Husband and Repatriation Commission - [2002] AATA 390

DECISION AND REASONS FOR DECISION [2002] AATA 390

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/4

VETERANS APPEALS DIVISION        )
           Re      NEIL FRANCIS HUSBAND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date24 May 2002
PlacePerth

Decision      The decision under review is affirmed.
  ......….Sgd. Mr J. Handley............
  Senior Member
CATCHWORDS
Veterans Entitlements - Chronic fatigue syndrome - whether applicant had an inability to obtain appropriate clinical management - decision affirmed.
Veterans Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988
Johnston v Commonwealth of Australia (1982) 43 ALR 559.
Lee v Minister of Pensions No. 2 (1948 3 War Pensions Appeals Reports 1901)
Brew v Repatriation Commission 1999 FCA 1246
Re Crowe and Repatriation Commission (1999) AATA 115

REASONS FOR DECISION

24 May 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board ("VRB") made on 16 September 1999, where it was then decided that Chronic Fatigue Syndrome was not defence caused. In making its decision, the VRB affirmed a decision of the respondent previously made on 17 November 1998.
At all relevant times the applicant served within Australia and that service may relevantly be regarded as "defence service". Accordingly, any entitlement of the applicant is to be determined upon the balance of probabilities.
Having regard to the documents filed, it appears that it is not in dispute that the applicant suffers the condition of chronic fatigue syndrome. Additionally, it appears that that condition is a sequel to an accepted disability of leptospirosis. Additionally, I note that the condition of leptospirosis has been accepted by the Military Compensation and Rehabilitation Service on behalf of the Department of Defence, as an injury, which arose out of or in the course of the employment. This has given rise to an entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988.
It is also to be noted that the applicant has been a party to proceedings before this Tribunal, with respect to a claim for intermediate or special rate pension (1999 AATA 214). The Tribunal then determined that it could not consider chronic fatigue syndrome in the assessment of pension, because it had not been accepted as defence caused. The applicant appealed that decision to the Federal Court ([2000] FCA 356) and then to the Full Federal Court ([2000] FCA 1276). The single judge of the Federal Court dismissed the appeal against the decision of the Tribunal. The Full Federal Court dismissed the appeal against the decision of the single judge.
Having regard to the date that this application was made upon the respondent, a Statement of Principles must be considered. The only applicable Statement of Principles for chronic fatigue syndrome published with respect to defence service is Instrument No. 91 of 1997. This Instrument revoked Instrument No 287 of 1995.
Factor 5(a) provides that one of the three listed factors "must exist before it can be said that on the balance of probabilities chronic fatigue syndrome ….. is connected with the circumstances of a persons relevant service". The only applicable factor is 5(c) which provides-
"Inability to obtain appropriate clinical management for chronic fatigue syndrome".
Paragraph 6 of the Instrument provides-
"Paragraph 5(c) applies only to material contribution to or aggravation of chronic fatigue syndrome where the persons chronic fatigue syndrome was suffered or contracted before or during (but not arising out of) the persons relevant service;
Paragraph 8(1)(e), (9)(1)(e) or 70(5)(d) of the Act refers".
The documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 indicate that on 15 September 1993 the applicant was found to have suffered malaria, glandular fever and North Queensland tick typhus. On this date he also presented with leptospirosis (page 66). On 6 October 1993, the leptospirosis had apparently improved (page 67). On 9 August 1994, Dr Prentice the Director of Immunology at the Royal Brisbane Hospital, reported that the applicant had a history of leptospirosis (page 75). That opinion was confirmed in further reports of 26 August 1994 and 4 January 1995 (page 78 and 80). Eventually the applicant made a claim for compensation under the Safety, Rehabilitation & Compensation Act. That claim was accepted on 28 February 1997, with effect from 9 June 1993. On 15 November 1995, Mr Husband made an application for invalidity retirement by reason of chronic fatigue syndrome described as being 'post leptospirosis' (page 90). In a letter dated 3 November 1998, (page 108) a Departmental Medical Officer provided a report that there was "no doubt" that the applicant did suffer from chronic fatigue syndrome and that it was service related. A further opinion was expressed that a combination of chronic fatigue syndrome and low back pain contributed to the applicant being medically discharged from the army.
