Andersen and Repatriation
[2003] AATA 410
•2 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 410
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/423
VETERANS' APPEALS DIVISION ) Re MATTHEW JOHN ANDERSEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date2 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision that the Applicant’s service in the Royal Australian Navy did not cause, nor did his service contribute to, nor aggravate, his hypertrophic obstructive cardiomyopathy.
..............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – hypertrophic obstructive cardiomyopathy – genetic origin – whether aggravated by service – whether failure to obtain appropriate clinical management
Brew v Repatriation Commission 56 ALD 403
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application to review a decision that Matthew John Andersen’s hypertrophic obstructive cardiomyopathy (HOCM) is not related to his service in the Royal Australian Navy.
2. Mr. Andersen served in the Royal Australian Navy from 7 January 1969 to 6 July 1989. His “defence service” as defined in the Veterans’ Entitlements Act 1986 was from 7 December 1972 to 6 July 1989.
3. In 1992/93, Mr. Andersen noticed that he was suffering from occasional palpitations, mild shortness of breath and slightly decreased exercise tolerance. In December 1993 he was referred to a cardiac surgeon, Dr. Stafford. Dr. Stafford conducted an Echocardiogram which showed “hypertrophic obstructive cardiomyopathy with systolic anterior motion of the mitral valve leaflet and septal hypertrophy. There was a gradient of 70mm across the left ventricular outflow tract and mild mitral regurgitation was present.” Dr. Stafford went on to report “Hypertrophic obstructive cardiomyopathy as an insidious onset and it became apparent by December 1993. This can often be treated medically with satisfactory results and if medical treatment is not successful surgical treatment can be contemplated.”
4. It is Mr. Andersen’s contention that his HOCM has been caused, contributed to or aggravated by his defence service. He has claimed that the following factors are relevant to his claim:
(a)He developed a habit of drinking alcohol to excess while he was serving in the Navy.
(b)He was often required to do heavy lifting while on duty in the Navy.
(c)The Naval medical personnel failed to diagnose his HOCM and treat it and that therefore he had an inability to obtain appropriate clinical management for his HOCM while he was in the Navy.
5. The Repatriation Medical Authority has determined by Instrument No. 20 of 1998, a Statement of Principles (SOP) concerning Cardiomyopathy. Those parts relevant to this review contain the following:
“2. (b) For the purposes of this Statement of Principles, “cardiomyopathy” means a non-inflammatory disorder of heart muscle, other than ischaemic or hypertensive disease, being described as dilated, restrictive or hypertrophic in type, in which the pathological process involves solely the myocardium, or the myocardium and the endocardium, including primary and secondary forms, attracting ICD code 086.0 or 425.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, cardiomyopathy or death from cardiomyopathy is connected with the circumstances of a person’s relevant service are:
(a)for men, drinking at least 300kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or
…
(zv)inability to obtain appropriate clinical management for cardiomyopathy.
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(y) to 5(zv) apply only to material contribution to, or aggravation of, cardiomyopathy where the person’s cardiomyopathy was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 7-0(5)(d) of the Act refers.
Other definitions
7.For the purposes of this Statement of Principles:
“alcohol (contained within alcoholic drinks)” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
“secondary cardiomyopathy” means a non-inflammatory disorder of heart muscle, being described as dilated, restrictive or hypertrophic in type, in which the pathological process involves solely the myocardium, or the myocardium and the endocardium, and which is the result of a known agent, disease process or condition, attracting ICD code 086.0, 425.5, 425.7, 425.8 or 425.9;”
ALCOHOL ABUSE
6. Mr. Andersen gave evidence by way of a prepared statement. He said:
“1. My drinking career commenced at age 18 (1970), whilst undergoing naval apprenticeship training at HMAS Nirimba. Apprentices who reached the half-way mark through their 3-1/2 year apprenticeship, were awarded open bar privileges of a night time at the base mess. The bar hours were limited to 4 hours a night, which greatly encouraged binge drinking to consume as much beer, in a short period of time. I drank far to excess during this time. Drinking was greatly encouraged, especially due to peer pressure. Consumption during these times would have easily exceeded 12 to 14 schooners of full strength beer. (Light beer was not available and probably did not exist at that time).
It was a common practise for myself and two other friends (fellow drinkers) to jump ship of a night time after the bar shut, because we had a taste for it, and proceed to a nearby civilian hotel, to cram as much beer in before that bar also shut.
