Casas and Repatriation Commission
[2003] AATA 1131
•10 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1131
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/187
VETERANS' AFFAIRS DIVISION ) Re KIM STEPHEN CASAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P A Staer, Member Date10 November 2003
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor decides that:
(a) (i) the applicant’s tinea condition and ischaemic heart disease condition are war-caused diseases within the meaning of section 9 of the Veterans’ Entitlements Act1986 (“the Act”);
(ii) the matter of assessment of the degree of the applicant’s incapacity by reason of each of the above mentioned conditions is remitted to the respondent;
(b) the applicant previously suffered from an anxiety disorder but that condition has been overwhelmed by, and subsumed within, the condition of post traumatic stress disorder subsequently contracted by the applicant following the collision and sinking of HMAS Voyager. The post traumatic stress disorder does not relate to eligible service and is therefore not war-caused within the meaning of section 9 of the Act.
.............(sgd P A Staer)....................
Member
CATCHWORDS
VETERANS’ AFFAIRS - Ischaemic heart disease – Naval smoking culture – immersion in visible smoke haze – 1000 hours
REASONS FOR DECISION
10 November 2003 Dr P A Staer, Member
1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by Kim Stephen Casas (“the applicant”), born on 2 April 1939, for a review of a decision of the Repatriation Commission (“the respondent”) dated 3 May 2000 which was affirmed 12 April 2001 by the Veterans Review Board.
2. That decision was the rejection of the applicant's claim that ischaemic heart disease, tinea and post traumatic stress disorder are not war caused.
HEARING
3. The Tribunal convened at Perth on the 10th September 2003. Ms Shelley Taylor represented the applicant and Mr Carl Ponnuthurai represented the respondent. The Section 37 Documents (T1-T32) were before the Tribunal. Oral evidence was taken and documents taken as Exhibits were;
Exhibit A1Statutory Declaration of Ross Patrick Paul Martin, dated the 18th of August 2003
Exhibit A2A report by Peter Dingle, senior lecturer in environmental toxicology at Murdoch University dated the fourth of July 2003
Exhibit A3Statutory Declaration by Brian Douglas Owston dated 9 of October 2002
Exhibit A4A report by Dr James Fellows-Smith dated the 11th of August 2003
Exhibit A5Statutory Declaration by Paul Martin Carolan with a Fax date of
9 October 2003
Exhibit R1Research report by Capt Henry Josephs dated 9 August 2002
Exhibit R2Report by Dr Anthony Mander dated 20 January 2002
OPENING
4. Mr. Ponnuthurai informed the Tribunal that on a report of a Dr. Foong the applicant's tinea had been accepted has war caused.
5. Mr Ponnuthurai also reported that the respondent agreed that the applicant suffered an anxiety disorder casually related to his service in the Far East Strategic Reserve prior to the clinical onset of post traumatic stress disorder. The respondent contends, that such a condition is now not separately diagnosable from the applicants post traumatic stress disorder, arising out of the sinking of HMAS Voyager, a condition that is not related to any period of eligible surface.
6. The parties were agreed that the only issue before the Tribunal was the ischaemic heart disease. As the Repatriation Medical Authority has issued a determination in relation to ischaemic heart disease the Tribunal is bound by that determination in the Statement of Principles (“SoP”) in relation to ischaemic heart disease. The appropriate instrument it was agreed was instrument No 39 of 1999.
THE EVIDENCE
Kim Stephen Casas
7. The applicant joined the Navy in 1958. In his early years he spent time on the Voyager and was involved with the Far East Strategic Reserve. He was on the Voyager when it was sunk in collision with the Melbourne. He left Navy in early 1967 but because he could not find satisfactory civil employment to support his family he rejoined the Navy in October 1967 and stayed in the Navy until he was discharged in October 1979.
8. In November 1979, a month after discharge from the Navy, he had a severe attack of chest pain and was diagnosed as having ischaemic heart disease with a blocked coronary artery and underwent emergency coronary bypass surgery. Since that time he has had two further heart attacks and has also had an angioplasty.
