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[2002] AATA 948
respondent. AAT affirmed the decision under review; the applicant's application for a war widow's pension was unsuccessful (para 71).
The widow sought a war widow's pension alleging her husband's wartime back and knee injuries led to a sedentary life and later ischaemic heart disease causing his death. The Tribunal applied the established four-step legal test: ask whether the material raises a hypothesis linking the death to service; check relevant Statements of Principles; see if the hypothesis fits those SoPs; and if so, decide under s120(1) whether the hypothesis is disproved beyond reasonable doubt. The Tribunal found a hypothesis was raised but the service-era medical records (normal radiology and discharge classification) and later evidence did not prove, at the required standard, that service trauma caused later spinal or knee degenerative disease. Because those service connections were not established, the SoP linkage to ischaemic heart disease could not be satisfied and the application failed. The Tribunal affirmed the earlier decision and dismissed the claim (paras 55-69, 71).
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2 cited instruments linked from this judgment.
Harry Williams served on operational service in World War II from 1941 to 1944. During service and in the immediate post-war period he complained of back pain; service records and examinations recorded clinical symptoms (including a diagnosis of 'fibrositis' and a 'flat back') but contemporaneous orthopaedic and radiological reports recorded no radiological abnormality and he was discharged with a high medical classification (A1) (see paras 8-9, 31, 35, 62). In later life he developed degenerative changes in his knees and thoracolumbar spine (radiology from 1982 and 1991), angina circa 1989 and died from a myocardial infarct on 3 February 1997 (paras 11-12, 63). The Repatriation Commission accepted some service-related disabilities (hearing loss) but rejected back and knee conditions as war-caused and found death not service-related. The Veterans' Review Board affirmed that position in 1998 (paras 1-3). Nancy Williams sought review in the Administrative Appeals Tribunal; the AAT (Dr E K Christie) heard evidence, including the applicant's testimony and medical opinions (Dr Goodwin for applicant, Dr Grant for the Commission) and additional service-era documents were located after the hearing and considered (paras 6-7, 27-35). The Tribunal applied established precedent and statutory tests and concluded the applicant had not proved the necessary causal chain; it affirmed the VRB decision and dismissed the application (paras 55-71).
The Tribunal's decision turned on statutory structure and established jurisprudence for assessing causation under the Veterans' Entitlements Act 1986 as amended by the Statements of Principles regime. The Tribunal adopted and applied the four-step approach set out in Repatriation Commission v Deledio (reproduced in the reasons) which requires:
The Tribunal found a hypothesis was raised by the applicant's material: that wartime back trauma and later knee problems reduced the veteran's capacity for physical activity and thereby contributed to ischaemic heart disease (paras 30-33, 56). Relevant SoPs were in force (ischaemic heart disease Instrument 38 of 1999; lumbar spondylosis Instruments 27/46; osteoarthrosis Instrument 81) (para 57).
However, an SoP factor for lumbar spondylosis and for osteoarthrosis required evidence of a discrete trauma that produced specified immediate symptoms/signs within 24 hours and persisting at least seven days (para 58). The Tribunal regarded the contemporaneous orthopaedic and radiological records from 1943-1944 as inconsistent with the presence of the kind of discrete trauma required by the SoP: the wartime orthopaedic reports showed clinical symptoms but no radiological abnormality, and the Medical Board findings noted 'normal movements' and 'no tenderness' in discharge assessments (paras 31, 35, 62). Later radiology showing degenerative changes dated from 1982/1991 and did not establish the requisite link to service trauma. The Tribunal accepted Dr Grant's opinion that the material did not establish service causation for lumbar spondylosis or knee osteoarthrosis (paras 34-40, 64-66).
Because the Tribunal could not find, beyond reasonable doubt, that the veteran's spinal or joint conditions were service-related, the critical first limb required by the ischaemic heart disease SoP, that the disease resulted from an inability to perform more than mildly strenuous activity attributable to service-related disabilities in the five years before clinical onset, could not be established. That failure of linkage meant the ischaemic heart disease hypothesis could not be sustained: the claim therefore failed (paras 65-69). The Tribunal also framed the limited role of s119(1)(h) (allowing for evidentiary difficulties from passage of time) as inapplicable to inventing or replacing absent material needed to point to a reasonable hypothesis (paras 22-26, 60).
