Green and Repatriation Commission
[2001] AATA 576
•22 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 576
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1123
VETERANS' APPEALS DIVISION )
Re LANCE DAVID GREEN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Sassella, Senior Member, Dr P D Lynch, Member
Date22 June 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and substitutes the decision that:
The Applicant's disability, asthma, is a war caused disability.
The matter is remitted to the Respondent so that the appropriate rate of pension can be assessed taking the Applicant's disability of asthma into account.
The date of effect of this decision is 22 September 1997.
………………………………….
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – war caused disability – bronchial asthma – operational service in New Guinea - exposure to an occupational antigen within 24 hours before the clinical onset of asthma – reasonable hypothesis linking asthma to operational service – occupational antigens – whether condition satisfies the relevant Statement of Principles – standard of proof in matters of diagnosis
Veterans' Entitlements Act 1986, ss 6A(1) Item 1(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 21, 120(1), (3), (4), 120A(1), (3)
Statement of Principles concerning Asthma, no 59 of 1996
Statement of Principles concerning Asthma, no 75 of 1997
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
Repatriation Commission v Gosewinckel [1999] FCA 1273
Re Fountain and Repatriation Commission (AAT 12733, 20 March 1998)
Repatriation Commission v Smith (1987) 12 ALD 798
REASONS FOR DECISION
22 June 2001 M J Sassella, Senior Member Dr P D Lynch, Member
History of the Application
Lance David Green ("the Applicant") was granted a Disability Pension with effect from 26 April 1991 payable at 30% of the general rate (T documents, folio 14A). The pension was granted also in respect of solar skin damage, irritable bowel syndrome, sensori-neural deafness and haemorrhoids. Claims for bronchial asthma and musculoskeletal chest wall pain were rejected.
On 3 August 1993 the Applicant lodged an application with the Repatriation Commission ("the Respondent") seeking that the conditions of post traumatic stress disorder ("PTSD")/anxiety state and asthma be accepted as war or defence caused disabilities (T4, folios 15-22).
On 14 March 1994 the Respondent accepted anxiety disorder with alcohol dependence as a war caused disability and the Applicant's Disability Pension was increased to 90% of the general rate. The Applicant had contended that his bronchial asthma had been aggravated by his anxiety disorder, however bronchial asthma was rejected by the Respondent as being a war caused disability. It was found that this condition was caused by an unknown allergy (T5, folios 23-25).
On 22 December 1997 the Applicant lodged another application with the Respondent in respect of his non-accepted condition of asthma seeking to have it accepted as a war caused disability. He stated in the application that this condition was a direct cause of his emotional stress in the service (T7, folios 27-35).
On 2 January 1998 the Respondent refused the Applicant's claim in respect of his asthma (T8).
On 11 September 1998 the Applicant appealed to the Veterans' Review Board ("the VRB") against the decision in T8 (T9).
On 13 June 2000 the VRB decided to affirm the decision under review (T10) and the Applicant was sent a letter of notification dated 22 June 2000 (T11).
On 21 July 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review.
Relevant legislationThe legislation relevant to Mr Green's application is from the Veterans' Entitlements Act 1986. The provisions are ss 6A(1) Item 1(a), 9(1)(a), 13(1)(b), (d), 15(1), (3), (4), 21, 120(1), (3), (4), 120A(1), (3):
"6A Operational service - world wars
(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
1(a) A member of the defence force on continuous full-time service outside Australia during a war to which this Act applies.
…""9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…""13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…""15 Application for increase in pension
(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
…(3) An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.
…""21 Date of operation of grant of application under section 15
(1) The Commission may, subject to this Act, approve payment of pension at the increased rate, or payment of pension, from and including the date on which the application, in accordance with a form approved for the purposes of paragraph 15 (3) (a) was received at an office of the Department in Australia.
(2) Where:
(a) a person makes an application in writing of a kind referred to in subsection 15 (1) or (2), but otherwise than in accordance with a form approved for the purposes of paragraph 15 (3) (a);
(b) the person subsequently makes an application of a kind so referred to in accordance with a form so approved:(i) at a time when the person had not been notified by the Department, in writing, that it would be necessary to make the application in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) an increased pension, or a pension, is granted to the person upon consideration of that application in accordance with a form so approved;
the Commission may, subject to this Act, approve payment of the increased pension, or of the pension, from and including the date on which the application referred to in paragraph (a) was received at an office of the Department in Australia.(3) Nothing in this section empowers the Commission to approve payment of an increased pension, or a pension, to a person from a date before the person became eligible to be granted the increased pension, or the pension, as the case may be."
"120 Standard of proof
(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.
Note: This subsection is affected by section 120A.(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q (1A).
Note 2: This subsection is affected by section 120A.(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.
Note: This subsection is affected by section 120A.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…""120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).…
(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); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
Statement of Principles concerning Asthma, no 59 of 1996
"…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting asthma or death from asthma with the circumstances of a person's relevant service are:
(a) for the first episode of asthma only, being exposed to occupational antigens within the 24 hours immediately before the clinical onset of asthma; or
(b) being exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma; or
(c) inability to obtain appropriate clinical management for asthma.
