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 parts in petroleum. Additionally she said that her husband had told her that his overalls were washed in petroleum and he would frequently wash his hands with the same substance. She recalled that he had skin rashes after he returned from service for the remainder of his life. Initially she said that her husband suffered from boils and carbuncles and he was also "poisoned". She said that he bathed with special soaps and she used special detergents when washing his clothes.
In cross-examination Mrs Whitworth said that her husband was an aircraft mechanic and fitter, although when pressed by Mr Douglas, Mrs Whitworth said that she had assumed that he was a fitter. Apparently the service records indicate that he was an aircraft mechanic only.
The applicant said that she and her husband frequently talked about his experiences in service and he had often told her that he washed aircraft parts with petrol and/or aircraft fuel in addition to washing his overalls in it.
The applicant said that she did not speak of the use of petrol as a washing agent during service when she attended at the VRB because she was not ever asked about it. Additionally she said that she did not ever prepare a statement or proof of evidence because the VRB had never asked for such a document. She acknowledged that Dr Woolfe had provided a medical report at the request of Legacy, however she had not ever been interviewed by him.
With respect to the cause of death, Mrs Whitworth was taken to the medical reports of Dr Marrows which were obtained by the respondent and lodged with the Tribunal. At page 18 of his files there is a report from Dr Dowty, dated 18 September 1998. Dr Dowty is described in the report as a "consultant physician ".
Mrs Whitworth said that Dr Dowty was treating her husband and she agreed with the diagnosis made by him in her husband's lifetime of "myeloma". (In the second paragraph of that report, Dr Dowty - the report is addressed to Dr Marrows - records in part "… it is likely that his problem is multiple myeloma").
The hearing resumed on Melbourne on 11 July. Mr De Marchi appeared then with Mrs Black. Dr Bryon Collins, a forensic pathologist was called. Additionally, two witnesses gave evidence with respect to aviation fuel being used as a detergent.
Dr Byron Collins
Dr Collins prepared two reports dated 26 November 2001 and 30 May 2002. The reports were prepared at the request of the applicant.
In the first report Dr Collins concluded that there was:
"…well-accepted aetiological link between exposure to benzene and the subsequent development of multiple myeloma.
If it is agreed that the late veteran was exposed to benzene whilst performing his re-fuelling duties during the war, it is my view there is a robust argument, based on sound pathological grounds, that his war service, in all probability, caused his demise."
In his second report of 30 May – apparently having been asked to consider the connection between service and pancytopenia, Dr Collins concluded:
"If it is accepted that the late Mr. Whitworth was exposed to benzene in his occupation as an aircraft refueller during the war then, in my view, a reasonable and sound hypothesis can be proposed linking his death to war service via the mechanism of the toxic effects of benzene producing pancytopenia and this condition then playing a contributory role in his demise."

In evidence Dr Collins said that he agreed that pancytopenia was a cause of the death of the late Mr Whitworth save that when he reached this conclusion he did not have access to the clinical notes with respect to the deceased's treatment. He said that there was a "real possibility" that pancytopenia was caused by exposure to benzene however that answer was also qualified by him adding: "I am not saying that benzene was the total cause of pancytopenia."
Dr Collins described the condition of pancytopenia as a decrease in all of the cellular elements within a persons blood. He said that red blood cells convey oxygen, white blood cells fight infection and platelets are a clotting mechanism. He said that when a person suffers from pancytopenia there is a decrease in the above elements. In his experience there is a wide spectrum of clinical presentation for persons who suffer from pancytopenia.
Dr Collins said that he had read reports completed by Professor Fox at the request of the respondent. He also agreed with the (erroneous) conclusions he understood were made by Professor Fox, namely, that there was a connection benzene exposure and - pancytopenia. In giving his conclusions, Dr Collins said that he understood that benzene had been an additive to aviation fuel during the Second World War. He said that he was also aware of a number of prior applications at the Administrative Appeals Tribunal concerning World War II veterans', various types of cancer and benzene exposure. He was not however able to identify those cases.
In conclusion it was his opinion that pancytopenia contributed to the death of Mr Whitworth by haemorrhaging and by chest infection. It was his opinion that there was a "reasonable possibility" to explain pancytopenia having occurred by exposure to benzene.
