Petrie and Repatriation Commission - [2002] AATA 153

DECISION AND REASONS FOR DECISION [2002] AATA 153

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/545

VETERANS'     APPEALS       DIVISION
  Re:         DAMIAN JOHN PETRIE
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             8 March 2002
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - solar keratosis - UV damage factor ratio - inability to obtain appropriate clinical management - aggravation
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A(3)
Benjamin v Repatriation Commission (2001) 64 ALD 411
Brew v Repatriation Commission (1999) 94 FCR 80
Johnston v Commonwealth (1982) 150 CLR 331
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Yates (1995) 57 FCR 241

REASONS FOR DECISION

8 March 2002 G.D. Friedman, Member

This is an application by Damian John Petrie (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 20 February 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 2 June 2000 that chronic solar skin damage (solar keratosis) was not war-caused.
At the hearing of this matter on 1 March 2002 the applicant represented himself and Mr A. Hall, Department of Veterans' Affairs advocate, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with one exhibit lodged by the applicant (Exhibit A1) and two lodged by the respondent (Exhibits R1 and R2).
BACKGROUND
The applicant was born in Brisbane on 26 January 1945. After leaving school he worked in a shipyard before joining the Royal Australian Navy (the navy) in 1962 on a nine-year engagement. After completing his training at HMAS Cerberus in Victoria he served in various ships as a radio technician. His service included the following periods in HMAS Sydney in Vietnam: 21 October 1970 to 12 November 1970, 15 February 1971 to 4 March 1971, 26 March 1971 to 8 April 1971 and 13 May 1971 to 1 June 1971. For the purposes of s9 of the Veterans' Entitlements Act 1986 (the Act) the applicant rendered operational service during these periods. He rose to the rank of Petty Officer before his term expired in 1971. After leaving the navy he married and found employment repairing car radios. He later started his own motor vehicle air-conditioning business, which he sold in 2001.
On 4 April 2000 the applicant lodged an application with the respondent for disability pension for incapacity from hearing and hyperkeratosis. On 2 June 2000 a delegate of the respondent diagnosed the hearing problem as bilateral sensorineural hearing loss, and accepted the claim. The respondent diagnosed hyperkeratosis as chronic solar skin damage and refused the claim on the grounds that the condition was not war-caused. On 20 February 2001 the VRB affirmed the decision of the delegate. On 16 May 2001 the applicant sought review by the Tribunal of the decision of the VRB.
EVIDENCE
The applicant told the Tribunal that at some time before enlisting in the navy he had a lesion removed from his nose. He said that otherwise the first treatment he received for a skin disorder was in 1968. He produced clinical notes, made at the time by a medical officer and obtained by the applicant in 1997, which show that he had early keratosis (scaly area on exposed skin) and a lesion on his left cheek. He said that as a radio technician he spent long periods in direct sunlight. He said that in the 1960s there was little emphasis on protection from the sun, and whilst at sea naval personnel did not use sunscreen or wear hats or other protective clothing. He said that the uniform at that time was short-sleeved shirts, shorts, sandals and no hat. The applicant stated that he did not observe sunscreen in the ship's sick bay and at no time did medical personnel prescribe creams, ointments or other forms of sunscreen to him. He emphasised that other medication (such as aspirin) prescribed to him during the period of his service was recorded but there was no mention of sun-protection items.
The applicant stated that persons working outdoors have a greater risk of contracting skin cancer than those working indoors. He said that the medical records marked Medical in Confidence, but now available to him, demonstrate that prior to his operational service in HMAS Sydney medical officers were aware of the need for him to use protective measures. In an outpatient record dated 3 April 1968 a consultant dermatologist stated: No treatment at present…Sun screen creams. In a further outpatient record dated 20 June 1969 a consultant dermatologist stated:
…
I feel that he must use sun protective cream as a routine between September and April whilst serving South of Brisbane and all this year round whilst North of Brisbane.
I request he be given a permanent supply of UVISTAT cream.

On 31 October 1969 a consultant dermatologist stated: Sun protection necessary in this patient[.] treatment Hamiltons Sun cream. The applicant told the Tribunal that despite these written comments no medical officer had ever discussed this matter with him. He said that, as a young seaman at the time, he did not question their actions or see the need to discuss preventive measures.

