Whitford and Repatriation Commission - [2000] AATA 220

DECISION AND REASONS FOR DECISION [2000] AATA 220

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/248

VETERANS APPEALS DIVISION )

Re LORNA WHITFORD
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date16 March 2000
PlaceMelbourne

Decision The decision under review is affirmed.

........Sgd. Mr J. Handley............
Senior Member
CATCHWORDS
Veterans Affairs – Respondent conceded nexus between service and smoking – parties agreed smoking ceased in 1968 – whether to apply SoP applying at date of primary decision or at date of AAT review – Keeley applied – decision affirmed.
Repatriation Commission v Keeley 2000, 30 AAR 48

REASONS FOR DECISION

16 March 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board (the "VRB") made on 7 January 1999 which affirmed a decision previously made by the respondent where it determined that the death of Frederick James Whitford was not war-caused.
Mrs Whitford is the widow of the late Mr Whitford who died on 9 November 1997. The deceased was a member of the Australian Army between 17 December 1941 and 28 November 1945 and was engaged in operational service in the Northern Territory and the South West Pacific.
The death of Mr Whitford was certified to be by "disseminated carcinoma of the prostate and ischaemic heart disease". Initially the hypothesis advanced on behalf of Mrs Whitford was that there was a relationship between her husband's service diet, his consumption of fatty foods as a civilian and the prostate carcinoma. That hypothesis was abandoned at the hearing before this Tribunal. The hypothesis advanced was that a relationship existed between the deceased's cigarette consumption and the presence of ischaemic heart disease.
Upon the hearing Mr Hyde appeared on behalf of Mrs Whitford and Mr Rudge appeared on behalf of the respondent. The hearing commenced in Mildura on 28 January. Evidence was heard from Mrs Whitford and the treating General Practitioner of the deceased, Dr Joyce. The hearing was adjourned part-heard for resumption in Melbourne on 6 March where evidence was heard from Dr Harper on behalf of the respondent.
At the date of the primary decision the relevant Statement of Principle for Ischaemic Heart Disease was Instrument 140 of 1996.
The relevant factor which must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease was factor 5e, which provided
"smoking at least five cigarettes per day or the equivalent thereof in other tobacco products at least three years before the clinical onset of ischaemic heart disease and where smoking has ceased the clinical onset has occurred within 15 years of cessation".

