Hunt and Repatriation Commission (Veterans' entitlements)
[2017] AATA 697
•18 May 2017
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.
..................................[sgd]......................................
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 remittal of this matter by the Federal Court.
COURT FINDINGS
In its orders the Court notes that the Tribunal was concerned with the question whether the Applicant’s carpal tunnel syndrome and hereditary neuropathy with liability to pressure palsies (HNPP) arose from his war-caused service by application of s 120 of the Veteran Entitlements Act 1986 (Cth) (the VE Act).
The Court referred to the judgement of the Full Court of the Federal Court in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 in which Allsop J, as His Honour then was, with whom Lindgren and Emmett JJ agreed, held at 47 that the task under s 120(3) is as follows:
(a)The Tribunal must consider the whole of the material before it: s 120(3).
(b)The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service: s 120(3).
(c)The formation of that opinion involves considerations as to whether the relevant SoP [Statement of Principles] upholds the hypothesis: s 120A(3).
(d)At the stage of the formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises.
(e)The formation of the opinion involves the reaching of a factual conclusion and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material.
[citations omitted]
The Court noted that the principles explained by Allsop J in Collins when there is no applicable Statement of Principles (SoP) remain the same, except that no question of whether the hypothesis is upheld by a SoP arises. The Tribunal must form an assessment of whether the factual, medical and scientific material before it raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service.
Before the Court the parties agreed that when applying s 120(3) of the VE Act, the Tribunal failed to consider the whole of the material before it in undertaking the necessary assessment of whether the material raised a reasonable hypothesis of connection, and instead improperly made findings of fact:
(a)That there was no material before it that pointed to a hypothesis connecting the aggravation of the Applicant’s HNPP with his operational service; and
(b)That the clinical onset of the Applicant’s carpal tunnel syndrome was November 2011 and therefore the Applicant’s hypothesis connecting his carpal tunnel syndrome to his operational service was not upheld by the relevant SoP.
The parties agreed that this constitutes an error of law warranting the remittal of the matter for the following reasons:
(a)The Tribunal decided that there was no material before it that pointed to an aggravation of the HNPP. In arriving at this finding the Tribunal identified only a small subset of the material before it in connection with the hypothesis under consideration and that it then proceeded to weigh and evaluate the material to arrive at its conclusion that there was “no material” that pointed to the hypothesis connecting the Applicant’s HNPP with his operational service.
(b)In concluding that the Applicant’s circumstances did not satisfy the requirements of the SoP relating to Carpal Tunnel Syndrome the Tribunal misconceived its task by impermissibly engaging in fact finding and failing to consider the whole of the material before it for the purpose of forming an opinion as to whether the material raised a hypothesis connecting the Applicant’s operational service with his carpal tunnel syndrome that was upheld by the SoP.
RELEVANT LAW
The decision under review concerned a refusal by the Respondent to accept the Applicant’s conditions as being war caused. Section 9 of the VE Act sets out the circumstances in which conditions are war caused injuries or diseases. Relevantly in this case, s 9(1) of the VE Act provides:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
The standard of proof that the Tribunal must apply in determining whether a condition is war caused is set out in s 120 of the VE Act. Relevantly, it provides:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
The application of s 120(3) is clarified by s 120A of the VE Act, which provides:
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
(c)that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
In applying these provisions, I am mindful of the decision of the High Court of Australia in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) where at 413, Mason CJ, Deane and McHugh JJ said:
“Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether “the material” raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. …
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. … So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. …
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the know phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.”
In the matter of Byrnes v Repatriation Commission (1993) 177 CLR 564 (Byrnes) the High Court of Australia referred to the statement from Bushell that [t]he material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Mason CJ, Gaudron and McHugh JJ said, at 569-570:
“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable …”
In the earlier case of East v Repatriation Commission (1987) 16 FCR 517 at 532 the Full Court of the Federal Court accepted as correct the following description of a ‘reasonable hypothesis’ from an earlier decision of the Veterans’ Review Board in the unreported matter of Stacey, which had subsequently been applied in the decision of Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:
“The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. …”
The Respondent referred me to the reasoning of the Federal Court in Iliopoulos v Repatriation Commission [2016] FCA 756 (Iliopoulos) in which, at paragraphs [10] - [12], the Court found:
“ … The Tribunal would have erred if it had considered itself bound by an opinion of an expert “eminent” in the field without itself reaching its own decision on all relevant material. … the Tribunal accepted the expert evidence of Dr Burdon and undertook the task that it was by statute required to undertake; namely, to decide for itself whether the material before the Tribunal raised a reasonable hypothesis of connection between the injury in question and the particular service rendered by Mr Iliopoulos.…
…
… The evidence of an expert in the relevant field of medical science was considered by the Tribunal. Such evidence would not, of itself, be sufficient to determine whether a reasonable hypothesis connected Mr Iliopoulos' condition with his operational service. That was a question which the Tribunal was required to determine for itself and it did so.”
