Pringle and Repatriation Commission - [2000] AATA 463

DECISION AND REASONS FOR DECISION [2000] AATA 463

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/332

VETERANS' APPEALS DIVISION          )
           Re      RONALD MELVILLE PRINGLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date 9 June 2000
Place Sydney

Decision      1) The decision of the Repatriation Commission as affirmed by the Veterans' Review Board to find that Mr Ronald Melville Pringle's ischaemic heart disease and atrial fibrillation are not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 is affirmed. 2) The decision to refuse the disability pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986 is set aside, and the Tribunal finds that the disability pension is payable at the Special Rate on and from 5 November 1996.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans affairs - whether ischaemic heart disease war-caused – applying Keeley in consideration of SoPs current at time of original decision.

Veterans' Entitlements Act 1986 ss 9, 24, 120B(1), 120(4)
Repatriation Medical Authority Statement of Principles ("SoP") No.141of 1996 concerning Ischaemic Heart Disease
Repatriation Medical Authority Statement of Principles ("SoP") No.10 of 1996 concerning Atrial Fibrillation

Repatriation Commission v Keeley [2000] FCA 532
Pringle and Repatriation Commission (AAT 13250, 4 September 1998)
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Birtles v Repatriation Commission (1991) 33 FCR 290

REASONS FOR DECISION

9 June 2000 Ms G Ettinger, Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal"), was the decision of the Veterans' Review Board of 24 November 1998 (T22) which affirmed the decision of the Repatriation Commission of 30 September 1997 (T16) in not accepting Mr Ronald Melville Pringle's ischaemic heart disease and atrial fibrillation as war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Veterans' Review Board set aside the decision under review in relation to lumbar spondylosis and substituted the following decision:
"(i)that that condition (lumbar spondylosis) was war-caused as defined in section 9 of the Veterans' Entitlements Act 1986 (the Act);
(ii)that the Commonwealth of Australia is liable pursuant to section 13 of the Act to pay pension for any incapacity arising from that condition from and including 5 November 1996; and
(iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid."
The applicant was represented at the Tribunal by Mr C Colborne of counsel and the respondent Repatriation Commission by its advocate, Mr P Godwin.
Oral evidence was given by the applicant, Mr Ronald Melville Pringle, Dr M Neaverson, consultant physician and cardiologist, Dr G Miller, consultant physician, and Dr D Richards Clinical Associate Professor, Department of Medicine, Sydney University.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:
(a)whether the applicant's claimed condition of ischaemic heart disease satisfied the Statement of Principles No.141 concerning Ischaemic Heart Disease and whether the condition was thus war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986;
(b)whether the applicant's claimed condition of atrial fibrillation satisfied the Statement of Principles No.10 concerning Atrial Fibrillation and whether the condition was thus war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986;
(c)whether the applicant's war-caused disabilities alone rendered him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and whether his war-caused disabilities prevented him from continuing his work at Pakrite where he had been employed for some 12 years;
(d)whether the applicant is eligible for a disability pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act 1986; and
(e)and if so, from what date.
I noted that at the commencement of the hearing there was a question of whether the applicant was eligible for pension at the Extreme Disablement Adjustment ("EDA") pursuant to section 23 of the Veterans' Entitlement Act 1986. I noted further that EDA had been considered by both the Repatriation Commission and the Veterans' Review Board. At the hearing before me, Mr Colborne conceded Mr Pringle did not have an average Lifestyle rating of six, and therefore did not qualify for EDA. Accordingly this was not further pursued in these Reasons for Decision.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act"), in particular section 9 as follows:
"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:
….
(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;
……"
The standard of proof applicable to veterans such as Mr Pringle who have served eligible service, is that the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant to section 120(4) of the Act.
Standard of proof 120(4)
120.…………..
(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.
…."
Mr Pringle's application to the respondent was dated 3 February 1997, that is, after 1 June 1994 and the Tribunal is therefore bound to apply section 120B(1) of the Act and the relevant Repatriation Medical Authority Statements of Principles ("SoPs") in relation to his claim.
"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."
Pursuant to the recent decision of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532 the correct SoP to be applied in considering whether a particular veteran's claimed condition is war-caused, is the SoP which was in force at the time of the primary decision. The relevant SoPs in this case are as follows: Instrument No.141 of 1996 concerning Ischaemic Heart Disease, and Instrument No.10 of 1996 concerning Atrial Fibrillation. I have in this case also perused the later SoPs concerning Ischaemic Heart Disease and Atrial Fibrillation. I did not find, even if they could be applied, that any of the later SoPs would either alter my decision or act to Mr Pringle's advantage or detriment. I note also that the decision of Keeley (supra) is on appeal to the Full Federal Court.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents ("the T-documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the following exhibits:
ITEM DATE NAME
Medical report of Dr G Miller        29 September 1999 Exhibit A1
Medical report of Dr M Neaverson           1 March 2000           Exhibit A2
Medical report of Associate Professor D Richards       15 February 2000    Exhibit R2
Medical report of Dr M Burns       11 June 1999           Exhibit R3
Clinical notes of Dr J Lahood        4 September 1979 to 11 May 1999         Exhibit R4
Clinical notes of Dr D Madew       13 July 1978 to 26 March 1979     Exhibit R5
Australian Taxation Office Income Tax Returns of Mr R Pringle       1992   Exhibit R6
Letter from Dr J Lahood to Dr M A Neaverson   11 December 1995 Exhibit R7
EVIDENCE OF THE APPLICANT MR RONALD MELVILLE PRINGLE
Mr Pringle, whose date of birth was 2 July 1926, gave oral evidence before the Tribunal. The veteran told the Tribunal that he completed school education to 14 or 15 years of age and attended commercial evening school. He said that he worked at a stationer's as a junior and later at a warehouse. He then joined a company as a trainee fitter/machinist, followed by enlistment in the Royal Australian Air Force ("RAAF") on 25 July 1944 at age 18. The Tribunal noted that the veteran served from 25 July 1944 to 10 October 1946, and that his service constituted eligible service as defined in the Act.