Before the 1994 amendments and the introduction of Statements of Principles, causation assessments under the Act followed a different evidentiary regime. Post-amendment jurisprudence, notably Deledio, established a structured four-stage approach by which tribunals assess whether an SoP supports a causal hypothesis and then apply s120(1) (the statutory standard of proof for disproving a hypothesis) (para 16). East provided authoritative guidance on the meaning of 'hypothesis' and the required degree of factual support: a reasonable hypothesis is more than mere possibility, it must be pointed to by the facts (paras 17-18). Subsequent cases such as Bey, Connors, McKenna and Mason refined the approach and clarified limitations on the use of s119(1)(h) (paras 19-26).
This decision applies that established framework. It does not change the law, but it illustrates its operation: even where lay and expert evidence raise a plausible narrative connecting service and later disease, a tribunal must examine whether the material satisfies the precise SoP factors and whether the linkage can be sustained at the requisite standard of proof; s119(1)(h) will not substitute or fabricate evidence to bridge gaps (paras 55-66).
Para 16 (Deledio four stages): The Tribunal repeats the four-step test. Plain English: first ask if the evidence suggests a possible connection to service; if yes, check whether the formal medical rules (SoPs) cover that idea; if they do, see if the idea matches the SoP's specific elements; if it matches, the Tribunal then asks whether the opposing side has disproved the idea beyond reasonable doubt.
Para 17-18 (definition of 'hypothesis'): The Tribunal cites East: 'a hypothesis' is a starting supposition and a reasonable hypothesis must be supported by facts, not merely a possibility. Plain English: you cannot win just because your story might be true; you need material that points to that story being credible.
Para 58 (SoP activity threshold): The ischaemic heart disease SoP requires inability to do more than mildly strenuous activity, defined as any activity over 3 METS. Plain English: the relevant SoP quantifies the activity threshold; the veteran must have been limited to tasks below roughly three times resting metabolic rate for the five years before clinical heart disease.
Para 65 (standard for causation): The Tribunal found nothing proved beyond reasonable doubt that service trauma caused lumbar spondylosis. Plain English: the wartime records and later medical material did not show, to the high standard required, that the veteran's spine degeneration was caused by service.
Para 70 (tone): 'These findings may be harsh ... unfortunate.' Plain English: the result is unfavourable to the applicant, but it follows from applying the law to the evidence.
This decision is directly relevant where:
This AAT decision itself applies established Federal Court authorities; it does not purport to displace or depart from them. It cites and follows Deledio, East, Connors, Bey, McKenna and Mason as setting parameters for assessment of hypotheses, the role of SoPs, and limits on s119(1)(h) (paras 16-26, 60). The decision is therefore an example of a tribunal applying that line of authority rather than announcing new principles. Users should treat the decision as an administrative tribunal application of settled Federal Court guidance: it will be persuasive in subsequent tribunal decisions with similar fact patterns but is not a binding Court precedent. The cited authorities (Deledio, East, Bey, Connors, McKenna, Mason, Brew) remain the primary authorities on the issues addressed (paras 16-26).
Demonstrating the threshold SoP 'trauma' elements: The SoP definitions require a discrete injury producing immediate symptoms/signs and persistence for seven days. Practical questions remain about how closely contemporaneous records must describe the onset characteristics and whether consistent lay history plus later objective degeneration can ever suffice absent contemporaneous radiological abnormality. The Tribunal in this case regarded contemporaneous normal radiology and discharge classification as fatal (paras 31, 35, 62-66), but there remains room for debate in borderline factual situations where symptom descriptions are strong but objective imaging was unavailable or non-diagnostic at the time.
