Monk and Repatriation Commission
[2005] AATA 335
•15 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 335
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/854
VETERANS’ APPEALS DIVISION )
Re KAREN MONK as Legal
Personal Representative of
ROBERT PAUL MONK (Deceased)Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 15 April 2005
Place Brisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]..........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – myeloma – inability to obtain appropriate clinical management
Veterans’ Entitlements Act 1986 ss 5, 70, 196B
Repatriation Commission v Wedekind [2000] FCA 649
Re O’Brien and Repatriation Commission [2003] AATA 525
REASONS FOR DECISION
15 April 2005 Ms M J Carstairs, Member 1. This is an application by Karen Monk (the applicant) as legal personal representative for her deceased husband Robert Monk for review of a decision made by Veterans’ Review Board on 26 July 2002 affirming a decision of a delegate of the Repatriation Commission (the respondent) that multiple myeloma was not due to Mr Monk’s eligible defence service.
2. At the hearing the applicant was represented by Mr A Harding of counsel instructed by Gilshenan and Luton solicitors. The respondent was represented by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A5 for the applicant and R1 – R8 for the respondent.
BACKGROUND
4. Robert Monk enlisted in the Australian Army (the army) at the age of twenty-four and served between 21 September 1977 and 20 September 1986. His service was eligible defence service under the Veterans’ Entitlements Act1986 (the Act).
5. Robert Monk was diagnosed with multiple myeloma in March 1998. Myeloma is a malignant disorder of the plasma cells which is usually fatal. On 13 March 2000 he lodged a claim to have that condition accepted as related to his defence service. The claim was refused by the respondent and by the VRB. On 7 October 2002 Mr Monk sought review of the decision rejecting his claim. He died on 2 June 2004, and his wife continued the application as his legal personal representative.
EVIDENCE
6. In a report dated 10 July 2001 (T4, p68-69) Dr S Durrant, Associate Professor of Medicine, who was involved with Mr Monk’s treatment, stated that Mr Monk was diagnosed with myeloma after he was admitted to hospital in March 1998 and had chemotherapy in the years following. Dr Durrant stated that at the time of diagnosis he estimated a 50% likelihood of death within four years and at the time of his report in 2001, 50% likelihood of death within 12 months.
7. In written statements to the VRB (T4, p75-82) Mr Monk set out his belief that during his army service there were early signs of his myeloma and that these could have been detected by the administration of relevant tests. His statements included the following information:
§ While carrying out a fireman’s lift in 1982 he hurt his neck but on reporting to the regimental aid post (RAP) he was not permitted to see a doctor
§ He had ongoing problems with spinal and neck complaints but received no treatment at the RAP and was not referred to a doctor
§ He experienced continuous bouts of influenza from early 1985 until his discharge in 1986
8. In a written statement dated 9 October 2002 (exhibit A1) Mr Monk set out that he served in various positions in the infantry, including forward scout, rifleman, machine gunner, and instructor. He stated that he started to have difficulty with his neck and his hips and sought assistance from the RAP, however he was refused access to a doctor by the corporal in charge. He stated that, as a member of the armed forces, he was not able to consult a civilian doctor, and he stated that he believed that he had no rights to see a doctor other than the one who attended at the RAP. He said that he endured constant pain during his years in the army and the lack of medical follow-up played a part in his decision to leave the army. He said that leaving the army was a way of allowing his body to recover.
9. Mr Monk stated that his neck problems were recorded at the RAP in November 1985 but inadequately treated, although he was in constant, worsening pain. He was told he should hold his neck forward when on parade to reduce soreness. He was treated for influenza for a period of some nine months between 1985 and 1986. He stated that at the time of his discharge a proper medical examination should have led to further investigation of his ongoing neck and back pain, the unexplained duration of his influenza symptoms, as well as an unexplained broken rib later detected on x-rays in March 1998 (T4, p65).
10. In a written statement dated 3 June 2003 (exhibit A2) the applicant said that she recalled her husband’s health had deteriorated from about 1982 when he began to have numerous health problems, including a painful neck, back, hips, and influenza-like symptoms, all of which she said he endured stoically because he had an uncomplaining nature. She said that her husband gave up playing squash in 1982 due to his back and neck pain and when he left the army he seemed to lack the stamina for work. She said that her husband’s last work was in the boning room at the South Burnett Meatworks from 1996 to 1998, where he required a special stand to assist him with lifting carcasses. She said that her husband attended a physiotherapist at the meatworks and he had to carry out his work with his back supported by surgical tape.
