Stevenson and Repatriation Commission
[2004] AATA 93
•4 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 93
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/392
VETERANS' APPEALS DIVISION ) Re RONALD STEVENSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Dr. P. Fricker, MemberMr. W.G. McLean, Member
Date
4 February 2003
Place
Melbourne
Decision The Tribunal affirms the decision under review.
[sgd] Mrs Joan Dwyer
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – eligible service – standard of proof for determination that disease or injury is war-caused – reference to relevant Statements of Principles – Tribunal’s inquisitorial role – lumbar spondylosis not war-caused – hiatus hernia not war-caused – gastro oesophageal reflux disease not war-caused – decision under review affirmed.
LAW REFORM – request for review of SoP for Hiatus Hernia – Instrument No. 43 of 1999.
Veterans’ Entitlements’ Act 1986, ss 6- 6F, s 7, s 120 and s 120B.
Administrative Appeals Tribunal Act 1975, s 37.Statement of Principles Instrument No. 47 of 2002
Statement of Principles Instrument No. 43 of 1999
Statement of Principles Instrument No. 53 of 2002
Statement of Principles Instrument No. 63 of 1999Repatriation Commission v Smith (1987) 74 ALR 537.
Re Sharkey and Repatriation Commission (1988) 15 ALD 782.
Repatriation Commission v Gorton (2001) 65 ALD 609.
Bushell v Repatriation Commission (1992) 109 ALR 30.
Benjamin v Repatriation Commission (2001) 34 AAR 270.REASONS FOR DECISION
4 February 2004 Mrs Joan Dwyer, Senior Member
Dr. P. Fricker, Member
Mr. W.G. McLean, Member
1. This is an application for review of a decision of the Repatriation Commission made on 22 August 2001 which rejected Mr Stevenson’s claim to have gastro-oesophageal reflux disease, lumbar spondylosis and hiatus hernia accepted as war-caused diseases under the Veterans' Entitlements Act 1986 (“the Act”). The decision of the Repatriation Commission was affirmed by the Veterans’ Review Board on 10 September 2001.
2. Mr De Marchi, a solicitor, appeared for Mr Stevenson. Ms McCulloch, an advocate with the Department of Veterans’ Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. Mr Stevenson gave evidence. Evidence on his behalf was also given by Mr Marshall, a general surgeon with a special interest in gastroenterology, and by Mr Billet, an orthopaedic surgeon. The respondent called Dr Moran, a gastroenterologist.
3. Mr Stevenson served in the Australian Army between 19 January 1942 and 11 December 1945. His service was all within Australia and is “eligible war service” as defined in s 7 of the Act, but not “operational service” within the terms of ss 6 – 6F. Accordingly, the standard of proof for determining the claim is that in s 120(4) of the Act which provides as follows:
120Standard of proof
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
4. As the claim was lodged after 1 June 1994, the provisions of s 120B of the Act apply. Where there is a Statement of Principles (“SoP”) in respect of a relevant condition, s 120B(3) of the Act sets out the circumstances in which the Commission can be reasonably satisfied that the injuries or diseases were war-caused. It provides as follows:
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
5. The Full Court of the Federal Court in Repatriation Commission v Smith (1987) 74 ALR 537, at 545-547 explained the meaning of the “reasonable satisfaction” standard of proof:
This expression has a settled meaning, at least in a curial context. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at 362): "… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.
LUMBAR SPONDYLOSIS
6. There is no dispute about the fact that Mr Stevenson suffers from lumbar spondylosis. He had a lumbar laminectomy on 10 March 1993. A CT of the lumbar spine on 22 September 1992 was reported as follows (R3 p22):
The lumbar spine views reveal changes of moderately severe central spinal stenosis at the L.4-5 intervertebral disc space level. The dimensions of the foramina and the remainder of the spinal canal are within normal limits.
The density of the body of L.1 is increased. The increased density extends into its neural arch. Both within it and within the remaining vertebral bodies are a number of small scattered lucent areas, which probably represent focal osteoporetic changes. A less likely explanation is small metastatic deposits or small myelomatous deposits.
7. The parties agreed that the relevant SoP in respect of lumbar spondylosis is Instrument No. 47 of 2002, as amended by Instrument No. 78 of 2002. Paragraph 5 sets out the factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of a person’s relevant service. The only factor relied on by Mr Stevenson is factor (g) which provides:
(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis.
8. The phrase “trauma to the lumbar spine” is defined by Clause 8 of the SoP, which provides:
“trauma to the lumbar spine” means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.