Mr Pringle gave evidence of training to be a flight mechanic, which led to guard duty and servicing of aircraft engines. He described an accident in Parkes where an engine fell on his leg in July 1945. Some of these injuries were dealt with in the decision Pringle and Repatriation Commission (AAT 13250, 4 September 1998), (T22).
Mr Pringle gave evidence that after leaving the RAAF he was restless. He worked for approximately 18 months servicing aircraft parts, and then worked for "Lowes", a Sydney retailer of men's clothing. The applicant said that he was involved in sales, and remained at Lowes from 1950 to 1966, rising to store manager, and becoming group shirt buyer by 1967.
From October 1967, endeavouring to be away from home less, he and his wife moved into managing hotels with the Koala group. Mr Curtis said that they became known as "trouble shooters" and were sent to areas where the group's hotels had problems. Once again this involved a lot of moving around, and in approximately July 1972, the couple moved to an area near Ayers Rock in the Northern Territory where they had what was described as a big complex. During this time the Pringle's worked with the Aboriginal community, and operated a general store, an aircraft refuelling business and various social clubs. They also operated a garage which they left at the end of 1993.
Mr Pringle said that after several more moves, and an operation involving his legs in Canberra in 1979, he began working for the Pakrite company in February 1980, remaining there until September 1991. Mr Pringle said that the job at Pakrite, a company with a turnover then of $25,000,000. annually, was a good one. He worked at a desk, in customer relations and sales. He also worked with wholesalers and interviewed customers in the country.
Mr Pringle said that he resigned from Pakrite on 13 September 1991 because his leg was aching, he was taking large quantities of pain killers and he could not sit properly. He said he had been having substantial time off on sick leave, and although he wanted to, could not continue with the work. He said that the company closed down in May or June 1993 due to poor management, but that the new proprietor offered him work. He said he would like to have accepted because he was bored at home, but felt he could not do the work. When questioned further, he said that he could have carried out the actual work component of a sedentary part-time position, but that there was always uncertainty about the incidence of his pain, day to day, and he could not always be sure when he would be available for work.
The veteran in his evidence specifically addressed the situation regarding his age, saying that he had joined Pakrite at the age of 54 or 55 and ceased aged 67, not due to age-related reasons, but because of his physical health. Mr Pringle acknowledged one had to be alert to do the job and said that even at the date of the hearing he was mentally active and fit to do the job, but not physically able to do the job.
When asked about his back pain, Mr Pringle indicated it was very severe. He said that he could not walk far, could not even move around the house easily, and was exhausted when he tried. He said that he could still perform some tasks in the kitchen such as shelling prawns or peeling potatoes while seated.
When questioned about personal relations, he indicated that he was very short tempered, no longer went to the RSL Club, and had few visitors at home. He said it was very different from ten or twenty years previously when he had hobbies such as collecting stamps and coins, and making model aircraft. He said that he could no longer do any of that.
Mr Pringle also said that he had in earlier times raced MG cars. He said that he was a capable driver and would now drive only if he was able, so that his wife did most of the driving. He said that he could not take public transport.
MR PRINGLE'S SMOKING
Mr Pringle completed a report on his cigarette smoking dated 13 March 1997 (T12). In it he said that from smoking one or two cigarettes per day, he had progressed to 20 or 30 per day which continued until he had heart problems in 1978. The Repatriation Commission had, at T16/60, accepted that Mr Pringle smoked three cigarettes a day from 31 December 1944 to 29 May 1945 and 30 cigarettes a day from 30 May 1945 to 31 May 1978.
Mr Pringle said in oral evidence that neither of his parents smoked but he used to "sneak" occasional "roll-your-own" cigarettes after school when he was growing up. In the RAAF it was easy to obtain "tailor-made" Craven A filter cigarettes, and he smoked approximately 30 cigarettes per day, he said. Mr Pringle said that he tried to give up smoking several times. He said that after his first episode of heart problems in May 1978, he only smoked the occasional small cigar, and had not smoked at all since 1981.
MR PRINGLE'S HEART CONDITION
Mr Pringle's first encounter with heart problems appears to have been in 1978. The veteran described the circumstances of his admission to hospital for three to four days in Canberra during May 1978. He said that he had been sitting and relaxing after dinner on the day of admission (no exact date in May was given, and documentation before the Tribunal was sparse) when he experienced "severe chest pain". In cross-examination Mr Pringle gave evidence regarding the circumstances of the chest pain, describing it as "funny chest pain". He also said that it felt like "somebody had stabbed me in the centre of the left chest." Mr Pringle said that the pain was continuous. He said that he also had: "some irregularity in my heart beat."
