Digney and Repatriation Commission
[2003] AATA 183
•25 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/120
VETERANS' APPEALS DIVISION ) Re JOHN WILLIAM DIGNEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date25 February 2003
PlaceHobart
Decision The Tribunal varies the decision under review by deciding that the condition of ischaemic heart disease is defence-caused with effect from 10 October 1999. The decision under review is otherwise affirmed. The Tribunal remits the matter to the respondent Commission for assessment of pension.
[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Veterans’ Entitlements – alcohol dependence – alcohol abuse – ischaemic heart disease – Statements of Principles – whether defence caused – decision under review set aside.
Veterans’ Entitlements Act 1986 – ss5D, 70,120, 120B
Statement of Principle Instrument No 77 of 1998
McKenna v Repatriation Commission (1999) FCA 323
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION
25 February 2003 Ms A F Cunningham (Part-time Member) 1. The applicant has sought the review of a decision of the Repatriation Commission dated 18 April 2000 and subsequently affirmed by the Veterans’ Review Board (VRB) on 20 April 2001, which determined that the applicant’s conditions of alcohol dependence/alcohol abuse and ischaemic heart disease were not defence-caused within the meaning of s70 of the Veterans’ Entitlement Act 1986 (“the Act’).
2. The applicant was represented by Hon Michael Hodgman QC., and gave oral evidence at the hearing. The Hon Gillian James MP also gave oral evidence in support of the applicant’s case. The respondent was represented by Mr M Castle who called no evidence.
3. The T documents were tendered pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975.. Mr Castle tendered a photostat copy of documents he contended was a copy of the applicant’s complete medical service file.
4. The issue for determination is whether the applicant’s claimed conditions of alcohol dependence/alcohol abuse and ischaemic heart disease “arose out of, or were attributable to his service in the Australian Army between 27 July 1976 and 17 September 1989”.
Legislation
5. The relevant legislation is the Veterans’ Entitlements Act 1986 (“the Act”) and in particular the following provisions:
“5D(1) In this Act, unless the contrary intention appears:
….
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
…
incapacity from a defence-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2)
…
(2) In this Act, unless the contrary intention appears:
(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
…
9. (1) Subject to this section, for the purposes of this Act …a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)… disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
6. The applicant’s eligibility for a pension arises by virtue of the provisions of s70 which provides:
“(1) Where:
(a) …
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.”
7. As the applicant did not render operational service, the Tribunal must determine the issues to its reasonable satisfaction pursuant to the provisions of s120(4) of the Act.
“(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(3), 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.”
8. As the applicant’s claim was lodged after 1 June 1994, the provisions of s120B of the Act provide that::
“(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 eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(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(3) 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) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
9. It was accepted that the relevant Statements of Principles (SoP) for the purposes of s120B are Instrument No 26 of 1999 concerning hypertension, Instrument No 39 of 1999 concerning ischaemic heart and Instrument No 77 of 1998 concerning alcohol dependence or alcohol abuse.
Alcohol Dependence/Alcohol Abuse
10. Paragraph 5 of Instrument No 77 of 1998 states:
“Factors
5. The factors that must exist before it can be said that, on the balance of
probabilities, alcohol dependence or alcohol abuse or death from
alcohol dependence or alcohol abuse is connected with the
circumstances of a person’s relevant service are:(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the one year immediately
before the clinical onset of alcohol dependence or alcohol abuse;
or
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the one year immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or
(e) inability to obtain appropriate clinical management for alcohol
dependence or alcohol abuse.”
11. The applicant’s evidence was that he did not have a problem with alcohol prior to his enlistment at the age of 24. He said that he had one conviction for drink-driving prior to enlistment.
12. The applicant referred to an incident which occurred during infantry IE training. He said that he was on the far left of a line of soldiers firing at targets when the serviceman standing next to him remarked that there was something wrong with his weapon. He then turned towards the applicant pointing his rifle at him saying that his rifle was jammed. The applicant said that the incident terrified him. It brought back memories of an earlier hunting incident which occurred prior to enlistment during which a mate lost an eye and sustained chest juries from a shotgun blast.