9. In support of his claim that his lumbar spondylosis is war-caused, Mr Stevenson provided two statements dated 19 June 2002 (A1) and 13 January 2003 (A2). The second statement dealt with the issue of the lifting of weights, which was not pursued at the hearing (trans, p137). So far as relevant to the claim in respect of lumbar spondylosis, Mr Stevenson stated in his first statement (A1):
2.During my service with the anti-tank company I was required to move and position the anti-tank weapons at Bonegilla. In June 1942, I developed acute, severe low back pain after moving a gun. I fell onto my knees and 3 or 4 men carried [me] to the medical orderly’s hut. There was no doctor at this unit. The orderly sent me to bed for 10-14 days, during which time the orderly massaged my back two or three times per day. This incident was never recorded in my medical records. I was given taking [sic] 6-8 Aspros per day. I gradually recovered from this complaint over the next month or so.
3.However, I have suffered from episodic back pain since my Army service, and continued to take Aspros 6-8 per day every time my back became worse.
. . .
7.After service I was prescribed Indocid by my doctor to relieve back pain. Around 20 years ago I was prescribed Brufen also for back pain. The last 2-3 years I have been taking Celebrax.
8. I underwent a laminectomy around 1994.
10. Mr Stevenson in his evidence insisted that the incident he described, when he hurt his back while lifting a gun as part of a gun crew (“the gun incident”), had happened while he was at Bonegilla. He was vague as to how long he had been at Bonegilla and as to the month in which the incident occurred. At first he said that it was in late May 1942. Ms McCulloch, in cross-examination, put to Mr Stevenson that his service records (T4, p2) showed that he was only at Bonegilla from 3 April to 12 May 1942, when he was evacuated to Caulfield Hospital (“Caulfield”) for gastric problems. Mr Stevenson could not remember being in Caulfield in May 1942, although, according to the service records, he was there from 12-23 May. When that was pointed out to him, he was of the view that, in that case, the incident must have occurred in April or early May 1942.
11. The evidence as to the time Mr Stevenson spent having bed rest in his hut, as treatment prescribed by the Medical Orderly, was vague and confusing. As set out in paragraph 5 of these reasons, Mr Stevenson said in his statement (A1) that it was for 10 to 14 days. That was not consistent with what he had written in his Claimant Report (T12 p54) where he wrote in answer to Question 1:
I was taken to the Medical Tent where the Medical orderly gave me some aspirin and told me to stay on my back for 3 or 4 days. I had many days in bed over a long period of time then and over my life time. Approx. 1942 was the year of this problem.
Mr Stevenson answered Question 8, which asked whether medical treatment was prescribed (T12 p55):
I was given Aspirin a couple of times a day for approx 4 or 5 days that was the only treatment I received. I was given leave approx 2 weeks later for 4 days when I got back to camp my Unit had shifted out I went to other Training units in the area but no one wanted to do anything with me so I came back to transit Depot at Royal Park.
12. Ms McCulloch submitted that the Tribunal should not accept as reliable Mr Stevenson’s account of acute severe low back pain following the gun incident. Ms McCulloch pointed out, first, that there was no mention of the incident in the medical records, and that an absence from duty of that period could be expected to have been recorded. That is particularly so as Mr Stevenson was in Bonegilla and not out in the field, where there may not have been ready access to medical treatment. Secondly, the respondent relied on service records showing that Mr Stevenson had not given an account of any incident affecting his back during service, either at the time of discharge or in histories given to doctors at other times. Thirdly, Ms McCulloch pointed to inconsistencies in the accounts of the incident Mr Stevenson had given at different times.
13. As to the first of those points, we find it not probable that Mr Stevenson would have been confined to bed in his hut for two weeks, while at Bonegilla, without ever seeing a doctor, and with no annotation on his service records. We note that there are quite detailed and full service medical records concerning Mr Stevenson.
14. As to the second point, Mr Stevenson’s statement on discharge does not refer to any back condition (T4 p9). It only mentions dyspepsia and another disease, for both of which Mr Stevenson had hospital treatment. Although Mr Stevenson said in his evidence that he had been transferred to lighter duties during service, and had lost a number of days from work, because of back pain, the back condition is not mentioned in the discharge statement. There are questions as to “other ailments” and as to “persisting disability”, but the back problem is not referred to at all. We consider that to be relevant. We are aware that Mr Stevenson said that the form was not completed by him, but he did sign it. If he believed it was incorrect, he had the opportunity to amend it.
15. There is no mention of the back condition in any service records. There are records which show that Mr Stevenson was evacuated from Bonegilla to Caulfield because of stomach trouble on 12 May 1942. The T documents include a medical history taken at Caulfield on 14 May 1942 (T4 p13) which is as follows:
Says he has had stomach trouble for three years. The I.P. here from January 23rd this year and was in about three weeks and five days.
Has not been well since discharge.
Has had to live on milk, eggs, tea and toast, fish etc., but vomits if takes meat, stews, cabbage etc.
Gets pains in pit of stomach 1-1½ hours after meals and during the night.
