Moore and Repatriation Commisssion
[2001] AATA 170
•7 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/586
VETERANS' APPEALS DIVISION )
Re RONALD MOORE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger Senior Member
Date7 March 2001
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside that part of the decision of the Repatriation Commission dated 22 August 1998 as affirmed by the Veterans' Review Board on 17 February 1999, rejecting the Applicant Mr Ronald Moore's condition of chronic airflow limitation pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution for that part of the decision set aside, the Tribunal finds that the Applicant's condition of chronic airflow limitation was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The remaining parts of the decision including the claim by Mr Moore for osteoarthrosis of the left ankle are affirmed. The Tribunal remits the question of assessment of the rate of pension to the Repatriation Commission for determination taking into account the above-made findings.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Veteran - operational service - whether smoking increased in stressful situation in posting in Malaya - whether veteran meets requirements of the SoPS – chronic airflow limitation war-caused - osteoarthritis left ankle not war-caused as SoP for gout not satisfied; causal connection not made.
LEGISLATION
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3) and 120A
STATEMENT OF PRINCIPLES
Repatriation Medical Authority Statement of Principles No. 73 of 1997 Concerning Chronic Bronchitis and Emphysema
Repatriation Medical Authority Statement of Principles No.88 of 1997 Concerning Gout
Repatriation Medical Authority Statement of Principles No.11 of 2000 Concerning Gout
Repatriation Medical Authority Statement of Principles No. 41 of 1998 Concerning Osteoarthrosis
CASES
Brown v Repatriation Commission [2000] AATA 1118
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cook v Repatriation Commission [2000] FCA 1756
Deledio v Repatriation Commission (1997) 47 ALD 261
George Hudson Limited v Australia Timber Workers' Union (1923) 32 CLR 413
J R Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Olsen v Repatriation Commission [2000] AATA 909
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McKenna (1998) FCA 787
Re Reading v Repatriation Commission [2000] AATA 841
Re Ryan v Repatriation Commission [2000] AATA 849
State of New South Wales v McMullin (1997) 73 FCR 246
Zoarder v Department of Social Security (1998) 26 AAR 342
REASONS FOR DECISION
7 March 2001 Ms G Ettinger Senior Member
The application before the Administrative Appeals Tribunal ("the Tribunal") was to review those parts of the decision of the Repatriation Commission dated 22 August 1998 (T2) which concerned chronic airflow limitation and osteoarthrosis of the left ankle as affirmed in part by the decision of the Veterans' Review Board ("VRB") of 17 February 1999 (T25).
The Repatriation Commission, in its primary decision, had held that benign prostatic hypertrophy, bilateral sensorineural hearing loss, chronic airflow limitation and osteoarthrosis of both ankles were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The VRB affirmed the decision of the Repatriation Commission that benign prostatic hypertrophy, chronic airflow limitation and osteoarthrosis of both ankles were not war-caused but set aside those parts of the decision that related to bilateral sensorineural hearing loss and substituted the decision as follows:
"(i)that that condition [bi-lateral sensorineural hearing loss] was war-caused as defined in section 9 of the Veterans' Entitlements Act 1986 ("the Act");
(ii) that the Commonwealth of Australia is liable pursuant to section 13 of the Act to pay pension for any incapacity arising from that condition from and including 1 March 1998; and
(iii) to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid."
In a later decision dated 27 March 2000 (Exhibit R2), the VRB set aside the decision of the Repatriation Commission dated 29 May 1999 and found that Mr Moore's osteoarthrosis of the right knee was war-caused pursuant to the legislation, the date of effect being 12 February 1999.
At the hearing before this Tribunal, the Applicant, Mr Ronald Moore, was represented by Mr C Colborne of counsel who was instructed by Vardanega Roberts, and the Respondent, Repatriation Commission, by its advocate Ms S Breuer.
PRELIMINARY ARGUMENTSAt the commencement of the hearing, Mr Colborne submitted that the condition to be considered could be renamed bronchitis or emphysema because that was the nomenclature used in the Repatriation Medical Authority's Statement of Principles No.73 of 1997, which was relevant to Mr Moore's claim.
As the Repatriation Commission and the VRB had both considered Mr Moore's condition as chronic airflow limitation, I decided it would be preferable to refer to it in that way, even though Instrument No.136 of 1996 concerning Chronic Airflow Limitation was revoked and replaced by Instrument No.73 of 1997 concerning Chronic Bronchitis and Emphysema.
ISSUES BEFORE THE TRIBUNALThe issues to be decided were:
· Whether the Applicant's chronic airflow limitation was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986;
· Whether the Applicant's osteoarthrosis of the left ankle was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986;
LEGISLATIVE FRAMEWORK
The relevant legislation is the Veterans' Entitlements Act 1986, in particular sections 9, 120(1), 120(3) and 120A. Section 9 provides that:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
As Mr Moore had served on operational service in what was then known as Malaya from 11 February 1953 to 24 August 1953, the standard of proof applicable to assess whether his conditions of chronic airflow limitation and osteoarthrosis of the left ankle were war-caused was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
…"
Section 120A of the Act applies because Mr Moore's application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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 operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
The parties submitted and I agreed that the earliest date of effect in this matter was 28 February 1998.
EVIDENCE BEFORE THE TRIBUNALThe Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents") and the following other exhibits:
ITEM DATE NAME
Statement of Ronald Moore 8 December 1999 Exhibit A1
Medical Report of Dr M Miller and Curriculum Vitae 10 August 1999 Exhibit A2
Medical Report of Dr M Miller 4 March 1999 Exhibit A3
T-Documents 19 May 1999 Exhibit R1
Supplementary T-Documents 8 June 2000 Exhibit R2
Medical Report of Dr D Allen 2 September 1999 Exhibit R3
Medical Report of Professor P Sambrook 23 September 1999 Exhibit R4
Medical Report of Dr M Burns 4 September 1999 Exhibit R5
Mr Moore gave oral evidence before the Tribunal.
EVIDENCE OF THE APPLICANT MR RONALD MOOREMr Moore said in evidence that he enlisted in the Royal Australian Air Force on 7 July 1948 and prior to enlisting he had not smoked, but tried a cigarette as a young boy. Mr Moore said that he started smoking in 1949 when he was posted to Lithgow to break up a coalminers strike.
The Applicant gave evidence that the situation that he found himself in was very hostile and he was frightened about what could happen to him. He said that he started smoking to relieve the stress.
I noted that in his written statement (Exhibit A1), Mr Moore said that he:
"… thought the situation to be extremely tense, the coalminers treated us as strike breakers, swearing at us, spitting at us and throwing things at us if ever we came into contact with them … It was my perception that we could not go into Lithgow proper for fear of being assaulted by the coalminers."
Mr Moore gave evidence that during this period his smoking varied but that he was smoking approximately five to ten cigarettes per day, four days per week.
The Applicant said that after he left Lithgow he reduced his level of smoking and smoked an estimated ten cigarettes per day. Mr Moore said that he could not smoke while he drove because he was working as an RAAF transport driver, but would smoke in the mornings and evenings.
