Rowe and Repatriation Commission
[2009] AATA 308
•4 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 308
ADMINISTRATIVE APPEALS TRIBUNAL ) No N 2006/0478
) No N 2006/0492
GENERAL ADMINISTRATIVE DIVISION ) Re Terrence Rowe Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Dr I Alexander, Member Date4 May 2009
PlaceSydney
Decision The Administrative Appeals Tribunal decides that:
(a) Mr Rowe’s undifferentiated connective disease was not caused by his war-service; and
(b) The decisions under review are affirmed.
.....................[sgd].........................
Dr I Alexander
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Disability pension – Claim that undifferentiated connective tissue disorder was war caused – Whether veteran suffers from a particular kind of disease – Whether facts give rise to a reasonable hypothesis – Whether the hypothesis is disproved beyond reasonable doubt – The decisions under review are affirmed
…
Veterans’ Entitlements Act 1986 – Sections 5, 120, 120A
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Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
…
REASONS FOR DECISION
4 May 2009
Dr I Alexander, Member background
1. Mr Rowe, the applicant, served in the Royal Australian Navy between 9 April 1966 and 8 April 1986.
2. For the purposes of the Veterans’ Entitlements Act 1986 (the Act) he had operational service in Vietnam on HMAS Sydney for approximately 18 weeks between February 1971 and December 1971.
3. During that time Mr Rowe served as a Dental Assistant and claims that as a result of mixing amalgam, an essential part of his duties, he was exposed to mercury vapour and that this exposure caused him to develop several diseases.
4. On 6 November 2002 Mr Rowe was diagnosed as suffering from “polymyositis” and was started on treatment with high dose corticosteroid in the form of “prednisone”.
5. On around 19 December 2002 Mr Rowe was started on treatment for hypertension that was said to have been caused by the corticosteroid therapy for his polymyositis.
6. In August 2003 Mr Rowe was noted to be suffering from osteoporosis which may have been caused by his treatment for polymyositis
7. In November 2003 Mr Rowe submitted a claim for medical treatment and pension for incapacity in respect of polymyositis and osteoporosis on the ground that these conditions were war caused (N2006/0492).
8. Subsequently in December 2004 he submitted an additional claim in respect of several conditions including hypertension, anxiety disorder and hepatitis A (N2006/0478).
9. The Repatriation Commission, the respondent, rejected both of Mr Rowe’s claims.
10. The decisions of the Commission were affirmed, as varied by the Veteran’s Review Board (VRB) and in these proceedings Mr Rowe is seeking review of the VRB decisions.
issues
11. Mr Rowe claims that he suffers from various diseases that are war caused.
12. The essence of his claim is that he suffers from a disease which was war caused and that this disease and its treatment have caused other diseases namely hypertension, osteoporosis and an anxiety disorder.
13. The claim for hepatitis A is no longer pressed.
14. The disease suffered by Mr Rowe has been described by various specialists as polymyositis, undifferentiated connective tissue disorder (CT disorder) and unclassified inflammatory rheumatic syndrome.
15. Mr Rowe prefers the diagnosis of polymyositis which is recognised as an auto-immune disease
16. This diagnosis was made in 2002 by Dr Gotis-Graham, Consultant Rheumatologist.
17. In the alternative Mr Rowe accepts the diagnosis of CT disorder but asserts that although the condition has not been clearly defined it is in fact an auto-immune disease.
18. The respondent accepts that Mr Rowe suffers from a disease but prefers the diagnosis of CT disorder and disputes that this condition is an auto-immune disease and that it is war caused.
19. It is common ground between the parties that Mr Rowe suffers from hypertension, osteoporosis and an anxiety disorder. There appears to be no dispute that the hypertension and the anxiety disorder are causally related to his CT disorder and its treatment. The position of the respondent in respect of the osteoporosis is not clear.
