Benson and Repatriation Commission
[2000] AATA 684
•9 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 684
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1814
VETERANS' APPEALS DIVISION )
Re Sydney William John BENSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member
Date9 August 2000
PlaceSydney
Decision The Tribunal – 1. Sets aside that part of the decision of the Respondent dated 12 February 1998 that refused the Applicant's claim in respect of cervical spondylosis and diabetes mellitus; and 2. Substitutes therefor that – (a) the condition diagnosed as cervical spondylosis is already included under the diagnosis of psoriasis with arthritis which has already been determined to be a war-caused disability and the disability arising from cervical spondylosis shall continue to be assessed under the head of the condition diagnosed as psoriasis with arthritis. The Tribunal therefore has no jurisdiction to make a determination as to whether cervical spondylosis is a separately diagnosed war-caused disease; and (b) the Applicant's condition of diabetes mellitus is a war-caused condition and the effective date for the acceptance of that condition is 1 July 1997; and (c) pension shall continue to be paid to the Applicant at one hundred percent of the General Rate in respect of all his war-caused disabilities.
..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – entitlement – whether diabetes mellitus war caused – Statement of Principles applied – hypothesis that Veteran contracted rubella on service which later caused diabetes – rubella a relevant factor in SoP – whether suffered from Type I or Type II diabetes – medical expert evidence contrary to Statement of Principles – whether Tribunal had jurisdiction to review determination made by RMA -- Statement of Principles must be applied – whether medical evidence disproved reasonable hypothesis beyond reasonable doubt – whether Tribunal had jurisdiction to diagnose cervical spondylosis as a war caused condition separate from psoriasis with arthritis
Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120A, 196B(2)
Statement of Principles - Instrument No. 82 of 1999, Instrument No. 47 of 1996, Instrument No. 187 of 1996
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 149 ALR 721
REASONS FOR DECISION
9 August 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member
This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 12 February 1998 which refused a claim made by Sydney Benson ("the Applicant") in respect of cervical spondylosis and diabetes mellitus. That part of the decision was reviewed by the Veterans' Review Board on 16 October 1998 and affirmed. All applications for review were in time, and therefore the effective date of any decision in the Applicant's favour is 1 July 1997, being a date no earlier than three months before the date of the Applicant's claim.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –
Service documents (exhibit A);
Statement signed by the Applicant and dated 24 November 1999 (exhibit B);
Records provided by Northern Sydney Health Service (exhibit C);
Report from Dr W Kidson, endocrinologist, dated 18 February 2000, with curriculum vitae (exhibit D);
Form KE2 Repatriation Department medical report dated 19 April 1961 (exhibit 1);
Determination of Repatriation Commission dated 3 June 1960 (exhibit 2);
Control Sheet, Repatriation Department, including a Departmental Medical Officer report dated 8 July 1964 (exhibit 3);
Report from Associate Professor John Carter, endocrinologist, dated 25 November 1999 (exhibit 4).
The Applicant has the condition "psoriasis with arthritis" accepted as a war-caused disability already. Moreover, there was evidence before the Tribunal (T7) that in 1994, in respect of "psoriasis with arthritis", the restricted movement in the Applicant's neck was included in the assessment. The Tribunal notes that in the Applicant's claim which commenced these proceedings (T8), not only did he claim for "neck - shoulder & back pains - movement restriction" as a new disability, he also stated in the same claim, "psoriasis with arthritis has increased & requires this claim for further arthritic painful condition to be considered". This could reasonably be interpreted as an application for increase in assessment in respect of the condition "psoriasis with arthritis".
After discussion with the parties at the commencement of the hearing the parties agreed, and in the Tribunal's view properly so, that the condition "psoriasis with arthritis" was sufficiently general to encompass the arthritic condition in the Applicant's neck which has been diagnosed as "cervical spondylosis". The Tribunal is satisfied, on the basis of the medical evidence (exhibit 3) that underpinned the Respondent's decision in 1964 to amend the decision from "psoriasis" to "psoriasis with arthritis", that that condition was not intended to be interpreted narrowly to include merely the conditions of osteoarthritis of both great toes.