Considering the legislation, cases and the matters raised in the order of the Federal Court, I have approached each of the Applicant’s contended conditions in the following way:
(a)Setting out the material on which each party relied in relation to that contended condition;
(b)Determining whether the material points to a hypothesis linking the condition to Mr Hunt’s service in accordance with s 120(3) of the VE Act;
(c)Determining whether the hypothesis is reasonable, applying the principles set out above and SoP where relevant, in accordance with s 120(3) of the VE Act; and
(d)Determining whether an assessment of the evidence proves, beyond reasonable doubt, that there is no sufficient ground to determine that the condition war-caused in accordance with s 120(1) of the VE Act.
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.
CONSIDERATION
Applicant’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 Machine
The 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? … Yes
But 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
The Respondent submits that, on the whole of the material, it is open to the Tribunal to form the opinion that the hypothesis connecting Mr Hunt’s operational service to the aggravation of his HNPP is not more than a mere possibility, is too remote or too tenuous and is therefore not reasonable for the purposes of s 120(3) of the VE Act.
In support of this submission the Respondent calls up the whole of the evidence, and refers particularly to the following:
·Dr Kraemer’s evidence before the Tribunal:
oTranscript p 36, lines 30-35:
“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? … Yes.”
oTranscript p 35, lines 22-32 (emphasis made by the Respondent in submissions):
“If he’s been carrying a heavy load … and then jumping down from a 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.”
oTranscript p 35, lines 34-39 (emphasis made by the Respondent in submissions):
“And if you can assume he’s described operating an old style adding machine … 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.”
oTranscript p 51, lines 37-44:
“Yes, thank you, Doctor. 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 symptomatic.”
oTranscript p 50, lines 30-39:
“… with the hereditary neuropathy with pressure palsies you have nerve roots who are very sensitive to any trivial pressure … that any kind of that initial pressure brings on what normally wouldn’t have been brought on by the pressure.”
oTranscript p 50, line 42 – p 51, line 12:
Are you saying that because he has HNPP and he’s done prior damage through the carrying of the load, the working of the adding machine and the taking of Dapsone … that even if there’s evidence that he fell very heavily asleep on a limb, that doesn’t discount those other things as causing the symptoms? … Correct.”
oTranscript p 53, lines 41-43:
“… so again just minor everyday activities can bring on the condition? … Yes, certainly, but of course the heavier the impact on the nerves the more likely it would be brought on.”
oTranscript p 54, lines 4-12:
“So he was a clerical administrative officer, and the webbing which he described as something like braces and a belt weighed 10 kilograms. So when you say it’s known that military personnel sometimes present with these symptoms isn’t it drawing a bit of a long bow to generally talk about heavy loads carried by the military when you consider what Mr Hunt was carrying? … Well, yes, depending – I’m not quite sure I presumed that normally military personnel also have training before they go in, even as a clerk, where you have to normally carry heavy loads as part of your normal military training at least that where I come from was part of the normal training.”
oTranscript p 53, lines 11-12:
“Mr Hunt’s first symptoms came in the third decade, so that’s in accord with the normal course of the illness, isn’t it? … Correct.”
oTranscript p 53, lines 32-33:
“… So it’s just everyday activities can do it, is that right? … Yes.”
·Professor Chambers’ evidence before the Tribunal:
oTranscript p 66, line 31 - p 67, line 2:
“it is well documented that people who do backpacking can experience nerve palsies … However, they are usually of a somewhat different nature, typically patients will present with brachial plexus palsy or maybe a nerve supplying muscles of the shoulder girdle rather than a more peripheral never (sic) being trapped whereas we, you know, are seeing in this case. What is brachial plexus? … Brachial plexus - when the nerve roots leave the spinal column the nerve roots coalesce to form cords and trunks and then they then develop into peripheral nerves so it’s the cords and trunks that constitute the brachial plexus and they lie behind the clavicle and so if there are forces on the shoulder joint which upset the mechanics of the shoulder, it can give rise to brachial plexus palsies. Your description seems to relate - the location of the backpack strap to the - where the symptom occurs, is that right? … Yes. I think it would be unlikely that doing that would account for carpal tunnel median neuropathy symptoms.”
oTranscript p 67, lines 5-14:
“And the other question about using the adding machine … That’s considered a bit controversial in terms of a development of carpal tunnel syndrome. There’s a lot of good literature on it. If it was relevant you would have expected him to develop pressure palsy, carpal tunnel syndrome, whilst he was using the machine, not several weeks later … Is it the case that pressure palsies are contemporaneous with the pressure, is that right? … Generally speaking, yes.”
oTranscript p 68, lines 10-15:
“So you said there would generally be some contemporaneity between the pressure and the pressure palsy, is that correct? … Usually but having said that, in some people with HNPP often there is no definite history of an activity or a posture that causes it. Presumably though there has been some activity or posture that’s caused it but it’s been so trivial as not to have been commented on.”
