Whamond and Repatriation Commission - [2000] AATA 1042

DECISION AND REASONS FOR DECISION [2000] AATA 1042

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/374

VETERANS APPEALS DIVISION           )
           Re      THELMA WHAMOND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date17 November 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  ........Sgd. Mr J. Handley........
  Senior Member
CATCHWORDS
Veterans' Entitlements – WWI Veteran – whether exposed to mustard gas – whether suffered 'chronic bronchitis' – which Statement of Principle applied – decision affirmed.
Veterans Entitlements Act 1986 s.119
Keeley v Repatriation Commission 1999 56 ALD 455
Repatriation Commission v Keeley 2000 98 FCR 108
Re Reading and Repatriation Commission 2000 AATA 841
Re Ryan and Repatriation Commission 2000 AATA 849
Re Olsen and Repatriation Commission (2000) AATA 909
Repatriation Commission v Deledio [1998] 49 ALD 193

REASONS FOR DECISION

17 November 2000 Mr J. Handley, Senior Member

This is an application to review a decision of the Veterans Review Board ("VRB") made on 8 January 1999. The VRB then affirmed a decision made by the respondent which determined that the death of Frederick Charles Whamond was not related to service.
This application is brought by Thelma Whamond, widow of the above named deceased.
Mr Whamond was born on 10 July 1900, and died on 5 July 1986. He was a member of the Australian Imperial Force and allotted to the Second Australian Field Artillery Brigade. He enlisted on 24 June 1915 and was discharged on 23 August 1919. Part of the service of Mr Whamond was in Egypt, France, Belgium and England.
A death certificate was not within the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, however a medical certificate completed by a Doctor at the Repatriation General Hospital on the day of death recorded the cause as "cerebro vascular accident – 5 months".
At the hearing Mrs Whamond was represented by Mr Moore of Counsel. The respondent was represented by Mr Rudge. Evidence was heard from Professor Pain, a respiratory physician at the Royal Melbourne Hospital and Mr John Bullen a retired archivist with the Australian War Memorial.
The hypothesis advanced by the applicant was defined (refined) at the hearing. The hypothesis advanced was that the deceased was exposed to mustard gas whilst serving in France which in turn produced chronic bronchitis which was the origin of pneumonia which contributed to death. Alternatively, the chronic bronchitis for which the deceased was alleged to have suffered precipitated inactivity in later years which contributed to the cerebro-vascular accident which was the terminal event.
There were a number of significant issues which needed to be addressed by the applicant in order to demonstrate a hypothesis that was reasonable connecting service with the death of her husband. Those issues were-
1. Which Statement of Principle applied and;
2. Whether the deceased was exposed to mustard gas and;
3. Whether the deceased did suffer from "chronic bronchitis" as defined.
This application commenced by a primary claim upon the respondent on 5 June 1996. At that time Instrument Number 17 of 1994 entitled "Chronic Airflow Limitation" existed. At the date of hearing – 8 November 2000-Instrument Number 73 of 1997 entitled "Chronic Bronchitis and Emphysema" applied. Mr Moore conceded at the commencement of the hearing that the widow could not succeed under Instrument Number 17 of 1994 being the Instrument that applied at the date of the commencement of the claim. That concession is properly made. He submitted that the applicant could only succeed under Instrument No. 73 of 1997 because of its reference to mustard gas. The relevant reference within Instrument Number 73 of 1997 is at factor 5(c) which says-
"The factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema, with the circumstances of a persons relevant service are-
(a) …..
(b) …..
(c) being exposed to mustard gas or Lewisite within 10 years immediately before the clinical onset of chronic bronchitis and/or emphysema; …."
The issue of which Statement of Principle applies has recently generated a number of decisions in both this Tribunal and the Federal Court. Heerey J made a decision with respect to which Statement of Principle applies in the decision of Keeley v Repatriation Commission 1999 56 ALD 455. On appeal by the Repatriation Commission against that decision a Full Federal Court affirmed the decision of Heerey J (2000 98 FCR 108).
Recently, this Tribunal decided to follow the decision in Keeley and decided that the Statement of Principle which existed at the date of the claim was the Instrument that should be applied (refer Re Reading and Repatriation Commission 2000 AATA 841 and Re Ryan and Repatriation Commission 2000 AATA 849). Both of the decisions in Re Reading and Re Ryan were delivered by Deputy Presidents. On 18 October 2000 Senior Member Lewis in Re Olsen and Repatriation Commission (2000) AATA 909 decided that the Statement of Principle which existed at the date of the hearing should be applied.
It follows therefore that on this issue alone the applicant would only be able to establish a reasonable hypothesis if Instrument No 73 of 1997 is applied.
