Nichols and Repatriation Commission
[2000] AATA 825
•5 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1451
VETERANS' APPEALS DIVISION )
Re: RONALD FREDERICK ALEXANDER NICHOLS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date5 September 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1451
)
VETERANS' APPEALS DIVISION )
Re: RONALD FREDERICK
ALEXANDER NICHOLSApplicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 5 September 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE in so far as relates to Hypertension, Ischaemic heart disease and Gout and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The said conditions are war-caused and the Applicant, RONALD FREDERICK ALEXANDER NICHOLS, is entitled to pension for the said diseases as and from 13 August 1996; and
2.The Applicant is entitled to pension for incapacity occasioned by all war-caused diseases at the rate of 100% of the General Rate.
That part of the decision under review regarding Vitiligo and Refractive Error is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Hypertension, ischaemic heart disease and gout war-caused as a result of war-caused alcohol abuse. SoP requirement for a daily intake of alcohol not to be taken literally. Pension at Special Rate refused as non accepted disabilities contributed to inability to work.
Veterans' Entitlements Act 1986 - s24, subss120(1), (3), (4) and (6); s120A
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Smith 15 FCR 327
Cavell v Repatriation Commission 9 AAR 534
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 5 September 2000
Date of Decision 5 September 2000Solicitor for Applicant Mr B Winship, Rockliffs
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1999/1451
By Mr M.D. ALLEN, Senior Member
NICHOLS and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 5 SEPTEMBER 2000MR ALLEN: In this matter, pursuant to an application lodged with the Tribunal on 22 September 1999, the applicant sought review of a decision by a Veterans' Review Board that affirmed a prior determination of the respondent Repatriation Commission which had refused the applicant's claim to have the diseases of ischaemic heart disease, vitiligo, gout, refractive error and hypertension acknowledged as being war caused diseases. My understanding today is that the claims in relation to vitiligo and refractive error are not being pursued and therefore at the outset the decision in respect of those particular claims will be affirmed.
So far as the other diseases are concerned the question of proof in these proceedings is that outlined by subsections (1) and (3) of section 120 of the Veterans' Entitlements Act 1986 as amended because the applicant had operational service. His particular operational service was within the Republic of South Vietnam where he served as a medical orderly attached to the 5th Battalion Royal Australian Regiment. Subsection (1) of section 120 reads, inter alia:
Where a claim under Part II for pension in respect of the incapacity from disease of a veteran relates to the operational service rendered by the veteran the Commission shall determine that the disease was a war caused disease unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
Subsection (3) then reads:
In applying subsection (1) in respect of the incapacity of a person from disease related to service rendered by the person the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war caused disease 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.
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©Auscript Pty Ltd 2000I'd only pause to say that subsection (6) of section 120 provides that:
Neither party to this review bears any onus of proof.
Section 120A provides, inter alia, that:
A hypothesis for the purposes of subsection (3) of section 120 of the Veterans' Entitlements Act connecting these with service is reasonable only if it conforms with a so-called statement of principles.
As to which Statements of Principles apply it was pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 that:
The Tribunal must apply the Statements of Principles that were in force at the time the respondent Repatriation Commission made its original decision in this matter.
In this particular case those particular statements of principles are instrument number 83 of 1995 for hypertension, instrument number 140 of 1995 as amended by Instrument 77 of 1997 for ischaemic heart disease and instrument number 98 of 1997 for gout. As to the relationship between the so-called statements of principles and the onus of proof the Full Court of the Federal Court in Repatriation Commission v Delidio 83 FCR 82 said:
At the risk of being repetitious we would re-state the course wich the Tribunal is to take in respect of the incapacity of a person from injury or disease related to service rendered by that person as follows:
1. The 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.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an Statement of Principles determined by the Authority under s 196B(2) or (11). …
3. If an Statement of Principles 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,
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is consistent with the 'template' to be found in the Statement of Principles. 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.
4. The 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."
As was pointed out by Wilcox J in Dickson v Repatriation Commission 29 AAR 235 and also by Finn J in Harrison v Repatriation Commission 2000 FCA 873.
It is important that the Tribunal appreciate that it is at stage 4 of the steps outlined in Deledio Supra where findings of fact have to be made.
In this matter the applicant has accepted by the respondent the condition of post traumatic stress disorder. Having regard to the material which became exhibit A6 in this matter, there can be no doubt that the events which occurred to the applicant whilst on service precisely the sort of events which give rise to a post traumatic stress disorder. I mention that because there is a report in this matter from a Dr Lee who doubts whether the applicant does have a post traumatic stress disorder. Dr Lee is contrary to all other material which is before me and I reject his opinions. The applicant since he returned from Vietnam had a history of consuming considerable amounts of alcohol. In the opinion of Dr Miller, consultant physician, whose report of 30 November 1999 is exhibit A2 in these proceedings, the applicant suffers from alcohol abuse and that alcohol abuse is part and parcel of his post traumatic stress disorder.
