Cox and Repatriation Commission (Veterans' entitlements)

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Cox and Repatriation Commission (Veterans' entitlements) [2019] AATA 2340 (1 August 2019)

Division:VETERANS' APPEALS DIVISION

File Number:           2016/3997

Re:Allan Cox

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:1 August 2019

Place:Perth

The Reviewable Decision dated 17 June 2016 is affirmed.

................................[sgd]........................................

Senior Member Dr M Evans

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether Applicant’s cryptococcal meningitis resulting in blindness is defence caused – whether depressive disorder is defence caused – no applicable Statement of Principles for cryptococcal meningitis – standard of proof – meaning of reasonable satisfaction – whether material before the Tribunal raises a connection on the balance of probabilities between the Applicant’s cryptococcal meningitis resulting in blindness and the Applicant’s defence service – whether a defence caused injury or disease pursuant to s 70(5)(d) of the Veterans’ Entitlements Act 1986 (Cth) – contributed to in a material degree - reasonable satisfaction standard - conflicting expert evidence – whether medical evidence affected by hindsight bias – procedural fairness issues arising from the timing of witnesses – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A

Veterans’ Entitlements Act 1986 (Cth) – s 5D, s 5D(2), s 70(1), s 70(5), s 70(5)(d), s 70(7), s 120(4), s 120B, s 120B(3), s 120B(4), s 128(1), s 196B(3)

CASES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Doolan and Repatriation Commission [1995] AATA 616

Hogben and Repatriation Commission [2012] AATA 878

Johnston v Commonwealth (1982) 150 CLR 331

Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901

Lipke and Repatriation Commission [2014] AATA 729

Lipke and Repatriation Commission [2017] AATA 2168

Re Abbott and Australian Prudential Regulation Authority [2008] AATA 641

Re Carter and Military Compensation Commission [2018] AATA 1642

Re Murray and Repatriation Commission [1997] AATA 117

Re Neal and Repatriation Commission [2012] AATA 843

Re Repatriation Commission and Falkner [1987] AATA 199

Re Will and Repatriation Commission [2012] AATA 710

Repatriation Commission v Money (2009) 173 FCR 410

Repatriation Commission v Smith (1987) 15 FCR 327
Rosenberg v Percival (2001) 205 CLR 434

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287

Shire of Gingin v Coombe [2009] WASCA 92

Stitt and Australian Prudential Regulation Authority [2009] AATA 601

Young and Repatriation Commission [1990] AATA 466

SECONDARY MATERIALS

Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 3rd ed, 2016)

DM Byrne QC and JD Heydon, Cross on Evidence (Butterworths, 3rd Aust ed, 1986)

Statement of Principles concerning depressive disorder (No. 84 of 2015)

Statement of Principles concerning depressive disorder (No. 28 of 2008 as amended by No. 41 of 2010)

Thomas B Hugh and G Douglas Tracy, “Medicine and the Law: Hindsight bias in medicolegal expert reports”, (18 March 2002) 176 Medical Journal of Australia, 277-278

Thomas B Hugh and Sidney W A Dekker, “Hindsight Bias and Outcome Bias in the Social Construction of Medical Negligence: A Review” (2009)…

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Details
Case
[2019] AATA 2340
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against decisions of the Repatriation Commission that his cryptococcal meningitis resulting in blindness (CMRB) and depressive disorder (DD) were not defence-caused. The Applicant had served in the Royal Australian Navy and the Royal Australian Air Force, with his blindness being caused by cryptococcal meningitis, a rare fungal infection. The Applicant did not contend that he contracted the infection during his service, but rather that a delay in diagnosis and treatment by the Base Medical Facility at RAAF Pearce rendered the resulting blindness and subsequent depression defence-caused.

The Tribunal was required to determine whether the material before it established, on the balance of probabilities, a connection between the Applicant's CMRB and his defence service. This involved considering whether there was a delay in diagnosis and treatment by the Base Medical Facility. If such a connection was found, and given the absence of an applicable Statement of Principles for CMRB, the Tribunal had to assess whether the CMRB was a defence-caused injury or disease under section 70(5)(d) of the *Veterans’ Entitlements Act 1986* (Cth), meaning it was contributed to in a material degree by, or aggravated by, his defence service. Finally, if the CMRB was found to be defence-caused, the Tribunal needed to consider whether the Applicant's DD was also defence-caused, a concession the Respondent had made if the primary condition was established.