oTranscript p 78, lines 40-41:
“Normally when people wake up with a pressure palsy it’s because they have slept unusually heavily.”
oTranscript p 84, lines 40-46:
“From those notes (the Army Medical Records), are you able to say whether he had carpal tunnel syndrome at that time? … It looks a bit atypical for carpal tunnel in that the doctor describes “apparent weakness of flexion and extension of the left wrist”. So, flexion and extension of the wrist. Now, carpal tunnel syndrome causes weakness of this movement here, the abduction of the thumb, not this.”
oTranscript p 86, lines 25-42:
“Now, given your understanding of HNPP, and the clinical picture of Mr Hunt, does the webbing have any relevance to the cause of his condition or the pressure palsies? … Well, I don’t think so because I would have anticipated a different kind of pressure palsy if there was a relevance. … The commonest ones, from that sort of factor, I guess, would be a suprascapular nerve palsy where a person has difficulty elevating the arm at the shoulder. … Or what we refer to as externally rotating the shoulder because of the muscles behind the shoulder that are affected. And another common one is palsy of the nerve to latissimus dorsi, which is characterised by a weakness of the shoulder due to an inability to stabilise the scapular or the shoulder blade. … So, nothing that he told me would suggest he had either of those kinds of nerve palsies.”
oTranscript p 71, line 43 - p 72, line 5:
“… Dr Kraemer said in his evidence … each time such a thing happens the nerve would be damaged and therefore it would be worse – the condition would be worse than it otherwise would have been. What is your response to that? … Yes, it’s a difficult one. I think that in the long term that could be true although patients typically make a full recovery after each episode. Having said that, if you have the opportunity to do nerve condition studies in between episodes you may find some residual changes.”
oTranscript p 72, lines 17-24:
“If you look at the long history of Mr Hunt is there any evidence of the type of worsening that was put forward the first day by Dr Kraemer? … Well, I’d have to concede that he may have had some subtle residual neurological manifestations of his condition but it would - I wasn’t aware that he was operating a chainsaw right up to 2010. … 2011. That would suggest that he had - still had pretty good hand function.”
oTranscript p 69, lines 5-16
“I think that - I agree that the pressure palsies could have been linked to his army service but I don’t see how the army service could in any way have contributed to the peripheral neuropathy that developed two decades later. … If I ask the question has HNPP been made worse by army service what would your answer be? Well, my answer to that would be no, because he - clinically he appears to have recovered from each of these episodes of pressure palsy.”
oTranscript p 72, lines 26-29
“So if we narrow that question to in the longitudinal history do we see evidence of a worsening of the course of the HNPP because of things that happened in ‘69/70 during service? I would think it - it would be - in contribution I think it would be fairly trivial.”
Does the Material point to the Hypothesis (s 120(3) of the VE Act)?
After considering the whole of the material before me and taking particular note of the material emphasised by the Applicant and the Respondent relevant to this hypothesis I am satisfied that the following material points to the hypothesis contended by the Applicant:
·Mr Hunt’s uncontested evidence regarding his operational service, the webbing he wore, the circumstances under which he wore the webbing, his use of an old adding machine, the symptoms he reported to the Army’s medical services and the circumstances under which they occurred, and the details of his occupation activities post his operational service;
·the opinion of Dr Kraemer that the wearing of the webbing and jumping off trucks while wearing the webbing and the use of the adding machine brought on the symptoms of HNPP and aggravated the condition;
·the opinion of Dr Kraemer that people with HNPP are more vulnerable to the development of carpal tunnel syndrome;
·the opinion of Dr Kraemer that the symptoms of pins and needles and paralysis reported by Mr Hunt in 1969 and 1970 were the first sign of his HNPP becoming clinically symptomatic;
·the agreement of Professor Chambers that patients with HNPP have a vulnerability to develop carpal tunnel syndrome and that the use of an adding machine as described by Mr Hunt could well have caused his carpal tunnel syndrome given his predisposition; and
·the agreement of Professor Chambers that Mr Hunt’s history of pins and needles in 1969/1970 could well be the earliest manifestation of his HNPP because he may have had carpal tunnel syndrome at that stage.
Is the Hypothesis reasonable (s 120(3) of the VE Act)?
The next issue is for me to form an opinion whether the hypothesis is reasonable. I note that there has been no Statement of Principles determined by the Repatriation Medical Authority. Instead, I am guided by Mason CJ, Deane and McHugh JJ’s statement in Bushell that “the material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”.