The evidential reach of s119(1)(h): The Tribunal reiterated that s119(1)(h) cannot be used to invent evidence (paras 22-26). However, how generous tribunals should be in drawing inferences from fragmentary or non-specific historic records remains fact-dependent. There is likely to be continued litigation around the borderline between permissible allowance for passage-of-time evidentiary difficulties and impermissible supplementation of missing necessary elements for an SoP factor.
Expert evidence weighting where contemporaneous records are equivocal: This case accepted the Commission’s expert over the applicant’s expert where the former attributed greater weight to contemporaneous clinician observations and radiology (paras 31-36, 64). The criteria for resolving expert conflicts where older records are sparse remains a practical difficulty; tribunals will need to articulate clearly why they prefer one clinical reconstruction over another in future disputes.
Linking functional limitation to discrete SoP thresholds such as METS: The ischaemic heart disease SoP uses the technical METS metric. Translating lay descriptions of activity limitation (e.g. 'he could only mow slowly') into the SoP's objective terms (3 METS) is often contested. The decision did not need to resolve measuring techniques in detail because the necessary earlier service-related morphological prerequisites failed; future cases will test procedures for reliably mapping functional histories to METS in aged claims.
Practical takeaways for practitioners: ensure contemporaneous service-era records are comprehensively gathered and emphasise any immediate post-injury objective findings that fit SoP definitions; when relying on lay histories and later expert reconstructions, prepare to meet the Tribunal’s requirement that the material must point to, not merely leave open, the necessary hypothesis (paras 17-21, 55-66).
DECISION AND REASONS FOR DECISION [2002] AATA 948
Decision The decision under review is affirmed. This means Mrs Williams' application is unsuccessful.
VETERANS' AFFAIRS - veterans' entitlements - war widow's pension - ischaemic heart disease - whether Statement of Principles satisfied - whether reasonable hypothesis
Brew v Repatriation Commission [1999] FCA 1246; (1999) 56 ALD 403
Connors v Repatriation Commission [2000] FCA 783
East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Bey [1997] FCA 1347; (1997) 47 ALD 481
Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193
Repatriation Commission v McKenna (1998) 28 AAR 7
1. This is an application by Nancy Williams to review a decision of the Veteran's Review Board ("the VRB") which decided on 15 October 1998 that the death of her husband Harry Williams on 3 February 1997 was not related to service.
2. In reaching its decision, the VRB concluded that:
"The alternative contention raised was that the cause of the veteran's obesity was his inactivity, due to his back and knee problems. These conditions have been examined by the Board on a previous occasion, and have not been found to be war-caused. The Board has been presented with no material on this occasion which is inconsistent with the available evidence on which that decision was based. As the veteran's back and knee problems were not war-caused, obesity from lack of exercise because of those problems cannot be found to be war-caused." (Emphasis added) (T5, folio 45).
3. In its initial review of the decision of the delegate of Repatriation Commission, the VRB concluded on 17 January 1992 that "there is no history of a back injury noted in the veteran's service records" and "there was no medical evidence available to the Board in support of the veteran's claim that his back condition is due to war service" (T4, folio 20).
4. Mrs Williams now seeks to have the decision of the VRB reviewed because:
"The Veterans' Review Board failed to consider or place sufficient weight upon evidence presented on behalf of Mrs Williams establishing a link between her late husband, Harry Williams' death, and his war or defence service."
5. At the hearing, Nancy Williams was represented by Mr D O'Gorman of Counsel. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
6. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
7. Following final addresses, the applicant became aware of documents held by the respondent that had not been considered in evidence before the Tribunal:
* "Record of Evidence", 13 July 1949: Statement written by Mr Williams.
* Application for "Acceptance of Disability, Medical Treatment and/or Surgical Aid", 14 July 1949, made by Mr Williams.
* Medical record of Mr Williams dated on or about 26 July 1949 in relation to "back condition" and a related history.
The Tribunal invited the parties to make supplementary submissions in response to these documents.
8. The general facts were not in dispute and may be stated briefly. Mr Williams served in the Australian Army on operational service in World War [Iota][Iota] from 18 March 1941 until his discharge on 17 October 1944. His date of birth was 17 January 1917.
