Wotherspoon and Repatriation Commission

[2000] AATA 572

DECISION AND REASONS FOR DECISION [2000] AATA 572

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/705

VETERANS' APPEALS DIVISION          )          
           Re      ROSS WOTHERSPOON  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       WJF Purcell, Senior Member Major-General Stein, Member

Date12 July 2000

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and substitutes a decision that the death of Noel Wotherspoon was war-caused, and that the late Mrs Eryl Wotherspoon was entitled to payment of widow's pension, with effect from 28 January 1997.  
  .
  (Sgd) WJF Purcell         
  Senior Member
CATCHWORDS
 VETERANS' AFFAIRS – war widow's pension – whether the veteran satisfied the cirrhosis of the liver Statement of Principles – reasonable hypothesis.

Veterans'Entitlements Act 1986 ss 120(1), 120A
Statement of Principles Instrument No 75 of 1996

REASONS FOR DECISION

12 July 2000   WJF Purcell, Senior Member       Major-General Stein, Member      

1. The applicant, as executor of the estate of his mother Mrs Eryl Wotherspoon, seeks review of a decision of the respondent (the Commission) of 18 July 1997, which found that the death of his father Noel Wotherspoon (the veteran) on 13 July 1992, was not war-caused, and that his late mother was not eligible therefore for a war widow's pension.  The Veterans' Review Board (the VRB) affirmed the decision on 2 June 1999.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the applicant who appeared on his own behalf.  Mr Malcolm Smith, a Departmental Advocate, represented the Commission.

3. The veteran, who was then nearly 24 years of age, enlisted in the Army on 7 January 1942 and commenced operational service on 12 May 1942.  He served in Australia and overseas, in Dutch New Guinea and Morotai/British North Borneo until his discharge on 31 January 1946.  He had operational service therefore, for the purposes of the Veterans' Entitlement Act 1986 (the Act) and the standard of proof is that of reasonable hypothesis in accordance with section 120(1) of the Act which provides:

   "120  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."

4. As the claim was lodged after 1 June 1994, section 120A of the Act applies:

   "Reasonableness of hypothesis to be assessed by reference to Statement of Principles
   120A   (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;

   (b)       a claim under Part IV that relates to:

   (i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

   (ii)the hazardous service rendered by a member of the Forces.

   Note 1:   Subsections 120 (1), (2) and (3) are relevant to these claims.
   Note 2:   For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

   (2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

   (a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

   (b)has declared that it does not propose to make such a Statement of Principles.

   (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);

   that upholds the hypothesis.

   Note:   See subsection (4) about the application of this subsection.

   (4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
             (a)       the kind of injury suffered by the person; or
             (b)       the kind of disease contracted by the person; or
             (c)       the kind of death met by the person;

   as the case may be."

1. The veteran was 74 years of age when he died on 13 July 1992.  The cause of death was recorded as 1 (a) Haemorrhagic shock; (b) oesophageal varices; 2. liver cirrhosis.  Ultimately the cause of death was liver cirrhosis, which was discovered on autopsy, and the applicable Statement of Principals (SoP) is that which relates to "Cirrhosis of the Liver" Instrument No 75 of 1996 which as far as is relevant for the purpose of this review states:

   "Instrument No.75 of 1996

   Determination
   of
   Statement of Principles
   concerning
   CIRRHOSIS OF THE LIVER
   ICD CODES: 571.2, 571.5, 571.6

   Veterans' Entitlements Act 1986

   1.        This Statement of Principles is determined by the Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act).

   Kind of injury, disease or death

   2        (a) This Statement of Principles is about cirrhosis of the liver and death from cirrhosis of the liver.

   (b) For the purposes of this Statement of Principles, "cirrhosis of the liver" means a pathologically defined entity involving irreversible chronic injury of the hepatic parenchyma and includes extensive fibrosis in association with regenerative nodules. It is characterised by diffuse interlacing bands of fibrous tissue typically dividing the hepatic parenchyma into micronodular or macronodular areas, attracting ICD code 571.2, 571.5 or 571.6.

   Basis for determining the factors

   3.        The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cirrhosis of the liver can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

   Factors that must be related to service

   4.        Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

   Factors

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

   (a)       for men, drinking at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver; or

   …."

2. The applicant contends that factor 5(a) of the SoP is satisfied, as the veteran developed a drinking habit related to his war service, and consumed 3-5 beers per day over the last 10 years of his life, being the equivalent of 150 kg of alcohol as required by Factor 5(a).

3. The Commission argues that although Factor 5(a) of the SoP may be satisfied marginally, the veteran's drinking habit was not dependence or abuse; he did not suffer from a psychiatric disorder, his drinking was discretionary drinking, a matter of personal choice.  He continued to drink once he was away from the influence of the Army, the stress was over, the reasons for drinking on service no longer applied, the connection with service had been broken.

4. We have carefully examined the documentary evidence and taken into account the parties' submission.  The veteran's sister, Mrs Eldershaw, stated at [Exhibit A3] that their father was a Presbyterian Church Minister, he was a teetotaller, and alcohol was strictly forbidden in the home.  The veteran was a shy kind of person, whose first permanent job was in the family store of his aunt and uncle where he boarded; and later when he joined the Bank of New South Wales he lived in bank approved boarding houses, in which most would not allow alcohol to be consumed.

5. It is clear on the whole of the evidence, that the veteran did not consume alcohol before his enlistment, at the age of 24.  We are satisfied on the evidence, that the veteran was exposed to stresses and tensions during his war-service; and whether he developed his drinking habit as a result of these stressors, or because of peer pressure, or other experiences during his service, we are satisfied on the evidence that the veterans' drinking habit, which persisted throughout his life, was related to the relevant service he rendered during the war.

6. We are satisfied on the whole of the evidence, that the veteran consumed at least 150 kg of alcohol within the 10 year period prior to his death.  Factor 5(a) of the SoP is satisfied therefore, and the applicant has established a reasonable hypothesis that the death of the veteran was war-caused.  The late Mrs Wotherspoon did not lodge her claim until 28 April 1997, the earliest date of effect therefore, is 28 January 1997.

7. For these reasons the Tribunal sets aside the decision under review and substitutes a decision that the death of Noel Wotherspoon was war-caused, and that the late Mrs Eryl Wotherspoon was entitled to payment of widow's pension, with effect from 28 January 1997.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of WJF Purcell, Senior Member
   Major-General Stein, Member

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  29 June 2000 
   Date of Decision  12 July 2000
   Applicant  In person
   Advocate for Respondent       Mr M Smith, Departmental Advocate