The Respondent contends that the hypothesis connecting Mr Hunt’s HNPP with his operational service is no more than a mere possibility, is too remote or too tenuous and is therefore not reasonable. In support of this submission the Respondent refers to the following:
·Dr Kraemer’s evidence that wearing webbing weighing 10 kilograms could bring on the symptoms described by Mr Hunt;
·Dr Kraemer’s explanation that his opinions were based initially on the assumption that Mr Hunt carried loads of 60 to 70 kilograms rather than 10 kilograms;
·the evidence of both Dr Kraemer and Professor Chambers that Mr Hunt becoming symptomatic in the third decade of his life was in accordance with the normal course of HNPP;
·the agreement of Dr Kraemer and Professor Chambers that pressure palsy symptoms could be brought on in patients with HNPP by everyday activities;
·the evidence of Professor Chambers that episodes of pressure palsy symptoms occur contemporaneously with the pressure;
·Professor Nicholson’s evidence that it is not possible to exclude army service as the cause of Mr Hunt’s neuropathy and that HNPP frequently presents in military personnel due to carrying loads; this evidence suggesting no more than a mere possibility of a connection with Mr Hunt’s operational service.
In considering the Respondent’s submissions I note that none of the medical witnesses considered the connection of Mr Hunt’s symptoms with his operational service to be so remote or so tenuous such as to dismiss the possibility of a connection. All agreed the possibility of the claimed connection despite any opinions they held about the likelihood of such a connection.
Much of the medical evidence is couched in terms such as: could, likely, susceptible, not possible to exclude, could be, presumed, generally speaking, usually. Although the use of such terms could imply a characterisation of mere possibility I note also the following evidence (emphasis added):
·Dr Kraemer’s agreement with the proposition that a patient with HNPP is more likely to get carpal tunnel syndrome (Transcript p 40, line 35);
·Dr Kraemer’s view that it is probable the Mr Hunt’s symptoms of HNPP were brought on by his service (Transcript p 36, lines 34-35);
·Professor Chambers opinion that people with HNPP are more susceptible to getting carpal tunnel syndrome (Transcript p 67, lines 38-41);
·Dr Kraemer’s opinion that Mr Hunt’s HNPP has been brought on and worsened by his service in the Army (Report 9 March 2016);
·Dr Kraemer’s evidence that working the adding machine … is where you get often carpal tunnel from (Transcript p 38, lines 21-22);
·Professor Chambers’ opinion that Mr Hunt’s history of pins and needles could well be the earliest manifestation of his HNPP (Transcript p 67, lines 34-35); and
·Professor Chambers’ agreement that Mr Hunt’s use of the adding machine could well have caused his median neuropathy (Transcript p 80 lines 42-44).
I am satisfied that these expressions connote more than a mere possibility in characterising the hypothesis. As a result I am not satisfied that the medical evidence supports a finding that the hypothesis is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.
Accordingly I am not of the opinion that the material does not raise a reasonable hypothesis connecting the aggravation of Mr Hunt’s HNPP with the circumstances of his operational service. I find that the material does raise a reasonable hypothesis and as a result the provisions of sub-section 120(3) of the VE Act do not cause me to be satisfied that there is no sufficient ground for determining that the aggravation of Mr Hunt’s HNPP is war-caused.
Application of s 120(1) of the VE Act
I must now apply the provisions of sub-section 120(1) of the VE Act which require me to determine that the aggravation of Mr Hunt’s HNPP was a war-caused injury unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The reasoning in Bushell provides that I should be so satisfied if I am “satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.”
In this case I have a variance of medical opinion regarding the degree of likelihood of Mr Hunt’s HNPP being aggravated by the circumstances of his operational service, however I have no proof that any of the facts relied upon are not true. Indeed, the medical evidence supports the possibility of the facts relied upon being true.
The evidence of Professor Chambers is that it is unlikely that the wearing of webbing and the use of an old adding machine aggravated Mr Hunt’s HNPP. Professor Chambers leaves open the possibility of the connection, albeit at an unlikely level. While I note, as explained above, that much of Dr Kramer’s evidence was couched in words that express possibility, and that Professor Chambers viewed the possibility as low, I do not accept this as proof beyond reasonable doubt of facts inconsistent with the hypothesis, or that the facts relied on in support of the hypothesis are untrue.
Accordingly I can not be satisfied beyond reasonable doubt that there is sufficient ground to determine that Mr Hunt’s previously asymptomatic HNPP was not aggravated by the circumstances of his operational service. I must therefore determine that Mr Hunt’s HNPP is war caused, insofar as it was contracted before his last period of operational service and aggravated by his wearing of webbing and the use of an old style adding machine as part of his operational service, in accordance with s 9(1)(e)(ii) of the VE Act.
