Kay and Repatriation Commission - [2001] AATA 612

DECISION AND REASONS FOR DECISION [2001] AATA 612

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1997/1115
N1998/960

VETERANS' AFFAIRS DIVISION        )
           Re      LESLIE WALTER KAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member, Mr M J Sassella

Date2 July 2001
PlaceSydney

Decision      The decisions under review are affirmed.
  [Sgd]    M J Sassella
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Whether Applicant's systemic lupus erythematosus (SLE), diabetes mellitus, and non-hodgkins lymphoma were war caused – did exposure to solvents cause SLE - standard of proof is balance of probabilities
Veterans' Entitlements Act 1986 - ss 14, 20(1), 68(1) [paragraph (a) of definition of "defence service"], 69(1)(a), (c), 70(1)(b), (d), 71(1), (2), 120(4), 120B(1), (3), (4)
Statement of Principles No 80 of 1994 concerning non-Hodgkin's lymphoma
Statement of Principles No 176 of 1996 concerning non-Hodgkin's lymphoma
Statement of Principles No 81 of 1999 concerning non-Hodgkin's lymphoma
Statement of Principles No 188 of 1996 concerning diabetes mellitus
Statement of Principles No 48 of 1996 concerning diabetes mellitus

Repatriation Commission v Keeley (2000) 98 FCR 108
Gorton v Repatriation Commission [2001] FCA 286

REASONS FOR DECISION

2 July 2001 Senior Member, Mr M J Sassella

History of the Application

On 1 April 1996 Leslie Walter Kay ("the Applicant") lodged with the Respondent a claim for an increase in the rate of Disability Pension in respect of non-Hodgkin's lymphoma ("NHL") (N97/1115 T4, folio18).
On 23 May 1996 a delegate of the Respondent refused this claim and decided that the Applicant's pension would be continued at 10% of the general rate (N97/1115 T2). The Applicant's pre-existing war caused disability is sensori-neural deafness which attracted payment of a pension in 1980.
On 4 June 1996 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review of the decision of the delegate (N97/1115 T4, folio 34). He argued in his reasons that many cases of NHL manifested after discharge. He further stated that his treatment of lupus with Prednisone may have delayed the onset. He stated that he had been exposed in service to solvents, that there was a lack of knowledge at the time about solvents, and that there were no safety measures in place during his period of service.
On 14 April 1997 the VRB affirmed the earlier decision of the delegate (N97/1115 T6).
On 28 August 1997 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision of the delegate (N97/1115 T1).
On 4 June 1997 the Applicant lodged with the Respondent a claim for an increase in his rate of pension because of diabetes mellitus, systemic lupus erythematosus ("SLE") and NHL (N98/960 T14).
On 4 July 1997 a delegate of the Respondent refused the claims for diabetes mellitus and SLE. The claim for NHL was not considered as it was either with the VRB or under review at the AAT (N98/960 T2).
On 1 July 1997 the Applicant lodged an informal application for review of the decision of the delegate (N98/960 T19). A formal application followed on 26 August 1997 (N98/960 T21).
On 7 August 1997 the Respondent received an additional letter from the Applicant (T97/1115 T9, folio 46). In this letter the Applicant stated that his claim was for SLE, then diabetes and NHL.
On 25 May 1998 the VRB affirmed the decision under review (N98/960 T24).
On 23 July 1998 the Applicant lodged with the Tribunal an application for review of the decision (N98/960 T1).
Other documentation
On 6 November 1998 a letter from the Defence Personnel Executive confirmed the veteran's service details and work performed as described in the Applicant's statement in the T documents (N98/960 T12). It listed the chemicals the Applicant could have been exposed to as including those containing lead, component 2N-P, Aladine, zinc chromates, isonates, phosphorous acids, and others. On 8 February 1999 the Department of Defence wrote to the Applicant (Exhibit A2) advising him that his military service was a contributing factor to his disease of NHL and that under the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act") he may qualify for an entitlement.
Hearing and Appearances
At the hearing the Applicant was unrepresented. Counsel for the Respondent in the first two days of hearing on 14 and 15 December 2000 was Miss R Henderson. Counsel for the Respondent on the last day of hearing, 2 May 2001, was Mr I Butcher.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted as evidence. Documents relating to application N97/1115 were marked as Exhibit TD1 and documents relating to application number N98/960 were marked as Exhibit TD2. The following material was also accepted into evidence and marked:

