Bosworth and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2018] AATA 4256
•14 November 2018
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 243Secondary 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 5th 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 5th 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 hiatus hernia and Hashimoto’s thyroiditis and determined that liability be accepted for gastro-oesophageal reflux disease. Prior to the VRB hearing Mr Bosworth had withdrawn his claim for the condition of gastritis.
On 22 February 2017 Mr Bosworth lodged an application with the Administrative Appeals Tribunal (AAT) for a review of the VRB determination dated 1 December 2016 stating that the VRB erred in fact and/or law in failing to find that hiatus hernia and Hashimoto’s thyroiditis were caused by warlike service within the meaning of the Military Rehabilitation and Compensation Act 2004 (MRC Act). At the AAT hearing counsel for Mr Bosworth indicated that the claim in respect of hiatus hernia was being withdrawn.
Mr Bosworth was represented by Ms Natalie Campbell of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr John Wallace of counsel, instructed by the Australian Government Solicitor. The Tribunal was provided with documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). Both parties’ tendered further documentation and reports as listed in the appendix to this decision. Mr Bosworth gave evidence in person.
ISSUE FOR THE TRIBUNAL
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).
Section 335 of the MRC Act establishes the 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.
Other determinations to be made to its reasonable satisfaction
(3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.
Section 338 of the MRC Act establishes the 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.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim for acceptance of liability for a person's injury, disease or death if the Repatriation Medical Authority has neither determined a Statement of Principles under subsection 196B(2) of the Veterans' Entitlements Act 1986, nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury sustained by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
The Tribunal, in applying the reasonable hypothesis standard of proof, is required to do so in accordance with any Statement of Principles (SoP) made pursuant to s 338 of the MRC Act. The applicable SoP in this matter is Instrument No. 31 of 2013.
Kind of injury, disease or death
3. (a) …
(b) For the purposes of this Statement of Principles, "Hashimoto's thyroiditis" means a chronic autoimmune disease of the thyroid gland, characterised by lymphocytic infiltration of the gland and high titres of circulating antibodies against thyroid peroxidase (TPO) and/or thyroglobulin (Tg). Hypothyroidism and goitre are common presenting features, but may be absent. Hashimoto's thyroiditis is also known as chronic autoimmune thyroiditis or chronic lymphocytic thyroiditis.
Basis for determining the factors
4. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that Hashimoto's thyroiditis and death from Hashimoto's thyroiditis 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 Hashimoto's thyroiditis or death from Hashimoto's thyroiditis with the circumstances of a person’s relevant service is:
(a) having iodine excess from consuming foods, dietary supplements or medications with a high content of iodine, within the six months before the clinical onset of Hashimoto's thyroiditis; or
(b) being treated with interferon alpha for a continuous period of at least six weeks, within the six months before the clinical onset of Hashimoto's thyroiditis; or
(c) undergoing a course of therapeutic radiation for cancer, where the thyroid gland was in the field of radiation, within the ten years before the clinical onset of Hashimoto's thyroiditis; or
(d) having received a cumulative equivalent dose of at least ten sieverts of ionising radiation to the thyroid gland, within the ten years before the clinical onset of Hashimoto's thyroiditis; or
(e) receiving radioactive iodine (131I) for the treatment of multinodular goitre within the ten years before the clinical onset of Hashimoto's thyroiditis; or
(f) having hepatitis C virus infection at the time of the clinical onset of Hashimoto's thyroiditis; or
(g) having iodine excess from consuming foods, dietary supplements or medications with a high content of iodine, within the six months before the clinical worsening of Hashimoto's thyroiditis; or
(h) being treated with a drug from the specified list for a continuous period of at least six weeks, within the six months before the clinical worsening of Hashimoto's thyroiditis; or
(i) undergoing a course of therapeutic radiation for cancer, where the thyroid gland was in the field of radiation, within the ten years before the clinical worsening of Hashimoto's thyroiditis; or
(j) having received a cumulative equivalent dose of at least ten sieverts of ionising radiation to the thyroid gland, within the ten years before the clinical worsening of Hashimoto's thyroiditis; or
(k) receiving radioactive iodine (131I) for the treatment of multinodular goitre within the ten years before the clinical worsening of Hashimoto's thyroiditis; or
(l) having hepatitis C virus infection at the time of the clinical worsening of Hashimoto's thyroiditis; or
(m) inability to obtain appropriate clinical management for Hashimoto's thyroiditis.
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Other definitions
9. For the purposes of this Statement of Principles:
...
"having iodine excess" means having an average dietary intake of more than 1500 micrograms of iodine per day for a continuous period of three months, or having a urinary iodine excretion rate of greater than 800 micrograms per 24 hours;
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 FINDINGS
Evidence before the Tribunal
Medical
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.