HNPP – Use of Dapsone
The Applicant
The Applicant contends that Mr Hunt’s ingestion of the anti-malarial drug Dapsone during his operational service contributed to in a material degree and/or aggravated his HNPP. In support of this hypothesis the Applicant calls on the whole of the material before the Tribunal with particular reference to the following:
·Dr Kraemer’s report dated 9 March 2016
“It is also important to notice that HNPP is a demyelinating congenital illness with effects on the myelin, similar to Charcot-Marie-Tooth. Although they are different in regards to the genetic defect, the genetic defects in both condition (sic) affects the PMP22 gene and hence in my opinion his exposure to dapsone, similar as in CMT, can contribute to the worsening neuropathy as demonstrated on the nerve conduction study where, on top of the localised slowing, he also had a generalised slowing indicative of a progressive neuropathy. It is recommended by various experts to avoid potentially neurotoxic as for example dapson (sic), in patients with HNPP similar to patients with CMT”;
·Dr Kraemer’s evidence before the Tribunal (Transcript p 35, line 41 - p 36, line 24)
“He’s also described taking Dapsone daily … from November 1969 to May 1970 … Is that something that would bring on the symptoms I’ve described? … Well, that’s probably a little trickier …they’re part of a long list where in any kind of guidelines it’s recommended to avoid them in patients who have trouble with their nerves, like the HNPP … you put something on top of it you’ve got a much higher chance to run either acutely or in the long run in trouble … we know that also (sic) you stop the drug, you often don’t find that the injury completely goes away. So once the damage is done … you often find … it doesn’t go back to normal. So you have some ongoing problems despite the fact that you have stopped the offending drug. … It’s just the general concept that you have a drug which is known to interfere with nerve function, and in someone like Mr Hunt where you have a genetically determined difficulties with the (indistinct) function already and any neurotoxin you put on top of it has a good chance of making the underlying problem worse”;
·Dr Kraemer’s evidence before the Tribunal (Transcript p 37, line 43 - p 38, line 8)
“But again circulating from the general concept which we often see – Dapsone we don’t use that often in Australia, of course, but other drugs which will need the same kind of (indistinct) used in this condition, we know that by the time patients have injury to the nerve, if you stop the drug you can be assured the patient doesn’t get worse, but yet to say usually you have some – some residual symptoms from it, or residual damage to the nerve from it.
… So the idea is that the Dapsone if it’s been described as a neurotoxin they do damage to the nerves, which in someone without that condition may not cause – give him problem, but if you have that or other conditions affecting the nerve or other drugs you’ve got a much higher chance it will lead to trouble.”;
Dr Kraemer’s evidence before the Tribunal (Transcript p 50 lines 41-45)
“I couldn't understand … can I just clarify this? Are you saying that because he has HNPP and he’s done prior damage through the carrying of the load, the working of the adding machine and the taking of the Dapsone? … Yes”;
·Dr Kraemer’s evidence before the Tribunal (Transcript p 51, lines 31-36)
“… I take it that your evidence today is that there is evidence that HNPP can be aggravated by Dapsone, is that correct? … Well, that’s why the review article by experts in the field of peripheral nerve injuries clearly say that Dapsone is a medication you should avoid in anyone with any nerve – recurring nerve problems like HNPP, so yes.”; and
·Dr Kraemer’s evidence before the Tribunal (Transcript p 54, line 45 - p 55, line 24)
“We heard evidence that post-service he had a full working life … It’s very difficult in the long history and a full working life to see how Mr Hunt’s HNPP was anything other than the normal course of the disease as described in the Gondim Thomas paper? … Well, apart from the fact he had in the forces when he worked with the Army at times, when he had exposure to the Dapsone which is the recognised neurotoxic agent. And again against the problems with the – the clinical symptoms we see in congenital neuropathy is the tip of the iceberg. So if you do examine as we did with Dr Day on the nerve conduction study you usually find more abnormality there. So you see clinical or people describe with that, saying that you have a nerve who is struggling, you put extra pressure on it, you have a toxin like Dapsone, the work at the Army, yet more injury to the nerve, who don’t necessarily then maintain over time, but of course then it will get trouble down the track. As we’re getting older all our nerve systems declines while we’re ageing and these things becomes more common. So you – you can’t actually say that if you wouldn’t have the HNPP I think there’s a good chance we’re not looking at the problem nowadays if he wouldn’t have been in the Army because he did have the additional toxin”.
The Respondent
The Respondent contends that the hypothesis connecting Mr Hunt’s HNPP with his ingestion of Dapsone as part of his operational service is no more than a mere possibility, is too remote or too tenuous and is therefore not reasonable for the purposes of s 120(3) of the VE Act. In support of this submission the Respondent calls up the whole of the evidence, and refers particularly to the following:
Dr Kraemer’s evidence:
·Report dated 9 March 2016
“… in my opinion his exposure to dapsone, similar as in CMT, can contribute to the worsening neuropathy as demonstrated on the nerve conduction study where, on top of the localised slowing, he also had a generalised slowing indicative of a progressive neuropathy.
It is recommended by various experts to avoid potentially neurotoxic as for example dapson (sic), in patients with HNPP similar to patients with CMT”;
·Transcript p 35, line 44 - p 36, line 13
“He’s also described taking Dapsone daily … from November 1969 to May 1970 … Is that something that would bring on the symptoms I’ve described? … Well, that’s probably a little trickier …they’re part of a long list where in any kind of guidelines it’s recommended to avoid them in patients who have trouble with their nerves, like the HNPP … you put something on top of it you’ve got a much higher chance to run either acutely or in the long run in trouble … we know that also you stop the drug, you often don’t find that the injury completely goes away. So once the damage is done … you often find … it doesn’t go back to normal. So you have some ongoing problems despite the fact that you have stopped the offending drug.”