16. We agree with Ms McCulloch, that if Mr Stevenson had been confined to bed for 10 to 14 days of the preceding five weeks, due to back pain, and had been having his meals brought to him, as he said had happened, that would be expected to be included in the history he gave on admission to Caulfield.
17. Further, when Mr Stevenson attended Royal Melbourne Hospital Urology Department in 1986, he gave a history which included reference to his back pain, but there was no mention of the gun incident. The first relevant incident he mentioned was a fall in 1964, but he seems to have said that the back pain commenced in the early 1970’s. The following entries are taken from the clinical notes (R5 pp11-12):
26 MAR 1986
64 year old man presented to his local doctor with 6 months of lumbar back pain. No radiation. PH cervical pain.
6 MAY 1986
P.C. 64 y.o. married man with long PHx of asthma and arthritis of neck now presents with 12 mth Hx of lower back pain FI. Limitation of movement is main worry.
PHx Bronchial asthma – since childhood.
Fall – 20 feet 1964
Arthritis – 1967-68 – mainly in neck.
….
SHx In building trade for 45 years – builder Lived in Glenroy with wife for 38 years.
PHx Early 1970’s, started back problems – went into traction 2-3 x for 1 week – ~ 12 mths between each time.
12 mths ago – started again. Free of pain prior to this.
Pain: - “agonising pain” – not sharp – starts in lower back in middle – duration up to 3 weeks at a time – relieved by sitting and leaning to right side or having s/o massage along spine – can happen early in morning – difficult to get out of bed – OK after warmed up.
- radiates down to knees on one or both sides legs feel weak.
- sleep not affected. Says bad sleeper anyway.
- does exercises each day for ~ 10 mins – feels “not hurting”
Went to Glenroy to local doctor for fortnightly visit → X-rays (neck, lower spine – G.P. thought he had tumour of spine)
…
From letter: X-ray – showed right hemi-pelvis sclerotic.
bone scan – compatible with Paget’s disease.
serum acid phosph – normal
serum alk phosph – “markedly elevated”.
→ refer to Dr Greenberg for assessment. (emphasis added)
18. The history of the clinical onset of the lumbar spondylosis given by Dr McMaster in his diagnostic report to DVA (T p34) does mention the gun incident.. But it gives quite a different account of the way that incident was treated, as there is no mention of any prescribed bed rest. Dr McMaster wrote:
1st started when he was moving guns during the war (saw the Reg Med Officer on several occasions).
19. The third point made by Ms McCulloch was that Mr Stevenson himself seemed very confused about the length of time he was disabled after the gun incident. She pointed to the inconsistency between the statement (A1) and the Claimant Report (T12 pp54-55). Further, when the Tribunal asked Mr Stevenson how he knew it was 10 to 14 days that he was confined to bed, he said he did not really remember how long it was. He added that it could have been 8 days or 2 weeks.
20. We find it improbable that a Medical Orderly would have treated Mr Stevenson with bed rest for 10 to 14 days without referring him to a doctor during that period. We find it more probable that, as Mr Stevenson said in his trauma report, he was only off duty and under treatment from a Medical Orderly for three or four days, and that he then returned to his normal duties.
21. We realise, as Mr Stevenson pointed out, that it is difficult to expect someone to remember precise details of an event which happened more than 60 years ago. On the other hand, we find it difficult to understand how Mr Stevenson could be clear that he had signs and symptoms requiring him to be in bed for 10-14 days after the gun incident, and yet not remember a 10 day hospital admission for his stomach problem at about the same time. Also Mr Stevenson said that he was sent on a few days leave shortly after the gun incident and when he returned to Bonegilla from Shepparton, he was unable to find and rejoin his unit at Bonegilla. He said he had to go back to Caulfield Transit Depot to be transferred to another unit. (trans, p10). There is no reference in the service records to any such transfer between 6 April and 12 May 1942, and from that date Mr Stevenson was in Caulfield Hospital. We find that Mr Stevenson’s recollection of events in May 1942 is confused. While we do not find that Mr Stevenson was intentionally trying to mislead the Tribunal, we have concluded that, after so many years, his recollection of the gun incident is not reliable.
22. We cannot be reasonably satisfied on the evidence that after the gun incident Mr Stevenson did suffer “symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine” lasting for at least 10 days following their onset.
23. As set out in paragraph 5 of these reasons, the Federal Court in Smith said that “reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. That describes the nature of the evidence before us in this matter.
24. Mr De Marchi relied on s 119 of the Act, which provides:
119 Commission not bound by technicalities
(1)In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)in the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
25. We do not consider that s 119 assists Mr Stevenson. It can not provide evidence which is otherwise lacking or unsatisfactory. As the Tribunal said in Re Sharkey and Repatriation Commission (1988) 15 ALD 782,
The Tribunal must consider all the evidence before it and then reach a conclusion as to whether the facts necessary to establish the claim are satisfactorily established, bearing in mind the ameliorative effects of s 119 and s 120 of the Act.