The Tribunal determines that the condition "cervical spondylosis" which hitherto has been refused as a war-caused disability, is indeed part of the war-caused condition "psoriasis with arthritis", and therefore the Tribunal has no jurisdiction to consider the condition "cervical spondylosis" as a separate condition under the head of this application. Moreover, the Tribunal directs that the Respondent delete the condition "cervical spondylosis" from the list of rejected disabilities. On the other hand, it is open to the Respondent, pursuant to s31 of the Veterans' Entitlements Act 1986 ("the Act"), to create a separate condition "cervical spondylosis" as a war-caused condition.
The Applicant served in the Australian Army from 15 December 1941 to 29 March 1946, including service in the southwest Pacific area. Therefore, the whole of his service constitutes operational service. Hence, the Applicant's claim for diabetes mellitus is to be determined pursuant to s120(1) and s120(3) of the Act. As the Applicant's claim was lodged on 1 October 1997 the Tribunal is required to apply s 120A of the Act which provides –
This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)…….
If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)……
In this case, the Repatriation Medical Authority has, pursuant to s 196B(2) of the Act, revoked a previous Instrument in respect of diabetes mellitus and determined Instrument No. 82 of 1999. The Applicant sought to rely on factor 5(a) of that Statement of Principles which states –
(5) The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diabetes mellitus or death from diabetes mellitus with the circumstances of a person's relevant service are:
(a) in relation to type 1 diabetes mellitus, being infected with rubella virus or Coxsackie B virus before the clinical onset of diabetes mellitus; or
…….
The Tribunal notes that that factor is the same as factor 5(a) in Instrument No. 47 of 1996, as amended by Instrument No. 187 of 1996, those being the Statements of Principles in place at the time of the primary decision. Hence, taking into account the decision of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532, the Applicant is not in reality affected by the fact that the Statement of Principles which was in place at the time the primary decision was made, has since been revoked. The outcome is the same no matter which Statement of Principles is applied.
The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 said (at 97 and 98) -
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Dr Kidson attended the hearing of the Tribunal to give oral evidence, and Professor Carter gave oral evidence by use of a conference telephone. The evidence from both these doctors was taken simultaneously, with the approval of the parties. Dr Kidson is the Applicant's treating endocrinologist. In his report (exhibit D) Dr Kidson opined that the Applicant "almost certainly suffers from Type I diabetes". He noted, amongst other things, that the Applicant had –
… extreme diabetic instability with fluctuations in blood glucose levels and severe hypoglycaemic reactions occurring with only minor adjustments of the order of 1 to 2 units in his insulin doses. This is typical of Type I diabetes and virtually unheard of in Type II diabetes.
Professor Carter advised that hitherto he had not been aware of this level of instability. Although in his report he said that the history was "strongly suggestive" of Type II diabetes, the information about the instability of the condition caused him to weaken his opinion and that he now considered it was unclear whether the Applicant's condition was Type I or Type II. Dr Kidson noted that the Applicant developed diabetes in 1985 when his initial blood glucose reading was 40 mmol/l, which was an extremely high value reading usually associated with Type I diabetes rather than Type II diabetes. The fact that the Applicant's diabetes was able to be controlled for 12 or 18 months on oral medications was usually indicative of Type II diabetes. However, thereafter he required insulin therapy and despite that he had remained quite unstable.
Dr Kidson noted that research has established that infants who had congenital rubella have a fairly high incidence later in childhood of developing Type I diabetes. He thought that the time frame over which that happened was five years and at the most ten years, but he added "I may be wrong there". He also noted that there have been cases of diabetes recorded after preceding rubella infections, but that was not a common association. Professor Carter agreed with this evidence. He also said that he was not aware of any evidence to support such a long "intermediary period" between a viral illness in 1943 and a marked reduction in the amount of insulin being produced by the pancreas in 1985, whether the viral infection was rubella or some other virus. Dr Kidson agreed with Professor Carter's analysis.
