Pepper and Repatriation Commission
[2002] AATA 476
•19 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 476
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2000/1651
VETERANS' APPEALS DIVISION )
Re Mervyn Lionel Pepper
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member
Date 19 June 2002
PlaceSydney
Decision The decision under review is affirmed pursuant to section 43 of the Administrative Appeals Tribunal Act 1975.
..............................................
Ms SM Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – Disability Pension – Hypertension – Reasonable Satisfaction – Inability To Obtain Appropriate Clinical Management
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(4), 120B
AUTHORITIES
Brew v Repatriation Commission (1999) 94 FCR 80
Brew v Repatriation Commission (1999) 56 ALD 403
Repatriation Commission v Wellington (1999) 57 ALD 507
Johnston v The Commonwealth (1982) 150 CLR 331
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Wedekind [2000] FCA 649
Gorton and Repatriation Commission (2001) 63 ALD 723
Re Robson and Repatriation Commission (2000) 61 ALD 722
Re Crowe and Repatriation Commission (1999) 28 AAR 548
Re Husband and Repatriation Commission [2002] AATA 390
Re Millen and Repatriation Commission [2000] AATA 508
REASONS FOR DECISION
19 June 2002 Ms S M Bullock, Senior Member
Dr J D Campbell, Member
This is an application for review to the Tribunal by the Applicant, Mr Mervyn Lionel Pepper, of a decision made by the Veterans' Review Board ("the Board") dated 6 July 2000 (T13) which affirmed a decision of the Repatriation Commission ("the Commission") dated 9 October 1998 (T2). These decisions refused Mr Pepper's claims for hypertension, generalised anxiety disorder and Alzheimer's disease. The conditions of bilateral sensorineural hearing loss and non-melanotic malignant neoplasm of the skin were accepted and pension was assessed at 30 per cent of the General Rate with effect from 9 March 1998. At the hearing of this matter, Mr Pepper withdrew his application for review to the Administrative Appeals Tribunal ("the Tribunal") in relation to the conditions of generalised anxiety disorder and Alzheimer's disease. Mr Pepper also withdrew his application for review in relation to the assessment of his rate of Disability Pension.
A hearing was held in Sydney on 7 November 2001. The hearing was adjourned part heard on that day in order to ascertain whether or not further medical evidence could be obtained from the Mr Pepper's General Practitioner, Dr S Delaney. Dr Delaney's clinical notes were received on 13 December 2001 and final written submissions were lodged on 6 February 2002. Mr Pepper provided evidence by video conference link and was accompanied by his wife. Mr Pepper was represented by Mr P Jones, Solicitor with Rockcliffs Solicitors & Attorneys. The Respondent, the Repatriation Commission, was represented by Ms P Hook, Departmental Advocate. Documents were lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act, 1975 ("T Documents", T1–T20). The following documents were taken into evidence:
Exhibit No. Description Date
R1 Report from Professor M F O'Rourke AM, Professor of Medicine – University of New South Wales, Cardiovascular Medicine/Hypertension-St. Vincent's Clinic 24 July 2001
R2 List of Army Medical Classifications used in World War II
R3 Dr S Delaney's Clinical Notes Various
Issues
The issue in this matter is whether or not Mr Pepper's hypertension is service-related and specifically, whether or not Mr Pepper suffered a worsening of hypertension on service because of an inability to obtain appropriate clinical management for hypertension.
ServiceMr Pepper served in the Australian Army from 18 March 1942 until 5 October 1944. This service constitutes eligible war service under the provisions of the Veterans' Entitlements Act 1986.
LegislationA determination in this matter requires consideration of the Veterans' Entitlements Act 1986 ("The Act").
Section 9 of the Act deals with war-caused injuries or diseases and as relevant states:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"
As Mr Pepper had eligible war service, the standard of proof to be applied is that of deciding matters to the Tribunal's reasonable satisfaction as provided in subsection 120(4) of the Act. Subsection 120(4) states:
"120 Standard of proof
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
In this matter, the Tribunal must also apply any relevant Statements of Principles issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. As relevant, Section 120B of the Act states:
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;as the case may be.
…."The relevant Statement of Principles is Instrument Number 32 of 2001 concerning Hypertension. This Statement of Principles was in force at the time of the primary decision. Noting the decision in Gorton v Repatriation Commission (2001) 63 ALD 723, the Tribunal considers that earlier Statements of Principles provide no different or more beneficial factors in relation to the factor relied upon and considered by the Tribunal to be relevant.
BackgroundFollowing information is provided by way of background and is not disputed.
Mr Pepper was born on 24 October 1912.
Mr Pepper's Service Records indicate that he has a history of symptoms of hypertension since 1938.
A military record cited by the Board on one of Mr Pepper's Departmental Files indicated that in September 1940, before his eligible war service, Mr Pepper had a gradually increasing blood pressure. The Board noted that this record commented that Mr Pepper should not be employed in conditions requiring heavy or prolonged physical labour or prolonged mental stress (T13, p102).
On 18 March 1942, Mr Pepper was accepted into the Army as medically fit "Class 1". Mr Pepper had a blood pressure reading at that time of 158/98 (T3, p18). From the Army Medical classification system, "Class 1" is fit for active service with filed formations (Exhibit R2). (This classification was later amended to "A1-medically fit for all active service duties", which was superceded by "A1-medically fit all duties" [Exhibit R2])
On 27 November 1943, in a Specialist Report, Mr Pepper was noted to have hypertension but with a finding that there was no evidence of enlargement of the left ventricle of the heart (T3, p10).
On 30 November 1943 and 6 December 1943, hypertension was noted and various tests ordered (T3, p11).