For reasons, which follow, it is not necessary to decide which Instrument applies in the present application nor whether there is material which points to the deceased being exposed to mustard gas because I am not satisfied that the deceased did suffer from "chronic bronchitis".
In reaching this conclusion some explanation is necessary.
Instrument Number 17 of 1994 (which Mr Moore concedes and with which I agree with his concession) being the Statement of Principle applying at the date of claim is of no assistance to Mrs Whamond. It makes no reference at all to mustard gas and none of the other factors are applicable. It follows therefore that Mrs Whamond could not succeed under Instrument Number 17 of 1994 if, as a matter of law, it is the Instrument which applies.
Instrument Number 73 of 1997 being the instrument that existed at the date of the hearing contains a definition of "chronic bronchitis". This instrument is of course only relevant if as a matter of law it is to be applied in this application. For the purposes however of this review if it did apply I am not satisfied that Mrs Whamond could satisfy the definition of "chronic bronchitis" as defined within that instrument. "Chronic bronchitis" is defined at paragraph 2 (b) of Instrument 73 of 1997 as follows-
"Chronic bronchitis means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation with or without a reversible component. There are four categories of chronic bronchitis; chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchoialitis and chronic obstruction from bronchoialitis".
Mr Rudge conceded that the deceased did suffer from pneumonia, which contributed to his death. He also conceded that pneumonia had its origin in chronic bronchitis but it was only conceded that chronic bronchitis existed from the 1960's or 1970's (consistent with the evidence of Mrs Whamond) being the period within which the deceased attended the Repatriation Hospital for treatment. In the alternative, chronic bronchitis was not conceded as being suffered by the deceased before the 1960's. It follows by this concession that the deceased could not satisfy factor 5(c) of the latter instrument (if it applied).
Mr Moore submitted that there was insufficient "evidence" to permit a finding of chronic bronchitis prior to 1926 (being the expiration of 10 years from 1916 when bronchitis is first referred to in the medical records). However it was submitted that there was sufficient "material" to permit an inference of the deceased having suffered chronic bronchitis from 1917 and that chronic bronchitis continued. It was submitted that there were references within the T-documents, which would permit a finding of the deceased suffering more than "simple bronchitis" or viral bronchitis. It was also submitted that the provisions of s.119 of the Veterans Entitlements Act 1986 should be applied in favour of the widow and in all of these circumstances the four stages of Repatriation Commission v Deledio (1998 49 ALD 193 at 206) applies and the widow should be found to have satisfied the latter Statement of Principle and a reasonable hypothesis has therefore been established.
These concessions are of course predicated on a finding of the latter Statement of Principle having application to the present claim. As indicated above no decision on that point will be made because I am not satisfied that the deceased did suffer from "chronic bronchitis".
Mrs Whamond said that she first met her husband in about 1937 being 18 months before they married in 1939. She said that he then had a "weakness" in his chest. She recalled that he suffered from colds and congestion and he "wheezed". She said these symptoms persisted throughout their marriage but worsened in later years.
Mrs Whamond said that from the early 1940's (shortly after marriage) her husband would suffer from a "cold" once or twice per annum. She said he would produce a green sputum and each of these episodes would last for three or four days and were relieved by antibiotics. Later in her evidence she said that these episodes lasted between five and seven days.
In re-examination Mrs Whamond said that her husband coughed only when he had "attacks" and then only produced sputum. She could not recall when "chronic bronchitis" was diagnosed but she understood that her husband suffered from it throughout marriage. From the 1960's and 1970's she said her husband attended a doctor on three or four occasions per annum for medication of bronchitis and he was also frequently required to rest and had been recommended by his general practitioners to attend the Repatriation Hospital for treatment.
In his report of 14 February 2000 Professor Pain said that it was "not reasonable to deny that Mr Whamond had developed chronic bronchitis within 10 years of his gassing episode. The fact that his chest was "clear" at the physical examination in 1920 and 1922 does not rule out the presence of simple bronchitis".
In concluding his report Professor Pain said-
"I think Mr Whamond developed chronic bronchitis within 10 years of his gassing episode and this gradually developed into obstructive bronchitis. This made him more liable to develop pneumonia during his final hospital admission and this contributed to his death. I cannot relate the onset of cerebro vascular event with cerebral infarction to his army service. It is possible, although from the medical files not proven that he developed a phrenic nerve palsy leading to diaphragmatic weakness as a result of the shrapnel injury".
