Watkins and Repatriation Commission
[2000] AATA 608
•26 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/140
VETERANS' APPEALS DIVISION )
Re GLADYS FLORENCE WATKINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member Mr A. Argent, Member Miss E. A. Shanahan, Member
Date26 July 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.........(Sgd) B. H. Pascoe..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether death related to war service – eligible but not operational service – death from malignant neoplasm of colon – whether hepatitis A war-caused – whether severe psychosocial stressor – whether irritable bowel syndrome – balance of probabilities
Veterans' Entitlements Act 1986
Statements of Principles:
Instrument No. 42 of 1994 concerning hepatitis A
Instrument No. 66 of 1996 concerning depressive disorder
Instrument No. 104 of 1996 concerning irritable bowel syndrome
Instrument No. 24 of 1996 concerning malignant neoplasm of the colon
REASONS FOR DECISION
26 July 2000 Mr B. H. Pascoe, Senior Member Mr A. Argent, Member Miss E. A. Shanahan, Member
This is an application to review a decision of the Veterans' Review Board dated 3 December 1998 which affirmed the 7 October 1997 decision of the respondent that the death of the applicant's husband, Dr William Watkins, was not related to war service.
The applicant was represented by Mr D. Parrôt of Melbourne Legacy and the respondent by Ms J. McCulloch, a Repatriation Commission advocate. Evidence was given by the applicant, Mrs Gladys Watkins; Mr K. Jones, who served with the late veteran; Dr W. Orchard, a consultant psychiatrist; and Professor G. Schmidt, a gastroenterologist. The respondent called Dr L. Moran; a gastroenterologist; Dr L. Walton, a consultant psychiatrist; Dr A. Carden, a colo-rectal surgeon; and Mr R. Piper, an historical officer formerly of the Department of Defence.
Dr Watkins died on 21 September 1990 at the age of 68 years. The cause of death was certified to be:
Acute renal failure – 2 days
Metastic liver carcinoma – 3 months
Carcinoma of caecum – 6 months
Hypertension – 3 years
The matter has a relatively long history with the applicant seeking to attribute the death to war service. In June 1995 this Tribunal affirmed an earlier decision of the respondent that the death was not war-caused. In that application it was submitted that the relationship between death and service was that the stress experienced during war service led to ulcerative colitis which, in turn, led to colon cancer. The Tribunal found that the level of stress experienced did not satisfy the level considered relevant in the development of ulcerative colitis. It further found that there was no evidence that the veteran had ulcerative colitis as a pre-existing condition to his colon cancer. In a subsequent claim which has led to this application, the applicant sought to argue that Dr Watkins contracted hepatitis A on service. This led to explosive diarrhoea during and after service and, in turn, to the late veteran choosing a high fat/low fibre diet pre-disposing to carcinoma of the caecum. Before this Tribunal the applicant contended that the relationship between war service and the death of the veteran was that he contracted hepatitis A as a result of that service. This contributed to the failure to pass a flying test which caused severe depressive reaction leading to the onset of irritable bowel syndrome, the high fat/low fibre diet and the carcinoma of the caecum.
Dr Watkins was born on 29 April 1922. He served in the Royal Australian Air Force ("RAAF") from 5 November 1943 to 12 October 1945. He served, initially as a pupil pilot and later, as an navigator. At the time of his discharge he held the rank of flying officer having been commissioned on 6 January 1945. All of his period of service was spent in Victoria, Tasmania and South Australia. He rendered eligible service within the meaning of section 7 of the Veterans' Entitlements Act 1986 ("the Act") but did not render operational service within the meaning of section 6 of the Act.
Mrs Watkins gave evidence that she met her late husband in 1947 at medical school and they married in 1953. They practised together as general medical practitioners from 1956 until his death in 1990. She said that her husband was a quiet, gentle, stoic and conscientious person who was frequently tense and unrelaxed. He rarely spoke of his war service. She had understood that the contraction of hepatitis A had interrupted his flying training and he had failed his final test. She understood that his explosive diarrhoea commenced after the hepatitis. After the marriage, he decided to try a high fat/low fibre diet after seeing bowel surgery patients being placed on a low residue diet. Whilst he did not complain of pain, Mrs Watkins observed that he had pain prior to rushing to the toilet. She said that her late husband had told her that he resumed his flying training as soon as possible after recovering from hepatitis and had been bitterly disappointed at not passing his pilot test. She accepted that he had successfully passed the navigator course, had achieved commissioned officer rank, completed matriculation and a medical degree post service and was good at sport. Nevertheless, she said that he was a stoic person who would have "battled on". The medical degree course had been a "grind" for him.
