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Administrative Appeals Tribunal of Australia |
Last Updated: 16 February 1999
) No V98/558
|
VETERANS' APPEALS DIVISION | ) |
Re
Applicant
Thomas Michael Connolly
And
Respondent
Repatriation Commission
|
Tribunal | Deputy President B.M. Forrest
Mr A. Argent, Member Dr. C.A. Re, Member |
Place Melbourne
|
Decision | The Tribunal affirms the decision under review. |
.......(Sgd. B.M. Forrest).....
Deputy President
VETERANS' AFFAIRS - Veterans' Entitlements Act 1986 - disability pension - operational war service - whether applicant's macular degeneration causally related to war service - whether reasonable hypothesis linking smoking with macular degeneration - application of Statement of Principles - whether Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that veteran's condition is war-caused - decision affirmed.
Veterans' Entitlements Act 1986 ss. 120(1) and (3), 120A(3)
Statement of Principles Instrument No. 29 of 1997
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210
Deledio v Repatriation Commission (1997) 47 ALD 261; (1998) 49 ALD 193
|
20 January 1999 | Deputy President B.M. Forrest
Mr A. Argent, Member Dr. C.A. Re, Member |
This application is for review of a decision of the Repatriation Commission of 27 June 1997, affirmed by the Veterans' Review Board ("VRB") on 10 March 1998 that macular degeneration affecting both eyes was not war-caused pursuant to s. 9 of the Act.
The veteran is in receipt of a pension at 100 per cent of the General Rate for the following accepted disabilities:
Recurring Synovitis Right Knee
Tinea Pedis
Eczema
Bilateral Cataracts with operation
Bilateral Sensori-Neural Deafness
Essential Hypertension
Irritable Bowel Syndrome with Functinal Dyspepsia (A)
The veteran made an earlier application to the Tribunal (V97/908) for review of a decision of a delegate of the Repatriation Commission of 21 April 1995, affirmed by the VRB on 5 May 1997, assessing disability pension at 100 per cent of the General Rate. That application, by consent of the parties, was adjourned to a date to be fixed, pending the decision in the entitlement matter, the subject of the present application.
The veteran was born on 28 July 1918 and enlisted in the Survey Corps of the Permanent Military forces on 30 November 1938. He served at Queenscliff, Traralgon, Woodend and Albury and during World War 2 in Western Australia and twice in New Guinea, 26 February 1943 - 12 May 1944 and 29 March 1945 - 29 December 1945. He was commissioned on 30 November 1940 and all his operational service, which was from 3 September 1939 to 9 January 1946, was in the Australian Army Survey Corps, frequently in small detachments, outdoors and using survey instruments.
Because the veteran had operational service the standard of proof in determining this matter is governed by sub-ss. 120(1) and 120(3) of the Act.
"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."
In Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210 the High Court (Mason CJ., Gaudron and McHugh JJ.) explained (at CLR 571; at ALR 215) the steps to be taken in applying s. 120 of the Act:
"The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis , is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
Additionally because the veteran's claim was made after 1 June 1994, s. 120A of the Act, which was inserted into the Act by s. 9 of the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994, No. 98 of 1994, applies. Sub-section 120A(3) of the Act relevantly provides:
"(3) For the purposes of subsection 120(3), a hypothesis connecting...a disease contracted by 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
....
that upholds the hypothesis."
The Repatriation Medical Authority has pursuant to s. 196B(2) of the Act determined a Statement of Principles ("SoP") concerning "macular degeneration". The relevant SoP is No. 29 of 1997.
The factor relied upon by the veteran as providing the causal relationship connecting macular degeneration with the circumstances of his service provides:
"5. (a) for age-related macular degeneration only, smoking at least 10 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of macular degeneration, and, where smoking has ceased, the clinical onset has occurred within 20 years of cessation;
...
