Benjamin Ford and Military Rehabilitation and Compensation Commission
[2014] AATA 858
•20 November 2014
[2014] AATA 858
Division Veterans' Appeals Division File Number
2013/5919
Re
Benjamin Ford
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 20 November 2014 Place Perth The decision under review is varied by amending the description of the injury sustained by the applicant to “right pontine cavernous angioma (sustained on 18 September 2011)”, but that decision is otherwise affirmed.
........................[sgd]............................................
S D Hotop
Deputy President
CATCHWORDS
MILITARY COMPENSATION – applicant rendered warlike service/non-warlike service – applicant claimed for acceptance of liability for cavernous angioma – respondent refused to accept liability for “intracerebral haemorrhage (date of onset 20 September 2011)” – applicant suffered right pontine cavernous angioma on 18 September 2011 (injury) – Statement of Principles does not uphold hypothesis connecting injury with circumstances of applicant's service – material before Tribunal does not raise reasonable hypothesis connecting injury with circumstances of applicant's service – Tribunal satisfied that no sufficient ground for determining that injury a service injury – injury not a service injury – decision under review varied
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth), s 5, s 6, s 23, s 27, s 335, s 338 and s 341
Statement of Principles concerning cerebrovascular accident No 51 of 2006
Statement of Principles concerning cerebrovascular accident No 123 of 2011Statement of Principles concerning hypertension No 63 of 2013
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
Deputy President S D Hotop
20 November 2014
Introduction
Benjamin Ford (“the applicant”) has applied to the Tribunal for review of a “reviewable determination” of the Veterans’ Review Board (“VRB”), dated 18 October 2013. That reviewable determination affirmed an “original determination” of a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”), dated 18 September 2012, whereby it was determined that the respondent is not liable under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) for “intracerebral haemorrhage (date of onset 20 September 2011)”.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1A–T1B, T1–T46, pp 1A–1D, 1–134) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibit R1);
·Supplementary Documents (ST1–ST67, pp 1–362) filed by the respondent on 29 August 2014 (Exhibit R2);
·Statement of the applicant, dated 22 September 2014; and
·the oral evidence of the applicant.
The Factual Background
The applicant, who is 32 years of age, enlisted in the Royal Australian Air Force “RAAF”) on 29 October 2004 and was, at all material times, a serving member of the RAAF.
In the course of his RAAF service the applicant rendered “peacetime service” and “warlike service”/“non-warlike service”, within the meaning of s 6(1) of the MRC Act, in the following periods:
·29 October 2004 – 2 December 2008 – peacetime service;
·13 December 2008 – 8 April 2009 – warlike service/non-warlike service;
·9 April 2009 – 16 February 2010 – peacetime service;
·17 February 2010 – 2 June 2010 – warlike service/non-warlike service;
·3 June 2010 – 17 August 2011 – peacetime service;
·18 August 2011 – 20 September 2011 – warlike service/non-warlike service;
·21 September 2011 until discharge – peacetime service.
In the applicant’s RAAF Entry Medical Examination Record, dated 22 January 2004, it is indicated that (inter alia) his blood pressure (sitting) was “130/76” and that his cardiovascular system was “abnormal”, and that a medical report from his cardiologist was required. (Exhibit R2, ST4, pp 188, 191)
A report of Dr Kosta Nikoletatos, Cardiologist, dated 27 February 2004, states as follows:
“ Thank you for referring this patient for a cardiological opinion about his partial right bundle branch block on ECG.
ECG from the 29 January 2004 was reported as showing sinus rhythm with sinus arrhythmia, possible left atrial enlargement, incomplete right bundle branch block and borderline ECG. ECG today shows sinus rhythm 96 bpm with a partial right bundle branch block.
This problem began when he was being assessed by HSA as part of a pre-military medical. He admits to being nervous during the examination and apparently his heart rate was fast and his BP raised. Both of these are natural responses to anxiety. He was subsequently referred for an ECG and this was perform at JHH and reported as above.
There is no cardiac history or symptoms. He has no co-morbidities, no previous medical illnesses or operations and he is on no regular medications.
Examination reveals weight 78 kg, pulse 98 bpm and regular with BP 130/80 mmHg. His venous pressure is normal and apex beat is not displaced. Heart sounds are dual with no added sounds or murmurs. Chest is clear to auscultation and there is no peripheral oedema.
My diagnosis is normal cardiovascular examination with a partial right bundle branch block on ECG. This is within normal limits for his age. Tachycardia and hypertension are normal responses to anxiety and I see this as no contraindication to joining the military services. I have arranged an echocardiogram to exclude structural heart disease but I anticipate this will be normal.” (Exhibit R2, ST 3)
In September 2004 the applicant was medically assessed as “Class I – fit for aircrew”. (Exhibit R2, ST4, pp 188, 190)
The following summary of background facts appears in the applicant’s’ Statement of Facts, Issues and Contentions, filed on 22 September 2014, and is not disputed by the respondent:
“6. The Applicant attended Officer Training School at RAAF Point Cook (VIC) before completing an intensive Pilot Training Course of nearly two years (at Tamworth and Perth).
7.The Applicant received his Pilot wings in April 2007.
8.The Applicant was deployed overseas almost immediately thereafter.
9.Between 13/12/2008 and 8/04/2009 the Applicant was deployed to Iraq, Afghanistan, Qatar, Kuwait, and UAE.
10.Between 17/2/2010 and 2/06/2010 the Applicant was deployed to Iraq, Afghanistan, Qatar, Kuwait and UAE.
11.Between 24/05/2011 and 20/09/2011 the Applicant was deployed to Iraq, Afghanistan, Qatar, Kuwait and UAE.
12.The Applicant flew over 100 missions in Iraq and Afghanistan and numerable [sic] deployments out of combat zones (eg Solomon Islands, Timor, etc).
13.Missions flown by the Applicant included:
(i) flying with the Prime Minister and senior ministers, as well as foreign ministers;
(ii) responsibility for transporting a ‘60 Minutes’ crew;
(iii) complex night landing on dirt strips in Afghanistan with night vision goggles;
(iv) long days in extreme heat conditions;
(v) operating aircraft defensive systems;
(vi) command of the multimillion dollar aircraft and up to 80 personnel.
14.During the Applicant’s final deployment he performed the additional role of detachment Air Safety Officer.
15.During the Applicant’s final deployment he was acting as Captain for the first time.”
