Smith and Repatriation Commission
[2005] AATA 1057
•24 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1057
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/398
VETERANS' APPEALS DIVISION )
Re SCOTT ANTHONY SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member
Dr G Maynard, MemberDate24 October 2005
PlaceBrisbane
Decision The decision under review is affirmed. ..........[Sgd]..........
KS Levy
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – war-caused illness – delay in diagnosis due to operational service – Hodgkin’s Lymphoma – alleged aggravation of pre-existing condition – remission of disease - decision affirmed.
Veterans’ Entitlements Act 1986: 5D, 6C, 9 13, 19, 31, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Hancock (2003) FCA 711
Repatriation Commission v Gosewinckel (2000) 59 ALD 690
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Nowlan v Repatriation Commission (1991) 30 FCR 369
Bennett v Repatriation Commission (1999) AATA 447
East v Repatriation Commission (1987) 74 ALR 518.
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Bey (1997) 79 FCR 364)
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Yates (1995) 38 ALD 80
Rogers v Whitaker (1992) 175 CLR 479
Repatriation Commission v Moss (1982) 40 ALR 553REASONS FOR DECISION
24 October 2005 Dr KS Levy, Member
Dr G Maynard, Member
1. The Applicant seeks review under section 29(1) of the Administrative Appeals Tribunal Act 1975 of a decision of the Respondent made on 14 December 2001. That decision rejected his claim for medical treatment and pension for incapacity from Hodgkin’s Disease on the ground that it was not war-caused. The Applicant appealed that decision to the Veterans’ Review Board which confirmed the original decision on 27 February 2004. The Applicant made application to this Tribunal on 27 May 2004.
2. The basis of this claim is that because of the Applicant’s deployment to Bougainville for two months, whilst serving in the Royal Australian Air Force (RAAF), he was unable to obtain appropriate clinical management for his condition in accordance with Clause 5(h) of Statement of Principles in Instrument number 28 of 2004.
Hodgkin’s Disease
3. The Applicant’s claim states that there was a delay in diagnosis as a result of his operational service. In his letter of January 2002 to the Veterans’ Review Board, he describes his assertion that his condition would have been aggravated by his service in the RAAF, and states:
“Hodgkin’s lymphoma is a voracious form of cancer, with the chances of a positive prognosis being significantly reduced by any delay in diagnosis and treatment.”
4. He argues therefore his condition was aggravated due to the increased disease load or volume of disease which developed because of that delay and consequent reduction in his chances of successful outcome as a result of his service in Bougainville (see folio F and G of the T documents).
5. The Applicant was represented by Mr Robert Anderson of Counsel instructed by Mr Terrence O’Connor, Solicitor. The Respondent was represented by its advocate, Mr Malcolm Smith.
Background
6. The Applicant was born on 23 August 1972 and is now 33 years of age. He is the eldest of seven children and was raised in Emerald, Queensland. He attended University of Queensland medical school and following graduation, he served in the RAAF from 9 February 1994. He has since completed examinations for the Royal Australian College of General Practitioners. The Applicant therefore is medically qualified and has a good understanding of his condition.
7. While serving in the RAAF, he was posted to Bougainville from 29 November 1999 to 28 January 2000, a period of two months (approximately). This period is regarded as operational service under section 6(F) of the Veterans’ Entitlements Act 1986 (the Act). The Applicant has no service-related disabilities recognised.
Issue for Determination
8. The question for determination in this matter is whether the Applicant’s Hodgkin’s Disease is war-caused within the meaning of section 9(1)(e) of the Act. That is, the question is whether the circumstances of the Applicant’s service in Bougainville can be regarded as an aggravation of his pre-existing condition of Hodgkin’s Disease.
Relevant Legislative Framework
9. In determining the Applicant’s eligibility for treatment and service pension, the following statutory provisions and other instruments created under a statutory power are outlined below:
“5D Injury/disease definitions
(1) In this Act, unless the contrary intention appears:
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2) In this Act, unless the contrary intention appears:
(a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b) a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note: for war-caused injury and war-caused disease see section 9.