Dr Howard Peak (MB, BS (Syd) FRACP, FACC) of the Cardiology Unit, Canberra Hospital wrote on 24 May 1978 to Dr A M White at Queanbeyan about Mr Pringle's admission to Canberra Hospital. His report was before the Tribunal as Exhibit R5/7. It is my understanding that this letter was not available to either the Repatriation Commission or the Veterans' Review Board in conjunction with their decision making. In fact there appear to be no other records available relating to Mr Pringle's admission to hospital in 1978. As this short letter and its significance to Mr Pringle was the basis of much evidence and discussion during the hearing, I have reproduced the text in full.
"RE: Mr Ronald PRINGLE
Mr Pringle was recently hospitalized with palpitations and E.C.G.'s showing initially supra ventricular ectopics and eventually a rapid atrial fibrillation. The patient was reverted to a sinus rhythm with Digoxin and he has remained in sinus rhythm. Today I performed an Echo cardiogram to exclude mitral stenosis – this demonstrated normal mitral valve. The patient is continuing on Digoxin .25 mg mane."
Mr Pringle told me that he had no further heart problems between 1978 and 1981. I noted that at T4, a Medical History Sheet of the Department of Veterans' Affairs dated 20 November 1978, the doctor conducting the examination recorded Mr Pringle's medical conditions. There was no mention of any heart disease except at T4/22 where the section of family history included the following: "No F.H. (family history) of the following = heart disease; hypertension – Diabetes; Gout; hay fever; Asthma…".
The area designated for comments about the heart was completed as follows: "Size - clinically within normal limits – Sounds – Physiological – B.P. – 160/100."
Under provisional diagnosis there was "? strain and ? lumbar spondylosis." When asked in cross-examination why his claimed heart condition was not mentioned there, Mr Pringle said that it had not been relevant as the examination was conducted in connection with a fracture of his leg. He said his heart condition would not have concerned that doctor at that time.
He said that one day at work at Pakrite in approximately 1989, he had chest pain and felt unsteadiness. He said he almost "passed out at his desk" and staff members drove him to the doctor. X-rays of that occasion showed no heart disease.
Mr Pringle then came under the care of Dr M Neaverson, cardiologist, in March 1992. He said he had been sitting relaxing after dinner one night in early 1992, and suffered severe chest pain. He was admitted to Western Suburbs Hospital.
Mr Pringle also recounted that he had been taken by ambulance to Western Suburbs Hospital and spent five days there from 24 January 1993 after suffering irregular heart beat. He said that under the care of Dr Neaverson, he had participated in the exercises for heart patients at the stress clinic on 18 occasions on and from 5 March 1993.Mr Pringle said that he also attended the stress clinic three times a week in early 1996. This had ceased when he suffered a hip fracture on 10 February 1996.
I noted at Exhibit R7 that Dr Lahood, Mr Pringle's treating general practitioner had on 11 December 1995 referred him to Dr Neaverson with a complaint of "chest tightness on mowing lawns recently…"
Mr Pringle acknowledged he had not been seen by Dr Neaverson since 1996.
Mr Pringle was concerned that there had been a misunderstanding regarding his gardening activities which consisted, he said, of sitting at a table supervising his wife gardening whilst he sat at a table planting strawberries in pots. Mr Pringle said that Dr Neaverson (Exhibit A2/2) was wrong when he wrote in this report that Mr Pringle had mowed lawns since the 1979 operation. He said that it was his wife who mowed. Mr Pringle described how he sat on a trolley and trimmed the edges of the lawn from the trolley. I noted that Dr Burns also commented on Mr Pringle's ability to garden for 20 hours a week, which Mr Pringle denied.

EVIDENCE OF DR M NEAVERSON, CONSULTANT PHYSICIAN in PREVENTIVE CARDIOLOGY

Dr Neaverson whose medical reports dated 17 January 1996 (T14/56) and 1 March 2000 (Exhibit A2) were before the Tribunal, gave oral evidence. Dr Neaverson was Mr Pringle's treating cardiologist.
Dr Neaverson was questioned about the episode of pain and fibrillation Mr Pringle said he had suffered and for which he was hospitalised in intensive care in Canberra in 1978. Dr Neaverson said that the echocardiogram taken at that time, excluded rheumatic heart disease. He opined at Exhibit A2: "…in company with an overactive thyroid and ischaemic heart disease are the commonest causes of atrial fibrillation in a man of his (Mr Pringle's) age." In reply to questions about why no angiogram was done, Dr Neaverson stated that such a procedure was not available in Canberra at that time.
He corroborated the evidence that the veteran had come under his care on admission to the Western Suburbs Hospital in 1992, and that Mr Pringle had a right bundle branch block, poor cardio-respiratory function and exhibited no pain during testing which made diagnosis of ischaemic heart disease difficult. Dr Neaverson said that approximately 2 percent of the population formed part of an idiopathic group who had atrial fibrillation without other disease. He said that as a result, the tests carried out in 1992 were not conclusive with regard to ischaemic heart disease.
Dr Neaverson said that in early 1993 Mr Pringle had chest pain and underwent rehabilitation and that he became hypertensive with exercise. A letter of Dr Neaverson to Dr Lahood, Mr Pringle's general practitioner dated 3 February 1993 (Exhibit R4/121) stated as follows:
"The aetiology of his Atrial Fibrillation is most likely Ischaemic heart disease. There is certainly no evidence of Thyrotoxicosis or Rheumatic fever. His second ECG was suggestive of Ischaemia."
Dr Neaverson agreed that when Dr Miller saw Mr Pringle he had no right bundle branch block and remarked that 18 to 20 percent of the population had that condition which in that segment of the population was not associated with heart disease. He accepted that Mr Pringle had an intermittent branch bundle block and said that the reason was likely to be ischaemic heart disease.