The applicant’s service medical records indicate that, on 17 September 2011, he attended a RAAF health facility for a post-deployment (return to Australia) medical examination and complained of a sore throat and headache, and his blood pressure was recorded as “141/87” and his pulse as “94”. It was recorded that the applicant’s headache had been “relieved by ibuprofen” and that he now “feels well other than throat”. It was also recorded that a nurse had observed that his blood pressure was “144/75” and his heart rate was “90” but that, on subsequent examination by a medical officer, his blood pressure was “130/70” and his heart rate was “84”. (Exhibit R2, ST1, pp 173, 176)
The applicant’s abovementioned Statement of Facts, Issues and Contentions goes on to recite the following background facts (which are not disputed by the respondent):
“19. On 18 September 2011 the Applicant was scheduled to fly from Minhad to Kandahar to Kabul to Kandahar to Kabul which involved approximately 8 hours of actual flying within a 14 hour work day.
20.After more than 10 hours into the day the Applicant had taken off on the last leg of the day when he experienced a sudden, sharp headache and feeling of nausea.
21.The Applicant’s condition became worse and after some ten minutes he left the Pilot seat in order to throw up.
22.The Applicant felt very ill, and could not physically return to the seat for about ten minutes.
23.The Applicant asked a crewmember to call for an ambulance to meet the aircraft on arrival at the airport.
24.The Applicant was transported to Kandahar military hospital immediately after landing, where he received medical care and neurological testing.
25.The Applicant was later medivac’d to Bagram (Northern Afghanistan) and then to Germany for specialist treatment.
26.The Applicant is diagnosed to have suffered ‘a right pontine cavernous haemangioma with associated venous anomaly’.”
The applicant lodged with the Department of Veterans’’ Affairs a completed Claim for Liability form, dated 5 June 2012, whereby he made a claim for acceptance of liability under the MRC Act for “cavernous angioma”. He also lodged a completed Injury or Disease Details Sheet, dated 6 June 2012, in which he indicated that:
·he believed that his cavernous angioma condition was caused by “the associated stress of three high tempo operational deployments over a four year period”;
·he first noticed signs or symptoms of that condition, namely, “onset of severe headache when flying on operations in Afghanistan”, in September 2011;
·he first received medical treatment for that condition on 18 September 2011.
In that document Dr J Stephenson, of RAAF Base Hospital, Richmond, described the diagnosis of the applicant’s claimed condition as “pontine cavernous malformation” and indicated that the applicant had first consulted him for that condition on 18 September 2011. (T1)
On 18 September 2012 a delegate of the respondent made a determination refusing to accept liability under s 23(1) of the MRC Act for “intracerebral haemorrhage (date of onset 20 September 2011)”. (T39)
On 18 October 2013 the VRB affirmed the abovementioned determination of 18 September 2012. (T46)
On 19 November 2013 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 18 October 2013 (being a “reviewable determination” as defined in s 345(1) of the MRC Act). (T1A)
The Applicant’s Evidence
The applicant tendered in evidence his statement, dated 22 September 2014, and he confirmed that its contents are true and correct. That statement is as follows:
“ …
1.I was born in Darwin, Northern Territory on … July 1982.
2.I lived with my parents in Darwin until I was six, when we moved to Indonesia where we lived for 2 years.
3.After returning to Australia we lived on a farm near Clarence Town, which is situated 1 hour north of Newcastle in New South Wales.
4.I attended Seaham primary school and Dungog high school, graduating in 2000.
5.After graduating from high school I attended Newcastle University and completed a Bachelor of Science (Aviation) at Newcastle University prior to joining the Air Force.
6.I had been interested in being an Air Force Pilot since I was a very young boy of five years.
7.My first home was under the flight path at Darwin, and the country farm where I spent many of my childhood years very close to Williamtown Air Force base.
8. I joined the RAAF on 29 October 2004.
9.I joined the RAAF in order to realise my life long goal of becoming a Pilot.
10.I liked the idea of combining an exciting occupation with travel, professional development and helping others on relief and humanitarian missions in their greatest time of need.
11.Prior to joining the RAAF I had lived a very healthy, active lifestyle prior and I had not had any significant issues with my blood pressure.
12.On one occasion when I was being medically examined my blood pressure reading was high. ‘White coat syndrome’ was mentioned in the medical report as a potential reason for the higher reading.
13.On subsequent medical visits if my blood pressure was high I might have mentioned it.
14.As a pilot it was in my best interest to maintain a ‘normal’ blood pressure reading, otherwise I would face the risk of losing my Pilot medical rating (and therefore my Pilot licence).
15.White coat syndrome has never been investigated or diagnosed, and I do not believe that I suffer from the syndrome.
16.My understanding of white coat syndrome is that when a blood pressure reading is taken in a medical setting, if the patient suffers nervousness and anxiety caused by the medical environment then the anxiety suffered by the patient causes the blood pressure reading to increase.
17.I do not believe that I suffered from white coat syndrome, because my blood pressure has only ever been recorded as high whilst I was in the RAAF.
18.I have donated blood numerous times with the Red Cross – which I could only do when not in RAAF deployment cycles – and my blood pressure reading has consistently been recorded as normal.
19.Since leaving the RAAF have been in the normal range [sic].
20.Prior to joining the RAAF I did not have any issues with stress or anxiety.
21.When I joined the RAAF I attended Officer Training School at RAAF Point Cook (VIC).
22.I then completed an intensive and stressful Pilot Training Course of nearly two years (at Tamworth and Perth).
23.It is my understanding that the stressors associated with the Pilot Training Course are universally recognized and accepted.
24. The established flight training scheme has a reputation for placing students in a 'sink or swim' situation with considerable pressure to perform and limited support for students with problems.
25.The philosophy involved constant progress tests with pass/fail targets.
26.I generally found my performance deteriorated under the pressure of the test.
27.The information content is extremely high and the learning rate is described as being exponential.
28.The RAAF’s own aviation medical department recognizes the physical and psychological risks associated with the operation of aircraft:
‘It submitted that the RAAF School of Aviation Medicine has observed negative physical and psychological impacts on aircrew such as: stress, fatigue, anxiety, depression, unknown fear and disruption to personal relationships. Such impacts can, and do, affect flight safety, mission achievement and the physical and mental health of ADF aircrew. The ADF also considered that the intensity and persistence of operational deployments is compounded by the environment in which aircrew perform their duties: that is, confined spaces, wearing full protective equipment, with limited flexibility and mobility and increased mission durations across all aircraft types’. (See Attachment ‘A’)
29.I felt that I coped with the aspects of all my training in a similar way to my course mates.