….
6(c)For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area—on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day—on that day;
and ending at the end of:
(c) if the member, or the unit of the member, ceased to be allotted for duty—the day from which the member, or the unit, ceased to be allotted for duty; or
(d) if the member, or the unit of the member, was assigned for duty from the operational area to another area outside Australia (not being an operational area)—the day from which the member, or the unit, was assigned to that other area, or the day on which the member, or the unit, arrived at that other area, whichever is the later; or
(e) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.
9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…..
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
9(6) Paragraph (1)(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):
(a)if the aggravation of the injury or disease:
(i)resulted from the veteran's serious default or wilful act;
(ii) arose from a serious breach of discipline committed by the veteran; or
(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
Eligibility for pension
13(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…..
19 Determination of claims and applications
(9) In this section:
assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.
31(5A)The Commission may, for the purpose of reviewing a decision under this section, of exercising its powers under subsection (6) for a reason specified in paragraph (6)(a) or (b) or of exercising its powers under subsection (8), by notice in writing served on a veteran who is in receipt of a pension under this Part, request the veteran:
(a) to undergo, as provided in the notice, a medical examination for the purpose of the review, or the exercise of those powers, as the case may be; or
(b) to consent to the release to the Commission of information concerning the veteran of a kind described in the notice, being information that, in the opinion of the Commission, may be relevant to the review, or the exercise of those powers, as the case may be.
31(6) Where the Commission is satisfied that:
(a)having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b) by reason of a refusal or failure of any person to comply with a provision of this Act;
(c) by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d) by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.
120(1) Reasonableness of hypothesis to be assessed by reference to Statement of Principles
This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
…..
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
10. Section 120A applies where the Repatriation Medical Authority has issued Statements of Principles (SoPs) under section 196B of the Act. In this matter, the Repatriation Commission Medical Authority has issued a Statement of Principle Number 28 of 2004 (Hodgkin’s Disease) which is relevant to the present application.
11. The Standard of Proof set out in section 120 is that of a reasonable hypothesis in terms of the issues which arise for decision in this case (see Repatriation Commission and Gosewinckel (2000) 59 ALD 690 at 691).
Evidence
12. The Tribunal has taken into account all of the evidence presented in this matter in reaching its determination, both oral and written evidence.
13. In relation to documentary evidence, the following has been admitted into evidence:
Exhibit 1 -T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 - Statement by Dr Kerry Taylor dated 19 January 2005
Exhibit 3 -Applicant’s Statement of Facts and Contention dated March 2005
Exhibit 4 -Service medical documents filed by Department of Veterans’ Affairs 7 July 2004
Exhibit 5 - Report of Dr G Beadle dated 16 July 2004
Exhibit 6 - Report of Dr G Beadle dated 6 September 2004
Exhibit 7 - Report of Dr G Beadle dated 14 June 2005
Exhibit 8 -Statement of Facts and Contentions of the Respondent dated 21 March 2005
Exhibit 9 -Chronology of medical history prepared by the Applicant, Dr S Smith.
A summary of the medical evidence is as follows –
Medical Notes for Decision on Dr Scott Smith V Repatriation Commission
Facts
(i) Dr Smith suffers from Hodgkin’s Lymphoma.
(ii)His definitive diagnosis was made after the examination of a lymph node excised on 1 June and results notified on the 6 June 2000.
(iii)Dr Smith first reported symptoms of lower back pain on 2 Mar 1999. This was thought to be mechanical in origin.
(iv)He again reported lower back pain and right buttock pain, thought to be of mechanical origin, on 23 August 1999.
(v) X-rays and a CT scan in Sept 1999 failed to find a cause.
(vi)On 3 November 1999, Dr Hoare, a GP colleague was concerned with this back pain and recommended referral to a tertiary hospital in Perth.
