Kowalski and Repatriation Commission
[2011] AATA 634
•9 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 634
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2009/4000 & 2010/2439
VETERANS' APPEALS DIVISION ) Re KAZIMIR KOWALSKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Professor D Ben-Tovim (Member)Date9 September 2011
PlaceAdelaide
Decision 1. In application 2009/4000, the Tribunal:
(a) varies the decision under review so as to provide that the applicant does not suffer from and has not at any relevant time suffered from the conditions of:
(i) erectile dysfunction; or
(ii) carotid arterial disease; and
(b) otherwise affirms the decision under review.
2. In application 2010/2439, the decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Disability pension – Eligible defence service – Gout – Diabetes mellitus – Chronic gastritis – Acute stress disorder – Sleep apnoea – Erectile dysfunction – Carotid arterial disease – Cholelithiasis – Whether conditions exist – Relationship to service – Conditions either do not exist or are not related to service – Decisions under review varied and affirmed.
PRACTICE AND PROCEDURE – Implications of applicant’s decision not to give evidence – Relevance of previous Tribunal decisions – Nature and extent of Tribunal’s obligation to inquire.
Veterans’ Entitlement Act 1986 ss 70(1), 70(5), 70(7-10), 120(1), 129(2), 120(4), 120B(3), 120B(4)
Kowalski v Repatriation Commission [2010] FCA 409
Re Kowalski and Repatriation Commission (2008) 107 ALD 447
Re Kowalski and MRCC [2009] AATA 38
Re Kowalski and MRCC [2009] AATA 382
Re Repatriation Commission and Kowalski [2009] AATA 853
Repatriation Commission v Smith (1987) 15 FCR 327
Somerset v Repatriation Commission [2005] FCA 1399
McKenna v Repatriation Commission (1999) 86 FCR 144Benjamin v Repatriation Commission (2001) 70 ALD 622
Kowalski v Repatriation Commission [2009] FCA 794
Kowalski v Repatriation Commission [2010] FCAFC 19
Kowalski v Repatriation Commission [2010] HCASL 209
Repatriation Commission v Gorton (2001) 110 FCR 321
Re Oliver and Repatriation Commission [2002] AATA 408
Re AK and Commissioner for Superannuation (1986) 11 ALN N106
Re Australian Petroleum Supplies Pty Ltd and Giuliano (2001) 66 ALD 676
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519Bushell v Repatriation Commission (1992) 175 CLR 408
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Statement of Principles Instrument No 76 of 2001
Statement of Principles Instrument No 31 of 2010
Statement of Principles Instrument No 12 of 2000
Statement of Principles Instrument No 44 of 2003
Statement of Principles Instrument No 90 of 2011
Statement of Principles Instrument No 12 of 2004
Statement of Principles Instrument No 8 of 2008REASONS FOR DECISION
9 September 2011 Senior Member K Bean
Professor D Ben-Tovim (Member)
introduction
1.In the early 1970s the applicant, Mr Kowalski, undertook national service in the Australian Army. As a result of that service, he claims to have contracted a number of medical conditions and has engaged in extensive litigation with a view to establishing an entitlement to various benefits which he considers are payable to him as a consequence of the conditions he says are related, directly or indirectly, to his national service.
2.Most relevantly for the purposes of these applications, in September 2008 Mr Kowalski wrote to the Department of Veterans’ Affairs claiming a disability pension for gout, diabetes mellitus, chronic gastritis, acute stress disorder, sleep apnoea, erectile dysfunction and carotid arterial disease[1].
[1] T125/673; T126/674; T130/678; T129/677; T128/676; T132/680 and T131/679 (2009/4000).
3.Mr Kowalski subsequently lodged a formal claim on 7 October 2008 in respect of each of the above conditions[2].
[2] T134/682 (2009/4000).
4.On 30 October 2008, a delegate of the respondent rejected Mr Kowalski’s claims for each of the above conditions on the basis that the conditions were not defence caused[3].
[3] T3/6-11 (2009/4000).
5.On 3 November 2008, Mr Kowalski sought review of that decision by the Veterans’ Review Board (VRB) and on 2 July 2009 the VRB decided to affirm the decision of the respondent[4]. Mr Kowalski subsequently filed an application for review in respect of that decision with this Tribunal on 26 August 2009, giving rise to application number 2009/4000[5].
[4] T161/995-1003 (2009/4000).
[5] T1/1-2 (2009/4000).
6.In the meantime, Mr Kowalski had also lodged a claim for disability pension in respect of the condition of cholelithiasis[6], also known as “gall stones”. This claim was also rejected by the respondent[7] and the VRB[8] and on 17 June 2010, Mr Kowalski lodged an application with this Tribunal seeking review of the decision of the respondent to reject this claim, giving rise to application number 2010/2439[9].
[6] T8/28-37 (2010/2439).
[7] T4/14 (2010/2439).
[8] T3/5 (2010/2439).
[9] T1/1-2 (2010/2439).
7.Each of the applications, 2009/4000 and 2010/2439, were heard together over a total of five hearing days.
the issues
8.It follows from the procedural history set out above that, in general terms, the question for our consideration is whether Mr Kowalski has an entitlement to a disability pension pursuant to the terms of Veterans’ Entitlement Act 1986 (the VE Act) in respect of any of the following conditions:
·gout;
·diabetes mellitus;
·chronic gastritis;
·cholelithiasis;
·acute stress disorder;
·sleep apnoea;
·carotid arterial disease; and
·erectile dysfunction.
9.Before proceeding to consider these issues in more detail however, it is appropriate for us to briefly recount some of the factual and legal background to Mr Kowalski’s claims.
background
10.Mansfield J summarised Mr Kowalski’s relevant life history in Kowalski v Repatriation Commission [2010] FCA 409 in a manner which is consistent with the evidence before us as follows:
“5. The appellant served with the Australian Army between 20 April 1972 and 19 October 1973. He commenced service as a soldier on 20 April 1972. After undergoing his basic training for three months, he then served as a regimental and mechanical draftsman. The majority of his service was undertaken at the Amberley base of the Royal Australian Air Force. He did not serve outside Australia. On 19 October 1973 he was discharged, having completed the prescribed period of service.
6. During his employment in the Army the appellant was required to undertake a heavy workload that resulted in considerable stress. The appellant also claims to have consumed “at least a jug of full strength beer” daily during the period of training and thereafter whilst serving.
7. The appellant’s medical treatment during his service was documented in the material before the Tribunal. A Medical Examination Record at the time of his entry into the Army, dated 6 March 1972, does not indicate that the appellant was suffering from any gastric problems at that time.
8. The first reference to any complaint of relevance is on 17 July 1973 when the appellant complained of epigastric pain occurring 1 ½ hours after meals, which was reported as being relieved by antacids. The appellant was prescribed Kolantyl gel, Merbentyl and subsequently Librax. In late July or early August 1973 the appellant was prescribed a barium meal. The report of the barium meal was “[n]o hiatus hernia or oesophageal reflux could be detected” however a small duodenal ulcer was detected. In early August 1973 the appellant complained of regurgitation and a diagnosis of duodenal ulcer was made.
9. The appellant underwent a discharge medical examination on 19 September 1973. On the appellant’s Medical Discharge Questionnaire it was noted that the appellant complained of heartburn and epigastric pain, and that he was taking antacids which relieved this pain. It was also recorded that the appellant suffered from “recurrent indigestion” and a duodenal ulcer.
10. Prior to discharge the appellant made a claim for compensation for his duodenal ulcer. For the purposes of that claim, a report was obtained from Dr Gilmore, a specialist gastroenterologist, who saw the appellant in February 1974. He reported that the appellant “first had symptoms in May, 1973 whilst doing National Service, which are typical of those produced by duodenal ulcers.” He reported that the effects of the ulcer were of a temporary nature and would have effectively ceased with treatment in mid 1973, but that the healing of the ulcer would have taken some months. He noted that the appellant was free of symptoms by the time of his discharge in 1973 and that healing “can reasonably be assumed” at that time.
11. The Commonwealth accepted liability for the condition of duodenal ulcer on 4 April 1974.
12. The appellant again saw Dr Gilmore in October 1976 where he once more complained of ulcer like symptoms. Dr Gilmore expressed the opinion that the recurrence of symptoms was related back to his Army service and reported that:
since I saw him in February 1974, he has had a recurrence of ulcer pain, usually quite quickly relieved by standard ulcer treatment, which he had for some time readily to hand, by virtue of supplies given [to] him at the time of discharge from the Services.
The appellant continued to receive compensation from the Commonwealth for medical expenses he incurred with respect of treatment of his ulcer on the basis that it was related to his period of employment with the Army.
13. In 1979 and 1981, the appellant suffered a recurrence of ulcer symptoms and had several days away from his work at Mitsubishi Motors Australia Limited (MMAL). The Commonwealth accepted liability for his periods of incapacity, as is evidenced by the determinations made by the Military Rehabilitation and Compensation Commission in 1979 and in 1981.”
11.It is also relevant to note that Mr Kowalski has made previous applications to this Tribunal relating to previous claims for the following conditions:
(a) depressive disorder[10];
[10] Re Kowalski and Repatriation Commission (2008) 107 ALD 447.
(b) anxiety disorder[11];
[11] Re Kowalski and Repatriation Commission (2008) 107 ALD 447.
(c) hypertension[12];
(d) ischaemic heart disease[13];
(e) duodenal ulcer[14];
(f) psychological/psychiatric illness[15];
(g) major depression[16];
(h) generalised anxiety disorder[17];
(i) heart attack and open heart surgery[18];
(j) obesity[19];
(k) type 2 diabetes; and[20]
(l) gastro-oesophageal reflux disease (GORD)[21].
[12] Re Kowalski and Repatriation Commission (2008) 107 ALD 447.
[13] Re Kowalski and Repatriation Commission (2008) 107 ALD 447.
[14] Re Kowalski and MRCC [2009] AATA 38. In Re Kowalski and MRCC [2009] AATA 38, the Tribunal found that Mr Kowalski had no current entitlements in relation to this claim, although it did not disturb the original acceptance of liability for the condition.
[15] Re Kowalski and MRCC [2009] AATA 38.
[16] Re Kowalski and MRCC [2009] AATA 38.
[17] Re Kowalski and MRCC [2009] AATA 38.
[18] Re Kowalski and MRCC [2009] AATA 38.
[19] Re Kowalski and MRCC [2009] AATA 38.
[20] Re Kowalski and MRCC [2009] AATA 38.
[21] Re Kowalski and MRCC [2009] AATA 382.
12.Some of those claims were made under the VE Act and some of them under the applicable compensation legislation. However, each claim was unsuccessful before the Tribunal. Mr Kowalski subsequently challenged the relevant Tribunal decisions in the Federal Court, the Full Federal Court and the High Court. However, each of these challenges was also unsuccessful, with the High Court refusing Special Leave in each case[22].
