Fogarty and Repatriation Commission - [2002] AATA 879

DECISION AND REASONS FOR DECISION [2002] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1465
VETERANS' APPEALS DIVISION

Re: OLIVE MILDRED FOGARTY
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             2 October 2002
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.
  (sgd) G.D. Friedman
  Member

VETERANS' AFFAIRS - veterans' entitlements - diverticular disease of the colon - changing to a diet lower in dietary fibre - whether war-caused - assessment of level of disability
Veterans' Entitlements Act 1986 s8, 120(1), 120(3), 120(4), 120A(3)
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Yates (1995) 38 ALD 80

REASONS FOR DECISION

2 October 2002 G.D. Friedman, Member

This is an application by Olive Mildred Fogarty (the applicant), widow of William Francis Fogarty (the veteran) for review of a decision of the Veterans' Review Board (VRB) dated 9 October 2000. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 12 March 1999 that diverticular disease of the colon was not war-caused.
At the hearing of this matter on 2 September 2002 Mr D. De Marchi, solicitor, represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with three exhibits lodged by the applicant (Exhibits A1-A3) and five lodged by the respondent (Exhibits R1-R5).
BACKGROUND
The veteran was born on 1 June 1922. After attending junior technical school in Melbourne where he excelled at swimming, he won a scholarship to Footscray Accounting College. He commenced work as a clerk and at the age of eighteen he enlisted in the Royal Australian Navy (the navy). He served from 30 September 1940 until 4 January 1946 and this period is considered to be operational service for the purpose of s8 of the Veterans' Entitlements Act 1986 (the Act).
In the navy the veteran trained as a signalman and spent time on SS Victoria, a pilot ship based in and around Victorian coastal waters. He also spent time on minesweepers, followed by fourteen months with the destroyer HMAS Quickmatch in the South-West Pacific. On discharge from the navy the veteran found employment as a cabinet-maker, a fencer and in a meatworks, and he became a trade union official. In 1973 he entered the Legislative Assembly of the Victorian Parliament as the Member for Sunshine, where he remained until his retirement in 1988.
On 10 March 1999 the veteran lodged an application with the respondent for disability pension for incapacity from diverticulitis. On 12 March 1999 the respondent diagnosed the claimed condition as diverticular disease of the colon and refused the application on the grounds that the condition was not war-caused. On 9 October 2000 the VRB affirmed the decision of the respondent. On 5 December 2000 the veteran lodged an application with…

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 Fogarty and Repatriation Commission

Details

AGLC: Fogarty and Repatriation Commission [2002] AATA 879
Case: [2002] AATA 879
Decision Date: 2 October 2002

CaseChat Overview and Summary

In the case of Fogarty and Repatriation Commission, the applicant, a veteran, applied for a disability pension for incapacity from diverticulitis, which was refused by the respondent. The matter was subsequently reviewed by the Administrative Appeals Tribunal. The central issue was whether the veteran's diverticular disease of the colon was caused by his service in the Royal Australian Navy during World War II. The Tribunal had to determine if there was a reasonable hypothesis connecting the condition with the veteran's war service, in line with the four-step process established by the Federal Court in Repatriation Commission v Deledio. The Tribunal considered the relevant Statement of Principles, the evidence provided, and the medical reports, especially the report from Dr R. Marshall, which suggested that the veteran's low-fibre diet during his service could have caused the condition.