(vii)In November 1999 he was referred to Dr Owen, a rheumatologist, who diagnosed L4/5 facet pain. As Dr Smith was to be posted to Bougainville in the near future, Dr Owen’s opinion was that the back pain should not prevent the posting.
(viii)On the 30 November, prior to departure for Bougainville, Dr Smith reported to the base medical centre at Pearce Air Force Base because he had failed the “sit-ups” portion of his basic fitness test. It is a fact that for the six months prior to this Dr Smith had not been able to do the run part of the test and had opted for the walk option because of continuing back pain. While the examining doctor thought the diagnosis may be a stress fracture and the desirable investigation was a bone scan but he noted that there was no time available for a bone scan prior to departure for Bougainville. Dr Smith claims that at this time he was suffering night sweats and fevers along with his back pain.
(ix)Dr Smith reported to the appropriate senior officer because of his failure but because of the difficulties of finding medical officers to send to Bougainville, especially over the Christmas period, he was posted there. It must be said that Dr Smith wanted to go.
(x) Dr Smith served in Bougainville during December and January.
(xi)He suffered ongoing symptoms in Bougainville but as there were no other doctors to consult he kept working.
(xii)Upon his return to Australia he had ongoing symptoms but because of his work load he did not report to his medical condition until mid April 2000.
(xiii)On the 19 April he was sent for a bone scan which reported in part that “a neoplasm could not be ruled out”.
(xiv)An MRI scan was performed on the 5 May 2000 and the report indicated that the most likely diagnosis was a lymphoma.
(xv)A bone biopsy was performed by an orthopaedic surgeon on the 16 May and the diagnosis was changed to one of osteomyelitis sclerosans Carre, a rather obscure diagnosis. He was referred to Dr Joske, a haematologist, who was unable to make a diagnosis of lymphoma, based on the specimen provided. Dr Joske did consult other specialists who were unable to help.
(xvi)About a week later, a lymph node appeared and biopsy revealed a definitive diagnosis of Hodgkin’s Lymphoma classified as stage IVB.
(xvii)Dr Smith was immediately commenced on a combined chemotherapy regimen which was extended from the usual six months to eight months.
(xviii) He is now apparently in remission and approaching five years duration.
(xix) He would seem to have little in the way of disability at present.
14. Dr Smith’s claim relies on medical records and reports and testimony from two clinical specialists.
15. The questions to be asked and answered are did the posting to Bougainville prevent earlier diagnosis of the Hodgkin’s Lymphoma and if so, did this delay have some long term effect on Dr Smith’s prognosis?
16. A significant point supported by both Drs Taylor and Beadle was the far from typical presentation of Dr Smith’s disease. The onset of back pain as a presenting symptom of Hodgkin’s Lymphoma is unusual and it was not unreasonable for the clinical management to seek a mechanical cause. There was however a degree of chronicity in the complaint and as fever and night sweats were now occurring, maybe other causes should have been sought. The fact that he could no longer run at his age was unusual without a significant precipitating injury.
17. On the issue of whether Dr Smith should have been posted to Bougainville, there is evidence at the time of his chronic back pain, his physical limitation and failure. Also, the opinion of the treating doctor was that a bone scan was required but there was no time to perform same before departure to Bougainville. There seems to have been some pressure on Dr Smith to go to Bougainville because of the problems of non-availability of other Medical Officers. He also wanted to go. When asked if he would have passed another serviceman with a history similar to his own, fit to be posted, he replied “No”.
18. Would a bone scan performed at the end of November 1999 have helped diagnose the condition? Drs Taylor and Beadle were of the opinion that it may have, depending on the type of scan the treating doctor had in mind. In their opinion it was certainly true that, on clinical grounds, a diagnosis of Hodgkin’s Lymphoma could not be made but the clinical signs of night sweats and fevers should have triggered a search for a condition that was not orthopaedic in origin.
