Bloomer and Repatriation Commission (Veterans' entitlements)
[2018] AATA 308
•22 February 2018
Bloomer and Repatriation Commission (Veterans' entitlements) [2018] AATA 308 (22 February 2018)
Division:VETERANS’ APPEALS DIVISION
File Number: 2016/6672
Re:Stephen Bloomer
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Damien Cremean, Senior Member
Date:22 February 2018
Date of written reasons: 22 February 2018
Place:Melbourne
The decision under review is set aside and the matter remitted to the Respondent with the direction that the Applicant suffers a disease (namely, lyme-like disease) under the Veterans’ Entitlements Act 1986 (Cth) and his claim is to be processed according to law.
[sgd]........................................................................
Senior Member
Veterans Entitlements’ — Injury or disease — Lyme disease — Lyme-like disease —reasonable satisfaction — no onus to name disease.
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 70,119, 120.
Cases
Bye and Repatriation Commission [1986] AATA 642
O’Dowd v Repatriation Commission (2013) 217 FCR 551
Repatriation Commission v Bawden (2012) 206 FCR 296
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Secondary Materials
Judith Chalada, John Stenos and Richard Stewart Bradbury, “Is there a Lyme – like disease in Australia? Summary of Findings to date” (2016) One Health 42-54
REASONS FOR DECISION
Damien Cremean, Senior Member
22 February 2018
The Applicant, Mr Bloomer, made a claim under the Veterans Entitlements Act 1986 (Cth) (“the Act”) on 14 May 2014 for Lyme disease.
This claim was refused on 10 September 2014 and on 16 September 2014 he sought review of that decision in the Veterans’ Review Board.
On 29 September 2016 the Board affirmed the decision. He was advised of this on 4 November 2016.
On 6 December 2016 Mr Bloomer applied for review in this Tribunal.
The hearing in the Tribunal was conducted over two separate days to enable Mr Bloomer to obtain medical evidence in support of his case. The only expert evidence that was presented at the end of the first day was by the Respondent. The Respondent did not object to this course.
At the hearing Mr Bloomer was represented by advocate Mr Michael Finnerty. Mr Bloomer gave sworn evidence and was cross examined.
Professor David Paterson gave expert evidence on affirmation on behalf of the Respondent by telephone. Professor Paterson is an infectious diseases physician.
Dr Andrew Fuller and Dr Mualla McManus gave expert evidence on affirmation on behalf of Mr Bloomer by telephone. Dr Fuller is an infectious diseases physician, a general physician and a clinical microbiologist and Dr McManus is an immunologist. There were no written reports from either Dr Fuller or Dr McManus.
At the conclusion of the hearing on 16 January 2018, each party made submissions and the Tribunal reserved its decision.
It was not in dispute at the hearing that Mr Bloomer is a veteran under the Act and that he rendered eligible defence service in the Australian Army from 15 September 1982 until 1 December 2001.
Mr Bloomer who was born on 22 April 1965 went into the Australian Army at age 17 years.
After 5 years of service, in 1987 Mr Bloomer transferred to the Royal Australian Corps of Military Police and by 1996 he was a Sergeant Investigator posted to the Military Police Investigative Section, South Queensland Logistics Group, based in Enoggera.
It is not in dispute that Mr Bloomer suffers a number of maladies. His contention made in his initial claim is that he suffers Lyme disease. Lyme disease was first discovered in Old Lyme Connecticut USA in 1975.
Mr Bloomer’s claim is denied by the Respondent which submits that he does not have a disease as described in the Act. Mr Bloomer has varied the descriptions of his condition to Lyme-like disease and then to tick–borne disease. The Respondent denies that either description is specific enough to qualify as a disease under the Act.
Mr Bloomer’s evidence was that while on an exercise in the Shoalwater Bay area, Rockhampton, on the Queensland coast, he was bitten by a tick on his torso. This was in about September 1999. He was in an area of open bushlands with long grass, small shrubs, and a few tall trees. He saw a rash on his torso after he took his shirt off to wash. He knew this to be the classic bulls-eye shape of a tick bite but did not actually see the tick.
After he was bitten, Mr Bloomer says that his health declined – marked particularly by fatigue and flu like symptoms — and in effect has continued to decline for a period of nearly 20 years. He is a man who was once fit for military service and now he must walk with the aid of a stick. He has a long history of ailments over the years including many sore throats.
The Act requires that I decide this matter in accordance with s 120(4) — that is, to my reasonable satisfaction which means on the balance of probabilities. A higher standard is not specified. The probabilities may be higher or lower in some cases more than others.
Section 119 (g) of the Act requires also that I act according to substantial justice and the substantial merits of the case. I cannot ignore this requirement.
