Tognolini and Repatriation Commission [2002] AATA 76 (29 January 2002)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2002] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/772

VETERANS' APPEALS DIVISION )

Re CONSTANCE VIOLET TOGNOLINI

Applicant

And REPATRIATION COMMISSION

Respondent

REASONS FOR ORAL DECISION DELIVERED ON 29 JANUARY 2002

Tribunal Mrs Joan Dwyer, Senior Member Dr P Fricker, Member

(Sgd) Joan Dwyer

Senior Member

VETERANS' AFFAIRS - disability pension - eligible service - acquired cataracts - whether war-caused due to service related smoking - reasonable satisfaction standard of proof -relevant factor required 20 pack years of smoking prior to clinical onset - conflicting evidence - tribunal not reasonably satisfied of connection with service - decision affirmed

Veterans' Entitlements Act 1986 s 7, 9, 120(4) and 120B(3)

Repatriation Commission v Gorton [2001] FCA 1194

Statement of Principles Instrument No. 38 of 2001

REASONS FOR ORAL DECISION DELIVERED ON 29 JANUARY 2002

Mrs Joan Dwyer, Senior Member Dr P Fricker, Member

1. A decision was delivered in this matter on 29 January 2002. On 5 February 2002 the Tribunal received a request under s 43(2A) of the Administrative Appeals Tribunal Act 1975 for a statement in writing of the reasons of the Tribunal for its decision. These are the Tribunal's reasons.

2. This is an application for review of a decision of the Repatriation Commission made 7 May 1999 which accepted bilateral tinnitus and bilateral sensori neural hearing loss as war-caused diseases pursuant to s 9 of the Veterans' Entitlements Act 1986 ("the Act"), and rejected claims to have acquired cataracts both eyes, chronic solar skin damage, chronic bronchitis and emphysema, localised osteoarthrosis affecting both hips and rheumatoid arthritis accepted as war-caused diseases. The decision of the Repatriation Commission was affirmed by the Veterans Review Board ("the VRB") on 29 March 2000.

3. At the hearing Mr Hyde of Counsel appeared for Mrs Tognolini. Mr Hall , an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. Mrs Tognolini and her son Mr Bernard Tognolini gave evidence.

4. Mrs Tognolini served in the Royal Australian Air Force from 2 August 1943 to 9 January 1946. She served within Australia at all times. Her service is eligible service within the meaning of that term in s 7 of the Act.

5. Mrs Tognolini lodged an application for review with this Tribunal and sought review of all of the rejected decisions. However, her solicitor's Statement Of Facts And Contentions, lodged on 25 July 2001, stated that she was not proceeding with the application for review of the decisions relating to chronic solar skin damage, chronic bronchitis and emphysema, localised osteoarthrosis affecting both hips and rheumatoid arthritis. When the matter came on for hearing, Mr Hyde confirmed that the applicant was only proceeding with the claim for acquired cataracts. He stated that if cataracts were accepted, the respondent had conceded that the condition of ptosis should also be accepted, on the basis that it could be related to the cataract surgery. The Tribunal expressed some reservations about whether that concession was appropriate on the medical evidence before it, but the issue became irrelevant when the decision under review as to acquired cataracts was affirmed.

6. Because Mrs Tognolini had eligible service, the standard of proof in deciding whether or not a condition is war-caused is that of reasonable satisfaction as set out in s 120(4) of the Act which reads as follows:

120 Standard of proof

. . .

(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.

7. Mrs Tognolini's claim to have cataracts accepted as war-caused must be decided in accordance with section 120B of the of the Act. Section 120B(3) provides:

120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B (3) or (12); or

(ii) a determination of the Commission under subsection 180A (3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

8. There is a Statement of Principles ("SoP") in respect of the condition of acquired cataracts. Thus this claim must be decided in accordance with the relevant SoP. When Mrs Tognolini's claim was first decided the relevant SoP was Instrument No. 147 of 1996. That has now been revoked and replaced by Instrument No. 38 of 2001. The decision of the Full Court of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194 has explained that the appropriate SoP to apply is that in force at the time of the hearing before this Tribunal, unless the applicant contends that the earlier SoP was more beneficial to her. In this matter, as Mr Hyde explained, it is clear that SoP Instrument No. 38 of 2001 is the more beneficial. The earlier SoP required 40 years of smoking at least 20 cigarettes a day, but Instrument No. 38 of 2001 only requires 20 pack years of cigarettes. Thus that is the applicable SoP.

9. Clause 4 of the SoP Instrument No. 38 of 2001 reads:

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

The parties agreed that the sole relevant factor was factor 5(b) in which provides:

5. The factors that must exist before it can be said that, on the balance of probabilities, acquired cataract or death from acquired cataract is connected with the circumstances of a person's relevant service are:

. . .

