Hunt and Repatriation Commission (Veterans' entitlements) [2017] AATA 697 (18 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2014/6051
Re:Gordon Hunt
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Brigadier (Retired) C Ermert, Member
Date:18 May 2017
Place:Melbourne
The Tribunal sets aside the decision of the Veterans’ Review Board dated 9 September 2014 and in substitution determines that:
·Mr Hunt’s HNPP is a war-caused disease, on the basis that it was aggravated by his the wearing of webbing and the use of an old style adding machine;
·Mr Hunt did not suffer a war-caused injury or disease from his ingestion of Dapsone; and
·Mr Hunt’s carpal tunnel syndrome is a war-caused injury.
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Brigadier (Retired) C Ermert, Member
VETERANS’ AFFAIRS - claim that conditions are war caused - aggravation of hereditary neuropathy with predisposition to pressure palsy - carpal tunnel syndrome - where applicant rendered operational service - where applicant was required to wear webbing - where applicant was required to ingest Dapsone - where applicant operated an adding machine - whether material points to hypothesis connecting conditions with service - whether hypotheses reasonable - whether material disproves hypotheses beyond reasonable doubt - decision set aside and substituted
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
East v Repatriation Commission (1987) 16 FCR 517
Iliopoulos v Repatriation Commission [2016] FCA 756
Lees v Repatriation Commission (2002) 125 FCR 331
Re Dell and Repatriation Commission (1986) 5 AAR 253
Repatriation Commission v Cornelius [2002] FCA 750Secondary Materials
Statement of Principles Instrument No 7 of 2013 Carpal Tunnel Syndrome
REASONS FOR DECISION
Brigadier (Retired) C Ermert, Member
18 May 2017
Mr Hunt, the Applicant, rendered operational service as a cash office clerk in South Vietnam from 6 November 1969 to 6 May 1970. On 14 May 2012 the Repatriation Commission, the Respondent, refused Mr Hunt’s application for acceptance of carpal tunnel syndrome of the left wrist and tomaculous neuropathy as being war-caused. Mr Hunt sought review of the Respondent’s decision. On 9 September 2014 the Veterans’ Review Board (VRB) affirmed the decision.
Mr Hunt sought review of the VRB decision. On 29 July 2016 I affirmed the VRB decision. Mr Hunt appealed to the Federal Court. On 8 December 2016 the Federal Court made orders by consent allowing the appeal, setting aside my decision and remitting the matter for re-hearing and determination according to law. The Court directed that the matter be remitted to the same Tribunal member and that further evidence not be received unless proper cause be shown.
This matter is the re-determination of the review of the VRB decision in accordance with the Court’s order. In making the re-determination, I had regard to all evidence that was admitted at the first hearing of this matter. I also had regard to written submissions made by the parties following the…
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- Case
- [2017] AATA 697
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether Mr Hunt's HNPP was materially contributed to or aggravated by his service, and whether his Carpal Tunnel Syndrome constituted a war-caused injury. The Tribunal was required to assess the evidence, including expert medical opinions and Mr Hunt's own testimony, to determine if the alleged service-related activities or drug use had a causal link to his conditions.
The Tribunal reasoned that Mr Hunt's HNPP was aggravated by his service through the wearing of webbing, which involved carrying approximately 10 kilograms and jumping from trucks, and the repetitive, forceful use of an old-style adding machine for extended periods. Medical evidence suggested that these activities could exacerbate an underlying predisposition to nerve compression, consistent with HNPP. The Tribunal also found that Mr Hunt's Carpal Tunnel Syndrome was a war-caused injury. However, the Tribunal concluded that Mr Hunt did not suffer a war-caused injury or disease from his ingestion of Dapsone.