It was on one of these occasions that, whilst drunk, the three of us “knocked over” a nearby PMG supply depot (now Telstra). We were quickly caught by the authorities and naval police. I spent three nights in infamous Parramatta gaol awaiting trial, on charges on break, enter and steal. I was quickly sentenced at Penrith Court of quarter sessions and received a 2-year good behaviour bond. The Commonwealth Officer of HMAS NIRIMBA kindly reviewed my situation and did not discharge me due to alcohol being the main cause plus our young ages.
2. Drinking increased even more, and, as I progressed through my apprenticeship, the bar privileges increased even more.
On completion of my apprenticeship in Dec72, I was posted to my first seagoing ship, the fast troop carrier HMAS Sydney. Sly groggng was rife because the ship was large (aircraft carrier) and the crew was large. My drinking stayed at the same pace, and because we were based at Garden Island in Sydney, Kings Cross was a five minute walk away, where the bars never shut. It was common for me to drink heavily till 3 or 4 each morning, then go back onboard for 3 hours sleep before work. The consumption rate during these times were beyond quantifying, but somewhere between scary and ridiculous.
3. On my first overseas trip on HMAS Sydney, we sailed to Port Moresby, where, due to my dependence on alcohol and the excitement of my first overseas trip, I got incredibly drunk at a bar in Moresby, and was nearly knifed in the stomach by a PNG native because I insulted him, for some reason (?). To overcome that close call, I went to another bar, to calm my nerves with a few more drinks. It was reported to me the following morning, by a friend, that I had stumbled down the wharf to go back onboard, had fallen down 30 feet, and landed neatly on a large coiled berthing rope in the landing craft, which was our liberty boat to go back to the ship. I did not recall the incident at all when I sobered up, and never did.
4. The following few months on Sydney saw many more foreign ports, and many more seedy bars, and continual drinking. It became an automatic part of life that we virtually had just dried out, then we were hit by another exotic port. Sightseeing and sporty type pastimes were for the loners and non-drinkers (what few there were). I recall one incident whilst alongside Sydney, on HMAS Sydney, which although would seem amusing looking back, was also an indictment of the seriousness of my drinking problem, at only age 19.
5. I had been on yet another bender all night, and was supposed to report onboard by 0730 the following morning. I felt I had literally drunk myself sober by 6.00am, and was looking for an early-openers to carry on drinking.. Woollomoolooo was rife with early-openers in those days and I had no trouble findng one. I had enough sense to ring the ship from a yellow phone in the bar, and personally spoke to the master-at-arms. I explained to him, that I was disgusted at myself because I was drunk and I did not want to come onboard because I would be a danger to myself and to my ship. The master-at-arms congratulated me on my maturity and common-sense, and said that I would not be in trouble, and that I could come back onboard when I had sobered up, no questions asked. I hung up the phone, and realised he had virtually given me a leave pass, so I just carried on drinking for another 8 hours before returning on board to sleep it off.
6. After HMAS Sydney, was a 2-1/2 year posting to destroyer escort, HMAS Parramatta. I was crash-posted to Parramatta, 24-hours before she was to sail for a six month sea to deployment of the far-east. This six months straight in the far-east, visiting more exotic ports than I care to mention, was a calling card for any budding alcoholic. It was at this time that the phrase “a warship is a means of transport from one cocktail party to the next” was coined. Although, the ship was on active duty in the far-east, the manifest or itinerary of the ports to be visited, were such that a person could hardly have time to sober up before arriving at another port. As always, we had a green light to party all night and beyond, and as always, I was the last one standing. There were several close calls on this deployment which clearly stays with me because of the circumstances. On one occasion, I had gone ashore in Surabaya for a two day drinking binge. Myself and my drinking friend returned onboard mid-afternoon one day, and the officer of the watch noticed we were virtually comatosed. We were confined to our bunks for 24 hours and a full time sentry was posted at our bunksides. A few hours later I had awoken, and convinced the sentry that I was alright and he needn’t stay around. He left, and I immediately woke my friend, and we virtually jumped ship in our icecream suits, by going to the quarterdeck at nightfall, and jumped in the harbour, and swimming to the wharf, then escaping ashore for another 24 hour binge.
7. After surviving that six month binge drinking session abroad, I returned to Australia back into familiar territory at Sydney, and continued with late night vigils in Kings Cross. Shortly afterwards, I was assigned to Darwin for 2 months to help clean up Cyclone Tracy. The stress associated with Tracy, and the copius amounts of alcohol freely available to the troops doing the clean-up, meant that yet again, I was confronted head-on with alcohol. One would have made the automatic assumption that if a city gets obliterated completely by a cyclone of such a magnitude that access to alcohol, would be virtually non-existent. But, on the contrary, and, in the finest traditions of the RAN, beer became a more important commodity than food. Consumption, yet again, was totally unquantified, and could only be judged by the level of the headache the following morning.