7. For the purposes of this Statement of Principles:
"age-related macular degeneration" means a primary disorder of the macular area of the retina that is most often clinically apparent after 50 years of age and includes:
(i) dry or nonexudative age-related macular degeneration (geographic atrophy of the retinal pigment epithelial in the absence of neovascular age-related macular degeneration); orThe method of application of the statutory criteria in ss. 120(1), 120(3), 120A and 120B was considered by the Federal Court (Heerey J.) in Deledio v Repatriation Commission (1997) 47 ALD 261 and on appeal by a Full Federal Court (Beaumont, Hill and O'Connor JJ.) (1998) 49 ALD 193.(ii) wet or neovascular or exudative age-related macular degeneration (retinal pigment epithelial detachment, haemorrhages and/or disciform scars in the macular area),
...
"pack-year" means 7300 cigarettes, or 1460 cigars, or 7.3kg of pipe tobacco;"
Under consideration in the present matter is an hypothesis connecting smoking and macular degeneration. It was not in dispute the veteran suffers from macular degeneration and that the clinical onset of the disease occurred in 1989.
At this point it is convenient to state that the material before the Tribunal points to an hypothesis connecting macular degeneration with the circumstances of the veteran's service. There is, as stated, a SoP in force relating to macular degeneration and we are of the opinion that the hypothesis raised contains the requirements of factor 5(a) of the SoP. Thus for the purposes of s. 120(3) the material raises a reasonable hypothesis. The critical aspect of this application relates to the making of findings of fact necessary to make a determination under s. 120(1), that is, whether the Tribunal is satisfied to the standard required, beyond reasonable doubt, that the disease was not war-caused. If not so satisfied the claim must succeed.
In a statement lodged with the Tribunal, and supplemented by oral evidence, the veteran said he was a non-smoker prior to joining the Army. He commenced smoking in early 1939 when stationed at Traralgon and by the end of 1939 was smoking about 10 cigarettes a day, rising to 40 per day by the time he was posted to New Guinea in 1943. In New Guinea the rate of smoking was probably 45-50 cigarettes per day. He maintained this level of smoking of at least 2 packets of 20 cigarettes per day throughout the remainder of his service career and well into civilian life until the early 1960s. He then gradually reduced until he stopped smoking in 1974 when he had eye surgery for cataracts. At the time he ceased smoking, consumption had reduced to 60 cigarettes and 8 cigars per week.
Mr John Greene, who served in the Army Survey Corps with the veteran but not overseas and is a fellow member of Frankston RSL thought the veteran was smoking in about 1950. However, he was unable to say whether he smoked after that as, until a few years ago, they had lost contact with each other for more than 20 years.
Mr Frank Culliver has known the veteran since 1941 when they served in a Field Survey Company in Western Australia. He said that during this time they both started smoking, he about 10 cigarettes a day and it was Mr Culliver's belief that the veteran was smoking a similar quantity. After the veteran went to New Guinea they lost contact but met up again after the war when both were in private survey practice, and saw each other at least monthly up to the 1950s and later, had frequent contact professionally and at meetings of the Institution of Surveyors. They also met socially about every three months.
In his statement Mr Culliver said the veteran smoked cigarettes until about 1973 when he left private practice and joined the Shire of Pakenham. In oral evidence he said the veteran was a smoker in the 1950s but had no particular recollection of when he stopped.
Mrs Mary Connolly married the veteran in 1941. They have 8 children born in the years from 1942 to 1961. It was her evidence the veteran was a smoker during the war years and continued to smoke post war, gradually smoking less until finally giving up when he had eye surgery in the 1970s.
Mr Donald Jackson was a senior planner at the Shire of Pakenham during the period December 1973 to July 1983, when the veteran was town planner for the Shire. He was sure of these dates because prior to his retirement in 1994, he (Mr Jackson) began writing a history of the planning department of the Shire and kept a record of dates of employment of the various town planners.
He occupied an adjoining office to the veteran and they had daily contact with each other. They also met socially and went fishing together. According to Mr Jackson the veteran when he started with the Shire, smoked for the first two years that he worked there and then ceased after he had cataract operations.
In a consideration of s. 120 the Tribunal is required to consider the whole of the material before it. In this matter there is a body of material from which an inference could be drawn, inconsistent with the hypothesis, that the veteran had a smoking history significantly shorter than that claimed by the veteran in his evidence to the Tribunal.