9. Since his discharge most of his work has been with security firms.
10. In 1995 his post traumatic stress disorder, which had been diagnosed by a Dr Raphael in 1993 and confirmed by a Dr Oleh Kay was accepted has having been caused by the Voyager accident and he was given a compensation payment.
11. He started smoking in recruit school because it was the done thing and everyone else was smoking. Cigarettes were cheap and freely available and there were no restrictions on smoking most of the time. He also related that there were other fumes and smells on board ship including diesel smells, sulphur fumes from the funnel and the fumes of lead paint. He gave evidence that the ventilation below decks was not good even though there were punkah louvres and some fans. His level of smoking varied depending on the stress of his occupation but on average was probably about 10 day. In times of stress it could be as high as 60 a day. He is now a “reformed smoker” and can’t stand being in an enclosed space with smokers.
12. He spoke of the smoking in the recreation areas on board ship and that there was often a blue haze in their cafeteria and recreational area. When movies were being shown he could see the cigarette smoke in the beam of light from the movie projector. The early ships he served on had no air-conditioning and even when stationed on Daring class destroyers, which had air-conditioning, it was inadequate and there was still much smoke in the air in the recreation and sleeping areas below deck.
13. He told of times of stress while in the Far East Strategic Reserve when there were near collisions with other ships. He also spoke of the continuing effects of the Voyager disaster and his need of antidepressants and his use of alcohol to help him relax. His relationship with his children is good but he is concerned that his heart condition prevents him being actively involved with his grandchildren and the continuing effects of his post traumatic stress disorder makes a difficult for him to spend any significant time relating to his grandchildren.
14. He was never told his BP was elevated. He was smoking up until the diagnosis of ischaemic heart disease. He gained weight in the latter years of his service in the Navy but was never told he was obese although he did see it noted in his medical records at a later date.
Ross Patrick Paul Martin
15. Mr Martin confirmed his Statutory Declaration.
“I served as the seamen in the Royal Australian Navy on the Daring class destroyer HMAS Voyager from 9-1-1959 to 8-8-1961 and then in HMAS Vendetta from 11-5-1963 to 19-6-1964. There were no smoking restrictions in force between decks except in the magazines to my knowledge and in confined spaces such as paint shop. There was a continuous smoke haze through the ship because of the number of crew smoking and the coming and going of crew as they came on and off watch every four hours. Particularly heavy in mess decks where up to 30 or more crew lived in not a very large space. The most sought after thing after a gunfire exercise was the safety cone off the nose for the of a 4.5inch shell as it was the perfect shape to fit on the side of the bunk and was used as an ash tray. Neither of these vessels were properly air-conditioned, forced air came through a “punkah louvre” system. When in the tropics a lot of crew, when exercises permitted, took their mattresses and slept on the upper deck because of the oppressive conditions between decks ” A1
16. Under cross-examination he confirmed that there was often a light blue haze that could be seen through the fluorescent lights and continuous smell of smoke. 90% of the crew were smokers.
17. He confirmed the stress of being away at sea for long periods. He related in his own case how he had a son born prematurely but did not to see him for four months. He was aware that the applicant had counselling and he was often irritable. He had been at recruit school with the applicant, served on the Voyager with him and was best man at his wedding.
Dorothy Casas
18. Mrs Casas said she had known the applicant for 45 years and had been his wife for 42 years. She has never smoked. She said he was a loving husband in the early years and that there were changes in his mental state even before the Voyager accident. She felt he bottled up his feelings inside and used smoking and alcohol for his stress.
19. She related the struggle they had after he left Navy, had his heart attack and then the bypass surgery. There was no income coming in.
20. She says her husband finds it difficult to make conversation and that she feels his life in the Navy has a significant effect on the family. His drinking interferes with his responsibilities. She confirmed that he can't spend more than 10 minutes with his grandchildren. She was also concerned at the lack of help in counselling for the family after the Voyager accident.
