Mirfin and Repatriation Commission

[2001] AATA 410

DECISION AND REASONS FOR DECISION [2001] AATA 410

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N2000/970

VETERANS' APPEALS DIVISION          )          

Re      PAUL IAN MIRFIN 

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       RADM A R HORTON, AO

Date15 May 2001

PlaceSydney

Decision      The decision under review is affirmed    

(Sgd) RADM A R HORTON, AO
  Member
CATCHWORDS
VETERANS' AFFAIRS  -  disability pension claim - service in Australian Army – eligible defence service – claim for hiatus hernia – Statement of Principles No. 43 of 1999 – adequacy of medical treatment 

Veterans' Entitlements Act 1986 – ss 5B(1), 5C(1), 68, 70, 120(4), 120B, 196B

Statement of Principles No 43 of 1999

REASONS FOR DECISION

RADM A R HORTON AO             

1. This is an application for review of a decision dated 30 August 1999 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed by the Veterans' Review Board ("the VRB") under section 139 of the Veterans' EntitlementsAct 1986 ("the Act") on 12 May 2000, refusing a claim by Paul Ian Mirfin ("the Applicant") for medical treatment and pension for incapacity from hiatus hernia. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 22 June 2000.

2. The decision by the Respondent dated 30 August also refused a claim for gastro-oesophageal reflux disease, which was subsequently set aside on 12 May 2000, the VRB determining that the Respondent was liable to pay pension for incapacity arising from that claimed condition. 

3. At the hearing before the Tribunal in Wagga Wagga on 3 April 2001, the Applicant was self represented. Ms M Doggett appeared for the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documentation:

Exhibit No     Description   
A1      Report from Dr R Harrison dated 21 September 2000
A2      Summary of Medical Records      
R1      Report from Dr G Magarry dated 7 November 2000    
R2      Army Service Medical Records of Paul Ian Mirfin         

ISSUES BEFORE THE TRIBUNAL

1. The Applicant has accepted disabilities of chronic sprain left ankle with surgery and sequelae to calf, hypertension, hypercholesterolaemia, chronic adult periodontal disease and gastro-oesophageal reflux disease.  The basis of his claim in this matter in respect of hiatus hernia is that the condition was not present on entering army service, that it was subsequently diagnosed and hence was defence caused, and that appropriate clinical management was not provided.

2. The Applicant served in the Australian Army from 30 June 1971 to 8 August 1991, incurring eligible defence service pursuant to section 68 of the Act from 7 December 1972 to 8 August 1991. He had no operational service. The applicable standard of proof in this matter is therefore that of reasonable satisfaction in accordance with subsection 120(4) of the Act, which states relevantly:

   "(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." 

3. This subsection is affected by section 120B, which refers to the assessment of reasonable satisfaction by reference to Statements of Principles and states, relevantly:

   "(1)      This section applies to any of the following claims made on or after 1 June 1994:

   (a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

   (b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.         

   (2)       …

   (3)       In applying subsection 120(4), to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

   (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

   (b)       there is in force:

   (i)a Statement of Principles determined under subsection 196B(3) or (12); or  

   (ii)       a determination of the Commission under subsection 180A(3);

   that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

4. Section 196 of the Act relates to the establishment, functions and powers of the Repatriation Medical Authority. Subsection 196B(3) states:

   "If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
             (a)       …

   (b)defence service (other than hazardous service) rendered by members of the Forces;

   the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

   (c)      the factors that must exist; and

   (d)which of those factors must be related to service rendered by a person;

   before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service."

5. The relevant Statement of Principles in respect of hiatus hernia is Instrument No. 43 of 1999, dated 24 June 1999.

FACTS AND EVIDENCE 

1. The Applicant was born in June 1947.  He travelled overseas on a working holiday in 1966, returning to Australia the following year when he was called up, but rejected, for national service.  He then undertook various jobs before enlisting in the Australian Army on 30 June 1971.  Following recruit training, he qualified as a gunner and undertook technical courses, remaining in the Artillery Corps until 1980.  He then transferred to the Ordnance Corps and in due course further transferred to the Pay Corps.   He completed his army service in August 1991, subsequently working in clerical positions until taking up his current employment with Australia Post in 1993.

