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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Petrie and Repatriation Commission

Details

AGLC: Petrie and Repatriation Commission [2002] AATA 153
Case: [2002] AATA 153
Decision Date: 8 March 2002

CaseChat Overview and Summary

The case of Petrie and the Repatriation Commission concerns a former serviceman who applied for a disability pension due to hearing loss and hyperkeratosis, a condition involving scaly areas on exposed skin. The Repatriation Commission assessed his hearing loss as bilateral sensorineural hearing loss, but rejected the claim for hyperkeratosis, determining it was due to chronic solar skin damage rather than his military service. The applicant appealed this decision to the Administrative Appeals Tribunal.

The primary legal issues revolved around whether the Tribunal could find a reasonable hypothesis connecting the applicant's hyperkeratosis to his war service, particularly whether the condition met the criteria set out in the relevant Statement of Principles. The Federal Court's guidelines in Repatriation Commission v Deledio (1998) 49 ALD 193 were applied, requiring a four-step process: establishing a hypothesis, identifying relevant Statements of Principles, determining whether the hypothesis fits within the template provided by the SoPs, and finally, whether the hypothesis is reasonable. The respondent argued that the applicant's solar UV damage factor ratio did not meet the required threshold of 1.1 as specified in the Statement of Principles.

The Tribunal examined the evidence, including medical records from the applicant's service and assessments of solar UV damage. It considered the applicant's exposure to sunlight during his service, the lack of sun protection measures, and the medical advice provided to him. Despite the applicant's assertions about the conditions of service and the lack of protective measures, the Tribunal found that the solar UV damage factor ratio did not meet the threshold of 1.1. Consequently, the Tribunal upheld the Commission's decision, finding that the applicant's hyperkeratosis was not war-caused.

The Tribunal's decision was based on the applicant's failure to meet the specific criterion outlined in the Statement of Principles, despite the general evidence of solar exposure during his service. The Tribunal concluded that the reasonable hypothesis requirement was not satisfied, leading to the rejection of the hyperkeratosis claim.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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. 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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).