In light of these findings, the Tribunal set aside the VRB's decision. It substituted a new decision finding that Mr Hunt's HNPP was a war-caused disease due to aggravation by wearing webbing and using the adding machine, and that his Carpal Tunnel Syndrome was a war-caused injury. The claim relating to Dapsone was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For the purposes of the remittal of this matter, some of the material on which the parties relied was provided by way of pinpoint references to the transcript of the hearing in the matter in 2016. In each case, I have extracted the relevant parts of each pinpoint in full. In several cases, I have expanded the material from the transcript in order to better contextualise that which was referred to in submissions.CONSIDERATIONApplicant’s Contentions The Applicant’s contentions are that:(a)his HNPP is a war caused disease, in that it was contributed to in a material degree and/or aggravated by:(i)his wearing of webbing and using an old adding machine; and/or(ii)his use of antimalarial drug Dapsone;during his operational service; and(b)his Carpal Tunnel Syndrome is war-caused; I will consider each contention in turn.HNPP – Wearing Webbing and Using an old Adding MachineThe Applicant The Applicant submits that the evidence before the Tribunal points to the hypothesis that the Applicant’s operational service duties precipitated the development of median neuropathy in the form of carpal tunnel syndrome. The Applicant contends that this was an aggravation of the Applicant’s, until then asymptomatic, congenital HNPP disorder. The evidence relied on by the Applicant, in support of this hypothesis is:·Dr Kraemer’s evidence before the Tribunal (Transcript p 40, lines 33-38)“Doctor, is there an association between carpal tunnel syndrome and HNPP?… you have the nerve that’s very vulnerable to pressure you’re more likely to get … carpal tunnel appearing in the nerves leading to lesions which are more prone to happen in patients … because of the much higher susceptibility to pressure on the nerve.”·Professor Chambers’ evidence before the Tribunal (Transcript p 62, lines 38-45) “ … Could you just explain what that condition is … ? … it is as the name suggests, an inherited condition. In patients who have this problem have an underlying - a vulnerability if you like - to develop pressure palsies that we commonly see in neurological practice anyway - conditions like carpal tunnel syndrome where there’s compression of the median nerve of the wrist, ulnar neuropathy which can be compression of the elbow or the wrist, peroneal neuropathy.”;·Professor Chambers’ evidence before the Tribunal (Transcript p 67, lines 38-41) “ … the carpal tunnel syndrome … is that part of the HNPP? … Well, people with HNPP are more susceptible to getting carpal tunnel syndrome.”·Professor Chambers’ evidence before the Tribunal (Transcript p 77, line 43 - p 78, line 10)“And you said - I am only quoting you in part here but you said “Military service is relevant” and then you go on to describe something you think is more relevant. But you said “Military service is relevant”. Can I just take you to that? I will come to the rest of that sentence but if I can take you to that part for now. I take it from that that you’re saying military service can actually be relevant to the aggravation of HNPP in a person with HNPP - by which I mean bringing on the symptoms of HNPP?… Yes, I think that’s a reasonable comment, yes. Yes? … Aggravation. I mean, he’s got a - he has a condition - he had a condition all of his life and there are certain things that he may have done in military service that could have aggravated it and caused clinical expression.Yes, and that would be a perfectly reasonable and logical position to come to as a clinician? … I think so, yes.”·Dr Kraemer’s report dated 9 March 2016“In my opinion, his hereditary neuropathy with pressure palsy, although congenital, has been brought on and worsened by his time serving with the Army. It is well reported that strenuous exertion and exercise, particularly in military personnel, can easily bring out an underlying hereditary neuropathy with pressure palsy.”·Dr Nicholson’s report dated 13 November 2014“It is not possible to exclude army service as the cause of his neuropathy … environmental factors such as pressure precipitate the disorder.” ·Dr Kraemer’s evidence before the Tribunal (Transcript p 40, lines 26-31)“The adding machine … it’s well demonstrated to have movements of people who do a lot of typing, particularly in the old days where you have the more heavier hard type … where you really had to kind of move more force and put it down … it can bring on carpal tunnel syndrome” ·Dr Kraemer’s evidence before the Tribunal (Transcript p 38, lines 21-22)“And what about doing something like working the adding machine? Similar. And again that’s where you get often carpal tunnel from.”