In cross examination Dr Collins agreed that multiple myeloma was the principle disease process existing prior to the death of Mr Whitworth. He said that the prognosis of multiple myeloma – if there is the presence of bone disease and pancytopenia - is usually only a few years. Additionally, he said that pancytopenia is a typical, common complication of multiple myeloma and is an inevitable consequence of it, particularly if treatment for multiple myeloma is unsuccessful.
With respect to the period of time between exposure and the diagnosis of pancytopenia, Dr Collins acknowledged that the 50 years between service and diagnosis was a "long time" but "not impossible". He said the text books to which he had access identified any benzene exposure as being dangerous. Additionally he said that the possibility of pancytopenia existing before multiple myeloma could not be excluded but he said that he had no material available to advance this proposition because some clinical materials and "blood films" were not available to him. He acknowledged that upper respiratory tract infections were a common consequence or a feature of pancytopenia however he added that there could be more than 100 causes for upper respiratory tract infection.
Dr Collins acknowledged that he did not have specialist qualifications in haematology or oncology but said he had knowledge of these medical fields within his practice as a pathologist. Additionally he said that he had no expertise with respect to the benzene content within fuel.
In re-examination Dr Collins said that he understood that the deceased was a mechanic who washed aircraft parts and his overalls in aircraft fuel which had a high octane level. He said that any exposure to benzene "could cause problems because it is a dangerous exposure".
Dr Collins said that the deceased's chest infections during his lifetime could be an indication of the affect upon the white blood cells by benzene, however without haematological examination, it was impossible to reach this conclusion. Nonetheless whilst he said that pancytopenia could not be excluded by the prior exposure to benzene, pancytopenia would not have been caused solely by benzene and it may have existed at a subclinical or low grade level and therefore contributed to bone marrow infiltration.
In answer to some questions from me, Dr Collins said that pancytopenia was a consequence of multiple myeloma because of the alteration in the cellular structure of the deceased's bone marrow. The subclinical or low grade pancytopenia - if present – as discussed in his earlier evidence, would not in his opinion have been responsible for the death Mr Whitworth. He said that multiple myeloma and pancytopenia together would have caused death.
With respect to the other certified cause of death namely pneumonia, Dr Collins said that it could have been caused by the inability of Mr Whitworth to resist infections because of the alteration to his blood cells. Dr Collins said that it was not uncommon to contract pneumonia because of pancytopenia however death would only have been hastened if the pneumonia was severe.
Herbert Fitzroy Stacy
Mr Stacy provided a proof of evidence on 25 February 2002 which was received into evidence. In that statement he said that he was a member of the RAAF between 1940 and 1947 and was involved in the installation, maintenance, repair and testing of guns and aircraft. He said "It was common practice to use benzine to wash parts of guns and engines". He recorded that warnings were not given to RAAF personnel "of the dangers and after effects of using benzine". Mr Stacy said that he knew the late Mr Whitworth and was aware that aircraft carburettors were washed in benzene and during major engine overhauls "all parts were washed in benzine".
In evidence Mr Stacy said that "benzine" was obtained from fuel tankers and from the fuel tanks of aeroplanes. He said the fuel extracted from fuel tankers was the same fuel used in aeroplanes and it was used to wash aircraft parts. He said the fuel had an octane content of 100. He said he was sure of this because he recalled that the tankers from which fuel was extracted had the words "100 octane" marked on them. He said he did not know the origin of the fuel but assumed that it had come from the United States because there was "little fuel refined in Australia then".
Mr Stacy said that he knew that Ron Whitworth had served in Japan and had been working on aircraft engine parts and had been washing them in fuel which had come from a tanker marked "100 octane". He said the parts were washed in a container which had been made from half of a 44 gallon drum. He said a brush was also used. Principally he worked on the engines and parts of Mustang aircraft in Japan and when in Australia he worked on Kitty Hawk aircraft. He was not aware whether the fuel used as a detergent in Australia was greater than '100 octane'.
Mr Stacy described the job as dirty and greasy. He said gloves were not provided, indeed they were not thought of. He said persons' hands were often black and the fuel used to wash the parts was also used to wash hands. Additionally he said that overalls were washed in the fuel by dropping the overalls into the washing tanks to remove grease and oil.
