Paine and Repatriation Commission
[2001] AATA 489
•5 June 2001
DECISION AND REASONS FOR DECISION[2001] AATA 489
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/515
VETERANS' APPEALS DIVISION ) V00/39
Re WALTER PAINE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Date5 June 2001
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
(Sgd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS – pension – whether generalised osteoarthrosis and ischaemic heart disease are war-caused – only hypothesis advanced for generalised osteoarthrosis withdrawn by medical witness prior to hearing – generalised osteoarthrosis not war-caused – ischaemic heart disease hypothesis related to smoking – hypothesis having three parts – concession as to date of clinical onset and quantification of war-caused smoking habit – remaining issue related to date of cessation of smoking – method of applying a three part hypothesis – significant inconsistency in material before Tribunal – finding that Tribunal satisfied beyond reasonable doubt that veteran ceased smoking in 1955 – decisions under review affirmed
PRACTICE AND PROCEDURE – failure of applicant's solicitor to disclose report by medical witness withdrawing hypothesis he had advanced
concession by respondent – whether Tribunal should go back on acceptance when Tribunal had indicated it would not do so – beneficial nature of legislation
Veterans' Entitlements Act 1986 s 120(1), (3), 120A(3)
Statements of Principles No. 19 of 1999, 38 of 1999, 41 of 1998, 140 of 1996, 71 of 1995, 336 and 352 of 1995,
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission (1999) 56 ALD 455
Gorton v Repatriation Commission [2001] FCA 286
Re Olsen and Repatriation Commission [2000] AATA 909
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849
Symons v Repatriation Commission [2001] FCA 534
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1992) 109 ALR 30
Repatriation Commission v Webb , Federal Court, 5 November 1998, 1411/1998
Budworth v Repatriation Commission [2001] FCA 317
Byrnes v Repatriation Commission (1993) 116 ALR 210
Repatriation Commission v Bey (1997) 47 ALD 481
Repatriation Commission v Hawkins (1993) 117 ALR 225
REASONS FOR DECISION
5 June 2001 Mrs Joan Dwyer, Senior Member
This was the hearing of two applications for review of decisions of the Repatriation Commission which were affirmed by the Veterans' Review Board. The history of both claims was helpfully set out by Mr Rudge, in the Respondent's Amended Statement of Facts and Contentions dated 26 March 2000, as follows:
History of Claim V99/515
1. On 20 October 1997 the applicant made a claim for conditions diagnosed as generalised osteoarthrosis, tinea, conjunctivitis of both eyes and partial amputation of the right thumb (T5/31). The claim for generalised osteoarthrosis was refused on 11 March 1998. The other claims were accepted and pension was assessed at 40% of the General Rate with effect from 20 July 1997 (T14/53).
2. On 16 March 1998 the applicant applied for review by the Veterans' Review Board (T15/61). On 8 February 1999 the Board affirmed the decision in relation to generalised osteoarthrosis and assessed pension at 50% of the General Rate from 20 July 1997 and at 70% with effect from 23 December 1997 (T2/6). The applicant was sent a copy of the decision by letter dated 5 March 1999 (T23/85).
3. On 10 May 1999 the applicant applied for review by the Administrative Appeals Tribunal (T1/3).
History of Claim V2000/394. On 31 August 1998 the applicant made a claim for ischaemic heart disease (T6/20). The claim was refused on 5 October 1998 (T12/61).
5. An appeal to the Veterans' Review Board was lodged on 12 October 1998 (T13/66) and on 4 October 1999 the Board affirmed the decision (T2/vi). The applicant was advised of the decision on 1 November 1999 (T16/72). An application was made to the Administrative Appeals Tribunal on 18 January 2000 (T2/iii).
Mr Stuart-Stevenson, a consultant with De Marchi and Associates, Solicitors, appeared for Mr Paine. Mr Rudge, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Paine gave evidence. Evidence on his behalf was also given by his son, Mr Colin Paine, and by Professor Hall, a rheumatologist and by Professor Myers, a vascular surgeon. The respondent called Dr Gutman, a cardiologist. The Tribunal had before it the documents in each matter ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the further exhibits tendered during the hearing.
Mr Paine served in the Royal Australian Air Force from 31 May 1944 until 12 April 1946. His service included service in the Pacific Area. The whole of his service is operational service under s 6 of the Veterans' Entitlements Act 1986 ("the Act"). The circumstances in which a disease shall be taken to be war-caused are set out in s 9 of the Act.
The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (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 120ASection 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides as follows:
(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); …
that upholds the hypothesis.
Because Mr Paine's claim was lodged after 1 June 1994, the provisions of ss 120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of both generalised osteoarthrosis and ischaemic heart disease. The Tribunal must apply the relevant SoPs in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Paine's diseases with the circumstances of his particular service.
In Keeley v Repatriation Commission (1999) 56 ALD 455, Heerey J held that the where an earlier SoP had been revoked and replaced by one which was less beneficial, the veteran had an accrued right to have the matter decided in accordance with the SoP which was in force at the time of the original decision. That decision was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532.
Mr Stuart-Stevenson submitted that in respect of the condition of osteoarthrosis the SoP, current at the date of hearing, Instrument No. 41 of 1998 as amended by Instrument No. 19 of 1999, was more beneficial to Mr Paine than Instrument No. 71 of 1995 as amended by Instruments Nos. 336 and 352 of 1995, which was in force at the time of the original decision. The way in which it was more beneficial was that it includes a new factor(c) which provides:
Suffering from septic arthritis in a joint before the clinical onset of osteoarthrosis in that joint.
Mr Stuart-Stevenson submitted that the current SoP should be used.
