John Hogben and Repatriation Commission
[2012] AATA 878
•13 December 2012
[2012] AATA 878
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/5237
Re
John Hogben
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr W Isles, MemberDate 13 December 2012 Place Sydney The decision under review is affirmed.
......[Sgd]..................................................................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – ischaemic heart disease - atrial fibrillation - dyslipidaemia – veteran claimed dyslipidaemia treated inappropriately while on operational service – whether hypothesis that Veteran's treatment of condition was inappropriate reasonable – Tribunal satisfied beyond reasonable doubt that dyslipidaemia not inappropriately treated while on operational service
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 70(5)
CASES
Repatriation Commission v Yates (1995) 38 ALD 80
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 90 of 2007
Repatriation Medical Authority, Statement of Principles No 20 of 2003
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member13 December 2012
John Hogben served in the Royal Australian Navy between 5 July 1963 and 11 September 1988. He had operational service on HMAS Melbourne in Vietnamese waters during some periods in 1968. He has eligible Defence Service from 7 December 1972 to 11 September 1988.
In 2000 Mr Hogben suffered a heart attack and subsequently had a coronary bypass operation. Post operatively he developed atrial fibrillation. He contends that his ischaemic heart disease and his atrial fibrillation are defence caused.
Given that the events on which this application centres span the period of 1984 to 1988, there is no controversy that the applicable standard of proof is that of reasonable satisfaction. Nor is there any dispute that Mr Hogben suffers from ischaemic heart disease and from atrial fibrillation. The dispute concerns whether these conditions are related to his defence service.
There are Statements of Principles (SoPs) in place for ischaemic heart disease and for atrial fibrillation. In respect of ischaemic heart disease, Mr Hogben relies on factor 5(f) of SoP No. 90 of 2007 which requires having dyslipidaemia before the clinical onset of ischaemic heart disease. In respect of atrial fibrillation, Mr Hogben relies on factor 5(b) of SoP No. 20 of 2003 which requires having ischaemic heart disease before the clinical onset of atrial fibrillation. The connection with service of Mr Hogben’s atrial fibrillation will thus depend on the connection with service of his ischaemic heart disease.
Dyslipidaemia is not the subject of any SoP. Therefore we must find connection with service, and hence liability, by reference to the Veterans’ Entitlements Act. In particular, section 70(5) requires that the relevant disease or injury “was contributed to in a material degree by, or was aggravated by” service.
Mr Hogben contended that he received inappropriate medical treatment while in service. Initially he sought to characterise this as an aggravation of his dyslipidaemia and then, in view of records that showed an improvement rather than a worsening between a blood test in 1984 and another in 1988, sought to characterise it as material contribution.
The Commission disputed that any treatment received by Mr Hogben was inappropriate and contended that, in any event, the treatment constituted neither aggravation of nor material contribution to his dyslipidaemia.
The issues for us to consider are whether:
(i)the treatment received by Mr Hogben, if inappropriate, aggravated or materially contributed to his dyslipidaemia; and
(ii)if so, whether it was inappropriate treatment.
DID THE TREATMENT AGGRAVATE OR MATERIALLY CONTRIBUTE TO MR HOGBEN’S DYSLIPIDAEMIA?
We leave aside, for the purpose of considering this issue, the question of whether the treatment given to Mr Hogben was appropriate.
In 1984 a blood test administered to Mr Hogben yielded a triglycerides reading of 6.2. In 1988 a blood test yielded a reading of 4.8. In 1984 Mr Hogben’s cholesterol level was 6 and then in 1988 it had risen to 6.2. However, Professor O’Rourke characterised this rise as insignificant and no greater than the margin of error for the test. It is settled law (Repatriation Commission v Yates (1995) 38 ALD 80) that aggravation involves a worsening of symptoms. The blood test in 1988 shows an improvement. A question mark appears after the word “fasting” on the 1988 report and so a question arises about the accuracy of the test. However, the evidence of Professor O’Rourke, cardiologist, was that the consumption of food will raise triglyceride levels and so, it may be that if the test was not done after fasting the fasting result may have been even lower, showing an even greater improvement. We note that the record of the 1984 test makes no mention of fasting, but raises no question about it. In any event, because the 1988 test shows an improvement there can have been no aggravation.
Mr Hogben attempted to characterise the treatment he contended was inappropriate as the foregoing of an opportunity to reverse (as Professor O’Rourke said was possible) his dyslipidaemia. In Mr Hogben’s view, not enough was done by his treating doctors. This argument still fails because there had been no worsening of the condition, according to the available test records and so it could not be said that his medical care had “contributed to” his dyslipidaemia. Mr Hogben’s complaint was, in effect, similar to a complaint of an “inability to obtain appropriate clinical management,” a common factor in SoPs. Of course, as mentioned earlier, there is no SoP for dyslipidaemia and, in the absence of worsening, no such failure can be pointed to as a causative, that is, aggravating or contributing event or omission.