Mr Stacy was alerted to a copy of a sign which was annexed to a report of Mr Piper, a consultant historian engaged by the respondent in these proceedings. The sign was apparently produced by the Royal Australian Airforce and in bold capitals it reads "WARNING AIRCRAFT FUEL NOT TO BE USED FOR CLEANING PURPOSES". The text of the sign says that aircraft fuel is not to be used for washing hands or engine parts whereas paraffin must be used. Mr Stacy said that he had never seen a sign of that type and no warning had ever been given to him or, so far as he was aware, other persons concerning the use of aircraft fuel as a detergent.
With respect to service in Japan, Mr Stacy recalled that persons who attended sick parade frequently did so because of colds and rashes.
In cross-examination Mr Stacy said that he was a member of the 81 Fighter Wing in Japan. He first met Mr Whitwoth in North Borneo in 1945 and they both travelled to Japan in February 1946. He said that he and Mr Whitworth were not aircraft refuellers but were part of maintenance gangs. He said that benzene was the type of fuel used in aircraft and it was recorded on the side of tankers. When pressed on this issue – noting that the word "benzine" was used in his proof of evidence - Mr Stacy said that the word 'benzine' had the spelling that he adopted in his statement because it was recorded on the side of tankers describing the content as being '100 octane'.
With respect to the warning sign annexed to the report of Mr Piper, Mr Stacy said that paraffin was never made available as a detergent and no other substance was used as a detergent other than aircraft fuel. He was adamant that overalls were washed in benzene and then were laid out on grass to dry or were hung up to dry. He said that exposure to benzene was frequent but could not recall whether it was on a daily basis.
In re-examination Mr Stacy said that the fuel used as a detergent was the same fuel used to propel aircraft. When pressed as to how frequently he was exposed to benzene he said that there were occasions where aircraft parts were washed daily and therefore persons were exposed on a daily basis to benzene. He estimated that overalls were washed twice per week.
Despite what he had said in evidence in chief, Mr Stacy said that the fuel used as a detergent was obtained from fuel tankers only. He said it was not taken from aeroplane fuel tanks. Nonetheless he said the fuel was readily available.
Neil Noyce
Mr Noyce provided a proof of his evidence prior to the commencement of the hearing and it was received as Exhibit A. He recorded that he served in Darwin in January 1942 until February 1943 with the No 12 RAAF Squadron. He said after Darwin was bombed in 1942, all aircraft hangers were "lost" and aircraft were serviced at "…inserts cut into the bush where they were parked, so the easiest access to cleaning fuel was directly out of the aircraft". He said that no other source of the fuel was available and that it was impractical and illogical to transport fuel for washing purposes.
In evidence Mr Noyce said that engine parts would normally be cleaned and washed in combat areas in a 44 gallon drum cut down to create a washing tank. So far as he could recall, 80 octane fuel was used in Darwin but he could not recall whether the fuel tankers had signage.
In cross examination Mr Noyce said that he served between 1943 and 1946 with the RAAF in Mildura, Fishermans Bend, Essendon Airport and in Darwin. He said that he did not ever serve overseas or as a member of the 82 or 86 Squadron or the 81 Fighter Wing. He said that he had not ever heard of aircraft hangers in Borneo or Japan. He was surprised to learn that Mr Stacy had referred to aircraft hangers in Japan.
With respect to his service in Darwin, Mr Noyce said that prior to the attack by the Japanese, the RAAF issued a cleaning fluid to be used as a detergent but after the bombing the only access to detergents were for engine parts was aircraft fuel.
With respect to the poster made available by Mr Piper, Mr Noyce said that paraffin was normally used in training stations but he was not aware whether the poster was ever displayed in Japan or elsewhere nor was he aware that there was ever any description of the fluids used as detergents. He said he could not ever recall any caution or warning being given during training against the use of fuel as a detergent. During service Mr Noyce said that he did not ever consider fuel to be dangerous as a detergent. Indeed he said that he had understood that similar fuels were used in laundries as a drycleaning agent.