[22] In relation to Re Repatriation Commission and Kowalski [2009] AATA 853, see [2010] FCA 409, [2011] FCAFC 43 and [2011] HCASL 101. In relation to Re Kowalski and Repatriation Commission (2008) 107 ALD 447, see [2009] FCA 794, [2010] FCAFC 19 and [2010] HCASL 209. In relation to Re Kowalski and MRCC [2009] AATA 38, see (2010) 114 ALD 8 and [2010] HCASL 209. In relation to Re Kowalski and MRCC [2009] AATA 382, see [2010] FCA 408, (2011) 191 FCR 345 and [2011] HCASL 100.
13.Before proceeding to discuss the evidence before us and the contentions of each of the parties, we should first outline the statutory framework which must be applied in determining Mr Kowalski’s current claims.
the statutory framework
14.Sub-section 70(1) of the VE Act provides for the Commonwealth to pay pension in respect of incapacity from a defence caused injury or disease:
“(1) Where:
(a) …
(b)a member of the Forces … is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.”
Sub-sections 70(5) and 70(7) define “defence-caused injury” and “defence-caused disease” as follows:
“(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
Note:The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member’s environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.”
15.Sub-section 120(4) sets out the standard of satisfaction applicable to making determinations or decisions under the VE Act as follows:
“(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.”
16.Sub-section 120(1) applies to claims based on operational service and sub-s 120(2) applies to claims based on peace keeping or hazardous service. As neither of those provisions applies in this matter, the “reasonable satisfaction” standard is applicable. This has been held to be the same as the civil standard of proof or the balance of probabilities[23].
[23] Repatriation Commission v Smith (1987) 15 FCR 327.
17.Sub-section 120B(3) sets out how Statements of Principles (SoPs) relate to the application of “reasonable satisfaction” standard when determining whether an injury or disease is defence-caused:
“(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.”
18.As to the approach to be taken if the Repatriation Medical Authority has not determined a SoP for the claimed injury or disease, sub-s 120B(4) provides as follows:
“(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.”
19.In Somerset v Repatriation Commission [2005] FCA 1399 the Federal Court approved the Tribunal’s application of these provisions as follows:
“28 The AAT in reaching its decision considered the statutory provisions relating to the claim and the standard of proof to be applied. The AAT concluded that it must determine to its reasonable satisfaction the question whether Mr Somerset suffers from war-caused Meniere’s disease on the balance of probabilities. The AAT considered the provisions I have discussed and determined that where there is a Statement of Principles made under s.196B(3) of the V E Act, the AAT must first determine whether to its reasonable satisfaction the material put before it raises a connection between Mr Somerset’s disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service.
29 In approaching the legal test to be applied, the construction of the provisions of the V E Act and the role of the Statement of Principles, the Tribunal did not make any error of law.”
20.It is accordingly clear that in applying s 120B the first step (after determining what injury or disease is the subject of the claim and whether that condition exists) is to consider whether the material before the decision-maker raises a connection between the injury, disease or death of the person and some particular service rendered by the person. Clearly the relevant connection must be one or more of the connections to service specified in sub-s 70(5) or (7). The material before the decision-maker must raise such a connection on the balance of probabilities. If the probative material before the decision-maker does not raise such a connection, the claim cannot succeed.
21.However where the probative material before the decision-maker does raise such a connection, the next step is to determine whether there is a relevant SoP in force, and to identify that SoP or those SoPs.
22.If there is no SoP, the claim will succeed unless a disentitling provision applies such as those set out in sub-s 70(8)-(10).
23.If there is a SoP, the decision-maker must determine whether the contention of a connection that has been raised on the balance of probabilities by the material is upheld by the relevant SoP. If a factor in the SoP upholds the connection that has been raised, the claim succeeds unless a disentitling provision applies. If it does not uphold the contention, the claim fails.
24.Further, in relation to conditions which involve a chain of causation between conditions, the Full Federal Court has held that where there is a chain of causation from service to one disease to the claimed disease, then the SoP for both diseases needs to uphold the raised hypothesis[24].
[24] McKenna v Repatriation Commission (1999) 86 FCR 144.
WHICH CONDITIONS ARE ESTABLISHED ON THE EVIDENCE?
25.We propose to first address the question of whether each of the conditions which are the subject of a claim by Mr Kowalski exist, before turning to the question of whether liability has been established in respect of any conditions which do exist. As we have alluded to above, the first step in considering any of Mr Kowalski’s claims is for us to determine whether we are reasonably satisfied that he suffers or suffered from the relevant condition. If we are not so satisfied, on the balance of probabilities, then the relevant claim must fail.
The undisputed conditions
26.The respondent has conceded that Mr Kowalski suffers from the following conditions and that these conditions were in existence at the time he lodged his claims:
·gout;
·diabetes mellitus;
·chronic gastritis; and
·cholelithiasis.
27.On the basis of the evidence before us, which we will discuss in more detail below, we are also reasonably satisfied that Mr Kowalski suffers from those conditions and suffered from them at the time he lodged his claims.
The disputed conditions
28.The respondent disputes the existence of the other conditions claimed by Mr Kowalski. We accordingly propose to in turn consider whether each of those conditions has been established, commencing with acute stress disorder. We note that we are required to determine whether each condition exists before considering the application of any SoP, and that we should not “test the existence of a postulated disease by reference to any SoP”[25].
[25] Benjamin v Repatriation Commission (2001) 70 ALD 622 at 631-634.
Acute stress disorder
29.Mr Kowalski’s 2008 claim included an attachment signed by his general practitioner, Dr Cheung, which stated as follows:
“Acute stress disorder.
Mr Kowalski felt that he did not obtain appropriate clinical management for his acute stress disorder while serving in the army. I was not his treating GP at the time.”[26]
[26] T134/690 (2009/4000).
30.Dr Cheung also recorded in her notes of a consultation with Mr Kowalski on 2 October 2008:
“Acute stress disorder – inability to obtain appropriate clinical management for acute stress disorder. Felt he did not get appropriate treatment in the Army.”[27]
[27] Exhibit 10, Tab 2.
31.Mr Kowalski elected not to give any oral evidence before us, with the consequence that we have no evidence from him which could form the foundation for a diagnosis of acute stress disorder. However, the respondent arranged for Dr Cheung to give oral evidence at the hearing, including in relation to this issue, which she did.
32.The respondent also tendered into evidence a letter from Dr Cheung to the Australian Government Solicitor dated 27 October 2010. In that letter, she stated as follows:
“In the 2008 Form I was not making a diagnosis that the Applicant is suffering from an Acute Stress disorder or from Erectile Dysfunction.
As noted in the comments I was not his treating GP at the time when the applicant claims to have been suffering from an acute stress disorder and the applicant has never consulted me regarding his Erectile Dysfunction.”[28]
[28] Exhibit 3.
33.In the course of cross-examining Dr Cheung, Mr Kowalski directed her attention to a report she had written on 1 November 2004 in which she stated that his duodenal ulcer was “accepted by Veterans’ Affairs as attributed to stresses in the Army”[29]. However she did not state in her oral evidence and nor has she stated in any of the documents before us that she considers Mr Kowalski to have suffered at any time from an acute stress disorder.
[29] T62/247 (2009/4000).
34.We have also had the benefit of evidence from Professor Goldney, psychiatrist, in relation to this issue.
35.The respondent tendered into evidence reports of Professor Goldney dated 19 December 2005[30], 20 February 2008[31] and 31 March 2008[32], each of which was obtained in the context of an earlier matter. The respondent also tendered into evidence transcripts of Professor Goldney’s interviews with Mr Kowalski dated 17 November 2005 and 12 December 2005[33].
[30] Exhibit 4.
[31] Exhibit 5.
[32] Exhibit 6.
[33] Exhibit 4.
36.These reports and transcripts show that Professor Goldney took a detailed psychiatric history from Mr Kowalski. This included an account from Mr Kowalski of an experience during his Army service when he was threatened with being charged for being absent without leave after leaving the base early to attend on his wife who was unwell[34]. Professor Goldney also obtained a history from Mr Kowalski of him having an extremely high workload whilst in the Army while he was “doing the work of three people”. Professor Goldney also noted that Mr Kowalski had been diagnosed with a duodenal ulcer and that he had been told by a Dr Gilmore in 1974 that this was stress related and that he was prescribed the medication Librax for this.
[34] See also T18, T91/365, T121/514 (2009/4000).
37.In his report of 19 December 2005, Professor Goldney commented on the report of Dr Gilmore dated 26 February 1974[35], in which Dr Gilmore had referred to Mr Kowalski being under stress. He noted that Dr Gilmore had quoted Mr Kowalski’s officer-in-charge as saying that Mr Kowalski had been “placed under great stress” and had been doing work where three persons had previously been employed. Professor Goldney also stated:
[35] At T17/131 (2009/4000).
“It is pertinent to note that that observation was made in the context of the diagnosis of a duodenal ulcer and, at that stage, the medical understanding of the cause of duodenal ulcer was that it was related to stressful events. Now we understand that that is not the case, and that has received recent publicity in the sense that two Australian medical practitioners have won the Nobel Prize for their work in this area. It is also pertinent in regard to any long-standing impact of stress that Dr Gilmore stated that ‘the effects were of a temporary nature, and it would seem reasonable to assume that the effects ceased in about July 1973 when his problem was recognised and treated.’ It is also pertinent to note that there is no documentation by Dr Gilmore of psychiatric symptoms per se, and the only symptoms were those of the gastro-intestinal distress.”[36]
[36] Exhibit 4.
38.Professor Goldney went on to state:
“It is evident from this document that, when one re-interprets it in terms of our present understanding of the cause of duodenal ulcer, there is no credible documentation of psychiatric illness at that time.”[37]
[37] Exhibit 4.
39.Professor Goldney also noted in his report that a Discharge Medical Board Examination Record of 25 September 1973 recorded that Mr Kowalski’s “emotional stability” and “mental capacity” were “normal”. Professor Goldney also referred to a “Discharge History Questionnaire” dated 19 September 1973 where Mr Kowalski had answered the question about “mental illness-nervous breakdown” with the response of “No” and had also indicated that he had no depression. Professor Goldney indicated that he did not consider that Mr Kowalski had sustained any psychiatric condition as a result of his national service. He specifically referred to the absence of psychiatric symptoms documented in Mr Kowalski’s Army record as being consistent with that conclusion.
40.In his report of 20 February 2008, Professor Goldney augmented the conclusions recorded in his earlier report, indicating that he did not consider there was any indication in the contemporaneous documentary material of Mr Kowalski having suffered psychiatric symptoms during his national service. The conclusions expressed in his report of 31 March 2008 are consistent with those contained in his earlier reports.
41.Professor Goldney also gave oral evidence before the Tribunal on 6 April 2011. Mr Kowalski chose not to attend the hearing on that day, although he had been notified of it and was aware that a hearing would be held on that day at which Professor Goldney was to give his oral evidence. He was further aware that that would be his only opportunity to cross-examine Professor Goldney.