Exhibit Number     Description Date
A1      Statement of Applicant      14 December 1998
A2      Decision and documents relating to Applicant's claim for NHL under Safety Rehabilitation and Compensation Act 1998        10 March 1999
A3      Material from the Department of Defence requested for Applicant under cover letter        12 March 1999
A4      Material from Department of Defence under cover letter from Satish Rajan           15 April 1999
A5      Material from Environmental Department of Richmond Hospital
A6      Report of Dr Stubbs 23 May 1999
A7      Report of Dr Tattersall       11 June 1999
A8      Report of Professor Sambrook     27 September 1999
A9a     Report of Professor Sambrook     31 March 2000
A9b     Letter to Professor Sambrook from Legal Aid outlining questions to be answered 9 March 2000
A10     Report of Dr Tattersall      17 March 2000
A11     "Media Watch" transcript of interview with Professor Walls     23 January 2000
A12     Report of Professor Sambrook with letter from Judith Buss    Report: 5 July 2000 Letter: 27 June 2000
A13     Material downloaded from Internet by Applicant
R1      Report of Associate Professor Walls       26 February 2000
R2      Article by Kilburn and Warshaw    20 February 1991
R3      Article by Cooper et al        10 October 1998
R4      Article by Garabrant & Dumas      1 October 1999
R5      Article by D'Cruz     2000

Relevant Legislation

Relevant provisions from the Veterans' Entitlements Act 1986 ("the Act) are sections 14(1), (3), (4), 20(1), 68(1) [paragraph (a) of definition of "defence service"], 69(1)(a), (c), 70(1)(b), (d), 71(1), (2), 120(4), 120B(1), (3), (4):
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
          …
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"68 Interpretation
(1)       In this Part, unless the contrary intention appears:
Australian contingent, in relation to a Peacekeeping Force, means a contingent of that Force that has been authorised or approved by the Australian Government;
Australian member, in relation to a Peacekeeping Force, means a member of that Force whose membership has been authorised or approved by the Australian Government;
authorised travel, in relation to a member of a Peacekeeping Force, means travel authorised by the appropriate authority, being an authority approved by the Minister for the purpose;
defence service means:
          (a)       continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
…"
"69   Application of Part to members of the Forces
(1)       Subject to this section, where a person:
          (a)       has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
          (b)       is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
          (c)       if the person:
…"
70 Eligibility for pension under this Part
(1)       Where:
          …
          (b)       a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
(2)       Where:
          (a)       a member of the Forces or a member of a Peacekeeping Force has died;
          (b)       the death of the member was not defence-caused; and
           (c)     the member was, immediately before the member's death:
(i)        a member to whom subsection 22 (4) or section 24 applied by virtue of section 73; or
(ii)       a member to whom section 22, 23 or 25 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the member.
…"
"71 Application of certain provisions of Part II
(1)       Divisions 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
(2)       For the purposes of the application of Divisions 3, 6 and 7 of Part II as provided in subsection (1):
          (a)       a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
          (b)       a reference in those divisions to the death of a veteran that was war-caused shall be read as a reference to the death of a member of the Forces or a member of a Peacekeeping Force that was defence-caused;
          (c)       a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;
          (d)       a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and
          (e)       a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.
…"
"120 Standard of proof
          …
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
"120B   Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
          (b)       a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
…
(3)       In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
          (a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
          (b)       there is in force:
(i)        a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(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 (3), 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."

The relevant Statements of Principles ("SOPs") are:

Statement of Principles No 80 of 1994 concerning non-Hodgkin's lymphoma

"1. Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that non-Hodgkin's lymphoma and death from non-Hodgkin's lymphoma can be related to eligible war service rendered by veterans and defence service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that, on the balance of probabilities, non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma is connected with the circumstances of that service, are:
…
(c) having received a course on immunosuppressive drugs before the clinical onset of non-Hodgkin's lymphoma; or
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(d) must be related to any service rendered by a person.
…
4. For the purposes of this Statement of Principles:
"a course of immunosuppressive drugs" means treatment with one of a group of drugs designed to suppress the immune system;
"being infected with HIV" means serological evidence of infection with human Immunodeficiency Virus, attracting an ICD code in the range 42 to 44;
…
"non-Hodgkin's lymphoma" means a neoplastic disease of the human lymphoid tissues other than Hodgkin's disease, and attracting ICD codes of 200.0, 200.1, 200.8 and 202.
…"

Statement of Principles No 176 of 1996 concerning non-Hodgkin's lymphoma

"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about non-Hodgkin's lymphoma and death from non-Hodgkin's lymphoma.
(b) For the purposes of this Statement of Principles, "non-Hodgkin's lymphoma" means a heterogenous group of malignant neoplastic diseases arising from the lymphoid components of the immune system, the common feature of which is the absence of the Reed-Sternberg cells characteristic of Hodgkin's disease, attracting ICD code 200.0, 200.1, 200.8, 202.0, 202.1, 202.2 or 202.8. It is also known as reticulosarcoma or lymphosarcoma, and includes non-Hodgkin's lymphoma arising within parenchymal organs.
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma is connected with the circumstances of a person's relevant service are:
…
(c) having received chronic systemic immunosuppressive drug therapy within the 10 years immediately before the clinical onset of non-Hodgkin's lymphoma; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"chronic systemic immunosuppressive drug therapy" means the therapeutic administration of a drug such as cyclophosphamide, chlorambucil or azathioprine continuously for a period of at least three months, for organ transplantation; or for the treatment of a chronic immunological disorder, such as rheumatoid arthritis, Sjogren's syndrome, dermatitis herpetiformis or chronic glomerulonephritis;
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service).
…"

