Holt and Military Rehabilitation and Compensation Commission
[2008] AATA 627
•18 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 627
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601207
VETERANS’ AFFAIRS DIVISION ) Re RICHARD HOLT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date18 July 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
....................[Sgd].....................
Miss Shanahan
Member
COMPENSATION – administration of vaccine in 1957 – condition resulting termed crash downs – no medical diagnosis – service medical records incomplete or deficient – whether claim lodged – other medical conditions – passage of time – prejudice to the Commonwealth
Safety, Rehabilitation and Compensation Act 1988
Commonwealth Employees Compensation Act 1930 s 16
REASONS FOR DECISION
18 July 2008 Miss EA Shanahan, Member 1. Mr Holt lodged two claims for compensation dated 1 December 2005 and 5 February 2006 with the Department for Veterans’ Affairs (DVA). Both claims sought compensation for the effects of an unknown or unidentified vaccine administered to Mr Holt in November 1957, leading to a condition identified by Mr Holt as crash downs. On 17 October 2006 the Respondent affirmed an earlier determination that Mr Holt’s unknown medical condition was not service-related. Mr Holt lodged an application for review of this decision with the Administrative Appeals Tribunal on 15 December 2006.
2. Mr Holt was self represented. Ms A McMahon of counsel, instructed by the Australian Government Solicitor (AGS), appeared for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). The parties tendered the following documents:
For the Applicant:
·Mr Holt’s Statement of Facts and Contentions dated 12 March 2008 – Exhibit A1
·Report from Metagenics – Exhibit A2
and
For the Respondent:
·T-Documents – Exhibit R1
·Affidavit of Mr J Babalis dated 5 June 2008 – Exhibit R2
·Affidavit of Mr Paul Reis dated 5 June 2008 – Exhibit R3
·Report of Dr P Stevenson dated 3 December 2007 – Exhibit R4
3. At the commencement of the hearing Ms McMahon identified the issues as being:
1.whether Mr Holt had complied with requirements of s 16 of the Commonwealth Employment Compensation Act 1930 (CEC Act): that a claimant submit notice of accident within six months from the occurrence of the accident; and
2.from what disease or medical condition did Mr Holt suffer and if identifiable, did it relate to his Defence Service.
4. Ms McMahon suggested that before considering the threshold section of compliance with s 16 of the CEC Act, the Tribunal should assess the merit of Mr Holt’s claim. The Tribunal proceeded on this recommendation with Mr Holt’s agreement.
BACKGROUND TO THE APPLICATION
5. Mr Holt served in the Royal Australian Air force (RAAF) as a cook from 13 November 1957 until 12 November 1963, being discharged on 12 December 1963 (T3 p 17). Throughout this period he was stationed in Australia. He claimed that in November 1957, he was injected with what was said to be a flu vaccine. Following this injection he collapsed. He was put under observation in a day ward for some 24 hours and then released. He says he was one of three servicemen selected from a group of 30 to trial this vaccine. The other two servicemen had a similar response and were hospitalised in Sydney while he remained at his Richmond base. Since the injection he has suffered from similar episodes, which he terms crash downs and which are characterised by a sensation of all his energy draining from his body, lethargy and near loss of consciousness. The symptoms are often preceded by a cramping sensation in the epigastrium (abdomen). These crash downs now occur approximately once per month.
6. Mr Holt says that during a particularly severe episode in 1964 his doctors noted that he had a slow pulse and low blood pressure and he was told that he was dying. He was given the last rites. He recovered but following this ‘near death’ event he started smoking and drinking to excess, smoking 90 cigarettes per day and drinking 50 glasses of beer per day. He continued drinking and smoking at that rate until the early 1990’s. In 1992 a diagnosis of chronic obstructive pulmonary disease was made. He attended Alcoholics Anonymous for his excessive drinking with a successful outcome.
7. Mr Holt estimated that he had been hospitalised for these crash down episodes on six to eight occasions during his service but there was no medical record of these events, despite his prolonged efforts to obtain his complete service medical file. He believes those records released to him by DVA are incomplete. He has made multiple applications for the records, including direct approaches to The Honourable Robert Hill and The Honourable Bruce Billson in their roles as Ministers’ of the Commonwealth.
8. Following his RAAF service Mr Holt and his brother established a business making security doors and then progressed to providing security services. In 1983 Mr Holt was involved in an accident while working as an industrial steel fabricator. He sustained a heavy blow to the head and neck. He was treated at the Western Hospital Accident and Emergency Department. The neck laceration was sutured and head injury observations conducted until he signed himself out of the Department. He subsequently underwent a cervical fusion for injuries to the vertebrae and in 1989 received a Workers Compensation payment of $88,000. Following this industrial accident, he commenced suffering from panic attacks requiring psychiatric treatment. He also developed depression. He has not worked since the accident. In 1990 he qualified for the disability support pension (DSP) and is now on an aged pension. He has been told he suffers from traumatic brain injury and it has been suggested that he has frontal lobe damage.
