Shakespeare and Repatriation Commission

[2005] AATA 777

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/199

VETERANS APPEALS  DIVISION		)
Re		MARK SHAKESPEARE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date15 August 205

PlaceSydney

Decision The decision under review is affirmed

.........................................................

Ms N Bell

Senior Member

VETERANS’ AFFAIRS – Diagnosis of Multiple Sclerosis – Receipt of Inappropriate Clinical Management - Reasonable Hypothesis Standard - Disease Could Not Be Attributed to Service on This Basis – Decision Under Review Affirmed

Veterans’ Entitlements Act 1986

Statement of Principles No.45 of 2002

REASONS FOR DECISION

15 August 2005 Ms N Bell, Senior Member

1.               Mr Mark Shakespeare served as an Avionics Technician with the Royal Australian Air Force from 7 January 1986 to 8 July 1994.  He was diagnosed with Multiple Sclerosis (MS) in 1996, having first experienced symptoms of the disease in 1992.

2.               Mr Shakespeare claimed a pension under the Veterans Entitlements Act 1986 (the Act) on 13 December 2002.  The Repatriation Commission decided on 6 February 2003, that his MS is not defence caused, a decision affirmed by the Veterans Review Board on 23 March 2004.

issues

3.               Mr Shakespeare contends that his service is “operational” in that his duties in the RAAF required him to work on a classified basis with weapons in the Aircraft Research and Development Unit.  He therefore submitted that he should have the benefit of the more favourable “reasonable hypothesis” standard of proof and the Statement of Principles (SoP No. 44 of 2002, concerning MS) relevant to that standard.  Mr Shakespeare argued he did not obtain appropriate clinical management of his MS whilst in the RAAF, indications of the disease having not been recognised by those treating him when an MRI was done in 1992.  Mr Shakespeare also suggested a possible link between his MS and the chemicals he used in his work in the Army and an injury to his neck in the early 1990’s whilst on service.  He said he was thrown against a door by a pilot.  Mr Shakespeare sustained an injury at C3/C4.

4.               The Repatriation Commission contended that Mr Shakespeare has eligible defence service and therefore attracts the standard of proof of “reasonable satisfaction” and the less favourable SoP No. 45 of 2002 concerning MS.  It was the Commission’s position that the only factor available to Mr Shakespeare that would support defence causation is that of failure to obtain appropriate clinical management and that factor is not met in any event.

5.               SoP No. 44 of 2002 provides as follows:

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a

reasonable hypothesis has been raised connecting multiple sclerosis or

death from multiple sclerosis with the circumstances of a person’s

relevant service are:

(a) inhaling organic solvents or having cutaneous contact with

organic solvents on more days than not during a continuous 12

month period before the clinical onset of multiple sclerosis; or

(b) being infected with Epstein-Barr virus before the clinical onset of

multiple sclerosis; or

(c) inability to obtain appropriate clinical management for multiple sclerosis.

Factors that apply only to material contribution or aggravation

6. Paragraph 5(c) applies only to material contribution to, or aggravation

of, multiple sclerosis where the person’s multiple sclerosis was suffered

or contracted before or during (but not arising out of) the person’s

relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the

Act refers.

6.               SoP No. 45 of 2002, less favourably, provides as follows:

Factors that must be related to service

4. The factor that must exist before it can be said that, on the balance of probabilities, in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating multiple sclerosis or death from multiple sclerosis is inability to obtain appropriate clinical management for multiple sclerosis.

7.               It follows that the first issue for me to consider is whether Mr Shakespeare had eligible defence service or operational service.  This will determine the standard of proof to be applied and which of the SoPs is relevant to him.  The outcome will then be determined by the conformity of the material before me with the relevant factor(s) in the appropriate SoP.

does mr shakespeare have operational service?

8.               Mr Shakespeare said the work he did with the Aircraft Research and Development Unit involved weapons testing, groundwork and “operational” work.  He said he routinely worked with organic solvents that are now banned, including Trichlorethene.  He said these solvents were used as cleaning agents and he and others would, each day, be covered in the substances.  He submitted the work he did, which involved the use of remote breathing apparatus, amounted to hazardous service.

9.               Broadly, the Act, in sections 6 to 6F, defines operational service as overseas service within a defined area by a member of the Defence Force in a time of war or during warlike operations.  “Warlike operations” are as determined by the Minister for Defence.