Statement of Principles No 81 of 1999 concerning non-Hodgkin's lymphoma

"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about non-Hodgkin's lymphoma and death from non-Hodgkin's lymphoma.
(b) For the purposes of this Statement of Principles, "non-Hodgkin's lymphoma" means a malignant neoplastic disease arising from the lymphoid components of the immune system, characterised by the absence of the Reed-Sternberg cells, attracting ICD-10-AM code C82 or a code in the range C83.0 to C83.6 or C83.8, C83.9, C84 or
C85. This definition includes non-Hodgkin's lymphoma arising within parenchymal organs and excludes Burkitt's lymphoma, plasma cell malignancy, hairy cell leukemia and chronic lymphoid leukemia.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
5. The factors that must exist before it can be said that, on the balance of probabilities, non-Hodgkin's lymphoma or death from non-Hodgkin's lymphoma is connected with the circumstances of a person's relevant service are:
…
(d) spraying or decanting a herbicide containing 2,4-dichloro-phenoxyacetic acid (2,4-D) or 2,4,5- trichlorophenoxyacetic acid (2,4,5-T) on at least 100 days, in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of non-Hodgkin's lymphoma; or
…
8. For the purposes of this Statement of Principles:
…
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
"systemic immunosuppressive drug therapy" means the therapeutic administration continuously for a period of at least three months of a drug or drugs the primary function of which is suppression of the immune response;
…"

Statement of Principles No 48 of 1996 concerning diabetes mellitus

"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about diabetes mellitus and death from diabetes mellitus.
(b) For the purposes of this Statement of Principles, "diabetes mellitus" means an endocrine disease characterised by:

(a) a fasting venous plasma glucose concentration of equal to or greater than 7.8 millimoles per litre on at least two separate occasions; or
(b) a venous plasma glucose concentration equal to or greater than 11.1 millimoles per litre both within two hours and at two hours after ingestion of 75 grams of glucose,
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person's relevant service are:
…
(c) in relation to type 2 diabetes mellitus, smoking at least 15 cigarettes per day for at least 25 years, and continuing to do so within the 10 years immediately before the clinical onset of diabetes mellitus; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642
22235 5;
…
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
…
"specified list No.1 of drugs" means:
…
(b) Glucocorticoids; or
…"

Applicant's Background and Evidence

The Applicant was born on 15 May 1929. In 1946 he started his apprenticeship as a coach painter. He completed his apprenticeship in spray painting and joined the Royal Australian Air Force ("RAAF") on 13 July 1959. He was a spray painter for the RAAF for 17 of his 20 years of service and was discharged on 20 July 1979. By the time of his discharge he had attained the rank of flight sergeant spray painter. All his service was rendered within Australia. He rendered no operational service. The exact period of his eligible or defence service is contested. He states that it was from 1959 to 1979, however the Defence Department has stated it ran from 1972 to 1979. Nothing depends upon this issue in this matter however.
In an undated statement made by the Applicant (Exhibit TD2 T12) he wrote that during his service career he spent all but three years painting service aircraft and fire tenders. He stated that all the work was in unventilated hangars and sheds and involved highly carcinogenic solvents. In his signed statement of 14 December 1998 (Exhibit A1) the Applicant stated that the hangars at Amberley were of the igloo type opening only at one end with no flow of air. The only protective clothing was a dust mask. He stated that in his next posting at RAAF Villawood the same solvents were used. The space where painting was carried out was a shed with large double wooden doors. Ventilation was via a small fan blocked by the cars being painted. He stated that he complained about the unsafe work practices but no action was taken. He stated that conditions at his next posting in Victoria were similar to Amberley except that the hangars were open at both ends and more potent paint was used, with nitrocellulose and polyurethane also being employed. Conditions at his next posting in Richmond in 1969 were again similar, but with increased use of polyurethane paints.
The Applicant then spent three years in a desk job between 1975 and 1978. His next posting was in 1978 back to Richmond. He stated that here there was an illegally high usage of solvents, toxic two pack paints and use of paint removers by spray. There was still no ventilation but there was a shower and workers had white overalls. While back at Richmond the Applicant was a hands-on spray painter, meaning that he had to strip the paint off from the aircraft.
He stated that the health and safety facilities were a bench and cold water tap that were placed some distance from where hazardous chemicals were used. The clothing issued was sand shoes, cap and one exchange of cotton overalls a year. e Tea and coffee making facilities were in the same building, without any barrier between them and the hazardous areas. It was not uncommon to use paint by the pallet, and solvent by the 44 gallon drum.
In cross-examination the Applicant stated that he was first diagnosed with the symptoms of lupus in 1982.
In Exhibit A1 the Applicant stated that some of the materials he used included paint remover, tolulene, bensol, tulol, alodine, Methylehtyl ketone, carbon tetrochloride and etching compound.
In a statement signed by the Applicant on 25 April 1997 he submitted that in his case there are no valid factors causing SLE except his exposure to toxic chemicals and compounds. The Applicant cited a report which itself was quoted in a newspaper article (Exhibit TD2 T13, folio 107) stating that this was supporting evidence for there being a delay between exposure to solvents, etc and the manifestation of the disease.
On 9 May 1997, the Applicant was informed that there was no SOP for the condition of SLE. He was further advised on 20 May 1997 that the Repatriation Medical Authority had commenced a search of the primary medical literature in the area (Exhibit TD2 T13, folios 108 and 110).
The Applicant completed and signed a smoking questionnaire dated 31 May 1997 where he stated that he commenced smoking in mid-1962. He stated that he became a regular smoker due to peer pressure and that he smoked two ounces of tobacco a week. He stated that he stopped smoking in mid-1975 (Exhibit TD2 T15). In an alcohol questionnaire completed and signed on the same date he stated that he began consuming alcohol regularly at the age of 21 and that he consumed about two or three 10 ounce glasses about twice or three times a week. He stated that he stopped because of doctor's orders after the diagnosis of lupus (Exhibit TD2 T16).
The Applicant claims that there are two possible reasons why his NHL is war caused. Both are formulated to satisfy factor 5(c) of SOP no 176 of 1996 concerning NHL. The first is that NHL developed as a direct result of solvent usage. The second is that the solvent usage by the Applicant led to SLE, which in turn led to NHL.
The Applicant cited the report of Dr Walls (Exhibit R1) as evidence that NHL and diabetes can occur as a result of treatment for SLE. He further stated that it was known and established that petrochemicals, hydrocarbons and carcinogens can bring on cancer. He claimed that it was the overuse of cleaning compounds and unsafe work practices that caused an imbalance in his immune system which then led to SLE.
He pointed to a minute from "Defence Personnel" dated 5 November (the year was not clear on the document) that confirmed unsafe work practices. It was unclear exactly what he was referring to but the Tribunal would assume that it was one of the safety regulations submitted as Exhibit A5. The Applicant also cited the journal, Toxicology Letters which contains an article by Dr D'Cruz of the Royal London School of Medicine and Dentistry as evidence that there is a progression from exposure to organic chemicals causing scleroderma rashes leading in turn to a diagnosis of SLE (Exhibit R5).
The Applicant stated that he only recognised his own illness after it was shown on television. Mike Willessee had a "sickness of the month award" on his television program which, on this occasion, he devoted to lupus. He then saw a Dr Delornay who took a blood test showing that he had SLE
The Applicant said that he was advised by the VRB that the only way he would prove his case was by showing a link between SLE and his service. Following on this, though he recognised there was no SOP for SLE, he was attempting to satisfy factor 5(c) of SOP 176 of 1996 concerning NHL.