The Tribunal concluded that the evidence did not establish a reasonable hypothesis that the diverticular disease of the colon was war-caused. While Dr Marshall's report indicated that the veteran's diet during service was deficient in fibre, which could have contributed to the development of diverticulitis, the Tribunal found that the symptoms did not manifest until many years after the service, and there was no evidence that the rations described in the report were available to the veteran during his time at sea. Therefore, the Tribunal upheld the decision to deny the disability pension for the claimed condition. The Tribunal also noted that the veteran's other accepted disabilities and the rejection of some other conditions did not alter the overall assessment of the incapacity level, which remained at 40 per cent. The Tribunal affirmed the decision to grant the pension at 80 per cent of the general rate, considering the veteran's overall incapacity.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with three exhibits lodged by the applicant (Exhibits A1-A3) and five lodged by the respondent (Exhibits R1-R5). BACKGROUND The veteran was born on 1 June 1922. After attending junior technical school in Melbourne where he excelled at swimming, he won a scholarship to Footscray Accounting College. He commenced work as a clerk and at the age of eighteen he enlisted in the Royal Australian Navy (the navy). He served from 30 September 1940 until 4 January 1946 and this period is considered to be operational service for the purpose of s8 of the Veterans' Entitlements Act 1986 (the Act). In the navy the veteran trained as a signalman and spent time on SS Victoria, a pilot ship based in and around Victorian coastal waters. He also spent time on minesweepers, followed by fourteen months with the destroyer HMAS Quickmatch in the South-West Pacific. On discharge from the navy the veteran found employment as a cabinet-maker, a fencer and in a meatworks, and he became a trade union official. In 1973 he entered the Legislative Assembly of the Victorian Parliament as the Member for Sunshine, where he remained until his retirement in 1988. On 10 March 1999 the veteran lodged an application with the respondent for disability pension for incapacity from diverticulitis. On 12 March 1999 the respondent diagnosed the claimed condition as diverticular disease of the colon and refused the application on the grounds that the condition was not war-caused. On 9 October 2000 the VRB affirmed the decision of the respondent. On 5 December 2000 the veteran lodged an application with the Tribunal for review of the decision of the VRB. On 13 July 2001 the veteran died, and on 7 March 2002 the respondent approved the applicant's application to continue the claim. The veteran had the following accepted disabilities: left antritis, chronic bronchitis, sleep apnoea, and the following rejected disabilities: generalised anxiety disorder and ischaemic heart disease. A claim for hypertension is before the Federal Court of Australia. At the time of his application the veteran was receiving disability support pension at the rate of 80 per cent of the general rate. EVIDENCE The applicant gave oral evidence that she met the veteran in 1943 and they married in Sydney in June 1945. She said that he always seemed to have bowel problems, and was hospitalised after the war. She stated that in her recollection of conversations with the veteran he had described his navy diet as consisting of bully beef and tinned vegetables, as supplies of fresh fruit and vegetables were scarce. In a written report dated 13 February 2001 (Exhibit A1) Dr R. Marshall, general surgeon, stated that he examined the veteran on 13 February 2001. He stated that, while at sea, the veteran had subsisted almost entirely on solid tinned food and the diet was almost entirely deficient in fibre. Dr Marshall stated that on 27 September 1944 the veteran was taken to Williamstown Hospital after suffering diarrhoea, vomiting and abdominal pain which was diagnosed as gastroenteritis. He was discharged on 30 September 1944. He said that in 1957 the veteran had been referred to the Repatriation Hospital by his general practitioner (Dr Phillips) for investigation of morning nausea and vomiting which had lasted for some months. The symptoms were associated with abdominal pain in his left iliac fossa.

