Cook and Repatriation Commission
[2004] AATA 343
•2 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/160
VETERANS' APPEALS DIVISION ) Re BASIL COOK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date2 April 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefore determines that Basil Lloyd Cook suffers from war caused bronchiectasis, with effect 20 October 2000.
….(Sgd) I R Way….
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – war-caused injury – service related disability – operational service – hypothesis connecting the applicant’s disease with his operational service – bronchiectasis – decision under review set aside and substituted.
Veterans’ Entitlements Act 1986 (The Act) s 9, 120, 120A, 196A, 196B
Williams v Repatriation Commission [2001] AATA 319
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission AAT 1266
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke 1998 160 ALR 17 and 21Statements of Principle
Instrument No 59 of 2001
Instrument No 35 of 1997REASONS FOR DECISION
2 April 2004 Mr I R Way, Member 1. This is an application by Basil Lloyd Cook for a review of a decision of the Repatriation Commission dated the 9 February 2001, which refused Mr Cook’s disability pension claim for bronchiectasis. The Commission’s decision was affirmed by the Veterans Review Board (VRB) on 5 November 2001.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) (T1-T6) and other documentary evidence as follows:
Exhibit A1 Statement of applicant dated 31 May 2002
Exhibit A2 Report of Dr M Heiner dated 24 January 2003
Exhibit A3 Report of Dr M Heiner dated 6 August 2003
Exhibit R1 Reports of Dr John Armstrong dated 12 May 2003
Exhibit R2 Reports of Dr John Armstrong dated 30 June 2003
3. The applicant was represented by Ms B Carter-Nicoll, instructed by Gilshenan and Luton. Mr McAninly, Department Advocate, appeared for the respondent. The applicant, Dr Heiner and Associate Professor Armstrong gave oral evidence.
4. The applicant was born on 20 August 1929 and completed a 6 year engagement with the Royal Australian Navy from 18 April 1951 to 23 April 1957. Included in this service is a period of operational service aboard HMAS Sydney in Korean waters from 27 October 1953 to 2 June 1954, this service being operational service under the Veterans Entitlements Act 1986 (The Act).
5. The applicant has an accepted service related disability of Bilateral Sensorineural Hearing Loss. His non service related disabilities are Acute Bronchitis, Benign Prostatic Hypertrophy, Presbyopia, Right Lower Lid Ingrowing Lashes, Bronchiectasis, Diabetes Mellitus.
6. This application is only in respect of his rejected claim for bronchiectasis.
7. The hypothesis put forward for the applicant is that he contracted an atypical undiagnosed pneumonia while on operational service and that this led to him contracting bronchiectasis.
Legislative Framework
8. The relevant provisions of the Act are 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;…”
9. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“196B Functions of Authority
…
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
11. There is no dispute between the parties in that the Tribunal accepts that there is a relevant SoP for bronchiectasis, being Instrument Number 59 of 2001. The Tribunal notes this instrument revokes an earlier Instrument Number 35 of 1997.
applicants evidence
12. In his written statement of the 31 May 2002 (Exhibit A1) the applicant stated:
(3)“Before I went into service I delivered groceries on horseback. I did this in all weather. Occasionally I got a cold, but it was nothing much. Just a runny nose. I don’t regard that I had a major illness. I never went to the Doctor for them and they never put me off work.”
(4)“I entered the Navy A1. They did x-rays of my chest and I was passed as being fully fit.”
(5)“When I went to Korea in 1953 it was absolutely freezing. The wind was terrible and it cut right through you. There were ice drifts. We went into shore on the liberty boats and the spray turned to ice when it hit the air.”
(6)I got what I thought was a severe cold while I was on operational service. I was so desperately cold that I wrote to my wife asking her to send me a scarf to cover my chest.”
(7)“I was coughing up a lot of sputum. I knew that it was a bad illness. It did not feel like an ordinary cold of the type that I had before service.”
(8)“I had aches and pains and I felt weak. However I battled on and still did the work. I felt that I had to put up with it. We were not doing very heavy duty work. There were many occasions to take a rest and we kept to our indoor stations as much as possible. In any case this was an operational time so they needed every man.”