When questioned as to whether his smoking habits varied, Mr Moore said that he played a lot of sport at the time and as a result would not smoke during the training, which lasted for approximately two months during winter. Mr Moore said that there were no other variations in his smoking habits during his period of service. He gave evidence however that when he was posted to Malaya in 1953, his smoking increased considerably. He said that his duties involved making transport trips through Malaya, and that he was required to guard the airfield where he was stationed along with other men. They were equipped with a loaded rifle and bayonet he said.
Mr Moore said that while he did not see actual action, he was told that there were terrorist forces in the area and this had made him very tense and frightened. In this respect, I noted that in his statement at Exhibit A1 he said that he:
"… had been informed by some of my fellow servicemen that there were "terrorist" or "bandits" in the area and this caused me to be extremely nervous."
The Applicant said that during this time, he smoked over 50 cigarettes a day in order to settle his nerves. He also said that the cigarettes were readily obtainable and cost the equivalent of 20 cents from the canteen on the airfield. He said that in addition he was given coupons, which enabled him to get two ounces of tobacco per week.
I further noted that Mr Moore stated in his statement at Exhibit A1 that:
"While I am unable to state exactly how many cigarettes I was smoking at that time, it is my view that my smoking increased three or four fold after being in Malaya for about one month. I can say that I did, on many occasions, consume at least forty to sixty cigarettes per day."
Mr Moore said that although upon his return to Australia his smoking habit varied, he continued to smoke. However, Mr Moore said that he could not put an exact figure on it. He also said that he began smoking approximately four ounces of tobacco per week or roughly 100 hand rolled cigarettes, which he said lasted much longer than the tailor made cigarettes.
Mr Moore said that he continued to smoke at that level until 1983 when he was advised by Dr Lippey, his vascular surgeon to stop smoking because of his vascular disease. In fact, Mr Moore advised the Tribunal that he underwent an operation for vascular disease in 1984.
As to his drinking, Mr Moore said that he drank alcohol occasionally prior to his service, but that his drinking increased dramatically whilst in Malaya. Mr Moore said that he started to drink very heavily when he was doing guard duties and that he continues to drink until the present day.
When Ms Breuer directed Mr Moore's attention to a number of inconsistencies between his Smoking Questionnaire at T14 ("the Questionnaire") and his evidence before the Tribunal, Mr Moore said that he did not complete the form, which was completed by his cousin Mr Raymond Moore, a pension officer. Mr Moore further stated that he signed the document but did not take much notice of its contents.
When questioned whether he knew that the Questionnaire would relate to his eligibility for a pension, Mr Moore said that he did not know that it was anything other than a smoking questionnaire.
Ms Breuer also cross-examined the Applicant in respect of his comments in his 'Claim for a Disability Pension and Medical Treatment' (Exhibit R2/17-18). Ms Breuer said that in respect of question 5b, which asked the Veteran to "… explain how the conditions of your service caused, contributed to, or aggravated the disability(ies) now claimed", Mr Moore recorded:
"In 1949 … I was sent to Lithgow NSW to break the coal strike and while I was there the situation being so unstable and unpredictable as it was I began to smoke …"
Ms Breuer drew my attention to the fact that there was no mention of Malaya. Mr Moore said that he was not asked about Malaya when filling out the form.
Ms Breuer also pointed out to Mr Moore other inconsistencies in his evidence and questioned him about whether he had changed the history of his smoking to connect it with his operational service in Malaya following the rejection of his pension claim by the Repatriation Commission. Mr Moore said that he did not change his story and maintained that he increased his smoking in Malaya, adding that he did not fill out the forms himself.
Mr Moore said that it was difficult to provide exact estimates of how many cigarettes he smoked each day because when he was chain smoking, he would just smoke a cigarette, put it out in the ash tray and light up another, "… you wouldn't know how many you smoked."
When questioned about the most stressful time during his service, Mr Moore said that he was pretty scared during his time in Lithgow and thought he was under a great deal of pressure and tension. However, he said that was before he went to Malaya.
MEDICAL EVIDENCE BEFORE THE TRIBUNALThe medical evidence consisted of, amongst others, the reports of Dr M Miller; Dr D Allen; Professor P Sambrook; Dr M Burns; Dr J Caska; Dr C Duggan; Dr F Fowler; and Dr M Glase. Their opinions and examination findings have been discussed in the sections of these reasons which follow.
MEDICAL EVIDENCE OF DR M MILLER CONSULTANT PHYSICIANDr Miller, whose medical reports dated 10 August 1999 and 4 March 1999 were before the Tribunal at Exhibits A2 and A3 respectively, examined Mr Moore with respect to his chronic airflow limitation and osteoarthrosis of the left ankle.
Dr Miller took a detailed history from the Applicant, in light of what he felt were confusing reports in the documents regarding Mr Moore's smoking in respect of his claim for peripheral vascular disease. He recorded that:
"Mr Moore told me that he started smoking irregularly, not every day and at most six a day, in 1949. About a year before he went to Malaya, in 1952, he increased his cigarette consumption to about ten a day on a regular basis but during his service in Malaya he increased his smoking to sixty a day. After his discharge from the Air Force he dropped back to about twenty cigarettes a day and continued at that level of regular consumption until he was advised by Dr. Lippey to cease smoking in 1983." (Exhibit A3)
As to Mr Moore's osteoarthrosis of the left ankle, Dr Miller recorded that:
"Mr Moore told me that he has had intermittent pain in the ankle since 1960. This was diagnosed as gout and responded to treatment, but about a year ago he felt a click in the left ankle and was unable to put his foot on the ground. He was referred to see Dr. Malcolm Blase (sic) who x-rayed his ankle and told him that he had osteoarthritis. He was treated with a bone graft and fixation of the ankle. Since then he has had much relief from the pain and can walk until he is forced to stop by his claudication." (Exhibit A3)
Notwithstanding, Dr Miller was unable to relate Mr Moore's osteoarthrosis of his left ankle with his war service.
It was not until he compiled his report dated 10 August 1999 (Exhibit A2), that Dr Miller addressed the issue of Mr Moore's chronic airflow limitation. Of his omission to address the condition initially, Dr Miller recorded that:
"I did not address Mr Moore's chronic airways limitation in my earlier report, the documents that were sent to me at that time contained no history concerning any chronic airways limitation. Mr Moore has a significant memory problem and made no mention of his claim."
Dr Miller noted the following symptoms as detailed by Mr Moore, namely that:
"… main symptom is of coughing with production of about a tablespoonful of sputum which varies between clear and green. He also suffers from shortness of breath on exertion but this has become considerably worse since I saw him on 4th March last."
Dr Miller opined that Mr Moore was considerably restricted in his ability to move about as a result of his shortness of breath, and noted that "… he was short of breath on crossing the road and climbing five steps to see me today".
Dr Miller concluded that Mr Moore's chronic airways limitation (described by the Tribunal as chronic airflow limitation) could be attributed to his service as the condition:
"… has deteriorated since 1994 when he was assessed by Dr. Duggan but even then he satisfied the Statement of Principles for definition of emphysema. He continues to satisfy the definition for chronic airways limitation according to instrument 73 of 1997 for chronic bronchitis and emphysema and, as he has smoked very much more than ten pack-years before the clinical onset of this condition, I consider he satisfies factor 5(b) of instrument 73 of 1997 and that there is a reasonable hypothesis that his chronic airways limitation relates to war service."
