Murray and Repatriation Commission

[2010] AATA 948

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 948

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/0905

VETERANS APPEALS  DIVISION		)
Re		JOHN MURRAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Bell,Senior Member

Dr MEC Thorpe, Member

Date26 November 2010  

PlaceSydney

Decision The Tribunal sets aside the decisions under review and instead decides that Mr Murray suffers from brain insult in the form of a fat embolism, lumbar spondylosis and osteoarthritis of the right hip, all of which are service caused.  The Tribunal remits the claim to the Commission for assessment of his rate of pension.  The date of effect of this determination is 28 May 2002.

........................[sgd]..................................

Ms N Bell, Presiding Member  

CATCHWORDS – Veterans’ Entitlements – special rate pension – operational service – post traumatic stress disorder – fat embolism brain insult – lumbar spondylosis – osteoarthrosis of the hip

Veterans’ Entitlements Act 1986

Bushell v Repatriation Commission (1992) 29 ALD 1

Byrne v Repatriation Commission (1993) 30 ALD 1

East v Repatriation Commission (1987) 12 ALD 389

Spencer v Repatriation Commission (2002) 74 ALD 362

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr MEC Thorpe, Member  

1.       John Murray served in the Australian Army from 29 January 1969 to 24 November 1970.  His operational service was from 12 November 1969 to 10 November 1970 in Vietnam.  In 1975, Mr Murray was injured in a motor vehicle accident and he claims that he currently suffers from brain injury, lumbar spondylosis and osteoarthrosis of the right hip and that these arise out of this accident.  Mr Murray contends that the accident in 1975 arose from his post traumatic stress disorder which was accepted as war caused in 1996. Mr Murray also has a number of other conditions accepted as war caused.

2.      In accordance with settled authority we must decide: the diagnoses of the injuries or diseases Mr Murray suffers from: identify the hypotheses that are raised by him; decide whether those hypotheses are reasonable; and, if so, decide whether they are disproved beyond reasonable doubt. If the injuries or diseases are the subject of a Statement of Principles then for a hypothesis to be reasonable it must conform with one or more factor in the relevant SoP.  If no applicable SoP exists, then the reasonableness of the hypothesis must be considered in line with the principles established by the High Court in Bushell v Repatriation Commission (1992) 29 ALD 1 and Byrne v Repatriation Commission (1993) 30 ALD 1.

What are the relevant diagnoses?

3.      

The most recent and comprehensive information about Mr Murray’s brain condition is that of Dr Grant Walker, consultant neurologist, in his report of

27 October 2008.  Dr Walker said there had been some confusion about the various terms that had been applied to Mr Murray, including “post concussion syndrome”, organic brain syndrome”, “cerebral atrophy” and “fat embolism”.  He concluded, after some discussion, that the appropriate diagnosis of Mr Murray’s brain condition is a brain insult in the form of a fat embolism.  We accept this diagnosis and we note that neither Mr Murray or the Commission disagree with it.

4.      

In relation to Mr Murray’s other claimed conditions, Professor

Philip Sambrook, rheumatologist, reported on 6 December 2006 that Mr Murray suffers from lumbar spondylosis and from mild osteoarthritis of the right hip.  Neither party cavils with this diagnosis.

what are the hypotheses?

fat embolism brain insult

5.      Two alternative hypotheses were put forward by Mr Murray in relation to his fat embolism brain insult:

i)Post traumatic stress disorder made Mr Murray suicidal, the motor vehicle accident was an attempt at suicide, and injuries to his limbs from the accident caused a fat embolism which in turn damaged his brain; or

ii)Post traumatic stress disorder made Mr Murray drink heavily, the motor vehicle accident was caused by Mr Murray driving while under the influence of alcohol, and injuries to his limbs from the accident caused a fat embolism which in turn damaged his brain.

lumbar spondylosis and osteoarthritis of the right hip

6.      

In relation to lumbar spondylosis, Mr Murray hypothesised that the motor vehicle accident was connected with service in accordance with the hypothesis outlined above and the accident caused trauma to his lumbar spine.  The hypothesis in relation to osteoarthrosis of the hip is similar and hypotheses trauma to

Mr Murray’s right hip.

7.      However, as discussed later in these reasons we have identified an additional hypothesis in relation to Mr Murray’s lumbar spondylosis, that is, that he suffered from a specified lumbar spine condition, in this case scoliosis, prior to the onset of his lumbar spondylosis.

8.      In addition, Mr Murray has hypothesised that his physical conditions arose out of the lifting and carrying that he did on service.