(b) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of acquired cataract; or

A "pack year of cigarettes" is defined in clause 8 of the SoP and so far as relevant means 20 cigarettes per day for one calendar year.

10. Mrs Tognolini relied on her smoking habit as providing in the connection between her service and the condition of acquired cataracts. She made a statement (A1) which read as follows:

1. I served in the Royal Australian air [sic] Force from 2 August 1943, to 9 January 1946. I rendered eligible but not operational service.

2. I was 18 years of age when I enlisted, and had never been away from home before. I was a non smoker.

3. During my service, I was nervous and upset at being away from home and the rigors of service life. We were given rations to buy cigarettes, and this is when I commenced smoking, to relieve the stress of service and strange surroundings.

4. I smoked approximately 10 cigarettes per day initially then increasing to 20 per day.

5. I gave up smoking in 1948 for a brief period when I was pregnant, but commenced smoking again when I gave birth. I was then smoking approximately 10 cigarettes per day, but increasing again to 20 cigarettes per day.

6. I continued at this level until I ceased smoking in 1992.

11. Mrs Tognolini also gave evidence as to her smoking habit. It was apparent from her evidence that she had become confused about dates and events which occurred more than 50 years ago. Her evidence in some respects contradicted her statement. Mrs Tognolini had stated that she enlisted when she was 18 years of age, but the records show that she was 19 years of age when she enlisted. In her statement she said she had never been away from home before she enlisted, and that she commenced smoking to relieve the stress of service and strange surroundings. In cross-examination Mrs Tognolini said that she had in fact been working as a nurse's aid at Castlemaine hospital before she enlisted. At that stage she was not living at home as her mother was still in Melbourne, and so she lived with friends.

12. In her evidence Mrs Tognolini said she started to smoke as soon as she enlisted. She explained (trans. p11):

Well, I started to smoke - well, we got a ration and I started to smoke you might as well say straight away and then some girls there, if they offered you a cigarette you didn't refuse. You know, what I mean. They could be very nasty, but you had to sort of offer them a cigarette.

13. In cross-examination, Mrs Tognolini agree that the records show that her first posting was at Preston and she said that she was living at home at that stage. She said she started to smoke during that first posting. After thinking about it a little more Mrs Tognolini said that she was living in barracks at Larundel during the Preston posting.

14. Mrs Tognolini said she started smoking about 10 cigarettes a day and very quickly had increased to 20 cigarettes a day. She said she smoked at that level throughout her service. She said that the reason she started smoking was that if you didn't smoke "you sort of weren't accepted". However Mrs Tognolini then contradicted what she said as she explained (trans. p13):

A lot of the girls didn't smoke, but that was all right. We respected them, but we - I just took up smoking and you can't - they would offer you a cigarette. That sounds a bit funny, but that is what happened then.

15. Mrs Tognolini said she continued to smoke after discharge from service in 1946. She said she was married in 1948 and that she and her husband both smoked. She explained that she gave up smoking when she became pregnant "I just couldn't smoke and every pregnancy I would give up smoking but I would go back to it". Mrs Tognolini said that she had four children and each time she gave up smoking and then went back to it six or eight weeks after the birth of the baby.

16. Mrs Tognolini said that she only gave up smoking in 1992. She said that during the period from 1943 to 1992 the only times she gave up smoking were when she was pregnant with the four children. Their dates of birth so far as she could recollect were: 1948, 1950, 1959 or 1960 and 1967. Mrs Tognolini said she stopped smoking for about seven months in connection with each pregnancy, although on her evidence it seemed that it would have been more like nine months without smoking in respect of each pregnancy, including the first six to eight weeks after the child was born.

17. Mr Hall, in cross-examination, took Mrs Tognolini to a number of medical records which were in the material before the Tribunal and which contradicted her history of having smoked throughout the period 1943 to 1992. The first document to which he referred (T8 p22), was a questionnaire Mrs Tognolini had completed in relation to her claim to have conditions accepted as war-caused. The information provided in that questionnaire was consistent with that in the smoking statement (A1), but it says that Mrs Tognolini stopped smoking "on doctors advice". The date of ceasing smoking is not quite legible but is either 1996 or 1998. However Mr Hall pointed out that all the medical records created prior to the lodging of the current claim with the Department of Veterans' Affairs, indicated that Mrs Tognolini had ceased smoking, probably in 1950 or at least before 1980.

18. Mr Hall had extracted a number of documents from the departmental medical files. They became exhibit R2. At p10, there is a medical history which appears to be part of a document which finishes on page 13. The date of the document at p13 is not legible, but it follows on from the lodging of a claim to have arthritis accepted as war-caused. That claim was lodged in November 1979. At p13, the doctor completing the form has recommended further investigation, namely X-ray of the ankles and feet, hands and wrists and referral to an orthopaedist. The follow up of that referral is at p14 and is dated 14 February 1980. Thus we find that the document R2 p13 was completed in late 1979 or early 1980. The past history obtained by the doctor records, "Tobacco Nil for 30 years". If that history is correct, it would indicate that Mrs Tognolini gave up smoking in about 1950.