A similar submission was rejected by the Tribunal in Re Reading and Repatriation Commission [2000] AATA 841 and Re Ryan and Repatriation Commission [2000] AATA 849, but was accepted in Re Olsen and Repatriation Commission [2000] AATA 909 which is now on appeal. However, Mr Stuart-Stevenson drew to the Tribunal's attention a recent decision of Gorton v Repatriation Commission [2001] FCA 286, 21 March 2001 which had been given to him by Mr Rudge. In that matter Stone J held at paragraphs 23 and 24:
23. In my opinion, it is not necessary where the later statement of principles is more beneficial, to rely on the reasoning that led the Court in Keeley to lean towards applying the earlier (and more beneficial) Statement of Principles. In particular, the decision in Keeley was based, in part, on the view that, with beneficial legislation such as the Act, a construction of substantive provisions least likely to cause unfairness is to be preferred. The decision in Keeley is not authority for the principle that, when choosing among current or revoked statements, the revoked statement is the one that applies. The Act provides in s 196B(7) and (8) for the continual updating of Statements of Principle so that current statements embody sound medical-scientific evidence against which claims are assessed. In providing for the Board to review decisions of the Repatriation Commission on the merits taking into account not only material considered by the Commission but also additional evidence, the Act evinces an intention for the claim to be assessed in the light of all available evidence, including medico-legal evidence as embodied in the most recent Statement of Principles; ss 138 and 139. The AAT also has the duty to review decisions of the Board on the merits and conduct a complete rehearing of the claim. As Bowen CJ and Deane J commented in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 in relation to appeals to the AAT,
"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."
24. The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant's claim must be considered in the context of Instrument 83.
The decision of Gorton is a binding authority which is directly in point. It was accepted as correct by Lindgren J in Symons v Repatriation Commission [2001] FCA 534. If the material raises any hypothesis in respect of osteoarthrosis, its reasonableness must be considered in accordance with the current SoP if, as Mr Stuart-Stevenson submitted, that would be more favourable to Mr Paine. The position, as Stone J explained, is that the current SoP applies, unless that in force when the primary determination was made is more favourable to Mr Paine.
In approaching the Tribunal's task guidance is given by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of SoPs. The Full Court, at p205, approved the following passage from the reasons of Heerey J, at p275:
The particular claim … has to fit the template laid down in the SoP. …. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proven or known 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 of the 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.
At no stage is there an onus of proof on the claimant.
The Full Court in Deledio, at p206, set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
1. The Tribunal must consider all the material which is before it and determine whether that material points to an 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.
2. If 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) … .
3. If 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.
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 doing so, no question of onus of proof or the application of any presumption will be involved.
generalised osteoarthrosis – V99/515
There is no dispute about the fact that Mr Paine suffers from generalised osteoarthrosis. Nor is there any dispute about the fact that on 10 March 1945 during service in the South West Pacific, Mr Paine suffered a painful crush injury to the thumb leading to infection. He had approximately one month's hospitalisation and was left with a partial amputation of the right thumb. That condition was accepted as war-caused by the Repatriation Commission. The respondent in paragraph 10 of its amended Statement of Facts and Contentions conceded that osteoarthrosis of the right thumb interphalangeal joint is a war-caused disease with effect from 10 July 1997.
The only hypothesis advanced on behalf of the applicant, as to how generalised osteoarthrosis could be a war-caused disease, was based on Mr Paine's account to Professor Hall, a rheumatologist, of his medical history. He described himself as suffering from multiple boils while in hospital during service. Professor Hall hypothesised that they could have "seeded infection to many different joints."
Professor Hall wrote two reports which were lodged with the Tribunal and exchanged between the parties before the hearing. They, with some reservations, advanced as reasonable a hypothesis connecting the osteoarthrosis with the multiple boils. However Professor Hall also wrote a third report, which only came to light during the hearing, and which in fact withdrew his opinion that there was a reasonable hypothesis connecting the osteoarthrosis with service.
In his first report dated 15 September 1999 (A2) Professor Hall wrote:
Mr. Paine served in the Royal Australian Air Force during World War II. His work there was mainly as a plant operator where he would build and construct airports and flight strips. To do this he would drive bulldozers and graders.
In March of 1945 he suffered a crush injury to the tip of his right thumb. Things did not settle and he needed a partial amputation.
He developed generalised tinea and this became secondarily infected. He had generalised staphylococcal infection and was hospitalised for 3 ½ months initially at his local field hospital and then he was transferred to the Second AGH Bougainville.
He graphically describes having multiple boils all around his body including in the groins, under his chins[sic] and associated with this a great deal of generalised pain. The temperature charts which were available from what I suspect was the field hospital stay of his admission shows that he ran low grade fevers throughout much of his hospitalisation and he clearly had long-term antibiotics with both Penicillin and sulphanilamide. He describes himself as having been "very sick".
He cannot recall any specific joint pains to suggest a true septic arthritis, but had generalised pains and it may well have been that he suffered from septic arthritis in multiple sites under cover of his more obvious boils.
Following discharge he has worked as a transport driver.
Thirty years ago he started to develop generalised pains and in 1963 also developed gout for which he is not currently on specific treatment.
His generalised pains became more marked and two years ago his right shoulder was replaced by Mr. Simon Bell. He currently takes Orudis SR 200mg. daily for relief of his symptoms in addition to taking a variety of medications for hypertension and angina.
He is still troubled by his left shoulder, both hands, both elbows, both knees and his left hip.
. . .
IMPRESSION
Mr. Paine clearly has generalised osteoarthritis.
His generalised osteoarthritis would not satisfy the Statement of Principles on the basis of trauma, being a prisoner of war, having inflammatory joint disease, having intra-articular fractures, having malalignment of the joints, being obese or suffering from a deposition or joint disease. He did not suffer any identifiable trauma.
His period of military service was less than 10 years and for that reason no occupational relationship can be drawn between his military service and his current symptoms based on the Statements of Principles for osteoarthritis.
One could generate a hypothesis that at the time of his pustula disease with multiple boils he also seeded infection to many different joints.
It is possible that this was not recognised at the time because he was constantly on treatment with high doses of antibiotics.
It is fair to say that polyarticular joint sepsis is a very serious medical condition and if joint sepsis affects more than four joints survival is unlikely. Consequently, I cannot put a probability estimate to this hypothesis, but nevertheless the hypothesis does exist and is one which could reasonably be raised to explain his current symptoms. (emphasis added)
In his second report dated 19 November 1999, Professor Hall gave the same history. His comments under the heading "Impression" were almost the same as in the previous report, except that he seemed to advance the hypothesis with less enthusiasm and seemed to fall short of espousing it as a "reasonable hypothesis". He concluded (A3):
It is fair to say that polyarticular joint sepsis is a very serious medical condition. If joint sepsis affects more than four joints survival is unlikely. Consequently, it would be highly unlikely that polyarticular joint sepsis is responsible for his problems, but despite this it is possible that this was the scenario at the time that he was hospitalised and received long-term antibiotic therapy with Penicillamine and Sulphanilamide.
