Money and Repatriation Commission
[2006] AATA 998
•22 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/34
VETERANS' APPEALS DIVISION ) Re DENNIS MONEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr D Weerasooriya, Member Date22 November 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s condition of idiopathic fibrosing alveolitis is defence-caused, with effect from 13 March 2002. The Tribunal remits the matter to the respondent for assessment of the rate of pension. In all other respects the Tribunal affirms the decision under review.
..[Sgd D Weerasooriya]...........
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements - idiopathic fibrosing alveolitis – rare disease of unknown cause - inability to obtain appropriate clinical management – whether both symptoms and signs part of disease – role played by “a state of affairs” and “external stimuli” – whether defence-caused
Veterans’ Entitlements Act 1986 s 70, s 120, s 120B and s 196B
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 624
Johnson v Commonwealth (1982) 2 RPD 1
REASONS FOR DECISION
22 November 2006 Dr D Weerasooriya, Member 1. This is an application by Dennis Money (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 15 October 2004. The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 31 March 2003 that the correct diagnosis of the applicant’s lung condition is “idiopathic pulmonary fibrosis” and that that condition is not defence-caused.
2. At the hearing of this matter on 29 May 2006, Mr Ross O’Connor, advocate, represented the applicant and Mr Carl Ponnuthurai of the Department of Veterans’ Affairs represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The applicant tendered a report of Dr Justin A Waring, MBBS, FRACP, respiratory physician, dated 8 March 2005 (Exhibit A1). The respondent tendered a report of Dr Arthur William Musk AM, respiratory physician, dated 14 September 2005 (Exhibit R1). There were also four exhibits lodged by the Tribunal for the purpose of its deliberations (Exhibits T1-4).
Background
4. The applicant was born on 7 July 1947. He served in the Royal Australian Navy from 1963 to 1983. He rendered eligible defence service for the purposes of a claim for repatriation benefits from 7 December 1972 to 13 March 1983.
5. On 13 June 2002, the applicant lodged a claim for acceptance of “breathing disorder” as being defence-caused. On 22 January 2003 a delegate of the Repatriation Commission determined that the applicant’s chronic bronchitis and emphysema are not defence-caused. On 31 March 2003 a senior delegate of the Repatriation Commission reviewed that decision, and varied the diagnosis of the applicant’s lung condition to idiopathic pulmonary fibrosis (and otherwise affirmed the delegate’s decision).
6. The applicant subsequently applied to the Veterans’ Review Board (“VRB”) seeking a review of the Commission’s decision. The VRB confirmed the rejection of his claim. On 24 January 2005 the applicant applied to this Tribunal to review the decision of the Commission, as affirmed by the VRB.
Evidence
7. The applicant gave evidence as follows.
8. He joined the Navy as a junior recruit when he was just over 15yrs of age in 1963. He volunteered for Submarines, and after going to England for submarine training, he remained a member of the submarine arm between 1966 and May of 1980. In November 1974, he went back to Exmouth for four years and in 1978 went back to Platypus – the submarine base in Sydney – until 1980. He then went to HMAS Harman in Canberra. He was discharged in March 1983, and finished his time in the navy having served a total of 20 years.
9. Mr O’Connor asked the applicant when he first started having problems with his chest. He said he found it hard to recollect, but was pretty sure he was in Exmouth at the time. He remembered having bronchitis as a recruit back in 1963 (see T4). He recalls presenting at the sick bay in Exmouth where an American doctor said to him, “You’ve got clubbing of your fingers”. The documents showed that this was in 1977 (T10). He also recalled having a dose of mumps after he returned to Sydney at the end of 1978 and having tests on his heart. He also thought he recalled having pneumonia back in Canberra in 1981 or 1982.
10. The applicant was asked if he had suffered shortness of breath in the early seventies. He felt that he had a smoker’s cough, and he had shortness of breath “because I wasn’t probably fit enough, because I had a desk job” (Transcript p 13).
11. The applicant recalls being overweight but not in the obese range. He was not restricted by being overweight and he said he still played AFL football at that time.
12. Asked about when he first noticed clubbing of his fingers, he thought it was in Exmouth. He could not put a specific time frame on it. He was also asked about the wedding photo that was on file which showed no clubbing. He married in June 1971. He was of the opinion that the clubbing appeared sometime between 1971 and 1974. He was asked about the finding that he had poor inspiration and asked if he had suffered from shortness of breath. He said that he could not remember back 25 years ago, but he did remember specifically, “with chest x-rays they would say to me, if you don’t inhale properly, your heart won’t fall down and you get a bad indication that ....because your heart’s not sort of more direct up and down, it gives you an indication that your heart is enlarged and whatever” (Transcript, p 14). He had no idea that poor inspiration was written down in his reports.
13. The Tribunal would like to digress here in order to explain why x-ray films taken in deep inspiration and deep expiration are of significance in this case.
14. The heart and lungs occupy the thoracic cavity. The thoracic cavity consists of the thoracic cage formed by the rib cage surrounding the lungs, and the dome shaped sheet of muscle spread horizontally below called the diaphragm. This diaphragm separates the thoracic cavity from the abdominal cavity and its contents. During inspiration, the diaphragm pulls downwards and the chest wall moves outwards, enlarging the chest wall cavity, and helping to suck air into the expansible lungs, because of the suction effect that this manoeuvre creates.
15. The lungs hang on the two side branches of the mid line trachea or wind pipe, and the heart hangs between them in the mid line, and, unlike the lungs, is tethered to the dome of the diaphragm.
