Winter and Repatriation Commission
[2011] AATA 278
•27 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 278
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6069
VETERANS’ APPEALS DIVISION ) Re Alice Winter Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal J W Constance, Deputy President Date27 April 2011
PlaceMelbourne
Decision The decision under review, being the decision of the Repatriation Commission made 3 January 2007, is set aside. In substitution for the decision set aside it is decided that the death of the late Mr Winter on 10 June 1988 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).
……...(Sgd J W Constance).......
Deputy President
VETERANS’ ENTITLEMENTS ACT 1986 – war widow’s pension – whether death “war caused” – Deledio test – death caused by bronchopneumonia – chronic bronchitis caused by smoking - decision set aside that death “war caused”.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120 and 120A
Administrative Appeals Tribunal Act 1975 (Cth)
Hardman v Repatriation Commission (2004) 82 ALD 433
Re Dell v Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Hancock [2003] FCA 711
REASONS FOR DECISION
27 April 2011
J W Constance, Deputy President INTRODUCTION
1. Mrs Winter is the widow of the late Mr Winter who died on 10 June 1988. From 3 September 1939 until 2 January 1949 Mr Winter rendered operational service as a member of the Royal Australian Navy.
2. In 1999 Mrs Winter claimed benefits under the Veterans’ Entitlements Act 1986 (Cth) on the basis that her late husband’s death was “war-caused”. The Repatriation Commission rejected this claim and the Veterans’ Review Board affirmed the Commission’s decision.
3. For the reasons which follow the decision under review will be set aside and a decision that the late Mr Winter’s death was war-caused will be substituted.
MATERIAL BEFORE THE TRIBUNAL
Mrs Winter’s evidence
4. Mrs Winter told the Tribunal that she first met Mr Winter in 1945 and that they married in 1950. Mr Winter was a heavy smoker (smoking approximately 30 cigarettes per day) at the time they met and continued to smoke heavily until 1986 when he entered a Nursing Home. He told Mrs Winter that he started smoking after he joined the Navy when he was given rations of cigarettes while on operational service.
5. During the whole of the time Mrs Winter knew her husband he suffered a productive cough. She did not notice any change in the nature of the cough after Mr Winter was diagnosed as suffering from Parkinson’s disease in 1980. He suffered from chest infections and bouts of bronchitis about four times per year. These infections would subside after about a week, but the productive cough would continue.
6. Mrs Winter described Mr Winter as “always chesty”. She gave evidence that Mr Winter would cough up sputum and that she soaked his handkerchiefs in salt water to remove the sputum. Mrs Winter said that her husband did not go to see a doctor readily and was likely to “play down” any information given to a doctor concerning his health.
Evidence of Suzanne Lee
7. Ms Lee is the daughter of Mrs Winter and the late Mr Winter. She lived with her parents until 1973 and continued to have frequent contact with her father until his death. Ms Lee is a physiotherapist and has experience treating patients with chest congestion. Ms Lee said that her father had a “chronic cough” producing sputum for as long as she could remember. She recalls that he suffered “bouts of bronchitis”. She said also that Mr Winter was a heavy smoker until he went into a Nursing Home in 1986. She denied that Mr Winter ceased smoking from 1958 onwards or from the mid-sixties, as recorded separately in Departmental records.
Entries contained in Repatriation Department records[1]
[1] Exhibit R2.
8. In a clinical history taken in May 1963 Mr Winter is recorded as smoking 20 cigarettes per day. It is also recorded that his airways were clear and that his throat was not congested.[2]
[2] Exhibit R2, 1-2.
9. The notes of a medical examination of Mr Winter in December 1967 record “no cough” and Mr Winter’s description of himself as “pretty healthy”.[3]
[3] Exhibit R2, 14.
10. In December 1963 it was reported that Mr Winter’s chest x-ray was normal.[4]
[4] Exhibit R2, 18.
11. In a clinical history taken in October 1970 it is recorded that Mr Winter did not suffer shortness of breath and did not suffer chest pain nor have a cough. It also records “non-smoker since 5Y ago [sic]”.[5]
[5] Exhibit R2, 19.
12. Clinical notes of an examination in February 1982 record that Mr Winter stopped smoking in 1958. At that time it was noted that no abnormality was detected in Mr Winter’s chest.[6]
[6] Exhibit R2, 29-30.
13. In February 1980 Dr Balla diagnosed Mr Winter as suffering Parkinson’s disease. He reported also that Mr Winter did not give any details regarding significant past illnesses.[7]
[7] Exhibit R2, 34-35.
Report of Dr Whight, General Practitioner
14. In a report dated 11 August 1999, Dr Whight stated:
He continued to smoke until the later years of his life and smoked 20-30 cigarettes daily. He suffered severely from Parkinson’s disease & occasionally from recurrent chest infections. He died of bronchopneumonia. [8]
[8] Exhibit R5, 15.
Dr Whight stated that he had been involved in Mr Winter’s treatment since 1963.
