Lipke and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2168

Lipke and Repatriation Commission (Veterans' entitlements) [2017] AATA 2168 (13 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2319
Re:Craig Lipke
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:13 November 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[Sgd]......................................
Deputy President J Sosso
CATCHWORDS
VETERAN’S AFFAIRS – Veteran’s Entitlements – whether the veteran’s condition was defence-caused – rhabdomyosarcoma – inability to obtain appropriate clinical management – where the condition was treated quickly and appropriately – the decision under review affirmed
LEGISLATION
Military Compensation and Rehabilitation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Brown v Repatriation Commission [2003] FCA 1130
Johnston v Commonwealth (1982) 150 CLR 331
Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901
Lipke and Repatriation Commission [2014] AATA 729
Repatriation Commission v Money [2009] FCAFC 11;173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Wedekind [2000] FCA 649
Somerset v Repatriation Commission [2005] FCA 1399
SECONDARY MATERIALS
Statement of Principles concerning Soft Tissue Sarcoma (Instrument No. 6 of 2015)
REASONS FOR DECISION
Deputy President J Sosso
13 November 2017
INTRODUCTION

Mr Craig Lipke (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) of 1 March 2017 that the Applicant’s rhabdomyosarcoma condition was not related to service.
The veteran is currently 53 years old and enlisted in the Australian Army (the Army) on 3 March 1982. He rendered eligible defence service from 30 March 1982 to 30 June 2004. He also rendered periods of eligible operational service at various times in 2000 – 2004. His service after 30 June 2004 is not covered by the Act but is governed by the provisions of the Military Compensation and Rehabilitation Act 2004.
The veteran does not contend that his rhabdomyosarcoma condition arose out of his service, and the evidence before the Tribunal suggests that it is not the case – Exhibit 1 T29 p. 49. It is also not contested that his condition was diagnosed during his service. However, the gravamen of the Applicant’s case is that due to an inability to obtain appropriate clinical management, during his service, his condition worsened.
The overall factual matrix is not in dispute. The starting point is 13 May 1997 when the veteran presented to Army medical practitioners complaining of a lump in his neck. The note of his initial consultation with a medic is as follows – Exhibit 1 T5 p. 21:
“presents with lump in ® side of neck which appeared last Thursday. Finding it difficult to swallow with minimal pain. No previous history of growths. Sub dermal lump approx. 1 – 1.5 cm long. Not mobile. A/?? Refer MO.”
A further note on the same day in the Applicant’s Clinical Record by the treating doctor states:
“Most likely lymph node. No evidence of ear or throat infection. No scalp problems. No other masses. No systemic symptoms…watch and wait. Review 14 days.”

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Lipke and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 2168
Decision Date: 13 November 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Lipke against a decision of the Repatriation Commission concerning his veteran's entitlements. The core of the dispute revolved around whether Mr Lipke's condition, rhabdomyosarcoma, was defence-caused, specifically focusing on the alleged inability to obtain appropriate clinical management. The appeal was heard by Deputy President Sosso P.

The legal issues before the court were whether the Tribunal could be reasonably satisfied that Mr Lipke's rhabdomyosarcoma was defence-caused. This required consideration of whether there was a connection between his service and the condition, particularly in relation to the inability to obtain appropriate clinical management, and whether a Statement of Principles (SoP) in force upheld his contention.

The court considered medical evidence from Dr Helen Juffs, Associate Professor William Coman, and Associate Professor Thomson. Dr Juffs noted that while there may have been a delay in diagnosis, whether this adversely affected the prognosis depended on the surgical resectability of the disease at the time of presentation. Associate Professor Coman opined that the tumour was likely too advanced for surgical resection even in May 1997, and that while resectability would have improved prognosis, the guarded prognosis for Stage IV rhabdomyosarcoma with metastatic disease would remain. Associate Professor Thomson confirmed the Stage IV diagnosis and noted that while tumour bulk is a prognostic factor, resectability is the most important. The Tribunal, having carefully considered all the evidence and submissions, formed a negative opinion on the balance of probabilities.

The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Respondent further submits (RSFIC para 4.4) that the Tribunal could only be reasonably satisfied that claimed rhabdomyosarcoma is defence-caused if the material before the Tribunal raises a connection between some service rendered by the veteran, namely in this matter, the inability to obtain appropriate clinical management(s 120B(3)(a), and there is in force an SoP that upholds the veteran’s contention(s 120B(3)(b)).Relevant Medical Evidence Dr Helen Juffs provided a medical report dated 26 November 1997 which dealt with the treatment of the veteran prior to his admission to Princess Alexandra Hospital and the implications of that treatment – Exhibit 1 T29 pp 49 – 50:“Mr Lipke had presented five months earlier to his doctor in Campbell Barracks, Swinbourne, with right paracervical lymphadenopathy. Whether diagnosis of this disease at that time would have changed his prognosis would depend on whether it was surgically resectable at that stage. This would require an ENT opinion. If he had unresectable disease in May this year, then the delay in diagnosis may not significantly effect his prognosis.Had the condition been diagnosed and treated in May 1997, it is unlikely to have responded well to initial chemotherapy. As stated above, the risk of relapse would be related to whether surgical resection was possible at that time…As a predominately childhood disease there is limited data on adults with this condition. The general trend in adults is for a good initial response to chemotherapy, but a high relapse rate. As a patient presenting with Stage IV disease, Mr Lipke’s prognosis is very guarded…Mr Lipke’s employment in the military per se is unlikely to have contributed to his current illness. In terms of his commonwealth funded medical treatment it is likely that there was a delay in diagnosis. As stated above, whether this adversely effected his prognosis would depend on the surgical resectability of his disease in May…If Mr Lipke had presented with surgically resectable disease he would still be undergoing chemotherapy. As such his current degree of impairment would be unchanged.” In accordance with Dr Juff’s suggestion, an ENT opinion was obtained. In a letter dated 27 December 1997, Dr William Coman, Clinical Associate Professor of Surgery at the University of Queensland and a specialist in head and neck surgery, opined – Exhibit 1 T31 p. 52:“With respect to the two questions raised in your correspondence; I do not believe that if Mr Lipke’s condition had been diagnosed in May, 1997 that it would have been surgically resectable. I believe that the primary tumour, even at that time, was too advanced to allow surgical resection.Had the tumour been surgically resectable, the prognosis for Mr Lipke may have been better, but nevertheless the prognosis for rhabdomyosarcoma presents with metastatic disease and is always guarded.” A further medical opinion was sought from Associate Professor Thomson, who was then Director of Oncology at Princess Alexandra Hospital. In a letter dated 11 March 1998 he said – Exhibit 1 T33 p. 54:“This letter is to confirm that we are treating Craig for Stage IV rhabdomyosarcoma involving his sinuses and neck. There were apparently symptoms for the previous 5 months when he was in Western Australia. It is difficult to prognostication whether intervention at this stage may have improved his prognosis. In treatment of this disease, staging is related to resectability and it would be difficult to tell whether or not at that stage it was resectable. As he apparently presented with cervical lymphadenopathy, he was then probably already Stage IV at that presentation. However, this tumour had certainly grown during this time and as a general rule bulk of disease is also an important prognostic factor, although as I said, in rhabdomyosarcomas, resectability is by far the most important prognostic factor.”Inability to obtain appropriate clinical management: failure to diagnose, misdiagnosis – judicial guidance

Decision

Reasons for decision

As outlined above, the Tribunal, after carefully considering all of the evidence, submissions and case law, has formed, on the balance, a negative opinion.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.