MEDICAL EVIDENCE OF DR D ALLEN RESPIRATORY PHYSICIAN
Dr Allen, whose medical report dated 2 September 1999 was before the Tribunal as Exhibit R3, noted that Mr Moore:
"… is a previous cigarette smoker, having smoked in the region of 20-60 cigarettes per day between 1949 and 1983. While smoking he had occasional episodes of bronchitis but little in the way of any chronic chest symptoms. His main symptom at the present time is breathlessness. He is not breathless on the flat, however on stairs and hills he will become mildly to moderately short of breath … In addition to breathlessness he has a mild morning cough productive of a small amount of mucoid to mucopurulent sputum."
Dr Allen opined that the Applicant's symptoms when considered in light of his lung function tests performed on 31 August 1999 were consistent with "… the diagnosis of mild to moderate chronic airflow limitation related to his previous cigarette smoking."
Of the relationship between Mr Moore's smoking and his war service, Dr Allen maintained that:
"… the veteran's symptoms do satisfy factor 5(b) of the Statement of Principles for chronic bronchitis and emphysema in that he smoked for at least 10 years before the onset of symptoms."
MEDICAL EVIDENCE OF PROFESSOR P SAMBROOK RHEUMATOLOGIST
Professor Sambrook, whose report dated 23 September 1999 was before the Tribunal as Exhibit R4, documented that the Applicant:
"… recalled having ankle swelling as part of attacks of gout that he used to develop quite frequently. His first attack of gout apparently was in 1949 but he had these during service and there is an entry in his file date of 27th January 1953, that recalls arthritis of the right hallux MTP joint."
Professor Sambrook recorded that the Applicant gave a history that focused on the left ankle rather than the right which was diagnosed by Dr Glase as osteoarthritis following the development in 1998 of "… acute pain and swelling of the left ankle apparently related to the use of an exercise machine" and was treated with a corticosteroid injection and then a fusion which had alleviated the symptoms.
As to the precipitating events regarding the development of gout, Professor Sambrook noted that:
"… Mr Moore told me that when he joined the Air Force he drank very little but during his time in Malaya he drank about six to seven pints of beer per day and has done so ever since until a few years ago."
After examining the radiological reports from an x-ray of the left ankle on 23 December 1997 and a bone scan on 28 January 1998, Professor Sambrook opined that:
"In regard to the ankles, there is some evidence that gout can be precipitated or aggravated by heavy alcohol intake and Mr Moore has an accepted disability in regard to this but the radiological appearance in the left ankle (the only really symptomatic side until the time of the fusion) is not typical of gout and more in keeping with osteoarthrosis. There is certainly no history of injury to the left ankle during his service period and the recent onset as described by Dr Glase's report suggests this is unrelated to his service."
The Tribunal adjourned for the parties to make written submissions with regard to the claim for osteoarthrosis of the left ankle. Appended to the written closing submission of the Applicant was a supplementary report of Professor Sambrook dated 2 August 2000 in which he further discussed Mr Moore's gout and osteoarthrosis. I have considered it in connection with the claim for osteoarthrosis of the left ankle as discussed later on in these reasons.
MEDICAL EVIDENCE OF DR M BURNS OCCUPATIONAL PHYSICIANDr Burns, whose report dated 4 September 1999 was before the Tribunal as Exhibit R5, examined the Applicant on 1 September 1999.
Dr Burns recorded that Mr Moore began smoking in 1949 when he was posted to Lithgow during the coal strike, and was smoking approximately ten cigarettes per day due to the tension of the situation. Dr Burns recorded that Mr Moore's smoking continued throughout his military service and then until 1983 when he was diagnosed as suffering peripheral vascular disease. He recorded that Mr Moore's smoking increased to approximately thirty cigarettes per day when he was posted overseas (to Malaya).
As to Mr Moore's chronic airflow limitation, Dr Burns opined that:
"Over the years he has had a moderate shortness of breath. I note that he was examined in 1994 by a respiratory physician and found to have only minor lung disease. At the time it was believed that his shortness of breath was more associated with his obesity.
Dr Burns performed a spirometry test on the Applicant on the day of consultation and noted that:
"He had a FVC of 2.81 litres and an FEV1 of 2.09 litres. These were 91% and 86% of predicted respectively. He did have an FEF25-75 of 1.55 litres, which was only 61% of predicted. From these figures I believe that he has only mild large airways disease but may have some emphysema."
As to osteoarthritis of the left ankle, Dr Burns reported that Mr Moore has:
"… had arthritis in both ankles for a number of years. Following significant pain a fusion of the left ankle was performed approximately 12 months ago. That ankle is now fused but gives him very little pain."
Although he made no connection between Mr Moore's osteoarthritis and his alcohol consumption, Dr Burns recorded that Mr Moore drank whilst in the Air Force to relieve tension and noted the following history:
"He would drink until he dropped or until he had no money left. He states that over the last few years he has decreased his alcohol intake significantly. He now has five to six stubbies of light beer per day."
MEDICAL EVIDENCE OF DR J CASKA GENERAL PRACTITIONER
Dr Caska, whose medical report dated 18 June 1993 was before the Tribunal at T5/19, said that although Mr Moore started smoking in 1949 and was smoking approximately 10 cigarettes per day:
"In 1953, he was stationed in Malaya & there was fighting in the vicinity. The combination of stress, boredom and the easy access to virtually limitless supplies of cheap tobacco turned him into a 3 pack per day cigarette addict."
MEDICAL EVIDENCE OF DR C DUGGAN RESPIRATORY PHYSICIAN
Dr Duggan, whose report dated 30 September 1994 was before the Tribunal at T11/38, recorded that although Mr Moore's consumption of cigarettes varied considerably, he smoked on average a packet a day.
As to his current complaints, Dr Duggan noted that Mr Moore was:
"… unaware of significant respiratory disease in the past and bronchitis occurred no more than yearly although a cough productive of a small amount of sputum might be prolonged for up to two to three months after an acute infection. Generally when well he denied wheeze, chest pain, hemoptysis and there was only minimal sputum produced.
Breathlessness occurred after climbing a flight of stairs or with moderately heavy activities such as lawn mowing. There has been a decline in his exercise tolerance over the past decade. At present he felt that he could walk at a reasonable pace for 30 meters before slowing down…"Following respiratory function tests conducted on 29 September 1994, Dr Duggan opined that Mr Moore suffered mild airflow limitations with gas trapping but no other significant abnormalities.
Dr Duggan concluded that:
"Mr Moore has features of breathlessness more in keeping with his obesity rather than significant impairment of lung function due to his earlier smoking."
SUBMISSIONS AND CONCLUSIONS
I had to take into account the evidence, submissions, case law and relevant SoPs to make the correct and preferable decision in determining whether Mr Moore's chronic airflow limitation and osteoarthrosis of the left ankle were war-caused pursuant to section 9 of the Act.