Evidence of Professor Pain
15. Professor Pain is a Consultant Thoracic Physician and previously was the Head of the Thoracic Department of the Royal Melbourne Hospital. Professor Pain has not examined Mr Winter but he reviewed various documents provided to him.
16. Professor Pain’s report dated 3 August 2010 is before the Tribunal and he gave evidence.
17. Professor Pain expressed the following opinions:
·a history of chronic cough over many years, a report of being “chesty” and a history of chest infections are signs of chronic bronchitis;
·coughing and spitting are “a very positive symptom of chronic bronchitis”;
·a person who is a heavy smoker with a productive cough has chronic bronchitis;
·a normal clinical examination, normal chest x-ray and no complaint of breathlessness do not eliminate the diagnosis of chronic bronchitis; they indicate simple chronic bronchitis rather than obstructive bronchitis;
·the presence of chronic bronchitis predisposes to chest infections including pneumonia;
·bronchopneumonia is a common terminal event in Parkinson’s disease;
·the likelihood of contracting pneumonia is increased in the presence of smoking induced chronic bronchitis;
·both Parkinson’s disease and chronic bronchitis are contributing factors to bronchopneumonia; and
·undoubtedly Mr Winter was suffering from chronic bronchitis.
Evidence of Professor Cade
18. Professor Cade is the Principal Specialist in Intensive Care at the Royal Melbourne Hospital. He gave evidence and provided a report dated 29 October 2010.[9] Professor Cade has not examined Mr Winter but has reviewed documents provided to him.
[9] Exhibit R3.
19. Professor Cade expressed the following opinions:
·given Mr Winter’s long smoking history the diagnosis of simple chronic bronchitis is likely to be correct;
·both Parkinson’s disease and chronic bronchitis could theoretically have contributed to Mr Winter’s death by predisposing him to the eventually fatal bronchopneumonia;
·if Mr Winter’s terminal bronchopneumonia had been preceded by recurrent chest infections in previous years the proposition that the chronic bronchitis contributed to the bronchopneumonia becomes plausible;
·late Parkinson’s disease (and/or its treatment) may contribute to the development of a chest infection by impairing airway defences, predisposing to aspiration and diminishing sputum clearance;
·evidence of occasional (once in three to four years) chest infections being treated by antibiotics is neutral in assessing the likelihood of the development of bronchopneumonia; and
·three to four infections is regarded as frequent.
Death Certificate
20. The certificate of Mr Winter’s death records the cause of death as:
Bronchopneumonia – 3 days;
Parkinson’s disease – years. [10]
[10] Exhibit R5, 17.
Further documents before the Tribunal
21. In addition to the documents already referred to the following documents are before the Tribunal:
·amended Statement of Mrs Winter made 17 September 2010; [11]
·note of Mrs Winter’s discussions with Mr Winter; [12]
·statement by Mrs Winter made 21 May 2009; [13]
·smoking statement by Mrs Winter made 28 April 2009; [14]
·statement by Ms S Lee made 18 February 2011; [15]
·documents filed in the tribunal in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·transcript of proceedings before the Veterans’ review Board 5 October 2009; and [16]
·copy of Claim for Pension by Mrs Winter 17 August 1999. [17]
[11] Exhibit A3.
[12] Exhibit A4.
[13] Exhibit A1.
[14] Exhibit A2.
[15] Exhibit A5.
[16] Exhibit R1.
[17] Exhibit R4.
LEGISLATIVE BACKGROUND
War-caused injury
22. Section 9 of the Act sets out the circumstances in which an injury is taken to be “war-caused”. The relevant parts of that section are:
War‑caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Standard of proof
23. Section 120 relevantly provides:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
24. Subsection 120A(3) provides:
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);
that upholds the hypothesis.
Applying The Law
25. In Repatriation Commission v Deledio[18] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service:
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 a SoP [Statement of Principles] 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 a 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.
[18] (1998) 83 FCR 82 at 97.
Issues For Determination
26. I have to determine the following issues:
1)Did Mr Winter render "operational service” and if so, when?
2)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Winter?
3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?
6)If so, am I satisfied beyond a reasonable doubt that the death of the late Mr Winter was not war-caused?
DETERMINATION OF THE ISSUES
Did Mr Winter render operational service and if so, when?
27. The Commission has conceded that Mr Winter rendered operational service from 3 September 1939 until 2 January 1949. I am satisfied that this is a proper concession.
What was the kind of death met by Mr Winter?
28. The parties agree that a cause of death was bronchopneumonia, being one of the causes of death recorded on the death certificate. I am satisfied that this agreement is appropriate and this was the kind of death in accordance with the Act.
29. The death certificate records also that Parkinson’s disease was a cause of death. There may be more than one kind of death for the purposes of the Veterans’ Entitlements Act: Repatriation Commission v Hancock.[19]
Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?
[19] [2003] FCA 711.
30. In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
a proposition made as basis for reasoning, without assumption of its truth; supposition made as a starting point for further investigation from known facts.[20]
[20] Re Dell v Repatriation Commission (1986) 9 ALD 596 at 615.