On 14 December 1943, in a Medical Examination for Reclassification, Mr Pepper was noted to have a three to four year history of giddiness and shortness of breath on exertion (T3, p14). It was noted in the history section of the reclassification report that "He has had easy work in the Army, but is not able to stand up to Infantry training". The record noted Mr Pepper had been in hospital for two or three weeks with blood pressure of 160 to 180/100. It was noted that the blood pressure reading was 150/95 with no enlarged heart. On clinical examination, Mr Pepper's blood pressure was 150/100. Mr Pepper was reclassified to "B" which means medically fit to carry out certain duties which require only restricted medical fitness. At T3, p20, Mr Pepper was referred to as having mild hypertension – "Class B".
On 20 June 1944, Mr Pepper had a further Medical Examination for Reclassification. He was downgraded from "Class B" to "Class D" to indicate that he was medically unfit for military service. The medical report noted that Mr Pepper had complained of headaches, dizziness and shortness of breath for five years which was becoming worse (T3, p 13). On examination, Mr Pepper's blood pressure reading was 180/120 and the next day it was 170/90. Mr Pepper's heart sounds were reported as normal.
On 24 August 1944 it was recorded in a "Specialist Report Form" that Mr Pepper's blood pressure reading was 172/110 (T3, p17).
On 23 August 1944, in a "Hospital or Sick List", it was recorded that Mr Pepper had giddiness on bending down, was short of breath on effort and had hot flushes. It was further noted that Mr Pepper stated he was not accepted in the call-up sometime previously because of his blood pressure. The record further noted that Mr Pepper later enlisted in the AIF and was accepted into the army without, he thought, a blood pressure reading having been taken. The record card also reported that Mr Pepper had recently experienced attacks of giddiness and hot flushes occurring more frequently. Palpitations were brought on by effort (T3, p15).
On 29 September 1994, Mr Pepper was noted to have vascular hypertension and was classified as "Class D" (T3, p20).
In a "Final Medical Board" Report dated 22 August 1944 (T3, p28) it was reported that Mr Pepper had experienced giddiness, breathlessness and other symptoms for years. Mr Pepper stated he did not know how he had got into the Army. It was noted that it was easy work in the Army but Mr Pepper was unable to stand up to infantry training. There was no report of any enlargement of his heart.
In another "Final Medical Board" Report dated 31 August 1944 (T3, p22), Mr Pepper noted that he had high blood pressure for six years but increasingly worse during the past twelve months.
The "Report of Medical Officer" dated 19 September 1944 (T3, p23), noted blood pressure of 158/98 on enlistment, but over the last twelve months there were worsening giddy turns and headaches. It was noted that even light work brings on symptoms. No heart enlargement was recorded and there was no abnormality with Mr Pepper's lungs. The blood pressure reading on exertion was 200/130 and at rest was 160/105.
On 20 September 1944, it was noted that there was no evidence of significant cardiac or renal dysfunction. There was no thyroid enlargement. Mr Pepper was considered to have blood pressure as a constitutional condition and was unfit for heavy work or strain (T3, pp24, 25).
On 9 June 1998, Mr Pepper lodged a claim form for Disability Pension for deafness, cancer of his face and left leg and hypertension which he stated began in 1943 (T4). A further claim was lodged on 26 June 1998 (T5) for hypertension. On 31 July 1998, another claim was lodged for the conditions of "nerve problems" and "heart condition and shortness of breath" (T8).
On 9 October 1998, the Commission accepted Mr Pepper's claim for bilateral sensorineural hearing loss and non-melanotic malignant neoplasm of the skin. The claims for hypertension, generalised anxiety disorder and Alzheimer's disease, answering the claims for "nervous problems", were refused. Pension was assessed at 30 per cent of the General Rate from 9 March 1998 (T2).
On 6 July 2000, the Board affirmed the decision in relation to hypertension, generalised anxiety disorder and Alzheimer's disease and also affirmed the Commission's decision in relation to the assessment of pension at 30 per cent of the General Rate (T13).
On 23 October 2000, Mr Pepper lodged an application for review to the Tribunal (T1).
At the time of the hearing, Mr Pepper had the accepted conditions of bilateral sensorineural hearing loss and non-melanotic malignant neoplasm of the skin. He had the non-accepted conditions of Alzheimer's disease, generalised anxiety disorder and hypertension.
Evidence Of Mr Pepper
Mr Pepper told the Tribunal that in September 1940, he volunteered to join the services to go to war. He recalled that he was rejected on medical grounds and that a doctor told him his blood pressure was too high. In 1942, Mr Pepper tried again to join the services and was successful, enlisting in Lismore. Mr Pepper believed he had a medical examination in Sydney but stated that his blood pressure was not tested.
Mr Pepper informed the Tribunal that he served wholly within Australia, starting out at Cooma, then Greta and next to Geraldton in Western Australia. In Geraldton, Mr Pepper recalled that he had training on how to fire twenty-five pound guns. While in Geraldton, he was hospitalised and had an appendectomy. He believed that he was in hospital for approximately two weeks. Mr Pepper was further hospitalised in Gingin, Western Australia (T3, p22). He told the Tribunal that he was also hospitalised for hypertension in Tenterfield over approximately a two week period. He stated that he was provided with salty water to drink. He was suffering from dizzy turns when undertaking his military training. Mr Pepper also recalled being hospitalised in Warwick in Queensland because his blood pressure was high. Next, Mr Pepper was sent to Sydney and subsequently discharged, he believed, because his blood pressure was too high. Mrs Pepper noted that during this period her husband had high blood pressure readings over 110 up to 170/108.
