VETERANS’ AFFAIRS – war-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran’s condition of idiopathic fibrosing alveolitis (IFA) was defence-caused – Statement of Principles requires showing of service-related inability to obtain appropriate clinical management – proper meaning of “appropriate clinical management” - whether evidence to support causal link between failure to diagnose condition and eligible defence service – whether failure to obtain appropriate clinical management a material contributing or aggravating factor of the IFA – relevance of extraneous aggravating factors or stimuli
Veterans’ Entitlements Act 1986 (Cth) s 70, s120, s120B(3), s196B
REPATRIATION COMMISSION v KAREN LAUREEN MONEY AS EXECUTOR OF THE ESTATE OF DENNIS JOHN MONEY
WAD 59 of 2008
FINN, DOWSETT AND EDMONDS JJ 13 FEBRUARY 2009 ADELAIDE (VIA VIDEO LINK TO PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 59 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION Appellant
AND:
KAREN LAUREEN MONEY AS EXECUTOR OF THE ESTATE OF DENNIS JOHN MONEY Respondent
JUDGES:
FINN, DOWSETT AND EDMONDS JJ
DATE OF ORDER:
13 FEBRUARY 2009
WHERE MADE:
ADELAIDE (VIA VIDEO LINK TO PERTH)
THE COURT ORDERS THAT:
1. The appeal be allowed;
2. The decision of the Tribunal be set aside; and
3.The decision be remitted to the Tribunal for further hearing and determination according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 59 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
REPATRIATION COMMISSION Appellant
AND:
KAREN LAUREEN MONEY AS EXECUTOR OF THE ESTATE OF DENNIS JOHN MONEY Respondent
JUDGES:
FINN, DOWSETT AND EDMONDS JJ
DATE:
13 FEBRUARY 2009
PLACE:
ADELAIDE (VIA VIDEO LINK TO PERTH)
REASONS FOR JUDGMENT
FINN AND EDMONDS JJ:
Dennis Money, who died after the lodging of this appeal, was incapacitated from idiopathic fibrosing alveolitis (“IFA”), a lung disease of unknown origin. The primary issue in this appeal is whether that incapacity was defence-caused for the purposes of s 70 of the Veterans’ Entitlements Act 1986 (Cth). The Administrative Appeals Tribunal determined it was. The primary judge affirmed that decision on an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The correctness of their respective decisions required consideration both of the interaction of a number of provisions of the VE Act and…
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.
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AGLC
Repatriation Commission v Money [2009] FCAFC 11
Case
[2009] FCAFC 11
Decision Date
CaseChat Overview and Summary
In the case of Repatriation Commission v Money, the central issue revolved around the adequacy of clinical management provided to Mr Money during his service, specifically concerning his interstitial lung disease (IFA), and whether this inadequacy could be considered an aggravating factor of his condition. The matter was appealed to the court, where the primary judge's decision was reviewed. The primary judge dismissed the appeal, affirming the Tribunal's findings that Mr Money did not receive appropriate clinical management during his service, and that this lack of management aggravated his condition. The appellant challenged several aspects of the Tribunal's findings, including the interpretation of "appropriate clinical management" and the connection between the systemic failures within the Navy's medical system and Mr Money's condition.
The court addressed the primary judge's interpretation of "appropriate clinical management," which the court found to be inclusive of not only therapeutic treatment but also advice on symptom management and other measures to improve quality of life. This interpretation was consistent with Dr Waring's expert opinion, who concluded that Mr Money did not receive appropriate clinical management. The court also considered the systemic failures within the Navy's medical system, noting that Mr Money was reliant on the Navy's medical services during his service and that these systemic issues constituted "occurrences" within the meaning of s 196B(14). The court found that the Tribunal's conclusion that the clinical management of Mr Money's IFA was inadequate was supported by the evidence, particularly Dr Waring's expert opinion. Finally, the court dismissed the argument that Mr Money's smoking could not be considered an aggravating factor of his IFA, finding that a slow worsening of the condition still constituted a worsening.