That Statement of Principle was subsequently amended by Instrument Number 80 of 1998 and Instrument Number 38 of 1999. For the purposes of this decision, the relevant factor in Instrument No. 38 of 1999 (which repealed Instrument No. 80 of 1998) is 5(e)(iii) which, in a case where smoking has ceased, says-
"'(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation'; or"
In the present application Mr Hyde said that the evidence of the widow would be that the deceased ceased smoking in 1968. This was because the widow was able to recall that the deceased ceased smoking the year before the marriage of one of their daughters. The differing factors under the above Statements of Principles were, in the present case, he submitted, critical because evidence would be given by the respondent pointing to the clinical onset of ischaemic heart disease at August 1991 when the deceased was then suffering the onset of a myocardial infarction. Mr Hyde submitted that despite the decision of Heerey J in Repatriation Commission v Keeley 2000, 30 AAR 48, it was open to the Tribunal to interpret that decision as permitting veterans to exercise a discretion to either rely on a Statement of Principle that applied at the date of primary decision or a Statement of Principle that applied at the date of subsequent AAT review or at some other time. It was in the circumstances clearly in the interests of Mrs Whitford to have the most recent Statement of Principle found to be applicable in her case because it was anticipated that Doctor Joyce would give evidence that the clinical onset of ischaemic heart disease was earlier than 1991 thereby permitting a finding that the clinical onset occurred within 20 years of cessation of cigarette smoking.
Mr Rudge conceded the deceased ceased smoking in 1968. Additionally he conceded that a connection existed between the service of the deceased and taking up cigarette smoking.
Lorna Mary Whitford
Mrs Whitford said that she met her husband before he commenced service. She said that he did not then smoke cigarettes but he took it up during service. She said that he would write her letters referring to the allocation of cigarettes to army personnel. She said that he commenced a cigarette smoking habit of between 20 and 30 cigarettes per day but ceased smoking in 1968 on advice from his doctor.
Despite being admitted to hospital in 1975 for treatment of varicose veins, her husband, subsequent to discharge from service, offered a pretence of good health yet he suffered initially from malaria and migraines and also suffered chronic indigestion. She said he was reluctant to attend doctors and never complained about his health. She said her husband frequently was seen to be rubbing his chest and a brown or grey pigmentation existed on his lower chest which she was told by a doctor was evidence of a past blood clot.
In 1991 Mr Whitford apparently suffered severe chest pain and was observed at home to be rubbing his chest. He took pain killing medication, which relieved the pain, but it returned on the following day and he was eventually admitted to hospital in cardiac failure.
In cross-examination Mrs Whitford said that her husband was admitted to hospital in September 1975 for varicose veins and was again admitted in October 1975 because of a pulmonary embolus. (These dates were confirmed from the clinical notes of Dr Joyce, which were received into evidence). Mrs Whitford said that she was told by a doctor that a blood clot had been found in her husband's lung and that it had originated from the varicose veins surgery. She said that there were no tests undertaken by him or recommended to him to determine whether he then suffered any cardiac damage. She said with respect to her husband's chronic indigestion that he was forever taking peppermint lollies.
Dennis Joyce
Dr Joyce is a General Practitioner in practice in Mildura. He was treating the deceased at the time of death and had treated Mr Whitford from April 1985. His notes were received into evidence. He said that at first consultation he found the deceased to be in good health with "no major problems". He said over the next few years the applicant attended for minor complaints however on 9 February 1989 he attended Mr Whitford with a complaint of chest pain. His notes record "muscle pain intermittently around chest. Tingling in left forearm".
Dr Joyce said that at that time he diagnosed the pain to be arthritic or muscular in nature although with the benefit of hindsight he acknowledged that it could have been the manifestation of underlying cardiac disease.
Dr Joyce provided two reports to the solicitor for Mrs Whitford dated 30 July 1999 and 30 August 1999. The report of 30 July 1999 reads as follows-
"I have no evidence of Mr Whitford having ischaemic heart disease prior to 1991, when he had his heart attack, however the disease must have been present and building up prior to 1991. I believe this to be so because his angiogram on 16 August 1991 showed significant disease and would not have occurred "overnight".
In the report of 30 August 1999 (apparently provided after further information was sought as to the onset of ischaemic heart disease) Dr Joyce concluded.
"I believe on balance that his ischaemic heart disease would have been present for five or more years prior to the myocardial infarction in 1991".
Dr Joyce was asked to comment upon when the deceased was likely to have suffered the clinical onset of ischaemic heart disease. He said he was uncomfortable with the words "clinical onset" and questioned what was intended to be meant by these words. He used by way of example breast screening of women where a clinical finding of breast cancer may be apparent. He said that the onset of disease does not commence at the time of clinical finding of it. In his experience, patients attend for treatment because the long-standing disease is manifesting in symptoms.
He said that the infarct suffered by the deceased in 1991 was the result of the earlier presence of disease and the presence of cardiac damage. He said that he has subsequently spoken to a cardiologist about the development of plaque and its relationship to subsequent infarcts and was told that "it takes a long time" for an infarct to occur after the first development of cardiac disease. He said he also recently read an article from a medical journal where the author of the article recorded that there may be "decades" between the first presence of disease and an ultimate infarct. He said he had passed this information onto the cardiologist who gave the above opinion and said that the cardiologist agreed.
In these circumstances Dr Joyce said that the clinical onset in the present case occurred "some decades prior to the infarct in 1991".
Dr Joyce was asked to comment on an opinion given to the respondent from Professor Richard Harper who, in a report dated 6 December 1999, said that the clinical onset of ischaemic heart disease in the present case was on 4 August 1991 when the deceased was then diagnosed as suffering from an infarct. Dr Joyce said that he disagreed with that opinion and said that Professor Harper apparently preferred the view that a finding of the presence of symptoms was the date of clinical onset. Dr Joyce said that cardiac disease may be present without symptoms and in those circumstances he said that the clinical onset of ischaemic heart disease with respect to Mr Whitford occurred well before 1991.
In cross-examination Dr Joyce agreed that a distinction could be drawn between what could be found at "clinical onset" and what could be found at "onset". He agreed that the onset of the ischaemic heart disease would have been before 1991 and agreed that the clinical onset of a disease means the finding of the presence of the disease in a clinical setting or context or environment.
When he reviewed his notes Dr Joyce said that he could find nothing after 1984 (when he first treated the deceased) which would suggest that cardiac disease was present prior to the infarct of 1991 (subject to the earlier query that he raised as to the appropriate diagnosis for the presentation of chest pain in 1989).
Dr Joyce agreed with the contents of a report written by Dr Laver who in a report of 10 August 1991 addressed to Dr Joyce recorded (following admission to Repatriation Hospital in Melbourne)-
"….. he had no past history of coronary artery disease ……"
With respect to the treatment for varicose veins and pulmonary embolism in 1975, Dr Joyce said that he was not then treating the deceased however he said that there probably was a relationship between the varicose veins surgery and the subsequent embolis. He also said that a pulmonary embolis often causes chest pain.
In re-examination Dr Joyce said that the presentation to him by Mr Whitford on 9 February 1989 could in retrospect be the occasion of the clinical onset of coronary artery disease yet he could find nothing in his notes to find the onset to be at any earlier date. Dr Joyce regarded the use of the word "clinical" in the circumstances to be superfluous because he understood the word in context to refer more to symptoms rather than pointing to or indicating the presence of disease.
Richard Harper
Dr Harper is a consultant cardiologist who provided a report at the request of the respondent dated 6 December 1999. He had also perused the clinical notes of Dr Joyce prior to preparing his report. It was his opinion that there was no clinical evidence of ischaemic heart disease prior to the infarct suffered by the deceased on 4 August 1991.
In reaching this conclusion Dr Harper relied on a "definition" of "clinical onset" that was relayed to him by an advocate at the Department of Veterans Affairs. Dr Harper reported in part as follows-
"Using the definition of "clinical onset" as the time at which the "symptoms of the condition became sufficiently significant to warrant diagnosis and treatment of the condition" on all the evidence that I have seen the clinical onset was at the time of veterans heart attack on 4 August 1991".
Dr Harper was asked to comment upon a note in the clinical records of Dr Joyce of 9 February 1989 which recorded-
"Muscle pain intermittently around chest – tingling in left forearm? Secondary to osteoarthritis of cervical spine".