16. If the diaphragm pulls down in inspiration, it will pull the heart down elongating it somewhat, making it appear narrower. In a forced expiration the diaphragm will push up spreading the heart outwards to make it appear fatter and therefore bigger or enlarged. A picture taken with poor inspiration will make the heart appear to be “fatter” than it really is, leading to a wrong conclusion that the heart is enlarged.
17. It should also be noted that if (a) the lung has lost its elasticity thereby restricting inspiration; or (b) the abdominal contents are bulkier because of intra-abdominal fat; the patient may think he or she has inspired to the full, but the actual displacement may be small because the diaphragm cannot move as far down as it would have absent the fat infiltration, and a wrong assessment of cardiac size may result.
18. An astute clinician would be alerted to this possibility if repeated concerns of poor inspiratory effort are noted in reports. (End of Tribunal’s explanatory digression).
19. The applicant was then asked when he first started to see Dr Waring, who is the respiratory specialist who made a diagnosis of idiopathic pulmonary fibrosis (another term for which is ‘idiopathic fibrosing alveolitis’ (IFA)) after obtaining an open biopsy of a portion of his lung tissue.
20. He said he moved to Geraldton in March 2002 and saw a Dr Chin, who noticed his clubbing and said he must see a specialist because of it.
21. The applicant had seen Dr Waring in Geraldton in around June of 2000 when the doctor came up from Perth to hold a clinic there. Dr Waring asked if any other doctor had noted the clubbing, and the applicant said that a Dr Foong in Rockingham had sent him to the Asthma Foundation Branch in Rockingham to have some breathing tests. This was before he went to Geraldton. Dr Foong also mentioned that the applicant had clubbing. But he did not take it further.
22. After the applicant saw Dr Waring in Geraldton, he came down to Perth to have an open lung biopsy, which helped to clarify the diagnosis of IFA. Dr Waring had mentioned a treatment with Prednisolone, advising him that it could make the condition worse and he would not recommend it.
23. The applicant took Dr Waring’s advice. He stated that since then he has had regular lung function tests which he thought showed his function was decreasing over the last four years. He added:
“regarding where you asked me if I had a problem with walking and things like that, OK, Yeah, if I walked uphill or walked too far or do steps or things like that, I quite easily get out of breath you know. After a couple of 100 meters, I am puffing. Even if I go and have a shower, I come out and my wife says to me, “what are you puffing for?”, you know, I said, you should know by now, I’ve got a problem”. (Transcript, p 15)
24. The applicant’s evidence continued as follows:
“In hindsight, if you'd realised you had this problem, would you have stopped smoking earlier?---I reckon I would have; yeah. If I'd known that I had a problem and stopping smoking could have been of some assistance, yes; definitely.
How heavy a smoker were you?---It used to vary. Depending on how stressful it was, you know, at work and things like that, if it was really stress or, you know - - in an 8-hour watch I could smoke at least, you know, a good packet of cigarettes. Other days you might smoke less. Some days you might smoke more, you know. It just depends on how stressful - -
And with regard to your postings to submarines, would you have continued to go back to submarines if you had realised that it may affect your health?---If I'd have known that I had a problem, and I'd known that the submarines could quite probably have caused me, you know, an aggravation to that condition, I would have asked to be moved back to general service as quick as a flash; quicker than I did. I didn't revert back to general service because of my medical condition. I just reverted back for other reasons, because I had no idea that I had a problem.
Did you - - when did you actually stop smoking?---I think it was about March of 1994.
Did you find after you stopped smoking that there was any improvement in your health, or not?---Initially when I stopped smoking I put on more weight, but then I realised that I was putting on more weight because of the smoking, so then I cut back on other things to try and counteract that problem. You know, instead of a smoke you'd have a lolly or something like that; so all those sort of things you try and cut back. Now, to actually specifically answer your question, I would say "Yes, I think it was probably of benefit, the giving up smoking." Even now, 12 years or so later, I still have a flash and feel like a cigarette, but as quick as it comes it goes away again. I'm so thankful that I actually finally gave it up. Apart from the actual financial aspects of it, healthwise, you know, I don't know what I would have been like in the 12 years that I haven't been smoking.
MR O'CONNOR: All right. Thanks very much. I have no further questions at this time, Mr Weerasooriya.
DR WEERASOORIYA: Mr Ponnuthurai?
CROSS-EXAMINED BY MR PONNUTHURAI:
MR PONNUTHURAI: Mr Money, there's a mention in the documents that I would like to clear up, and that was where they put you in a Penguin, and they were trying to figure out what the cause of the finger and toe clubbing was. They put down there that your father and your eldest brother had similar-looking fingers and toes?---That was my original understanding, but once I'd gone into that further and checked it out later on in life, that was an incorrect assumption on my behalf.
They never had fingers like that?---No; no.
And did either of them have any problems with their lungs?---I beg your pardon?
Did either of them have any problems with their lungs that you're aware of?---No. My eldest brother is still alive. My father died of an aneurism.
Your eldest brother has no problems? He doesn't have similar fingers to you - - ?---No.
- - or ...(indistinct)... like you?---No.
Now, from - - as I understand from the history you've given us of where and how you served, you basically were in submarines in the Avery class up until - - from your training until you went to Oxley - - hang on. You would have gone to HMAS Dolphin for your submarine training in 66?---Yep.
And then part of that training was on HMAS Orpheus?---That's correct.
MR PONNUTHURAI: And then you had to spend 6 months ashore while they were refitting or - - ?---Yeah.
- - repairing after an accident?---Actually they were going to try and repair it, and then they de-commissioned it because they didn't think it was financial.
Mm hm. So then you came back to Australia in September 67?---Yes.
And you were ashore until the end of 68; and then you went to Oxley?---That's correct.