The Tribunal considered conflicting expert medical evidence regarding the diagnosis and treatment of the Applicant's condition. It noted that the hearing had been extended and required an adjournment due to procedural fairness issues arising from the order in which witnesses were called and the briefing of expert witnesses. The Tribunal ultimately affirmed the decisions of the Repatriation Commission, finding that the material before it did not establish, on the balance of probabilities, a connection between the Applicant's CMRB and his defence service. Consequently, the Tribunal did not need to determine whether the condition was defence-caused under section 70(5)(d) of the Act, nor did it need to consider the defence-caused nature of the depressive disorder.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant is not seeking review of the Angina Decision. He only seeks a review of the CMRB and DD decision (Exhibit A1, [78]; Exhibit R7, [2]).BACKGROUND FACTS The Applicant served in the Royal Australian Navy between 10 July 1970 and 13 December 1970 when he was discharged at his own request (Exhibit R2, ST1, pages 7-8). On 8 October 1971 the Applicant enlisted in the Royal Australian Air Force (RAAF). He served in the RAAF until approximately 27 June 1988 when he was discharged on the ground of being medically unfit for service due to being “permanently blind” (Exhibit R1, T18, page 76; Exhibit R2, ST1, pages 145-146). The Applicant’s blindness was caused by a rare fungal infection known as cryptococcal meningitis which put pressure on his brain and optic nerves, resulting in his blindness (Exhibit R1, T44, page 241; Exhibit R1, T35, page 176). Cryptococcus is a fungus that can be present in Eucalyptus trees (Exhibit R8, page 9). In a letter to the Applicant dated 20 April 2015 (Exhibit R1, T2, page 2), Dr James Flexman, Head of the Department of Microbiology and Infectious Diseases at Royal Perth Hospital (RPH) and Head of Clinical Microbiology at Fiona Stanley Hospital (FSH) for PathWest Laboratory Medicine WA, provided the following explanation of the fungus:Cryptococcus gattii is found in urban, semi-rural and rural areas in all states and territories in Australia. The highest rates of the infection occur in the Northern Territory of Australia and Papua New Guinea. It has also been found in other countries including the USA, Canada, Brazil and India. It has an ecological niche in Eucalyptus trees, firs, hemlock and fruit trees. It can cause infections at various sites in the body, but the lungs and central nervous system are the most common locations. It can cause disease in patients that are not immunosuppressed. The infection occurs through inhaling yeasts or spores which can then disseminate. It is not transmitted from person to person or from animal to person. Finally, confirming that the organism was Cryptococcus gattii does not allow the specific source to be identified. In his application the Applicant did not argue that he contracted the cryptococcal meningitis as a result of his defence service. Instead, the Applicant claimed that his blindness was defence caused due to a delay in the diagnosis of cryptococcal meningitis (and consequently a delay in administering the appropriate treatment) by the Base Medical Facility at RAAF Pearce (BMF) (see Exhibit A1, [32]-[33]), and consequently that his depression which occurred as a result of his blindness was also defence caused. ISSUES The issues that require determination by this Tribunal are:(a)Whether the material before the Tribunal raises a connection, on the balance of probabilities, between the Applicant’s CMRB and his defence service; This involves a consideration by the Tribunal of whether there was a delay in the diagnosis of the Applicant’s cryptococcal meningitis, and consequent delay in administering the appropriate treatment, by the BMF. (b)If so, and given that there is no applicable Statement of Principles (SOP) made under s 196B(3) of the Veterans Entitlements Act 1986 (Cth) (the Act), whether the CMRB is a defence caused injury or disease for the purposes of s 70(5)(d) of the Act. This requires the Tribunal to consider whether the injury or disease was contributed to in a material degree by, or was aggravated by, the Applicant’s defence service. Applying this standard, the Tribunal needs to be satisfied that the failure to diagnose the Applicant and administer appropriate treatment earlier, causally contributed to the development of the cryptoccocal infection and the Applicant’s blindness. (c)As stated in the Respondent’s closing submissions [4.5], if the Tribunal finds that the Applicant’s CMRB is a defence caused injury, then it follows that his DD will also be a defence caused disease:…because it could be connected with the Applicant’s defence service through CMRB on the ground that the Applicant suffered from a medical illness that resulted in serious physical disability (ie the blindness) within two years before the clinical onset of DD for the purposes of [9(1)(h)] of the DD SOP and [6(a)(vii)] of the Previous DD SOP).LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