Mr Jones gave evidence that he served in the RAAF from October 1943 to October 1945 and attended pilot training in Tasmania at the same time as the late Dr Watkins. He said that their accommodation was in galvanised iron huts with approximately 28 men per hut sleeping on palliasses approximately one metre apart. He found that the flying training was very exacting. At that time there were no longer high targets for throughput of trained pilots and the Air Force was very selective of those who passed. Each trainee had to pass progress tests and failure resulted in being taken off the course and remustered. He understood that the late Dr Watkins did not make his final test. Mr Jones said that he was in hospital from 24 March 1944 to 2 April 1944 and believed that he had been diagnosed as having catarrhal jaundice although he was unsure who had made the diagnosis. To the best of his knowledge, the late Dr Watkins was the only other trainee to suffer catarrhal jaundice (now assumed to be hepatitis A).
Dr Orchard provided a report dated 18 April 2000 following a one hour interview with Mrs Watkins. His conclusion was that the major significance of the hepatitis A was that it led to a loss of considerable number of weeks of flying time. Whilst Mrs Watkins never received a clear account of what happened, Dr Orchard was of the view that:
"…to his lifelong shame, Flying Officer Watkins failed his test and this was presumably extremely distressing to him because he was a perfectionist and a person of high principles and he was aware that very few trainee pilots ever failed their final flying test. There is no question that he must have felt extreme shame about this development and that he had a significant psychiatric reaction at this time and that it was in this setting that he developed his irritable bowel syndrome…"
While accepting that the issue was somewhat conjectural, Dr Orchard was of the clear view that the late Dr Watkins suffered a severe anxiety reaction. He believed that the important pointers that there was "massive shame" after the flying failure were:
(a)the widow was never aware that her husband saw service in Tasmania until well after his death;
(b)one of his closest friends with whom he had completed the navigator course never knew that he had failed in an attempt to become a pilot prior to navigator training;
(c)the late Dr Watkins, even as a successful family doctor, never referred to his bowel condition as "irritable bowel syndrome" but as "explosive diarrhoea" which implied shame about the diagnosis and the setting in which the illness developed;
(d)after his death, his widow discovered that he always kept in his wallet a copy of "The Navigator's Prayer" which indicated to Dr Orchard that flying and safe return was a highly emotionally charged issue in his life.
Dr Orchard believed that the shame of failure in pilot training came within the definition of generalised anxiety disorder. He believed the late Dr Watkins had an inability to talk about psychological matters and instanced the fact that he rarely made mention of the death of his mother when he was an adolescent and Mrs Watkins had reported with distress that she had never learned the first name of the mother. In cross-examination, Dr Orchard accepted that he was not aware of other courses passed in service by the late Dr Watkins nor that he had been awarded a Blue for baseball at University. However, he did not accept that these contra-indicated an anxiety state. He was unaware also that the failure rate of trainee pilots had been approximately 31%.
Professor Schmidt provided a report dated 20 April 1999 which was prepared at the request of Mrs Watkins and after studying the available documents. He concluded that the late Dr Watkins:
"…contracted Hepatitis A while on eligible service in 1944. This illness caused him to fail his pilot examinations and led to such stress as to develop Irritable Bowel Syndrome which continued for the rest of his life. He adopted a very modified high fat, low fibre diet in an effort to control his IBS but unwittingly took a lifelong diet which significantly increased his risk of developing colorectral cancer from which he finally died."
In his oral evidence by telephone, Professor Schmidt said that he believed that the accommodation prior to the contraction of hepatitis A would be regarded as "overcrowding". He accepted that the hepatitis A itself did not cause the explosive diarrhoea. While in his report, Professor Schmidt had referred to a further source of stress when planes returned from a training flight in fog and some crash landed, he admitted uncertainty that the late Dr Watkins was involved. When it was put to him in cross-examination that the only such incident happened at Bairnsdale and there was no involvement of the late Dr Watkins, Professor Schmidt emphasised that the principal stress was the failure to pass the pilot training.
