Flaxman and Repatriation Commission
[2001] AATA 592
•27 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 592
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/635
VETERANS' APPEALS DIVISION )
Re MONTAGUE EDWARD FLAXMAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date27 June 2001
PlaceSydney
Decision 1. The decision of the Repatriation Commission of 24 May 1997 is set aside and the Tribunal substitutes in lieu thereof its decision, namely THAT: the Applicant, Montague Edward Flaxman, is entitled to pension for the war-caused diseases of osteoarthrosis both feet, migraine and left rotator cuff syndrome. 2. The decision of the Repatriation Commission of 7 October 1998 rejecting the Applicant's claim to have "anxiety condition" attributed to war service is affirmed. 3. This matter is remitted to the Respondent, Repatriation Commission, in order that it can assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Various conditions claimed as war-caused. Decision as to whether an anxiety condition or other psychiatric impairment in fact existed. Whether necessary to have recourse to hypothesis when there is direct evidence of injury.
Veterans' Entitlements Act 1986 - s6A, subss120(1), (3), (6), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 90 FCR 307
Meehan v Repatriation Commission [2001] FCA 597
Bushell v Repatriation Commission 175 CLR 408
Re Newman's Appeal 13 FLR 268
Plomp v R 110 CLR 234
Barca v R 133 CLR 82
Peacock v R 13 CLR 619
REASONS FOR DECISION
27 June 2001 Senior Member M D Allen Dr P D Lynch, Member
By application lodged with the Tribunal on 30 April 1999 the Applicant sought review of two decisions by the Respondent. The first, dated 24 May 1997, refused claims for osteoarthrosis both feet, migraine, irritable bowel syndrome, bilateral rotator cuff syndrome, lumbar spondylosis and aortic stenosis, whereas the second decision, dated 7 October 1998, refused the Applicant's claim for "anxiety condition". Both decisions were affirmed by a Veterans' Review Board on 5 March 1999.
When this matter came on for hearing before the Tribunal the claims with respect to right rotator cuff syndrome and lumbar spondylosis were withdrawn by the Applicant's representative.
As the Applicant had operational service as that term is defined in s6A of the Veterans' Entitlements Act 1986 (the VEA), the standard of proof in this matter is that provided by subss120(1) and (3) of the VEA. Those subsections provide that the injury or disease suffered by the Applicant will be war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied if, after consideration of the whole of the material before it, that material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant. Subs120A(3) of the VEA then goes on to provide that a hypothesis will not be reasonable unless it conforms with a so-called Statement of Principles (SoP) determined by the Repatriation Medical Authority. Subs120(6) provides that no party to the review bears any onus of proof.
The manner in which the Tribunal must approach its task in matters where a SoP exists pertaining to a particular disease was set out in Repatriation Commission v Deledio 83 FCR 82 at 97, namely:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
Although the Full Court of the Federal Court in Repatriation Commission v Cooke 90 FCR 307 at p310 said:
"We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. …"
Wilcox J in Meehan v Repatriation Commission [2001] FCA 597 pointed out that that standard only relates to the existence or not of a disease state. The diagnosis of the specific disease must be considered using the reverse standard of proof provided by subs120(1) of the VEA.
In this matter it is expedient to deal separately with the particular conditions claimed by the Applicant.
Osteoarthrosis both FeetAlthough the Applicant originally blamed ill fitting Army foots for this condition, he later raised the argument that the condition was a sequelae of operations whereby he had total knee replacements. This had in turn altered his gait and led to osteoarthritis of the feet.
The Applicant's submissions finds support in the opinion of Professor Sambrook, Professor of Rheumatology at Royal North Shore Hospital, whose report dated 19 August 1999 became Exhibit A10 in these proceedings. In that report Professor Sambrook states:
"In regard osteoarthrosis of the feet, Mr Flaxman's recollection of referral for specialist footwear raises the possibility of some malalignment of the joint of the feet. Moreover the recent podiatric assessment by Ms Bird, noted the need to stabilise the rear foot and provide support for the mid tarsus given that Mr Flaxman had undergone corrective knee surgery. Thus it is likely that the knee surgery for his accepted disability has further exacerbated any malalignment of the mid and hind foot, leading to early osteoarthrosis and should be related to his already accepted disability."
The relevant SoP for osteoarthrosis is Instrument No 71 of 1995 as amended by Instrument No 352 of 1995. Factor 1(b)(ii) for the factors linking osteoarthrosis with circumstances of the person's service reads:
"having a malalignment of the relevant joint before the clinical onset of osteoarthrosis;"
Given the report of Professor Sambrook it seems clear that this SoP has been met and the Applicant's hypothesis, that the operation on his knees has led to a malalignment which in turn led to osteoarthrosis of both feet, is a reasonable hypothesis.
