Weston and Repatriation Commission
[2011] AATA 121
•24 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 121
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/5335
VETERANS DIVISION )
ReNora Weston
Applicant
And Repatriation Commission
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Dr IS Alexander, Member
Date24 February 2011
PlaceSydney
DecisionThe decision under review is set aside and a decision substituted that Mrs Weston is eligible for a war widow’s pension.
.....................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension - whether veteran’s death was war-caused – hypertension - death from atrial fibrillation - increased alcohol consumption post-service - Deledio test - Tribunal not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the veteran's death is war-caused - decision under review set aside
RELEVANT ACT
Veterans’ Entitlements Act 1986: s 120
CITATIONS
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Glanville (2010) 114 ALD 616; [2010] FCA 405
OTHER AUTHORITIES
Statement of Principles concerning atrial fibrillation, Instrument No 19 of 2003, dated 29 May 2003
REASONS FOR DECISION
| 24 February 2011 | Mr RP Handley, Deputy President |
| Dr IS Alexander, Member |
The applicant, Mrs Nora Weston, has applied to the Tribunal for a review of a decision of the Veterans’ Review Board dated 10 September 2009 that the death of her husband James Robert Weston (the veteran) was not related to his war service.
The issue for the Tribunal is whether the death of Mr Weston was war-caused. If it was, Mrs Weston is eligible for a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).
Background
Mr Weston served in the Australian Army during World War II from 5 November 1941 to 29 January 1946. This period constitutes eligible war service and, because Mr Weston served outside Australia, this period also constitutes operational service for the purposes of the Act.
Mr and Mrs Weston were married in 1943 and had three children. Mr Weston died in April 2008, aged 88. The cause of death was certified to be: (a) cardio pulmonary arrest, (b) congestive cardiac failure, (c) atrial fibrillation, and (d) osteoarthritis.
On 8 August 2008, Mrs Weston applied for a war widow’s pension on the ground that her husband’s death was war-caused. Her claim was refused by the Repatriation Commission on 16 September 2008, a decision that was affirmed on appeal to the Veterans’ Review Board (VRB) on 10 September 2009. On 9 November 2009, Mrs Weston sought a review by the Tribunal.
The Issues
Mrs Weston claims that her husband’s death was war-caused. She contends that Mr Weston developed hypertension and subsequently atrial fibrillation because of his significant consumption of alcohol which was in turn connected with his war service.
The approach the Tribunal must adopt in this matter with respect to Mr Weston’s operational service is that set out by the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144 (Deledio).
The medical evidence establishes that a cause of Mr Weston’s death was atrial fibrillation. This is stated in the death certificate. Mr Weston’s general practitioner for the last six months of his life, Dr Mohammad Salauddin, said in a letter dated 13 July 2010, that Mr Weston suffered from atrial fibrillation leading to cardiac failure and was being treated for this.
The Tribunal has also been provided with an undated letter (bearing a fax transmission stamp of 25 January 2011) from Mr Weston’s former general practitioner, Dr Patricia Woodford, stating:
Mr Weston is recorded as having atrial fibrillation during hospitalisation 20/04/05. This reverted spontaneously but he was noted to have subsequent intervals of Atrial fibrillation following this.
The first step prescribed by the Court in Deledio requires the Tribunal, having considered the material before it, to be satisfied that the material points to a hypothesis connecting the condition with the circumstances of Mr Weston’s service. This is not a stage at which the Tribunal makes any findings of fact. If such a hypothesis arises, the second step is to ascertain whether there is a relevant Statement of Principles (SoP). The relevant SoP in this case is Instrument No 19 of 2003 concerning atrial fibrillation (SoP No 19).
The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP(s). In this instance, paragraph 5 of SoP No 19 provides relevantly:
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting atrial fibrillation or
death from atrial fibrillation with the circumstances of a person’s
relevant service are:
…
(j) drinking at least 250 kilograms of alcohol within a 10 year period
within the 15 years immediately before the clinical onset of atrial
fibrillation; or …
If the Tribunal forms the opinion that the hypothesis raised is a reasonable one, it must then (at step four) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Weston’s death was war-caused.
Evidence of Alcohol Consumption
Mrs Weston provided a statement dated 26 August 2010. Due to her medical condition, she was unable to travel to Sydney to attend the hearing. In her statement, Mrs Weston said:
11. It wasn’t until my late husband was admitted to hospital that I realised that he was drinking. I thought he was simply drinking lots of ginger ale, when in fact he must have been mixing whisky into each glass. I was very naïve, and mistook the whisky for ginger ale – it was only until he was admitted that I realised the extent of his drinking, as the doctors spoke about it.
