Winn and Repatriation Commission

[2003] AATA 1074

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/769

VETERANS' APPEALS DIVISION		)
Re		JEAN ELIZABETH WINN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr BJ McCabe, Member

Date28 October 2003      

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

...................(Sgd)......................

BJ McCabe
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether the veteran’s death was related to his war service – ischaemic heart disease – whether veteran was suffering from a panic disorder related to his service

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

28 October 2003  Mr BJ McCabe, Member   

Introduction

1.      Mrs Jean Winn is the widow of the late Dudley Winn, a veteran of World War II.  He died on 25 February 1996.  Mrs Winn claims his death was related to his service.  The Repatriation Commission rejected the claim, and the Veterans’ Review Board affirmed the decision.  The applicant has now approached this Tribunal for decision.

2.      If the applicant is to succeed in her claim, I must be satisfied her late husband suffered from a panic disorder that is related to his service. I am not satisfied that he suffered from panic disorder for reasons I will explain. It follows the applicant’s claim must fail.

The Material Before the Tribunal

3. The Tribunal was provided with the material required under section 37 of the Administrative Appeals Tribunal Act 1975.  It was also provided with the following statements and medical reports:

Exhibit 2        Statement of Jean Elizabeth Winn dated 18 November 2000

Exhibit 3Supplementary statement of Jean Elizabeth Winn, 19 June 2003

Exhibit 4Statement of Joan Faith Wright dated 28 September 2002

Exhibit 5Report of Dr Janis Carter dated 1 May 2002

Exhibit 6Report of Dr William Kingswell dated 21 August 2002

Exhibit 7Report of Dr Peter Grant dated 20 December 2001.

4.      Mrs Winn, Dr Carter and Dr Kingswell also gave oral evidence.

5.      The applicant was represented by Mr Harding of Counsel.  Mr Smith represented the respondent.

The Background

6.      The late Mr Winn was born on 15 May 1918.  He served with the YMCA in Papua New Guinea during World War II.  He was on operational service from 26 October 1944 to 11 December 1945.  The veteran’s unit was not involved in front line fighting; the front line had moved north as the war was prosecuted, well away from Mr Winn and his comrades.

7.      Mr Winn was married to another woman while he was in New Guinea, but she died in 1991.  The applicant had been a family friend for many years, and she and the late veteran commenced a relationship after the passing of his first wife.  They were married in 1992.

8.      Mr Winn died on 25 February 1996.  The cause of death was certified as myocardial infarction and coronary atherosclerosis. The respondent says the underlying cause of death was ischaemic heart disease. The onset of the disease was traced back to a myocardial infarction on 1 June 1993, although there was atrial fibrillation since 1988.

9.      The applicant says her late husband suffered from a panic disorder that was triggered by severe stressors he experienced during his operational service.  That disorder was present at the time of the clinical onset of the ischaemic heart disease, it was said – which makes the death service-related, she argues, under Statement of Principles No 38 of 1999.

10.     In order to make out her claim, the applicant must establish her late husband suffered from a panic disorder.  Panic disorders are dealt with in Statement of Principles No 9 of 1999.  That Statement requires the applicant to prove her late husband experienced a severe stressor within two years immediately before the onset of the panic disorder.  A substantial part of the evidence in this case was directed towards establishing whether the applicant experienced a severe stressor, and his reaction to it.

Did the applicant experience a severe stressor while on operational service?

11.     The Statement of Principles relating to panic disorder says:

“experiencing a severe stressor means the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, integrity.”

12.     The definition goes on to say that events qualifying as stressors include:

“(i)      threat of serious injury or death;

(ii)      engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”

13.     The Tribunal had to rely on Mrs Winn’s recollections of what her husband had said about his war experiences.  She conceded he did not say much.  She had occasional but limited contact during the years after the war; following the death of his first wife in 1991 (and the death of the applicant’s first husband), Mr Winn came to stay with the applicant.  She says she recalls him on that occasion saying something about suffering from attacks.  He mentioned his first wife had found them a bit of a strain..  When they were married, she said he would have nightmares and call out in his sleep.  On at least one occasion, she recalled Mr Winn talking about “Japs”..  He would wake in fright and tremble and sweat.  She also said he complained of chest pains, trembling, shortness of breath and abdominal stress.  She said he would sometimes feel his pulse as if something were wrong.

14.     Mrs Winn was not able to assist the Tribunal with an account of the applicant’s condition prior to 1991 when their relationship began to develop.  She conceded she was not aware of anything troubling him in the early years when she and her then husband would see Mr Winn and his first wife.  Nancy, Mr Winn’s first wife, never said anything.  The applicant recalled Mr Winn’s sister, Mrs Wright, saying the applicant changed after he returned from the war.  Mrs Wright lived near the applicant in Tasmania.  She was unable to give evidence, but she gave a statement to that effect.

15.     Mrs Winn conceded in cross-examination that her late husband had only called out the word “Japs” on one or two occasions while having a nightmare.  She said they did not discuss the content of his dreams.  However she said the applicant had told her a little of his experiences during the war.  She remembered one story clearly, and she argues it qualifies as a severe stressor.  Mr Winn was at Nadzab and Japanese planes suddenly appeared overhead.  Everyone took cover before the bombs began to fall.  Mr Winn said he took cover behind a pile of crates.  He soon realised the crates were filled with ammunition.  He was hiding in the middle of an ammunition dump.

16.     I cannot be satisfied that the sight of low flying enemy planes – even planes that were poised to strike in the immediate area - constitutes a severe stressor in and of itself.  It must have been a relatively common experience.  I have more sympathy for the claim that hiding from the planes in the midst of an ammunition dump might be stressful, but ultimately I think it falls short of what is required to constitute a severe stressor.  In any event, there is no evidence that Mr Winn’s dreams were about that event or events connected to it.  Indeed, there is only very limited evidence that his wartime experiences featured in his dreams at all.

The Medical Evidence

17.     Even if I am wrong in my conclusion that there was no severe stressor, I am not satisfied the clinical onset of panic disorder occurred within two years of the events he experienced during the war.

18.     The applicant relied on the evidence of Dr Carter.  Dr Carter met the applicant on several occasions.  She did not meet Mr Winn. She was forced to complete a posthumous reconstruction, which is always a difficult task.

19.     Dr Carter concluded the late veteran suffered from panic disorder on the basis that when he returned from the war, his sister had said he appeared anxious, and that he had changed. 

20.     I do not accept Mrs Wright’s statement provides an adequate basis for a diagnosis of panic disorder.  That requires evidence of panic attacks. The history upon which Dr Carter relied is therefore inadequate, and I do not accept her diagnosis. I prefer the evidence of Dr Kingswell. He said the late Mr Winn did not suffer from panic disorder. It is more likely that Mr Winn’s ischaemic heart disease accounts for his symptoms.

Conclusion

21.     The applicant’s claim cannot succeed in the circumstances.  The decision of the Veterans’ Review Board affirming the earlier decision of the respondent is therefore affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr BJ McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  25 July 2003
Date of Decision  28 October 2003
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan and Luton
Solicitor for the Respondent     Mr M Smith, Departmental Advocate