Dr Harper said that the symptoms recorded against that entry indicated to him that the deceased's pain was muscular in nature because the entry suggested to him that the patient complained of pain movement. Nonetheless Dr Harper agreed that cardiac pain can be similar in nature to chest pain and "left arm tingling" is a symptom of cardiac failure. However he said as a cardiologist he could not be satisfied on that entry alone that the pain and the symptoms had a cardiac origin. He also dismissed varicose eczema (reported also by the late Mr Whitford on the same day) as being relevant.
Dr Harper was also of the opinion that the deceased had made a "complete recovery" from pre-existing illness of deep venous thrombosis and pulmonary embolus. He acknowledged that the deceased could have had chest pain at about the time that he suffered from the embolus but that pain would have resolved and would not have been longstanding.
Dr Harper was of the opinion that the deceased would have had narrowing of his arteries present "for a long time before the attack" but it did not produce any symptoms.
In cross-examination Dr Harper said that he could not exclude the chest pain reported at examination on 9 February 1989 as being related to ischaemic heart disease but in the absence of any evidence of angina at or about 1989 with ongoing symptoms, it was his view that it was unlikely that the clinical onset of ischaemic heart disease was in 1989.
Submissions
Mr Hyde submitted that the concept of "clinical onset" permitted a finding that the symptoms reported by Mr Whitford at the consultation on 9 February 1989 pointed to ischaemic heart disease. He said within the context of the Veterans Entitlements Act 1986 being beneficial legislation, the Tribunal could with the benefit of the evidence of Dr Harper and Dr Joyce find that the clinical onset occurred at least at February 1989.
Mr Hyde also submitted that it was open to the Tribunal to find that the deceased suffered from angina on 9 February 1989. This submission was put by reference to the definition of "ischaemic heart disease" as it appears within the relevant Statements of Principles recording that angina is a factor, which would point to the presence of ischaemic heart disease.
Mr Hyde also referred to a decision of the Tribunal in Re Robertson and Repatriation Commission 1998 AAT A127 where at paragraph 23 the Tribunal recorded-
"On that evidence we considered that there is a clinical onset of the disease either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time".