Mr Pepper takes medication now which keeps his hypertension controlled. There was no medication during his service.
Mr Pepper was unable to recall many details about his service and hypertension. He could not remember when he first took medication for hypertension or was first treated for hypertension after his service in the Army.
MedicalEvidence
Dr S Delaney, General PractitionerDr Delaney provided a Medical Impairment Assessment for hypertension dated 7 July 1998 (T7, p64). Dr Delaney noted that Mr Pepper takes the medication "Agon" 5 mg at night, "Duralox" 20 mg in the morning and 40mg at night. This medication provides Mr Pepper with good control of his blood pressure. Mr Pepper has not developed any hypertensive retinopathy, hypertensive cardiac disease, hypertensive nephropathy or hypertensive cerebral haemorrhage (T7, p64).
In Dr Delaney's clinical notes (Exhibit R3), which appeared to commence in June 1989, there is a record of hypertension extending back to 1979 where blood pressure is recorded as 140/80 (Exhibit R3, p19).
Professor M F O'Rourke AM, Professor of Medicine, University Of Sydney, St. Vincent's Clinic, Cardiovascular Medicine – HypertensionProfessor O'Rourke provided a report dated 24 July 2001 (Exhibit R1).
Professor O'Rourke noted that Mr Pepper's blood pressure on enlistment was 158/98 and that he had his highest reading as 200/130 immediately after exercise but at rest the diastolic pressure was 100mm. Professor O'Rourke opined that it is quite possible for a soldier to be at the highest level of fitness with such a level of blood pressure.
Having considered the Service Medical Documents, Professor O'Rourke noted that Mr Pepper was investigated quite extensively for hypertension and renal disease and for any secondary problems arising out of hypertension. There was also investigation and comment at the time of Mr Pepper's service as to whether or not his symptoms were due to elevated blood pressure or to anxiety. Professor O'Rourke noted that following service, Mr Pepper's blood pressure readings remained elevated but were controlled by "Felodipine" and "Propanalol" with readings in 1998 of 140/80 which in Professor O'Rourke's view is acceptable.
Professor O'Rourke believes that Mr Pepper's blood pressure was elevated when he entered the service. He indicated that the clinical management of this condition was entirely appropriate according to the standards of treatment at the time. In this regard, Professor O'Rourke noted that Mr Pepper was extensively investigated and probably to a degree not available to civilians during the time of war. Mr Pepper's elevated blood pressure readings did not, in Professor O'Rourke's opinion, worsen during service. His blood pressure reading on discharge was in fact similar to that of his entry medical.
Professor O'Rourke referred to "A Textbook of Medicine" edited by Dr R L Cecil, Seventh Edition, 1947 which noted in relation to hypertension, at pages 1156-1157:
"Treatment. Many patients with benign essential hypertension require no treatment. When treatment is indicated, it is directed toward protecting the patient, as far as this is possible, from the consequences of the disorder rather than toward lowering the blood pressure. The latter may be accomplished in the obese by weight reduction; in the apprehensive, nervous, overworked individual by reassurance and measures conducive to rest and relaxation. However, the reduction in pressure which follows correction of these secondary factors is usually temporary. The patient should develop "a way of life" compatible with the handicap which exists. Careful consideration should be given by the physician to the personal problem involved. Sedatives (phenobarbital 0.03 Gm three times a day, bromide 1 Gm twice daily) are useful especially to reduce nervous tension and allay apprehension. Estrogenic preparations may be useful in "climaeteric hypertension". Drugs which are prescribed specifically for blood pressure reduction are of little value. This statement applies to the continuous administration of potassium thiocyanate, the nitrates, extracts of mistletoe, garlic or watermelon seed, veratrum viride, acetylcholine and nicotinic acid. Two forms of treatment which are under investigation at present are the drastic reduction of sodium practised by Grollman and his associates and the use of rice diet introduced by Kemper…Except for the temporary effects obtainable from hypnotics, narcotics, anesthetics and vasodilators during critical elevation or crises of hypertension which are due to psychic disturbances or pain, little can be accomplished with drugs…Physical activity is ordered in such a way as to avoid periods of sudden physical strain, thus conserving cardiac reserve.
…"Professor O'Rourke opined that Mr Pepper received treatment in accord with the textbook description of contemporary treatment. He noted that Mr Pepper was extensively investigated and there was no specific treatment for hypertension in the 1940s, particularly none that would be given to a person with a moderate elevation of blood pressure such as Mr Pepper experienced. Professor O'Rourke further noted that Mr Pepper was not sent abroad but kept in Australia. Professor O'Rourke noted that the American President at the time of the Second World War, Franklin D. Roosevelt, had elevated blood pressure to the degree observed in Mr Pepper and received no specific treatment for this. The prudent treatment for Mr Pepper was undertaken, Professor O'Rourke opined. In this regard, Professor O'Rourke noted that Mr Pepper was investigated for the primary cause of hypertension and this was not demonstrated. As noted earlier, his symptoms were considered to be possibly due to anxiety. Mr Pepper's duties were not as onerous as they would have been after he had been reclassified and he was not sent overseas to battle. Emphasis was given at that time more to lifestyle measures. Drugs available for treatment in the 1940s had many side effects. Since the 1940s a number of drugs have been developed for the treatment of hypertension which are effective and relatively free of side effects.