11. In oral evidence the applicant said that her husband had reported frequently to the RAP concerning ongoing back and neck pain and was dismissed with minor analgesics without ever seeing a doctor. She said he readily picked up infections and was drained by his arduous army duties. She said that her husband did not wish to be seen as a malingerer by attending the RAP excessively. She said that when he left the Army he attempted to work, and took on a series of jobs, but found that he lasted only short periods in the positions due to back pain. Under cross-examination she agreed that her husband had undertaken strenuous work at the meatworks.
12. The applicant said that her husband continued to have flu-like symptoms after he left the army. She recalled that he often needed to rest at lunchtime and would arrive home from work in the afternoon drained and exhausted. She said that her husband largely gave up on doctors whom he felt gave him little assistance and this was the reason that he did not attend at his general practitioner between 1993 and 1998.
13. The applicant said that when donating blood in 1986 her husband was told he was anaemic. However she said that when she tried to obtain the Red Cross records she was told that the batch records for the relevant date were lost.
14. The following summarises an extract from The Merck Manual of Diagnosis and Therapy: Merck Research Laboratories, 1999, 17th Ed. P965-968 (attachment to exhibit R4) concerning myeloma:
§ the cause of the disease is unknown;
§ diffuse osteoporosis or osteolytic lesions develop, usually in the pelvis, spine, ribs and skull;
§ symptoms and signs can include persistent unexplained skeletal pain, renal failure, recurrent bacterial infections, pathological fractures, and anaemia with weakness and fatigue
§ the disease is progressive, with a median survival rate of 2.5 to 3 years but good management improves the quality and duration of life
15. In a letter dated 28 August 2000 (T4, p54), Dr P Lip, general practitioner, summarised his records of relevant consultations with Mr Monk, which included: 24 August 1989 when he had lower back pain after shifting refrigerators; 20 August 1992 when he had pains in the left hip; 1 April 1993 when he presented with his army records and reported soreness of the left hip and back; and on 8 April 1993 when his ached at night but his back was better. The next reference to back pain was when Mr Monk saw Dr Lip in February 1998 when the entry was back pains affecting work. Examination normal. Back pain continued into March 1998 when Mr Monk was admitted to hospital and was diagnosed with myeloma.
16. In a note dated 12 November 2002 (exhibit R4) Dr P Grant, senior medical officer, Department of Veterans’ Affairs, stated that he had spoken to Dr Lip, who said that he considered that the possible date of onset of myeloma was earlier than 1997 based on symptoms described to him by Mr Monk. Dr Grant noted also that Mr Monk was referred to Royal Brisbane Hospital in mid-1997 with low back pain and was found to have a para-protein band. Dr Grant said that he formed the impression from discussions with Dr Lip that Monk experienced a short period of symptoms before the identification of the paraprotein band in 1997 and then sustained a rapid deterioration in health prior to seeing Dr Lip in 1998. Dr Grant concluded after reviewing the available evidence that it was unlikely that Mr Monk had developed myeloma during service. He said that a history of attending Dr Lip for twelve years after discharge without myeloma being suspected was at odds with the suggestion that there was an inability to obtain appropriate clinical management during service.
17. In a report dated 29 September 2003 (exhibit A4) Dr C Stewart, haemato-oncologist, referred to normal blood test results after testing on 5 August 1985 but noted that no blood tests were carried out on Mr Monk’s discharge from the army. Dr Stewart also examined and commented upon the service medical records and noted that Mr Monk had reported with back pain in 1985 and 1986 and experienced a lengthy period of recurrent respiratory tract infections and influenza during his service. He stated:
Thus Mr Monk first complained of neck and spine bone pain in 1981, which subsequently recurred intermittently as well as hip pain. In no instance do his skeletal symptoms appear to have been associated with trauma, nor did the bone pain remit with the passage of time.
….
BECAUSE
1. bone ache and pain eg especially vertebra, and hip are common symptoms associated with plasma cell proliferation in bone marrow and characteristically the bone pain does not remit with the passage of time
18. In oral evidence Dr Stewart said that Mr Monk was told some forty-six days after discharge that he was anaemic. He said that red blood cells have a life of 100 -120 days and from the presence of anaemia in soon after service he inferred that Mr Monk had contracted myeloma during service. Dr Stewart said that if Mr Monk had normal haemoglobin levels in 1985 but recorded anaemia in 1986, his myeloma may have progressed. He said that he believed this was Stage I or “smouldering myeloma” (the description smouldering myeloma is given to a low or dormant level, at which there are few or no symptoms), particularly because it was followed by years of insidious fatigue and bone pain. In oral evidence he said that the number of infections that Mr Monk sustained suggested an impaired immune response.