...(indistinct)... ?---Yes. I was in spare crew, what they call spare crew, during that period from 67 until I went to Oxley. I could go to work every day with an overnight bag, and possibly what would appear ...(indistinct)...
And could have to go out on operations?---Yeah. A couple of times I did go to sea. It was a week or so at a time, and I couldn't - - I would not be able to give you those in fact; but there was one - - one was a T-boat, an old T-boat, HMAS Trump, which we just - - we did a couple of runs on that, and there was another - - I went to sea on Oxley, prior to that, I think for about a 10-day period, just to fill in.
And then of course you had time on and off. There was another nearly 2 years of Oxley, 73-74?---Yes.
Then Exmouth at the Harold E. Holt Naval Communications Station, 78 - - from the end of 74 to some time in 78?---Yep.
Right. So it's there that it appears - - you had 77 - the 28th of November 77, page 89 of the T documents: you wound up going in with low back strain?---That's right.
And the doctor there saw that you had clubbing of your fingers and toes?---Yes.
It was then that he started investigating what happened, and sent your chest x-rays down to Perth Chest Clinic. We can follow page 88, because the documents run back to front, and page 88 of the T documents showed that they sent everything down to the Perth Chest Clinic, and they reviewed all the chest x-rays. Then finally we find that in 79 they were worried that your heart was a bit enlarged as well?---I think that was because of - - I mentioned before, when I was talking about the inspiration - -
Yes, but they couldn't get a good picture of your heart?---Yes.
So that's when you went in and they had you in the naval hospital at Penguin?---Yes.
MR PONNUTHURAI: And Dr Brodziak, the consultant physician, had a look at you there, and tried - - what to do; he said at that stage, clinically at least, that you had no history of chronic heart and lung problems, or gut problems. You weren't to know, of course, because if we look back now, we think: "Well, this bloke very possibly did have - - "?---Couldn't have been reading the file properly.
Mm. You'd had some doses of bronchitis and things like that?
---Yes.
But you didn't have ongoing severe problems. You were a bit overweight?---Yes. Well - -
There are plenty of overweight sailors?---Yes.
Okay. So they looked at you at that stage. They noted that you were clubbed from then on. Then when you got out of the Navy, as you say, you had the same doctor, Leo Foong, for nigh on 20 years?---Yes.
And while he investigated and sent you off to the Asthma Foundation, they found something, but it wasn't sufficient to warrant - - ?---That's my understanding.
And so it's only that you had the good fortune to go to Dr Chin when you were in Geraldton. This is actually when you found out, and you actually now know what the cause is?---Yes. It's what called a beneficial sea change.
Yes. So Dr Waring was sufficiently worried to put you in for a biopsy?---Yes.
And it was from then that we know that you've got the condition?---Yes.
What sort of treatment were you given at any time for your lungs, if you had bronchitis and the like, when you were - - during service? Did they give you medication for it?---I've got a recollection, I think. I'm not completely sure, but I think they might have given me some type of antibiotic. I'm not completely sure.
Okay. But of course, now all that you can do, really, isn't it, is to - - because it's too risky to use the Prednisone ...(on tape)...?---I don't know about the word "risky", but all I know is that I've been advised that the treatment is probably worse than the cure, even though there's no cure.
Mm hm. So what happens now if you get a bad lung infection or anything like that? Do they give you antibiotics and steam, and things like that?---Sorry; yes. I have - - you just mentioned steam. Yes; I do. I have on hand all the time a script from the doctor for an antibiotic; and when I get a cold I get a script for it, and I automatically start taking the antibiotics. I try and keep one step in front all the time, just in case it could, you know, go into my lungs and possibly cause pneumonia or whatever the case may be; and it's only just 3 weeks ago that I actually took a course of antibiotics, because I had a touch of a cold. Every year I have a 'flu injection, and I'm coming up now for another pneumonia - -
DR WEERASOORIYA: Vaccine?---Vaccine; yes.
That's it; yes; the new ...(indistinct)... yes?---Yes; every 5 years, I think. I'm coming up for that one.
MR PONNUTHURAI: So that's how they protect you, to stop any secondary things coming on?---That's what they hope.
And as far as you know, from what they've told you, there has been some progression in your lung disease?---Yeah.
And it's - - ?---Actually it's been slow.
Yes. It's been a slow progression. You've already said that no one else in the family suffers from anything like this, that you're aware of?---No. That's right. Only my eldest brother; he has a heart problem.
Right?---The second brother has a heart problem. He's an ex-Vietnam vet. My elder sister has a heart problem. But to my knowledge, I don't have a heart problem. I have a lung problem.
Yes; you're the one with the lung problem. Okay. Thank you. I've got nothing more that I can usefully ask.” (Transcript, p 15-19)
25. The Tribunal had observed that the T documents that were prepared for this case had material showing some of the routine medical examinations carried out over the period the applicant was in the Navy. There were numerous x-ray requests and radiological reports from enlistment until discharge. There were also entries about the applicant being seen by junior doctors while he was serving in the Navy. These documents were not in proper date order as they should have been. The Tribunal rearranged the T documents into proper date order so that the changes over time could be better appreciated.
26. As the Tribunal intends using material from them in making its decision, it will mark these collections as:
·Exhibit T3: a collection of a rearranged date order series of routine medical reports extracted from the T Documents.
·Exhibit T4: a collection of a rearranged date order series of x-ray reports extracted from the T Documents.