Dr Neaverson said that the indicia which suggested the provisional diagnosis of ischaemic heart disease in Mr Pringle's case were that he had atrial fibrillation which did not appear to have been caused by an overactive thyroid, viral fevers, typhoid or a rheumatoid valve.
Dr Neaverson opined that the veteran demonstrated significant risk factors for developing ischaemic heart disease, that is, raised cholesterol, hypertension on exercise, obesity, lack of exercise due to his leg and back condition and his age. He also said in his oral evidence that there was no doubt Mr Pringle suffered ischaemic heart disease. In that connection, Dr Neaverson referred me to Exhibit R4/121, his letter to Dr Lahood of 3 February 1993, where he had opined: "The aetiology of his Atrial Fibrillation is most likely Ischaemic heart disease. There is certainly no evidence of Thyrotoxicosis or Rheumatic fever. His second ECG was suggestive of ischaemia."
Dr Neaverson agreed when questioned, that the tests of Mr Pringle recorded at Exhibit R4/118, dated 6 April 1993 showed marked improvement, and that there was no evidence of ischaemia shown there. He said however that on 11 December 1995, Mr Pringle had experienced chest tightness on lawn mowing. Dr Neaverson agreed he had not seen Mr Pringle since 1996. I noted his letter to Dr Lahood of 17 January 1996 reported Mr Pringle had shortness of breath whilst mowing (Exhibit R4/61). There was no mention of the heart.
When asked in cross-examination how significant the presence of angina was in conjunction with the presence of ischaemic heart disease, Dr Neaverson said that about 40 percent of people with ischaemic heart disease had angina. However he opined that "silent ischaemia" was possible with cardiographic changes taking place in the absence of pain. He said atrial fibrillation could occur without pain and any myocardial damage done could then be seen on examination.
EVIDENCE OF DR G MILLER, CONSULTANT PHYSICIAN
Dr Miller whose medical report dated 29 September 1999 was Exhibit A1, gave oral evidence before the Tribunal.
Dr Miller was questioned regarding Mr Pringle's hospitalisation with palpitations in 1978. In oral evidence he first described the condition as irritable heart which he said was significant in cases of ischaemic heart disease but also common in the absence of ischaemic heart disease.
In reply to questioning about the report of Dr Peak (Exhibit R5/7), Dr Miller said the report indicated that it was probable that Mr Pringle had an acute ischaemic episode, with atrial fibrillation occurring after arrival at the hospital in Queanbeyan.
I noted that in his report of 29 September 1999, he had opined regarding Mr Pringle's 1978 admission:
"Unfortunately there is no documentation from either hospital in the S.37 Statement, and neither Mr. nor Mrs. Pringle know exactly what the diagnosis, was except that he had had a heart disturbance. He was treated for some three to four days in the Intensive Care Unit and discharged after a further three days taking digoxin tablets. His chest pain settled and an angiogram was not performed. In my opinion, on the balance of probabilities, he was admitted and treated for atrial fibrillation and this settled on treatment. Digoxin, the treatment of choice for atrial fibrillation in 1978, is not used for the treatment of uncomplicated ischaemic heart disease and the fact that no angiogram was contemplated suggests that there was no suspicion of ischaemic heart disease at that time."
I was mindful that Dr Neaverson had said angiograms were not available in
Canberra at that time.
Further in the report of 29 September 1999 at page 8, Dr Miller opined:
"In my opinion, on the balance of probabilities, Mr Pringle was suffering from atrial fibrillation at that time, [1978] and as Dr. Neaverson, his treating doctor, considers that the atrial fibrillation was due to myocardial ischaemia, I consider that the first manifestations of his ischaemic heart disease was in 1978."
Dr Miller also opined that the ingestion of Digoxin by Mr Pringle in 1978, would have affected the electrocardiogram test results.
Both in oral evidence and on pages 8 and 11 of his report of 29 September 1999, Dr Miller opined that the first manifestation of Mr Pringle's cardiac problems was an episode of cardiac pain in 1978 with hospitalisation. Dr Miller opined that Mr Pringle was suffering atrial fibrillation, and agreeing with the diagnosis of Dr Neaverson, the treating specialist, Dr Miller opined that the atrial fibrillation was due to Mr Pringle's ischaemic heart disease. This was in contradiction of what he wrote on page 5 of his report which is quoted above in paragraph 46.
Dr Miller added that there was significant evidence that Mr Pringle had peripheral vascular disease. He had been diagnosed with atherosclerosis of the legs. He opined that Mr Pringle fitted all the risk factors for ischaemic heart disease such as hypertension and obesity. His age and the pain he had suffered were also relevant.
EVIDENCE OF ASSOCIATE PROFESSOR D RICHARDS, CONSULTANT CARDIOLOGIST
Associate Professor Richards whose medical report dated 15 February 2000 was Exhibit R2, gave oral evidence before the Tribunal. I was mindful that Professor Richards did not interview or examine the applicant, and prepared his report from the T-documents and other medical records.
On the basis of perusing the documents he opined in Exhibit R2:
"Diagnosis
1. Atrial fibrillation. Mr. Pringle has had paroxysmal atrial fibrillation since 1978. Dr. Peak noted no feature in 1978 to suggest that atrial fibrillation in this case was due to myocardial ischaemia. An exercise test in 1992 did not suggest the presence of myocardial ischaemia, and the exercise test 28 January 1993 was recorded after Mr. Pringle had received Digitalis for atrial fibrillation.