The applicant gave evidence in this matter that as to his evidence it must be noted that he does have a cognitive loss as diagnosed by
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©Auscript Pty Ltd 2000Dr Miller and as Dr Miller says, the applicant told him his memory had been poor for over five years and it's getting worse. As I understand Dr Miller, he attributes that again to alcohol abuse. The applicant's wife also gave evidence and she also noted that after the applicant's return from Vietnam he was drinking more heavily than before he had left for that service.
The applicant gave evidence that he did drink before Vietnam. However, whilst in Vietnam, because of stress there, he was drinking at a regular rate and heavily when he did so. He kept a concoction of vodka and orange juice in his tent in a cooler box which was provided to him as the company medic and he estimates that whilst in Nui Dat, he in company with other soldiers, would drink that during the day and during the day would consume with the orange juice one half to three quarters of a bottle of vodka. At night they would then drink beer, up to 10 cans he estimates. Naturally enough whilst out on patrol no alcohol was consumed.
After return to Australia his drinking he said was much the same but he drank spirits as he found he couldn't handle Australian beer. When he first returned to Australia he held the rank of Corporal and didn't drink much during the day but did at night. Not long after return he was promoted to the rank of sergeant and of course this gave him access to the Sergeants Mess. The applicant's wife said that it was about six months after return that he was promoted sergeant. Having been granted access to the Sergeants Mess he also had a greater access to alcohol. He was then taking his first drink in the mornings when as treasurer of that mess, he was doing a stocktake. That drink was bacardi and coke.
He then used to drink at lunchtime. He said a few, meaning two or three and then he would drink after work in the afternoon. After drinking in the afternoon he would drive his motor vehicle to pick up his wife from the railway station and although he had been drinking that didn't concern him because the local police also drank in the Sergeants Mess. He considers his pattern of drinking was different after Vietnam, not only because of the availability of the alcohol in the Sergeants Mess. There have been times when he has not drunk. For example, whilst in civilian employment there were periods when he had to fly to oil rigs. He would be there for a week and wouldn't drink during that time as there was no alcohol on the rig but at other times he simply continued to drink every day. He estimates that he has been drinking at the rate of half a bottle of bacardi a day for the last several years.
The applicant it might be said has in reality no insight into how his drinking is affecting him, he doesn't think he drinks excessively.
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©Auscript Pty Ltd 2000In relation to the applicant's hypertension the statement of principles being instrument number 83 of 1995 gives as a hypothesis connecting hypertension with service in paragraph 1(b) that the applicant was suffering from psycho active substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension.
Now as I stated earlier it is the opinion of Dr Miller that the applicant does suffer from alcohol abuse which is caused by his post traumatic stress disorder. So far as relates to daily consumption of alcohol I do not regard that as having to be applied literally. If one thinks about it for the moment it would require proof that a person drank each and every day. I believe it to be indicative of a rate of drinking and if a person misses for a day he may be ill, he may be deprived of alcohol for that day for some other reason. I do not believe it detracts from the force of the statement of principles.
In this case I accept the evidence which is before me from both the applicant and his wife that in reality and in fact he has drunk alcohol every day since his return from South Vietnam but that can't be taken literally as there has been brief intervals such as when he was on an oil rig when he didn't but apart from those it has been a daily consumption of excessive alcohol.
He estimates consumption at half a bottle of Bacardi and I'm prepared to take note from other materials which have been raised before me in this Tribunal that to drink half a bottle of Bacardi which is a white rum every day is physically hazardous as it will lead to end organ damage. It is certainly well in excess of the recommended less than 80 grams of alcohol per day and I note that 80 grams to 120 grams is classed as hazardous drinking leading to a high risk of physical, mental or social damage. So far as standard drinks are concerned the standard spirit glass is one ounce which contains 10 grams of alcohol.
Now the other matter is when the applicant's hypertension was determined. In the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 at page 41 there's a report from a Dr Hewson, Repatriation General Hospital Concord dated 18 November, 1986. That notes that the applicant was mildly obese and suffered from gout for some six years.
He was then seen again by Dr Hewson who is a senior specialist in haematology on 4 March, 1987 and that doctor then in that report noted hypertension. A later report from Dr Hewson dated 24 March, 1987 diagnosed the applicant as suffering from mild hypertension.
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©Auscript Pty Ltd 2000Exhibit R1 is the respondent's statement of facts and contentions to which there is annexed a chart giving various blood pressure readings. That chart was referred to by Dr Miller and it was Dr Miller's evidence that the applicant had hypertension as at November, 1986.