·Professor Chambers’ evidence before the Tribunal (Transcript p 68, lines 4-8)“ And so he has a susceptibility because of HNPP so the adding machine, would that have been a contributory cause to the carpal tunnel in the left hand? … I would say that in general, using a keyboard or a keypad or an adding machine would not normally be expected to cause carpal tunnel syndrome however, in a person with HMPP, possibly it could, I’m not sure.” ·Mr Hunt’s evidence before the Tribunal (Transcript p 7 - p 8, line 46)“ … what was it like to operate – how you operated the adding machine? … it was a mechanical operation where all the keys and numbers you had to actually push fairly hard to get an entry and then to pull a handle down to … record the entry … every day I was using the machine … Are you able to say whether or not that was an action that you were performing say at least more than 50 times an hour? … I’d estimate that it was in excess of that … in Nui Dat, how many hours a day do you think you were using the machine? … It was probably four, maybe a bit longer, hours …could be up to six hours … And when you were in Saigon how many hours a day were you using it? … eight hours was quite common … we were working seven days a week … The first placement I think you said four to six hours a day, the second placement eight hours a day throughout the whole time you were in Vietnam? … That’s right.”·Mr Hunt’s evidence before the Tribunal (Transcript p 18, lines 3-20)“At Nui Dat you were and basically for the duration you didn't come out. I mean you came out on duty but generally nothing else. If you got time off, you could measure it in hours as opposed to days. So … Okay. A normal day, what was a normal working day and how many hours? … We tried eight but it could be 10 and when I got to Saigon it was basically 12 because of the amount of work. During the day, did you get breaks during the day? … Just your normal … Rest breaks? … Yes.So what was that? Morning rest break or … ? … Well we had – basically I 15 suppose we would call it smoko nowadays. You'd have a morning and afternoon and a lunch break as well. Okay. So you'd have an hour for lunch or something? Is that right? … You may, yes.”·Mr Hunt’s evidence before the Tribunal (Transcript p 9, line 1 - p 10, line 30) “In your statement you’ve described wearing webbing each day to be taken to and from the cash office? … Yes … in Nui Dat that was only a 200 metre walk ... in Saigon it over half an hour each way …So it’s only in the second placement that you’re getting in a truck and going to work? … That’s right … Were you wearing the webbing while you were on the truck? … Yes. It was standing orders, we had to have it on … When did you put it on? … Before mounting the truck … and took it off after we arrived at the destination … We had to jump from the back deck of the truck … near five foot. 1.5 metres … And were you wearing your pack when you jumped? … Yes. Now, in Nui Dat I think you said you were walking. It didn't sound like it was very far but you said you were walking? … No, that's a couple of hundred metres. And in that walk you're carrying the pack? … Yes. And in both places was this two and from where you were working each occasion? … Yes … Did you wear the webbing at any other time during your operational service? We were responsible to undertake patrols - clearing patrols some mornings, that was a rostered-on business where we might have to go once very few weeks and… Were you wearing your webbing at that time? … We were because you're actually out into the bush.Can you say whether there is an average link of time that you were wearing the webbing for on those occasions? … Well, those patrols could actually go for two to four hours depending on what happened. And how often do you recall doing that patrol? … I can say I did it at least three times and I possibly did more but three times I definitely did the patrol. And wore the pack each time? … Yes.”·Mr Hunt’s evidence before the Tribunal (Transcript p 13, line 40 - p 14, line 15) “…there is something. When you were carrying the packs, can you describe whether you felt anything in particular while you were carrying those packs? … Apart from the weight, no. Did you have any - you described the webbing going around the back of your neck and over your shoulders, did you have any sense of any sort of pressure from that weight … ? They … weren't entirely comfortable.What about when you then jump out of the truck, did you sort of have any feeling from where the webbing was on you at that time? … Yes, … the momentum of the weight of the belt actually then hit the ground and it would actually shock. So now, you're miming again as though you're pulling on those braces … ? Yes …down the front of your chest. So you're saying it's across the back of your neck you're feeling that? … Yes, clamped down on the back. … Yes.” ·Mr Hunt’s evidence before the Tribunal (Transcript p 28, lines 6-12)“Can you give an approximate approximation of the weight of that webbing? The contents and everything? … It'd be 10 kilograms.”