Bayly and Repatriation Commission
[2001] AATA 968
•29 November 2001
-
DECISION AND REASONS FOR DECISION [2001] AATA 968
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/166
VETERANS' APPEALS DIVISION )
Re John Joseph Bayly
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member
Date29 November 2001
PlaceSydney
Decision The Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that: (1) The decision under review, in respect of the conditions of Generalised Anxiety Disorder with Alcohol Dependence, Hypertension, Gastro-Oesophageal Reflux Disease, Gout of the Left Knee, Osteoarthritis of the Left Knee, Relocation of the Patella Ligament of the Left Knee and Removal of the Left Kneecap is set aside and in substitution therefor, the Tribunal decides that these conditions are war-caused with entitlement to Disability Pension for these conditions assessed at 100 per cent of the General Rate from and including 20 August 1996. (2) The decision under review in respect of Peptic Ulcer Disease and Renal Cell Carcinoma is set aside and in substitution therefor the Tribunal decides that these conditions are also war-caused with Disability Pension from and including 20 August 1996. The assessment of the appropriate impairment rating for these conditions is remitted to the Repatriation Commission. (3) The decision under review in relation to Carcinoid Syndrome is varied to include the diagnosis of this condition as Carcinoid Syndrome and Carcinoid Tumour. The decision as varied, is affirmed.
………………........................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - Disability Pension - Operational Service - Defence Service - Reasonable Hypothesis - Reasonable Satisfaction - Diagnosis - Osteoarthritis - Renal Cell Carcinoma - Carcinoid Syndrome - Carcinoid Tumour - Generalised Anxiety Disorder with Alcohol Dependence - Hypertension - Gastro-Oesophageal Reflux Disease - Peptic Ulcer Disease - Gout - Hiatus Hernia - Relocation of the Patella Ligament of the Left Knee - Removal of the Left Knee Cap
LEGISLATION
Veterans' Entitlements Act 1986ss 9, 13, 70, 120, 120A, 120B
Deledio v Repatriation Commission (1997) 47 ALD 261
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
29 November 2001 Ms S M Bullock , Senior Member Dr P D Lynch, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr John Joseph Bayly in relation to a decision of the Repatriation Commission ("the Commission") of 2 February 1998 (T2). The Veterans' Review Board ("the Board") varied the Commission's decision on 13 December 1999 by adding the diagnosis of carcinoid syndrome and affirming the decision in relation to osteoarthrosis of the left knee; renal cell carcinoma with metastasis; carcinoid syndrome; generalised anxiety disorder with alcohol dependence; gastro-oesophageal reflux disease; peptic ulcer disease; and gout of the left knee (T39). It should be noted that the Board consented to Mr Bayly's withdrawal of his claims for chondromalacia patellae of the left knee, lumbar spondylosis and atrial fibrillation.
A Hearing was held in Sydney on 27 April 2001. Mr Bayly provided oral evidence to the Tribunal. He was represented by Mr M Vincent of Counsel. The Respondent, the Commission, was represented by Mr P Godwin, Departmental Advocate. Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("T documents", T1-T42) and the following exhibits were also taken into evidence:
Exhibit Number Description Date
A1 Applicant's statement 15 November 2000
A2 Medical Report of Dr M Dent, Consultant Psychiatrist 6 October 2000
A3 Medical Report of Dr B Moss, General Practitioner 26 February 2001
A4 Medical Impairment Assessment by Dr B Moss, General Practitioner 25 April 2001
A5 Medical Reports of Dr A S McLean, Consultant Physician 19 July 1988 24 April 1989 4 September 1991 23 October 1991
A6 Pathology Report of Dr M Roman-Miller 11 October 1995
A7 Medical Reports of Dr D Currow, Director, Palliative Services, Wentworth Area Health Service 22 January 1997 29 January 1997 (x 2) 9 April 1997 23 April 1997
A8 Medical Reports of Dr R Sundaraj, Pain Management Unit, Nepean Hospital 19 February 1997 10 April 1997 16 May 1997 28 May 1997
A9 Medical Reports of Dr P Flynn, Cardiothoracic Surgeon 28 April 1997 8 May 1997
A10 Further Medical Report of Dr P Flynn, Cardiothoracic Surgeon 27 February 2001
A11 Bundle of Radiology Reports commencing with a Report of Dr Y Yau dated 25 January 1999 Various
A12 Clinical notes of Dr B Moss, General Practitioner Various
A13 Clinical notes of Dr G A Khan Various
A14 Additional Service Documents – Volume 2/2 Various
A15 Nepean Hospital Admission Records – Volume 1/2 Various
R1 Medical Report of Associate Professor R Mattick, Clinical Psychologist 31 August 2000
R2 Medical Report of Professor F Ehrlich 19 September 2000
R3 Oncology Report of Professor J Levi, Director, Department of Medical Oncology, Royal North Shore Hospital 26 March 2001
R4 Clinical notes of Dr P Flynn Various
R5 Nomograph for Body Mass Index
R6 Report of Dr R L Coles, Specialist in Endocrinology and Reproductive Medicine 3 August 2001
The Tribunal received final written submissions in this matter on 18 September 2001.
IssuesPrior to the Hearing, the Respondent advised that it conceded Mr Bayly's claim for generalised anxiety with alcohol dependence, hypertension, gastro-oesophageal reflux disease, gout of the left knee, osteoarthritis of the left knee, relocation of the patella ligament of the left knee and removal of the left knee cap with Disability Pension assessed at 100 per cent of the General Rate from and including 20 August 1996.
The Tribunal noted that in his initial claim, Mr Bayly had also sought Disability Pension for the condition of hiatus hernia (T10, p75). This condition had been overlooked in the Commission's determination of 2 February 1998. Hence, at the time of hearing, there had not been any investigation or determination of Mr Bayly's claim for hiatus hernia. As such, the Tribunal has no jurisdiction to deal with this matter.
The remaining issues for the Tribunal to determine are whether or not Mr Bayly's conditions of carcinoid tumour, peptic ulcer disease and renal cell carcinoma are service-related.
ServiceMr Bayly served in the Royal Australian Air Force ("RAAF") from 26 February 1957 to 14 March 1977 (T3, p14). His eligible war service which is also operational service, was from 26 August 1965 to 16 December 1965 in North East Thailand, including Ubon (T3, p15).
Mr Bayly also rendered defence service, as defined in Part IV of the Veterans' Entitlements Act 1986 from 7 December 1972 to 14 March 1977 (T3, p14).
LegislationA determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 9 of the Act deals with war-caused injuries or diseases.
Section 13 of the Act deals with eligibility for pension arising out of operational service.
Section 70 of the Act deals with defence-caused conditions and also eligibility for pensions for those conditions.
In relation to Mr Bayly's operational service, the standard of proof is that of the reasonable hypothesis applying subsections 120(1) and 120(3) of the Act which provide:
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A. "
In relation to Mr Bayly's defence service, the Tribunal must decide all relevant matters to its reasonable satisfaction. This means that the Tribunal must decide on the balance of probabilities whether Mr Bayly's claimed conditions are defence- caused. Subsection 1240(4) of the Act is relevant and provides:
"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.
…"The Tribunal is also required to apply section 120A for operational service to assess the reasonableness of hypothesis in accordance with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determinations under the Act.
In relation to Mr Bayly's defence service, the Tribunal is also required to apply section 120B of the Act. Thus the Tribunal must decide matters to its reasonable satisfaction in accordance with any relevant Statements of Principles.
It was agreed by the parties and accepted by the Tribunal that the relevant Statements of Principles are:
Instrument Number 9 of 1994 concerning Peptic Ulcer Disease
Instrument Number 107 of 1996 concerning Renal Cell Carcinoma
There is no Statement of Principles for carcinoid syndrome or carcinoid tumour. In these circumstances, the principles set out in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, set out the principles to be applied by decision-makers when no relevant Statement of Principles exists.