9. During operational service, Mr Williams suffered from malaria and scrub typhus and, on discharge, he was recorded as suffering from a "flat back" (or lumbar lordosis).
10. Mr Williams retired from work in 1977 aged 60 years.
11. Mr Williams died from a myocardial infarct on 3 February 1997.
12. The opinion of Dr David Colquhoun, Cardiologist, is not in dispute with respect to the date of onset of ischaemic heart disease as probably being 1989.
13. The accepted and rejected disabilities of the late Mr Williams at the time of death were:
and the following conditions categorised as "No Incapacity Found":
14. the only issue for the Tribunal to decide was whether the death of the late veteran, Harry Williams, was caused within the statutory meaning prescribed by section 8 of the Veterans' Entitlements Act 1986 ("the Act") by his defence service. The determination of this issue will establish whether Nancy Williams is entitled to a war widow's pension under the Act.
15. Despite the significant modifications to section 120 of the Veterans' Entitlements Act 1986 by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly section 120A), an "hypothesis" which is "reasonable" needs to be "raised".
16. With the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193, the Court (at 206) recorded the four stages as follows:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
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."
17. The plain meaning of "hypothesis" was considered in East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518, namely:
"A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption."
18. In East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518 the Full Federal Court (at 534) said:
"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
In reaching this conclusion, the Court relied on an unreported Veterans' Review Board decision in Stacey decided on 26 June 1985 where it was stated:
"The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. It is the opinion of the Board to be reasonable, a hypothesis must possess some degree of acceptability or credibility; it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the board, we think it must find some support in that material; that is the material must point to and not merely leave open a hypothesis as a reasonable hypothesis."
19. In Repatriation Commission v Bey [1997] FCA 1347; (1997) 47 ALD 481, a Full Federal Court of five judges summarised the historical development of the concept of "reasonable hypothesis". The Court said (at 490):
"Any doubt that attends the status of East as a correct exposition of the law relating to s.120(3) should be dispelled."
"A reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."
20. In Connors v Repatriation Commission [2000] FCA 783 at paragraph 14, Kenny J rejected a submission made by Counsel that "no individual part, or parts of the hypothesis need be supported by facts raised in or by evidence". Her Honour decided:
"If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. ... If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable."
21. Her Honour then relied on a passage from the decision of Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16 where his Honour said:
"For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles."
* Evidentiary Difficulties Arising from the Passage of Time
22. The proper application of subsection 119(1)(h) of the Act may be raised with respect to determining whether, on the material before the Tribunal, the hypothesis raised was a reasonable one.
23. This subsection makes allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of, or a deficiency in relation official records.
24. However, this paragraph may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service: Mason v Repatriation Commission [2000] FCA 1409 per Weinberg J.
25. In Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364, Northrop, Sundberg, Marshall and Merkel JJ said (at 373-374):
"... Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. The respondent's contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). ...
... Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - - 'without limiting the generality of the foregoing'. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase 'difficulties that ... lie in the way of ascertaining the existence of any ... cause' as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress."
26. Nor can this paragraph be directed to impediments to diagnosis and treatment attributable to the state of medical evidence in earlier times. Rather, it is concerned with problems of proof inherent in the nature of the disputes that arise under the Act, which often concern events that happened many years ago: Brew v Repatriation Commission [1999] FCA 1246; (1999) 56 ALD 403 at 407 per Sundberg J.
27. Mrs Williams said that prior to enlistment Mr Williams was a drover and stockman. The nature of this work was very strenuous. However, her late husband had no problem performing the work. She said that he was very fit on enlistment but this had altered following discharge from the Army.
28. Mrs Williams said that Mr Williams had suffered malaria and back problems from the time of discharge until the last few years of his life. The effects of the back and knee problems were such that they continued to slow Mr Williams down in what he was doing at the time. By the 1980s he was living a fairly sedentary life.