(9)“I am not a Doctor and I did not know what was wrong with me. I thought that it was just a severe cold. There was a culture in the navy that you did not go to the sick-bay for a cold no matter how bad it was. I didn’t report to sick-bay, but maybe I should have.”
(10)I left Korea in June of 1954 and the cold continued. I still felt quite ill. It was bad and it hung on for a long time. I was still coughing and producing sputum and still had aches and pains.”
(11)“I continued to complain of cough and sputum and feeling ill until in February of 1956 I was diagnosed with bronciecstasis. They found pneumonitis on my lungs on 13 January 1956, but considering how sick I had been for more than 18 months I could have began to suffer from pneumonia on operational service.”
13. In his oral evidence, the applicant said that he was employed on HMAS Sydney as one of a number of electrician’s mates, rostered down on watches to carry out repairs and maintenance as necessary to the ship’s electrical equipment and fittings. He said that it was winter when he went to Korea and that it was absolutely freezing and that although conditions aboard ship were cool, it was not an icebox and he was never much out in the weather. In giving his oral evidence, at first the applicant said he felt alright during his Korean service and could not recall having any colds, or having time off work because of colds, or reporting to the ships sick-bay because of colds. When taken to what he said in his statement (Para 6, 8 and 10 as set out above), he said he must have had a cold and that he did not feel 100 percent. In cross examination he said he could not remember the symptoms he suffered but thought he was coughing and had a blocked up nose. He reinforced his comments about the ethos in the Navy whereby sailors did not run to the sick-bay with a cold and continued to perform duties regardless of how they felt. He told the Tribunal that while he might not have attached much importance to his cold at the time, he recalled coughing up about an egg-cup of sputum everyday towards the end of his time in Korea and that this continued thereafter. He said he had never had a cold for as long as the one he suffered while in Korean waters and that while he had had colds before this, they had not caused him to cough up sputum.
14. The Tribunal notes in respect of paragraph 6 that the applicant’s wife (who he married in 1956) had stated “I know he had at least one severe cold whilst he was in Korea because he wrote and asked me to knit him a thick navy blue scarf long enough to cross over his chest… He said he wasn’t the only one with a bad cold and could I also knit him a pair of fingerless gloves so that he could wear them whilst working” (p4/64). The applicant, in his oral evidence, said he had told his (now) wife that it was very cold.
15. In cross examination, the applicant was referred to the T documents (T4/15 and 17) where it is recorded on 24 April 1957 that the applicant stated that he had a cough with sputum, off and on, since childhood; and to T4/10, where it is recorded on 16 April 1956 that the applicant had a “cough since teens not subject colds”.
16. The applicant said he can not recall having said this nor could he throw any light on the record of 7 March 1956 where it is stated “patient complains of cough over the past year worse at night and around midday. Brings up a lot of fluid and it is creamy in colour, no history of previous chest trouble”.
17. The applicant was also referred to T4/5 (the clinical notes in respect to his only sea going service on HMAS Sydney), where it is recorded that the applicant presented as a result of suffering an abrasion to his left forearm from a fall, tinea, eczema, lacerations from dropping a motor on his right toe and inflamed right thumb. The applicant agreed he had presented at the sick bay for these conditions because, in effect, he was either injured or had contracted a disease to the degree he needed treatment.
medical evidence
18. The applicant’s record of physical examination on 13 February 1951, on entry to the Royal Australian Navy, shows a satisfactory x-ray examination of his chest, no record of having had tuberculosis, pleurisy, pneumonia or bronchitis, asthma or hay fever and the applicant being fit for service.
19. The applicants A F Med 14 records (T4/8):
“7.3.56 Admitted Balmoral Naval Hospital with bronchiectasis.
9.3.56Patient was referred for large chest x-ray on the 2.2.56 following micro film on 13.1.56 x-ray report “Area of pneumonitis” containing cysts seen in the lateral view in film and on the right paracardiac zone. These changes could be secondary to bronchiectasis. Patient complains of cough over the past year worse at night and around midday. Brings up a lot of fluid and it is creamy in colour, no history of previous chest trouble. Physical examination. Sibilant rhonchi over the right side of the chest posteriorly. Investigation: sputum for organisms and sensitivity.