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"occupational antigens" means a range of specific inhaled substances defined as present in the workplace, which after prolonged exposure precipitate the new onset of asthma. The particular gas, dust or vapour sensitises the airways. Continued exposure causes reversible airway narrowing and the development of nonspecific bronchial hyperreactivity. Examples of recognised sensitising agents are included in the table below;
POTENTIAL HAZARD PERSONS AT RISK SENSITISING AGENT
Laboratory animals, birds, insects, other animal products lab workers, animal handlers, vets, pigeon breeders, entomologists, crab, fish, prawn processors rats, mice, rabbits, guinea pigs, pigeons, chickens, budgerigars, grain mites, moths and butterflies, crustacean and other proteins
…
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service."
Statement of Principles concerning Asthma, no 75 of 1997
"The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.59 of 1996, (Statement of Principles concerning asthma), by:
1. omitting the definition of "asthma" in paragraph (b) of clause 2 and replacing it with the following:
"(b) For the purposes of this Statement of Principles 'asthma' means a disease characterised by an increased responsiveness of the trachea and bronchi to various stimuli and is manifested by a widespread narrowing of the airways that changes in severity, either spontaneously or as a result of therapy, attracting ICD code 493.
Key features of asthma include the reversibility of obstruction and the increased responsiveness of the airways. The airflow obstruction may be completely or only partially reversible. The increased responsiveness means that bronchoconstriction may be triggered by a variety of stimuli which may have little or no effect on normal airways.".
2. omitting the definition of "ICD code" in paragraph 7 and replacing it with the following:
"'ICD code' means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;".
3. The amendments made by this instrument apply to all matters to which Instrument No.59 of 1996 and section 120A of the Act apply."
Documentary evidence
The following documentary evidence was before the Tribunal:
Exhibit TD1 – Section 37 Statement and T documents submitted by the DVA, 21 August 2000.
Exhibit A1 – Applicant's statement of facts and contentions, 22 March 2001.
Exhibit R1 – Report by Associate Professor A B X Breslin, thoracic physician, 14 November 2000.
Exhibit R2 – Clinical notes provided by Dr N W Cornish.
Exhibit R3 – Respondent's statement of facts and contentions, 27 March 2001.
Hearing and appearances
The Tribunal convened a hearing in this matter on 30 March 2001. Mr Paul Jones of counsel represented the Applicant. Mr Peter Godwin from the DVA represented the Respondent.
Personal background material from documentsThe Applicant was born on 19 April 1923. He served in the Army from 2 March 1942 until 23 July 1946 rendering operational service (T10). Before joining the Army he worked as a storeman and packer (T3) and on a dairy farm and later in a cheese factory (Exhibit R1). After discharge he returned to Coffs Harbour where he worked on a banana plantation. He bought a banana plantation some time later and worked that until 1964. Between 1964 and 1968 he was a cleaner in the Coffs Harbour Court House. From 1968 until the end of 1983 he worked for the Coffs Harbour Shire Council as a general worker and truck driver (T9, folio 43).
Medical evidenceIn this survey of the available medical evidence the concentration is on comments on the Applicant's asthma, the condition in issue in the instant application.
Dr J C Wenman wrote to the Department of Veterans' Affairs ("DVA") on 8 January 1992 (T3, folio 14I). He states that the Applicant has suffered from bronchial asthma for "the last 3 years". He "has been breathless with exertion over the last 7 years particularly worse in the last 3 years with associated wheezing and cough. He coughs occasional sputum, has no history of haemoptysis and obtains relief with the use of Ventolin".
Dr C Platt wrote on 30 July 1993 (T4, folio 21) that he has quite severe asthma requiring admissions to hospital and for which he has medications. She wrote, "I have no idea why he has it but certainly stress can be a trigger".
Dr R Delaforce, a psychiatrist, wrote on 22 September 1993 (T4, folio 22A) but has nothing to contribute about Mr Green's asthma.
In T5, a determination by a delegate of the Respondent, dated 14 March 1994, the following appears about bronchial asthma:
"Medical opinion is that neither the circumstances of the veteran's eligible service nor the factors contended in support of the claim cause or constitute a risk factor in the development of bronchial asthma.
"A departmental medical officer has commented that he agreed with the previous medical opinion in which it was reported that bronchial asthma is a functional disability which had been triggered by an unknown allergy."
The Applicant in his claim form (T7) said in relation to asthma,
"Due to the emotional stress of my service and continues as a direct result of my accepted disabilityes [sic]. My coughing in service was a concern to me in service and continued after Army doctors told [me] that if I quit smoking my problems would go away – they didn't."
He placed the date of onset as 1945. His doctor in the same document, Dr Cornish, placed it as October 1994. The Respondent in the primary decision in this matter (T1) rejected the asthma claim by saying, "In your claim you have contended that asthma was caused by stress and smoking caused by your war service. The Repatriation Medical Authority Statement of Principles does not allow for the contentions that stress and smoking cause asthma. I am therefore unable to accept asthma as being war caused on the basis of your contention."
In T3 at folio 14C in a determination dated 18 March 1992 the Respondent's delegate says that he has examined all the available material and he found nothing in the veteran's service documents to indicate that he suffered from bronchial asthma at any time during his service.
On 8 September 1998 Dr P Gianoutsos, a respiratory specialist, wrote a report (T9). In that report he makes the following relevant points:
The Applicant first began to smoke in 1943 in New Guinea. He smoked 30 to 40 cigarettes a day, and possibly went as high as 50 a day.