On 26 February 1997, (page 115) Dr Whiting, who is a specialist in infectious diseases, reported to the Compensation and Rehabilitation Division of the Department of Defence that the applicant had suffered from acute leptospirosis in June 1993. Dr Whiting also reported that the applicant had subsequently suffered "post infection chronic fatigue symptoms" as being: reduced physical stamina, cognitive disturbances, generalised myalgias and arthralgias, headaches, various abdominal symptoms compatible with irritable bowel syndrome, dizziness, faintness and other autonomic symptoms and mood swings including irritability and temper outbursts.
Having regard to the medical evidence filed and to a recent report of Doctor Golledge dated 28 February 2002, I am satisfied and find as a fact that the applicant did suffer form chronic fatigue syndrome following the condition of leptospirosis.
The provisions, however, of the 1994 amendments to the Veterans Entitlements Act permit the condition of chronic fatigue syndrome only to be accepted as war-caused if there is satisfaction of a relevant factor in a Statement of Principles (refer s.120B of the Veterans' Entitlements Act 1986). Having regard to factors 5(a) & (b), I am not satisfied that the applicant did ever suffer from Epstein-Barr virus or Ross River virus. Accordingly chronic fatigue syndrome will only be connected to service, on the balance of probabilities if factor 5(c) exists, namely, inability to obtain appropriate clinical management.
In evidence, the applicant said that the inability to obtain appropriate clinical management was the equivalent of the failure to treat or diagnose the condition. He said he was poorly treated by Doctors within the Army, who returned him to active service. Mr Husband said that at the time he was initially being treated, he thought the advice of his Doctors was "appropriate". He believed that he was being treated for leptospirosis. He said, "if I knew then it was not, I would have done something earlier". The appropriate treatment, as the applicant now understands it, was rest and to not have been returned to service.
Eventually, the applicant became dissatisfied with treatment received from Doctors engaged by the army. He obtained a referral to Doctor Whiting, a specialist in infectious diseases.
In his written submissions lodged subsequent to the hearing, Mr Husband relied on the High Court decision of Johnston v Commonwealth of Australia (1982) 43 ALR 559. Mr Husband relies on the following part of the decision of the High Court (not identified)-
"Cases where the man has reported sick but has not been treated with the same skill and expedition of facilities as he would have been in civilian life as for instance where the disease has not been diagnosed or treated as early as it should have been or where the disease occurs at a place overseas…. In such cases if he has not been properly treated any ensuing aggravation would be due to war service".
Mr Husband submitted this supported his contention that the condition should have been diagnosed by a competent medical practitioner, that he was not treated with the skill and expertise that would have otherwise been given to a civilian and as a result of that treatment the condition worsened. An examination of the Johnston decision indicates that the above passage is recited at page 563 and originates in a British decision of Lee v Minister of Pensions No. 2 (1948 3 War Pensions Appeals Reports 1901).
The respondent, in its facts and contentions, submitted that the appropriate clinical management should be that which applied at the time of treatment, having regard to prevailing or existing standards. Reliance is made upon part of Dr Whitings report that there were no reliable treatments for the condition of chronic fatigue syndrome at 1997, irrespective of whether the condition had been properly diagnosed. Additionally, it was submitted that the applicant was never precluded from obtaining medical treatment or advice from Doctors outside of the Department of Defence.
Conclusion & Reasons For Decision
I am not satisfied that the Johnston decision has application in the present case. It is my view that it is more applicable in workers compensation applications, rather than entitlements of veterans for pension as determined under the Veterans Entitlements Act 1986.
Additionally, the Court was concerned with a circumstance where there was a failure to diagnose and treat a particular condition, which resulted in a worsening or aggravation of that condition. In the present case, the applicant was treated for leptospirosis and it was subsequently determined that he also suffered the condition of chronic fatigue syndrome. There is nothing to point to any failure on the part of the applicant's medical practitioners to diagnose and treat the condition of chronic fatigue syndrome. There is certainly nothing which would indicate that there has been any worsening or aggravation of the condition had it been diagnosed. Doctor Whiting in his report of 26 February 1997, (page 115) concluded that at that time there were "no reliable treatments for chronic fatigue syndrome".