Are the hypotheses reasonable?

brain insult from fat embolism

9. There is no SoP in force that applies to this diagnosis. It is therefore necessary to consider the reasonableness of the hypothesis in accordance with section 120 of the Veterans’ Entitlements Act 1986 and the authorities on the application of that section. We were referred to, and note, the judgment of Emmett J in Spencer v Repatriation Commission (2002) 74 ALD 362 in which Emmett J held that section 120A(3) had no application to a claimed condition for which there was no SoP in force if the condition is hypothesised to be caused at one point in the hypothesised chain of causation by another condition for which a SoP did exist.

10.     We must now consider, from the material before us, whether there is material that points to the hypothesis.  We turn first to the hypothesis involving an attempted suicide.

11.     

We note Mr Murray’s assertions now, and to his general practitioner from 2004 and specialists medical practitioners from 2004, that when his car crashed into the semi-trailer in October 1975, he was attempting suicide.  We note that

Mr Murray’s perspective was later passed on by his general practitioner to various specialists to whom he referred Mr Murray.  In his own evidence to the Tribunal,

Mr Murray said that it was 2004 when he first realised he intended suicide when his car crashed into the semi-trailer. He said it was at about the time he was diagnosed with leukaemia.

12.     We also note the statutory declaration dated September 2001 of Peter Phelps, Mr Murray’s former co-director, which described Mr Murray’s behaviour leading up to the accident including his risk taking, his disregard for his own life and his behaviour when drunk when he would become desperate and tearful.  He quoted Mr Murray as saying he didn’t care whether he lived or died, although in cross examination he watered this down somewhat by saying it was “the sort of thing he said”.  It is interesting that in this statutory declaration Mr Phelps offers the view that the accident might have been an attempted suicide. This declaration is made before any recorded history of suicide attempt given by Mr Murray to a doctor. In a further statement of 17 August 2010, Mr Phelps does not mention suicide but does say that Mr Murray had a reckless disregard for his own safety. 

13.     We also note the increasingly firm view of Dr Gordon Davies, psychiatrist, from as early as his report of 9 March 1998 that the accident may have arisen from suicidal ideation.  By 2002, Dr Davies expressed this to be “quite likely”.

14.     Less supportive of the hypothesis is the absence of any contemporaneous medical opinion that Mr Murray was suicidal at or around 1975 – although he had been psychiatrically assessed as having anxiety shortly after accident. We particularly note that Dr Anthony Dinnen saw Mr Murray in 1980 and obtained no history from him of suicidal ideation at the time of the accident.

15.     We are also mindful that it was not until 2004 that Mr Murray himself began to proffer attempted suicide as a factor in the 1975 accident, even though, over the many years that followed, he was treated and assessed by many psychiatrists.  In this respect we note his report to Dr Millons, psychiatrist, in 1983 that he was returning from work and may have had a blackout.

16.     We are also conscious of Mr Murray’s successful workers compensation claim in which there appears to have been no defence of self infliction.

17.     

However, if the facts raised above that point to the hypothesis were proved, the hypothesis would be reasonable. We do not find it fanciful or tenuous

(East v Repatriation Commission (1987) 12 ALD 389) that a man with post traumatic stress disorder, who had been acting erratically and with reckless disregard for his safety on earlier occasions, who has expressed desperate sadness when drunk and who has spoken of no care as to whether he lived or died, might take sudden action to swerve his car into the path of an oncoming truck. It is more than a mere possibility. We consider the hypothesis is reasonable.

18.     As to the hypothesis involving drinking alcohol, Mr Murray’s evidence was that he was drinking at the hotel on the day of the accident with Mr Phelps and one other florist.  He said he drank five or six schooners and a couple of wines and that he was taking Librium and Valium that had been prescribed for his whiplash injury from a motor vehicle accident two weeks previously. This is consistent with the earlier history he had given Dr Millons in 1983 that he had blacked out when he was driving. It is also not entirely inconsistent with the hypothesis of attempted suicide.

19.     Also relevant is Mr Phelps’ evidence of Mr Murray’s binge drinking habit.  He initially said that was restricted to Friday and Saturday nights but later expressed a concern that Mr Murray had often not been available to work and he surmised that that was due to the effects of alcohol consumption. He described Mr Murray as being unable to stop once he started drinking and said he would have blackouts.

20.     We note the evidence of Mr Murray’s mother who described her son’s drinking habit on his return from Vietnam as necessary in order to cope with the stress of the changes his experience in Vietnam had wrought on him.