19. Dr Stewart said that it was not unreasonable that tests were not carried out while Mr Monk was on service, because it is difficult to detect myeloma unless the disease is already in an advanced stage. He said that the disease is not treated unless it is at an advanced stage or there are signs that the disease is progressing. Dr Stewart said that if Mr Monk had smouldering myeloma during his service the treatment would have been to observe and monitor, but not to treat, because treatment at this stage of the disease may cause leukaemia. He said that treatment will never cure the disease but prolongs life. Dr Stewart said that certain treatments such as stem cell transplants were not available in the 1980’s.
20. Dr Stewart said that it would be impossible to predict when clinical onset was, without blood samples. He said that without blood and urine testing the disease cannot be diagnosed. He said in the presence of persisting bone pain a practitioner would be inclined to do certain tests. However he said that was not implying that these tests should or should not have been done. In oral evidence he said that the disease was probably progressing in 1997 but not enough to the stage of renal impairment or lytic bone lesions (which show bone destruction).
21. In a report dated 1 May 2003 (exhibit R2) Dr K Taylor, Associate Professor of Medicine and Director of Haematology at Brisbane’s Mater Hospital, stated that Mr Monk was diagnosed in March 1998 with advanced myeloma which would have been present for a significant period, although he said onset was difficult to estimate as the disease can have a gradual onset, with early features being subtle. He said that the early features can include a predilection to disease, fatigue and bone discomfort. Dr Taylor said that he took into account Mr Monk’s repetitive upper respiratory tract infections and complaints of bone discomfort but concluded that it was most likely that he developed myeloma in the immediate years prior to the clinical diagnosis in 1998. Dr Taylor considered it was unlikely that the disease was present during service.
22. In a further report dated 18 November 2003 (exhibit R3), Dr Taylor said that Mr Monk’s myeloma most likely arose in the years immediately prior to formal diagnosis, not on service, but he was unable to say with total certainty.
23. In oral evidence Dr Taylor reiterated that formal diagnosis was made in March 1998 and he said that ascribing an earlier date was mere speculation. Dr Taylor said that multiple myeloma is a neoplastic cancerous disorder that tends to get worse. He said that an eleven year gap after Mr Monk left the Army was not consistent with the condition being present during his service, because if he had had the condition during service he would have experienced problems sooner than 1998. He said that he believed the condition would have been present prior to diagnosis, but it was unlikely to have been present for a decade and he offered the view that it was likely to have been present for months rather than years. He considered it highly unlikely that the symptoms that Mr Monk experienced during the 1980’s and 1990’s were due to multiple myeloma.
24. Dr Taylor said that if the anaemia referred to in 1986 was linked to multiple myeloma, Mr Monk would almost certainly have been diagnosed long before 1998, because the disease does not stay dormant for long once it starts to create problems. He described it as relentless once it declares itself clinically. He said that when Mr Monk was diagnosed in 1998 the condition required immediate treatment. However he acknowledged that it is a variable disease.
25. Dr Taylor said that the tests for multiple myeloma include a blood and urine test to detect the presence of a particular protein produced by the myeloma cells, and x-rays which can reveal lytic changes in the bones. He said that if a person was diagnosed with myeloma in the 1980’s the treatment would include oral or intravenous chemotherapy and radiotherapy. He said that therapies which might have altered the course of myeloma were not in general use until the mid-1990’s.
26. Dr Taylor agreed that a person with smouldering myeloma is observed, but not treated.
CONSIDERATION OF THE ISSUES
27. The relevant legislation in this matter is contained in s70, s120B and s120(4) of the Veterans’ Entitlements Act 1986 (the Act). Section 70(1) of the Act provides that the Commonwealth is liable where incapacity or death arises from defence- caused injury or disease. Mr Monk rendered eligible defence service in accordance with s68(1) of the Act as he rendered continuous full time service as a member of the defence forces on and after 7 December 1972.
28. Section 70(5) provides for eligibility for pension as follows:
(5)For the purposes of this Act, the death of a member of the Forces ….. 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;
…….
(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; ….
29. Section 120(4) of the Act relates to the standard of proof to be applied and provides that the standard is that of reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s120B of the Act and any applicable Statements of Principles (SoPs) issued by the Repatriation Medical Authority. Section 196B(14) states:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…..
(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
……
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service;
……..
30. For the purposes of formulating the SoPs the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition, of the necessary connections between service and injury or disease.
31. At the time of Mr Monk’s claim the applicable Statement of Principles (SoP) for Myeloma was Instrument No 73 of 1999 and it is now Instrument No 56 of 2003. Pursuant to s196B of the Act, clause 5 of the current SoP provides (as did the earlier SoP in clause 5(c)) that :
5. The factors that must exist before it can be said that, on the balance of probabilities, myeloma or death from myeloma is connected with the circumstances of a person’s relevant service are:
(a) ….; or
(b) inability to obtain appropriate clinical management for myeloma.