29. Mrs Williams said that tasks that her late husband had done around the house, such as lawn mowing, vacuuming and assistance with the laundry could only be done slowly, as he needed to take time and to have short breaks. Mrs Williams said that her late husband's lifestyle became sedentary as he progressively slowed down over time. These effects became more noticeable through the 1980s into the 1990s.
30. Dr Goodwin's opinion emphasised that the pre-war lifestyle of Mr Williams of a fit, young drover and stockman was significantly changed by his war service. Dr Goodwin referred to Mrs Williams' observations that recurring back pain and knee problems slowed Mr Williams up to illustrate the restrictions in his ability to undertake activity.
31. Dr Goodwin acknowledged that the reports of orthopaedic surgeons Dr T S Stubbs-Brown (March 1943) and Dr I McPhee (August 1949) made it quite clear that there were no radiological abnormalities at the time. However, Dr Goodwin said that Mr Williams still suffered severe episodes of back pain during service and in the immediate post-war period.
32. It was Dr Goodwin's opinion, based on his assessment of war time service medical records, the evidence of Mrs Williams, together with the occurrence of angina in Mr Williams around 1990, that it was highly likely that Mr Williams would have been unable to undertake more than mildly strenuous physical activity for at least the five years prior to the clinical onset of ischaemic heart disease.
33. Dr Goodwin concluded with his opinion that Mr Williams ischaemic heart disease, that led to his death, was linked to his service. That is, the significant inactivity that led to Mr William's sedentary lifestyle was triggered by his army service, which in turn led to ischaemic heart disease and subsequent death.
Evidence of Dr Peter Grant, Senior Medical Officer, Compensation, Veterans' Affairs
34. Dr Grant's opinion considered the medical evidence in relation to the issue of the connection between Mr Williams' Army service, his back condition, and the time of the clinical onset of lumbar spondylosis, as well as osteoarthritis in his knees. In addition, the connection between these conditions and Mr Williams' physical activity in relation to the five year period before the clinical onset of his ischaemic heart disease.
35. With respect to the connection between Army service and Mr William's back injury in 1943 and the clinical onset of lumbar spondylosis, Dr Grant's opinion was that this condition was unlikely to have been present prior to enlistment or during eligible service based on his evaluation of the following evidence:
(a) The orthopaedic opinion provided on 2 March 1943, in respect to Mr Williams complaining of recurring back pain, was that Mr Williams' back was clinically and radiologically normal. A diagnosis of "fibrositis" was given;
(b) Successive Medical Board assessments of Mr William's back condition in July 1944 and October 1944 varied his classification, because of the disability caused by his back condition, from A2 in July 1994 (slight disability) to A1 in October 1944. In October 1944 the medical assessment report stated that Mr Williams' back was clinically and radiologically normal; and
(c) The Medical Board in October in 1944 found incapacity from malaria to be negligible. Earlier, in July 1944, the Medical Board noted the conditions of scrub typhus and malaria but did not state whether these conditions caused ongoing impairment or disability. It was also significant, in Dr Grant's opinion, that the Medical Board's findings of "normal movements" and "no tenderness" were significant in discounting disc problems.
36. Furthermore, Dr Grant could give no opinion, based on his evaluation of the medical information before the Tribunal, other than to suggest that the time Mr Williams developed osteoarthrosis in both knees would have been some time after completion of eligible service.
37. With respect to the connection between Mr Williams' back and knee conditions, his eligible service and his ability to undertake physical activity, Dr Grant expressed the opinion that Mr Williams was not significantly disabled in later life as a result of injuries to his back and knees sustained during his eligible service.
38. Dr Grant referred to the opinion of Dr Colquhoun (25 January 1990, folio 13) in which he described the onset of angina that occurred when Mr Williams mowed his lawn. The angina pain was described as mild and went away with continuing effort.
39. Dr Grant then referred to "Hospital notes" (27 September 1984, folio 38) on which the following observation was made:
"sometimes [Mr Williams] gets central chest pain on hills but once reaches top of hill, he keeps walking and it goes away."