30.Although it was highly stressful I did not have any noted stress related medical issues.
31.During training every aspect of every flight is scored and thoroughly debriefed and you must successfully complete all training modules over a two year period by meeting strict criteria (eg no more than three total ‘fails’ otherwise you are removed from course (and military) and lose your job.
32.I was certainly relieved when the training was over and would certainly not want to go through all the associated stress again.
33.The risk of ‘failure’ is very real – well over half the course gets booted out.
34.The Defence Jobs website alludes to this – ‘a sense of humour will also help you get through the intense training and critique that is involved along the way’.
35.The related stress negatively affected my ability to perform to my best on Pilots’ course. The stress was much higher and was sustained, which led to a decrease in my performance, as opposed to a lower stress level that would have improved my performance.
36.I felt compelled to put in a large amount of effort in order to pass.
37.The heavy workload meant a lot of long hours (especially on the weekends) so my personal life was certainly affected.
38.I am confident that my course mates would report similar stress levels.
39.I effectively gave up two years of social life while training.
40.My fitness levels dropped as I became snowed under with work, and my alcohol intake increased substantially during this course as a means of coping with the stress and workload.
41.I was anxious about my ability to pass the Pilot Training Course without failing, and make my childhood dream a reality in the one shot I was given to do my Pilot training in the RAAF.
42.I was consistently worried, nervous and uneasy about the Pilot Training Course and its uncertain outcome.
43.In terms of my performance, I passed all aspects of training (where a significant number of trainees failed).
44.I was awarded my Pilot wings in April 2007 and began my C130J Hercules in Sydney immediately afterwards.
45.I began deployments overseas almost immediately after that.
46.The stressful aspects of deployments are separate and different from those in training.
47.I was certainly very anxious deploying to active warzones multiple times with a very real air and ground threat.
48.I felt anxious after listening to some of our Intelligence briefs (received daily prior to flying) in which the very real air and ground threat was continually drilled into us by way of incident pictures and occurrence reports of serious combat-related incidents that had occurred in the immediate vicinity of our flying operations.
49.I felt that every mission could potentially be my last.
50.The threat level was briefed to us but it was never discussed in depth – it was assumed to be what you signed up for as a military pilot and ‘part of the job’.
51.It was certainly more tense than going to the doctor for a medical check – in fact, these two are so much different to each other that no similarity can be made.
52. Between 13/12/2008 and 8/04/2009 I was deployed to Iraq, Afghanistan, Qatar, Kuwait, and UAE.
53.Between 17/2/2010 and 2/06/2010 I was deployed to Iraq, Afghanistan, Qatar, Kuwait and UAE.
54.Between 24/05/2011 and 20/09/2011 I was deployed to Iraq, Afghanistan, Qatar, Kuwait and UAE.
55.I flew well over 100 missions in Iraq and Afghanistan and countless deployments out of combat zones (eg Solomon Islands, Timor, etc).
56.The flying tempo and number of hours flown was substantially higher in the Middle East than any other time.
57.These missions included:
(i)flying with the Prime Minister and senior ministers, as well as foreign ministers;
(ii)responsibility for transporting a ‘60 Minutes’ crew;
(iii)complex night landing on dirt strips in Afghanistan with night vision goggles;
(iv)long days in extreme heat conditions;
(v)operating aircraft defensive systems;
(vi)command of the multimillion dollar aircraft and up to 80 personnel.
58.During my final deployment before I became ill I was also the detachment Air Safety Officer.
59.This involved a substantial amount of extra work on top of my flying duties – I was certainly working many more hours than the other two Captains in the detachment as a result – perhaps an additional few hours per day on average.
60.These deployments were physically demanding – during the summer period that I was there temperatures exceeded 50 degrees, and I was required to wear heavy body armour and remain sitting in the cockpit of the aircraft for lengthy periods.
61.These flights were very draining mentally, and crews (including me) were often very tired and forced to sleep in communal living arrangements (sometimes tents) prior to doing it all again the next day.
62.At night we were required to operate with heavy helmet-mounted night vision goggle equipment that placed strain on the neck and was certainly uncomfortable.
63.Flying during these deployments is one of the most mentally demanding roles that one could be involved with in the military.
64.Without exception I was required to perform the most challenging flying I had ever done whilst deployed, for example completing the strongest crosswind landings at aircraft maximum limits, and night vision equipped landings on dirt strips at night.
65.The RAAF-mandated maximum pilot flying day was increased from 14 to 18hrs during the entire Middle East deployment.
66.The number of flights, total flying hours, complexity of tactical flying, operational pressures, and threat level often greatly increased during Middle East flying.
67.There were very real operational threats and aircraft were directly hit in the area we were operating.
68.The bases I visited were rocketed almost daily and these rockets killed people on the bases I was at.
69.On occasions I was rerouted from destination airfields when the base came under attack.
70.Although I found the deployments become a bit easier with experience, there is a caveat.
71.Everyone starts as a Copilot (2nd in charge) – a position with similar flying to the Captain but without any of the Captain’s responsibility.
72.On the last of my tour of deployments (ie Deployment 3 in 2011) I was acting as Captain for the first time.
73.This was certainly harder for me as a junior Captain because everything was new again and I were [sic] operating with a different perspective – I was now the primary person in charge of the aircraft for the first time in a combat zone.
74.This is the pinnacle of any Pilot’s flying experience, but was a very stressful scenario, particularly when it is your first time in command.
75.I was the only ‘first-round’ Captain on my deployment (ie all the other Captains had previously been deployed as a Captain).
76.I found the situation extremely stressful.
77.Although Hercules aircraft Captains tend to be some of the most junior personnel in the squadrons, the responsibility they have can be enormous.
78.The plane, pilot and mission all rest [sic] squarely on my shoulders.
79.I felt very proud of being in the position but also a sense of vulnerability and lack of assistance – I was ‘chucked in the deep end’.
80.I didn’t feel as though I got much support or guidance – for example, on one occasion I diverted to a foreign airfield with a cargo of weapons and SAS troops and was expected to not only fly the plane and manage the crew, but also take charge of the situation on the ground and take responsibility of [sic] all the logistics.
81.I hadn’t done any of this previously because I was a new Captain.
82.I felt that the minimal training I had received prior to going was not adequate to deal with the complexities of operating in a highly fluid, threat environment.
83.There were many aircraft mechanical problems and issues that I had never experienced previously, which made it a more challenging operating environment.
84.The additional stress of having a critical safety officer role on the side certainly didn’t help.