Evidence of Mr John Joseph BaylyMr Bayly told the Tribunal that he currently weighs 110 kilograms fully clothed and approximately 106 or 107 kilograms unclothed. Mr Bayly stated that he is in the habit of weighing himself every morning. Mr Bayly stated that he was 110 kilograms for seven or eight years up to the time of the diagnosis of his renal cell carcinoma in 1995. After three operations, his weight reduced significantly but he regained weight some 12 to 18 months later. Mr Bayly stated that he believes his weight increased to 110 kilograms after he ceased work in 1989 (Transcript, p39).
In relation to his work, Mr Bayly informed the Tribunal that after discharge from the Royal Australian Air Force in 1977, he worked part-time at Hyperion Thoroughbreds, initially working on a temporary basis for approximately three years, after which he was appointed Sales Manager on a permanent basis. He continued working with this organisation for 12 years. During this 12 year period, Mr Bayly considered that he weighed between 102 and 105 kilograms.
At age 17 years, when Mr Bayly enlisted, he weighed approximately 149 pounds and maintained a steady weight. In November 1960, Mr Bayly weighed approximately 177 pounds and thought that his weight remained stable at this time because he was physically fit, for example playing football and golf. In August 1965, Mr Bayly believed he weighed 207 pounds and this was before he went to Thailand (Transcript, p40). In Thailand, in Ubon, Mr Bayly stated that his weight increased significantly, but he managed to loose some weight when he returned.
In Ubon, Mr Bayly wore mainly shorts, a short sleeve shirt and long socks. When he arrived in Thailand, he and the other service men were sent to a local tailor who made up tropical uniforms. Mr Bayly did not recall any problems with the uniform. He was measured once and issued with three uniform sets to last him his six month tour of duty. Mr Bayly later recalled he may have purchased two extra shirts and possibly a pair of shorts, because he had put on weight. Mr Bayly could not recall the extent of his weight gain in Ubon. He knew he had put on weight however, because when he returned to Australia, his family and friends mentioned to him that they had noticed his weight gain.
After Mr Bayly returned to Australia, he was working in a second job as an administrator and a barman at the Penrith Rugby Leagues Club. He would work on weekends or after his RAAF duty.
From 1968 until 1974, Mr Bayly believed that he weighed between 95.5 kilograms (210 pounds) and in March or April of 1975 weighed between 92 and 93.6 kilograms.
In 1975, Mr Bayly gained weight to 103 kilograms. Mr Bayly was unable to say why he had increased his weight at that stage, but he did recall that he was hospitalised for excessive weight at the RAAF Hospital at Richmond. Mr Bayly told the Tribunal that he was unsuccessful in reducing his weight. There was a purge in the Services at that time to have members reduce their weight. Mr Bayly explained that he was told he should reduce his alcohol consumption in an attempt to also lose weight. Mr Bayly stated that he was directed to diet and was doing this from the time he came back from Thailand until his discharge. Mr Bayly stated that he was never successful in reducing weight primarily, he believed, because he was drinking too much alcohol. Further, Mr Bayly stated that he was under a lot of pressure with a young family and he had his circumstances in Ubon on his mind. He was working two jobs and not eating properly.
Mr Bayly told the Tribunal that in relation to his knees, that from 1965 to 1973, he had aches and pains in his knee including during his time in Thailand. He was "fobbed off" by doctors. Medical practitioners did not do anything in particular for him although he recalled that in 1965 in Thailand, he was prescribed the medication "Brufen" and continued to take this medication for what he was told was the condition of arthritis. It was in 1973 however, that Mr Bayly considered that his "real problems" started with his knees. In 1976, Mr Bayly was told that he would require two knee replacements. He had two operations on his left knee but knee replacement was not undertaken at that stage. The problem with his knees caused him difficulty with sport as Mr Bayly could not walk long distances or play golf. Mr Bayly remembered that there seemed to be more problems with his knees when he was in the tropics. At the end of the day after work, Mr Bayly was in considerable pain from his knee. There was also a great deal of swelling and he had to have fluid drawn from the knees. There was also a "crackling noise". In 1976, an orthopaedic surgeon in the RAAF told Mr Bayly that he would need bilateral knee replacement.
Between 1973 and 1976, his legs and knees were continuing to ache at the end of the day and his walking became very restricted, Mr Bayly explained. He was taking Brufen or similar medication all the time and found the pain was so great that he would have to drive a short distance to shops instead of walking. He had ceased playing golf, having had his last game in 1964. After his operation on the left knee in 1976, there was little improvement and in fact, the pain in his left knee was worse. Mr Bayly stated that he struggled each day.
Mr Bayly continued taking Brufen until 1980 or 1981 when he saw Dr Watson. Mr Bayly believed that Dr Watson diagnosed an ulcer and Mr Bayly recalled the doctor telling him that it was no wonder he had ulcers given that he had been on Brufen for such a long time. Dr Watson recommended that Mr Bayly cease taking the medication immediately. He had up until that point been taking two Brufen tablets per day.
Currently, Mr Bayly experiences significant mobility problems because of his knees and in fact on the day of the Hearing, he found that in walking the distance of 250 metres from his Barrister's Chambers to the Tribunal, he had great difficulty. Mr Bayly cannot walk upstairs and needs rails as noted by Dr Moss (Exhibit A4). The knee condition has gradually worsened and Mr Bayly informed the Tribunal that he now takes pain-killers constantly and has recently been told that both knee caps need to be replaced.
Mr Bayly also explained that he has a major back problem, having had two work-place accidents. The pain killers also provide relief for this condition. Because of his renal-cell cancer and problems with ulcers, Mr Bayly is required to change his pain-killing medication regularly.
Mr Bayly could not say why Professor F Erhlich had reported on 19 September 2000 that Mr Bayly had not developed knee problems until 1976. Mr Bayly stated that it was in 1976 that he had three operations on his knees, but his problems had been present prior to that time.
In relation to his peptic ulcer disease, Mr Bayly told the Tribunal that he was first diagnosed with an ulcer in about 1972 when he returned from Malaysia. While he had told the Board that the onset was in 1975, he now believed it was earlier. Mr Bayly believed that he may have given Dr Flynn the mistaken impression that the ulcer had healed. Mr Bayly told the Tribunal that in the past, he had been treated for his ulcer and gastro-oesophageal reflux problems. Mr Bayly had also attended a doctor in Bankstown, Dr E Watson, and he was told many years ago that he had an ulcer(s) because of the prolonged use of Brufen for his arthritis. Mr Bayly has also been on the medication Palapin and Aspirin for many years and was taken off these medications when he was diagnosed with renal-cell carcinoma.
Mr Bayly explained to the Tribunal that he has to be regularly hospitalised to deal with an intercostal nerve block which requires the administration of a general anaesthetic. Mr Bayly stated that he has a permanent hernia and that Dr Flynn and Dr Gregan had placed:
"…mesh in my side and they said I am stuck with the hernia but when the pain becomes too bad and it cannot be reasonably satisfied with panadeine forte or morphine they hospitalised me and gave me an intercostal nerve block which, if it works, lasts sometimes three or four months, sometimes it doesn't work." (Transcript, p48).
Mr Bayly told the Tribunal that he had smoked before going to Thailand. He smoked because it "just seemed to be the thing to do–everyone–all the young airmen were–it seemed to be the perceived, grown-up thing to do". In Ubon, cigarettes were virtually free and during his time there, Mr Bayly was nervous and distressed. This led to a natural progression to increase his cigarette consumption. Mr Bayly informed the Tribunal that because in Ubon he was the Post-Master, he sent back cigarettes to his wife. He would send home a carton of 200 cigarettes each time and estimated that when he returned to Australia, he had a supply of cigarettes which lasted him from 18 months to two years. Mrs Bayly was a very minimal smoker, so she did not create any dent in the cigarette surplus.
Mr Bayly confirmed that when he commenced smoking on enlistment aged 17 years, he was smoking 20 cigarettes per day from 1959. This increased to 30 cigarettes per day in 1965 and when posted to Ubon later in 1965, he was smoking more than 40 cigarettes per day rising to 60 cigarettes per day in 1969 (Smoking Questionnaire, 8 November 1995, T8). From 1977 until 1994, Mr Bayly confirmed that he was smoking between 60 and 80 cigarettes per day.