Dr Ruth Chia, Contracted Medical Advisor, DVA Victoria – Rehabilitation & Compensation, provided a minute in response to requests for information in respect of Mr Bosworth’s numerous claimed medical conditions. In the minute dated 23 November 2015, Dr Chia notes the diagnosis of Hashimoto's thyroiditis based on evidence from endocrinologist Dr Paul Bartley and pathology results dated 1 December 2011. She states: The earliest evidence of the condition on file 1/12/11, it is likely that the date of onset may be earlier than this.
Mr Bosworth
Mr Bosworth served as an Australian Light Armoured Vehicle (ASLAV) crew commander in Iraq. He described his role as to command the lead vehicle each time a patrol went out of the compound past the wire. Mr Bosworth was based at a unit under the command of the United States Army. He stated that support was provided by the US Army to Australian troops, including the provision of meals whilst on base (which were produced by what Mr Bosworth described as contract staff) and American MRE or “meals ready to eat” for times when he was on patrol. Mr Bosworth advised the Tribunal that he spent a high proportion of his tour on patrol outside the wire. These periods on patrol could be up to two to three weeks at a time. During this time he would eat three to four MRE a day; breakfast, lunch, dinner and often another meal whilst on piquet to deal with the boredom.
Mr Bosworth described the MRE as containing generally wet meals, American style food such as stews, spaghetti with meatballs, and chowder. The MRE generally consisted of a large meal with a snack or desert, condiments such as iodised salt and ketchup, and candy; as well as napkins and plastic cutlery. He states he knew the salt was iodised because it was written on the salt sachets within the MRE.
Mr Bosworth told the Tribunal that prior to Iraq he had not added salt to his meals. However, he had developed a taste for salt in Iraq and found it made the American meals which tended to be sweet and oily more palatable. He had started adding salt to his meals on patrol at the direction of the medics. This was advice he received at an annual slideshow from the health unit in respect of dehydration. The general advice was that troops needed to stay hydrated whilst on patrol and to prevent dehydration they should consume salt as they would be drinking a lot of water. This was most relevant whilst on patrol in Iraq as it was extremely hot and they were wearing heavy body armour which meant they produced a great deal of sweat and drank a lot of water.
Mr Bosworth advised the Tribunal that during the final part of his tour in Iraq he noted he wasn’t feeling quite right, was suffering lethargy and lower mood. He sought medical advice on base and was told it was probably depression, as people were getting tired near the end of their deployment. Mr Bosworth indicated that he did not feel he was suffering depression, by this time he had experienced a lot of trauma in his time in the Army and he had simply gotten on with the job. He was prescribed medication for depression but this did not resolve his low mood and lethargy. Finally, in 2011, whilst based at Puckapunyal, a blood test confirmed he was suffering from Hashimoto's thyroiditis. He emphasised the symptoms of Hashimoto’s disease are often mistaken for depression, as they include tiredness and needing more sleep than usual, being unable to stand the cold, depression or low mood, weight gain, poor memory, low libido and pain in muscles.
Mr Bosworth was adamant that during his time in Iraq he was not aware that he was suffering from post-traumatic stress disorder and indeed for him this did not present as depression.
Consideration
Both parties agree that Mr Bosworth has rendered relevant warlike service, is suffering from Hashimoto's thyroiditis and that the SoP for Hashimoto's thyroiditis, Instrument No. 31 of 2013 amended by Instrument No. 58 of 2017 is the relevant SoP. Additionally both parties acknowledge that, in accordance with section 337 of the MRC Act, there is no onus of proof required of any party.
However, the parties dispute the date of onset of the disease and the consumption of excessive iodine leading to the development of the disease, as outlined by the SoP:
having iodine excess from consuming foods, dietary supplements or medications with a high content of iodine, within the six months before the clinical onset of Hashimoto's thyroiditis…
An excessive amount is described as having an average dietary intake of more than 1500 micrograms of iodine per day for a continuous period of three months…
Consumption of excessive iodine
Counsel for Mr Bosworth argued that Mr Bosworth had consumed an excessive amount of iodine through his food and drink intake, as not only is iodine naturally occurring in food, but additional amounts were being added through his excessive salt consumption.
Counsel for the Respondent noted that there was no material pointing to Mr Bosworth consuming a daily intake of iodine of more than 1500 milligrams for a continuous period of three months as required by the SoP. The Respondent relied upon the statement of Dr Victoria Ross, citing advice from Major Nicholas Barringer from the US Army Research Institute of Environmental Medicine, which indicated:
The MRE salt packet contains ~4 grams of iodized salt. The National Institute of Health (NIH) Office of Dietary Supplements (ODS) reports that U.S. iodized salt has approximately 71 Micrograms per 1.5 grams which would give a iodine dose of ~189 Micrograms per MRE salt packet or 567 Micrograms from the Service Members reported intake of 3 MRE salt packets per day.