Peter Wayne Dingle PhD
21. Dr Dingle, an environmental toxicologist, affirmed his report of 4 July 2003. A2 His evidence related to environmental tobacco smoke (“ETS”) and the many studies showing the adverse health effects of passive smoking. He had never been on board a naval ship. He spoke of other toxic substances that could affect air quality below decks in Navy ships. He is aware of many studies relating passive smoking to ischaemic heart disease.
Brian Douglas Owston
22. Mr Owston is the applicant's son-in-law. He spent 25 years in the Royal Australian Navy rising to the rank of Chief Petty Officer Fire Control and retired in 1995. He stated in his statutory declaration:
“during my service career had the opportunity to observe and participate in the culture of recreational smoking on board HMA Ships in which I served, the culture of smoking went relatively unchanged until late 1989 and early 1990 whereby Ships Standing Orders on HMA Ships were halted by a Navy office directive whereby prohibiting smoking within HMA Ships, smoking after this time was only tolerated on the upper decks or specified approved ventilated spaces. Prior to this time the habit was more or less uncontrolled unless specific temporary circumstances determined probation such as refuelling operations, ammunitioning ship, action stations….” A3
23. He gave evidence of the crowded accommodation on board ship and that all bunks had an ashtray attached and there were no smoking restrictions in any sleeping or recreational space prior to 1990. In his early years there was ongoing and continuous exposure to active and passive tobacco smoke on board HMA Ships. Below deck he could often see the tobacco haze when the lights were on.
Henry Alfred Josephs
24. Captain Josephs gave his report by telephone from Canberra. He works with Writeway Research Service and is retired after having had a 37 year career in the Royal Australian Navy starting in the lower deck and rising to the rank of Captain. He had served in similar ships to the applicant. As an officer he felt it was important to know that conditions where men lived.
25. He commented specifically on the last three ships in which the applicant had served HMAS Duchess, HMAS Vendetta and HMAS Perth. The latter two were air-conditioned but HMAS Duchess, while not air-conditioned, had fan forced air circulation arrangements that “passed through every accommodation and work space and were fitted at regular intervals with outlets called “punkah louvres”.. He did state that there would be occasional periods when outside air had to be closed off.
26. He stated in his report:
“notwithstanding what has been said in the foregoing paragraphs it is not possible to state on the basis of this research that Mr Casas would never have been placed in an atmosphere of visible smoke haze in an enclose space in any of these ships. There may well have been short periods when ventilation systems were under maintenance or repair or were closed down temporarily due to operational circumstances. There is no basis upon which to quantify the total of such periods but it is highly unlikely they would significantly contribute to the requirement of at least 1000 hours within the meaning of the definition”
27. He also commented on “Smoking in the RAN” and the culture of ready availability of cheap cigarettes and tobacco at sea and that prior to 1970 there was little awareness in the community at large of the health hazards of smoking and no awareness of the dangers of “involuntary smoking”. Later ….”limitations were placed on the places and times where smoking on board was permitted”.
FINDINGS
28. Tinea.. The Tribunal finds that the Repatriation Commission has accepted the diagnosis of tinea as being war caused following the report of Dr Foong.
29. Post Traumatic Stress Disorder. The Tribunal finds that the applicant is suffering from post traumatic stress disorder as diagnosed by Dr Raphael T16, Dr O. Kay T15 and T 31 and Dr Mander R2. The Tribunal also finds that the applicant was suffering from anxiety disorder prior to the Voyager accident as set out by both Dr Kay and Dr Mander. The Tribunal accepts Dr Mander’s and Dr Kay’s opinions that the PTSD following the Voyager collision has swamped any pre-existing anxiety symptoms which predated that disaster.
30. Ischaemic Heart Disease. The Tribunal finds that the applicant is suffering from ischaemic heart disease first diagnosed in November 1979 one month after discharge from the RAN. He was found to have a coronary artery occlusion which required open heart surgery and a coronary bypass. The question before the Tribunal is whether the ischaemic heart disease is service related.