19. Dr Smith had no access to medical investigation of his condition in Bougainville despite ongoing symptoms. Upon his return, the pressure of work seemed to slow down the investigation of his disease.
20. It is unfortunate that, despite the findings of the bone scan in April that a neoplasm could not be ruled out, and the report of the MRI in early May that the most likely diagnosis was a lymphoma, a more aggressive approach to diagnosis was not taken following a less than satisfactory bone biopsy.
21. Dr Taylor believed that a correct diagnosis may have been made in December if the desired bone scan had been performed, especially if followed up in a major hospital.
22. Dr Beadle was less certain of a diagnosis at that time but he was of the opinion that the posting to Bougainville delayed diagnosis.
23. Drs Taylor and Beadle both believed that delayed diagnosis allows the disease to progress and the more advanced the disease, the more difficult it is to secure a remission. Neither doctor would be drawn on what long term effect on the disease, a delay in diagnosis of two, three or four months would have. What is available is some data published in 1998 in The New England Journal of Medicine which tries to track what outcomes occur in patients treated for Hodgkin’s Lymphoma. The life tables published in the article suggest that patients with a high score, on a series of factors described by the authors, have less freedom from progression of disease than those with a lower score. The data is from Germany and tracks treatment that was administered to patients in the 1980s. Dr Beadle said that there have been some advances in treatment of the disease but he felt that the findings reflect what happens today. No estimate was made of Dr Smith’s score for these factors but both doctors were agreed that delayed diagnosis made remission more difficult and increased relapse rate.
24. Dr Taylor, who took over Dr Smith’s treatment in Brisbane, was so concerned about the delay in diagnosis that he added two extra months to the normal six months of chemotherapy giving a total of eight months treatment.
25. Dr Taylor would not use the term “cure” for this disease preferring to describe the absence of disease as a remission. Dr Smith is now approaching five years of remission and on a statistical basis his chances of relapse of the disease falls to about ten percent. It was not agreed that this is a low risk of relapse, nor was it agreed that Dr Smith was cured as claimed by the respondent. The risk of relapse grows less as the length of remission increases but still represents a real risk.
26. No one can estimate the long term outcome for Dr Smith’s disease but it is probable that the delay in diagnosis of somewhere between two and four months has contributed in some way to increase the risks of a relapse. As the tail of the life table looking at freedom from progression of disease moves along the x axis the risk becomes less but no one can assert that it becomes zero and it cannot be determined what part of that residual risk is because of delay in diagnosis.
Consideration
27. The Tribunal has reached its decision in this matter after considering all of the oral and documentary evidence and taking account of the relevant legal provisions.
28. In relation to diagnosis, it is undisputed that Dr Smith suffered from Hodgkin’s Disease. However, he has now been in remission for approximately five years.
Preliminary Considerations
29. Before proceeding to undertake a detailed assessment of the evidence against the relevant legal provisions, the Tribunal is required to be satisfied as to the kind of injury or disease from which the Applicant suffers. It must be so satisfied to its reasonable satisfaction (see s.120(4) of the Act) that is, on the balance of probabilities. In making this determination, the Tribunal has had regard to the pronouncement of Selway J in Repatriation Commission v Hancock (2003) FCA 711, where he set out two requirements which must be satisfied in this case:
(i)Was Dr Smith a veteran?
(ii)In order to ascertain whether SoPs apply, it is necessary to identify the kind of injury or disease which is the basis of Dr Smith’s claim (see s.120A(2)(4).
30. It is accepted that Dr Smith is a “veteran” within the meaning of that term. There is no dispute that he has suffered from Hodgkin’s Disease which is a disease for which an SoP has been issued by the Repatriation Commission Medical Authority. Therefore, both conditions above set out in Hancock’s case have been satisfied.