As Mr Moore had served on operational service in what was then Malaya from 11 February 1953 to 24 August 1953, it was appropriate in considering whether his claimed conditions of chronic airflow limitation and osteoarthrosis of the left ankle were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
APPLICATION OF PRINCIPLES IN REPATRIATION COMMISSION v DELEDIO (1998) 83 FCR 82The Full Federal Court in Repatriation Commission v Deledio (supra) held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war–caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war–caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
"Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt."
I turned then to decide whether applying the principles set out in Repatriation Commission vDeledio (supra), the material before me raised an hypothesis connecting Mr Moore's conditions of chronic airflow limitation and osteoarthrosis of the left ankle with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
WHETHER MR MOORE'S CHRONIC AIRFLOW LIMITATION WAS WAR-CAUSED PURSUANT TO SECTION 9 OF THE ACTAs a preliminary matter I noted that Ms Breuer, on behalf of the Respondent, conceded that the Applicant met the first step in Deledio (supra) in regard to his chronic airflow limitation:
"… that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
She submitted that the evidence indicated Mr Moore increased his smoking during his war service which resulted in him suffering chronic airflow limitation.
In his report of 10 August 1999 (Exhibit A2), Dr Miller noted a deterioration of Mr Moore's chronic airflow limitation since his earlier examination on 4 March 1999 and reported:
"I note that I examined his respiratory system briefly in March 1999 and stated "I could detect no abnormality in his respiratory system". Today I examined his respiratory system more carefully and found evidence of dullness to percussion at both bases, the right more than the left associated with reduced breath sounds. It appears that I missed these signs of pleural thickening in my earlier examination."
Dr Miller performed further investigations and documented the results as follows:
"I performed spirometry. I measured Mr. Moore as having a height of 165 cm and the predicted FVC for a man of that height aged 69 was 3.5 litres with an FeV1 predicted at 2.5 litres.
Mr. Moore had considerable difficulty with the spirometry but I was able to obtain three adequate pre-Ventolin and three adequate post-Ventolin readings. His pre-Ventolin FeV1 was 1.9 litres or 76% of predicted normal and his FVC was 2.65 litres or 75.7% of predicted normal. The ratio of FeV1 to FVC was 71.6%."In comparing a similar test undertaken by Dr Duggan in 1994, Dr Miller noted the following results:
"He found an FeV1 of 2.2 litres which was 84% of predicted normal and an FVC of 3.3 litres or 88% of predicted normal. He considered that there was mild airflow limitation."
and opined that Mr Moore's chronic airways limitation (as referred to by the Tribunal as chronic airflow limitation) had deteriorated since he was assessed by Dr Duggan.
As to the origins of the condition, Dr Miller noted that Mr Moore had increased his smoking in Malaya in 1953 from 10 to 60 cigarettes per day, which later dropped to 20 cigarettes per day following his discharge from the Air Force which he continued until he ceased smoking in 1983.
Similarly, Dr Allen considered lung function tests which were performed by the North Shore Lung Function Testing Pty Limited on 31 August 1999 which revealed:
"(a)Normal spirometry with FEV1/VC of 2.37/3.15. These figures did not improve with inhaled bronchodilator.
(b)Evidence of mild hyperinflation with a residual volume of 129% predicted.
(c)Moderate impairment of gas exchange with a diffusing capacity of 13.9, being 58% predicted.
(d)Exercise gas exchange revealed a normal resting arterial oxygen saturation of 96%. When Mr Moore exercised to a moderate workload of 90 watts oxygen saturation fell to 92%."
and considered that Mr Moore's symptoms of breathlessness and a sputum producing mild morning cough considered in light of the lung function test was:
"… consistent with the diagnosis of mild to moderate chronic airflow limitation related to his previous cigarette smoking".
Dr Burns also performed a spirometry test on Mr Moore on 1 September 1999 and noted that:
"He had an FVC of 2.81 litres and an FEV1 of 2.09 litres. These were 91% and 86% of predicted respectively. He did have an FEF25-75 of 1.55 litres, which was only 61% of predicted. From these figures I believe he has only mild large airways disease but may have some emphysema."
I noted that Mr Moore in his evidence said that his smoking increased dramatically when he was posted to Malaya due to stress and tensions suffered as a result of the fact that he was required to be on guard duties and patrol the perimeter of the camp in Malaya armed with a loaded weapon. Mr Moore said specifically that:
"… had been informed by some of my fellow servicemen that there were "terrorist" or "bandits" in the area and this caused me to be very nervous."
Mr Moore said that while he could not be exact, he smoked in excess of 50 cigarettes per day in order to settle his nerves. Other factors were peer pressure and the easy availability of cigarettes.
From all the material before me, the evidence of Mr Moore and the medical evidence, and noting the concession of the Respondent, I found that there was a hypothesis connecting the Applicant's chronic airflow limitation with his war service.
I was then required to consider whether there was an appropriate SoP which could be applied to the situation. In applying Repatriation Commission v Keeley (2000) 98 FCR 108 in my decision-making, I found there was an appropriate Instrument for these purposes. I had also to decide whether the hypothesis was reasonable by considering whether the development of the Applicant's chronic airflow limitation was consistent with the template in the SoP.
I noted that the relevant SoP at the time of both the Repatriation Commission decision on 22 August 1998, and the Veterans' Review Board on 17 February 1999 was Instrument No.73 of 1997 concerning Chronic Bronchitis and Emphysema. The SoP defined chronic bronchitis and emphysema as follows:
""chronic bronchitis" means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of the last two consecutive years which is not attributable to other respiratory diseases … The bronchitis may be (sic) present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component …
"emphysema" means a respiratory tract disorder which is bilateral and diffuse and which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of the alveolar septa … This may be accompanied by a degree of chronic airways obstruction or limitation …"
The minimum factors to relate Mr Moore's chronic airflow limitation with his war service were outlined in Factor 5 of the SoP. In Mr Moore's case, one sub-factor may have been relevant:
"(b)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…"
It should be noted that the factors raised in the SoPs are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition of the Applicant, in this case, Mr Moore's condition of chronic airflow limitation with the circumstances of his service.
I noted the Respondent's concession that it was not disputed that Mr Moore was "… smoking at least ten pack-years of cigarettes, or the equivalent … in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema", and in that respect, satisfied the template in relation to factor 5(b) of Instrument No.73 of 1997.
I moved then to consider the application of sections 120(1) and 120(3) of the Act. In considering this issue, I noted that the Repatriation Commission, in rejecting Mr Moore's application on 22 August 1998 (T2) to have his chronic airflow limitation recognised as war–caused pursuant to the legislation held that:
"There is no history of any period or periods of cigarette smoking that are causally related to operational service. Your smoking habit developed in 1949, well before your operational service."