20. However at the hearing it was agreed by both parties that if the CT disorder suffered by Mr Rowe is found to be caused by war service then any other conditions that are dependant on this disorder should also be accepted and that it would be appropriate to remit the matter to the respondent for further assessment.
21. Therefore the central issues in the matter is the kind of disease suffered by Mr Rowe and whether that disease is war caused.
kind of disease?
22. The respondent contends that in order to determine whether Mr Rowe’s disease is war caused it is necessary to define the kind of disease suffered by him on the balance of probabilities. The respondent relies on the decisions of the Full Federal Court in Repatriation Commission v Colin Mack Cooke [1998] 1717 FCA (Cooke) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (Benjamin).
23. At this point it is helpful to revisit these two decisions.
24. In Cooke the Full Federal Court said that:
It is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease.
25. In Benjamin the Full Federal Court considered inter alia the question of “the kind of disease” contracted by a veteran and observed that :
The facts that the claim originally lodged by the Veteran referred only to ‘PTSD’ and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of ‘post traumatic stress disorder’ do not preclude the relevant decision-maker, be it the Commission or the Tribunal, from reaching a conclusion that the Veteran suffered from a different disability. Certainly, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
26. In my view these cases provide authority for a conclusion that the relevant question is whether to the reasonable satisfaction of the decision maker a disease actually exists and that once it is accepted that a disease exists it is not necessary to determine the precise diagnosis in order to consider whether or not that disease was war caused.
27. However, the precise nature of the disease or “kind of disease” is relevant when assessing the reasonableness of a hypothesis by reference to a Statement of Principles (SOP) as set out in s 120A of the Act.
28. In this case there is no SOP for either polymyositis or CT disorder and as both parties agree that Mr Rowe suffers from a CT disorder it is possible to proceed on the basis that Mr Rowe suffers from a CT disorder.
29. However as it is agreed that polymyositis is an auto-immune disease and as there is a dispute between the parties as to the precise nature of the CT disorder it is helpful in this case to determine the preferred diagnosis to the reasonable satisfaction of the Tribunal.
30. Dr Gotis-Graham diagnosed polymyositis in 2002 despite the fact that the diagnostic criteria, namely serum creatine kinase (CK), electromyography (EMG) and muscle biopsy, for this condition were all negative. Testing for auto-antibodies in the blood, an indicator of auto-immune disease also proved to be negative.
31. In oral evidence Dr Gotis-Graham indicated that the diagnosis had been difficult and that he made a clinical diagnosis on the basis of Mr Rowe’s initial presentation and his good response to treatment with immunosuppressive medication namely high dose corticosteroid (prednisone) and subsequently methotrexate.
32. Dr Gotis-Graham continues to treat Mr Rowe who has demonstrated symptomatic improvement but requires continuing medication albeit at reduced doses.
33. In a report dated 22 September 2008 Dr Gotis-Graham quoted from various separate studies which demonstrated that approximately 90% of patients with polymyositis have an elevated CK at some stage of their illness, approximately 80% have a myopathic EMG , 80% have abnormalities in the muscle biopsy and up to 80% have auto antibodies present in their blood.
34. Relevantly Dr Gotis-Graham made no reference to the percentage of patients with polymyositis in whom all of the tests were normal as was the case with Mr Rowe. When questioned about this at the hearing he commented that in his own experience it is uncommon and in his 14 years of practice he could recall only two patients one of whom was Mr Rowe.
35. In a letter dated 26 September 2005 Dr Darveniza , Consultant Neurologist , expressed the opinion that, on the basis that he had a normal EMG, total CK and muscle biopsy Mr Rowe did not suffer from polymyositis but rather an ‘undefined steroid responsive , connective tissue disorder’.
36. Dr Darveniza commented that on his assessment Mr Rowe’s weakness seemed to be secondary to his pain rather than due to wasting and intrinsic weakness of the muscles.