Assessment – Hodgkin’s Disease
31. The Tribunal had to consider section 9(6) of the Act. That section states that section 9(1)(e) does not apply to the “aggravation” of a condition unless the veteran rendered operational service and that operational service was for a period of six months or longer (see also Ramsey and Repatriation Commission (2002) AATA 581). Submissions were sought in relation to that issue, but as submitted by the respondent, this is not a disqualification for the applicant in this case as it was not disputed that he had a period of operational service. Operational service is included in the definition of “eligible war service” in section 7(1)(a) of the Act.
32. n order for the Applicant to succeed in this claim, he must satisfy the following provisions of Instrument No 28 of 2004, Statement of Principles concerning Hodgkin’s Disease:
“Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Hodgkin’s lymphoma or death from Hodgkin’s lymphoma with the circumstances of a person’s relevant service is:
(a)being infected with human immunodeficiency virus (HIV) before the clinical onset of Hodgkin’s lymphoma; or
(b) inhaling or absorbing a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD) for a cumulative period of at least thirty days, at least five years before the clinical onset of Hodgkin’s lymphoma; or
(c) being:
(i) on land in Vietnam, or
(ii) at sea in Vietnamese waters, or
(iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least thirty days, at least five years before the clinical onset of Hodgkin’s lymphoma; or
(d) being infected with Epstein-Barr virus before the clinical onset of Hodgkin’s lymphoma; or
(e) smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of Hodgkin’s lymphoma, and where smoking has ceased, the clinical onset has occurred within fifteen years of cessation; or
(f) having rheumatoid arthritis at the time of the clinical onset of Hodgkin’s lymphoma; or
(g) undergoing solid organ or bone marrow transplantation before the clinical onset of Hodgkin’s lymphoma; or
(h) inability to obtain appropriate clinical management for Hodgkin’s lymphoma.
Factors that apply only to material contribution or aggravation
6.Paragraph 5(h) applies only to material contribution to, or aggravation of, Hodgkin’s lymphoma where the person’s Hodgkin’s lymphoma was suffered or contracted before or during (but not arising out of) the person’s relevant service.”
33. It was common ground that clinical onset of Hodgkin’s Disease occurred for the Applicant prior to his departure for Bougainville. It is not contended that his service in Bougainville was the cause of this disease. Rather, the fundamental question is whether the circumstances surrounding the delay in diagnosis could be said to be an aggravation of his condition in terms of section 9(1).
34. The substantive assessment of this claim must satisfy the four steps set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The relevant steps are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11)…….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Step 1 of Deledio – Is there material before the Tribunal which points to an hypothesis connecting his condition with circumstances of his service?
35. The ordinary meaning of “Hypothesis” in the Concise Oxford Dictionary (New Edition) defines it as a “proposition made as a basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption”. This was adopted in East v Repatriation Commission (1987) 74 ALR 518.A similar definition was outlined in Repatriation Commission v Stares (1996) 41 ALD 212 at 217 where it was referred to as “a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”. On the basis of the claims made by the veteran, a connection is apparent between his conditions and the claims or circumstances described.
36. The Tribunal must have regard to the requirement to make its determination “after consideration of all of the material”. This was first referred to in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, when the High Court said a reasonable hypothesis is raised when “….the material point to some fact or facts which support the hypothesis”. The term “consideration of all of the material” was further clarified in Repatriation Commission v Webb (1998) 51 ALD 575 where it was held that the overall hypotheses requires consideration of each sequential part of the hypothesis and whether facts point to each part of the hypothesis being reasonable. If each part is reasonable, the overall hypothesis may be reasonable.
37. The Tribunal is of the view that an hypothesis could be made connecting the applicant’s condition with the circumstances of his service. Only if it can be shown that his service in Bougainville was an “aggravation” of his pre-existing condition of Hodgkin’s Disease, according to the legal meaning of the term “aggravation”, for the purposes of the Act.
38. In relation to Step 2 of Deledio, an SoP exists for the condition of Hodgkin’s Disease and which has been issued by the RMA. The relevant Instrument is No 28 of 2004 – Hodgkin’s Disease.
39. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The Explanatory Memorandum to the Act makes it clear that a reasonable hypothesis is not the existence of a mere possibility, but that the intention of the legislation is that a pension will be payable only where the evidence provides “….some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (at page 107).
40. The approach to be adopted in assessing this question was set out by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571 where it was stated:
“The position may be summarised as followed:
(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 in 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 (emphasis added) or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt (emphasis added), thus disproving, beyond reasonable doubt, the hypothesis.” (emphasis added)
41. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit within the template in the SoP for Hodgkin’s Disease. In particular, it must be shown that as a minimum, to connect Hodgkin’s Lymphoma with Dr Smith’s RAAF service, it must be shown that there was an inability for him to obtain appropriate clinical management for that disease. In undertaking this assessment of the third step in the Deledio process, the Tribunal is required to make a relatively macro level assessment of the Applicant’s story and to determine whether it fits within the template provided by the SoP. No findings of fact are made in Step 3.
42. If the Applicant’s version of facts do not fit within the template of SoP of 28 of 2004, then the hypothesis will not be reasonable (section 120(3)). If the Tribunal determines that the hypothesis is not reasonable, then the claim would be unsuccessful. However, to be determined to be a reasonable hypothesis, the Applicant’s hypothesis must be a credible proposition and one that is not too remote or too improbable. It must be “….more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.” (East v Repatriation Commission (1987) 16 FCR 517 at 533.) A hypothesis therefore is merely a possibility, but should be a reasonable hypothesis, it must “…be pointed to or supported, and not merely left open as a possibility by the material before the decision maker”. (Repatriation Commission v Bey (1997) 79 FCR 364 at 372.)
43. In a practical sense, the Tribunal must assume the facts put forward by the Applicant. This evidence or version of events must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission 1989 86 ALR 713). It must also show more than just a temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed the approach of using the “points to” test. In that case, the High Court said that the test in section 120(3) will reveal a reasonable hypothesis where “…. there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
44. The definition of “disease” in section 5D(1)(b), by referring to a “recurrence” of a condition suggests that the legislation intended that any such disease or morbid condition may be a disease although it may not exist permanently (see Repatriation Commission v Yates (1995) 38 ALD 80. However, that definition specifically excludes the “aggravation of such a condition (see section 5D (1)(c)).
45. However, a disease can be “war caused” where it is an aggravation of a pre-existing condition, and this is provided for in section 9(1)(e). In the present case, this is provided for under section 9(1)(e)(ii) where, reading those provisions reddendo singula singulis, it acknowledges a disease which was contracted before operational service and which, the decision-maker regards as having been aggravated by that operational service. For a condition to be affected by “aggravation” this has been considered judicially along with the term “acceleration”. In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 to 640, Windeyer J referred to “acceleration” as pre-supposing a progressive disease which increases in gravity by running its ordinary course. His Honour further considered the term “aggravation” in the High Court decision of Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 where, at 593 to 594, His Honour said: “’aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse”.
46. As the Applicant’s condition is presently in remission, the Respondent submitted that the reference to a “recurrence” in the definition of “disease” cannot be considered strictly, because in the present circumstances, it would be regarded as an increased probability of a recurrence which, he submitted, is not a recurrence in its own right. That may be so, but as the Tribunal has already considered, the basis of this claim is that it is an “aggravation”, and that is excluded from the definition in section 5D(1) in any event. The distinction above set out by the High Court in defining the impact of the word “aggravation” is relevant here. Also, the amount of aggravation need not be quantified but it is generally regarded that it must be more than de minimis(Nowlan v Repatriation Commission (1991) 30 FCR 369).
47. Perhaps the best way to pose the question relevant to whether there has been aggravation, has been highlighted by Repatriation Commission v Yates (supra) and can be put as follows: If the Applicant had a pre-existing condition of Hodgkin’s Disease whilst serving in the RAAF and before undertaking operational service, does that necessitate a conclusion in the present circumstances, that the underlying disease had been aggravated by his operational service of two months?