13. The applicant said that following the incident which occurred at the end of the day, he went to the bar and “got drunk”.
14. The applicant referred to another incident which occurred at the Butterworth base in mid 1970 when the applicant in the company of other service members was returning to base during the sounding of a warning siren. He was confronted by a Thai guard who demanded to see his pass whilst pointing a loaded weapon at his forehead. When the applicant tried to point out to the guard that he knew the applicant and his companions, the guard replied “pass or I will kill you”. The applicant said that he felt very scared and that the loaded weapon was pointed at his head for about 10-minutes. When asked what affect this incident had had on him, the applicant replied that he thought he was going to die, and that he felt his heart pounding. As a result he tended to get drunk more often and still has difficulty sleeping.
15. The applicant said that he used to drink between 12 and 20 glasses of beer in a session.
16. There is no evidence before the Tribunal that the applicant suffered a psychiatric disorder as referred to in sub-paragraphs 5(a) and 5(c) of Instrument No 77 of 1998.
17. The term “experiencing a severe stressor” is defined in the Instrument as meaning that “the person experienced, witnessed or was confronted with an event, or events that involved actual threat of death or serious injury, or a threat to the person’s or other peoples physical integrity, which event or events might invoke tense fear, helpfulness or horror”. Whilst the Tribunal does not doubt the applicant’s evidence that the two incidents referred to by him during his service, invoked feelings of intense fear at the time, there is no evidence before the Tribunal as to the clinical onset of the applicant’s alcohol dependence or abuse connecting the applicant’s experiences with his claimed condition.
18. The relevant medical evidence in relation to the applicant’s claimed condition of alcohol dependence/abuse is contained in the report of Dr Burges-Watson, dated 10 April 2000 in which he states:
“He initiated the session by saying that he was an alcoholic and had been for about twenty years. The pattern of his drinking suggests binge drinking. He said, `Once I start, I tend to keep going’.. He drinks for one, two or three days and then is able to stop. He said, `I can’t go out and have a coup of beers and go home’.
…
While Mr Digney clearly has a drinking problem, he does not satisfy the relevant SOP.”
19. The medical report of Colonel R A Burston, dated 17 October 1979 stated that the applicant::
“Drinks quite heavily on one night a week.”
20. The Tribunal is unable to find on the available evidence that the applicant was alcohol dependent at the date of that report. It is noted that this report is dated some years after the Butterworth base incident and over three years from the infantry training incident which the applicant said occurred whilst he was staying at Woodside, South Australia in mid 1976.
21. The Tribunal having found on the balance of probabilities that there is insufficient evidence connecting the applicant’s experiences during his period of service with his claimed condition of alcohol dependence/abuse in accordance with Factor 5 of Instrument No 77 of 1998, it is thereby determined that the applicant’s claimed condition is not defence-caused.
Ischaemic Heart Disease
Hypertension
22. It was contended by the Hon. Michael Hodgman QC., that the Tribunal could be satisfied of the connection between the applicant’s service and his ischaemic heart disease on the basis of the factors listed in sub-paragraphs 5(a), (c), (f), (h) (p) and (zg) of Instrument No 39 of 1999.
23. One of the factors listed in Instrument No 39 of 1999 which could connect the applicant’s service with his ischaemic heart is, subparagraph (a) “the presence of hypertension before the clinical onset of ischaemic heart disease”. Whilst the applicant’s condition of hypertension has been accepted as service-related, the decision of the full Court of the Federal Court McKenna v Repatriation Commission (1999) FCA 323 makes it clear that this Tribunal must find a causal connection between the applicant’s service and his condition of hypertension in accordance with any relevant SoP, in this case being Instrument No 26 of 1999 concerning hypertension. In the words of the Full Court at page 10 the Tribunal must:
“… must form an opinion whether the hypotheses pointed to by the material before the Tribunal was reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant Statements of Principles.”
24. Mr Hodgman QC., acknowledged that whilst the applicant’s condition of hypertension had been accepted as a service-related disability on 15 February 1990, it was nevertheless incumbent on the decision-maker to find a causal link between the applicant’s heart disease and his conditions of service.