Medical Evidence

A report of 8 April 1987 by S Kamath, an immunopathologist, stated that the symptoms of the Applicant were consistent with SLE (Exhibit TD2 T7, folio 89). A report by P O'Neill, a histopathologist, on 9 April 1987 (Exhibit TD2 T7, folio 91) stated that the Applicant had severe SLE. On 13 March 1992 the Applicant was diagnosed at Westmead Hospital with SLE (Exhibit TD2 T7, folio 88).
A medical opinion by a DVA medical officer dated 19 May 1992 (Exhibit TD2 T8, folio 93) stated that the SLE suffered by the Applicant is of a primary character. It stated that the condition does not have any special relationship to the Applicant's accepted disabilities or rejected disabilities. It stated that solvents such as toluol, tolulene, zylol, zylene and Methylethlketone peroxide are not agents known to cause SLE. It stated that none of the conditions experienced by the veteran in eligible service caused or contributed to the condition of SLE. Reference was made to investigations at Westmead Hospital showing that the SLE is of a primary sort and not secondary to any drug or toxic addiction.
The delegate of the Respondent on 26 August 1992 wrote that, even if the diabetes mellitus of the Applicant was caused by treatment for SLE, there was still no relationship between eligible service and SLE (Exhibit TD2 T9, folio 98).
A medical report dated 18 April 1996 written by Dr D Chipps, a physician, indicated that the Applicant was at that point taking 100mg of Prednisone but this was not having a significantly adverse effect on his blood glucose levels (Exhibit TD2 T11).
A report by Dr Stubbs, a general practitioner, dated 7 May 1996 stated that the Applicant suffered from non-Hodgkin's carcinoma and that this affected his daily activities (Exhibit TD1 T4, folios 18-19).
A report by Dr Bashir, a departmental medical officer, dated 23 May 1996 (Exhibit TD1 T4, folio 30) stated that there is no link between service and the etiology [sic] of lymphoma.
A letter from Dr C Commens, local medical officer, dated 30 May 1997, written in response to a request from the Applicant, stated that he was not aware of any evidence of contact with solvents or chemicals causing lupus erythematosus, nor was he aware that lupus could not arise from such contact (Exhibit TD2 T17).
On 29 August 1997 the Applicant received a letter from Professor Kerr (Preventative and Social medicine, Sydney University) who stated that his study did not include the onset of SLE as connected to the exposure to chemicals. He said that he needed to know the origins of SLE better (Exhibit A2).
The Report of Dr M Baz, occupational physician, dated 21 April 1998 (Exhibit A2) stated that the literature confirms an accepted association between solvent exposure and NHL and thus the service of the Applicant contributed to his contracting of the disease. She stated that there is not a clearly established causal relationship between NHL and SLE or diabetes. She also stated that there is no evidence of solvent exposure as a risk factor for SLE.
In a report dated 23 May 1999 (Exhibit A6), Dr R Stubbs, a general practitioner, stated that he first examined the Applicant in 1978 when the Applicant was diagnosed with SLE. He stated that the Applicant commenced on Prednisone on 8 July 1988 under Dr De Launey. He stated that the Applicant was diagnosed with steroid induced diabetes in June 1991.
In a report dated 11 June 1999 Dr Tattersall (Exhibit A7) reported that exposure to paint is reported to be associated with an increased incidence of lymphatic tumors. He also quoted a report confirming an increase in the incidence of lymphoma in patients diagnosed with SLE. He pointed to another report that confirmed paint workers as having an increased risk of lymphoma.
In a report dated 27 September 1999, Professor Sambrook (Rheumatology, Sydney University) (Exhibit A8) stated that Prednisone was likely to be relevant to the Applicant having developed diabetes. He stated that, based on the literature, one could not exclude the possibility of a causal contribution to SLE through the Applicant's exposure to toxins. However the relationship is not definite.
Associate Professor Walls in oral evidence commented on the significance of anti-nuclear bodies detected in the Applicant. He stated that they were regarded as one of the criteria for the diagnosis of lupus, but it was also known that anti-nuclear antibodies, or ANAs, can appear in normal people, particularly as they get older. The prevalence of ANAs in the general healthy population over the age of 60 or 70 is probably approaching 20 per cent. ANAs can also appear on a temporary basis if someone has been exposed to some factor which causes a stimulation of the immune system. For example, a viral infection may cause a temporary rise in ANAs which may in turn disappear in time. Hence the presence of ANAs is not of itself sufficient to guarantee a diagnosis of lupus.
Associate Professor Walls also said he was not aware of any studies deliberately exposing people to substances with a view to seeing whether those substances affected the onset of lupus. He said that such an experiment may not be ethical. He also said that it would not be practical because the effects of exposure in producing lupus would not work on a time-scale suitable for study. Professor Walls said that at present it was not possible to identify the cause or factors leading to lupus. He said he had done a Medline search and was not able to come up with any credible reports suggesting a connection between the exposure to petrochemicals and the onset of lupus.
Associate Professor Walls was examined by the Applicant concerning an interview he had given for television program, "Media Watch", on 23 September 2000 (Exhibit A11). He said that he stood by comments he made to the effect that the immune system had to be exercised so as to develop fully. However he said that he was not aware that any chemical exposure would necessarily induce the immune system to lose control of itself or attack its own tissues. He said in addition that there were elements which would normally keep the immune system in check, and which are probably defective in lupus.