42.In the course of his oral evidence, Professor Goldney confirmed that he had examined Mr Kowalski on two occasions, being 17 November and 12 December 2005. He was questioned as to whether, based upon the information available to the Professor, Mr Kowalski had suffered from an acute stress disorder during his Army service. He stated:
“He certainly didn’t have an acute stress disorder and I don’t, I mean, simply in terms of the time constraints to have such a diagnosis it’s really quite inappropriate for us to be considering it because an acute stress disorder the symptoms have to last for at least a couple of days but for no more than 28 days. And so I mean it doesn’t really enter the equation of a psychiatrist sort of considering this whole situation. It simply doesn’t get to first base.”[38]
[38] Transcript, 6 April 2011, p 13.
43.He elaborated later in his evidence as follows:
“Well, if one is asserting that one has got an acute stress disorder, first of all it wouldn’t enter one’s diagnostic, sort of, sphere if the person is trying to assert that it was related to an event that happened over 30 years ago. Secondly, if you are trying to determine whether or not an acute stress disorder may have been appropriate for that period of time, you know, between two and 28 days, 30-odd years ago then you need to go to some of the other criteria. And on the basis of the history given to me, there was not sufficient evidence of the traumatic event meeting the criterion needed. There certainly was not evidence of the symptoms required for such a diagnosis. Certainly there was no documentation of that at all at the time and Mr Kowalski certainly didn’t describe sufficient symptoms even retrospectively to make such a diagnosis. So if you adopt the – first of all, it’s not a diagnosis you would consider currently, related to something that happened 30 years ago. Secondly, if you were considering the diagnosis to sort of try and make it retrospective to what may have happened 30 years ago and you look at the various criteria that would need to be fulfilled, they are not met either …”[39]
[39] Transcript, 6 April 2011, pp 14-15.
44.Professor Goldney also confirmed in the course of his oral evidence that he felt confident in giving the opinion that Mr Kowalski did not have and had not had an acute stress disorder related to his service, without re-examining Mr Kowalski[40]. He also confirmed that in discussing the criteria for diagnosis of an acute stress disorder, he was referring to the criteria contained in the “DSM” or Diagnostic and Statistical Manual of Mental Disorders, which he said were “virtually the same” as those contained in the SoP relating to acute stress disorder[41].
[40] Transcript, 6 April 2011, pp 20-21.
[41] Transcript, 6 April 2011, p 13.
45.We should add that we have also viewed a DVD tendered by Mr Kowalski containing a program entitled “Stress – Portrait of a Killer”[42]. However, we did not find that program of assistance in determining whether Mr Kowalski suffered from an acute stress disorder.
[42] Exhibit 7.
46.In summary therefore, on the material before us, Dr Cheung and Professor Goldney are the only medical practitioners who have addressed the possibility of Mr Kowalski suffering from an acute stress disorder. Dr Cheung has indicated that she was not intending to diagnose Mr Kowalski as suffering from an acute stress disorder and she has not put forward any medical opinion that he does suffer from that condition or that he has suffered from it, or that it has any connection with his service. Professor Goldney has examined Mr Kowalski on two occasions, albeit some time ago, and has also reviewed the documentation which is relevant to this issue, including Mr Kowalski’s service records. He has confidently indicated that in his view, Mr Kowalski did not suffer from an acute stress disorder during his military service.
47.We are therefore not reasonably satisfied on the material before us that Mr Kowalski did suffer from an acute stress disorder during his military service or within four weeks of the ending of that service. It follows that we do not need to proceed to consider whether liability is established in relation to that condition.
48.We note that, having regard to the nature of an acute stress disorder, which is short lived and by definition does not extend beyond four weeks from a traumatic event, any acute stress disorder suffered more than four weeks after the ending of Mr Kowalski’s defence service could not be related to that service. For completeness however, in the absence of any evidence that Mr Kowalski suffered from an acute stress disorder after his defence service, we are not satisfied that he has suffered from an acute stress disorder at any time.
Sleep Apnoea
49.As noted above, Mr Kowalski made an informal claim for sleep apnoea in a letter dated 25 September 2008 and he also listed this as one of his disabilities in his claim form dated 7 October 2008[43]. Dr Cheung did not address the condition of sleep apnoea in that form, although Mr Kowalski indicated on the claim form that she was treating him for the condition[44].
[43] T134/682 (2009/4000).
[44] T134/693 (2009/4000).
50.On 22 October 2008, an officer of the Department of Veterans’ Affairs wrote to Mr Kowalski noting that he had indicated that information on this condition was held by the Repatriation General Hospital (RGH). The letter advised Mr Kowalski that the Sleep Disorders Unit at the RGH had been contacted, but had advised that they held no relevant information. The officer accordingly requested that Mr Kowalski forward any relevant information on his sleep apnoea condition and advised that if he wished to obtain Dr Cheung’s clinical diagnosis, the Department would cover the cost of this[45].
[45] T140/746 (2009/4000).
51.Mr Kowalski responded to this letter on 23 October 2008[46] advising that he had an account which referred to a “sleep apnoea investigation” being conducted on him on 24 January 1996. He also advised as follows:
[46] T141/747 (2009/4000).
“Dr C Cheung has informed me that she does not have any medical records in respect to the ‘SLEEP APNOEA INVESTIGATION’ that Dr Chia of the Repatriation Hospital at Daw Park had conducted on me, therefore, Dr Cheung had informed me that she could not find any medical records in respect to my SLEEP APNOEA, therefore, she was not able to provide you with a clinical diagnosis of my SLEEP APNOEA.”
52.The “sleep report” was subsequently obtained and provided to the Department of Veterans’ Affairs. However, the comments made by Dr Chia as a result of the study were as follows:
“There is a mild sleep breathing disorder, but significant arterial desaturation or sleep fragmentation was not seen.”[47]
[47] T143/751 (2009/4000).
53.The records of the Sleep Disorders Unit of the RGH were subsequently summonsed by the respondent and tendered into evidence before us. These confirm that Mr Kowalski was found to have mild sleep disordered breathing, but not sleep apnoea[48].
[48] Exhibit 10, Tab 4.
54.Mr Kowalski asked Dr Cheung about this condition in the course of her oral evidence, confirming with her that he had had a sleep study at the RGH. However, he did not ask Dr Cheung whether she considered that he suffered from sleep apnoea[49].
[49] Transcript, 13 January 2011, p 144.
55.As there is no other medical evidence before us directed to that question, it follows that Mr Kowalski has not provided any medical evidence to support a conclusion that he suffers from or suffered at any relevant time from sleep apnoea. In the absence of any such evidence, we are not reasonably satisfied that he suffers from or has suffered from that condition. That being the case, it is unnecessary for us to proceed to consider the question of liability for that condition.
Carotid arterial disease
56.As noted above, Mr Kowalski submitted a formal claim for this condition on 7 October 2008 and Dr Cheung also added her comments in relation to this condition on the claim form[50]. Her comments on the claim form were consistent with her holding the view that Mr Kowalski did suffer from this condition. However, in her letter to the Australian Government Solicitor dated 27 October 2010[51], Dr Cheung indicated that she had “never diagnosed the Applicant as suffering from Carotid Arterial Disease” and “My comments on P8 of the 2008 Form relates to Coronary Arterial Disease”.
[50] T134/689 (2009/4000).
[51] Exhibit 3.
57.Dr Cheung was also asked about this issue at the hearing by Mr Kowalski and the following exchange took place between them:
“But carotid artery disease, you’re saying it’s not a condition?---That is a mistake on my part. It was meant to be coronary artery disease.
Was meant to be?---Yes, because on the other side you’ve written carotid artery, and I’ve just written that down as carotid artery. I should have picked up the mistake.
How do you know I’m not suffering from carotid artery disease?---Because I’ve never seen you. You have not had a stroke before and I have never seen you with that condition.
Have I had an ultrasound or something on my carotid artery?---But you have never presented to me with those symptoms and hence I have never referred you for an ultrasound of the carotid artery.
I see, okay?---It has always been coronary artery disease.”[52]
[52] Transcript, 13 January 2011, p 160; see also T35/202 (2009/4000).
58.Again, as there is no medical evidence before us which supports the proposition that Mr Kowalski suffers from or has suffered from carotid arterial disease (apart from Dr Cheung’s comments on the claim form which were made in error), we are not reasonably satisfied that he suffers from or has suffered from that condition. In those circumstances, it is also unnecessary for us to consider the question of liability in relation to that condition.
Erectile dysfunction
59.As noted above, this condition was also referred to in Mr Kowalski’s formal claim and addressed by Dr Cheung in a note accompanying the claim form. In relation to this condition, Dr Cheung stated as follows:
“Erectile Dysfunction
Symptoms present for 1 year
Was too embarrassed to present symptoms to GP
Ischaemic Heart Disease and Infarction Dec 1997
Hypertension diagnosed 1995
Obesity May 2002 wt 95 ht 178 BMI 30
BMI over 30 since
Diabetes diagnosed 30/6/2004.
Mr Kowalski never consulted me regarding his Erectile Dysfunction.”[53]
[53] T134/690 (2009/4000).
60.In a letter to the Australian Government Solicitor dated 27 October 2010, Dr Cheung also stated as follows:
“In the 2008 Form I was not making a diagnosis that the Applicant is suffering from an Acute Stress disorder or from Erectile Dysfunction.
As noted in the comments I was not his treating GP at the time when the applicant claims to have been suffering from an acute stress disorder and the applicant has never consulted me regarding his Erectile Dysfunction.”[54]
[54] Exhibit 3.
61.Mr Kowalski also questioned Dr Cheung in relation to this issue at the hearing and the following exchange occurred between them in relation to that condition:
“So how do you know I’m not suffering from that condition?‑‑‑I’m not saying that. I’m just saying that you have never consulted me and I have not made that diagnosis.”[55]
[55] Transcript, 13 January 2011, p 160.
62.Again, we have not had the benefit of any evidence from Mr Kowalski in relation to this condition and there is no other medical evidence before us directed to it. In those circumstances, in the absence of any medical evidence supporting the proposition that Mr Kowalski suffers from or has suffered from erectile dysfunction (apart from Dr Cheung’s note which she has subsequently clarified), we are not reasonably satisfied that he suffers from or has suffered from that condition. Accordingly, it is also unnecessary for us to address the question of liability for that condition.
is liability established in relation to any of the conditions suffered by mr kowalski?
63.That leaves the question of whether, in respect of any of the conditions which we are satisfied are suffered by Mr Kowalski, liability is established under the VE Act. We propose to address that question in relation to each condition in turn, commencing with chronic gastritis.
Chronic gastritis
64.As noted above, the respondent concedes and we also are satisfied that Mr Kowalski suffers from chronic gastritis, and that he suffered from that condition at the time he lodged his claim. Dr Cheung has diagnosed Mr Kowalski as suffering from chronic gastritis and an upper endoscopy report on 7 May 1999 also resulted in a diagnosis of gastritis[56].
[56] T43/218; T134/690 (2009/4000).
65.Dr Cheung has stated that Mr Kowalski first consulted her regarding gastritis in January 1995 and that he was referred to Dr Hetzel, gastro-enterologist, in November 1998. Whilst it is difficult to be precise about the onset of this condition, the evidence suggests that it was present by 1995[57].
[57] See also T41/213 (2009/4000).
66.Pursuant to the applicable legal framework outlined above, the next question we are required to address is whether a “probable connection” has been established between this condition and Mr Kowalski’s service[58].