The Applicant says a cough developed while he was on operational service in New Guinea. The cough was persistent. He therefore stopped smoking in 1948.
The Applicant had 10 pack years of smoking.
The cough continued after he gave up smoking. He produces from time to time clear to yellow sputum but no haemoptysis. Wheeze occurs in association with the cough and at the extremes of effort.
There was no family or childhood history of asthma or bronchitis.
It was 1984 or thereabouts that Dr M Ridley of Coffs Harbour suggested that Mr Green probably had an asthmatic tendency.
His effort capacity walking on the flat is about 200 metres. He pulls up quickly walking up rises or stairs. He becomes breathless quickly if hurrying and carrying parcels.
The Applicant has had five or six hospital admissions with asthma.
The Applicant has a dog. Skin tests have demonstrated positive reactions to grasses, cockroach mix, eggs, fish, peanuts, penicillin mix, rye, grass, dog dander, house dust, ragweed mix and wood dust mix. He is an atopic subject.
On examination his ventilatory function test showed an FEV1/FVC of 2.00/3.25, improving to 2.50/3.85 after bronchodilator.
The diagnosis is bronchial asthma with a clinical history consistent with chronic bronchitis characterised by cough and the daily production of sputum. His symptoms began as a cough during New Guinea operational service. There was no history of earlier symptoms or of a family history of asthma. The fact that his asthma commenced in New Guinea suggests that the initiating factor, of necessity, must have been in his environment in New Guinea. The initiating factor cannot be identified. There could be a variety of factors. A wide variety of agents affect the Applicant. "[I]t is possible that any, or all [of the allergens] may have been the initiating factor or factors." A cough may be the first manifestation of an asthmatic tendency without tightness in the chest or wheezing. In Mr Green's case the cough was the first manifestation of asthma but it was not diagnosed until 1984.
The FEV1 results are characteristic of bronchial asthma.
Mr Green developed asthma in New Guinea. The initiating factor is unknown but it occurred in New Guinea beyond a reasonable doubt.
Dr Gianoutsos gave oral evidence before the Tribunal. He was asked about Professor Breslin's view that there could not be a gap of 40 years between the onset of a cough and the date of the diagnosis of asthma with the result that the two phenomena are linked. Professor Breslin saw the cough as distinct from the later onset asthma. Dr Gianoutsos disagreed with Professor Breslin. Dr Gianoutsos said that it was in the realms of probability rather than possibility that Mr Green's irritable airways were present at least back until 1943 and certainly became manifest as asthma when Dr Ridley diagnosed asthma formally in 1984.
Dr Gianoutsos agrees with Professor Breslin that a person with asthma can show up as aspirin sensitive some time later.
In cross-examination Dr Gianoutsos agreed with Professor Breslin that rhinitis and a postnasal drip causing infection could be a diagnosis of Mr Green's condition, rather than asthma. Dr Gianoutsos seems not to have asked the Applicant about rhinitis and a running nose when he saw him. However, Dr Gianoutsos considered that a constant postnasal drip for 40 years would be most unusual.
Dr Gianoutsos gave evidence that experts had come to connect coughing with the onset of asthma quite recently.
Dr Gianoutsos considered that more likely than not it was the house dust mite that was the major allergenic factor in Mr Green's case.
Dr Gianoutsos answered questions from Tribunal Member Dr Lynch. He agreed that the rhinitis symptoms, like the cough, could exist for 40 years and not be noticeably problematic every day.
Dr Gianoutsos referred to the thatched roof housing in New Guinea as a likely source of asthmatic irritants. He conceded that it is unclear how closely the Applicant came into contact with the thatched roof. It is also an open question what allergen(s) might have existed in the thatched roofs.
Dr Gianoutsos confirmed his agreement with Professor Breslin that the Applicant has aspirin induced asthma. Dr Gianoutsos disagreed with Professor Breslin as to how long a person might be asthmatic before evidencing aspirin induced asthma. Professor Breslin cited a maximum period of two years. Dr Gianoutsos referred to cases where persons who had suffered from asthma since childhood suddenly developed aspirin induced asthma.
Dr Gianoutsos conceded that it was strange that the Applicant's cough remained the only asthma symptom for so long after the Applicant returned to Australia, and that the cough stayed at about the same level, despite the apparent presence of more allergens in Australia. Dr Gianoutsos said that he nevertheless felt that he could ascribe no other reasonable cause to Mr Green's cough.
Dr Gianoutsos also explained to the Tribunal that it was not all that curious that Mr Green may have been asthmatic but not suffer attacks when doing strenuous work. He said that not all asthmatics are prone to exercise induced asthma.
The VRB noted (T10) that in a submission on behalf of the Applicant it was said that he slept in New Guinea in huts with roofs of coconut fronds that shed a white dust. There were rats, mice, birds, pigs, moths, butterflies and tobacco leaves in the vicinity. However the VRB held that the necessary SoP requirements were not met. There has to be exposure to an occupational antigen within 24 hours before the clinical onset of asthma (factor 5(a)). There is no certainty that such exposure occurred here. There is no evidence of any asthma affecting Mr Green during service.
