported by factors set out in the relevant SOP. Those factors are considered to be based on sound medical/scientific evidence as determined by the Repatriation Medical Authority.
Section 120B(3) provides as follows:
“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the connection that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
THE ISSUES
The principal issues to be determined by the Tribunal are:
(a)Does Mr Wildman suffer from ischaemic heart disease?
(b)If so, is that medical condition defence caused?
DOES MR WILDMAN SUFFER FROM ISCHAEMIC HEART DISEASE?
The initial step the Tribunal must take is to determine whether Mr Wildman suffers from the claimed condition of ischaemic heart disease. It is not in dispute between the parties, that he does suffer from that condition. The Tribunal so finds.
It has been held that the clinical onset of the condition occurs when the symptoms of the condition are sufficiently clear to enable a medical practitioner to diagnose that condition. (See Robertson v Repatriation Commission (1998) 50 ALD 668).
The medical evidence in this case establishes to the Tribunal’s satisfaction that the clinical onset of the applicant’s ischaemic heart disease occurred when he suffered a myocardial infarction on 24 June 2008. Myocardial infarction satisfies the definition of ischaemic heart disease in paragraph 3(b) of the SOP concerning Ischaemic Heart Disease No. 90 of 2007. The symptoms of that disease were diagnosed following his admission to hospital on 24 June 2008.
During the hearing reference was made to a further condition namely “adjustment disorder”. It is not however argued by the applicant that that condition is a claimed condition for the purpose of entitlement under the Act. That condition was advanced simply as part of the causal chain. It is contended that Mr Wildman suffered that condition following the death of Steven Pedersen. This in turn, it is claimed, resulted in the increased smoking by Mr Wildman which it is alleged eventually caused the ischaemic heart disease.
THE RELEVANT SOP AND CAUSATION
As mentioned in paragraph nine above any alleged causal link must be supported by a factor set out in the relevant SOP.
It is agreed by the parties that the relevant SOP concerning Ischaemic Heart Disease is No. 90 of 2007.
Mr Wildman contends that the cause of his ischaemic heart disease was his increased smoking which resulted from his defence service and in particular from the effect on him of the death of a friend and colleague Steven Pedersen in a motor cycle accident in 1976.
Paragraph 6 of the relevant SOP details a range of factors which may cause ischaemic heart disease. It is agreed by the parties that the factor which best fits Mr Wildman’s particular circumstances is paragraph 6(h) which provides as follows:
“(h) where smoking has not ceased prior to the clinical onset of ischaemic heart disease;
(i) Smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii) Smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease;”
The Tribunal is satisfied that Mr Wildman was smoking at least ten and up to fifty cigarettes a day for some years before the clinical onset of the disease. He had not ceased smoking prior to that clinical onset on 24 June 2008. The respondent concedes and the Tribunal finds that the cigarette quantities in factor 6(h) are therefore satisfied.
As the Tribunal has found that Mr Wildman does suffer from ischaemic heart disease and as the requirement in the SOP relating to the quantity of cigarettes is also satisfied the remaining critical issue is the causal link between Mr Wildman’s defence service and his cigarette smoking.
Section 196B(14) of the Act states:
“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b) it arose out of, or was attributable to, that service, or
…
(d) it was contributed to in a material degree, by, or was aggravated by, that service;”
In Repatriation Commission v Law [1980] FCA 92 the Federal Court considered the meaning of the word attributable and said:
“It seems clear the expression “attributable” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided there is a contributing cause”.
It is therefore sufficient if the smoking of the requisite number of cigarettes was contributed to in a material degree or that it would not have occurred but for the rendering of defence service. (See section 196B(14)(d) and (f) and also Kattenberg v Repatriation Commission (2002) 73 ALD 365.
DID THE DEATH OF STEVEN PEDERSEN CONTRIBUTE IN A MATERIAL DEGREE TO THE ISCHAEMIC HEART DISEASE SUFFERED BY MR WILDMAN?
In the applicant’s Statement of Facts and Contentions it is alleged that the cause of his ischaemic heart disease was as follows:
“The applicant contends that ischaemic heart disease was caused by trauma. Being witness to death of Apprentice Pederson, when my smoking habit increased to 10-12 cigarettes a day and increased after service”.
Mr Fitz, the RSL advocate who represented Mr Wildman at the hearing, informed the Tribunal that the applicant’s sole contention was that the death of Mr Pedersen had caused Mr Wildman to suddenly increase the number of cigarettes he smoked eventually resulting in the ischaemic heart disease from which he has suffered since its onset in 2008.
Mr Wildman and Mr Pedersen joined the navy as young recruits in the same intake in 1975. They then commenced the same apprenticeship course together as Shipwrights. Along with other apprentices they shared living quarters for the first six months. After that period the two lived in separate quarters but sat together in class during their apprenticeship course. The two went ashore together from time to time when on leave. Mr Wildman said he considered Mr Pedersen to be a close friend and mentor.
On the 27 March 1976 Mr Wildman and some other apprentices had been in Sydney on leave. They were returning by car to their base at Nirimba when they came across a motor vehicle accident. Mr Wildman, who was a passenger in the car, saw a truck and a motor cycle and also a person lying on the roadway he said:
“… there was a body and a heap of people standing around”.
A policeman on duty waved them on. When they arrived back at the base at Nirimba the apprentice on duty at the gate informed them that Steven Pedersen had been killed in the accident.
The Tribunal is satisfied that Mr Wildman and Mr Pedersen had become friends. They had first met in January1975 and so at the date of the accident they had been friends for a period of approximately 14 months.