27.3.56Transferred to R.G.H. Concord.
27.3.56 Admitted to R.G.H. Concord for bronchogram.
29.3.56Bronchogram has been done. Wishes to see E.N.T. surgeon.
29.3.56E.N.T. report. Complains of bilateral recurrent discharge of ears since infancy. At present both ears are fairly dry. Has had bilateral radical antrostomies, tonsillectomy and adenoidectomy without obvious improvement
20. Following further x-rays and bronchograms it was determined in April 1956 that the applicant had established bilateral bronchiectasis.
21. Dr M Heiner, consulting Thoracic Surgeon, provided 2 written reports (Exhibit A2 and Exhibit A3) and gave oral evidence.
22. Dr Heiner told the Tribunal he had seen the applicant three or four times and that in his opinion it was probable that the applicant had contracted pneumonia during his service with the Navy in Korea and that this resulted in the applicant suffering bronchiectasis. He said that it was his view that it was possible, but highly improbable, that the applicant had bronchiectasis when he was younger and prior to his service in Korea. He formed this view on the basis of the applicant presenting no bronchial symptoms and being fit for service on enlistment, being active in sports and work activities prior to his navy service; suffering from sinus and ear problems since childhood which, along with common colds, could have been the cause of his symptoms of intermittent cough with sputum (which were common in childhood); there being no finger clubbing; and the most likely possibility of the applicant suffering from asthma in his early years.
23. In his report dated 6 August 2003 (Exhibit A3) Dr Heiner opined:
“Basil Cook’s bronchiectasis can be suspected and, in all probability, has been caused by the acute infectious process that he suffered from during his service in Korea. The disease was diagnosed in 1956 following his return from Korea. Bronchiectasis does not develop overnight. In all probability he did not have bronchiectasis when he entered the Army and, if indeed, he had recurrent cough and any mucus, it is more probable that this was related to a condition such as undiagnosed or unidentified asthma than bronchiectasis. It is more probably that not that if he were to have had bronchiectasis in childhood (in the pre antibiotic era) he would have finger clubbing and an abnormal chest x-ray as a result of chronic and recurrent infections. His bronchiectasis is defined as diffuse and in all probability has been related to an infectious aetiology such as pneumonia. Again this is consistent with his history.”
24. In respect of pneumonia, Dr Heiner described two types, namely typical pneumonia and atypical pneumonia. He said that typical pneumonia had an acute presentation, there being chest pain, high temperature, fever, low blood pressure and coughing up of blood with the sufferer being extremely unwell and having a grossly abnormal chest x-ray. He said that medical attention is necessary, usually 4 days in hospital being required and some six weeks for the condition to normalise. He described atypical pneumonia as more insidious, the patient starting off with symptoms including a cold, sore throat, headache, low grade fever, dry cough, shortness of breath and feeling very unwell. Dr Heiner said that this type of pneumonia was usually infectious for 2 weeks and took 6 weeks to get better although it was possible that it could take a year for a patient to get well again. It was Dr Heiner’s opinion that the applicant had suffered an atypical pneumonia in Korea and when taken to the definition of pneumonia in Instrument Number 59 of 2001, stated that the applicant’s condition in Korea met this definition. In arriving at this view Dr Heiner said he had accepted that the applicant felt very unwell when he had contracted a bad cold, had “soldiered on” as he could still carry out his duties and then had continuing “grumbling” symptoms of the nature of a post acute infectious syndrome. Dr Heiner did not think that the applicant’s suffering from discharging ears was relevant, this being more likely the result of a middle ear infection. Also it was Dr Heiner’s opinion that chronic sinusitis could be present without having bronchiectasis and that any coughs (with sputum), suffered by the applicant during his earlier years could be explained by the applicant suffering from common colds or possibly from asthma. Dr Heiner said that even if the applicant had underlying asthma, such a condition did not cause his bronchiectasis and he reinforced his opinion that he did not think the applicant suffered from bronchiectasis before he joined the service; and that in his opinion the applicant contracted bronchiectasis during his service in Korea and that during this service the applicant suffered from pneumonia.