Consideration of the Issues
27. Section 70(5) of the Act provides:
70(5) For the purposes of this Act,…an injury suffered…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;
…
(d) the injury or disease from which the member…has becomeincapacitated:
(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;…
28. For claims made after 1994, it is necessary to apply any relevant Statement of Principle (SoP). Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s 120B(3)(b)). The relationship to service must be one of the relationships prescribed in s 196B(14) of the Act:
196B(14) A factor causing, or contributing to, an injury, disease or death is
related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was
rendering that service; or(b) it arose out of, or was attributable to, that service; or
…(d) it was contributed to in a material degree by, or was aggravated by, that service; or…
29. In coming to a decision, the Tribunal must form an opinion about whether the contentions raised by the applicant fit within or are consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
30. There was no dispute between the parties that the veteran had rendered eligible service, so that s 120(4) and s 120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction.
31. The Tribunal is first required to ascertain the relevant SoPs in force. The applicable SoP for Idiopathic Fibrosing Alveolitis is Nº 16 of 1998. Clause 5 of that SoP requires that:
5. The factors that must exist before it can be said that, on the balance of probabilities, idiopathic fibrosing alveolitis or death from idiopathic fibrosing alveolitis is connected with the circumstances of a person’s relevant service are:
(a) inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis.
32. The applicant submitted that sometime during his service – from December 1972 to March 1983 – he suffered from a rather rare respiratory disease called idiopathic fibrosing alveolitis – a disease whose cause is unknown to this date, and one which is slowly progressive and which ultimately leads to respiratory failure.
33. The applicant contends that his disease should have been seriously considered in the differential diagnosis when a certain combination of clinical signs of this illness became apparent to medical personnel treating him when he attended either the medical post or routine medical examinations during service. The non-specialist medical doctors were concerned by these signs, but did not refer the applicant to a specialist in respiratory diseases “in-house”. Instead, the reports of the findings of abnormal signs together with reports of only some serial x-rays were sent to a specialist at the chest clinic for an opinion. Because the applicant was not sent with all the reports available, the specialist did not see him, take a history, or conduct a physical examination. As a result, the applicant was unable to obtain appropriate clinical management for his condition because even a differential diagnosis was not entertained and discussed with him. No advice was given or regular follow-up with a specialist arranged. As a consequence of this, the applicant’s diagnosis was delayed considerably – resulting in the applicant losing valuable time in which he could have taken prudent measures that could have enhanced the quality of the life he had left.
34. The respondent’s position is outlined in its Statement of Facts and Contentions and can be summarised as follows.
35. The respondent contends that the decision in Johnson v Commonwealth (1982) 2 RPD 1 is authority for the proposition that inability to obtain appropriate clinical management will only apply where the injury or disease should have been diagnosed (ie a reasonably competent medical practitioner should have diagnosed it) and was not, or the injury or disease was not, treated with the skill and expertise that would have been expected to have been given to a civilian at that time, and if the appropriate treatment that would have been to a civilian at that time, had been given, the injury or disease would not have progressed or worsened to the extent that it did.
36. The respondent also contends that the medical standards that apply are to be measured by the standards of the time when the person was serving.
37. The respondent finally contends that in this case, the applicant’s pulmonary condition was investigated by Naval Medical Staff with due care and diligence, and there is no evidence that he was not investigated as well as he would have been, had he been a civilian at the time. The respondent goes on to say that even if the condition was not discovered when it should have been, the treatment available would not more probably than not have slowed or halted its progression. The Tribunal clarified that this last sentence could be taken to mean that “even if the condition was not discovered when it should have been, the treatment would, on the balance of probability, not have slowed or halted its progression”.
38. This case was heavily medically orientated and required understanding and resolution of medical issues within a legal framework.
39. In these situations it is very useful to have a relevant specialist give evidence, so that the Tribunal can have a dialogue with a colleague and clarify medical issues. Unfortunately, in the circumstances, this was not to be. This Member – who has worked as a Specialist Physician from 1964- 2000, out of which in the period 1972-2000 he practised in Western Australia – will use his experience and expertise to understand the medical issues aided by the materials collected and the respiratory specialist’s reports now in evidence, in order to make a decision.
40. The Tribunal notes that the following medical issues must be understood if a correct or preferable decision is to be made:
·What does “Inability to obtain Appropriate Clinical Management” mean in the context of a case such as this? (The respiratory specialists – who would of course have a deeper knowledge and experience with the rarer lung diseases such as IFA –would, no doubt, share with a specialist general physician, notions of what appropriate clinical management would entail for doctors at all levels of expertise. Fortunately Dr Waring has commented about this in his reports.)
·“aggravation of a disease” – an area where legal issues arise, and judicial help is required.
What is the nature of the disease?
41. The disease at issue here – idiopathic fibrosing alveolitis (IFA), has some characteristics peculiar to it. The Tribunal will therefore outline these peculiar characteristics in order to address the question “what is the nature of the disease that is at issue here?”
·Idiopathic fibrosing alveolitis is a rare respiratory disease that progressively reduces the reserve respiratory capacity of the lungs.
·Its causation – as the term idiopathic implies – is unknown.
·It follows therefore that any treatment for IFA has to be “empirical” and hence any treatment given would not be the responsibility of the doctor, but of the patient who decides (after the doctor, who is obliged and required to do so, has explained the rationale, nature of the treatment, pros and cons and possible side effects) whether or not he or she – the patient, would be prepared to try it. In such cases therefore, treatment of the disease itself is not strictly in the doctor’s hands- it is shared with the patient.
·Extraneous factors that can be connected with Service, can, even if not directly related to the cause of the disease (in this case there is no known cause) impact adversely on the pathology of the disease and on any effects that pathology may cause.
·The pathology of the established disease is known – originally (from even before the seventies) - by examination at post mortem of lung tissue, and currently from open biopsy of the lung in the living patient suspected of having this disease on clinical and non invasive investigational grounds (such as Lung Function testing or by CT Scanning).