Those reports were sent by the respondent to Dr Markov, who, since 1996 has been Mr Paine's treating rheumatologist. He read the service medical documents and wrote a report, dated 31 December 1999 (R7), in which he said that in his opinion Professor Hall's hypothesis of bacterial seeding to many joints as a result of skin infection was not reasonable. He described the hypothesis as "too fanciful to be a realistic explanation of the course of events."
The service medical records show that on 14 May 1945, just one month after Mr Paine was discharged to his unit on 14 April 1945, after one month of hospitalisation in respect of the painful crush injury to his thumb, he again reported with medical symptoms. The Sick Parade Card (T3 p28A) has an entry relating to tinea and dermatitis on 14 May 1945. A medical record (T3 p24) from 17 Field Ambulance dated 23 May 1945 has the note:
About 10-12 days ago eruption started on face. Diagnosed in RAP, as tinea circinata and treated with fungicides [sic]. Outbreak in crutch shortly after, followed by spread face, legs and body. Fungicides [sic] have cured most areas affected but new areas supervening.
R eye started to become sore 3 days ago increasing severity. Swollen and discharging pus 1 day.
That record shows that on 29 May 1945 Mr Paine was evacuated to 2/1 AGH (Australian General Hospital) Bougainville.
Mr Paine remained in hospital until 25 June 1945 when he was noted to be "now fit for duty RTU" (T3 p18A). During his time as an inpatient at 2/1 AGH the treatment records show that he had three hourly penicillin injections for quite a number of days. He was diagnosed as suffering generalised tinea circinata and tinea barbae and as having a "secondary infection + [with] eczematisation +++" (T3 p20). He also had discharge of pus from the right eye. On 7 June 1945 a smear and culture was taken from the right eye. The report reads (T3 pp19 and 22):
Culture: Scanty growth
Staphylococci – non haemolytic
penicillin sensitive
Mr Paine now has tinea and conjunctivitis of both eyes accepted as war-caused diseases.
Dr Markov, in his report of 31 December 1999 (R7), summarised Mr Paine's medical history as shown in the medical records. He concluded that the second episode which required medical care from 23 May 1945 until 25 June 1945, was in respect of tinea and a secondary bacterial infection of the eye. He hypothesised that there could possibly have also been a bacterial infection of the skin. He concluded:
I am unable to say whether the Veteran had a septic arthritis resulting from his injury on 10/3/1945 – it is quite possible that he did. However any such infection (which would have involved only the interphalangeal joint of the right thumb) had been cured by the antibiotic treatment he received. Had it not been cured, he would have still had fever, and pain and swelling of the right thumb when discharged to his unit on 14/4/1945, and he would have had these symptoms even more evident when attending the Field Ambulance on 23/5/1945 – almost six weeks later. It seems clear there was no particular problem with the previously injured thumb during this second episode of care, and in my opinion the right thumb infection was cured.
Dr Hall mentions in his report the possibility of infection "seeding" to many joints at the time of his injury or skin infection. Bacteria may enter the blood stream (whether from an injury site or any other infection such as pneumonia) and lodge in other organs, including joints, or the brain or kidneys or heart valves. This method of spread of infection is normally only seen in the most severe infections and the patients are usually desperately ill. This hypothesis cannot explain Mr Paine's symptoms because:1.He did not have multiple joints involved following the injury, according to the medical notes.
2. He was not desperately ill.
3.He did not have "boils" (which mean bacterial abscesses of the skin), but tinea, a fungal infection in May/June 1945. Tinea does not "seed" to joints in the way bacteria may do.
4.He did not have any joint problems during his treatment for tinea, and the relatively brief duration of antibiotic therapy at that time would not have suppressed such symptoms had they been present from a disseminated infection.
It was on the basis of that reasoning that Dr Markov characterised Professor Hall's hypothesis of infection "seeding" to many joints as "not reasonable" and "fanciful".
Professor Hall in his evidence did not advance the hypothesis he had set out in his letter with any enthusiasm, but neither did he say that he had fully retreated from it. The gist of his evidence was that the only "postulate" he could advance was one of general osteoarthritis "via the mechanism of direct infection of the joints". He explained that such "direct infection" can be through septic arthritis. But when the Tribunal asked Professor Hall whether there was any evidence that Mr Paine had septic arthritis, he replied, "None whatever" (trans. p42).
Professor Hall explained (trans. p42):
In producing the report I was asked to speculate about whether there was any possible linkage. And this is a linkage which I think is possible, but, as you will see from my reports, I would rate the probability as very low. Typically septic arthritis, if it affects more than one joint, is not associated with survival. Even now polyarticular sepsis of many joints, these patients are so desperately sick they usually die, and relatively short courses of intravenous antibiotics are often ineffective in dealing with that. So it is drawing something of a long bow, but as a postulate it would be the only postulate that could link it.
To the Tribunal's surprise, it became apparent at the conclusion of Professor Hall's evidence that, once he had read the medical records, he shared Dr Markov's opinion that the hypothesis he had proposed was "fanciful". Professor Hall mentioned, in response to a comment from the Tribunal, that he had written a third report. That was not pursued by Mr Stuart-Stevenson. Mr Rudge in cross-examination did refer to that letter. The Tribunal asked to have it produced and Mr Stuart-Stevenson made his copy available. It was dated 27 February 2000 and was received in evidence as exhibit A7.
That report reads as follows (A7):
Mr. Paine had described multiple boils all around his body. However, his medical notes clearly show that his problem was one of tinea. This is quite a different proposition since tinea is not an infection which has any propensity to seed to other joints. I believe that Dr. Markov has thoroughly summarised the situation and I believe that the criticism he makes of my report, which is very much based on Mr. Paine's description, is soundly based.
