Burton and Repatriation Commission
[2004] AATA 784
•26 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 784
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/821
VETERANS' APPEALS DIVISION ) Re JAMES ARTHUR BURTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Ms G Ettinger - Senior Member
Date26 July 2004
PlaceSydney
DecisionThe Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 29 October 2001 as affirmed by the Veterans’ Review Board decision of 14 April 2003 to refuse the Applicant, Mr Burton’s claim that his psoriasis was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Veteran – Applicant suffers psoriasis – contracted during eligible war service as a result of streptococcal throat infection – diagnosis confirmed – causation an issue – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 - ss 9, 119, 120B, 120(4), 196B(14)
Repatriation Medical Authority, Statement of Principles Instrument No.57 of 2002
CASE LAW
Repatriation Commission v Gorton [2001] FCA 1194
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Bey (1997) 79 FCR 364
Holthouse v Repatriation Commission (1982) 1 RPD 287
Benjamin v Repatriation Commission (2001) 64 ALD 411
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission [2003] FCAFC 146
Re Repatriation Commission and Stephen Edward Keenan, Federal Court, 29 September 1989, 594/1989
Repatriation Commission v Law (1981) 36 ALR 411
REASONS FOR DECISION
26 July 2004 Ms G Ettinger - Senior Member
1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Repatriation Commission dated 29 October 2001 (T2), as affirmed by the Veterans’ Review Board decision of 14 April 2003 (T16), to reject the Applicant Mr James Arthur Burton’s claim that his psoriasis was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The Applicant, Mr Burton was represented by Mr M Vincent, of counsel instructed by Dibbs Barker Gosling, and the Respondent by its advocate, Ms T McConnell who appeared with Mr A Breen.
ISSUE BEFORE THE TRIBUNAL
3. The issue for consideration by the Tribunal was whether the psoriasis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans’ Entitlements Act1986.
LEGISLATIVE CONTEXT
4. The relevant legislation in this matter was the Veterans’ Entitlements Act1986, in particular sections 9(1), 119, 120B, 120(4) and 196B(14). Section 9 of the Act was amended by proclamation on 1 July 2004, however, the law relevant at the time of this matter provided as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
5. I noted that as Mr Burton had lodged his claim with the Respondent after 1 June 1994, I was required to apply section 120B of the Act and consider his claim in light of any applicable Statements of Principles (“SoPs”) as issued by the Repatriation Medical Authority:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
…
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: …
…”
6. Moreover, as Mr Burton had served his country on eligible service from 24 March to 20 July 1942 in the Australian Army (“the Army”) and 18 July 1944 to 21 May 1946 in the RAAF, the standard of proof applicable was to the Tribunal’s reasonable satisfaction pursuant to section 120(4) of the Act.
“120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
7. Section 196B(14) was also relevant to Mr Burton.
“196B Functions of Authority
…
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury--it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person--it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service.”
8. I noted that the relevant SoP at the time of the Repatriation Commission decision was Instrument No.22 of 1998, and that the current SoP, which, pursuant to the principles in Repatriation Commission v Gorton [2001] FCA 1194, I was to apply, was Instrument No.57 of 2002. The definition of guttate psoriasis in the SoP No.57 of 2002 is as follows:
“ ‘guttate psoriasis’ means a form of psoriasis seen primarily in children and young adults, characterised by the abrupt appearance of small droplike lesions over much of the skin surface;”
9. In considering SoP No.57 of 2002, I noted that the factor that must exist before it can be said that, on the balance of probabilities, psoriasis is connected with the circumstances of Mr Burton’s relevant service, was in this case, Factor 5(f), which as relevant follows:
“5The factors that must exist before it can be said that, on the balance of probabilities, psoriasis or death from psoriasis is connected with the circumstances or a person’s relevant service are:
…
(f) suffering from streptococcal pharyngitis or streptococcal tonsillitis within the 30 days immediately before the clinical onset of guttate psoriasis; or
…”
10. The date of effect should the application be successful, would be 2 July 2001.
11. I was mindful that in order for the Applicant to succeed, the causal, and not just the temporal connection had to be made.