Counsel for the Respondent submitted that Mr Bosworth would have needed to consume three times the number of salt sachets each day for his entire period of service in Iraq to meet the amount required under the SoP. He submitted that Mr Bosworth could not account for how he could have consumed excessive iodine continuously for three months, and that created doubt that he met the SoP’s requirement.
Counsel for Mr Bosworth argued that the evidence from Dr Ross should not be considered by the Tribunal as it did not provide any evidence specifically about her opinion on the questions raised with her as an expert witness. She argued there was nothing relevant in Dr Ross’s evidence to the Tribunal, and it in no way assisted the Tribunal in calculating the amount of iodine Mr Bosworth had consumed.
Onset of the disease
Counsel for Mr Bosworth argued that the clinical onset of Hashimoto's thyroiditis was detected by Mr Bosworth whilst in Iraq, as evidenced by his approaching doctors to seek an explanation for his lethargy and low mood, before finally being diagnosed positively in 2011, when a doctor suggested he undertake a blood test.
Counsel for the Respondent argued that the date of clinical onset was on or about 1 December 2011 based on the pathology report; and that any suggestion of an earlier date of onset was no more than a possibility.
Both parties drew the Tribunal’s attention to the meaning of the expression clinical onset when used in Statements of Principle as considered by the full Federal Court in Lees v Repatriation Commission (2002) FCAFC 389, where the Full Court cited the approach adopted by the AAT in Re Robertson and Repatriation Commission (1998) 50 ALD 668 that:
…there is a clinical onset of the disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…
Counsel for the Respondent argued the date of clinical onset need not be the date of the formal finding on investigation, if that date was after the required symptoms were displayed. It was submitted that the purpose of the definition is to identify those symptoms which when observed by a clinician, would warrant a conclusion that the patient suffers from the specific disease. He said it is necessary that all of the symptoms of the disease need to be present at the time of the investigation, or within the relevant period specified by the Statement of Principles, for a finding of clinical onset to be made.
Counsel for Mr Bosworth argued that clinical onset had been established by Mr Bosworth as he had been truthful about his symptoms at all times, having experienced them and reported them to doctors whilst in Iraq. She argued clinical onset was not merely based upon when the blood test verified the presence of the condition.
In its reasons for decision, the Veterans’ Review Board found:
Although Mr Bosworth was a very reliable historian who gave his evidence in a straightforward manner without embellishment there is no supporting medical evidence of the onset of the condition prior to its diagnosis by pathology testing in December 2013. In any event, Mr Bosworth admitted to experiencing some symptoms of depression which were treated on his return from his deployment which creates difficulties in identifying the respective onset dates of the conditions from Mr Bosworth’s description alone. Medical records note that he was prescribed medication for Hashimoto's thyroiditis and depression at the same time.
The Board therefore relied on the medical evidence of diagnosis which was outside the six month period required by the factor.
For the above reasons the Board is satisfied beyond reasonable doubt that the hypothesis is disproved.
Deledio Step 1
At the Deledio first step, no fact-finding is undertaken by the decision-maker. The High Court provided a helpful guide in Bushell v Repatriation Commission (1992) 175 CLR 408 where Mason CJ and Deane and McHugh JJ said, at 413:
…section 120(3) is not exhaustive of the content of s 120(1). Section 120(3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of the subsection… is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis. The material will raise a reasonable hypothesis within the meaning of s 120(3) if that material points to some fact or facts (‘the raised facts’) which support that hypothesis and, assuming those raised facts are true, if the hypothesis can be regarded as a reasonable one.
There is a low threshold at this stage of applying the methodology (as Tamberlin J stated in McLean v Repatriation Commission [2001] FCA 243 at [24]).
On the material presented, the Tribunal finds that there is a reasonable hypothesis that Mr Bosworth’s condition of Hashimoto's thyroiditis is connected with his warlike service.
Deledio Step 2
The second step of Deledio is to ascertain if there is a Statement of Principles formulated by the Repatriation Medical Authority in force that is relevant to the hypothesis raised. Both parties accept that the relevant SoP is Instrument No. 31 of 2013 concerning Hashimoto’s thyroiditis as amended by No. 58 of 2017. The Tribunal finds accordingly.
Deledio Step 3
The third step of Deledio is to ascertain whether the hypothesis raised is a reasonable one. In order to be considered reasonable, the hypothesis must be consistent with the “template” to be found in the relevant SoP.
Therefore, the Tribunal must consider whether Mr Bosworth consumed more than 1500 micrograms of iodine per day for a continuous period of three months resulting in the clinical onset within six months of Hashimoto's thyroiditis. The Tribunal notes there is no fact-finding at this stage, rather only an assessment of all the material in order to consider whether the hypothesis raised is a reasonable one.
