Winnin and Repatriation Commission
[2005] AATA 848
•2 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 848
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/690
VETERANS’ APPEALS DIVISION )
Re GLADYS WINNIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date2 September 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the death of William Thomas Winnin is war caused and the applicant is qualified for payment of pension with effect from 16 February 2002.
..................[Sgd].......................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service – cause of death -ischaemic heart disease - cerebrovascular accident - ventricular fibrillation – obesity - inability to exercise.
Veterans’ Entitlements Act 1986 s8, s119(1)(h)s120, s120A
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383Repatriation Commission v Bey (1997) 79 FCR 364.
Repatriation Commission v Hill (2002) 69 ALD 581
McKenna v Repatriation Commission (1999) 86 FCR 144East v Repatriation Commission (1987) 74 ALR 518
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Law 31 ALR 140REASONS FOR DECISION
2 September 2005 Ms M J Carstairs, Member 1. This is an application by Mrs Gladys Winnin (the applicant) for review of a decision made by the Repatriation Commission (the respondent) on 17 May 2002 and affirmed by the Veterans’ Review Board (VRB) on 9 June 2004 to reject the applicant’s claim to have the death of her husband William Winnin (the veteran) accepted as due to his eligible war service.
2. At the hearing the applicant was represented by Mr P O’Neill of counsel instructed by Files Stibbe & Associates, Solicitors. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) as well as exhibits marked A1 for the applicant and R1-R3 for the respondent.
BACKGROUND
4. The applicant was born on 7 November 1920 and is now aged 84. The veteran was born on 1 September 1920. The applicant and the veteran married on 9 September 1944, on his return from nineteen months war service in New Guinea.
5. The veteran served in the Royal Australian Air Force from 12 October 1942 to 10 February 1948 serving as a general hand and later as corporal-in-stores. His service constitutes eligible war service as defined in the Veterans’ Entitlement Act 1986 (the Act) and is operational service, based on his service in New Guinea from 9 April 1942 to 1 September 1944. This affects the standard of proof to be applied in determining the applicant’s claim.
6. The veteran suffered from osteoarthritis - a condition for which the respondent accepted liability for pension. In 1976 he had a left hip replacement; in 1986 he had a right hip replacement; and in 1987 the left hip replacement was repeated (T4, p69).
7. The veteran suffered an acute myocardial infarction on 7 December 1962. This was followed by a less serious episode in 1970 and in 1983 he had quadruple by-pass surgery. The veteran suffered a cerebrovascular accident in May 1995. In September 1995 the veteran suffered his final illness, firstly a heart attack on 9 September followed by another on 25 September 1995 which proved fatal.
8. On 12 May 2002, the applicant lodged her claim for the acceptance of the veteran’s death as due to his war service. An earlier claim in 1997 proceeded unsuccessfully to a review by this Tribunal which, in a decision dated 16 December 1999, affirmed the rejection of the veteran’s death as due to war service. The applicant sought review in relation to this claim on 2 September 2004.
EVIDENCE
9. The veteran’s service medical records included readings of his weight on enlistment and discharge (summarised below at para 20 in the evidence of Dr P Grant, senior medial officer with Department of Veterans’ Affairs) as well as an Examination (Non-Flying) – Record Card dated 22 September 1947 (exhibit R2) which recorded the veteran’s height as 67 inches, weight 187lbs, and his physique as obese.
10. The veteran’s death certificate dated 12 October 1995 (T4, p33), certified by his general practitioner, Dr M Aitken, listed as causes of death: cardiac arrest and fine ventricular fibrillation (stated to have been present for some 30 minutes prior to death) as well as cerebrovascular accident with previous myocardial infarction (stated as being present for a duration of five months).
11. In a written statement dated 1 December 2003 (T4, p82) the applicant stated that prior to the war, the veteran was a labourer in a bacon-curing factory and was an active sportsman. She said that during his service in New Guinea he was less physically active, stating that he had told her that there were no organised sessions of physical training while he was in New Guinea and his job as storeman was not physically demanding. In various written statements in the T-documents, the applicant described the veteran before the war as very muscular and a very strong well built and fit young man who was active and played all types of sports. In respect of the veteran’s diet prior to war service, the applicant described it as normal meat and veggies and that he did not eat fatty foods, nor did he drink or smoke.