EVIDENCE BEFORE THE TRIBUNAL
12. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”) as Exhibit R1, and the following Exhibits:
ITEM
DATE
NAME
Applicant’s Statement of Facts and Contentions
26 March 2004
Exhibit A1
Statement of Mr James Burton
12 September 2003
Exhibit A2
Report of Dr Lobel
4 November 2003
Exhibit A3
Supplementary Report of Dr Lobel
30 April 2004
Exhibit A4
Page of Guttate Psoriasis printed on the Internet
3 May 2004
Exhibit A5
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act (T-documents)
17 June 2003
Exhibit R1
Respondent’s Amended Statement of Facts and Contentions 3 May 2005 Exhibit R2
Clinical Notes from Kooringal Medical Centre
30 July 2003
Exhibit R3
Complete Service Medical Documents
4 July 2003
Exhibit R4
Minute from Dr Kyin
5 February 2004
Exhibit R5
Respondent’s Submissions
1 May 2004
Exhibit R6
13. Oral evidence in person was given by the Applicant, Mr Burton, and Dr E Lobel.
EVIDENCE OF MR BURTON - THE APPLICANT
14. Mr Burton whose date of birth is 13 July 1924, and whose statement of 12 September 2003 was before the Tribunal as Exhibit A2, gave oral evidence on oath before the Tribunal.
15. Mr Burton told me that he spent three weeks in hospital at Victoria Barracks while in the Air Force in May 1942 with tonsillitis, and developed a spotty rash on his back, hips and chest. Mr Burton described what followed which was a complete rash which looked like reddish, itchy pin heads/bubbles covering his body. He described how these would develop, scale and then peel off. He said that the rash would recede, and then reactivate, but never went away completely. Mr Burton said that he was not told what the rash was. He said it was treated with Calamine lotion and creams, and, because his health had not improved, he was then transferred to Prince Henry Hospital where, on 12 May 1942, (T4), he was placed in isolation in the infectious diseases area. Mr Burton’s evidence was that he had a high temperature, and that he was advised that his doctors would be “treating me both internally and externally for any rash and viruses I had.”
16. His oral evidence accorded with that in his written statement (Exhibit a2), where he wrote:
“…
Firstly I was given tablets to reduce my temperature and then they applied calamine lotion to the rash.
A tube was inserted down my throat through which I was given a compound mixture I believe was aniseed and tar. After two days the rash developed to about 75% of my body.
During the first seven or eight days the trauma and stress from tests led to the rash worsening, the swelling of my right tonsil and glands, high temperatures, nightmares and falling out of bed …
I had to sip cold water to relieve the choking, which I experienced every night and no one was allowed to visit me.
After three days the calamine didn’t seem to be working effectively so treatment was changed.
I was given a brown liquid which tasted absolutely terrible. I wasn’t told what it was but my doctor, Dr Max Graffen, believed it would have been chloroquine.
…”
17. Mr Burton explained that by the time he was sent to Prince Henry Hospital, his chest, sides and back, upper arms, and generally 50 percent of his body was covered by the rash. Mr Burton said that when he applied the ointment, a red ring the size of a three pence piece would develop and become a sore, then dry and peel off. They would recur. He said that he first noticed these plaques when he went to Prince Henry Hospital, and said that he was pretty sick at the time. He said that the distribution of the plaques changed to include his stomach and hips, and the back, near the buttocks.
18. Mr Burton said that on the second last day in hospital, on 24 May 1942, he was diagnosed with mononucleosis. He was then transferred to Lady Gowrie Convalescent Home in Sydney where he stayed until 20 July 1942. He was then examined by a medical board of review, and discharged medically unfit on 29 July 1942.
19. Mr Burton’s rash was diagnosed by Dr Bellisario as psoriasis in 1950. He had been referred by his general practitioner who, Mr Burton said, had treated him for two and a half years and found he could do no more.
20. Mr Burton described various topical treatments applied to the rash (Calamine, ointment and creams). He said that his sore throat cleared up, but only about 50 percent of the rash cleared; it would go into remission and return at different times, and never completely disappeared.