85.I was also crew on a large number of military and civilian repatriation flights (carrying the dead) and this was certainly a sombre experience.
86.At the time I just blocked it out, pushed on and knew that it would all be over in a few months.
87.I knew that any visit to the doctor or psych would lead to a ‘TMUFF’ (pilot term where you are temporarily banned from flying due to medical or psych reasons).
88.Also, we had just three Captains, and so if I was not able to fly it would have been a substantial burden on the other two (it would have been very hard to replace me with a substitute in Australia without taking time).
89.In fact, one of the other Captains had a cold for a week and the tempo for me and the other remaining Captain increased substantially as a result.
90.I was very reluctant to complain in fear that I would lose my medical category and therefore lose my wings.
91.I had already been flying in the Middle East for about four months prior to the day I got sick.
92.I had done a considerable amount of flying (and other work duties) during this tour of duty. This was to be one of the last flights prior to returning to Australia.
93.On the day prior to suffering my injury (17 September 2011) I was suffering from a bad headache and visited the medical officer.
94.My recorded heart rate and blood pressure was high.
95.I received some medication, was released and flew the next day.
96.The next day (18 September 2011) was another very warm summer day in the Middle East.
97.I was scheduled to fly a big day of around 14 hours (involving about 8 hours of actual flying) from Minhad to Kandahar to Kabul to Kandahar to Kabul.
98.As mentioned previously I presented to medical the day prior complaining of a sore throat and headache.
99.I certainly didn’t feel 100% the day I flew and felt quite fatigued - this was my last flight of a long deployment.
100.I had mixed feelings going into it. I was looking forward to returning to Australia and no longer having to fly any combat missions.
101.I had not seen friends or family for four months, nor had I really had any personal life during this time.
102.At the same time I felt anxious because I had made it the whole way through the deployment as a young Captain without making any significant piloting mistakes and had also been lucky in terms of not being directly involved in any combat related incidents.
103.After a long day of short hops, reloading, unloading (more than 10 hours into the day) I had just taken off on the last leg of the day.
104.Take off and landing is the most dangerous (stressful) phases of any flight.
105.This is the case because the aircraft is being flown closer to the ground at lower speeds, with many systems requiring close monitoring and a limited time frame to react should an emergency occur.
106.This is exacerbated when in a combat zone because the takeoff and landing phases are those that fall within the weapon engagement zone (and the risk of being shot down is generally considered higher the lower the aircraft’s altitude).
107.I could feel my mouth go dry and I got a sweaty forehead and sweaty hands (I had to take off my flying gloves after we had taken off because they were moist from the sweat).
108.I could feel the adrenaline kick in and my hands and legs would become more tense.
109.I felt my heart rate increase, as did my breathing rate.
110.It was normally much more relaxing once you were at cruising altitude and therefore outside the primary weapon engagement zone (ie not as nervous about getting shot at because you are much higher).
111.Shortly after taking off I experienced a sudden, sharp headache and feeling of nausea.
112.This became worse and after around ten minutes I had to leave the Pilot seat in order to throw up.
113.I felt very ill, and could not physically return to the seat for about ten minutes. I asked a crewmember to call for an ambulance to meet me on arrival at the airport.
114.I crawled back into the seat for landing, although the Copilot landed the aeroplane.
115.I was transported to Kandahar military hospital immediately after landing, where I received medical care and neurological testing.
116.I was later medivac’d to Bagram (Northern Afghanistan) and then to Germany for specialist treatment.
117.I have not been allowed to pilot an aeroplane since this day.
118.Since I have not been flying my stress levels have decreased dramatically.
119.I am a more relaxed person, can plan my personal life much better without the need to worry about last minute deployments.
120.I have felt more at ease with the realization that I no longer need to deploy to the Middle East.
121.I have substantially cut down on my alcohol intake (which increased a great deal whilst in the RAAF).
122.I have greatly enhanced my sporting and social involvement since leaving the RAAF.
123.I’m currently studying Veterinary Science, which is not an easy course, although I feel in a much better frame of mind and certainly less stress (mainly because I’m not constantly worrying about losing my job if I fail a flight) than I did when in the RAAF.
124.My injury has impacted almost every aspect of my life.
125.It has prevented me from ever again performing my job as a Pilot has been devastating for someone that has not only had a passion to fly since age five, but has also invested a serious amount of time (three year aviation degree, two year pilot course, one year conversion, not to mention numerous training), resources and made significant personal sacrifices [sic].
126.I have needed to completely change career paths and will take well over ten years to complete another degree and be at the same professional level as that I attained as a RAAF Pilot.
127.I have also taken a substantial pay cut associated with being discharged from the RAAF.
128.Personally, the injury also affects daily activities in a variety of ways and to varying extents.
129.The RAAF placed a number of severe restrictions on me as a result of this injury (eg not swimming, not driving a motor vehicle, not flying a plane, etc).
…” (Exhibit A1)
In cross-examination, the applicant was referred to the report of his post-deployment medical examination on 17 September 2011 (see paragraph 9 above) and, in particular, the two blood pressure readings taken in that examination, namely “144/75” and “130/70”. He said that, after the former reading, he “had to lie down on a bed for 15–20 minutes for them to get [the latter] reading”.
In re-examination, the applicant said that the purpose of his lying down for 15–20 minutes (as abovementioned) was to lower his blood pressure so that he would pass the medical examination. He added that that had occurred “more than once” in the past to enable him to pass his RAAF aircrew medical examinations.
Relevant Medical Evidence
The applicant’s service medical records (Exhibit R2, ST1–ST56) include numerous references to his blood pressure readings during his RAAF service. These references (up to and including 18 September 2011) are summarised in the following table:
Date Reading Exhibit R2 reference 22/1/2004 130/76 ST4/188 27/2/2004 130/80 ST4/187 16/2/2005 105/65 ST6/199 28/4/2006 130/85 ST1/144 29/5/2006 110/70 ST1/145 27/7/2006 152/84 ST1/146 27/7/2006 135/60 ST1/147 9/10/2006 140/80 ST1/152 6/4/2009 118/72 ST1/169 6/10/2009 127/65 ST1/167 6/10/2009 140/90 ST1/168, ST13/236 31/5/2010 129/69 ST16/242 19/8/2010 135/90 ST17/248 20/3/2011 145/94 ST1/172 20/3/2011 146/85 ST1/172 20/3/2011 155/83 ST1/172 10/5/2011 140/100 ST20/257 17/9/2011 141/87 ST1/173 17/9/2011 144/75 ST1/176 17/9/2011 130/75 ST1/176 18/9/2011 126/65 ST23/265 18/9/2011 140/85 ST23/266 18/9/2011 116/53 ST23/266 18/9/2011 150/60 ST23/266 18/9/2011 132/84 ST25/270, 271
Dr David Rosen, Neurologist, provided a report, dated 8 October 2011, to Dr Kalloniatis, RAAF Base, Richmond, which states as follows:
“ Thank you for referring Flight Lieutenant Benjamin Ford, a 29-year-old single man with no children who lives with a work colleague in Castle Hill. He is an RAAF Hercules Pilot based in Richmond. At 22 he joined the RAAF. He has recently completed a third tour of duty in Afghanistan. He is a non smoker, he drinks alcohol, three or four drinks once or twice a week and one caffeine drink a day. His father Brian is a patient of mine and had a posterior fossa dual AV fistula (a condition completely unrelated to cavernoma). It was recently embolised and is due for follow up six month angiogram.