Dr Kidson considered that the Applicant almost certainly suffers from Type I diabetes as it usually comes on in the late 30's or later. It has several other features such as, the person is usually thin rather than overweight at the time of diagnosis, has a temporary response to oral medications for diabetes for perhaps six months and then needs insulin injections. He said that the GAD anti-body test may remain positive for a year or two before it becomes negative again. This is similar to the process that occurs in childhood, but it happens more slowly than in childhood. This is one reason why Dr Kidson diagnosed Type I diabetes. However, the main reasons for Dr Kidson's belief that the Applicant suffers from Type I diabetes are because the Applicant is thin, he requires four injections of insulin per day, and his blood sugars fluctuate quite suddenly. He also suffers from severe hypoglycaemic reactions, low blood sugar reactions, with coma, and this is rarely seen in a person with Type II diabetes who has been on tablets for a while and then requires insulin therapy. He said that people with Type II diabetes may not be so responsive to insulin, but their blood sugars do not fall to levels like 1½ and 2 and then rise to about 20/22, as in the Applicant's case. Dr Kidson opined that overall, the Applicant's clinical behaviour and body size are typical of someone with Type I and not Type II diabetes.
In his report (exhibit 4) Professor Carter considered that the picture was strongly suggestive of Type II, but in his oral evidence he said that opinion was based on an assumption, now dispelled, that the Applicant's diabetes was well controlled. After having heard Dr Kidson's evidence he said that he did not know whether the Applicant suffers from Type I or Type II diabetes, and he had no disagreements with any of the comments made by Dr Kidson. Professor Carter concluded that while he still favoured Type II diabetes as the diagnosis, he resiled from that being a "strong" opinion.
The Tribunal finds that there is considerable consistency in the opinion of these two experts, and that indeed the dichotomy between Type I and Type II diabetes is no longer distinct and that there is now considerable blurring. Taking into account the consistency in the medical evidence the Tribunal finds, on the balance of probabilities, the diagnosis of the Applicant's condition is Type I diabetes.
The Applicant gave oral evidence at the hearing. He said that while on service he was admitted to hospital suffering from rubella. His evidence was that he was quite ill during this episode of measles. He said that he had a high fever and was delirious, and did not recall some of his period in hospital. He said he was told by the sister-in-charge at the time of his discharge that on admission he had been bleeding from both eyes, that he had been very ill and that he had suffered from rubella. He recalled being nursed in a darkened room and having severe conjunctivitis that continued after his discharge. Since that time, the Applicant understood that he had suffered from rubella after having received medical confirmation of that fact and that there was no reason to believe otherwise.
The Applicant's service records (exhibit A) reveal that he was admitted to hospital on 15 November 1943 with upper respiratory tract symptoms which ultimately was diagnosed as morbilli when he was discharged on 5 December 1943. During his period in hospital it was recorded that his temperature was 103 degrees with Koplik spots primarily in his mouth, marked conjunctival congestion and a morbilliform rash. No reference was made to a diagnosis of rubella in the service documents.
Dr Kidson and Professor Carter were advised during the hearing of the symptoms suffered by the Applicant in hospital in 1943. They both agreed in oral evidence that the description of the illness that the Applicant suffered on service sounded more like morbilli than rubella, although both agreed that they were not experts in the diagnosis of measles. They also agreed that it is easy to misdiagnose a morbilliform rash, and although the presence of Koplik spots was indicative of morbilli, Professor Carter added that it was "a lot harder" to differentiate between a measles rash and a rubella rash. Dr Kidson also explained that a proportion of people who have measles do have rubella. Both considered from the description of the symptoms it was probable that the Applicant had suffered from morbilli while on service. Both agreed however, that the diagnosis of morbilli made in 1943 could have been wrong. They both admitted to a "reasonable doubt" about the correctness of the diagnosis of morbilli. They also said that it was possible that he had suffered instead from rubella.
Neither Dr Kidson nor Professor Carter considered themselves to be an expert in the diagnosis of rubella or morbilli. Nonetheless, this is the best evidence available to the Tribunal to assist in the differential diagnosis of the condition from which the Applicant suffered on service some 42 years before the onset of his diabetes. That evidence meets the test for "reasonable hypothesis" set in Repatriation Commission v Bey (1997) 149 ALR 721 at 730. Moreover, the Applicant's evidence, which the Tribunal accepts, was that he was advised by a sister-in-charge that he was suffering from rubella at the time he was hospitalised. The Tribunal finds that it was more than just a "mere possibility" that the Applicant suffered from rubella on service.