Professor O'Rourke noted that Mr Pepper was hospitalised for hypertension in November 1943 and in December 1943 he underwent a medical examination for reclassification from "Class A1" (medically fit all duties) to "Class B" (medically fit to carry out certain duties which require only restricted medical fitness). In June 1944, it was noted by Professor O'Rourke that Mr Pepper was reclassified to "Class D tentative" (medically unfit for military service) and in October 1944 he was discharged. Professor O'Rourke opined that these reclassifications were appropriate on the basis of Mr Pepper's symptoms and blood pressure recordings. Reclassification meant that Mr Pepper was not exposed to circumstances where elevation of arterial pressure and aggravation of hypertension might occur. There were no other tests or investigations in use at the time that should have been implemented to ensure the best diagnosis and treatment of Mr Pepper's hypertension condition, Professor O'Rourke opined. Indeed, Professor O'Rourke considered that anxiety may have contributed to Mr Pepper's symptoms, noting that it is difficult to explain these symptoms on the basis of hypertension.
Professor O'Rourke concluded that Mr Pepper received appropriate management for his hypertension in accordance with the clinical standards of the day. In Professor O'Rourke's view, Mr Pepper received better management than the Commander-in-Chief of the United States Armed Forces. The last records for Mr Pepper showed blood pressure well controlled on therapy in 1998, fifty years after his enlistment in Australian Army. Professor O'Rourke further opined that Mr Pepper's hypertension did not clinically worsen over the course of his service. In this regard, Mr Pepper's blood pressure remained in the same range on enlistment with diastolic pressure around 100-105 and resting systolic pressure around 160mmHg. There were no signs of any target organ damage despite extensive investigation during service. There was no evidence of permanent worsening of arterial pressure and Mr Pepper's most recent blood pressure recordings on treatment are extremely good, Professor O'Rourke commented.
Professor O'Rourke opined that Mr Pepper's hypertension was treated and investigated at a higher level than would have been available to a civilian. This was the case because a decision had to be made as to whether the highest medical classification continued, and which would have involved Mr Pepper being posted overseas.
SubmissionsRelying on the service medicals and Professor O'Rourke's opinion, Mr Jones submitted that Mr Pepper was suffering hypertension prior to enlistment. The Respondent has accepted that the accurate determination of hypertension or its clinical onset was in approximately 1938, some four years before enlistment.
Mr Jones submitted that the Army Medical Authorities had inappropriately clinically managed Mr Pepper's pre-existing hypertension when Mr Pepper was accepted as medically fit "Class 1" in March 1942. This submission is based on the events of September 1940, where Mr Pepper was rejected from military service because of symptoms believed to be caused by his hypertension (T3, p15).
Mr Jones submitted that the decision in March 1942 to accept Mr Pepper for military service occurred in the context of Mr Pepper's subsequent medical treatment and hospital admissions for high blood pressure during military service. Mr Pepper's high blood pressure during service confirms the decision to reject him for military service in September 1940. Such a decision was correct and the fears of examining doctors in 1940 were subsequently proven to be well-founded. Mr Jones contended that Professor O'Rourke failed to address this part of the applicant's argument beyond the point that it was quite possible for a soldier to be at the highest level of fitness with blood pressure of 158/98 on enlistment in 1942. Mr Jones accepted Professor O'Rourke's comments about President Roosevelt but noted that while President Roosevelt may have been under some stress during World War II, he was presumably not required to take part in the various strenuous physical activities required of the applicant as part of his military service.
If the Tribunal accepted that Mr Pepper should never have been enlisted in the Army, then the issue is whether the clinical mismanagement of March 1942 caused an aggravation of or materially contributed to Mr Pepper's pre-existing hypertension. Mr Jones further accepted that the clinical records and Mr Pepper's oral evidence make it impossible to determine when he first might have received medication for hypertension after military service. Unfortunately because of Mr Pepper's memory difficulties, he was not able to provide any evidence on this point during the hearing. The best that can be ascertained from Dr Delaney's clinical records is that the Applicant had been on medication for hypertension since at least "1978" (Mr Jones later refers in his written submissions to "1979", which the Tribunal considers is consistent with Dr Delaney's clinical notes [Exhibit R3]) and that under "Past History", Mr Jones noted that the Applicant has suffered from hypertension although no date is recorded.
The Tribunal was referred by Mr Jones to the contemporaneous documentary evidence in determining whether "clinical mismanagement" contributed to the worsening of Mr Pepper's hypertension. Mr Jones accepted that part of the opinion provided by Professor O'Rourke indicates that during the 1940s hypertension was not managed by medication, and that would appear to be the case with the management of Mr Pepper's hypertension during military service. Mr Jones contended however that Mr Pepper's activities during military service such as his active training caused the worsening of his symptoms and this was the view of the doctors who treated Mr Pepper during service. The service medical reports indicate that Mr Pepper's symptoms were related to his "vascular hypertension". Such symptoms included giddiness, headache, blurred vision and shortness of breath.
Mr Jones summarised the facts of this case as being :
(a) Mr Pepper suffered hypertension prior to military service.
(b)Mr Pepper did not require medical treatment for hypertension before military service.
(c)Mr Pepper did require medical treatment for hypertension during military service.
(d)Mr Pepper did require medical treatment for hypertension from at least 1979.
On these facts, Mr Jones contended that it can be reasonably inferred that Mr Pepper required medical treatment for hypertension immediately after military service and/or began receiving medical treatment for hypertension many years prior to 1979.
On all of the evidence, Mr Jones further contended that if the circumstances of Mr Pepper's military service caused him to require ongoing medical treatment for a condition of hypertension that did not require medical treatment prior to military service, then this is an aggravation of the condition within the meaning of subsection 9(1)(e) of the Act.
