Hindmarsh and Repatriation Commission [2002] AATA 48 (29 January 2002)

Last Updated: 31 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1013

VETERANS' APPEALS DIVISION )

Re NELLIE HINDMARSH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date 29 January 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) IR WAY

MEMBER

CATCHWORDS

VETERANS' AFFAIRS - war widow's pension - whether death of veteran was war-caused.

Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 13, 14, 119, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

29 January 2002 Mr IR Way, Member

1. This is an application by Nellie Hindmarsh (the applicant) for review of a decision of the Repatriation Commission dated 22 May 1998 which determined that the death of the applicant's late husband, Douglas Hindmarsh (the veteran) was not war-caused. This decision was affirmed by the Veterans' Review Board (VRB) on 2 August 1999.

2. The parties agreed, and the Tribunal accepts, that the Tribunal should proceed to make its decision on the papers before it, without proceeding to a formal hearing.

3. The Tribunal had before it the following documents:

* Documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6)

* Additional service records provided by the Respondent

* Medical opinion of Dr PA Grant dated 10 August 2000, provided in response to queries to the SMOC from Bob Loftus

* Respondent's Facts and Contentions dated 9 October 2001

* Applicant's Facts and Contentions dated 15 October 2001

4. The applicant is the widow of the veteran who rendered operational service as defined in subsections 5(b) and 6(a) of the Veterans' Entitlements Act 1986 (the Act), namely, continuous full-time service outside Australia during World War II.

5. The veteran rendered operational service as he served with the Australian Army during World War II from 8 January 1942 to 25 October 1945, including service in the Middle East and New Guinea.

6. Under Section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was "war-caused". A dependant of a deceased veteran, including a widow (Section 11), may make a claim to a pension under Section 14.

7. The veteran died on 6 November 1968, the causes of death being certified as:

(a) Coronary occlusion;

(b) Aortic stenosis with mild incompetence;

(c) Mild tricuspid incompetence; moderate mitral incompetence due to rheumatic fever.

8. In a report by a medical practitioner on the death of the veteran (T4/24) the doctor stated:

"All the valve lesions ie aortic stenosis mild incompetence, tricuspid incompetence, mitral incompetence are due to rheumatic fever."

9. The applicant's claim, which is the subject of this appeal, was lodged on 1 May 1998.

10. The applicant has made the following statements:

"I consider my husband should not have been accepted for active overseas service because of having suffered from R.F. as a child. That RF caused permanent damage to his heart and would have made him unfit for rigorous overseas service." (T4/22)

"My husband suffered from rheumatic fever as a child and even though he had apparently recovered it is considered that some permanent damage was caused to his heart. His war service thus aggravated a pre-existing condition which eventually lead to his death. Therefore the Commission cannot be satisfied beyond reasonable doubt there are sufficient grounds to refuse the claim, which should be allowed." (T4/19)

"As a child my husband had Rheumatic Fever and was unable to play active sport for some years. After enlisting, he trained in a Commando Unit but transferred to 2/15 Btn. And served in Middle East & New Guinea. On his return he was boarded (I think due to foot trouble) and served in Canteen Services. After discharge he returned to the Railway Dept as a Plumber until he commenced his own business in the 1950's. He had severe Hay Fever attacks, and was short winded, often having heavy, breathing attacks, and severe leg pains and feet pains. He felt Plumbing was too heavy and so bought a Milk Run and continued to do only the lighter Plumbing jobs. In 1959 he made application to take out a Life Insurance Policy, but the Specialist, Dr Sherwood, reported he had a 'heart murmur' and the Policy was declined. From then on he was examined and treated by Dr J Hutton, Clayfield, Dr Neilson at Princess Alexander Hospital. Last year Dr. Galea and other Specialists at Chermside Chest Hospital performed a Cardio Catheter test and report that my husband had to undergo a Heart Valve Replace operation, the Rheumatic Fever having caused permanent damage to 2 valves. This heart condition was the cause of the cancellation of a Personal Accident and Sickness Policy also, although no medical examination had been requested when taking out this policy.

I believe my husband never should have been accepted for Active Service due to his heart condition. Medical opinion is that Rheumatic Fever would have left a permanent defect on his heart." (T4/8)

Legislative Scheme

11. The question whether the death of a veteran who has rendered operational service was war-caused within Section 8 of the Act is to be decided by applying the standard of proof prescribed by Section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of Section 8 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:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or

(e) the injury or disease from which the veteran died:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.

but not otherwise."

12. Section 120 describes the relevant 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.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(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."

13. Other relevant provisions of the Act in respect of the claim are as follows:

"119. Commission not bound by technicalities

(1) In considering, hearing or determining, and in making a decision in relation to:

(a) a claim or application;

.......

the Commission:

(f) is not bound to act in a formal manner and is not bound by any rules or evidence, but may inform itself on any matter in such manner as it thinks just;

(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence of deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

14. Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SoP):

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

(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;

......

