Brian William Scott and Repatriation Commission
[2014] AATA 98
•27 February 2014
[2014] AATA 98
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2012/5403 |
| Re | Brian William Scott |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 27 February 2014 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
.............................[sgd]...........................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – ischaemic heart disease – hypertension – treatment by anti-inflammatory drugs – whether war-caused or defence-caused
Veterans' Entitlements Act 1986 ss 9, 120(1), 120(4), 120B
Forrester v Repatriation Commission [2013] FCA 898
McKenna v Repatriation Commission (1999) 86 FCR 143
Re Martin and Repatriation Commission [2012] AATA 744
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Stares [1996] FCA 396
REASONS FOR DECISION
G. D. Friedman, Senior Member
27 February 2014
Brian Scott served in the Royal Australian Navy (navy) from 6 July 1964 until 5 July 1984. His operational service under the Veterans' Entitlements Act 1986 (the Act) was from 22 February 1970 to 1 March 1970 on board HMAS Yarra and from 15 May 1971 to 24 May 1971 on board HMAS Parramatta. He also rendered defence service from 7 December 1972 to 5 July 1984.
Mr Scott is in receipt of a disability pension at 100 per cent of the general rate as a result of a number of accepted service-caused medical conditions including hypertension and rotator cuff syndrome of both shoulders. On 21 October 2011 he lodged a claim for incapacity from ischaemic heart disease. His claim was rejected by the respondent and the Veterans' Review Board (VRB) on the basis that, although hypertension was a contributing factor, it was not war-caused or defence-caused. Mr Scott is seeking review of the decision.
LEGISLATIVE FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war‑caused. Causation questions such as these, where Mr Scott has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, the issue of whether the diagnosed conditions were caused by operational service is to be decided by applying the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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 [Statement of Principles] 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 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.
In addition, where Mr Scott has rendered defence service, s 120(4) of the Act requires the Tribunal to decide whether his ischaemic heart disease was defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply an SoP for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the SoPs.
ISSUES
The issue before the Tribunal is whether ischaemic heart disease is war-caused or defence-caused. There was no dispute that Mr Scott suffers from ischaemic heart disease with the date of clinical onset being 27 September 2011. As hypertension was a contributing factor and is a risk factor for ischaemic heart disease, this requires consideration of whether Mr Scott’s hypertension is war-caused or defence caused. Although hypertension and rotator cuff syndrome in both shoulders have been accepted previously as war-caused, Mr Scott is required to demonstrate that hypertension meets the current SoP (McKenna v Repatriation Commission (1999) 86 FCR 143).
IS MR SCOTT’S HYPERTENSION WAR-CAUSED OR DEFENCE-CAUSED?
Mr Scott told the Tribunal that hypertension was diagnosed in the 1970s or 1980s and was accepted by the respondent as being war-caused in about 1981. He said that he had developed symptoms of shoulder pain in the 1970s from repetitive heavy lifting while in the navy. He stated that to the best of his recollection he was taking medication for his left elbow and shoulder pain/rotator cuff syndrome in both shoulders at the time he became aware that he was suffering from hypertension. The medication included Indomethacin or Indocid, a non-steroid anti-inflammatory drug commonly used to reduce fever, pain, stiffness, and swelling.
Mr Scott gave evidence that Indocid was one of a number of anti-inflammatory tablets prescribed by the ship’s doctor for shoulder pain in 1981. He said that after he took Indocid for about 3-4 weeks his shoulder condition usually settled down and he then took further medication as prescribed by the doctor. He said he could not recall specific visits to the doctor during the period around May/June 1981 or the amount and type of medication that was prescribed: he merely took the tablets he was given.
Under cross-examination Mr Scott agreed that the service medical records show that he was first prescribed Indocid for foot and elbow pain in 1976 and for shoulder pain on 27 January 1981. The notes for the latter date state: …See 2/52. Mr Scott agreed that there is no record of him attending a doctor two weeks later or of further prescriptions of Indocid. At the VRB hearing on 14 November 2012 he stated that he took Indocid for …a couple of months and took it again for …a while again…months…when he re-injured his shoulders in 1981.
Professor R Harper, consultant & interventional cardiologist, stated in a report dated 5 March 2013 that after reviewing relevant documentation he estimated that the date of clinical onset of hypertension was 29 June 2011, when Mr Scott’s blood pressure reading was 160/110. He noted that Mr Scott was prescribed Indocid for left elbow bursitis on 24 June 1976 and said that a non-steroid anti-inflammatory agent such as Indocid is generally prescribed for 7-14 days following an episode of bursitis or other acute inflammatory joint disorder, and can cause an elevation of blood pressure, although the effect is usually not persistent.