In any event, given the report of Professor Sambrook that the osteoarthrosis of both feet is a direct result of the surgery upon the Applicant's knees, then it would seem that this is a case where one does not need to rely upon any particular hypothesis. The condition of osteoarthritis both knees is an accepted condition and the Applicant's knee replacement was undertaken as a result of that particular condition.
The requirement that there be a reasonable hypothesis linking a disease with the circumstances of the person's particular service arises out of remarks by Brennan J (as he then was) in Repatriation Commission v O'Brien 155 CLR 422. His Honour was of course entirely familiar with the doctrine of reasonable hypothesis arising from the criminal law.
In Re Newman's Appeal 13 FLR 268 F G Brennan QC (as he then was) was leading counsel for the Military Board (the report reverses the particular appearances but see the corrigenda at page xv). The decision shows at p294 that Brennan QC referred the Courts Martial Appeals Tribunal to the case of Plomp v The Queen 110 CLR 234. That particular case dealt with the direction customarily given to a jury where circumstantial evidence is relied upon to prove guilt, and in turn referred to the earlier decision of the High Court in Peacock v The King 13 CLR 619. Peacock supra was also referred to by the High Court in Barca v The Queen 133 CLR 82. In Barca at p104 the majority (Gibbs J, Stephen J and Mason J) said:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v. The King 13 CLR 619 at p634."
In this case there is no particular inference to be drawn but the report of Professor Sambrook states that it is likely the Applicant's knee surgery for his accepted disability led to earlier osteoarthrosis of the feet. Apart from any hypothesis therefore the condition should be accepted as a sequelae resulting from treatment for an accepted condition. In other words, where there is direct evidence of injury there will be no need to have recourse to a reasonable hypothesis.
MigraineThe Applicant's evidence was that whilst in Darwin during the Second World War he was playing rugby football when he was hit badly and landed on his head, being knocked unconscious. Later that same afternoon he started vomiting and was admitted to hospital. Not long after that incident he started to experience headaches and see what he termed "sparkles" before his eyes. Although the occurrence of the headaches and the "sparkles" was not "too often" in the immediate post war period, he now frequently experiences what have been diagnosed as migraine headaches.
The history which the Applicant gave to the Tribunal, he also gave to Dr Graham, Neurologist, whose report of 7 February 1997 is at Document T23. In that report Dr Graham says:
"Sometimes head injury can trigger migraine, and this maybe the explanation with Mr Flexman (sic)."
Instrument No 3 of 1996 is the relevant SoP for migraine. That instrument states, however:
"For example, migraine occurring for the first time with significant head trauma should be considered under that Statement of Principles."
I was informed from the bar table that the Repatriation Medical Authority has never issued a SoP for head trauma.
It would seem therefore that, in considering the Applicant's migraine, the standard is that of the reasonable hypothesis as explained in cases such as Byrnes v Repatriation Commission 177 CLR 564 and Bushell v Repatriation Commission 175 CLR 408.
In Bushell supra the High Court said at p414:
"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. …"
More importantly, the majority in that case went on to add at p414-415:
"… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. …"
In this case the hypothesis raised by the evidence, namely that the Applicant's migraine is a result of his being knocked unconscious during a football match, is supported by the opinion of a neurologist, Dr Graham, consequently it must be regarded as a reasonable hypothesis and the Applicant's migraine accepted as a war-caused disease.
Irritable Bowel SyndromeThe Applicant gave evidence that whilst in Darwin, as a result of a mistake with the chlorination of water, 20 to 30 members of his unit had a severe bout of dysentery. Soon after the war had ceased, he had occasional bowel problems but just put it down to stomach upsets and did not do anything about it.
The Applicant's evidence in this regard is corroborated in a letter from a Mr L Stella, undated, which became Exhibit A4.
That the Applicant has a mild irritable bowl syndrome is confirmed by the report of Dr Dowsett, Gastroenterologist, which is at Document T24. Although that report refers to the Applicant not remembering an individual event of acute dysentery, the Applicant's evidence to this Tribunal was that he was hospitalised and treated for dysentery after the over-chlorination of the water supply. He was not shaken on this aspect in cross-examination and no material has been adduced to rebut his evidence.
Instrument No 103 of 1996 is the SoP with regard to irritable bowel syndrome. A factor which links that condition with service is Factor 5(c) which reads:
"suffering an episode of severe diarrhoea within the six months immediately before the clinical onset of irritable bowel syndrome;"
The words "episode of severe diarrhoea" in the same document are defined to mean:
"the acute onset of an illness characterised by the passage of frequent loose watery motions accompanied by a marked urgency to defaecate, caused by an infective organism, and of sufficient severity to warrant medical attention, or in the absence of medical intervention, lasting at least four days."