19. The next document to which Mr Hall referred Mrs Tognolini was at R2 pp46-47. It is a medical history sheet dated 2 September 1984, completed when Mrs Tognolini was admitted to the Emergency Medical Centre at Heidelberg Repatriation and General Hospital ("Heidelberg Hospital") after a fall at home that evening. The document records Mrs Tognolini as having described herself as a "non smoker, social drinker".

20. Exhibit R2 at pp72-73 is an other medical history sheet for Heidelberg Hospital, dated 4 April 1990. At p72 it states, "smoke nil". Similarly the nursing admission sheet relating to an admission on 2 May 1990 at p76 states "Alcohol occasionally Smoking --". At p79 of R2 there is a detailed history which includes, "Non Smoker Occasional alcohol". That document is dated "ADM 10/01/91". Page 82, which relates to the same admission, again states, "occasional alcohol non-smoker". At p85 there is again a reference to Mrs Tognolini as "Smoking No". This appears to relate to an admission in September 1994.

21. Mr Hall also referred Mrs Tognolini to the clinical notes of her treating general practitioner, Dr Theodossiou, (R3), where on p1, which appears to be dated 1991, the doctor has recorded: "Smoke ^O alcohol occ.". Mrs Tognolini said that she had attended that practice for many years prior to 1991 but may have started seeing Dr Theodossiou there about that time.

22. When Mr Hall asked Mrs Tognolini if she could explain all those references to her having been a non smoker, and the reference to her having not smoked for 30 years prior to 1980, she mentioned "embarrass, or questioning" (trans. p26). Mrs Tognolini said she was not concerned about whether giving incorrect information could have some effect on her treatment.

23. The Tribunal told Mrs Tognolini that it was somewhat troubled by the inconsistencies between the smoking history she gave the Tribunal and that she had given to treating medical practitioners as shown by the records referred to by Mr Hall. Because the Tribunal had difficulty with the evidence of Mrs Tognolini, it suggested to Mr Hyde that he had better call Mrs Tognolini's son, Mr Bernard Tognolini who had been in the hearing room throughout the hearing. Mr Hyde, in opening, had said that Mrs Tognolini, who is 77, lived with two of her sons and that one of them was with her at the hearing and may give evidence as to Mrs Tognolini's lifestyle. Mr Hall had said that he did not require Mr Tognolini to leave the hearing room.

24. Mr Tognolini said he was the oldest of Mrs Tognolini's sons and had been born in 1948. He said he has been a taxi driver for 30 years. He said he has lived with his mother for 40 years, although he also said he had been away for two years. That discrepancy was not explored. Mr Tognolini said his shift is from 3pm to 2am. He said he usually wakes up at about 8am. Mr Hyde asked Mr Tognolini (trans. p33):

[W]hat can you tell us about your observations of - of her smoking, from right back when you were a child, and - and to - through to - well, to now?---I don't remember.

You don't remember - - -?---No. I was a young chap. I wasn't interested.

Yes, what about - what about now? She obviously doesn't smoke now, she - - -?---She doesn't smoke at all.

Yes. And, can you remember when she gave up smoking?---No.

25. Mr Hall in cross-examination asked Mr Tognolini (trans. p33):

Mr Tognolini, basically, all I can ask is, do you have any recollections concerning your mother's smoking habits whatsoever?---No.

No. You don't ever recall her smoking in the house that you could tell us about?---Me and my father used to smoke all the time. So, she would probably smoke as well. Because I used to go - when I was about five or six, I used to keep running to the shop, getting the packet of, what, fine cut, for the old man.

Okay. So, you can recall your father smoking, you assume your mother smoked as well?---Yes.

And that is all you can tell us?---Yes.

26. After Mr Tognolini gave evidence the Tribunal took a short adjournment. The transcript after that adjournment reads (pp34-35):

Now we suggested the adjournment because before hearing other evidence we thought we should consider the issue of whether we are satisfied on the balance of probabilities that there is a smoking habit such as to satisfy the statement of principles and . . . I take it Mr Hall you have gone through this material and I haven't. There aren't any occasions when Mrs Tognolini has told the doctor that she did smoke, is that right?

MR HALL: No Senior Member I couldn't locate any and I tagged every document that any mention of smoking on it.

MR HYDE: And I should indicate I went through the documents. I didn't find as many references as my friend to the non-smoking but I couldn't find a reference to smoking. The only references to smoking were those being relayed in the other reports that were much later to the medical practitioners.