·Mr Hunt’s evidence before the Tribunal (Transcript p 11, lines 13-40) “Do you recall experiencing any symptoms of HNPP during your operational service in Vietnam? … Yes … I used to wake with frequent pins and needles in the hands … it was predominantly left … this could last for hours at a time … When did you first start to notice that type of pins and needles? … Was Nui Dat so that was between November and March … did it continue like that or has it sort of remained a permanent symptom for you? … it’s become a permanent symptom.”·Mr Hunt’s evidence before the Tribunal (Transcript p 13, lines 37-38) “Had you experienced this pins and needles in the arm and hand … before you went to Vietnam? … No.”·Mr Hunt’s evidence before the Tribunal (Transcript p 14, lines 28 - 35)“… in the questions about pins and needles, I wrote down when you were first asked about that that in Vietnam they were reasonably infrequent, is that right? … They were frequent. They weren't … infrequent but they didn't - it didn't go to a regular pattern. And … you had had pins and needles before this, but they only lasted a short time, whereas in Vietnam you noticed that they lasted for hours? … Yes.”·Mr Hunt’s evidence before the Tribunal (Transcript p 11, lines 39-40)“Did [the pins and needles sensation] continue like that or has it sort of remained a permanent symptom for you? … It's actually … become a permanent symptom.”·Mr Hunt’s evidence before the Tribunal (Transcript p 11, line 44 - p 13, line 14)“Do you have any other symptoms of HNPP? … Yes. I had my right leg actually - well, I lost control of the right leg. So I believe the first incident you describe in your statement is that you had paralysis of the left arm. In your statement you've described paralysis of the left arm and right leg and a previous incidence of paralysis of the left arm. Is that what you're referring to? … Yes, it is. I believe the first incident you describe in your statement is that you had paralysis of the left arm. Can you describe to the Tribunal … when you first came to notice that? … I’d returned from Vietnam in May 1970 and I was immediately – when I went on leave I was – it was during a leave period that it actually occurred … I woke up with it … that lasted for a matter of months … So in your statement you indicate you sought treatment in June? … Yes. … that was the first day back from leave and I went to the medical centre … you were saying that you started to recover from it and then you had your second episode? … That’s right. Which in your statement you’ve indicated was in about August 1970? … That’s right. Now, that’s the left arm and right leg? … That’s right. … Again I woke up one morning and I had this problem and I was having difficulty walking. I couldn’t drive … And you went immediately to the doctor with on that day? … As soon as I got to work … I went to the medical centre” ·The Army medical records (Service Medical Records, pp 15, 18, 67-81, 91-92). Reference was made on the basis that these show Mr Hunt’s attendances for treatment and a diagnosis by a specialist physician who reported left ulnar and right peroneal nerve lesions.·Professor Chambers’ evidence before the Tribunal (Transcript p 67, lines 2-3)“I presume that the pins and needles he was describing during his Vietnam service were from carpal tunnel syndrome.”·Professor Chambers’ evidence before the Tribunal (Transcript p 67, lines 33-36)“… I didn’t get the history of pins and needles occurring prior to that. If that has been documented well then that could well be the earliest manifestation of his HNPP because he may have had carpal tunnel syndrome at that stage.”·Professor Chambers’ evidence before the Tribunal (Transcript p 80, lines 22-44)“I don’t know what instructions you’d been given and so forth, so I do have to draw this out of you, unfortunately. It is the way this works but I’m happy to put that to you but the evidence is that in operating the cash machine, and Mr Hunt used the quite specifics of mines (sic). The tribunal will remember this when he gave his evidence, that in operating the cash machine it was always left-handed. They were designed to be used left-handed. That he was pressing down the keys heavily. That he was pulling on a lever and he was doing that rapidly and repetitively and he was doing it for over 50 times an hour. It was his best estimate. He was doing that for the first four months of this service, four to six hours a day, and that’s allowing for breaks, that’s actual operating time, and the latter part of his service he’s doing it for about eight hours a day, sometimes up to 10, and he was doing it seven days a week. So, he was doing that motion in all of those hours. That’s not something that was brought to your attention before you wrote your report? … No, not until just now. Right? … So, you having explained that to me, I am quite happy to acknowledge that that is a little bit different to using a keypad, or a keyboard.Yes, yes? … And if, in fact, those activities that you have demonstrated with your hand are what he did, well, then, I would agree that those things could well have caused his median