Fursman and Repatriation Commission
[2004] AATA 509
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 509
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/769
VETERANS’ APPEALS DIVISION )
Re GEORGE FURSMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Member Date21 May 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)...........................
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – cerebrovascular accident – whether deemed disease arising from treatment of an accepted disability – whether disease can be deemed without reference to Statement of Principles
Veterans’ Entitlements Act 1986
Re Winter and Commonwealth (1989) 18 ALD 264
Kavanagh vCommonwealth (1960) 103 CLR 547
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v McKenna (1998) 28 AAR 7
Re Woodward and Repatriation Commission [2002] AATA 639
Woodward v Repatriation Commission (2003) 200 ALR 332REASONS FOR DECISION
21 May 2004 Ms M Carstairs, Member 1. This is an application by George Fursman (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB), affirming a decision made by a delegate of the Repatriation Commission (the respondent) rejecting a claim for cerebrovascular accident.
2. At the hearing the applicant was represented by Mr J Schulz, an advocate with the Returned Services League of Australia. Mr M Smith, an advocate with the Department of Veterans’ Affairs, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (numbered T1-T6) as well as exhibits marked A1 – A4 for the applicant and R1 – R2 for the respondent.
BACKGROUND
4. The applicant is aged eighty years. He served with the Australian Army from 18 June 1942 to 2 January 1947, including operational service as provided for under the Veterans’ Entitlements Act 1986 (the Act). He has the following conditions accepted as due to his war service: hyperkeratosis; osteoarthritis left knee; and non melanotic neoplasm of the skin of the left shin.
5. On 18 August 1997, the applicant underwent a total knee replacement. Postoperatively he suffered atrial fibrillation, considered at the time as being secondary to pulmonary embolism. In August 2002, the applicant had a malignant skin lesion removed from the left shin. The condition of non melanotic neoplasm of the left shin was later accepted by the respondent as due to war service, with effect from 28 December 2002. The skin graft did not heal well. In September 2002, he suffered a cerebrovascular accident (or stroke).
6. On 5 November 2002, the applicant lodged a claim for cerebrovascular accident. The claim was treated as a claim for cerebral ischaemia and a delegate of the respondent rejected the claim in a decision dated 10 December 2002. When the VRB affirmed that decision on 2 July 2003, the applicant then sought review with this Tribunal on 8 September 2003.
EVIDENCE
7. The hearing proceeded on the basis on the basis of documentary evidence, including medical reports, and submissions.
8. In a medical report dated 14 November 2002 in respect of cerebral ischaemia (T4,p6), Dr J English, general practitioner, stated that the applicant woke in the early hours of 22 September 2002 with a paralysed left arm. Dr English stated that the applicant suffered from hypertension as a prior condition, but it was well controlled with medication. In a medical report dated 13 January 2003 (T4, p20), Dr English said that the applicant’s hypertension was not a contributing factor to the cerebrovascular accident. She said that when admitted to hospital with the stroke, the applicant was in atrial fibrillation, which is a cardiac arrhythmia, and that this caused a clot to form in the heart which travelled to the brain. In a further report dated 28 May 2003 (T4, p29) Dr English said that the applicant had an episode of atrial fibrillation in 1997 when he underwent knee surgery, and a further episode in 2001 when he was hospitalised with a chest infection. Dr English stated that at the time of his cerebrovascular accident the applicant was under stress related to the treatment of a squamous cell carcinoma on his leg, and she considered that the stress and anxiety contributed to the occurrence of the stroke.
9. In a medical report dated 19 June 2003 (T4, p35), Dr P Grant, senior medical officer, concluded that the applicant’s clinical history was consistent with paroxysmal, rather than sustained, atrial fibrillation. He said that with paroxysmal atrial fibrillation each episode may be of unknown cause or of a different cause with each episode. He noted that neither stress nor surgery to the skin was listed in the factors identified under the Statement of Principles (”SoP”) for atrial fibrillation as raising a relationship with war service.
10. In a medical report dated 7 March 2003 (T4, p28), Mr A Keays, orthopaedic surgeon, stated that after knee replacement surgery in 1997 the applicant suffered a pulmonary embolism which required treatment with anticoagulants administered by Dr J Hope. In an undated report (exhibit A4), Dr J Hope, consultant physician, stated that atrial fibrillation was a unexpected adverse result of the applicant’s knee surgery in 1997.