[58] Section 120B(3), VE Act.
67.In relation to that issue, whilst there is a significant body of medical evidence before us directed to the issue of Mr Kowalski’s gastro-intestinal health, none of the doctors who have examined him or expressed a view on the issue have indicated that his gastritis is attributable to his defence service. In those circumstances, we are not satisfied that a probable connection has been established between Mr Kowalski’s defence service and his gastritis such that it is necessary for us to proceed to consider the application of any relevant SoP.
68.In case we are wrong in that conclusion however, it is appropriate for us to address the question of whether there is an applicable SoP and if so, whether the contention advanced by Mr Kowalski is upheld by the SoP.
69.In relation to that issue, there is a SoP in existence in relation to chronic gastritis, being Instrument No 76 of 2001. That SoP relevantly provides as follows:
“Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that chronic gastritis and death from chronic gastritis can be related to relevant service rendered by veterans or members of the Forces.
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.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, chronic gastritis or death from chronic gastritis is connected with the circumstances of a person’s relevant service are:
(a) suffering from Helicobacter pylori infection of the stomach before the diagnosis of chronic gastritis; or
(b)suffering from Helicobacter heilmannii infection of the stomach before the diagnosis of chronic gastritis; or
(c)inability to obtain appropriate clinical management for chronic gastritis.
Factors that apply only to material contribution or aggravation
6. Paragraph 5(c) applies only to material contribution to, or aggravation of, chronic gastritis where the person’s chronic gastritis was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.”
70.On the evidence, there is no dispute between the parties that Mr Kowalski did suffer from a Helicobacter pylori infection before the diagnosis of chronic gastritis, and indeed that the Helicobacter pylori infection was the reason for the duodenal ulcer which was diagnosed during his Army service, and for which compensation liability was accepted[59].
[59] T5/89 (2009/4000); T18/134 (2009/4000).
71.In addition to reliance upon the Helicobacter pylori factor, 5(a), Mr Kowalski also relies upon factor 5(c), claiming that he did not obtain appropriate clinical management for his chronic gastritis.
72.Having regard to the terms of the SoP and Mr Kowalski’s contentions therefore, it is necessary for us to consider whether factor 5(a) is related to Mr Kowalski’s defence service. We also need to consider whether Mr Kowalski was unable to obtain appropriate clinical management of his chronic gastritis for the purposes of factor 5(c) and, if so, whether this was related to his service.
The Helicobacter pylori infection
73.Following Dr Cheung’s referral of Mr Kowalski to Dr David Hetzel, gastro-enterologist, Dr Hetzel stated in his report of 18 June 1999[60] that the upper endoscopy performed on 7 May 1999 had confirmed Helicobacter pylori gastritis. Dr Hetzel also gave evidence at the hearing in the course of which he addressed the question of when Mr Kowalski was likely to have been infected with the Helicobacter pylori bacteria. He noted that his understanding was that Mr Kowalski had been born in Poland and migrated to Australia with his family after the Second World War[61]. He went on to comment as follows:
[60] T44/219.
[61] See also T37/347 (2009/4000).
“Dr Hetzel: … we know from very large studies on the epidemiology of Helicobacter Pylori that it’s nearly always acquired in the first five years of life, and it’s rare as the human immune system matures for it to be acquired unless one has very specific exposure to infected water and so on. The vast majority of acquisition from studies on blood donors and samples from the earliest age into their 20s, 30s and so on, show that positive serology and those people who are going to be positive as adults, has already appeared by the time those individuals are five years old. So that, together with his European origins – we know that individuals after the Second War, living in close proximity, sometimes in refugee camps, for example, almost universally became infected with H-Pylori and I think all of that fits with the idea that Mr Kowalski would have acquired H-Pylori at an early stage in life.”[62]
[62] Transcript, 13 January 2011, p 69; see also T64/253, T121/499 (2009/4000).
74.Dr Hetzel also went on later in his evidence to explain that the relationship between Helicobacter pylori and duodenal ulcers was not understood in 1973, when Mr Kowalski was diagnosed with a duodenal ulcer. Therefore, it was not unexpected that he was not tested for the bacteria at that time.
75.Similar evidence was given by Dr Donald Reid, consultant physician, who said at the hearing:
“The general medical view is that the infection with the Helicobacter Pylori usually occurs during the first five years of life.”[63]
[63] Transcript, 14 January 2011, p 20.
76.In the absence of any medical evidence supporting the contention put by Mr Kowalski, that he contracted Helicobacter pylori during his service, we are accordingly satisfied that it is more likely than not that he contracted Helicobacter pylori early in his life, probably before he was five years old, and that he contracted the bacteria well before the commencement of his defence service. It therefore follows that we are not satisfied that Mr Kowalski’s contraction of the Helicobacter pylori infection was related to his relevant service, as required by the SoP, and to that extent, the contention advanced by Mr Kowalski is not upheld by the SoP. For completeness, we note that this conclusion is consistent with earlier decisions of the Tribunal[64].
[64] See: Re Kowalski and Repatriation Commission [2008] 107 ALD 447 per Jarvis DP at [49]-[52], [54]; Kowalski v Repatriation Commission [2009] FCA 794 per Besanko J at [10]-[13], [40]; Kowalski v Repatriation Commission [2010] FCAFC 19; Kowalski v Repatriation Commission [2010] HCASL 209.
The clinical management issue
77.In relation to factor 5(c) concerning inability to obtain appropriate clinical management for chronic gastritis, the first issue which arises is whether Mr Kowalski in fact suffered from chronic gastritis at the time of his defence service. Only if he was suffering from that condition during his service could it be concluded that he failed to obtain proper clinical management of it due to his service. Indeed, pursuant to the terms of the SoP, factor 5(c) only applies to a material contribution to, or aggravation of, chronic gastritis where the person’s chronic gastritis was suffered or contracted before or during (but not arising out of) the person’s relevant service[65].
[65] See paragraph 6 of the SoP.
78.We have referred above to the available evidence relating to the onset of the chronic gastritis condition. As we have indicated above, the best evidence available as to when Mr Kowalski contracted this condition indicates that it was present by 1995. However, whilst there is no dispute that he suffered from a duodenal ulcer during his Army service, there is nothing before us which establishes that he was also suffering from chronic gastritis at that time. Even if he was however, there is also nothing before us to support a conclusion that he was unable to obtain appropriate clinical management for chronic gastritis as a result of his service.
79.This issue was addressed by a previous Tribunal, constituted by Deputy President Jarvis, in the context of an allegation by Mr Kowalski that he failed to obtain appropriate clinical management for his duodenal ulcer. In Re Kowalski and Repatriation Commission (2008) 107 ALD 447, the Tribunal stated as follows:
“56. Mr Kowalski also contended that his having been issued with a sufficient quantity of Librax tablets to last until 1975 constituted inappropriate clinical management. However, the issue of what is appropriate clinical management is to be determined according to the state of medical knowledge at the time of service, and not according to contemporary standards: Repatriation Commission v Wellington [1999] FCA 1552; (1999) 57 ALD 507. It is clear that in 1973 Mr Kowalski had been given treatment that was thought to be appropriate according to the then state of knowledge of the treatment of ulcers: see the reports of Dr Gilmore of 26 February 1974, page 2, and 20 October 1976, page 2, which are exhibited as KK2 to the affidavit of Mr Kowalski sworn on 9 September 2005, being exhibit A13. In the latter report Dr Gilmore makes no criticism of the fact that Mr Kowalski had been given supplies of “standard ulcer treatment” at the time of his discharge from the Army. I accept Dr Spedding’s evidence that Librax could have been discontinued, and that any adverse effect of so doing (which, it appears, would have been minor) would not have been expected to have lasted more than one week after ceasing medication (exhibit R6, page 2).
57. The other aspect of his treatment was that he was advised to go on a high fat diet, but there is no evidence that this was inappropriate advice judged by the state of knowledge or medical practice then adopted. On the contrary, according to Dr Thompkins, such advice was the practice in the 1970’s, although it is not the present practice (transcript, page 275, line 10).”
80.Whilst we are not necessarily bound or constrained by the conclusions of the previous Tribunal in relation to this issue, Mr Kowalski has not placed any evidence before us which supports the proposition that, if he did suffer from chronic gastritis during his Army service, he was not provided with appropriate clinical management of that condition. The evidence which is before us indicates that he was provided with treatment for his duodenal ulcer consisting of the medication Librax and also advised to change his diet. There is nothing before us to suggest that that treatment was not in accordance with the standard practice or was not appropriate having regard to the state of knowledge at that time.
81.Indeed, Dr Hetzel was questioned in relation to this issue by Mr Kowalski at the hearing and Dr Hetzel confirmed that in the period 1970 to 1973, milk and dairy products were thought to be an important part of the diet from the point of view of treating ulcers[66]. Therefore, the evidence before us directed to this issue suggests that the treatment Mr Kowalski received during his national service for his duodenal ulcer was consistent with the medical understanding and practice of the time.
[66] Transcript, 13 January 2011, p 74.
82.For completeness, we note that in his evidence, Dr Reid acknowledged that in his report of 3 April 2008[67] he had answered “no” to the question “In the 1970’s did doctors prescribe a high in fat/high in cholesterol diet for patients with duodenal ulcers?” and adhered to that answer[68]. However, we do not regard that evidence as inconsistent with Dr Hetzel’s evidence, that in the early 1970s it was common to recommend a diet high in milk and dairy products for the treatment of ulcers.
[67] T108/459 (2009/4000).
[68] Transcript, 14 January 2011, p 15.
83.In summary, as we have indicated above, we are not reasonably satisfied on the evidence that Mr Kowalski was suffering from chronic gastritis during his defence service. Even if he was however, we are not satisfied that he failed to obtain appropriate clinical management for that condition related to his service.
84.For completeness, we note that in a written submission filed on 6 June 2011, Mr Kowalski contended that we were also obliged to consider the potential application of factor 5(b), relating to suffering from Helicobacter heilmannii infection of the stomach before the diagnosis of chronic gastritis. As there is no evidence before us of Mr Kowalski suffering from a Helicobacter heilmannii infection, we are also not satisfied that that factor is met.
85.It follows that the contentions advanced by Mr Kowalski are not upheld by the SoP and Mr Kowalski’s claim in relation to chronic gastritis fails for that reason.
Gout
86.As noted above, the respondent accepts and we are also satisfied on the material before us that Mr Kowalski suffers from gout and suffered from this condition at the time he lodged his claim. In her notes accompanying Mr Kowalski’s claim, Dr Cheung indicated that Mr Kowalski had first consulted her in relation to the condition on 11 December 2003[69]. However she also refers to him having an elevated level of serum uric acid in April 2002 and we infer from this and her oral evidence[70] that this constituted evidence that he was suffering from gout from April 2002.
[69] T134/688 (2009/4000).
[70] Transcript, 13 January 2011, p 138.