Pain behind the right knee, while walking, was also noted.
40. Dr Grant concluded by stating that there were no corroborating clinical notes to suggest that Mr Williams was significantly disabled as a result of a war-related chronic malady.
41. During cross examination Dr Grant acknowledged that he had not considered Mrs Williams' account of her late husband's activity/inactivity in preparing his opinion.
42. Mr O'Gorman contended that ischaemic heart disease that led to the death of Mr Williams was contributed to by factors directly associated with his service. In addition, that Mr Williams had no orthopaedic problems prior to enlistment. His medical class on enlistment was Class 1.
43. Mr O'Gorman submitted that Mr Williams sustained trauma to his back during service which led to the development of a back condition identified in November 1943 as "Fibrositis". In addition, Mr Williams had contracted typhus during service and, as a consequence, suffered post-typhus debility after discharge.
44. Mr O'Gorman referred to the "Record of Evidence" dated 14 July 1949 in which Mr Williams had stated that prior to enlistment he did not suffer any back condition and that the first time that he had any trouble with his back was about October 1942. He was admitted to hospital at Milne Bay for this back condition. From this time, Mr Williams had stated in this document that he had continued to suffer back pain up to, and after, the time of his discharge.
45. Mr O'Gorman referred to a "Medical Examination" of Mr Williams dated 27 July 1949 which noted the following observations:
"Complaint: Pain in back on standing and knocks up. Has been like it for 12 months since. First started in Army and has been there ever since.
Examination: Spine full movement. Complains of slight tenderness over R sacro spinalis"
46. Mr O'Gorman submitted that these service induced disabilities continued in post-service years resulting in a sedentary lifestyle. As a result, Mr Williams was unable to undertake more than a mildly strenuous level of physical activity over the five year period, 1984-1989.
47. Mr O'Gorman submitted that Mr Williams ischaemic heart disease from which he had died was contributed to by factors directly associated with his service that led to his sedentary lifestyle in his post-service years.
48. It was Mr O'Gorman's contention that the Tribunal should give weight to the medical opinion of Dr Robert Goodwin, physician, who had based his opinion on an evaluation of Mr William's medical condition, and physical activities and occupations, prior to enlistment, during service and after service. In expressing his opinion, Dr Goodwin had considered wartime records, medical specialist and radiological reports as well as observations contained in the statements of his wife, and had concluded:
"[that it] was highly likely that he was unable to undertake more than mildly strenuous physical activity for at least the five years prior to the clinical onset of ischaemic heart disease, as identified in the SoP 38/99 factor 5(h). In my opinion, ischaemic heart disease, which caused his death, was linked to war service by significant inactivity that was triggered by his Army service." (emphasis added)
49. Mr Smith submitted that the claim by Mr Williams in 1949 for a "back condition" was rejected as no incapacity could be found. Furthermore, in 1991, a degenerative left knee condition, a degenerative joint disease to the right knee and spondylosis of the thoracic lumbar spine were all determined to be non-war caused. The date of onset of each of these conditions was uncertain.
50. Accordingly, Mr Smith contended that Mr Williams' back problem and orthopaedic problems had no relationship to service. During eligible service and in the immediate post-service years, Mr Williams had complained of back ache during heavy activities. However, it was his contention that there was no medical evidence before the Tribunal that diagnosed the actual condition, except for the noting of a loss of "lumbar lordosis".
51. Mr Smith acknowledged that Mr Williams suffered lumbar spondylosis from 1991. However, he contended that this was not the same condition that he had suffered during service and the immediate post-war years. Mr Smith further acknowledged that Mr Williams suffered osteoarthritis in the right knee, at least by 1991, as well as osteoarthritis of the left knee at least by 1992.
52. Mr Smith contended that there was no evidence that Mr Williams' back and/or knee conditions left him unable to undertake more than a mildly strenuous level of activity over the five year period 1984-1989. In addition, Mr Smith contended that any recurrence of scrub typhus and/or malaria in later life had only intermittent effects on Mr Williams' ability to exercise.
