Richards and Repatriation Commission (Veterans' entitlements) - [2017] AATA 560

Richards and Repatriation Commission (Veterans' entitlements) [2017] AATA 560 (27 April 2017)
Division:Veterans' Appeals Division
File Number: 2015/1758
Re:Janet Richards
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:27 April 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]...................................................................
Miss E A Shanahan, Member
REPATRIATION – Application for an increase in pension to either intermediate or extreme disablement adjustment rate – Veteran deceased in the course of the assessment period – wife as personal legal representative continuing claim – cause of death widespread metastatic carcinoma of the colon – claim that the terminal back pain was due to accepted condition of lumbar spondylosis – chemotherapy, radiotherapy plus further surgical intervention over a period of three and a half years – criteria for extreme disablement rate not met – decision affirmed
Legislation
Veterans’ Entitlements Act 1986
Cases
Raisbeck v Repatriation Commission (1993) 31 ALD 704
Re Chidley and Repatriation Commission [2011] AATA 905
Secondary Materials
Second Reading Speech Veterans’ Affair Legislation Amendment Bill 1988, Volume 163 20 October 1988, 2034
REASONS FOR DECISION
Miss E A Shanahan, Member
27 April 2017

On 27 August 2012 Mr John Richards lodged a claim with the Department of Veterans’ Affairs that his carcinoma of the colon and back problems were war-caused. He also sought an increase in the rate of his pension to that of the intermediate rate or, in the alternative, the extreme disablement adjustment rate (EDA rate). The Department accepted that the back problem, diagnosed as lumbar spondylosis with L4/5 disc degeneration, was war-caused because Mr Richards had been required to carry heavy weights during his service in Vietnam in 1968. The Department rejected his claim for carcinoma of the colon. Mr Richards’s pension continued at 100 per cent of the general rate.
The Department had accepted that Mr Richards suffered the following war-caused conditions:
·Post-Traumatic Stress Disorder;
·Lumbar spondylosis with L4/5 disc degeneration;
·muscle tension headaches;
·Erectile dysfunction;
·Bilateral sensorineural hearing loss;
·Keratoses follicularis; and
·Tinea.
Of these accepted conditions, his major debilitating war-caused diseases were the post- traumatic stress disorder and the erectile dysfunction.
Mr Richards sought a review of the decision with respect to the carcinoma of the colon and denial of the payment of pension at an intermediate rate. On 28 June 2013 Mr Richards withdrew his application in relation to the carcinoma of the colon. Mr Richards died from widespread metastatic carcinoma of the colon on 15 July 2014.
Mrs Janet Richards, as Mr Richards’ widow and personal legal representative, continued his application for review by the Veterans’ Review Board (VRB). On 4 December 2014 the VRB affirmed the original decision.
Mrs Richards lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 14 April 2015.
At the hearing of this matter Mrs Richards was represented by Ms Fiona Ryan of counsel instructed by Williams Winter Solicitors. Mr Ken Rudge, a lawyer of the Advocacy Branch of the Repatriation Commission, appeared for the respondent.…

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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Details

Case: [2017] AATA 560
Decision Date: 27 April 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Richards' widow, Mrs. Janet Richards, following the Repatriation Commission's refusal to grant an entitlement to an Exceptionally Disabled Allowance (EDA) for the period between 27 May 2012 and Mr. Richards' death on 15 July 2014. The dispute centred on whether Mr. Richards' accepted war-caused conditions, specifically post-traumatic stress disorder (PTSD) and associated conditions, were a contributing factor to his severe disablement during this period, particularly in relation to his back pain and carcinoma of the colon. The case was heard by Miss E A Shanahan, Member, of the Tribunal.

The Tribunal was required to determine whether Mr. Richards' lumbar spondylosis, which manifested as back pain, was a war-caused condition or a contributing factor to his overall disablement. Furthermore, the Tribunal had to consider whether his carcinoma of the colon, diagnosed in October 2010, was a war-caused disease, and if so, whether it contributed to his severe disablement. The central legal issue was whether the accepted war-caused conditions were a sufficient cause for the grant of an EDA, which requires a severe disablement.

The Tribunal's reasoning focused on the medical evidence and the timeline of Mr. Richards' conditions. While the family reported long-standing back pain, the first medical recording of back pain by his general practitioner was in October 2011, nearly a year after his colon cancer diagnosis. The Tribunal noted that despite the reported pain, Mr. Richards remained active in his work, gardening, and social activities until around 1990. The Tribunal also considered the advanced stage of his colon cancer, which had spread to lymph nodes and other areas, causing obstruction of his left ureter due to retroperitoneal malignant invasion. The Tribunal accepted that Mr. Richards had radiologically mild lumbar spondylosis with a disc bulge, but the symptoms were not consistently recorded as severe or directly attributable to this condition until late in his illness, and the significant disablement appeared to be primarily linked to the progression of his cancer.

