Green and Repatriation Commission - [2001] AATA 576

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…

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 Green and Repatriation Commission

Details

AGLC: Green and Repatriation Commission [2001] AATA 576
Case: [2001] AATA 576
Decision Date: 22 June 2001

CaseChat Overview and Summary

The matter of Green and Repatriation Commission was heard by the Tribunal on 30 March 2001, with Mr Paul Jones representing the Applicant and Mr Peter Godwin from the DVA representing the Respondent. The Applicant, born on 19 April 1923, served in the Army from 2 March 1942 until 23 July 1946, during which time he rendered operational service. After his discharge, he worked in various roles including as a storeman, packer, and truck driver. The Applicant claimed that his bronchial asthma, which began manifesting in the years following his military service, was caused by his operational service.

The legal issues before the court centered on whether the Applicant's bronchial asthma was a war-caused disability under the Veterans' Entitlements Act 1986 and, if so, whether it satisfied the criteria outlined in the relevant Statement of Principles concerning Asthma. The central question was whether there was a reasonable hypothesis that linked the Applicant's asthma to his service, particularly considering the 40-year gap between the onset of symptoms and the formal diagnosis. The Tribunal also needed to determine the appropriate standard of proof required in establishing the diagnosis and causation.

The Tribunal found in favor of the Applicant, determining that there was a reasonable hypothesis that the Applicant's asthma was linked to his operational service, particularly considering the evidence provided by Dr. P Gianoutsos, who suggested that the Applicant's irritable airways likely predated his formal diagnosis by several decades. The Tribunal disagreed with Professor Breslin's view that such a long gap between symptom onset and diagnosis precluded a causal link. The Tribunal concluded that the Applicant's asthma was a war-caused disability and remitted the matter to the Respondent to reassess the Applicant's pension rate to account for his asthma. The effective date of this decision was set as 22 September 1997.

Orders

Orders of the court

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Background

Background to the litigation

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 documents The 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 evidence In 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." 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:

Evidence

Evidence Before The Court

The 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 evidence In 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." 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: 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.

Decision

Reasons for decision

The Tribunal has found in favour of the Applicant in this application.Decision The 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.

Ratio Decidendi

Legal Principle Established

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