Commentary
It is my opinion that on the balance of probabilities, atrial fibrillation in this case was not due to ischaemic heart disease.
It is my opinion that Mr. Pringle had lone atrial fibrillation in 1978, in the absence of structural or ischaemic heart disease. Resting right bundle branch block in 1993 did not suggest underlying ischaemic heart disease, and the minor ST segment changes observed on exercise were non specific and may have been due to Digitalis use. The absence of chest pain at exercise testing, and the absence of significant ST segment depression on exercise, suggests the absence of significant myocardial ischaemia.
It is my opinion that Mr Pringle's poor effort tolerance was partly due to locomotor disability related to his previous injury, and overweight." (Exhibit R2)
Professor Richards commented on the episode of hospitalisation of the veteran in 1978. He opined that typical angina produced a crushing pain, and that if Mr Pringle had presented with angina followed by atrial fibrillation, it would more likely have been ischaemic heart disease. He opined that ischaemia rarely caused supraventricular ectopics.
Dr Richards referred to Dr Lahood's report of 9 May 1991 (Exhibit R4). He noted that at page 127 Dr Lahood made the following statements regarding the veteran: "tired & depression … nerve attack … irritable bowel syndrome …" and on 18 May 1991 he made the following statements:, "sudden onset of chest pain. lower left chest. No exertion – stress at work." He said that the pain was more likely to have been gastro-oesophageal than cardiac on that occasion.
Referring in his oral evidence to page 122 of Exhibit R4, Dr Richards drew the Tribunal's attention to the diagnosis of "Chest pain – for investigation – Reflux oesophagitis" made on Mr Pringle's admission to Western Suburbs Hospital on 27 March 1992.
He said that the stress tests in 1992 and 1993 had been satisfactory. Dr Richards opined that ischaemic heart disease had not been established at that time. Professor Richards noted that Mr Pringle had reached 84 percent of his predicted heart rate at exercise in 1993, and 81 percent in 1996.
Dr Richards referred to page 116 of Exhibit R4, the "Discharge Letter of the Central Sydney Area Health Service" dated 25 January 1993. It indicated that the "Primary Diagnosis" made on admission on 24 January 1993 had been atrial fibrillation. Under the heading "Operations Performed/Treatment", the entry showed that Mr Pringle had been given introvenous Digoxin, the standard treatment at that time for atrial fibrillation. He said he agreed with Dr Neaverson that when Mr Pringle underwent exercise testing four days later, he would still have been affected by the Digoxin. No diagnosis of ischaemic heart disease could be made on those tests, he said.
Professor Richards referred to Dr Miller's opinion that Mr Pringle had peripheral heart disease and that it was therefore probable he also had ischaemic heart disease. He opined in response that it was likely there could be an association but that this was not definite.
When cross-examined regarding whether there was an identifiable cause for Mr Pringle's atrial fibrillation, Dr Richards replied that atrial fibrillation could occur without underlying disease.
EVIDENCE OF DR M BURNS, OCCUPATIONAL PHYSICIAN
Dr Burns produced a report dated 11 June 1999 that was before the Tribunal as Exhibit R3. Dr Burns reported on Mr Pringle's various disabilities and concluded the section headed "Ischaemic Heart Disease and Atrial Fibrillation" as follows:
"He reports that currently he does not have regular chest pain but he does get short of breath. His current medications include Cartia, Losec, Caltrate, Betamin, Quinoctal, and Panedeine Forte. It should be noted that none of these medications is for a rhythm disturbance."
Dr Burns also opined about Mr Pringle's capacity to work concluding that:
"With respect to employment, it is obvious that Mr Pringle's current medical conditions would make it impossible for him to return to work for even eight hours per week. I believe that his major medical problems at the current time include his low back problems as well as his right leg and hip problems. These are in fact the disabilities which would make it impossible for him to return to work.
From the history I obtained from Mr Pringle today, though, I do not believe that this was the case in 1991 when he resigned from his job. At the time he did not have his fractured right hip and also did not have the cellulitis involving his right lower leg. Additionally his low back problems do not appear to have been so severe at that time…. Additionally, after he left he was able to do gardening for up to 20 hours per week, which would have been physically more demanding than the work he had been performing. I thus believe he would have been capable of continuing on with his job, except that he made the decision to resign."

STATEMENT OF PRINCIPLES No.141 OF 1996 CONCERNING ISCHAEMIC HEART DISEASE

I moved then to consider Mr Pringle's application by applying the relevant SoPs as I am required to do. I am mindful that the SoP concerning Ischaemic Heart Disease, which was current at the time of the decision of the Repatriation Commission, was No.141 of 1996. I noted that although the decision of the Repatriation Commission of 30 September 1997 did not specify which SoP was applied, I considered from the evidence before me that it was more likely than not to have been No.141 of 1996. SoP No.141 of 1996 was also applied by the Veterans' Review Board.
I am bound by the decision of Lee, Cooper and Kiefel JJ in Keeley (supra) and therefore apply No.141 of 1996 in relation to the applicant's claim noting that nothing that appears in any of the later SoPs would either advantage or prejudice Mr Pringle's position.
For the purposes of the SoP No.141 of 1996, ischaemic heart disease was defined as:
"a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen. Ischaemic heart disease is considered to be present when there is evidence of at least one of the following:
(i)        myocardial infarction (old or new);or
(ii)       angina; or
(iii)      arrhythmia with ECG evidence of myocardial ischaemia; or
(iv)      myocardial ischaemia (for example ischaemia cardiomyopathy);or
(v)       coronary occlusion."