87.Whilst there is no doubt that Mr Kowalski suffers from gout, there is no medical evidence before us in support of the proposition that his gout is related to his defence service. On the material before us therefore, we are not satisfied that there is a probable connection between Mr Kowalski’s gout and his defence service and in these circumstances, it is strictly speaking unnecessary for us to proceed further in considering this claim. In case we are wrong in relation to the “probable connection” issue however, we propose to also consider whether there is a SoP in force in relation to gout and, if so, whether the contention made by Mr Kowalski is upheld by the SoP.
88.The SoP currently in force in relation to gout is Instrument No 31 of 2010, which relevantly provides as follows:
“Basis for determining the factors
4. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that gout and death from gout can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, gout or death from gout is connected with the circumstances of a person’s relevant service is:
…
(c) being obese at the time of the clinical onset of gout; or
…
(f) consuming an average of at least 200 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of gout; or
(g) consuming at least 70 grams of alcohol within the 24 hours before the clinical onset of gout;
…
(s) being obese at the time of the clinical worsening of gout; or
…
(v) consuming an average of at least 200 grams of alcohol per week for a continuous period of at least the six months before the clinical worsening of gout; or
(w) consuming at least 70 grams of alcohol within the 24 hours before the clinical worsening of gout; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(q) to 6(gg) apply only to material contribution to, or aggravation of, gout where the person’s gout was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9. For the purposes of this Statement of Principles:
…
"being obese" means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
…”
89.If Mr Kowalski is unsuccessful under the current SoP, we are also obliged to consider the previous SoP in relation to gout[71], Instrument No 12 of 2000, which (as amended by Instrument No 44 of 2003) relevantly provides as follows:
[71] See Repatriation Commission v Gorton (2001) 110 FCR 321.
“Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that gout and death from gout can be related to relevant service rendered by veterans or members of the Forces.
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.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, gout or death from gout is connected with the circumstances of a person’s relevant service are:
…
(c) being obese at the time of the clinical onset of gout; or
…
(f) drinking at least 220kg of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical onset of gout; or
…
(j) being obese at the time of the clinical worsening of gout; or
…
(n) drinking at least 220kg of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical worsening of gout; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(g) to 5(o) apply only to material contribution to, or aggravation of, gout where the person’s gout was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;”
90.The main contention advanced by Mr Kowalski is that as a result of being prescribed a diet which was high in fat and high in cholesterol by an Army doctor in 1973 to treat his duodenal ulcer, he became obese, and that his defence related obesity caused him to suffer from gout or caused a clinical worsening of his gout condition.
91.However, before turning to the question of whether any obesity suffered by Mr Kowalski was related to his service, we propose to first consider whether in fact Mr Kowalski was obese at the time of the clinical onset of his gout.
92.As noted above, the evidence suggests that Mr Kowalski first suffered gout in approximately 2002. The respondent accepts and we are also satisfied on the evidence that, given Mr Kowalski’s weight was 100kg in April 2002, he was obese at the time of clinical onset of gout. “Being obese” is defined in Instrument No 31 of 2010 as having a Body Mass Index (BMI) of 30 or greater where a person’s BMI equals their weight divided by their height in metres squared. As Mr Kowalski’s height is 1.778 metres[72] this yields the result that any weight above 95.1kg gives him a BMI over 30.
[72] T93/123 (2009/4000)
93.However, that then leaves the question of whether, on the balance of probabilities, Mr Kowalski’s obesity in 2002 was related to his service.
94.As we have noted above, Mr Kowalski contends that his obesity was caused by the diet he was prescribed by an Army doctor to treat his duodenal ulcer.
95.As to precisely what advice he was given in relation to diet in 1973, the following exchange took place at the hearing between Mr Kowalski and Member Professor Ben-Tovim:
“MR KOWALSKI: --- in the Federal Court by Jarvis DP that I was placed on a high-fat, high-cholesterol diet.
PROF BEN-TOVIM: Mr Kowalski, just for my benefit, but nobody else’s at this moment – just for my benefit, are you telling us that a medical practitioner used those specific terms in giving you a diet or that they prescribed a diet whose content---
MR KOWALSKI: Quite – milk, cheese, and ---
PROF BEN–TOVIM: Okay. So you’re saying a medical practitioner may have prescribed a diet whose content contained both fats and cholesterol.
MR KOWALSKI: Yes.
PROF BEN-TOVIM: You’re not saying that a medical practitioner actually said to you, “Take a diet which is high in fat and high in cholesterol.”
MR KOWALSKI: No.
PROF BEN-TOVIM: Okay. So you’re not – you’re saying that the diet, whatever it was ---
MR KOWALSKI: He prescribed – told me to eat cream, cheese
PROF BEN-TOVIM: --- had those components.
MR KOWALSKI: Yes.
PROF BEN-TOVIM: Well, it would be easier for us if you talked about the diet that was – you asked about the diet that was given to you rather than using a terminology which has inferences which we haven’t established.
MR KOWALSKI: Yes.
Well, in the 1970 – in 1973 would a doctor in civil practice have prescribed a diet which was cheese – you had to eat cheese, drink full-cream milk, ice cream, stuff like that? …”[73]
[73] Transcript, 13 January 2011, pp 73-74.
96.Although this exchange occurred whilst Mr Kowalski was cross-examining Dr Hetzel and Mr Kowalski gave no evidence in relation to these matters, we include the exchange here with a view to clarifying Mr Kowalski’s precise contentions about these matters.
97.Mr Kowalski also relied upon a Tribunal decision in Re Oliver and Repatriation Commission [2002] AATA 408. In that matter, it was conceded by the respondent that as a consequence of a duodenal ulcer which was accepted as being war-caused, the veteran went onto a diet which was high in saturated fats. It was contended by the applicant in that matter that this diet had led to dyslipidaemia which was a factor that gave rise to ischaemic heart disease and contributed to the veteran’s death.
98.The Tribunal noted in its decision that:
“In his oral evidence Dr Sangster upon being referred to the veteran's diet … stated that a diet high in dairy products was the standard diet for the treatment of duodenal ulcers "in those early days". He also stated that such a high dairy product diet had the likelihood of raising cholesterol by about 15 to 20 per cent and that this was generally the case. …” [74]
[74] At [23].
The Tribunal accepted in that matter that the veteran’s high dairy product diet “had the likelihood of raising cholesterol which in turn would qualify the veteran as having dyslipidaemia as described in the SoP”[75].
[75] At [44].
99.That decision is to some extent consistent with Mr Kowalski’s contentions in this matter, that is that Mr Kowalski was advised to alter his diet so as to include more dairy products as a means of treating and/or managing his duodenal ulcer. That latter contention is also consistent with the decision of Deputy President Jarvis in Re Kowalski and Repatriation Commission (2008) 107 ALD 447, at [14], and was not disputed by the respondent. The critical question in this matter however, which was not addressed in Re Oliver, is whether any change to Mr Kowalski’s diet led to him becoming obese.
100.As we have noted on a number of occasions, Mr Kowalski declined to give evidence in the matter and so we do not have the benefit of any oral evidence from him as to his weight at the time of or after his defence service. As the respondent has pointed out however, the documentary material available to us does allow some conclusions to be drawn as to what Mr Kowalski’s weight was at particular points in time both before and after his defence service. The relevant documentary records containing notes of Mr Kowalski’s weight were tendered into evidence[76] and the respondent also provided a chart recording Mr Kowalski’s weight at particular points in time between September 1971 and 2010, by reference to the documentary evidence. We did not understand Mr Kowalski to dispute the weights recorded in this chart, or in the contemporaneous documentary records, although he did contend that he may have been obese at times when no record was made of his weight.
[76] Exhibit 10, Tab 1.
101.The material provided by the respondent reveals that Mr Kowalski’s weight prior to his defence service, in September 1971, was 83.6kg and at the time of his entry medical examination record on 6 March 1972 it had decreased to 77.3kg. At the time of his discharge medical examination, Mr Kowalski weighed 79kg and there are unfortunately no records of his weight between that date and August 1982 when he underwent some knee surgery. At that time, his weight had actually decreased to 75.7kg. By 7 May 1987, it had apparently increased to 82kg, but by January 1990 it had reduced again to his lowest recorded weight during this period of 70kg. Thereafter, his weight appears to have fluctuated between 70kg and 88kg in January 1996 and by December 1997, it had increased to 97kg. Between December 1997 and January 2000, Mr Kowalski’s weight appears to have remained relatively stable. However on 9 April 2002 his weight was recorded as having exceeded 100kg and although it subsequently dropped in May and July 2002, by November 2004 it had again reached 100kg and increased from then until August 2006 when it reached 104kg. Between 14 November 2006 and 13 January 2010, Mr Kowalski’s weight fluctuated between 99kg and 111kg recorded on 19 August 2008.
102.In a chart completed in August 2007, Dr Cheung recorded Mr Kowalski’s weight and BMI at various dates between 19 November 1998 and 23 August 2007. On that chart, she indicated that the cause of his obesity throughout that period was “poor diet high in fat and lack of exercise”[77].
[77] T93/371 (2009/4000).
103.In summary, these records show that Mr Kowalski’s weight first exceeded 95.1kg in 1997, some 24 years after his discharge from the Army. The issue therefore arises of whether this increase in Mr Kowalski’s weight could be attributable to his defence service, via a change in diet to one including more dairy products, as alleged by Mr Kowalski. It is also relevant in this context that rather than steadily increasing between 1971 and 1997, Mr Kowalski’s weight fluctuated during that period between 83.6kg in 1971 and 90kg in 1996, rising to 97kg in December 1997. Mr Kowalski weighed only 70kg in January 1990 and again in January 1991. In other words, between 1973 and 1993, Mr Kowalski’s weight fluctuated within a relatively narrow range. In fact all of the weights recorded prior to November 1995 are below Mr Kowalski’s weight at the time of his entry to the Army. Therefore, for 20 years after his discharge from the Army, Mr Kowalski’s recorded weights were below his weight on entry into the Army.
104.In other proceedings, Mr Kowalski gave evidence that his weight steadily increased after he was discharged from the Army[78]. However he did not give evidence in this matter and as that previous evidence is inconsistent with the contemporaneous documentary evidence, we do not accept that earlier evidence as being correct on the material before us. We also note that Mr Kowalski told Dr Hetzel that his weight remained around 73kg until about 1994[79].
[78] T121/553 (2009/4000).
[79] Transcript, 13 January 2011, p 102.
105.The difficulty for Mr Kowalski’s argument as we see it is that if a change in diet resulting from his service had caused his weight to increase, we would have expected to see some resulting weight gain during the 20 years following his discharge from the Army. The fact that, from the available records, his weight during that period was either less than or about the same as his weight on entry to the Army appears on its face inconsistent with Mr Kowalski’s contention that a permanent change to his diet commencing during his service caused his weight to increase. Rather, the recorded data available suggests that any change Mr Kowalski made to his diet in or around 1973 did not cause his weight to increase in the ensuing 20 years and in fact appears to have caused a marginal decrease in his weight on average during that period. Against that background, it appears to us to be extremely difficult for Mr Kowalski to argue that an increase in his weight at a later time period, i.e. from 1996 onwards, can be related to his service. It appears to us far more likely that the increase in his weight at that time and subsequently was related to other factors operating in his life at the relevant time and was unrelated to his defence service.
