Harper and Repatriation Commission (Veterans' entitlements)
[2021] AATA 2806
•10 August 2021
Harper and Repatriation Commission (Veterans' entitlements) [2021] AATA 2806 (10 August 2021)
Division:VETERANS’ APPEALS DIVISION
File Number: 2019/3017
Re:Gary Harper
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Member Ward & Member Ormston
Date:10 August 2021
Place:Adelaide
The decision under review is affirmed.
......................[Sgnd]............................
Member Ward
CATCHWORDS
VETERANS’ AFFAIRS – Reliability of evidence – contemporaneous documents – pre-existing use of tobacco – allegations of bullying – evidence as to use of tobacco for three years prior to diagnosis – 3 pack-years – inconsistencies in claim documentation – Intervening SOP – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act2004
Veterans Entitlements Act 1986
CASES
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Gorton [2001] FCA 1194
SECONDARY MATERIAL
Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 66 of 2013
Statement of Principles concerning Gastro-oesophageal Reflux Disease (Balance of Probabilities) No. 62 of 2021
REASONS FOR DECISION
Member Ward & Member Ormston
10 August 2021
The Applicant has a claim for compensation for a condition of gastro-oesophageal reflux disease (“GORD”). The Respondent has denied liability for the claim under the Veterans Entitlements Act 1986 (the “Act”).
The Applicant contends that the GORD was caused as a result of smoking, the amount of which was increased as a consequence of his service in the Royal Australian Air Force (RAAF).
The Respondent accepts that the Applicant’s RAAF service falls within the definition of ‘defence service’ for the purposes of s 68 of the Act, and that he meets the eligibility requirements for a pension under s 70 of the Act.
During the time that the claim was pursued by the Applicant, the appropriate Statement of Principles (“SOP”) pursuant to the Act and the Military Rehabilitation and Compensation Act 2004, was Gastro-Oesophageal Reflux Disease, No. 66 of 2013 (“SOP 66”). The claim has proceeded in accordance with that SOP. The hearing was conducted, and the parties addressed the Tribunal on the relevant facts in accordance with that SOP and the relevant law.
Whilst the Tribunal was considering its decision following addresses, the SOP was varied by a new SOP concerning Gastro-Oesophageal Reflux Disease (On the Balance of Probabilities) No. 62 of 2021 (“SOP 62”). It came into effect on 21 June 2021 after the hearing had finished but before the Tribunal had finalised its reasons. At the request of the Applicant, the matter was brought back on for further directions and argument in accordance with the appropriate SOP applicable to the matter on 15 July 2021. For the reasons set out below, it was considered that the new SOP no. 62 of 2021 was applicable to the primary dispute.
With regard to the claim, the reviewable decision rejecting the claim dated 31 January 2019 is affirmed. The reasons for this follow.
During further submissions, the parties agreed that where there had been an updated SOP during the course of a dispute, the process to be adopted was as follows:
7.1.The decision-maker was first to consider the matter against the in-force SOP, which in this case would be SOP 62;
7.2.If the Applicant’s claim was not upheld by reference to the existing SOP, the Applicant had an accrued right to have his claim considered under the SOP applicable at the time of the decision of the Repatriation Commission. In that case, it would be SOP 66.[1]
[1] Repatriation Commission v Gorton [2001] FCA 1194 at [34]-[44]; Knight v Repatriation Commission [2010] FCA 1134 at [16].
Background
The Applicant is currently 59 years of age. Upon leaving school, he took up an apprenticeship as a welder. His evidence was that he had started smoking in 1980. In his claim prepared for the Department of Veterans Affairs relating to his cigarette smoking dated 11 September 2001 (the “Claim Report”),[2] he states that he commenced smoking in January 1978. He filled out the claim himself and thought that the information he put on the form was correct at the time.[3]
[2] Exhibit 1, T14.
[3] Transcript of 16 December 2021 (“Transcript”), p 16 pt 34.
In his evidence, he said that date was wrong and that he commenced smoking in 1980.[4] If he did commence smoking in 1980, it was still before the commencement of his service in the RAAF from 25 November 1980 to 29 October 2002. There was a further period of service from 12 September 2007 to 13 January 2018.
