Walkley and Repatriation Commission
[2006] AATA 923
•30 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/447
VETERANS’ APPEALS DIVISION
Re: ALFRED stewart WALKLEY
Applicant
And:REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr Egon Fice, Member
Date:30 October 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS’ AFFAIRS ‑ entitlement – operational service ‑ smoking ‑ ischaemic heart disease – whether war‑caused – date of cessation of smoking
Veterans’ Entitlements Act 1986 s 13, s 120(1), s 120A and s 196B(2)
Statement of Principles Instrument N° 53 of 2003
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
30 October 2006 Mr Egon Fice, Member
1. Mr A. Walkley is a World War II veteran with a number of accepted disabilities for which he receives a pension at 100 per cent of the general rate. Mr Walkley lodged a further claim with the Department of Veterans’ Affairs (DVA) on 29 April 2004 seeking to have ischaemic heart disease accepted as a war-caused disease. His claim was rejected by a delegate of the Repatriation Commission. His application for review by the Veterans’ Review Board (VRB) was also unsuccessful.
2. The Repatriation Commission accepts that Mr Walkley suffers from ischaemic heart disease and that Mr Walkley’s smoking, which he relies upon to establish a hypothesis connecting ischaemic heart disease with his army service, is connected to his operational service. Therefore, the only issues before the Tribunal are the extent of Mr Walkley’s smoking after 1949 and when he stopped smoking.
RELEVANT FACTS
3. Mr Walkley served in the Australian Army (the Army) from 14 January 1942 to 19 December 1946. He served in the South-West Pacific area and therefore the whole of his service constitutes operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
4. Mr Walkley started smoking in early 1942, after he was posted to Western Australia with a transport unit. At that time, Mr Walkley believes that he was smoking between one and two packets, each containing 20 cigarettes, per week. Shortly thereafter, he also took up smoking a pipe as well as cigarettes.
5. Mr Walkley’s level of smoking increased progressively throughout his service years and by the time he was discharged from the Army, he regarded himself as a heavy smoker consuming 20 cigarettes per day as well as up to seven ounces of pipe tobacco.
6. After being discharged from the Army, Mr Walkley said that he continued to smoke about the same quantity of tobacco until 1972. However, this aspect of Mr Walkley’s claim is controversial and it is dealt with in detail below.
7. Mr Walkley first noted symptoms of severe chest pain in July 1991. The Repatriation Commission does not dispute that the clinical onset of Mr Walkley’s ischaemic heart disease occurred in 1991.
THE LEGISLATIVE SCHEME
8. Eligibility for a service disability pension is set out in s 13 of the Act. Section 13(1) of the Act provides that where a veteran is incapacitated from a war‑caused injury or a war‑caused disease, the Commonwealth is, subject to the Act, liable to pay to the veteran, in the case of incapacity, a pension by way of compensation to the veteran in accordance with the Act.
9. In this case, the Repatriation Commission accepts that Mr Walkley’s smoking habit was war‑caused and that his claim turns on whether he can satisfy the requirements of the Statement of Principles (SoP) concerning ischaemic heart disease.
10. The standard of proof which must be applied by the Tribunal where a claim relates to operational service rendered by a veteran is set out in s 120(1) of the Act. The Tribunal must determine that the injury is a war‑caused injury or the disease is a war‑caused disease, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
11. As Mr Walkley’s claim was made on or after 1 June 1994, s 120A applies to the hypothesis he advanced drawing the connection between operational service and the disease he claims to have suffered. Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury or disease with the circumstances of the service rendered by an applicant is reasonable only if there is in force an SoP that upholds the hypothesis. The Repatriation Medical Authority (RMA) has determined an SoP for ischaemic heart disease and the relevant Instrument is N° 53 of 2003 as amended by Instrument N°9 of 2004.
12. In applying the SoP provisions as set out under s 120A of the Act, the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 set out the four stages of analysis to be used when determining a claim. The Court said, at pages 93 – 98:
1. The tribunal must consider all the material which is before it and determine whether that material 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.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(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. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Connection between Smoking and Ischaemic Heart Disease
13. The first of the Deledio steps requires the Tribunal to consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury or the disease with the circumstances of the particular service rendered by the applicant. There is no question of fact finding at this stage.