I do believe that given this change in description of the skin condition from which he suffered it would be as Dr. Markov puts it "fanciful" to propose that there was genuine polyarticular sepsis. I appreciate that he clearly had an infection and presumably did have an infection of his thumb, but this is not to say that it would satisfy the Statements of Principles. I felt that this was important for you to appreciate before proceeding further. (emphasis added)Once Mr Rudge had read the letter, he continued (trans. p47):
At least to my reading of the letter it indicates that your opinion is basically that the hypothesis put forward on septic arthritis is a fanciful one?
PROFESSOR HALL: Yes, it is
Professor Hall explained that he had changed his opinion once he had more of the medical history before him. He said, at trans. p47:
Because once I had available to me those extra documents that I could not recall having available to me the first time around, and I reviewed Dr Markov's letter, I described that Mr Paine, and I was reliant on his description of his rash, that he had multiple boils. The medical notes that were available to me showed me that his problem was one of tinea. And as I note in that letter that was a different proposition since tinea was not an infection which had any propensity to seed. I was asked to provide whether there was a possible linkage and whether any hypothesis could be drawn between his military service and his arthritis based on the documents on the first occasion when I saw him. It was really on the provision of this extra documentation that I felt that the skin condition was clearly that of tinea rather than multiple sites of sepsis. And if that was the case then I couldn't see how you could draw a linkage between that and polyarticular sepsis and the later resultant osteoarthritis that I had proposed the first time.
The significance of the reference to septic arthritis in the reports of both Professor Hall and Dr Markov is that, as explained in paragraph 8 of these reasons, SoP Instrument No. 41 of 1998 as amended by Instrument No. 19 of 1999, in factor 5(c), does recognise septic arthritis in a joint as a factor which can raise a reasonable hypothesis that osteoarthrosis in that joint is war-caused.
However, once Professor Hall characterised his own hypothesis as "fanciful", it can no longer meet the description of a reasonable hypothesis in Bushell v Repatriation Commission (1992) 109 ALR 30. It is apparent from the majority decision of Mason CJ, Deane and Brennan J at p35, that a hypothesis must be "put forward by a medical practitioner who is eminent in the relevant field of knowledge",: and that a hypothesis is not reasonable if it is, "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".
At the conclusion of Professor Hall's evidence the hypothesis postulated in his reports of 15 September 1999 (A2) and 19 November 1999 (A3) was no longer advanced by Professor Hall. He agreed with Dr Markov that it was "fanciful". Thus the material before the Tribunal did not raise or point to any hypothesis connecting Mr Paine's osteoarthrosis with the circumstances of his service, and the claim must fail.
The decision rejecting the claim to have osteoarthrosis accepted as a war-caused disease will be affirmed.
ischaemic heart disease – V2000/39In respect of the claim for ischaemic heart disease, Mr Paine relied on a smoking habit which he claimed was war-caused. The respondent in paragraph 30 of its Amended Statement of Facts and Contentions, accepted that Mr Paine's smoking habit of 15 cigarettes per day was war-caused, and that he met the quantity requirement of SoP Instrument No. 140 of 1996. (The respondent's Amended Statement of Facts and Contentions has a typographical error in that it refers to Instrument No. 140 of 1998 rather than 1996.) The SoP included factor (e) as follows:
(e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation;
. . .
The respondent in paragraph 31 submitted that the applicant's claim for ischaemic heart disease should be rejected because the clinical onset of the disease was not within 15 years of cessation of smoking. The respondent stated in paragraph 31:
31. It is submitted, however, that the clinical onset of ischaemic heart disease was not within 15 years of cessation of smoking. The applicant's general practitioner Dr E Bentley advised that the onset of ischaemic heart disease was in January 1998 (T9/42). The respondent submits that the decision under review should be affirmed.
Although the applicant's Statement of Facts and Contentions relied on the later SoP for osteoarthrosis, claiming it was more beneficial, it made no reference to any later SoP for Ischaemic Heart Disease. There is in fact a later SoP, Instrument No. 38 of 1999, which has an amended factor (e). It reads as follows:
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or
As the basis of the respondent's rejection of the applicant's claim by the Repatriation Commission and the VRB, and as set out in the respondent's Amended Statement of Facts and Contentions, was that Mr Paine ceased smoking more than 15 years before the clinical onset of ischaemic heart disease, that later SoP could be more beneficial, but only if he smoked at least 20 pack years of cigarettes and the clinical onset of ischaemic heart disease was within 20 years of cessation. The accepted smoking habit was of 15 cigarettes per day which is consistent with Mr Paine's statements and evidence.
Three issues arise in relation to the application of the relevant SoP. The first is the date of clinical onset of ischaemic heart disease. The second is the date Mr Paine ceased smoking and the third is the quantification of Mr Paine's smoking habit. Each of them is quite problematical, because of inconsistencies in the evidence. In Repatriation Commission v Webb , Federal Court, 5 November 1998, 1411/1998 the Full Court explained how to approach a hypothesis which has three parts. Their Honours, Tamberlin, Finn and Marshall JJ, said at p7:
The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case, each sequence in the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable.
The Tribunal had before it two smoking history statements made by Mr Paine on 30 June (A4) and 25 October 2000 (A5). The first (A4) reads as follows:
1.I served in the Royal Australian Air Force from 31 May 1944, to 12 April 1946. I served outside Australia, and have rendered operational service.
2.I was only an occasional smoker before service. However, following my entry into the Airforce, I began smoking at a rate of about 5 cigarettes per day. In March 1945, I suffered an injury to my right thumb and spent over 3 months in hospital. Due to the pain I suffered and the boredom associated with hospitalization, together with the affordability of cigarettes, I increased my consumption to approximately 15 – 25 cigarettes per day.
3.I continued at this rate of smoking until 1965 when I ceased smoking altogether.
4.I started to experience chest pains in 1980. I remember this because my mother had died on 27 August 1980, and as a result I cancelled a medical specialist appointment for that day related to my chest pains.
The second (A5) is identical, save that the first sentence of the last paragraph reads as follows:
I started to experience chest pains in the mid 70's while I was still employed.
clinical onset
The definition of ischaemic heart disease in clause 2(b) of SoP Instrument No. 38 of 1999 is as follows:
(b) For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure,
attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
The definition in the earlier SoP was similar. It also recognised angina as evidence of ischaemic heart disease.