Associate Professor A B X Breslin, thoracic physician, wrote a report on 14 November 2000 (Exhibit R1). He noted that the Applicant had experienced dyspnoea for 16 years. It is worsening and becoming perennial. It began unexpectedly and was not associated with a respiratory infection. He has had seven hospital admissions because of dyspnoea. The last was in 1998. The first was in 1996. He now has nocturnal dyspnoea twice a week. His effort tolerance is limited to one flight of stairs slowly. His dyspnoea is precipitated by air-conditioning, smoke, exertion, pollens and aspirin.
On examination he was coughing without distress or dyspnoea, clubbing or lymphadenopathy. There were respiratory wheezes and some rhonci throughout the lung fields but no crepitations. Spirometry showed definite airflow limitation with borderline acute bronchdilator response.
Professor Breslin noted that on discharge from the Army there was no chronic respiratory disease noted and his chest was clear. There was no mention of respiratory disease on admission to the Army in December 1941.
Professor Breslin found that the Applicant had aspirin sensitive asthma with a classical triad of nasal polyps, asthma and aspirin sensitivity. The Applicant has had nasal polyps removed in the past. He has asthma and that is triggered by aspirin. "These facts demonstrate conclusively that he has aspirin sensitive asthma." Professor Breslin said there is no evidence that stress, the cause cited by the Applicant, triggers the asthmatic state, although it may bring on an attack in a person with asthma. "Accordingly, there is no reasonable hypothesis that this mans [sic] stress of service caused his asthma." He went on to say as regards New Guinea, "Asthma is actually quite uncommon in New Guinea … I do not believe that there is any evidence that the environmental conditions in New Guinea could have contributed to asthma in this man as in fact environmental conditions in New Guinea are such as to be associated with a lower incidence of asthma than generally occurs. This suggests that either the environment or the genetic make-up of the inhabitants of New Guinea make asthma unlikely or it may be a combination of both."
Professor Breslin said that there is no evidence that Mr Green developed asthma on service. His asthma, shortness of breath, wheeze and triggers associated with his asthma did not develop until the 1980s, some 40 years after service. He may have had a cough for 40 years as a manifestation of asthma, but the shortness of breath developed 40 years later. However he concludes, "I do not believe that it is possible to assume that his cough persisted for 40 years and that the shortness of breath manifestation of his asthma developed only in the 1980s. In any event this discussion is irrelevant because he actually has aspirin sensitive asthma."
The Applicant's aspirin sensitive asthma is "absolutely classical and develops in later adult life …" "The polyps usually pre-date the existence of the asthma, as was the case in this man. The aspirin sensitivity is due to an idiosyncrasy and not to any environmental exposure; even if he had been given aspirin during his Service this would not produce aspirin sensitive asthma. In other words exposure to aspirin prior to the development of the asthma does not cause the asthma. It is not fully understood why aspirin sensitive asthma comes on later in life but … it does."
Professor Breslin sums up saying,
"Thus, there is no evidence that this man had asthma on Service, but very strong evidence that he developed asthma related to aspirin sensitivity in the 1980s. The cough that he had from Service onwards may well have related to his rhinitis with or without some contribution from smoking, but it was not due to asthma as his asthma is aspirin sensitive, would not have developed when he was in his teens and twenties but characteristically developed in later adult life. The fact I believe that he has aspirin sensitive asthma is very good evidence against his having asthma on Service manifested only by cough and strong evidence that his asthma developed well after Service. … the cough is now much worse because of his asthma. His asthma developed for the first time in the 1980's and is aspirin sensitive asthma. … I do not believe his smoking made any contribution to the development of his asthma as he smoked for such a short time."
The SoP was not satisfied. The asthma was not related to war service in any way. If the asthma were an accepted disability it would attract an impairment rating of 30.
Professor Breslin gave oral evidence at the hearing. He said that about 70% of asthma sufferers develop the disease in childhood. A person is allergic. The airways become inflamed. This triggers an attack.
About 30% of sufferers develop asthma as adults. 5% have it triggered by aspirin or aspirin-like agents. Aspirin is the trigger, not the cause. As he said in his report, there is a triad of rhinitis and nasal polyps, asthma and aspirin sensitivity. Dr Breslin has those attending him complete a questionnaire asking about these matters, amongst others. He asks such questions as whether they snore, whether they have a nasal itch, whether they have an obstruction or runny nose. Professor Breslin said that the Applicant's history identified aspirin as a definite trigger of asthma attacks. He had rhinitis also. He had had rhinitis as a life long condition. The asthma attacks began in about 1985. He reiterated that the aspirin generated the attacks. They were not caused by the asthma itself. Aspirin sensitive asthma is the more troublesome variety.
Professor Breslin understood that the Applicant's cough began with his cigarette smoking and lingered on after he stopped smoking. This cough was not a manifestation of asthma. The coughing was caused by rhinitis and postnasal discharge. Smoking would have made a small, temporary contribution to the coughing. No wheezing or shortness of breath was recorded until the mid-1980s. In 1985 he suddenly had severe asthma that was sensitive to aspirin. This was the onset of the Applicant's asthma.
Professor Breslin referred to "cough variant asthma", a mild form of asthma. While such a form of asthma exists, it would be most unusual to have only cough related asthma for 40 years before experiencing a sudden worsening.
Professor Breslin did not find convincing the theory that asthma had been brought on by something in the New Guinea environment.