Dr Moran provided a report dated 28 February 2000. He stated that there was no evidence that the late Dr Watkins suffered from inflammatory bowel disease although it was possible that his symptoms were part of an irritable bowel syndrome. He felt it unlikely that he would have suffered severe diarrhoea with abdominal pain and changed bowel habits for an extended period without medical attention.
Dr Walton provided a report dated 7 December 1999 after interviewing Mrs Watkins and reading various medical reports. He accepted that there were limitations on his ability to provide definitive opinions without the opportunity to interview or observe the veteran. In his opinion, the late Dr Watkins would not qualify for a diagnosis of a generalised anxiety disorder, panic disorder, adjustment disorder, post-traumatic stress disorder, major depressive disorder, neurotic depression or any other type of depressive disorder. While he agreed with the description of the veteran as a self-contained individual who exhibited some tendencies towards anxiety and emotional difficulties of a hidden but subtle type over many years, he regarded this as a description of his personality traits rather than imposed psychiatric illness. He believed that shame was a normal phenomenon, not a psychiatric condition. While non-talking may be an indication of shame, it was clear that the late Dr Watkins was a non-talker generally. Dr Walton believed that Dr Watkins' career was an indication of his not suffering a psychiatric condition and there was no evidence of depression in a clinical sense.
Dr Carden provided a report dated 4 November 1999 after reading the transcript of the earlier hearing and other medical reports. He was of the view that irritable bowel syndrome, which was a diagnosis that he accepted rarely, was not a pre-cancerous condition and not attributable to service. He was very doubtful of the presence of an inflammatory bowel disease. He believed that the choice of a high fat diet was more of taste and habit rather than a belief in benefit as it was well known 40 years ago that any inclination to loose stools was compounded by a diet high in fat.
Mr Piper had researched the histories of the units in which the late Dr Watkins served. He said that the diary of 7 Elementary Flying Training School recorded regular inspections of accommodation, health, canteen, messing, etc. between February and May 1944. He found a reference to an incident of an aircraft crash landing in fog but this was at Bairnsdale in February 1945 and Dr Watkins' name was not amongst those documented. Another documented crash was near Evandale in January 1944 before the veteran arrived. His research showed that approximately 31.5% of trainees failed to pass the required tests. This rate, he believed, would have been known by all entrants to the school.
As the veteran did not have operational service, the provisions of section 120(4) of the Act apply so that the Tribunal has to decide the matter to its reasonable satisfaction whether the death arose out of or was attributable to eligible war service or due to a condition that was contributed to in a material degree or aggravated by eligible war service. As the claim was lodged after 1 June 1994 the Tribunal is required to have regard to section 120B of the Act. Under subsection (4) of that section, the Tribunal is to be reasonably satisfied if there is in force a Statement of Principles ("SoP") determined under section 196B(3) or (12) that upholds the contention that the death of the veteran is, on the balance of probabilities, connected with the eligible war service.
For the applicant it was submitted that:
(a)the SoP for hepatitis A, Instrument No. 42 of 1994, factor 1(a) is satisfied as "living in conditions of overcrowding or poor hygiene within the 50 days before contracting hepatitis A";
(b)the SoP for depressive disorder, Instrument No. 66 of 1996, factor 5(a) is satisfied as "experiencing a severe psychosocial stressor or stressors within one year immediately before the clinical onset of depressive disorder";
(c)the SoP for irritable bowel syndrome, Instrument No. 104 of 1996, factor 5(a) is satisfied as "suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome";
(d)the SoP for malignant neoplasm of the colon, Instrument No. 24 of 1996, factor 5(d) is satisfied as "having had an altered dietary pattern resulting in a 50% increase in animal fat consumption and a 50% decrease in dietary fibre consumption for at least 20 years before the clinical onset of malignant neoplasm of the colon".
For the respondent it was submitted that there was no causal link between the contraction of hepatitis A and service. It was further submitted that there is no evidence that the late Dr Watkins suffered from any depressive disorder so as to satisfy the SoP for depressive disorder or the SoP for irritable bowel syndrome. Finally, it was submitted that the change of diet adopted by the late Dr Watkins could not be attributed to his eligible service having been adopted several years after discharge, based on his observations of surgical patients being a matter of personal choice and contrary to conventional medical advice for most, if not all, of the period in which he maintained such diet.