31. In deciding this issue I must consider all the material, not only that which supports the hypothesis: Hardman v Repatriation Commission.[21]
[21] (2004) 82 ALD 433 at 445.
32. Taking into account all the material before me I determine that the material does point to a hypothesis which connects Mr Winter’s death with the circumstances of his operational service. The hypothesis is that:
·by reason of the stressful circumstances of his operational service and the supply of cigarettes to him as part of his rations, Mr Winter became addicted to nicotine and continued to smoke heavily until 1986;
·Mr Winter’s heavy smoking caused him to develop simple chronic bronchitis and to suffer from chest infections three to four times per year; and
·chronic bronchitis contributed to the development of bronchopneumonia which caused the death of Mr Winter.
33. There is nothing in the material before me that prevents the determination of this hypothesis.
Is there a relevant Statement of Principles in force?
34. Instrument No. 30 of 2004 “Chronic Bronchitis and Emphysema” is in force.
35. Paragraph 2 of the Statement provides in part:
2.(a) This Statement of Principles is about chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema, either alone or in combination.
(b)For the purposes of this Statement of Principles,
(i) “chronic bronchitis” means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.
36. Paragraph 8 provides in part:
“death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s chronic bronchitis and/or emphysema.
“terminal event” means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.
37. I have found that the kind of death suffered by Mr Winter was bronchopneumonia which is a terminal event included in the definition of death from chronic bronchitis. I am satisfied therefore that Instrument 30 of 2004 is applicable.
Is the hypothesis consistent with the template within the Statement of Principles and therefore a reasonable one?
38. Paragraph 3 provides:
The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under VEA, or members under the Military Rehabilitation Compensation Act 2004 (the MRCA).
At least one of the factors set out in clause 5 must be related to the relevant service rendered by the person (clause 4).
39. The relevant provision of clause 5 is:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person’s relevant service is:
(a) smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.
40. The Commission concedes that the material before me is consistent with Mr Winter having smoked for at least five pack years before the clinical onset of chronic bronchitis and that his smoking was service related. In view of the definitions in Paragraph 8 I determine that the hypothesis is consistent with the Statement of Principles.
Am I satisfied beyond a reasonable doubt that the death of the late Mr Winter was not war-caused?
41. I am satisfied that both Mrs Winter and Ms Lee are honest witnesses and I accept their evidence. On the basis of this evidence I am satisfied on the balance of probabilities that Mr Winter had a chronic productive cough from at least 1950 (being the year of his marriage) until his death. I am satisfied that he suffered from chest infections on an average of 3-4 times per year.
42. Professor Pain is of the opinion that “undoubtedly” Mr Winter was suffering from chronic bronchitis. His opinion was based on the evidence that Mr Winter had a chronic productive cough over many years. He said that coughing and spitting are positive symptoms of chronic bronchitis. He expressed the opinion that normal clinical examination, normal chest x-ray and lack of complaint of shortness of breath do not eliminate the diagnosis of chronic bronchitis.
43. It was argued on behalf of the Commission that I should be satisfied beyond reasonable doubt that Mr Winter’s death was caused by Parkinson’s disease and therefore that his death was not war-caused.
44. The Commission relied on the evidence of Professor Cade. He is of the opinion that Mr Winter had well-documented Parkinson’s disease and that bronchopneumonia is a common terminal event in patients with this disease. Consequently he could see no reason to question the accuracy of the death certificate. However Professor Cade stated in his report that if the condition of bronchopneumonia (also listed as a cause of death on the certificate) had been preceded by recurrent chest infections in previous years, the proposition that the cause of death was a chest infection leading to bronchopneumonia as the immediate cause of Mr Winter’s death becomes more plausible. He said he regarded three to four episodes of chest infection per year as frequent.
45. In view of Professor Cade’s concession that it is plausible that Mr Winter’s death was caused by chronic bronchitis leading to bronchopneumonia together with the evidence of Professor Pain, I cannot be satisfied beyond a reasonable doubt that Mr Winter’s death was not war-caused. The many entries recording the lack of symptoms of lung and/or airway disease do not eliminate the diagnosis of chronic bronchitis. I accept the opinions of both Professor Pain and Professor Cade in this regard and note that Professor Cade agrees that the diagnosis of bronchitis is likely to be correct.
46. Counsel for the Commission rightly referred me to several references in the medical records to Mr Winter having given up smoking and to his being in general good health. These were records of reports by Mr Winter himself to various medical personnel. I accept the evidence of Mrs Winter that Mr Winter did not give up smoking as noted and that he was a man who was likely to minimize his complaints to a doctor.
DECISION
47. The decision under review, being the decision of the Repatriation Commission made 3 January 2007, is set aside. In substitution for the decision set aside it is decided that the death of the late Mr Winter on 10 June 1988 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy President
Signed: .......(Sgd K Peterson)..................
K. Peterson, AssociateDate of Hearing 7 March 2011
Date of Decision 27 April 2011
Solicitor for the Applicant Mr D De Marchi, De Marchi & Associates
Solicitor for the Respondent Ms J McCulloch, Repatriation Commission
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