Counsel for Mr Bosworth submitted that the whole of the material positively points towards a causal connection between Mr Bosworth’s ingestion of salt during warlike service in Iraq and accordingly the first three steps of Deledio are satisfied. They argued that Mr Bosworth would have ingested the 1500 micrograms of iodine per day from the salt sachets included as part of his MRE as well as additional salt from what he ate and drank in Iraq, as most of a person’s iodine intake is derived from the food and drink they consume.
The Tribunal was provided with a fact-sheet from the National Institutes of Health, US Department of Health and Human Services, which notes:
Iodine is a trace element that is naturally present in some foods, added to others, and available as a dietary supplement… The earth’s soils contain varying amounts of iodine, which in turn affects the iodine content of crops. In some regions of the world, iodine-deficient soils are common, increasing the risk of iodine deficiency among people who consume foods primarily from those areas. Salt iodisation programs, which many countries have implemented, have dramatically reduced the prevalence of iodine deficiency worldwide…
Seaweed (such as kelp, nori, kombu and wakame) is one of the best food sources of iodine, but it is highly variable in its content. Other good sources include seafood, dairy products (…), grain products and eggs. Dairy products, especially milk, and grain products are the major contributors of iodine to the American diet.
Fruits and vegetables contain iodine, but the amount varies depending on the iodine content of the soil, fertiliser use and irrigation practices. Iodine concentrations in plant foods can [vary]… This variability in turn affects the iodine content of meat and animal products because it affects the iodine content of foods that the animals consume.
Having considered the material before it, the Tribunal considers that it does not raise a reasonable hypothesis linking Mr Bosworth’s Hashimoto's thyroiditis with his warlike service. The material submitted does not indicate that Mr Bosworth’s iodine consumption during his tour in Iraq could be considered excessive as outlined in the SoP.
Furthermore, the material before the Tribunal did not indicate that the onset of Mr Bosworth’s Hashimoto's thyroiditis was within the period indicated in the SoP; that is within six months. The material indicated diagnosis of the condition was December 2011. While Mr Bosworth indicated that he became aware of the relevant symptoms during the latter part of his tour, these symptoms as described would not have enabled a medical practitioner to verify that the disease was present at that time and therefore it cannot be said that the hypothesis fits the template as prescribed by the SoP.
Deledio Step 4
The fourth step of Deledio requires the Tribunal to ascertain whether it is satisfied beyond reasonable doubt that the claimed incapacity did not arise from a war-caused injury.
Counsel for the Respondent submitted that, on the basis of the evidence, the Tribunal can and to ought be satisfied beyond reasonable doubt for the purposes of section 335(1) of the MRC Act that there are insufficient grounds for determining that Mr Bosworth’s Hashimoto's thyroiditis is a war-caused injury.
Counsel for Mr Bosworth submitted that the Tribunal at the fourth step of Deledio could not be satisfied to the negative criminal standard of proof given that there was no evidence which rebuts that of the Applicant. Counsel argued that the only evidence lead by the respondent in respect of the iodine levels Mr Bosworth consumed whilst in Iraq was irrelevant as it was in respect of Australian rations and Mr Bosworth consumed meals provided by the US. The information could not assist the Tribunal in calculating Mr Bosworth’s iodine consumption whilst in Iraq as no evidence outside of Mr Bosworth’s evidence existed to determine his iodine consumption.
Counsel for the Respondent submitted that there was no material pointing to a daily intake of iodine of more than 1500 micrograms for a continuous 3 month period. He rejected the Applicant’s assertion that the Tribunal could not be satisfied to the negative criminal standard of proof on the basis that there is no evidence which rebuts that of the Applicant.
Taking the evidence into account, the Tribunal is satisfied beyond reasonable doubt, for the purposes of section 335(1) of the MRC Act, that there are insufficient grounds for a determination that Mr Bosworth’s condition of Hashimoto's thyroiditis was war-caused.
CONCLUSION
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.
48. I certify that the preceding 47 (forty‑seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member.
...[sgd]...................................................
Associate
Dated: 14 November 2018
Date of hearing: 20 September 2018
Counsel for the Applicant: Ms Natalie Campbell Solicitors for the Applicant: Ms Christina Kosovos
Williams WinterCounsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Ms Nicky McGowan
Australian Government SolicitorAPPENDIX
Applicant
A1 Statement of the Applicant dated 15 February 2017
Respondent
R1 Witness Statement of Dr Victoria Ross dated 21 August 2018
R2 Attached links in printed form to Dr Victoria Ross’ Witness Statement
R3 Report by Professor Bryan Mowry dated 27 January 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Natural Justice
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Procedural Fairness
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Standing
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