Hourigan and Repatriation Commission
[2005] AATA 547
•9 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/172
VETERANS' APPEALS DIVISION ) Re MICHAEL HOURIGAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date9 June 2005
PlaceBrisbane
Decision 1. The first decision under review relating to the claim for chronic pain disorder due to back and pinguecula is affirmed.
2. The second decision under review relating to chronic bronchitis and emphysema and gastro-oesophageal reflux diseased is set aside and substituted with the decision that the conditions of chronic bronchitis and emphysema and gastro-oesophageal reflux disease are defence-caused.................[Sgd].........................
P McDermott
Senior Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2004/172
VETERANS’ APPEALS DIVISION ) Re MICHAEL HOURIGAN Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2005] AATA 547
Tribunal Senior Member P McDermott Date24 June 2005
PlaceBrisbane
Pursuant to s.43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal amends the text of the decision dated 9 June 2005 to read as follows:
“1.The Tribunal sets aside the decision under review as it relates to claims for anxiety disorder (conceded by the respondent as related to a back condition) and alcohol dependence and substitutes the decision that anxiety disorder and alcohol dependence are defence-caused with effect from 29 February 2001.
In all other respects the decision under review is affirmed, that is, the claim as it relates to presbyopia, myopia, chronic pain disorder due to back and pinguecula is refused.
2.The Tribunal sets aside the decision under review as it relates to claims for chronic bronchitis, emphysema and gastro-oesophageal reflux and substitutes the decision that chronic bronchitis, emphysema and gastro-oesophageal reflux are defence-caused with effect from 27 May 2001.
3.The Tribunal remits the matter to the respondent for assessment of the rate of pension payable to the applicant as a result of the acceptance of the above conditions.
[Sgd]
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – disability claim for chronic pain disorder due to back and pinguecula – chronic bronchitis and emphysema and gastro-oesophageal reflux disease – application of Statements of Principles – pinguecula not defence related - chronic bronchitis and emphysema defence related – gastro-oesophageal reflux disease defence related
Veterans’ Entitlement Act 1986 s 196B
Williamson and Repatriation Commission [2004] AATA 1185
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Stafford (1995) 38 ALD 193REASONS FOR DECISION
9 June 2005 Senior Member P McDermott 1. The applicant seeks review of two decisions made by the respondent. Both decisions were made on 18 September 2001. The first decision refused his claim for chronic pain disorder due to back and pinguecula. The second decision refused his claim for chronic bronchitis and emphysema and gastro-oesophageal reflux disease. Both decisions were affirmed by the Veterans’ Review Board on 8 December 2003.
Service of applicant
2. The applicant served in the Australian Army from 2 February 1971 until 20 February 1976. His defence service as defined in the Veterans’ Entitlement Act 1986 (the Act) was from 7 December 1972 until 20 February 1976.
Relevant Statements of Principles
3. The claims of the applicant are subject to a number of Statements of Principles that have been determined by the Repatriation Medical Authority: see s 196B of the Act.
4. These Statements of Principles are:
§Anxiety disorder (Instrument No 2 of 2000);
§Personality disorder (Instrument No 144 of 1995, as amended by Instrument No 14 of 1997)
§Alcohol dependence or alcohol abuse (Instrument No 77 of 1998)
§Pinguecula (Instrument No 252 of 1995)
§Myopia, hypermetropia and astigmatism (Instrument No 24 of 1999)
§Presbyopia (Instrument No 315 of 1995)
§Chronic bronchitis and emphysema (Instrument No 31 of 2004)
§Peptic ulcer disease (Instrument No 22 of 1999)
§Gastro-oesophageal reflux disease (Instrument No 53 of 2002)
5. As the applicant’s claim relates to defence service, rather than operational service, the Tribunal must test the applicant’s claim against the factors of the relevant Statement of Principles. For the applicant to be successful, the Tribunal must accept his claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. I will examine the claims of the applicant having regard to the applicable SoPs.
6. I am required to consider whether the events that are experienced by the applicant during his period of eligible service fit into the template of a relevant Statement of Principles.
First decision
§ Anxiety disorder (Instrument No 2 of 2000)
7. At the hearing, the respondent conceded that the anxiety disorder was defence caused under factor 5(a)(iii) of Instrument No 2 of 2000.
§ Alcohol dependence or alcohol abuse (Instrument No 77 of 1998)
8. In evidence, the applicant gave evidence that the escalation of his alcohol use dated to 1975 which was the time that he was hospitalised with a back injury. At that time he gave evidence that he had a dead motorcyclist placed in the bed beside him. The applicant submitted that this was a “severe stressor” under factor 5(b) of Instrument No 77 of 1998.
