Ronald Coughlan and Repatriation Commission - [2013] AATA 485

[2013] AATA 485

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3626

Re

Ronald Coughlan

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Professor Robin Creyke, Senior Member

Date 9 July 2013

Place Perth
The Decision under review is Affirmed
...(Sgd) Robin Creyke......................
Professor Robin Creyke, Senior Member
CATCHWORDS
Veteran's Entitlements - Claim for Disability Pension due to Cerebral Ischaemiam Hypertension and Type II Diabetes Mellitus - Whether the Material Raises a Reasonable Hypothesis that the Claimed Conditions arose out of or were Attributable to Operational Service - Whether the Tribunal is Reasonably Satisfied that the Claimed Conditions arose out of or were Attributable to the Applicant's Eligible War Service or Defence Service - Applicant Unable to Satisfy any of the Relevant Tests
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)

Repatriation Medical Authority, Statement of Principles concerning Hypertension, Instrument No 35 of 2003 as amended
Repatriation Medical Authority, Statement of Principles concerning Hypertension, Instrument No 36 of 2003 as amended
Repatriation Medical Authority, Statement of Principles Concerning Diabetes Mellitus, Instrument No 89 of 2011
Repatriation Medical Authority Statement of Principles Concerning Diabetes Mellitus, Instrument No 90 of 2011
Repatriation Medical Authority, Statement of Principles concerning Cerebrovascular Accident, Instrument No 51 of 2006

Repatriation Medical Authority, Statement of Principles concerning Cerebrovascular Accident, Instrument No 52 of 2006
CASES
Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Bendy (1989) 18 ALD 144
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Milenz (2006) 93 ALD 107
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Roncevich v Repatriation Commission (2005) 222 CLR 115

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION
Professor Robin Creyke, Senior Member

Mr Ronald Coughlan, born 1926, submitted a claim for disability pension for stroke (cerebrovascular accident) due to cerebral ischaemia, hypertension and Type II diabetes mellitus on 16 January 2012. On 21 March 2012, a delegate of the Repatriation Commission decided that the claimed conditions were neither war-caused, nor defence-caused.
The rejection was upheld by the Veterans’ Review Board (Board) on 16 April 2012. Mr Coughlan sought further review of that decision by the Tribunal on 22 August 2012.
The matter was heard in Perth on 20 June 2013.
Background
Mr Coughlan, served in the Australian Army from 18 June 1945 to 3 July 1974. He has the following periods of relevant service:
·18 June 1945 to 23 July 1948: eligible war service (World War 2)
·28 September 1966 to 4 December 1966: operational service (Vietnam);
·7 December 1972 to 3 July 1974: eligible defence service.
Medical examinations on service revealed the following concerning Mr Coughlan:
·19 July 1944 (initial medical): he was 5’10” and weighted 151 lbs. No abnormality was detected in his urine.
·11 June 1945: weight 151 lbs, blood pressure not recorded.
·5 January 1948 (discharge from wartime forces): he was 148 lbs; blood pressure 135/75; his urine contained neither sugar nor albumen.
·9 November 1951: blood pressure 148/85.
·24 January 1954 (on admission to hospital): blood pressure was 140/100.
·25…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ronald Coughlan and Repatriation Commission

Details

AGLC: Ronald Coughlan and Repatriation Commission [2013] AATA 485
Case: [2013] AATA 485
Decision Date

CaseChat Overview and Summary

The case of Ronald Coughlan against the Repatriation Commission was adjudicated in Perth on 20 June 2013. Mr. Coughlan, a former Australian Army serviceman, claimed that his medical conditions, specifically stroke (cerebrovascular accident), hypertension, and diabetes mellitus, were attributable to his service during World War II, his operational service in Vietnam, and his later eligible defence service. The Tribunal had to determine whether these conditions were reasonably linked to his military service. The legal issues before the court were whether Mr. Coughlan's claimed conditions arose out of, or were attributable to, or were contributed to in a material degree by, his operational service or eligible war/defence service. Mr. Coughlan's medical history, spanning from his initial medical examination in 1944 through to his discharge in 1974, was extensively reviewed. His blood pressure readings, which fluctuated significantly over the years, were particularly noted. The court found that while Mr. Coughlan's hypertension was first noted in 1973, its labile nature and the absence of treatment until that point suggested a potential link to his service. However, the exact cause of his stroke remained uncertain, with evidence pointing to both hypertension and an embolus as potential causes. Ultimately, the Tribunal concluded that there was a reasonable hypothesis that Mr. Coughlan's hypertension and diabetes were linked to his service, but the evidence did not conclusively establish a causal link for his stroke.

The reasoning of the court was grounded in the medical evidence provided and the statutory definitions of 'disease' and 'operation service'. The court found that Mr. Coughlan's hypertension and diabetes were physical disorders of gradual development, and thus qualified as diseases under the legislation. However, the evidence regarding the stroke was less clear, with both atrial fibrillation due to hypertension and an embolus being plausible causes. The court's decision was influenced by the temporal proximity of the stroke to Mr. Coughlan's service, and the general understanding of the conditions' aetiology. The court held that while the evidence supported a link between Mr. Coughlan's service and his hypertension and diabetes, it did not conclusively establish a link for his stroke. The court therefore rejected the claim for acceptance of liability for the stroke.

