Ruth Murdoch and Repatriation Commission - [2013] AATA 764

[2013] AATA 764

Division VETERANS' APPEALS DIVISION

File Number

2012/1961

Re

Ruth Murdoch

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 25 October 2013

Place Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
VETERANS' AFFAIRS – veterans’ entitlements – ulcerative colitis – oral contraceptive pill – date of clinical onset – whether condition defence-caused – decision affirmed
Veterans' Entitlements Act 1986 ss 70(5)(a), 119(1)(h), 120(4)
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Sloan v Repatriation Commission [2012] FCA 1079
REASONS FOR DECISION
Regina Perton, Member
25 October 2013

Ruth Murdoch served in the Australian Army (the Army) within Australia from March 1973 to March 1978. She claims that taking the oral contraceptive pill (the pill) prescribed by army doctors was the basis for her medical condition of ulcerative colitis. Mrs Murdoch claims that she took the pill for professional reasons because of the consequences of pregnancy for female army personnel in the first half of the 1970s. Documentation provided to the Tribunal indicates in the early 1970s single females who fell pregnant could be dismissed from the Army for that reason alone.
Mrs Murdoch made a claim for recognition of her condition being defence-caused on 4 August 2010. On 6 September 2010, the Repatriation Commission (the Commission) refused the claim. On 21 October 2010 Mrs Murdoch applied to the Veterans’ Review Board (VRB) which affirmed the Commission’s decision on 2 April 2012.
On 15 May 2012 Mrs Murdoch applied to the Tribunal for review of the VRB decision.
LEGISLATIVE BACKGROUND
Mrs Murdoch’s service in the Army is defence service under the Veterans' Entitlements Act 1986 (the Act). Section 120(4) of the Act requires the Tribunal to decide, to its reasonable satisfaction, whether her ulcerative colitis was defence-caused. The Tribunal is required to apply a Statement of Principle (SoP) for a condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act, a condition is defence-caused if it arose out of, or was attributable to, any defence service.
The current relevant SoP is No 20 of 2012 concerning inflammatory bowel disease. The definition of inflammatory bowel disease in paragraph 3(b) of the SoP includes ulcerative colitis.
The factor that appears relevant to Mrs Murdoch’s claim is paragraph 6(c) of the SoP:
…
(c)using the combined oral contraceptive pill for a period of at least one year before the clinical onset of inflammatory bowel disease, and where use of the oral contraceptive pill has ceased, the clinical onset of inflammatory bowel disease has occurred within one year of cessation;..
Another factor for a person with Mrs Murdoch’s condition relates to smoking. Mrs Murdoch was not a smoker and none of the other alternative factors listed in the SoP are relevant.
When Mrs Murdoch lodged her claim in 2010, the…

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 Ruth Murdoch and Repatriation Commission

Details

AGLC: Ruth Murdoch and Repatriation Commission [2013] AATA 764
Case: [2013] AATA 764
Decision Date

CaseChat Overview and Summary

In the case of Ruth Murdoch and the Repatriation Commission, the applicant, Mrs Murdoch, sought a review of the decision made by the Veterans' Review Board (VRB) concerning her claim for compensation for ulcerative colitis, which she asserts was caused by her service in the Australian Army. Mrs Murdoch’s case was heard by the Tribunal, which was tasked with determining whether her condition was attributable to her defence service under the Veterans' Entitlements Act 1986. The primary legal issue revolved around whether Mrs Murdoch's ulcerative colitis met the criteria outlined in the applicable Statement of Principle (SoP) No 20 of 2012 concerning inflammatory bowel disease. Specifically, the Tribunal had to ascertain the date of the clinical onset of her condition and whether this aligned with the factors stipulated in the SoP.