Mr Jones, for the Applicant, asked Professor Breslin about his assumption that the Applicant had life long rhinitis. The professor said this was what the Applicant told him. The Tribunal notes that the Applicant disagreed in oral evidence that his rhinitis had been a life long condition.
Professor Breslin did not agree that the Applicant's rhinitis could have worsened during the war. He said the rhinitis was mild. The developing of a cough during the war could suggest a worsening of the rhinitis symptoms. The development of nasal polyps would also worsen the rhinitis condition.
Professor Breslin agreed that the Applicant could have had asthma symptoms before the onset of the aspirin sensitivity, but not earlier than when the nasal polyps developed.
There is no record of the Applicant taking aspirin in the 1990s. Professor Breslin pointed out that aspirin occurs in other commodities, eg tomatoes and "quick-eze" lozenges.
Professor Breslin knew that the Applicant was atopic. He agreed that atopic people are prone to develop asthma. He was aware of the Applicant's description of his living conditions in New Guinea (paragraph 31).
Professor Breslin is unaware of any published data on Australian servicemen in New Guinea in World War II and their asthma experience.
As regards the Applicant, Professor Breslin stressed that for 40 years he never sought help for asthma. The Applicant did strenuous work and there was no evidence that short breath interfered with his work for a very long time. The Applicant could have developed asthma, taken aspirin, and found the asthma worsened. Late onset asthma is usually triggered by an infection. The Applicant's rhinitis did not trigger the asthma. It was symptomatic of an allergic condition in the Applicant.
Tribunal Member Dr Lynch asked whether the Applicant's asthma would have developed earlier than Professor Breslin has accepted, given that the Applicant is atopic. Professor Breslin responded in the negative. Early development of asthma in an atopic person does not always occur. The effects of allergens on the skin can differ from the effects on the airways. He also reiterated that it is not uncommon for aspirin sensitive asthma to be present before the first adverse exposure to aspirin. It is very uncommon for aspirin sensitive asthma to have been caused by aspirin.
Exhibit R2 is Dr Cornish's clinical notes. These include a report dated 27 March 1998 by Dr K J Havill, thoracic physician. He writes that Mr Green was diagnosed with asthma type symptoms 12 – 13 years ago [ie 1985-1986]. Dr Havill noted a background history of nasal polyposis with surgery on two occasions. He has postnasal drip symptoms on occasions. "There is a family history of asthma with his younger brother having this problem but his children are free of symptoms." In a later report on 3 April 1998 Dr Havill mentioned that Mr Green's aspirin therapy could be contributing to his problem. He had stopped that therapy to see what might happen. However, there are no further reports from Dr Havill in the bundle of notes from Dr Cornish.
Applicant's evidenceThe Applicant gave oral evidence before the Tribunal. The following fresh information emerged from his evidence.
His health was good before he joined the Army. He could not recall ever seeing a doctor before his enlistment in 1942. His health remained good in the Army. He trained for 12 months in signals and gunnery work. He was sent to New Guinea in 1943. He spent 14 months at Milne Bay observing Japanese shipping from an observation post. He was housed in a "native building" utilising bedding made up of poles and chaff bags. The hut had no flooring and it had coconut palm leaf roofing. The walls were made of similar material. There was a gap at the base of each wall. Rats were about at night and there were dogs and pigs nearby.
The Applicant began to smoke en route to Milne Bay. He had 20 to 30 cigarettes a day from that time and while at Milne Bay. His health remained good except for a cough with some production of sputum which he had all of his time at Milne Bay. He began coughing from the time of his first cigarette. The cough grew no worse. He was told he had smoker's cough by medical orderlies at Milne Bay. They gave him cough mixture and returned him to work.
The Applicant returned to Brisbane in mid-1944 and coughed all the way back. He was given work at the Liverpool transport unit and delivered goods around Sydney, with a persistent cough. He continued smoking 20-30 cigarettes a day.
He was discharged on 3 July 1946. He had the cough at this time but it is not mentioned in his discharge papers (T2, folio 5). The examining doctor (folio 6) ticked off the Applicant's chest as not abnormal. Mr Green said in evidence that, like others, he minimised his health problems so as to ensure he could leave the Army promptly.
After discharge he worked as detailed earlier in these reasons but he had a period in a timber mill not recorded in the T documents. His cough remained at all times. He gave up smoking in 1948. He gave up his banana plantation after experiencing a cyclone. He saw no doctor about the persistent cough. In about 1985 his general practitioner, Dr Ridley, heard the cough and detected he had a wheeze. The Applicant said that the wheeze had started earlier. Dr Ridley thought Mr Green had asthma and prescribed that he use a puffer. The Applicant could not suggest what caused the wheezing. The puffer did not improve his symptoms. He was then put on ½ an aspirin daily and his symptoms deteriorated. He "coughed up rubbish" in about 1986.
As a result of a slight heart attack in 1998 Mr Green was prescribed aspirin. His asthma again worsened. The asthma improved when he again stopped the aspirin.
The Applicant confirmed that he had been operated on twice, six months between operations, for nasal polyps. This was in about 1994. The first operation was unsuccessful. The second was therefore necessary. The Applicant had asthma quite some time prior to the operations on the polyps.
The Applicant confirmed that his brother had been asthmatic but he had grown out of it.