12. The applicant said that when the veteran returned to Australia in 1944 he was not in good physical shape and had put on weight. She said that at that time she and the veteran did not discuss why this had occurred, but had discussed it later when, in 1962, he suffered his first heart attack. The veteran then expressed his belief that he had put on weight when he was in New Guinea after suffering dengue fever. After the 1962 heart attack, the veteran was placed on a strict diet however the applicant was unable to recall whether it was effective in reducing his weight. She said however that he kept himself fit after the first heart attack, and kept playing golf as long as he could.
13. The applicant said that during service the veteran took football seriously and put his heart and soul into it. She said that when he was serving overseas the veteran played football and swam, and played for a while after the war but later took up golf, ceasing this sport in 1972 when no longer able to play (T4, p17). The applicant said that the veteran commenced playing bowls, ceasing this only the year he died. The applicant said that the veteran’s accepted condition of osteoarthritis slowed him down physically but never prevented him doing what he wanted to do though she observed that he stoically put up with the pain that physical activity caused him. She observed in her oral evidence that the veteran did so much walking that his hip surgery (left hip first surgery in 1976) had to be re-done about ten years later.
14. The applicant said that after the veteran had hip replacement surgery during the 1980’s he was less agile and walked with a limp. She said that his ability to partake in everyday activities was reduced but the veteran never ceased doing whatever was within his physical limits. His physical limitations led to his giving up golf (even though he used a golf buggy) and taking up bowls. He was unable to mow lawns or do gardening, and confined himself to raising orchids. She said that she undertook all housework, though the veteran would help wash up. She said that he would sit and wait for her while she shopped. In the years before his death he could not manage washing the car and took it to the local garage. She said that they had sold a highset house at Margate when the veteran could no longer manage stairs, and they then built a low-set house in KippaRing about 1990. About a month before his death they relocated to a war veterans’ retirement village at Caboolture.
15. In a letter to the veteran’s general practitioner dated 3 June 1988, Dr G Stafford, thoracic surgeon, stated that he was reviewing the veteran five years after the veteran’s quintuple by-pass surgery, from which he had recovered well and he could bowl and lead an active existence. He noted that the veteran had bilateral hip surgery after the by-pass.
16. In a report dated 3 April 1999 (T4, p21-22), Dr R Goodwin, consultant physician, stated that the veteran had dengue fever in New Guinea and gained a great deal of weight at this time. However, he said his basal metabolic reading (BMI) of 29.35 at the time of his discharge was below the formal definition of obesity as a BMI of 30. Dr Goodwin said that the veteran’s hypertension (treated by medication after his first heart attack in 1962), raised cholesterol, weight gain and progressive immobility were the main causes of the veteran’s heart problems. Dr Goodwin stated (T4,p22):
…the circumstances of this veterans service resulted in a significant increase in weight. Associated with such weight gain, it can be expected that his cholesterol levels rose, and these were a major influence, with the onset of clinical ischaemic heart disease, presenting as acute myocardial infarction at the premature age of 42 years.
A further link between ischaemic heart disease and his war service is identified by the development of chronic osteoarthritis of left hip, which has been reviewed by a rheumatologist and accepted as due to war service. This relationship is recognised in factor 5(h) of SOP 80 of 1998 concerning ischaemic heart disease.
In his later years, this veteran developed exertional bilateral calf pain suggestive of peripheral vascular disease, as recorded by Dr C McLaren 14 January 1992. Three months before his death, he developed an extensive stroke requiring speech therapy. The cardiovascular disease that led to his death from cardiac arrest, ventriculation [sic] fibrillation with previous myocardial infarction, ischaemic heart disease and cerebrovascular accident was significantly linked with his war service through excessive weight gain during his period of war service, and subsequent immobility associated with osteoarthritis left hip due to war service. The persistent hypertension that was present on enlistment but which may not legally be implicated because of the limitations imposed by the SOP concerning hypertension was an additional aggravating factor.