12. He would spend the majority of the day in the den reading, which is probably why I did not notice his drinking.
13. I recall one particular occasion concerning alcohol which surprised me. In the 1980s (approximately) we moved to Gosford, on the NSW Central Coast. I recall that we lived near a small shopping centre and a liquor shop was built across the road. It was about this time that my late husband stopped driving. I recall that I came home with my daughter one day and we found my late husband sitting on the front step – which was unusual – as he was waiting for a neighbour to bring him whisky!
14. I also recall that he would be what I call ‘merry’ when he was playing bowls.
However, in the alcohol questionnaire completed by Mrs Weston on 4 August 2008, she stated that her husband starting consuming alcohol regularly on entering the army in 1941. She stated that his reason for doing so was “fear and trepidation of WWII”. He would drink two to three times a week and eight to ten (10 oz) middies of beer on each occasion.
The Tribunal has been provided with a copy of a letter dated 21 January 2011 from Mr Weston’s son, Mr Graeme Weston, to his mother’s solicitor together with a statement made by Mr Weston dated 24 January 2011. He also gave evidence at the hearing. Mr Weston said his father had been disappointed when his application to remain in the army at the end of the war had been rejected because of his hearing problems. As a result, his father joined the public service “and it was about this time that he started drinking”. His father’s deafness and subsequent problems with balance, which adversely affected his social life and made him withdrawn, “caused him I feel to turn to alcohol and smoking”.
Mr Graeme Weston said that he when he started work in 1966, in the Department of Agriculture accounts section where his father had worked for many years, he was taken to a pub near Circular Quay at lunchtime. His father’s “cronies were still there” and he found his father “had his own mug with name on it hanging over the bar”. A comment was made that “as far as drinking went I was not a chip off the old block”.
Mr Graeme Weston said his father “would regularly have a drink in his hand, and he often went to the local bowling club for a drink”. When he was a child, his parents bought a house in Como where they lived until moving to near Gosford in 1972. He remembers his father going to the bowling club at Sutherland at weekends and coming home late-ish when he would be “a bit tiddly”, although he never saw his father come home drunk. His mother would be cross at his father coming home late and his father would try and get the children on side by throwing his loose change to the children.
Mr Weston said that after his father retired (which he thought was in 1975 but later acknowledged might have been about 1980), he used to visit his parents on a regular basis. His father always had a bar fridge full of beer and would be drinking cans of beer – often four to six cans of full strength beer. He would drink many more beers than Mr Weston. Latterly, his father also liked to drink Scotch but it is difficult to know how much he drank because he used to drink it with ginger ale. Mr Weston remembered seeing three or four empty Scotch bottles in the recycling bin. Then, at the time he helped clear out his parents’ home near Gosford, he found at least two boxes containing whisky glasses which his father would have received free with his purchases. His mother does not drink at all.
Mr Graeme Weston said he did tell his father he thought he was drinking too much but his father said he could handle it – he never admitted to having a drinking problem. His father eventually stopping driving in his 80s and Mr Weston said it was probably at this time, when he lost the ability to drive to the shops, that he began running up a large credit card account. In 2004, when his father was in hospital with very bad gout, Mr Weston took his mother to visit his father, taking his father’s mail. While there, his mother told him to open his father’s credit card statement and they found that he owed nearly $20,000. This debt appeared to have been accumulated over several years and the statement showed what appeared to be an amount of between $750 and $900 per month spent at ‘Liquorland’ on alcohol. Mr Weston said his mother “tore up the card there and then and he [his father] quit drinking cold turkey”. His mother also cancelled the credit card account.
Mr Graeme Weston said he does not have any copies of his father’s credit card statements. His father was a very honest person but, while he was generally meticulous in keeping records, he appears to have shredded his credit card statements. It was out of character for him to have accumulated such a debt. Mr Weston stated he thought his father would have been drinking about two bottles of Scotch a week together with beer. At the hearing, Mr Weston amended this to four bottles of Scotch and beer. He said his father gradually developed dementia and was probably in the early stages of dementia at the time of his hospitalisation in 2004. His long‑term memory was excellent but he gradually lost his short‑term memory. His father had home nursing for several years and the nurses would come in to bath and shave him. Eventually, his father became uncooperative and his mother could not control him anymore. So in about early 2007, Mr Graeme Weston assisted his parents in moving to a retirement village in Nowra near where he lives. His father went into an assisted bed in the dementia ward.
The Tribunal has been provided with a copy of Mr Weston’s hospital files which cover the post-War period through to 1980. Clinical notes in relation to Mr Weston’s examination at Concord Hospital on 16 March 1970 record that he was drinking alcohol occasionally. An earlier Medical History Sheet for Mr Weston completed by a Repatriation Commission Medical Officer on 30 November 1964 records that he had the “occasional drink”.
