Somerset and Repatriation Commission

[2006] AATA 1021

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1021

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/501

VETERANS' APPEALS DIVISION		)
Re		EDWARD PLANTAGENET SOMERSET

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P. M. McDermott R.F.D

Date30 November 2006

PlaceBrisbane  

Decision

The Tribunal

a) sets aside the decision of the Repatriation Commission of 23 July 2004, as affirmed by the Veterans Review Board of 11 July 2005, and in substitution therefore decides that Mr Somerset’s acquired cataract of the right eye is a war-caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 and that he is entitled to receive a pension for the incapacity associated with this condition with effect from 1 December 2003; and

a)    remits the matter of assessment of the rate of pension payable to Mr Somerset to the Repatriation Commission.

................[Sgd]...................................

Senior Member P. M. McDermott R.F.D

CATCHWORDS

VETERANS’ ENTITLEMENTS – non-operational service – claim that acquired cataract of the right eye was war-caused – consideration of Statement of Principles – exposure to metal filings – possible tapeworm in eye -  decision under review set aside.  

Veterans’ Entitlements Act 1986 (Cth) ss 6A, 9, 120(4), 120B and 196A, 196B

Repatriation commission v Budworth (2001) 116 FCR 200; (2001) 66 ALD 285; (2001) 33 AAR 476; [2001] FCA 1421

Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

30 November 2006	Senior Member McDermott
Introduction

1.      Mr Edward Plantagenet Somerset served with the Royal Australian Air Force during World War II. He has a condition of acquired cataract of the right eye.  I have to decide whether this condition can be attributed to his war service.

2.      Mr Somerset is in receipt of the veteran’s pension at 70% of the general rate. I also have to consider whether he is entitled to a veteran’s pension at a higher rate.

Determination of Claim

3.       On 1 March 2004 Mr Somerset lodged a claim for cataract extraction and lens implant surgery in both eyes and an increase in the rate of his pension. 

4.      On 23 July 2004 a delegate of the Repatriation Commission (“the Commission”) determined that the condition of acquired cataract of the left eye is service related but that the condition of acquired cataract of the right eye was not service related. The delegate also decided to continue the payment of pension at the rate of 70% of the general rate.

5.      Mr Somerset sought a review of this decision of the Commission from the Veterans’ Review Board (“Board”). 

6.      On 11 July 2005 the Board affirmed the decision of the Commission.

7.      Mr Somerset has now applied to this Tribunal to review the decision of the Board.

Issues before the Tribunal

8.      I have to decide whether the condition of acquired cataract of the right eye is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the “Act”).

9.      I also have to consider whether Mr Somerset is entitled to a veteran’s pension at a higher rate than 70% of the general rate.

10.     If Mr Somerset is successful in his claim, the date of effect would be 1 December 2003.

Service

11.     Mr Somerset enlisted in the Royal Australian Air Force on 21 December 1942. Because of the course that the war took he did not serve outside Australia. He served with the Air Force until 11 January 1944 when he was discharged to enable him to resume his civilian occupation.

12. I find that the service of Mr Somerset is eligible war service for the purposes of the Act.

Evidence Before the Tribunal

Evidence of the Applicant

13.     Mr Somerset gave evidence that he was born on 15 December 1924.  In April 1942 he was stationed at the Air Force depot at Ultimo. At this time he was learning about aircraft maintenance. He had qualified to do electrical work on aircraft. He was completing a tool-making course and his duties including the making of tools such as spanners.

14.     Mr Somerset stated that he was using flat files to make tools. In his statement he remarks that he was filing, welding and grinding [T4, fol 53]. Whilst he was working he was not given any eye protection such as goggles. He mentioned that “there was a lot of metal filings coming off the equipment”. At this time he was working in one building with 400 other persons. It was hot and he was sweating. The tenor of his evidence is that he would have been continuously mopping his brow.

15.     On 12 April 1943 he attended at the medical centre at the Air Force depot at Ultimo. He needed treatment to remove a metal filing in his left eye. He still remembered the event. He mentioned that his eye was “grating all the time”. He stated that he thought that the filing could have been transferred into his eye when he wiped his face with his arm. Mr Somerset said: “And there was – and files used to get a filing and what I must have done I must have had some on my arm and I wiped my eye like that and I must have got a piece of metal embedded in my eye”.