37. In a letter dated 20 July 2004 Dr Champion, Consultant Rheumatologist noted evidence of an inflammatory disorder with elevation of C-reactive protein (CRP) but no definite evidence for polymyositis and commented that Mr Rowe’s ongoing symptoms could not reasonably be attributed to active polymyositis.
38. In a subsequent letter dated 9 August 2004 he concluded that Mr Rowe suffered from a chronic widespread pain syndrome in conjunction with an unclassified inflammatory rheumatic syndrome that is partially responsive to prednisone and methotrexate.
39. In a report dated 7 August 2006 Professor Sambrook, Consultant Rheumatologist commented that the actual diagnosis of Mr Rowe’s connective tissue disease was unclear and agreed with the opinions of Drs Darveniza and Champion that it was difficult to conclude that that Mr Rowe had polymyositis in the presence of normal CK, EMG and muscle biopsy.
40. He agreed that there was evidence of an uncharacterised inflammatory rheumatic condition with features of myalgia, arthralgia and elevated CRP.
41. In oral evidence Professor Sambrook described the four currently accepted criteria for the diagnosis of polymyositis namely proximal symmetrical weakness, elevated muscle enzymes (eg CK), abnormal EMG and abnormal muscle biopsy.
42. Professor Sambrook noted that at presentation Mr Rowe had only one of the features of the condition in the form of proximal muscle weakness and commented that he would expect at least one of the other criteria to be present before making a diagnosis of polymyositis as muscle weakness can be present in a number of other conditions. He indicated that certain viral conditions can present with prominent myalgia and muscle weakness and in many cases can be responsive to treatment with corticosteroids.
43. Professor Sambrook agreed that polymyositis was a reasonable working diagnosis at the time of Mr Rowe’s first presentation but without a subsequent additional abnormality expressed the opinion that the correct diagnosis being polymyositis was only a remote possibility.
44. When pressed about an alternative diagnosis Professor Sambrook accepted that auto-immune connective tissue or connective tissue disease were a possibility but commented that these were descriptive diagnoses and not definitive diagnoses.
45. The medical evidence as to the precise nature of Mr Rowe’s disease is uncertain. In my view, however, the weight of the evidence does not favour a diagnosis of polymyositis and on balance I find that that polymyositis is not the correct diagnosis.
46. As both parties accept the diagnosis of CT disorder I find this to be the correct diagnosis for the purposes of these proceedings.
47. Therefore the remaining issue to be decided is whether the CT disorder suffered by Mr Rowe was war caused.
is mr rowe’s disease war caused?
48. Section 120 of the Act sets out the manner in which a claim that a disease suffered by a veteran is related to his or her war service is to be determined.
49. In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court summarized the position as follows:
…
(1)First, sub-s. (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not at issue at this point.
(2)If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material ,which is inconsistent with the hypothesis is proved beyond reasonable doubt , thus disproving , beyond reasonable doubt ,the hypothesis.
…
is there material before the tribunal that gives rise to a reasonable hypothesis? [s. 120(3)]
50. There is no dispute that Mr Rowe was exposed to a non toxic level of mercury during his approximately four months of operational service in 1971 and that he suffers from a disease, namely a CT disorder diagnosed in 2002 and that this disorder is a disease within the meaning of section 5 of the Act.
51. Although the precise nature of the CT disorder remains uncertain it clear that Mr Rowe has been treated with immunosuppressive medication in the form of corticosteroid and methotrexate since 2002. It is noted that he continues to require this medication in order control his symptoms.
52. In a report dated 11 June 2007 Dr P McCullagh, Experimental Pathologist , concluded that Mr Rowe’s condition of ‘undefined CT disorder’ was based pathologically on an auto-immune process and proposed an hypothesis that inhalation of mercury vapour during Mr Rowe’s operational service made a material contribution to the development of the pathological autoimmunity.
53. In essence the hypothesis put by Mr Rowe is that he was exposed to a non toxic level of mercury vapour for up to 4 months during operational service in 1971 and almost thirty years later presented with an undifferentiated connective tissue disorder that was caused by his earlier exposure to mercury.