Dr Bentley, the treating general practitioner (at T9 pp42 and 50) had given the date of onset of angina as January 1998 and had stated that coronary occlusions had been shown on arteriogram on 2 April 1998. On his records the clinical onset of ischaemic heart disease would not have been until January 1998.
The respondent sent Mr Paine to Dr Gutman, a cardiologist, for examination and report (R10). Dr Gutman on 16 January 2001 obtained a history which included the following:
Chest pain first occurred in 1976 on exertion and occasionally at rest and it was initially diagnosed as oesophageal disease.
On the basis of that history Dr Gutman concluded that it was quite reasonable to assume that the chest pain which commenced in 1976 was in fact angina. He wrote (R10 p2):
Although it was felt that the clinical onset of ischaemic heart disease occurred in the mid 1980s, I consider it quite reasonable to assume that the chest pain which commenced in 1976 (prior to the angioplasty) was in fact, angina.
Accordingly Mr Rudge, by letter dated 26 March 2001, conceded the date of clinical onset of ischaemic heart disease was 1976. In that letter, which was treated by the Tribunal as an amendment to the respondent's Amended Statement of Facts and Contentions, Mr Rudge wrote:
Following receipt of Dr Jack Gutman's report, the respondent concedes that the clinical onset of the applicant's ischaemic heart disease was in 1976. The respondent concedes, also, that the applicant's smoking habit was war-caused. However, as was stated in our letter dated 10 January 2001, it appears that the applicant ceased smoking in about 1955 and would not, therefore, satisfy the statement of principles.
At the beginning of the hearing the Tribunal referred to the respondent's letter containing the concession as to date of clinical onset. It explained that in preparation for the hearing the Tribunal had read the clinical notes of the applicant's treating doctor which had been lodged with the Tribunal by the respondent (R12). Those notes included a report from a cardiologist, Dr Sia, dated 18 April 1990 (p75) and a report from Dr Wall, a gastroenterologist, dated 17 September 1980 (p77). Those reports suggest that Mr Paine had not had chest pains in 1976, and that the oesophageal symptoms which he experienced in 1979 and 1980 were not similar to angina, and ceased after he underwent oesophageal dilatation. The Tribunal referred to those letters, saying of the respondent's concession (trans. p2):
Well, that is very generous, I think, bearing in mind what the cardiologist at the time, Dr Sia, had written in his report of 18 April 1990, after a heart episode, which is in this material at page 75. But still, if the Commission is being generous the Tribunal won't be less generous.
Dr Wall wrote on 17 September 1980 (R12 p77):
History
A man with intermittent dysphagia . . . which he relates to the lower end of the oesophagus, without any chest pain, and with no abnormal nutrition. (emphasis added)
Dr Wall described an oesophageal manometry he had performed. He concluded that Mr Paine had "hypertensive lower oesophageal sphincter".
Dr Sia in his report of 18 April 1990 (R12 p75) wrote:
Thank you for asking me to see this 68-year old man, who, last week, after swimming (which he does regularly twice a week) and having a cup of coffee, biscuits and two apple sandwiches went out raking up some leaves in the garden and then started to experience very severe chest pain which was persistent, lasting for more than an hour. He felt something in the lower part of his chest was trying to blow out. He presented to Casualty where hypertension with blood pressure of around 240/110mmHg. was noted. Two hours later the pain was relieved and his blood pressure was sitting at 180/100mmHg. when he was discharged home.
The ECG during the episode and subsequent cardiac enzymes were all normal.
Eight years ago he underwent oesophageal dilatation for lower oesophageal stricture. The procedure has been quite successful with him having no further symptoms. Last Wednesday's chest discomfort was not similar to the previous oesophageal symptom that he had experienced.
For a few years now he has been treated for hypertension with Minipress 5mg. b.d. and Zyloprim for gout as well as taking Feldene for arthritic problems.
Of his risk factors he does not smoke now, having ceased twenty five years ago. Three years ago his cholesterol level was noted to be elevated at greater than 6mmol/L. His family history was significantly positive for ischaemic heart disease with a brother dying at 40 years of age from possible heart attack and another brother dying at 55 and his father at 64, possibly from heart attacks as well.
I was uncertain that his chest pain represents angina. I thought that it possibly could have an oesophageal basis to it in view of his past history and in view of the fact that this occurred after he had food, even though it occurred during exertion. At this stage I have taken the approach of seeing how symptoms are over the next two or three weeks and I intend to review him after that period and perhaps then consider whether or not an exercise test should be undertaken. I shall write to you again at that stage. (emphasis added)
On 13 May 1990 Dr Sia sent a further short report saying (R12 p74):
Just a short note to let you know that Mr Paine returned to inform me that his chest pain has now completely settled.
Dr Gutman gave evidence. He said that Mr Paine had angioplasty in 1998 and was asymptomatic when he saw him on 16 January 2001. On that basis the respondent submitted that if ischaemic heart disease were accepted as war-caused, it should be rated at 10 points on Table 1.7. The Tribunal, in spite of its discussion with Mr Rudge at the commencement of the hearing, had some concern as to the date of clinical onset. It asked Dr Gutman to read the reports of Dr Wall and Dr Sia and say whether, if he had had that history, he would still have formed the view that the onset of ischaemic heart disease was in 1976. He replied (trans. p64):
On the basis of my history, yes, but not on the basis of this. They are contradictory.
Those reports of Dr Wall and Dr Sia show that contrary to the history Mr Paine gave to Dr Gutman and contrary to his two smoking statements (A4 and A5), in 1980 when his oesophageal problems were investigated Mr Paine was reporting that he did not have chest pain. That appears to have been confirmed by him in the history he gave to Dr Sia, his treating cardiologist, in April 1990. The history obtained by Dr Sia was that the chest pain in 1990 was not similar to previous oesophageal symptoms. There is no contemporaneous material before the Tribunal supporting Mr Paine's evidence that he had chest pains in 1976 or even in 1980. In fact Dr Rosenbaum, in his report of 10 June 1999 (T15 p68-71) V2000/39) reported after examining Mr Paine on 24 May 1999:
Approximately 3 years ago the Veteran developed discomfort in the chest.
