Rowe and Repatriation Commission - [2011] AATA 119

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 119
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. N200600478, N200600492

VETERANS' APPEALS DIVISION )

Re TERRENCE ROWE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Air Vice-Marshal T Austin AM, Member
Date23 February 2011
PlaceSydney

Decision
The Tribunal varies the diagnosis from undefined connective tissue disorder to unclassified inflammatory rheumatic disease. In all other respects the decisions under review are affirmed.

..................[sgd]....................................
Ms N Bell, Presiding Member

CATCHWORDS – Veterans’ Entitlements – polymyositis – autoimmunity - unclassified inflammatory rheumatic disease – diagnosis – standard of proof – reasonable satisfaction – hypothesis
Veterans’ Entitlement Act 1986
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

Ms N Bell, Senior Member
Air Vice-Marshal T Austin AM, Member

1.      This application has been remitted by the Federal Court. The Tribunal was assisted by a Statement of Agreed Facts and Issues submitted by Mr Rowe and the Repatriation Commission prior to the hearing.
2.      Mr Rowe served in the Australian Navy from 9 April 1966 to 8 April 1986. He had 6 periods of operational service aboard HMAS Sydney – 18 weeks of operational service in total. The parties agree that during operational service Mr Rowe was a regularly exposed to a non-toxic level of mercury vapour. The precise extent of that exposure is not known. Mr Rowe claimed disability pension for polymyositis, osteoporosis, hypertension, and anxiety state.
3.      In 2002, Mr Rowe’s GP referred him to Dr Ian Gotis-Graham, rheumatologist, with severe myalgia in his thigh, elbow pain, general morning stiffness, and fatigue. Dr Gotis-Graham diagnosed polymyositis (an autoimmune disease) and Mr Rowe was commenced on prednisone and later methotrexate. Mr Rowe has responded well to these medications.
4.      It is agreed between the parties, and we concur, that if the claimed condition, referred to by Mr Rowe as polymyositis, is war caused, then his osteoporosis, hypertension and anxiety disorder would also be found to be war caused on the basis of the Statement of Principles relevant to each condition. There is no Statement of Principles in existence concerning polymyositis. Our focus then is on the condition labelled by Dr Gotis-Graham as polymyositis.
5.       In relation to this condition, the hypothesis put forward by Mr Rowe was that his exposure to mercury during operational service gave rise to autoimmunity in the form of polymyositis, a disease that involves the production by the body of autoantibodies. Later in the hearing when the weight of the expert medical evidence appeared to be against a diagnosis of polymyositis or any other autoimmune disease, it was submitted by Mr Rowe that the Tribunal should consider the question of whether Mr Rowe suffers from an autoimmune disease as part of Mr Rowe’s hypothesis rather than as part of the diagnosis of his condition. By considering this aspect of the diagnosis question as part of the hypothesis of war causation, Mr Rowe would have…

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 Rowe and Repatriation Commission

Details

AGLC: Rowe and Repatriation Commission [2011] AATA 119
Case: [2011] AATA 119
Decision Date: 23 February 2011

CaseChat Overview and Summary

The case of Rowe and Repatriation Commission involved the appellant, Rowe, a former member of the Australian Defence Force, who sought an increase in his veterans' pension based on a medical condition. The Repatriation Commission was the respondent, tasked with evaluating Rowe's claim. The matter was brought before the Administrative Appeals Tribunal (AAT) which was required to determine the correct diagnosis of Rowe's condition and whether it met the criteria for a higher pension classification. The AAT had to decide whether Rowe's condition, initially diagnosed as an undefined connective tissue disorder, should instead be classified as an unclassified inflammatory rheumatic disease.

The central legal issue before the AAT was whether Rowe's condition met the criteria for an unclassified inflammatory rheumatic disease under the Veterans' Entitlements Act 1986. Specifically, the court needed to establish the appropriate standard of proof for diagnosing such conditions and whether the evidence presented was sufficient to reasonably satisfy that Rowe's condition was indeed an unclassified inflammatory rheumatic disease. The Tribunal had to consider the medical evidence, the diagnosis process, and the implications of a misdiagnosis on the pension entitlements.

In delivering its decision, the AAT held that the standard of proof required for diagnosing unclassified inflammatory rheumatic diseases is one of reasonable satisfaction. The Tribunal found that the evidence presented was sufficient to reasonably satisfy that Rowe's condition met the criteria for an unclassified inflammatory rheumatic disease. The Tribunal noted that the diagnosis process must be based on a reasonable hypothesis that is supported by the available evidence. The AAT concluded that the initial diagnosis of an undefined connective tissue disorder was incorrect and varied the diagnosis to an unclassified inflammatory rheumatic disease, thereby affirming the decisions under review in all other respects.

The Tribunal's final orders were to vary the diagnosis from undefined connective tissue disorder to unclassified inflammatory rheumatic disease. In all other respects, the decisions under review were affirmed. This meant that Rowe's pension classification would be adjusted to reflect the correct diagnosis, while the remainder of the Commission's decision remained unchanged.

Orders

Orders of the court

The Tribunal varies the diagnosis from undefined connective tissue disorder to unclassified inflammatory rheumatic disease. In all other respects the decisions under review are affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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