neuropathy, given his predisposition.” ·Professor Chambers’ evidence before the Tribunal (Transcript p 83, lines 29-31)“So, when you, in response to my friend’s question, said the adding machine exercise could be related to median nerve compression, are you saying it could be related to carpal tunnel syndrome? … Yes.” ·Professor Chambers’ evidence before the Tribunal (Transcript p 77, lines 30-36)“Did he give any other description to you of his functions or things he otherwise did during operational service in addition to being a cash office clerk? … No, there’s nothing - there’s no further details of his work recorded in my report. Sure. Did you come to some sort of conclusion as to the level of activity that that would generally involve when you’re in a cash office? …No.”·Professor Chambers’ evidence before the Tribunal (Transcript p 79, line 44 - p 82)What activities did you record him actually as performing during his service - other than the fact that he worked in a cash office? … Nothing. I haven’t got any particular detail, no. Is that reflective of not having that opportunity to draw that out of him or not drawing it out of him on that occasion? … Well, perhaps - remember there are time constraints and very often specific issues have not been drawn to my attention to …… if we can just go back to that question of what your understanding is of the tasks he performed during service. Do you understand or have you taken a history anywhere of what was involved in operating that machine? … I haven’t. … My question was directed to whether you had the benefit, when you made your report, of that detail of history, and I take it that your answer is no? … That’s correct. … Were you aware that the respondent in this matter has relied on a survey that was conducted of Dapsone use in the Vietnam War? … No, I haven’t seen it. … So, you’re not aware of those surveys that have been taken 5 determining the effects of Dapsone on servicemen during the Vietnam War? … No.“·Dr Kraemer’s evidence before the Tribunal (Transcript p 51, lines 37-44)“Now, given that you’re Mr Hunt’s treating neurologist and you’re aware of his history, did it take until the 1990s for him to develop symptoms of peripheral neuropathy, or are the symptoms he described in 1969/1970, being this pins and needles and the paralysis, are those relevant symptoms? … Yes, I think they were the first sign of his HNPP becoming clinically, and the peripheral neuropathy was then further down the track, so I think that was a first sign of his (indistinct) becoming clinically symptomatic.”·Dr Kraemer’s evidence before the Tribunal (Transcript p 36, lines 26-41)“Do you consider it probable that those symptoms that we've described were brought on by those activities if Mr Hunt did those things and experienced the symptoms he's described - sorry, I'm asking that in a very complicated way. … So you recall the symptoms we've described, the pins and needles, the paralysis, et cetera. Now, if Mr Hunt was jumping down from the truck carrying that load that he’s described in the way that he’s described wearing it, and was working on the adding machine, and it’s during that period of time that he’s described feeling the pins and needles and that funny sensation in his hand, do you consider it probable that those symptoms of HNPP were brought on by that activity? … YesBut also it wouldn't have brought on - you have to assume that there is a good chance that this extra pressure on the nerves, which normally wouldn't - you wouldn't think makes much difficult on a pre-existing nerve injury can either acutely on the long - on the long run, or make the underlying problem worse.” ·Dr Kraemer’s evidence before the Tribunal (Transcript p 35, lines 22-32)“If he’s been carrying a heavy load that’s attached to him by a mechanism of straps coming around the back of his neck and down over his shoulders, and also attaching to a belt, and that the load is carries by the belt and those sorts of braces that I have described, and that he’s described as weighing in his memory about 10 kilograms, and he’s been carrying that pack a couple of times a day, on occasions for, you know, a matter of minutes, on occasions for example for about over a month, getting on for two months. He’s carried for an extended period while on a truck, and then jumping down from the truck, and he’s described feeling some pressure across his neck and shoulders when carrying it. Is that something that you think could bring on the sorts of symptoms that we’ve described? … Yes.” ·Dr Kraemer’s evidence before the Tribunal (Transcript p 35 lines 34-39)“And if you can assume he’s described operating an old style adding machine with his left hand, sort of with a function that looks like he’s punching keys with his fingers, and then pulling on a lever, and he’s described that as activity he undertook for let’s call it several hours a day, seven days a week from November 1969 to May 1970. And is that in the nature of an activity that you would think could bring on those symptoms? … Yes.” The Respondent