However Dr Rosenbaum did go on to report:
It is noteworthy the pain was virtually identical with pain which had been diagnosed since 1981 as oesophagitis. The Veteran was unable to distinguish the two pains and the pain had occurred intermittently since the diagnosis of oesophagitis had been made.
I have given some consideration to whether I should accept the generous concession made by the respondent, as I indicated I would do at the commencement of the hearing, or whether I should indicate to the parties that I feel obliged to reopen the issue as to the date of clinical onset. That would require a further hearing as to the issue.
I note that in Budworth v Repatriation Commission [2001] FCA 317 Lindgren J at paragraph 50 said:
An error of law may arise despite the fact that the error was caused by the conduct of the case, or as a result of a concession made by a party before the AAT; see Kuswardana v Minister for Immigration & Multicultural Affairs (1981) 35 ALR 188 and Ferriday v Repatriation Commission (1996) 69 FCR 521. Therefore, in these circumstances, any incorrect concession by the applicant's counsel about the sufficiency of the evidence did not relieve the AAT of the task of thus considering the matter.
In considering what course I should adopt I have borne in mind the direction of the High Court and the Federal Court as to how the reasonable hypothesis standard of proof is to be applied. In Bushell Mason CJ, Deane and McHugh JJ said at p34:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
In Byrnes v Repatriation Commission (1993) 116 ALR 210 at p215-6, Mason CJ, Gaudron and McHugh JJ expanded on the application of s 120(1) and (3) of the Act. Their Honours said:
The position may be summarised as follows:
1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.
Contrary to the submission of Mr Emmett, the appellant's claim was not dependent on proof that he had sustained a severe injury. The sustaining of a severe injury was part of the hypothesis upon which the appellant relied to support his case. He testified that he had dived into a pool and injured his neck, causing him to be hospitalised. This was the factual foundation for the hypothesis that the dive had caused a severe ligamentous injury to his neck and perhaps to a disc. Because of ligamentous laxity, movement of the cervical spine had increased. This had caused early degenerative changes which had resulted in the appellant's spondylosis. Furthermore, the strain on the appellant's neck had been further increased by his naval work as a stoker.
If the appellant had been able to prove that he sustained a severe injury to his neck, part of the hypothesis would have been proved. Indeed, proof of a severe injury would have been the factual foundation of another hypothesis leading to the same conclusion but with a higher degree of probability than the hypothesis upon which the appellant was forced to rely. Similarly, proof beyond reasonable doubt that the appellant had not suffered a severe injury would have disproved the hypothesis put forward by Dr Rowden. In the absence of proof that the appellant had or had not sustained a severe injury, however, his case had to be determined by examining whether it was a reasonable hypothesis that his spondylosis was caused by an injury to his neck which occurred when he dived into a shallow pool causing him to be hospitalised for three days. His case could succeed even though there was no evidence that the 1943 incident had resulted in severe injury. Sustaining severe injury was part of the hypothesis; it was not a matter for proof or evidence in his case.
As a matter of law and not merely of fact, once a reasonable hypothesis was raised the commission was bound to find in favour of the appellant unless it was satisfied beyond reasonable doubt of at least one of two matters.
The majority of the Full Bench of the federal Court in Repatriation Commission v Bey (1997) 47 ALD 481 stated that "for a hypothesis to be reasonable, it must; as East [(1987) 74 ALR 518] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker". The Full Court of the Federal Court in Deledio, as set out in paragraph 12 of these reasons, emphasised that "No question of fact finding arises" at the stage of deciding whether the material raises or points to a hypothesis connecting the disease with service. Once a hypothesis is raised by Mr Paine's own evidence, the claim will not fail, unless the Tribunal is satisfied beyond reasonable doubt, that the matters relied on by the applicant are disproved. The medical evidence here raises a strong probability that Mr Paine did not have chest pains in 1976, or even in 1979 and 1980, when his oesophageal symptoms were reported and investigated (R12 pp76-79), but there is some material, namely Mr Paine's statement and the histories he gave to Dr Rosenbaum and Dr Gutman, pointing to chest pains in 1976 or 1981. If the concession had not been made by the respondent, I would still have to find, in the manner suggested by the Full Court in Webb, that there are some facts pointing to that part of the hypothesis (i.e. the part as to clinical onset in 1976) being reasonable.
Even though I raised the issue with Dr Gutman at the hearing, Mr Rudge did not seek to retract the concession he had made. There is some medical evidence and lay evidence consistent with the concession. In those circumstances, I have decided that where the Tribunal is applying beneficial legislation as explained in Repatriation Commission v Hawkins (1993) 117 ALR 225 at p231, and had indicated at the start of the hearing that it would not be "less generous" than the respondent, it is not appropriate to reject the concession after the conclusion of the hearing, when that would put the parties to the expense and inconvenience of a further hearing. I therefore accept the concession of the respondent that the clinical onset of ischaemic heart disease was in 1976. Thus the first part of the hypothesis is accepted as reasonable.
date of cessation of smokingMr Paine was quite definite in his evidence that he gave up smoking in 1965 and not 1955. He said he had smoked a packet a day at least between 1942, when he was in hospital during service, and 1965. He said that he knew he gave up smoking in December 1965 and not 1955, because it was when he was a transport driver doing work for Esso and he was not allowed to smoke in the oil company grounds. He said he had checked his accounting records and had seen that he was working for W.G. Hicks which arranged for him to drive loads for Esso in 1965. He did not bring the relevant records with him to the hearing. Mr Paine said that he had earlier driven for Caltex and had found it a nuisance to always be having to put his cigarette out when he drove in the gates of Caltex. He said that when he again found himself working for a petrol company he decided to give up smoking altogether rather than have the hassle of having to put them out when driving in to Esso.
Mr Paine had told Dr Rosenbaum that he gave up smoking in 1965. Dr Rosenbaum, in his report of 10 June 1999, set out the following history of cigarette intake (T15 pp68 and 69):
The Veteran took an occasional cigarette prior to war service. During his early war service he did not smoke. Following the injury to his thumb while in hospital, because of the availability of cigarettes, peer pressure, pain in the thumb and anxiety he began to smoke. He increased his cigarette intake to approximately 15 cigarettes a day and continued to smoke until 1965 when he stopped following an appendectomy.