Ultimately, the court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for further hearing and determination according to law.
Orders
Orders of the court
1. The appeal be allowed;
2. The decision of the Tribunal be set aside; and
3. The decision be remitted to the Tribunal for further hearing and determination according to law.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
In March 2002, Mr Money moved to Geraldton, and there began seeing a local general practitioner, Dr C Y Chin. Dr Chin referred Mr Money to Dr Justin Waring, a respiratory physician, in order to establish the cause of his clubbing. Mr Money’s first appointment with Dr Waring was sometime in June 2002. Dr Waring later had a lung biopsy done and on 9 December diagnosed Mr Money’s condition as IFA. The Medical Evidence Concerning Mr Money’s Past “Clinical Management” The principal expert evidence on this matter was given by Dr Waring in two reports, one provided to the Department of Veterans’ Affairs in 2004; the other, to Mr Money’s representative at the Tribunal in 2005. In light of the appellant’s contentions, it is necessary to refer to these in some detail. The 2004 report responded to a series of questions asked by the Department. The following were among the opinions stated:Appropriateness of the clinical management provided to Mr Money during his defence service. I believe clinical management should be considered in terms of investigation, diagnosis, treatment, and prognostic advice. In this regard Mr Money did not receive appropriate clinical management, as he did not have the appropriate investigations, the diagnosis of interstitial lung disease was not made, and he was not given prognostic advice in relation to this condition because it was not diagnosed. In my opinion he did, serendipitously, receive appropriate treatment, insofar as, it is now clear that the correct treatment was to do nothing, even though this would probably not have been the approach in the 1970’s if the condition was diagnosed then. Under the heading “Investigation and Diagnosis” Dr Waring observed that Mr Money’s medical record during his service included several pieces of evidence on multiple occasions (to which he referred), indicating that his interstitial lung disease was present during that service. He considered that while each of these signs could be explained away individually (as occurred), the combination of signs was highly suggestive of pulmonary fibrosis. On the subject of “Treatment” he commented:In the 1970’s the accepted treatment of idiopathic pulmonary fibrosis was immunosuppressive therapy, usually in the form of high dose prednisolone. It is likely that if this condition had been recognised at that time in a young man, he would have been offered this treatment. In retrospect it is now clear that this would have been inappropriate treatment and the fact that he received no treatment is serendipitously appropriate. … Having said this, the majority of chest physicians still consider a trial of prednisolone therapy, especially in young otherwise fit patients, who are likely to tolerate the drug relatively well. Mr Money has not received this therapy from me, because of the second reason, which is the fact that he has very slowly progressive disease. It is extremely unusual for UIP to progress as slowly as what is apparent from Mr Money’s 30 year course. Certainly in the two years that I have been monitoring his condition, there has been no deterioration. This would not have been expected if the condition was diagnosed in the 1970’s, however, it is now clear in retrospect that the potentially serious side effects of prednisolone therapy, would have out-weighed any benefit he may have received from this treatment in the 1970’s, given that there has been minimal deterioration for the drug to prevent.