In this matter it is clear that the Applicant, by suffering dysentery, suffered severe diarrhoea, it came on acutely but unfortunately it was caused by a physical agent, namely over-chlorination of the water supply, rather than by an infective organism. Therefore although the Applicant has suffered from the symptoms of an irritable bowel syndrome ever since his service, the definition of what is an "episode of severe diarrhoea" in the SoP has the result that a reasonable hypothesis does not exist linking the circumstances of his service with the condition.
The other hypothesis put forward by the Applicant is that the irritable bowel syndrome is as a result of his psychiatric condition as per Factor 5(d) in the said instrument. For the reasons set out below we do not consider that the Applicant has raised material to conform with this particular factor.
Left Rotator Cuff SyndromeThe hypothesis put forward by the Applicant is in conformity with Factor 5(a) of Instrument No 5 of 1996 which relates to trauma.
The Applicant's evidence to the Tribunal was that his pain in the shoulder first arose during training when he was learning to fire the Piat antitank weapon. The next day he got a severe pain in his left shoulder. He reported sick and saw a medical officer who recommended that he attend a specialist. As a result of this he was put on to light duties. The pain lasted approximately one week to 10 days and he recollects that as that was the period he was on light duties.
Contained at page 32 of the s37 documents prepared for the Tribunal is an extract from the Applicant's service medical documents which records a history of pain in the left shoulder for one day. However, the note also says:
"Full range of movement but clicking sensation & increase in pain with difficulty in completing adduction from abducted posn …"
which would seem to indicate that the pain was ongoing and not restricted to one day. The note make sense if it is read in the sense that the Applicant had had pain for one day and that that pain is still ongoing when seen by the medical officer.
Contained at page 201 of the s37 documents is a description of the Piat antitank weapon and that extract states:
"The spigot had to be cocked for the first shot, but the recoil from this and subsequent firings recocked the weapon automatically, provided that the user held the weapon firmly. There were snags to the Piat. Cocking for the first round was extremely difficult because of the strength of the spring. To fire, the gunner held onto the trigger guard with his left hand and pulled back hard; the trigger was so stiff that it had to be operated with two fingers, and after pulling it there was a noticeable pause while the spigot shot forward. Unwary recruits tended to loosen their grip at this point, receiving a massive blow on the shoulder as the grenade flew off…"
The Applicant gave evidence that the Piat was fired using the left shoulder because of the necessity to cock the weapon with the right hand and the extract above corroborates that. It also refers to the strength of the blow to the shoulder which could occur when using the weapon.
We are satisfied that the material before us has raised a hypothesis connecting the Applicant's left rotator cuff syndrome with the circumstances of his service and that this hypothesis conforms to the "template" created by the relevant SoP. The condition of left rotator cuff syndrome will therefore be accepted as a war-caused disease.
Aortic StenosisNo submissions were made in relation to this disease and there is no material before us sufficient to raise a hypothesis connecting this disease with the circumstances of the Applicant's service.
Anxiety StateThe Applicant was examined at the request of the Respondent by Dr Maclean, Psychiatrist, on 29 July 1998. Dr Maclean's report of 6 August 1998 is Document T32. In that report Dr Maclean took the following history:
"He never had any treatment for his nervous conditions. He said that he was always nervous and anxious associated with the stress of war but he coped with his own resources. Asked specifically about what symptoms he had, he described being agitated but to none of the physical concomitants of anxiety. He said that he was a small pugnacious individual who tended to get picked on and bullied. …"
Dr Maclean then opined:
"Premorbidly Mr Flaxman has always been an anxious sort of individual. I could find no evidence of any primary psychiatric diagnosis, past or present. He has had some non specific nervous symptoms associated with his premorbid personality which were exaggerated by the stress of war, but which subsequently settled down. He tends to be somewhat irritable and easily agitated.
I could certainly find no evidence of post traumatic stress disorder, past or present. As such I could find no evidence of any Service related nervous condition in my assessment of Mr Flaxman. He is competently cared for by his local doctor and there is no indication for any psychiatric interventions. …"
In evidence to the Tribunal, the Applicant stated that he gets very uptight about things and that he has slept badly since after the war. He used to wake up early in the mornings and could not go back to sleep. He added, however, that sleeping problems had started around the time when he was first married. Indeed, immediately after service, whilst living with his parents, he did not recall any problems but the problems started about the time he was married. He also added that nightmares started just after he got married. The Applicant added that during his time in the Army he had been picked on and bullied but learnt to avoid bullies where possible. After the war he seemed to alienate people and there were a lot of people he just could not get along with.
Cross-examined regarding when his problems started, he said that he started to worry after his marriage because he had a wife to look after and there were problems as a provider and that these problems contributed towards his inability to sleep.
