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 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.
In Sloan v Repatriation Commission [2012] FCA 1079, Bromberg J stated:
19Of the two alternatives identified in [92] of the reasons of Jacobson J in Kaluza, only the first was relevant on the material before the AAT. The question for the AAT was whether a doctor could have concluded that features or symptoms of lumbar spondylosis were experienced by Mr Sloan in early 1968 or earlier: Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448 (McKerracher, Perram and Robertson JJ), at [63] – [66]. That question has two parts. First, it required the AAT to make findings based on the evidence before it, as to what features or symptoms of lumbar spondylosis were experienced by Mr Sloan and when they were experienced. Secondly, the AAT needed to determine the time at which an opinion that lumbar spondylosis was present could first have been given by a doctor.
20It is in relation to that second question that the evidence of medical experts is normally required. What constitutes a feature or symptom of lumbar spondylosis is also a proper subject for medical opinion and such an opinion may assist the AAT to make factual findings as to whether or not features or symptoms of lumbar spondylosis existed….
Army medical records for Mrs Murdoch first mention a diagnosis of ulcerative colitis in March 1976. However, there were recorded symptoms and test results that pointed to such a condition earlier than that.
Professor Hedley Peach conducted an extensive review of the available medical evidence in this matter and presented a comprehensive report dated 18 January 2013 to which he also attached a number of relevant articles. He described the various medical tests undertaken and their significance. His conclusion concerning clinical onset of ulcerative colitis was:
The onset of Mrs. Murdoch’s ulcerative colitis was October 3rd 1974 when iron deficiency anemia and raised ESR [erythrocyte sedimentation rate] were first detected or June 1974 when Mrs. Murdoch first noticed adverse effects of the pill if the adverse effects included abdominal cramps or diarrhea with blood and mucus.
The Tribunal prefers Professor Peach’s evidence concerning the date of clinical onset to the date in the medical records. The thoroughness of his investigation coupled with an awareness of Mrs Murdoch’s subsequent medical history have led to a finding that the condition existed well before her treating doctors recognised it in March 1976.
Having examined the documentation, Professor Peach’s report and the case law cited above, the Tribunal finds that the clinical onset of Mrs Murdoch’s ulcerative colitis was on 3 October 1974.
DOES MRS MURDOCH MEET THE RELEVANT FACTOR?
Army medical records indicate that Mrs Murdoch was first prescribed the pill in December 1973. On 7 August 1974, there is an entry indicating that she had been on the pill for nine months at that time. On 9 December 1975, the records state that Mrs Murdoch had been taking the pill for two years.
Mrs Murdoch believes she commenced taking the pill in August 1973. In a statutory declaration dated 20 February 2013, Mrs Murdoch declared the following:
1. I first obtained the oral contraceptive pill from the WRAAC [Women’s Royal Australian Army Corps] school RAP [regimental aid post] after seeing the AMO [army medical officer] there on either the 13th August or the 23 August 1973.
2. I took the OCP [oral contraceptive pill] continuously from 25 August 1973 through to when I stopped taking it on or about the 11/12th September 1976.
3. Given the date of my last menstrual period was recorded in my Med File as 14/09/1976 I have estimated by means of 28 day cycle I commenced taking the OCP on or about the 25/26 August 1973…
4. I know I had started taking the OCP at that time (late August 1973) because I flew to Townsville to attend a cousin’s wedding on the 7 Sept 1973 and while there found out her younger sister was pregnant and their mother (my Aunt) wasn’t at all happy about the fact she had failed to use a reliable form of birth control and gave me a lecture on the subject.
5. At 19 years of age that was something that has stayed in my memory as well as a preview of how my mother would react if I were in the same situation.
6. From my experience in obtaining a supply of the OCP it was not uncommon for a servicewoman to attend her unit RAP, see the medic there to request the OCP. Sometimes you would see the AMO at the next sick parade but quite often the medic would tell you to return at a particular time to collect your new supply of OCP.
7. After reading through my Med File I have noted that there appears to be 5 entries re the supply of the OCP to myself…These entries are not adequate to have maintained a constant use of the OCP for the length of time I was taking it, (25/08/1973 – 17/09/1976). This suggests the medical records were not maintained as well as they should have been.
In oral evidence, Mrs Murdoch said that she believed that the entry in her Army medical records in August 1974 stating she had been on the pill for nine months was not correct. She has the same view of the entry in December 1975 which stated that she had been on the pill for two years at that time. Mrs Murdoch said that it was her recollection that she was already on the pill when she went to a wedding in Townsville in August 1973. Mrs Murdoch described perceived deficiencies in the Army medical records. She gave an example stating that none of her obstetric records were included.
It is now approaching 40 years since the time Mrs Murdoch started taking the pill. The Tribunal believes that Mrs Murdoch is genuinely describing what she remembers of that time. However, two different doctors have indicated a starting date for taking the pill as December 1973.
The entry dated 7 August 1974 made by Dr Hill indicates that Mrs Murdoch had been using the pill for nine months. The entry dated 9 December 1975 is by a different doctor with an undecipherable signature. The Tribunal believes it more likely than not that the doctor at the December 1975 consultation would have been given that information by Mrs Murdoch during the consultation. It is unlikely that the doctor would have scoured early records to work out the time period. In any case, there is no start date for use of the pill in Mrs Murdoch’s Army medical records. It would be surprising if Mrs Murdoch could recall the details of a discussion during a medical consultation that took place 38 years ago.
The Tribunal is of the view that the contemporaneous medical records are more likely to reflect the actual situation than a recollection of what happened more than 35 years earlier. The Tribunal therefore finds, on the balance of probabilities, that Mrs Murdoch commenced taking the pill in December 1973.
As indicated earlier, the Tribunal has determined that the date of clinical onset of ulcerative colitis was 3 October 1974. Factor 6(c) of SoP No 20 of 2012 requires that there be at least one year of use of the pill before the clinical onset of inflammatory bowel disease, where use of the pill continued at the date of clinical onset. The Tribunal finds that Mrs Murdoch had been on the pill for ten months at the date of clinical onset of ulcerative colitis. She therefore fails to meet the requirement of the relevant SoP.
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.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]...............................................................
Associate
Dated 25 October 2013
Date of hearing 11 July 2013 Advocate for the Applicant Mr B Turner, Senior RSL Advocate Counsel for the Respondent Mr K Rudge Solicitors for the Respondent Compensation and Review Branch, Department of Veterans' Affairs
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