16.     Mr Somerset said that after the piece of filing was removed from his left eye, an eye patch was placed on that eye and left there overnight.

17.     Mr Somerset gave evidence that on 13 April 1943 he again attended the medical centre at the Air Force depot at Ultimo. At that time the pad over his left eye was removed. He stated that a worm, which he regarded as a taeniae, was taken out of his right eye. He explained: “When they took out it the – they sat me in a chair like this and they had a – my head held there and they had someone holding my head tight and then they deadened my eye and I felt a couple of snips, and then they scraped a curtain off my eye.”

18.     Mr Somerset believed that he had “must have picked up one of these taeniae or whatever you call them” because he was sleeping on a straw palliasse on a cement floor. He thought that the sleeping quarters, with their proximity to water from the morning showers, had resulted in the worm getting in his eye.

19.     Mr Somerset recalled complaining about what he regarded to be a worm in his eye. He said that it “started growing and it grows – it was growing over my eye, and I complained about it, and it was after they did his eye, the next day they had a look at it and they cut it off”.

20.     There is also evidence before me that in 1943 Mr Somerset was involved in a training accident in Shepparton when he was undertaking a commando course. On that occasion he was “blown up” by gelignite. He was apparently unaware that gelignite was involved in this incident, and later learned about the incident at a unit reunion in 2002. Mr Geoffrey John Wockner gave a statutory declaration in which he verified the use of gelignite on the commando course.

21.     A report from Dr Kennedy is in evidence before me in which there is a discussion of possible sound pressure levels that Mr Somerset would have experienced when he was “blown up” by gelignite [T4, folio 77-80]. Dr Kennedy’s  curriculum vitae is also in evidence before me [T4, folio 81-83].

22.     Mr Somerset mentioned that in later years a cataract had developed on his left eye. That cataract was removed in 1997 or 1998.

Medical Evidence

23.     There is evidence before me which verifies that Mr Somerset has acquired cataract in the right eye: see report of Dr Richard Juhasz, dated 16 March 2004 [T4, folio 29].

24.     The service medical records of Mr Somerset from 17 January 1943 until 20 December 1943 were admitted into evidence [ex. R1].

25.     Dr P A Grant Senior Medical Officer Compensation, Queensland State Office, Department of Veteran’s Affairs gave evidence before me. He also gave a report dated 22 August 2005 which was admitted into evidence [ex. R2].

26.     In that report Dr Grant commented:

“The clinical entries from 12 April 1943 to 14 April 1943 in the service medical records discuss a foreign body in the left eye and a concomitant but apparently unrelated coryza or common cold.  There are no details of how the foreign body involved the eye. Treatment appears to have been by instilling topical cocaine as a local anaesthesia and argyrol (probably a sliver-based compound for antisepsis) as well as atropine and presumably the foreign body removed”.

27.     Dr Grant in his report stated that there are no clinical notes to substantiate a right eye injury of any type.

28.     Dr Grant in his report also stated he was unable to comment upon the significance of the words “taenia crep”. However, in evidence before me Dr Grant acknowledged that some types of tapeworm (taenia saginatum) can have ocular involvement.

29.     There is one matter of significance that Dr Grant quite properly commented on in his evidence before me. In the entry for 12 April 1943 in the service medical records there appears to be a drawing of an eye.

30.     Dr Grant commented that the drawing of the eye appears to be the drawing of a right eye. Dr Grant said: “If you look at a person, they generally have more clear space on the lateral aspect, so that it looks like a right eye if you look at it”.  Dr Grant explained that “[the] way that the pupil is drawn the position of it, looks like the nose would be to the right of it actually, the way that pupil is drawn’.

Legislative Background

31. As the applicant has not performed operational service, as defined in s 6A of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying s 120(4) of the Act. This provision requires the Commission to decide this matter to its reasonable satisfaction: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-5.

32.     I must determine this claim on the civil standard of proof, namely proof on the balance of probabilities: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

33. Under s 120B of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonable satisfaction is assessed in accordance with that SoP.

34. Section 196A of the Act provides for the establishment of the RMA. Section 196B(3) of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to eligible war service (other than operational service) rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, an injury, disease or death is connected with the circumstances of the veteran’s service.

