Hodgson and Repatriation Commission - [2000] AATA 216

DECISION AND REASONS FOR DECISION [2000] AATA 216

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/47

VETERANS APPEALS DIVISION )

Re HAROLD HODGSON
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member
Dr C. Re, Member Mr I. Campbell, Member

Date15 March 2000
PlaceMelbourne

Decision The decision under review is affirmed.

........Sgd. Mr J. Handley..........
Senior Member
CATCHWORDS
Veterans Affairs – Whether connection between service and alcohol consumption – whether applicant suffered from psycoactive substance abuse or dependence – Tribunal concerned with evidence of medico legal witness and damage to veterans reputation - Decision affirmed.
Statement of Principle 83 of 1995 (1b)
Statement of Principle 140 of 1996
Keeley v Repatriation Commission 2000, 30 AAR 48
Repatriation Commission v Deledio 1998 49 ALD 193

REASONS FOR DECISION

15 March 2000 Mr J. Handley, Senior Member
Dr C. Re, Member Mr I. Campbell, Member

The applicant applies to review a decision of the Veterans Review Board made on 2 December 1998 which affirmed a decision previously made by the respondent on 14 March 1997 to reject an application for ischaemic heart disease and hypertension as war-caused.
The applicant has a number of injuries which have been accepted as war-caused. Immediately prior to the hearing of the application the respondent conceded an entitlement for General Rate Pension at 100%.
The only issue in dispute in these proceedings was whether the conditions of ischaemic heart disease and hypertension were war-caused.
By reason of the application having been made upon the respondent after 1 April 1994, the applicant is obliged to satisfy Statements of Principles issued by the Repatriation Medical Authority. In Keeley v Repatriation Commission 2000 30 AAR 48, Heerey J, decided that the applicable Statement of Principle is that which existed at the time the primary decision was made. Whilst that decision is presently awaiting appeal before a Full Court of the Federal Court, it remains the present law. Accordingly the relevant Statements of Principle for the purpose of these proceedings is number 83 of 1995 with respect to hypertension and number 140 of 1996 with respect to ischaemic heart disease.
At the commencement of the hearing Ms Black appeared on behalf of Mr Hodgson and Mr Herman appeared on behalf of the respondent. At the conclusion of the applicant's evidence and prior to the hearing resuming to hear evidence from Dr Gelb, Mr DeMarchi appeared at the Tribunal, announced an appearance on behalf of Mr Hodgson and made application to recall Mr Hodgson. This was approximately 2 hours after the hearing commenced. Mr DeMarchi said that he had been detained in the County Court and that a Barrister who had been briefed to appear in the County Court had returned the brief. He also said that the applicant's memory had been "jogged" by the events he recalled whilst giving his evidence earlier. He also said that it was common practice for Senior Counsel (in this case Mr DeMarchi) to appear with Junior Counsel (in this case Ms Black) and that Senior Counsel direct Junior Counsel to conduct any examination in chief and cross-examination. He persisted with his application to recall Mr Hodgson despite it having been conceded by Ms Black at the conclusion of the applicant's evidence that Mr Hodgson was unable to satisfy the relevant Statements of Principles (refer below). Mr DeMarchi was also unable to explain why he had not sought from Mr Hodgson a proof of evidence with respect to the issues that he said would emerge upon the applicant being recalled.
Despite the respondent obviously not being put on notice as to these proposed issues (and therefore not having had an opportunity to prepare to meet the case which would be advanced on behalf of the applicant) we decided that the proposed evidence should be heard but with the usual liberty being extended to the respondent in the event of issues emerging which necessitated investigation.
We were very troubled by the manner in which the application was advanced by Mr Hodgson's legal representatives and the apparent absence of any adequate or competent pre-hearing preparation. We were also concerned that Mr Hodgson was portrayed by his representatives as a person who consumed alcohol to excess so that it might be demonstrated that he could satisfy the Statements of Principles. We regarded this conduct as being most unfair to Mr Hodgson. It is our view that he should not ever have been placed in the position that he was on. With adequate pre-hearing preparation and competent advice it should have been clear that these proceedings should never have commenced.
We will return to this aspect later.
Statements of Principles
Ms Black notified us that the applicant proposed to rely on factor 1(b) of Instrument No. 83 of 1995 with respect to hypertension which records-
"suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension".
The expression "psychoactive substance abuse or dependence" is defined as follows-
"Psychoactive substance abuse or dependence means a maladaptive pattern of use, as derived from D S M – iv, attracting ICD code 303 or 304 that is indicated by either
a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance, or
b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)".