Mr Jones' final submission is that the matter of classification on enlistment was the first instance of clinical mismanagement. In this regard Mr Jones submitted, the Tribunal should consider Mr Pepper's service as a whole from the beginning of his acceptance into service through to his discharge as medically unfit when he was reclassified to "Class D".
Ms Hook for the Respondent accepts that Mr Pepper currently suffers from hypertension. Furthermore, the Respondent also concedes that the accurate determination of hypertension, or its clinical onset, was in 1938.
In relation to the applicable Statement of Principles, Ms Hook contended that the appropriate instrument is Instrument Number 32 of 2001 concerning Hypertension. This was the Statement of Principles in place at the time of the primary decision and is no more beneficial to Mr Pepper in relation to the factor concerning inability to obtain appropriate clinical management which is the same in both the current and earlier Statement of Principles. Ms Hook noted that for the purposes of the applicable Statement of Principles, "hypertension" is defined as :
"(i)A usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and / or where the diastolic reading is greater than or equal to 90mmHg; or
(ii)The regular administration of antihypertensive therapy to reduce blood pressure,
attracting ICD codes I10, I11, I12, I13 or I15. This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications."
Ms Hook further noted that the applicable factor is Factor 5(z) which states :
"(z) inability to obtain appropriate clinical management for hypertension."
Factor 5(z) applies only to a material contribution to, or aggravation of hypertension where the person's hypertension was suffered or contracted before or during, but not arising out of, the person's relevant service. As relevant, sub-section 9(1)(e) of the Act applies.
Ms Hook submitted that in relation to the issue of aggravation of hypertension due to service, the opinion of Professor O'Rourke is particularly relevant. Professor O'Rourke commented :
"His [Mr Pepper's] elevated blood pressure did not worsen during service. His blood pressure around the time of discharge was similar to that at the time of entry.
…
Mr Pepper's hypertension did not clinically worsen over the course of his service. His blood pressure remained in the same range as on enlistment with diastolic pressure around 100-105 resting and with systolic pressure around 160mmHg. There was no sign of any target organ damage despite extensive investigation during service (Exhibit R1)."Ms Hook submitted that in relation to the issue of aggravation or acceleration of Mr Pepper's hypertension, the aggravation requires that the condition has been made worse and not simply that it has become worse. In this regard, Ms Hook referred the Tribunal to the following cases: Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; Repatriation Commission v Yates (1995) 38 ALD 80; Repatriation Commission v Wedekind [2000] FCA 649; Johnston v The Commonwealth (1982) 150 CLR 331.
Ms Hook contended that the worsening must be of a marked and definite duration and more than a temporary phenomenon. Aggravation may occur as a result of service if the injury or disease should have been diagnosed and was not or the injury or disease was not treated with the skill and expertise that would have been expected to have been given to a civilian at the time. None of these circumstances applied to Mr Pepper during his Army service, Ms Hook submitted. Furthermore, as was discussed in Brew v Repatriation Commission (1999) 56 ALD 403 and Repatriation Commission v Wellington (1999) 57 ALD 507, if the appropriate treatment, that would have been given to a civilian at that time had been given, the injury or disease would not have progressed or worsened to the extent it did.
Ms Hook noted that Mr Pepper's blood pressure readings as contained in Dr Delaney's report of 7 July 1998, indicated that with treatment Mr Pepper's hypertension was under good control. Professor O'Rourke further commented in his report that there was no permanent worsening of Mr Pepper's arterial pressure and his most recent blood pressure recordings on treatment were extremely good.
Ms Hook noted that an attempt had been made by the Respondent to obtain medical records dating back as close to Mr Pepper's discharge from the Army as possible. Unfortunately, the earliest available records arising out of the provision of Dr Delaney's clinical notes indicate that as at 1979 Mr Pepper's blood pressure was recorded as 140/80 which is a significantly lower reading, Ms Hook submitted, than that obtained on 19 September 1944, just prior to Mr Pepper's discharge. At that time his blood pressure reading was 160/105 at rest (T3, p23). Ms Hook submitted that on the balance of probabilities, the Tribunal could not be satisfied that this reading and the many readings contained in the clinical notes between the period 1979 to 2001 constitute evidence of clinical worsening of Mr Pepper's hypertension.
In relation to the Applicant's submission that there was an inability for Mr Pepper to obtain appropriate clinical management for hypertension, Ms Hook again referred the Tribunal to Professor O'Rourke's opinion and particularly his comment that he believed that Mr Pepper's clinical management during service was entirely appropriate according to the standards of that time. In support of this contention, Professor O'Rourke had provided extracts from two contemporary text books namely: "A Textbook of Medicine" Edited by Dr R L Cecil, Seventh Edition, 1947; and, "The Principles and Practice of Medicine" by Dr H A Christian, Fourteenth Edition, 1942.
Ms Hook noted that Professor O'Rourke's opinion was that Mr Pepper was extensively investigated and probably to a degree that was not available to civilians at that time. Furthermore, Professor O'Rourke opined that Mr Pepper received prudent treatment for hypertension in the Army. There were no hypertensive medications available in 1940s and the condition was managed with attention to lifestyle. Ms Hook noted that Professor O'Rourke stated that Mr Pepper was managed in the Army through the medical classification system in a way that meant that he was not exposed to situations where elevation of his arterial pressure and aggravation of hypertension might occur. Furthermore, Ms Hook submitted that examinations and investigations undertaken on Mr Pepper were carried out in a entirely appropriate manner and no test or examination that ought to have been administered was omitted.