Both Dr Kidson and Professor Carter noted the link between Type I diabetes mellitus and rubella was in relation to congenital rubella, and that merely having contracted the virus some 42 years ago was not sufficient to have a causal effect. Essentially, both experts considered that there was no relationship between the rubella virus and the onset of the Applicant's diabetes. This evidence is not consistent with factor 5(a) of the SoP and therefore the Tribunal cannot take it into account in considering the reasonableness of the hypothesis.
In the words of the Full Federal Court in Deledio (supra) at 97, the hypothesis raised is a reasonable hypothesis if it is consistent with the "template" to be found in the SoP. If the hypothesis contains a relevant factor in the SoP, "it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful". The Tribunal considers that an hypothesis has been raised by the Applicant that he contracted rubella while on service. Applying factor 5(a) of Instrument 82 of 1999, which is the same as in Instrument 47 of 1996 as amended by Instrument 187 of 1996, the hypothesis that rubella contracted by the Applicant while on service caused the later development of diabetes mellitus Type I is a reasonable hypothesis pursuant to s 120(3) of the Act.
It was submitted for the Respondent that even though the Tribunal must find in accordance with the SoP that a reasonable hypothesis has been raised that the Applicant suffered from the rubella virus on service and that he meets factor 5(a) of the SoP, on the evidence of Dr Kidson and Professor Carter, that reasonable hypothesis has been dispelled beyond reasonable doubt. On the basis of the medical evidence the Applicant cannot establish a causal link between the onset of the condition of diabetes with the infection he sustained on service. It was submitted that on the basis of the evidence of both medical experts, it was extremely unlikely that there was a relationship between the clinical onset of the Applicant's diabetes with the rubella infection some 40 years earlier, and that this equated with the hypothesis being disproved "beyond reasonable doubt".
However, the Tribunal considers that option is not available to it. Section 196B(2) empowers the Repatriation Medical Authority to determine a SoP and requires that to be done if the RMA is of the view that there is sound medical-scientific evidence to support the factor. This Tribunal has no jurisdiction to review the RMA's determination. It is not uncommon for the Tribunal to be given evidence in other matters to the effect that the RMA has not included a factor which on sound medical-scientific evidence supports a factor, but in such cases the Tribunal cannot find that a reasonable hypothesis exists if it is not included in the SoP as a factor. Likewise, in this somewhat unusual case where it would appear that there is some credible challenge to the soundness of the medical-scientific evidence to support factor 5(a), it would be anomalous that that evidence could then be used by the Tribunal in performing its task pursuant to s 120(1) to disregard the support to be found in the SoP when the Tribunal has no power to review a determination made by the RMA pursuant to s 196B(2).
Applying s 120(1), the Tribunal must consider whether it is satisfied beyond reasonable doubt that the Applicant's diabetes mellitus was not war-caused. It is only at this stage that the Tribunal is required to find facts from the material before it. In respect of the Applicant having suffered rubella on service, that fact has not been disproved beyond reasonable doubt. Because of the doubt cast by the evidence of Dr Kidson and Professor Carter regarding the diagnosis of morbilli the Tribunal cannot be satisfied beyond reasonable doubt that the Applicant suffered from morbilli and not from rubella while on service. In addition, the Tribunal cannot be satisfied beyond reasonable doubt that the Applicant suffers from Type II diabetes. The Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the Applicant's diabetes mellitus was war-caused.
Therefore, the Tribunal will set aside that part of the decision of the Respondent dated 12 February 1998 in respect of diabetes mellitus and determine that this condition was war-caused.
The Tribunal notes that the Applicant's disability pension is already assessed at one hundred percent of the General Rate. It was submitted for the Applicant at the hearing that pension should continue to be paid at that rate and the Respondent agreed with that submission. The Tribunal so finds.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr P D Lynch, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 7 March 2000
Date of Decision 9 August 2000
Counsel for the Applicant N/A
Solicitor for the Applicant J. Buss, Legal Aid Commission
Counsel for the Respondent N/A
Solicitor for the Respondent R.Wallis, Dept. of Veterans' Affairs
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