Under cross-examination the applicant confirmed that at no time before his operational service did he question medical officers about the cause of three keratoses that were removed from his face, seek advice about treatment or prevention, or consider the possibility that the keratoses would reappear. He agreed that the keratoses were removed before his period of operational service. He explained to the Tribunal that on 9 May 2001 the Department of Veterans' Affairs accepted liability for multiple recurrent keratoses arising from military service from 1 May 1968.
CONSIDERATION OF THE ISSUES
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.
There was no dispute between the parties that the applicant had rendered operational service and had suffered from solar keratosis, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that the condition was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Mr Hall, on behalf of the respondent, submitted that the applicable SoP concerning solar keratosis was Nº 47 of 2001 as amended by Nº 155 of 2001 (solar keratosis), which revoked Nº 33 of 1996 concerning chronic solar skin damage.
Under the third step, if an SoP is in force, the Tribunal must then form an 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. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Mr Hall submitted that the hypothesis does not fit within the template and is not reasonable. He referred the Tribunal to factor 5(b) of SoP Nº 47 of 2001:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting solar keratosis …with the circumstances of a person's relevant service are:
…
(b) having a solar UV damage factor ratio of at least 1.1 for the affected area at the time of the clinical onset of solar keratosis;
…
The solar UV damage factor ratio is equivalent to 10 per cent increased risk of solar UV damage. Mr Hall noted that the applicant's operational service in HMAS Sydney comprised four separate periods of two to three weeks' duration between October 1970 and June 1971. A UV risk assessment dated 15 May 2000 calculated the applicant's solar UV damage at 0.5 per cent. A subsequent UV risk assessment dated 26 November 2001 calculated the applicant's solar UV damage at 2.72 per cent increased risk for the face and 0.73 per cent increased risk for the hand. Mr Hall submitted that, according to the formula set out in the SoP, the solar UV damage factor ratio for the applicant is less than 1.1, so he has not satisfied factor 5(b).
Factor 5(d) of SoP Nº 47 of 2001 as amended by SoP Nº 55 of 2001 states:
5.…
(d) inability to obtain appropriate clinical management for solar keratosis.
Mr Hall referred the Tribunal to Brew v Repatriation Commission (1999) 94 FCR 80 in which Heerey J stated at paragraph 3:
However "inability" can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force…In the sense discussed, a person may have an inability to do something notwithstanding that he or she makes a free choice. Clearly the factor operating on the person's choice would have to be a substantial one before it could be said there was "inability". How substantial is a question of fact, and not capable of definition a priori. Since all agree the present legislation is to be given a beneficial construction, it is appropriate to give "inability" the wider meaning discussed.
Mr Hall stated that there must be material pointing to an inability to obtain appropriate clinical management as a matter of practical reality, whether the barrier is objective (such as an absence of medical personnel), or subjective (such as a threat of sanctions by superior officers if treatment if sought). He said that the onus was on the applicant to obtain treatment and there was nothing to prevent that treatment being pursued. He added that after the removal of three keratoses in the space of twelve months in 1968 and 1969 the applicant should have realised that he suffered from a recurrent condition that required treatment. He said that a lack of awareness by the applicant of the need for treatment did not equate to an inability to seek treatment. He submitted that for these reasons the applicant could not satisfy the third step.
The applicant submitted that as the relevant medical records were kept in the sick bay of HMAS Sydney medical personnel were aware, or should have been aware, of the need to explain the treatment recommended by consultant dermatologists. He referred to the lack of any reference in medical records to prescribed medication for sun protection as evidence that he was not informed of the specialists' conclusions and recommendations. He stated that in Brew the applicant developed symptoms of pain in her legs and did not seek treatment, whereas he had no symptoms because sunburn is suffered by 100 per cent of the male population to some degree and it is not a symptom of solar keratosis. He said that there was no evidence that HMAS Sydney carried appropriate sunscreen.
The applicant said that inability refers to whether he should have been diagnosed and treated on the basis of the skill and expertise that could be expected of a reasonably competent medical practitioner (Johnston v Commonwealth (1982) 150 CLR 331). He said that a competent medical officer would have checked the contents of the medical records at the time the applicant commenced serving on the ship, and should have ensured that the applicant understood the requirements for treatment and that sunscreen was issued to him. The applicant maintained that he could not report symptoms that he did not have, of a condition that he did not have. He submitted that consequently he was unable to obtain appropriate clinical management for solar keratosis.
Paragraph 6 of SoP Nº 47 of 2001 states:
Paragraph 5(d) applies only to material contribution to, or aggravation of, solar keratosis where the person's solar keratosis was suffered or contracted before or during (but not arising out of) the person's relevant service …;

Mr Hall referred the Tribunal to Repatriation Commission v Yates (1995) 57 FCR 241 in which Lindren J noted at p 249:

…an occurrence or worsening from time to time of symptoms caused by work or service may not compel an inference that there has been an aggravation, caused by work or service, of a pre-existing disease.