There is no relevant past medical history apart from migraine, which occurred up until the age of five. He recalls severe headaches in the afternoon associated with photophobia, but no nausea or vomiting and these settled after a few hours on each occasion and he would wake up hungry. Since the age of five he has had no further migraines and denies any other neurological symptoms. He denies any other medical illness.
On Sunday 18 September 2011, having completed four months of a four and a half month overseas deployment he developed a gradual progression of headache soon after take off, which peaked over about ten minutes and then was associated with sudden onset nausea and vomiting. He aborted the mission, handed over to his co-pilot to land and vomited three times. He felt better by the time he landed and was well enough he thought to fly again. On landing he was given analgesia, met by the medics and his headache abated. He denies any neurological symptoms particularly diplopia or ataxia. CT scan at Kandahar Base Hospital revealed a right pontine cavernoma with recent haemorrhage but no mass effect or haematoma. He was evacuated to the US Military Hospital in Landstuhl in Germany where an MRI on a 3 Tesla machine confirmed the diagnosis of a cavernous angioma with a small developmental venous anomaly. Subsequently he was flown back to Australia for further assessment. He remains well; currently his MEC status has gone from 1 to 3.
Physical Examination
Ben was a pleasant cooperative dextral man with a normal reactive affect, a reliable straight forward witness. Neurological examination was essentially normal apart from a hint of hyper reflexia on the left side with normal plantar responses. The blood pressure was 128/80, and pulse was 70 and regular.
Summary and Advice
The diagnosis is solitary right pontine cavernous angioma, recently symptomatic with haemorrhage associated with small venous anomaly. Apart from the family history in his father, which is unrelated, there are no other factors in the history, although the history of migraines at the age of five is a little unusual. There is no neurological deficit. I counselled Benjamin with regard to the small risk of recurrent haemorrhage approximately on average between one and three per cent per year. I would not recommend any further therapy unless he had further haemorrhage in view of the critical location of this lesion and deep unfavourable surgical location.
I recommended referral to Neurosurgeon Dr Rodney Allan at Royal Prince Alfred Hospital. I recommended that he avoid any non-steroidal anti inflammatory drugs or aspirin like drugs. There are various uncertainties with regards to his work as a military pilot. I support his temporary deployment to ground base work until further aspects of his condition have been fully reviewed.” (Exhibit R2, ST59)
Dr Rodney Allan, Neurosurgeon, provided a report, dated 10 October 2011, to Dr Kalloniatis, which states as follows:
“ I believe you are handling aspects of Ben Ford’s followup. I reviewed Ben Ford in relation to his brain stem cavernous malformation. As you are aware, he has had one symptomatic event from this lesion and has made a complete recovery from this episode. The episode was associated with vomiting and headache and a feeling of general vagueness. He denied any diplopia or hemiparesis at the time of the event. He has subsequently undergone investigations including an MRI of his brain which has confirmed the presence of a pontine cavernous malformation with associated developmental venous anomaly. It is felt that the developmental venous anomaly (a normal variation of venous drainage from the brain stem) is responsible for development of these cavernous malformations. In these circumstances they are not congenital lesions.
Obviously the major issue here is whether there is a chance in fact of a further event. The best information we have as to the rate of symptomatic events per year I believe is from 1997 from an article by Porter et al and I have attached this for your information. This revealed that in the brain stem the annual event rate is approximately 10.6%. There are other papers more recently that quote a higher event rate but these are selected surgical series and I feel that the annual event rate would be approximately 10% per year. Unfortunately the lesion is not particularly amenable to treatment and I would not recommend treatment at this stage. If however there is a second event and the lesion presents on a pial surface (in the fourth ventricle), it would be reasonable to remove it at that time. This would of course have significant risks in any case.
I would be happy to be contacted to discuss the situation. I am unsure as to the implications of this with regard to his return to flight but would of course leave these decisions in your hands. It would be possible to extrapolate a daily or even hourly event rate if we accept the natural history of a symptomatic event to be approximately 10%.” (Exhibit R1, T18)
Professor Bryant Stokes, Clinical Professor of Neurosurgery, provided a report, dated 6 June 2014, to the respondent’s solicitors which states as follows:
“ At your request, through Next Health, I reviewed and examined Mr Benjamin Ford on Saturday 24 May 2014. I acknowledge your request to pass an opinion concerning the issues associated with Flight Attendant [sic] Mr Benjamin Ford.
I obtained from him the history that he was born on … July 1982 and at the time of the incident, which necessitated him to cease flying, he was a RAAF Hercules Pilot. Currently he is a student of Veterinary Science. The incident that was associated with him ceasing flying occurred on 18 September 2011 while he was in active service in Kandahar, Afghanistan.
I had provided to me:
·Your extensive letter dated 14 May 2014; and
·A very comprehensive medical file of Flight Lieutenant (F/A) [sic] Benjamin Ford.
WORK HISTORY
I obtained from him the history that he was born in Darwin and after his birth, his family moved to New South Wales where he attended high school then went on to The University of Newcastle to study Aviation Science. He entered the RAAF as an Officer Cadet when he was aged 22 and obtained his wings in 2006 [sic].
PAST MEDICAL HISTORY
He had no significant past medical history.
His father had a dural arterial venous malformation which has been treated and said to have been cured and that was also the subject of a report in his file by Dr David Rosen.
Mr Ford’s mother is alive and well and he has one brother and one sister who are also alive and well.
PERSONAL HISTORY
Currently, he is single and studying Veterinary Science. He states that he is in excellent health.