Jack Thorp
Mr Thorp wrote a letter to Mrs Whitworth dated 16 February 2002 and it was received into evidence as an exhibit. Mr Thorp resides in Burnie, Tasmania. Attempts were made to contact him during the resumed day in Melbourne to obtain his evidence by telephone. All attempts then were unsuccessful. Mr Douglass was therefore denied the opportunity for cross examination. Nonetheless the letter reads:
"Dear Alice,
Further to your enquiry regarding my wartime association with your late husband Ron.
I can advise that we trained together in Melbourne and both graduated as aircraft mechanics in the RAAF.
We later served together in 81 Wing stationed on Labuan Island prior to departure for Japan to serve in the occupation forces.
I can also confirm that it was common practice in our work to wash parts in aircraft fuel and at times even greasy overalls.
There is no doubt Ron would have had quite a lot of exposure to fuels in his work."

Robert Piper

Mr Piper was engaged by the respondent to provide a report concerning the service of Mr Whitworth in the RAAF "during World War II as a flight mechanic and any exposure by the veteran to benzene".
Mr Piper said that he had been an employee of the Department of Defence for 22 years principally as an historical officer. He said he has been "writing" for 30 years and had published 2 books. Additionally he said that he had been a pilot since 1968 in New Guinea, Australia and in Japan. He had principally been engaged as a research officer with the Department of Veterans' Affairs for 15 years. He also said that he has been "studying and researching benzene for 3 or 4 years". Whilst he did not have any qualifications as a chemist he said he had conducted 3 years of research from files, books and technical documents into the composition of fuels.

At page 3 of his report under the sub-heading of "Benzene," Mr Piper said that the pages following contained information concerning benzene and its dangers and were obtained by him from research of various publications. At this stage of the proceedings objection was taken by Mr De Marchi to Mr Piper giving evidence of this type. It was put that Mr Piper was attempting to qualify himself with some expertise as a chemist which he had earlier indicated he did not possess. Accordingly, he proceeded on the basis that he gave evidence as a witness with respect to the research that he had conducted and with respect to aircraft issues generally.
He said that in his experience as a pilot and in the experience of other pilots, great care is taken about the fuel used in aeroplanes. He said octane levels in aircraft fuels are raised by the addition of a substance known as tetraethylead (TEL). He said that benzene is not used as a fuel additive to increase octane levels.
With respect to the benzene content in fuels, he said that the result of research conducted by him – and others – was that benzene was not added to fuels during war time.
Mr Piper acknowledged that there probably had been a shortage of cleaning agents in Labuan and in Japan, however, he said that Labuan was "well organised" and there was a significant United States military presence. He agreed with the evidence of Mr Noyce that Darwin had been devastated.
In cross examination Mr Piper said that so far as he was aware, benzene was added to fuel used in United States jet planes, however aeroplanes of that type were not used during the Second World War. Additionally he said that from documents that he researched and observed, octane levels were increased by TEL. He said that 100 octane fuel was used on fighter planes in Labuan and 80 octane fuel used in other planes. From research that he had also undertaken he understood that benzene naturally occurs in fuels by 1% content. At the present time he understood that benzene existed by 4% in lead free petrol used in motor cars.
When asked in cross examination to acknowledge the evidence of the earlier lay witnesses concerning the use of benzene or aircraft fuel to wash overalls Mr Piper said that this did not occur and/or that he did not believe it to be so. When pressed on this issue he said that he had not ever read of such occurrences from any of the documents that he had researched. With respect to the poster that he annexed to his report he acknowledged that it had probably not been displayed at Labuan.
Mr Piper also relied on a report entitled "Inland Aircraft Fuel Depots" completed by Warrant Officer Murray Moore in July 1996. A reference to that report is contained at page 6 of Mr Piper's report. Mr Piper stated that that report recorded the use of TEL "in wartime Australia" as an additive to petrol to increase octane levels. Mr Piper also recorded "there is no mention of benzene/benzol" being used despite in depth research of RAAF wartime fuels and storage facilities by Warrant Officer Murray Moore.
Richard Fox
Dr Fox is a Professor and Director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital. He provided two reports at the request of the respondent dated 6 May 2002 and 24 June 2002. Both reports were received into evidence.