(We again make the observation as we have in previous applications that the words "or dependence" do not appear in factor 1(b). We are at a loss to understand why those words appear beside the words "psychoactive substance abuse" in what purports to be a definition).

Ms Black notified us that factor 5(a) of Instrument No. 140 of 1996 with respect to ischaemic heart disease was relied upon. That factor records-
"the presence of hypertension before the clinical onset of ischaemic heart disease ….."

Mr Herman agreed that the above Statements of Principles were applicable at the date of the primary claim.
The parties agreed that the applicant could not satisfy factor 1(a) of the ischaemic heart disease instrument without having satisfied Instrument No. 83 of 1995 with respect to hypertension. That is to say unless the applicant could demonstrate that a reasonable hypothesis existed connecting hypertension with the circumstances of his service within factor 1(b) of Instrument No. 83 of 1995, he would be unable to satisfy factor 5(a) of the ischaemic heart disease Instrument because he would not be able to demonstrate "the presence of hypertension".
Ms Black also confirmed prior to the commencement of the hearing that the applicant's case was confined to satisfying the above factors only. Despite a reference in some of the pre-hearing documents that the applicant would challenge the factors which refer to 'the inability to obtain appropriate clinical management for hypertension', those contentions were abandoned.
Harold Thomas Hodgson
Mr Hodgson is presently 84 years of age having been born on 26 September 1915. He was a member of the Australian Air Force and served in New Guinea, New Britain and Moratai in World War II. He did not consume alcohol prior to service but commenced drinking beer in service by reason of its availability. He said during service he was subjected to "lots of bombing". He served in a unit which was attached to a United States Air Force Unit. He told us that he served in Biak as a member of a small contingent where he was under constant threat from the Japanese bombing. He recalled on the first night in Biak he was subjected to 11 bombing raids. He said a number of ground crew were killed and because Biak was a coral Island it was not possible to bury bodies. They were therefore burnt. He said he took these episodes "in (his) stride" during service, but upon reflection he found the events upsetting. (Mr Hodgson has an accepted disability of generalised anxiety disorder. We were satisfied during the hearing having regard to that accepted disability and having heard his history of service that a connection exists between service and the consumption of alcohol both during service and subsequently).
Mr Hodgson told us that upon return from service he would drink beer after work and when visitors attend his home. He said he would drink between 21 and 22, 7 ounce glasses of beer per week until the mid 1960's when he was first diagnosed with hypertension. He said drinking alcohol made him "contented". He said that he had recently been advised by his daughter – subsequent to the death of his wife – that his wife had "always hoped that I would give up drink".
Hypertension was first diagnosed in about 1965 or 1966. At that time Mr Hodgson held a licence to drive trotting horses. He said during a routine medical examination to renew his licence he was told by a Harness Racing Board doctor that he had elevated blood pressure. He then ceased smoking cigarettes and reduced his alcohol consumption.
In cross-examination Mr Hodgson referred to a statement signed by him dated 17 July 1999. In that statement he referred to drinking "approximately 21/22 glasses of beer per week on a regular basis. This was full strength beer. I kept this level of drinking up until the mid 60's when I was first diagnosed as suffering from hypertension".
In answer to questions from Mr Herman, Mr Hodgson agreed that he drank 7 ounce glasses of full strength beer only. He said he worked opposite a hotel where he and three other workmates would consume four 7-ounce glasses of beer each night after work. On other occasions Mr Hodgson said that he would drink beer at home if visitors called. When he was referred to a recent opinion of Dr Gelb who purported to take a history of consumption of 30 beers per week, Mr Hodgson said that that history was "wrong". He agreed that at Christmas and at Birthdays he may drink more alcohol than normal. He said however that consumption of alcohol "never caused friction with my wife", never caused trouble "with finances", and never affected his work. He said he was "never put on the carpet by the boss". Mr Hodgson used to either walk to or from work or ride a pushbike.
It was at this stage of the proceedings that Ms Black agreed with queries raised by us that the Statements of Principles had not been satisfied. Nonetheless she submitted that she would wish to call Dr Gelb who had examined Mr Hodgson and provided two medical reports. Dr Gelb was unavailable at this stage of the proceedings and she requested that the matter be stood down.