·The pathology – if one were to simplify it in lay terms – involves increasing fibrous tissue deposition within the delicate mesh work skeleton of the lung that can normally freely expand and contract in the course of breathing. The fibrous tissue tends to stiffen the lungs and make them less expansible. They also distort the delicate architecture of the region where exchange of gases occur - the terminal thin walled alveoli around which thin walled blood vessels are applied, allowing oxygen to diffuse into the blood, and the carbon dioxide to diffuse out into the air sacs for expulsion.
·The diagnosis of this disease in its early stages is difficult for the following reasons. As can be expected from the pathology, symptoms that are very common in other common respiratory diseases, such as coughing, sputum, wheezing and shortness of breath are present only in the later stages of this progressive illness. It is important to realize that the lungs are endowed with an enormous reserve of respiratory capacity so that one can live a reasonably normal life on one lung (if the other has to be removed, for example if it is cancerous.)
42. The disease therefore makes itself more obvious late in its development, if one relies only on symptoms to make a diagnosis. However, the signs of the disease can manifest much earlier and as the signs, which will be elaborated on shortly, have meaning to medically trained personnel - one would expect them to be noticed, looked for, or found by special tests and evaluated further by a doctor and not by the patient.
43. It would not be unreasonable to say that the chances are that a junior doctor considering a rare respiratory disease of this nature when faced with the unusual clinical signs, is more unlikely to consider IFA than a specialist in respiratory medicine who needs to have more detailed understanding of rarer conditions in his or her field and who is trained to consider signs or characteristic combinations of signs as well.
Inability to obtain appropriate clinical management
44. Before the Tribunal could decide whether this factor was satisfied on the balance of probabilities in this instance, it attempted to obtain some guidelines on how the phrase “inability to obtain appropriate clinical management” has been interpreted by the higher courts. It was unsuccessful. This phrase was not discussed in the useful reference book Veterans’ Entitlement Law 2000.
45. Dr Waring has addressed this issue of appropriate clinical management to some extent in his reports. The Tribunal outlines its own understanding of this phrase based on this Member’s own clinical management of patients over many years as follows.
46. Taken separately, appropriate, clinical, and management are plain English words. The Macquarie Dictionary defines ‘appropriate’ as “suitable or fitting for a particular purpose”. It defines ‘clinical’ as “related to medical training or carried out in a hospital” or as “connected with observation and treatment of disease in the patient (as distinguished from an artificial experiment)”. ‘Management’ is defined as “the act or manner of managing, handling direction or control or skill in managing”, or “executive ability”.
47. One would expect that the general meaning of ‘appropriate clinical management’ will encompass management of any disease, common or rare, that a patient presents to a doctor- ranging from the GP to the Specialist, sub specialist and super specialist. One would expect also that every doctor will manage the patient up to the limit of his or her training, experience and capability. If he or she is unable to understand what is emerging from the symptoms, signs or investigations, he or she will be expected to promptly refer the patient with the history he or she elicits as well as findings and any test results obtained by him or her to someone higher up in the “expertise ladder” to sort out. One would expect that if that specialist also cannot come to a conclusion he or she would refer the patient on to a sub or super specialist or alternatively consult with one.
48. If an impasse is reached, at any level, then it is important that the doctor of last referral keep the patient under regular surveillance as new signs and symptoms may emerge that will help clinch the diagnosis. Following on from this, one would expect that the specialist keeps the original junior doctor (or GP in civilian life) informed about the progress of the surveillance.
49. The patient must be kept informed and the patient must cooperate with the doctor. Furthermore, even after the diagnosis is made, if a disease is progressive or leaves the patient susceptible to aggravation of the effects of his illness, by extraneous matters, like other clinical problems that can impact on the effect of his disease, there is a need, in appropriate management, to address these issues if they can be reduced or eradicated – by explanation, counselling and support of the patient, keeping abreast of the literature during ongoing surveillance, and even using allied professionals to help.
50. It is the opinion of the Tribunal that these views would accord with the ethical guidelines set up by all the relevant colleges and instrumentalities that certify doctors for practice.
Respiratory Specialist’s Reports
51. In a letter addressed to the applicant, dated 14 April 2003, Dr Waring wrote:
“Thank you for supplying me with the DVA assessments of your breathing disorder, and a previous x-ray and medical reports from the 1970’s. As I understand it from the DVA report, you have been advised that you received appropriate clinical management for your condition during your service and that the idiopathic pulmonary fibrosis that has recently been diagnosed had its onset after your last medical on 1st Sept. 1982.
You have however supplied to me, chest x-ray reports that consistently indicate increased “lung markings” and inadequate inspiration from 1973, 1976, and 1978. These are suggestive of pulmonary fibrosis at that time. A report from May 1979 in fact refers to “fibrotic shadowing at the right base”. Furthermore it was noted at that time, that there was clubbing of the fingers. You had demonstrated to me from a wedding photo that in 1971 you did not have clubbing confirming that it is not a congenital deformity The marked degree of your clubbing now suggests, that it has developed over a considerable period of time.”
I would therefore agree with you that there is evidence that the condition predated your discharge from the service.
Furthermore the breathing disorder was attributed to chronic bronchitis and emphysema on the basis of spirometry, which was in fact incorrect and more likely to be the early stages of pulmonary fibrosis that was misdiagnosed” (Tribunal’s emphasis).
52. In his report of 13 April 2004, Dr Waring addressed the issue of “appropriateness of clinical management provided to Mr Money” during his defence service.
“I believe clinical management should be considered in terms of investigation, diagnosis, treatment and prognostic advice.