The Tribunal examined the criteria for determining the clinical onset of ulcerative colitis, noting that the term "clinical onset" lacks a precise definition in either the SoP or the Act. The Tribunal referenced past cases such as Lees v Repatriation Commission and Repatriation Commission v Cornelius, which suggest that clinical onset occurs when symptoms are severe enough for a medical practitioner to diagnose the condition or when diagnostic testing confirms the presence of the condition. The Tribunal further highlighted that the clinical onset is determined by medical evidence, emphasizing the role of a doctor in establishing the onset date based on symptoms or diagnostic findings.

After considering the evidence presented, the Tribunal concluded that Mrs Murdoch did not meet the criteria specified in SoP No 20 of 2012. The Tribunal found that there was no evidence to suggest that her ulcerative colitis arose out of or was attributable to her defence service, particularly regarding her use of the combined oral contraceptive pill. As a result, the Tribunal affirmed the decision of the VRB, denying Mrs Murdoch’s claim for compensation. The Tribunal did not need to determine whether her use of the pill was primarily for professional or personal reasons, as her condition did not satisfy the criteria in the SoP.

Orders

Orders of the court

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Background

Background to the litigation

On 15 May 2012 Mrs Murdoch applied to the Tribunal for review of the VRB decision.LEGISLATIVE BACKGROUND Mrs Murdoch’s service in the Army is defence service under the Veterans' Entitlements Act 1986 (the Act). Section 120(4) of the Act requires the Tribunal to decide, to its reasonable satisfaction, whether her ulcerative colitis was defence-caused. The Tribunal is required to apply a Statement of Principle (SoP) for a condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act, a condition is defence-caused if it arose out of, or was attributable to, any defence service. The current relevant SoP is No 20 of 2012 concerning inflammatory bowel disease. The definition of inflammatory bowel disease in paragraph 3(b) of the SoP includes ulcerative colitis. The factor that appears relevant to Mrs Murdoch’s claim is paragraph 6(c) of the SoP: …(c)using the combined oral contraceptive pill for a period of at least one year before the clinical onset of inflammatory bowel disease, and where use of the oral contraceptive pill has ceased, the clinical onset of inflammatory bowel disease has occurred within one year of cessation;.. Another factor for a person with Mrs Murdoch’s condition relates to smoking. Mrs Murdoch was not a smoker and none of the other alternative factors listed in the SoP are relevant. When Mrs Murdoch lodged her claim in 2010, the relevant SoP was No. 22 of 2001. That SoP specified a relationship between use of the pill and the onset of Crohn’s disease. It did not allow for a relationship between use of the pill and ulcerative colitis. None of the other factors were applicable. ISSUES There is no dispute that Mrs Murdoch suffers from ulcerative colitis. The issues before the Tribunal are:·What was the date of clinical onset of Mrs Murdoch’s ulcerative colitis?·Did Mrs Murdoch meet the criteria in the SoP in terms of clinical onset?·If so, did the ulcerative colitis arise out of, or was it attributable to, Mrs Murdoch’s defence service? WHAT IS THE DATE OF CLINICAL ONSET OF ULCERATIVE COLITIS? There is no definition of the term clinical onset in the relevant SoP or in the Act. In Lees v Repatriation Commission (2002) 125 FCR 331, Repatriation Commission v Cornelius [2002] FCA 750 and other earlier cases, the clinical onset of a condition is said to occur when: ·the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or ·when the condition is actually found on diagnostic testing, regardless of the extent of symptoms. The Tribunal notes that in Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated:92The meaning of the expression "clinical onset" was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either: · when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or · when a finding is made on investigation which is indicative to a doctor that the disease is present.93The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Mrs Murdoch does not meet the relevant SoP, there is no need for the Tribunal to determine whether the ulcerative colitis arose out of, or was it attributable to, Mrs Murdoch’s defence service, that is, whether her use of the pill was largely for professional reasons (to avoid getting pregnant and face dismissal from the Army) or mainly for personal reasons.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2012/1961
Re	Ruth Murdoch
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Regina Perton, Member
Date	25 October 2013
Place	Melbourne