21. Mr Burton said that from that time on, to the date of joining the Royal Australian Air Force (“the Air Force”) in July 1944, the mononucleosis cleared, but the rash went in and out of remission. He said that on joining the Air Force, he had only a small amount of lesions showing, and it was thought they could be treated. He said however that he was told he would not be sent further north than the Queensland border because of his medical history, and accordingly was posted to Melbourne. He said that during his time in the Air Force and on discharge, “the rash kept going in and out of remission”. Mr Burton said that he did not worry about it until 1949 when his general practitioner advised him to consult Dr Bellisario, a dermatologist, who diagnosed psoriasis, as did Drs Smee and Graffen.
22. Mr Burton described enlisting in the Air Force, and being told that he would not be posted to hot climates due to his rash. Mr Burton said that the rash, which was the same rash he suffered during his time in the Army, would come and go in the same way. He said he learned to live with it during his time in the Air Force and afterwards in civilian life, and has continued to do so, treating it with Aristocort cream. Mr Burton said that the psoriasis had eased in recent times, but was always present, and not cured.
dr edmund lobel – dermatologist
23. Dr Lobel whose statements of 4 November 2003 (Exhibit A3) and 30 April 2004 (Exhibit A4), were before the Tribunal, gave oral evidence. In his report at Exhibit A3, Dr Lobel stated that when he examined Mr Burton in November 2003, Mr Burton’s psoriasis was in remission. He noted, however, that Mr Burton was documented with having suffered Group A haemolytic streptococcus throat infection at the time of onset of a rash in 1942, and that that infection was a trigger factor for persons with a predisposition, to develop psoriasis. Dr Lobel added that the rash was not documented at that time, and that the first reports of psoriasis were those of Dr Bellisario in 1950. He also stated that infectious mononucleosis is also associated with a skin rash but that “if it can be assumed that the rash which he suffered in 1942 was the same rash which was present when he saw Dr Bellisario in 1950 then there is a definite trigger factor in his having suffered from Group A haemolytic streptococcal throat infection.” Dr Lobel corroborated this in his oral evidence, opining that it was therefore possible Mr Burton may have suffered guttate psoriasis at the time of the streptococcal throat infection.
24. Dr Lobel opined in his oral evidence that the actual cause of psoriasis was not known, but that genetically predisposed people who were exposed to environmental triggers such as streptococcal throat infection such as Mr Burton suffered in 1942, were at risk of developing psoriasis. He said guttate psoriasis could accordingly be triggered, and could evolve into plaques, or it could resolve. He said that he did not know of any other trigger or other obvious reason (other than the streptococcal infection), responsible for Mr Burton’s psoriasis, and that from the history given, of the pinhead sized rash evolving into plaques, co-existent with other lesions, suggested there was a continuity of the psoriasis from 1942 to 1950.
25. Dr Lobel also opined that where psoriasis is diagnosed and not specified, “one takes this to mean discoid (plaque) type.”
26. Dr Lobel described guttate psoriasis in his second report at Exhibit A4 as well as in his oral evidence. He agreed from Mr Burton’s description of the rash suffered in 1942, that the description fitted with guttate psoriasis.
27. Dr Lobel said that he accepted Mr Burton had been diagnosed with psoriasis by Dr Bellisario in 1950, and added that the most common form of psoriasis was plaque psoriasis, but that that was essentially the same illness as guttate psoriasis.He corroborated his written report in his oral evidence, namely when he examined Mr Burton in 2003, the Applicant had evidence of psoriasis on his nails, but that he was not, at that moment, suffering psoriasis.
SUBMISSIONS AND CONCLUSIONS
28. In coming to the correct and preferable decision, I have had to take into account the evidence, both written and oral, the case law, legislation and relevant SoP to decide whether Mr Burton’s psoriasis was war-caused pursuant to section 9 of the Act.
29. Subject to the Act, the Commonwealth is liable to pay pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or war-caused disease (section 13 of the Act). The circumstances in which a veteran's injury or disease will be taken to be a war-caused injury or war-caused disease are set out in section 9 of the Act. There was no dispute between the parties that Mr Burton rendered eligible war service (s.7(1)(c)), but not operational service). The relevant date of effect is 2 July 2001.
30. I noted that Mr Burton, whose date of birth is 13 July 1924 , served his country in the Royal Australian Army and the Royal Australian Air Force, and that his eligible defence service in the Army was between 24 March 1942 and 20 July 1942. He was discharged from the Army as medically unfit on 29 July 1942, and enlisted in the Air Force on 18 July 1944, where he served until 21 May 1946 (T2/5). Accordingly, the standard of proof to be applied in this matter was section 120(4) of the Act, that is to the reasonable satisfaction of the Tribunal, and applying SoP Instrument No.57 of 2002.
