Elizabeth Neal and Repatriation Commission - [2012] AATA 843

[2012] AATA 843

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/1639

Re

Elizabeth Neal

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms A F Cunningham (Senior Member)

Date 30 November 2012

Place Hobart
The decision under review is affirmed.
........................................................................
Ms A F Cunningham (Senior Member)
CATCHWORDS
Veteran's entitlements - defence service - whether multiple sclerosis was materially contributed to or aggravated by service - claimed that delay of diagnosis and stress and anxiety resulting from category 2 stressor suffered during service materially aggravated the disease - Tribunal found no causal connection between service and multiple sclerosis disease nor a category 2 stressor as defined in the SOP - decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1986 (the VE Act) ss 70(5), 120(4), 120(B) sub-section 3

Instrument No. 45 of 2002 and Instrument No. 101 of 2011 – Multiple Sclerosis

CASES
Lee v Minister of Pensions (2) 1948 3WPAR 1901

Brew v Repatriation Commission (1999) FCA 1246 Heerey J
Johnson v Commonwealth (1982) HCA 54 (1982)150 CLR 331
Repatriation Commission v Money (2008) FCA 118

REASONS FOR DECISION
SM Cunningham

The applicant, Elizabeth Neal was a member of the Royal Australian Air Force for a period of three years between 19/11/87 and 19/11/1990. She suffers from multiple sclerosis. In December 2004 Ms Neal lodged a claim for multiple sclerosis, hearing loss and tinnitis. The Repatriation Commission accepted the claims for hearing loss and tinnitis but determined that multiple sclerosis was not related to defence service. The Veterans Review Board affirmed the Commission’s decision and Ms Neal now seeks a review by the Administrative Appeals Tribunal.
Ms Neal contends that the symptoms of multiple sclerosis were evident during her service and the RAAF’s failure to diagnose and properly manage the condition led to its fast progression.
Following the conclusion of the evidence, attention was drawn to a subsequent Statement of Principles which included additional factors potentially linking multiple sclerosis to relevant service. The factor relied upon is a category 2 stressor. No further evidence was called but the Tribunal reconvened to hear further submissions made on behalf of both parties.
ISSUE
It is accepted that Ms Neal suffered symptoms of multiple sclerosis during her eligible defence service. It is not contended that the condition arose out of or was attributable to service but that it was aggravated by service. The issue for the Tribunal to determine is whether the disease was contributed to in a material degree or aggravated by service.
CONTENTIONS
It was contended on behalf of the applicant that an inability to obtain appropriate clinical management including a diagnosis, caused chronic stress reactions which in turn exacerbated and made Ms Neal's multiple sclerosis condition permanently worse. Further, that if the condition had been correctly diagnosed during Ms Neal's service, it would not have progressed or worsened to the extent that it did. It was submitted that if the service medical practitioners who treated Ms Neal's symptoms had access to the same diagnostic materials that were available to a…

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.

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Details

Case: [2012] AATA 843
Decision Date: 30 November 2012

CaseChat Overview and Summary

Elizabeth Neal sought a review of a decision by the Repatriation Commission which found that her multiple sclerosis was not materially contributed to or aggravated by her defence service. The case was heard in the Federal Court of Australia. The primary issue before the court was whether there was a causal connection between Ms Neal's service and her multiple sclerosis, particularly considering the stress and anxiety she experienced due to a category 2 stressor during her service.

The court examined the evidence presented, including the testimonies of Ms Neal and medical experts. Ms Neal argued that the delay in diagnosing her multiple sclerosis and the stress and anxiety resulting from the category 2 stressor during her service materially aggravated her condition. However, the Repatriation Commission found that there was no causal connection between her service and the multiple sclerosis, nor did they find that a category 2 stressor as defined in the Schedule of Accepted Conditions (SOP) was applicable.

The court agreed with the Repatriation Commission's findings. It was determined that the evidence did not support a finding that Ms Neal's condition was made permanently worse by a failure to diagnose multiple sclerosis during her service. Additionally, there was no evidence to suggest that the disease was materially contributed to or aggravated by her defence service. The court affirmed the decision of the Repatriation Commission.

As a result, the court dismissed Ms Neal's application for review, upholding the original decision of the Repatriation Commission. The court found no basis to overturn the decision that her multiple sclerosis was not materially contributed to or aggravated by her service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was submitted on behalf of the respondent that there is no evidence that the applicant's medical treatment was not appropriate by the standards of the time. Further, that the evidence does not support a finding that the condition was made permanently worse by a failure to diagnose multiple sclerosis during the applicant's period of service. Nor is there evidence it was contended, that the disease was contributed to in a material degree or aggravated by defence service.EVIDENCE The applicant, Elizabeth Neal gave oral evidence at the hearing. Dr Gary Fulcher, senior clinical psychologist was called to give evidence on behalf of the applicant. Dr David Andre Floate, consultant physician gave evidence on behalf of the respondent. Their written reports were included in the T documents which were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and tendered in evidence. Ms Neal described the difficulties that she experienced with the physical training exercises particularly the 2.4 km time trial run which was required in order to remain in the RAAF. She said that she was often physically sick during early morning training runs and was told by one doctor who she consulted to just keep trying. She said that she was required to undertake "fatties training" which required a 5 a.m. start and swimming pool exercises. Due to her awkward running gait and short stride, Ms Neal was referred by a service medical officer to Dr Nicholls an orthopaedic surgeon on 9 March 1988. After being transferred to Wagga where she was required to undertake a further fitness test, Ms Neal was referred to a number of other medical practitioners. Dr Richardson, an orthopaedic surgeon was consulted in relation to her running problems but reported that x-rays did not reveal any abnormalities. Ms Neal said that their failure to find a cause for her symptoms made her feel "fat and lazy" and caused her stress and anxiety. Ms Neal maintained that she was subject to a lot of pressure from superior officers and her peers. Ms Neal was referred to Dr Wilkinson at the end of 1988 by which time she claims that she had definite symptoms of multiple sclerosis, however he was unable to find a cause for her symptoms. Ms Neal maintained that the most significant source of her stress was Dr Wilkinson's impression that there was nothing wrong with her, that she was a malingerer and wasting his time. She said that he appeared relieved and quite excited when a muscle biopsy led him to a diagnosis of McArdle’s disease. Dr Wilkinson told Ms Neal that she was under a lot of stress because of the muscle disorder and that she just needed to get on with things and relax. She believed that Dr Wilkinson considered that "it was all in my head" but never suggested that she consult a counsellor. When Ms Neal made an appointment with a civilian physician and then sought permission to attend the appointment, she was threatened with sanctions by a warrant officer at the tactical fighter group at Williamstown. After being threatened with AWOL she cancelled the appointment. She believes that had she kept the appointment, she would have been referred to Dr Floate who would have diagnosed her MS condition.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1639
Re	Elizabeth Neal
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms A F Cunningham (Senior Member)
Date	30 November 2012
Place	Hobart