CONSIDERATION OF THE ISSUES
11. Mr Schulz said that the applicant’s case did not rely on either the SoP determined by the Repatriation Medical Authority for cerebrovascular accident or that for atrial fibrillation. Mr Schulz acknowledged that the stroke was not itself war caused, and he said that none of the factors in the SoP for cerebrovascular accident (Instrument No 52 of 1999) were met. He submitted, however that SoP’s were not designed to deal with the issue that arose in this case, that is an indirect connection between an injury and war service.
12. Mr Schulz submitted that the basis of the applicant’s claim was that s13 of the Act provides liability the Commonwealth to be liable where a veteran has become incapacitated from a war-caused injury or a war caused disease. He said as s5D(2) of the Act provides that incapacity is a reference to the effects of the injury or disease and not a reference to the injury or disease itself. He submitted that cerebrovascular accident, an unintended consequence of the treatment of the applicant’s war caused disability in relation to his knee, should be seen as an effect of a disease or injury.
13. Mr Schulz submitted that s9(2) applied to the applicant’s case. That subsection provides:
“For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
…
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.”
14. He said that s9(2) of the Act allows for the disease of cerebrovascular accident to be deemed as war caused without the need to apply SoP’s which would have to be applied if the relationship which the applicant was relying on was a direct one rather than the indirect one of disease arising from treatment of an accepted disaility. He submitted that because s9(2) was a deeming provision, decision makers were empowered to make determinations under that sub-section, without reference to SoPs. He said that although s196B(14)(g) used terms similar to those in s9(2), the RMA may have chosen not to determine a relationship of the kind posited in s9(2).
15. Mr Schulz submitted that the medical evidence was clear that the stroke in 2002 could be a delayed result of the atrial fibrillation that first occurred in the treatment of the knee condition in 1997. He noted that in other jurisdictions the Commonwealth has been held to be liable for the unintended consequences of treatment: Kavanagh vCommonwealth (1960) 103 CLR 547; Re Winter and the Commonwealth (1989) 18 ALD 264. He also referred to s119(g) of the Act.
16. Mr Smith submitted that the structure of the Act requires that the applicant make a claim under ss13 and 14. These sections appear in Part II of the Act, the claim being one in relation to incapacity from war-caused injury or war caused disease. He said that the respondent is required to consider all matters relevant to the claim and whether the applicant “is entitled to be granted a pension in respect of… incapacity… from war-caused injury or war-caused disease…”: s19(3). He submitted that as s120 of the Act refers to claims made under Part II of the Act, and the standard of proof provisions must be applied in deciding all claims. Since 1994, he said, SoPs must be applied when considering any connections between injury or disease suffered by a person and the person’s service.
17. Mr Smith conceded that the applicant’s cerebrovascular accident resulted from an embolus which in turn had resulted from an episode of atrial fibrillation. He did not dispute that the first episode of atrial fibrillation had occurred shortly after surgery for an accepted disability. However he said that the atrial fibrillation and cerebral embolus were only temporally connected, and there was no connection with the applicant’s war service. He submitted that for that connection to be established under the Act, is was necessary to satisfy the SoPs for cerebrovascular accident or atrial fibrillation and that the Federal Court decision in Repatriation Commission v McKenna (1998) 28 AAR 7 required that each medical condition relied upon must satisfy the SoP formulated in regard to it. He said that the evidence in the applicant’s case pointed to an hypothesis consistent with factor 5k(v) in the SoP for cerebrovascular accident, Instrument No 52 of 1999, which provides:
“evidence of a potential source of cerebral embolus at the time of the clinical onset of cerebrovascular accident”
18. However he said that atrial fibrillation (a potential source of cerebral embolus) was not connected to war service as none of the risk factors in the SoPs which might be applied (Instrument No 19 of 2003 and Instrument No 9 of 1996 for atrial fibrillation) were pointed to by the evidence. In particular he noted the risk factor of undergoing cardiac or thoracic surgery within the 30 days immediately before the clinical onset of atrial fibrillation but said that the applicant’s surgery to his legs did not fit with this risk factor.
19. Mr Smith submitted that for eligibility under the Act the connection must always be made with service. He submitted that it was a matter for the Repatriation Medical Authority applying s196B(2) to determine the connections that would be recognised under SoPs.
20. Section 120 of the Act provides as follows:
“(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
21. Section 120A of the Act provides:
“(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 operational service rendered by a veteran…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11);”
22. Section 196B(3) sets out the functions of the Repatriation Medical Authority including the determination of SoPs and minimum factors that must exist and be related to service before it can be said that a reasonable hypothesis has been raised connecting an injury, or disease the circumstances of operational service. Section 196B provides for the factors that may be related to service and includes at s196B(14)(f) a factor causing or contributing to a disease if it would not have occurred but for the rendering of service by the person.