31. I noted discussion at the Hearing of the application of section 119 of the Act due to the inability of the Respondent to retrieve certain documents in relation to Mr Burton. Reliance on section 119 of the Act is always available to the Tribunal if required. I was however mindful of the Respondent’s submission that such excuse cannot be used to fill in evidentiary gaps, and noted the Respondent’s referral to Mason v Repatriation Commission [2000] FCA 1409 and Repatriation Commission v Bey (1997) 79 FCR 364 in support of its submission.
32. I put on record here that I found Mr Burton to be a witness of truth who had done his best to discover further information to assist with his claim, and had made relevant inquiries in that regard, only to find that various records no longer existed. The Respondent fully supported that position.
33. In that regard, I noted Mr Burton’s evidence that he had tried to retrieve files relating to his medical condition, and had been informed that documents at York Street had been water damaged, and were no longer in existence. He said that he had approached Prince Henry Hospital in 1960 and offered to spend time himself searching for the records relating to his treatment there. He said that he was told the records from 1942 to 1957 had been destroyed, and accordingly there was no information regarding what treatment he had received. Mr Burton said that when he approached Lady Gowrie Hospital, he was told that their records had been sent to the Repatriation Commission. I accepted that Mr Burton had made extensive efforts to obtain further information about his condition and treatment during his eligible service.
34. For the sake of completeness I have noted also that during the Hearing, and because of the discussion regarding certain documents relating to Mr Burton which may have been missing, a file relating to him was produced from the Respondent’s archives. The parties decided however that it was not relevant to the matter before the Tribunal, and accordingly its contents were not considered.
CLOSING SUBMISSIONS OF THE APPLICANT
35. Mr Vincent submitted that the questions before the Tribunal were a decision regarding causation, the nature of the rash Mr Burton suffered in 1942, and whether that was the onset of the psoriasis which Dr Bellisario eventually diagnosed and documented in 1950.
36. He submitted that:
· Mr Burton was a witness of truth, and gave detailed, coherent and eminently believable evidence which should be accepted;
· Dr Lobel had acknowledged that Mr Burton’s description of his rash (the description of the rash and its substitution by plaques), sounded like he had suffered guttate psoriasis during eligible service, and that by 1950 such diagnosis had been made;
· Dr Lobel, had opined that there were no other triggers present for psoriasis and Mr Burton’s rash, than the streptococcal throat infection;
· Accordingly, on balance Dr Lobel acknowledged that Mr Burton had developed guttate psoriasis which had arisen within the 30 days specified in Factor 5(f) of SoP, Instrument No.57 of 2002 as a result of the throat infection,
· Mr Burton met Factor 5(f) in SoP, Instrument No.57 of 2002;
· As to causation; Mr Burton was serving when he became ill; he may not have contracted a streptococcal throat infection in civilian life. Mr Vincent submitted, relying on Repatriation Commission v Law (1981) 36 ALR 411, that a slight causal connection was sufficient. He also referred to the deeming provision in section 9(1)(d) of the Act.
· Mr Vincent also raised the “but for” argument in reference to section 9(2) of the Act.
CLOSING SUBMISSIONS OF THE RESPONDENT
37. Ms McConnell, whose written submissions on behalf of the Respondent were before the Tribunal as Exhibit R6, also made oral submissions as follows:
· There was an issue regarding the type of psoriasis Mr Burton suffered in 1942, and what he now suffers;
· The temporal connection may have been present; the eligible service was merely the setting in which the rash occurred, but the causal connection with Mr Burton’s war service was not able to established;
· Dr Lobel’s opinion was that Mr Burton had suffered psoriasis which was more likely than not triggered by the throat infection, but that there was no evidence it had been caused by service;
· Mr Burton was not presently suffering guttate psoriasis.
· The Tribunal had to be satisfied that Factor 5 in the SoP was met on the balance of probabilities, noting that the SoP had more than one limb;
· I noted reference to a number of decided cases in Exhibit R6.