35.     The reference in s 196B (3) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14).  This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

36.     As Mr Somerset gave evidence that he attended the medical centre at the Air Force depot at Ultimo during his attendance at a tool-making course I find that he was on eligible war service at the time of the incident: see s 196B (14)(c).

Consideration

37.     I have relied upon the unchallenged report of Dr Juhasz that Mr Somerset has acquired cataract in the right eye: see report of Dr Richard Juhasz, dated 16 March 2004 [T4, fol 29]. I find that Mr Somerset has an acquired cataract in his right eye.

38.     It is important to appreciate that this accident occurred more than 60 years ago when Mr Somerset was a young man of 19 years of age.

39. I accept that Mr Somerset was an honest witness, who endeavoured to recollect the details of the incident to the best of his ability. In assessing his evidence I am required by the Act to have regard to the passage of time: see s 119(h)(i) of the Act.

40. I am required to consider whether there is material before me which raises a connection between the claimed conditions of Mr Somerset and his service as required by s120B(3)(a) of the Act.

41.     In this respect I rule that there is evidence which raises a connection between his service and the injury to his right eye. This is because there is unchallenged evidence of Mr Somerset that during his service at the Air Force depot at Ultimo something was taken from his right eye. It is true that there is no documentary evidence about what was removed from his right eye. However, there is unchallenged evidence before me that something was removed from his eye.

42. I must next consider, as required by s120B (3)(b) of the Act, whether there is in force a SoP that upholds the contention that the injury or disease is, on the balance of probabilities connected with that service.

43.     There is a SoP with respect to acquired cataract, this SoP being Acquired Cataract (Instrument No. 38 of 2001).

44.     The main issue before me in relation to the SoP for Acquired Cataract (Instrument No. 38 of 2001) is whether there is evidence of the veteran “suffering physical trauma to the eyeball of the affected eye before the clinical onset of acquired cataract”: see factor 5(g).

45.     I have to consider whether there is material before me which would justify a conclusion that factor 5(g) of the SoP for Acquired Cataract (Instrument No. 38 of 2001) is satisfied in this case.

46.     Mr Somerset had given unchallenged evidence that where he was working at the Ultimo depot “there was a lot of metal filings coming off the equipment” and that he did not have any eye protection

47.     I appreciate that Mr Somerset believes that a worm was removed from his eye but having regard to the evidence of Dr Grant I do not consider that event to be probable. Dr Grant was unable to find any reputable published papers that describe eye involvement with tapeworm (Taenia Saginatum or Taenia Solium). He mentioned that this appears to be a condition seen in Africa; however I accept the evidence of Mr Somerset that something was definitely removed from his right eye.

48.     I have already mentioned that Mr Somerset has given evidence about his attendance at the medical centre at the Ultimo depot. Mr Somerset has stated that he was sat in a chair, his head was held tight, his right eye was “deadened”, he “felt a couple of snips” and then “they scraped a curtain off my eye”. He also stated that the pad over his left eye was removed.

49.     The fact that the right eye of Mr Somerset was “deadened” is evidence that some local anaesthetic had been applied to the eye. The fact that local anaesthetic was applied to that eye is consistent with the removal of some foreign body from that eye.

50.     I regard it as significant that Mr Somerset in his evidence stated that something was “cut” from his right eye. This, in my opinion, is evidence that there was some intrusion into the eye.

51.     The fact that Mr Somerset “felt a couple of snips” is consistent with the conclusion that something had been removed from his eye.

52.     The notes in the medical records are brief and in my view call for me to apply s 119(1)(h) (ii), to take into account a deficiency in these official records.

53.     The entry for 12 April 1943 contains the letters “FB”. I accept the interpretation put on those notes by Dr Grant that these letters refer to a foreign body.

54.     I also make the observation that the entry in the medical records for 13 April 1943 which refers to “Pupil dilated. Eye inflamed.” does not expressly mention whether it was the left eye or right eye that was inflamed.

55.     There is also no indication in the medical records of what foreign body was removed from the left eye. I, however, accept the explanation put forward by Dr Grant that the foreign body was a metal filing. That is because on the next day there was a notation “to have staining removed”. 