·Transcript p 36, lines 15-24 (emphasis made by the Respondent in submissions)
“Now, I gave you the original period of time as the being between November 1969 and May 1970, does your evidence remain the same if it was, in fact, between November 1969 and, say February 1970? … Yes, I don’t think it would make much difference.
… It’s just the general concept that you have a drug which is known to interfere with nerve function, and in someone like Mr Hunt where you have a genetically determined difficulties with the (indistinct) function already and any neurotoxin you put on top of it has a good chance of making the underlying problem worse”
·Transcript p 37, line 40 - p 38, line 8 (emphasis made by the Respondent in submissions)
“I’m not quite familiar with the pharmacology of Dapsone, to be honest.
But again I circulating from the general concept which we often see – Dapsone we don’t use that often in Australia, of course, but other drugs which will need the same kind of (indistinct) used in this condition, we know that by the time patients have injury to the nerve, if you stop the drug you can be assured the patient doesn’t get worse, but yet to say usually you have some – some residual symptoms from it, or residual damage to the nerve from it.
… So the idea is that the Dapsone if it’s been described as a neurotoxin they do damage to the nerves, which in someone without that condition may not cause – give him problem, but if you have that or other conditions affecting the nerve or other drugs you’ve got a much higher chance it will lead to trouble.”
·Transcript p 50, line 42 - p 51 line 2
“Are you saying that because he has HNPP and he’s done prior damage through the carrying of load, the working of the adding machine and the taking of the Dapsone … that even if there's evidence that he fell very heavily asleep on a limb, that doesn't discount those other things as causing the symptoms? … Correct..”;
·Transcript p 55, lines 11 - 24
“ … when he worked with the Army at times, when he had exposure to the Dapsone which is the recognised neurotoxic agent. And again against the problems with the – the clinical symptoms we see in congenital neuropathy is the tip of the iceberg. So if you do examine as we did with Dr Day on the nerve conduction study you usually find more abnormality there. So you see clinical or people who describe with that, saying that you have a nerve who is struggling, you put extra pressure on it, you have a toxin like Dapsone, the work at the Army, yet more injury to the nerve, who don’t necessarily then maintain over time, but of course then it will get trouble down the track. As we’re getting older all our nerve systems declines while we’re ageing and these things becomes more common. So you – you can’t actually say that if you wouldn’t have the HNPP I think there’s a good chance we’re not looking at the problem nowadays if he wouldn’t have been in the Army because he did have the additional toxin”;
·Transcript p 51, lines 31-35
“ … I take it that your evidence today is that there is evidence that HNPP can be aggravated by Dapsone, is that correct? … Well, that’s why the review article by experts in the field of peripheral nerve injuries clearly say that Dapsone is a medication you should avoid in anyone with any nerve – recurring nerve problems like HNPP, so yes.”; and
·Transcript p 35, lines 41-44
“He’s also described taking Dapsone daily from – he has described taking it daily … from November 1969 to at least May 1970. Is that something that would bring on the symptoms I’ve described? … Well, that’s probably a little trickier.”
Professor Chambers’ evidence:
·Report dated 18 November 2015
“There is no evidence, as far as I am aware, that HNPP could be aggravated by Dapsone. In Mr Hunt’s case I presume he received Dapsone as an anti-malarial from November 1969 to May 1970. Mr Hunt did not develop symptoms of peripheral neuropathy until the 1990s. Hence any relationship with Dapsone would be extremely unlikely.”;
·Transcript p 68, lines 19-29
“Now, what is your opinion about the causal role of Dapsone? … Well, I think any link would be extremely tenuous, I mean that’s really just speculation. Dapsone can cause a peripheral neuropathy. It occurs when people are taking the drug. It causes a generalised symmetrical peripheral neuropathy but it seems to have a predilection for affecting the motor nerves, so patients present with a symmetrical wasting and weakness of distal - meaning hand and foot - muscles and not a sensory problem and the other thing is that when a person stops taking Dapsone usually - unless, you know, it’s in a very advanced case - usually the patients recover fairly quickly and there’s not, in my opinion, an explanation for a peripheral neuropathy that could occur decades later.”
·Transcript p 68, lines 34-42
“You also said that a drug - a toxin which might cause peripheral neuropathy - acts immediately, is that right? … Well while that person is on the medication … Your answer seems to be addressing Dapsone and peripheral neuropathy. Is it not tenable to consider Dapsone and the pressure palsies which occurred? … I am not aware of any evidence linking Dapsone with pressure palsies.”
·Transcript p 70, lines 15-17
“So some of the drugs you suggest should be avoided by someone with HNPP but some of them you disagree with? … Well, I think, you know, short courses of some of these medications are unlikely to, you know, be a problem.”
·Transcript p 82 lines 9-10
“I am aware of literature concerning Dapsone as the cause of peripheral neuropathy.”