The factors which must exist before it can be said that on the balance of probabilities ischaemic heart disease is connected with the circumstances of a veteran's relevant service are:
"5. …..
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
(b) …. (d)
(e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products for at least three years immediately before the clinical onset of ischaemic heart disease, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
…. (w)"
I had to examine the factors which must be present before it can be said that on the balance of probabilities ischaemic heart disease was connected with the circumstances of Mr Pringle's service. I took into account Mr Pringle's evidence about his smoking habits, and his questionnaire at T12.
I am mindful also that from the medical evidence before me I cannot be convinced on the balance of probabilities that Mr Pringle suffers ischaemic heart disease as distinct from atrial fibrillation. I was mindful that both Dr Neaverson the treating cardiologist and Dr Miller opined on risk factors and the fact that Mr Pringle was a candidate for ischaemic heart disease. That may be so. However the only record relating to the 1978 hospital admission did not mention ischaemic heart disease, and Mr Pringle did not come under Dr Neaverson's care until 1992. It was only in 1993 that Dr Neaverson wrote to Mr Pringle's general practitioner suggesting that "the aetiology of his atrial fibrillation is most likely ischaemic heart disease." Professor Richards did not agree at all and opined that Mr Pringle had lone atrial fibrillation. I accepted the evidence that ischaemic heart disease has on the balance of probabilities been present since 1992. I noted also at T16/61, that the Repatriation Commission accepted the clinical onset of ischaemic heart disease as occurring in March 1992. As noted above the factors in the SoP to be discussed are 5(a) and 5(e).
In regard to Factor 5(a), I found that there was no medical evidence before me to convince me to the requisite standard that Mr Pringle suffered hypertension before any onset of ischaemic heart disease.
I then turned to Factor 5(e) which makes the connection if the veteran has been smoking at least five cigarettes per day or the equivalent thereof, for three years immediately before the clinical onset of ischaemic heart disease, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation. I accepted Mr Pringle's evidence that he ceased smoking cigarettes at the time of his hospital admission with atrial fibrillation in 1978, and that he then smoked a few cigars until 1981. As I find on the medical evidence that Mr Pringle could not on the balance of probabilities have been suffering ischaemic heart disease before 1992, that is more than 10 years after the cessation of smoking, and he cannot meet the test in Factor 5(e).
Mr Pringle does not therefore meet the tests in the SoP for ischaemic heart disease. I noted that I have perused the later SoP concerning ischaemic heart disease and find that Mr Pringle would not be either advantaged or prejudiced were I not bound by Keeley (supra) and have to apply the SoP in force at the time of the decision of the Repatriation Commission in 1997.
STATEMENT OF PRINCIPLES N0.10 OF 1996 CONCERNING ATRIAL FIBRILLATION
The relevant SoP concerning Atrial Fibrillation in the case of Mr Pringle was No.10 of 1996 that was in force at the date of the Repatriation Commission decision. In this SoP Atrial Fibrillation was defined as follows: "… means an intermittent or sustained arrhythmia arising in the atria of the heart causing an irregularly occurring irregular ventricular response, attracting ICD code 427.31."
As to the Factors under Clause 5:
"The factors that must exist before it can be said that, on the balance of probabilities, atrial fibrillation … is connected with the circumstances of a person's relevant service are:
(a)suffering from cardiac disease at the time of the clinical onset of atrial fibrillation; or
(b)suffering from thyrotoxicosis at the time of the clinical onset of atrial fibrillation; or
(c) …."
I have considered all the applicant's oral and written evidence, and that of the medical practitioners whose evidence was before the Tribunal. To be able to meet the requirements of Factor 5 as noted above, and before it can be said that on the balance of probabilities Mr Pringle's atrial fibrillation was connected with the circumstances of his service, Mr Pringle must have been, [5(a)], suffering from cardiac disease at the time of clinical onset of atrial fibrillation or [5(b)], suffering from thyrotoxicosis at the time of clinical onset of atrial fibrillation. As none of the medical evidence suggested Mr Pringle may have been suffering from thyrotoxicosis, I turned my attention to Factor 5(a).
There was unfortunately little record of what Mr Pringle was suffering apart from atrial fibrillation when he was hospitalised in May 1978. The report of Dr Peak did not convince me on the balance of probabilities that Mr Pringle had ischaemic heart disease when he was admitted to hospital with atrial fibrillation in 1978.
I was mindful that Dr Neaverson, the treating cardiologist, has maintained that Mr Pringle had all the risk factors for ischaemic heart disease, and that he wrote to Dr Lahood, Mr Pringle's general practitioner, in 1993 saying that the aetiology of the veteran's atrial fibrillation was most likely ischaemic heart disease (Exhibit R4/121).

Dr Miller, a consultant physician who examined Mr Pringle on a medico-legal basis, contradicted himself, first opining that the veteran had not suffered ischaemic heart disease, then in his report of 29 September 1999, agreeing with Dr Neaverson to the extent of saying that the atrial fibrillation was due to myocardial ischaemia and that the first manifestation of Mr Pringle's ischaemic heart disease was in 1978. On the basis of the contradictions, I did not give much weight to Dr Miller's report.