25. Subparagraph 5(a) of Instrument No 26 of 1999 lists the condition of “being obese at the time of the accurate determination of hypertension” as a connecting factor. The Instrument goes on to define the term ”being obese”. The medical notes reveal that the applicant’s condition of hypertension was first diagnosed in March 1986.
26. The Tribunal was referred to a medical report dated 29 March 1978 which recorded the applicant’s weight at 79 kilograms and noted that he had “put on 14 kilograms since Christmas”. When the applicant was examined on 2 October 1979, a medical officer noted “he appeared a healthy young man weighing 75.5 kilograms in his clothes”. It would appear that the medical officer did not consider the applicant to be obese at the time of that medical examination which co-incided with his diagnosis of hypertension. It is further noted that in a report dated 1 March 1988 it was stated that the applicant was mildly obese. 4 kilograms weight gain last 12 months. Needs to reduce weight in view of hypertension and left ankle symptoms”. It appears from the medical records that the applicant’s weight gain was more significant after the diagnosis of hypertension.
27. Whilst the Tribunal can accept that this was a significant weight gain, there is insufficient evidence to support a finding on the balance of probabilities that the applicant was obese within the terms of the definition in the relevant Instrument “at the time of the determination of hypertension” within the terms of subparagraph (a).
28. Whilst the Tribunal has some evidence before it that the applicant was a heavy drinker at times, there is insufficient evidence to satisfy the Tribunal on the balance of probabilities that he was suffering from alcohol dependence or alcohol abuse as these terms are defined in the relevant SoP at the time of determination of the applicant’s hypertension.
29. Whilst there is evidence in the medical notes regarding the applicant’s overweight condition and notations that he received advice and counselling as well as a suggestion of some heavy drinking, the Tribunal can find no evidence which satisfies any of the factors listed in paragraph 5 of Instrument No 26 of 1999 which must exist before it can find that the applicant’s hypertensive condition is connected with his service.
Smoking
30. The Tribunal was referred to sub-paragraph 5(f) to support a connection between the applicant’s smoking habits and his ischaemic heart disease. The applicant’s evidence was that he only smoked 1 to 2 cigarettes per day when he enlisted in July 1976. He said that due to peer pressure and the feat of being ostracised by the other service members, he soon became a regular smoker.
31. It is noted that in the applicant’s claimant report dated 10 March 2000 (T14) he stated that he first began smoking cigarettes on a regular basis in 1976 due to peer pressure and training. Whilst the report stated that he then smoked 20 cigarettes per day, his evidence was that it was closer to 30 cigarettes per day which increased to 60 cigarettes per day at the date of the report. Whilst the applicant conceded that there was no “requirement” to smoke during his service, he said that he would have been ostracised by the other servicemen and that if he wanted to remain a popular member of the troop he had to join them. He said that there was a culture of non-smokers, non-drinkers and those that smoked and drank. The applicant said that he would have been severely ostracised by the smoking, drinking group who would not have even spoken to him if he had he not become a smoker.
32. The applicant’s evidence was that he was still smoking up to 50 cigarettes per day at the time of the diagnosis of his ischaemic heart disease and therefore the requirements of Factor 5(f) are satisfied. The remaining question for the Tribunal is whether the applicant’s smoking habit is connected with his service.
33. The Full Federal Court in the decision Repatriation Commission v Tuite (1993) 39 FCR 540 was reviewing a decision of the Tribunal which found that the circumstances and the incidents of the veteran’s camp life had a causal influence on his decision to take up smoking. The Tribunal had stated that it was not sufficient simply to find a temporal connection, but what was required was “something within the applicant’s military service which has caused him to start smoke [sic].” The Tribunal accepted that it was the circumstances of the serviceman’s camp life that caused him to start smoking.
34. The applicant also gave evidence that the demands of his job often required him to take work home. He was the only pay representative in the unit which required him to handle 400 to 500 pays and allowances per fortnight. The applicant stated that in order to relax he smoked and drank to excess.