[4] Transcript, p 13 pt 38.
The Applicant said that prior to joining the RAAF, he smoked socially on the weekend and would have 10 to 15 cigarettes in that social capacity. This was either from 1978 or 1980, but in any event prior to his service.
In his evidence, he said initially he would smoke on the weekend as a welder, but not during the week.[5] Within seconds of giving that evidence, he said that as a welder, he would smoke an average of 2 to 3 cigarettes per day.[6] Then he said “I wouldn’t be smoking every day”.[7] His oral evidence on this important point was unsatisfactory. Given that he was describing events that occurred (at this point) 41 to 43 years ago, the Tribunal was mindful to closely consider the contemporaneous information.
[5] Transcript, p 14 pt 34.
[6] Transcript, p 15 pt 2.
[7] Transcript, p 15 pt 9.
The Applicant was examined for the purpose of entry to the RAAF on 10 July 1980. There is evidence of the “Entry History Questionnaire – Air Force” (the “Questionnaire”) before the Tribunal[8] which is a series of information as to medical conditions and other matters, all being relevant to enlistment. One question asks, “Have you ever smoked tobacco regularly?”. The Applicant supplied an answer of “Yes” to that question. There is another section of the form which says, “Notes by medical officer on history”. With regards to the question about regular tobacco smoking, the notes refer to “8-10/diem”. The Tribunal accepts this as a medical note to indicate the Applicant was smoking 8-10 cigarettes per day at that time, this being 10 July 1980.
[8] Exhibit 1, T33, p 521.
The Applicant maintains in evidence in 2021 that was an error, and what he meant to tell the doctor is that he would smoke socially on the weekends.
In this regard, the Applicant’s evidence – as will be discussed further – suffers from a need to rely on him as an accurate witness. It is not in his current interest for the purpose of this claim to acknowledge a high (or relatively high) pre-enlistment use of cigarettes. It is in his interests to minimise his cigarette smoking prior to enlistment and to increase his cigarette smoking prior to the diagnosis of the GORD condition.
Thus, due to the clear reference in the medical note of 10 July 1980, and in others, the Applicant has had to distance himself from what appears to be a genuine business record made contemporaneously. The Tribunal accepts that the Questionnaire was filled out by the medical officer based on the information provided by the Applicant at that time. The Applicant would have indicated that he smoked tobacco regularly and the medical officer would have subsequently asked him questions about this in order to fill out the note.
Therefore, in this case, it is the finding of the Tribunal that the Applicant was a smoker with a regular habit prior to enlistment.
The Applicant was diagnosed with GORD by Dr Vincent Fernon, a Gastroenterologist, on 21 May 1997. On 2 June 1997, Dr Fernon performed an endoscopy and confirmed that finding. The Applicant made his claim to the Repatriation Commission for a disability pension for GORD on 30 November 2017.
As indicated, the Tribunal notes that the Respondent does not dispute the Applicant’s service in the period of 1980 to 2002 falls within the definition of “Defence service” pursuant to s 68 of the Act. He is eligible for a pension, provided the factual basis is made out.
The Respondent also accepts that the Applicant suffers from GORD.
For the purpose of these findings, the Tribunal considers the clinical onset of GORD as being 21 May 1997, when first diagnosed by Dr Fernon and later supported by the endoscopy. (There was a suggestion of some symptoms prior to May 1997, but the Tribunal does not accept an earlier period as relevant for these purposes. The Respondent thought a concession to that effect might have been made and that remains in dispute. But even if there was, the Tribunal does not accept an earlier start date. He had some symptoms, but a diagnosis had not been made until 1997.)
A SOP is applicable for GORD, being SOP 62.
Clause 9(3) of SOP 62 requires the Applicant to have smoked tobacco products in an amount of at least 3 pack-years before the clinical onset of GORD and commencing at least 5 years before the clinical onset of GORD. If he had ceased smoking before the clinical onset it must have occurred within one year of cessation.
“One pack-year” of cigarettes is defined by SOP 62[9] as 20 cigarettes (or equivalent amount of tobacco product) per day for a period of 1 calendar year.