DETAILS OF ACCIDENT
I will not go into the history which has been well documented to you concerning the incident that occurred soon after take-off from Kandahar when he was the pilot in command of a Hercules. He stated that he developed headache, nausea and vomited twice. Because of this the aircraft returned to Kandahar and he was forbidden to fly as investigations indicated that he had a pontine cavernous angioma with some evidence of recent haemorrhage.
CURRENT ACTIVITIES
Currently, he is undertaking his veterinary studies and is doing some reserve RAAF recruiting with some restrictions on his ability to drive a service vehicle, and he is certainly restricted not to fly.
CLINICAL EXAMINATION
On physical examination, he stood at 182 cm and weighed 84 kg.
I could find no neurological abnormality whatsoever and in particular his cranial nerves were all intact and there was nothing to suggest any fifth nerve or ocular nerve involvement. His power, tone, reflexes and balance were all normal. I was able to see one CD picture of his cavernous angioma measuring approximately 18 x 14 x 13 mm occupying the right side of his pons.
SUMMARY AND OPINION
I believe there is no question about the diagnosis and that these lesions are either developmental and may be in association with a venous anomaly as it has been described by Dr Allan with his report in 2012 [sic]. I do not believe that the development of this lesion or its presence was in any way related to F/Lt Ford’s active service in the Royal Australian Air Force.
However, I though [sic] it important to further evaluate as to whether there was any pre-existing associated factors that might have promoted the haemorrhage and do note that he has had several episodes of a headache in the past. The first that I could determine was in July 2006 when he had a throbbing temporal headache and photophobia in the left eye, then subsequently in March 2007 and again in September 2011 the day before the incident of 18 September 2011. These headaches may have indicated small bleeds from the malformation. Patients with arterial venous malformations may have no symptoms at all although may present with seizures, some form of weakness in the arms or legs, disturbance of vision (particularly double vision) and often headaches. There has been some suggestion that patients who suffer migraines may have a slightly increased tendency to develop cavernous angiomas although this has not been significantly proven. Flight Lieutenant Ford did say that as a young person he was diagnosed with migraines but symptoms appeared to have disappeared after the age of five.
In further pursuing as to whether there were any associated factors that may have caused this lesion to haemorrhage on the date in [sic] which the incident occurred I noted that he has been variously reported as having degrees of hypertension. In July 2006 he had a diastolic blood pressure of 80 and during some of the passage of the years he has had blood pressure intermittently recorded with a relatively moderate increase in the systolic pressure and some moderate elevations of the diastolic pressure. The highest that I had noted was recorded in October 2009 when the diastolic pressure was 90.
It has been stated that this man does suffer from ‘a white coat syndrome’ and I note that his blood pressure tended to settle rapidly. In March 2011 when there had been an incident in an aircraft in which there had been some smoke inhalation his blood pressure initially was recorded at 145/94 and subsequently over a period of some hours it gradually settled although the systolic pressure remained elevated but the diastolic pressure settled. As the cavernoma lesions have only a very tenuous blood supply as opposed to the blood supply of an arterial venous malformation or a cerebral aneurysm I think it unlikely that these fluctuations in blood pressure would have been the cause of his haemorrhage that occurred in September 2011.
Some 30% of patients who have a brain arterial malformation will have a haemorrhage and often more than one haemorrhage during their lifetime, and the rate of haemorrhages occur at about 10% per annum. In summary, I can find no evidence on the information provided to me that the service in the RAAF by F/Lt Ford has been the cause of haemorrhage from his cavernous angioma and certainly it would not have been the cause of the development of his cavernous angioma. I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal and no matters of significance have been withheld from the Tribunal.
In answer to your specific questions:
34.1 Does the applicant suffer from a neurological condition?
Yes but it is currently quiescent and producing no symptoms at this point.
34.2 If yes, please specify:
a. your diagnosis of the condition?
A pontine cavernous angioma.
b.what do you consider has caused this condition, and specifically whether it resulted from an occurrence that happened while the applicant was rendering defence service or which arose out of, or was attributable to any defence service rendered by him.
This is a developmental condition and I cannot find any occurrence that happened whilst the applicant was rendering defence service, which arose out of defence service or was attributed to any defence service rendered by him that could have caused this lesion or its haemorrhage.
…” (Exhibit R2, ST 67)
The Relevant Legislation
The MRC Act
The MRC Act relevantly provides as follows:
“ 5 Definitions
(1) In this Act:
…
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b)the aggravation of a physical or mental injury.
…
service disease has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note:A reference to a service disease being contracted includes a reference to a disease being aggravated by defence service (see section 7).
service injury has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note:A reference to a service injury being sustained includes a reference to an injury being aggravated by defence service (see section 7).
…
service injury or disease means a service injury or a service disease.
…”
“ 6 Kinds of service to which this Act applies
(1) In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non‑warlike service or peacetime service.
…”
“ 23 Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
…”
“ 27 Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note:This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.”
“ 335 Standard of proof for Commission and Chief of the Defence Force
Standard of proof for claims relating to warlike or non‑warlike service
(1) If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person’s injury, disease or death relates to warlike or non‑warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, 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, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person’s injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury is a service injury; or
(b) that the disease is a service disease; or
(c) that the death is a service death;
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 while a member.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
…”
“338 Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to warlike or non-warlike service.
Note: Subsections 335(1) and (2) are relevant to these claims.
(2) If the Repatriation Medical Authority has given notice under section 196G of the Veterans’ Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:
(a)the Commission is not to determine a claim for acceptance of liability for a person’s injury, disease or death of that kind; and
(b)the Commission, the Board or the Tribunal is not to make a decision on the reconsideration or review of:
(i)a determination by the Commission on such a claim; or
(ii)such a determination as previously affirmed or varied; or
(iii)a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);
unless or until the Authority:
(c) has determined a Statement of Principles under subsection 196B(2) of that Act in respect of that kind of injury, disease or death; or
(d) has declared that it does not propose to determine such a Statement of Principles.
(3)For the purposes of subsection 335(2), a hypothesis connecting an injury sustained, or a disease contracted, by a person, or the death of a person, with the circumstances of any particular service rendered by the person while a member, is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11) of the Veterans’ Entitlements Act 1986; or
(b) a determination of the Commission under subsection 340(2) of this Act;
that upholds the hypothesis.