The statement of principles defines hypertension as a usual blood pressure reading where the cystolic reading is greater than or equal to 140 and the diastolic reading is greater than or equal to 90. The applicant's blood pressure readings certainly confirm to that and in any event there is the diagnosis there by the specialist in haematology at Repatriation General Hospital Concord that the applicant was suffering from hypertension in or at the time of his report of 24 March, 1987.
It seems to me therefore that the applicant did have substance abuse involving daily consumption of alcohol. Indeed it might be said at this stage that the applicant was at that time still a member of the Australian Regular Army and had access to alcohol every day and was doubtless, and according to the evidence drinking every day.
The only other matter I would raise there is paragraph 4 of the statement of principles is no doubt ultra vires and cannot detract from the fact that a responsible medical practitioner at a teaching hospital in Sydney has diagnosed the applicant as suffering from hypertension.
Instrument number 140 of 1996 as amended by instrument number 77 of 1997 refers to ischaemic heart disease. The applicant, it is not disputed, suffers from ischaemic heart disease. In 1995 he underwent an angioplasty and insertion of a stint into the circumflex artery on 28 February, 1995. At factor 5A in the factors relating to ischaemic heart disease reads:
The presence of hypertension before the clinical onset of ischaemic heart disease.
Well, as stated earlier the applicant was diagnosed with hypertension in 1987 or on Dr Miller's evidence in November, 1986 so that SOP clearly applies.
The only other matter is the applicant's gout. The applicant it seems was applying weight charts and having regard to his body mass index obese as at 7 December, 1989. He was diagnosed with gout much earlier than that. His wife gave evidence that in 1977 whilst he was stationed in Melbourne it was getting bad and mentioned that he had to go to work on crutches.
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©Auscript Pty Ltd 2000The factors relating to gout in instrument number 89 of 1997 reads as factor 5H:
Being obese at the time of the clinical worsening of gout.
What the evidence is is that the applicant's gout continued up until recently when apparently he (a) decided to continue taking this medicine; and (b) was placed on a new medicine. The applicant's wife gave evidence in the 1990's he became particularly bad – this was the time he was a bus driver – but he used to have to get up at night and place frozen bags of peas at his feet. It would seem to me that that certainly indicates a clinical worsening of gout and at the time he was obese.
On that material it seems to me that hypotheses have been raised connecting the applicant's hypertension, ischaemic heart disease, and gout by medium of the worsening of the gout with his operational service and there is no material before me to satisfy me beyond reasonable doubt that those conditions are not attributable to service.
In passing I would simply point out I have not taken into account the applicant's smoking history. He was vague as to whether he smoked in the Navy but his wife said that when she first met him he was in the Navy and he was smoking. The applicant's evidence was that prior to Vietnam he was smoking 20 a day, Vietnam he smoked 30 to 40, and then after Vietnam it dropped down to 20. Dr Miller was of the opinionthat the increase in South Vietnam would have been of no effect and I'm satisfied beyond reasonable doubt that his Vietnam service did not cause or cotnribute to any increase in smoking habit, there was a transitory heavier smoking whilst inVietnam but that didn't translate into a heavier smoking habit.
My understanding is that having regard to the reports of Dr Miller, Dr Baz, and Dr Richards, that having the conditions accepted the applicant is on the guide to the assessment for repatriation pensions entitled to pension at 100 per cent of the general rate in any event. I would only mention too before I forget for the purposes of completeness the report of Dr Richards which is at exhibit R4. He says:
Nevertheless it's my opinion that hypertension leading to ischaemic heart disease was caused by excessive alcohol consumption which commenced during his military service.
That again would seem to back the hypotheses raised by the applicant.
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©Auscript Pty Ltd 2000As the applicant is entitled to pension at 100 per cent of the general rate I must then consider whether he's entitled to pension at either the special rate or the intermediate rates of pension. In considering this particular matter I must point out that the standard of proof has altered. Subsection (iv) of section 120 of the Veterans' Entitlements Act states that:
Except in making a determination to which subsection (i) or (ii) applies the Commission shall in making any determination or decision in respect of a matter arising under this Act or regulations including the assessment or reassessment of the rate of a pension granted under Part 2 or Part 4 decide the matter to its reasonable satisfaction.
The term, reasonable satisfaction, was considered by the Full Court of the Federal Court in Repatriation Commission v Smith, 15 FCR. The term, reasonable satisfaction, it held equates to the civil standard of proof. It's generally said it's proof on the balance of probabilities. So far as the special rate of pension is concerned the criteria are set forth in section 24 of the Veterans' Entitlements Act. Generally speaking the veteran has to be entitled to pension at at least 70 per cent; well in this case he's entitled at 100 per cent. Then as paragraph (b) of subsection (I) of section 24 reads:
The veteran must be totally and permanently incapacitated, that is to say the veteran's incapacity from war caused injury or war caused disease or both is of such a nature as of itself alone to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
And then supra (post traumatic stress disorder) then reads:
The veteran is by reason of incapacity from that war caused injury or war caused disease or both alone prevented from continuing to undertake remunerative work that the veteran was undertaking and is by reason thereof suffering a loss of salary or wages or of earnings on his or her own account that the veteran would not be suffering if the veteran were free of that incapacity.