Mr Rudge said that he did not accept 1965 as the date Mr Paine ceased smoking because the clinical notes from the Austin and Repatriation Medical Centre (R11) showed that the appendectomy was in 1955 and not 1965.
Mr Paine said that in giving his history to Dr Rosenbaum he had not meant that he gave up smoking immediately after the appendectomy. He explained (trans. p24)
When I had my appendix out I had a cigarette cough, and the doctor suggested that I give up smoking, and I said I will one day, and I kept smoking till '65.
. . .
But I didn't stop immediately. That is what I am getting at.Mr Rudge then took Mr Paine through exhibits R1, R11 and R12. R1 is a medical history sheet recording a medical examination in respect of an earlier claim by Mr Paine to have arthritis accepted as service related. That report is dated 13 April 1963. It contains the following comment under the heading "clinical history":
Smoke: Not for 7-8 years prev 4oz and 40 cigs a week.
Mr Paine said, at trans. p25, he did not know why the doctor would have written that. That report also contains an entry as to physical examination "Appendix scar intact", which confirms that the appendix surgery was prior to April 1963.
The Austin clinical notes (R11) contain a number of entries containing histories as to smoking given by Mr Paine all of which suggest that he smoked for 15 years and gave up 45 years before 1998, i.e. in 1953 approximately. In summary the relevant entries are as follows:
18.6.98 pp14 & 16 medical history sheet ex smoker / 45ya, ceased 15ya
Mr Rudge suggested that meant that Mr Paine was an
ex-smoker who ceased 45 years ago after 15 years ofsmoking.
18.6.98 p19 coronary care unit history "Cigarettes . . . Ex 45 years ago"
23.4.98 p39 short stay record 45 yr ago prev 12/day ex-smok - 15 yr
23.4.98 p40 Admission Summary ex-smoker x 15 yrs
Mr Rudge also referred to a similar entry in Dr Bentley's notes (R12 p55). It is a record of admission to Williamstown Hospital on 27 October 1994. It states in the history:
Appendectomy '55
. . .
. . .
Smoker 1955 (10-15 yrs)
There was a further similar history in Dr Markov's report (R6) in which he wrote that Mr Paine had not smoked for 40 years, which would mean smoking ceased in 1956.
In order to give a full picture of the material before the Tribunal bearing on the issue of Mr Paine's cessation of smoking, it is necessary to state that Dr Sia in his report of 18 April 1990 (R12 p75) noted "he does not smoke now, having ceased twenty five years ago." That indicates a cessation in 1965 rather than 1955.
Mr Colin Paine, Mr Paine's son, who was born in 1948, gave evidence. He had heard Mr Paine's evidence and told Mr Stuart-Stevenson that he may be able to assist the Tribunal to some extent. He said he remembered his parents smoking and him actively trying to encourage them to stop. He was very vague as to when this occurred but said, as far as he could recall, he was complaining to his parents while he was in late primary or early secondary school. He said he started secondary school in 1961.
Applying the steps laid down in Deledio (see paragraph 12 of these reasons), I must find that there is evidence raising or pointing to Mr Paine having continued to smoke until the early 1960's. That is the evidence of Mr Colin Paine and also Mr Paine's smoking statements and evidence at the hearing, and the record in Dr Sia's report of 18 April 1990 (R12 p75). There is also of course a considerable body of evidence suggesting that Mr Paine had given up smoking in 1955. The most significant is the medical history of 17 April 1963 (R1) which records that Mr Paine had not smoked for 7 or 8 years. That points to the cessation of smoking in 1955. That history was given in 1963 at a time when Mr Paine would have known whether or not he had given up smoking, and would not have become confused about how long ago he had ceased. It is the most reliable evidence available and is also supported by other medical records relating to hospital admissions in 1994 and 1998. However the Federal Court and the High Court have both emphasised that proof of facts is not in issue when considering under s 120(3) of the Act, whether or not the material raises or points to a reasonable hypothesis.
The next stage of the process, according to the Full Court in Webb, is to decide whether the second part of the hypothesis is reasonable. That part requires that the clinical onset of ischaemic heart disease in 1976 was within 15 years of cessation of smoking, or in other words that smoking had not ceased before 1961. It is reasonable unless I am satisfied beyond reasonable doubt, under s 120(1) of the Act, that Mr Paine ceased smoking in 1955 or at least before 1961.
I consider that the medical history sheet of 13 April 1963 (R1) in which a doctor has recorded that Mr Paine said that he had not smoked for seven or eight years is very strong evidence that he was no longer smoking in 1963 and had given up seven or eight years earlier i.e. in about 1955. If he was still smoking in 1963 he would not have given a history of having given up seven or eight years earlier. That evidence is consistent with and strengthened by the history recorded on admission to Williamstown Hospital on 27 October 1994 of Mr Paine giving up smoking in 1955, the year of his appendectomy, after having smoked for 10-15 years. It is also consistent with four separate histories recorded during two admissions to the Austin Hospital in 1998. Having carefully considered the evidence of the applicant and his son I do not have any reasonable doubt that Mr Paine ceased smoking in 1955. Mr Colin Paine, as he conceded, could not date his childhood memories. Mr Paine did not deny that he had said in 1963 that he had given up smoking seven or eight years earlier, or that he had consistently over the years described a 15 year smoking history and ceasing in 1955, the year of his appendectomy. I am satisfied that he would not have consistently reported that he had smoked for 15 years if he had in fact smoked for 25 years. Further in the history recorded at the Williamstown Hospital in 1994, Mr Paine said that his appendectomy was in 1955 and that he gave up smoking in 1955. In the history he gave Dr Rosenbaum, Mr Paine reported ceasing smoking in the year of his appendectomy, which occurred in 1955. I cannot accept his evidence when he said that what he meant was that he gave up smoking in 1965 because the doctor who performed the appendectomy told him to do so in 1955. I am satisfied that Mr Paine's evidence that he gave up in 1965 and the smoking histories prepared in the year 2000 (A4 and A5) are not reliable. I am further satisfied that the estimate of 25 years since ceasing smoking, in the history given to Dr Sia was a rough approximation, and does not constitute evidence casting doubt on all the other evidence of a 15 year smoking habit which ceased in 1955.