Associate Professor Walls produced a report on 26 February 2000 for the Respondent (Exhibit R1). He stated that the onset of SLE would be impossible to date and that there are no studies or valid reports linking paint, chemical or solvent exposure to SLE. He also stated that there is no clear evidence that azathioprine is oncogenic in humans. He does agree that there is a link between use of corticosteroids and diabetes mellitus.
Dr Tattersall from the Department of Cancer Medicine at the University of Sydney, in his report dated 14 March 2000 (Exhibit A10), stated that it is plausible that the azathioprine used in treatment for the Applicant's SLE may have contributed to his NHL. He further stated that he believes that it was exposure to chemicals during the period of December 1972 to July 1979 that causally contributed to the development of the Applicant's NHL.
Professor Sambrook, a rheumatologist, wrote three reports (on 27 September 1999, 31 March 2000 and 5 July 2000) (Exhibits A8, A9A and A12, respectively). In his report dated 27 September 1999 he stated that it was relevant that the Applicant had been diagnosed with tenosynovitis in the left hand on 5 May 1964. It was also important to note that he had been diagnosed with left sided plantar fasciitis on 12 October 1960. He stated that, according to the medical records, the SLE was first diagnosed in 1987. The file notes from Westmead hospital suggested that the SLE was primary and not secondary to any drug or toxic condition.
He stated that the exposure to chemicals in the Applicant's occupation could be assumed and that the real question was whether there was a link between these agents and SLE. He defined the proof of association as spanning across three categories. There could be a connection described as any one of definite, possible or questionable. He stated that the chemicals to which Mr Kay was exposed probably fall into the category of involving a questionable connection.
Professor Sambrook stated that he conducted an extensive review of the literature and found only one report, the Kilburn and Warshaw article (Exhibit R2), which was relevant. Based on this report he said that one could not definitely exclude the possibility of a connection but that the evidence was by no means definite. He said that the Applicant's blood test results did not indicate that he should have been removed from exposure to chemicals at 1968 but that they did require further investigation which it is not clear occurred.
In his report of 31 March 2000 Professor Sambrook stated that the probable date of onset of SLE was in November/December 1986. He cited the Kilburn and Warshaw article and stated that it would be reasonable to consider that some of the chemicals the Applicant was exposed to would overlap with those in the study. He concluded that the relationship between lupus and the type of chemicals Mr Kay was exposed to is speculative. However there is some published evidence to raise a possibility. In his oral evidence the Professor clarified his answer. In his initial report he thought the link was within the questionable bracket.
In the report of 5 July 2000 he stated that on a review of the literature it is more probable than not that the exposure to chemicals by Mr Kay contributed to the development of lupus. In his oral evidence he clarified this to mean that it was a chance elevated beyond that of questionable, though still between questionable and possible. In his report he further stated that such a contribution would not be a major, sole or direct one but it would not be remote or tenuous.
In his oral evidence the Professor stated that the Kilburn and Warshaw report referred only to metal cleaning agents in the aerospace industry, which is a very broad generic term. He agreed that the solvents that were specifically mentioned by the Applicant were not specifically mentioned in the report. He further stated that one could not draw definite conclusions about a particular agent if it was not mentioned, but that one could make general comments that there is some data linking lupus and a range of solvents in this area.
The Professor agreed that the Kilburn and Warshaw report examined the existence of ANAs but did not specifically look to the diagnosis of SLE. However, the study was a preliminary one and from that someone could move on to examination of a more particular hypothesis. He agreed that ANAs were causally an important part of the SLE diagnosis and that, looking to the existence of SLE and not its symptoms, the study only showed significant results relating to women. However he stated that there were other lupus symptoms present in the men. He did agree that some of these symptoms were common across other arthritic related conditions.
The Professor in conclusion stated that, taking into account all the literature, there was evidence to raise a link between exposure to solvents and lupus as a possibility, though not unequivocally proved. He said that his opinion in his third report was not a change from the previous reports. It was a specific answer to a specific question. Further, he said that in the literature other than that of the Kilburn and Warshaw article that he reviewed, there was slightly stronger evidence for the connection. He did agree that in the general population the incidence of lupus was eighty to ninety percent in women, and a high proportion of that was in women from an Asian background.
Other Evidence
On 15 April 1999 an executive officer of the Department of Defence stated that from September 1973 there was an official policy of conducting annual blood tests on all surface finishers (Exhibit A5). She also advised that the oldest existing manual of ground safety dated from 8 January 1979. This manual refers to a number of personal health procedures, and includes a prescription of skin cream.