Factors that apply only to material contribution or aggravation
6. Paragraph 5(b) applies only to material contribution to, or aggravation of, myeloma where the person’s myeloma 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.
32. Mr Harding submitted that the Tribunal should accept the evidence of Dr Stewart in preference to that of Dr Taylor and find that Mr Monk had smouldering myeloma while he was on service. He said that there were pointers to the presence of the disease, including anaemia and recurrent infections. He said that the ultimate diagnosis in 1998 additionally pointed to the presence of disease at an earlier time. He submitted that if the Tribunal accepted that Mr Monk had the condition during service then inability to obtain clinical management included an army ethic that discouraged malingering and prevented Mr Monk from pressing for further treatment for his continuing poor health. He submitted that Mr Monk’s reluctance to present at the RAP was related to service and led to a failure to detect the presence of smouldering myeloma for which the appropriate clinical management was monitoring and observation. He said that Mr Monk left the army with a belief that he was burned out and this then shaped the way he dealt with civilian doctors. After his service Mr Monk’s attitudes compromised the ability of other doctors to undertake the monitoring role.
33. Mr Smith pointed out that the effect of clause 6 of the SoP is that the respondent is liable only where inability to obtain clinical management aggravated a condition that existed before or during the veteran’s service. He said that the applicant could succeed only if myeloma was present during service. If the condition developed after service the claim must fail. He referred to Re O’Brien and Repatriation Commission [2003] AATA 525 where the Tribunal stated that it is necessary to show that
§ a medical condition existed during service;
§ the person was unable to obtain appropriate clinical management for it; and
§ the lack of appropriate clinical management made the condition worse than it otherwise would have been.
34. Mr Smith submitted that it was speculative to suggest that myeloma was present during Mr Monk’s service, and on the balance of probabilities the onset was in the late 1990s. He submitted also that if the disease were present during service, it was more likely that a failure to diagnose would be due to the insidious nature of the disease rather than to inability to obtain effective clinical management, which itself would not have had any significant effect on progress of the disease.
35. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
36. In Repatriation Commission v Wedekind [2000] FCA 649, Kenny J stated, in terms that have general application to factors in SoPs referring to inability to obtain appropriate clinical management :
12. In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.
37. The Tribunal prefers the evidence of Dr Taylor to that of Dr Stewart. Dr Taylor acknowledged the difficulties of estimating the onset of the disease and accepted that the condition, which is gradual in onset, would have been present prior to the formal diagnosis. However he was very clear in his evidence that a gap of eleven years until the condition was diagnosed in 1998 was not consistent with the presence of myeloma during service. He was also clear that if the complaints of bone pain and infection that Mr Monk had during service were related to myeloma the condition would have been diagnosed within the next two to three years, because it is an aggressive disease when these symptoms manifest themselves. Dr Stewart agreed that when myeloma is symptomatic generally it would progress more quickly than the period of years in this case.
38. The Tribunal accepts Dr Taylor’s evidence that a person with smouldering myeloma has few or no symptoms and this itself supports the proposition that the complaints of pain and fatigue that Mr Monk suffered during service do not suggest the presence of smouldering myeloma during his service. Dr Stewart’s evidence acknowledged that without the blood test (not occurring until 1998) it is not possible to say from when Mr Monk had the disease, and Dr Stewart was in agreement that without a blood test it is not possible to say when the disease commenced or progressed. Both doctors agreed that, without blood tests at the time it cannot be known with certainty whether or not Mr Monk had any stage of myeloma on service, however the statutory test is that of reasonable satisfaction. Dr Stewart merely speculates upon Mr Monk exhibiting the earliest stage of myeloma during service, and it is difficult to accept this when his evidence was in agreement with Dr Taylor’s that at the early stage the condition essentially is asymptomatic.
39. In applying the evidence in regard to Mr Monk’s circumstances to the test set out by Kenny J in Wedekind, and applied by the Tribunal in O’Brien, the Tribunal finds that it is unlikely that Mr Monk had myeloma or smouldering myeloma during his service. There is no need for the Tribunal to proceed to consider issues of clinical management because clause 6 of the SoP requires that myeloma be present before the end of service. The Tribunal is reasonably satisfied that the condition was not present during service. The doctors agreed that only with blood testing at the time could a state of certainty be achieved. However given the period between discharge and diagnosis in 1998, and the aggressive nature of the disease once clinical symptoms appear, the tribunal was not satisfied that the symptoms experienced by Mr Monk during service were related to the subsequently diagnosed myeloma. Therefore the evidence taken overall does not point to factor 5(b) of the SoP being met and the claim must fail.
DECISION
40. The Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Camille Banks
AssociateDate/s of Hearing 22 February 2005
Date of Decision 15 April 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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