Jeffrey and Repatriation Commission

[2006] AATA 565

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/163

VETERANS' APPEALS   DIVISION		)
Re		ANTHONY TREVOR JEFFREY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-Time Member)

Date27 June 2006  

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans’ Affairs – disability support pension – cerebral ischaemia – whether war-caused – reasonable hypothesis – must be more than a possibility.

Veterans’ Entitlements Act 1986 – s120(1),(3)

Re East and Repatriation Commission (1987) 11 ALD 161

Repatriation Commission v Deledio (1998) 48 ALD 193

REASONS FOR DECISION

27 June 2006 Ms A F Cunningham (Part-Time Member)         

1.          Anthony Jeffrey has sought the review of a decision which accepted his conditions of sensorineural hearing loss of the right ear, bilateral tinnitus and osteoarthrosis of the left and right knee as war-caused disabilities but determined that his condition of cerebral ischaemia was not war-caused.   Mr Jeffrey’s rate of pension was increased to 60% of the General Rate.    A senior delegate amended the original decision by substituting bilateral sensorineural loss for sensorineural hearing loss of the right ear.   The decision was affirmed by the Veterans’ Review Board on 9 July 2004.     On 2 January 2005 the applicant was granted an extension of time for the lodging of his appeal to this Tribunal.

2.          The issue for determination is whether Mr Jeffrey’s cerebral ischaemia is war-caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).   It was not in dispute that Mr Jeffrey suffered from this condition.   What the Tribunal must determine is whether Mr Jeffrey’s cerebral ischaemia was as a result of an exercise during which he collapsed whilst on service in Darwin in April 2000.

3.          Mr Jeffrey’s peacekeeping service between 27 September 1989 and 6 February 1990 was accepted as was his period of eligible service between 15 March 1983 and 6 July 2003.

4.          It was Mr Jeffrey’s evidence that at the time of his enlistment in the army his level of fitness was high and he engaged in many different types of ball sports including rugby, Aussie rules and touch football.

5.          Mr Jeffrey contended that his cerebral ischaemia is a consequence of having collapsed during a Combat Fitness Assessment (CFA) when he became dehydrated.   He said that the CFA involved a 15 kilometre walk in humid conditions which commenced at around 4.30 am on a date in April 2003.   Mr Jeffrey said that he was unaware of the temperature but that the humidity was around 97%.   He had consumed approximately 2 litres of water before commencing the walk and another 5 litres over the course of the walk and he sweated profusely.   Mr Jeffrey recalled starting to fall behind at around the 5 kilometre mark.   At around the 7 kilometre mark he said that the medical officer had noticed that something was wrong with him and that he was apparently walking around in little circles.   He then collapsed in a heap, was put on a stretcher and taken to the medical centre in Darwin.   He understood that his core temperature was very high and he was put on an intravenous drip of saline.    He was later told that he had received approximately 5 bags of fluid.   His recollection of the event is scant.    He was under observation for several hours and sent back to the barracks at around 2 pm that same day.   He resumed his duties at around 7 am the following day because “he felt fine’.

6.          For it to be accepted as a war-caused injury, Mr Jeffrey’s condition must either have resulted from an occurrence that happened whilst he was rendering operational service or arisen out of, or be attributable to his service (s9 Veterans’ Entitlements Act 1986 (“the Act”)).

7. The Tribunal must make its assessment in accordance with the standard of proof provisions in the Act as contained in Part VIII. The relevant standard of proof is that contained in s120(1) of the Act which states that the Tribunal shall determine that the injury was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The provisions of sub-section (3) provide that the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury was war-caused after considering the whole of the material before it and being of the opinion that the material does not raise a reasonable hypothesis connecting the injury with the circumstances of the particular veteran’s service. Sub-section 120(4) requires the Tribunal to decide the matter to its reasonable satisfaction.

8.          As Mr Jeffrey’s claim was made after 1 June 1994 the provisions of s120A state that the reasonableness of a hypothesis is to be assessed by reference to the Statement of Principles.    The hypothesis in the current case is that Mr Jeffrey’s ischaemia is a result of an incident during which he collapsed due to dehydration whilst on service in April 2003.

9.          The Statement of Principles for cerebrovascular accident is a consolidation of Instrument No 53 of 1999, Instrument No 31 of 2002 and Instrument No 53 of 2003.