An undated ground safety instruction manual numbered 18/81 (Exhibit A5) includes an annex dealing with protective clothing. This includes white overalls, an air hood, safety shoes and cotton white gloves. It also states that the worker must shower at the end of the day as well as wash his or her clothes. It states that during the stripping process the workers wore PVC boots, air diffused vests, head, hip and trouser length tuctor seals, full face shield, visor and PVC gloves.
Journal Articles
Exhibit R2 was the report authored by Kilburn and Warshaw, and published in the Environmental Research Journal in 1992. 362 subjects were tested to gauge if SLE was related to exposure to chemicals in water from industrially contaminated wells. The chemicals included trichloroehtylene, trichloroehtane, inorganic chromium and others. The results showed that exposed subjects were inclined towards contraction of lupus.
Exhibit R3 was a report authored by Cooper, Dooley, Treadwell, St Clair, Parks and Gilkeson, and published in the Arthritis & Rheumatism Journal on 10 October 1998. This states that genetics are a strong factor but cannot alone explain the aetiology of SLE. The report commented on the relationship between exposure to solvents and the development of SLE. The results of the Kilburn and Warshaw study were said to be biased because the samples were not population based, individual level of exposure was not determined by assessment of water consumption patterns, and accuracy of self-reported symptoms was not assessed.
Exhibit R4 was a report authored by Garabrant and Dumas, which appeared in the Arthritis Research Journal on 1 December 1999. This cited a study which shows no significant association between solvents and SLE. The article concluded that there was no scientific evidence that SLE is associated with solvent exposure.
Exhibit R5 was authored by D'Cruz. It appeared in the Toxicology Letters journal issued in 2000. This article commented on the relationship between occupational factors and SLE. There is mention of the Kilburn and Warshaw study but also mention of the Cooper criticism. No conclusion is reached in relation to the studies.
Submissions for the Applicant
The Applicant submitted that he satisfied the Statement of Principles for NHL, either at the time of the claim or currently. Firstly, he said he satisfied factor 5(c) of SOP no 176 of 1996. The Applicant claims that there are two possible reasons why his NHL is war caused. The first is that NHL developed as a direct result of solvent usage by the Applicant. The second is that the solvent usage by the Applicant led to SLE, which in turn led to NHL. The Applicant submitted that he also qualified under factor 5(d) of the currently relevant SOP for NHL (SOP No 81 of 1999). He said that he absorbed petrochemicals through the pores of his skin and also through breathing.
The Applicant submitted that he satisfied factor 5(c) of the relevant SOP for diabetes mellitus. However he does not state which SOP he is referring to. He states that generally the choice of SOP is irrelevant to his case. [The Tribunal observes that this is incorrect. The relevant SOP on diabetes mellitus at the date of the primary decision was SOP No 48 of 1996. Factor 5(c) refers to a connection between smoking and diabetes mellitus, not a matter raised by the Applicant. It is, of course, conceivable that a subsequent SOP, or another paragraph in this SOP, might assist the Applicant. For reasons that will become clear in the Tribunals summary of findings on material questions of fact it is unnecessary to pursue these matters.]
The Applicant submitted that the critiques of the Kilburn and Warshaw studies went only to the methodologies adopted, not the results. He submitted that the reports and papers of the Department of Defence were clear evidence of the unsafe work practices during his employment.
The Applicant submitted that Associate Professor Walls did not fully investigate the results and discussion of the various medical journal articles which the Applicant had cited. The Applicant said he met the requirements of the SOPs for NHL and diabetes mellitus. He said that on the balance of probabilities he had satisfied the SOPs and had the accepted conditions.
Submissions for the Respondent
The Respondent explained that the SOPs on diabetes mellitus and NHL were constantly evolving. The Respondent addressed the requirement for NHL relevant at the time of the original determination, which was factor 5(c) of SOP no. 110 of 1996. [The Tribunal observes that this is incorrect. The SOP in force at the date of the primary decision was SOP No 80 of 1994.] If the lupus was shown to be war caused then the link would be satisfied in a flow on effect. It was submitted that it was unclear how long the Applicant was receiving Imuran, Dapsone or Prednisone. Furthermore, there was insufficient evidence as to whether prednisone was an immuno-suppressive drug. It was suggested that this SOP was still more beneficial to the Applicant than the SOP current at the date of hearing and decision, SOP No 81 of 1999. It was submitted that in relation to diabetes mellitus, however, that the most recent SOP applicable at the time of the reviewable decision, No 188 of 1996, a SOP amending certain paragraphs of an earlier SOP, contained nothing that could be utilised by the Applicant. The earlier SOP, No 8 of 1996 would be of greater assistance to the Applicant. This would be because the definition of the specified list number 1 of drugs includes a number of drugs in the definitions A to K and although the Applicant had not referred to any of those before, the list included gluco corticoids, and Prednisone was a gluco corticoid. Thus they would concede that Prednisone falls into that class.