The Tribunal also has a copy of a ‘Lifestyle Report’ completed by Mr Weston for the Department of Veterans’ Affairs and dated 9 July 1990. He referred to problems with loss of balance after surgery for his longstanding severe hearing loss, and the effect this had on him which he had been experiencing for the past 10 years. He made no mention of problems associated with alcohol consumption. He said:
The last few years of my working life were hampered with “my health problems” and compounded by a mild breakdown about 1972/73 due to an overwork situation and fretting over my limitations. This was viewed seriously enough to blight future promotion prospects and at the age 60 years I had had enough and called it quits.
Atrial Fibrillation
As noted above, Mr Weston’s former general practitioner, Dr Woodford, stated that Mr Weston had atrial fibrillation during hospitalisation in April 2005. (It seems likely, given the other evidence, that this was in fact April 2004.) Mr Weston’s general practitioner at the time of his death, Dr Salauddin, said Mr Weston was also being treated for atrial fibrillation in the period before his death. In a report dated 29 November 2004, Dr John Dowsett, consultant physician, gastroenterologist and hepatologist, referred to Mr Weston’s “past history of significant cardiac disease with atrial fibrillation/previous congestive cardiac failure”.
A report by Dr AD Kull, cardiologist, dated 20 April 2005, to Dr Woodford, who had referred Mr Weston, states that Mr Weston had had an episode of atrial fibrillation that reverted spontaneously.
In a report dated 27 October 2004, Dr Sally Preston, consultant rheumatologist, noted relevantly that Mr Weston had “abnormal liver function tests particularly with an elevated gamma GT”. However, the Tribunal notes that, according to Dr Dowsett, Mr Weston’s liver function tests were normal in March, and the evidence establishes that Mr Weston gave up drinking alcohol in April 2004 when he was hospitalised.
Associate Professor Richard Haber, consultant physician, provided a ‘File Review Report’, dated 22 December 2010, at the request of the Applicant’s solicitors, and also gave evidence at the hearing by telephone. Professor Haber noted that in October 2004, Mr Weston “had elevated GGT, which is a test so often elevated in alcoholics”, and that on 29 November 2004, Dr Dowsett “reported finding a long-term gastric ulcer, which is a well-known complication of chronic drinking”. Professor Haber commented, “It is well known that alcoholics minimise their alcohol intake.” With regard to whether alcohol consumption directly caused Mr Weston’s atrial fibrillation, Professor Haber responded:
It is well known that excessive alcohol intake causes either acute or chronic atrial fibrillation.
According to his son’s estimate of his beer intake, 8 to 10 middies two or three times a week would be enough to bring on atrial fibrillation.
Professor Haber noted that there were no records to indicate when the clinical onset of atrial fibrillation occurred and that “There is a disagreement as to the quantity of alcohol he [Mr Weston] has been drinking, within fifteen years immediately before the clinical onset of atrial fibrillation.” Professor Haber therefore concluded that he could not state whether Mr Weston’s death was related to his war service.
Consideration
As stated above, in addressing the first step prescribed by the Full Federal Court in Deledio, the Tribunal must consider whether it is satisfied on the material before it that the material points to a hypothesis connecting the relevant condition – in this case atrial fibrillation – with the circumstances of Mr Weston’s service.
The material before us establishes that a cause of Mr Weston’s death was atrial fibrillation. The material indicates that:
·he began consuming alcohol during his war service in the army
·he continued drinking post War (noting Mr Graeme Weston’s evidence about meeting his father’s “cronies” in 1966 and of his father going to the Bowling Club at weekends when he was a child, although the 1964 and 1970 medical reports record that he was only an occasional drinker)
·(as noted in Mr Weston’s Lifestyle Report, dated 9 July 1990, and confirmed by Mr Graeme Weston) he felt socially isolated due to his war-caused deafness and subsequent problems with balance
·he may have been consuming an excessive amount of alcohol at the time he was hospitalised in April 2004 when he was found to be suffering from atrial fibrillation
·excessive alcohol consumption can cause acute or chronic atrial fibrillation.
In the Tribunal’s view, the material therefore points to a hypothesis connecting Mr Weston’s atrial fibrillation with his war service.
The second step prescribed by the decision in Deledio is to ascertain whether there is a relevant SoP. There is no dispute that the relevant SoP is SoP No 19, referred to above.