The major problems for the applicant in this matter are that the only clear and established facts are that the late Dr Watkins contracted hepatitis A whilst in service and died of carcinoma of the caecum. The manner in which these two can be connected is very much a matter of conjecture.
It is appropriate to firstly consider the alleged starting point of contraction of hepatitis A. The medical records refer to catarrhal jaundice but both parties accept that this was hepatitis A. SoP Instrument No. 42 of 1994 provides:
"…that the factors that must exist before it can be said that, on the balance of probabilities, hepatitis A or death from hepatitis A is connected with the circumstances of that service are:
(a)living in conditions of overcrowding or poor hygiene within the 50 days before contracting hepatitis A; or
(b)inability to obtain appropriate clinical management for hepatitis A."
Factor (b) applies only where the disease was contracted prior to service and, in any event, there appears to be no suggestion that appropriate clinical management was not obtained. On the evidence of Mr Jones and of Mr Piper, we are of the view that it is unlikely that factor (a) was satisfied. The Shorter Oxford Dictionary defines "overcrowd" as "to crowd to excess" or "to crowd together in too great a number". While 28 persons in a hut may be seen as a crowd we do not accept that it could be said to be "living in conditions of overcrowding". The only evidence of any other trainee contracting the disease is that of Mr Jones. Whether he contracted hepatitis A is uncertain. There is a note on his medical records "?catarrhal jaundice" but no clear diagnosis. In any event, his evidence was that the late Dr Watkins was the only other trainee to have that disease. We are not satisfied that, on the balance of probabilities under the relevant SoP, that it can be said that the veteran's hepatitis A was connected with his eligible war service.
Even if we are wrong in that conclusion, the applicant faces a far bigger hurdle in getting to the next step in the alleged causal linkage. While Mr Parrôt referred to Instrument No. 66 of 1996, depressive disorder, it is not clear from the evidence of Dr Orchard which psychiatric condition he has diagnosed. While he accepted that the issue was somewhat conjectural without records, his clinical preference was that the late Dr Watkins suffered a severe anxiety reaction having suffered a severe psychosocial stressor. The relevant SoP defines "depressive disorder" as "the person has had two or more major depressive episodes as defined in DSM-IV, separated by an interval of at least two months". The relevant factor under the SoP which must exist before it can be said that, on the balance of probabilities, depressive disorder is connected with the circumstances of a person's relevant service, and relied upon by the applicant was "experiencing a severe psychosocial stressor or stressors within one year immediately before the clinical onset of depressive disorder". "Severe psychosocial stressor" is defined as:
"an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems".
There is simply no evidence that the late Dr Watkins had two or more "major depressive episodes". There are no records which can substantiate any such episodes. What we have is an opinion of a psychiatrist some 56 years after the event, based on a history given by the widow who first met the veteran three years after the alleged episodes. In the history given to Dr Orchard, she said that she was not aware that her husband saw service in Tasmania until after his death, did not receive a clear account of what happened during flying training, her husband rarely spoke of war service and was opposed to talking about his feelings and fantasies. It is pure conjecture as to the reaction to the failure to complete flying training. There are no records of why or at what stage of the training the late Dr Watkins ceased the course. There are some references to air sickness. There are many possible reasons for non-completion, not all of which might result in "extreme shame". Even if the failure resulted in "extreme shame" we do not find that this would satisfy the definition of "severe psychosocial stressor". We prefer the evidence of Dr Walton that the subsequent career and accomplishments of the late Dr Watkins are a indication that he did not suffer any psychiatric condition and his apparent inability or unwillingness to discuss his feelings as being a personality trait rather than an imposed psychiatric illness.
On balance, the causal link between hepatitis A and malignant neoplasm of the colon is based on conjecture that the hepatitis A was service caused, that the veteran suffered a psychiatric condition resulting from hepatitis A, that he suffered from irritable bowel syndrome which caused the long term dietary habit and that the malignant neoplasm of the colon was the direct result. It is, at best, a hypothesis with somewhat tenuous links and we cannot be satisfied, on the balance of probabilities, that the causal link sought to be shown is made out.
It follows that the decision under review should be affirmed.
I certify that the twenty-one (21) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Mr A. Argent, Member
Miss E. A. Shanahan, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 9 June 2000
Date of Decision 26 July 2000
For the Applicant Mr D. Parrôt of Melbourne Legacy
Solicitor for the Respondent Ms J. McCulloch, Departmental advocate
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