It was submitted that the Tribunal had still to be satisfied that there is a link between the Applicant's service and his treatment, meaning essentially that it had to find a link between service and SLE. Counsel for the Respondent pointed to paragraph 21 of Justice Beaumont's judgement in the case of Repatriation Commission v Smith (1987) 15 FCR 327.It was stressed that the Tribunal must be satisfied on the probabilities not merely the possibilities in a case such as this where service is not operational service. This is consistent with the standard of proof prescribed for non-operational service case, such as Mr Kay's, in s 120(4) of the Act
Counsel for the Respondent addressed the divergence across the doctors' reports. It was pointed out that the only report suggesting a link between SLE and the service was that of Professor Sambrook. It was submitted that he only relied on the evidence in the literature not his own experiences or research. Further, the only literature studied by the Professor which was based on an original study was the article of Kilburn and Warshaw. All other literature studied by the Professor was in the form of literature reviews. Kilburn and Warshaw did not name the specific solvents referred to in the Applicant's statement. It also does not study the question of whether or not SLE is caused by such agents, it only looks at the incidence of various symptoms, the existence of ANA anti-bodies. It was conceded that the chemicals studied may induce the ANA anti-body but submitted that that does not mean that the SLE disease has been induced.
The Respondent submitted that ANAs are an important part of the SLE diagnosis in only women and not in men. It could only support the contention of there being no link between the agents in Tuscon and the incidence of SLE in men. Further, there were problems in the methodology of this study as pointed out by Cooper et al. It was submitted that this was pointed to by Professor Sambrook and that the Professor indicated the tenuousness of the link in his further reports.
It was emphasised that the Professor saw any link as falling somewhere between questionable and possible. It was concluded that if the majority of experts see no link, and the minority see one which is less that possible then the claim must be rejected as there has been no proof on the balance of probabilities.
Submissions for the Applicant in response
The Applicant submitted that Associate Professor Walls did not have a view on the connection between exposure to solvents and the incidence of SLE. He further submitted that Dr Baz was only commenting on NHL and therefore her views on SLE were irrelevant.
The Applicant pointed to the fact that an Air Board Inquiry had been recently initiated to examine the effects on the health of personnel who were exposed to solvents. He said that though this did not extend to the aircraft he was involved with, it still related to health problems that were relevant to his claim.
The Applicant described some of the negative effects of his current ailments. He said that his quality of life had seriously deteriorated. He said his disease was exacerbated by exposure to UV radiation. This meant that he could no longer perform activities he enjoyed such as gardening at his local club, lawn bowls and fishing.
Submissions for the Respondent in response
It was submitted for the Respondent that Dr Baz did in fact comment on the relationship between SLE and exposure to solvents. Counsel referred to the comment and opinion section of her report where the doctor stated "There is no evidence of solvent exposure as a risk factor for SLE".
The Respondent submitted that in accordance with the decision of the full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 the relevant SOP to apply is the one in force at the time of the original decision. It was submitted that the comments of Stone J in Gorton v Repatriation Commission [2001] FCA 286 were merely obiter. Hence it was not necessarily the case that if a more favourable SOP is promulgated after the original decision that this SOP should be applied.
findings on material questions of fact with reference to the evidence and other material in support of the findings
For the Applicant to succeed in any of his three claims the Tribunal must be reasonably satisfied as to existence of a basic relationship. The Tribunal must reach a state of reasonable satisfaction that the Applicant's SLE more likely than not occurred due to his exposure to solvents whilst working in the RAAF. It is on this basis that the Tribunal would find that the SLE was war caused. If this is established, it has been conceded that the treatments for SLE resulted in diabetes mellitus and NHL, which in turn would be war caused. The standard of proof in this case is reasonable satisfaction under s 120(4) of the Act, not the reasonable hypothesis standard established under s 120(1) and (3) of the Act. This is because the Applicant rendered defence service under ss 68(1) and 69(1)(a) of the Act and not operational service.
