McDonald and Repatriation Commission [1999] AATA 49 (29 January 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1996/1461

GENERAL ADMINISTRATIVE DIVISION )

Re IVY PHYLLIS McDONALD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 29 January 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

J D CAMPBELL

Member

CATCHWORDS

Veterans' Affairs - Widow's Pension - pulmonary embolism - war service - accepted disabilities - reasonable hypothesis - insufficient material

Veterans' Entitlements Act 1986, subsections 120(1), (3)

Bushell v Repatriation Commission (1992) 109 ALR 30

REASONS FOR DECISION

29 January 1999 Dr J D Campbell, Member

1. Mrs Ivy McDonald ("the Applicant") in this matter, seeks a review of the decision of the Veterans' Review Board dated 6 September 1996, which affirmed the decision of a delegate of the Repatriation Commission dated 1 February 1996. This latter decision determined that the death of Mr John McDonald, the late husband of the Applicant, was not causally related to service. Accordingly, the Applicant's claim for a war widow's pension was rejected.

2. The Applicant was assisted in her application by Mr Robert S Narramore, an associate in Legacy with the Applicant. The Respondent was represented by Mr J Sylvestre, an advocate.

3. A hearing was held on 26 November 1998.

4. The Tribunal had placed before it, documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T23).

5. The Tribunal heard oral evidence from Mrs McDonald, the Applicant, who was assisted by Mr R Narramore.

LEGISLATION

6. The relevant legislation is subsection 120(1) and (3) of the Veterans' Entitlement Act 1986 (hereinafter referred to as "the Act").

ISSUES

7. The issue in this matter is whether the late veteran's death, from pulmonary embolism, was causally related to war service.

INTRODUCTORY MATTERS

8. The following matters are agreed between the parties:

(a) the late Veteran had operational service from 16 March 1942 until 10 April 1946, during World War II;

(b) the late Veteran has had accepted as service related disabilities, the following conditions:

(i) Chronic suppurative otitis medial (left)

(ii) Eczema left foot

(iii) Recurrent conjunctivitis

(iv) Solar hyperkeratoses

(v) Basal cell carcinomas with exenteration of the left orbit; and

(a) the late Veteran died on 30 August 1976, the cause of death being pulmonary embolism.

9. The Applicant , assisted by Mr Narramore, stated the following relevant matters:

(a) the late veteran had suffered from solar hyperkeratoses (accepted disability) since his war service. Further the late Veteran had been hospitalised in Repatriation General Hospital, Concord from time to time for treatment for his skin cancers;

(b) in January 1976, the late Veteran had been hospitalised at Repatriation General Hospital, Concord for further treatment of a basal cell carcinoma on his face, which involved an operation for exenteration of his left orbit;

(c) prior to his hospitalisation in January 1976, the late Veteran had lived an active life, being a keen golfer and gardener;

(d) after his hospitalisation in January 1976, the late Veteran seemed to lose all his zest and energy, sitting around the house, not playing golf or undertaking any activity, increasing periods of sleeping and sitting in the chair with decreasing appetite and loss of weight;

(e) that his death on 30 August 1976 was a sudden event; that he was attended to on that occasion by Dr Natham, a locum for Dr Pettitt, who attempted to organise admission to hospital; and

(f) that his attending general practitioner in 1976 was Dr Pettitt.

FILE EVIDENCE

10. The following relevant matters are drawn from the T documents:

(a) the cause of death, on 30 August 1976, of the late Veteran, was pulmonary embolism (T8). An autopsy was undertaken on 1 September 1976 and this report (T10 p41) states that no evidence of thrombosis could be detected in the veins of the lower limbs; and

(b) it was noted at T10 p39, that the late Veteran had been complaining of chest pains, for eight months, to his attending general practitioner, Dr Pettitt. This is further confirmed in Dr Pettitt's report of 14 October 1976 (T9, p37), in which he states that there were complaints of pain in the right shoulder, with the pain radiating from back of neck to the left pectoral region, for which medication was given and physiotherapy arranged.