I further noted that the Veterans' Review Board in its determination dated 17 February 1999 (T25), looked extensively at Mr Moore's smoking history as recorded by the Applicant and his medical practitioners both in relation to the present claim for chronic airflow limitation and his previously rejected claim for peripheral vascular disease. The VRB agreed with the comments of the previously constituted Board held on 9 December 1993 stating that it had difficulties in:
"… reconciling the latest version of the applicant's smoking history with that given originally. The amended version only emerged following publication of the Commission's Reasons for Decision refusing his original claim and when the significance of his smoking history to the success of his claim became obvious. In his original smoking questionnaire and in the account he first gave Dr. Caska, Mr Moore was adamant that his smoking habit had not significantly varied between commencing the habit in 1949 at Lithgow and ceasing smoking altogether in 1984. There was no qualification at all concerning the rate of consumption during the remainder of his service in the RAAF from 1949 until September 1953 …
The Board accepts Mr Moore's original account that he started smoking in Lithgow in 1949 became a heavy smoker, and continued smoking heavily throughout the remainder of his RAAF service, and stopped the habit in 1983. On the basis of that account we find that the veteran was a confirmed smoker by the time that he was posted to Singapore in 1953, almost 4 years after he commenced the habit. That is sufficient time in the Board's view for the habit to have become well consolidated and we find that any increase in consumption that occurred during his six months in Singapore represents no more than a variation within an already established habit. For these reasons the Board is satisfied beyond reasonable doubt Mr Moore's smoking habit was unrelated to his operational service, either as to commencement or level of consumption." (Exhibit R2/11)Mr Colborne submitted that the only reason why both the Applicant and his doctor had focused on his smoking in Lithgow was that they believed that it was important in relation to Mr Moore's claim for peripheral vascular disease.
Notwithstanding, Mr Colborne submitted that Mr Moore's evidence regarding his smoking patterns was not inconsistent as he had informed Dr Caska that his smoking had increased in Malaya prior to the VRB decision on 9 December 1993. I noted that Dr Caska had provided a history of the condition in the Applicant's Medical Examination Cardiovascular System Form dated 22 July 1992 (Exhibit R2/15), in which he recorded that:
"Enlisted 1948 – started
smoking 1949 during coal strike
In Malaya 1953 – smoked ++
8 yrs ago – had claudication
® leg – required
endarterectomy both legs
& finally stopped smoking."Mr Colborne submitted that Dr Caska's comments were a clear record of Mr Moore's increase in his smoking during his war and operational service in Malaya during 1953. He said further, that although details of Mr Moore's smoking history had varied, it had been consistent in so far as Mr Moore's evidence was that the smoking increased in Malaya and remained high after that period until he ceased smoking in 1983.
Ms Breuer submitted that the evidence before the Tribunal was that Mr Moore had commenced smoking in 1949 when posted to Lithgow to break the coal strike and that he continued to smoke at the same rate until 1983. She directed my attention to a Smoking Questionnaire dated 20 July 1992 (Exhibit R2/16) in which the Applicant, when asked why he commenced smoking, had recorded:
"I was sent to Lithgow with other service personel (sic) to work in the coal strike. I took up smoking to relieve the anxiety & nervousness I was suffering from because of the volatile situation I was placed in & continued to smoke heavily throughout my service career."
Ms Breuer further submitted that Mr Moore's comments were consistent with Dr Caska's remarks that his smoking initially related to his posting to Lithgow during the coal strike. Ms Breuer argued that Dr Caska did not say that Mr Moore increased his smoking in Malaya but rather made an inference that he continued to smoke at quite a high rate since commencing smoking in 1949 as a result of the conditions in Malaya.
The only consistency in the evidence given by the Applicant, according to Ms Breuer, was that he commenced smoking in 1949 and quit in 1983 when he was diagnosed with vascular disease. She submitted that for the period between 1949 and 1983, Mr Moore's recollection of his smoking levels varied. Ms Breuer also submitted that it was difficult to reconcile the differences between the earlier and later histories, particularly in view of the fact that "people are likely to be more truthful in their earlier history".
According to Ms Breuer, the reason for the variation in the details of Mr Moore's smoking history was that following the rejection of his claim for peripheral vascular disease on 9 December 1993, Mr Moore realised that he would need to change his smoking history to align it with stress suffered as a result of his operational service.
I noted that it was not disputed by the Respondent that the Applicant met the requirement set out in factor 5(b) of Instrument No.73 of 1997 in that he was "… smoking at least ten pack-years of cigarettes, or the equivalent … in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema". I was mindful that Mr Moore was not a good historian and was somewhat vague in his replies regarding his smoking history and also that there were conflicting records before me as to the extent of his smoking patterns and dates of any variances in those patterns. However I noted that Mr Moore's condition of generalised anxiety disorder with alcohol dependence was accepted as being war-caused in 1993, and that this included some memory loss. In this respect, I noted the comments of Dr Miller at Exhibit A3:
"Memory Loss
This is deteriorating, he forgets to turn off the television, he makes notes to remind himself to do things but forgets the notes. He gets lost in unfamiliar areas and even today he got lost coming to Mosman. His concentration is poor, he forgets what he has read and had difficulty reading as a result."I noted further that it was not until he compiled his report dated 10 August 1999 (Exhibit A2), that Dr Miller addressed the issue of Mr Moore's chronic airflow limitation. Of his omission to address the condition initially, Dr Miller recorded that:
"I did not address Mr Moore's chronic airways limitation in my earlier report, the documents that were sent to me at that time contained no history concerning any chronic airways limitation. Mr. Moore has a significant memory problem and made no mention of his claim." [Tribunal's emphasis]
I noted that Dr Miller opined that Mr Moore's chronic airways limitation could be attributed to his service as the condition:
"… has deteriorated since 1994 when he was assessed by Dr. Duggan but even then he satisfied the Statement of Principles for definition of emphysema. He continues to satisfy the definition for chronic airways limitation according to instrument 73 of 1997 for chronic bronchitis and emphysema and, as he has smoked very much more than ten pack-years before the clinical onset of this condition, I consider he satisfies factor 5(b) of instrument 73 of 1997 and that there is a reasonable hypothesis that his chronic airways limitation relates to war service."
I was mindful that Dr Allen associated Mr Moore's smoking with his war service, opining as follows:
"… the veteran's symptoms do satisfy factor 5(b) of the Statement of Principles for chronic bronchitis and emphysema in that he smoked for at least 10 years before the onset of symptoms."
I also noted the evidence of the Applicant at Exhibit A1:
"While I am unable to state exactly how many cigarettes I was smoking at the time, it is my view that my smoking increased three or four fold after being in Malaya for about one month. I can say that I did, on many occasions, consume at least forty to sixty cigarettes per day."
I accepted the evidence of the Applicant that his smoking commenced in 1949 when he was posted to Lithgow due to the tension he suffered as a result of the circumstances surrounding his involvement in breaking the coal strike. I accepted that at the time, Mr Moore was smoking approximately five to 10 cigarettes approximately five days per week. I further accepted that Mr Moore's cigarette consumption increased to roughly 40 to 60 cigarettes per day in Malaya due to the stress and fear he suffered during his operational service, and that he continued to smoke at this level until 1983 when he was diagnosed with vascular disease.
I was satisfied on consideration of the whole of the material before me and as detailed above, that Mr Moore met the tests in the template in SoP Instrument No.73 of 1997. Therefore a reasonable hypothesis could be found linking his chronic airflow limitation with his war service, as the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
I then turned to apply sections 120(3) and 120(1) of the Act. I considered whether I could be satisfied beyond reasonable doubt that Mr Moore's chronic airflow limitation did not arise from his relevant war service. Applying sections 120(3) and 120(1), I could not be convinced beyond reasonable doubt that the evidence regarding smoking as described above was not the cause of Mr Moore's chronic airflow limitation in satisfaction of Factor 5(b) of the relevant SoP.