17. In what appears to be a summary of a medical report from Dr M Aitken, general practitioner, dated 30 September 1974, as evidence presented to a War Pensions Entitlement Appeals Tribunal (T4, p95) the following appears:
He claims that during his RAAF service he played interservice and representative football for RAAF and played on the left wing. As a consequence of this he says that his L hip was often quite sore after playing and falling on this hip….Mr Winnin also states that his obesity developed during War Service. He can produce evidence to show that he was 168lb and 5’7” on enlistment. This weight subsequently increased while in New Guinea to 186lbs. He was described by one of his officers as Obese on his form PM5. ….I feel his claim…should be reconsidered. This is more especially the case as his obesity would also influence his hip condition.
18. In oral evidence Dr Aitken, now retired from medical practice, stated that he treated the veteran from January 1973, mainly for the conditions of arthritis of both hips and for ischaemic heart disease. Dr Aitken said that the veteran was always limping to some extent despite having hip replacement surgery and he had a quite marked reduction in mobility because of osteoarthritis. He confirmed that in the period 1990 – 1995 the veteran was limited by his osteoarthritis and he referred to his clinical note taken on 8 October 1991: Limping, left hip giving him problems. He said the veteran was able to walk, but not long distances, and was unable to walk a couple of blocks, partly due to angina symptoms and partly as a result of arthritis. Dr Aitken said that with his bad hip problems and his age the veteran was unable to undertake much exercise. Dr Aitken stated that the veteran was grossly overweight for his height and this also decreased his exercise capabilities, which would have had some impact on the development of ischaemic heart disease.
19. Dr Aitken said that he last saw the veteran in August 1995 at which time the veteran moved to Caboolture. He said however that he had certified the veteran’s death on the death certificate, though he had not seen the veteran at the time of his death. Dr Aitken stated that he believed that he provided certification concerning the veteran’s death on the basis of communications with the Caboolture Hospital, including that the applicant had presented at the hospital experiencing true ventricular fibrillation prior to his fatal cardiac arrest, and he combined this information with his own knowledge of the veteran’s recent case history as his general practitioner in order to certify the veteran’s death.
20. In a report dated 8 March 2005 (exhibit R1), Dr P Grant, senior medical officer set out the medical records of the veteran’s weight:
Date
Wt (lbs)
Wt (kgs)
Ht
BMI
13/10/42
168
76.4
170
26.4
22/09/47
187
85
170
29.4
02/02/48
186
84.5
170
29.2
05/11/73
84
172
28.4
21. Dr Grant stated that the World Health Organisation’s (WHO) benchmark for obesity is a reading of BMI 30 and, thus none of the figures for weight reached this benchmark. He said that the veteran was overweight on joining the RAAF, increased his weight during service but nevertheless remained in the overweight but not obese range. He said that a reference to the veteran weighing 206lbs (T4, p93) when he was in New Guinea was most likely an error as no record of the veteran’s body weight during or after service came near to that weight.
22. In oral evidence Dr Grant said that in 1948 when the veteran’s service medical record noted him as obese this would be an expression of clinical judgement by the examining doctor. Nevertheless the veteran did not reach the WHO benchmark at that time or later.
CONSIDERATION OF THE ISSUES
23. Section 8(1) of the Act provides:
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…..
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
….
24. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s120A. It provides:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
….
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
….
25. The principles to be applied, in cases where s120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
26. The parties agreed that the relevant Statement of Principles (SoP) for ischaemic heart disease was No 53 of 2003 as amended by No 9 of 2004. Two factors arise for consideration in clause 5 of the SoP, namely:
(c) being obese before the clinical onset of ischaemic heart disease;
and
(h) an inability to undertake any physical activity greater than 3 METs for at least the five years immediately before the clinical onset of ischaemic heart disease; …,
27. The definitions in clause 8 of the SoP that relate to those clauses are the following:
“‘MET’ means 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;”
and
“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and H is the person’s height in metres;
28. At the time that the applicant’s claim was lodged in 2002, the SoP for ischaemic heart disease was No 38 of 1999 which provided as a factor at 5(c) that the person was obese (then defined in paragraph 8 as having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority’s Statement about causes of ‘being obese’ signed by the Chairman of the Authority on 16 August 1996) for a period of two years within the 15 years before the clinical onset of ischaemic heart disease. The earlier SoP may be considered if the applicant’s claim does not succeed when the SoP in force at the time of the Tribunal decision is applied. However it appears that the expression of factor 5(c) in the more recent SoP, without the requirement that obesity be present for two years, would be an easier factor to meet. Factor 5(h) remained the same, substantially, in each of the SoPs for ischaemic heart disease and the amendment, No 9 of 2004.