In evidence Professor Pain said that he reported the deceased suffered from chronic bronchitis "within 10 years" because there is a record of hospital admission in 1917 for "bronchitis".
In cross-examination Professor Pain agreed, upon the evidence of Mrs Whamond, that if her husband suffered from a cold on one or two occasions per annum which produced a cough and sputum of five to seven days duration, that the definition of "chronic bronchitis" as found within the instrument number 73 of 1997 was not satisfied. He said on reflection that the deceased probably then suffered from an acute infective bronchitis or a "simple bronchitis" in the period following his service.
The T-documents record at page 12 that the deceased was admitted to a divisional rest station "suffering with bronchitis" on 15 February 1917 but returned to duty on 18 February 1917. A similar reference is found at page 13. There are many references throughout the T-documents to the deceased alleging that he was "gassed" in 1916 and it was submitted that the origin of the bronchitis was the mustard gas exposure. Whilst the exposure to mustard gas was denied by the respondent there continues to be references throughout the T-documents to bronchitis and 'influenza'. (refer page 16). There is another reference to 'influenza' in 1921 (page 18) although that diagnosis is queried. At a medical examination on 2 February 1951 the applicant's chest was reported as being "clear". At a medical examination on 3 June 1960 the deceased was found not to have had a "chronic cough" (page 25).
At page 34 there is a claim completed by the deceased in 1979 referring to 'arthritis caused through spine fracture and bronchitis'. The symptoms described by Mr Whamond for those conditions were "severe spinal pain and breathing difficulties". When asked to record when he first noticed these symptoms Mr Whamond recorded "after returning to Melbourne attacks have been severe but also had problem before being discharged". Later he refers to the condition of "bronchitis over the years" and identified doctors who treated him.
There was much argument at the hearing concerning the meaning of the words that appear within this form. I am prepared to infer that the words "breathing difficulties" relate to the condition of "bronchitis" and the words "severe spinal pain" relate to the condition of "arthritis caused through spine fracture". The meaning of the word "attacks" is unclear and I am unable to infer that that word relates to the symptoms experienced from bronchitis or the symptoms experienced from the back injury. There are many references throughout the T-documents to the gassing episode occurring at or about the time the applicant suffered a back injury. The use of the word "severe" identifies his subjective reaction to the symptoms constituting the "attacks" and the words "before being discharged" assist identifying the duration of bronchitis because both it and the back injury did exist before discharge.
I am not satisfied however that the material within the T-documents points to "severe" bronchitis "before being discharged" because the only reference to bronchitis is in the hospital admission in February 1917 which was then for a period of three days. There are references subsequently to "influenza" but on examination in 1951 (page 18) and the medical notes of 1960 (page 25) do not point to "chronic bronchitis" at or about those times or at any time previously.
A report at page 41 dated 3 June 1980 refers to the deceased having "had some cough and sputum for some years". There was a reference also at page 39 to the deceased having a daily cough producing sputum and a diagnosis actually being made of "chronic bronchitis". That diagnosis is confirmed following chest x-ray on 18 August 1982 (page 45).
The T-documents and the evidence of Mrs Whamond therefore suggest to me that the deceased did develop chronic bronchitis more likely in the 1970's than the 1960's however I can find no material which points to the presence of "chronic bronchitis" (as defined) within the period of 10 years following the alleged gassing episode in 1917. (Factor 5(c)).
In the absence of material pointing to the presence of chronic bronchitis, all of the elements necessary to raise a reasonable hypothesis do not exist as a minimum. The review, in so far as this hypothesis is concerned, must fail.
There was no material at all pointing to a hypothesis of chronic bronchitis causing inactivity leading to cerebro vascular accident precipitating death. This hypothesis must also fail.
The decision under review must therefore be affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         .....Carolyn Irons .............................................
  Secretary
Date/s of Hearing  8/11/00
Date of Decision  17 November 2000
Counsel for the Applicant        Garry Moore & John Ball (John Ball & Sons)
Solicitor for the Applicant
Counsel for the Respondent    Ken Rudge (Department of Veterans Affairs)
Solicitor for the Respondent