Halech and Repatriation Commission
[2000] AATA 882
•6 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 882
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/954
VETERANS' APPEALS DIVISION )
Re IVAN HALECH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member Dr JB Morley, Member Captain ET Keane, Member
Date6 October 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether disease defence-caused – motor neurone disease – causation not a factor under relevant SOP – inability to obtain appropriate clinical management – failure to diagnose
Veterans' Entitlements Act 1986 s 70
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
6 October 2000 Deputy President DP Breen, Presidential Member Dr JB Morley, Member Captain ET Keane, Member
This was an appeal against a decision of the Repatriation Commission dated 7 January 1999 which determined that the condition of motor neurone disease suffered by the applicant, Ivan Halech, was not defence-caused within the meaning of Section 70 of the Veterans' Entitlements Act 1986. The Veterans' Review Board affirmed this decision on 12 July 1999.
This matter commenced on 23 May 2000 and was heard by Dr KP Kennedy and myself at Sunnybank Hospital for the purpose of taking the applicant's evidence. The Tribunal was reconstituted for the rest of the hearing to include myself as Presiding Member sitting with Dr JB Morley and Captain ET Keane. The hearing proceeded in Brisbane on 6 July 2000 and then again on 6 October 2000 for final submissions. At the final day of the hearing the Tribunal was informed that Mr Halech had passed away on 16 September 2000.
The applicant was represented by Mr R Sprake of the RSL Welfare and Advocacy Service and then by Mr P Johns of Messrs Gilshenan and Luton. The respondent was represented by Mr J Stoner, Departmental Advocate.
Oral evidence was taken from the applicant, Dr Peter McCullagh and Dr Carolyn de Wytt. The following documents were taken into evidence.
Exhibit 1 "T" Documents
Exhibit 2 Report of Dr P McCullagh dated 17.3.00 and attachment
Exhibit 3 Report of Dr C de Wytt dated 21.6.00
Exhibit 4 Article by Miller RG et al from Neurology, January 2000, Volume 54(1) at pages 53-57
Exhibit 5 Transcript of Veterans' Review Board hearing on 12.7.99
Exhibit 6 Article by DB Calne et al from The Lancet, November 8 1986
Exhibit 7 Diagram drawn by Dr de Wytt
The applicant has eligible defence service in the Air Force from 7 December 1972 to 16 April 1989. The Tribunal, when considering the evidence, must be reasonably satisfied that on the balance of probabilities the disability is caused by eligible defence service.
Section 70 of the Veterans' Entitlements Act 1986 provides as follows:
"(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act."
For a condition to be accepted as defence-caused, it must satisfy the applicable Statement of Principles. In line with the Full Federal Court decision of Repatriation Commission v Keeley [2000] FCA 532, the Statement of Principles in force at the time of the initial decision is the one to be applied.
With respect to Mr Halech's claim for motor neurone disease, the applicable Statement of Principles is Instrument No 246 of 1995. This provides that the only manner in which motor neurone disease can be service-related is through an inability to obtain appropriate clinical management, where the disease was contracted before a period, or part of a period, of service.
Mr Halech was diagnosed with motor neurone disease in late 1996. He claims that he contracted this disease due to chemical poisoning, electric shock and exposure to heavy metals during his service. A significant quantity of academic material was placed before the Tribunal which suggested that heavy metals and chemicals may have a causative relationship with motor neurone disease. While this may be the case, it is not recognised in the applicable Statement of Principles and so it is not open to the Tribunal to find that the disease is service-related on this basis. Given that motor neurone disease is the subject of extensive and on-going research, it would be prudent for the Repatriation Medical Authority to keep a close eye on developments in this area to ensure that their Statement of Principles reflect the most current medical opinion so that veterans are not unnecessarily held out from entitlements.
Although Mr Halech was not finally diagnosed with motor neurone disease until 1996, he gave evidence of a number of incidents of muscle weakness before that time.
In 1985 the applicant noticed a niggling pain in his right shoulder which would last for a few days at a time and would recur on an infrequent and random basis. This continued until around 1995. Some time between 1987 and 1988 the applicant was landscaping his garden and while carrying a log his right arm lost all sensation and function for, at most, two minutes. He spoke to his doctor about this but since the arm had regained feeling and movement there were no means of examining the problem.
Towards the end of 1988 the applicant and his 70 year old father-in-law repainted the kitchen ceiling. The applicant could not keep up with his father-in-law and had difficulty holding the paintbrush up to the ceiling. He had to use his left hand to hold his right hand up.
From 1992, the applicant gave evidence that his right arm was continuously in pain and weak. By 1994 the gripping power of his hand was reduced, even at a low height. In 1995 the applicant's wife began to notice that the muscles on his right arm were wasting away. The applicant was referred to a neurologist and after almost a year of testing a diagnosis of motor neurone disease was confirmed.
Three clinical features must be present before the diagnosis of motor neurone disease can be made. The are:
Progression of the disease.
Clinical or electrophysiological involvement, or both, of both upper motor neurones and lower motor neurones in each of two regions at a minimum or in a total of three or four regions.
No other disease process which could lead to the motor neurone changes.
It was the opinion of Dr C de Wytt, Neurophysician that:
"The disease first became symptomatic around 1994 and has progressed steadily since then. The symptoms of right arm weakness and sensory loss experienced by Mr Halech during the period 1985-1988 were not related to ALS (a form of motor neurone disease), and on the balance of probability were due to cervical disc degeneration and/or cervical radiculopathy."
Dr P McCullagh, Senior Fellow, Molecular Medicine, John Curtain School of Medical Research, was of the alternative view. He believed that the events of the 1980s were early signs of the disease and that the appropriate clinical management would have been to remove Mr Halech from contact with occupational solvents. Had such occurred, he postulates that it would have been less likely that full-blown motor neurone disease would have developed or that the onset would have been delayed.
With respect to Dr McCullagh, the earlier comments in his report and the comments of Dr de Wytt contradict his conclusion. The evidence presented to the Tribunal was that once motor neurones were damaged or destroyed they did not regenerate. As such, if the weakness and pain in Mr Halech's arm were the result of neurone damage it would have been an ongoing symptom rather than one which resolved and flared up intermittently. In addition, from Dr de Wytt's evidence, the component of pain suffered by Mr Halech would not have been due to a disease of motor neurones as pain is only transmitted by sensory neurones. Further, during the 1980s there was no evidence of muscle wasting or abnormal neurological findings and the weakness was limited to one region. On the medical evidence which existed at the time, it is the Tribunal's view that no diagnosis of motor neurone disease could have been made and it is unlikely, with the symptoms presented, that any doctor would have investigated the possibility that the applicant had this disease.
It is the Tribunal's finding that at the earliest, Mr Halech contracted motor neurone disease between 1992 and 1994 when there was a continual weakness and loss of function in his arm. This was after he was discharged from the Air Force. Therefore, the Statement of Principles cannot be satisfied as there can be no question of an inability to obtain appropriate clinical management, if at the time there was no disease to manage. As the Statement of Principles is not satisfied, the disease cannot be regarded as service-related or defence-caused.
Although this is a very unfortunate result, given the current state of medical knowledge and the law, the Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Dr JB Morley, Member and Captain ET Keane, Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 23.5.00, 6.7.00,6.10.00
Date of Decision 6.10.00Solicitor for the Applicant 23.5.00 - Mr R Sprake, RSL Welfare and Advocacy Service
6.10.00 – Mr P Johns, Messrs Gilshenan and Luton
Counsel for the Respondent Mr J Stoner, Departmental Advocate
0