There is ameliorating provision to that in paragraph (b) of subsection (ii) which reads inter alia:
Where the veteran not being a veteran who has attained the age of 65 years who has not been engaged in remunerative work satisfies the Commission that he or she has been
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genuinely seeking to engage in remunerative work that he or she would but for that incapacity be continuing so to seek to engage in remunerative work and that the incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Now, in this matter the applicant immediately before retiring and moving to Port Macquarie was working as a bus driver. In a report by his treating psychiatrist, Dr Koller, it is point, and that report is at page 11 of exhibit R6. Dr Koller writes.
Since his last attendance he has resigned as a bus driver he could not cope any longer. He was angry and irritable and had an urge to drive over people so he took his leave and moved with his family to Port Macquarie. He had hoped for a little part time work away from the rigours of city driving. His blood pressure was such that no authority was forthcoming allowing him to drive.
That's also referred to in other medical reports. As I understand the applicant he had been employed as a bus driver and also part time as a union representative which meant that he only had to work two hours in the morning, two hours in the evening and the rest of the time was spend in an office ostensibly on union business but part of that time he spent asleep. That position was being abolished he would have had to go back to bus driving and he simply could not cope.
What I find puzzling in the matter is that in a previous application for service pension lodged by the applicant with the respondent on 13 November 1996 in answer to the question, give the date you ceased work or the date you are going to cease work as applicable the applicant has written 1 July 1998. It would appear in fact that he did cease work on 2 June 1998.
The applicant stated in evidence that although he had been a bus driver in Sydney after he moved to Port Macquarie he was going to look for work driving one of the local buses but somehow his authority to drive had expired and therefore he required a medical examination before it could be granted to him again. However, the doctor whom he attended at Port Macquarie rejected his attempt and refused to issue the medical certification as the applicant suffers from hypertension and sleep apnoea.
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©Auscript Pty Ltd 2000In the report of Dr Baz she reports also he applied for work as a bus driver in Port Macquarie hoping to do this work on a part time basis. He had a medical but was unsuccessful he understands because of his bllod pressure and sleep apnoea. Sleep apnoea is not an accepted condition. There was some evidence from Dr Miller that the sleep apnoea may indeed be a consequence of his alcohol abuse but at this stage it has not been accepted by the respondent.
In her report, which was exhibit A3, Dr Baz says other medical conditions including the heart condition and particularly the sleep apnoea probably caused fatigue and breathlessness and adversely impacted on his motivation to seek alternative work. The applicant also has the condition of vitiligo and mentioned that he found this a problem whilst in Sydney. He said in evidence his troubles in getting a job with the public was his hands. The people saw his hands and because vitiligo causes a loss of pigmentation they recoiled. In his application which was lodged with the respondent on 10 May 1999 for a service pension on the grounds of invalidity, the invalidity details are given as post traumatic stress disorder, which of course if accepted, high blood pressure which has been accepted as from today, but also the vitiligo and psoriasis. Both of those conditions are non-accepted disabilities
In Cavell v Repatriation Commission 9, AAR 534, his Honour, Mr Burchett J said of the task of the Tribunal regarding the alone test in the criteria for pension at the special rate.
That the task of the Tribunal was to make a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with a eye to reality and as a matter in respect of which common sense is the proper guide.
Now in this matter it seems to me that although the applicants now accepted disabilities have impacted upon him to a considerable degree, it still remains that there has been an impact by disabilities which at this – now, are still not accepted by the respondent. Consequently, I cannot be reasonably satisfied that it is the applicant's accepted disabilities alone that have led to this loss of remunerative work.
Similar considerations apply in relation to section 23 of the Veterans' Entitlements Act which refers to pension at the intermediate rate.
The decision therefore under review will be set aside so far as relates to the claims for hypertension, ischaemic heart disease and gout.
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©Auscript Pty Ltd 2000And the Tribunal substitutes in lieu thereof its decision that the said conditions are war caused and that the applicant is entitled to pension for incapacity occasioned by the said diseases as and from 13 August 1996. And that the applicant is entitled to pension for incapacity occasioned by all war caused injuries and diseases at the rate of 100 per cent of the general rate as and from 13 August 1996 and further that that part of the decision under review relating to vitiligo and refractive error is affirmed.
ADJOURNED INDEFINITELY [4.53pm]
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