8. Following HMAS Parramatta was a two year posting in PNG at HMAS Basilisk, where life was extremely sociable, and a drinkers heaven. Heavy drinking 7 days a week, daytime/night time was the order of the day. Remarkably, I carried out my complex technical duties with total competence and obviously by this time had accustomed my body to the large alcohol content, as if it were a daily ritual, like brushing your teeth.
9. After Basilisk, I returned to Australia, and volunteered for submarine service in the United Kingdom. I was posted to HMS Dolphin submarine escape school for six months. The stress associated with submarine training, and the impending future I knew I was in for, led to further increases in alcohol. Unbelievably, the Petty-Officers mess at HMS Dolphin was open from 11.15am each day and remained open well after 1330 each day during lunch. Because of my rank structure, we were knocked off for early lunch at 11.15am, and did not have to return to afternoon class till 1330. This gave me a minimum of 1-1/2 hours solid drinking at lunchtime between classes. Because the weather was bitterly cold, I broke from convention, and started drinking pints of scrumpy (poor man’s inferior cider) at every lunch session. I could master 5 pints of cider every day for lunch, then return to class as if nothing had happened. Again, lunchtime drinking was encouraged, and the ridiculously long lunch hours just made life so much easier. This did not impinge on the night time drinking, and the average intake of scrumpy per day would exceed 12 pints, and with great ease.
10. On return to Australia, and into submarine service on HMAS Ovens, alcohol was an open bar policy alongside, to compensate for the stress involved. The history of alcohol abuse whilst in submarines was previously stated in folio MA11.
11. I was posted out of submarines after 3 years because my ears blew due to the extremes of vacuum and pressure, a permanent defect for which I have never submitted a claim for compensation. I was posted to Minehunter HMAS Snipe, a small ship, which also had an open bar policy. This, coupled with my senior rank, meant it was open slather on legalized drinking. Back onto full strength beer, and, as always, totally duty free prices, meant it was in your face day and night, at sea or alongside. Again, foreign ports was the order of the day, and the years ahead and the years behind, became a continuance of booze and smoke filled messes. The related medical incidents on Snipe have been well covered in previous folios, and remains the focal point of the clinical onset of HOCM.
12. After Snipe, I was posted to HMAS Flinders hydrographic survey ship based in Cairns. Again, a small ship, again an open bar policy. The social life in Cairns became the primary duty, the technical aspects of my work appeared to diminish to insignificance. At times I had trouble distinguishing whether I was an electrician or was getting paid to be a social Bar-fly. This was another 4 years of full on binge drinking, except the binges were everyday. As always throughout my career, there were times when I did not conduct myself properly in accordance with my rank, and as always, the alcohol was to blame, but, as always, my rank was my guardian angel.
13. My final posting was HMAS Moresby oceanographic survey ship based in Perth, a medium size ship, but, again, an open bar policy. Because Moresby did survey mapping work, the time spent at sea was very long. To compensate for this, bar privileges were even more generous than ever before. I had always had a reputation by this time as being able to “handle my grog”.. Some would see that as a compliment, these days you are a chronic alcoholic. The irony was that, (and to impress the overall acceptance of alcohol within the services), the Captain of the shop knew my alcohol intake was extreme because he viewed the mess beer book every month. To the Captain, and others in upper management, a person like me whose alcohol consumption was consistently high (or consistently anything) was much better than another person whose alcohol consumption was unpredictable and kept changing dramatically every month, in a upwards or even downwards direction.
14. For the following 11 to 12 years after my discharge in 1989, and up to discovery of my HOCM condition in 1992, I continued to consume copious quantities of alcohol. After all, the Navy gave me 20 years on full on practise, so why waste a talent!”
7. On cross examination by the Respondent’s representative, Mr. Stoner, the Applicant said that it was common for him and a few friends to “jump ship” and go to a civilian hotel. The Applicant also said that he drank at least every Wednesday and Saturday and on those occasions he drank 12 to 14 schooners in a four hour session.
8. The Tribunal notes that if the Applicant’s evidence about his alcohol abuse is to be believed, he had acquired such a habit well and truly before his eligible service began in December 1972. Consequently, his claimed problem with alcohol abuse is not service-related for the purposes of entitlements under the Act.