106.Of course if Mr Kowalski had sought to adduce medical evidence in support of some form of delayed effect of his change of diet in 1973 which only manifested in weight gain some 20 years later, we would have been willing to and indeed obliged to consider that evidence. However, Mr Kowalski has not provided any medical evidence in support of his assertion that the change in his diet from 1973 onwards caused his weight to increase some 20 years later. In those circumstances, and for the reasons we have already given, we are unable to accept that contention.
107.That being the case, it becomes unnecessary for us to consider whether as a matter of fact, Mr Kowalski did change his diet as a result of advice given to him by an Army doctor. That is because, even if we were satisfied that this was established, we would not be satisfied that Mr Kowalski’s obesity in 2002 was related to his defence service.
108.It follows that the contention advanced by Mr Kowalski does not meet factor 6(c) of Instrument No 31 of 2010. Nor does it meet factor 5(c) of Instrument No 12 of 2000. Factor 6(s) of Instrument No 31 of 2010 and factor 5(j) of Instrument No 12 of 2000 each only apply if gout was suffered or contracted before or during service and therefore Mr Kowalski’s contentions also do not meet those factors.
109.We should also note that although he did not emphasise it orally, in his written contentions Mr Kowalski argued that his gout was also attributable to drinking alcohol which in turn was related to his Army service, so as to satisfy factor 5(f) of Instrument No 12 of 2000. However, Mr Kowalski did not adduce any evidence that he was drinking at least 220kg of alcohol (contained within alcoholic drinks) within the 10 years immediately before the clinical onset of gout, i.e. from 1992, or that he was drinking at least 220kg of alcohol within the 10 years immediately before any clinical worsening of gout. Nor did he adduce any evidence that he was consuming an average of at least 200 grams of alcohol per week for a continuous period of at least six months before the clinical onset of gout, or consuming at least 70 grams of alcohol within the 24 hours before the clinical onset of gout, or that he was consuming the requisite amounts of alcohol for the required period before any clinical worsening of gout. Further, the “clinical worsening” factors, 6(v) and 6(w) of Instrument No 31 of 2010 and 5(a) of Instrument 12 of 2000, only apply where gout was suffered or contracted before or during service.
110.Therefore we are also not satisfied that Mr Kowalski’s contentions meet factors 6(f), (g), (v) or (w) of Instrument No 31 of 2010, or factors 5(f) or 5(n) of Instrument No 12 of 2000.
111.For completeness, we should also note that there is some evidence which would support Mr Kowalski having suffered from gout at an earlier time. Medical records summonsed from the Sturt Road Family Clinic record him as suffering from gout from 1986[80]. However, from the records produced by that practice, Mr Kowalski appears to have first consulted the practice in 2009 and so the date recorded in relation to the onset of gout appears to be based on a history given by Mr Kowalski. In those circumstances, we consider Dr Cheung’s records are likely to be more accurate and we are satisfied that the clinical onset of gout was in 2002.
[80] Exhibit 10, Tab 5.
112.Even if the clinical onset of gout was in 1986 however, on the basis of the evidence referred to above, we would not have been satisfied that Mr Kowalski was obese at that time. Nor would we have been satisfied that Mr Kowalski was consuming the required amount of alcohol for the requisite time period to satisfy either of the SoPs. Therefore even if Mr Kowalski first suffered from gout in 1986, that would not have affected our conclusions in relation to a probable connection between Mr Kowalski’s gout and his service, or satisfaction of the SoPs.
113.We should also note that in his written submissions filed on 6 June 2011, Mr Kowalski contended that we were obliged to consider the potential application of factors 5(b) and (h) of Instrument No 12 of 2000, each relating to being treated with a specified drug before the clinical onset or clinical worsening of gout. However, in the absence of any evidence before us that Mr Kowalski was treated with a drug specified in the SoP or that such treatment was related to his service, we are also not satisfied that those factors are met.
Diabetes mellitus
114.As noted above, the respondent accepts and we are also satisfied that Mr Kowalski suffers from diabetes and did so at the time he lodged his claim for that condition. Dr Cheung diagnosed Mr Kowalski as suffering from type 2 diabetes in June 2004 on the basis of a glucose tolerance test[81].
[81] T134/689 and 691 (2009/4000).
115.As to the question of a probable connection between Mr Kowalski’s diabetes and his defence service, there is no medical opinion in the material before us attributing Mr Kowalski’s diabetes to his defence service and in those circumstances, it is not strictly necessary for us to proceed to consider any applicable SoP. In case we are wrong in concluding that there is no probable connection however, we propose to consider the potential application of the relevant SoP. The current SoP for diabetes mellitus is Instrument No 90 of 2011 and we are also obliged to consider the previous SoP, Instrument No 12 of 2004, which was in force at the time Mr Kowalski lodged his claim[82].
[82] Repatriation Commission v Gorton (2001) 110 FCR 321.
116.Instrument No 90 of 2011 relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor 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 is:
…
(b) for type 2 diabetes mellitus only,
(i) being overweight for a period of at least five years before the clinical onset of diabetes mellitus; or
…
(j) for type 2 diabetes mellitus only,
(i) being overweight for a period of at least five years before the clinical worsening of diabetes mellitus; or
(ii) an inability to undertake any physical activity greater than three METs for at least the ten years before the clinical worsening of diabetes mellitus; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(j) to 6(r) apply only to material contribution to, or aggravation of, diabetes mellitus where the person’s diabetes mellitus was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9. For the purposes of this Statement of Principles:
…
‘being overweight’ means an increase in body weight by way of fat accumulation which results in at least one of the following:
(i) a Body Mass Index (BMI) of 25 or greater; or
(ii) a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
…”
117.The previous SoP, Instrument No 12 of 2004 relevantly provides as follows:
“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.
Factors
5. The factor 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 is:
…
(b) in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus; or
…
(t) in relation to type 2 diabetes mellitus, an inability to undertake any physical activity greater than 3 METs for at least the 10 years immediately before the clinical onset of diabetes mellitus; or
…
(v) in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical worsening of diabetes mellitus; or
…
(zk)in relation to type 2 diabetes mellitus, an inability to undertake any physical activity greater than 3 METs for at least the 10 years immediately before the clinical worsening of diabetes mellitus; or
(zl) inability to obtain appropriate clinical management for diabetes mellitus.
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(u) to 5(zl) apply only to material contribution to, or aggravation of, diabetes mellitus where the person’s diabetes mellitus was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.”
118.The factors relied upon by Mr Kowalski from Instrument No 12 of 2004 are factors 5(b), 5(t), 5(v), 5(zk) and 5(zl).
119.In relation to his reliance upon obesity, Mr Kowalski postulates the same mechanism as that referred to above in relation to gout, i.e. his obesity resulted from a change to his diet during his defence service and which persisted after that time.
120.Consistently with the approach endorsed by the Federal Court in Gorton, we would usually consider the potential application of the current SoP first, and if Mr Kowalski’s claim was unsuccessful, under that SoP, we would consider the potential application of the previous SoP. However as the current SoP came into force on 13 July 2011, after the final hearing, and the parties’ submissions addressed only the previous SoP, we propose to consider the previous SoP first before turning to the potential application of the current SoP.
121.Turning first to factors 5(b) and 5(v) of SoP 12 of 2004, given that Mr Kowalski was first diagnosed with diabetes mellitus in June 2004 and we consider the condition had its clinical onset then, factor 5(b) requires him to have been obese since June 1994, with “being obese” relevantly defined in the SoP as having a BMI of 30 or greater. However, as discussed above, Mr Kowalski’s BMI first exceeded 30 according to the available records on 27 December 1997 when his weight exceeded 95.1kg for the first time. As that date is less than 10 years before the date of clinical onset of Mr Kowalski’s diabetes and in fact his weight on 16 February 1996 was 90kg, yielding a BMI of below 30, it is clear that the facts which emerge on the evidence before us do not meet these factors of the SoP.
122.We should acknowledge that, in support of his contention that he was obese in 1994, Mr Kowalski put forward a relatively complicated argument based upon when he was first diagnosed with GORD and an asserted causal connection between GORD and obesity. As we understand it, Mr Kowalski’s argument was as follows:
(a)clinical onset of his GORD condition was now shown to have occurred in 1987;
(b) the medical evidence before us was to the effect that obesity is often a major factor in the development of GORD;
(c)therefore, he must have been obese by 1987, as he had GORD by that date[83].
[83] Mr Kowalski’s letter of 18 May 2011 marked HD-4329, at Tab 3 of Exhibit 9.
123.However in our view there is a serious flaw in the logic relied upon by Mr Kowalski. We accept that the medical evidence before us is to the effect that obesity is often a major factor in the development of GORD[84]. Whilst it is not strictly necessary for us to determine this issue, we also accept that there is material before us that would support a conclusion that the clinical onset of GORD was in 1987 or earlier[85]. However, the fact that obesity is often a major factor in the development of GORD does not have the consequence that obesity must necessarily be present in every case where a person develops GORD, and we do not take any of the medical evidence before us to suggest that.
[84] See Exhibit 8, Tab 7, Tab 13, Tab 24.
[85] See Exhibit 8, Tab 6; Transcript, 14 January 2011, pp44-47, 51, 83.
124.In fact, the evidence before us suggests the contrary. For example, during the hearing the following exchange occurred between the Tribunal and Dr Reid:
“MS BEAN: Doctor, based upon that, assuming that the condition did commence in around 1987 or a bit before, do you consider that the Tribunal could infer from that, that Mr Kowalski was obese at that time?---No.
Why do you say that?---Because you don’t have to be obese to get GORD.
PROF BEN-TOVIM: Thank you?---Plenty of thin people have GORD.
MS BEAN: Thank you.
PROF BEN-TOVIM: Just to clarify that, you’re not arguing – you’re stating – or let me ask you a question. Is obesity a necessary occurrence prior to the development of GORD?---No.
Thank you?---No.”[86]
[86] Transcript, 14 January 2011, p 49. Dr Reid was previously of the opinion that Mr Kowalski was obese at the time of onset of his GORD condition, however, that was at a time when he believed the onset of GORD was later; T164/1016 (2009/4000).
125.Dr Hetzel also gave evidence in earlier proceedings that in order for obesity to be a factor in the development of GORD, obesity must precede the GORD[87]. In this matter, he gave evidence that Mr Kowalski was not obese in 1987, as he weighed approximately 82kg at that time. He acknowledged that obesity may have contributed to Mr Kowalski’s GORD at a later point in time[88].
[87] See Exhibit 8, Tab 24.
[88] Transcript, 13 January 2011, pp 92-93.
126.Further, having regard to the contemporaneous records of Mr Kowalski’s weight referred to above, the evidence before us satisfies us that Mr Kowalski was not obese at the time he is first recorded as showing signs of GORD, in 1987, and indeed Mr Kowalski acknowledged that he weighed 82kg at that time. Further, the evidence we have of Mr Kowalski’s weight also satisfies us that he was not obese prior to 1987 and it therefore follows that in his case, obesity does not appear to have been a factor in the development of his GORD condition, assuming for present purposes that he was suffering from this condition in 1987 or earlier. Of course that does not mean that his subsequent obesity may not have contributed to the condition at a later time.