As noted in 9(c) above, the Respondent conceded that if the Applicant’s blindness is a defence caused injury, then his DD would also be a defence caused disease because it can be connected to his defence service through the operation of the DD SOP and the Previous DD SOP.THE HEARING AND EVIDENCE The application was heard over four days (the hearing). The hearing commenced on 27 September 2018 and at the conclusion of 28 September 2018 was adjourned and resumed on 7 February 2019, and concluded at the end of 8 February 2019. The Applicant was represented by Mr Grayden, and Counsel for the Respondent was Mr Schatz, instructed by Ms Ling. In summary, the adjournment was required because the parties called witnesses out of order. That is, the whole of the Applicant’s case was not presented in its entirety, followed by the whole of the Respondent’s case. This created issues with respect to procedural fairness, which required an adjournment and the recalling of the medical witnesses to remedy. Specifically, on the first day of the hearing (27 September 2018), the Applicant was called and cross-examination commenced, but not finished. Squadron Leader Pat Hall, RAAF (Ret’d) (SQNLDR Hall) was called by the Applicant. Following SQNLDR Hall, the Respondent called Dr du Plessis. On the second day of the hearing (28 September 2018), the cross-examination of the Applicant resumed, and then the Applicant called Dr Cunningham. During Dr Cunningham’s evidence, it became apparent that he took an entirely opposing view to Dr du Plessis. Further, Dr Cunningham had not been provided with relevant medical records, and consequently appeared to be basing his opinion on a different (and factually inaccurate) timeline to Dr du Plessis. He also had not reviewed the report of Dr du Plessis. Given the importance of timing in terms of the progression and diagnosis of the Applicant’s CRMB, an adjournment was necessary to ensure that the expert medical witnesses based their diagnoses on the same factual material, and to ensure that they each had the opportunity of commenting on the reports of the other. On the third day of the hearing (7 February 2019), questions were asked of the Applicant by Mr Grayden by way of re-examination. Dr Cunningham was then recalled by the Applicant, was examined in chief, cross-examined, and then questions were asked by way of re-examination. On the final day of the hearing (8 February 2019), Dr du Plessis was recalled. An examination in chief was conducted by Mr Schatz, followed by a cross-examination from Mr Grayden and re-examination by Mr Schatz. Whilst it can be difficult to schedule witnesses for a hearing, it is important from a procedural fairness perspective that they are called in the appropriate order. That is why the Tribunal sometimes gives leave for medical witnesses to give evidence by telephone (as did Dr du Plessis). Further, medical witnesses must be properly briefed by being provided with the necessary medical documentation upon which to base their opinions. The parties’ failure to call witnesses in the appropriate order in this case resulted in what should have been a two day hearing extending to four days, as well as requiring written closing submissions in order for the proceedings to be concluded within that time. This is not consistent with the objectives of the Tribunal in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which include economy and proportionality.

Decision

Reasons for decision

The VRB affirmed two decisions of the Repatriation Commission: (a)First, a decision of 5 December 2014 which determined that angina was not defence caused (Angina Decision); and(b)Second, a decision of 18 June 2015 that cryptococcal meningitis resulting in blindness (CMRB) and depressive disorder (DD) were not defence caused (CMRB and DD decision). The Applicant is not seeking review of the Angina Decision. He only seeks a review of the CMRB and DD decision (Exhibit A1, [78]; Exhibit R7, [2]).BACKGROUND FACTS The Applicant served in the Royal Australian Navy between 10 July 1970 and 13 December 1970 when he was discharged at his own request (Exhibit R2, ST1, pages 7-8). On 8 October 1971 the Applicant enlisted in the Royal Australian Air Force (RAAF). He served in the RAAF until approximately 27 June 1988 when he was discharged on the ground of being medically unfit for service due to being “permanently blind” (Exhibit R1, T18, page 76; Exhibit R2, ST1, pages 145-146). The Applicant’s blindness was caused by a rare fungal infection known as cryptococcal meningitis which put pressure on his brain and optic nerves, resulting in his blindness (Exhibit R1, T44, page 241; Exhibit R1, T35, page 176). Cryptococcus is a fungus that can be present in Eucalyptus trees (Exhibit R8, page 9). In a letter to the Applicant dated 20 April 2015 (Exhibit R1, T2, page 2), Dr James Flexman, Head of the Department of Microbiology and Infectious Diseases at Royal Perth Hospital (RPH) and Head of Clinical Microbiology at Fiona Stanley Hospital (FSH) for PathWest Laboratory Medicine WA, provided the following explanation of the fungus:Cryptococcus gattii is found in urban, semi-rural and rural areas in all states and territories in Australia. The highest rates of the infection occur in the Northern Territory of Australia and Papua New Guinea. It has also been found in other countries including the USA, Canada, Brazil and India. It has an ecological niche in Eucalyptus trees, firs, hemlock and fruit trees. It can cause infections at various sites in the body, but the lungs and central nervous system are the most common locations. It can cause disease in patients that are not immunosuppressed. The infection occurs through inhaling yeasts or spores which can then disseminate. It is not transmitted from person to person or from animal to person. Finally, confirming that the organism was Cryptococcus gattii does not allow the specific source to be identified. In his application the Applicant did not argue that he contracted the cryptococcal meningitis as a result of his defence service. Instead, the Applicant claimed that his blindness was defence caused due to a delay in the diagnosis of cryptococcal meningitis (and consequently a delay in administering the appropriate treatment) by the Base Medical Facility at RAAF Pearce (BMF) (see Exhibit A1, [32]-[33]), and consequently that his depression which occurred as a result of his blindness was also defence caused. ISSUES

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.