The Applicant said that he had rhinitis only from his time in the Army. Professor Breslin had said he had a life long history of rhinitis.
Mr Godwin cross-examined the Applicant. As part of the cross-examination process the following emerged:
In the 1991 Disability Pension claim form (T3, folios 14M-14O) the Applicant places the onset of the coughing as "about 1948". The Applicant responded that this date is incorrect. It began earlier.
Mr Godwin referred to the four doctors listed as the Applicant's doctors between 1946 and 1950. The Applicant could not recall why he had seen these four doctors. Each had been for a minor condition.
Mr Godwin took Mr Green to T4, the 1993 pension claim form. In that document the Application says that he was first aware of the asthma in 1983.
Mr Green told Tribunal Member, Dr Lynch, that the cough changed over the years. He had a spasm cough on trying the first cigarette. In New Guinea he began to wake himself up coughing at night. He began to produce sputum from only the early 1960s.
In final submissions Mr Jones presented the Applicant's case as follows. There is no doubt that Mr Green suffers from asthma. He satisfies the diagnostic criteria. Addressing the four step process for reasonable hypothesis cases such as this, and as laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 (full Federal Court), there is a hypothesis connecting the disease with the circumstances of service. The Applicant developed a cough during service that eventually manifested itself as asthma. There is no requirement on Mr Green to identify the particular allergen in New Guinea.
There is a SoP in existence, SoP 59 of 1996. The Applicant satisfies factor 5(a) of the SoP. He was exposed to an occupational antigen, albeit an unknown occupational antigen, within 24 hours immediately before the clinical onset of asthma.
The Tribunal should not find itself satisfied beyond reasonable doubt that the Applicant fails with respect to the requirements, or any of the requirements, in the SoP.
Respondent's submissions
Mr Godwin submitted that the Applicant has difficulty surviving the requirements of SoP 59 of 1996. While his condition satisfies the diagnostic criteria for asthma under the SoP, he has problems with paragraph 5 of the SoP. All of the factors in paragraph 5 are based on the Applicant having developed asthma before or during service or within 24 hours of ceasing service. He quoted from the definition of "asthma" in SoP 75 of 1997,
"… 'asthma' means a disease characterised by an increased responsiveness of the trachea and bronchi to various stimuli and is manifested by a widespread narrowing of the airways that changes in severity, either spontaneously or as a result of therapy…".
The key words are, "changes in severity" and the evidence is that Mr Green's condition was relatively constant. There is no history of episodes of distress or of even worsened symptoms. He describes a simple cough persisting for some 40 years before asthma is diagnosed. That asthma, then, seems to be attributable to aspirin sensitivity. It is very difficult to diagnose asthma prior to the mid-1980s.
Mr Godwin referred the Tribunal to Re Robertson and Repatriation Commission (AAT 12666, 2 March 1998) where, at paragraph 23, the Tribunal says that,
"there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time."
In the present case Professor Breslin and Dr Gianoutsos differ in their opinion as to when the disease had its clinical onset. Dr Gianoutsos says the disease came on during operational service. Professor Breslin says it emerged in the 1980s.
Mr Godwin then referred to Repatriation Commission v Gosewinckel [1999] FCA 1273 where, in paragraph 36, Weinberg J said,
"The Full Court concluded that the history of the legislation indicated that the reasonable hypothesis standard had been introduced in 1986 when the VE Act was enacted solely for the purpose of determining whether an injury, disease or death was war-caused. All other matters, including questions of diagnosis, were to be dealt with by the reasonable satisfaction standard in s 120(4)."
In the present case, then, the Tribunal must reach a state of reasonable satisfaction that Mr Green can be diagnosed as suffering from asthma during his period of service.
Mr Godwin referred also to Re Fountain and Repatriation Commission (AAT 12733, 20 March 1998) where the Tribunal said in paragraph 39,
"… we again confirm our earlier conclusions that we are not satisfied as a fact that the applicant did suffer from asthma in New Guinea – would need to occur under factor 5(b) 'within the 24 hours immediately before the clinical worsening of asthma'. This is to say the applicant would need to establish that he suffered from non-antigenic stimuli of emotional stress or exercise within 24 hours immediately before the clinical worsening of asthma. There is no evidence of this. There is indeed no evidence of when there was any clinical worsening of asthma - even if asthma did exist. Put another way we are not satisfied from the paucity of evidence heard that the applicant could in any event satisfy the definition of 'clinical worsening of asthma'".
In the present case, then, the question of whether Mr Green had asthma at the relevant time in New Guinea has to be answered to the level of the Tribunal's reasonable satisfaction.
The proposition that Mr Green had asthma in New Guinea is not consistent with symptoms of only a cough. Even Dr Gianoutsos said that it would be rare for a person to have 40 years of a cough with nothing else. Mr Green was not treated by any doctor for asthma before 1984. The Applicant had no problems with his occupation, with banana growing, with working on the roads, with dogs, with poultry.
Mr Godwin suggested that, as Mr Green had seen doctors between 1946 and 1984, it was likely that he had taken aspirin, however labelled, some time during that period. Aspirin sensitivity, according to Professor Breslin and Dr Gianoutsos, is the Applicant's major problem now with his asthma.
Findings on material questions of fact with reference to the evidence and other material in support of the findingsThe Tribunal finds that the Applicant rendered operational service in the Army from 2 March 1942 until 23 July 1946 (T10).