I next considered the evidence of cardiologist Associate Professor Richards, who had not examined the veteran at all and prepared his report of 15 February 2000 (Exhibit R2) on the documents available to him. His report was however quite convincing in that he emphasised Dr Peak (1978) had not suggested that the atrial fibrillation which Mr Pringle developed while hospitalised was due to myocardial ischaemia. He emphasised, without rebuttal, that the 1992 exercise test did not suggest the presence of myocardial ischaemia and that the exercise test of January 1993 was recorded after Mr Pringle had taken Digitalis for his atrial fibrillation, thus acting to alter possible results. Professor Richards concluded that Mr Pringle had atrial fibrillation in the absence of structural or ischaemic heart disease.
Dr Burns who is an occupational physician, recorded in his report at Exhibit R3 that Mr Pringle does not have regular chest pain, and indeed Mr Pringle said he had not found it necessary to consult Dr Neaverson since 1996. Dr Burns also noted that none of the medication Mr Pringle takes is for a rhythm disturbance.
On the basis of the above, and it is of course difficult to ignore the opinions of a treating cardiologist in a case such as this, I find I am not convinced to my reasonable satisfaction that Mr Pringle meets the requirements of Factor 5(a), that is, that he was suffering cardiac disease at the time of clinical onset of atrial fibrillation.
WHETHER MR PRINGLE QUALIFIES FOR PENSION AT THE SPECIAL RATE PURSUANT TO SECTION 24 OF THE ACT
I turned next to consider Mr Pringle's eligibility to be paid the disability pension at the Special Rate pursuant to section 24 of the Act.
I was mindful of earlier discussion regarding the eligibility of Mr Pringle for pension at the EDA rate and noted however that Mr Colborne conceded on behalf of the veteran that he did not have a Lifestyle rating of six, and did not qualify for EDA. I made no further inquiries into the qualification for EDA, and did not consider Mr Pringle's eligibility for EDA in coming to my conclusions.
I noted the agreement of the parties and accepted that the earliest date of effect in this matter, should the application be successful, was 5 November 1996.
I moved then to consider pension at the Special Rate. As relevant section 24 follows:
"24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)    the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
……
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings of his or her own account, by reason of that incapacity if:
(i)    the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)   the veteran had turned 65 before the claim or application was made; and
(c)   paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)   the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)   because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)    the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)   when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another    person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)   section 25 does not apply to the veteran.
……."
I was mindful that section 24(2A) of the Act applied to the veteran's situation. Mr Pringle satisfied section 24(2A)(a) of the Act in that he was receiving pension and applied to have it increased (section 24(2A)(b) of the Act). His date of birth was 2 July 1926, and he was well in excess of 65 years of age when his application was made.
I moved then to consider the veteran in relation to the requirements of section 24(2A)(c) of the Act which referred me back to sections 24(1)(a) and (b). There was no disagreement between the parties, and I accepted that Mr Pringle had been found to be at least 70 percent incapacitated in a previous determination.
I then had to consider whether pursuant to section 24(1)(b) of the Act Mr Pringle was totally and permanently incapacitated, that is, that his incapacity from war-caused injury or war-caused disease, or both, was of such a nature as of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
I also had to consider whether Mr Pringle pursuant to section 24(2A)(d) "because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ('last paid work') that the veteran was last undertaking before he or she made the claim or application."
In this connection, I found from my observations as well as Mr Pringle's evidence and the opinion of Dr Burns, that the veteran was most alert and able to communicate. Dr Burns also considered that Mr Pringle could have worked part-time at the time he left Pakrite. I noted the` respondent's submissions were to the effect that the veteran did not want to accept part-time work because that would interfere with the pension his wife was receiving.
In the paragraphs which precede this section, I had found that Mr Pringle did not satisfy the tests for the SoPs concerning ischaemic heart disease and atrial fibrillation. I turned then to consider his eligibility for pension at the Special Rate in connection with his disabilities which had been accepted as war-caused at an earlier time. These were (as listed in the front of the T-documents); fracture of the tibia fibula (right), strain medial ligament of the left knee, osteoarthritis of the right ankle and right foot drop, fracture of the right hip, cellulitis and abscess of the right leg, lumbar spondylosis, and chronic solar skin damage.
I was mindful that the Tribunal in a decision of 4 September 1998 determined that the conditions of fractured right hip, osteoarthritis of the right ankle, and right foot drop were service related and that as a result of this decision, Mr Pringle's pension was assessed at 100 percent of the General Rate effective 15 December 1995.
I had the T-documents, exhibits, medical reports and other written evidence regarding Mr Pringle's accepted medical conditions before me in considering my decision. I also had of course the evidence Mr Pringle gave at the Tribunal regarding how his disabilities affected him.
I noted the detailed discussion of Mr Pringle's lumbar spondylosis by the Veterans' Review Board, which then decided that his lumbar spondylosis satisfied the relevant SoP and was war-caused pursuant to the Act.
The Veterans' Review Board recorded of Mr Pringle at T22/91:
"His job required him to sit down a lot at a computer. His legs were aching and he suffered pain across his back. He decided himself to give it away. Mr Pringle said that he would go back to work tomorrow if he could, but he couldn't get mobile enough at work. Mostly when he had to take time off, it was because he couldn't get mobile in the mornings. He was getting very severe cramps in his legs, the right being worse than the left. He is attending a vascular surgeon, Dr Michael Stephen, for a blood flow problem in his legs and Professor Ehrlich for the condition of nerves in his legs…"
I noted that the Veterans' Review Board also had before it a letter of Greg Reid, a director of Pakrite at the time Mr Pringle worked there in which he stated that Mr Pringle was employed as a sales liaison officer from 27 February 1980 to 13 September 1999, and that he left the company "owing to the effects of his war-related disabilities." The Veterans' Review Board had however not been satisfied that Mr Pringle satisfied the tests for section 24 of the Act.