In this regard Mr Money did not receive appropriate clinical management, as he did not have the appropriate investigations, the diagnosis of interstitial lung disease was not made, and he was not given prognostic advice in relation to this condition because it was not diagnosed” (Tribunal’s emphasis). (T18)
53. Dr Waring went on to discuss investigations and diagnosis.
“Mr Money’s medical record during his service includes several pieces of evidence on multiple occasions, indicating that his interstitial lung disease was present during that service.
These are:
·“fine creps at left base”. 30.4.79.
·increased markings on chest x-ray, sometimes referred to as a little fibrotic” (1.5.79, 12.3.76, 10.4.73, 12.6.78.)These are generally attributed to inadequate inspiration which in itself is a sign of fibrosis. The poor inspiration was in turn attributed to him being overweight. s BMI ranges from 28 – 30 which is unlikely to limit inspiration. (Tribunal’s emphasis)”
·Marked finger clubbing noted on 30.4.79, 19.7.79.,12.6.78,28.11.77, etc. This was considered familial, but there is now clear evidence that his clubbing developed only during his adult life.
While each of these signs could be explained away individually as indicated above, the combination of signs is highly suggestive of pulmonary fibrosis.” (Tribunal’s emphasis).
54. Dr Waring went onto note that the appropriate investigation of this condition is a CT scan. CT scan was not as routinely available in the 1970s as it is now, however it could have been performed. Similarly the thoracic lung biopsies required to make a diagnosis were not available in the 1970s. A diagnosis could have been made by open lung biopsy.
55. Regarding this question of appropriate investigation, the Tribunal has some reservations in agreeing with the conclusions Dr Waring arrived at with regard to treatment in the context of this case. Quite fortuitously, this Tribunal member was working during 1972 at the Thoracic Unit of the Hollywood Repatriation General Hospital in Perth and is aware that CT scanning was not an option at that time, but that quite sophisticated lung function tests were available and being used in this period. It would have been unusual to have considered open lung biopsy in that period.
56. Dr Waring went on to discuss treatment in his report. The Tribunal has no hesitation in accepting all that he has said under this heading as correct. However, here we are dealing with a disease that is called idiopathic, which means “is of unknown cause”. It follows that treatments always have to be empirical. In the end, after the doctor has explained how this empirical treatment originated, its pros and cons, its possible side effects, and the possibility of making the condition worse, it is up to the patient to decide whether or not he or she takes it.
57. Thus, in effect, the decision regarding treatment is taken out of the doctors hands and he or she cannot be held responsible for the treatment. The patient is responsible. The Tribunal’s opinion therefore is that reliance on whether or not treatment should have or could have been used is rather beside the point because, as explained, the issue here is appropriate clinical management in a situation where the cause of the disease remains unknown, and not whether empirical treatments should or should not have been given, or what the statistical chances of curing or ameliorating of this disease might have been.
58. Dr Musk is also a Specialist in Respiratory diseases. In his report he noted (at page 2):
“I have reviewed the documents that you have provided including Dr Waring’s letters. I note that the routine chest X-ray, performed on 10th April 1973, showed, “Heavy markings”, just above the right Cardiophrenic region, which would be consistent with early interstitial lung disease. The film taken on 12th March 1976, was thought to have been taken on incomplete inspiration. And showed some shadowing interpreted as patchy consolidation obscuring the right heart boarder. Films from the Perth Chest Clinic on 9th June 1978 were reviewed and showed “prominent bronchovascular markings” (and again it was thought the patient may have not taken a full inspiration) (Finger clubbing was noted at the time).A further small film on 29th Aug. 1980 showed, “right hilar vascular congestion” and a large film taken on 15th Sept 1980 showed the lungs to be “a little congested” attributed to the patient’s build, and “a rather poor inspiratory effort”. Similar findings were noted in Oct 1991, Sept 1982 and in later films. It therefore seems likely that there was early interstitial fibrosis during the period of service and more detailed investigations could have arrived at an earlier diagnosis”. (Tribunal’s emphasis) (Exhibit R1)
59. The T documents also show that the applicant was referred by a junior doctor to a consultant physician, Dr Brodziac, who in turn referred him to a cardiologist, Dr Pawsey. The circumstances and the context of these referrals are revealed in documents T4 and T10.
60. The photocopies of the hand written entries of Dr Brodziac are somewhat indecipherable, but clearly indicate that he did examine the applicant. His findings, as far as can be deciphered, are as follows:-
“O/E Is somewhat overweight. Clubbing of fingers and toes, clinical examination is otherwise normal considering now the rales (continuing on T10P72)have disappeared from the chest. BP 130/80 spleen and liver were palpable. Heart normal. The only abnormality are enlarged tonsils. He has recovered from his Mumps. He tells me his chest x-ray and blood tests are normal. (Tribunal’s emphasis). He seems fit for duty... Chest X-ray report considerable ventricular enlargement R or L not stated Possibly R. Shadow R base ? old fibrosis.” (T10)
It appears as though Dr Brodziac accepted the applicant’s statement that his chest was clear and then saw the x-ray report and not the actual films. He notes old fibrosis because he listened for the creps that the junior doctor noted and did not hear any – which may well have made him consider any fibrosis to be old. There is no indication at all that he made any connection between the fibrosis shown on the x-ray and the clubbing (which he assumed – the Tribunal notes that he did not record that he questioned the applicant critically, which is shown by him accepting the applicant’s word that his blood tests and X-rays were normal). Again it appears that Dr Brodziac, presumably having examined the heart and found no abnormality, was concerned about the report he then read which showed an enlargement of the heart and requested, quite appropriately, corroborating evidence of cardiac enlargement or other pathology. He noted “ECG please” and “admit RANHP”.
61. Six days later, on 21 May 1979, Dr Brodziac wrote:
“Have just seen Xray. Suggest admission for a few days for investigation (which the Tribunal infers was to check his heart more thoroughly).