35. The Tribunal accepts the applicant’s evidence that his smoking habit was as a result of his wanting to be accepted by the other service members and his fear of being ostracised from the group if he did not smoke with them. The Tribunal accepts that the applicant was virtually a non-smoker at the time of his enlistment and whilst it could be argued that the applicant made a conscious choice to smoke regularly during service, the Tribunal is satisfied that his decision to do so arose because of the circumstances in which he found himself during service and in particular his fear of being ostracised. This was obviously a significant factor for the applicant for in his words “he wanted to remain a popular member of the troop”. He feared that he would not even be spoken to by his peers if he had not joined their smoking group. The applicant was 24 years of age when he joined the army and had at that stage made a conscious decision not to be a regular smoker. The Tribunal is satisfied that the circumstances of his service as outlined above including the stresses related to his work as pay officer led to his smoking habit of 20 –30 cigarettes per day which then increased over time.
Severe Stressor
36. The Tribunal was also asked to consider the factor appearing in sub-paragraph 5(p) “experiencing a severe stressor immediately before the clinical onset of ischaemic heart disease”. The Tribunal has earlier referred to incidents relied upon in support of this sub-paragraph, however again, there is no evidence that the events relied upon occurred immediately before the clinical onset of the applicant’s condition of ischaemic heart disease.
Obesity
37. It was further contended that the applicant’s obesity also contributed to his condition of ischaemic heart disease. Sub-paragraph 5(c) states that a relevant factor is “being obese for a period of at least 2 years within the 15 years immediately before the clinical onset of ischaemic heart disease
38. The definition in the SoP for being obese includes a measurement of a person’s body mass index (BMI) where the BMI = w/h2 where w is the person’s weight in kilograms and H is the person’s height in metres. It is noted from the applicant’s medical examination report dated 2 September 1986 that the applicant’s height was 1.71 metres and then weight was 84 kilograms which according to the above formula measures his BMI at 24.56. At the applicant’s last medical examination on 25 July 1989 he was recorded as being 177 cm on height and weighing 86 kilograms which converts to a BMI of 24.3. Whilst there was a variance in the applicant’s stated height between the two reports, his BMI measurement is still below the figure of 30 required in the SoP definition.
Physical Activity
39. It was contended on behalf of the applicant that he also satisfied the qualifying factor in sub-paragraph 5(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”.
40. The earliest medical report contained in the T documents which referred to the applicant’s condition is that of Dr S T Benjamin dated 31 March 1999 addressed to Dr S Tan (T12) in which he stated:
“However, an exercise thallium study has been undertaken confirming that he does have quite significant inferior ischaemia and probable significant right coronary artery disease. In view of his young age, I am organizing for him to have an early coronary angiogram.”
41. Dr Mietekuliski confirmed in a report 7 January 2000 that the applicant suffered from “angina pectoris due to ischaemic heart disease”.
42. Whilst the applicant contended that his hypertension condition made him only fit for restricted duty, and there are some medical reports that deemed him fit for restricted duty from time to time, the majority of the reports deemed him fit for full duty, the latest being dated August 1989. This is despite his variable blood pressure readings and the absence of medication. The Tribunal is unable to conclude on the basis of the available evidence that the applicant satisfied the provisions of sub-paragraph 5(h).
Appropriate Clinical Management
43. It was strongly argued on behalf of the applicant that despite the early diagnosis of his hypertensive condition in March 1986, and prescribed medication, the applicant was not given sufficient information as to the consequences of his failing to take his medication, which it was contended, amounted to a lack of “appropriate clinical management” for his ischaemic heart disease, the factor listed in sub-paragraph 5(zg) of Instrument No 39 of 1999.
44. The extensive medical reports contain ongoing references to the applicant’s condition of hypertension. Following the diagnosis the applicant was prescribed Aldomet medication and the medical reports indicate that he was periodically reviewed for his condition. In a report dated 2 October 1979 it was stated:
“At the time of the annual medical in June he was not aware of any particular problems and was subsequently treated with tablets, though for the last month he has not had any medication whatever. He was not aware of blood pressure in the family, though his mother died at the age of 57 from a heart attack….
It is interesting to note that the blood pressure of 200/120 recorded in June and the present level without therapy. Whilst he is mildly hypertensive at the moment, there is no evidence on clinical examination of serious involvement of cardio vascular system from hypertension and I believe in the first instance it would be important to document his blood pressure ranges through the 24 hour period and get an effective assessment of the severity of the problem…..”