(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) of (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."

15. Section 120(1) provides that the decision-maker must determine that the death of the veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that Section 8 applies, may the decision-maker determine that the death of such a veteran was not "war-caused".

16. Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war-caused if, in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of that particular service rendered by the veteran.

17. A reasonable hypothesis may be shown to be untenable and therefore disregarded if the decision-maker is satisfied under Section 120(1) that the material before it proves beyond reasonable doubt that the assumed factual basis for the hypothesis did not exist.

18. The Act provides that an hypothesis is not reasonable for the purposes of Section 120(3) unless a SoP upholds the hypothesis.

Consideration

19. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97 to 98) the approach to be taken by the Tribunal in cases like the present in which Section 120A of the Act applies.

"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."

20. There is no disagreement between the parties that the applicant's hypothesis is that the veteran's death arose out of rheumatic heart disease and that this disease was causally related to his war service. The Tribunal is satisfied that the material before it points to this hypothesis.

21. The Tribunal is also satisfied that the relevant SoP in this matter is Instrument No. 93 of 1995, Rheumatic Heart Disease.

22. The question whether Instrument No. 95 of 1995, Aortic Stenosis, applies in this matter was fully canvassed by the VRB and the Tribunal is satisfied that the VRB correctly concluded that Instrument No. 95 is not applicable (T4/44).

23. The VRB also considered a submission for the applicant, that the applicant suffered from war-caused obesity which contributed to the development of ischaemic heart disease and his ultimate death, and the Tribunal is satisfied that the VRB correctly concluded that Instrument No. 38 of 1999, Ischaemic Heart Disease, was not relevant to the consideration of this matter. In any event, the Tribunal notes that the applicant does not take issue with the respondent's contention that any contention by the applicant in relation to entitlement must satisfy Instrument No. 93 of 1995, Rheumatic Heart Disease.

24. Turning then to the requirements of Instrument No. 93 of 1995. The SoP relevantly provides that at least one of the following factors must exist and must be connected to service before it can be said that a reasonable hypothesis has been raised connecting the veteran's death from rheumatic heart disease with the circumstances of his service:

"(a) suffering from rheumatic fever before the clinical onset of rheumatic heart disease; or

(b) suffering a streptococcal A infection before the clinical onset of rheumatic heart disease;

(c) inability to obtain appropriate clinical management for rheumatic heart disease."

25. The SoP defines "rheumatic fever", "rheumatic heart disease" and streptococcal A infection" as follows:

"'rheumatic fever' means a febrile disease occurring as a delayed sequela of infections with group A beta-hemolytic streptococci and characterised by multiple focal inflammatory lesions of connective tissue especially involving the heart, blood vessels and joints with resultant arthritis, chorea, or carditis appearing alone or in combination, and attracting ICD codes 390, 391, or 392;

'rheumatic heart disease' means a chronic condition characterised by scarring and deformity of the heart valves and/or pericardium, and attracting ICD codes 393 to 398;

'streptococcal A infection' means invasion of the tissues, commonly of the throat or skin, by micro-organisms known as group A beta-hemolytic streptococci and which may result in a pyogenic, or suppurative, infection."

26. After consideration of all of the material before it and the submissions of both parties the Tribunal makes the following findings of fact:

(a) The veteran suffered rheumatic fever as a child.

(b) The veteran suffered rheumatic heart disease, the clinical onset occurring in 1959.

(c) Rheumatic fever is not the same as rheumatic heart disease and rheumatic heart disease can develop many decades after suffering rheumatic fever.

(d) During operational service the veteran did not suffer any symptoms of rheumatic heart disease.

(e) The veteran did not suffer a streptococcal A infection during his operational service.

27. With respect to whether there was, in the veteran's case, an inability to obtain appropriate clinical management for rheumatic heart disease during his service, as found above the veteran did not suffer from any symptoms of rheumatic heart disease while on operational service, nor is there any service record of the veteran suffering from rheumatic fever prior to entering the Army. Within this context it cannot be said that there was a service-related "inability to obtain appropriate clinical management for rheumatic heart disease", and the Tribunal so finds.

28. The Tribunal is therefore satisfied that none of the minimum factors referred to in Clause 1 of the relevant SoP are met by the veteran and it follows there is no reasonable hypothesis connecting the veteran's death with the circumstances of his service.

29. The Tribunal finds, pursuant to Section 120 of the Act, that the veteran's death was not war-caused.

30. For the above reasons, the Tribunal affirms the decision under review.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member

Signed: Robert Hayes

Associate

Hearing on the papers

Date of Decision 29 January 2002

Rep. for the Applicant Mr B Day, Brisbane Legacy

Rep. for Respondent Mr M Smith, Departmental Advocate