31. The applicant had operational and eligible service as follow:
“The applicant served in the Royal Australian Navy. For the purposes of claims under the Veterans’ Entitlement Act 1986, his eligible periods of service were:
Operational service
Far East Strategic Reserve
18.03.59 – 28.04.59
07.04.60 – 15.04.60
06.05.60 – 02.06.60
05.01.61 – 24.01.61
17.02.61 – 09.03.61
25.03.61 – 17.04.61
08.02.63 – 01.03.63
10.03.63 – 29.03.63
15.04.63 – 08.05.63
Vietnam
22.02.70 – 01.03.70
Eligible defence service
07.12.72 – 17.10.79
32. The applicant thus has 212 days of operational service and 2250 days of eligible service. As his last operational service (1970) is more than five years prior to the onset of his heart condition the appropriate Statement of Principles is that relating to eligible service and is instrument 39 of 1999. The factors that must exist are set out as follows;
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of
probabilities, ischaemic heart disease or death from ischaemic heart
disease is connected with the circumstances of a person’s relevant service
are:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
(b)suffering from diabetes mellitus before the clinical onset of ischaemic heart disease; or
(c)being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease; or
(d)the presence of dyslipidaemia before the clinical onset of ischaemic heart disease; or
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; or
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or
(g)immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere, did not end more than five years before the clinical onset of ischaemic heart disease; or
(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of ischaemic heart disease; or
(j)suffering from hyperhomocystinaemia before the clinical onset of ischaemic heart disease; or
(k)suffering from chronic renal disease before the clinical onset of ischaemic heart disease; or
(m)suffering from hypothyroidism before the clinical onset of ischaemic heart disease; or
(n)occupational exposure to, and handling of, products containing nitroglycerine or nitroglycol:
(i)each day for at least 20 days within a consecutive period of 30 days; and
(ii)in activities where the active components could be absorbed via cutaneous or respiratory routes; and
(iii)where the last exposure occurred not more than one week before the clinical onset of ischaemic heart disease; or
(o)for myocardial infarction or arrhythmia with ECG evidence of myocardial ischaemia only, suffering from panic disorder or phobic anxiety with panic attack at the time of the clinical onset of ischaemic heart disease; or
(p)experiencing a severe stressor immediately before the clinical onset of ischaemic heart disease; or
33. The factors argued by the applicant as relevant to his appeal are
Factors 5 (a) hypertension
(c)obesity
(f)smoking not ceased prior to clinical onset of
ischaemic heart disease
(g)immersion in visible tobacco smoke haze.
34. Hypertension.. 5 (a) This is defined in the Statement of Principles
Hypertension means elevated baseline BP evidenced by
a)a usual BP reading where the systolic reading is greater than or equal to 140 mm Hg and/ or where the diastolic reading is greater than or equal to 90 mm Hg or
b) administration of antihypertensive therapy.
35. The applicant has his BP recorded on many occasions in his service records. His discharge BP was 140/80. There are occasions when it is recorded as 140/90 but this is not consistent. On 20 July 1979 the BP was 140/90 but on 11 April 1979 it was 130/80, on 15 July 1975 120/80. The significant word in the SoP is “usual” BP reading so that although occasionally his BP reading was equal to 140 systolic or equal to 90 diastolic these were the peak readings and were not the usual BP readings. There is no evidence that the applicant was ever administered anti-hypertensive therapy.
36. The Tribunal finds that on the definition of hypertension the applicant fails.
37. Obesity. 5(c) “being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease.”
38. Obesity is further defined in the SoP.
“being obese” means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of “being obese” signed by the Chairman of the Authority on 16 August 1996. The measurement used to define “being obese” is the Body Mass Index
(BMI).
The BMI = W/H2 , where:
W is the person’s weight in kilograms and H is the person’s height in metres. “Being obese” is where the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. “Being obese” develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of “being obese” it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater;
39. Using the formula, with a height of 1.74 metres and a weight of 93 kg the applicant’s BMI at discharge was 30.72. This is an isolated reading and was the first time his BMI was over 30. The factor to be applicable needs to show obesity for at least two years within the 15 years prior to the clinical onset of the ischaemic heart disease. Looking back through the records we find on 17 October 1973 he was 86 kg with a BMI of 28.08. 30 April 1973 his weight was 82.5 kg and BMI 27.22. His BMI at enlistment was certainly much lower but at that stage he had not reached his full adult growth.
