Turner and Repatriation Commission

Case [2002] AATA 799

DECISION AND REASONS FOR DECISION [2002] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1331

VETERANS' APPEALS DIVISION          )          
           Re      JOAN HASTE TURNER  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M J Sassella, Senior Member Dr M E C Thorpe, Member            

Date12 September 2002

PlaceSydney

Decision      The tribunal sets aside the decision under review and decides that the veteran died as a result of the war-caused disease of malignant neoplasm of the lung.  The applicant qualifies for a war Widow Pension with effect from 26 August 1997  
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – War Widow Pension – metastatic cancer primary unknown – malignant neoplasm of the lung – war-caused smoking as cause of disease causing death decision set aside
PROCEDURE – concurrent evidence taken

Veterans' Entitlements Act 1986 ss 7(1)(a), 11(1), 14(3), 20(2), 120(1), (3), (4).
Statement of Principles 35/2001 concerning malignant neoplasm of the lung.

Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 402
Cooke, Repatriation Commission v (1998) 90 FCR 307
Deledio, Repatriation Commission v (1998) 49 ALD 193
Smith, Repatriation Commission v (1987) 74 ALR 537
Temple and Repatriation Commission, Re [2001] AATA 490

REASONS FOR DECISION

12 September 2002           Mr M J Sassella, Senior Member Dr M E C Thorpe, Member   

HISTORY OF APPLICATION

  1. On 7 October 1997 Joan Haste Turner ("the applicant") lodged an informal claim form with the Department of Veterans' Affairs ("the DVA") for a War Widow Pension (T5). 

  2. On 1 December 1997 the applicant lodged a formal claim form with the DVA for War Widow Pension (T6).  The applicant's husband, Maurice John Turner ("the veteran") was said to have died from frequency of vomitings secondary to superimposed urinary tract infection (T6/28) and it was the applicant's contention that his service would have exposed him to asbestos lining in gun turrets.  It was this exposure to asbestos that she said led to a general deterioration in his health from around 1954 and eventually to his death on 25 August 1997.

  3. On 11 December 1997 the Repatriation Commission ("the respondent") decided that the veteran's death was not related to service (T8).  The respondent could find no link between the veteran's condition and his service.  The evidence did not raise a reasonable hypothesis connecting the death of the veteran with his service.

  4. On 9 March 1998 the applicant lodged a request with the DVA for a review of her application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T9).

  5. On 16 April 1998 the DVA wrote to the applicant informing her that it had elected not to conduct a s 31 review of her application because there was no additional evidence that would alter the respondent's determination of 11 December 1997 (T10).

  6. On 1 May 1998 the applicant sent additional evidence to the DVA with the intention of obtaining a s 31 review (T11). She attached her own statement and a "claimant report – cigarette smoking". In…

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Turner and Repatriation Commission [2002] AATA 799
Case
[2002] AATA 799
Decision Date

CaseChat Overview and Summary

The case of Turner and Repatriation Commission involved a widow's application for a War Widow Pension, challenging the decision of the Veterans' Review Board (VRB) to deny her claim. The applicant, Mrs Turner, was the widow of a deceased veteran who had served in the Australian Army during World War II and had died from metastatic cancer of unknown primary origin. The tribunal was required to consider whether the veteran's cancer was caused by his war service, as this was a prerequisite for Mrs Turner to receive the pension.

The primary legal issue was whether the veteran's cancer was a war-caused disease, thus linking his death to his service. The tribunal had to determine if the hypothesis that the veteran's smoking habit, developed during his war service, led to his cancer was reasonable. The applicable standard of proof was the reasonable hypothesis standard for the causal link and a balance of probabilities for the diagnosis.

The tribunal found that there was no reliable expert medical evidence linking the veteran's cancer to a primary malignant neoplasm of the colon, as the applicant had argued. The medical experts' reports did not provide a definitive diagnosis of the cancer's origin. Consequently, the tribunal could not reasonably apply the relevant Statement of Principles to the case. Furthermore, the tribunal concluded that there was insufficient evidence to establish a reasonable hypothesis that the veteran's death was related to his war service. Therefore, the tribunal affirmed the VRB's decision to deny the War Widow Pension.