Upon the hearing resuming we observed Mr DeMarchi at the bar table (refer earlier).
When Mr Hodgson was recalled he said that in addition to his weekday employment (with J T Dunstan and Co.) he and his brother worked every Saturday and Sunday at Joe White Maltings in Abbotsford. He said that he worked weekends on a casual basis to earn extra monies to meet mortgage payments over his home. He said the work was heavy and hot because he and his brother were required to physically shovel malt, which was fermenting, at floor level. He said that they would cease work between 11am and 12noon and would ride their pushbikes from Abbotsford to a hotel in Clifton Hill on route to his home in Preston. He said they would each have two pots of beer. Additionally he said that he and his brother would visit each other on Sundays and they would share one bottle of beer. On Friday nights he said his brother in law, who was a neighbour, would often call in and again one bottle of beer was shared.
With respect to the workplace at J T Dunstan, Mr Hodgson said there were occasions where if work mates were feeling "sluggish" others would comment, such as "you've been on the grog".
Mr Hodgson described the work at J T Dunstan as being "prehistoric" and would not pass any Workcover safety standards. He said machinery was often unguarded and baths of acid were uncovered. Additionally he would lift large bags of pigments on his shoulder and empty the bags into a pebble mill, which had its opening approximately 6 feet from floor level.
On occasions he said there were injuries to himself and workmates where materials would drop onto workers feet or where fingers would be cut or crushed.
In cross-examination from Mr Herman, Mr Hodgson said he worked between 8am and 5pm on Mondays and Fridays with J T Dunstan. He agreed that he would consume 4 seven-ounce glasses of full strength beer with other workmates after work but would always be home by 6pm to have an evening meal with his family. He said he would only drink of an evening if visitors attended his home but was in bed by 10pm every night. He agreed therefore that on a normal day he would not consume alcohol after 6pm and would resume work at 8am the next day.
He explained that the comments made by his workmates "you've been on the grog" were always intended as jocular, that he was never affected by alcohol at work and he never understood that his workmates were of the opinion that he was under the influence of alcohol. He said he was employed with J T Dunstan for 28 years and that there was never a time that he could recall where he was in danger or at risk of any accident or injury because of alcohol. He said there were occasions where he would drink some beer at lunchtime but that would only be on special events and then only once every 6 or 8 weeks. He could recall a time where another worker was splashed with acid but that he (Mr Hodgson) assisted the worker by hosing him with cold water.
In answer to questions from us, Mr Hodgson said that he held a licence issued by the Harness Racing Board to train and drive trotting horses. He said he had two horses that he owned and which were stabled and trained in a two-acre paddock at the back of the J T Dunstan workplace. He said he would work his horses at 5am daily. He would attend the stables and his horses at lunchtime daily and mix the feed for the horses during afternoon smoko daily. On Saturday nights he drove his horses at the Showgrounds or attended as a spectator. Mr Hodgson said he never had any difficulty managing his horses or fitting harness. He was aware of other drivers and trainers who had been injured by their horses, however Mr Hodgson had never been injured by any of his horses.
Doctor Gelb
Doctor Gelb is a consultant psychiatrist who is described on his letterhead as "Specialising in Assessment, Opinion and Secondary Consultation". He provided two reports dated 15 June 1999 and 21 December 1999. The first report concerned the level of impairment with respect to the accepted disability of generalised anxiety disorder. It does not refer to alcohol consumption. The second report is brief and omitting formal parts reads in its entirety as follows:
"Prior to joining the RAAF Mr Hodgson was a non-drinker. During his service he was exposed to alcohol and continued this drinking habit post service. He would regularly have a few drinks with colleagues after work and would drink approximately 30+ glasses of beer per week on a regular basis. He kept this level of drinking up until the mid 1960's when he was first diagnosed as suffering from hypertension.
It is my opinion that consumption of alcohol at this rate constituted alcohol abuse and that this alcohol abuse developed as a result of trying to deal with his stress during and following active service".