9. Furthermore, the alcohol abuse seems to have had nothing to do with the Applicant’s duties in the Navy. It amounted to no more than the Applicant and some of his workmates going away from their place of work at the end of their daily or weekly Naval duties and then drinking large quantities of alcohol for social and recreational reasons. The situation was no different to what it would have been if the Applicant and his fellow workers had worked for any employer in any other industry.
10. The Tribunal also has some doubts about the Applicant’s evidence of quantity of alcohol consumed. His work history does not accord with the abuse of such a large quantity of alcohol.
· He served continuously in the Navy for 20 years as an electrician.
· He had significant time at sea.
· He was promoted to Chief Petty Officer Technical Power, within approximately 12 years of his enlistment.
· He was awarded a “Commendation” in August 1987 for his “superior performance as the Deputy Weapons Electrical Engineer Officer”. The “Commendation” went on to say: “Your dedicated and professional performance in the planning and conduct of all electrical maintenance activities has been responsible for the continued operational efficiency of HMAS MORESBY. Further, your ability to provide sound professional and personal advice and guidance to all subordinates has been significant in maintaining a high level of morale onboard. Your cheerful willingness in the conduct of your duty has been inspirational to all onboard HMAS MORESBY and has been in the finest traditions of the Royal Australian Navy.”
· From 1992 to 1999 he worked an average of 50 hours per week for Freeport Indonesia Mining Co.
11. Consequently, the Tribunal rejects any claim by the Applicant, for the purposes of the Act, that his condition of HOCM has any connection his Naval service insofar as consumption of alcohol is concerned.
HEAVY LIFTING
12. The SOP does not list hard work or heavy lifting as one of the risk factors connected with HOCM. The Applicant did not pursue this line at the hearing.
FAILURE TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT
13. To support this aspect of his claim, the Applicant gave evidence about an incident which occurred in Noumea in July 1981. He said that he was on board the HMAS Snipe when he suffered chest pains and palpitations. There was no doctor on board. He was taken ashore to see a French doctor. The Applicant contends that his symptoms should have alerted the Navy to his HOCM and thereafter treated him appropriately for it. The French doctor wrote a report in English at the time. The Tribunal has deciphered the writing on the report to read as follows:
“8. DIAGNOSIS
Back pain
9….
10. Physical Examination, Symptoms and Treatment
2 Episodes of back pain last 2 months. One at home one at sea. Pain commences in back radiates around trunk about T6-7 level. No SOB although pain described as very severe. SBMO in Noumea. Rev review by MO.
Two separate episodes of severe band like chest pain commences in back then runs round lower chest/upper abdo (went in back). T3-L2. Constant for 10mns to 15 mns. No other pain/tingling breathing OK; No palpitations. No other anoi features.
RH sciatical No Hd Zostep.
FH Fallen + cirrhosis 2°eC
S/B No Number – NAD (?nerve root compression)
O/E Chest clear. CVS NAD ABNO NAD. Back movements NAD
Neck movements NAD
Skin normal
ULS – power tone & Ns NAD.
P.D. Pain unknown origin
? Zoster ? Virul
Suggest ECG FBC or ESR”
14. The Applicant claims that the Naval doctors should have noted the last line of the French doctor’s report and arranged for him to have an ECG test. The Applicant also claims that he had numerous medical examinations and x-rays during his service in the Navy and that his HOCM should have been picked up during those examinations.
15. The Applicant was seen by Consultant Cardiologist and Physician, Dr. Joseph Ling in September 1998 and again in May 2001. Dr. Ling also had the opportunity to read the reports of the various medical examinations conducted on the Applicant during his Naval service. Dr. Ling prepared a report dated 12 July 2001 in which he made the following points:
· Relating to an x-ray taken on 5 November 1976. The report states ‘increased hilar markings with extension to periphery-elongated heart. Nil else seen. Chest appears within normal limits’.. This is a non-specific remark which may suggest hyperexpanded lung fields but does not necessarily indicate cardiomegaly. Certainly this would not be a typical feature of hypertrophic cardiomyopathy. I note that in October 1978 the chest x-ray was reported as normal. Hence it is unlikely that the report on the 5th of November 1976 would be indicative of incipient hypertrophic obstructive cardiomyopathy.