Mr Bayly acknowledged that there were discrepancies between the smoking history contained in his statement and records found elsewhere. Mr Bayly stated that this was because the men were reminded in weekly orders that they would be discharged if smoking habits were not reduced. Consequently, Mr Bayly believed that he had told a few white lies at the time to minimise his smoking. He thought that this stretching of the truth "would come back to bite me". Mr Bayly later stated in evidence that he did not become aware of the routine orders until he ran his own office after he came back from Malaysia in 1972. Mr Bayly was referred to the "Out-Patient Consultant Records" of 1968 which indicated he smoked up to 20 cigarettes per day. Mr Bayly said this was an underestimation and he stated that he was probably worried about getting into trouble for having too high a smoking record. Mr Bayly told the Tribunal that he definitely smoked in excess of 20 cigarettes per day and it was common knowledge that some of the doctors were disciplining the men for excessive smoking. A further record of January 1977, indicated that Mr Bayly was smoking irregularly up to 25 cigarettes per day for a period of six or seven years. Again, Mr Bayly stated that this was definitely an underestimation. Further reference at T3, p53X indicated that on 23 February 1978, Mr Bayly was: "Smoking heavily since son's problem came to light – up to 50/day last 9/10 months". Mr Bayly told the Tribunal that he did not know of this reference of 50 cigarettes per day but reiterated the fact that he was in fact smoking more than that.
Mr Bayly told the Tribunal that back in Australia from Thailand, he always felt nervous, and was worrying about incidents which had occurred in Thailand. These matters played on his mind – "I became addicted to them, to the cigarettes, but I felt when I had a cigarette I seemed not as stressed out as if I didn't have a cigarette". (Transcript p55).
Noting specifically page 121 of the extra service documents which recorded smoking on 16 October 1972 as 15-20 cigarettes per day, Mr Bayly said this record was not correct and it was much more likely that at that time he was smoking in excess of 20 cigarettes. Mr Bayly was confident of his smoking greater amounts because in Thailand cigarettes were given to the men or they were very inexpensive and his smoking consequently increased until November 1994 when he was smoking 80 cigarettes per day. Mr Bayly told the Tribunal that he finally ceased smoking in 1994, having tried to give up once before. In this regard, Mr Bayly stated that in about 1990, he gave up for approximately 12 months. Confirmation of his smoking history is found in Dr Kahn's clinical notes dated 20 January 1994, where he wrote that there had been no smoking for three weeks, that is around about New Year's Eve 1993. In 1968, when Mr Bayly was about 29 years old and smoking between 30 and 40 cigarettes per day, he was also drinking excessively. Mr Bayly told the Tribunal "I was in a bit of a haze during those days." In relation to the Board's reference to occasional cigarette smoking in June 1970, Mr Bayly stated that he did not know where that reference came from. At that time, Mr Bayly was stationed at Richmond and was smoking between 30 to 40 cigarettes per day. After retiring from the RAAF, he was smoking between 60 to 70 cigarettes per day. In relation to a further reference in 1975 to his smoking greater than one packet of cigarettes per day, Mr Bayly again stated that he was smoking more than this at that time. Mr Bayly confirmed that his smoking was not decreasing in November 1975 as had been noted by the Board.
In respect of his first admission to Nepean Hospital on 27 April 1988, there is a recorded smoking history of 50 cigarettes per day until two months later whereupon the level of consumption of cigarettes was, and continued at the time of admission to be, 20 cigarettes per day. Mr Bayly could not recall that detail and stated that the history did not mean anything to him.
The second Nepean Hospital Admission of 6 July 1988, refers to smoking 50 cigarettes per day until two weeks previously and later in the "Nursing Notes" for that admission, a smoking history is mentioned of 15 cigarettes per day for 23 years. Mr Bayly told the Tribunal that he did not recall stating this, but in any event it was incorrect as he was smoking considerably more.
In relation to the third admission to Nepean Hospital on 29 August 1988, there is a notation of smoking 25 cigarettes per day, having previously smoked 50 cigarettes. Mr Bayly told the Tribunal that perhaps he might have reduced smoking for a week or two, but he could not really offer any other explanation as to this recorded level of cigarette consumption.
In regard to the fourth hospital admission of 15 September 1988, there is a reference to smoking 25 cigarettes per day for 35 years. Mr Godwin put to Mr Bayly that at that point he could not possibly have been concerned about Air Force standards as he had long retired from the RAAF, yet there is a record of a considerably lower cigarette consumption of 25 cigarettes. Mr Bayly stated that he could not explain this discrepancy.
Noting the fifth admission to Nepean Hospital on 8 October 1991, there is an indication that Mr Bayly had a history of smoking 60 cigarettes per day, having ceased smoking on 22 April 1991. Mr Bayly stated that this reference is to his 12-month cessation of smoking in the early 1990s.
In relation to Mr Bayly's sixth admission to Nepean Hospital on 25 April 1993, there is a reference to his being a heavy smoker and smoking forty cigarettes per day for thirty years. Mr Bayly stated that this was a big variation on previous admission records. His only explanation of the great variety in admission records in 1988 was that he may have given hospital staff "throw-away lines". Mr Bayly stated that he could not have imagined that he would have said he reduced from 50 cigarettes to 20 cigarettes. The only time Mr Bayly recalls being questioned in any great detail about his smoking was when he went to hospital for his cancer and Dr Watson was the surgeon.
Mr Bayly told the Tribunal that over the years he has had difficulty with his son. In Malaysia, his son used to meet his friends at a local service station and Mr Bayly subsequently found out that his son and friends were being supplied with and using illicit drugs. In 1978 in Malaysia, Mr Bayly's son had returned home in a most dishevelled state. That same night, he found his son on the floor in his room with a syringe sticking out of his arm. Mr Bayly's son was 18 years old at that time. Back in Australia, there were drugs being sold at the local High School. In Australia, Mr Bayly's son became uncontrollable and this caused Mr Bayly great distress and no doubt assisted, he agreed, in the increase in his cigarette and alcohol consumption.
Medical Evidence
Dr M Dent, Consultant PsychiatristDr Dent reported on Mr Bayly on 6 October 2000 (Exhibit A1). Dr Dent concluded that there is a reasonable hypothesis linking Mr Bayly's war service with a generalised anxiety disorder and alcohol abuse/depression. The total impairment rating assessed by Dr Dent for these conditions and taken from Chapter Four of the "Guide to the Assessment Rates of Veterans' Pension" ("the Guide")" is 36 points.
Dr B Moss, General PractitionerDr Moss is Mr Bayly's General Practitioner and at the time of his report on 26 February 2001, he had been Mr Bayly's General Practitioner for a period of two and a half years (Exhibit A2). During this time, Mr Bayly has had 67 consultations. Dr Moss hypothesised that in relation to carcinoid syndrome, Mr Bayly's smoking and exposure to aircraft aviation fumes on operational service contributed to the development of the carcinoid syndrome, as smoking and exposure to those fumes are both known carcinogens.
In relation to renal cell carcinoma, Dr Moss considered the onset of the condition in 1995 and hypothesised that smoking on operational service in 1965 in Ubon and continuing for 30 years prior to the onset and extending through defence service, would be significant to the causation of renal cell carcinoma.
Considering generalised anxiety disorder with alcohol dependence, Dr Moss noted that in 1968, Mr Bayly was documented as suffering from chronic anxiety. Dr Moss opined that the events in Ubon in 1965 would have caused the anxiety not withstanding the temporary anxiety from later marital separation. Dr Moss opined that in relation to gastro-oesophageal reflux disease, the Statement of Principles' factors of smoking, alcohol and raised intra-abdominal pressure/obesity are relevant in Mr Bayly's case.