With respect to the definition "psychoactive substance abuse or dependence" as those words appear in the hypertension Statement of Principle, Dr Gelb said from the history of alcohol consumption he took from Mr Hodgson, it was his opinion that the applicant would have been exposed to "current and repeated problems" and he described the applicant's drinking habits as a "maladaptive pattern of abuse".
It was his opinion that if Mr Hodgson was under the influence of alcohol he would meet paragraph (a) & (b) of the above definition.
Dr Gelb said that from the history taken he was confident that the applicant did suffer from alcohol abuse and he formed this opinion having regard to what he understood to be the relationship between the applicant and his wife.
In cross-examination Dr Gelb agreed that four-seven ounce glasses of full strength beer daily after work and then returning home for an evening meal, retiring to bed at 10pm, rising early to attend his horses and then performing a full days work would not be "physically hazardous" within the meaning of (b) of the definition of "psychoactive substance abuse or dependence". Dr Gelb additionally said that the extra consumption of beer from one shared 26-ounce bottle on one night per week would also not amount to consumption being "physically hazardous". Additionally he said that a couple of beers at lunchtime once every six or eight weeks in addition to four beers daily after work and sharing one bottle of beer on one night a week would not be "physically hazardous".
With respect to the applicant's relationship with his wife, Dr Gelb said that he did not understand that Mr Hodgson only recently learnt that his wife was concerned about his level of drinking. Dr Gelb said that Mrs Hodgson was a supporting, loving woman and it was his "impression" that she did not approve of Mr Hodgson drinking alcohol. He conceded that his impression could be incorrect.
In cross-examination Dr Gelb said it was his experience that veterans underestimated the extent of alcohol consumed and that his opinion as expressed in his report of 21 December 1999 "takes account of my years of experience and what I believed was the real situation – I thought he was underplaying his consumption and the frequency".
Submissions
Mr DeMarchi submitted that the Veteran underestimated his drinking habits and the consumption of alcohol was responsible for his unstable hypertension. He said Mr Hodgson suffered from psychological and/or physical problems associated or exacerbated by alcohol. He submitted that the tests to be applied as to paragraphs (a) & (b) of the definition of 'psychoactive substance abuse or dependence' were objective and were not perceived by Mr Hodgson. He submitted that the Tribunal should find that the applicant satisfied Statement of Principle 83 of 1995 (hypertension) and accordingly would also satisfy Statement of Principle 140 of 1996 (ischaemic heart disease).
Mr Herman submitted that there was no evidence of the applicant having suffered from unstable or difficult to control hypertension.
He said that the alcohol consumption as described by Dr Gelb was speculative. Mr Herman submitted that we should find Mr Hodgson as an honest intelligent witness who accurately gave an account of his alcohol consumption.
He reminded us that Dr Gelb was unable to find that the applicant satisfied (b) of the above definition when three scenarios of alcohol consumption were put to him. He also submitted that the concept of "persistent" or "recurrent" were not satisfied by the evidence.
In reply Mr DeMarchi submitted that the quantity of alcohol consumed by Mr Hodgson was not in the circumstances relevant.
Conclusion & Reasons For Decision
We rely on the comments expressed at the commencement of these Reasons with respect to the manner in which this application was presented.
We found Mr Hodgson to be an honest forthright witness who gave an accurate account of his alcohol consumption. It did not approach the level as was assumed by Dr Gelb and for which we find as a fact there was no basis for him to make the assumption that he did.
A consequence of these proceedings is that the reputation of Mr Hodgson could be tarnished. He was portrayed by his advisers and by Dr Gelb as being a person who drank to excess and who suffered from alcohol abuse. We find as a fact that he did not drink to excess and he did not suffer from alcohol abuse.