Referring to the Army Medical Classification used during World War II, Ms Hook noted that "Class 1" meant "fit for active service" (Exhibit R2). At the time of enlistment on 18 March 1942, Mr Pepper had a blood pressure reading of 158/98 which, while admittedly is elevated, according to Professor O'Rourke, was consistent with a soldier being at the highest level of fitness. Ms Hook submitted that a fundamental issue in this matter is that despite the initial classification of Mr Pepper being fit for active service, he at no time saw such active service.
Ms Hook further submitted that the initial acceptance of Mr Pepper as medically fit at "Class 1" does not, of itself, constitute clinical management. Ms Hook submitted that "appropriate clinical management" means a treatment regime designed to cure, control or lessen the severity of the condition following its clinical onset. Furthermore, the acceptance by the Army of Mr Pepper on 18 March 1942 as medically fit for "Class 1", is merely an isolated instance which cannot be viewed outside the context of the entire regime of medical classification and reclassification from enlistment to discharge. Ms Hook referred the Tribunal to the subsequent medical reclassification to "Class B" which is medically fit to carry out certain duties requiring only restricted medical fitness and finally to "Class D", which means medically unfit for military service. All indicate that there was proper clinical management with Mr Pepper's ultimate discharge being appropriate. Mr Pepper's duties were not as strenuous as they could have been and he was not sent overseas or into battle.
In conclusion, Ms Hook noted that the Applicant had not provided any medical evidence to refute Professor O'Rourke's findings. In all of the circumstances, Ms Hook submitted that the Tribunal should affirm the decision under review which would mean that Mr Pepper's hypertension would not be considered as a service-related condition.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
Mr Pepper provided evidence to the best of his ability. Unfortunately, due to the passage of time and the onset of Mr Pepper's Alzeihmer's disease, he was not able to provide the Tribunal with complete evidence particularly in relation to the details of the course of his hypertension and the treatment for this condition on service and immediately post service. Mrs Pepper, who married Mr Pepper in 1951, did her best to constructively and objectively assist her husband.
From all the evidence, the Tribunal sees as the facts of this matter that Mr Pepper was rejected for possible call-up in September of 1940 as noted by the Board from a military record which details Mr Pepper's gradually increasing blood pressure, commenting that Mr Pepper should not be employed in conditions requiring heavy or prolonged physical labour or prolonged mental stress.
There are a number of service records which indicate that Mr Pepper was suffering from giddiness, blurred vision and headaches for many years and hypertension for six years prior to 1944. There is also mention of Mr Pepper's nervous state.
On enlistment in 1942, Mr Pepper had a blood pressure reading of 158/90, was 65 inches tall and weighed 145 pounds. Applying the Statement of Principles in relation to the definition of hypertension, a reading of 140/90 constitutes hypertension. Mr Pepper satisfies this standard and it is conceded by the Respondent and considered properly so by the Tribunal, that Mr Pepper was hypertensive certainly at the time of enlistment. The Tribunal notes that in the book "A Textbook of Medicine" edited by Dr Cecil, published in 1942, at page 1155, that when systolic pressure is consistently more than 140mm of mercury it is definitely abnormal. The term "hypertension" is described in that book as being reserved to indicate systolic pressure of 160mm or more and in essential hypertension, there is a commensurate rise to 90mm or more in the diastolic pressure. The blood pressure was further noted to be observed to rise rapidly from month to month, more slowly from year to year or to remain stationary.
In any event, on Mr Pepper's entry medical in March 1942, hypertension was not actually recorded next to his blood pressure reading. The entry medical signed by Mr Pepper noted at Question 9, that he had never been rejected or discharged as unfit for service in any branch of His Majesty's Forces. This certainly is at odds with evidence provided in the Board's decision and evidence provided by Mr Pepper to the Tribunal.
In November 1943, Mr Pepper was investigated for hypertension and had a battery of tests including blood investigations. On 14 December 1943, Mr Pepper was reclassified to "Class B" (T3, p14). It was noted that Mr Pepper had easy work in the Army but was not able to stand up to infantry training. Hence his reclassification with a diagnosis of mild hypertension. The Tribunal notes that Mr Pepper was hospitalised on three occasions during his service, once when he had acute appendicitis in Gingin in Western Australia in 1942. He had one week in hospital in Tenterfield in November 1943 and three weeks in hospital in December 1943. Mr Pepper was tentatively downgraded to "Class D" on 20 June 1944 with a blood pressure reading at that stage of 180/120 and the next day a reading of 170/90 (T3, p13). At T3, p24, Mr Pepper's blood pressure was recorded as 175/98, which was noted as being within normal limits and not sufficient to account for all of Mr Pepper's symptoms. Recordings of hypertension with investigation occurred in August and September 1944 (T3, pp15-17) with a classification "Class D" confirmed on 29 September 1944 with a notation of vascular hypertension (T3, p20). There is a notation at T3, p23 that on 19 September 1944 there were worsening symptoms for the past twelve months, and his blood pressure reading after exercise was 200/130 and at rest, 160/105.
The Factor that is proposed by the Applicant as relevant is that of Factor 5(z) which requires that there be an inability to obtain appropriate clinical management. This Factor applies only to a material contribution to or aggravation of hypertension where the person's hypertension was suffered or contracted before or during, but not arising out of the person's relevant service as appropriate in this case and provided in subsection 9(1)(e) of the Act. Thus, for the Tribunal to be reasonably satisfied that Mr Pepper's hypertension was war-caused, we have to be satisfied that Mr Pepper was unable to obtain appropriate clinical management for his hypertension during his war service after having contracted hypertension. The Tribunal must, subject to finding that hypertension was contributed to in a material way by, or aggravated by his war service find that his inability to obtain appropriate clinical management was related to war service.