54. From a medical or scientific perspective it is my view that the material before me could only be seen as supporting the hypothesis in the sense of a speculative theory.
55. Nevertheless I find that the hypothesis is a reasonable hypothesis within the meaning of S 120(3) of the Act.
56. In doing so I am guided by the decision of the High court in Bushell v Repatriation Commission (1992) 175 CLR 408 where in a joint judgment Mason CJ., Deane and McHugh JJ. said:
…
The case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out it is not the function of s. 120(3) to require the commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another.
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57. Their honours also said:
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In determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connection has not been proven between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.
…
are any of the facts necessary to support the hypothesis disproved beyond reasonable doubt? [ s. 120(1) ]
58. In formulating the hypothesis Dr McCullagh relies on two essential raised facts namely that Mr Rowe’s CT disorder is an auto immune disease and that exposure to mercury can cause auto-immune disease in humans.
59. The medical evidence in respect of the question as to whether Mr Rowe’s CT disorder is an auto-immune disease can best be described as confused and conflicting.
60. It is clear the Dr Gotis-Graham considered Mr Rowe to suffer from an auto-immune disease based on clinical judgement and the response to immunosuppressive medication.
61. Professor Sambrook expressed significant reservations about the precise nature of Mr Rowe’s CT disorder but did concede that it was remotely possible that it was an auto-immune disease.
62. There was no other evidence before me to disprove beyond reasonable doubt that Mr Rowe CT disorder was in fact an auto-immune disease.
63. In support of the proposition that exposure to mercury can cause auto-immune disease in humans Dr McCullagh refers both in his written report and in oral evidence to that fact that there is extensive scientific literature that points strongly to the ability of mercury to generate auto-immune disease in small laboratory animals.
64. However he was unable to provide any references from the scientific literature that described the development of auto-immune disease in humans as a result of exposure to mercury.
65. He referred to one article published in 2000 in which patients with systemic sclerosis, a well recognised auto-immune disease, with antibodies in their blood had higher mean urinary mercury level than other patients without antibody.
66. Dr McCullagh was unable to provide a satisfactory explanation as to the significance of these findings in either Mr Rowe’s case or in general.
67. In oral evidence he pointed to the fact that occupational exposure to mercury had occurred primarily in the dental occupations but in response to a question from the Tribunal was unable to point to any evidence in the scientific literature in respect of the prevalence of auto-immune immune disease in this particular population.
68. In a written report dated 28 October 2003 Dr G Crank, Consultant in Chemistry and former Associate Professor of Chemistry at UNSW (1980-1996), stated that “the scientific literature contains many reports linking mercury exposure with auto-immune diseases. It is well established for animals, but is yet to be proved for humans.”
69. In his report Dr Darveniza stated that on reviewing the literature he could find no relationship between polymyositis, or connective tissue disorders and toxins including mercury.
70. There is no evidence before me that exposure to mercury has caused or can cause auto-immune disease in humans and in my view Dr McCullagh’s proposition that mercury can cause auto-immune disease in humans is mere speculation.
71. Therefore I am satisfied that a key fact necessary to support the hypothesis is disproved beyond reasonable doubt which means Mr Rowe’s CT disorder was not war caused and his claim has not been successful.
decision
72. For reasons set out above I find that:
(a)Mr Rowe’s undifferentiated connective disease was not caused by his war-service; and
(b)The decisions under review are affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
Signed: ........[sgd]...................................................................
AssociateDates of Hearing: 11 August 2008
12 August 2008
25 February 2009
Date of Decision: 4 May 2009
Representative for the Applicant: Mr P Jones,
Legal Aid Commission of NSW
Counsel for the Applicant: Mr M Vincent
Representative for the Respondent: Mr N Bunn,
Department of Veterans’ Affairs
Counsel for the Respondent: Mr G Purcell
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