It is one thing to advance a client's cause so as to meet qualifying criteria under a Statement of Principle. It is another to be not mindful of the risk of a client's reputation being offended as was the case in these proceedings.
There was no need to advance this application in the manner sought by Mr DeMarchi. We are not satisfied that Mr Hodgson did drink to excess or that he abused alcohol. We are satisfied that he was a hardworking and stoic individual who, particularly in recent years, has continued to grieve following the death of his wife. It is unfortunate that Mr Hodgson has learnt subsequent to his wife's death that she was concerned about his drinking habits. What is more unfortunate is that an innuendo has been placed upon what was believed to be the concern of Mrs Hodgson that his drinking habits were somehow excessive or injurious. We do not know what she intended to mean by those comments – for all we know she may have been upset by the consumption of any quantity of alcohol. Mr Hodgson said he learnt of the comments made by his wife, recently, from his daughter. She was not called to give evidence.
When converted, the four-seven ounce glasses of beer consumed daily after work amounts to two ounces more than one standard bottle of beer. The two pots consumed on Saturdays and Sundays when returning home from Joe White Maltings amount to one bottle of beer. Sharing one bottle of beer with his brother in law one night per week amounted to approximately ½ a bottle of beer consumed. In total this would amount to consumption of 2 ½ bottles of beer per week. It is inconceivable that this would amount to alcohol abuse and we are upset that Dr Gelb would not only make the assumption that he did, but recorded that the applicant abused alcohol. We also note, that consumption of four-seven ounce glasses of beer, in an hour would not cause the applicant to exceed 0.05%, below which persons are lawfully entitled to drive motor cars.
The applicant cannot satisfy the definition of "psychoactive substance abuse or dependence". With the above quantities of alcohol consumed it could not amount to a "maladaptive pattern of use" indicated by the criteria found against (a). There was no "persistent" or "recurrent" "social, occupational, psychological or physical problem" that was "caused or exacerbated" by alcohol consumption.
Mr Hodgson was a man who held a job for 28 years. He either walked or rode a pushbike to or from work. He was home every night by 6pm for his evening meal. He was in bed by 10pm. He arose at 5am every morning to tend his horses and cared for them during the working day. He undertook weekend work to earn more monies to meet his mortgage. He was never "carpeted" by his boss, by reason of alcohol or at all.
Additionally, we are unable to find that (b) of the above definition is satisfied. There was no recurrent use of alcohol, which created any physical hazard. Mr Hodgson was able to walk home or ride his pushbike home from work either when he was employed by J T Dunstan and Co or at Joe White Maltings. He was able to care and tend for his horses without injury. It is true that he worked at J T Dunstan in circumstances which he described as "prehistoric" and injuries did occur in the workplace but there is nothing to suggest that any injuries were associated with "recurrent use" of alcohol by him. Indeed there is nothing to suggest other than the consumption of alcohol once every 6 - 8 weeks at lunchtime that alcohol was ever consumed before the end of the working day. The evidence indicates, (subject to the latter exception) on weekdays that alcohol was not consumed after 6pm until 5pm the following day. Injuries of course do occur in the workplace. Workcover advertisements bear testament to this. Injuries apparently continue to occur despite intensive government regulation. That injuries would occur at J T Dunstan in primitive conditions apparently then existing would cause little surprise. But there is nothing to suggest from the evidence that any of the injuries caused had any relationship with alcohol consumption.
It follows therefore, applying the principles recorded in Repatriation Commission v Deledio 1998 49 ALD 193 at 206, that principle number 3 is not satisfied, namely the hypothesis advanced does not fit within the "template" of the Statements or Principles. It follows therefore that the decision under review must be affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Dr C. Re & Mr I. Campbell, Members.
Signed:         .......Carolyn Irons ........................................
  Secretary
Date/s of Hearing  24 February 2000
Date of Decision  15 March 2000
Counsel for the Applicant
Solicitor for the Applicant         Mr D. DeMarchi, DeMarchi & Associates
Counsel for the Respondent
Solicitor for the Respondent    Mr K. Herman, Departmental Representative