As stated above the applicant’s Statement of Facts and Contentions alleges that the cause of his increased smoking was “… being witness to the death of Apprentice Pedersen …”. He told Dr Kernutt that “I had witnessed an accident that led to my smoking”. (Dr Kernutt’s report of 23 January 2012, page 2)
The facts establish, however, that Mr Wildman did not witness the actual accident or death. He was in a car being driven past the scene following the accident in which Mr Pedersen had been fatally injured.
Dr Ratcliff, the psychiatrist called on behalf of the applicant, said in evidence that the impact on the applicant was as a result of his friend’s death rather than witnessing a person, who he did not then recognise, lying on the roadway at the scene of the accident.
The Tribunal is satisfied on the material before it that Mr Wildman was shocked and distressed by the tragic death of his friend and naturally suffered a period of grief.
Dr Ratcliff said in his medical report of 7 November 2012 (A4) that:
“It is probable but not a matter or record that your reaction to your friend’s death may have amounted to an Adjustment Disorder”.
In his oral evidence to this Tribunal Dr Ratcliff agreed that it was “possible” that Mr Wildman may have suffered an adjustment disorder after the death of his friend. He said he was unable now to say that Mr Wildman did suffer that condition because it had not been properly investigated at the time.
Dr Kernutt, a consultant psychiatrist said in a report dated 21 January 2013:
“In forming my opinion in this matter I have based my conclusions on the information provided to me by Mr Wildman and the documentation in his Navy records. Whilst I cannot entirely exclude the possibility that Mr Wildman did experience psychological symptoms sufficient to satisfy a diagnosis for an Adjustment Disorder within three months of his friend’s death, I could find no objective evidence to substantiate such a conclusion. I am therefore unable to link the onset of Mr Wildman’s smoking and nicotine addiction to the incident involving the death of his friend”.
Dr Kernutt, who the Tribunal found to be a persuasive expert witness, said it was of significance that there was no reference in Mr Wildman’s psychological reports, compiled after the accident, to any psychological symptoms arising from his friend’s death.
Dr Kernutt said in his report of 23 July 2012:
“I am unable to state with any certainty the cause of Mr Wildman’s cigarette smoking. The reasons why people start smoking cigarettes are complex and multi-factorial. Once commenced nicotine addiction maintains the habit although psychological factors are also usually involved.
I note that Mr Wildman is of the strong belief that his cigarette smoking was caused by his reaction to learning of his friend’s death in a motorcycle accident in 1976 during his Naval apprenticeship. Mr Wildman appears to have a clear recollection of the events that occurred in relation to his friend’s death. It is understandable that at the time this might have had a significant psychological impact upon him. However there is no mention in Mr Wildman’s Naval record, nor in the psychologist’s reports, that his friends death resulted in any specific psychological symptoms”.
Dr Kernutt then concluded:
“I am unable to directly link Mr Wildman’s onset of cigarette smoking to his friend’s death. As an isolated psychosocial stressor his friend’s death alone is not an adequate explanation or sufficient factor for the onset and maintenance of his cigarette addiction”.
The Tribunal is not satisfied, on the medical evidence before it, and on the balance of probabilities, that Mr Wildman suffered adjustment disorder or anxiety disorder or indeed any psychiatric illness or psychological symptoms as a result of Mr Pedersen’s death.
The Tribunal is not satisfied that Mr Wildman’s cigarette smoking suddenly increased as a result of the death of his friend. It finds that he started experimenting with cigarettes as a child. He had smoked some cigarettes when in the navy prior to the death of Mr Pedersen. During his four year career in the navy he gradually increased the number of cigarettes he smoked. Following his discharge from the navy in 1979 at age 20 he continued over the next 29 years to further increase the number of cigarettes he smoked until the daily total had reached approximately 50 per day at the time he suffered the myocardial infarction in 2008.
Mr Wildman may well have had some drinks and smoked some cigarettes the night of Mr Pedersen’s death. The Tribunal is not satisfied, however, that his friend’s death had any causative effect on Mr Wildman’s smoking or that it contributed in a material degree or any degree, to the onset of his ischaemic heart disease.
It is noted in particular that although naval clinical psychologist Mr Van Daatselaar took a detailed history from Mr Wildman when he interviewed him on 5 September 1978 (R2 page 8) there is no reference at all to the death of his friend. If that death had such a serious psychological impact and changed Mr Wildman’s behaviour causing him to suddenly become a regular drinker and smoker one would have expected the death to have been mentioned by Mr Wildman and recorded by the psychologist. In fact the report of 5 September 1978 records that there were “no problems at Nirimba”.
The Tribunal is not satisfied that factor 6(h) or any other factor in SOP No. 90 of 2007 is related to the relevant service rendered by Mr Wildman as required by the SOP.
The Tribunal therefore finds that SOP No. 90 of 2007 does not uphold the contention that the ischaemic heart disease suffered by the applicant is, on the balance of probabilities, connected with his defence service.
CONCLUSION
As the relevant SOP does not uphold the contention that the applicant’s condition of ischaemic heart disease is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to section 120B(3) of the Act, is not reasonably satisfied that the condition is defence caused.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) [Sgd]
Administrative Assistant
Dated: 9 July 2013
Date(s) of hearing 4 June 2013 Advocate for the Applicant Mr B Fitz, RSL Launceston Solicitors for the Respondent Mr K Rudge, Advocacy Section, Department of Veterans' Affairs
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