23. Matters similar to those raised by the applicant here have been dealt with by the Tribunal in earlier decisions. In Re Woodward and Repatriation Commission [2002] AATA 639, the Tribunal dealt with an argument that s120A of the Act did not apply to matters arising under s9(1)(a) of the act which required only a temporal connection. The Tribunal found that the combined effect of ss9, 13 and 120A of the Act was that for claims after 1994, the SoPs provide those hypotheses which can be reasonable within the meaning of s120 of the Act, and noted that this interpretation was reinforced by the use of the word only in s120A(3). The approach taken by the Tribunal was confirmed in Woodward v Repatriation Commission (2003) 200 ALR 332 where the Court said all claims under s8 or s9 are to be determined by applying the standard of proof in s120(1).
24. The Federal court said:
“Once s 120(3) operates, the process of determining the claim is drawn inexorably into the sphere of s 120A. The notes to ss 120(1), 120(3), and 120A(1) make this clear. The notes to ss 120(1) and 120(3) state that the provisions to which they are appended are ‘affected’ by s 120A. Similarly, note ‘1’ to s 120A(1) is linked, albeit in different terms, to ss 120(1) and 120(3). Section 5U(b) provides that a note is part of any sub-section by which it is immediately preceded. It follows that if there is an SoP in force which is relevant to the claim, the requirements of that SoP must be met.”
25. As s120(1) operates since 1994 subject to s120A it follows that it applies also to deeming provision in s9(2). The matter commences with a claim under Part II to establish one of the relationships provided for in s9 including that provided for in s9(2). The language of s9(2) requires the Commission to consider questions of causation as the section refers to incapacity ‘due to’ disease that would not have been contracted, but for war service. The Tribunal accepts the submission of the respondent that what is sought in this claim is to have the cerebrovascular accident attributed to service under s13 and such claims under Part II require that s120 and s120A be applied. The Tribunal rejects the applicant’s submission that s9(2) being a deeming provision, allows a decision to be made under that section without recourse to the standard of proof provisions.
26. One of the factors on which the Repatriation Medical Authority may determine that there is sound medical-scientific evidence indicating that an injury may be related to operational service is that in s196B(f):
“…in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service;”
The provision in s196B(14)(f) mirrors the language in s9(2). This confirms that it is the intention that the deeming provision in s9(2) will, after 1994, be dealt with through the determination of SoPs providing for standards of proof which must be applied to all claims.
27. The applicant’s claim relies on medical evidence that the first instance of atrial fibrillation occurred in treatment of his accepted knee condition. He again had an episode shortly after treatment of the non-melanotic lesion on his left shin. The Tribunal notes that the non-melanotic lesion on his left shin was not accepted as due to war service until December 2002, after the applicant suffered the stroke, and the applicant did not seek to rely on the treatment of the non-melanotic lesion, except to the extent that it formed part of a series of episodes of atrial fibrillation after the first occurrence when the knee surgery was undertaken. For all claims under Part II of the Act a reasonable hypothesis must be raised as provided for in s120 and s120A. Where a matter concerns a series of sub-hypotheses that in turn rely upon medical conditions, it is a requirement that the sub-hypotheses comply with any applicable SoP’s: McKenna.
28. The Tribunal accepts the submission of the respondent that the SoP for cerebrovascular accident and the SoP for atrial fibrillation must be applied in the claim. The only factor raised by the evidence was factor 5(k)(v) of the SoP for cerebral ischaemia which provides in the following terms: “evidence of a potential source of cerebral embolus at the time of the clinical onset of cerebrovascular accident”. The SoP defines as one potential source, arrhythmia including intermittent atrial fibrillation. Both parties agreed that the evidence did not point to any of the factors in the SoP for atrial fibrillation (Instrument No 19 of 2003). The Tribunal accepts those submissions and thus the applicant’s claim must fail as any hypothesis must contain one of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist: Deledio v Repatriation Commission (1997) 47 ALD 261.
29. The Tribunal did not accept Mr Schulz’s submission that the Act makes provision for injury or disease that may arise in the treatment of an accepted war caused condition except within the setting of claims under Part II requiring the applicant of the provisions for standard of proof as set out above. Decisions made under workers’ compensation legislation cases do not assist the applicant.
DECISION
30. The Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Hearing 3 March 2004 (at Maroochydore)
Date of Decision 21 May 2004
For the Applicant Mr J Schulz, Advocate
For the Respondent Mr M Smith, Departmental Advocate
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