[9] Schedule 1 – Dictionary.
The further issue in contention here is whether the GORD was causally (not just temporally) related to the Applicant’s Defence service.
Smoking History
Returning to the Claim Report of 11 September 2001, it states that when the Applicant starting smoking cigarettes on a regular basis (which was noted as January 1978) in response to the question of “cigarettes per day (regular or tailor-made)” the Applicant’s answer was 10-15. This is a higher figure than the figure for the pre-enlistment medical report, and is a much higher figure than that provided to the Tribunal which was 10-15 cigarettes socially on the weekends.
As further explanation of the smoking of 10-15 cigarettes per day, when asked “Why did you start to smoke cigarettes on a regular basis?” he answered, “Most employees in the workplace smoked and at that time it was an [acceptable] practice”. This again supports a finding of this being a habit at work, and not one in which he partook only (or substantially) on the weekends.
The Tribunal finds that the Applicant’s smoking was an entrenched habit of some significance (10-15 per day) prior to his enlistment.
The Tribunal specifically finds his reference to not being able to purchase cigarettes until after the age of 18 not convincing as an explanation as to why these two records many years ago of a more significant habit should be disregarded. The reference in a statement he prepared on 3 January 2020[10] that “because I was an assistant welder it was difficult to smoke so I generally didn’t smoke whilst I was working …” is irreconcilably inconsistent with his Claim Report 20 years earlier that “most employees in the workplace smoked and at that time it was an acceptable practice”.
[10] Exhibit 6.
The Applicant said that his RAAF training was exhausting and he found it difficult. He also gave evidence of bastardisation in the workplace in the course of his training, referring specifically to his course instructor, a corporal who did not give evidence before the Tribunal.
The Applicant gave evidence of meals he ate and difficulties he had with exercises. Leaving to one side bastardisation in the recruit phase, it would not appear that there was anything out of the ordinary with regards to the periods of service he described. There were periods of greater stress during exercises and particular jobs, but that is what one would expect in Defence service.
The Applicant’s evidence was that his smoking increased following his enlistment and coincided with those periods of stress or anxiety with training.
However, as noted above, it is not that he commenced smoking in response to the pressure of the bastardisation as he has described it. It was, however, submitted on his behalf that it led to an increase in usage as a coping mechanism. For the purpose of the claim, the Applicant has asserted that his smoking increased to a period where he was smoking 20 cigarettes or more per day.
As noted above, to be successful in the claim, the Applicant must demonstrate a use of 20 cigarettes (tobacco products) per day for 5 years prior to the clinical onset, which we have noted as May 1997, or, if the Applicant ceased smoking before the clinical onset, that this onset occurred within one year of cessation.
In the Applicant’s Claim Report of 11 September 2001, there are specific questions regarding the cessation of smoking. His answer was that there were three periods when he stopped smoking permanently.[11] However, when asked if he had ever stopped smoking permanently, the Applicant answered in the affirmative citing a period from 1994-1998, and from 1988-1991 and then a reference to 2001 with an arrow indicating this was the permanent cessation of smoking.
[11] Which answer does not quite make sense – there would only be the one period if it was permanent.
Then, the Applicant provided further information with regards to changing his smoking habit as follows:
| Date of change (Month and year) | New amount smoked (6 per day / ounces per week) | Reason for change |
| 1988-1991 | Nil | To stop smoking |
| 1994-1998 | Nil | To stop smoking |
| June 2001 | Nil | Stop smoking |
If that information is correct, then the Applicant cannot demonstrate the requisite cigarette use to satisfy the requirements of SOP 62 and this claim must fail.
The Applicant says that in this regard the document is inaccurate, even though he filled it out himself. He points to the fact that he filled it out on the day of the Twin Towers terrorist attack in New York City (11 September 2001). The Tribunal does not accept that event could cause such glaring historical inaccuracies in the document. This is not one error that occurred, but two. Firstly, with regard to periods when he stopped smoking permanently, as he turned his attention to that twice. Secondly, there is also the issue of the number of cigarettes smoked per day prior to enlistment. This information came from him - it was not filled out by someone else. There is no medical evidence to support an assertion that the Applicant was so traumatised by watching the Twin Tower attacks on television that he became unable to process information and make such errors that he now says appear on the form. Such might be the case for somebody with PTSD watching it, but there is no evidence of that here.