2. In 1976 and again in 1978, Evans tendon repairs to the left ankle were carried out. In evidence, the Applicant stated that thereafter he had some physical limitations which contributed to his change to more sedentary activities from 1980. At folio B1 of the section 37 documents, the Applicant refers to 'continual treatment for stomach problems' which he further describes as 'bad indigestion/gastro oesophageal reflux from August 1976' and heartburn. He gave evidence that to counter this condition he took Mylanta or Quickeze as necessary. In August 1980, a barium study was undertaken, the diagnostic report by Dr P J Anderson (Exhibit R2 folio 18) noting 'the barium was swallowed without difficulty and passed freely down the oesophagus and through the cardia. No abnormality was seen in the pharynx or the oesophagus. There was no evidence of hiatus hernia and no gastro-oesophageal reflux was seen during the examination.' The Applicant gave evidence that the treating army doctor advised him to take Mylanta if necessary.

3. The Applicant stated that after continuing problems, a further barium study was carried out at the Army hospital at Casula in 1986, which confirmed that a hiatus hernia was present.   The report by the medical officer at Exhibit R2 folio 38 records this condition, and notes that the Applicant was advised to avoid heavy and spicy foods, nocturnal meals, and beer drinking, as well as lose weight and to sleep with an elevated bedhead.  The Applicant stated that notwithstanding that the medical documents provide little or no confirmatory evidence, he thereafter was treated with indigestion tablets and medication as necessary to obtain relief, such medication being provided by staff of the Regimental Aid Post.  In 1989, and as recorded at Exhibit R2, employment restrictions including 'no-situps' were imposed by the medical officer following 'severe pain'.  There is no indication as to whether these pains were assessed as resulting from the hiatus hernia condition.  The Applicant  further stated that the final medical report on discharge recorded the hiatus hernia.

4. Three reports of medical examinations post his Army service are available to the Tribunal. At folio 14 of the T documents, dated 29 March 1999, and at Exhibit A1, Dr R Harrison, general and laparoscopic surgeon, reports that he performed a gastroscopy on 25 March 1999. This revealed 'a large hiatus hernia with the cardio-oesophageal junction at 35cm' and 'grade 1 oseophagitis', which when biopsied showed reflux oesophagitis. He believed the latter to be caused by hiatus herniation. He indicated good symptom relief with Losec medication.

5. At Exhibit R1, Dr G Magarry, consultant gastroenterologist, opines that on the evidence given to him on review on 3 November 2000, symptoms probably began in the late 1970s (as suggested by the Applicant).    He records that symptoms became more prominent in time, the initial treatment by antacid therapy being increased to H2 antagonists after army service was completed.  

6. Dr Magarry gives his diagnostic opinion that the Applicant has gastro-oesophageal reflux disease (an accepted defence caused condition from April 1999) and hiatus hernia.    In his report, Dr Magarry also addressed the question (by the Respondent) as to whether the Applicant has paraoesophageal hernia, responding as follows:

   "  The answer to this question is no.  It would seem from the barium studies and from the endoscopy report that Mr Mirfin has a sliding hiatus hernia.  This is different from paraoesophageal hiatus hernia.  Although hiatus hernias may be asymptomatic it is accepted that they may contribute to reflux symptoms and so the appropriate diagnosis for this gentleman would be to say that he has gastro-oesophageal reflux disease and a hiatus hernia."

7. In respect of treatment for the condition of hiatus hernia, Dr Magarry stated:

"The treatment for sliding hiatus hernias depends on what problems they cause and may vary from no treatment at all to surgery.   If the hiatal hernia contributes to reflux symptoms then the reflux symptoms should be treated and it seems that Mr Mirfin did receive treatment for these symptoms." 