The information given by the veteran to medical examiners and the Department of Veterans' Affairs over a number of years called into serious question the extent of what he told the Tribunal could be believed.
* 6 June 1962
Clinical history given to medical assessor (unidentified) for claim regarding "eyes" and "legs":
"Tobacco: almost never"
(Ex. R1, p. 26)
* 11 February 1987
Smoking questionnaire in veteran's own handwriting:
"Not a smoker now, but I was a cigarette smoker during war service."
"After discharge I gradually cut down and ceased smoking about 1950."
"12-20" (cigarettes per day)
"Ceased smoking around 1950 as I found it was affecting my throat."
"I was never a heavy (chain) smoker - I mostly smoked when in company with other smokers who handed packets around. I have not been under any social pressure to smoke since return to civilian life."
(Ex. R1, p. 22-3
* 30 March 1987
Assessment by Thoracic Registrar at Repatriation Hospital:
"past history of 1 pack year of cigarette smoking (5 cigs/day for 4 years)"
(Ex. R4)
* 27 April 1987
Medical examination by Dr Colin Barter, Respiratory physician at Repatriation Hospital, Heidelberg:
"Non smoker for 40 years."
(Ex. R1, p. 24)
* 4 May 1987
Medical examination by Dr Hall for Department of Veterans' Affairs:
"Smoking : started 1940 in Army 10-20/day ceased 1947"
(Ex. R1, p. 19)
* 28 December 1988
Letter from Dr. J. Dickman to VRB regarding veteran's application for hypertension to be accepted as war caused:
"There may also be a case in regard to smoking as a causational factor in hypertension. He did smoke for 10 years, that is during the war and after."
(Ex. R1, p. 13)
* 3 January 1989
Letter Dr John Ivice (Village clinic) to VRB in support of claim for hypertension:
"...feels that his wartime smoking ...may have been contributing factor.."
(Ex. R3)
* 3 January 1989
Written submission from veteran to Department of Veterans' Affairs regarding hypertension:
"Although the Dept. Report refers to "no smoking for 40 years" it would be more accurate to say I did smoke for 10-12 years before finally giving it up."
(Ex. R1, p. 9)
* 3 December 1992
Report from psychiatrist Dr Nigel Strauss:
"...after he joined the army he began smoking but was never a heavy smoker and he stopped smoking a few years after he left the army."
(Ex. R2, p. 8)
* 21 February 1995
Application by veteran for increase in pension:
"I believe my early history of smoking contributed to my disabilities"
(T documents V97/908, p. 12)
* 22 March 1995
Application by veteran for increase in pension:
"I claim my recent cardiovascular problems are the result of war time cigarette smoking and I intend to lodge a claim in this respect."
(T documents V97/908, p. 28)
In his evidence the veteran did not dispute that the notes of the various medical assessors and examiners accurately record the answers he gave. In summary his explanation was that he provided incorrect "casual answers" as he did not want a discussion or lecture about smoking and wanted to avoid any further discussion of the topic.
When the matter came before the VRB (10 March 1998) the veteran was asked by Ms Fitzgerald Senior Member (Tr. p. 14):
"...why should we say what you are telling us much later is right, when what you were telling us closer to the event was wrong?"
The veteran:
"Well, later statements were done essentially with assistance or...by an advocate, an RSL advocate...witness, another gentleman, who warned me that I should be very particular about it, in view of I had given a variety of answers to when I stopped and it was very loosely interpreted by the 50s as being after the war even though it was -it might have been only two or three years after the war."
In his witness statement the veteran said in relation to that answer to the VRB:
"What I meant there was that I gave the whole matter of my smoking history some careful thought when smoking was specifically relevant to matters in hand, whereas the answers I gave in the past to the various medical practitioners who noted them were somewhat defensive because I was being asked questions by surprise about smoking when that was not the reason I was being medically examined as such and I therefore said whatever was necessary to avoid critical comment or a detailed analysis of my smoking history at the time."
and to the answers he gave in the smoking questionnaire the veteran had this to say in his statement:
"I now wish to revise this in regard to particular dates of smoking events. This history was compiled at a time when I had ceased smoking for quite a few years and the impact of my smoking habit was becoming less marked on my memory. At that time, smoking was becoming more recognised as being harmful and not favourably regarded in medical circles. It should be borne in mind that in 1987 I was not making any claim for macular-degeneration and was not aware that smoking was a factor in relation to that disability. It is possible that I may have felt less inclined to accentuate my smoking habits at that time, being unaware of the damage it would cause in subsequent years."