I accept the totality of Mr Bloomer’s evidence. He was clearly telling me what he believed to be the truth. On no account was it put to him, nor was there any occasion to do so, that he was lying.
The real question is whether in accepting his evidence that he was most likely bitten by a tick — his condition falls within the scope of the Act.
In turn this depends on whether Mr Bloomer has suffered incapacity as defined under s 70 (1) of the Act from a defence–caused disease. A disease is defined in s 5D(1) of the Act as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). It includes also the recurrence of such an ailment, disorder, defect, or morbid condition.
I make a finding on the probabilities that Mr Bloomer was bitten by a tick while on military duties. If he has a disease under the Act, I am satisfied he has been incapacitated by it and I make that further finding on the evidence also.
It is clear to me however that on the evidence no finding can be made that Mr Bloomer suffers from Lyme disease. Both Professor Paterson and Dr Fuller, each eminent in their fields, are clear that he does not suffer from that disease.
There is this significant difference between Professor Paterson and Dr Fuller’s evidence, however. Although both are eminent in the area, Dr Fuller has been Mr Bloomer’s treating doctor since 6 February 2016.
Otherwise, though I accept the evidence of both of them on this point, I find that Mr Bloomer does not suffer from Lyme disease.
I accept and find that Lyme disease is not known to be present in Australia.
In that regard I note in particular the evidence of Dr Fuller who said that they had tested 10,000 ticks in Australia and not one of them carried Lyme disease. However, he said a Lyme-like disease had been found on echidnas in the last couple of years and it is possible – or certainly likely this is the culprit in bringing about Lyme-like disease in Australia.
Ticks, Dr Fuller agreed, can transmit toxins, pathogens, viruses and protozoa. They do this by a bite where its saliva goes into the bloodstream and then into different areas of the body.
Dr Fuller agreed that Mr Bloomer was first seen as a patient of his on 6 February 2016. He said Mr Bloomer presented with fatigue, low energy, joint aches and pains — particularly in the knees. Mr Bloomer also told of night sweats, confusion, anxiety and depression.
Dr Fuller agreed that Mr Bloomer did not have Lyme disease but did say he had Lyme-like disease. He did not show so-called Western Blot IgG positivity in his blood tests which is used to diagnose Lyme disease as such. So he said Lyme disease could be ruled out.
However Dr Fuller said Mr Bloomer did have a positive antibody test to Bartonella which is an organism that can be found in ticks. He said Mr Bloomer has improved with antibiotics, supporting a view that he has a tick-borne disease.
Although he did not think that Mr Bloomer had Lyme disease he considered it possible he did have Borrelia tachyglossi. However, this condition has yet to be found in any human. He could have this disease or some other organism that’s yet to be discovered.
Dr Fuller said a number of conditions brought on by tick bites would cause Lyme-like disease symptoms — that is, symptoms very similar to those of Lyme disease.
Dr McManus gave evidence that she worked for the McManus Foundation — the only Foundation in Australia funding research into tick-borne disease. She said she knew from research so far that Australian ticks do not carry Borrelia burgdorferi which is the group of bacteria that cause Lyme disease.
Dr McManus’ evidence was that the east coast of Australia is known for ticks and it was her view, expressed tentatively, that Mr Bloomer’s presenting symptoms are more likely to have been caused by multiple tick bites. That, however, did not match the evidence of Mr Bloomer himself — that he experienced one bite only.
Professor Paterson however was quite clear that Mr Bloomer is a man who is unwell. When asked, he agreed, that Mr Bloomer suffers from a disease.
In Professor Paterson’s written report dated 22 June 2017 he said I am happy to characterise it as a Lyme-like disease. He said in that report that a Lyme-like illness is a nonspecific diagnosis and it is not truly a recognised disease. He said it refers to an undiagnosed illness which has some signs and symptoms similar to Lyme disease.
At the same time Professor Paterson in his report also said that the cause of Mr Bloomer’s illness is unknown.
On this question I was also provided by the Respondent with an article by Melissa Judith Chalada, John Stenos and Richard Stewart Bradbury, “Is there a Lyme-like disease in Australia? Summary of the findings to date” (2016) One Health 42-54. None of the authors was called to give evidence.
In his affirmed evidence Professor Paterson indicated that the difficulty with characterising someone as having Lyme-like disease is that it’s not a very specific diagnosis and there is no specific test for it.
As regards Mr Bloomer’s condition being a tick-borne disease Professor Paterson answered that there are a number of diseases that are well known to be tick-borne. He said he would hesitate to label Mr Bloomer’s illness as a tick-borne illness.
According to the Respondent, it is not enough to label Mr Bloomer’s disease as — Lyme-like or as — tick-borne. It is submitted that based on authorities something more specific than that is needed for his disease to fall under the Act.