I was therefore satisfied that Mr Moore's chronic airflow limitation was war-caused in satisfaction of section 9 of the legislation, and that his claim should succeed in this regard.
WHETHER MR MOORE'S OSTEOARTHROSIS OF THE LEFT ANKLE WAS WAR-CAUSED WITHIN THE TERMS OF SECTION 9 OF THE ACTFor the sake of completeness I note that at the conclusion of the hearing with regard to Mr Moore's chronic airflow limitation, the matter was adjourned for further directions hearings, medical evidence from Professor Sambrook and written submissions regarding Mr Moore's osteoarthrosis of the left ankle. Mr Colborne stated in his written submission that Mr Moore did not wish to pursue earlier claims for prostatic hypertrophy or osteoarthritis of the right ankle.
I noted that the decisions under review in this regard were the decision of the Repatriation Commission of 22 August 1998 as affirmed by the Veterans' Review Board on 17 February 1999 which relevantly had refused (among other conditions), the claim by Mr Moore for osteoarthrosis of both ankles. I noted further that Ms Hook who appeared to have taken over the case from Ms Breuer without any notice to the Tribunal, accepted in her written submissions on behalf of the Respondent, that Mr Moore suffers "osteoarthritis" of the left ankle. Mr Colborne also referred to the condition as osteoarthritis. However, as the terms have variously been used, I consulted Taber's Cyclopedic Medical Dictionary, which used the terms osteoarthritis and osteoarthrosis interchangeably.
For the sake of consistency, I have referred to Mr Moore's condition as osteoarthrosis mainly because that term was used in the reviewable decision. There is discussion of the correct SoP to be applied, further on in these reasons for decision; however I note here that this was Instrument No.41 of 1998 concerning Osteoarthrosis.
As the period of operational service and other matters of evidence have been stated in detail above in relation to Mr Moore's claims for chronic airflow limitation, I decided here to confine the discussion to matters relevant to Mr Moore's claim that his osteoarthrosis of the left ankle was war-caused, so as not to make the matter too repetitious. I noted it was common ground that Mr Moore has suffered not only osteoarthrosis of the left ankle (T19-21) since approximately 1960, but also gout. Professor Sambrook, in his supplementary report of 2 August 2000, appended to the written submissions of the Respondent, opined that the clinical onset of Mr Moore's gout was in 1949, and that the clinical onset of gout in the left ankle/sub talar joint was sometime between 1949 and 1953.
THE CORRECT SOP TO BE APPLIED IN MR MOORE'S CASEBefore I could consider whether Mr Moore's osteoarthrosis of the left ankle was war-caused, I had to decide which SoP applied in this situation. I was mindful that I was bound by the decision in Keeley (supra), where a priori, it was held that the SoP to be applied was that SoP which was in place at the time of the primary decision by the Repatriation Commission. Keeley (supra) is of course good law, the leave to appeal to the High Court having been refused on 28 November 2000.
However, I also noted that their Honours Justices Lee and Cooper at paragraphs 44-46 stated as follows:
"The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.
45 However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).
46 Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood. (See: Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440 - 441.)"Mr Colborne submitted that pursuant to Keeley (supra), Mr Moore could choose either to rely on the SoP in force at the time of the Repatriation Commission decision or the current SoP. He said that given that the current SoP Instrument No.11 of 2000 concerning Gout was more favourable to Mr Moore, he would choose to apply it over Instrument No.88 of 1997.
I noted also that Mr Colborne acknowledged that their Honours had confined their decision to the situation where the SoP before the Repatriation Commission was more beneficial than the later SoP.
Mr Colborne submitted that: "… statutory interpretation requires the application of presumptions to fill in the gaps left by the Legislature as to how changes in the law are to apply to what had already occurred." Mr Colborne cited State of NSW v McMullin (1997) 73 FCR 246 and George Hudson Limited v Australia Timber Workers' Union (1923) 32 CLR 413. In connection with the concern that injustice be avoided, he also cited Fox J in J R Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161. I noted in particular Isaacs J in George Hudson Ltd (supra):
"Upon the presumption that the Legislature does not intend what is unjust rests the learning against giving certain statutes a retrospective operation. That is the universal touchstone for the Court to apply in any given case…"
Mr Colborne submitted that any cost to the Commonwealth would be balanced in that:
"The objectives of justice, finality and expedition are all advanced if review bodies are able to conduct a review on as favourable a basis as the Commission would, if a new claim were lodged."
By way of contrast, Ms P Hook argued in her written submissions on behalf of the Repatriation Commission dated 6 December 2000, that Mr Moore had acquired an accrued right by applying for review of the Repatriation Commission's decision of 22 August 1998 to have the SoP in place at the time of the decision applied to his situation. The Respondent relied on Re Reading v Repatriation Commission [2000] AATA 841 citing DP Forgie as follows:
"We do not consider the fact that the application of the later SoP would lead to a more beneficial outcome than the earlier SoP can, in itself, lead to a different conclusion. It is not only rights which are preserved pursuant to s.8 of the Acts Interpretation Act 1901 but also privileges and, more relevantly in this case, obligations and liabilities acquired, accrued or incurred under the repealed legislation. Where a SoP has been made, the Commission acquires an obligation to determine a person's claim in accordance with that SoP.
….
The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not…"Ms Hook also submitted that the Respondent relied on Deputy President Forrest in Re Ryan v Repatriation Commission [2000] AATA 849 where he stated at that unless a contrary intention was clearly disclosed, it was to be presumed that the obligation imposed on the decision maker was to determine the application according to the law and delegated legislation as it stood at the date of the decision of the Delegate of the Repatriation Commission. The Tribunal also stated:
"Clearly the Act is beneficial legislation. However we do not agree that the fact that the current SoP provides a more beneficial result for the veteran indicates an intention that it should apply in the present circumstances. Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued."
Mr Colborne sought to rely on Zoarder v Department of Social Security (1998) 26 AAR 342, citing Matthews J, who referred in that case to section 739B of the Social Security Act 1991 (as it then was). In considering which SoP to apply, I noted that section 739B of the Social Security Act 1991 referred to the Secretary's statutory obligation to determine the Applicant's claim in accordance with guidelines from time to time in force. The Respondent argued that Zoarder (supra) was not on point, concerning as it did, different legislation, and a section of the Social Security Act 1991 which has no counterpart in the Veterans' Entitlements Act 1986.
I dealt first with Zoarder (supra) and on consideration of the argument, preferred the submissions of the Respondent, finding that there was indeed no parallel with the Social Security Act 1991 in the Act currently under contemplation, and that Zoarder (supra) could be distinguished.
I then considered the decisions of Senior Member Lewis of this Tribunal in Re Olsen v Repatriation Commission [2000] AATA 909 and Brown v Repatriation Commission [2000] AATA 1118. In both cases, it was the SoP promulgated after the decision of the Repatriation Commission had been made which was used to decide the Tribunal case, rather than the SoP current at the time of the primary decision. Both are now on appeal to the Federal Court.