Referring to peptic ulcer disease, Dr Moss opined that relevant to the development of this disease was Mr Bayly's smoking, possible Helicobactor-pylori infection and stressful circumstances. Dr Moss was uncertain as to the date of onset of peptic ulcer disease but concluded that the symptoms preceded the diagnosis for some time, with Mr Bayly having a history of abdominal pain and a Barium meal investigation. Dr Moss also thought that Mr Bayly was using non-steroidal drugs for a long period and that this could have led to peptic ulcer disease, as could the presence of generalised anxiety disorder.
In relation to gout, Dr Moss opined that this condition, in addition to osteoarthrosis of the knee and chondromalacia patellae, were also war-caused.
Dr Moss provided Medical Impairment Assessments (Exhibit A4) for a wide number of Mr Bayly's conditions.
Dr A S McLean, Consultant Physician and Director of Intensive Care/Coronary Care Unit, The Nepean Hospital, PenrithThe Tribunal had the benefit of four reports from Dr McLean dated 19 July 1988, 24 April 1989, 4 September 1991 and 23 October 1991 (Exhibit A5).
On 19 July 1988, Dr McLean reported that there was no evidence of ischaemic heart disease and Mr Bayly had a normal echocardiogram and exercise stress test. At that time, Mr Bayly was reporting chest pains. Dr McLean opined that work-related stress played an important part in the production of pain. In 1989, Dr McLean reiterated his view that work-related stress was significant in contributing to the production of Mr Bayly's pain and subsequently in controlling the pain.
In his report of 4 September 1991, Dr McLean described ongoing chest pain symptoms in addition to nausea, vomiting, constipation, flushing attacks, facial flushing, abdominal discomfort and generalised aches and pains. Dr McLean noted that the presence of carcinoid syndrome needed to be considered. In October 1991, Dr McLean reported that Mr Bayly had two gastric ulcers identified on a gastroscope performed on 8 October 1991, with evidence of healed duodenal ulcers.
Dr M Roman-Miller, PathologistFollowing histopathology, Dr Roman-Miller reported on 11 October 1995, that Mr Bayly had a clear cell tumour of the left kidney consistent with a renal cell carcinoma (Exhibit A6).
Dr D Currow, Director, Palliative Services, Wentworth Area Health ServiceThe Tribunal has been provided with five reports from Dr Currow, dated 22 January 1997, 29 January 1997 (x2), 9 April 1997 and 23 April 1997 (Exhibit A7). Dr Currow noted on 22 January 1997, that Mr Bayly has several chronic pain problems, most of which pre-dated nephrectomy in October 1995. Mr Bayly also was reported by Dr Currow to have arthritis, recurrent post-herpetic neuralgia and chronic back problems. Mr Bayly also had a problem with his wound after the nephrectomy and still had acute exacerbations of pain. In January 1997, Dr Currow was arranging on-going investigation of possible metastatic bone disease following Mr Bayly's fracturing of a rib when he sneezed. Dr Currow continued to review Mr Bayly and referred him to Dr R Sundaraj at the Chronic Pain Clinic at Nepean Hospital.
Dr R S Sundaraj, Pain Management Unit, Nepean HospitalThe Tribunal had the benefit of reports from Dr Sundaraj dated 19 February 1997, 10 April 1997, 16 May 1997 and 28 May 1997 (Exhibit A8).
Dr Sundaraj noted that Mr Bayly had a nephrectomy carried out in October 1995 and subsequently underwent an incisional hernia repair in June 1996 and October 1996. Dr Sundaraj undertook an intercostal nerve block and prescribed Physeptone as well as continuing Serapax and Panamax (an analgesic). A referral was made to a psychologist and physiotherapy was also arranged for Mr Bayly's back. Mr Bayly was later commenced on Clonazepan and later, Amitriptyline. With persisting pain, Mr Bayly was admitted to hospital and a trial undertaken of intrathecal morphine with a view to assessing Mr Bayly's suitability for "Patient Activated Reservoir" (PAR) Opioid delivery system.
Dr P Flynn, Cardiothoracic SurgeonThe Tribunal had two reports from Dr Flynn, dated 28 April 1997 and 8 May 1997 (Exhibit A9), as well as a report of 27 February 2001 (Exhibit A10).
Dr Flynn opined on 28 April 1997, that the chest pain experienced by Mr Bayly related to his fractured rib. An injection of intercostal nerves was recommended. Dr Flynn later opined that Mr Bayly was developing "a chronic chest wall syndrome". Dr Flynn noted that on 19 February 2001, he performed an endoscopy and found that the last three or four centimetres of oesophagus had a columnar lining rather than a stratified squamous lining. The columnar lining was similar to that in the stomach and is defined as Barrett's oesophagus. The cause of Barrett's oesophagus, Dr Flynn noted in Mr Bayly's case, is gastro-oesophageal reflux, which Mr Bayly has had for many years.
Associate Professor R Mattick, Clinical Psychologist, Director of Research, National Drug and Alcohol reseach centre, Faculty of Medicine, University of NSW.Associate Professor Mattic provided a report dated 31 August 2000 (Exhibit R1). He opined that Mr Bayly appears to have developed generalised anxiety disorder within a year of being exposed to stressors in Thailand. Mr Bayly developed alcohol abuse and dependence and in Associate Professor Mattick's opinion, met the Statements of Principles for Generalised Anxiety Disorder and
Psychoactive Substance Abuse. Associate Professor Mattic did not believe that Mr Bayly was feigning his emotional disturbance or his alcohol abuse.
Professor F EhrlichThe Tribunal had the benefit of a report from Professor Ehrlich dated 19 September 2000 (Exhibit R2). Professor Ehrlich had been asked for an opinion in relation to Mr Bayly's left knee problems in addition to his psychiatric and alcohol-related conditions.
Professor Ehrlich opined that Mr Bayly's main problem stems from his carcinoid syndrome, characterised by episodes of flushing, shortness of breath, sweating and diarrhoea. Professor Ehrlich noted no overt signs of anxiety disorder. The other important medical condition noted by Professor Ehrlich is Mr Bayly's renal tumour and incisional hernia with associated pain, possibly due to the fact that Mr Bayly had fractured his rib which had been removed, leaving Mr Bayly with nerve irritation by scar.
Professor Ehrlich opined that the Statements of Principles for Generalised Anxiety Disorder and Psychoactive Substance Abuse did not contain any factors which met Mr Bayly's circumstances.
In relation to osteoarthrosis of the left knee, Professor Ehrlich further opined that the Statement of Principles for osteoarthrosis does not contain any factors which fit Mr Bayly's circumstances. Professor Ehrlich noted that carcinoid tumours and renal cancers occur spontaneously with the cause of tumours unknown, apart from those where a chemical or physical carcinogen is identifiable. This is not the case with Mr Bayly, Professor Ehrlich concluded. Professor Ehrlich concluded that Mr Bayly has multiple illnesses in addition to personal and lifestyle problems. Professor Ehrlich stated that he was unable to identify a reasonable hypothesis showing a causal link between Mr Bayly's claimed conditions and service.
Professor J A Levi, Director, Department of Medical Oncology, Royal North Shore HospitalProfessor Levi provided a report to the Department of Veterans' Affairs dated 26 March 2001 (Exhibit R3). Professor Levi noted that Mr Bayly first presented to Dr R Coles in 1994 with symptoms suggestive of carcinoid syndrome. Following a variety of investigations, the only abnormality detected was an apparent malignancy of the kidney leading to a nephrectomy. The pathology of the resected tumour was that of a Grawitz carcinoma, but there was also a separate area of carcinoid tumour. Professor Levi noted from Dr Coles' report that the symptoms of carcinoid had worsened since the nephrectomy. The finding of carcinoid tumour within the kidney most likely represented a metastatic deposit and not the primary site of origin of Mr Bayly's carcinoid tumour.