25. In cross examination, Dr Heiner said that pneumonia was caused by a virus which was more prevalent in cold weather.
26. Associate Professor J Armstrong, Consultant Respiratory Physician, provided two written reports, one dated the 12 May 2003 (Exhibit R1) and one dated the 30 June 2003 (Exhibit R2).
27. In his first report, Dr Armstrong opined:
“There is no significant history of childhood measles, chicken pox or mumps which might suggest a cause for bronchiectasis in earlier life. There is no history of repeated episodes of chest infections in childhood, he is non-atopic and there is no history of wheeze or asthma in childhood. He was a non-smoker before entering the Navy but subsequently had an occasional cigar or cigarette. He does not smoke currently…
It is likely that Mr Cook developed bronchiectasis in childhood. Whilst he denied a history of the usual childhood illnesses which predisposed to the development of bronchiectasis and denied recurrent chest infections in childhood, a review of his navy medical documents note a history of cough and sputum production intermittently since childhood (page 15) and a history of chronic sinusitis and ear discharge (page 21). Bronchiectasis is frequently associated with chronic rhinosinusitis. Mr Cook indicated that he was first aware of sputum production in 1951 or 1952 when serving on HMAS Sydney and this would have been the first indication to the Royal Australian Navy that bronchiectasis was a possible diagnosis. The diagnosis was not proven radiologically until 1956 when bronchograms were performed at the Concord Hospital.
The factors contributing to bronchiectasis in Mr Cook’s case are not clear. The likely cause in Mr Cook’s case is a lower respiratory tract infection with a virulent bacterial or viral organism occurring in childhood but there is no history to support that. Significant infections can occur without the patient’s recollection. There is no record of severe lower respiratory tract infection occurring during his naval service at or before the time he reports the commencement of sputum production. His exposure to paint fumes on HMAS Sydney is unlikely to be a contributing factor to the development of his bronchiectasis.”
28. The Tribunal notes that Dr Heiner positively has ruled out the applicant suffering from chronic rhinosinusitis. The Tribunal also notes that there are no medical records before the Tribunal which indicated the applicant was first aware of sputum production in 1951 or 1952.
29. In his second report, Associate Professor Armstrong relevantly states:
“As indicated in point 1 of my summary, of my letter to you of May 12, 2003. I believe Mr Cook had evidence of bronchiectasis dating back to his earlier life. Dr Maurice Heiner makes the point in his letter of January 24, 2003, that the presence of a non productive cough is a factor against a diagnosis of bronchiectasis. Whilst patients with bronchiectasis usually have a productive cough, there may be periods when the cough is minimally productive or non productive and does not exclude the diagnosis of bronchiectasis. On the issue of diagnosis of the bronchiectasis, Dr Heiner also indicated that on entry to the Navy, Mr Cook was said to have a normal chest x-ray. It is well known that a chest x-ray is a much less sensitive radiological investigation of bronchiectasis than chest CT scans and chest CT scanning would not have been available at the time of Mr Cook’s entry into the Royal Australian Navy. A chest x-ray may therefore be normal while significant bronchiectasis is present and detectable only by chest CT scanning.”
30. In his oral evidence Associate Professor Armstrong disagreed with Dr Heiner’s opinion that a common cause of intermittent cough with sputum from childhood was asthma, and in any event, he said there were no features of asthma in this case. He said the most common cause could be bronchiectasis or episodes of intermittent acute bronchitis with normal underlying lungs.
31. Associate Professor Armstrong opined that the applicant’s pre-existing condition of cough with sputum and sinusitis suggested the applicant had a genetic predisposition to colonisation of damaged airways and the development of bronchiectasis. And given the state of the technology and medical expertise at the time of the applicant entering the Navy, it was quite possible, without there being gross pathology, for the applicant to have suffered from undetected bronchiectasis. Associate Professor Armstrong conceded that it was possible the applicant could have had the production of sputum pre-naval service from a common cold.
32. Associate Professor Armstrong expressed the view that a patient would have all the same symptoms, regardless of whether the patient was suffering from typical or atypical pneumonia. He agreed that it was possible for pneumonia to be relatively mild and in such circumstances someone could continue working, thinking they had a bad cold. However, it was his opinion that he could not see any evidence at all that the applicant had pneumonia during his service in Korean waters.