In his first report Professor Fox indicated that he had read the clinical history of the deceased and noted that pancytopenia was diagnosed in August 1998 by reference to the deceased having a low red and white cell and platelet level. He reported "Very quickly a diagnosis of multiple myeloma was made based on a bone marrow biopsy with the demonstration of a paraprotein in the blood and in the urine. The diagnosis was unequivocal." Later in the report he stated that "…the pneumonia and melaena (suffered by the deceased) would be a sequel to the pancytopenia which is a sequel of the multiple myeloma.". He then referred to a number of research articles with respect to an association between myeloma and benzene and he concluded "…I believe it is safe to conclude that benzene exposure does not cause multiple myeloma. There is evidence that it can cause acute myeloid leukaemia, from which Mr. Whitworth did not suffer.".
In his report of 24 June 2002 Professor Fox – apparently having been acquainted with the opinions of Dr Bryon Collins concluded that "Pancytopenia is a common feature in advanced, particularly terminal, multiple myeloma where the disease expands within the bone marrow inhibiting production of red cells white cells and platelets."
Later in his report Professor Fox concluded:
"Dr. Collins has come up with a new hypothesis that the multiple myeloma, despite killing Mr. Whitworth, did not cause the pancytopenia, but in fact the pancytopenia was a result of benzene exposure many years earlier.
While it is possible that benzene exposure can cause subsequent bone marrow failure, to produce this as a potential mechanism of the pancytopenia is too ignore the fact that he in fact had multiple myeloma. Dr. Collins' hypothesis is purely contrived in a kindly, but misleading sense. It is simply not logical to attempt to develop this hypothesis given the fact that pancytopenia is a natural and expected concomitant of advanced multiple myeloma.
It would be quite obvious that the myeloma occurred followed by the pancytopenia. If the benzene exposure hypothesis was relevant, there would have been evidence of pancytopenia many years prior to the development of multiple myeloma which did not appear to happen."
In evidence Professor Fox said that there is a common association between pancytopenia and multiple myeloma. Additionally he said that if multiple myeloma is advanced and is therefore suppressing cell manufacture within the bone marrow, pancytopenia will also be present. He said that following his observation of the clinical notes there was advance infiltration of the bone marrow and the presence of pancytopenia was not surprising.
Professor Fox said that he was not aware of any cases of persons having been exposed to benzene developing pancytopenia some 50 years later.
With respect to the opinions advanced by Dr Collins, Professor Fox said that he did not agree that there could be the presence of a subclinical pancytopenia and thought that any association between subclinical pancytopenia and multiple myeloma was "contrived". He said that if there had been an earlier pre-existing pancytopenia it would have been demonstrated on blood tests which had been taken of the deceased over many years as a result of treatment he had been having for many other conditions including preparations for surgery. He said that the presence of pancytopenia in a blood test result would not have been "undetectable".
Professor Fox said that there was no evidence known to him of persons suffering "low grade pancytopenia following exposure to petroleum products".
In cross examination Professor Fox said that the studies that he had referred to did not link multiple myeloma with high octane fuel. He said that there was a known association so far as the research literature was concerned between aplastic anaemia and myeloid leukaemia but not multiple myeloma
Professor Fox said that he did not know whether benzene was an ingredient of aircraft fuel and did not know the octane level of the fuel to which the deceased was exposed. He acknowledged that washing aircraft parts and overalls in fuel could amount to a "significant exposure" however he reiterated his earlier opinions that the deceased died from multiple myeloma for which there was no known association with fuel. Additionally he said that there was no material identified by him from the clinical data of the deceased having suffered from pancytopenia prior to multiple myeloma.
When he learnt of sick parades in Labuan being attended by persons with colds, Professor Fox said that it would be speculation to regard the deceased as then having suffered from a chest infection which had an association with high octane fuel.
In conclusion he said that pancytopenia "doesn't go for 50 years after acute exposure" and the pancytopenia was logically explained by the presence of multiple myeloma. With respect to the opinions expressed by Dr Collins, Professor Fox disagreed that he had "gone out of his way" to attack him however he regarded the conclusions of Dr Collins as being "fantasy" and "not reasonable". He disagreed that he had closed his mind to the possibility of a connection between aircraft fuels and pancytopenia and regarded the opinions of Dr Collins as not being logical. Additionally he said that the research that he had completed supported his conclusions that pancytopenia was a naturally occurring consequence of multiple myeloma and that there was no known association between benzene and multiple myeloma.