Professor Harper noted that Mr Scott was prescribed Indocid on 27 January 1981 for a painful shoulder, with no record of a blood pressure reading on that day. Mr Scott was next seen by a medical officer on 12 May 1981 and on that day there was no record of his blood pressure and no mention of Indocid. On 29 June 1981 the blood pressure reading was 160/110. Professor Harper stated that it is highly likely that Mr Scott took Indocid for approximately two weeks from 27 January 1981 but not afterwards. He doubted whether taking Indocid for this two-week period would be responsible for the blood pressure reading of 160/110 on 29 June 1981, and said that most cases of hypertension are idiopathic (of unknown cause). He added that to his knowledge there were no other drugs prescribed prior to the clinical onset of hypertension that could have increased Mr Scott’s blood pressure.
Associate Professor S Hall, rheumatologist, stated in a report dated 30 July 2013 that he took a history that Mr Scott’s work in the navy involved kneeling, crawling and lifting and carrying heavy equipment. He noted that service medical records indicate that Mr Scott was prescribed Indocid for left elbow bursitis in June 1976. Dr Hall stated that such ingestion would have been expected to be short-term. The records also show pain behind the left shoulder on 13 October 1978, for which aspirin was prescribed. On 21 January 1981 the records show a left shoulder injury, for which an X-ray was taken. On 27 January 1981 Mr Scott presented with a right shoulder pain which had been present for six weeks. He was treated with Indocid.
Dr Hall noted in his report that, based on the documentation, it is difficult to state with any confidence whether Mr Scott took Indocid on a continual basis during the period from 27 January 1981 to 29 June 1981, or for a short time, although it is possible that Mr Scott took Indocid throughout that time. He noted that anti-inflammatory medication such as Indocid was commonly prescribed for shoulder injuries at the time, and stated: It is now recognised that Indomethacin is amongst the worst offenders amongst anti-inflammatory drugs in terms of aggravating hypertension. However he noted that the effect of anti-inflammatory drugs on hypertension is transient and occurs only when the drug is present within the body, so cessation of the drug would result in resolution of the hypertension-inducing effect within a few days of ceasing the medication. In oral evidence he said that it would have been unusual for Indocid to be handed out without a prescription after it was prescribed in January 1981.
In relation to Step 1 from Deledio concerning operational service, the hypothesis relied upon by Mr Scott was that his hypertension was caused by taking Indocid for the month before the clinical onset of hypertension which occurred on 29 June 1981, which in turn caused ischaemic heart disease. He relied on SoP Nº 63 of 2013 concerning hypertension. Factor 6 provides:
…
(h) being treated with a drug or a drug from a class of drugs from Specified List 1, where that drug cannot be ceased or substituted, for a continuous period of at least the one month before the clinical onset of hypertension;
In paragraph 9 of the SoP:
…
"a drug or a drug from a class of drugs from Specified List 1" means:
…
(k) non-steroidal anti-inflammatory drugs, excluding aspirin;
To satisfy Step 1 in respect of the hypothesis concerning factor 6(h) the Tribunal must consider whether the material points to Mr Scott taking Indocid for a continuous period from 28 May 1981 to 29 June 1981 and, if so, whether such use was related to his operational service. If so, is a reasonable hypothesis raised?
In Re Martin and Repatriation Commission [2012] AATA 744 the Tribunal summarised the case law on the question of reasonableness of hypotheses:
37. 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 on the balance of probabilities: East v Repatriation Commission [1987] FCA 242.
38. A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey [1997] FCA 1347; nor is an assumption sufficient to make a hypothesis reasonable: Byrnes v Repatriation Commission [1993] HCA 51
39. Nor is a reasonable hypothesis one that is merely plausible. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832.
40. A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East (above) at 532. That said, it does not follow, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable: see Bull (above) at [5]
In Repatriation Commission v Stares [1996] FCA 396 the Full Federal Court said:
The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran’s injury with war service. ... An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In Repatriation v Hill [2002] FCAFC 192 the Full Federal Court stated at [54]:
54. As already noted, the authorities have made the position with regard to ss 120(3) and 120A(3) of the Act clear enough. In Repatriation Commission v Bey (1997) 79 FCR 364 (which did not involve s 120A(3)), the Full Court reiterated earlier observations in East (at 531-32) and in Bushell (at 414) when it said at 372-3:
A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at 533.
In Forrester v Repatriation Commission [2013] FCA 898 Mortimer J stated:
28. At the first Deledio step, the authorities are clear that the Tribunal is not to engage in “fact finding”…
29. Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as “pointing to” or “supporting” the hypothesis advanced, involves some level of factual assessment.
30. Whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption…: Elliott v Repatriation Commission…[2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes … the Full Court stated (66 FCR 594 at 601):
By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
31. Importantly for the resolution of the issues in this case, the use of the verb “raise” in s 120(3), and the subsequent approach of asking whether material “points to” or “supports” a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey…
Applying the principles set out in relevant judgments such as Bull and East, the hypothesis in Mr Scott’s case is not fanciful or impossible or incredible or untenable. However the hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts and pointed to by the facts, even though not proven on the balance of probabilities. In the circumstances of this case Mr Scott’s operational service was 18 days (from 22 February 1970 to 1 March 1970 and from 15 May 1971 to 24 May 1971) and the clinical onset of hypertension was on 29 June 1981. Although there is no necessity for operational service to be the sole or dominant cause of hypertension, the connection must be more than minimal.
On the basis of all the material before the Tribunal, including the lapse of time between operational service and the clinical onset of hypertension, plus the lack of any identified connection between the short period of operational service and hypertension, the Tribunal concludes the hypothesis does not raise or point to a causal connection between Mr Scott’s operational service and the impact of the use of Indocid for shoulder pain in May/June 1981 leading to hypertension. Consequently the hypothesis is not reasonable and Mr Scott does not satisfy Step 1 and the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Scott’s hypertension is war-caused.
In respect of Mr Scott’s defence service, the relevant SoP is Nº 64 of 2013 concerning hypertension. Factor 6(h) provides:
…
(h) being treated with a drug or a drug from a class of drugs from Specified List 1, where that drug cannot be ceased or substituted, for a continuous period of at least the one month before the clinical onset of hypertension;
In paragraph 9 of the SoP:
"a drug or a drug from a class of drugs from the Specified List 1" means:
…
(k) non-steroidal anti-inflammatory drugs, excluding aspirin;
…
The Tribunal takes into account that Mr Scott did his best to recall events that occurred more than thirty years ago and cannot remember whether he took Indocid continuously or at all in the month before 29 June 1981. His service medical records appear to constitute a comprehensive record of his attendances at naval medical facilities in the relevant period, and the Tribunal notes that there are documents which confirm that Indocid was prescribed to him in 1976 and on 27 January 1981, but not after this date.
The Tribunal accepts Professor Harper’s evidence that non-steroid anti-inflammatories such as Indocid were generally prescribed for 7-14 days after an episode of acute inflammatory joint disorder, and that the elevation of blood pressure that may occur does not last for a protracted period. This is consistent with Dr Hall’s evidence that the effect of Indocid on hypertension is transient and present only when the drug is still within the body. The Tribunal also takes into account Dr Hall’s evidence that it would be unusual for Indocid to have been handed out to Mr Scott without a prescription after it was prescribed in January 1981.
On all the material the Tribunal concludes that there is a possibility that Mr Scott took Indocid continuously in the period 29 May 1981 to 29 June 1981 but that it is only a possibility rather than a probability, given the short-term effect of the drug. Further, the medical records are likely to have included reference to a prescription between 27 January 1981 and 29 June 1981 if in fact Mr Scott was prescribed the drug and received treatment.
For these reasons the Tribunal is reasonably satisfied that there is no causal connection between Mr Scott's hypertension and the circumstances of his defence service, and his hypertension is not defence-caused.
IS MR SCOTT’S ISCHAEMIC HEART DISEASE WAR-CAUSED OR DEFENCE-CAUSED?
In respect of operational service the relevant SoP is Nº 89 of 2007 concerning ischaemic heart disease. Factor 6 provides:
(a) having hypertension before the clinical onset of ischaemic heart disease;
…
In view of the Tribunal’s findings that hypertension is not war-caused, Mr Scott is unable to satisfy Step 1 from Deledio and he cannot succeed.
In respect of defence service the relevant SoP is Nº 90 of 2007 concerning ischaemic heart disease. Factor 6 provides:
(a) having hypertension before the clinical onset of ischaemic heart disease;
…
In view of the Tribunal’s findings that hypertension is not defence-caused, Mr Scott is unable to satisfy Factor 6 (a) of the SoP and he cannot succeed.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
......................[sgd].................................................
Associate
Dated 27 February 2014
| Date of hearing | 25 February 2014 |
| Counsel for the Applicant | Ms L Martin |
| Solicitors for the Applicant | Williams Winter |
| Counsel for the Respondent | Mr G Purcell |
| Solicitors for the Respondent | Department of Veterans' Affairs |
0
4
1