At p 250 Lindren J stated:

…I would expect, in the absence of medical evidence to the contrary, that an aggravation of an underlying disease would have a duration at least longer than the period of worsening of symptoms caused by service, although it may not necessarily be as long as the duration of the disease itself.

Mr Hall conceded that there was sufficient material before the Tribunal to support a finding that the applicant suffered UV solar damage before the relevant service. However he submitted that, because of the brief periods of operational service and the marginally increased risk of UV damage consistent with that service, the Tribunal should be satisfied beyond reasonable doubt that the applicant's skin condition was not aggravated by his operational service.
The fourth step requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the condition was not war-caused. At this stage the Tribunal is required to make findings on questions of fact. The applicant submitted that there was sufficient material before the Tribunal to find that the relevant condition was war-caused.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the applicant has suffered from solar keratosis, and that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.
In respect of the second step, the Tribunal finds that SoP Nº 47 of 2001 as amended by Nº155 of 2001 (solar keratosis), which revoked Nº33 of 1996 concerning chronic solar skin damage, was in force and is relevant (see Repatriation Commission v Gorton (2001) 110 FCR 321).
In respect of the third step, s120(3) provides that, in applying s120(1), the Tribunal shall be so satisfied if, after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable only if there is an SoP that upholds the hypothesis.
On the available material the Tribunal accepts the submission by Mr Hall that the applicant had a solar UV damage factor ratio of less than 1.1 for the affected area at the time of the clinical onset of solar keratosis. Therefore the applicant does not satisfy factor 5(b) of SoP Nº 47 of 2001.
In relation to factor 5(d) the Tribunal finds the applicant to be a credible witness who answered questions relating to events that occurred more than thirty years ago to the best of his recollection. The Tribunal accepts that the relevant medical records were not made available to the applicant at the time they were created. The Tribunal also accepts that in 1968 a young seaman would not necessarily initiate discussion with a medical officer about the cause of a medical condition or recommended treatment. The Tribunal notes the lack of evidence that supplies of appropriate sunscreen were present on HMAS Sydney. The Tribunal finds that although the applicant had an opportunity to seek treatment, he believed that he and every other person on HMAS Sydney suffered only from periodic sunburn, and that his view that he did not have symptoms of solar keratosis was reasonable in the absence of anything said to him by medical personnel, including specialists. Applying the test in Brew, the Tribunal concludes that, as a matter of practical reality, the applicant had an inability to obtain appropriate clinical management for solar UV damage as provided for in factor 5(d) of SoP Nº 47 of 2001.
With regard to paragraph 6 of SoP Nº 47 of 2001 the Tribunal takes into account that the applicant had operational service for relatively short periods and that this service involved exposure to the sun during this time. However the Tribunal notes that three keratoses were removed before the period of operational service. Based on the evidence from the applicant and other relevant material the Tribunal accepts the submission from Mr Hall that during operational service there were no symptoms of an underlying condition concerning his background of exposure to the sun and the removal of keratoses from his face previously, and that there was marginally increased risk of UV damage. Therefore, applying the test in Yates, the Tribunal is satisfied beyond reasonable doubt that there was no material contribution to, or aggravation of, solar keratosis.
For these reasons the Tribunal is not reasonably satisfied that the solar keratosis suffered by the applicant falls within the SoP that is in force. Therefore the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP, so the third step is not met. In the circumstances, there is no need for the Tribunal to consider the fourth step.
In Benjamin v Repatriation Commission (2001) 64 ALD 411 the Full Federal Court stated at paragraph 56:
. . if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all the evidence available to it, whether s 120(3) is satisfied, without reference to s120A(3).

Applying the test set out in Benjamin, having determined that the condition presently suffered by the applicant does not fall within an SoP that is in force, the Tribunal must determine, on all the evidence available to it, whether s120(3) is satisfied, without reference to s120A(3). In applying s120(3) the Tribunal has considered all the material available to it, and for the reasons outlined above, including the lack of supporting evidence, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition is a war-caused condition for the purposes of s120(1).
DECISION

The Tribunal affirms the decision under review.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  1 March 2002
Date of decision:  8 March 2002
Solicitor for applicant:                  Nil - Applicant in person
Advocate for respondent:            Mr A. Hall, Advocacy Section, Department of
Veterans' Affairs