CONSIDERATION AND FINDINGS

11. The Tribunal notes that the late Veteran enjoyed an active life after his retirement from employment with Qantas from 1946-70. An active golfing and gardening lifestyle was enjoyed by the late Veteran until after his period of hospitalisation in January 1976. Following major surgery to his orbit at that time, the late Veteran altered his lifestyle in that he no longer golfed or gardened to any extent, and that his days were spent sitting around and sleeping. Further it was explained to the Tribunal that the late Veteran seems to have lost energy and weight during this period. The Tribunal also notes the contemporaneous notes of the attending general practitioner, Dr Pettitt, at that time.

12. The Tribunal concludes that the cause of death of the late Veteran was pulmonary embolism and that the source of the embolus was not found. The Tribunal is concerned, however, that there has not been a detailing of medical opinion surrounding the circumstances of the late Veteran's medical history, following his hospitalisation and operative intervention in January 1976, up to the time of his death in August 1976. In this regard the Tribunal would be seeking to understand the reason(s) for the late Veteran's apparent significant change in lifestyle. Nevertheless, no evidence has been forthcoming on these matters and, as a consequence, while the Tribunal has much sympathy with those, such as the Applicant, in trying to collate such details from doctors and others after many years have elapsed, the matter must be dealt with on the evidence available.

13. The Tribunal notes that there does not exist a Statement of Principles issued by the Repatriation Medical Authority for the condition of pulmonary embolism. Accordingly, the Tribunal is left to deal with the matter under the reasonable hypothesis provisions, subsections 120(1) and (3) of the Act, and the interpretation thereof nominated by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30.

14. Subsections 120(1) and (3) of the Act specify the standard of proof required for the grant of a pension, in respect of the incapacity from injury or disease, or in respect of the death, of a Veteran. Subsections 120(1) and (3) follow as relevant:

"120. (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.

...

(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."

15. Mason CJ, Deane and McHugh JJ stated in Bushell (supra), that subsection 120(3) of the Act is:

"...concerned with whether 'the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of subs (3), as demonstrated by its terms and its history, is to ensure that a claim to which s.120 applies is not met unless there is some material which raises the relevant causal hypothesis..." (page 34)

16. In considering the reasonable hypothesis requirement, the Tribunal notes that, in effect, the hypothesis being put forward by the Applicant in this matter, is that the late Veteran's death was caused by a pulmonary embolus, and that this latter condition was related in some manner to his operation and the subsequent events of January 1976, in relation to the accepted disability of basal cell carcinoma invading the left orbit. In dealing with this matter, as it stands, the Tribunal has, in the absence of particular material, been unable to point to some fact or facts which would support a hypothesis connecting the period of hospitalisation and operative intervention in January 1976, and the late Veteran's death from pulmonary embolism on 30 August 1976. In short, the Tribunal finds that there is an absence of material which points to some fact or facts which would support a hypothesis connecting the Veteran's death to his war service.

17. In arriving at this finding, the Tribunal has considered the particular causes of pulmonary embolism and the aetiological association of particular disease states with deep vein thrombosis and pulmonary embolus. However, in the absence of particular material being placed before the Tribunal or where the Tribunal, with particular questioning, has not been able to establish the existence of particular material, the Tribunal is left without facts to support the existence of a hypothesis.

18. Accordingly, the Tribunal finds:

(i) that the material put forward on this occasion does not point to some fact or facts which support the hypothesis;

(ii) that the presence of definitive history and medical opinion relating to the period January 1976 through to August 1976 are material(s) from which fact(s) could be adduced; and

(iii) that on the material presented in this matter at this time, there is insufficient material to allow fact or facts to be adduced which would support a hypothesis connecting the death of the Veteran to his war service.

DETERMINATION

19. The Tribunal affirms the decision under review.

I certify that this and the 7 preceding pages are a true copy of the decision and reasons for decision herein of

Dr J D Campbell, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 26 November 1998

Date of Decision 29 January 1999

Solicitor for the Applicant Applicant (Mrs McDonald) was unrepresented but was assisted by Mr R Narramore

Solicitor for the Respondent Mr J Sylvestre,

Department of Veterans' Affairs