ANALYSIS OF EVIDENCE AND FINDINGS

1. Statement of Principles Instrument No. 43 of 1999 is the relevant authority as regards hiatus hernia.   It states relevantly:

   "Kind of injury, disease or death

   2.(a)       This statement of principles is about hiatus hernia and death  from hiatus hernia.

   (b)       For the purpose of this Statement of Principles:

   "hiatus hernia"  means a herniation of part of the stomach into the thoracic cavity through the oesophageal hiatus in the diaphragm, attracting ICD-9-CM code 551.3, 552.3, 553.3 or 750.6.   This definition includes sliding hiatus hernia and paraoesphageal hiatal hernia.

   Factors that must be related to service

   4.Subject to clause 6, the factor 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, hiatus hernia or death from hiatus hernia is connected with the circumstances of a person's relevant service is:

   (a)       for paraoesophageal hiatus hernia only, inability to obtain appropriate clinical management for hiatus hernia.

   Factors that apply only to material contribution or aggravation

   6.Paragraph 5(a) applies only to material contribution to, or aggravation of, hiatus hernia where the person's hiatus hernia 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:

   "paraoesophageal hiatal hernia" means a hiatus hernia in which the gastro-oesophageal junction remains fixed in its normal location, and a pouch of stomach is herniated beside the gastro-oesophageal junction through the oesophageal hiatus."

2. The only factor that is assessed by the RMA as being relevant to a person's service is that relating to paraoesophageal hiatal hernia.  The Applicant submitted that the diagnosis by Dr Magarry that such a condition was not present was not conclusive, and that Dr Harrison had made no such definitive statement.   The Applicant further submitted that as the hernia must have developed prior to the formal diagnosis in 1986, there was no evidence that he had received appropriate clinical management of the condition at that time.  He further submitted that appropriate clinical management was not given in the subsequent years of army service.

3. The Respondent conceded from the evidence that the Applicant had the condition of hiatus hernia as diagnosed in 1986 and subsequently confirmed by Drs Magarry and Richardson.   However Statement of Principles Instrument No. 43 of 1999 dictates the circumstances, and the factor that must be met in order for this condition to be adjudged on the balance of probabilities is that it was connected with his defence service.     Instrument No. 43 of 1999 contains only one factor, which is that relating to paraoesophageal hiatal hernia, a condition that on the evidence is not present in the Applicant.    The Respondent further submitted that the relevant Statement of Principles was quite specific and gave no latitude for further interpretation in respect of hiatus hernia.  

4. The Tribunal is bound by the provisions of subsection 120(4) in respect of the standard of proof to be applied in this matter, and by the accompanying provisions of section 120B in respect of a relevant Statement of Principles. The relevant Statement is Instrument No. 43 of 1999, which is to be applied given that the Applicant's claim was made after 1 June 1994.

5. The evidence of Dr Magarry is that the Applicant does not have paraoesophageal hiatal hernia.   His evidence is inconclusive as regards the level of treatment that may have been appropriate for the condition of sliding hiatus hernia,  but he notes 'it may vary from no treatment at all to surgery'.

1. The Tribunal accepts the opinion of Dr Magarry that the correct diagnosis of the Applicant's condition is sliding hiatus hernia, and accordingly finds, to its reasonable satisfaction, that the conditions of Statement of Principles Instrument No. 43 of 1999 have not been met.   The Tribunal also finds that there is insufficient evidence before it to enable it, to its reasonable satisfaction, to find that the treatment for the diagnosed condition during army service was either inappropriate or inadequate.

2. The decision under review is affirmed.

   I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of RADM A R HORTON AO

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  3 April 2001
   Date of Decision  15 May 2001
   Solicitor for the Applicant         Self Represented
   Solicitor for the Respondent    Ms M Doggett