Bourke and Repatriation Commission (Veterans' entitlements) - [2019] AATA 1597

Bourke and Repatriation Commission (Veterans' entitlements) [2019] AATA 1597 (3 July 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/6176
Re:Simon Bourke
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:3 July 2019
Place:Hobart

The Tribunal’s decision in relation to the preliminary question is that vestibular migraine is not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or the Statement of Principles concerning Migraine (No. 57 of 2009).
...................................[sgd]..................................
The Hon. Matthew Groom, Senior Member
VETERANS’ AFFAIRS – veterans’ entitlements – preliminary questions – whether claimed condition of vestibular migraine covered by statement of principles – applicable statement of principles – Statement of Principles No 8 of 2018 – Statement of Principles No 57 of 2009 – migraine – vestibular migraine – claimed condition not covered by either statement of principles
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321
Repatriation Commissions v Keeley [2000] FCA 532; (2000) 98 FCR 108
SECONDARY MATERIALS
Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018)
Statement of Principles concerning Migraine (No. 57 of 2009)
International Statistical Classification of Diseases and Related Health Problems (10^th Revision, Australian Modification)
Explanatory Statement, Statement of Principles Concerning Migraine (Balance of Probabilities) (No. 8 of 2018) (Cth)
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
3 July 2019
INTRODUCTION

The substantive application in this matter is for a review of a decision of the Veterans’ Review Board (the VRB) made on 23 August 2017 denying the Applicant’s claim for disability pension.
The Applicant’s original application made on 6 February 2015 was for disability pension in respect of ‘inner ear problems’ diagnosed as ‘inner ear disorder. Possibly Meniere’s Disease’.
On 12 March 2015 a delegate determined the claim as one relating to Meniere’s disease, sensorineural hearing loss and tinnitus. The claim relating to sensorineural hearing loss and tinnitus was accepted but the claim relating to Meniere’s disease was rejected on the basis that it was not related to service.
The Applicant sought review by the VRB. The VRB’s decision was to set aside the delegate’s decision and substitute it for a new decision that:
(i)The Applicant’s diagnosed conditions are otitis media, otitic barotrauma and vestibular migraine;
(ii)The Applicant suffers no current incapacity from the conditions of otitis media and otitic barotrauma; and
(iii)The Applicant’s vestibular migraine is not related to his defence service.
In making its decision the VRB was reasonably satisfied that the Applicant suffered from vestibular migraine and that the Statement of Principles concerning Migraine (No. 57 of 2009) applied to the condition.
The Applicant subsequently made application for a review of the VRB decision before this Tribunal. One of the contentions put by the Applicant in seeking a review of the decision was that the Statement of Principles concerning Migraine (No. 57 of 2009) did not apply to vestibular migraine. The Respondent continues to…

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

Case: [2019] AATA 1597
Decision Date: 3 July 2019

CaseChat Overview and Summary

This matter came before the Tribunal concerning the Repatriation Commission and the applicant, Bourke. The dispute centred on whether vestibular migraine was a condition covered by the relevant Statements of Principles (SoPs) for the purposes of determining an entitlement under veterans' entitlements legislation. The Tribunal was required to consider which SoP was applicable and whether vestibular migraine fell within the scope of either the current or former SoP concerning Migraine.

The primary legal issue before the Tribunal was to determine whether vestibular migraine was encompassed by the definition of "migraine" within the applicable Statement of Principles. This involved an assessment of the medical evidence presented, including expert testimony and published literature, to ascertain the recognised status and characteristics of vestibular migraine. The Tribunal also had to consider the potential for an "accrued right" to have applied under a former SoP, and whether the transition to a new SoP had materially altered the scope of conditions covered.

The Tribunal reasoned that while vestibular migraine is a recognised medical condition, its understanding and classification are relatively recent and still evolving. It noted that the International Headache Society's classification lists vestibular migraine in an appendix for research criteria, indicating it has not yet been formally accepted into the main classification. After considering the definitions in both the current and former SoPs, and the expert evidence, the Tribunal concluded that there was no material difference in the scope of the definition of migraine between the two. The slight wording changes in the current SoP were seen as reflecting template updates and minor advancements in understanding pathophysiology, rather than an intention to broaden the covered conditions. The Tribunal found that uncertainty regarding the specific consideration of vestibular migraine by the Repatriation Medical Authority was even more pronounced for the former SoP, and such uncertainty should be resolved negatively.