10.        Paragraph 5 contains the factors that must exist before it can be said on the balance of probabilities that cerebrovascular accident is connected with a person’s service.   Subsection (k) contains the factors that relate to cerebral ischaemia.  The factor relevant to Mr Jeffrey’s circumstances is contained in paragraph (x) which reads:

“experiencing an acute hypotensive episode within the 24 hours immediately before the clinical onset of cerebrovascular accident.”

11.        It was not contended that any of the other factors are relevant to Mr Jeffrey’s circumstances and the Tribunal finds accordingly.

12.        It was Mr Jeffrey’s evidence that during a medical examination which took place approximately one month after the incident during which he collapsed, problems with his side vision were identified and he was consequently referred for further medical examination.     During his medical examination with Dr Fisher which took place 2 or 3 years after the incident, Mr Jeffrey was informed that he had suffered a stroke.   When Mr Jeffrey inquired as to whether it could have happened around the time of the collapse incident, Mr Fisher responded that it was possible.

13.        Unfortunately Dr Fisher was not present to give oral evidence before the Tribunal, but 2 of his reports were submitted in evidence.

14.        On 3 July 2001 Dr Fisher stated in a report to Dr Burman, Robertson Barracks Medical Centre:

“I think in all likelihood we will not find a cause for Anthony’s stroke …”.

15.        In a letter to Mr Jeffrey dated 25 October 2003 Dr Fisher stated:

“I refer to your correspondence dated 16 October 2003; you ask as to whether this infarct could have been caused during a period of dehydration in April 2000.    This is a very difficult question, but the short answer is that it is possible.    In medico legal matters, one talks in terms of likelihoods, and in this respect I would be very reluctant to try and quantify a probability and I would anticipate that ten different doctors will give you ten different degrees of likelihood!

So in answer to your question, yes it is possible, but how likely the association will be impossible to prove.”

16.        No oral evidence was called on behalf of the respondent, but the Tribunal had the benefit of the T documents which were tendered in evidence.     Included was a report from Dr Henry Brigden dated 29 September 2003 in which he stated:

“… Although there may be other causes particularly tumours, the CT Scan and Dr Fisher’s report (folios 98 and 99), indicate an old left Occipital Infarct as the cause in this case.   We have no indication as to when that may have happened.

…

However, in relation to the contention and the RMA SOPs 52/53 of 1999, amended by 30/31 of 2002, there is nothing to confirm that what happened in April 2000 was a hypotensive crisis, or if it was, that this led, within 24 hours, to an occipital infarct which was not noticed until the routine medical examination in late May 2001.” 

17.        For a hypothesis to be reasonable it must be supported by more than a possibility.     The Tribunal in its decision Re East and Repatriation Commission 1987 11 ALD 161 stated at page 184:

“A `reasonable hypothesis’, given that parliament has chosen to use that expression, and reading s120(3) as a whole, must be something more than the `real possibility’ described by Keely and Fitzgerald JJ in O’Brien, in the passage cited in para (16), supra, as left open by the evidence where there is no material in respect of a fact or the material leaves the existence of the fact unknown.”

18.      The conclusion that the hypothesis must be supported by known facts and be more than a possibility in order to be a reasonable hypothesis has been followed by   subsequent decisions of the Tribunal (see Re Salter and Repatriation Commission (2000) AATA 690.

19.      The full Federal Court in Repatriation Commission and Deledio (1998) 49 ALD 193 recorded four stages that must be satisfied in order to determine that a hypothesis is reasonable. The first stage being as follows:

The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.    No question of fact finding arises at this stage.   If no such hypothesis arises, the application must fail.”

20.      In the current case the only evidence pointing to a connection between the applicant’s condition and his service is the untested statement of Dr Fisher that it is possible that the infarct was caused during the period of dehydration, but that he could not quantify a probability and would be reluctant to do so.

21.      For the connection to be made between the cerebral ischaemia and Mr Jeffrey’s service, the Statement of Principles requires that an acute hypotensive episode be experienced 24 hours immediately before the clinical onset of a cerebrovascular accident.   There is no evidence before the Tribunal to support this criteria.   The Tribunal is not satisfied that Dr Fisher’s evidence supports a reasonable hypothesis connecting Mr Jeffrey’s condition with the circumstances of his service.    It follows therefore that no hypothesis arises and the application cannot succeed.    For the above reasons the appeal is dismissed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-Time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  27 April 2006
Date of Decision  27 June 2006
Counsel for the Applicant         Mr Geoff Ralph    
Solicitor for the Applicant           Veterans’ Advocate
Counsel for the Respondent     Mr Michael Castle
Solicitor for the Respondent     Department of Veterans' Affairs