·Transcript p 68, lines 21-29
“Dapsone can cause a peripheral neuropathy. It occurs when people are taking the drug. It causes a generalised symmetrical peripheral neuropathy but it seems to have a predilection for affecting the motor nerves, so patients present with a symmetrical wasting and weakness of distal - meaning hand and foot - muscles and not a sensory problem and the other thing is that when a person stops taking Dapsone usually - unless, you know, it’s in a very advanced case - usually the patients recover fairly quickly and there’s not, in my opinion, an explanation for a peripheral neuropathy that could occur decades later.”; and
·Transcript p 68, lines 41-42
“I am not aware of any evidence linking Dapsone with pressure palsies.”
·Transcript p 69, lines 5-16
“I think that - I agree that the pressure palsies could have been linked to his army service but I don’t see how the army service could in any way have contributed to the peripheral neuropathy that developed two decades later. … If I ask the question has HNPP been made worse by army service what would your answer be? Well, my answer to that would be no, because he - clinically he appears to have recovered from each of these episodes of pressure palsy.”
·Transcript p 72, lines 26-29
“So if we narrow that question to in the longitudinal history do we see evidence of a worsening of the course of the HNPP because of things that happened in ‘69/70 during service? I would think it - it would be - in contribution I think it would be fairly trivial.”
Does the Material point to the Hypothesis (sub-section 120(3) of the VE Act)?
After considering the whole of the material before me and taking particular note of the material emphasised by the Applicant and the Respondent relevant to this hypothesis I am satisfied that the following material points to the hypothesis:
·Dr Kraemer’s opinions that:
oDapsone can contribute to the worsening [of a] neuropathy;
oDapsone, being a drug which is known to interfere with nerve function, has a good chance of making the underlying problem worse;
oDapsone can aggravate HNPP;
oThat there is a concept that where patients cease using similar drugs and damage to the nerve has already occurred, ceasing the drug will prevent further damage but usually leave some residual damage to the nerve; and
oDapsone is a neurotoxin that does damage to the nerves which, in someone with other conditions affecting the nerve, gives a much higher chance of leading to trouble; and
·Professor Chamber’s testimony that there is evidence that Dapsone can be causally related to peripheral neuropathy.
Is the Hypothesis Reasonable (sub-section 120(3) of the VE Act)?
On the same reasoning and authorities as before I am required to determine for myself whether the hypothesis is reasonable and is not obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous and that the material points to and not merely leaves open the hypothesis.
In considering this question I note all the material before me and in particular the following (emphasis added):
·Dr Kraemer’s opinion that exposure to Dapsone can contribute to the worsening of HNPP, similar in effect to Charcot-Marie-Tooth disease (CMT) even though the conditions are different in regards to the genetic defect;
·Dr Kraemer’s response to the question whether taking Dapsone would bring on symptoms in which he said “well, that’s a little trickier …”;
·Dr Kraemer’s opinion of a higher chance of problems with nerves as a result of the general concept that a drug known to interfere with nerve function has a good chance of making the underlying problem worse;
·Dr Kraemer’s opinion that this general concepts extends insofar as other drugs usually have some residual symptoms or residual damage to the nerve; and
·Dr Kraemer’s statement “I’m not quite familiar with the pharmacology of Dapsone”.
I am satisfied that the hypothesis is too tenuous and that the material does not point to the hypothesis but merely leaves it open. Accordingly I determine that the material does not raise a reasonable hypothesis that Mr Hunt’s ingestion of Dapsone during his operational service contributed to in a material degree and/or aggravated his HNPP.
In accordance with the provisions of sub-section 120(3) of the VE Act I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Hunt’s HNPP was contributed to in a material degree and/or aggravated by his ingestion of Dapsone during his operational service.
Application of sub-section 120(1) of the VE Act
I am satisfied, beyond reasonable doubt, that the material before the Tribunal does not raise a reasonable hypothesis connecting the aggravation of Mr Hunt’s HNPP to his ingestion of Dapsone. In accordance with sub-section 120(3) of the VE Act, I am satisfied in applying subsection 120(1) of the VE Act that there is no sufficient ground for determining that Mr Hunt’s HNPP was contributed to in a material degree and/or was aggravated by his ingestion of Dapsone during his operational service. I find that Mr Hunt did not suffer a war-caused disease from his ingestion of Dapsone.
Carpal Tunnel Syndrome
The hypothesis advanced by the Applicant is that the material before the Tribunal raises a reasonable hypothesis that Mr Hunt’s carpal tunnel syndrome was caused or contributed to by his use of the adding machine during his operational service, and that this task required repetitive and/or forceful use of his hands for at least 130 hours within a period of 120 days before the clinical onset of his carpal tunnel syndrome in circumstances where the repetitive and/or forceful activities did not cease more than 30 days before the clinical onset of the carpal tunnel syndrome.