Decision
Reasons for decision
FINN, DOWSETT AND EDMONDS JJ
The Tribunal was, in consequence - … satisfied that the applicant did not obtain appropriate clinical management for his disease of idiopathic fibrosing alveolitis which arose during Eligible Service (but was not caused by that service) and that because of this inability, the condition which through its pathology caused the deterioration of his pulmonary function, was aggravated – in the sense of being “made worse than it otherwise would have been” – by the circumstances of his service within which the Navy’s medical system, on this particular occasion, failed to deliver appropriate clinical management to the applicant for his disease of idiopathic fibrosing alveolitis: Reasons: [82].THE PRIMARY JUDGE’S DECISION Nine grounds of appeal were prosecuted before her Honour, four of which claimed that there was no evidence capable of supporting relevant findings of the Tribunal. All were rejected and the application was dismissed. For present purposes it is only necessary that we note the following aspects of the primary judge’s reasons. Each relates to a ground or grounds of appeal. (i) Of the meaning of “appropriate clinical management”, her Honour concluded (at [39]):… the plain meaning … would include not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition. If the phrase “appropriate clinical management” was intended to be limited to active treatment, one might ask why the phrase “appropriate clinical treatment” was not used in its place. Dr Waring did not give the phrase this narrow meaning. He expressed his opinion in two reports that Mr Money had not received appropriate clinical management while at the same time expressing doubt that there was any available treatment for IFA. (ii) While accepting that the Tribunal made no express findings as to why the identified systemic failures in the naval medical system presented a barrier to Mr Money receiving appropriate clinical management, the primary judge considered it was implicit in the Tribunal’s reasons that Mr Money was reliant upon the Navy’s medical system during his period of service. She observed (at [42]):As a matter of practical reality, a person in Mr Money’s position could not reasonably have been expected to take steps to obtain medical care beyond that offered by the Navy: see Brew [(1999) 94 FCR 80] at 88.(iii) In considering whether inappropriate clinical management had aggravated Mr Money’s IFA, her Honour referred to Dr Waring’s two reports. In the first of these he indicated that “the lack of appropriate management may have, but probably has not, aggravated his condition” (emphasis in original); while in the second he was slightly more positive about prednisolone therapy. Her Honour went on to note that if a diagnosis of the disease had been correctly made at the time, Dr Waring considered “a reasonable course of action would have been to recommend that Mr Money no longer serve as a submariner”. The primary judge also noted the Tribunal’s finding that Mr Money’s smoking “accelerated the natural course of his IFA”. In responding to the appellant’s objection that smoking was not a factor in the SoP, her Honour commented (at [48]):I do not accept that the Repatriation Medical Authority undertakes to determine every aggravating factor of a condition for which it issues a Statement of Principles. Rather, its task, as laid out in s 196B(3) is to determine whether a particular condition can be related to service. A Statement of Principles is not a conclusive statement of the factors that may aggravate a disease; rather, it is a statement of the factors that may connect a disease to service. The Repatriation Medical Authority may well be of the opinion that a factor aggravates a disease or condition but that such a factor does not raise a connection with defence service. To illustrate this point, the applicant’s written submissions annex a number of Statements of Principles for different respiratory conditions. Many of them include smoking or exposure to specific irritants as factors that raise a connection with defence service. None of them include exposure to cold or over-exertion. It does not follow that these would not aggravate such conditions. A finding that providing advice to avoid a factor that is not included within a Statement of Principles would constitute appropriate clinical management of a condition does not undermine the regime of Statements of Principles in the way that the applicant suggests.(iv) In relation to the question whether the “factor” of inability to obtain appropriate clinical management of IFA was in fact related to Mr Money’s defence service in a way contemplated by s 196B(14), the primary judge noted that subpara (14)(a) referred to a factor resulting from “an occurrence that happened while the person was rendering … service”. Her Honour went on to note the Tribunal’s explicit findings and examples of systemic failures in the Navy’s medical management structure which she characterised as “occurrences while [Mr Money] was serving in the Navy”: [54]. Her Honour went on to indicate that the Tribunal’s conclusion that the clinical management of Mr Money’s IFA by naval medical staff was inadequate, was sufficient to satisfy the requirement of s 196B(14). That conclusion was based on its analysis of the Navy’s medical records and Dr Waring’s expert opinion that the IFA could and should have been diagnosed while Mr Money was serving in the Navy. There was, in other words, material to support the Tribunal’s conclusion. (v) It was contended at the hearing below that the Tribunal could not reasonably make a finding that Mr Money’s smoking was causally related to his service and “accelerated the natural course of his IFA”. The basis for the contention was that there was no material before the Tribunal to the effect that Mr Money’s IFA had worsened during his defence service. Rather, the evidence was that the course of his IFA has been “unusually slow”. Her Honour’s response was:Plainly, a slow worsening is still a worsening. By its very terms, this submission must fail.THE APPEAL