29. For the veteran’s cerebrovascular accident the relevant SoP is No 52 of 1999 (as amended) which provides at factor 5(d):
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 cerebrovascular accident;
where, from the definition in clause 8 of the SoP, 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, and a “MET” is a unit of measurement of the level of physical exertion…..A 70 kg man would use about 3 METS when walking at 4 km per hour.
30. Mr O’Neill submitted that the applicant’s case relied on two bases, firstly SoP No 53 of 2003 for a connection between the veteran’s obesity and the development of ischemic heart disease and, secondly, on the factors that related to an inability to undertake more than a mildly strenuous level of physical activity for five years, as provided for in SoP No 52 of 1999 for cerebrovascular accident. Mr O’Neill acknowledged that the applicant faced the difficulty of the veteran meeting the test for obesity as defined as a BMI of 30. However, he said that Dr Grant properly acknowledged that if there were substance to the reference to the veteran reaching a BMI of 32.4 in 1944, then the factor relating to obesity and ischaemic heart disease was met. He also referred to the medical record of obesity in 1947 (exhibit R2) and the applicant’s evidence concerning the substantial changes in the veteran’s physique that she observed when he returned from New Guinea. He said that Dr Goodwin’s report supported the connection between the veteran’s weight gain and his heart attack at the premature age of 42 years in 1962.
31. In regard to the veteran’s cerebrovascular accident Mr O’Neill submitted that the hypothesis raised by the evidence met factor 5(d) in the SoP (No 52 of 1999) for that condition. He submitted that as a result of the veteran’s repeated hip operations for his accepted condition of osteoarthritis the veteran was unable to undertake moderate activity in the five years before the clinical onset of his cerebrovascular accident. He submitted that the Tribunal should take into account that the veteran changed houses about 1990 because of his inability to manage stairs; that he sat and waited while his wife shopped; that he had to give up certain of his preferred sports. He submitted that Dr Goodwin’s report confirmed that the veteran’s immobility due to osteoarthritis of the left hips was a factor leading to the cerebrovascular accident.
32. Mr Williams agreed that if the veteran satisfied the criteria for the SoP concerning obesity, the applicant would establish the link with ischaemic heart disease and succeed in her application. However, Mr Williams submitted that there was insufficient information available to the Tribunal for an accurate finding on obesity. He said that the cause of death was ischemic heart disease and any contribution from cerebrovascular accident was minimal. Mr Williams submitted also that the veteran, if claiming now, would not meet the requirement in the current SoP for osteoarthrosis of suffering trauma to the hip joint that was related to his war service – trauma bearing a specific definition in the SoP.
33. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing. In Repatriation Commission v Hancock (2003) 37 AAR 383 (at 386) Selway J set out the correct approach, to be followed by the Tribunal when considering the question of a veteran’s death, as follows:
(a)First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out….
(b)Next, the AAT was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.
(c)If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
(d)If only a determination under s 180A(2) is applicable, then the application must fail.
(e)If no statement of principle and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.
34. In following the approach laid down in Hancock, the Tribunal finds that the pre-conditions, other than causation, have been made out because the applicant’s husband was a veteran, the veteran had died and the applicant was his widow. In relation to a determination, to the Tribunal’s reasonable satisfaction (s120(4) of the Act), of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate, supported by the medical evidence from Dr Aitken is that the causes of death were cardiac arrest, preceded by a history of ischaemic heart disease, as well as cerebrovascular accident. The Tribunal accepts the evidence of Dr Aitken that cerebrovascular accident was a contributing factor to the veteran’s death. On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran included ischaemic heart disease, identified in SoP No 53 of 2003 as amended by SoP No 9 of 2004, and cerebrovascular accident, identified in SoP No 52 of 1999.
35. As there are SoPs in force, the Tribunal is required to apply the methodology in Deledio to the kind of death. Step 3 in Deledio requires that an opinion be formed as to whether any hypotheses are reasonable. That is, whether there is material supporting or pointing to the hypotheses connecting the veteran’s death with the circumstances of the service rendered by him. If an hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated (at 596):
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
36. In respect of the sub-hypothesis that ischaemic heart disease was linked to obesity, each sub-hypothesis must be proven (McKenna v Repatriation Commission (1999) 86 FCR 144). In East v Repatriation Commission (1987) 74 ALR 518 (at 534) the Federal Court stated that a reasonable hypothesis requires more than a possibility; it must be pointed to by the facts.