53. With respect to Mr Williams' ability to undertake mildly strenuous activity, Mr Smith submitted:
(a) that in 1984, Mr Williams suffered pain in the right knee after walking half a mile. No restrictions were recorded with respect to his back. It was also recorded that he was able to climb a hill. Accordingly, it could be implied that Mr Williams was capable of activities; and
(b) that in late 1989, Mr Williams commenced getting angina when mowing the lawn. Accordingly, it could be implied that, prior to the onset of angina, Mr Williams was capable of activities at about the 3 METs level.
54. Mr Smith concluded with the submission that the application for review should not succeed because the connection between Mr Williams' back and knee conditions and service had not been established. In addition, the activity threshhold test had not been satisfied.
55. The Tribunal has adopted the four stages in Repatriation Commission v Deledio in considering whether Mr Williams contentions of ischaemic heart disease, lumbar spondylosis and osteoarthritis in her late husband are "service related disabilities".
* Whether the Material Before the Tribunal Points to a Hypothesis that Connects the Injury or Disease with the Circumstances of Service
56. There is clear evidence before the Tribunal that Mr Williams sustained an injury to his back during operational service. The evidence of Dr Goodwin is that this injury continued through the post-war period, and together with his knee problems, led to reduced physical activity for Mr Williams. In turn, the reduction in physical activity led to the onset of ischaemic heart disease and ultimately, the death of Mr Williams (see paras 31, 32, 33).
57. Three SoP's are in force that are relevant to this application for review:
(b) Lumbar Spondylosis: Instrument 27 of 1999; Instrument 46 of 2002; and
58. The Tribunal concludes that the hypothesis identified in paragraph 56 is reasonable because, pursuant to subsection 120(3) of the Act, the following factors are contained within the SoP's and are consistent with the template or factor:
(a) SoP No 38 of 1999: Ischaemic Heart Disease, Factor 5(h) means:
"an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease; or..."
where, at SoP paragraph 8, "an inability to undertake more than a mildly strenuous level of physical activity" means:
"the presence of an incapacity which prevents any physical activity greater than 3 METS, where a "MET" is a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body per minute or, 1.0kcal/kg of body weight per hour, or resting metabolic rate. (a MET approximates to the energy required to rest quietly in bed. A 70 kg man would use about 3 METS."
(b) Instrument No 46 of 2002, Factor 5(h): "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis" where, at SoP paragraph 8, "trauma to the lumbar spine" means:
"a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
The equivalent provisions in SoP Instrument 27 of 1999 (Lumbar Spondylosis) are similar.
(c) Instrument No 81 of 2001: Osteoarthrosis, Factor 5(2): "suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint" where, at SoP paragraph 8, "trauma to the affected joint" means:
"a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
* Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
59. The Tribunal then turns to subsection 120(1) of the Act to decide whether or not it can accept sufficient of the facts as to disprove the hypothesis beyond reasonable doubt.
60. The Tribunal has carefully considered all of the evidence and information before the Tribunal. Particular attention has been given to the application of subsection 119(L) of the Act to evidentiary difficulties associated with the existence of any disputed fact or circumstances that may have occurred some sixty years earlier. In this regard, the Tribunal has adhered to the reasoning of Weinberg J in Mason's case (see para 24). Moreover, with respect to medical evidence in earlier times, the reasoning of Sundberg J, Brew's case (para 26) and the Full Federal Court in Bey's case (para 25).
61. One threshhold question for the Tribunal to decide is whether Mr Williams' "back condition" (or trauma to the lumbar spine) arising from operational service was a service-related disability. That is, whether factor 5(h) of the SoP for lumbar spondylosis is satisfied. The meaning given to the expression "trauma to the lumbar spine" required evaluation of the medical evidence of the symptoms in terms of the meaning given in paragraph 8 of the SoP. It is not in dispute that Mr Williams sustained symptoms of back pain at the time of the injury, during operational service and back pain continued in the immediate post-war period. However, the medical evidence is also quite clear that there were no radiological abnormalities at these times (see para 35(a), (b)) - a fact acknowledged by Dr Goodwin (para 31). In addition Mr Williams was discharged with the classification of A1 (see para 35(b)).