The Tribunal has identified that Mr Pepper had hypertension prior to his service in 1942 and probably occurring in 1938. The Tribunal must examine the appropriate form of clinical management, whether Mr Pepper was in fact unable to obtain that clinical management on service. The Tribunal must also determine whether the hypertension was contributed to in a material way or aggravated by Mr Pepper's service. In the decision of the majority of the Full Federal Court in Brew v Repatriation Commission (supra), Merkel J agreed with the primary judge, Sundberg J's view of the meaning of "inability" as "lack of ability; lack of power, capacity, means" (the Macquarie Dictionary) or "the condition of being unable; lack of ability, power or means" (New Shorter Oxford Dictionary). Merkel J noted that the dictionary definitions:
"…embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the "condition of being unable". Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.
…
In my view, in context, Sundberg J was referring to circumstances the effect of which result in a claimant being unable to obtain treatment in the sense of any of the dictionary meanings of "inability" referred to by his Honour.
…"The Tribunal also gained some guidance from Repatriation Commission v Wedekind (supra), which dealt with the issue of Mr Wedekind's entitlement for Pterygium as a war-caused condition. In that case, the Court identified that the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his Pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain the appropriate form of clinical management; whether that inability related to his service; whether the Pterygium was contracted during his service; and, whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind's particular service.
Mr Pepper had hypertension prior to enlistment. At the time, and noting the extract from Dr Cecil's book "A Textbook on Medicine", a blood pressure of 158/90 while higher than current standards, may not have been particularly high during that period. Professor O'Rourke notes that it was entirely possible to be classified as Class 1 and to have such a blood pressure reading.
Mr Pepper did report symptoms of giddiness and shortness of breath, which were noted in his service medical documents during 1943 and 1944. There is no suggestion by Mr Pepper that he was refused treatment or that his reports of such symptoms went unheeded. Mr Pepper was examined, investigated and indeed hospitalised on two occasions. The difficulty for the Tribunal and Mr Pepper is that there were high blood pressure readings and reports of symptoms but there is question and a lack of specificity as to whether all of these symptoms related to hypertension or other conditions such as his nervousness.
The Tribunal considers that it must look at the clinical management as was appropriate at the time of Mr Pepper's service. This approach is certainly that adopted by Tribunals and the Federal Court, and in particular the Tribunal notes the decision in Brew v Repatriation Commission (supra); Repatriation Commission v Wellington (supra); Re Robson and Repatriation Commission (2000) 61 ALD 722; Re Crowe and Repatriation Commission (1999) 28 AAR 548; and, Re Husband and Repatriation Commission [2002] AATA 390.
Professor O'Rourke provided the opinion that Mr Pepper was treated entirely appropriately in accordance with the contemporary medical standards of the 1940s. His opinion is supported by extracts from the 1942 book "A Textbook on Medicine" edited by Dr Cecil, Seventh Edition, and "The Principles and Practice of Medicine" edited by Dr H A Christian, Fourteenth Edition, 1942. During the 1940s the treatment of hypertension was by way of reference to lifestyle considerations, such as reduction in stress in life and in occupational pursuits. Medication, although available, was experimental and the documents noted a number of side effects. Professor O'Rourke opined, having looked specifically at Mr Pepper's service medical documents, that his treatment was in fact better than that which would have been expected for the civilian population at the time.
As was noted in Re Millen and Repatriation Commission [2000] AATA 508, the Factor concerning inability to obtain appropriate clinical management for hypertension "does not invite an inquiry as to the appropriateness of a claimant's clinical management. It requires a claimant to show an inability to obtain that management." Mr Pepper's circumstances are that he did have a demonstrated ability to obtain appropriate clinical management, on contemporaneous medical standards, from medical practitioners who diagnosed his condition, undertook examination and appropriate investigation and management of his condition through the classification system. In this regard, following examination and investigation, Mr Pepper's hypertension condition was managed by reclassifying him, which in effect dealt with issues such as life style management, management of occupational stress and strain by reducing his activity levels and considering his diet. Ultimately, following ongoing review, a determination was made by the medical authorities that Mr Pepper did not have a continuing ability to serve in the Army and he was accordingly discharged.
The Applicant submitted that there was a worsening of hypertension on service and this was a consequence of the inappropriate clinical management of Mr Pepper's hypertension condition. A determination on this particular issue requires that the Tribunal considers subsection 9(1)(e) of the Act to ascertain whether or not the disease of hypertension was contributed to in a material way or aggravated by Mr Pepper's eligible war service. In Ogden Industries Pty Ltd v Lucas (supra), Windeyer J defined "aggravation":
""Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse."
Furthermore, in Repatriation Commission v Yates (supra), Lindgren J found that an aggravation of an underlying disease should last longer than the period of worsening of symptoms caused by service. Thus, an occurrence of worsening from time to time of symptoms caused by service does not necessarily compel an inference that there has been an aggravation, caused by service, of a pre-existing disease. The Tribunal also has gained some guidance from Johnston v The Commonwealth (supra) in which Gibbs CJ, Mason and Wilson JJ observed:
"There is some force in the comment of His Honour in Lucas that "aggravation" signifies "making worse" rather than "becoming worse", a comment reflected in the remarks of Brennan J. in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb "aggravate" than when it is applied to the noun "aggravation", especially when it is used in a passive sense in the expression "suffers an aggravation". "Aggravation" may mean "An increasing … in gravity or seriousness" as well as "being increased in gravity or seriousness".
…
In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease.