127.We note that this conclusion is consistent with the conclusion of a differently constituted Tribunal that Mr Kowalski was not obese in August 1984 and the decision of another Tribunal that Mr Kowalski’s significant weight gain did not occur until the mid 1990s and there was no link between Mr Kowalski’s weight gain and his Army service[89].
[89] T154/917 (2009/4000).
128.For completeness, we should also add that even if it had been established that Mr Kowalski had been obese for 10 years prior to the clinical onset of diabetes, i.e. since 1994, for the reasons outlined above in the context of Mr Kowalski’s claim for gout, we would not have been satisfied that Mr Kowalski’s obesity in the mid 1990s was related to his defence service ending in 1973. It follows that Mr Kowalski’s contentions do not meet factor 5(b) of Instrument No 12 of 2004. As factor 5(v) only applies where diabetes mellitus was suffered or contracted before or during service, that factor is also not met on the evidence before us.
129.Turning to factors 5(t) and 5(zk), these require Mr Kowalski to establish an inability to undertake any physical activity greater than “3 METs”[90] for at least the 10 years immediately prior to the clinical onset of diabetes mellitus, i.e. from 1994, or for at least the 10 years before the clinical worsening of diabetes. However, as we have noted previously, Mr Kowalski did not give evidence at the hearing and has provided no evidence that he was unable to undertake physical activity or any specific level of physical activity between 1994 and 2004. Nor has he put forward evidence that he suffered a clinical worsening of his diabetes and that he had been unable to undertake the requisite level of physical activity for 10 years prior to that clinical worsening. In any event, factor 5(zk) only applies where the person’s diabetes mellitus was suffered or contracted before or during service. In those circumstances, we are not satisfied that factor 5(t) or factor 5(zk) are met on the evidence.
[90] In the SoP, “MET” is defined as follows: “MET means a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate.”
130.In relation to factor 5(zl) relating to inability to obtain appropriate clinical management for diabetes mellitus, Mr Kowalski was diagnosed with diabetes in 2004. His defence service ended in 1973 and we cannot see how Mr Kowalski’s defence service, which ended some 30 years before he was diagnosed, is related to any inability on his part to obtain appropriate clinical management for the condition. In any event, factor 5(zl) only applies where diabetes mellitus was suffered or contracted before or during service[91]. Accordingly, we are also not satisfied on the evidence that factor 5(zl) is met on the evidence.
[91] See paragraph 6 of the SoP.
131.Turning to the current SoP, Instrument No 90 of 2011, as we have noted above this SoP took effect from 13 July 2011 and therefore was not addressed by either party at the hearing. We have examined that SoP however in light of the evidence and we are satisfied that the potentially applicable factors are 5(b)(i), 5(j)(i) and 5(j)(ii). We note that the requirements of this SoP are different from those of the previous SoP, in particular because the current SoP only requires a person’s BMI to be 25 or greater for a period of 5 years prior to the clinical onset of diabetes.
132.In Mr Kowalski’s case, his BMI in July 1999 was 28.79 and on the available evidence, his BMI did not fall below that level between that date and June 2004, when he was diagnosed with diabetes. Accordingly, the evidence before us satisfies factor 5(b)(i) subject to Mr Kowalski’s weight in 1999 being related to his service. For the reasons given above however, we are not satisfied that Mr Kowalski’s weight in the period 1999 to 2004 was related to his defence service, which ended some 25 years previously. Nor are we satisfied that any clinical worsening of Mr Kowalski’s diabetes subsequently was related to weight gain which in turn was related to his defence service, or that it was related to inability to undertake physical activity related to service. In any event, factor 5(j) only applies where a person’s diabetes mellitus was suffered or contracted before or during service[92]. It follows that factors 5(b)(i), 5(j)(i) and 5(j)(ii) of Instrument No 90 of 2011 are not satisfied on the evidence before us and as the evidence does not satisfy any of the applicable factors in either of the relevant SoPs, it also follows that Mr Kowalski’s claim in respect of diabetes mellitus must fail.
[92] See paragraph 7 of the SoP.
133.We note that our conclusions in relation to Mr Kowalski’s diabetes are consistent with the decision of a differently constituted Tribunal in an earlier matter[93], albeit in a different statutory context.
[93] T148/868 (2009/4000).
Cholelithiasis
134.As we have noted above, the respondent accepts and we are also satisfied that Mr Kowalski suffers from the condition of cholelithiasis or “gallstones” and suffered from that condition at the time that he lodged his claim for that condition. The evidence before us suggests that the clinical onset of this condition was in October 1998[94].
[94] T111/468 and T38/209 (2009/4000).
135.In relation to whether there is a probable connection between this condition and Mr Kowalski’s defence service, there is no medical evidence before us which supports a connection and we are therefore not satisfied that such a connection has been established. In these circumstances, it is not strictly necessary for us to proceed to consider any applicable SoP. However, against the possibility that our conclusion as to the absence of a probable connection is incorrect, we propose to proceed to consider the potential application of the applicable SoP, being Instrument No 8 of 2008.
136.That SoP relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, cholelithiasis or death from cholelithiasis is connected with the circumstances of a person’s relevant service is:
(a) being obese for at least the five years before the clinical onset of cholelithiasis; or
…
(h) having type 2 diabetes mellitus at the time of the clinical onset of cholelithiasis; or
…
Other definitions
For the purposes of this Statement of Principles:
…
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
…”
137.Mr Kowalski relies upon factors 6(a) and (h) and we are satisfied that none of the other factors listed in the SoP are potentially relevant. In relation to factor 6(a), given the diagnosis of cholelithiasis in October 1998, this requires Mr Kowalski to have had a BMI of 30 or above between October 1993 and October 1998.
138.As we have discussed above however, on the material available to us, Mr Kowalski’s BMI first reached 30 in December 1997 and did not remain consistently at that level until the period from November 2004 onwards. It therefore follows that this factor is not satisfied on the evidence. For completeness, we should also add that even if it had been established that Mr Kowalski’s BMI had exceeded 30 for the five years prior to the clinical onset of the cholelithiasis condition, we would not have been satisfied that his weight during that period was related to his defence service.
139.In relation to factor 6(h), this requires Mr Kowalski to have had type 2 diabetes at the time of clinical onset of cholelithiasis. As Mr Kowalski’s diabetes did not have its clinical onset until June 2004 and his cholelithiasis was diagnosed in October 1998, this factor is not met on the evidence. Even if it had been however, for the reasons given above, we would not have been satisfied that Mr Kowalski’s diabetes was related to his defence service and the factor would also not have been satisfied for that reason[95].
[95] See paragraph 8 of Instrument No 8 of 2008.
140.For completeness, we should note that in a written submission filed on 6 June 2011, Mr Kowalski also contended that we were obliged to consider the potential application of factor 6(c) relating to specified drug treatment, factor 6(l) relating to having a spinal cord injury, and factor 6(p) relating to failure to obtain clinical management for cholelithiasis. However, there is no evidence before us to suggest that Mr Kowalski underwent drug treatment of the kind specified, that he has suffered a spinal cord injury or that he was unable to obtain appropriate clinical management for cholelithiasis, as a result of his service. Further factor 6(p) only applies where a person’s cholelithiasis was suffered or contracted before or during service. Therefore we are also not satisfied that any of those factors are met.
141.As the contentions advanced by Mr Kowalski are not upheld by the cholelithiasis SoP, it follows that Mr Kowalski’s claim in respect of this condition cannot succeed.
other issues
Mr Kowalski’s failure to give evidence
142.As we have noted above, Mr Kowalski deliberately elected not to give evidence in the proceedings, despite being warned that his failure to do so could have the consequence that some of his factual assertions may not be accepted by the Tribunal or may be given less weight than they may otherwise have been if he had given oral evidence about those matters. The respondent also contended that Mr Kowalski’s failure to give evidence should have the consequence that the Tribunal did not accept his factual assertions, or his previous evidence in other matters unless these were corroborated by other independent evidence[96]. The respondent further contended that this should also have the consequence that the Tribunal would be less willing to depart from the findings and conclusions reached in previous Tribunal proceedings than it may otherwise have been[97].
[96] Transcript, 13 January 2011, p 25.
[97] Transcript, 13 January 2011, p 27.
143.Some observations made by Deputy President Jarvis in another matter involving Mr Kowalski, Re Kowalski and Repatriation Commission (2008) 107 ALD 447, are relevant in this context. In that matter, after referring to the respondent’s obligation to provide documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Deputy President went on to state as follows:
“However, except to this extent, it remained necessary for Mr Kowalski to adduce evidence or documents in support of his claim. Proceedings in this tribunal are administrative proceedings, and where (as in the present matter) the relevant legislation does not impose, expressly or by implication, an onus of proof, neither party bears such an onus: Bushell (supra) at 425. Nevertheless, it remains necessary for a party asserting facts to adduce evidence which would support a finding by the tribunal that those facts exist: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 358. This proposition was clearly explained by SM Todd in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, at [18], as follows:
‘I think that this is an instance in which, while no general responsibility of proof rests upon an applicant in an application to the Tribunal for review ... yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.’”
144.Whilst this Tribunal has generally declined to require an applicant to give evidence[98], we agree with the respondent that, having regard to the principles articulated above, the failure by an applicant to give evidence of facts within their knowledge must have consequences for the Tribunal’s consideration of their case. In particular, as we warned Mr Kowalski during the hearing, it must have the consequence that the Tribunal will not accept as evidence unsupported assertions made by the applicant in relation to matters the applicant could have given evidence about, but has elected not to.
[98] Re AK and Commissioner for Superannuation (1986) 11 ALN N106; Re Australian Petroleum Supplies Pty Ltd and Giuliano (2001) 66 ALD 676.
145.We have accordingly taken the view that we have not been prepared to accept the uncorroborated assertions by Mr Kowalski as to factual matters as evidence of those matters. Nor have we been prepared to accept evidence given by him in other matters as being of equal weight to evidence he could have given in this matter, although we have had regard to that evidence.
The relevance of previous Tribunal decisions
146.Each of the parties relied upon the doctrine of estoppel or analogous principles to say that this Tribunal should not revisit matters which had been the subject of previous Tribunal decisions. For example, Mr Kowalski argued that it had been found in at least one previous Tribunal decision that he had been placed on a “high fat high cholesterol diet” to treat his duodenal ulcer during his Army service and that issue could not now be further contested by the respondent. He also argued that the respondent was bound by previous concessions it had made in regard to that issue and other issues in the context of other matters. He also argued that the Tribunal was bound by matters of factual background recorded in various decisions of the Federal Court, and by the conclusions of various decision-makers at different levels of review in the context of previous matters.
147.The respondent, whilst acknowledging that the extent to which the doctrine of estoppel operates in the context of Tribunal proceedings is uncertain, contended that as a matter of discretion and in reliance upon its statutory powers, the Tribunal should regard certain matters as having been settled by previous Tribunal decisions and conclude that there was insufficient justification for those matters to be reconsidered in the absence of compelling fresh evidence bearing upon them.