In relation to the aetiology of carcinoid tumours and carcinoid syndrome, Professor Levi reported that the principle sites of origin include the small and large intestine, appendix, the lung and stomach with other sites occasionally being documented. There is no evidence that the kidney is a primary site of origin for carcinoid tumours. Professor Levi noted further that the only available evidence with regards to recognised risk factors are related to stomach carcinoids and it has been associated with previous diagnosis of pernicious anaemia, atrophic gastritis and Zollinger-Ellison syndrome. There is no evidence, Professor Levi reported, that demonstrated any association with cigarette smoking and in particular it has been documented that lung carcinoid tumours are not associated with cigarette smoking. Accordingly, Professor Levi concluded that it is appropriate to indicate that at this time there are very few recognised risk factors associated with carcinoid tumours, none of which are pertinent in Mr Bayly's case and in particular, there is no evidence that cigarette smoking is associated with the development of carcinoid tumours.
In relation to the aetiology of renal cell carcinoma, Professor Levi reported that it is recognised that cigarette smoking is an aetiological factor for the development of this type of carcinoma, with considerable epidemiological evidence supporting this. Further, it has been recently recognised that obesity is a risk factor for the development of renal cell carcinoma. Therefore, Mr Bayly has at least two risk factors, namely cigarette smoking and obesity as associated with the development of his renal cell carcinoma, Professor Levi concluded.
Dr R Coles, Specialist in Endocrinology and Reproductive MedicineThe Tribunal has two reports from Dr Coles dated 3 March 1998 (T21, p118) and 3 August 2001 (Exhibit R6).
In his earlier report, Dr Coles noted that Mr Bayly has had symptoms of carcinoid dating back over 30 years, including the time that he was in the RAAF. The exact aetiology of carcinoid and Grawitz tumour is unknown, Dr Coles reported.
Most recently on 3 August 2001, Dr Coles reported that he had believed the diagnosis of Mr Bayly's condition to be carcinoid but having considered the pathology report following the 1995 nephrectomy, this diagnosis included Grawitz tumour and carcinoid tumour. It appears from Dr Coles' report that Mr Bayly suffers from carcinoid tumour in addition to carcinoid syndrome. Dr Coles reconfirmed that the aetiology of carcinoid is unknown. There has not been any success in finding the primary tumour. The disease causes significant incapacity, including intermittent flushing, perspiration and uncomfortable feeling that can occur at any time and which can affect daily activities. While in his previous report Dr Coles had indicated the possible link between Grawitz tumour and smoking, Dr Coles stated that he has no knowledge of an association between carcinoid tumour and smoking. Dr Coles confirmed that Mr Bayly's primary concern has always been the symptoms he gets from carcinoid syndrome.
SUBMISSIONS
In dealing with the date of onset of peptic ulcer disease, Mr Vincent submitted that there could be three possible dates of onset being 1975, 1980 or 1991. In relation to the Service documents (pp 42/56), there are references to Mr Bayly having a Barium meal and having indigestion during periods in June 1975. On 28 May 1975, there was a further reference to symptoms of indigestion, burning in the retrosternal area, severe chest pain and a heavy bloated feeling. These symptoms occurred between 21 May 1975 and 28 May 1975, and possibly were symptoms of a peptic ulcer, Mr Vincent submitted. There is a further reference by Dr Watson, who concludes that there was an ulcer in 1980 and Dr McLean reports an ulcer in 1991. In any event, Mr Vincent submitted that the date of onset does not present any difficulty in terms of the application of factors relating to smoking and stressful circumstances of the relevant Statements of Principles, Instrument Number 9 of 1994 concerning Peptic Ulcer Disease. Mr Vincent submitted that there are many factors which are applicable to Mr Bayly's circumstances.
In relation to Factor 1(a), which requires smoking at least ten cigarettes per day at the time of clinical onset of peptic ulcer disease, Mr Vincent submitted that with an onset of 1975, there was certainly the circumstance that Mr Bayly was smoking as a war-caused habit at the time of the onset. Despite there being a wide variety of smoking histories, there was a tobacco consumption at least to the level of ten cigarettes per day and this was the case up until cessation of smoking in 1994. Whatever the date of onset might be, either 1975, 1980 or indeed the later date of 1991, the smoking factor could be met by Mr Bayly's circumstances.
Mr Vincent conceded that Mr Bayly's smoking history was extremely varied. There was however an incentive in the RAAF to play down smoking and drinking. Further, Mr Vincent postulated the general proposition that people are conservative about the reporting of their smoking and drinking habits.
While Mr Bayly smoked at age 17 years, stress on service intensified, particularly in Ubon. Mr Bayly has as an accepted condition generalised anxiety disorder with alcohol dependence. Mr Vincent submitted that Mr Bayly smoked because it helped him. Even if there were variations, there was still a war-caused smoking habit which helped to relieve the stress and tension and in fact, he was self-medicating through alcohol and tobacco consumption, Mr Vincent submitted.
Mr Vincent noted that Mr Godwin had submitted that the smoking histories were very inconsistent and that Mr Bayly's smoking habit was established well before his eligible periods of service, at least to the level at that time of 20 cigarettes per day. Mr Vincent also acknowledged there were inconsistencies between Mr Bayly's written statement concerning the daily orders discouraging smoking and drinking and Mr Bayly's later evidence at hearing that the daily orders had commenced no earlier than in 1972. Mr Vincent submitted that even though Mr Bayly was smoking prior to his operational service, the evidence is clearly there that stress on service increased the smoking and aggravated it so that it permanently increased to a very high level. This permanent increase was war-caused, Mr Vincent submitted. Referring to section 9 of the Act, Mr Vincent noted that once there was a permanent increase which could be attributed to service, then the smoking habit became a war-caused smoking habit. One should not compartmentalise the smoking history and this is indicated by the caselaw.
In relation to Factor 1(d) of the Statement of Principles concerning Peptic Ulcer Disease, this requires the administration of non-steroidal anti-inflammatory drugs such as Brufen or Aspirin not more than 14 days prior to the clinical onset of peptic ulcer.
Factor 1(e) refers to experiencing stressful circumstances for six months prior to the onset. The term "stressful circumstance" is defined as a "Stressful Event" which requires the occurrence of an incident in which the external stimuli would result in psychological stress and where there were subjective symptoms of increased stress. Mr Vincent noted that there were records of Mr Bayly suffering anxiety and depression and therefore this was the link to his experiencing a stressful event.
Mr Vincent submitted that Mr Bayly's circumstances clearly met all three factors but that the one relied upon by the Applicant is that related to Mr Bayly's smoking history. Mr Vincent contended that there were no facts to dispute the hypothesis of smoking to the level of 10 cigarettes per day prior to the clinical onset of peptic ulcer disease. Further, Mr Vincent submitted that there can be little doubt that Mr Bayly had a war-caused increase in his smoking habit, particularly as a result of service in Ubon. Accordingly, Mr Bayly's peptic ulcer disease should be found by the Tribunal to be war-caused, Mr Vincent submitted.
In relation to carcinoma of the kidney, the relevant Statements of Principles as agreed is Instrument Number 107 of 1996. Mr Vincent submitted that the relevant Factors are 5(a) and 5(c). The onset of carcinoma of the kidney is taken as 1995.
Factor 5(a) states:
"(a) smoking cigarettes where:
(i)at least 15 pack years were consumed before the clinical onset of adenocarcinoma of the kidney; and
(ii)smoking commenced at least 10 years before the clinical onset of adenocarcinoma of the kidney; and
(iii)where smoking has ceased, the clinical onset has occurred within 20 years of cessation; or
…"
Factor 5(c)states:
"(c)being obese for a period of at least three years, within the 10 years before the clinical onset of adenocarcinoma of the kidney; or
…"
Further, under paragraph 7, "Other Definitions"
" "being obese" means an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of "being obese" signed by the Chairman of the Authority on 16 August 1996, attracting ICD code 278.0.