Unlike HNPP, there is a Statement of Principles determined by the Repatriation Medical Authority in respect of carpal tunnel syndrome. It is common ground that SoP No. 7 of 2013 is the relevant SoP in this case. Applying s 120A(3) of the VE Act, I may only find that there is a reasonable hypothesis connecting Mr Hunt’s carpal tunnel syndrome with his service only if the SoP upholds the hypothesis. It is agreed by the parties that the issue in dispute is whether the hypothesis is consistent with factor 6(a) of the SoP.
SoP No. 7 of 2013 provides relevantly:
6The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting carpal tunnel syndrome or death from carpal tunnel syndrome with the circumstances of a person’s relevant service is:
(d)performing any combination of repetitive activities or forceful activities with the affected hand for at least 130 hours within a period of 120 consecutive days before the clinical onset of carpal tunnel syndrome, and where the repetitive or forceful activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome;
Within the provisions of 6(a) of the SoP, the only issue in dispute is whether the activities ceased more than 30 days before the clinical onset of carpal tunnel syndrome. The resolution of this point relies on the determination of the time of clinical onset of the condition.
The term clinical onset was considered in Lees v Repatriation Commission (2002) 125 FCR 331, in which the Full Court of the Federal Court referred with apparent approval to the decision of Branson J in Repatriation Commission v Cornelius [2002] FCA 750, in which the parties did not dispute the correctness of the following statement regarding the meaning of clinical onset:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.”
The Respondent contends that, assuming that Mr Hunt did experience pins and needles, commencing between November 1969 and March 1970, that symptom alone would not be sufficient to enable a doctor to have said that Mr Hunt suffered carpal tunnel syndrome at that time.
The Respondent further relied on the evidence that when Mr Hunt presented to Dr Kraemer in 2011, he reported a longstanding problem with hand weakness and on examination was found to have mild weakness with finer abduction and finger flexion of the fourth and fifth digit but also weakness with opposing movement of thumb and fingers. Dr Kraemer said this raised the possibility that Mr Hunt had a combination of ulnar and carpal tunnel syndrome, and referred Mr Hunt for nerve conduction studied to look at this. Ultimately Dr Kraemer referred Mr Hunt for an MRI, which confirmed the diagnosis of carpal tunnel syndrome.
The definition of clinical onset set out in the decision in Cornelius and referred to in Lees above provides two separate circumstances for determining the clinical onset:
·when a person becomes aware of some feature or symptom which enables a doctor to say the disease or injury was present at that time; and
·when a finding is made on investigation which is indicative to a doctor of the disease or injury being present.
In this case the evidence of Mr Hunt, not contested, is that he first became aware of pins and needles and a paralysis in his leg in the period of time from November 1969 to May 1970. I have also the evidence of Professor Chambers that Mr Hunt’s symptoms, as described, could well be the earliest manifestation of his HNPP because he may have had carpal tunnel syndrome at that stage (Transcript p 67 lines 33-36).
The Respondent contends that Professor Chambers’ opinion that Mr Hunt may have had carpal tunnel syndrome at that time does not point to the symptoms, if observed by a doctor in 1969 or 1970, warranting a conclusion that Mr Hunt suffered from the condition at that time. I accept, however, that the fact that Professor Chambers was able to arrive at his opinion, based on the evidence of the symptoms manifest at that time, shows that the symptoms enabled a doctor to say that the carpal tunnel was present at the time.
As a result I am satisfied that the clinical onset of the carpal tunnel syndrome is contemporaneous with the Mr Hunt’s use of the adding machine. I am satisfied that the use of the adding machine had not ceased more than 30 days before the clinical onset of his carpal tunnel syndrome and that therefore the provisions of factor 6(a) of the SoP are satisfied. I accept that the hypothesis is upheld by the relevant SoP and sub-section 120A(3) is satisfied and consequently that sub-section 120(3) of the VE Act is satisfied.
Application of s 120(1) of the VE Act
I must now apply the provisions of sub-section 120(1) of the VE Act which require me to determine that Mr Hunt’s carpal tunnel syndrome was a war-caused injury unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I am again guided by the High Court decision in Bushell set out above.
As all the medical evidence points to the possibility of a connection of Mr Hunt’s carpal tunnel syndrome with his operational service, I can not be satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved.
Accordingly, I can not be satisfied beyond reasonable doubt that there is sufficient ground to determine that Mr Hunt’s carpal tunnel syndrome was not caused by the circumstances of his operational service. In accordance with the provisions of sub-section 120(1) of the VE Act I must determine that Mr Hunt’s carpal tunnel syndrome is a war-caused injury.
Summary of Findings
I find 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.
DECISION
I set aside the decision of the VRB made on 9 September 2014 and in substitution decide 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.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of
Brigadier (Retired) C Ermert, Member
....................................[sgd]....................................
Associate
Dated: 18 May 2017
Date final submissions received 8 March 2017 Counsel for the Applicant Ms F Spencer Solicitors for the Applicant Williams Winter Solicitors Counsel for the Respondent Ms Z Maud Solicitors for the Respondent Australian Government Solicitor
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