9. In evidence the applicant stated that the motorcyclist was killed on 9 July 1975 when the applicant was in traction at the RAP. Because the coroner could not arrive from Brisbane the ambulance and police brought the body into the RAP and placed the body in the bed next to him. The body was placed a body bag. The applicant also stated that the “helmet and everything was sitting on top of the body bag”. It does not even appear that a screen was placed around the body. This event does not appear to have been put in evidence before the Veterans’ Review Board.
10. In considering the definition of “severe stressor” I am mindful of the observations of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 (at [28]) that considerable latitude must be extended when considering whether a person has experienced a severe stressor. His Honour pointed out (at [27]) that the definition must be approached in a manner which is not unduly restrictive. Whilst His Honour was then considering another Statement of Principles (SoP 3/1999), I consider that I should adopt such an approach on this occasion.
11. I conclude that the event constituted a severe stressor within the meaning of factor 5(b) of SoP 77 of 1998. I have also taken into account the fact that there is evidence that the applicant greatly increased his abuse of alcohol after this hospitalisation incident. The fact that he was in traction also meant that he was conscious of the body being there for some time. He also said in evidence that the event “still haunts me”.
12. I have also taken account of the notes of the medical officer in respect of his tonsillectomy in 1973. These notes dated 28 January 1973 record that the applicant then had “moderate” use of alcohol.
13. I also consider that factor 5(a) of SoP 77 of 1998 is satisfied in that the anxiety disorder preceded the abuse of alcohol. The anxiety disorder has been conceded as a reaction to the lumber spondylosis.
§ Personality disorder
14. There is no evidence that the applicant experienced a “catastrophic experience” during his service: see factor 1(a) of SoP 144 of 1995. There is also no evidence of any “enduring personality change” within the time stipulated by the SoP. In these circumstances, the applicant cannot succeed on that claim.
§ Presbyopia; Myopia
15. I find that there is no evidence that supports these conditions as being defence related. Certainly the report of Dr Archie Lamb is consistent with this finding.
§ Pinguecula
16. The report of Dr Grant concludes that the Pinguecula was not present during his service. That evidence was not contradicted. I find that this condition is not defence related.
§ Chronic bronchitis and emphysema
17. It is clear that the applicant certainly has a history of smoking at least ten pack years of cigarettes. The question that I have to decide is whether this is connected to his service.
18. The applicant commenced smoking before the commencement of eligible defence service. There is evidence that he gave up smoking in 1971 and started smoking again six months before his tonsillectomy in 1973. The applicant was medically advised in 1971 that he should cease smoking. On this basis I was initially inclined to the view that the applicant cannot claim that the Commonwealth is responsible for this condition on the basis of his smoking. However, one reason why he resumed smoking was the fact that he was encouraged to take hourly smoke breaks in his work in handing explosives and ammunition. These smoke breaks were taken during what the applicant described as “very dangerous and complex work”: see statement of applicant filed in Tribunal on 28 June 2004. The stressful nature of the service of the applicant is certainly relevant for me to consider: see Repatriation Commission v Tuite (1993) 29 ALD 609. In these circumstances I find that this condition is defence related: see SoP (Instrument No 31 of 2004), factor 5(a).
§ Gastro-oesophageal reflux disease
19. I have earlier made a finding that the alcohol dependence of the applicant is defence related. In these circumstances on the balance of probabilities his gastro-oesophageal reflux disease is connected with his service: see SoP (Instrument No 53 of 2002), factor 5(d).
Assessment
20. The respondent quite properly pointed out that the delegate’s decision of 18 September 2001 included an assessment [T2, S(1)]. Certainly, in accordance with the principles enunciated in Repatriation Commission v Stafford (1995) 38 ALD 193 at 202, the question of the assessment could not be withdrawn from the review without the withdrawal of the applicant. Since then there have been a number of reconsiderations of the assessment. Some of the documentation relating to these reconsiderations, such as the decision of the delegate of 13 May 2004, is not before the Tribunal. In the circumstances of this case the delegate would need to reconsider the assessment in the light of the decision of this Tribunal as well as other medical advice that may be before the delegate.
Decision
21. The first decision under review relating to the claim for chronic pain disorder due to back and pinguecula is affirmed. The second decision under review relating to chronic bronchitis and emphysema and gastro-oesophageal reflux diseased is set aside and substituted with the decision that the conditions of chronic bronchitis and emphysema and gastro-oesophageal reflux disease are defence-caused.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: Camille Banks
AssociateDate/s of Hearing 18 March 2005
Date of Decision 9 June 2005
The Applicant was unrepresented and appeared in person
For the Respondent Mr M Smith, Department Advocate
0
4
0