Phillip Tovey and Repatriation Commission
[2014] AATA 837
•6 November 2014
[2014] AATA 837
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2371
Re
Phillip Tovey
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 6 November 2014 Place Brisbane The Tribunal affirms the decision under review.
...................................[Sgd].....................................Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS – Varicose Veins of the Lower Limbs – Chronic Obstructive Pulmonary Disease - Hypertension – Chronic Bronchitis and Emphysema – Whether conditions defence-caused injuries or diseases – Not related to service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 70, 120, 120B
CASES
Kaluza v Repatriation Commission [2011] FCAFC 97
Gorton v Repatriation Commission (2001) 63 ALD 723
SECONDARY MATERIALS
Statement of Principles concerning Chronic Bronchitis and Emphysema, No. 31 of 2004 (revoked)
Statement of Principles concerning Chronic Obstructive Pulmonary Disease, No. 38 of 2014
Statement of Principles concerning Hypertension, No. 36 of 2003 (revoked)
Statement of Principles concerning Hypertension, No. 64 of 2013
Statement of Principles concerning Varicose Veins of the Lower Limb, No. 121 of 2011
REASONS FOR DECISION
Deputy President I R Molloy
6 November 2014
INTRODUCTION
Mr Tovey served in the Royal Australian Navy from 25 July 1964 to 24 July 1984.
On 4 June 2013 the respondent (“the Commission”) rejected his claim under the Veterans’ Entitlements Act1986 (Cth) (“the Act”) in respect of chronic bronchitis and emphysema for the reason that the condition was not defence-caused.
On 22 July 2013 the Commission rejected Mr Tovey’s claims in respect of varicose veins of the left and right legs and hypertension. These claims were also rejected as not being defence-caused.
On 25 February 2014 the Veterans’ Review Board affirmed the Commission’s decisions.
Mr Tovey applies for review of the Commission’s decisions.
ISSUES
There is no dispute that Mr Tovey was a member of the Defence. The issues are whether the conditions for which Mr Tovey claims are defence-caused injuries or defence-caused diseases. Only service from 7 December 1972 is eligible service within the meaning of the Act.
LEGISLATION
Section 70(5) of the Act, so far as relevant, provides that for the purposes of the Act, an injury suffered by a member shall be taken to be a defence-caused injury, or a disease contracted by a member shall be taken to be a defence-caused disease, if:
(a)the … injury or disease, as the case may be, arose out of, or was attributable to, any defence service … of the member…
Pursuant to s 120(4) of the Act such matters are to be decided to the Commission’s (and now the Tribunal’s) reasonable satisfaction.
Section 120B(3) provides, relevantly:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, [or] a disease contracted by a person … was … defence-caused only if:
(a) the material before the Commission raises a connection between the injury, [or] … 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, [or] disease … of the person is, on the balance of probabilities, connected with that service.
There is a Statement of Principles (“SoP”) in respect of each of the conditions for which Mr Tovey claims. Each SoP sets out the minimum factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said there is a causal connection between the condition and service.
Chronic Bronchitis and Emphysema
The current SoP is No. 38 of 2014 concerning Chronic Obstructive Pulmonary Disease. At the time of the Commission’s decision SoP No. 31 of 2004, Chronic Bronchitis and Emphysema, was in force.
Mr Tovey is entitled to rely on the SoP in force at the time of the Commission’s decision if it is more favourable to him.[1]
[1] Gorton v Repatriation Commission (2001) 63 ALD 723.
Clause 5 of SoP No. 38 of 2014 provides relevantly that at least one of the factors set out in cl 6 must be related to the relevant service. Mr Tovey relies on the following factors:
6. …
(a)smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical smoking has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation; or
(b) inhaling a respiratory tract irritant from the specified list:
(i)resulting in signs and symptoms of severe acute lower respiratory damage requiring medical attention within 48 hours after exposure; and
(ii)the persistence of respiratory symptoms and signs for at least one week after exposure, within the five years before the clinical onset of chronic obstructive pulmonary disease.
Paragraph 9 of SoP No. 38 of 2014 includes the following definition:
"pack-years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack- year of tailor-made cigarettes equates to 7.3 kilograms of smoking tobacco by weight. Tobacco products mean cigarettes, pipe tobacco or cigars, smoked alone or in any combination.
In SoP No. 31 of 2004 the factors are set out in cl 5. Mr Tovey relies on the following:
5. …
(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…
(d)inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space, for a total of at least 5000 hours before the clinical onset of chronic bronchitis and/or emphysema.