40. On 16 August 1996 the Repatriation Medical Authority produced a statement about the causes of being obese. None of the causes listed in that document are particularly applicable to the applicant and it is noted that the causes must cause a weight gain of at least 20 percent over the baseline weight. If we take the applicant’s weight in 1973 which is the last year in which we have measurements prior to his discharge we find he has a weight of 86 kg on one occasion and 82.5 on another, this means there is a 9% weight gain between 1973 and his discharge in 1979.
41. The Tribunal finds that there is insufficient evidence to show that there has been a period of at least two years of being obese or having a weight gain greater than 20 percent and therefore finds the applicant fails on this ground.
42. Ceasing smoking 5 (f) “where smoking has not ceased prior to the onset of clinical heart disease.”
43. The applicant was smoking up to the onset of his ischaemic heart disease and as his smoking is not service related this ground is not applicable.
44. Visible smoke haze 5 (g) “immersion in an atmosphere of visible smoke haze in an enclosed space for at least 1000 hours prior the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere, did not end more than five years before the clinical onset of ischaemic heart disease.”
45. This is where there is conflict of evidence. The applicant, Mr Martin and Mr Owston, all had long naval experience in the lower deck, and state that there was almost continuous smoke in the atmosphere and they could often see a visible smoke haze. This conflicts with the evidence of Captain Joseph who says that the airflow systems were such that there should not have been significant exposure to tobacco smoke. Captain Joseph does state “it is not possible to state on the basis of his research that Mr Casas would never have been placed in an atmosphere of visible tobacco smoke haze in an enclosed space in any one of these ships”.
46. The Presiding Member told the hearing he served on the lower deck of HMAS Fremantle in 1954 and on the HMAS Junee in 1955. He confirmed the crowded mess deck conditions, the smoking culture of the RAN at that time and the frequent visible evidence of smoke haze, particularly in the evenings at sea when the crew were playing cards or mahjong.
47. The Tribunal has to conclude that Mr Casas was at least from time to time exposed “to a visible smoke haze in an enclosed space.” The question arises as to how many hours was the exposure to this visible smoke haze.
48. The applicant has 2504 days of eligible service and 212 days of operational service. This is a total of 2716 days or 65,184 hours. The 1000 hours required by the factor amounts to only 1.5% of his eligible and operational service time. Or put another way, 2.6 hours per week of exposure.
49. The Tribunal notes it is not just looking at passive smoking as presented in much of the applicant’s submission but at the very specific wording of the Statement of Principles.
50. Given the culture of smoking in the Navy at the time of the applicant’s service, the evidence of the applicant, Mr Martin and Mr Owston as to the conditions of the lower deck, the Tribunal finds, on the balance of probabilities, that the applicant spent considerably more than 1.5% of his service life “immersed in an atmosphere of visible smoke haze” and therefore finds for the applicant on this factor.
DECISION
51. The Tribunal sets aside the decision under review and, in substitution thereof decides that:
(a)(i) the applicant’s tinea condition and ischaemic heart disease condition are war-caused diseases within the meaning of section 9 of the Act;
(ii)the matter of assessment of the degree of the applicant’s incapacity by reason of each of the above mentioned conditions is remitted to the respondent;
(b)the applicant previously suffered from an anxiety disorder but that condition has been overwhelmed by, and subsumed within, the condition of post traumatic stress disorder subsequently contracted by the applicant following the collision and sinking of HMAS Voyager. The post traumatic stress disorder does not relate to eligible service and is therefore not war-caused within the meaning of section 9 of the Act.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P A Staer, Member
Signed: ............(sgd V Wong).......................................
AssociateDate/s of Hearing 10 September 2003
Date of Decision 10 November 2003
Counsel for the Applicant Ms S Taylor
Counsel for the Respondent Mr C Ponnuthurai
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