Mr Hyde referred to the recent decision in Keeley and submitted that His Honour did not conclude that only Statements of Principles applying at the date of the primary decision need be applied. He said it was open to the Tribunal to conclude from the decision that an applicant can choose which Statement of Principle applies where Statements of Principles have altered subsequent to the date of primary decision. In these circumstances he submitted that Instrument No. 38 of 1999 applies. It followed he submitted that having regard to the respondent's concession of a connection between service and cigarette smoking and the mutual agreement of cigarette smoking having ceased in 1968 and the deceased previously having smoked "at least 20 pack years of cigarettes", that the applicant widow could satisfy this latter instrument because it was open to the Tribunal to find the clinical onset of ischaemic heart disease in 1988 (20 years after 1968). Mr Hyde submitted that the Tribunal should find that the deceased gave up cigarette smoking in late 1968. It followed he said that by reason of the presence of ischaemic heart disease manifesting at consultation on 9 February 1989 (refer earlier submissions) that the Tribunal should find as a fact that the clinical onset of ischaemic heart disease would have been at least in late 1988 thereby being within 20 years of the ceasing of cigarette smoking. This submission he said was reinforced by the undoubted presence of ischaemic heart disease at 1991 when the deceased suffered his infarct.
In the context he submitted of beneficial legislation and the intention of the Parliament to ensure that Veterans continue to have the benefit of a reverse onus of proof, coupled with a sufficiency of evidence (he submitted) that the clinical onset of ischaemic heart disease occurred in late 1988, the Tribunal should find that factor 5(e)(iii) of Instrument No. 38 of 1999 applies in the present case.
Mr Hyde submitted that whilst he could not point to anything in the clinical notes to demonstrate the presence of ischaemic heart disease prior to 9 February 1989 he urged a finding of looking at other evidence to point to the presence of ischaemic heart disease, for example the deceased having complained to his wife of chest pain and having been observed clutching his chest. He said it would be perverse and wrong for the Tribunal to find that "clinical onset" meant a concept of diagnosis of a condition by a Doctor of a patient in a clinical environment. It followed, he submitted that if a veteran was obviously ill and did not attend a Doctor for treatment that the concept of "clinical onset" could not be satisfied. He submitted that such a concept would offend the legislation and could not have been envisaged by the Parliament.
Mr Rudge submitted that on the evidence of Dr Joyce and Dr Harper that the complaints of chest pain in the mid 1970's could only have been referable to the pulmonary embolus from which the deceased apparently made a good recovery. He submitted that the clinical presentation of Mr Whitford, at that time, could not be by reason of the presence of ischaemic heart disease.
With respect to the decision of Keeley Mr Rudge submitted that whilst it was the position of the Department of Veterans Affairs to urge a Full Federal Court (this decision is waiting appeal) that the Statement of Principle that should apply is that which exists at the date of AAT review, he acknowledged that the present law was as decided by Heery J, in Keeley namely the Statement of Principle which does apply is that which existed the date of primary decision.
In those circumstances he submitted that the Tribunal should apply instrument No. 140 of 1996 which provides for the clinical onset occurring within 15 years of cessation of cigarette smoking. It followed he submitted that there must be a finding of ischaemic heart disease at or before 1983 being 15 years after 1968. He submitted that there was no evidence to point to the presence of ischaemic heart disease at or about that time and in those circumstances the application must fail.

