Williams and Repatriation Commission

[2004] AATA 1079

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1079

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/241

VETERANS' APPEALS  DIVISION		)
Re		NANCY JOHANNA WILLIAMS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date15 October 2004  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of the late veteran, Harry James Williams, on  3 February 1997 was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986 (the Act), and that Nancy Johanna Williams is entitled to the widows pension, pursuant to the provisions of that Act, with effect from 4 February 1997.

............... SIGNED...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

Veterans Affairs – widows pension – death from myocardial infarct war-caused - late veteran suffered from war-caused ischaemic heart disease – inability to exercise due to war-caused back injury and war-caused malaria and scrub typhus – decision set aside

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

Deputy President Don Muller        

1.      Nancy Williams, the Applicant, is the widow of the late veteran, Harry James Williams, who died on 3 February 1997, of a myocardial infarct.

2.      Mrs. Williams claimed a widows pension, pursuant to the provisions of the Veterans’ Entitlements Act 1986, on the ground that her late husband suffered from war-caused ischaemic heart disease.  She claims that her husband’s ischaemic heart disease was caused by an inability of her husband to undertake physical exercise due to a war-caused back injury, war-caused malaria and war-caused scrub typhus.  She also claims that a war-caused smoking habit played a part in the development of his ischaemic heart disease.  Her claim has been rejected and she seeks a review of the decision to reject her claim.

3.      The Tribunal had the following material available to it:

(a)The section 37 statement which contained, among other matters, the late veteran’s war and medical records;

(b)The transcript of proceedings before the Tribunal on 15 August 2002;

(c)Two statements by Mrs. Williams;

(d)Medical reports by Drs. Goodwin, Grant and Colquhoun;

(e)Various x-ray reports;

(f)A statement made by the deceased veteran on 14 July 1949.

4.      There has been no challenge to the truthfulness or accuracy of any of the above material.  The Tribunal finds as follows:

(a)Harry James Williams was born on 19 January 1917, at Aramac in Western Queensland;

(b)He left school at 14 years of age and worked as a drover.  He later drove his father’s hire car on a part time basis.

(c)Mrs. Williams was born at Barcaldine on 10 September 1923.  She knew her late husband from about 1926 onwards.  They started courting in about 1939, when she was about 16 years of age and he was about 22.  They saw each other during the years of World War II when Harry was on leave from the Army.

(d)Harry Williams was a fit and healthy young man before he joined the Australian Army at  Brisbane, on 18 March 1941.

(e)He served in the Middle East (Syria and Palestine) between 27 June 1941 and 10 April 1942.

(f)He was transferred from the Middle East to Bombay, where he remained for four months.

(g)He left Bombay on 7 August 1942 and arrived in Brisbane on 14 August 1942.

(h)In March 1943 he was sent to a “staging camp” in Townsville.

(i)He was sent from Townsville to Port Moresby, arriving there 12 August 1943.

(j)He served in New Guinea (at Milne Bay) for 13 months until 15 September 1944, when he was sent back to Townsville.

(k)Whilst in New Guinea he contracted malaria and scrub typhus.  He also developed back pain for which he was hospitalised in Milne Bay.

(l)He was discharged by a medical board on 17 October 1944, on the grounds that he suffered from malaria, post typhus debility and “his back gets tired and aches after exertion”.

(m)He smoked before enlistment in the Army, and he ceased smoking some time between 1949 and 1955.

(n)Upon discharge from the Army, Harry Williams initially returned to Aramac.  However, within a short time he decided that he no longer wished to live in the country.  He moved to Brisbane and obtained a job as a tram conductor, later a tram driver.  He remained employed as a tram driver until about 1955.  He then became a commercial traveller for Waltons until he retired at age 60 in 1977.

(o)Harry Williams married Nancy on 10 December 1945 at Aramac.

(p)Nancy Williams observed that her husband, Harry, had changed considerably after he returned to civilian life after World War II, compared with how he had been before enlistment.  Before enlistment he had been strong, fit and energetic, but after discharge he was listless, continually tired and he regularly complained of back pain.  He had also become a heavy smoker, due he had told her, to his “nerves being shattered” because of his war experiences.

(q)Nancy Williams observed that Harry completed household tasks such as lawn mowing, vacuuming and laundry chores very slowly.  He seemed to need to take his time, with many short breaks.  He got progressively slower over the years until by the 1980s he was living a fairly sedentary lifestyle, with little exercise.

(r)In 1989, Harry Williams showed the first signs that he had ischaemic heart disease.  He developed angina, particularly when he attempted to mow his lawn.

(s)Harry Williams died on 3 February 1997, following a heart attack.

5.      The material placed before the Tribunal raised the following hypothesis relating to Harry Williams’ death:

(a)Harry Williams developed ischaemic heart disease because:

(i)He smoked until about 1955,

(ii)He led a sedentary life-style which meant he failed to undertake a healthy degree of physical activity.

(b)He died as a result of his ischaemic heart disease;

(c)His smoking habit was accentuated by his war-service due to the stress of service;

(d)His sedentary life-style was caused by his listlessness and by his painful back condition;

(e)His listlessness was due  in part to his contracting malaria and also to his having contracted scrub typhus, both of which were contracted in New Guinea during his Army service;

(f)His painful back condition arose out of his Army service;

(g)Consequently, his death was war-caused.