148.In relation to Mr Kowalski’s contentions, we do not regard the respondent as having been bound by concessions or decisions made in the context of other matters or at other levels of review. We acknowledge that in the context of an earlier decision, Deputy President Hack observed that it was inappropriate for the respondent to resile from a concession made about the nature of the diet prescribed to Mr Kowalski during his Army service[99]. However, the respondent did not make any concessions in relation to that issue in the context of this matter or seek to take a position different from that which was ultimately taken in the matter before Deputy President Hack. Further, for the reasons given above, the precise characterisation of the diet prescribed to Mr Kowalski is ultimately of little consequence in the context of this matter, since we are satisfied that Mr Kowalski’s weight did not increase as a result of the diet he adopted in response to any advice given to him.
[99] Exhibit 8, Tab 2.
149.In relation to the respondent’s contentions, as the respondent acknowledged, on our understanding of the authorities, it is not clearly established that the doctrines of Anshun estoppel and issue estoppel operate in the context of AAT proceedings[100]. However regardless of whether these doctrines are applicable, we accept that s 33 of the AAT Act gives us power to control our own procedures and s 25(4A) gives us power to limit the questions of fact, the evidence and the issues that we consider. It is also well established on the authorities that one consequence of these powers is that we have a discretion as to whether we will entertain or consider again, issues which have already been determined between the same parties by a previous decision of the Tribunal. We also acknowledge that the applicable authorities are to the effect that the Tribunal should general not allow “re-litigation” of issues previously decided, at least in the absence of compelling fresh evidence[101].
[100] See, for example: Singh v Secretary, Department of Employment & Workplace (2006) 95 ALD 569 per Weinberg J as affirmed in Singh v Secretary, Department of Employment & Workplace [2007] 46 AAR 447 per Dowsett, Siopis & Middleton JJ; Re Repatriation Commission and Kowalski [2009] AATA 853 per Hack DP at [17]-[20]; Kowalski v Repatriation Commission [2010] FCA 409 per Mansfield J at [81]. But see also Re House and DFRDBA [2010] AATA 147 per Hack DP at [18]-[19]; Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18 per Ryan, Dowsett and Selway JJ at [12]-[13], Re Rana and MRCC (2008) 104 ALD 595 per Forgie DP at p 632; Re Jebb and Repatriation Commission (2005) 86 ALD 182 per Jarvis DP at [42]-[57]; and Re Filsell and Comcare (2009) 109 ALD 198 per Jarvis DP at [52]-[64].
[101] See Comcare v Grimes (1994) 50 FCR 60; Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at p 526; Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at pp 389-390.
150.In the context of these proceedings, the issues which have been dealt with and determined by previous Tribunal decisions and which are potentially relevant to this matter include the following:
(a) whether Mr Kowalski suffers from defence caused obesity due to a diet that was prescribed to treat a duodenal ulcer contracted by him whilst he was serving in the Army[102];
(b) whether Mr Kowalski consumed a significant amount of alcohol over an extended period of time beginning while he was in the Army and that alcohol consumption had a detrimental effect on his health[103]; and
(c) whether Mr Kowalski suffered from a defence caused Helicobacter pylori bacteria infection whilst he was serving in the Army[104].
[102] See Re Kowalski and Repatriation Commission [2008] 107 ALD 447 per Jarvis DP at [26], [66], [70]-[77] and [122]; Kowalski v Repatriation Commission [2009] FCA 794 per Besanko J at [17], [26] and [41]-[43]; Kowalski v Repatriation Commission [2010] FCAFC 19; Kowalski v Repatriation Commission [2010] HCASL 209; Re Repatriation Commission and Kowalski [2009] AATA 853 per Hack DP at [47], [54] and [56]; and Kowalski v Repatriation Commission [2010] FCA 409 per Mansfied J at [55]-[56] and [94]-[95]. See also Re Kowalski and MRCC [2009] AATA 38 per Lander J and Eriksen M at [158], [189], [264], [278], [298]-[299]; Kowalski v MRCC (2010) 114 ALD 8 per Marshall, Tracey and Foster JJ at [29], [52]; Kowalski v MRCC [2010] HCASL 209; Re Kowalski and MRCC [2009] AATA 382 per Hastwell, Reilly and Ellis MM at [35], [49], [71]-[74]; Kowalski v MRCC [2010] FCA 408 per Mansfield J at [19], [37(ii) & (iii)].
[103] See Re Kowalski and Repatriation Commission [2008] 107 ALD 447 per Jarvis DP at [78]-[79]; Kowalski v Repatriation Commission [2009] FCA 794 per Besanko J at [72]-[73]; Kowalski v Repatriation Commission [2010] FCAFC 19; Kowalski v Repatriation Commission [2010] HCASL 209; Re Repatriation Commission and Kowalski [2009] AATA 853 per Hack DP at [51], [54]; and Kowalski v Repatriation Commission [2010] FCA 409 per Mansfied J at [59]-[60]. See also Re Kowalski and MRCC [2009] AATA 382 per Hastwell, Reilly and Ellis MM at [44], [60], [75]-[76]; Kowalski v MRCC [2010] FCA 408 per Mansfield J at [38]-[40].
[104] See Re Kowalski and Repatriation Commission [2008] 107 ALD 447 per Jarvis DP at [49]-[52], [54]; Kowalski v Repatriation Commission [2009] FCA 794 per Besanko J at [10]-[13], [40]; Kowalski v Repatriation Commission [2010] FCAFC 19; Kowalski v Repatriation Commission [2010] HCASL 209.
151.The respondent contended that either Mr Kowalski should not be permitted to revisit these issues by reason of the doctrines of Anshun estoppel and issue estoppel or, in the alternative, the Tribunal should in its discretion not permit Mr Kowalski to seek to agitate these issues again, in the absence of compelling fresh evidence.
152.However, rather than asking the Tribunal to adjudicate on those issues in advance of any hearing, these arguments were outlined in the respondent’s Statement of Facts, Issues and Contentions and raised on the first day of what was anticipated to be the final hearing in the matter. In those circumstances, and noting that a number of doctors had been scheduled to give medical evidence on the days set aside for the hearing, the respondent ultimately elected to proceed with that hearing rather than applying to have the Tribunal deal with those issues as a preliminary matter[105].
[105] Transcript, 13 January 2011.
153.In those circumstances, we proceeded to receive evidence in the same way in which we would have if there had been no previous consideration of any of the issues in the matter. Having done so, there is clearly less utility in us proceeding to consider whether and to what extent we should not revisit issues which have been determined in previous Tribunal decisions. If we had considered those questions at an earlier stage in the proceedings, there may have been a clear potential benefit in us ruling on them in advance of any final hearing, as this would have potentially shortened the hearing and reduced the number of issues which we and the parties were required to consider and address in the course of that hearing.
154.Indeed, that is at least one of the rationales for the approach adopted and advocated in decisions of the Tribunal such as Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at [526]. Having conducted a full hearing in relation to all of the issues however, one of the main objectives to which that approach is directed can no longer be achieved by us adopting it. In more colloquial terms, “the horse has already bolted” as we have already conducted a full hearing addressed to all issues in the proceedings and the respondent has already been put to the expense of conducting the hearing on that basis.
155.Therefore whilst there is some force in the respondent’s contentions on these matters, having received evidence and heard arguments directed to all of the issues, we have found it more appropriate to determine those issues on the basis of the evidence and arguments before us in this matter, albeit with some reference to earlier Tribunal decisions where appropriate. Given that in the case of some issues, further evidence has come to light since the issue was previously considered by the Tribunal, we also consider the approach we have taken to be more expedient for that reason.
156.In the event, as we have noted earlier in these Reasons, our conclusions in relation to issues considered by previous Tribunals are consistent with those previous decisions.
The Tribunal’s obligation to make further inquiries
157.Mr Kowalski also asserted, as he has in earlier matters[106], that having regard to statements made by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at pp 424-5 and by the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47], this Tribunal should have pursued its own inquiries in relation to his claims. In fact, he appeared to be suggesting at some points during the hearing and in his written submissions that it was sufficient for him to assert an entitlement, based on a postulated chain of causation, and at that point it became a matter for the Tribunal to fully investigate that claim, including arranging relevant medical examinations, with a view to either proving or disproving the claim.
[106] See Re Kowalski and Repatriation Commission (2008) 107 ALD 447 at [28].
158.In our view however, this fundamentally misunderstands the nature and role of this Tribunal. The Federal Court has consistently found, including in matters involving Mr Kowalski that, whilst this Tribunal has an obligation to inquire in some circumstances, those circumstances are quite limited. Certainly the Tribunal is obliged to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained”[107]. However, it is generally sufficient and appropriate for the Tribunal to carefully consider the material adduced by the parties, consistently with their obligations. Certainly the Tribunal is not under an obligation to conduct its own inquiries in relation to every issue that arises in an application before it, even where a party requests it to do so.
[107] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25].
159.In this matter, we do not consider there to have been any “critical facts” which could easily have been investigated by us and have not been addressed by the evidence. Mr Kowalski has simply failed to supply evidence in support of his claims, and has chosen himself not to give evidence in relation to relevant matters, including facts which he asserts in support of his claims. In those circumstances, it is not part of the obligation of this Tribunal to seek out further information, particularly when the evidence which is available to us in relation to the key issues is reasonably consistent and there is little to suggest that further evidence would lead us to a different conclusion.
160.For these reasons, we do not consider that we are under an obligation to make any further inquiries in relation to the issues arising in these applications.
conclusion
161.For the reasons given above, we are not reasonably satisfied that Mr Kowalski suffers from the conditions of acute stress disorder, sleep apnoea, carotid arterial disease, or erectile dysfunction. We have accordingly concluded that his claims in relation to those conditions must fail for that reason.
162.We are reasonably satisfied that he suffers from the conditions of chronic gastritis, gout, diabetes mellitus, and cholelithiasis. However, in the case of each of those conditions, we are not satisfied that the material before us establishes a probable connection between the condition and Mr Kowalski’s service. Further, in relation to each of those conditions, we are also not satisfied that the connections contended for by Mr Kowalski are upheld by the applicable SoP or SoPs. For those reasons, we have concluded that the conditions are not defence-caused and therefore his claims in relation to those conditions must also fail.
163.We have accordingly decided to vary the decision under review in application 2009/4000 so as to reflect our conclusions as outlined above, and affirm the decision under review in application 2010/2439.
decision
164.In application 2009/4000, the Tribunal:
(a)varies the decision under review so as to provide that the applicant does not suffer from and has not at any relevant time suffered from the conditions of:
(i) erectile dysfunction; or
(ii) carotid arterial disease; and
(b) otherwise affirms the decision under review.
165.In application 2010/2439, the decision under review is affirmed.
I certify that the 165 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
and Professor D Ben-Tovim (Member)Signed: .............J Coulthard.........................................
AssociateDates of Hearing 13-14 January 2011, 6 April 2001 and
8-9 June 2011
Date of Decision 9 September 2011
Advocate for the Applicant Self-represented
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Australian Government Solicitor
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