The Tribunal finds that the Applicant lodged a valid claim for an increase in his Disability Pension in respect of the non-accepted disability of asthma on 22 December 1997 (T7, Folios 27-35).
The Tribunal finds that the date of effect of any decision that the condition of asthma is accepted as war caused would be 22 September 1997 (s 20(1) of the Act).
The Tribunal finds that, if Mr Green was suffering from asthma before or while engaged on operational service, the question as to whether that disability was war caused is to be decided according to the reasonable hypothesis test in s 120(1) and (3) of the Act.
The Tribunal finds that SoP 59 of 1996, as amended by SoP 75 of 1997, both concerning asthma, are applicable under s 120A of the Act.
The first of these matters in respect of which findings have been made that remain open for decision by the Tribunal is the diagnosis of the Applicant's condition. The case for the Applicant that he does indeed suffer from asthma. The Tribunal finds that this is the case. That is the diagnosis favoured by Associate Professor Breslin and Dr Gianoutsos. The Respondent's statement of facts and contentions assumes it (Exhibit R3).
The Tribunal does not accept the Respondent's proposition that the question to be resolved on the balance of probabilities is the diagnosis of this condition as at the time of the Applicant's operational service. Weinberg J in the Gosewinckel decision (supra) speaks of the diagnosis being a matter for decision at the level of reasonable satisfaction where the dispute between the parties was as to the appropriate diagnosis at the time of the decision by the Repatriation Commission effective as of 1995 (see paragraph 12 of the decision). One specialist considered that the veteran suffered from an anxiety disorder. The other disagreed. That is not the position in the instant case where it is common ground that the Applicant has asthma. The Tribunal in this instance has chosen not to apply the earlier tribunal decision in Fountain (supra) because it is not convinced that Fountain (supra) was correctly decided.
Applying the Deledio (supra) principles, the Tribunal finds as follows as regards whether the asthma condition is war caused. First, there is a hypothesis linking the disability with operational service. This is not clearly expressed in the Applicant's statement of facts and contentions (Exhibit A1). The Respondent in Exhibit R3 describes it as "his asthma developed as a persistent cough during operational service in New Guinea, and was first diagnosed as asthma about 1985. He has been found to be atopic, with sensitivity to a number of agents, which may include aspirin." The Tribunal would add that the hypothesis is that the cough during operational service was asthmatic.
There is a relevant SoP in force as the Tribunal has already found.
The hypothesis must match the template in the SoP if step 3 of the Deledio (supra) analysis is to be satisfied. The matters in the template are:
The Applicant must suffer from asthma as defined in paragraph 2(b) of SoP 59 of 1996 as amended by SoP 75 of 1997.
For the first episode of asthma only, the veteran must have been exposed to occupational antigens within 24 hours immediately before the clinical onset of asthma.
If 2 is not applicable, the veteran must have been exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma.
If neither 2 nor 3 is applicable, the veteran must have been unable to obtain appropriate clinical management for asthma.
If any of 2, 3 or 4 applies, the factor must be related to the veteran's operational service.
The first of the template elements is reflected in the Applicant's hypothesis – the Applicant says he suffers from asthma and the Tribunal has found that it agrees with this.
The second element is exposure to occupational antigens within the described time frame. This is the element that Mr Jones pressed on the Tribunal in final submissions on the Applicant's behalf.
There is no need for the third or fourth elements to be assessed if the second element fits the template, as is the case here.
The fifth element in the template is replicated in the hypothesis. The exposure to the occupational antigen was as a part of the Applicant's operational service.
The third step in Deledio (supra) is therefore satisfied.
The fourth step in Deledio (supra) requires that the Tribunal must consider under s 120(1) of the Act whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war caused injury. The Applicant will succeed unless the Tribunal is so satisfied.
Mr Godwin's arguments on behalf of the Respondent become crucial to this consideration. His arguments are:
The Applicant was able to do strenuous work until he retired in 1983 (T9, folio 43). This did not seem to bring on asthma symptoms.
The Applicant lived around dogs and poultry with no apparent asthmatic difficulties (T9).
Dr Gianoutsos and Professor Breslin differ as to the correct date of clinical onset of Mr Green's asthma. Professor Breslin sees it as about 1984 (Exhibit R1). Dr Gianoutsos sees it as during operational service (T9).
The Tribunal would add:
The Applicant may not have been exposed to occupational antigens.
Even if the Applicant was exposed the exposure may not have been within the relevant time frame.
Do these problems with the Applicant's ability to satisfy the SoP cause the Tribunal to find beyond a reasonable doubt that the Applicant cannot satisfy the elements in the SoP template?
The Applicant's ability to do strenuous work without generating asthma symptoms was dealt with effectively by Dr Gianoutsos in his oral evidence which the Tribunal accepts. He said, "… not all asthmatics necessarily get exercise induction of asthma. There are some asthmatics who will get it as part and parcel, as you no doubt know, with other precipitating factors. Some will just get exercise induced asthma and at no other time get asthma." (Transcript of Dr Gianoutsos's evidence, page 13) This issue was not addressed by Professor Breslin.