The measurement used to define "being obese" is the Body Mass Index (BMI)
The BMI = W/H² and where
W is the person's weight in kilograms and
H is the person's height in metres."Being obese" is considered to be present when the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. "Being obese" develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of "being obese" it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater;
…"Mr Vincent submitted that Mr Bayly was obese at the relevant time as required by the factor. There must be a significant weight gain in the order of a 20 per cent increase on the baseline weight in combination with a BMI of 30 or greater. Mr Vincent submitted that in the early 1970s, Mr Bayly's weight was 90 kilograms which increased at the time of the onset of carcinoma of the kidneys to a weight of 106 kilograms. This weight increase is in the order of a 20 per cent weight gain on his base line, calculated at 108 kilograms. Mr Vincent referred the Tribunal to the words "in the order of". He contended that this phrase should take its ordinary meaning and provides the leeway in terms of a weight gain in the order of a 20 per cent increase on the base line from 90 kilograms up to 106 kilograms.
Mr Vincent submitted that Mr Bayly increased his alcohol consumption as a result of the stress in Ubon and also could not exercise because of his knee conditions which had been affected. All these factors led to a service-related weight gain.
In relation to the smoking factor for adenocarcinoma of the kidney, it requires a 15 pack year history and Mr Vincent submitted that Mr Bayly's smoking history was well in excess of that. With the cessation of smoking in 1994, that was within a year of the onset of cancer in 1995. Mr Vincent submitted that Mr Bayly had been smoking for a period of 33 years before the onset of renal cell carcinoma and even allowing for the variety of level of smoking, Mr Bayly still was able to meet Factor 5(a).
Even with the later problems in Malaysia in relation to Mr Bayly's son, it was still able to be firmly found that service caused Mr Bayly's anxiety condition and alcohol consumption, leading to the acceptance of generalised anxiety disorder with alcohol dependence. This history, as Mr Bayly stated in evidence, caused him to smoke more in an attempt to relieve his service-related stress and anxiety.
Again, Mr Vincent submitted that renal cell carcinoma should be accepted as a war-caused condition with effect from and including 20 August 1996, with the assessment of the condition being remitted.
In relation to carcinoid syndrome, Mr Vincent referred to Dr Coles' further report of 3 August 2001 and noted that Dr Coles states that the appropriate diagnosis is carcinoid syndrome and carcinoid tumour.
Mr Vincent referred to a definition of carcinoid and carcinoid syndrome in "Dorland's Illustrated Medical Dictionary", 28th Edition (1994, WB Saunders Company, Philadelphia, Pa) which provides the following definitions:
"carcinoid: a yellow circumscribed tumour arising from enterochromaffin cells, usually in the small intestine, appendix, stomach, or colon and less commonly in the bronchus…. Called also carcinoid tumour. [page 265]
carcinoid syndrome: a symptom complex associated with carcinoid tumours and characterised by attacks of severe cyanotic flushing of the skin lasting from minutes to days and by diarrhoeal watery stools, bronchoconstrictive attacks, sudden drops in blood pressure, oedema, and ascites. Symptoms are caused by secretion by the tumour of serotonin, prostaglandins, and other biologically active substances. …"
In relation to the aetiology of carcinoid syndrome and carcinoid tumour and whether they would be considered to be war-caused, Mr Vincent submitted that the Applicant relies on the opinion of Professor Levi, who had noted in his report of 26 March 2001, that current evidence identifies very few associated risk factors. Professor Levi had further reported that evidence has not demonstrated any association with cigarette smoking and in particular, it has been documented that lung carcinoid tumours are not associated with cigarette smoking. Accordingly, Professor Levi had concluded that it is appropriate to indicate that at this time of scientific research, there are very few recognised risk factors, none of which in his opinion were pertinent to Mr Bayly's case.
Mr Vincent noted that the applicable standard of proof for Mr Bayly's circumstances is that of the reasonable hypothesis. In this regard, Mr Vincent noted that a hypothesis is by its very nature conjectural. Mr Vincent referred to Repatriation Commission v Stares (1996) 66 FCR 594 at 601 where the Court concluded:
"By their saying that "the material points to some fact or facts" their Honours [the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569] were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. It is trite to observe that a hypothesis is not more than a supposition or conjectural explanation of an ultimate fact. As a Full Court of this Court pointed out in Repatriation Commission v Whetton (1991) 31 FCR 513 at 516:
"…In the Shorter Oxford English Dictionary (1980), the word is relevantly defined as:
"a supposition or conjecture put forth to account for known facts;
esp [ie especially] in the sciences, a provisional supposition which accounts for known facts, and serves as a starting-point for further investigation by which is may be proved or disproved.…"
Mr Vincent submitted that the reasonable hypothesis that Mr Bayly's smoking caused his carcinoid syndrome and tumour is shown by the fact that scientists have already begun to undertake further investigation by which it may be proved or disproved. Mr Vincent contended that there has already been scientific study undertaken seeking to establish whether or not smoking leads to the contraction of carcinoid tumour at one site, that is, the lung. Mr Vincent conceded that as yet there have been no studies completed concerning a connection between smoking and the more common sites of carcinoid tumour such as the small intestine, the appendix, the stomach, the colon and bronchus.
Mr Vincent did not accept the Respondent's submission that as the aetiology of the carcinoid syndrome and tumour is unknown, then carcinoid syndrome cannot be war-caused. Mr Vincent noted that Dr Coles did not address the possible, but unproven causes for Mr Bayly's carcinoid syndrome and tumour. Dr Coles' is not offering any opinion as to known or possible risk factors for developing carcinoid syndrome and tumour. He was not asked to report as to whether any mechanisms could be hypothesised and it is clear, in Mr Vincent's submission, that Dr Coles' statement as to "unknown" aetiology should not be read as a general statement because Professor Levi reports a number of risk factors have already been identified by science. In these circumstances, Mr Vincent submitted that carcinoid syndrome and carcinoid tumour should be found by the Tribunal to be war-caused.
Mr Godwin, for the Respondent, submitted that in relation to Mr Bayly's smoking history, there were many inconsistencies. There is evidence however, that Mr Bayly's smoking habit was established before his operational service to the level of 70 cigarettes per day from 1957 to 1965. There was also inconsistency between Mr Bayly's written statement and his oral evidence as to when he became aware of the daily orders which discouraged men from smoking or drinking. His oral evidence is that he only became aware of those daily orders in 1972. Some of Mr Bayly's smoking histories show smoking up to 50 or 60 cigarettes a day, which indicates an increase and this is taken from both eligible and non-eligible service periods, but other histories indicate a reduction.
Mr Godwin conceded that there is documentary as well as oral evidence, however, that Mr Bayly increased his smoking in response to stress on operational service. Given that Mr Bayly has had generalised anxiety disorder with alcohol dependence accepted as a war-caused condition, then it could be argued, Mr Godwin noted, that an increase in Mr Bayly's smoking was an aggravation which was service-related.
In dealing specifically with peptic ulcer disease, Mr Godwin submitted that it was difficult to pinpoint the clinical onset. Dr McLean's 1991 report noted a gastroscopy on 8 October 1991 indicating healed duodenal ulcers and Mr Bayly's treatment regime would indicate an attempt to prevent recurrence. Mr Bayly's evidence was of an onset in 1975 and there are records reporting indigestion and problems, for example, on 25 September 1974 (p77 of the Service documents).
In relation to the Statement of Principles concerning Peptic Ulcer Disease, Factor 1(b) requires smoking at least 10 cigarettes per day at the time of the clinical onset of Peptic Ulcer disease. In relation to Factor 1(c), which requires infection with Helicobactor pylori prior to the onset, there is no objective evidence of such an infection, Mr Godwin submitted.
In relation to Factor 1(d) which requires administration to the person of a non- steroidal anti-inflammatory drug not more than 14 days prior to the clinical onset of peptic ulcer disease, Mr Godwin noted that Mr Bayly had been taking Brufen until 1980 and that this could be related to the development of the condition at a later stage.
In relation to the Factor 1(e) concerning stressful circumstances, Mr Godwin noted that there was a "technical problem" with the definition. Mr Godwin did not wish to make any further submissions on that particular matter.