62. This admission is document T10, which is undated and appears to be an official discharge summary which, according to a notation on the document, had to be signed off as a true copy by a medical officer. This summary noted that the referral was regarding concern about finger and toe clubbing and “a past history of cardiomegaly.” Also that the applicant was admitted “in view of this” to RANHP by Dr Brodziac.
63. The summary repeats that “his father and his eldest brother had similar fingers and toes”. (The Tribunal would like to explain here that clubbing is a sign usually of either congenital heart disease or chronic lung disease. It is associated more rarely with diseases of other systems like the gut and in much rarer instances as a familial condition when it will show up from birth.) The report goes on to document that the ECG was essentially normal and a report of an echocardiogram is recorded. Unfortunately the continuation of this report to its end is not available. Based on this rather fragmented and incomplete material the Tribunal finds that Dr Brodziac uncritically assumed that one of the well known clinical signs in medicine – clubbing of fingers and toes – was congenital or familial. He seems to have dismissed a respiratory cause without seeking other serial medical records and serial x-rays going back to enlistment which he should surely have known were available to him in the “system”. For these reasons the Tribunal finds that Dr Brodziac’s clinical management fell short of the level required of a doctor (who, though not a specialist in respiratory medicine, should, as a specialist general physician, have managed his patient better).
Application of the law
64. There is authority that “the disease cannot be separated from its symptoms” (Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 624, per Mc Tiernan, Kitto, Taylor, Windeyer and Owen JJ). In this case, as explained – because of its pathology, and the huge respiratory reserve of the lungs – symptoms appear rather late in this particular disease, however signs (usually picked up on physical examination by Doctors) occur very much earlier and as Dr Waring has indicated were present during the applicant’s period of eligible service.
65. A question that the Tribunal posed for itself which required some support from the authorities was, therefore- “should the signs that arise from the pathology of a disease as do symptoms from the effects of that same pathology, both be considered to be a part of the disease and inseparable from it?” Though medical commonsense does appear to support this proposition, in this case, it appears that this question, as posed, still awaits a judicial answer.
66. The judgement in Broom (cited above) was very helpful with regard to aggravation and its close equivalents acceleration, deterioration and exacerbation. In that landmark judgement Kitto J noted:
“where it is possible to identify as the contributing factor to the aggravation, acceleration, exacerbation, or deterioration of a disease, some incident or state of affairs to which the worker was exposed in the performance of his duties to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc” : at page 5.
67. In that same judgement, Windeyer J noted:
“The words aggravation and acceleration have somewhat different meanings; one may be more apt than another to describe the circumstances of a particular case, but their several meanings are not exclusive of one another. The question that each poses is, it seems to me is, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effect on the patient. To say that a man’s sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word “acceleration” probably presupposes a progressive disease, one that running its ordinary course, increases in gravity until a climax such as death or total invalidity is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested but susceptible of being hastened by external stimuli”. at 629-30.
68. The Tribunal notes that two sets of words in these judicial insights stand out as being particularly appropriate to explain the situation in this case. They are “state of affairs” in the first and “external stimuli” in the other.
State of affairs
69. The Tribunal finds that the “state of affairs” to which the applicant was exposed in this case was as follows:
1.The summary compiled in exhibit T4 shows that from 14 January 1966 to 23 March 1973 the applicant’s chest x-rays were all reported as ‘normal’.
2.The first indication of any abnormality in the applicant’s chest films was noted on 9 April 1973, when a routine overseas medical x-ray noted “There are some heavy markings in a cluster just above the R cardio phrenic angle and continues with hilar shadows on the R side. Please send PA views in maximum inspiration and in maximum expiration. Also R lateral view. Check these markings more carefully. Cardiac contour is probably within normal limits for the habits of the individual. The lung markings referred to may have a heavy vascular background only” (T4).
3.The applicant was sent to Dr Cassidy, senior chest physician on 9 June 1978 with x-rays only going back 2 years to March 1976. The Tribunal notes that at this time 6 x-rays dating back to enlistment should have been available to Dr Cassidy and the junior doctor. The junior sent a note to Dr Cassidy regarding his (the junior doctor’s) summary of findings, without the applicant or complete set of x-rays available at the time, for a specialist opinion.
4.It becomes clear from perusal of all the serial x-rays, that from having perfectly normal x-rays at ages 19, 21 and 24, the applicant began to show non specific abnormalities in his x-rays starting at age 26 yrs (T4) and continued to have changes that caused concern but were explained away as probably within normal limits, or due to error caused by being unable, unwilling or restricted by his build (or being overweight) to make a deep inspiration.
5.The same documentary material that the Tribunal has summarised was available to the Service Medical System (as it is even today, more than 30 years later). The Tribunal has no doubt that all the clinical records dating back to enlistment (including routine medical exams and records of attendance at medical posts and all x-ray films dating from enlistment) should have been sent together with the applicant to the senior chest physician. This would have allowed him to take a history, examine him and evaluate whether the clubbing was or was not familial. The physician should have listened to all segments of the lungs as any clinician would, measured the applicant’s height and weight and his chest expansion and evaluated the results. He would then almost certainly have considered very seriously the diagnosis of IFA and arranged for pulmonary function testing which was available at the time (which could have further supported the provisional diagnosis, while also being a useful start in monitoring the rate of progression of the disease). The outcome of such an appropriate referral would almost certainly have resulted in the following:
(a)the doctor concerned would have alerted the junior doctors to the possibility of this diagnosis being now squarely on the radar;
(b)the applicant would have automatically been listed for ongoing regular surveillance; and
(c)the applicant would be told that a serious disease was being seriously considered and that he would be strongly advised to stop smoking and to lose some weight in order to help relieve any treatable cause that could further deteriorate his lung function.