THE DIAGNOSIS
38. I have accepted the oral evidence of the Applicant and his written evidence in Exhibit A2, in regard to the commencement of his rash in 1942 following a streptococcal throat infection. I have accepted the description of it, noting that the diagnosis of psoriasis was not recorded during service. I have accepted that Mr Burton was diagnosed with mononucleosis after his throat infection and rash had appeared, and I have accepted the history given of his extended periods in hospital (T4).
39. I have accepted Dr Lobel’s evidence that the actual cause of psoriasis is not known, but that genetically predisposed people who are exposed to environmental triggers such as streptococcal throat infection as Mr Burton suffered in 1942, are at risk of developing psoriasis. Dr Lobel’s opinion was that guttate psoriasis could accordingly be triggered, and could evolve into plaques, or it could resolve. I accepted Dr Lobel’s opinion that he did not know of any other trigger or other obvious reason (other than the streptococcal infection), responsible for Mr Burton’s psoriasis, and that from the history given of the pinhead sized rash evolving into plaques, co-existent with other lesions, and recurring, suggested there was a continuity of the psoriasis from 1942 to 1950, when psoriasis was diagnosed by Dr Bellisario. In that regard I have noted that Dr Bellisario’s records are no longer available.
40. I have noted further the evidence of Dr Emilie Kyin (Exhibit R5 dated 9 February 2004), in which she wrote:
“Veteran had histopath proven “Psoriasis” in 1950 and did have psoriatic patches in year 2000 when seen by Dermatologist at Wagga (…)
He still has nail dystrophy & pitting indicative of psoriasis.
Therefore a diagnosis of “Psoriasis” can still be made.”
41. Dr I Smee (T6), who was requested by the Department of Veterans’ Affairs to examine Mr Burton wrote on 23 December 1999, wrote in relation to Mr Burton’s rash in 1942:
“It is plausible to suggest that this may have been his first attack of psoriasis. He was certainly diagnosed as having psoriasis by a Dr Bellisario and has had skin biopsies since then, which confirmed the diagnosis. … I do not think it could be maintained that he contracted this disease because of military service but it is plausible that he contracted it during military service.”
42. Dr M Graffen at T7, in a report dated 7 June 2000 requested by the Department of Veterans’ Affairs, opined as follows:
“On the balance of probabilities, I believe that James’ psoriasis is linked to his war service on the basis that James suffered a clinically significant anxiety/depressive disorder at the time of the clinical appearance of his skin condition. Furthermore, that he was unable to obtain appropriate clinical management for his psoriasis for at least eight years until the condition was first definitively diagnosed. Although the causation of psoriasis is still unknown, there is an interesting variant called guttate psoriasis which follows on from streptococcal throat infections and, therefore, there is a speculative link between James’ positive throat swabs and the subsequent appearance of the rash.”
43. I was mindful that the inability to obtain appropriate clinical management for psoriasis, even if that had been the case, was not applicable to Mr Burton because he had served less than the statutory six months in the Army to qualify for such consideration.
44. There is further correspondence with medical practitioners including a rheumatologist in the T-documents which I have not detailed because no claims in that regard have been made before me. There is also a report of Dr Penny Lee (T10), dated 10 November 2000 in relation to psoriasis and the treatment of Mr Burton with Aristocort cream, which Mr Burton confirmed he has been using.
45. I relied on the medical evidence of Dr Lobel and Dr Kyin regarding Mr Burton’s psoriasis, and noted that at the time of Dr Lobel’s reports in November 2003, (Exhibit A3), and April 2004, (Exhibit A4), Mr Burton’s psoriasis was in remission. I was however satisfied from the evidence of Mr Burton, and his description of how his rash appeared and developed, and Dr Lobel’s written and oral evidence, including Dr Lobel’s opinion that there were no other triggers present for psoriasis, and Mr Burton’s rash following the throat infection, and pursuant to the tests in Repatriation Commission v Cooke (1998) 160 ALR 17 and Benjamin v Repatriation Commission (2001) 64 ALD 411 that Mr Burton suffered guttate psoriasis during eligible service in 1942, as diagnosed by Dr Bellisario in 1950. This was so notwithstanding the paucity of records. I was satisfied however from what records there were, that in 1942, Mr Burton suffered a Group A haemolytic streptococcus throat infection at the time of the onset of the rash he described, and which continues to the present day in its various manifestations. I accepted the medical evidence of Dr Lobel which described the rash in 1942, as having been likely to have been guttate psoriasis.
