Culhane and Repatriation Commission - [2001] AATA 569

DECISION AND REASONS FOR DECISION [2001] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1389

VETERANS' APPEALS DIVISION       )
           Re      Terence William CULHANE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr J Campbell, Member

Date21 June 2001
PlaceSydney

Decision The Tribunal – (a) sets aside that part of the decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 April 1995 that determined that the condition of osteoarthritis left knee suffered by Terence William Culhane ("the Applicant") was not defence-caused; and (b) substitutes for that part of the decision so set aside, its decision that the Applicant's condition of osteoarthritis left knee is defence-caused, pursuant to s70 of the Veterans' Entitlements Act 1986, with effect on and from 14 April 1994; and (c) remits the matter to the Respondent to determine the rate of pension payable to the Applicant; and (d) varies that part of the Respondent's decision in relation to rheumatoid arthritis by amending that diagnosis to read "adult Still's disease", and (e) affirms that part of the decision under review, as varied.

..............................................
M T Lewis
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement -– applicant exposed to chemicals during defence service – applicant suffers from disease of auto-immune system - whether correct diagnosis of Applicant's condition was "rheumatoid arthritis", "adult Still's disease" or "chronic fatigue syndrome" - whether causal link between chemical exposure and Applicant's condition - whether medication used to treat condition had adverse effect on auto-immune system

Veterans' Entitlements Act 1986: ss70, 70(5)(a), 120(4), 120B

Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr J Campbell, Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 April 1995 that refused a claim by Terence Culhane ("the Applicant") that osteoarthritis of the left knee and rheumatoid arthritis were defence-caused. The Veterans' Review Board ("the VRB") on 22 April 1996 affirmed those parts of the decision under review. The Applicant lodged an application for review by this Tribunal on 17 July 1996. During the hearing the Respondent conceded that the Applicant's condition of osteoarthritis of the left knee was defence caused. The Tribunal considers that this was a concession properly made, and so finds. The Tribunal will remit the matter to the Respondent for assessment of the rate of pension payable to the Applicant for this condition.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing. Dr Fluhrer and Dr Donohoe gave oral evidence, called by the Applicant. The following documents were tendered as evidence on behalf of the Applicant:

Reports of Dr M Donohoe dated 6 November 1998 and 27 January 1999 (exhibit A) and 27 April 2000 (exhibit P), and Curriculum Vitae (exhibit K)
Report of Dr J Fluhrer dated 28 March 1996 (exhibit B)
Three…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Culhane and Repatriation Commission

Details

AGLC: Culhane and Repatriation Commission [2001] AATA 569
Case: [2001] AATA 569
Decision Date: 21 June 2001

CaseChat Overview and Summary

The case of Culhane and the Repatriation Commission involved a dispute over the entitlement of a veteran to compensation for a chronic condition that the applicant believed was caused by exposure to chemicals during his service. The applicant argued that the correct diagnosis of his condition was either rheumatoid arthritis, adult Still's disease, or chronic fatigue syndrome, and that there was a causal link between his condition and his exposure to chemicals during his eligible defence service. Additionally, the applicant contended that the medication used to treat his condition had an adverse effect on his auto-immune system.

The legal issues that the court needed to decide included the correct diagnosis of the applicant's condition, whether there was a causal link between the applicant's condition and his exposure to chemicals during his eligible defence service, and whether the medication used to treat the applicant's condition had an adverse effect on his auto-immune system. The court also needed to consider whether the applicant's condition was covered by a Statement of Principles under the Veterans' Entitlements Act 1986.

The court found that the applicant suffered from adult Still's disease, a form of rheumatoid disease, which carried a different ICD code that was not included in the Statement of Principles for Rheumatoid Arthritis Instrument No. 127 of 1996. The court noted that there was no Statement of Principles for Adult Still's Disease, and that the onset of the disease occurred about 1991. However, the court was not reasonably satisfied that the onset of the disease occurred during the applicant's eligible defence service. The court found that the applicant's condition was not covered by a Statement of Principles, and that the applicant had not satisfied the requirements of s70 of the Veterans' Entitlements Act 1986.

The court dismissed the applicant's claim for compensation. The court found that the applicant's evidence, while probative, did not establish a causal link between his condition and his exposure to chemicals during his eligible defence service. The court also found that the applicant's medication did not have an adverse effect on his auto-immune system. The court noted that the applicant's condition was a chronic one, but that it was not attributable to his eligible defence service. The court concluded that the applicant was not entitled to compensation under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Finally, Counsel for the Applicant submitted that the evidence of the Applicant himself, about exposure, effects and onset of symptoms, and his physical deterioration, have a probative value which supports the opinion of Dr Donohoe, and should on balance satisfy the Tribunal that there exists a connection between the Applicant's condition and his eligible defence service.consideration of evidence and findings of fact The Tribunal finds that the Applicant is suffering from a very debilitating chronic condition and that during the years since about 1991 he has paid increasing attention to his concern that his present condition was associated with the chemicals he used during his service in the RAAF. Over the years he has invested considerable effort in pursuing that hypothesis. In the course of those investigations and particularly since he lodged his claim with the Respondent in respect of the condition, the proper diagnosis of the condition has also been at issue. The Applicant is now of the view that he does not suffer from rheumatoid arthritis but from some condition that has arisen from a form of chemical poisoning that occurred during his service. The Tribunal must come to a decision, on the balance of probabilities, with regard to diagnosis, before the issue of causation can be addressed. Indeed, the diagnosis will also affect whether the Tribunal is required to apply a Statement of Principles pursuant to s120B in making its determination. The diagnoses to be considered are rheumatoid arthritis, chronic fatigue syndrome, and adult Still's disease. The Tribunal finds, on the evidence, that a diagnosis of rheumatoid arthritis or adult Still's disease precludes a diagnosis of chronic fatigue syndrome. The Tribunal considers the expertise of Professor Sambrook to be clearly superior in providing a diagnosis in this case. Not only is this an area of particular relevance to rheumatology, but also Professor Sambrook is an eminent rheumatologist. Moreover, the Tribunal has considered carefully his reasoned responses to and rebuttal of the opinions of Dr Donohoe and Dr Fluhrer. These doctors were not qualified in rheumatology. The Tribunal is reasonably satisfied that the Applicant suffers from adult Still's disease, a form of rheumatoid disease, but one which carries a different ICD code that is not included in the Statement of Principles for Rheumatoid Arthritis Instrument No. 127 of 1996. As that Statement of Principles was gazetted in 1996, after the primary decision was made, the Statement of Principles does not need to be applied in determining the matter: Repatriation Commission v Thompson [2001] FCA 314. In any event, nothing turns on this issue, as the Tribunal notes that there is no Statement of Principles for Adult Still's Disease. The Tribunal finds that the onset of the adult Still's disease occurred about 1991, but even if it occurred during his eligible service (and we are not reasonably satisfied that it did) the mere occurrence of the condition on service is not sufficient to meet the requirements of s70 of the Act. It needs to have "arisen out of, or was attributable to, any defence service…": ss70(5)(a).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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