48. The Tribunal is mindful of the evidence of Dr Taylor who stated to the Tribunal that it is the duty of a physician who is presented with significant symptoms to uncover the cause of those symptoms. He indicated it is often difficult to unravel the true cause of a disease such as Hodgkin’s Disease and often requires radiological tests such as a CT scan, bone scan and MRI. He referred to the fact that the Applicant’s condition is presently in remission and while relapse has sometimes been seen 20 years later, remission for greater than five years reduces significantly the chance of relapse. He thought perhaps the Applicant now had an 85% chance of long term survival and only a 15% chance of relapse. However, he said that he could not say for certain that a diagnosis might have been made earlier had he not gone to Bougainville but it was likely that it could have been diagnosed significantly earlier, had he not gone there. He emphasised that the earlier that such a condition is treated, the lesser the volume of disease which has to be treated.
49. The Tribunal is also conscious of the evidence of Dr Beadle whose specialty is in medical oncology and radiology oncology. He thought that the onset of the disease was in approximately March 1999 and said that it is possible the diagnosis could have been made earlier, although a presentation with back pain would be extremely rare. Dr Beadle presented results of scientific research which is shown in Exhibit 7 – an article entitled “A Prognostic Score for Advanced Hodgkin’s Disease” by Hasenclever and Diehl, and published in the New England Journal of Medicine, November 1998, Volume 339 Number 21. Specifically, the Tribunal was referred to page 1511 of that article which highlights that for patients who have recovered from advanced Hodgkin’s Disease, freedom from relapse after 60 months (as is the case for the Applicant) effectively shows minimal evidence of recurrence. While Dr Beadle indicated diagnosis would have been difficult and was probably discovered by accident, he stressed that an MRI undertaken earlier may have been of great assistance. He also emphasised that the less time in delay in finding this condition, then the greater the chance there would be of complete remission.
50. The Tribunal had regard to the standard of medical care provided by the RAAF. In the case of Rogers v Whitaker (1992) 175 CLR 479 at 487, the High Court said :
"In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill ((32) Cook v Cook (1986) 162 CLR 376, at pp. 383-384; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7, at p 36; Weber v Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v Tressider Andrews Associates Pty Ltd [1987] 2 Qd R 533, at p 542). But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade ((33) See, for example, Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588, at pp. 593, 601). Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied ((34) See Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, at pp 562-563 (case of medical treatment). See also E v Australian Red Cross (1991) 27 FCR 310, at p 360). Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted ((35) Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, at pp 562-563, F v R (1983) 33 SASR 189, at pp 196, 200, 202, 205; Battersby v Tottman (1985) 37 SASR, at pp 527, 534, 539-540; E v Australian Red Cross (1991) 27 FCR, at pp 358-360) the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life' ((25) F v R (1983) 33 SASR 189, at p 193.” (per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at page 487.)
51. Also, Gaudron J from page 492 discusses the same principles and refers the duty in relation to diagnosis and treatment is “… to exercise the ordinary skill of a doctor practising in the area concerned”.
52. That case referred to medical negligence and the standard of care to be provided by an ophthalmic surgeon where a patient who had surgery on her right eye and the requirement to advise that she might develop a condition of sympathetic ophthalmia. Ultimately she did and subsequently suffered almost total blindness. In that case, the High Court rejected the “Bolam principle” which did not regard a doctor as negligent if the practice adopted was consistent with a reputable body of medical knowledge or practice at the time, even if alternative practices are also followed. As stated above, the High Court said it is for the courts to determine the appropriate standard of care, “…after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'”. In that case, the trial at first instance heard that the probability of sympathetic ophthalmia “…occurred once in approximately 14000 such procedures although there was evidence that the chance of occurrence was slightly greater when, as here, there had been an earlier penetrating injury to the eye operated upon. … ”
53. The Tribunal accepted that in this case the likelihood of recurrence of Dr Smith’s disease was not insignificant, taking account of Dr Beadle’s evidence and the epidemiological data he provided, as well as the length of time the disease has been in remission to date.