33. The Tribunal notes that Associate Professor Armstrong appears to cast some doubt on severe pneumonia being an initial causation factor in the development of bronchiectasis and also appears to have assumed that it is postulated in this case that the applicant suffered an infection in the presence of established bronchiectasis. In expressing these views, the Tribunal notes that ultimately he opines “such infections may be the factor which draws previously asymptomatic bronchiectasis to the attention of the treating medical officer and this diagnosis then becomes apparent with further investigation.”
34. The Tribunal also notes that Associate Professor Armstrong did not test the applicant to see if he had a congenital condition to bronchiectasis but these test were performed by Dr Heiner and showed negative results.
Submissions
35. In summary it was submitted for the applicant that he contracted atypical pneumonia while he was serving with the Royal Australian Navy in Korea in 1953/1954. Following this, it was contended that the applicant had continual respiratory symptoms including coughing up sputum for some 18 months, until he was diagnosed with bronchiectasis in early 1956. In respect to there being no contemporaneous record of the applicant presenting with or being diagnosed with pneumonia, it was submitted that on the evidence of the applicant, the Tribunal would be satisfied that he did suffer a very bad cold at the relevant time; that he was coughing up sputum during operational service and that this continued past his operational service; and that because of the Navy culture in getting on with the job without complaining about ailments such as colds he had not reported sick. Furthermore, it was submitted that Dr Heiner, a Consultant Thoracic Physician with many years of experience in his field, was of the view that the applicant had suffered an atypical form of pneumonia during his Korean service and that in the face of vigorous cross examination by Mr McAninly he had held firmly to this view.
36. Ms Carter-Nicoll also drew the Tribunal’s attention to the fact that the applicant was fit on entry to the Royal Australian Navy, with a clear chest x-ray at the time. She submitted that any symptoms of the applicant coughing with sputum, on and off since childhood, was probably referable to him catching common colds.
37. As such it was submitted that the applicant’s circumstances fit the template of the relevant SoP and therefore the applicant’s hypothesis is a reasonable hypothesis and the Tribunal would not be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that his bronchiectasis is war-caused. Ms Carter-Nicoll referred the Tribunal to Williams v Repatriation Commission 2001 AATA 319 in its consideration of this matter.
38. Mr McAninly submitted that the applicant’s evidence did not support a finding that the applicant suffered from pneumonia during his Navy service in Korean waters. It was submitted that the earliest clinical evidence of pneumonia (as required by the definition of pneumonia in the relevant SoP) was following the applicant’s chest x-ray report of 2 February 1956 which showed pneumonitis secondary to bronchiectasis, and as the applicant’s pneumonitis was not suffered before the clinical onset of bronchiectasis, the applicant did not satisfy factor 5(a) of the SoP. In so submitting, the respondent said that reliance was placed on Dr Armstrong’s view that the applicant suffered from bronchiectasis dating back to his early life.
39. In summary it was submitted that the Tribunal would be satisfied that the applicant did not suffer from pneumonia during his operational service and as such factor 5(a) could not exist, regardless of when the applicant had a clinical onset of bronchiectasis.
40. There being no material pointing to any of the factors in the relevant SoP it was submitted that there is no reasonable hypothesis connecting the applicant’s bronchiectasis with the circumstances of his relevant service.
Considerations
41. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(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 s196B(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 s120(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.”
42. There is no dispute between the parties that the applicant suffers from bronchiectasis and in view of this and on the material before it, the Tribunal is reasonably satisfied that this is so and finds accordingly. Furthermore, the Tribunal is satisfied that the material before it points to a hypothesis connecting the applicant’s disease with his operational service.
43. It is also common ground that there is in force a relevant SoP, Instrument Number 59 of 2001 and the Tribunal accepts that this SoP applies in this case.