37. There is no definition of the term clinical onset in the SoP. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal, after considering a number of expert medical opinions as to the meaning of the term, said (at para 23):
… we consider that there is a clinical onset of a 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.
38. In the veteran’s case the date of clinical onset of ischemic heart disease is the time of the veteran’s unexpected heart attack at the age of 42 years in 1962. There is no evidence supporting an earlier date of onset. To meet the factor connecting obesity with the development of ischemic heart disease the evidence must point to the veteran meeting the definition of obesity (which must be related to service) prior to that date. In this case the evidence shows that the veteran gained weight to the point where he was clinically observed as being obese, but the evidence of his weight taken at various times between 1942 and 1973, shows that at no point does he achieve a BMI of 30 as required in the definition of obesity in the SoP for ischaemic heart disease.
39. The Tribunal takes into account the beneficial nature of the Act, the effects of the passage of time, the deficiency in official records and that direct evidence from the veteran was not possible (s119(1)(h) of the Act), however s119(1)(h) cannot be used to provide evidence of facts if none exists. The single record of the veteran stating to a medical board in 1973 that he was 14st 10lbs in 1944 and maintained this weight until 1960 must be discounted in the face of actual records of his weight taken in 1942, 1947 and 1948 where he reached a maximum of 13st 5lbs.
40. The applicant did not press any submissions on the veteran’s inability to undertake more than moderate activity prior to the onset of ischaemic heart disease and her evidence was that at that time and until 1972 the veteran was able to play golf and did as much as possible to keep active, despite his limitations from his osteoarthritis and heart disease. On the evidence at the time of the clinical onset of ischemic heart disease in 1962, factor 5(h) cannot be met because the veteran was still physically active and undertaking activities that reflect his capacities above 3 METs. For these reasons the two possible hypotheses of obesity and inability to undertake reasonable activity prior to the 1962 onset of ischemic heart disease are not pointed to by the evidence and are not reasonable hypotheses. The claim as it relates to ischaemic heart disease therefore fails.
41. In regard to the veteran’s death as it related to cerebrovascular accident, the Tribunal finds that the clinical onset of the cerebrovascular accident was May 1995, accepting Dr Aitken’s evidence on the date that the applicant suffered a stroke. The connection of cerebrovascular accident with service is postulated through the veteran’s accepted disorder of osteoarthritis. The Tribunal agrees with Mr Williams’ submission that this is not a case where the applicant can make a direct connection of an accepted war-caused condition being the injury or disease from which the veteran died, as is provided for by s8(f) of the Act. Clearly the veteran did not die from osteoarthritis directly. The Tribunal notes however that in the SoP for osteoarthrosis death from osteoarthrosis includes death from a terminal event or condition (including cardiac arrest, circulatory failure, or cessation of brain function) that was contributed to by the person’s osteoarthritis.
42. The Tribunal does not accept Mr Williams’ submission that the evidence shows that the veteran does not meet the requirements to meet the factor for trauma in the SoP for osteoarthritis (SoP No 81 of 2001 for osteoarthrosis). Little medical evidence was led by either side at the hearing in regard to issues of causation of osteoarthritis, but Dr Aitken confirmed his 1975 report that the veteran’s osteoarthritis was caused by football during service, and was unchallenged on this in cross-examination. The Tribunal is satisfied that on the history of the applicant playing inter-service football for the RAAF in Australia and weekly during his service in New Guinea there are no reasonable grounds to form a conclusion that his claim to connect an early onset of osteoarthritis, in one hip only, where there was no family history of the condition, would now be disproved beyond reasonable doubt, even though the condition was accepted in 1975, well before the introduction of the SoP regime. There would have to be substantial contrary evidence to establish beyond reasonable doubt that there was no sufficient ground to connect this condition with service: s120(1).