Mr Godwin submitted that in relation to renal cell carcinoma, the clinical onset was 1985. Considering the obesity factor in the relevant Statement of Principles, Mr Godwin submitted that the Tribunal's attention should relate to the ten years prior to that. Mr Godwin noted that obesity was certainly present in 1985. Mr Godwin provided a chart detailing weight/height with a diagrammatic presentation of the BMI of 30 and the percentage of weight gain leading to obesity for a particular height and weight. Mr Godwin calculated for Mr Bayly that at a height of 5 foot 11 inches or 1.805 metres, he would be obese as defined, at 97.74 kilograms (Exhibit R5). Thus, Mr Bayly was obese in the ten years before 1995, but the question had to be asked whether this was this service-related. Further, there has to be a weight increase in the order of 20 per cent on the base line weight. Mr Godwin noted that the words in the Statement of Principles gave the Tribunal "some indication" of the weight gain and that it was "close to the mark". Specifically, Mr Godwin noted Mr Bayly's base line weight on 23 November 1973 (p53) was 90 kilograms. The maximum weight recorded in 1976 is 106 kilograms and for a 20 per cent increase in weight, it would require a weight of 108 kilograms. Thus, this was not a weight gain of 20 per cent but slightly less. The weight gain would not meet the RMA's "Statement On Being Obese" but could meet the Statement of Principles' obesity factor and its associated definition. A finding on this issue also depended on the interpretation of the words "in the order of", Mr Godwin submitted.
In relation to the claimed condition of carcinoid, Mr Godwin submitted that based on Dr Coles' report, the Respondent is satisfied that Mr Bayly suffers from carcinoid tumour of unknown primary site in addition to carcinoid syndrome. Mr Godwin noted that the Applicant relies on the opinion of General Practitioner, Dr Moss' hypothesis that carcinoid syndrome related to smoking and aircraft fuels. Mr Godwin further noted that Dr Coles in his earlier report of 3 March 1998, hypothesised that carcinogens from cigarette smoke excreted via the kidney could be a risk factor for carcinoid syndrome and Grawitz' tumour. However, Professor Levi on 26 March 2000 opined that the evidence is not demonstrated as linking cigarette smoking and carcinoid syndrome and tumour. In particular, it has been documented that lung carcinoid tumours are not associated with cigarette smoking. Further, Professor Levi noted that there are few recognised risk factors associated with carcinoid tumour none of which are relevant to Mr Bayly's case. Professor Levi opined that there is no evidence, therefore, that cigarette smoking is associated with the development of carcinoid tumours.
In his later report of 3 August 2001, Dr Coles noted that the aetiology of the disease is unknown and that he has no knowledge that cigarette smoking could be associated with carcinoids.
Referring to Mr Vincent's submission that scientists are undertaking studies, not yet completed, aimed at establishing whether smoking leads to the contraction of carcinoid tumour, Mr Godwin submitted that there is no evidence that this is the case. In this regard, Mr Godwin postulated that the research into aetiology of carcinoid syndrome canvasses all the possibilities. Whether people smoke is simply one variable. This is not to say, Mr Godwin submitted, that anyone is positively looking for smoking for a smoking-carcinoid connection with that hypothesis in mind. The evidence that does exist at this particular time is that cigarette smoking is not associated with carcinoid in the lung. There is no specialist opinion which supports Mr Vincents' hypothesis, Mr Godwin submitted. Indeed, Professor Levi canvassed the possible risk factors which might provide the basis for a hypothesis but could find no factors about which one could form an hypothesis which would apply to Mr Bayly's circumstances. Mr Godwin submitted that Mr Vincent is inferring an hypothesis by speculating that there might be current research based on a smoking-carcinoid hypothesis. The evidence for this is lacking, Mr Godwin contended.
Mr Godwin referred the Tribunal to Repatriation Commission v Bey (1997) 79 FCR 364 at page 364 the Full Court concluded:
"…While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker. …"
Nicholson J in that decision noted that for a reasonable hypothesis to arise,
"…what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required…"
Mr Godwin contended that the evidence in this case points away from any connection between smoking and carcinoid tumour. The raised facts consist of the fact that Mr Bayly smoked and that he suffers from carcinoid tumour and carcinoid syndrome. There is no medical practitioner with appropriate expertise giving an opinion that carcinoid tumour or syndrome might be related to smoking. While Dr Moss does hypothesise on such a connection, he does not have the appropriate expertise. Professor Levi on the other hand states that there is no evidence that smoking is a risk factor and Dr Coles states that he has no knowledge that smoking can be associated with carcinoid tumour. In such circumstances, Mr Godwin submitted that there is not reasonable hypothesis raised linking carcinoid tumour and syndrome to any of Mr Bayly's circumstances. Therefore the condition cannot be considered to be service-related.
Mr Godwin concluded that the decision under review should be affirmed in relation to renal cell carcinoma, peptic ulcer disease, carcinoid syndrome and carcinoid tumour.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, legislation and case law.
The Tribunal considered that Mr Bayly provided truthful evidence to the best of his ability.
At the commencement of the Hearing, Mr Godwin on behalf of the Respondent, conceded that a number of Mr Bayly's claimed conditions were war-caused. The Tribunal considered the relevant Statements of Principles and the available evidence and concluded that the concession was properly given. In this regard, the Tribunal decides that the following conditions are war-caused and Disability Pension should be paid from and including 20 August 1996 at the rate of 100 per cent of the General Rate. The conditions which are found to be war-caused are:
Generalised anxiety disorder with alcohol dependence
Hypertension
Gasto-oesophageal reflux disease
Gout of the left knee
Osteo-arthritis of the left knee
Relocation of the patella ligament of the left knee
Removal of the left knee cap
Noting the medical impairment assessments of Dr Moss and other Doctors, the Tribunal considers that the Respondent's concession of an assessment of 100 per cent of the General Rate is properly given and that thus Disability Pension should be payable at this rate from and including 20 August 1996.
The Tribunal issued an interim decision on these matters on 1 November 2001.
Peptic Ulcer DiseaseThe relevant Statement of Principles is Instrument Number 9 of 1994 as amended by Instrument Number 217 of 1995. The Tribunal notes that the most recent Statement of Principles, Instrument Number 21 of 1999 has the identical smoking factor requiring smoking at least 10 cigarettes per day at the time of the clinical onset of Peptic Ulcer Disease.
The Tribunal has had some difficulty in determining the date of onset of Peptic Ulcer Disease. Mr Bayly believes that 1975 is the date of onset. In 1980, a consultation with Dr Watson indicates an onset because of the test that he undertook. Certainly in 1991, Dr McLean reports ulcers.
There are two other possible factors which may be relevant namely the administration of non-steroidal anti-inflammatory drugs such as Brufen and secondly, experiencing stressful circumstances for at least six months immediately preceding clinical onset.
Considering Mr Bayly's smoking history, the hypothesis put is that Mr Bayly's smoking permanently increased because of his war-service particularly in Ubon, and, that his smoking was at a level higher than 10 cigarettes per day either in 1975, 1980 or 1991. The general hypothesis raised is not fanciful and certainly the material available to the Tribunal meets the requirements of Factor 1(b) of the Statement of Principles. Thus a reasonable hypothesis is considered by the Tribunal to be raised pursuant to subsection 120(3) of the Act. Turning to subsection 120(1) of the Act, the Tribunal must determine whether or not it can accept sufficient of the facts as are necessary to support the raised hypothesis.
It is clear that Mr Bayly smoked cigarettes prior to his eligible war-service. The evidence is that Mr Bayly's smoking increased on service in excess of 40 cigarettes per day and continued to increase in Thailand and later in Malaysia where Mr Bayly experienced difficulties with his son. In Ubon, Mr Bayly was distressed, cigarettes were readily and cheaply available and his smoking consumption increased. The Tribunal notes that Mr Bayly has had generalised anxiety disorder with alcohol dependence accepted by the Commission as a war-caused condition. The acceptance of these conditions is linked to his service in Thailand. Thus, there is support for the evidence that Mr Bayly was distressed and that this is consistent with his reported increase in tobacco consumption.
