Bosworth and Military Rehabilitation and Compensation Commission (Veterans' entitlements) - [2018] AATA 4256

Bosworth and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2018] AATA 4256 (14 November 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/1016
Re:Mr Phillip Bosworth
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:14 November 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...[sgd].................................................
Ms Anna Burke, Member
Catchwords
VETERANS’ AFFAIRS – whether claimed condition arose out of war-service – Statement of Principles concerning Hashimoto’s thyroiditis – whether condition caused by excessive salt intake – whether reasonable hypothesis connecting condition with war-service established – reasonable hypothesis not established – claimed condition not war-caused – decision under review affirmed
Legislation
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Lees v Repatriation Commission (2002) FCAFC 389
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Robertson and Repatriation Commission, Re (1998) 50 ALD 668
McLean v Repatriation Commission [2001] FCA 243
Secondary Materials
Statements of Principles concerning Hashimoto's thyroiditis No. 31 of 2013 (as amended by No. 58 of 2017).
National Institutes of Health, Office of Dietary Supplements, Iodine Fact Sheet for Health Professionals (2018) U.S. Department of Health & Human Services.
REASONS FOR DECISION
Ms Anna Burke, Member
14 November 2018

Mr Phillip Bosworth (the Applicant) served in the Australian Army for 26 years. He enlisted on 31 July 1990 and was medically discharged on 3 February 2016, having attained the rank of Trooper. During this period he saw operational service in East Timor for six months between 1999 and 2000, and on two occasions in Iraq, from 24 November 2007 to 6 February 2008 and from 20 February 2008 until 14 June 2008.
Prior to his medical discharge from the Australian Army, Mr Bosworth lodged a claim with the Department of Veterans’ Affairs for liability for an injury or disease arising from his service. This application, lodged on 27 July 2015, was completed with the assistance of an advocate and cited the following conditions:
(i)Post-traumatic stress disorder
(ii)GORD – gastro-oesophageal reflux disease
(iii)Hashimoto’s thyroiditis
(iv)High tone sensorineural hearing loss and bilateral tinnitus
(v)Right-hand fractures – post-traumatic tenosynovitis 5^th metacarpo phalangeal joint right dominant hand
(vi)Fracture left hand little finger – avulsion fracture fifth left distal interphalangeal joint.
On 23 January 2016 a delegate of the Military Rehabilitation and Compensation Commission (the Commission) accepted liability for Mr Bosworth’s conditions of fracture of distal phalanx of left 5^th finger, sensorineural hearing loss and tinnitus. On 28 January 2016 a delegate of the Commission accepted liability for Mr Bosworth’s condition of post‑traumatic stress disorder. On 19 March 2016 a delegate of the Commission denied liability for Mr Bosworth’s conditions of gastritis, gastro-oesophageal reflux disease, hiatus hernia and Hashimoto’s thyroiditis.
On 1 December 2016 the Veterans’ Review Board (VRB) affirmed the Commission’s determination to deny liability for Mr Bosworth’s conditions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bosworth and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2018] AATA 4256
Case: [2018] AATA 4256
Decision Date: 14 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bosworth against a decision of the Military Rehabilitation and Compensation Commission. The core dispute before the Tribunal was whether Mr Bosworth's diagnosed condition of Hashimoto's thyroiditis arose out of his war service.

The Tribunal was required to determine if a reasonable hypothesis existed that connected Mr Bosworth's Hashimoto's thyroiditis to his war service. This involved considering the relevant legislative framework, including section 23 of the MRC Act, and applying the established steps for assessing war-caused conditions as outlined in *Repatriation Commission v Deledio*.

The Tribunal applied the four-step process from *Deledio*. It first considered whether the material before it raised a hypothesis connecting the condition to service. Finding no such hypothesis, the Tribunal concluded that the claim must fail at this initial stage. The Tribunal also referred to the principle in *East v Repatriation Commission* that a reasonable hypothesis must be more than a mere possibility and must be pointed to by the facts, even if not proven on the balance of probabilities. Based on the evidence, including a thyroid function test report, the Tribunal found no reasonable hypothesis connecting Mr Bosworth's condition with his war service.

Accordingly, the Tribunal affirmed the decision under review, finding that Mr Bosworth's claimed condition was not war-caused.

Orders

Orders of the court

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Background

Background to the litigation

The issue to be determined by the Tribunal is whether the the claimed condition of Hashimoto's thyroiditis arose out of Mr Bosworth’s war service.LEGISLATIVE AND POLICY BACKGROUND Section 23 of the MRC Act outlines when the 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. Note 2: The standard of proof mentioned in subsection 335(3) applies to the following: (a) claims that the injury or disease is a service injury or disease that relates to peacetime service; (b) all claims when determining whether a person sustained a particular injury or contracted a particular disease; (c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4. When Commission must accept liability for service injuries and diseases arising from Commonwealth treatment (2)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 29 (arising from treatment provided by the Commonwealth); and (b) a claim for acceptance of liability for the injury or disease has been made under section 319. Note: The standard of proof mentioned in subsection 335(3) applies to all claims: (a) that an injury or disease is a service injury or disease under section 29; and (b) when determining whether a person sustained a particular injury or contracted a particular disease. When Commission must accept liability for service injuries and diseases arising from aggravations of signs and symptoms (3)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 30 (aggravations etc. of signs and symptoms); 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. Note 2: The standard of proof mentioned in subsection 335(3) applies to the following: (a) claims that an injury or disease is a service injury or disease that relates to peacetime service; and (b) all claims when determining whether a sign or symptom was aggravated etc.; and (c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4. Acceptance of liability for aggravations etc. of injuries and diseases (4)A reference in this section to acceptance of liability for an injury or disease is taken to include a reference to acceptance of liability for an aggravation of an injury or disease. Note: The definitions of injury and disease exclude aggravations (see section 5).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Applying section 335(2) of the MRC Act, for the reasons set out above and based on the material before it, the Tribunal finds there is no reasonable hypothesis raised that Mr Bosworth’s claimed condition was war-caused. In coming to this conclusion, the Tribunal was mindful of and applied the reasoning of the Full Court in East v Repatriation Commission (1987) 16 FCR 517, at 533:A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.DECISION It follows that the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

In determining the question of whether a disease or injury is war-caused the Tribunal is required to follow the steps established by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97: ...the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows: 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 a 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 ss 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.THE TRIBUNAL’S CONSIDERATION AND FINDINGSEvidence before the TribunalMedical A thyroid function test report dated 2 December 2011 noted:High TSH and borderline FT4 indicate moderate hyperthyroidism. Recent abnormal thyroid function tests noted…Anti-thyroid peroxidase and thyroglobulin antibodies are markers of autoimmune thyroid disease (Hashimoto’s disease and Graves’ disease) although they may be detected in many healthy people as well. Treatment should be guided by symptoms and thyroid function tests rather than by antibody concentrations.