9. He continues to receive psychiatric treatment on a regular basis and has taken Valium and Panadeine Forte in larger than normal doses for 15 years. He also takes Tryptanol, Avanza and Efexor on psychiatric advice. For many years he received an annual flu vaccine without ill effect but in 2005 was advised by a locum doctor working for his general practitioner, Dr H Cashmore, to cease this practice, given his claimed reaction in 1957.
10. No medical diagnoses of these crash downs have been made despite numerous investigations and referrals to specialists. Mr Holt has sought a diagnosis and treatment from alternative medical practitioners and has been told he has an identified mutant cell in his blood but does not have cancer. He takes approximately 40 vitamin tablets a day and Chinese herbal preparations.
11. In 2005 Dr Cashmore suspected that Mr Holt was suffering from carcinoma of the prostrate based on rectal examination findings, of a firm nodule in the right lobe of the prostate and persistently elevated prostatic specific antigen levels (PSA).Mr Holt subsequently saw two urologists but on each occasion refused to undergo any physical examination or any treatment. He has attributed any abnormal blood tests to his crash downs.
12. Mr Holt has received recent advice that his medical file and service documents have been sent to the Department of Veterans’ Affairs in Melbourne but he is yet to gain access to these files.
13. Mr Holt contends that he was totally and permanently incapacitated at the time of his discharge in 1963 and should have been paid DSP from that time. He also claimed that he made an application to this affect at the time of his discharge in 1963 or in early 1964.
EVIDENCE BEFORE THE TRIBUNAL
14. Mr Holt’s evidence is summarised under the heading Background. At the completion of his evidence, Ms McMahon and the Tribunal pointed out the lack of supporting documentation, particularly supporting medical reports during and after his Defence service. Many of his treating doctors have now retired and could not be contacted.
15. The Tribunal pointed out that the persistence of medical data in the form of blood tests was highly suggestive of an underlying carcinoma of the prostate.
16. Mr Holt accepted that more supporting information was needed and until such information was available his application could not be further considered or succeed. He also undertook to see his general practitioner as soon as possible for further investigation of the suspected prostatic disease. He accepted that his application would be unsuccessful and that the decision under review should be affirmed.
DOCUMENTARY EVIDENCE
t-documents (exhibit r1)
17. The T-Documents contained correspondence from Mr Holt to Mr Robert Hill and correspondence to Mr Holt from Mr Bruce Billson. . Mr Billson had arranged for the provision of Mr Holt’s medical service records. These contain the report of a hospital admission in 1960 for surgical treatment of a furuncle (boil) on the cheek, bilateral shoulder pain of unknown origin and headaches. There is no record of him receiving an injection of a flu vaccine or any other vaccine.
affidavit of mr j babalis (exhbit R2)
18. Mr J Babalis is the solicitor who has the carriage of the matter for the AGS. This affidavit, filed on behalf of the Respondent, claimed prejudice to the Commonwealth arising from the Mr Holt giving late notice of the alleged injury and making a late claim for compensation.
mr paul reis (exhibit R3)
19. Mr Reis is the Assistant Director, Reconsideration and Appeals for the Commission. This affidavit also claimed prejudice to the Commonwealth for the same reasons as stated by Mr Babalis. It also attested that the Respondent’s knowledge and belief that the medical service records provided to Mr Holt are the complete set. This affidavit also notes that no complaint of any crash downs where made prior to 2005.
report of doctor p stevenson dated 3 december 2007 (Exhibit R4)
20. The Respondent sought Dr Stevenson’s expert opinion and he provided a report dated 3 December 2007. He obtained a detailed history and conducted a physical examination of Mr Holt, which was normal. Dr Stevenson had been provided with the results of various blood tests and medical reports and records of the treating psychiatrist, a general physician, the treating general practitioner, two urologists and the opinion of Mr Martin Jackson a neuropsychologist. Mr Jackson had found no evidence of a service-related condition and diagnosed Opiate and Benzodiazepine dependence with a past history of depression and anxiety dating from 1983.
21. Dr Stevenson could not explain the condition termed crash down in recognised medical terminology but did suggest somatisation of emotional distress or past alcohol abuse. He was of the opinion that the elevated PSA estimations were significant in terms of a diagnosis of carcinoma of the prostate.
live blood cell analysis by metagenics
22. Mr Holt provided this report, which includes an explanation of the tests conducted and the significance of each result. Mr Holt believed these results were abnormal but the Tribunal cannot find any evidence of abnormality. This is not an assessment accepted by the medical profession.
23. During examination-in-chief of Mr Holt, Ms McMahon made reference to various summonsed medical records and reports but these were not formally tendered by the Respondent.
TRIBUNAL’S DELIBERATIONS
24. As Mr Holt recognised and accepted that his application could not succeed because of the lack of supporting evidence, he agreed to the Tribunal’s decision to affirm the decision under review. He will endeavour to obtain further evidence and indicated he would arrange further investigations regarding his prostatic disease.
25. The Tribunal delivered an oral decision affirming the decision under review but undertook to provide written reasons for Mr Holt’s benefit and for his personal records.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
Signed: .............. [Sanjiv Shah] .....................
AssociateDate of Hearing 5 June 2008
Date of Decision 18 July 2008Applicant Mr R Holt
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Mr J Babalis, Australian Government Solicitor
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