John Hogben and Repatriation Commission - [2012] AATA 878

[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, Member

Date 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, Member
13 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading John Hogben and Repatriation Commission

Details

AGLC: John Hogben and Repatriation Commission [2012] AATA 878
Case: [2012] AATA 878
Decision Date: 13 December 2012

CaseChat Overview and Summary

John Hogben, a veteran, was involved in a dispute with the Repatriation Commission regarding his entitlements as a result of his ischaemic heart disease, atrial fibrillation, and dyslipidaemia. Hogben alleged that his dyslipidaemia had been treated inappropriately while he was on operational service. This case was brought before the tribunal, which had to determine whether the hypothesis that Hogben’s treatment of his condition was unreasonable was reasonable. The tribunal also had to decide whether Hogben’s ischaemic heart disease and atrial fibrillation were defence caused.

The tribunal found that the evidence provided by Professor O‘Rourke indicated that the treatment given to Hogben was appropriate. The tribunal accepted the record of the advice given to Hogben about diet and exercise, even though he could not recall it. However, the tribunal noted that the 1984 record recommended follow up testing, which did not occur until 1988 despite Hogben having six monthly physical examinations. Professor O’Rourke’s evidence was that follow up testing should be done within one to two years. The tribunal also noted that it was recommended that Hogben see a dietician, but no referral to a dietician was made. Hogben left service with no real understanding of his dyslipidaemia, which was not considered best practice. The tribunal concluded that the treatment given to Hogben was not optimal.

Based on the evidence presented, the tribunal concluded that Hogben’s dyslipidaemia was not defence caused. As a result, the relevant factor was not satisfied, and his ischaemic heart disease was also not defence caused. Consequently, his atrial fibrillation was not defence caused. The decision under review was affirmed.

No additional orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/5237
Re	John Hogben
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member Dr W Isles, Member
Date	13 December 2012
Place	Sydney