Mr Rudge said that the only evidence of the clinical onset of ischaemic heart disease was that found by Dr Joyce at the time the deceased suffered his infarct in 1991. He acknowledged that whilst the symptoms presenting on 9 February 1989 of muscular pain around the deceased's chest and tingling in his left arm could be evidence of symptoms having a cardiac origin, there was no evidence of this at that time nor was there any tests or examinations or investigations or anything to point to those symptoms being referable to ischaemic heart disease. Additionally there was nothing in the clinical notes nor any other evidence to point to ongoing symptoms before 1989.
He submitted that the only evidence to which the applicant could point to establish the clinical onset of ischaemic heart disease was the presence of 2 ½ hours of central chest pain prior to the infarct on 4 August 1991. There was, he submitted, no evidence to which the widow could point of an earlier history of heart disease.
Mr Rudge submitted that the concept of "clinical onset" did not necessarily mean the occasion of the diagnosis of an illness or a disease but on occasion where the diagnosis can be made in the circumstances of earlier symptoms. That is to say having regard to the decision in Re Robinson it is open to a clinician to find that the clinical onset occurred at a point in time when the doctor or a patient learnt that symptoms that were then being complained of were referable to an illness or a disease which a party sought to have connected to service.
Conclusion & Reasons For Decision
Despite a valiant attempt by Mr Hyde to advocate that his client could be bought within the ambit of the most recent Statement of Principle, I am satisfied that an interpretation of Keeley would not permit this conclusion.
In fact His Honour decided that "as a matter of justice and fairness" the principles concerning the application of amending or appealed legislation, enshrined in the Acts Interpretation Act 1991, dictated that the law in force at the time an event occurred was to be applied.
At page 56 His Honour concluded-
"But the need for consistency of decisions by lay Tribunals is equally met by applying the SoP existing at the time of the primary decision".
It therefore follows that Instrument No. 140 of 1996 applies in the present application. It provides that a reasonable hypothesis will be raised connecting ischaemic heart disease or death from ischaemic heart disease with service if – where smoking has ceased – the clinical onset has occurred within 15 years of cessation (of smoking).
I am satisfied and find as a fact that the late Mr Woodford ceased smoking in 1968. It follows therefore that this claim can only succeed if there is material, which points to the presence of ischaemic heart disease at or before 1983 (being 15 years subsequent to 1968). On the basis of the opinions of Dr Joyce, Dr Lavers & Dr Harper, there is no such material.
Dr Joyce in his report of 30 August 1999 concluded that ischaemic heart disease "would have been present for 5 or more years prior to the myocardial infarction in 1991". This opinion is so broad and unsupported that it would not permit a conclusion that the clinical onset of ischaemic heart disease was at 1983. It is an opinion which does not amount to 'material' to which the widow can 'point' in support of her appeal.
As Mr Hyde conceded at the hearing, the widow could only succeed in this application if the most recent Statement of Principle were applied. That concession was properly made.
In all of the circumstances factor 5(e) of Instrument No. 140 of 1996 does not exist as a minimum. It follows that no reasonable hypothesis has been raised connecting ischaemic heart disease with the death of the late Mr Whitford.
The decision under review must be affirmed.
I certify that the 54 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  28/1/00 & 6/3/00
Date of Decision  16 March 2000
Counsel for the Applicant        D. Hyde
Solicitor for the Applicant         Peter J. Liefman
Counsel for the Respondent
Solicitor for the Respondent    Mr K. Rudge, Departmental Representative