Clause 8 of SoP No. 31 of 2004 includes the following definition:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
Mr Tovey commenced smoking when he enlisted in the Navy in 1964. He smoked 10 to 15 cigarettes per day. His smoking increased to 30 to 40 cigarettes per day in 1966. He had therefore started smoking approximately eight years before the commencement of his eligible service in 1972.
Mr Tovey said that at times he gave up smoking whilst in the Navy. This is supported by an entry in an out-patient record,[2] dated 1 May 1975, which states:
It is two years since I last saw this patient. He has served in HMAS Melbourne and has been overseas. …
He told me that he did put on 1½ stone in weight after giving up smoking 15-20 cigarettes per day.
[2] Exhibit 4.
Mr Tovey said he gave up smoking at least once prior to 1972 and took it up again in 1973. He said he ceased smoking for well over a year whilst serving at HMAS Cerberus. He said he did so because it was too expensive.
He said that shortly after joining HMAS Melbourne, in June 1973, he started smoking again “as smoking was the thing to do not only on breaks but all day, and cigarettes were readily available at 15 cents a packet.”[3]
[3] Exhibit 2.
He says he also gave up smoking in 1975 at HMAS Cerberus until going back to sea in 1977. He referred to boredom and the availability of cigarettes at reduced cost as influencing his decisions to smoke. He ceased smoking in 1984 when he left the Navy.
All of this indicates to me that Mr Tovey was an established smoker prior to his period of eligible service. During his eligible service he chose to smoke or not smoke depending on the circumstances.
No doubt the habituating nature of cigarettes had an effect. However, in Mr Tovey’s case the price of cigarettes, and the opportunity or excuse to smoke, seem to have been the determining factors. It was a matter of choice on his part.
I am reasonably satisfied that Mr Tovey’s smoking did not arise out of, and was not attributable to, his defence service.
The other factor relied on, in SoP No. 31 of 2004 (revoked), or SoP No. 38 of 2014, concerns the inhalation of smoke for minimum times in an enclosed space before the clinical onset of the specified conditions. I do not understand that this was seriously advanced. In any event, I am not satisfied that Mr Tovey’s circumstances fulfil the relevant factor in either SoP.
It follows that the claimed condition is not defence-caused under s 70(5) of the Act.
Hypertension
In respect of the claim for hypertension Mr Tovey relies on the following factors, in
cl 6(c) SoP No. 64 of 2013, or cl 5(c) SoP No. 36 of 2003, respectively, as providing the connection between the condition and his relevant service:
6. …
(c)consuming at least 15 grams (250 millimoles) of salt per day on average for at least the six months before the clinical onset of hypertension;
or
5. …
(c)ingesting at least 15 grams (250 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension.
Mr Tovey developed a liking for salt that he did not have before joining the Navy. However he was in the Navy eight years before the commencement of eligible service. There is no evidence that he increased his intake of salt during eligible service.
Additionally, the six months relied on is more than twenty years after Mr Tovey’s discharge from the Navy. The clinical onset of hypertension was 2005 when Dr Carr was first consulted for hypertension.[4]
[4] T44, page 201; Kaluza v Repatriation Commission (2011) FCAFC 97
I am not satisfied that Mr Tovey’s ingestion of salt in the six months immediately before the clinical onset of hypertension is causally related to his eligible service.
Varicose veins
Mr Tovey relies on the following factor in cl 6 of SoP No. 121 of 2011 as providing the necessary connection between his condition and the circumstances of his relevant service:
6. …
(e)non-ambulatory standing for at least six hours per day, on more days than not, for a continuous period of at least the five years before the clinical onset of varicose veins of the lower limb.
Mr Tovey said his duties included prolonged standing. He said he spent a lot of time on patrol boats where he was sometimes required to wedge himself into tight positions. He said the pressure on his legs was phenomenal. He referred to watch duties and parade ground duties.
Mr Tovey said he would spend not six hours per day, but often eight hours on his legs. However, it is clear that Mr Tovey was not involved in what could be described as non-ambulatory standing, for at least six hours per day, during any period of his service.
Furthermore, Mr Tovey agreed there was no mention in his medical records of presentation for treatment or assessment for varicose veins from 1993 to 1997. He referred instead to removal of varicose veins following presentation in 2010.
Dr Carr says he was first consulted by Mr Tovey for varicose veins in August 2010.[5]
I take that to be the clinical onset of the condition.
[5] T40, page 177.
Any non-ambulatory standing during the five years before the clinical diagnosis of varicose veins cannot therefore be related to Mr Tovey’s eligible service.
DECISION
Each decision of the Commission is affirmed.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy. ...................................[Sgd].....................................
Associate
Dated 6 November 2014
Date of hearing 22 September 2014 Date final submissions received 22 September 2014 Applicant In person Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
0
2
0