The applicable factor in the Statement of Principles is concerned with whether the applicant had an inability to obtain appropriate clinical management for chronic fatigue syndrome. I am satisfied there has not been any inability on the part of the applicant to obtain appropriate clinical management. This is due to the fact that there was no prohibition upon the applicant obtaining medical advice from any doctor of his choosing. Also, in 1997 there was apparently no known treatment for chronic fatigue syndrome (refer p.119).
The expression "inability to obtain appropriate clinical management" has been decided on many occasions in this Tribunal and upon review in the Federal Court.
A majority of the Full Federal Court in Brew v Repatriation Commission 1999 FCA 1246 decided that the Judge at first instance was correct in his decision as to the meaning of the word "inability". At paragraph 26 Merkel J said-
"In my view Sundberg J was quite correct in treating the meaning of "inability" in clause (1)(e) as lack of ability; lack of power, capacity, means". (Macquarie dictionary) second edition 1999 (or "the condition of being unable; lack of ability, power or means") (new shorter Oxford Dictionary 1993). The Dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier, such as the "condition of being unable". Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case".
Having regard to the comments Dr Whiting's report, it is unlikely that in 1993 and 1994 the applicant had any "inability" to obtain appropriate clinical management for chronic fatigue syndrome, when in 1997 there were "no reliable treatments" (page 119).That is to say, even if it had been diagnosed in 1993 or 1994, there would then have been "no reliable treatment".
The years 1993 and 1994 are applicable because Dr Whiting, in his report of 26 February 1997, found chronic fatigue symptoms existed from 18 June 1993. This could only have been diagnosed on the basis of the applicant's history given that the first consultation with him was on 19 November 1994. The date 18 June 1993 appears at pages 59 and 60 where on review that day, the applicant's symptoms were then reported as "still sleeping a lot. Liver palpable. Spleen impalpable. FBC as per PN12 of day. Viral serology repeated".
I cannot make any finding as to when the applicant and/or the employer were notified of the diagnosis of chronic fatigue syndrome. Dr Whiting, in his report of 26 February 1997 refers to chronic fatigue symptoms and whilst he concludes that those symptoms are compatible which chronic fatigue syndrome, the date stamp for receipt of that report is 17 August 1998. Doctor Luke a medical officer in the employ of the defence health service branch, found chronic fatigue syndrome in a letter of 3 November 1998 apparently by reference to the applicant's medical records. A reference is made on 15 November 1995 to the applicant having the condition of "chronic fatigue" (p. 90). A medical officer on 11 May 1995 referred to the applicant having consulted Dr Whiting "privately" yet no diagnosis of chronic fatigue syndrome is recorded (p. 12).
In Re Crowe and Repatriation Commission (1999) AATA 115 an issue emerged as to determining the appropriateness of clinical management at a point in time later than the time where the management actually occurred. At paragraph 40 of Re Crowe the Tribunal concluded-
"It follows that the existence in the 1990's of medical knowledge regarding the diagnosis and treatment of hypertension and its subsequent effects has no application when considering whether there was an inability to obtain appropriate clinical management in the 1940's. …. it follows that the late veteran did not suffer any inability to obtain appropriate clinical management solely by reason of serving as a member of the armed forces between 1942 and 1944. He was regularly examined by Doctors whilst he was a member of the armed forces and there is nothing to indicate that his clinical management within the service was anything other than that other than what was appropriate at the time".
In all of the circumstances, I am not satisfied that there was any inability to obtain appropriate clinical management.
The decision under review must be affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ...C. Irons ...........................
  Secretary
Date/s of Hearing  15 November 2001
Date of Decision  24 May 2002
Counsel for the Applicant         self represented
Solicitor for the Applicant
Counsel for the Respondent    Mr C. Ponnuthurai
Solicitor for the Respondent