I accepted from the reports before me that Mr Pringle suffered pain due to his lumbar spondylosis and other war-caused disabilities and that he had used a walking stick for many years. I noted that he had joined Pakrite seeking a sedentary position. The evidence of Mr Pringle before me was that he resigned from Pakrite in September 1991 because he could not sit for long periods and suffered pain in his back and limbs. I accepted his evidence that he could not be sure on a day-to-day basis when he would be able to attend at work, and had taken a large amount of sick leave. I considered Mr Pringle's employment at Pakrite, and his evidence that he had resigned in September 1991 because in the two years preceding that date he was having a lot of sick leave, and was not able to attend at work full-time. Mr Pringle's evidence (which I accepted), regarding part-time work was that he could have fulfilled the work requirements of part-time work, but that due to his war-caused disabilities, he could not be certain when he would be well enough to attend at work on a regular basis. The applicant said that he had pain in his limbs and had been short of breath. He felt therefore that he had no choice but to resign. I accepted the evidence that Pakrite did not cease trading until 1993. I noted that Mr Pringle's situation was quite different from that of the applicant in Sheehy v Repatriation Commission (1996) 66 FCA 569 where Mr Sheehy failed on appeal to the Full Court of the Federal Court to obtain pension at Special Rate. In Sheehy (supra), their Honours dealt with the issue of the applicant undertaking remunerative work which in fact was for quite a short period ( of weeks), because Sheehy found he was unable to perform the work. Mr Pringle, on the other hand has convinced me on the balance of probabilities that he was unable to continue the remunerative work he had been undertaking for the twelve years before he resigned due to the pain in his legs and back, and after a period of some two years where he had taken a large amount of sick leave.
I was persuaded by their Honours' at 299 in Birtlesv Repatriation Commission (1991) 33 FCR 290 who stated:
"What is involved in each case is ultimately a question of fact, namely, has the veteran by reason of his war incapacity been prevented from 'continuing' a type of remunerative work which he previously undertook (not being work undertaken only for a short period)? The word 'continuing' in this context is used to encompass the case where a veteran may be unable to find a similar kind of work by reason of that incapacity and as a result suffers the loss to which the paragraph refers. If the answer to the question be yes and other subparagraphs apply, then s 24 is applicable to that veteran."
Mr Pringle emphasised in his evidence that his resignation from his position was in no way age related. I noted that the Members of the Veterans' Review Board took into account in their decision not to grant Special Rate, the fact that there was no letter of resignation indicating Mr Pringle's reasons for leaving, and no sick leave records to show for what reasons sick leave was taken. I accepted Mr Pringle's evidence regarding these matters.
The respondent, relying on Dr Burns, submitted that the veteran had residual work capacity. I noted that Dr Burns had found that Mr Pringle was unable to return to work for even eight hours per week currently but that Dr Burns opined that this was not the case when he resigned from Pakrite in 1991. Dr Burns held this view due to his understanding of Mr Pringle's back problems which he said were not as severe at the time, and his mistaken belief that Mr Pringle could garden for 20 hours per week. I accepted Dr Miller and Mr Pringle's version of how he gardened, that is, sitting at a table potting plants while his wife worked in the garden.
I had the opportunity of assessing Mr Pringle's evidence and I accepted him as a witness of truth. I accepted from Mr Pringle's evidence that it was his accepted disabilities of lumbar spondylosis, and hip and lower limb conditions in particular which prevented him from carrying on his work at Pakrite after September 1991.
Mr Pringle gave evidence that he had been offered work by the new proprietors of Pakrite in 1993 which he could not accept. He had been employed for more than the ten years required to satisfy 24(2A)(g)(i), and was suffering a loss of income (section 24(2A)(e) of the Act). I accepted that due to the evidence given regarding the reasons for Mr Pringle ceasing work he satisfied the requirements of section 24(2A)(d) of the Act.
I was also mindful that in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J said with regard to the "alone" test:
"The tendency of that is to distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
I was satisfied that Mr Pringle's incapacity from war-caused disabilities was of such a nature as of itself alone to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week. I found from his evidence and the submissions made on his behalf that he could not undertake remunerative work for more than eight hours per week, and that he left Pakrite because of his war-caused disabilities.
It was undisputed that section 25 did not apply to the veteran.
I find therefore that notwithstanding Mr Pringle did not satisfy me on the balance on probabilities, and with reference to the relevant SoPs that any ischaemic heart disease or atrial fibrillation he may suffer is war-caused, he is eligible for pension at the Special Rate on and from 5 November 1996.
DECISION
The decision of the Repatriation Commission as affirmed by the Veterans' Review Board to find that Mr Ronald Melville Pringle's ischaemic heart disease and atrial fibrillation are not war-caused is affirmed.
The decision to refuse the disability pension at the Special Rate is set aside, and the Tribunal finds that the disability pension is payable to Mr Ronald Melville Pringle at the Special Rate on and from 5 November 1996.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing     9 March 2000 – Written Closing
Submissions 30 March 2000
Date of Decision  9 June 2000
Counsel for the Applicant        Mr C Colborne
Solicitor for the Applicant         Ms G Peres De Costa
Counsel for the Respondent    N/A
Advocate for the Respondent Mr P Godwin