In his statement to the Tribunal (Exhibit A2) the Applicant referred to becoming increasingly worried about a risk of cancer from exposure to radiation at Hiroshima. Apparently someone gave him a book on the subject and he realised that, as he himself had visited Hiroshima while with the occupation forces, there was a risk of his contacting cancer following exposure to radiation. He also has what he termed flash-backs by which he meant the recurrence in his memory of the sights of injured survivors from the atomic attack upon Hiroshima.
In the opinion of Dr Dinnen, Psychiatrist, the Applicant is suffering from a generalised anxiety disorder as a result of his service. In evidence to the Tribunal, Dr Dinnen stated that he thought that the Applicant had a vulnerable personality prior to service and during service he had coped well with his anxiety by suppressing it and, in his opinion, the symptoms were present even before the Applicant married. Referring specifically to the Applicant's interpersonal difficulties in the Army, Dr Dinnen stated that "not getting on with blokes in the Army suggests a degree of psychological discomfort" and that an anxiety disorder could be dated back to the time the Applicant was in Darwin and Darwin was bombed. Having visited Hiroshima during the course of his service, later being given the book referring to servicemen who had visited Hiroshima and suffered radiation induced cancers, has only made his condition worse.
Questioned by the Tribunal Dr Dinnen stated that unlike Drs Maclean and Walden, he is of the opinion that the Applicant does have a diagnosable illness which is a generalised anxiety disorder although he would concede that the said condition is well compensated.
Exhibit R8 is the report by Dr Maxine Walden, Psychiatrist, to the Respondent. In that report Dr Walden states specifically (p3):
"Mr Flaxman does not describe symptoms of Post-traumatic Stress Disorder. Specifically, he does not describe recurrent intrusive images or thoughts of his service in World War II and does not describe dreams."
Dr Walden concluded her report by saying (p7):
"I do not consider that Mr Flaxman suffers from any psychiatric disorder. Specifically, he does not fulfil the DSM-IV Criteria for a Generalised Anxiety Disorder. He does not suffer from Post-traumatic Stress Disorder. He does not have a depressive disorder.
Mr Flaxman describes always being a somewhat anxious individual. This dates back to childhood when he was a shy child who tended to be irritable and to get into fights with other children. I consider that this is a life long part of his personality style and not indicative of a psychiatric disorder. This personality trait has never caused clinically significant distress or impairment in functioning as is required in a Generalised Anxiety Disorder. His mental state examination is not consistent with the presence of any psychiatric disorder.
Overall, I do not consider that Mr Flaxman suffers from any psychiatric condition, war service related or otherwise."
Cross-examined, Dr Walden referred to the Applicant's thoughts of seeing the injured as a result of the Hiroshima bombing but stated that those thoughts did not constitute flash-backs as that term is understood in psychiatry but were rather memories which were brought back to him. As Dr Walden said in evidence in chief "a reminder is not a flash-back".
Dr Walden conceded that perusing the book on the history of veterans who had been at Hiroshima, would cause the Applicant some worry but of course that is different from causing a psychiatric illness.
Having read the reports of Drs Walden and Dinnen and heard both doctors give evidence and be cross-examined, we are more persuaded by the opinions of Dr Walden. We note that Dr Walden's opinions are supported by Dr Maclean, Psychiatrist, who saw the Applicant in 1998 and also by an earlier report by Dr Samad, Psychiatrist, who saw the Applicant at Concord Repatriation Hospital in September 1983 and considered that the depression and anxiety state the Applicant then suffered was on account of his wife who was then totally dependent upon him due to her own ill health.
Given all the material before us we are satisfied that the Applicant does not suffer from any psychiatric illness, in particular he does not meet the definition in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition for an anxiety state in that the Applicant's condition does not cause him any clinically significant distress or impairment.
As, therefore, we are reasonably satisfied that no psychiatric condition exists, the determination of the Respondent relating to any anxiety state, or indeed any other psychiatric impairment suffered by the Applicant, is affirmed.
As stated earlier, the affirmation of the decision relating to psychiatric impairment also means that no reasonable hypothesis has been raised connecting the Applicant's irritable bowel syndrome with his service.
The decision of the Respondent of 24 May 1997 is set aside and the Tribunal substitutes its decision that the conditions of osteoarthrosis both feet, migraine and left rotator cuff syndrome are war-caused. The decision of 7 October 1998 relating to "anxiety condition" is affirmed. This matter is remitted to the Respondent in order that pension for incapacity occasioned by all war-caused injuries and diseases can be assessed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr P D Lynch, MemberSigned: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing 1 May 2001
Date of Decision 27 June 2001
Solicitor for the Applicant Ms E Sadlier, Legal Aid Commission
Solicitor for the Respondent Ms G Pacey, Department of Veterans' Affairs
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