Craig Lipke and Repatriation Commission

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[2014] AATA 729  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/1905

Re

Craig Lipke

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Dr M Denovan, Member
Date

8 October 2014
Place Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................

Dr M Denovan, Member

CATCHWORDS

VETERANS' AFFAIRS – Benefits and entitlements – eligibility for pension – rhabdomyosarcoma inability to obtain appropriate clinical management – whether these is material contribution to a condition – whether there is aggravation of a condition –  no connection between eligible defence service and condition – Not entitled to any benefits – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Veterans’ Entitlement Act 1986 (Cth) ss 70, 120, 196B

Military Compensation and Rehabilitation Act 2004 (Cth)

CASES

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Ford v Repatriation Commission [2007] AATA 1109

Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331

Lee v Minister of Pensions (No. 2) (1948) 3 War Pensions Appeals R

Repatriation Commission v Bendy (1989) 18 ALD 144

Repatriation Commission v Law (1980) 31 ALR 140

SECONDARY MATERIALS

Statement of Principles concerning Soft Tissue Sarcoma, No. 14 of 2006 as amended by No. 36 of 2008 and No.74 of 2011

REASONS FOR DECISION

Dr M Denovan, Member

9 September 2014

INTRODUCTION

  1. The applicant in these proceedings is Mr Craig Lipke (“the applicant”). The applicant enlisted in the Australian Army (“the Army”) from 3 March 1982. Within the meaning of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”), he rendered eligible defence service from 30 March 1982 to 30 June 2004. He rendered several periods of eligible operational service during this time, however his claim only relates to events that occurred outside the periods of operational service. His service subsequent to


    30 June 2004 is not covered by the Act, and as such is covered by the


    Military Compensation and Rehabilitation Act

    2004 (Cth).

  2. The applicant seeks review of the decision of the Veterans’ Review Board (“VRB”), dated 26 March 2014, which affirmed the decision of the Repatriation Commission dated 17 June 2013, that rhabdomyosarcoma is not related to service.

  3. He contends that due to an inability to obtain appropriate clinical management, during his defence service, his condition worsened.

  4. The applicant applied to this Tribunal on 10 April 2014. He has elected to have the matter heard on the papers. The Respondent conceded to this request.

  5. There is no dispute about the diagnosis, and both parties agree the condition did not arise out of the applicant’s service, but was diagnosed during his service. The issues I must decide are:

    ·Whether there was an inability to obtain appropriate clinical management; and, if so

    ·Whether there was a material contribution to, or aggravation of, the rhabdomyosarcoma as a result.

    EVIDENCE

  6. The following evidence was filed, and taken into evidence, marked as follows:

    ·Exhibit one: ‘T-Documents’, in accordance with s 37 Administrative Appeals Tribunal Act 1975 (Cth);

    ·Exhibit two: Copy of extracts from applicant’s service medical…

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Details
Case
[2014] AATA 729
Decision Date

CaseChat Overview and Summary

The matter between Craig Lipke and the Repatriation Commission was considered by the Administrative Appeals Tribunal. The applicant sought benefits and entitlements under the Veterans’ Affairs legislation, specifically related to his diagnosis of rhabdomyosarcoma. The central issue before the Tribunal was whether the applicant's service in the Defence Force had caused, or contributed materially to, his condition. The applicant argued that his condition could not be managed appropriately due to his service, thereby warranting compensation. The Repatriation Commission opposed this claim, asserting that there was no causal link between the applicant's condition and his military service.

The Tribunal was required to determine whether there was a material contribution to, or aggravation of, the rhabdomyosarcoma as a result of any inability to obtain appropriate clinical management during the applicant’s service. This involved assessing the medical evidence and determining whether the disease arose out of, or was attributable to, the applicant’s service. The relevant legislation, including sections 70(5)(a) and 70(7) of the Act, was considered in this context. The Tribunal applied the civil standard of proof, requiring it to decide the matter to its reasonable satisfaction.