62. Furthermore, the post-war radiological examination by Dr I McPhee stated "I can find no abnormality of this man's back at present" and also made the clinical observation of "legs normal" (Exhibit R3).
63. Later radiological (X-Ray) studies (1982 onwards) indicated degenerative changes in the knees and thoracolumbar spine (Exhibit R4):
(a) 8 October 1982: Left knee changes of osteoarthritis affect the knee joint. Provisional diagnosis, "acute arthritis".
(b) 19 March 1991: Left knee - degenerative changes in the medial joint compartment with narrowing of the compartment ...
(c) 16 May 1991: Right knee - moderate degenerative changes in the knee joint and in the patellofemoral joint
(d) 16 May 1991: Thoracolumbar spine - moderate degenerative changes in the lower thoracic spine.
64. The Tribunal considers, in line with case law on this issue, that the evidence provided by Mrs Williams and the expert opinion provided by Dr Goodwin do not take this matter beyond the hypothetical or speculation. Furthermore, the orthopaedic evidence before the Tribunal during Mr Williams' operational service and in the immediate post-war period is consistent. The supplementary evidence (para 45) does not alter the factual situation. Accordingly, the Tribunal accepts the medical opinion of Dr Grant.
65. Each case must be considered on its merits and in this particular matter, the Tribunal finds that there is nothing in the material that proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that the trauma to Mr Williams' spine during operational service caused lumbar spondylosis. Therefore, the Tribunal determines that Mr Williams' "back condition" (lumbar spondylosis) is not a service-related disability.
66. Similarly, the Tribunal cannot find anything in the material before it that proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that a trauma to Mr Williams' right and left knee during operational service caused osteoarthrosis. The medical evidence before the Tribunal does not establish the necessary connection between this medical condition and Mr William's operational service at the requisite level of proof. Accordingly, in line with case law, the Tribunal can make no other conclusion other than to find there is nothing in the material that proves beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that the trauma to Mr Williams' knee joints is service caused osteoarthrosis. Therefore, the Tribunal determines that Mr Williams' osteoarthrosis is not a service-related disability.
67. Given the above findings the Tribunal can make no other conclusion other than to find that Mr Williams lumbar spondylosis and osteoarthrosis are not service-related disabilities. Accordingly, the first requirement or limb for ischaemic heart disease - the connection between operational service [specifically lumbar spondylosis and osteoarthrosis] as service disabilities resulting in an inability by Mr Williams to undertake more than a mildly strenuous level of physical activity over the period 1985 to 1990 (the time of clinical onset of ischaemic heart disease) cannot be established. Given this finding there is no need for the Tribunal to further consider the second limb for ischaemic heart disease that is whether the prescribed activity threshold is satisfied.
68. The Tribunal further finds that based on the evidence before the Tribunal, any recurrence of scrub typhus and/or malaria in later life, would have had only intermittent effects on the late Mr Williams' ability to exercise.
69. The Tribunal concludes, for all of the above reasons, that as there are no sufficient grounds for determining at the requisite level of proof, a connection between the late Mr Williams' inactivity, his ischaemic heart disease and his service-related disabilities, then this application for review is unsuccessful. As the late Mr Williams' back and knee problems were not war-caused, his subsequent death from ischaemic heart disease arising from an inability to undertake a mildly strenuous level of activity, because his back and knee problems, cannot be found to be war caused.
70. Whilst these findings may be considered to be harsh, it would be more appropriate to consider the outcome as unfortunate. The application of the factual evidence to the legislation and relevant case law does not allow the Tribunal to make any other conclusion than the findings it has made.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Solicitor for the Respondent Mr M Smith, Departmental Advocate
Brew
Repatriation Commission
(1987) 74 ALR 518
(1997) 79 FCR 364
AAT affirmed the decision under review; the applicant's application for a war widow's pension was unsuccessful (para 71).