The Tribunal determined that the evidence did not establish that Mr. Richards' accepted war-caused conditions were a contributing factor to his severe disablement during the assessment period. Consequently, the claim for an EDA was not granted.

Orders

Orders of the court

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Background

Background to the litigation

As Mr Richards had lodged his original claim in August 2012 and was successful with respect to the back pain/spondylosis which was effective as of 27 May 2012, the assessment period under consideration is from 27 May 2012 until the time of Mr Richards’s death on 15 July 2014. At the time the application was lodged Mr Richards was 65 years and 11 months old. Mr Richards had sold his interest in the real estate agency Hall and Hall in December 2013. However, as part of the sale he was required to continue to work as a consultant for eighteen hours per week to assist the new owners. BACKGROUND TO THE APPLICATION Mr Richards served in Vietnam for 11 months in 1968, performing the duties of a forward scout. He had been confronted face-to-face with a young Viet Cong male and had been forced to shoot and kill this young man. Mr Richards was diagnosed with post-traumatic stress disorder (PTSD) by Dr Pomorin, a psychiatrist, in 2004. Dr Pomorin considered Mr Richards’s erectile dysfunction to be related in part to the anxiety component of his PTSD and also to his age. Despite PTSD, Mr Richards had a most successful career as a real estate agent in Mount Eliza. He was held in high esteem by his employees and the local business community. Unto the mid-1980s or later he was very active socially, playing tennis on a regular basis, albeit as a social event (despite his wife’s statement that he was an A Grade tennis player); and taking great delight in his gardening pursuits and listening to classical music, which he also used to counteract his tinnitus. The family lived in in Mount Eliza, in what appears to have been a large house, with a tennis court. They leased some 50 adjoining acres where they ran horses, as Mrs Richards and her children were active equestrians. They also had 20 to 30 head of Angus cattle. Mr Richards had in earlier years been involved in horse riding. From late 2013, when Mr Richards was severely disabled, he was unable to perform any animal husbandry tasks. Mr Richards had received appropriate treatment for his accepted war-caused medical conditions. He saw a psychiatrist on a regular basis, as well as his general practitioner, who provided various prescriptions including Viagra. On 9 December 2008 Mr Richards first reported bleeding from his rectum to his general practitioner Dr Warfe. Dr Warfe’s clinical notes state Mr Richards was to undergo a colonoscopy. This does not appear to have occurred. He presented again in October 2010 with further bleeding from his rectum. He was referred for and underwent a colonoscopy and was found to have a large carcinoma of the left colon 60 centimetres from the anal verge. Mr Richards was referred to Professor Adrian Polglase for definitive surgery. Prior to surgery, he underwent CT scanning of his abdomen, pelvis and chest as staging investigations. The Tribunal has not been provided with the results of these CT scans. However, the Tribunal assumes they were clear, as on 7 November 2010 Professor Polglase performed a laparoscopic assisted left hemicolectomy. A large partially necrotic and ulcerated carcinoma was resected along with a regional lymph node clearance. On histopathology the left colonic mass was an adenocarcinoma that had invaded through the muscle coat of the bowel into the peri-colic fat and two satellite nodules were found outside the bowel in the abdominal mesentery fat. Six of the twenty-two lymph nodes resected were involved with cancer and there was histological evidence of venous invasion.