I also considered Cook v Repatriation Commission [2000] FCA 1756 where the failure to apply the SoP current at the time of the Repatriation Commission was found to have been an error of law. I noted that the matter was not remitted to the Tribunal because as Weinberg J found:
"It also follows that the error of law which has been established does not give rise to any entitlement on the part of the applicant to the relief which is sought."
I was mindful of the need for consistency in decision making and respectfully adopted the statements of Deputy President Forgie who held in Reading (supra) at that:
"The only way in which consistency of decision making can be maintained is if the finding of their Honours in Keeley applies equally whether the change to the later SoP is beneficial to claimants or not."
I considered the submissions of both parties and took into account Keeley (supra), and the other decided cases on point which are discussed above. I found that the Applicant's rights accrued at the time of the Repatriation Commission decision. Notwithstanding that the Act concerned is beneficial legislation, I was not persuaded by Mr Colborne's submissions, and held that I was bound to apply the SoP current at the time of the Repatriation Commission decision in this case. I was mindful that any injustice which might be perceived through the application of the SoP applied at the time of the Repatriation Commission decision, which was said to be less favourable to Mr Moore than the later one, could always be redressed by lodging a further claim if necessary. I was, of course, not unaware of the inconvenience and cost of doing so, but my duty is to apply the law as it stands. Therefore, I found that the SoP Instrument No. 88 of 1997 concerning Gout applied in Mr Moore's case, and proceeded to consider whether his osteoarthrosis of the left ankle, applying Instrument No.41 of 1998, was war-caused pursuant to the legislation.
CONSIDERATION OF MR MOORE'S OSTEOARTHROSIS OF THE LEFT ANKLE PURSUANT TO SOP INSTRUMENT NO.41 OF 1998 AND GOUT PURSUANT TO INSTRUMENT NO.88 OF 1997Mr Colborne submitted as follows:
Mr Moore had gout before his operational service; (operational service took place from 11 February 1953 to 24 August 1953);
As a result of his service, Mr Moore developed a generalised anxiety disorder with alcohol dependence (accepted as war-caused);
Mr Moore's generalised anxiety disorder and drinking aggravated and contributed to his gout;
Mr Moore's osteoarthrosis of the left ankle arose out of or was attributable to his alcohol related gout.
Ms Hook for the Respondent submitted that in reliance on the Full Federal Court decision of McKenna v Repatriation Commission (1999) 86 FCR 144, there was a SoP in place dealing with each element of the hypothesis raised by the Applicant in connection with his osteoarthrosis of the left ankle, and that to be successful, each would have to be satisfied.
I was mindful that Goldberg J in his decision Repatriation Commission v McKenna (1998) FCA 787 stated that:
"The fundamental and vitiating error into which the Tribunal fell was that it accepted that the hypothesis involved the step that the respondent's hypertension was related to his operational service and led in turn to the two diseases and accepted that the hypothesis was upheld by the relevant Statement of Principles without determining whether the relevant Statement of Principles upheld the proposition that hypertension was related to operational service. The Tribunal failed to ask, and answer, the question whether the whole of the hypothesis was upheld by relevant Statement of Principles."
Their Honours in McKenna (supra) upheld the decision of Goldberg J. They found that:
"Having concluded that it was necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part of the relevant hypothesis, Goldberg J concluded that it was fatal to Mr McKenna's claim that "there was no Statement of Principles which upholds the hypothesis that there is a factor which exists which indicates that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service.""
I respectfully consider myself bound by McKenna (supra), mindful that in Mr Moore's case the relevant Instruments were No.88 of 1997 concerning Gout and No.41 of 1998 concerning Osteoarthrosis. I was also mindful that to be successful in his claim to have his osteoarthrosis of the left ankle accepted as war-caused, Mr Moore would therefore first have to satisfy the requirements of the SoP concerning Gout.
I noted that Mr Moore served his country on operational service from 11 February 1953 to 24 August 1953. It was, therefore, appropriate in considering whether Mr Moore's osteoarthrosis of the left ankle was war-caused, to apply the principles enunciated by Heerey J in Deledio (supra), and approved and summarised by the Full Federal Court in Deledio (supra). The steps approved by the Full Federal Court in Deledio (supra) have been reproduced above when considering Mr Moore's chronic airflow limitation claim above, and must be applied similarly here.
With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes (supra) and approved by the Full Federal Court in Deledio (supra).
I turned then to decide whether applying the principles set out above, the material before me raised an hypothesis connecting Mr Moore's osteoarthrosis of the left ankle with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
I was satisfied from the medical evidence and the concessions of both parties that the Applicant suffers from gout, although I noted that Mr Colborne dated the onset prior to his operational service whereas Ms Hook, relying on the medical evidence of Professor Sambrook preferred to consider it occurred between 1949 and 1953.
In that regard, I was mindful that before me there was an undated document "Medical History –Part 2" (Exhibit R2/22), which was said to have been compiled in 1960 when the Applicant claimed "left foot trouble". The document recorded further that Mr Moore suffered:
"Pain and swelling of left ankle 10 years
First commenced in great toe, but is now confined to left ankle.
No pain in other joints.
….
Slight swelling of left ankle joint."I noted the comments of Dr F Fowler in his report dated 9 September 1960 (T18), which was also before me. He opined:
"… a history of sudden onset of pain, swelling and acute tenderness, initially in R big toe … & subsequently of L ankle joint. The first attack occurred in 1949 – when he was in the Air Force, but subsequently attacks persisted & lately have become only too frequent…"
In considering all of the evidence before me, I had to determine whether, pursuant to Instrument No.88 of 1997, Mr Moore's gout could be considered to be war-caused and if so, whether he satisfied the requirements for Instrument No.41 of 1998, that is for his osteoarthrosis of the left ankle to be accepted as war-caused. There was no doubt that SoPs exist covering those conditions and that they had to be applied (section 120A of the Act).
The factors raised in the SoPs are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting Mr Moore's gout and osteoarthrosis of the left ankle with the circumstances of his service.
I had also to decide whether the hypothesis connecting Mr Moore's gout and osteoarthrosis of his left ankle with his war service was reasonable, and consider whether the development of his conditions was consistent with the template in the relevant SoP. In considering the medical evidence, I noted that there was discussion of both the gout and the osteoarthrosis.
Dr Miller recorded in Exhibit A3 on 4 March 1999 in relation to Mr Moore's osteoarthrosis of the left ankle that:
"Mr Moore told me that he has had intermittent pain in the ankle since 1960. This was diagnosed as gout and responded to treatment, but about a year ago he felt a click in the left ankle and was unable to put his foot on the ground. He was referred to see Dr. Malcolm Blase (sic) who x-rayed his ankle and told him that he had osteoarthritis. He was treated with a bone graft and fixation of the ankle. Since then he has had much relief from the pain and can walk until he is forced to stop by his claudication."
Dr Miller was however unable to relate Mr Moore's osteoarthrosis of his left ankle to his war service.
Dr Burns reported in connection with Mr Moore's osteoarthritis of the left ankle, that Mr Moore has:
"… had arthritis in both ankles for a number of years. Following significant pain a fusion of the left ankle was performed approximately 12 months ago. That ankle is now fused but gives him very little pain."