…”
“341 Current Statement of Principles to be applied on review of a decision
(1)This section applies if:
(a)the Commission, the Board or the Tribunal is reconsidering or reviewing a determination in relation to a claim to which section 338 or 339 applies; and
(b)at the time of the making of the decision on the review, there is in force a Statement of Principles (the current Statement of Principles) determined under section 196B of the Veterans’ Entitlements Act 1986 in respect of:
(i)the kind of injury sustained by the person in respect of whom the claim is made; or
(ii)the kind of disease contracted by the person in respect of whom the claim is made; or
(iii)the kind of death suffered by the person in respect of whom the claim is made.
(2)Subject to section 340, the Commission, the Board or the Tribunal is to apply the current Statement of Principles when making its decision on the reconsideration or review.
(3)To avoid doubt, it is declared that no right, privilege, obligation or liability is acquired, accrued or incurred that would permit the Commission, the Board or the Tribunal, in making a decision on the reconsideration or review, to apply any Statement of Principles that is no longer in force.”
The Statements of Principles
There are relevant Statements of Principles, determined by the Repatriation Medical Authority under s 196B(2) of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), which are currently in force. The contents of those Statements of Principles will be referred to later in these reasons.
The Issues
The issues presented for the Tribunal’s determination are:
·whether the applicant sustained or contracted the condition, the subject of his June 2012 claim for acceptance of liability under the MRC Act, namely, “cavernous angioma”; and, if so
·whether that condition is a “service injury” or a “service disease” under s 27 of the MRC Act, for which the respondent is liable under s 23(1) of the MRC Act.
Consideration
The claimed condition
It is common ground that the applicant suffered a cavernous angioma on 18 September 2011 and, on the basis of the medical evidence before it, the Tribunal so finds. The Tribunal also finds that that condition constitutes an “injury” as defined in s 5(1) of the MRC Act and, on the basis of the abovementioned reports of Dr Rosen, Dr Allen and Professor Stokes (set out in paragraphs 19-21 above), that the appropriate description of that injury is “right pontine cavernous angioma” (“the injury”).
Is the injury a “service injury” under s 27 of the MRC Act?
This question is, pursuant to s 335(1) of the MRC Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal “must determine that the injury is a service injury … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 335(2) of the MRC Act, the Tribunal must be so satisfied “if [it], 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 … with the circumstances of” the applicant’s relevant RAAF service. For the purposes of s 335(2) of the MRC Act, a hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service will be “reasonable” only if there is in force (relevantly) a Statement of Principles determined under s 196B(2) of the VE Act that upholds the hypothesis: see s 338(3) of the MRC Act.
For the purpose of determining whether the injury is a “service injury” under s 27 of the MRC Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97–98, as subsequently qualified by the Full Court: see, for example, Woodward v Repatriation Commission (2003) 131 FCR 473 at 483.
Does the material before the Tribunal raise a hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service?
The applicant submitted that the material before the Tribunal raises the hypothesis that the injury is connected with the circumstances of his relevant RAAF service by reason of his having suffered hypertension during his service, as a result of stress and anxiety experienced by him especially when flying combat missions, which in turn resulted in his sustaining the injury on 18 September 2011. The Tribunal accepts that the material before it does raise a hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service in that he had elevated blood pressure from time to time during his service as a result of stress and anxiety experienced by him especially when engaged in flying operations in the Middle East, and he sustained the injury on 18 September 2011 while engaged in such a flying operation.
The relevant Statement of Principles
It is common ground that there is a relevant Statement of Principles determined under s 196B(2) of the VE Act, namely, Statement of Principles concerning cerebrovascular accident No 51 of 2006, as amended by Statement of Principles concerning cerebrovascular accident No 123 of 2011, which is currently in force (“the SoP”).
The SoP relevantly states as follows:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about cerebrovascular accident and death from cerebrovascular accident.
(b) For the purposes of this Statement of Principles, ‘cerebrovascular accident’ means cerebral ischaemia or intracerebral haemorrhage presenting as a transient ischaemic attack or stroke.
(c) Cerebrovascular accident attracts ICD-10-AM code I61, I63, G45.0, G45.1, G45.2, G45.8, or G45.9.
(d) In the application of this Statement of Principles, the definition of ‘cerebrovascular accident’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that cerebrovascular accident and death from cerebrovascular accident can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service is:
(a) having hypertension at the time of the clinical onset of cerebrovascular accident; or
…
(c) experiencing a category 1A stressor within the one year before the clinical onset of cerebrovascular accident; or
…
(f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; or
…
(na) having active migraine at the time of the clinical onset of cerebrovascular accident; or
…
(p) for intracerebral haemorrhage only,
…
(x)having an acute hypertensive episode at the time of the clinical onset of cerebrovascular accident; or
…
(q) inability to obtain appropriate clinical management for cerebrovascular accident.
Factors that apply only to material contribution or aggravation
7. Paragraph 6(q) applies only to material contribution to, or aggravation of, cerebrovascular accident where the person’s cerebrovascular accident was suffered or contracted before or during (but not arising out of) the person’s relevant service.
Inclusion of Statements of Principles
8.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Other definitions
9.For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
…
‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
‘an acute hypertensive episode’ means a sudden and severe increase in blood pressure of a sufficient degree to cause damage to cerebral blood vessels;
…
‘having active migraine’ means having at least one migraine headache per year;
…
‘relevant service’ means:
(a) operational service under the VEA;
(b) peacekeeping service under the VEA;
(c) hazardous service under the VEA;
(d) warlike service under the MRCA; or
(e) non-warlike service under the MRCA;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service?
Pursuant to s 338(3) of the MRC Act, a raised hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service will be a reasonable hypothesis only if it is upheld by the SoP.
As previously indicated (see paragraph 28 above), the hypothesis postulated by the applicant incorporated only the factor set out in para (a) of cl 6 of the SoP.
The respondent’s submissions, however, also sought to address the factors set out in paras (c), (f), (na), (p)(x), and (q) of the SoP. The applicant conceded that the material before the Tribunal was insufficient to meet any of those additional factors. In the Tribunal’s opinion, the applicant’s concession was rightly made. Accordingly, the Tribunal is of the opinion that, having regard to the whole of the material before it, that material does not point to any of the factors set out in paras (c), (f), (na), (p)(x) and (q) – or, indeed, any of the factors other than the factor set out in para (a) – of cl 6 of the SoP existing, or having been met, in the applicant’s case.