Evidence

Evidence Before The Court

As previously stated, DVA did not accept Mr Richards’s carcinoma of the colon was a war‑caused disease. EVIDENCE BEFORE THE TRIBUNALMrs Janet Richards Mrs Richards’s evidence is summarised under BACKGROUND TO THE APPLICATION she having confirmed her husband’s symptomatology throughout their married life, including the symptoms of PTSD, hearing defect, Tinea and fungal infection of groins and the development of carcinoma of the colon. It was her evidence that Mr Richards had suffered from back pain since the 1980s and frequently localised this to the right sacroiliac joint region. At times she had noted he walked with a limp but could not recall which leg was involved in the limp. Mrs Richards disagreed with Professor Richardson’s reports of March 2014 stating that Mr Richards was capable of walking three to four kilometres per day. She believed he needed assistance in every facet of daily living and could walk only short distances. She agreed that her husband’s back pain varied in intensity and was greatly improved after each bout of chemotherapy. She denied that he had ever suffered from referred pain to the lower limbs in the form of sciatica or real shooting pain, merely pain and a rash in his right groin. The right groin rash was diagnosed Keratosis Follicularis and had been accepted as a war-caused condition. In relation to her husband’s back pain, Mrs Richards gave evidence that they had had to obtain stiff-backed chairs and a sofa 12 to 18 months before he died and that when he drove his car he required a cushion behind his back. Mrs Richards estimated her husband’s erectile dysfunction had been present for years and that all sexual activity had ceased at the end of 2012. She also advised that her husband had stopped gardening 12 months before he died. Previously he had always mown the lawns and tended the flowerbeds. Mrs Richards told the Tribunal that her husband’s former employees still continued to visit her and assist in the gardening. During the 12 months prior to her husband’s death Mrs Richards had assumed responsibility for any long-distance driving such as visiting their daughter, who lives in the Macedon/Gisborne area. Mrs Sarah Williams Mrs Williams provided a statement dated 9 June 2015. In her evidence she confirmed that as a child she had been told that when playing tennis she should hit the ball directly back to her father as he could not run to return it. She had noted that after spraying two acres with Roundup in the 1990s her father had complained of backache. She confirmed that in the last year or two before her father’s death their mother drove to Gisborne and, as she described it, her father would hobble inside and fall asleep. In general her father’s mobility had been limited in the last year of his life and he was no longer able to walk the one kilometre circuit around her country property. She disagreed with Professor Richardson’s report that as of March 2014 her father was walking three to four kilometres per day. Referring to Mr Richard’s long-standing tinnitus Mrs Williams confirmed her mother’s evidence that he listened to television, the radio or classical music in order to dampen his tinnitus.Dr Laurie Warfe, treating general practitioner

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In response to the Respondent’s submissions, Ms Ryan again submitted that Mr Richards’ lumbar spondylosis did not have to be the only cause of his back pain; only a contributing cause. With respect to the Respondent’s lifestyle rating estimations, Mr Ryan drew the Tribunal’s attention to the entries and reports made by Professor Richardson at page 43 of Exhibit R3, recording the development of recurrent panic attacks occurring at night. These had settled since Ativan had been prescribed. She also drew attention to the fact that Mr Richards had been referred to the Oncology Clinics Victoria psychologist to help deal with his psychological issues. The Tribunal notes that this apparent deterioration had been attributed on 7 May 2013 to the stress placed on Mr Richards by his wife, who had been difficult throughout his illness. TRIBUNAL’S DELIBERATIONS The Tribunal’s determination is primarily dependant on the medical records, medical reports and opinions in order to determine whether the Mr Richards’ claim for EDA, continued posthumously by his widow, was due at least in part to his accepted war‑caused conditions. The Tribunal accepts that Mr Richards had radiologically mild lumbar spondylosis with L4/5 disc bulge/protrusion. However, the symptoms which may be attributable to these changes were not recorded by the treating general practitioner until 11 October 2011, when it was diagnosed as a back strain. The Tribunal does note that both Mrs Richards and her daughter, Mrs Williams, reported that he suffered from low back pain for many years. Mrs Richards’ evidence being that such was the case since she had first met him; and his daughter’s evidence of her awareness since about 1986. Despite the family’s report of symptoms, it would appear that Mr Richards remained active in terms of his work duties, his gardening and his regular social games of tennis, the latter at least until about 1990. The first recording of back pain by Dr Warfe was nearly one year after Mr Richards had been diagnosed with the Dukes C carcinoma of the colon. The classification of Dukes C was attracted by the fact that Mr Richards had a large bulky and ulcerated primary carcinoma with direct spread to the peritoneum overlying the large bowel, metastases in the lymph nodes and histological evidence of direct venous invasion. In this interval, Mr Richards had undergone 11 months of chemotherapy and several CT scans had revealed liver, lymph node and lung metastases; and by December 2011, CT scanning had shown retroperitoneal deposits in what was described as the root of the mesentery. The root of the mesentery is an anatomical structure arising from the posterior abdominal wall, where the peritoneum is reflected over the superior mesenteric artery and is intimately related to the second, third and fourth number vertebrae, the abdominal aorta and inferior vena cava, the lymphatic duct, the lumbar spine and both ureters. (see any recent edition of Grey’s Anatomy) In December 2011 Mr Richards’s left ureter was obstructed by extrinsic compression which according to the radiologists was due to retroperitoneal malignant invasion.