There are a number of obstacles to the Tribunal reaching a state of reasonable satisfaction. The main obstacle is the lack of support from expert reports for the proposition the Applicant is advancing. Two of the doctors stated that they believed there was no link between SLE and exposure to solvents. Professor Sambrook in his third report (Exhibit A12) did state that it was more probable than not that there was a link between Mr Kay's lupus and his exposure to chemicals. However, under cross-examination Professor Sambrook clearly redefined this link to be below "possible", but above "questionable". Thus, on the medical evidence, it would be impossible to conclude there was a link which was more probable than not.
The other evidence the Applicant adduced in support of his claim was the journal article by Kilburn and Warshaw. Although this was in the general area of the Applicant's claim, it is clear that there were flaws in the design of, and substantive shortcomings in, the experiment. Contrary to suggestions by the Respondent, there need not be a direct link between an agent and outcome to show that an agent and an outcome have a relationship. However, the Respondent can take comfort in that the solvents mentioned by the Applicant were not named in the report and the conclusive results related to women and not men. This does not disprove the possibility of a connection in men between SLE and the chemicals nominated by the Applicant. It makes the connection less than likely or probable.
The Applicant himself brought up the fact that the SLE condition was significantly much more likely to occur in women than men, and in women it tended to affect those of an Asian background. Although the Applicant did not clearly articulate his submissions relating to this evidence, it seems that he was saying that the unlikelihood of him contracting the disease meant that the only obvious and unique trigger factor in his situation was his exposure to solvents. This could be a counter argument to the Respondent's highlighting of the one-sided gender results of the Kilburn and Warshaw study. However this is not an argument based on available evidence. It is largely a matter of guesswork or surmise. To extrapolate from the low incidence of SLE in men in order to formulate a convincing explanation for the incidence of SLE in one particular man would be a considerable stretch. It would not suggest a link on the balance of probabilities.
The other theory that the Applicant raised was the possibility that he had absorbed noxious chemicals through his skin. This relates to factor 5(d) of SOP No 81 of 1999. The Applicant did not advance any evidence to support this proposition, nor was it considered by any of the medical experts. On the current state of the evidence the Tribunal could not accept this as a tenable explanation on the balance of probabilities.
Conclusion
In view of the above analysis the Tribunal has found that it is not satisfied on the balance of probabilities that there is a link between SLE and the Applicant's exposure to solvents. This means that the Applicant's NHL and diabetes mellitus were also not war caused as assessed on the balance of probabilities. In making this decision the Tribunal has noted that the Department of Defence considered that military service contributed to the NHL suffered by the Applicant for the purposes of the SRC Act. However, while this may be of indirect relevance and of general interest, it is not decisive in relation to the Act. The task of this Tribunal is to conduct a merits review of the reviewable decision applying the standard of proof required by the relevant legislation.
The Above finding by the Tribunal relieves the Tribunal of the task of analysing the patchwork of possibly applicable SOPs relating to NHL and diabetes mellitus in order to ascertain which are applicable in this case, and whether the Applicant succeeds under any of them. This is because the finding that his SLE was war caused was a precondition to the Applicant having any chance of claiming successfully in respect of NHL and diabetes.
The Tribunal wishes to record its appreciation of the Applicant's courteous but forceful presentation before it and for his efforts in finding and presenting documentary evidence. While the Applicant will no doubt be disappointed with the outcome in this matter, the Tribunal trusts that he will be satisfied that he has had his case thoroughly aired before the Tribunal. The Tribunal would like to wish Mr Kay well in the life that remains before him.
DECISION
The decisions under review are affirmed.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mr M J Sassella
Signed:         .....................................................................................
  Associate
Date/s of Hearing  14 and 15 December 2000, 2 May 2001
Date of Decision  2 July 2001
Advocate for the Applicant      Self-represented
Counsel for the Respondent    Miss R Henderson, Mr I Butcher
Solicitor for the Respondent    Ms C Spiers, Department of Veterans' Affairs