The third step prescribed by the decision in Deledio requires the Tribunal to form an opinion as to whether the hypothesis raised is a reasonable one, consistent with the template in the SoP. In Mr Weston’s case, is it reasonable to hypothesise that factor 5(j) of SoP No 19 is satisfied, that is that he may have been:
(j) drinking at least 250 kilograms of alcohol within a 10 year period
within the 15 years immediately before the clinical onset of atrial
fibrillation;
…
The approach to be adopted was summarised by Cowdroy J in Repatriation Commission v Glanville (2010) 114 ALD 616; [2010] FCA 405, at 623:
34. … the application of a SoP was considered by the Full Court in Deledio at 96. There the Full Court quoted Heerey J at first instance (see: Deledio v Repatriation Commission (1997) 47 ALD 275) where his Honour said:
The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) The truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of a SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.
35. Once a reasonable hypothesis is established, a claim will be successful unless the Tribunal considers that the hypothesis has been disproved beyond reasonable doubt. In such circumstances the Tribunal is entitled to make a finding that the injury, disease or death was not war-caused.
In Mr Weston’s case, the hypothesis is not contrary to proven or known scientific facts, nor, in our view, is it fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous, and, finally, the hypothesis is not inconsistent with SoP No 19. We note the Respondent’s submission that the hypothesis is too remote. However, we are satisfied that the facts raised, referred to in paragraph 29 above, are sufficient to support our opinion that the hypothesis raised is a reasonable one, notwithstanding, in particular, uncertainty over when the clinical onset of atrial fibrillation occurred, or the lack of specific evidence about Mr Weston’s alcohol consumption in the 15 years prior to 2004. As to the level of alcohol consumption in later years, Mr Graeme Weston’s evidence indicates that his father may have been consuming as much as four bottles of whisky a week at the time of his hospitalisation in April 2004, together with beer. Four bottles of whisky a week is equivalent to 100 standard drinks, more than twice the level of consumption required by SoP No 19 which equates to 47.95 standard drinks per week.
Having formed this opinion, the Tribunal must then (at step 4) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Weston’s death was war-caused. Are one or more facts necessary to support the hypothesis disproved beyond reasonable doubt or is the truth of a fact inconsistent with the hypothesis proved beyond reasonable doubt?
In Mr Weston’s case, the hypothesis requires that he was drinking at least 250 kilograms of alcohol within a 10‑year period within the 15 years immediately before the clinical onset of atrial fibrillation. As noted above, there is very little evidence as to the clinical onset of Mr Weston’s atrial fibrillation. The best evidence available to the Tribunal is that he suffered atrial fibrillation during hospitalisation in April 2004. It is possible that he suffered from this condition before then but there is no evidence of this. However, in our view, it cannot be disproved beyond reasonable doubt.
The other factual issue raised is whether Mr Weston consumed at least 250 kilograms of alcohol within a 10 year period within the 15 years immediately before the clinical onset of atrial fibrillation. Again, there is very little reliable evidence about this. We have Mr Graeme Weston’s evidence about the credit card statement that he opened when his father was in hospital in April 2004 indicating that his father was purchasing a significant amount of alcohol from Liquorland. We have Mr Graeme Weston’s recollection of his father drinking at various stages over the years, and of empty whisky bottles in the recycling bin and whisky glasses discovered on clearing the house when his parents moved to a retirement village in about early 2007. Mr Weston thought his father might have been drinking as much as four bottles of whisky a week together with beer at the time he stopped drinking in April 2004.
Mrs Weston has been unable to provide the Tribunal with any definitive evidence except to recall the incident in the hospital in April 2004 and that her husband used to spend “the majority of the day in the den reading, which is probably why I did not notice his drinking”. She had thought he drank dry ginger ale, rather than what may have been whisky and dry ginger ale.
Medical records from 1964 and 1970 only refer to Mr Weston being an occasional drinker, and Mr Weston made no reference to his drinking when completing the ‘Lifestyle Report’ for the Department of Veterans’ Affairs in 1990.
Mr Graeme Weston’s evidence indicated that his father became more isolated from the time he stopped driving when he was in his 80s. It appears that his father’s worsening dementia may have been in part responsible for non-payment of the credit card account.
While the evidence of Mr Weston’s drinking within a 10‑year period within the 15 years immediately before the clinical onset of atrial fibrillation is, in the Tribunal’s view, unsatisfactory, and we are unable to make definitive findings about how much alcohol he consumed during this period, we are also not satisfied beyond reasonable doubt that he was not drinking at least 250 kilograms of alcohol within that period. Thus, Mrs Weston’s claim for the widow’s pension must succeed and the decision under review must be set aside.
Decision
The decision under review is set aside and a decision substituted that Mrs Weston is eligible for a war widow’s pension.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Dr IS Alexander.
Signed: ...............[sgd]..........................................................
A Veness, Associate
Date of Hearing: 11 February 2011
Date of Decision: 24 February 2011
Applicant counsel: Mr M Vincent
Respondent counsel: Mr G Purcell
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