54. The Tribunal has also to consider that Dr Scott had been in the RAAF for approximately six years at the time he was asked to go to Bougainville. It was at a time when there was a shortage of doctors over the Christmas/New Year period. We also must consider that while he was posted there, he agreed to accept the posting and that there was undoubtedly some benefit for him to go. While we believe he wanted to go to Bougainville for that period, he also had knowledge shortly before he went that he may have had some condition which had presented symptoms for approximately 9 months and which required further investigation. In fact, even upon his return, he waited two and half months before seeking further tests. The evidence shows that there were increased work demands on his return.
55. Considering that evidence, is there a reasonable hypothesis that his posting to Bougainville put him in a position where his condition was aggravated in terms of section 9 (1)(e)? We think it is not a reasonable hypothesis in these circumstances as the medical evidence does not “point to” the hypothesis raised from the 2 months service in Bougainville.
56. Even if we have erred in that conclusion, a further issue considered by the Tribunal was his eligibility under section 13(1) of the Act. This section provides that an applicant, where a veteran, has become incapacitated because of a war-caused disease, then in the case of incapacity, a pension by way of compensation to the veteran should be payable by the Commonwealth.
57. In respect of incapacity, this is defined in section 5D(2) where an incapacity is a reference to the effects of the disease and not a reference to the disease itself (see also Re Bennett and Repatriation Commission (1999) AATA 447). Therefore in the present case, the Applicant’s disease is in remission and therefore the question arises whether there is an incapacity which provides any eligibility for pension under section 13.
58. In this case, the Applicant does not appear to suffer any effects of the disease at the present time as referred in section 5D(2). The effects of a disease such as the one from which the Applicant suffered can often result in an inability to work and generate income. There is no evidence that this applies in the circumstances of the Applicant, as he is a medical practitioner who has completed his fellowship exams of the Royal Australian College of General Practitioners and is currently employed at a Tasmanian Hospital. He does not appear to have, nor was there any submission in relation to, an incapacity of the Applicant in that regard. Clearly, based on the medical evidence, the disease is in remission and there is no physical incapacity to which the Tribunal has been referred. In truth, the Applicant’s circumstances relate to a “past incapacity”. There is no current incapacity which is assessable. (See also Repatriation Commission v Moss (1982) 40 ALR 553). While there is clear evidence of the applicant having had the disease at the times he claims and that this would be a good basis for a claim if he experiences any revival of Hodgkin’s disease in the future, that is a different matter to the assessment of the claim in the present “assessment period” as defined in section 19(9) of the Act.
59. Having considered all of the material, we find there has been an “acceleration” of Hodgkin’s disease for the period of his service in Bougainville. We have taken account of the evidence, specifically accepting Dr Beadle’s timing of onset of the disease , that is, that the disease had its origin about March 1999. However, whether 2 months overseas service could have caused a requirement for 2 months additional radiotherapy and chemotherapy is not definitive from the medical expert evidence.
60. For these reasons and assessing the version of events presented, we are satisfied that a reasonable hypothesis is not “pointed to” by the evidence put to the Tribunal but is merely “left open” on the evidence (Gilbert v Repatriation Commission (supra) and Bushell v Repatriation Commission (supra)).
61. Quite apart from that conclusion, we find that the Applicant cannot succeed
as he has a “past incapacity”, but we can find no present “incapacity” or any effects of the disease which is compensable for the purposes of section 13 of the Act ; and
62.Consequently, the decision under review is affirmed.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Levy, Member and Dr G Maynard, Member
Signed: Jeff Mills.
Legal Research Officer
Date/s of Hearing 26 August 2005
Date of Decision 24 October 2005
Counsel for the Applicant Mr R Anderson
Solicitor for the Applicant Terrence O’Connor
Respondent Mr M Smith, Departmental Advocate
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