WAS MR HOGBEN’S TREATMENT INAPPROPRIATE?
Strictly, it is not necessary to consider this issue, given our conclusion above. However, we do so for completeness and in case our conclusion in relation to the first issue is wrong.
Professor O’Rourke considered the treatment given to Mr Hogben was appropriate. He noted that the report of the 1984 blood test included the note: “Patient advised to see Dietician regarding diet and to increase exercise program.” He considered this to be appropriate advice. The test report also notes: “Raised triglycerides. Rpt lipid estimates. Nil significant problems.”
Professor O’Rourke said that if he had seen a patient in 1984 with Mr Hogben’s triglyceride levels he would have expressed his concern about lifestyle, weight, drinking and exercise and treated the condition with lifestyle management only. He said he would refer a patient to a dietician only if the patient had difficulty taking steps to modify his food. He said he would generally, if referring to a dietician, suggest that the patient’s wife also attend any appointment with a dietician. He said he would set some goals for weight and drinking management and exercise and fully brief the patient on lifestyle factors.
Professor O’Rourke said dyslipidaemia is a reversible disease and a change of lifestyle could result in an improvement in triglyceride levels in a matter of weeks. He also said that is dependent on the patient’s co-operation with advice. He said that a review should have taken place a year or two later.
Professor O’Rourke said it would be normal procedure for a medical practitioner to check back through a patient’s notes to see whether there were any outstanding matters to be followed up and it would be desirable to monitor triglyceride levels if there had been a history of excessive intake of alcohol or weight gain.
Professor O’Rourke said the state of medical knowledge about the significance of triglyceride levels in 1984 was the same as it is now but there were no drug therapies available and all that could be done was to make lifestyle changes.
Mr Hogben’s evidence was that when he was stationed in Perth in 1984 and 1985 his day to day administration was performed by the RAAF. Initially he said he was “not allowed” to go off base for medical treatment, but he later explained that if medical treatment, for example, an optometrist, was only available off base he would obtain the necessary service that way and be reimbursed by the authorities. He also said there was no prohibition on his obtaining other medical services not available on base, but he would not be reimbursed for them. He said there were no dieticians employed on base. However, there were physical trainers, but he was never placed under a physical training program while he was in Perth.
Mr Hogben said he was never aware that he was at risk of heart disease and has no recollection of ever being made aware of it. He did not recall the 1984 consultation or the blood test and does not recall being told about his triglyceride levels or about diet or exercise. He also has no recollection of being told about his triglyceride or cholesterol levels in 1988.
Mr Hogben maintained that if he had known he would have followed the directions and advice of the medical officers. He said he had regular six monthly medical examinations in service and has no recollection of whether he had other blood tests. He said he cannot remember any blood tests at all. He said that in the 12 years after his discharge in 1988 and before his heart attack, he attended his general practitioner only when he was sick or injured. He said he does not recall any blood tests during those 12 years.
Mr Hogben said he considered his diet was healthy in 1984 and that his exercise was sufficient. He maintained that if he had been referred to a dietician he would have gone. He said he only became aware of the significance of triglycerides after he had his heart attack in 2000.
We accept the evidence of Professor O‘Rourke that the treatment given to Mr Hogben was appropriate. We accept the record of the advice given to him about diet and exercise as evidence of that advice, notwithstanding that he cannot recall it. However, we note that the 1984 record recommends follow up testing and there is no evidence of this having been done until 1988 in spite of Mr Hogben having six monthly physical examinations. Professor O’Rourke’s evidence was that follow up testing should be done within one to two years. We also note that it was recommended that Mr Hogben see a dietician, but no referral to a dietician was made. Mr Hogben left service with no real understanding of his dyslipidaemia. This is not best practice. We note Professor O’Rourke’s evidence that he would have given the advice forcefully and that he would have made a formal referral to a dietician known to him. The treatment given to Mr Hogben was not optimal.
DECISION
For the reasons set out above, we conclude that Mr Hogben’s dyslipidaemia was not defence caused. It follows that the relevant factor is not satisfied and his ischaemic heart disease is also not defence caused. As a consequence his atrial fibrillation is not defence caused.
The decision under review is affirmed.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr W Isles, Member. .....[Sgd]...................................................................
Associate
Dated 13 December 2012
Date of hearing 21 November 2012 Advocate for the Applicant Mr P Ellis, ESO Advocacy NSW Inc Advocate for the Respondent Mr N Bunn, DVA Advocacy
1