At this stage, without a firmer diagnosis, treatment of the disease would not have been discussed except in a general and sensitive way.
70. Based on the consideration of the material discussed above, the Tribunal finds that the “state of affairs” that the applicant was subject to while on eligible service was a systems failure in the medical management structure that the Navy had in place in relation to this applicant’s disease at that time.
External stimuli
71. The Tribunal then considered whether the material would allow it to make a finding as to whether idiopathic fibrosing alveolitis was also aggravated by conditions or circumstances related to the applicant’s service that could be classed as “external stimuli”, which were separate from the systems failures that have been discussed above.
72. There were two other “external stimuli” that could be linked to service. These were:
·exposure to toxic fumes from working in submarines; and
·the development of a smoking habit.
73. With regard to the toxic fumes in the submarine, Dr Waring’s opinion, expressed in his report, allows the Tribunal to make a finding that the applicant’s submarine service – which was during his eligible service – could (via the fumes that he had to inhale), have aggravated his IFA.
74. With regard to smoking, the report at T2 deals with cigarette smoking in the context of whether it was sufficient to cause a condition (unrelated to this claim) of chronic bronchitis. The applicant completed a smoking questionnaire that, though it seems not to have satisfied the requirements of the SOP for chronic bronchitis, provided useful information for the Tribunal. The relevant entry at T2 regarding cigarette smoking is as follows: “Mr Money completed a smoking questionnaire stating that he commenced smoking in 1963” (which the Tribunal notes, was the year of his enlistment to the Navy) “at between 20 & 30 cigarettes per day”. He states that over the years, his smoking varied but did not supply figures. He ceased smoking in 1994.
75. The delegate of the Repatriation Commission was satisfied that Mr Money’s history of cigarette smoking was not causally related to eligible service. However, the Tribunal, having heard his evidence and the clear description of the addiction he had for cigarettes, finds that his addiction had its origin at the commencement of service and he continued smoking during the whole of his service. The amount and frequency entirely depended on varying factors, including varying stress levels, over time. The Tribunal therefore finds that as regards the applicant’s smoking habit, it was causally related to his service, and was perpetuated by circumstances of his eligible service.
76. The Tribunal finds that the applicant was smoking to a significant degree during eligible service and that smoking is well known to affect lung function by interfering with diffusion of gasses at alveolar level and by narrowing of the finer tubes taking air into the alveoli either by causing spasm of their walls so narrowing the lumen, or by the increase of secretions which also block and narrow the lumen restricting the passage of air in and out of the lung.
77. The Tribunal finds that the applicant’s smoking fell into the category of an external stimulus that was causally related to his relevant service, and that accelerated the natural course of his IFA.
78. The Tribunal then considered whether the applicant’s condition of being overweight was causally related to his service. It could find no evidence to support such a finding. However, the Tribunal notes that that being overweight, whether causally related or not to service, still has a bearing on whether there was inability to obtain appropriate clinical management which will be considered later in this decision.
79. The Tribunal believes the applicant when he says that if he had been advised to stop smoking because of his condition he would have. It also finds that the applicant gave up smoking in 1994 even before he was diagnosed, indicating that he could motivate himself and would have lost weight much earlier if he had been advised to do so. That would have prolonged his life span and improved the quality of the life left for him.
80. Being overweight was also an external stimulus which impacted on the applicant’s lung function that resulted from the stiffness of his lungs caused by the IFA. This was because being overweight further affected his ability to expand his lungs by limiting the movement of the diaphragm due to the increase in bulk of abdominal contents by the laying down of fat around his organs, and restricting proper inspiration and indeed accounting in part for the signs that would have alerted doctors to the diagnosis. However, the Tribunal could not find that being overweight could be connected with his service.
81. Furthermore, the Tribunal found that because of the delay in the diagnosis, there was delay in initiating prophylactic measures that would have protected his spare lung capacity that was being inexorably eroded. The prophylactic measures appropriate to the applicant’s disease are:
·making sure that the applicant has his yearly flu vaccine and five yearly pneumococcal vaccine, and having antibiotics at hand so he could promptly start taking them at the start of infection, and therefore not be delayed waiting for doctor’s appointments etc;
·advising him to stop smoking;
·keeping him under long term surveillance;
·regular monitoring of his lung function by non invasive testing; and
·explaining the importance of losing weight to the patient.
82. After considering all of the material before it, including the relevant opinions expressed by the Respiratory physicians in their Reports, the Tribunal is satisfied that the applicant did not obtain appropriate clinical management for his disease of idiopathic fibrosing alveolitis which arose during Eligible Service (but was not caused by that service) and that because of this inability, the condition which through its pathology caused the deterioration of his pulmonary function, was aggravated – in the sense of being “made worse than it otherwise would have been” – by the circumstances of his service within which the Navy’s medical system, on this particular occasion, failed to deliver appropriate clinical management to the applicant for his disease of idiopathic fibrosing alveolitis.
83. After considering all of the material before it, and for the reasons outlined above, the Tribunal finds that it is not satisfied on the balance of probabilities that the incapacity resulting from the disease idiopathic fibrosing alveolitis was not defence-caused.
Decision
84. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s condition of idiopathic fibrosing alveolitis is defence-caused, with effect from 13 March 2002. The Tribunal remits the matter to the respondent for assessment of the rate of pension. In all other respects the Tribunal affirms the decision under review.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D Weerasooriya, Member
Signed: [Sgd S da Motta].................
AssociateDate of Hearing 29 May 2006
Date of Decision 22 November 2006
Representative for the Applicant Mr R O’ConnorRepresentative for the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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