Although some of the material indicated that the veteran did not reach the minimum 10 pack year level of smoking, there was other material including the smoking questionnaire (11 February 1987) and oral evidence of a smoking history consistent with an intake of at least a 10 pack year which we are prepared, not without some reservation, to accept is the position here.
That being so and as the veteran has ceased smoking, for the Tribunal to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the veteran's macular degeneration is a war-caused disease requires the Tribunal to be satisfied that the only rational inference that the facts and circumstances enable to be drawn is that the veteran ceased smoking by 1969, that is, within 20 years of the clinical onset of macular degeneration.
The respondent impugned the veteran's credit on the ground that his account of smoking has been reconstructed for the purposes of the claim for pension contrary to the consistent thread of earlier statements which are inconsistent with the account he now gives.
Some of the statements relied on by the respondent say little about smoking, being brief notes made by medical examiners in the context of claims where smoking was not an issue. Obviously, having regard to the circumstances in which they were made and with the passage of time and fading recollections, the Tribunal must exercise great care as to the weight they be given. So much is also true in relation to the oral evidence.
If, as the veteran explained, he was taken by surprise and smoking was an issue he treated casually when he provided the answers recorded above, that explanation is, we consider, inherently improbable. In January 1989, in a detailed written submission to the Department of Veterans' Affairs, the issue of a service-related smoking habit was the relevant connection to a claim for hypertension. On this issue, the veteran corrected the department report of "no smoking for 40 years" with his statement "it would be more accurate to say I did smoke for 10-12 years before finally giving it up.".
The history he gave Dr Strauss in 1992 is consistent with the answer the veteran gave in his submission. Dr Strauss also noted the veteran "...told me that he has always been somewhat of a perfectionistic (sic) and a conscientious individual...". The provision of casual answers does not sit easily with a perfectionist characteristic.
In relation to the oral evidence in support of the veteran's version to the Tribunal Mr Greene did not know and Mr Culliver had no particular recollection as to when the veteran gave up smoking. Mr Culliver linked the cessation of smoking to when the veteran gave up private practice which he thought was in 1973 when in fact it was 1968. The evidence of both Mr Greene and Mr Culliver was not of assistance.
There was other evidence, that of the veteran's spouse and Mr Jackson capable of corroborating the veteran's evidence to the Tribunal. Mrs Connolly, who impressed as obviously loyal to the veteran, said he stopped smoking in 1974 but was not convincing. Mr Jackson was initially confident that the veteran ceased smoking two years after joining the Shire of Pakenham "after...he...had an operation on the eyes". If that was so then at best it was less than one year not two years. Further we do not accept as credible Mr Jackson's evidence, "I suppose my strongest memory are (sic) nicotine stained fingers" if in truth the veteran was then smoking given the applicant's evidence of his level of smoking and of packaged cigarettes.
Mr Douglass pointed to the inconsistencies in the evidence. The task of the Tribunal is not to consider whether one version of events is more consistent than another, nor is there any onus of proof.
The question for the Tribunal as discussed earlier may be rephrased so as to ask whether the Tribunal could reject as a rational inference the possibility that the veteran was smoking beyond 1969. Having considered all of the material the Tribunal does not accept the veteran's evidence that he did.
If follows that in applying the standard of proof prescribed by s. 120(1) of the Act, sometimes referred to as "the reverse criminal standard", the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the veteran's macular degeneration is a war-caused disease.
For these reasons the decision under review is affirmed.
Deputy President B.M. Forrest
Associate
Date/s of Hearing 8 December 1998
Date of Decision 20 January 1999
Counsel for the Applicant Mr M. Pentland
Solicitor for Applicant Belleli King and Associates
For the Respondent Mr R. Douglass, departmental advocate
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