46. I was satisfied therefore that Mr Burton contracted psoriasis during his war service. Causation remained however to be determined.
THE SOP INSTRUMENT NO.57 OF 2002
47. I was mindful that the relevant SoP at the time of the Repatriation Commission decision was Instrument No.22 of 1998, and that the current SoP to be applied, was Instrument No.57 of 2002 (Gorton (supra)). The factors that must exist before I can be satisfied that guttate psoriasis was connected with the circumstances of Mr Burton’s eligible service, were in this case, Factor 5(f), which as relevant follows:
“5.(f) suffering from streptococcal pharyngitis or streptococcal tonsillitis within the 30 days immediately before the clinical onset of guttate psoriasis; or
…”
48. I have noted that in previous decisions and correspondence with the Respondent, other factors have been raised, including the possibility of treatment of Mr Burton with Chloroquine and/or Lithium, and his inability to obtain appropriate clinical management for psoriasis. As Mr Burton served less than the statutory six months in the Army to qualify for consideration in relation to inadequate clinical management of his illness, I have not explored that factor further.
49. I was satisfied from the evidence of Mr Burton and the document at T4, as well as the reports of Drs Kyin and Lobel, that the Applicant suffered a streptococcal throat infection in May 1942. Further that his reports of the skin rash were accurate descriptions of the development of psoriasis, and indeed guttate psoriasis, (Dr Lobel), which developed well within the requisite period in satisfaction of Factor 5.(f) of the relevant SoP. Notwithstanding, I had to determine causation.
WHETHER MR BURTON’S PSORIASIS WAS WAR-CAUSED PURSUANT TO THE LEGISLATION
50. I was mindful that being satisfied to the requisite standard that Mr Burton developed guttate psoriasis as a result of his Group A haemolytic streptococcus throat infection, he suffered during his eligible service in the Army in 1942, I had to consider whether the disease was war-caused. I was satisfied that the Veteran contracted the illness during service, and met the tests in Factor 5.(f) of SoP No.57 of 2002 in that he was suffering from streptococcal throat infection within the 30 days immediately before the clinical onset of guttate psoriasis.
51. However, I noted that in Holthouse v Repatriation Commission (1982) 1 RPD 287 Davies J stated:
“section 107M(2)(b) [the Repatriation Act 1920 equivalent of s 9(2)], does not in my view abrogate the ordinary principles of causality or dispense with the requirement that the defence service be a contributing cause of the incapacity or death.”
52. The first important section to be addressed is section 9(1)(b) of the Act which applies to Mr Burton because he had eligible service, and where the causation is perhaps more onerous to establish than in regard to veterans who served with operational service. The issues of causation in regard to veterans with operational service are of course considered pursuant to section 9(1)(a) of the Act.
53. Section 9 of the Act relevantly provides:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.”
54. I was mindful that given Mr Burton had eligible service, I would have to be satisfied that his guttate psoriasis arose out of, or was attributable to any eligible war service he rendered for it to be found to be war-caused (section 9(1)(b) of the Act). I was satisfied that Mr Burton became ill with the streptococcal throat infection which triggered his guttate psoriasis during his eligible Army service, and noted Mr Vincent’s submission that he may not have contracted such infection in his civilian life.
55. In coming to a decision, I have considered all the relevant sub-sections of section 9 of the Act, and amongst others, the case of Repatriation Commission v Tuite (1993) 39 FCR 540. I was mindful that in Repatriation Commission v Tuite (supra), Davis J discussed the meaning of the expressions "arose out of, or was attributable to" eligible war service in section 9(1)(b) of the Act, (as applicable to Mr Burton), as follows:
“The words of s.9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease. ... Under s.9(1)(b), but not under ss.9(1)(d) and 9.(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.”
