Whitworth and Repatriation Commission - [2002] AATA 861

DECISION AND REASONS FOR DECISION [2002] AATA 861

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/795

VETERANS' APPEALS DIVISION     )
           Re      ALICE WHITWORTH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date26 September 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  .........Sgd. Mr J. Handley................
  Senior Member
CATCHWORDS
Veterans Entitlements : Deceased washed aircraft parts and his overalls in aircraft fuel - whether fuel contained benzene - whether benzene contributed to pancytopenia - whether death by pneumonia - whether death hastened - whether death by pancytopenia - decision affirmed.
East v Repatriation Commission 1987 74 ALR 518
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 116210
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Whetton (1991) 24 ALD 33

REASONS FOR DECISION

26 September 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 11 May 2001. The VRB then decided to affirm a decision previously made by the respondent on6 May 1999 which refused a claim made by the late Ronald Albert Whitworth for medical treatment and pension for incapacity by reason of the condition, multiple myeloma.
The late Mr Whitworth died on 1 March 1999 aged 73 years. Death was certified as "pneumonia-two days: pancytopenia-months; multiple myeloma-months".
In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, the solicitors for the applicant submitted that pancytopenia was "one of the causes and a contributing factor of death". It was submitted that a reasonable hypothesis existed between the exposure of the deceased to benzene in service and pancytopenia. It was also submitted that a Statement of Principles did not exist with respect to this condition and the claim was to be determined upon the beneficial standard of proof namely, reasonable hypothesis. The respondent submitted that death was by multiple myeloma for which Instrument No 72 of 1999 applied. It was submitted that there were no factors within paragraph 5 of that Instrument which could establish a reasonable hypotheses connecting death with service.
The hearing commenced in Mildura on 25 June 2002 and resumed in Melbourne on 11 July 2002. In Mildura, evidence was heard only from Mrs Whitworth. Mrs Black appeared on behalf of Mrs Whitworth and Mr Douglas appeared on behalf of the respondent.
Alice Whitworth
Mrs Whitworth is the widow of the late Ronald Whitworth. Mrs Whitworth said that she met her husband in Mildura in 1943, became engaged to him in 1948 and married in 1949. She said that her husband served in Borneo, Moroati and Labuan. Later she said he volunteered to serve in Japan. At all relevant times Mr Whitworth was an aircraft mechanic.
Mrs Whitworth said that her husband described his job as having to repair aeroplanes and by reason of the absence of adequate parts and supplies, planes were frequently stripped and rebuilt which involved extensive washing of metal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whitworth and Repatriation Commission

Details

AGLC: Whitworth and Repatriation Commission [2002] AATA 861
Case: [2002] AATA 861
Decision Date: 26 September 2002

CaseChat Overview and Summary

The case of Whitworth v Repatriation Commission involved the applicant, Whitworth, seeking a review of a decision made by the Repatriation Commission regarding the entitlement of benefits for the deceased, who had died from causes including pneumonia, pancytopenia, and multiple myeloma. The matter was heard and determined by the Federal Court of Australia. The central issue before the Court was whether the deceased's service in the armed forces contributed to or hastened his death from pneumonia and pancytopenia. The Court had to consider if the exposure to high octane fuel containing benzene during service could have caused or exacerbated these conditions, ultimately leading to or hastening his death.

The Court examined the evidence provided, including expert medical opinions, and the statements of principle relevant to the case. The evidence suggested that the deceased could have been exposed to benzene, which is known to cause pancytopenia. However, the Court also noted that the deceased had multiple myeloma, a condition that independently could have caused pancytopenia. The Court had to determine if the service-related exposure to benzene could have contributed to or hastened the deceased's death from pneumonia. The medical evidence indicated that pneumonia could have been a result of the deceased's compromised immune system due to pancytopenia, but it was not clear whether the pneumonia was severe enough to have hastened his death.

In its reasoning, the Court considered the well-established principles from previous cases such as East v Repatriation Commission, Bushell v Repatriation Commission, and Byrnes v Repatriation Commission, which set out the criteria for establishing a reasonable hypothesis connecting service with death. The Court concluded that while there was a possibility that the deceased's exposure to benzene during service could have contributed to his pancytopenia, the evidence did not support that the pneumonia was severe enough to have hastened his death. Therefore, the Court affirmed the Commission's decision that the service did not contribute to or hasten the deceased's death.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Earlier in his report he concluded "Pancytopenia may also be present secondary to the extensive marrow infiltration. Treatment of multiple myeloma by chemotherapy and radiotherapy may further exacerbate the pancytopenia."Conclusion and Reasons for Decision The deceased died from causes certified as "pneumonia - 2 days; pancytopenia - months, multiple myeloma - months." The applicant's representatives did not advance a connection between death from multiple myeloma and service because that hypothesis clearly did not meet any of the applicable factors in Statement of Principle No. 72 of 1999. The factors within that Instrument which must exist as a minimum before a reasonable hypothesis could be raised connecting death from multiple myeloma and service are being within 4 kilometres of the epicentre of the atomic explosions in Japan, being occupationally required to work as a painter, spraying or decanting herbicide 2,4-D or 2,4,5-T, being on land in Vietnam or at sea in Vietnamese waters for at least 30 days and then for at least 5 years before the clinical onset of multiple myeloma or the inability to obtain appropriate clinical management for it. It is clear from the material raised by these proceedings that none of the above factors could be satisfied by Mrs Whitworth and it follows that even if this had been raised as a hypothesis, it would not be "reasonable" because it would not be consistent with the "template" as found within the Statement of Principle (refer Repatriation Commission v Deledio 1998 49 ALD 193 at 206). Statements of Principle have not been issued by the Repatriation Medical Authority with respect to the remaining two certified causes of death namely pneumonia and pancytopenia. Accordingly, the reasonableness of any hypothesis connecting death from these conditions with service is to be determined by the well known principles advanced in East v Repatriation Commission 1987 74 ALR 518, Bushell v Repatriation Commission (1992) 109 ALR 30, Byrnes v Repatriation Commission (1993) 116210. The condition of pneumonia was not raised by the applicant prior to the commencement of the hearing as a reasonable hypothesis between service and death. It was first raised during the proceedings. It arose from the evidence of Mr Stacy who said that during service in Japan persons who attended sick parade frequently did so because of colds and rashes. In addition to this evidence, Dr Collins said that the pneumonia suffered by the deceased could have been caused by his inability to resist infections because of alterations to his blood cells. Dr Collins said further that pneumonia was not uncommon in the case of persons who suffer pancytopenia, however death would have been hastened only if the pneumonia was severe. Professor Fox said that he regarded it as being speculative that the deceased suffered from a chest infection in Japan which had an association with exposure to high octane fuel. In East v Repatriation Commission the Federal Court examined the words "hypothesis" and "reasonable".

Ratio Decidendi

Legal Principle Established

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