The Applicant's ability to live around dogs and poultry without any complaint that they caused him asthmatic effects may be curious if, as Dr Gianoutsos says (T9), his asthma is atopic. There was a wide range of allergens to which Mr Green had shown a reaction in skin sensitivity testing. The Respondent took this toleration of animals as evidence that his asthma is aspirin induced. Dr Gianoutsos addressed this in his oral evidence. He was asked, "It was noted in evidence that Mr Green at one time had a dog and he also had chooks and he noted that the removal of those things or his separation from those things didn't seem to make any difference." Dr Gianoutsos answered, "Yes, dogs and chooks – chooks are not usually a cause of asthma. Dog hair or danda may be. House dust mite sensitivity occurs in about one third of the population of Australia, particularly those living on the Eastern Sea Board of Australia. So that is a very potentially potent cause of asthma and it's more likely than not that it would be house dust mite which would be the major allergenic factor in this gentleman." (Transcript of Dr Gianoutsos's evidence, page 6)
The Tribunal is prepared to accept Dr Gianoutsos's evidence on this point. Professor Breslin was quite dogmatic that Mr Green has only aspirin induced asthma and that its onset was in the mid-1980s. This was really the only theory he addressed, albeit with supporting argumentation. While that is of some value it is not sufficient to convince the Tribunal beyond a reasonable doubt that Dr Gianoutsos's views should be discounted. Professor Breslin would have needed to address Dr Gianoutsos's views more directly to bring about such a result.
Dr Gianoutsos sees the clinical onset of Mr Green's asthma as during the Applicant's operational service, although in T9 he is vague as to exactly when. In oral evidence Dr Gianoutsos said, "… I still think it is the realms of probability rather than possibility that this man's irritable airways were present at least back until 1943 and certainly became manifest as asthma in 1984 when Dr Ridley diagnosed, formally diagnosed asthma" (transcript of Dr Gianoutsos's evidence, pages 2-3). Later he says that a patient may have asthma for a long time before aspirin sensitive becomes manifest (transcript of Dr Gianoutsos's evidence, page 3). Professor Breslin (paragraph 51 of these reasons) states that the effects of allergens on skin, as compared to the airways, can differ.
This answer by Dr Gianoutsos may cause difficulty for Mr Green. He speaks only of the onset of "irritable airways" in 1943. It is unclear whether that meets the definition of "asthma" in SoP 75 of 1997. On balance the Tribunal considers that it does when considered with his written report at T9. The Tribunal notes that there was evidence that the Applicant first coughed while at sea en route to New Guinea, when he took his first cigarette. The Tribunal considers that the better view of this event is that it was likely to be a natural reaction in any person who is having his or her first cigarette. It is less significant than the continued coughing.
The Tribunal has to consider whether it is satisfied beyond a reasonable doubt that Mr Green was not exposed to occupational antigens. "Occupational antigens" are defined in SoP 59 of 1996 in paragraph 7. The definition refers to:
"… a range of specific inhaled substances defined as present in the workplace, which after prolonged exposure precipitate the new onset of asthma. The particular gas, dust or vapour sensitises the airways. Continued exposure causes reversible airway narrowing and the development of nonspecific bronchial hyperreactivity. Examples of recognised sensitising agents are included in [a] table …"
The Tribunal notes that whilst Dr Breslin was dogmatic, he did admit that the knowledge of how the trigger changes an atopic person to an asthmatic is poorly understood. Therefore the Tribunal could not be reasonably satisfied that the chronic cough the Applicant developed on operational service was not linked to his later onset of asthma.
It is difficult to accommodate the Applicant within the table provided. It will be recalled that he was on an observation post watching Japanese shipping and that he slept in a native built hut while in New Guinea. His evidence was that, while in the hut, he was exposed to animal life such as rats. The SoP table refers to "lab workers, animal handlers, vets, pigeon breeders [etc]" for whom potential hazards are "laboratory animals, birds, insects, other animal products" and the sensitising agents are "rats, mice, rabbits, guinea pigs, pigeons, chickens, budgerigars, grain mites, [etc]". The Tribunal considers that an analogy exists between workers in this class in the table and Mr Green. Further, the Applicant referred to rats and pigs as in the vicinity of his accommodation in New Guinea. Dr Gianoutsos considered that house dust mites are most likely an irritation to the Applicant's asthma. The SoP refers to grain mites. Noting that the table provides only examples, the Tribunal considers that Mr Green's situation is sufficiently close to that described in the SoP for him to be extended the benefit of any doubt in this instance.
The Tribunal finds that the occupational antigens were constantly present in New Guinea. It can therefore find that there is no reason for it to doubt that the Applicant was exposed within 24 hours before the clinical onset of his asthma.
The Tribunal considers that the Applicant's exposure to the occupational antigens was related to his operational service. The exposure was integral to the accommodation provided to him by the Army while he was on operational service.
ConclusionThe Tribunal has found in favour of the Applicant in this application.
DecisionThe Tribunal sets aside the decision under review and substitutes the decision that:
The Applicant's disability, asthma, is a war caused disability.
The matter is remitted to the Respondent so that the appropriate rate of pension can be assessed taking the Applicant's disability of asthma into account.
The date of effect of this decision is 22 September 1997.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed: .....................................................................................
AssociateDate of Hearing 29 May 2001
Date of Decision 22 June 2001
Solicitor for the Applicant Mr JonesAdvocate for the Respondent Mr Godwin