56. In Repatriation Commission v Tuite (supra), the Full Court of the Federal Court upheld the decision of Justice Foster who refused to extend time for leave to appeal from a decision of the Tribunal, on the basis that the Repatriation Commission did not have a reasonable prospect of success. The matter related to whether Mr Tuite’s smoking habit which had contributed to the development of his emphysema and gastric ulcer arose out of, or was attributable to his eligible war service. Justice Davies stated at paragraph 8 of the decision:
“If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
57. I did not have evidence of how Mr Burton contracted the streptococcal infection or any evidence that it had any causal relationship to his rendering of eligible war service. The fact that he became ill with the streptococcal infection during service satisfied the temporal connection but did not satisfy me as to any causal connection in that the infection may have been contracted while on leave, or off duty during the Veteran’s own private activities.
58. I was mindful also of Ms McConnell’s reference to the case of Roncevich v Repatriation Commission [2003] FCAFC 146, where I noted that the majority in the Full Court dismissed the further appeal of Mr Roncevich, upholding the primary judge who held that the AAT had not erred in its finding that Mr Roncevich’s attendance at a function was not compulsory, and that he had not been required to partake in the drinking session after which he was injured. The Court held that his excessive drinking did not arise out of any task he had to do as a soldier, and that accordingly the knee injury which arose out of his fall, did not have the relevant nexus to his defence service.
59. I noted that neither section 9(1)(c) nor (e) of the Act applied to Mr Burton in that it was not a journey claim, neither a case of aggravation, nor any of the other considerations in section 9(1)(e) of the Act.
60. I moved then to consider Mr Burton’s claim pursuant to sections 9(1)(d) and 9(2) of the Act.
“(1)(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.”
61. Mr Vincent argued that but for Mr Burton being in the Army, he may not have contracted the streptococcal throat infection out of which arose his guttate psoriasis.
62. Ms McConnell relied on the following passages from Pincus J's judgment in Re Repatriation Commission v Keenan Federal Court, 29 September 1989, 594/1989 where I noted his Honour stated at paragraphs 29 and 30 as follows:
“29. That leaves for consideration s.9(2), quoted in part above. Obviously if A would not have happened but for B, there is a causal connection between the two, but the contrary is not necessarily so. An established lawyer may be able to date his interest in the law from a visit to Court in his youth and say that his ultimately becoming a lawyer was contributed to by that visit; it is another thing altogether to say that but for the visit he would not have become a lawyer.
30. Therefore, the test imposed under s.9(2) seems more difficult for a veteran to satisfy than does that under s.9(1)(b). It is clear form s.9(1)(d) that the two are alternatives. The only possible advantage for Mr Keenan of reliance on s.9(2) that I can discern is that it refers to changes in “environment” as a possible cause of disease and that may encompass the social and other attributes of the Heidelberg Military Hospital. Nevertheless, it appears that the easiest path to success for Mr Keenan is under the “attributable to” branch of the s.9(1)(b) test, for Laws’ case shows that war service need not be the sole or dominant cause and that it is enough that it be a contributing cause.”
63. I preferred the submissions of the Respondent, in that from the evidence before me, I could not be satisfied that there were changes in Mr Burton’s environment which might have caused or acted as a contributing cause to the Veteran’s illness. On the evidence before me, Mr Burton could as easily have contracted the streptococcal infection at home or elsewhere, and I could not be satisfied that the “but for” argument could be sustained. I have applied the legislation mindfully, and relied on other decided cases. Mr Burton’s situation does not come within the parameters of section 9(1)(d) or 9(2) of the Act. His illness cannot be found to have arisen out of, or be attributable to any eligible war service rendered by him.
64. Regrettably I must find therefore find that Mr Burton’s illness arose during his war service, thus satisfying a temporal test, but not the causal one.
65. Unfortunately therefore, notwithstanding the discomfort Mr Burton suffered with the streptococcal infection followed by psoriasis for so many years, I cannot find that the illness was war-caused and the decision under review must be affirmed.
DECISION
66. The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 29 October 2001 as affirmed by the Veterans’ Review Board decision of 14 April 2003 to refuse the Applicant, Mr Burton’s claim that his psoriasis was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: Neil Glaser
Associate
Date of Hearing 3 May 2004
Date of Decision 26 July 2004
Solicitor for the Applicant Dibbs Barker Gosling
Counsel for the Applicant Mr M VincentAdvocate for the Respondent Ms T McConnell with Mr A Breen
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