The Tribunal notes that some of the documents completed by Mr Bayly indicate less quantities of cigarette consumption than given in oral evidence. The Tribunal is satisfied with Mr Bayly's explanation that he under-reported his cigarette consumption. The Tribunal also notes that there may have been a further increase in cigarette consumption in non-operational or non-defence service. The overall evidence is however that smoking increased permanently as a result of Mr Bayly's operational service and later defence service. It is the Tribunal's view and finding that there was a permanent increase or aggravation of Mr Bayly's smoking consumption related directly to his service.
The Tribunal can find no facts to disprove beyond reasonable doubt that Mr Bayly had a war-caused smoking habit to the level of at least 40 cigarettes per day from 1965 which increased at some points up to 80 cigarettes per day. In such circumstances, having considered all the material before it and for the reasons expressed above, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Bayly's peptic ulcer disease was war-caused.
The Tribunal does not make any firm findings in relation to the hypothesis linking the administration of anti-inflammatory non-steroidal drugs or in relation to Mr Bayly experiencing stressful circumstances for at least six months immediately preceding the clinical onset of peptic ulcer disease. The inability to nominate a precise date of onset of peptic ulcer disease makes the application of Factors 1(d) and 1(e) problematic. This difficulty in pinpointing onset does not preclude the application of Factor 1(b) of the Statements of Principles concerning Peptic Ulcer Disease and smoking, as the Tribunal has found that clearly from 1965 until 1994, Mr Bayly had a war-caused smoking habit.
Renal Cell CarcinomaThe Tribunal finds that the clinical onset of renal cell carcinoma is 1995. The relevant Statement of Principles, Instrument Number 107 of 1996, holds two possible factors relevant to Mr Bayly's circumstances. Firstly, concerning smoking, Factor 5(a) requires that there must be at least 15 pack years of cigarette consumption before the clinical onset of the carcinoma and where smoking has commenced 10 years before the onset, that is in 1985. Further, where smoking has ceased, the clinical onset must occur within 20 years of cessation of smoking.
The other factor relevant is Factor 5(c), that of Mr Bayly being required to be obese for a period of at least three years within the ten years before the clinical onset of renal cell carcinoma.
The Tribunal has already accepted that Mr Bayly has a war-related smoking habit and that smoking permanently increased to the level of at least 40 cigarettes from 1965 in Thailand and increased further during periods of defence service. The material also indicates that Mr Bayly ceased smoking in 1994. Thus, on the available material, Mr Bayly has in excess of 15 pack years of cigarette smoking occurring and continuing at least ten years before the onset of renal carcinoma in 1995. Thus, on the available material, Factor 5(a) is met and a reasonable hypothesis raised pursuant to subsection 120(3) of the Act.
Turning to subsection 120(1) of the Act, the Tribunal has carefully considered all the material and can find no facts which would disprove this reasonable hypothesis beyond reasonable doubt. Accordingly, the Tribunal is not satisfied beyond reasonable doubt pursuant to subsection 120(1) of the Act, that there is no sufficient ground for finding that Mr Bayly's renal cell carcinoma was war-caused.
The Tribunal also considers that there is an arguable case for Factor 5(c) of the relevant Statements of Principles. Certainly, on the material, Mr Bayly was obese for at least three years within 10 years before the onset of the renal cell carcinoma in 1995. Mr Bayly's baseline weight before Ubon was approximately 90 kilograms and after it was 106 kilograms. Mr Bayly needs to have a weight in the order of 108 kilograms for him to satisfy a 20 per cent increase in weight from his base line of 90 kilograms. In terms of the Statements of Principles definition, requiring him to have an increase in weight in the order of 20 per cent and a BMI of 30, it is arguable that the reasonable hypothesis is raised and not disputed by the facts. The Tribunal has found however that there is a stronger link between Mr Bayly's service and his smoking, leading on to renal cell carcinoma.
Carcinoid syndromeFollowing the most recent report by Dr Coles on 3 August 2001, the Tribunal is reasonably satisfied that despite some confusion in the documents as to whether or not Mr Bayly had carcinoid syndrome and/or a carcinoid tumour, Mr Bayly does suffer from carcinoid tumour of an unknown primary site and also carcinoid syndrome. The Tribunal therefore varies the diagnosis of carcinoid syndrome to include carcinoid tumour. This diagnosis of the condition has been conceded by the Respondent in written submissions received by the Tribunal on 18 September 2001.
There is no Statement of Principles for carcinoid tumour or carcinoid syndrome. In such circumstances, the approach to be adopted was set down in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 and often repeated in more recent cases.
Mr Vincent's submission is that Mr Bayly's smoking is a risk factor for carcinoid syndrome and tumour. Dr Moss, General Practitioner, speculates that as smoking is a risk factor for other cancers, so too might it be a risk factor for carcinoid syndrome and tumour. Mr Vincent referred the Tribunal to Professor Levi's opinion that current evidence has identified few risk factors for carcinoid syndrome and tumour. Further, Professor Levi notes that evidence has not demonstrated an association with cigarette smoking. Specifically, lung carcinoid tumours have not been associated with cigarette smoking. Professor Levi concluded there are very few recognised risk factors with carcinoid tumours, none of which he could see as being pertinent to Mr Bayly's case.
Mr Vincent submitted that scientists are investigating whether or not smoking leads to carcinoid tumour or syndrome. The Tribunal can find no evidence in the material indicating that this specific line is being followed, apart from there being investigation of risk factors generally which might lead to carcinoid, one of which may be smoking.
On the Tribunal's understanding of the material, Professor Levi, an expert in this field could find no risk factors in Mr Bayly's circumstances linking to causation for carcinoid syndrome and tumour. Further, Endocrinologist, Dr Coles, also could not find any link between smoking and carcinoid syndrome or tumour. It is only Dr Moss, General Practitioner who speculates that smoking could be linked with carcinoid syndrome and tumour simply because smoking is a risk factor for other types of cancer.
At this stage of scientific research and understanding of carcinoid syndrome and tumour, the Tribunal considers that Dr Moss's opinion is speculation and not indicative of a reasonable hypothesis put forward by a medical practitioner or a scientist eminent in the relevant field of knowledge. At this stage, the Tribunal considers that on all the evidence, Dr Moss' opinion is not tenable and too remote. Furthermore, the Tribunal does not consider that Mr Vincent's submissions arising out of Repatriation Commission v Stares (supra) assist in this matter, as it is this Tribunal's view that a reasonable hypothesis cannot be raised. The hypothesis submitted by Mr Vincent is considered by the Tribunal to be speculative given the state of scientific knowledge and particularly given the expert opinions of Professor Levi and Dr Coles.
In all the circumstances in relation to carcinoid syndrome and carcinoid tumour, taking into account the state of knowledge and expert opinion at this time, the Tribunal is of the view that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act. Therefore, in terms of subsection 120(1) of the Act, there is no sufficient ground for determining that Mr Bayly's carcinoid syndrome and carcinoid tumour are war-caused.
Accordingly, for all the reasons set out above and noting the Tribunal's interim decision of 1 November 2001, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act (1975), to:
(1) Set aside the decision under review relating to peptic ulcer disease and renal cell carcinoma and substitute its decision that these conditions are war-caused. Disability Pension should be paid from and including 20 August 1996. Mr Bayly is already in receipt of Disability Pension at 100 per cent of the General Rate, but the matter of impairment ratings for all of Mr Bayly's conditions should be remitted to the Commission.
(2) Vary the diagnosis of carcinoid syndrome to include carcinoid tumour and affirm the Commission's decision as varied, in relation to carcinoid syndrome and carcinoid tumour.
I certify that the 134 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr P D Lynch, Member.
Signed: .....................................................................................
Stella Vaughan, AssociateDate of Hearing 27 April 2001
Date of Final Submissions 18 September 2001
Date of Decision 29 November 2001
Counsel for the Applicant Mr M Vincent of CounselSolicitor for the Applicant Mr B Williams, Vardanega Roberts, Solicitors
Representative for the Mr P Godwin, Departmental Advocate
Respondent
0
6
0