14. As the Repatriation Commission accepts that Mr Walkley’s smoking was connected to his war service, and that smoking is connected to ischaemic heart disease, the material before me points to a hypothesis connecting Mr Walkley’s ischaemic heart disease with the circumstances of his operational service.
15. As previously stated, there is in force an SoP determined by the RMA under s 196B (2) of the Act regarding ischaemic heart disease.
16. In order to determine whether the hypothesis raised is a reasonable one, I am required to determine whether it is consistent with the template to be found in the SoP. Mr Walkley submitted that the factor in Instrument N° 53 of 2003 upon which he relies is 5(e)(iii). That factor relevantly provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
…
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
…
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease…
17. The phrase pack years of cigarettes or the equivalent thereof, in other tobacco products is defined in the SoP and it means:
…a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight… One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
18. Mr Walkley said he commenced smoking in early 1942. At that time he said he was smoking between one and two packets (I assume 20 cigarettes per packet) per week. According to a cigarette smoking questionnaire which Mr Walkley completed on 7 March 2005, he gradually increased his intake of cigarettes to 20 to 25 (per week) during 1943 and 1944. In addition to the cigarettes, he was smoking about two ounces of pipe tobacco per week. Two ounces is the equivalent of approximately 57 grams which, under the SoP, equates to about 57 cigarettes over the week or the equivalent of about eight cigarettes per day. Although Mr Walkley indicated in the questionnaire that he had reduced his cigarette intake in 1945, he increased the smoking of pipe tobacco and therefore it is probably accurate to say that from 1944, Mr Walkley was smoking at least the equivalent of 20 tailor made cigarettes per day. On his evidence to the Tribunal, Mr Walkley maintained that rate of smoking until he stopped smoking in 1972, due to a severe problem with stomach ulcers. Therefore, it appears that the hypothesis advanced by Mr Walkley is reasonable as it fits the template set out in the SoP. The material before the Tribunal points to the fact that Mr Walkley smoked at least 20 pack years of cigarettes or the equivalent thereof before the clinical onset of ischaemic heart disease in 1991.
19. However, for the reasons I have set out below, I am satisfied beyond reasonable doubt that Mr Walkley’s ischaemic heart disease was not war‑caused.
20. The problem with this matter is that Mr Walkley has, over the years, given inconsistent accounts about when he ceased smoking. In a handwritten letter which was apparently prepared in respect of a claim made in 1991, Mr Walkley said: In 1947 I was advised to stop smoking or suffer. I haven’t smoked since 1947.
21. In a smoking questionnaire completed and signed by Mr Walkley on 25 October 1991, when asked whether the amount he smoked decreased and when, he inserted 1947. In answer to the question to what level, Mr Walkley answered stopped immediately.
22. When asked when he stopped smoking by the VRB in 2005, Mr Walkley said that he saw a Dr Manser in 1949 after suffering from pains in the stomach. He was told he had ulcers and Dr Manser told him to quit smoking. He said that he told his wife he had stopped smoking because she wanted him to quit as she was pregnant at that time. However, he secretly continued to smoke until about 1966 or 1968. In the questionnaire he completed on smoking on 7 March 2005, he said that he stopped smoking in 1965 or 1966. Nevertheless, when Dr N.R. Rose examined him on 4 April 2001, he told Dr Rose that he ceased smoking tobacco in 1949.
23. Mr Walkley said that he told his wife that he had given up smoking in 1949 when she was pregnant because she asked him to do so. Although he told her that he had stopped smoking and he did not smoke in front of her after that date, he said that he continued smoking when he was at work. He worked as a carpenter in country areas and he had plenty of opportunities to smoke when out on a job. At the hearing Mr Walkley said that in fact he did not stop smoking until 1972 due to his ulcers. He said he recalled that it was in 1972 because he was with his wife celebrating a tattslotto win which she had with a group of other people and he became very ill that night and was rushed to hospital. According to Mr Walkley, a Dr Yeong, who treated him, told him he would die if he did not stop smoking. It was then that he finally quit.
24. When Mr Walkley was asked in cross-examination why he maintained the pretence that he had stopped smoking in 1949, he said that that was his story at the time, and he simply wished to stick with it.