Max Wolf
Dr Wolf is a haematologist and medical oncologist who provided a report dated 22 May 2000. The report was received into evidence but he was not called by either party. In his report he referred to a number of research articles and concluded that the "…link between Mr Whitworth's death and his service should focus on his multiple myeloma. As stated above, there is good scientific evidence indicating a positive association between occupational exposure to petroleum products and the subsequent development of myeloma.".
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".
In its discussion of the word "reasonable" the Court concluded (page 533-554)-
"The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or to remote or to tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material - that is the material must point to and not merely leave open, a hypothesis as a reasonable hypothesis". (refer Re Dell & Repatriation Commission 1986 9 ALD 596 at 615).
At 534 the Court concluded-
"A reasonable hypothesis requires more than a possibility not fanciful or unreal consistent with the known fact. It is an hypothesis pointed to by the facts even though not proved upon the balance of probabilities".
In the present application the hypothesis between service and death from pneumonia had a two fold basis. Firstly it was put that because there was a high incidence of presentation at sick parades in Japan from persons with colds and that was the precursor to the deceased suffering a chest infection giving rise to pneumonia. There is no material at all of the deceased attending a sick parade in Japan or anywhere else with the condition of a "cold" or any other illness or injury. This basis for the hypothesis is obviously fanciful and is obviously unreal. Nothing points to it and it has no credibility nor is it tenable. It is a hypothesis which is therefore unreasonable.
The other basis for the suggested hypothesis between service and pneumonia was that death was hastened by pneumonia which had its basis in the deceased's inability to resist infection by reason of alteration to his blood cells which had its genesis in the pancytopenia. For reasons which will follow later, I am not satisfied that any reasonable hypothesis exists connecting service with death from pancytopenia and it therefore follows that this part of the hypothesis must also be regarded as not being reasonable.
Insofar as s.8 of the Veterans Entitlements Act 1986 is concerned, I am unable to find that death by pneumonia was hastened by the accelerated progress of the disease of pancytopenia because I am not satisfied that pancytopenia is a war-caused condition. It follows that the deceased's death from pneumonia can not be attributable to his service (refer Doolette v Repatriation Commission (1990) 21 ALD 489 at 492).
With respect to the hypothesis between death from pancytopenia and service, the connecting link was said to be exposure to benzene. The association between pancytopenia and benzene as advanced in this application is curious. Mr Whitworth in his lifetime claimed an association between multiple myeloma and service by his exposure to atomic radiation being located in the epicentre in Japan (page 48 T-documents). He did not claim for pancytopenia and makes no reference to benzene.
Mrs Whitworth in her claim, suggested that the connection between service and death was "smoking", "drinking", "malnutrition", "skin complaints" and "refuelling aircraft" associated with service in Japan (pages 108 & 109). She did not refer to exposure to "benzene". She did not refer to or use the word "benzene" in her evidence in Mildura.
Mr Thorpe did not refer to "benzene" in his letter which was received into evidence and Mr Noyce did not refer to "benzene" at all in his evidence or in his proof of evidence lodged prior to the hearing. Mr Stacy referred to the substance "benzine" in his proof of evidence and said when giving evidence that he used that word because he observed it (with that spelling) on the side of fuel tankers describing the content as being 100 octane. Mr Piper said that benzene was not added to fuel during war-time. He said that his research had indicated that octane levels were raised by addition of a substance known as Tetraethylead as opposed to benzene. Additionally, he said that he had located a report "Inland Aircraft Fuel Depots" in Australia where no reference at all was made to benzene or benzol, being used by the RAAF as an additive to war-time fuels.
At the Veterans Review Board, the hypothesis advanced on behalf of Mrs Whitworth by her advocate was that an association existed between benzene exposure and death from multiple myeloma, thereby constituting a reasonable hypothesis. The foundation for the hypothesis was the occupational exposure to paint. The advocate conceded that the veteran was not a painter but advanced the proposition that paint contained benzene and it could be inferred that the Statement of Principle was drafted on the basis that benzene is a carcinogen which in the circumstances of this application would have given rise to multiple myeloma. An alternative hypothesis advanced was death from pancytopenia which had its basis in benzene exposure. (p.5 VRB reasons).