On the basis of the medical history record sheet of 13 April 1963 (R1) and the other medical records I am satisfied beyond reasonable doubt that Mr Paine did cease smoking in about 1955. Thus the second part of the hypothesis is found not to be reasonable.
conclusion as to ischaemic heart disease
I find beyond reasonable doubt that Mr Paine ceased smoking in 1955 after having smoked for 15 years. That means that, in spite of the respondent's concessions as to date of clinical onset of ischaemic heart disease, and as to a 15 cigarette a day smoking habit being service related, the material does not raise a reasonable hypothesis which meets the relevant factors in SoP Instrument No. 140 of 1998. That SoP requires that the clinical onset of ischaemic heart disease be within 15 years of cessation of smoking. The later SoP does include factor (e) (iii) which applies where a veteran has smoked 20 pack years of cigarettes and the clinical onset occurred within 20 years of cessation. In this matter the respondent conceded a service related smoking habit of 15 a day. Mr Paine in his statements did not say that his habit was at the level of one pack a day. He did say that in evidence, but even if I accepted that level of smoking was raised I have found beyond reasonable doubt that Mr Paine ceased smoking after 15 years. Thus the later SoP does not help Mr Paine. I am satisfied beyond reasonable doubt that there is no sufficient ground for deciding that ischaemic heart disease is a war-caused disease.
assessmentMr Paine has the following diseases accepted as war-caused:
Tinea
Conjunctivitis both eyes
Partial Amputation of Thumb
Bilateral Sensorineural Hearing Loss
tinea
The parties agreed on a rating of 5 on Table 11.1 of the Guide to the Assessment of Rate of Pension ("GARP"). I accept that agreed rating.
conjunctivitis both eyesThe respondent submitted a rating of 10 points was appropriate. That is more than the applicant had claimed. I accept the respondent's submission.
partial amputation of right thumbThe applicant in his Statement of Facts and Contentions suggested ratings of 20 on GARP Table 3.1.3 for amputation of right thumb, and 15 on Table 3.1.2 for loss of musculoskeletal function, age adjusted to 11 on Table 3.6.1. The Introduction to Chapter 3 at page 53, and the Introduction to Part 3.1 at Step 8 page 54, make it clear that only one rating is to be given in respect of one upper limb and that one takes the higher of the possible ratings. Thus the options suggested by the applicant are 20 on Table 3.1.3 which applies where there is amputation of thumb or 15, age adjusted to 11, on Table 3.1.2 which applies where a veteran:
·Can use limb reasonably well in most circumstances, but frequent difficulties are manifested by:
minor loss of digital dexterity causing handwriting changes, or difficulty in manipulation of small or fine objects, and
minor loss of grip strength causing difficulty in gripping moderately heavy to heavy objects.
The respondent suggested a rating of 10 on Table 3.1.2 was appropriate. The relevant criteria for 10 are identical to those for 15, except that it applies where one but not both of the two factors causing difficulties are present. The respondent submitted the rating should be 10, age adjusted to 7 on Table 3.1.2.
Mr Rudge at trans. p71, said that Mr Stuart-Stevenson had agreed to the respondent's suggested rating for the thumb as shown on Dr Morgan's combined impairment assessment of 22 March 2001 (R9). That seems appropriate bearing in mind Professor Hall's assessment of 10 for the thumb in his report (A3). There is nothing in Table 3.1.3 to indicate that amputation of one joint of the thumb is to be treated as amputation of the thumb so as to attract a rating of 20 on that Table. There would be expected to be some difference for an amputation of one joint and a total amputation of the thumb.
bilateral sensorineural hearing lossThe respondent submitted that the appropriate ratings were 11 on Table 7.1 for hearing loss and 5 on Table 7.1.11 for tinnitus. The applicant accepted these ratings.
Those impairment ratings are as follows:
Tinea Table 11.1 5
Conjunctivitis both eyes Table 8.2.1 10
Partial Amputation of Right Thumb Tables 3.1.2 and 3.6.1 7
Bilateral Sensorineural Hearing Loss Table 7.1 Table 7.1.11 11 5
On Table 18 the combined impairment rating is 11 + 10 +7 +5 + 5 = 34. The higher lifestyle rating on the shaded area on Table 23.1 results in a pension at 60% of the General Rate. There was no evidence to indicate that any other lifestyle rating would be more appropriate. However the respondent has submitted that pension should remain at the current rate of 70% of the General Rate. I accept that is appropriate.
The decisions under review will be affirmed.
There is one further matter. The Tribunal (at trans. pp52, 55, 56, 65, 67 and p66) expressed to Mr Stuart-Stevenson its concern about the fact that Professor Hall's letter of 27 February 2000 had not been exchanged or lodged with the Tribunal, and that the applicant's case in respect of generalised osteoarthrosis was conducted as if Professor Hall had not notified the applicant's solicitor of his change of opinion. The Tribunal told Mr Stuart-Stevenson that it would comment on the matter in its reasons.
The Tribunal is most concerned that the applicant's solicitor conducted this matter as if he had not received Professor Hall's letter of 27 February 2000. Professor Hall wrote that letter four months before the date of the Applicant's Amended Statement of Facts and Contentions. Yet the applicant's solicitor, on 27 June 2000 advanced a hypothesis on the basis of Professor Hall's opinion expressed in his earlier report of 15 September 1999. By the time the Statement of Facts and Contentions was prepared, Professor Hall had withdrawn that opinion in writing. I consider that conduct on the part of the applicant's solicitor to have been misleading and a breach of his duty to the Tribunal. Similar comments apply to Mr Stuart-Stevenson's conduct in calling Professor Hall, without putting the report before the Tribunal. These matters also raise serious questions about the expenditure of legal aid to pursue an application where there was no medical foundation for the applicant's case. For this reason I will ask the District Registrar to send a copy of these reasons for decision to the Managing Director of the Legal Aid Commission.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Chan Wai Heng
AssociateDate/s of Hearing 27 March 2001
Date of Decision 5 June 2001
Counsel for the Applicant NilSolicitor for the Applicant Mr Stuart-Stevenson, Consultant, De Marchi & Associates
Counsel for the Respondent Nil
Solicitor for the Respondent NilDepartmental Advocate Mr K Rudge
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