It is correct to say there is inaccurate information that appears before the Tribunal with regards to those assertions. For example, on 20 February 1996, he attended a RAAF Medical Centre and referred to the fact that he smoked 20 cigarettes a day. On 5 November 1996, he attended the Medical Centre advising that he smoked 15-20 cigarettes per day. That is in the middle of his asserted cessation from 1994 to 1998.
However, that is contrasted with a RAAF Employment Standard Review on 9 October 2000 which referred then to reflux symptoms beginning in 1995 and an endoscopy being performed in May 1997. It referred to him ceasing smoking in January 1997 and limiting his intake of coffee, carbonated drinks, and alcohol. It then referred to him having a relapse of smoking in October 1999 but that, of course, post-dates the diagnosis date of 21 May 1997.
His giving up smoking in January 1997 was also recorded by Dr Fernon in a report he wrote to the RAAF on 21 May 1997.[12] Again, it is the esoteric nature of that contemporaneous report in which the history was that “he gave up smoking in January and has gained 5-10 kilograms in weight since then”. However, under SOP 62 his being diagnosed within a year of cessation is a qualifying factor.
[12] Exhibit 1, T3, p 105.
The medical records, where they refer to the Applicant’s smoking, generally do not refer to this occurring in situations of stress. No psychiatric or psychological evidence was put before the Tribunal linking his increased or entrenched smoking to stress.
The difficulty of the Applicant’s evidence is the variation in it from that given to the Tribunal orally or in the statement, and the inconsistent statements made in earlier times. It is obvious that the contemporaneous medical reports do not confirm the history given in the claim form about giving up smoking in that period shortly prior to his diagnosis of GORD. In that regard, the data in the Claim Report of 11 September 2001 is inaccurate, but he put that information in, presumably for the purpose of supporting him in his claim for compensation as he perceived it at that time. He may well have rethought that by the time his claim was before the AAT.
Conclusion
In summary, therefore, the Applicant has the factual problem of having an entrenched smoking habit prior to his Defence service. Whilst there are stressful periods in his service, there is no specific medical evidence that that stress caused an expansion of his habit.
Finally, there is insufficient reliable evidence that he was smoking cigarettes at the rate as prescribed by the Statement of Principles to determine this issue in his favour.
On that matter of bullying, there was evidence of this occurring. There was an impassioned submission by the Applicant’s Counsel as to the inappropriateness of such conduct, with which, in general terms, the Tribunal agrees. The difficulty here was the lack of clear information linking those experiences and his tobacco use – but that of itself would not have overcome the other hurdles facing the Applicant’s claim.
Having determined that the Applicant would not be successful under SOP 62, the Tribunal considers his entitlement pursuant to SOP 66.
In the Tribunal’s opinion, SOP 66 presents a more difficult set of principles for a claimant in the Applicant’s position rather than the more recent SOP 62. In particular, clause 6(c) refers to “the smoking of at least three pack-years of cigarettes … immediately before the clinical onset of Gastro-Oesophageal Reflux Disease …”. That situation did not apply here because there was a gap of some months prior to the diagnosis on the evidence that we have found. That would not be such a problem for the Applicant under the current SOP 62.
However, looking at the entrenched habit prior to his Defence service and the lack of evidence that stress caused an increase in his habit, and also the unreliability of the evidence of smoking patterns prior to the onset, it is the Tribunal’s view that his claim would have been unsuccessful under the earlier SOP 66.
On these factual findings, the reviewable decision is affirmed.
| I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision herein of Member Ward & Member Ormston. |
......................[Sgnd]...........................
Legal Administrative Assistant
Dated: 10 August 2021
| Dates of hearing: | 16 December 2020, 21 May 2021 & 15 July 2021 |
| Advocate for the Applicant: | Gillian Walker, Murray Chambers |
| Advocate for the Respondent: | Andrew Wright, Boylan Lawyers |
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