43. Looking at the whole of the evidence, the material points to an hypothesis that for some considerable period prior to suffering a cerebrovascular accident in 1995 the veteran was considerably reduced in his capacity to undertake activity. The Tribunal looked to Table 1.1 of the Guide to the Assessment of the Rates of Veterans Pensions (5th ed) for some guidance on what would come within physical activity greater than 3 METS. That sets out that in the range of 2-3 METs are such activities as light housework, walking slowly, typing, playing billiards, playing golf with a power buggy, dressing and showering and driving a car. In the next range of 3-4 METs are activities such as cleaning a car, tidying house, golf, welding, pushing a light lawn mower at a slow pace and vacuuming.
44. The Tribunal took into account that the applicant gave evidence that the veteran kept as active as he could manage, and as his age and disabilities allowed. Her evidence was not always specific in terms of dates, which is understandable given her own age and the time that has elapsed since events occurred. The applicant’s evidence however was given without exaggeration and was plausible. She was not seriously challenged in cross examination.
45. Taking her evidence as a whole, it points to meeting the factor of inability to undertake activities of greater than 3 METs in the five years prior to the veteran’s cerebrovascular accident, when account is taken of the veteran having to give up golf in 1972 and taking up bowls. Though he was able to continue this activity into the last year of his life, the Tribunal notes that bowling is an activity that falls below 3 METs. The applicant also gave evidence that the veteran returned home from this activity exhausted. The most telling evidence of his limitations was that they had to move to a low set house five years or more before the veteran suffered his stroke because the veteran could not negotiate stairs without assistance as well as the applicant’s evidence about the veteran needing to sit while she shopped, and his being essentially limited to pottering tasks in the home and garden. Dr Aitken’s evidence supported the extent of the applicant’s incapacity, particularly in regard to his capacity to walk only short distances. While this level of incapacity was attributable to the veteran’s heart condition and his age as well as his osteoarthritis, the legislation and the SoP’s do not require that the inability be solely related to a service related condition. In Repatriation Commission v Law (1980) 31 ALR 140 the Court said [at p.151]:
…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause.
Dr Goodwin’s evidence also refers to the link between the veteran’s immobility from osteoarthritis and the subsequent stroke.
46. The evidence points to the veteran being unable to undertake more than a mildly strenuous level of physical activity for at least the five years before the clinical onset of cerebrovascular accident. It follows that the relevant factor in the SoP relating to cerebrovascular accident is satisfied and the hypothesis is reasonable.
47. In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence demonstrates that the hypothesis cannot be sustained, the Tribunal must at this stage make findings of fact. The claim will succeed unless one or more of the facts necessary to support another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving the hypothesis: Repatriation Commission v Bey (1997) 79 FCR 364. The Tribunal accepts the applicant’s evidence about the veteran’s limitations, as supported by the evidence of Dr Aitken who treated the veteran for some twenty years and was able to confirm that the veteran’s physical limitations were related in part to his accepted disability of osteoarthritis. The Tribunal also accepts the evidence of Dr Goodwin that the veteran’s immobility from his hip disorder was a factor leading to the cerebrovascular accident. There was no material which established beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death from cerebrovascular accident was war-caused within the meaning of s8(1)(b) of the Act.
48. As the applicant’s claim in respect of her husband’s death therefore succeeds as it relates to his cerebrovascular accident, there is no need to further deal with the provision for death from osteoarthrosis which also allows for the contribution of an accepted medical condition to death resulting from a range of terminal events. The Tribunal notes that Doolette v Repatriation Commission (1990) 21 ALD 489 is authority for the proposition that attributability is a question of causation in each case, and does not require that there be sole contribution. That case also is authority accepting the following proposition [at p.490]:
… if death is hastened because of the accelerated progress of a disease and that acceleration was itself caused by a war-related condition, death would be attributable to service.
The evidence points to the veteran’s death being accelerated by war caused disease, but as the Tribunal has decided in favour of the applicant on an alternative SoP, and the parties made no submissions on the SoP for osteoarthrosis, there is not need to consider this as an alternative ground in this claim.
DECISION
49. The Tribunal sets aside the decision under review and substitutes the decision that the death of William Thomas Winnin is war caused and the applicant is qualified for payment of pension with effect from 16 February 2002.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 23 June 2005
Date of Decision 2 September 2005
Counsel for the Applicant Mr P O'Neil
Solicitor for the Applicant Files Stibbe & Associates
For the Respondent Mr B Williams, Departmental Advocate
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