25. Mr Greg Ian Walkley (Greg), Mr Walkley’s son, who was born on 20 March 1949, also gave evidence at the hearing. Greg said that when he was 10, 11 or 12 years of age he would sometimes go with his father on jobs where his father was working as a bush carpenter. He said there were times when he observed his father going out of sight on a job and he put this down to his father going around the back of a building to have a smoke. He said this happened three or four times in a day. However, he never actually observed his father smoking but rather assumed that he was. He thought that his father was attempting to hide the fact that he continued to smoke. He never observed his father smoking at home. He did not tell his mother that he thought that his father was still a smoker. Although Greg said that he became a smoker when he was about 19 years old, he never found any cigarettes which belonged to his father. Greg was asked whether he ever saw his father smoking at any social functions and he said he had not.
26. Mr Walkley’s younger son, Marcus Walkley also gave evidence. He said that when he was about 11 years of age, he tried to smoke his father’s pipe which was on the mantelpiece in the house and it made him very ill. He never saw his father smoking and he never found any cigarettes in a toolshed where Mr Walkley said that he occasionally smoked.
27. Mrs Fay Walkley also gave evidence at the hearing. She first met Mr Walkley in 1945 and she said that they were both smokers at that time. She described her husband as being a fairly heavy smoker, smoking about one packet of 20 cigarettes per day. She mentioned that he rolled his own cigarettes and he also smoked a pipe.
28. According to Mrs Walkley, she became pregnant in 1949 and she could not stand the smell of smoke and therefore asked her husband to stop. However, given that Greg Walkley was born on 20 March 1949, her recollection of that event was more likely than not to be inaccurate, as she would have become pregnant in 1948. Mrs Walkley said that she believed that her husband did stop smoking for a short while but then he started again; although, he did not tell her that he had done so.
29. Mrs Walkley confirmed that her husband was taken to hospital on the night she was celebrating a tattslotto win. Mrs Walkley said that she was aware that Mr Walkley continued to smoke after 1949 because she could smell it on his clothing. She never found any cigarettes in the toolshed nor did she ever find any cigarettes in the pockets of any of his clothes. She could not explain why her husband had said that he had stopped smoking between 1966 and 1968 and she said that it was in 1972 after his serious problems with ulcers that he stopped smoking. Mrs Walkley also said that she continued to smoke occasionally and did not stop until 1972. She said that she had the occasional cigarette when she was at a social function with her husband, where he also had the occasional cigarette. If that was in fact the case, then it raises serious questions about Mr Walkley’s evidence. There clearly was no reason to keep from his wife the fact that he was still smoking after 1949, because she was, on her own evidence, aware of it.
30. In my view, despite what Mr Walkley has said in evidence and the answers he has given to questionnaires about his smoking, Mr Walkley did continue to smoke after 1949, but at a significantly reduced rate. He no longer rolled his own cigarettes and he ceased smoking his pipe. I am satisfied beyond reasonable doubt that Mr Walkley did not continue to smoke at the rate of at least 20 cigarettes per day until 1963 or 1964, which would have been required for him to satisfy the conditions in paragraph 5 (e) (iii) of the SoP.
CONCLUSION
31. In order for Mr Walkley’s claim to succeed, he needed to demonstrate by evidence that he continued to smoke at least 20 cigarettes per day for 20 years. He commenced smoking in 1942 and he was smoking at least 20 cigarettes per day by 1943 or 1944. That level needed to be maintained until 1963 or 1964 in order for Mr Walkley to fit within the template provided by the SoP. However, the evidence is strongly against Mr Walkley continuing to smoke at that rate after 1949. Although Mr Walkley, in a number of questionnaires and in evidence given to the VRB has indicated a range of dates when he said he completely stopped smoking, I am satisfied that in fact Mr Walkley did not completely cease smoking until sometime after 1949. However, his level of smoking most certainly did decrease substantially and, on the evidence, I cannot be satisfied that he continued to smoke at least 20 cigarettes per day or the equivalent in tobacco products for 20 years. I am therefore satisfied beyond reasonable doubt that Mr Walkley’s ischaemic heart disease is not war‑caused.
32. For the reasons I have set out above, I am of the opinion that the decision of the VRB made on 3 May 2005 regarding Mr Walkley’s ischaemic heart disease was correct and must be affirmed.
I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
(sgd) Dianne Eva
Clerk
Date of Hearing: 21 September 2006
Date of Decision: 30 October 2006
Advocate for the applicant: Mr Peter Liefman
Solicitor for the applicant: Mr Peter J. Liefman
Advocate for the respondent: Mr Robert DouglassSolicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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