…."In Mr Pepper's case, there are reports in the service medicals that his symptoms of giddiness, breathlessness and headaches worsened in the twelve months prior to mid-late 1944. There is also evidence of blood pressure readings being elevated one day and then lowering. This, the Tribunal understands is labile hypertension as reported in the service documents, meaning unstable, readily changed and fluctuating widely. On the face of it, it would appear that Mr Pepper's hypertension symptoms including blood pressure readings worsened. The issue is whether or not this was as a result of his service, as a result of the natural progression of the disease or due to some other factor. In terms of service, Mr Pepper was regularly monitored medically. As a result of investigation and examination he was reclassified initially to "Class B" which placed less strain on him physically and emotionally and then eventually he was reclassified to "Class D", tentatively, in June 1944 followed by a "Class D" confirmation in September 1944, after which he was discharged. At the time of Mr Pepper's discharge, in September 1944, his blood pressure reading was 160/105 which is essentially the same as it was on enlistment. Professor O'Rourke makes the same finding, based on his expert medical opinion.
In Mr Pepper's case, there appears to be temporary worsening of symptoms but this should not be confused with aggravation by the service. The Tribunal did attempt to obtain further evidence in relation to when it might have been that Mr Pepper received medication for his hypertension. Mr Pepper was unable to recall this and the adjournment of the hearing in order to facilitate the opportunity of finding any documentary evidence from Dr Delaney, Mr Pepper's General Practitioner, in relation to the early medical treatment of hypertension, was not successful beyond ascertaining that at least in 1979 Mr Pepper was receiving treatment for his hypertension. Mrs Pepper unfortunately was unable to assist the Tribunal in relation to any of these details. During the course of Mr Pepper's service, there was no evidence at all of any organ damage and certainly currently, his medical status so far as hypertension is concerned also does not reveal any organ damage as reported by Dr Delaney.
While the Tribunal is very mindful of the beneficial provisions contained within Section 119 of the Act, this does not provide the decision-maker with the opportunity to invent evidence. The Tribunal notes Mr Jones' submission that the Tribunal might reasonably infer certain things, however the Tribunal does not consider that the evidence in this case is strong enough to infer early pharmacological treatment of hypertension immediately after service or that there was an aggravation or worsening of Mr Pepper's hypertension post service as a result of service.
Mr Jones submits that the decision to accept Mr Pepper into the Army in March 1942 and classify him as medically fit "Class 1" was inappropriate clinical management of his pre-existing hypertension. This submission was based on the events of 1940 where Mr Pepper was rejected from military service because of symptoms believed to be caused by his hypertension. The Tribunal has already noted that in his entry medical questionnaire, Mr Pepper has noted that he has not been rejected from military service previously. Thus whether or not Mr Pepper was rejected from military service is not clear on the evidence available to the Tribunal. Even if Mr Pepper had been rejected in 1940 and then accepted in 1942, the Tribunal notes that we do not have any details as to the blood pressure reading in 1940 which lead to the conclusions reported by the Board. Furthermore, the Tribunal notes from the Board's description of the 1940 medical record that Mr Pepper should not be employed in conditions requiring heavy or prolonged physical labour or prolonged mental stress. The fact of the matter is, as the Tribunal understands the evidence, that Mr Pepper was not required to undertake heavy or physical labour or prolonged mental stress. He was not sent overseas in active service, he was regularly medically monitored and when symptoms suggestive of some medical condition were reported, he was examined and very quickly reclassified. Thus, the Tribunal cannot find that there is any evidence to allow it to be reasonably satisfied on the balance of probabilities that the Army's acceptance of Mr Pepper in March 1942 was inappropriate clinical management of his pre-existing hypertension. Furthermore, the Tribunal is reasonably satisfied on consideration of all of the evidence that service did not aggravate Mr Pepper's hypertension. There were no reports of symptoms of hypertension until December 1943 when Mr Pepper was appropriately reclassified to "Class B" and following further monitoring was reclassified to "Class D" in 1944. There were fluctuating blood pressure readings during this period but the condition was appropriately managed in a way consistent with contemporary standards. The Tribunal can find no relationship between service and these symptoms and the management of them.
The Tribunal also notes in Re Crowe and Repatriation Commission (supra), that it was not until the 1960s that a blood pressure of 140/90 was considered to be of possible significance. In that case, a blood pressure of 140/90 in a 38 year old man was regarded as within normal limits. Mr Pepper was reviewed from time to time in terms of lifestyle and occupational considerations and in relation to reducing any stress or strain that he might experience. He was thus not unable to obtain appropriate clinical management of hypertension and nor, on all of the evidence, can the Tribunal find that there was a permanent aggravation or worsening of his hypertension. This can be attested to when one looks, with the benefit of hind sight, from his condition today backwards towards his service.
In all of the circumstances, the Tribunal is reasonably satisfied that Mr Pepper was treated appropriately on service for hypertension according to the standards of the 1940s. He was, in fact, on Professor O'Rourke's opinion, which the Tribunal accepts, treated better than a civilian might have been. Therefore, Mr Pepper had no inability to obtain appropriate clinical management. Furthermore, the fluctuation of his symptoms did not indicate a permanent aggravation. His hypertension was labile and essentially the same on discharge as it was at enlistment.
The Tribunal has examined the other factors contained within the Statement of Principles concerning hypertension and can find none that are appropriate on the available evidence.
Accordingly, for all of the reasons set up above, pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr JD Campbell, Member
Signed: .....................................................................................
Ms J Purches, AssociateDate/s of Hearing 7 November 2001
Date of Decision 19 June 2002Solicitor for the Applicant Mr P Jones, Solicitor, Rockliffs, Solicitors & Attorneys
Solicitor for the Respondent Ms P Hook, Departmental Advocate
0
9
0