10.              Following the hearing, Ms Harry, for the Repatriation Commission obtained and forwarded to the Tribunal a copy of Mr Shakespeare’s personnel records from the Department of Defence.  I examined those records carefully and found nothing to bring Mr Shakespeare’s service or any part of it within the definition of operational service.  His service was therefore defence service and so the issue of whether his MS is connected with that service must be determined by reference to the less favourable SoP No. 45 of 2002.  It follows that the issue for me to determine is whether Mr Shakespeare was unable to obtain appropriate clinical management for his MS.

evidence

11.              Mr Shakespeare said that for four years, until his diagnosis in 1996 by Dr Kermode, he pursued treatment for his declining condition.  This included an unnecessary operation for carpal tunnel syndrome.  He described the pain and suffering involved in not knowing what was wrong with him whilst steadily losing his ability to do his job which included the manipulation of small objects.

12.              At document T3 is a referral from Dr S Jenner to Dr J Rice, Neurologist, noting a whiplash type injury and subsequent paraesthesia in the fingers of the right hand together with difficulty in manipulating small objects, headaches and neck pain.  Dr Jenner noted a normal MRI scan.

13.              Dr Rice, in his report to Dr Jenner dated 4 August 1992, concluded there was no neurological basis to Mr Shakespeare’s symptoms.

14.              Document T5 is a report “To whom it may concern” by Dr A Kermode, Neurologist dated 25 October 2002.  He wrote:

“Mr Shakespeare had a probable C3/C4 crush fracture whilst in the Army which was treated with traction in a military hospital, and over the next three years he continued to suffer from neck pains and subsequently he pursued chiropractic therapy to ease his discomfort over that period.  A direct correlation between trauma and multiple sclerosis has not been scientifically established, but it is well known that lesions of multiple sclerosis occur at sites of neural trauma (such as the cervical spine) and it is believed that lesions may also be precipitated by such trauma.  The presence of intra-substance cervical cord abnormalities on MR imaging immediately subsequent to the probable crush fractures which occurred during his time in the Army establish that the structural onset of his neurological disease commenced in 1993 whilst he was being managed within the military hospital.”

15.              In a report dated 1 November 2004, to the Department of Veterans’ Affairs, Dr Kermode said he considered that if Mr Shakespeare had presented in civilian life with the range of symptoms he had, further investigation would have been performed.  While he understood the difficulties faced by Mr Shakespeare’s doctors at the time, he said the fact that paraesthesia, numbness and pins and needles developed about a month after the alleged injury should have raised the suspicion of an intramedullary spinal lesion.  He considered that Mr Shakespeare’s MRI did not look normal and instead it showed signal change in the intramedullary region raising the possibility of a demyelinating syndrome.

16.              In relation to clinical management, he said that even if MS had been diagnosed in 1992 it is unlikely that Mr Shakespeare’s neurological management would have differed.  He noted that Interferon therapy was not available at that time, nor when the diagnosis was made in 1996.  He said that in all likelihood there was no treatment available that would have been likely to slow the progression of the disease in 1992.

consideration

17.              In Repatriation Commission v Wedekind [2000] FCA 649 the Federal Court held that a mere failure to diagnose a condition does not amount to inability to obtain appropriate clinical management. For a factor concerning inability to obtain appropriate clinical management to be satisfied a series of questions must be answered. Kenny J outlined those questions as follows:

“(a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium;

(b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and

(c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.”

18.              In Repatriation Commission v Wellington (1999) 57 ALD 507 Marshall J agreed with the following statement:

“A person’s ‘inability to obtain appropriate clinical management’ for a condition must be measured by the standards of clinical management available at the relevant time and then regarded by the medical profession as appropriate.”

19.              There is no dispute that the clinical onset of Mr Shakespeare’s MS was in 1992.  This is supported by the opinion of Dr Kermode.  This, of course, was during Mr Shakespeare’s period of service.

20.              However, Dr Kermode’s opinion was also that, at that time, there was no form of clinical management available that would have slowed the progress of Mr Shakespeare’s MS.  There is also no evidence that any failure to diagnose aggravated his MS.

21.              Given these conclusions, and the principles set out by the Federal Court in the decisions in Wedekind  and Wellington (supra), I cannot be reasonably satisfied that Mr Shakespeare was unable to obtain appropriate clinical management of his MS.  In reaching this conclusion I am, however, mindful that Mr Shakespeare spent four very difficult years in pursuit of the cause of his declining health.  This is unfortunate in the extreme.

22.              Mr Shakespeare’s circumstances do not meet the factor in SoP No. 45 of 2002 and it follows that his MS is not defence caused.

decision

23.              The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...........[Linda Blue].....................
  Associate

Date of Hearing  2 August 2005
Date of Decision  15 August 2005
Solicitor for the Respondent     Department of Veteran's Affairs