The veteran's solicitor prior to the hearing lodged a Statement of Facts and contentions purporting to advance a hypothesis of death from pancytopenia by benzene exposure. The contentions recorded in the Statement are a verbatim (unattributed) quotation from a publication of the United States Department of Health and Human Services (Toxic Substances and Disease Registry agency), working paper CAS71-43-2 which was submitted in evidence at the hearing.
On balance therefore the only material before the Tribunal concerning exposure to benzene is the Statement of Facts and Contentions and the evidence of Mr Stacy. But this assumes also that the substance "benzine" that he said was labelled on the drum of a fuel storage container, is the same substance as "benzene". On the balance of probabilities I would have little difficulty finding as a fact that the deceased was not exposed to benzene. A combination of the absence of evidence from the deceased (in his lifetime) his widow, his former colleagues, and the evidence of Mr Piper suggests that the deceased was not exposed to benzene at all. However it appears that from time to time Australian servicemen had access to fuel having its origin in the United States and it is conceivable that the storage facility observed by Mr Stacy and labelled benzine was fuel of United States origin. I am satisfied that the deceased and others did wash tools and aircraft parts and their hands and their overalls in a substance variously described as either petrol or aircraft fuel and on the basis of the evidence of Mr Stacy - and because the case need not be established on the balance of probabilities - I am bound to find that there was benzene exposure, because there is material which points to it.
The case for Mrs Whitworth was advanced largely by the evidence of Dr Collins who variously supported the hypothesis either of benzene contributing to pancytopenia and/or pancytopenia existing at a "sub-clinical" level in turn infiltrating bone marrow. The hypothesis advanced by Dr Collins also assumes that death was from pancytopenia (which I will return to later).
Professor Fox was critical of the hypothesis advanced by Dr Collins referring to it as "contrived". He said there was nothing which pointed to benzene exposure giving rise to pancytopenia more than 50 years later, dismissed the suggestion of pancytopenia existing in a "sub clinical level" and said that on the basis of clinical records made available to him, pancytopenia had not ever been found on routine blood testing for many years prior to the diagnosis of multiple myeloma.

It is not the role of the Tribunal to be the arbiter or referee between medical witnesses who offer differing medical opinions. The Tribunal is obliged to find that a hypothesis may be reasonable even if it is unproved or "opposed to the weight of informed opinion", nonetheless the Tribunal is obliged to examine "the validity of the reasoning" which is said to support the hypothesis advanced. (refer Bushell v Repatriation Commission) 1992 109 ALR 30.
Even assuming that there was exposure by the deceased to benzene there is no material which (i) points to benzene contributing to pancytopenia 50 years after exposure which (ii) existed at a "sub-clinical" state or in any other form, independently of multiple myeloma, and which in turn was (iii) responsible for death. Had pancytopenia existed sub-clinically, it would have been evident from routine blood testing. There is no material that it was evident or detected at all until multiple myeloma was diagnosed. Dr Collins and Professor Fox were in heated agreement that pancytopenia is a well known complication of multiple myeloma and its presence is explained by the presence of multiple myeloma. On the material, I am satisfied that it can only be explained by reason of multiple myeloma for which the Statement of Principle cannot be satisfied.
Having regard to the above I am unable to find from the material that there is any support for the hypothesis advanced by the applicant which has some degree of "acceptability or credibility" permitting a finding that the hypothesis advanced has been raised by the material is reasonable (refer Repatriation Commission v Whetton (1991) 24 ALD 33; East). Mrs Whitworth of course has no onus, however because I am of the opinion that the material before this Tribunal does not raise a reasonable hypothesis connecting death with the circumstances of service, I am obliged in those circumstances to find that the decision under review should be affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         Katherine Navarro.....................
  Associate
Date/s of Hearing  25 June 2002 and 11 July 2002
Date of Decision  26 September 2002
Counsel for the Applicant        Mrs I Black
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr R Douglass
Solicitor for the Respondent    Department of Veterans' Affairs