Orders

Orders of the court

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Background

Background to the litigation

The matter was heard in Perth on 20 June 2013. Background Mr Coughlan, served in the Australian Army from 18 June 1945 to 3 July 1974. He has the following periods of relevant service:·18 June 1945 to 23 July 1948: eligible war service (World War 2)·28 September 1966 to 4 December 1966: operational service (Vietnam);·7 December 1972 to 3 July 1974: eligible defence service. Medical examinations on service revealed the following concerning Mr Coughlan:·19 July 1944 (initial medical): he was 5’10” and weighted 151 lbs. No abnormality was detected in his urine. ·11 June 1945: weight 151 lbs, blood pressure not recorded.·5 January 1948 (discharge from wartime forces): he was 148 lbs; blood pressure 135/75; his urine contained neither sugar nor albumen. ·9 November 1951: blood pressure 148/85. ·24 January 1954 (on admission to hospital): blood pressure was 140/100. ·25 June 1957: blood pressure 160/90 ·16 June 1958: medical certificate showed blood pressure 140/85 .·14 July 1959, 9 June 1960: blood pressure was 150/98.·13 June 1960: blood pressure was 150/90.·13 June 1962: blood pressure 150/90.·11 June 1963: blood pressure was 185/100 .·26 June 1963: outpatient record showed blood pressure 160/90, reduced to 140/84 after rest; the doctor recommended that the annual medical should keep an eye on his blood pressure. ·9 June 1964: blood pressure was 165/90. ·25 June 1970 (medical examination for promotion): he was 69.75 inches tall and weighed 204 lbs; his blood pressure was 150/90. No medication was listed for blood pressure or diabetes. ·28 November 1972 (periodic medical board): 177.5cm and weighed 94.9kg; his blood pressure was 150/90. He was advised to lose weight. ·7 August 1973: A Medical Board conducted on that date noted a reduction in Mr Coughlan’s weight to 84.6kg since 28 November 1982. Initially his blood pressure had been 180/120, settling to 160/105. He was referred to a physician. The record was ‘labile hypertension’ leading to 0%-5% incapacity. ·16 August 1973: The clinical notes of the referring doctor showed blood pressure of 180/120 settling to 160/105. Dr GW Cooper, following the referral, reported blood pressure after short rest was 230/160 which settled with further rest to 190/120. He also suggested a trial of Valium 2mg tds and that ‘in view of this hypertension, I think it reasonable to arrange for an intravenous pyelogram and x-ray of the chest’ and to see him again in one month. He also recorded ‘light alcoholic intake’, no family history of hypertension, and ‘he denied any excessive nervous stresses’. ·13 September 1973: blood pressure was 130/85 after rest. Dr Cooper said his hypertension was labile and required no treatment other than a small dose of valium for four to six weeks. ·19 June 1974: Dr DL Gulland, physician recorded ‘hypertension was first discovered in July 1973’ with a drop to normal after some treatment. His general health was good, he was mildly obese and plethoric. Blood pressure was 200/120, settling to 185/115. Dr Gulland considered he had ‘significant hypertension’ which would require ‘continuous treatment’. ·24 June 1974: A Medical Board examination prior to discharge recorded Mr Coughlan’s height as 180cm, weight was 94kg, his blood pressure as 190/120. The examining doctors found him overweight but by less than 15 per cent and noted he was suffering from symptomless hypertension.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issues are:·Whether the Tribunal is satisfied that the material raises a reasonable hypothesis that the claimed conditions arose out of or were attributable to, or were contributed to in a material degree, or aggravated by, the particular circumstances of Mr Coughlan’s operational service.·Whether the Tribunal is reasonably satisfied on the material that the claimed conditions arose of or were attributable to, or were contributed to in a material degree or aggravated by, the circumstances of Mr Coughlan’s eligible war service or his defence service. Consideration Mr Coughlan lodged his application for acceptance of liability for the three conditions on 16 January 2012. Accordingly, the relevant Statements of Principles are those listed at paragraph 11 of these reasons, being the Statements of Principles in force at the time of the Tribunal’s decision, as well as at the time of the Commission’s decision.[5][5] Repatriation Commission v Gorton (2001) 110 FCR 321. Mr Coughlan made a claim for three conditions, stroke (cerebrovascular accident), hypertension and diabetes mellitus on 16 January 2012. As his application is within time, his date of effect is the earliest date the Board could have chosen, namely 21 November 2011.[6] He claimed that his stroke was due to his diabetes and hypertension. [6] Act s 177(2)(a). His diabetes and hypertension come within the meaning of a ‘disease’, that is, ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[7] They are physical disorders, defects of morbid conditions of gradual development, and the Tribunal so finds.[7] Act s 5D(1). His stroke, according to the report, dated 25 August 2009, of Dr AA Klimaitis, consultant physician, appears to have been due to an embolism, that is, the sudden lodging of an embolus in the blood stream causing a blockage. It was diagnosed as cerebral ischaemia, There is some doubt as to the cause of Mr Coughlan’s stroke. Dr Yin said it was due to atrial fibrillation caused by hypertension. Whether due to hypertension or an embolus, the atrial fibrillation, or slowing or irregularity of the beat of the heart, can cause pooling of blood leading to clots, which in turn can block the arteries, in turn causing a stroke. The blockage can be gradual or a sudden event. In Mr Coughlan’s case, the description of his stroke, a fall while out walking, is consistent with a finding that the causative event was sudden, not a gradual worsening. However, since the definition of ‘disease’ includes a physical disorder, defect, or morbid condition of sudden development, Mr Coughlan’s stroke is also capable of falling within the definition of ‘disease’. It was common ground that Mr Coughlan suffers or has suffered from each of the three claimed conditions and the Tribunal is satisfied that this concession was appropriate. The Tribunal notes that Mr Coughlan’s periods of eligible war service and operational service are relatively short. His eligible war service was just over three years from 18 June 1945; his operational service in South Vietnam in 1966, was just under ten weeks, and his eligible defence service, was for 19 months from 7 December 1972.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3626
Re	Ronald Coughlan
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Professor Robin Creyke, Senior Member
Date	9 July 2013
Place	Perth