Orders

Orders of the court

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Background

Background to the litigation

The applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the tribunal") on 18 August 2000 (T1).BACKGROUND The veteran rendered operational service in the Australian Army from 26 December 1941 to 18 April 1946 in World War II (T2). The Applicant and the veteran were married on 13 February 1942. He retired on 19 May 1978 (T5/29). The veteran died on 25 August 1997 from "(a) Frequency of vomitings secondary to super imposed urinary tract infection" and "(b) Cancer abdomen – undifferentiated large cell – primary unknown metastasis – abdomen" (T6/28).HEARING The tribunal convened a hearing in this matter in Sydney on 24 August 2001. Mr M Vincent of counsel represented the applicant and Mr P Godwin of the DVA Advocacy Service the respondent. Oral evidence was presented from Professors Shepherd and Langlands. The tribunal had access to the following documents which were taken into evidence: There was insufficient time for final submissions at the hearing. The tribunal allowed the parties time to provide written submissions. Submissions due from the applicant on 20 September 2001 were eventually provided on 28 May 2002 (ex AH1). At the hearing it had been agreed that the respondent would have three weeks in which to respond. In the event the respondent's submissions were received on 21 June 2002 (ex AH2). On 14 August 2002 the applicant's solicitor informed the tribunal that the applicant had no response to make to the respondent's submissions.FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS The tribunal makes the following uncontroversial findings. The veteran was born on 7 December 1914 and died on 25 August 1997 (T6/21, T6/28). The applicant was married to the veteran on 13 February 1942 (T6/22). The tribunal therefore finds that Mrs Turner, the applicant, was the deceased veteran's dependant in accordance with s 11(1) of the Act. This is a required first step if Mrs Turner is to succeed in her claim. The applicant served in the army and rendered operational service from 26 December 1941 until 18 April 1946 (T2). This was eligible war service for the purpose of a War Widow Pension (s 7(1)(a) of the Act). The applicant lodged valid claims, one informal on 7 October 1997 (T5, ss 14(3), 20(2) of the Act) and a formal claim on 1 December 1997 (T6, s 14(3) of the Act). The date of effect of any decision favourable to the applicant would be 26 August 1997, the day after Mr Turner died. The standard of proof in relation to whether Mr Turner's death was due to a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to diagnosis of the kind of death that affected Mr Turner is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).the hypothesis As stated in the applicant's final submissions (ex AH1) the hypothesis raised was that Mr Turner developed a war-caused smoking habit that caused the cancer in his lung (or, although much less likely, in his pancreas, bladder or kidney) that metastasised into the cancer in his abdomen and that Mr Turner died from complications associated with that secondary cancer.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 25 May 1998 the DVA again wrote to the applicant informing her that it had elected not to conduct a s 31 review of her application (T12). The application then went before the VRB.reviewable decision On 10 July 2000 the VRB affirmed the Repatriation Commission decision of 11 December 1997 (T14). It was the applicant's contention that the Statement of Principles ("SoP") no 23 of 1996 concerning malignant neoplasm of the colon was relevant and that the origin of the veteran's cancer was in his large bowel. The applicant submitted that the veteran, who was a social smoker (5-6 cigarettes a week) before his service, started smoking 25-30 cigarettes a day during his army service. The VRB found that there was no reliable expert medical evidence that the cancer originated in the colon, and further that the medical reports of Drs Lubowski and Felbel provided no definitive diagnosis of the origin of the cancer. In order for the veteran's cancer to meet the requirements of the relevant SoP, the cancer would have to meet the SoP definition of malignant neoplasm of the colon and, without a definitive medical opinion, this could not be done. The VRB needed to be satisfied that it was more probable than not that the cancer in the veteran's abdomen was related to a primary malignant neoplasm of the colon. Neither of the medical experts came to this conclusion. Therefore the VRB was unable to apply the SoP, not being reasonably satisfied that the veteran suffered from the relevant condition. The VRB found no evidence relating the death of the veteran to his war service and therefore no reasonable hypothesis was raised to this effect. The applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the tribunal") on 18 August 2000 (T1).BACKGROUND The veteran rendered operational service in the Australian Army from 26 December 1941 to 18 April 1946 in World War II (T2). The Applicant and the veteran were married on 13 February 1942. He retired on 19 May 1978 (T5/29). The veteran died on 25 August 1997 from "(a) Frequency of vomitings secondary to super imposed urinary tract infection" and "(b) Cancer abdomen – undifferentiated large cell – primary unknown metastasis – abdomen" (T6/28).HEARING The tribunal convened a hearing in this matter in Sydney on 24 August 2001. Mr M Vincent of counsel represented the applicant and Mr P Godwin of the DVA Advocacy Service the respondent. Oral evidence was presented from Professors Shepherd and Langlands. The tribunal had access to the following documents which were taken into evidence: There was insufficient time for final submissions at the hearing. The tribunal allowed the parties time to provide written submissions. Submissions due from the applicant on 20 September 2001 were eventually provided on 28 May 2002 (ex AH1). At the hearing it had been agreed that the respondent would have three weeks in which to respond. In the event the respondent's submissions were received on 21 June 2002 (ex AH2). On 14 August 2002 the applicant's solicitor informed the tribunal that the applicant had no response to make to the respondent's submissions.FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

Ratio Decidendi

Legal Principle Established

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