56.     The drawing of what appears to Dr Grant to be a right eye is located after the entry for 12 April 1943 that states “FB, left eye and corysa”. I accept Dr Grant’s interpretation that the entry refers to “a foreign body in the left eye and a concomitant but apparently unrelated coryza or common cold” [ex. R2].

57.     The drawing of the right eye was made at the time when the foreign body was removed from the left eye. I consider that this drawing would not otherwise have any purpose unless it was an aide memoir to the medical officer who made the entry (or some other medical officer who would be on duty) that the right eye required attention.

58. I have come to the conclusion that it is more probable than not that a metal filing was removed from the right eye. In coming to this conclusion I have endeavoured to be “fair” and “just”: see Administrative Appeals Tribunal Act 1975, s 2A.

59.     I consider that a metal filing in the right eye would constitute a “penetrating injury” within the meaning of cl 8 (a) of the definition of a “physical trauma” that is contained in the SoP. There is, however, no evidence before me that the other parts of that definition are satisfied in this application (cl 8 (b) and (c)).

60.     There is also material before me that evidences the clinical onset of acquired cataract in the right eye in 2004. This is the report of Dr Juhasz: dated 16 March 2004 [T4, fol 29].

61.     The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. In that case the Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:

“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”

That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.

62.     I accordingly conclude that has been “the clinical onset of acquired cataract” as required by factor 5(g) of the SoP. There is also the satisfaction of the requirement that the clinical onset has occurred after the wartime “physical trauma” to the right eye: see factor 5(g).

63.     I have spent some time in considering the material which has been placed before me concerning the training accident in 1943 when Mr Somerset was undertaking a commando course. I do not consider that this material enables me to conclude that there was a “physical trauma” to the right eye on that occasion. I also mention that the report of Dr Kennedy does not address the requirements of the SoP that is under consideration in this application. It is for this reason that I accept the submission of the Commission that the report of Dr Kennedy does not assist in the understanding of the present claim.

Conclusion

64.     For the above reasons, I am satisfied on the balance of probabilities that the condition of acquired cataract of the right eye is a war-caused disease.

65.     I will remit the matter of the assessment of the pension to the Commission.  I make this decision because of arrangements made during the hearing to conduct some more hearing tests with the consent of Mr Somerset. The result of these new tests could affect the level of the pension.

66.     I also make the observation that a medical document of what purports to be the copy of Mr Somerset’s discharge examination appears on a RAAF form that was revised in June 1951, although the examination was on 6 January 1944 [T 4, folio 5]. It is unsatisfactory that the original document was not in the T documents.

67.     I wish to record my appreciation of the assistance which was provided to me by Mrs Somerset. Hearing loops were installed to enable Mr Somerset to listen to the proceedings. I also wish to record my appreciation of the assistance provided by Mr Williams, the advocate of the Commission, who has assisted Mrs Somerset in presenting the case for her husband and ensuring that Mr Somerset has had procedural fairness accorded to him.

68.     During the hearing of this application Mrs Somerset had stated that she had obtained a medical opinion. Mrs Somerset was given time to obtain such a report which addressed the requirements of the SoP. I accept the submission of the Commission that the recent medical report that has been obtained adds little to the understanding of the claimed condition: see submissions dated 28^th November 2006, paragraph 24.

Decision

69.     I set aside the decision of the Board under review and in substitution I decide that Mr Somerset’s condition of acquired cataract of the right eye is a war-caused disease.

70.     I decide that Mr Somerset is entitled to receive a pension for the incapacity associated with this condition, the date of effect being 1 December 2003.

71.     I remit the matter of assessment of the rate of pension payable to Mr Somerset to the Repatriation Commission. The medical officer has made a recommendation of an increase to the rate of the pension. A specialist has also recommended that a further assessment of Mr Somerset’s lung function be made.

72.     I do not consider that there is material before me which justifies the payment of pension at either the intermediate rate or the special rate.

I certify that the 72 preceding paragraphs are a true
copy of the reasons for the decision herein of
Senior Member McDermott

Signed:         ....................................................................................
  Legal Research Officer

Date/s of Hearing  28 March 2006  
Date of latest submission         29 October 2006
Date of Decision  30 November 2006

For the Applicant  Mrs Somerset appeared for Mr Somerset who has hearing difficulties.

Advocate for the Respondent   Mr B Williams