6.      There are in force Statements of Principles (SoP) relating to ischaemic heart disease (No. 38 of 1999) and lumbar spondylosis (No. 27 of 1999).   The following factors are relevant in this case:

(a)SoP No. 38 of 1999:  Ischaemic Heart Disease:

“Factors

5.  The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:

….

(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,

….

(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;

….

(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease;  or

Other definitions

8.For the purposes of this Statement of Principles:

“an inability to undertake more than a mildly strenuous level of physical activity” means the presence of an incapacity which prevents any physical activity greater than 3 METS, where a “MET’ is a unit of measurement of the level of physical exertion.  1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate.  (A MET approximates to the energy required to rest quietly in bed.  A 70 kg man would use about 3 METS when walking at 4 km per hour.)”

(b)SoP No. 27 of 1999, Lumbar Spondylosis:

“Factors

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person’s relevant service are:

…

(h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;”

Smoking Habit

7.      The material placed before the Tribunal indicates that Harry Williams was a smoker before he enlisted in the Army and his smoking habit may have increased during service.  He filled in a smoking questionnaire on 11 February 1991 in which he said the following:

(a)He first smoked when he was about 21 years old.

(b)He smoked because his bush working mates did.

(c)He smoked about a packet of tobacco per week (2 ozs).

(d)There was no period when he significantly increased or decreased his smoking habit.

(e)He said, “I knocked off smoking altogether when I was about 28/29 yrs”.

8.      Nancy Williams believes that her husband stopped smoking in about 1955.

9.      In any case it is clear that Harry Williams stopped smoking at least 34 years before the clinical onset of ischaemic heart disease in 1989.

10.     Factor 5(d) of SoP No. 38 of 1999 (Ischaemic Heart Disease) is not satisfied.

Inability to undertake exercise

11.     The evidence shows that from soon after he returned from World War II, Harry Williams was a changed man so far as his capacity for physical exertion was concerned.  In fact, he was discharged in October 1944 because of his inability to engage in physical activity.

12.     The evidence of Nancy Williams was that Harry not only did not improve over the years, but that he progressively got worse.  By the 1980s he was leading a very sedentary life-style.

13.     I find that factor 5(h) of the SoP No. 38 of 1999 is satisfied.

Lumbar Spondylosis

14.     One of the reasons for the inability of Harry Williams to engage in physical activity was his bad back.  His back condition was war-caused if one of the factors in SoP No. 27 of 1999 is satisfied.

15.     Apart from the evidence of Nancy Williams that Harry was fit and strong before his war service and that he had ongoing back problems after his war service, there is a considerable body of documentary evidence which supports the hypothesis that Harry Williams had war-caused lumbar spondylosis.  The documents reveal the following:

(a)On 10 March 1943, Harry Williams, attended the surgical ward of 112 Australian General Hospital where he was examined by Major Stubbs Brown for low back pain.  He was sent for x-rays of the lumbar and lumbo-sacral region.  The clinical notes record:  “Trauma 2½ years ago – low back pain now”.

(b)In November 1943, he was given a physical classification of B, due to back problems, described as “fibrositis”.

(c)Upon examination in July 1944, he was said to have “Flat back in lumbar with restriction of f.extension in lumbar region of a minor degree”.

(d)When he was discharged in October 1944, it was noted that he had back problems.

(e)On 14 July 1949, Harry Williams made the following statement:

“Prior to enlistment I did not suffer with my back in any way, and was enlisted as A.1.

I first had trouble with my back about Oct 1942, when I was admitted to hospital at Milne Bay and later returned to 112 B.M.H. suffering with Typhus.

Ever since this time I have suffered with pains in my back, and since discharge they have continued.

In early 1945 I consulted Dr Talbot of Rockhampton, and of late I have been having treatment from Dr Green of Ipswich Rd, who advised me to lodge a claim for this condition.

I now wish to have Repat investigate this condition as being due to or aggravated by my war service.”

(f)An x-ray report dated 16 May 1991 records:

“THORACOLUMBAR SPINE:

There are moderate degenerative changes in the lower thoracic spine.  The pedicles are intact.  The paraspinal soft tissues are normal.

There is minor narrowing at L4-5.  There are advanced degenerative changes in the lower three lumbar facet joints.  This allows minimal forward slip of L4 on L5.  No fracture seen in the lumbar spine.  There are minor degenerative changes in the S1 joints.  The aorta is calcified.  There are small osteophytes on L3, L4 and L5.”

16.     I am satisfied that when Harry Williams enlisted in the Army he was in sound physical shape, and that when he was discharged he had a bad back which progressively got worse during the rest of his life.  His back condition was clearly due to his Army service and was war-caused.  There is a notation in the 1943 records that he suffered trauma to the lumbar spine.  I am satisfied that factor 5(h) of SoP No. 27 of 1999 is satisfied.

Other Factors

17.     The general listlessness could also be attributed to war-caused malaria and war-caused scrub typhus.

18.     I am not satisfied beyond reasonable doubt that the death of Harry Williams was not war-caused.

19.     Consequently, I find that the death of Harry Williams on 3 February 1997 was war-caused.

20.     Nancy Johanna Williams is entitled to the widows pension with effect from 4 February 1997.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           B. Hitchcock, Pers Asst

Date/s of Hearing  30 June 2004
Date of Decision  15 October 2004
Counsel for the Applicant         Mr. A. Harding
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Ms. H. Bowskill
Solicitor for the Respondent     Australian Government Solicitor's office