45. On 30 June 1980 it was reported “essential hypertension/doesn’t know tabs and sometimes misses them because not keen on them …”.
46. A report dated 20 November 1981 stated that the applicant’s “Condition extensively investigated in RGH and no underlying possible causation has been demonstrated”.
47. On 29 April 1986 it was reported “long standing hypertension since about 1978. Has had medication “on and off” since then at present lopreser 2 tablets daily (ineligible) … was tired but makes me feel terrible and ill. …”. The report went on to state that the applicant was advised to lose weight and reduce his salt intake and a course of medication was prescribed.
48. Whilst the applicant maintained that he was not made fully aware of his hypertensive condition, and was not informed that the tablets prescribed were for hypertension, the written medical reports suggest otherwise. For instance, the report dated 1 March 1988 states:
“Long standing hypertension. Fully investigated 1979, and no specific cause found. Medication 1986 without knowledge of RMO due to side effects of medication. BP elevated today. For BP monitoring and commencement of appropriate therapy. Risks of non-compliance explained to member.”
49. The further medical reports indicate ongoing monitoring of the applicant’s weight and dietary intake and suggested salt reduction. It was reported in the August 1989 that for the dates 8 August and 9 August the applicant “has not started medication yet” and on 17 August “did not take medication”.
50. In a report dated 16 April 1980 it was stated:
“Medically downgraded for hypertension to BMS. Not on medication for 1/12 now has been feeling well but putting in weight”.
On 18 June 1980 a report states:
“Not taking medication regularly – counselled re this”.
In a report dated 2 October 1981 it is stated:
“Omitted medication today. Headache. Abelo discomfort.”
On 12 March 1982 the report states that:
“To do PT, but, at own pace. Not to do BE training at this time.”
In a report dated 28 July 1989 it is stated:
“No medication taken by member. Medication discussed, Member”.
51. The applicant’s condition of hypertension was recorded on 8 April 1982 and his medical condition noted with a planned course of treatment. Again on 22 April 1982 the applicant’s hypertension was reviewed and medication prescribed. The reports in May 1982 refer to the applicant’s hypertension and medication with a note “If no improvement é Aldomet”.
52. Whilst the applicant maintained that he was only counselled in relation to weight loss and alcohol intake, the medical reports suggest that he was also counselled in relation to his ceasing to take his medication on occasions. The medical notes indicate and the applicant confirmed in evidence, that the side effects of the medication were unpleasant and that this was the reason why he periodically ceased taking his medication.
53. The Tribunal found the applicant to be a truthful witness and accepted that he endeavoured to recount the relevant circumstances of his service history as best he could. It is likely however that his memory in relation to some of his medical consultations may have been somewhat blurred by the passage of time. On the other hand the Tribunal has before it medical reports which it accepts were most likely made at the time of or in close proximity to the applicant’s appointments with his medical officers. The bulk of the medical reports tendered indicate that the applicant had a significant number of appointments during the period of his service.
54. Whilst the Tribunal can accept that the applicant may not have fully appreciated the extent and nature of his hypertensive condition, nor understood the importance of the medication prescribed, the Tribunal does not find on the evidence before it that he was not afforded appropriate clinical management for his condition within the meaning of subparagraph 5(zg). It is noted that the diagnosed condition during his period of service was that of hypertension and that his ischaemic heart condition was not in fact diagnosed until around 1999, which was some ten years after the applicant’s discharge.
Conclusion
55. The Tribunal having found a connection between the applicant’s ischaemic heart disease and his service by virtue of his smoking habit, sets aside the decision under review insofar as it determined that the applicant’s ischaemic heart disease is not defence-caused. The Tribunal remits the matter to the Repatriation Commission for assessment of the rate of pension payable to the applicant with effect from 10 November 1999.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: .......................................................................................
Administrative AssistantDate/s of Hearing 6 September 2002, 13 November 2003
Date of Decision 25 February 2003
Counsel for the Applicant Hon M Hodgman QC
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Repatriation Commission
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