Consequently, the Tribunal decided that vestibular migraine was not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or the Statement of Principles concerning Migraine (No. 57 of 2009).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the hearing a question was raised as to which Statement of Principles concerning Migraine it was appropriate for the Tribunal to consider. The current Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) came into effect on 29 January 2018 and remains in force (the current SoP). The Statement of Principles in force at the time of the primary decision was Statement of Principles concerning Migraine (No. 57 of 2009) (the former SoP). The Tribunal has decided to proceed on the basis of the current SoP but it does so mindful of the potential for an accrued right in respect of the former SoP. The Tribunal will address this issue further on in these reasons.EVIDENCE AND CONSIDERATION The evidence before the Tribunal, including the oral testimony of both expert witnesses, was that while vestibular migraine is a recognised medical condition its recognition is relatively recent. The condition is generally described as involving a combination of episodic vertigo with migraine headaches or other clinical features of migraine such as photophobia, phonophobia and visual aura. There was evidence that understanding of its pathophysiology is not well developed and that its relationship to other migraine-related conditions, as well as the understanding of causal factors, remains uncertain. The Respondent tendered an article titled ‘Vestibular migraine’ by Doctors Robertson and Eggers published on the UpToDate.com website (Exhibit R3, the Robertson-Eggers article), which noted the following in relation to the condition:... it remains a poorly defined and understood entity. Factors that have hindered the study of vestibular migraine include clinical manifestations that vary and overlap with other vestibular disorders, poor understanding of underlying pathophysiology of migraine, a lack of biological markers or specific tests, lack of standard nomenclature, and only recently developed and evolving consensus diagnostic criteria. While vestibular migraine is listed in the Appendix to the International Headache Society’s classification ICHD-3 (Exhibit R2) it has not yet been included in the main list of recognised conditions. The Appendix to the classification list explains the context for including conditions in the Appendix as:An Appendix was first added to the second edition of The International Classification of Headache Disorders (ICHD-II). It had several purposes, which are retained in ICHD-3.The primary purpose of the Appendix is to present research criteria for a number of novel entities that have not been sufficiently validated by research conducted so far. The experience of the experts in the Classification Committee, and publications of variable quality, suggest that there are still a number of diagnostic entities that are believed to be real but for which better scientific evidence must be presented before they can be formally accepted. Therefore, as has happened between ICHD-II, ICHD-3 (beta) and ICHD-3, it is anticipated that some disorders now in the Appendix will move into the main body of the classification at the next revision.In a few places the Appendix presents alternative sets of diagnostic criteria to those in the main body of the classification. This is again because clinical experience and a certain amount of published evidence suggest that the alternative criteria may be preferable, but the committee does not yet feel that the evidence is sufficient to change the main classification.Finally, the Appendix is used as a first step in eliminating disorders historically included as diagnostic entities in previous editions of ICHD, but for which sufficient evidence has still not been published.

Decision

Reasons for decision

Having carefully considered the definitions as well as hearing evidence from the two expert witnesses, the Tribunal is not satisfied that there is any material difference in the scope of the definition of migraine adopted in each of the current and former SoPs. There are some slight wording changes but they appear to be more focused on the adoption of a new template and some updated understanding of the pathophysiology relating to migraine, rather than any intention to materially change the scope of the conditions covered by the current SoP. This conclusion is further reinforced by the wording of the Explanatory Statement to the current SoP, which does not evidence any intention of a material change in its scope. Further, any uncertainty regarding the likelihood that the RMA specifically considered vestibular migraine is even more pronounced in respect of the former SoP. Again, any uncertainty should be resolved in the negative. For these reasons, the Tribunal is reasonably satisfied that vestibular migraine is also not covered by the Statement of Principles concerning Migraine (No. 57 of 2009).DECISION Tribunal’s decision in relation to the preliminary question is that vestibular migraine is not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or Statement of Principles concerning Migraine (No. 57 of 2009).

Ratio Decidendi

Legal Principle Established

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