· Mr. Andersen reports that in 1981 while on board HMAS Snipe the ship ran aground. He was under a lot of stress at the time and developed severe chest and back discomfort. He then went into a severe shaking convulsion and was gasping for breath which resolved after ½ an hour. He was then seen by a French Naval Doctor in Noumea. The medical notes from the 27th of July 1981 indicate that the pain was more in the back and had been present for about 2 months. These episodes had also occurred at home and radiates around the trunk about T6-7 suggestive of a radiculopathy from nerve root entrapment. It was suggested that he should have an ECG which was never performed. It is likely that if an ECG had been performed at that time that the suspicion of a cardiomyopathy would have been identified as it is likely that his ECG would have been abnormal at that time. However the symptoms suffered by Mr. Andersen is likely to be secondary to a musculo-skeletal problem rather than an indication of the clinical onset of hypertrophic obstructive cardiomyopathy. The usual symptoms are that of presyncope, breathlessness, occasionally chest tightness and palpitations.
· With regards to the likely date of onset of the hypertrophic obstructive cardiomyopathy, this is likely to have been present at birth. The condition is insidious and develops over time with symptoms occurring when significant hypertrophy has occurred, or obstruction of the ventricular outflow tract causes reduction in blood pressure.
· The hypertrophic obstructive cardiomyopathy suffered by the Applicant is likely to be primary. Secondary hypertrophic obstructive cardiomyopathy tends to be found in the athletes heart syndrome and hypertensive patients. This is largely concentric in nature rather than asymmetric.
· The current opinion of the aetiology of hypertrophic obstructive cardiomyopathy is that it is due to a genetic abnormality, commonly transmitted as a hereditary trait. Occasional patients may have point mutation of a normal gene and develop the disease spontaneously.
· It would appear that the Statements of Principles risk factors are not satisfied either as a cause, material contribution or aggravation of the cardiomyopathy. Although he would have been exposed to alcohol in his term of service he would not have consumed 250 kilograms of alcohol within the ten year period before diagnosed as obvious cardiomyopathy.
· In summary the hypertrophic cardiomyopathy is a genetically transmitted condition often hereditary in nature. It was identified incidentally when a murmur was picked up in 1993 and an echocardiogram was performed demonstrating the abnormal asymmetric thickness of the walls of the heart.
16. The Tribunal accepts the opinion of Dr. Ling, that the Applicant’s HOCM is more likely than not to be primary and that there is no aspect of his Naval service that caused, made a material contribution to or aggravated his HOCM.
17. The Tribunal also accepts the opinion of Dr. Ling that there was nothing in the presentation of the Applicant to the various medical personnel who examined the Applicant while he served in the navy, that would have alerted them to his suffering from HOCM. He served in the Navy for a further eight years after the Noumea incident. Indeed, HOCM was not diagnosed until December 1993.
18. It may be that an ECG in 1981 would have provided for a suspicion of HOCM, but this is speculative.
19. The matter of “inability” to obtain appropriate clinical management was raised in Brew v Repatriation Commission 56 ALD 403. Sundberg J, at 407, said:
“The meaning of ‘inability’ is that given by the Macquarie Dictionary (2nd ed 1991) – ‘lack of ability; lack of power, capacity, means’. See also the New Shorter Oxford English Dictionary (1993) – ‘The condition of being unable; lack of ability, power or means’.. The tribunal was in my view correct in saying that a person who chooses not to seek medical treatment is not for that reason unable to obtain it. The word ‘inability’ is directed to an objective barrier to obtaining treatment, such as the absence of medical officers, and not to a lack of willingness to obtain treatment. It was also argued that the applicant was unable to obtain medical treatment because she did not during her service know she had varicose veins. If this would otherwise be an ‘inability’ for the purposes of factor (e), it is ruled out by cl 2 of the SoP, because her lack of awareness is not a factor that is related to her service.”
20. No evidence was placed before the Tribunal to suggest there was ever a barrier of any description to the Applicant obtaining treatment for HOCM while he was in the Navy, other than the fact that no one knew he had it. The Tribunal takes the view that if the Applicant had presented himself to the Naval medical authorities with identifiable signs, or a diagnosis of HOCM, there would have been no barrier at some time during his twenty years of service to his obtaining appropriate treatment, whatever that might have been at the time.
21. The Tribunal affirms the decision that the Applicant’s service in the Royal Australian Navy did not cause, nor did his service contribute to, nor aggravate, his hypertrophic obstructive cardiomyopathy.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 25 November 2002
Date of Decision 2 May 2003
Counsel for the Applicant Mr. Andersen, himself
Respondent Mr. J. Stoner, departmental advocate
0
0
0