21.     We are also mindful of the report of Dr Peter Jenkins of 12 February 1997 in which he reported a history given by Mr Murray that he had been drinking just before the accident.  He gave the opinion that Mr Murray had suffered post traumatic stress disorder with “complicating alcohol abuse”. He came to the conclusion that he had blacked out and hit the truck. We note that numerous doctors have taken a history of heavy drinking over the years.

22.     As material pointing against the hypothesis is Mr Murray’s successful workers compensation claim. The claim appears not to have been met with a defence that he had driven under the influence of alcohol. Nor does the hospital discharge summary make any mention of alcohol or the signs of its consumption on admission. We note the Commission’s submissions as to inconsistencies in the Alcohol Questionnaire completed by Mr Murray but those discrepancies relate to the overall history of alcohol consumption and not to the period leading up to the time of the accident in 1975.

23.      Nevertheless, if the facts raised above that point to the hypothesis were proved, the hypothesis would be reasonable. Again, it is not fanciful or tenuous that a man with post traumatic stress disorder and whose drinking is considered by at least one medical practitioner as a complication of that condition, who has been acting erratically and in reckless disregard of his safety on earlier occasions, who has been binge drinking to the point of blackout and who has also been taking Librium and Valium following injuries in an earlier accident, might drink excessively, enter his car and collide with an oncoming truck. We consider the hypothesis is reasonable.

osteoarthritis of the right hip and lumbar spondylosis

24.     Against the background of acceptance of the motor vehicle accident in October 1975 as arising out of Mr Murray’s service (unless disproved beyond reasonable doubt), and, in particular, from his war caused post traumatic stress disorder, we turn to his physical conditions.

25.     In relation to his osteoarthritis of the hip, Mr Murray relies on SoP No. 13 of 2010 concerning osteoarthritis and in particular the factor in paragraph 6(g) requiring a trauma to the affected joint prior to clinical onset of the osteoarthritis.  There is ample medical evidence of Mr Murray having sustained a posterior dislocation of the right hip and a fracture of the acetabulum in the accident. The factor is clearly met and the hypothesis is rendered reasonable.

26.     

In relation to his lumbar spondylosis, Mr Murray relies primarily on SoP No. 37 of 2005 concerning lumbar spondylosis and in particular the factor in paragraph 6(g) - having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.  However, there is no material pointing to Mr Murray having sustained trauma to the lumbar spine in the accident. However, Professor Sambrook refers to a report of

Dr Richard Opie dated 24 September 1987 in which Mr Murray is reported as having developed lumbar scoliosis and shortening of the left leg. In the opinion of

Professor Sambrook, this condition is most likely related to his right hip arthritis and the shortening of his left leg. This shortening was noted by Dr Opie and follows the compound fracture of Mr Murray’s left tibia and fibula sustained in the motor vehicle accident. Factor 6(n) of the SoP provides for “having a condition of the lumbar spine from the specified list of spinal conditions prior to the clinical onset of lumbar spondylosis”.  Scoliosis is one of that specified list. We have already concluded that Mr Murray’s hypothesis of causation of his osteoarthritis is reasonable. It follows, subject to the consideration of disproof beyond reasonable doubt below, that the scoliosis suffered by Mr Murray can be reasonably hypothesised to have arisen out of his osteoarthritis of the hip which, in turn, arose out of the accident.  We find this hypothesis to be reasonable in accordance with the SoP.

Are the hypotheses disproved beyond reasonable doubt?

27.     There is no evidence that disproves the hypotheses beyond reasonable doubt, or any raised fact on which they depend.  We therefore conclude that Mr Murray’s brain injury from fat embolism, his lumbar spondylosis and his osteoarthrosis of the right hip are service caused.

decision

28.     The Tribunal sets aside the decisions under review and instead decides that Mr Murray suffers from brain insult in the form of a fat embolism, lumbar spondylosis and osteoarthritis of the right hip, all of which are service caused.  The Tribunal remits the claim to the Commission for assessment of his rate of pension.  The date of effect of this determination is 28 May 2002.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell,
Senior Member and Dr MEC Thorpe, Member

Signed: ..............[sgd]................................................................
  Associate

Dates of Hearing  19 July 2010 & 8 September 2010
Date of Decision  26 November 2010
Counsel for the Applicant       Mr Craig Colborne 
Solicitor for the Applicant       Mr Tony Latimore. Legal Aid Commission
Solicitor for the Respondent   Mr Gerald Purcell, Department of Veterans' Affairs