The Tribunal examined the medical records and evidence provided and found no sufficient causal connection between the applicant’s rhabdomyosarcoma and his defence service. It was concluded that the disease was not connected to the service as required by the legislative criteria. The Tribunal upheld the decision of the Commission that the applicant was not entitled to any benefits under the Act. The decision was affirmed on the basis that the evidence did not support a connection between the applicant’s military service and the onset or progression of his condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no dispute about the diagnosis, and both parties agree the condition did not arise out of the applicant’s service, but was diagnosed during his service. The issues I must decide are:·Whether there was an inability to obtain appropriate clinical management; and, if so ·Whether there was a material contribution to, or aggravation of, the rhabdomyosarcoma as a result. EVIDENCE The following evidence was filed, and taken into evidence, marked as follows:·Exhibit one: ‘T-Documents’, in accordance with s 37 Administrative Appeals Tribunal Act 1975 (Cth);·Exhibit two: Copy of extracts from applicant’s service medical records, diagnostic reports, and hospital reports for period 30 March 1982 to 24 April 2007;·Exhibit three: Applicant’s statement of issues, facts and contentions dated 27 June 2014; and·Exhibit four: Respondent’s submissions.LEGISLATION AND ISSUES Under s 70(5)(a) of the Act, a disease contracted by a member of the Forces is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. Section 70(7) provides in effect that:(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces… was due to… a disease that would not have been contracted, but for his or her having rendered defence service…(b)if the incapacity was due to disease -- the incapacity of the member shall be deemed to have arisen out of that disease and that disease is deemed to be a defence-caused disease contracted by the member for the purposes of this Act. The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that is, on the balance of probabilities. This follows from s 120(4) of the Act, which provides that the Tribunal shall decide the matter to its reasonable satisfaction. Section 120(6) of the Act provides that nothing in s 120 or in any other provision of the Act is to be taken to impose “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application” upon a claimant or applicant for a pension. There is no statutory definition of the concept of an death, injury or disease being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in ss 196B(14)(a), (b) and (e). This provides relevantly that a factor causing, or contributing to, a disease 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(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 his or her environment consequent upon having rendered that service. The relevant SoP for the applicant’s conditions and eligible defence service is that for Soft Tissue Sarcoma, No. 14 of 2006 as amended by No. 36 of 2008, and No. 74 of 2011.

Decision

Reasons for decision

I am not satisfied there is a sufficient, or casual, connection between the applicant’s rhabdomyosarcoma, and his defence service, that satisfies the legislative requirements. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The history of this matter is not in dispute. The following is a summary of medical evidence relating to the diagnosis and treatment of the veteran’s rhabdomyosarcoma (exhibit two):·13 May 1997 – the veteran presented to the RAP Unit complaining of a lump in the throat. It was noted he had no systemic symptoms (that is no fever, aches and pains, or other symptoms in any part of his body) and no ear infection. The treating doctor diagnosed the lump as an enlarged lymph node, and ordered a review in 14 days.·22 May 1997 – the veteran presented to the RAP for review. It was noted there had been no change in size or shape in the mass. The veteran was noted to feel well, but mildly tired; he said he had no weight loss, no other masses, and no night sweats. The veteran was observed to look well and was afebrile (normal temperature, no fever). Blood tests were ordered.·3 June 1997 – the blood tests were noted to be normal. The mass had regressed but another lymph node in the same chain (lymph nodes in the neck run in chains) was enlarged. He was advised to watch and wait. It was noted that if the mass stayed then veteran should be referred for surgical excision or fine needle biopsy.·23 June 1997 – the veteran presented feeling very unwell with marked painful swelling on right later neck adjacent to previous lymph node. The swelling came up over last two days. The veteran reported feeling dizzy and cold. Blood pathology and ultrasound were ordered. The provisional diagnosis was mumps. The veteran was ordered to rest at home for one week and return.·23 June 1997 – the ultrasound report indicated findings consistent with mumps.·30 June 1997 – the veteran was feeling much better.·7 August 1997 – veteran returned complaining of lump on right side of jaw and neck. He was initially assessed by a medic, who made a provisional diagnosis of a viral illness. He was referred to a doctor on the same day. The doctor noted there were no additional enlarged lymph nodes; further blood pathology and serology was ordered. The veteran returned to the RAP later on the same day, the medic noted he had right sinus pain and prescribed antibiotics. ·18 August 1997 – the veteran presented to the RAP and referred to a doctor the same day. The doctor noted the veteran had enlargement of the right cervical chain of lymph nodes, and results of all blood tests were unremarkable. He referred the veteran a surgeon for fine needle biopsy.·21 August 1997 – the veteran was reviewed by a surgeon and a fine needle biopsy was performed. ·21 August 1997 – The veteran returned to the surgeon. He was told the results of fine needle biopsy which were consistent with a metastatic germ cell tumour. Computed tomography (“CT”) scans of head, neck, sinuses, chest and abdomen and ultrasound of testes was ordered. The veteran was referred to an oncologist.·26 August 1997 – the veteran was seen by oncologist Dr Byrne. In his report dated the same day, Dr Byrne indicated the likely diagnosis was of an anaplastic small round cell sarcoma, possibly alveolar rhabdomyosarcoma. He was referred to an ear, nose and throat (“ENT”) surgeon for evaluation, and further CT scans ordered.·27 August 1997 – CT scans and ultrasound were performed – ultrasound of scrotum and CT of chest, abdomen and pelvis were all unremarkable. The CT scan of head, neck and sinuses demonstrated a mass in the right ethmoid associated with bone destruction. Infiltration of the cervical lymph nodes was noted.·11 September 1997 – chemotherapy was commenced.·2 October 1997 – the veteran was admitted to hospital.·12 November 1997 – veteran was admitted to the Oncology Ward.CONSIDERATION