For example, reference is made to Bye and Repatriation Commission [1986] AATA 642 where Senior Member McMahon said an ‘ailment, disorder, defect or morbid condition’ [the words in s 5D of the Act] cannot be dealt with until it is isolated, identified and named.
I disagree with this. It is possible to have a disease of unknown aetiology which happens to be unnamed. Commonly it may be called an orphan disease which is still a disease. Being able to deal with the disease or not is a separate matter. The Act does not specify that only those diseases which can be dealt with by being isolated identified and named are diseases which are within its purview. Quite the contrary: s 5D(1) of the Act uses the word any (in the sense of any disease) followed by words of vague import such as morbid condition. To insist then a disease must then be isolated, identified and named in order to qualify under the Act is to impose a requirement that is not in the Act.
Reference was also made to comments of Marshall J in O’Dowd v Repatriation Commission (2013) 217 FCR 551at [37] that it is necessary for a veteran to suffer from a diagnosable disease. He quoted from Repatriation Commission v Bawden (2012) 206 FCR 296 at [47] where the Full Court of the Federal Court of Australia (Full Federal Court) said the decision maker must be satisfied that a collection of symptoms manifests a diagnosable disease.
Similarly I was referred to passages in the judgment of the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468. Reference was there made by the plurality (at [66]), for example, to a subjective description of a collection of symptoms which was an expression used by one of the medical witnesses at the hearing in the Tribunal. From this it was sought to argue that Mr Bloomer is in the same or a similar position.
I cannot accept this is so. May’s case is explicitly not about diseases but relates entirely to an injury other than a disease. The conclusion that Mr May did not have a disease was unchallenged in the High Court at [65]. In Mr Bloomer’s case the sole concern is disease and is not about an injury other than a disease.
There is more to be said than that. Mr Bloomer’s evidence of the classic bull’s eye effect of the tick bite cannot be discounted. The symptoms he suffered subsequently followed a well-known path in Lyme disease cases. His description of those symptoms, which I accept as accurate and truthful, is of both physical and mental ailments unlike Mr May’s loosely described condition of vertigo. Mr Bloomer has in his Army records numerous instances of illness and sore throats etc. which are physical conditions.
Further, in his concurring judgement Gageler J at [80] said that the Full Federal Court in the case was right to point out in the decision under appeal that the Act and the case law do not ‘preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion’.
His Honour then went on to say that the Full Federal Court was also right to observe that ‘[w]hether or not the evidence of a claimant will be sufficient ,if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case’.
I am reasonably satisfied on the evidence that Mr Bloomer does suffer a diagnosable disease which is similar to Lyme disease or is Lyme-like.
Dr Fuller, his treating doctor, does not appear to have difficulty prescribing anti-biotics for its treatment or caring for his patient and diagnosing it as Lyme-like disease. Indeed anti-biotics he said seemed to be working.
I found the evidence of Professor Paterson confusing. He admitted Mr Bloomer is sick and unwell and has been for some time. Professor Paterson admitted directly that he suffers a disease. He said he was happy to characterise that disease as Lyme-like, but then he said the cause of the illness is unknown and that saying it is Lyme-like is not a very specific diagnosis.
That seems to be the area of disputation — is the disease Lyme-like or not? On the balance of probabilities I am satisfied Mr Bloomer’s disease is Lyme–like. This may not be a description as exacting as some might like but it is exacting enough for Dr Fuller to feel he can treat it.
It would be contrary to the spirit and intendment of the Act, in my view, if Mr Bloomer has a disease initially occurring on Army service. Yet simply because he cannot give a more exacting name to his condition, one which would satisfy Professor Paterson, Mr Bloomer should not be prevented from having the benefit of the Act. There must be many occasions when new diseases arise which are as yet unnamed but that should not prevent the Act applying.
In this regard I should refer to the Full Federal Court decision in Repatriation Commission v Bawden, above, where at [44] the Court said the veteran is not obliged to attach a label to the injury or disease from which the claimed incapacity is alleged to result.
At [45] the Court expressly said there is no onus on a veteran to attach a label to the disease or injury manifest in his or her symptom.
That is exactly Mr Bloomer’s position. By his medical evidence in Dr Fuller, he has named his condition as far as he can. To say he must go further is to put an onus on him which does not exist under the Act.
The decision under review must be set aside with the principal finding being that Mr Bloomer does suffer a disease under the Act.I consider further that this result is in accordance also with s 119(g) of the Act.
60. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Damien Cremean, Senior Member
[sgd].....................................................
Associate
Dated 22 February 2018
Date of hearing 16 January 2018 Advocate for the Applicant Mr Michael Finnerty, Diamond Valley Vietnam Veterans’ Association, Greensborough RSL
Solicitor for the Respondent Mr Ken Rudge, Repatriation Commission
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