I noted that although he made no connection between Mr Moore's osteoarthrosis and his alcohol consumption, Dr Burns recorded that Mr Moore drank whilst in the Air Force to relieve tension and noted the following history at Exhibit R5:
"He would drink until he dropped or until he had no money left. He states that over the last few years he has decreased his alcohol intake significantly. He now has five to six stubbies of light beer per day."
Professor Sambrook documented that the Applicant:
"… recalled having ankle swelling as part of attacks of gout that he used to develop quite frequently. His first attack of gout apparently was in 1949 but he had these during service and there is an entry in his file date of 27th January 1953, that recalls arthritis of the right hallux MTP joint."
Professor Sambrook also recorded that the Applicant gave a history that focused on the left ankle rather than the right which was diagnosed by Dr Glase as osteoarthritis following the development in 1998 of "… acute pain and swelling or the left ankle apparently related to the use of an exercise machine". Dr Glase treated Mr Moore with a corticosteroid injection and then a fusion which had alleviated the symptoms (T20).
As to the precipitating events regarding the development of gout, Professor Sambrook noted that:
"… Mr Moore told me that when he joined the Air Force he drank very little but during his time in Malaya he drank about six to seven pints of beer per day and has done so ever since until a few years ago."
After examining the radiological reports from an x-ray of the left ankle on 23 December 1997 and a bone scan on 28 January 1998, Professor Sambrook opined that:
"In regard to the ankles, there is some evidence that gout can be precipitated or aggravated by heavy alcohol intake and Mr Moore has an accepted disability in this regard to this by the radiological appearance in the left ankle (the only really symptomatic side until the time of the fusion) is not typical of gout and in keeping with osteoarthrosis. There is certainly no history of injury to the left ankle during his service period and the recent onset as described by Dr Glase's report suggests this is unrelated to his service."
I noted that Professor Sambrook further opined in his report of 2 August 2000 that "I do not think Mr Moore satisfies any of the criteria so listed in 88/1997" [of the SoP concerning gout]. Professor Sambrook also considered Mr Moore's drinking in relation to Instrument No.11 of 2000, a further SoP concerning Gout which replaced the SoP No.88 of 1997. However, as I have decided that the correct SoP in regard to gout to be applied in this case was No.88 of 1997, I did not consider Professor Sambrook's opinions with regard to No.11 of 2000 in coming to my decision. I noted however his comments that:
"Although Dr Glazer (sic) apparently considered the primary problem in the left ankle was osteoarthritis, one could not exclude some permanent worsening of the osteoarthritis of the left ankle by gout related to excessive alcohol intake."
I considered the submissions of the parties and the medical evidence in relation to Mr Moore's gout and decided that there was no factor listed in Instrument No.88 of 1997 which he could satisfy.
Mr Colborne argued that in the later SoP, Instrument No.11 of 2000, Mr Moore satisfied Factor 5(f) – "drinking at leat 150kg of alcohol (contained in alcoholic drinks) within the ten years immediately before the clinical onset of gout...", or indeed Factor 5(n) – "drinking at leat 150kg of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical worsening of gout …."
I was satisfied from the evidence of Mr Moore and the medical evidence, that Mr Moore's alcohol consumption would have brought him within the ambit of Instrument No.11 of 2000. However, bound as I am by Keeley (supra), I could not apply the later SoP. There is no mention of alcohol consumption in the SoP relevant to Mr Moore on this occasion, that is Instrument No.88 of 1997. Therefore, on consideration of the whole of the material before me in relation to SoP Instrument No.88 if 1997, I could not find a reasonable hypothesis linking Mr Moore's gout to his war service.
Applying sections 120(3) and 120(1), I was convinced beyond reasonable doubt that Mr Moore's gout could not be found to be war-caused within the terms of the legislation.
Notwithstanding, and for the purposes of completeness, I moved to consider the claim with regard to Mr Moore's osteoarthrosis of the left ankle. The definition of osteoarthrosis in Instrument No.41 of 1998 is as follows:
"osteoarthrosis" … means a heterogenous group of clinical joint disorders associated with defective integrity of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:
(a) a history of pain;
(b) impaired function;
(c) joint swelling; and
(d) stiffness;
attracting ICD-9-CM code 715"The relevant factors to be considered in the application of Instrument No.41 of 1998 would be Factor 5(g): "suffering from a depositional joint disease in a joint before the clinical onset of osteoarthrosis in that joint."
The definition of the phrase "depositional joint disease" contained in Instrument No. 41 of 1998 referred to: "gout, pseudogout, haemochromatosis, Wilson's disease or ochronosis."
As it was agreed that Mr Moore suffered gout either in 1949 or between 1949 and 1953, it might have appeared on first consideration, that he could satisfy the requirements for his osteoarthrosis of the left ankle and meet the terms of Factor 5(g) of Instrument No.41 of 1998 in that he had gout before developing osteoarthrosis in approximately 1960.
I then considered from all the material before me that a reasonable hypothesis could have been raised connecting Mr Moore's osteoarthrosis of his left ankle with the circumstances of his service. I considered that based on the evidence, in particular the medical reports, that the hypothesis appeared neither to be contrary to proven or known scientific facts, nor otherwise fanciful. However, in applying McKenna (supra), Mr Moore could not succeed because he did not satisfy the relevant SoP for gout even though Professor Sambrook considered that "one could not exclude some permanent worsening of the osteoarthritis of the left ankle by gout related to excessive alcohol intake."
I then proceeded to consider section 120(3) of the Act, deciding that the reasonable hypothesis had not been raised linking Mr Moore's osteoarthrosis of the left ankle with his operational service because on consideration of the whole of the material before me, he could not satisfy the requirements of SoP Instrument No.41 of 1998 without first having his gout accepted as war-caused by falling within the parameters of Instrument No.88 of 1997. A reasonable hypothesis therefore, could not be raised connecting Mr Moore's osteoarthrosis of the left ankle with his war service.
In applying sections 120(1) and 120(3), I was satisfied beyond reasonable doubt that there was no sufficient ground to determine that the osteoarthrosis Mr Moore suffered in his left ankle was causally connected with Mr Moore's gout within the terms of the SoP, and hence his war service. The arguments made about aggravation could not be sustained. I was convinced beyond reasonable doubt that no causal connection could be made, and that his claim must fail.
DECISIONThe Tribunal sets aside that part of the decision of the Repatriation Commission dated 22 August 1998 as affirmed by the Veterans' Review Board on 17 February 1999 rejecting the Applicant Mr Ronald Moore's condition of chronic airflow limitation pursuant to section 9 of the Veterans' Entitlements Act 1986.
In substitution for that part of the decision set aside, the Tribunal finds that the Applicant's condition of chronic airflow limitation was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The remaining parts of the decision including the Applicant's claim for osteoarthrosis of the left ankle are affirmed.
The Tribunal remits the question of assessment of the rate of pension to the Repatriation Commission for determination taking into account the above-made findings.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger.
Signed: .....................................................................................
AssociateDate/s of Hearing 13 June 2000
Written Submissions Finalised 7 December 2000
Date of Decision 7 March 2001
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Mr B Williams
Advocate for the Respondent Ms S Breuer/Ms P Hook
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