MRS DWYER: After the claim was put in. Yes, yes. Well we are sorry to say it but on it the evidence I don't think we are going to be able to be satisfied that the smoking factor exists. We do need to be satisfied on the balance of probabilities. It is not a matter of being satisfied beyond reasonable doubt that Mrs Tognolini didn't have the required smoking habit, it is a matter of us being satisfied on the balance of probabilities that she did smoke 20 cigarettes a day for 20 years, that is what it comes down to and the evidence really doesn't satisfy us of that.

Her evidence is very vague and she has got a lot of problems with memory and dates and the dates don't fit in exactly as to date of enlistment or date of giving up smoking and then we have a consistent medical history of saying that she was a non-smoker while acknowledging that she was a drinker and . . . the only reason given for having given such consistently inaccurate evidence is that she didn't want to upset the doctors or didn't want the doctors to look down their nose at her but on the other hand it could be that she is giving inaccurate evidence to us due to a bad memory and wanting to give what is expected here and so we really don't feel we would be able to be satisfied on the balance of probabilities. So in those circumstances there doesn't seem to be any point in going further with the matter, does there?

MR HYDE: No, not at all. If we don't make the factor then there has to be an - - -

MRS DWYER: It is unfortunate but that is the way the evidence has come.

MR HALL: If the Tribunal pleases.

MRS DWYER: So we will end up affirming the decision that the - well that all the conditions were not war-caused.

27. As we explained briefly at the conclusion of the hearing, Mrs Tognolini's evidence did not satisfy us on the balance of probabilities that she had smoked "at least 20 pack years of cigarettes ...before the clinical onset of acquired cataract". Neither of the parties addressed the date of clinical onset in their Statement of Facts and Contentions, but that is not the problem. The problem facing Mrs Tognolini was that there was no reason for us to prefer the evidence she gave at the hearing to the evidence that she had repeatedly told doctors from 1980 onwards, that she was not a smoker, and to the evidence that she had told one doctor in 1980, that she had not smoked for 30 years.

28. Mrs Tognolini seemed to us to have become very confused. She also seemed to be suggestible in that she agreed with some things that were put to her whether or not they were correct. We considered it probable that Mrs Tognolini had given a more accurate account of her smoking or non-smoking to the doctors in the years 1980 to 1994, before her claim was lodged, than she had given to the Tribunal either in her written statement or in her evidence. We considered that it was appropriate to invite Mr Tognolini to give evidence to see whether his evidence would support the evidence that his mother had smoked, as she said, until 1992 or some other date in the 1990's. The fact that Mr Tognolini who has lived with his mother for at least 40 years, including his childhood, and who still lives with her, had no recollection of his mother smoking did not help establish that factor (b) of the SoP was satisfied. Further, as all Mrs Tognolini's doctors had recorded a history of her being a non smoker from 1980 onwards, we could not accept that she had ceased smoking "on doctors advice" in 1992 or in 1996 or 1998.

29. Weighing all the material before us as to the smoking contention, the material did raise a connection between Mrs Tognilini's acquired cataracts and her service. The connection relied on was that of a service related smoking habit. The Tribunal could only be reasonably satisfied that the acquired cataracts were war-caused if the smoking met the requirements in factor 5(b) of SoP Instrument No. 38 of 2001 on the balance of probabilities. On the evidence that Mrs Tognolini smoked 20 cigarettes a day, factor (b) would require 20 years of service-related smoking. On the evidence we were not satisfied on the balance of probabilities that factor (b) was met.

30. There was evidence of Mrs Tognolini raising factor (b), but we were not reasonably satisfied of the accuracy of that evidence. We did not find Mrs Tognolini's evidence to be reliable. We regarded the medical records as probably more reliable as to her smoking history. Further those records were not consistent with her giving up smoking "on doctors advice in 1992 or later". Bearing in mind that Mr Tognolini had no recollection of his mother smoking, we find it probable that Mrs Tognolini had given up smoking shortly after service, probably in about 1950, ie 30 years before 1980 as recorded in R2 p10, but if not then, some time before 1963, when Mr Bernard Tognolini would have been about 15. We find that if Mrs Tognolini had been a smoker for 20 years from 1943 she would have smoked during Mr Tognolini's childhood and teenage years and he would have had some recollection of his mother being a smoker, as he did of his father. If she smoked, as she said in evidence, until the 1990's, he would be aware of that as he has been living with her most of his life.

31. For those reasons the decision under review was affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Dr P Fricker, Member

Signed: Grace Carney

Personal Assistant 8/2/2002

Date/s of Hearing 29 January 2002

Date of Decision 29 January 2002

Counsel for the Applicant Mr D Hyde

Solicitor for the Applicant De Marchi & Associates

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocate Mr A Hall