Henderson and Repatriation Comission [2003] AATA 114 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/7

VETERANS' APPEALS DIVISION	)
	Re	EILEEN HENDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member K L Beddoe Associate Professor J B Morley, RFD, Member

Date 7 February 2003

Place Brisbane

Decision

The Tribunal decides: (a) the decision under review is set aside; (b) the death of Donald Lindsay Henderson was war caused; and (c) the date of effect of this decision is 26 September 1999.

(Sgd) KL Beddoe

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - whether veteran's death was caused by his defence service - whether reasonable hypothesis can be established

Veterans' Entitlements Act 1986 s 6

REASONS FOR DECISION

7 February 2003

Senior Member K L Beddoe Associate Professor J B Morley, RFD, Member

1. A delegate of the respondent decided that the death of Donald Lindsay Henderson (the veteran) was not related to service. The Veterans' Review Board subsequently affirmed that decision. The applicant sought review of the decision in this Tribunal.

2. The veteran was born on 29 July 1921 and enlisted in the Australian Army on 17 September 1940, commencing full-time duty on 15 December 1941. He served in Papua-New Guinea from December 1943 to May 1944 and was discharged from the Army in March 1946. There is no dispute that the veteran's full time service is operational service within the terms of section 6A of the Veterans' Entitlements Act 1986 ("the Act").

3. On 25 September 1999, the veteran died following an accident. The cause of his death was given as:

1(a) Overwhelming sepsis

(b) Pneumonia

2 Renal insufficiency

Dementia

Fractured neck of humerus (T4/23)

4. The veteran's only accepted war-caused disability was arthritis right knee attributed to injury of his knee while on service. There were two injuries, one during part-time service and a further injury during full-time service.

5. At the hearing Mr Harding appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and daughter of the applicant.

6. The applicant first knew the veteran in 1946. She said, and we accept, that the veteran had trouble with his right knee from the time she first knew him. She said that the veteran attributed his "crook knee" to his Army Service; a proposition which the respondent has accepted, in that it accepted arthritis right knee as a war caused disability in 1947.

7. The applicant's evidence satisfied us that the veteran had a history of problems with his knee from the time of his discharge. She said he often had falls because of his knee, these becoming more frequent as he got older.

8. In the year prior to his death an operation on the knee had made the knee condition more stable. However, the veteran's knee condition had not prevented him working variously as a miner, a camp cook and a butcher in years following discharge and in later years as a caterer. The veteran and the applicant had moved to a retirement village only two weeks before his accident.

9. The veteran was said to suffer from Alzheimer's Disease which had resulted in him ceasing to drive a motor car only shortly before his accident. We accept the daughter's evidence that the Alzheimer's Disease had not unduly affected his day to day functioning. It seems that ceasing to drive the car was the only significant change in his circumstances and he was otherwise alert to his surroundings and his own wellbeing. It seems that the diagnosis of dementia on the death certificate is a more accurate description of the veteran's condition. In that regard we note that Dr Hynes, consultant physician, said in a report dated 21 December 1999 that the veteran was only admitted to hospital after his accident because the applicant was awaiting a hip replacement at the time and she was unable to lift the veteran etc.

10. The accident in which the veteran fractured his humerus occurred in the car park of a club attended by the veteran to play bingo. He had apparently walked from his nearby home unit and, it may be inferred, fell in the car park because of the right knee condition. He was discovered by an employee of the club and conveyed to hospital. We have inferred that the accident resulting in the fractured humerus was caused by the veteran's knee giving away because the applicant says that the veteran told her "it was his knee". She said "He said that his bloody knee had gone bung again". There is no reason to doubt that is the truth of the matter.

THE MEDICAL EVIDENCE

11. Dr Hynes, in a report dated 21 December 1999, summarises the circumstances of the veteran's admission to hospital, treatment and death in hospital. It is clear from the report that the veteran was admitted to hospital because of the fracture and that he did not cope with hospitalisation because of, Dr Hynes says, Alzheimer's Disease. Dr Hynes said the veteran had been coping at home. The veteran became fully and totally incontinent, developed urinary infection which was treated with antibiotics and resulted in sepsis. He was confused, developed renal failure, became comatose and died.

12. A departmental medical adviser, Dr Smith, reported in part as follows:

"The underlying cause of death in this case was Alzheimer's disease. It appears that analgesia provided as treatment of the fractured humerus may have contributed to urinary retention and constipation which probably precipitated the urinary tract infection and gram negative septicaemia.

While I do not know the circumstances surrounding the fall producing the fractured arm, the Alzheimer's disease impeded normal recovery from this even if it was not the underlying cause."

CONSIDERATION

13. The applicant submits that there is an hypothesis connecting the veteran's death with his war service which may be summarised as follows:

(a) the veteran had a significant disability in his right knee which caused the knee to give way and which had been accepted as war caused;

(b) the veteran fell in the club car park because his right knee gave way resulting in a fractured humerus;

(c) the veteran was admitted to hospital and treated with analgesics because of the fractured humerus;

(d) the veteran became totally incontinent with infection; and

(e) the veteran developed overwhelming sepsis resulting in death.

14. Whether that hypothesis is a reasonable hypothesis is, it was agreed, to be determined in accordance with Instrument No 81 of 2001 being the Repatriation Medical Authority's Statement of Principles for Osteoarthrosis.

15. The applicant submits that although there were two injuries the second injury during full-time service was significant and a substantial cause of the subsequently accepted disability. It follows that either factor 5(j) and 5(x) of the Instrument are satisfied and, as the second injury occurred during operational service, the factor is related to that service.

16. The respondent conceded that Alzheimer's Disease was not a significant element and did not seek to suggest that the Statement of Principles relating to Alzheimer's Disease had to be satisfied.

17. We accept that the material raises the hypothesis contended for on behalf of the applicant.

18. We also accept that the relevant Statement of Principles is Instrument No 81 of 2001. No issue as to accrued rights arises in this case.

19. The veteran appears to have suffered two injuries to his right knee. The second of those injuries occurred during operational service. It follows in our view that factor 5(x) of Instrument No 81 of 2001 is the relevant factor. We are satisfied that the factor applies and that the accepted condition is covered by the factor. It follows that we are satisfied that factor 5(x) is related to the veteran's operational service.

20. Accepting, as we do, the chain of causation proposed by the applicant we also accept that there is a reasonable hypothesis because it was the fractured humerus which resulted in the veteran being hospitalised and that fracture was caused by the accident which was caused by the knee condition.

21. The hypothesis is fairly raised by the facts and there is no basis for being satisfied, beyond reasonable doubt, that the veteran's death was not war-caused. The found facts are consistent with the hypothesis. The fact of the veteran undertaking heavy and strenuous activities after discharge does not, in our view, deny the hypothesis.

22. On these reasons we will set aside the decision under review and substitute a decision to the effect that the death of the veteran was war caused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe and Associate Professor J B Morley, RFD, Member

Signed: Sarah Oliver

Associate

Date of Hearing 2 September 2002

Date of Decision 7 February 2003

Counsel for the Applicant Mr Harding

Solicitor for the Applicant Gilshenan & Luton

Solicitor for the Respondent Mr Stoner, Departmental Advocate