As regards the factor set out in para (a) of cl 6 of the SoP, there is material before the Tribunal which indicates that the applicant had elevated blood pressure at various times during his relevant RAAF service prior to his sustaining the injury on 18 September 2011 (see the table of blood pressure readings in paragraph 18 above). There is, however, no material before the Tribunal which indicates that the applicant had a medical diagnosis of hypertension before he sustained the injury on 18 September 2011. The Tribunal notes that the only reference in the material before it to a possible medical diagnosis of hypertension in the applicant’s case is a clinical note by Dr Ralph Rydell, dated 22 September 2011, which states (inter alia):
“ It does appear however that he has mild hypertension.” (Exhibit R1, T12, p 56)
The Tribunal also notes Professor Stokes’ reference, in his report of 6 June 2014 (set out in paragraph 21 above), to the applicant’s having been “variously reported as having degrees of hypertension” having regard to his blood pressure being “intermittently recorded with a relatively moderate increase in the systolic pressure and some moderate elevations of the diastolic pressure”. The Tribunal further notes that, on 17 September 2011 (the day before the applicant sustained the injury), his latest blood pressure reading was not elevated, being 130/75, and that, on 18 September 2011 (the day on which he sustained the injury), there were five readings of his blood pressure, two of which might be described as elevated (see the table in paragraph 18 above). The Tribunal infers that the five readings taken on 18 September 2011 were taken after the applicant sustained the injury.
In the Tribunal’s opinion, although the material before it indicates that the applicant had elevated blood pressure at various times before 18 September 2011, it does not point to the applicant’s having had the condition of hypertension, or an elevated blood pressure, at the time when he sustained the injury on 18 September 2011 or, in the words of para (a) of cl 6 of the SoP, “at the time of the clinical onset of” the injury. Accordingly, the Tribunal, having regard to the whole of the material before it, is of the opinion that that material does not point to the factor set out in para (a) of cl 6 of the SoP existing, or having been met, in the applicant’s case.
In the Tribunal’s opinion, therefore, the raised hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service does not accord with, and is not upheld by, the SoP, and, accordingly, pursuant to s 338(3) of the MRC Act, is not a reasonable hypothesis.
The Tribunal’s abovementioned conclusion that the material before it does not point to the factor set out in para (a) of cl 6 of the SoP existing, or having been met, in the applicant’s case makes it unnecessary for it also to consider Statement of Principles concerning hypertension No 63 of 2013 (“the hypertension SoP”). Had it been necessary for the Tribunal to consider and apply the hypertension SoP, however, the Tribunal would have concluded that, in its opinion, a raised hypothesis connecting hypertension with the circumstances of the applicant’s relevant RAAF services does not accord with, and is not upheld by, that Statement of Principles for the following reasons.
The hypertension SoP relevantly states as follows:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about hypertension and death from hypertension.
(b) For the purposes of this Statement of Principles, ‘hypertension’ means persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by:
(i)a usual clinic blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement; or
(ii)a usual home blood pressure reading of greater than or equal to 135 mmHg systolic or greater than or equal to 85 mmHg diastolic; or
(iii)for persons aged under 18, a usual systolic or diastolic blood pressure reading of greater than or equal to the 95th centile for age and sex; or
(iv)the regular administration of antihypertensive therapy to reduce blood pressure.
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia, gestational hypertension or medications.
(c) Hypertension attracts ICD-10-AM code I10 or I15.
(d) In the application of this Statement of Principles, the definition of ‘hypertension’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service is:
…”
Clause 6 then sets out 33 alternative factors in paras (a)–(gg), of which only the following were referred to in the hearing of this proceeding:
“(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension; or”
“(r) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical worsening of hypertension; or”
“(gg) inability to obtain appropriate clinical management for hypertension.”
The hypertension SoP relevantly continues as follows:
“ Factors that apply only to material contribution or aggravation
7.Paragraphs 6(q) to 6(gg) apply only to material contribution to, or aggravation of, hypertension where the person’s hypertension was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9. For the purposes of this Statement of Principles:
…
‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
…
‘relevant service’ means:
(a)operational service under the VEA;
(b)peacekeeping service under the VEA;
(c)hazardous service under the VEA;
(d)British nuclear test defence service under the VEA;
(e)warlike service under the MRCA; or
(f)non-warlike service under the MRCA;
…”
As regards the factors set out in paras (b) and (r) of cl 6 of the hypertension SoP, in the Tribunal’s opinion the material before it does not point to either of those factors existing, or having been met, in the applicant’s case.
Although the applicant sought to rely on the factor set out in para (gg) of cl 6 of the hypertension SoP, the Tribunal is of the opinion that the material before it does not point to that factor existing, or having been met, in the applicant’s case because:
·the material before the Tribunal does not point to the applicant’s having suffered or contracted “hypertension”, as defined in para (b) of cl 3 of that SoP;
·even if the applicant did suffer or contract “hypertension” (as so defined), cl 7 of that SoP states that para (gg) of cl 6 applies “only to material contribution to, or aggravation of, hypertension where the … hypertension was suffered or contracted before or during (but not arising out of) the … relevant service”, and the material before the Tribunal does not point to any existing hypertension suffered by the applicant having been materially contributed to, or aggravated by, an “inability to obtain appropriate clinical management for hypertension”; and, in any event
·the material before the Tribunal does not point to an “inability” on the part of the applicant “to obtain appropriate clinical management for hypertension”.
The Tribunal concludes, therefore, that the hypertension SoP does not uphold the hypothesis that hypertension is connected with the circumstances of the applicant’s relevant RAAF service. Accordingly, such hypothesis, pursuant to s 338(3) of the MRC Act, is not a reasonable hypothesis.
The injury is not a service injury
The Tribunal, having considered the whole of the material before it, has formed the opinion that that material does not raise a reasonable hypothesis connecting the injury with the circumstances of the applicant’s relevant RAAF service. In accordance with s 335(2) of the MRC Act, therefore, the Tribunal, for the purposes of s 335(1) of that Act, is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the injury is a “service injury”.
Conclusion
The Tribunal concludes that the injury is not a “service injury” under s 27, or otherwise within the meaning, of the MRC Act. Accordingly, the respondent is not liable under s 23(1) of the MRC Act for the injury.
Decision
For the above reasons, the decision under review is varied by amending the description of the injury sustained by the applicant to “right pontine cavernous angioma (sustained on 18 September 2011)”, but that decision is otherwise affirmed.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop .................[sgd D Brodie]...............................................
Administrative Assistant
Dated 20 November 2014
Dates of hearing 20, 21 October 2014 Counsel for the Applicant Mr R Grayden Solicitors for the Applicant Hammond Legal Counsel for the Respondent Mr B Dube Solicitors for the Respondent Australian Government Solicitor
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