Evidence

Evidence Before The Court

The veteran had the following accepted disabilities: left antritis, chronic bronchitis, sleep apnoea, and the following rejected disabilities: generalised anxiety disorder and ischaemic heart disease. A claim for hypertension is before the Federal Court of Australia. At the time of his application the veteran was receiving disability support pension at the rate of 80 per cent of the general rate. EVIDENCE The applicant gave oral evidence that she met the veteran in 1943 and they married in Sydney in June 1945. She said that he always seemed to have bowel problems, and was hospitalised after the war. She stated that in her recollection of conversations with the veteran he had described his navy diet as consisting of bully beef and tinned vegetables, as supplies of fresh fruit and vegetables were scarce. In a written report dated 13 February 2001 (Exhibit A1) Dr R. Marshall, general surgeon, stated that he examined the veteran on 13 February 2001. He stated that, while at sea, the veteran had subsisted almost entirely on solid tinned food and the diet was almost entirely deficient in fibre. Dr Marshall stated that on 27 September 1944 the veteran was taken to Williamstown Hospital after suffering diarrhoea, vomiting and abdominal pain which was diagnosed as gastroenteritis. He was discharged on 30 September 1944. He said that in 1957 the veteran had been referred to the Repatriation Hospital by his general practitioner (Dr Phillips) for investigation of morning nausea and vomiting which had lasted for some months. The symptoms were associated with abdominal pain in his left iliac fossa. Dr Marshall also noted that Dr Phillips had treated the veteran for gastrointestinal disorders, which he (Dr Phillips) thought, were probably gastroenteritis but in retrospect regarded as having been caused by diverticulitis. Dr Marshall said that the veteran still has exactly the same sort of pain in the same place in his left iliac fossa which was diagnosed as diverticulitis in 1982, and the condition was confirmed in 2000 by colonoscopy. Dr Marshall noted:Given that the pain was the same as that which had troubled him in 1957, it seems reasonable to conclude that he was suffering from diverticular disease of the colon at least from 1957 onwards. In his report Dr Marshall noted that:…the diverticular disease once the process of herniation had begun would inevitably worsen gradually over the years and it is perfectly reasonable to imagine that symptoms would not appear even after three months but might well be delayed for some years. Dr Marshall concluded that the veteran did have diverticular disease of the colon, which developed as a result of his low-fibre diet in the service, and did not become symptomatic or obvious until ten years later and started to cause problems in 1957. Dr Marshall gave oral evidence and told the Tribunal that both reports show that the veteran had all the symptoms of diverticulitis in his youth, and that the condition worsened gradually. Dr Marshall explained that until the 1960s there was no realisation that a low-fibre diet was the cause of diverticulitis.

Decision

Reasons for decision

After considering all relevant material the Tribunal accepts that the veteran's rejected condition of ischaemic heart disease accounts for a significant component of cardio-respiratory incapacity, so the impairment rating for chronic bronchitis is 12 points (Table 19.2). The Tribunal finds that on the medical evidence the rating for sleep apnoea is 10 points (Table 16.3) and for left antritis 5 points (Table 7.2.2). In view of the Tribunal's decision not to accept diverticular disease of the colon as war-caused, the calculation of the combined impairment assessment using the combined values chart in Chapter 18 of GARP V is 12+10+5 which converts to 25 points, and the degree of incapacity would be 40 per cent. Nevertheless, the Tribunal accepts the submission on behalf of the respondent that the decision granting pension at 80 per cent of the general rate should remain. DECISION The Tribunal affirms the decision under review.I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for decision of G.D. Friedman(sgd): Olympia Sarrinikolaou ClerkDate of hearing: 2 September 2002 Date of decision: 2 October 2002Advocate for applicant: Mr D. De Marchi, Solicitor Solicitor for applicant: De Marchi & AssociatesAdvocate for respondent: Ms J. McCulloch, AdvocateSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In a written report titled Nutrient Analysis of Ration Scales - World War 2 dated July 1998 (Exhibit R2) Ms J. Lewis, consultant nutritionist, stated that in the Pacific Ration Scale the bread ration was 12 oz. per man per day, and an additional 1 oz. of wheatmeal was included in the Scale. She also noted that the diet for Pacific Ration Scale included meat (preserved and tinned), vegetables (dehydrated, fresh, dried and tinned) and tinned baked beans. CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. The parties submitted that the applicable SoP concerning diverticular disease of the colon was Nº 67 of 1994, which was amended by Nº 87 of 1997. Paragraph 1 of the applicable SoP states that among the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon or death from diverticular disease of the colon are:(a) suffering from scleroderma before the clinical onset of diverticular disease of the colon; or(b) changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; or(c) inability to obtain appropriate clinical management for diverticular disease of the colon. Under the third step from Deledio, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact. Mr De Marchi submitted that the hypothesis fits within the template and is reasonable. He said that the word reasonable should be given a broad meaning, and he relied on the report from Dr Marshall to support his contention that the applicant meets factor 1(b) of the SoP. He submitted that as Ms Lewis was not available for cross-examination, the Tribunal should not draw inferences from her report that would be adverse to the applicant, and he stated that there was no evidence that the rations described by Ms Lewis were available to the veteran at sea on operations.