44. Instrument Number 59 of 2001 relevantly provides:
“Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that bronchiectasis and death from bronchiectasis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
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 as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting bronchiectasis or death from bronchiectasis with the circumstances of a person’s relevant service are:
(a)suffering from pneumonia before the clinical onset of bronchiectasis, with continual or recurrent respiratory symptoms in the interval between that episode of pneumonia and the clinical onset of bronchiectasis; or
…
(m)suffering from pneumonia within the one year before the clinical worsening of bronchiectasis; or…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(m) to 5(v) apply only to material contribution to, or aggravation of, bronchiectasis where the person’s bronchiectasis was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
“pneumonia” means inflammation of the lung with clinical or radiological evidence of consolidation;…”
45. The Tribunal notes that the RMA has not issued a SoP in respect of pneumonia, nor has it given notice that it intends to prepare such a statement. The Tribunal is mindful that the purpose of an SoP is to regulate the reasonability of the medical and scientific components of a hypothesis and is of the view that the diagnosis of each medical condition which can lead to the application of an SoP must be made within the context of the relevant SoP and to the Tribunal’s reasonable satisfaction. Such an approach is consistent with what the Full Court said in Repatriation Commission v Cooke 1998 160 ALR 17 and 21. However, in this case there is no SoP in respect of pneumonia. The Tribunal has taken the view that the question of causation, in so far as it relates to the applicant’s contention of suffering from pneumonia on operational service, must be considered within the context of Deledio as set out above. (See also Williams (Supra)).
46. The question that then arises is when was the clinical onset of the applicant’s bronchiectasis.
47. The Tribunal is mindful that in Leesv Repatriation Commission [2002] FCAFC 398 the Court referred to the Tribunal’s acceptance of the approach taken in Re Robertson and Repatriation Commission (AAT 1266, 2 March 1998), namely that:
“… there is a clinical onset of a disease, either when a person becomes aware of some features or symptoms which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
The Court went on to express the view that the Tribunal did not err in its approach to the meaning of the expression “clinical onset”.
48. After careful consideration of the material before it and following the approaches set out above, the Tribunal is satisfied that the earliest investigative finding which indicates the applicant suffered from bronchiectasis was made in January 1956. On the applicant’s own evidence, it was not until this time that it became clear to him what his medical problem was and the Tribunal is satisfied that prior to this time the applicant was not aware of symptoms which would enable a doctor to say that he suffered from bronchiectasis. The Tribunal finds that the clinical onset of the applicant’s bronchiectasis was in January 1956. In arriving at this conclusion, the Tribunal has preferred the opinion of Dr Heiner.
49. The next question then is whether the hypothesis, as contended by the applicant, is a reasonable hypothesis or in other words whether the raised hypothesis fits the template in the SoP, namely in this case factor 5(a) “suffering from pneumonia before the clinical onset of bronchiectasis”.
50. The Tribunal is of the opinion that the hypothesis does contain factor 5(a) and therefore is not contrary to proven scientific facts nor otherwise fanciful and it is a reasonable hypothesis.
51. The next issue to be considered is whether pursuant to section 120 (1) of the Act, the Tribunal is satisfied, beyond reasonable doubt, that the applicant’s bronchiectasis did not arise from war caused pneumonia. In this case, in the absence of an SoP in respect of pneumonia, it must be disproved, beyond reasonable doubt, that the applicant suffered from atypical pneumonia while on operation service in Korea; or there must be another fact, proved beyond reasonable doubt, that is inconsistent with the hypothesis.
52. The Tribunal has looked carefully at all of the material before it, and particularly the evidence of both medical specialists, and the Tribunal has taken into account the inconsistencies in the applicant’s evidence about his operational service experiences, noting the hearing difficulties that the applicant plainly demonstrated during the giving of his evidence. The Tribunal has concluded that it is satisfied beyond reasonable doubt that the applicant did suffer from atypical pneumonia during his service in Korea; and therefore the Tribunal is not satisfied that the applicants’ bronchiectasis did not arise from war-caused atypical pneumonia. The Tribunal therefore is not satisfied that there is no sufficient ground for determining that his bronchiectasis is war-caused.
53. The Tribunal sets aside the decision under review and in substitution therefore determines that Basil Lloyd Cook suffers from war caused bronchiectasis, with effect 20 October 2000.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Nicca Grant
Associate
Date/s of Hearing 18 February 2004
Date of Decision 2 April 2004Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr D McAninly, Departmental Advocate
0
3
0