26. We are not “reasonably satisfied” that the gun incident meets the definition of “trauma to the lumbar spine” in the relevant SoP, because we find Mr Stevenson’s evidence as to the length of time he was in bed and as to the seriousness of the incident to be improbable. Further there are inconsistencies in the evidence. The problems are not caused by an absence of records, but by the fact that detailed service records, including the discharge statement, service medical records, and also post-service medical records do not mention either the gun incident, or any back pain during service. Further, the records are inconsistent with Mr Stevenson’s recollection of that incident, both as to when it occurred and as to his account of being transferred to another unit after coming back from a few days leave after the incident.
27. We are not reasonably satisfied that the evidence as to the gun incident raises a connection between lumbar spondylosis and the circumstances of Mr Stevenson’s service, which is recognised by SoP No. 47 of 2002. In particular we are not satisfied that the definition of “trauma to the lumbar spine” has been met so as to satisfy factor 5(g) of the SoP. Therefore, the aspect of the decision dealing with lumbar spondylosis is affirmed.
HIATUS HERNIA
28. The parties agreed that the relevant SoP is Instrument No. 43 of 1999.. Mr Stevenson relies on factor 5(a) which is the only factor in the SoP which allows a finding that hernia is connected with service. It provides as follows:
5. The factor that must exist before it can be said that, on the balance of probabilities, hiatus hernia or death from hiatus hernia is connected with the circumstances of a person’s relevant service is:
(a) for paraoesophageal hiatal hernia only, inability to obtain appropriate clinical management for hiatus hernia.
29. There is an issue as to the diagnosis of hiatus hernia in this matter. The SoP defines hiatus hernia, at paragraph 2(b), as follows:
(b)For the purposes of this Statement of Principles,
“hiatus hernia” means a herniation of part of the stomach into the thoracic cavity through the oesophageal hiatus in the diaphragm, attracting ICD-9-CM code 551.3, 552.3, 553.3 or 750.6. This definition includes sliding hiatal hernia and paraoesophageal hiatal hernia.
30. That definition is somewhat confusing as, although it expressly states that hiatus hernia “includes sliding hiatal hernia and paraoesophageal hiatal hernia”, the only factor recognised in clause 5 of the SoP applies to paraoesophageal hiatal hernia only.
31. Not only does the SoP apply to paraoesophageal hiatus hernia only, it also recognises only a contribution to or aggravation of a paraoesophageal hiatal hernia “not arising out of” a person’s service. Clause 6 provides:
Factors that apply only to material contribution or aggravation
6. Paragraph 5(a) applies only to material contribution to, or aggravation of, hiatus hernia where the person’s hiatus hernia was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
32. Thus, the only hiatus hernia which can be accepted as war-caused is a “material contribution to or aggravation of paraoesophageal hiatal hernia where the person’s hiatus hernia was suffered or contracted before or during (but not arising out of) the person’s relevant service”.. It is hard to understand why an aggravation of a sliding hiatal hernia, caused by an inability to obtain appropriate clinical management for that hiatus hernia, should not also be recognised by the SoP.
Diagnosis of Hiatus Hernia
33. It is not in dispute that Mr Stevenson has a hiatus hernia, but because of the terms of the SoP, the first step is to consider the appropriate description of Mr Stevenson’s hiatus hernia. Mr Marshall gave evidence on behalf of Mr Stevenson. It was his opinion that Mr Stevenson does not have a paraoesophageal hiatal hernia. He wrote (A4, p2):
The Statement of Principles regarding hiatal hernia with or without gastro-oesophageal reflux is confused. There is no clear statement about the origin of hiatus hernia in terms of war service except for the bald statement that hiatus hernia per se can only be acceptable if it is a para-oesophageal hernia. (This is a very rare type of hiatal hernia which is not associated with reflux in which some of the stomach fundus near the gastro-oesophageal junction herniates up alongside the oesophagus. The gastro-oesophageal junction itself remains exactly where it should be normally – that is, below the diaphragm. Quite clearly this is not the case with Mr. Stevenson.)
34. Mr Marshall, who is a general surgeon specialising in surgical gastroenterology, is extremely well qualified, having been head of gastroenterology at Prince Henry’s Hospital from 1980 until the hospital closed. He said (trans, p29):
He doesn’t have a para-oesophageal hernia and I can’t imagine what was in the minds of the medical advisers when they wrote that thing and said this only applies to para-oesophageal hiatal hernia. It is a nonsense. It is an extreme rarity. I have seen two in my life. I mean it simply doesn’t happen and if it does happen it doesn’t matter anyway because it is not associated with reflux and it doesn’t need anything done about it.
Mr Marshall added, at trans p30-31,
I have seen dozens and dozens and dozens of sliding hiatal hernias, but para- oesophageal hernia is … very rare. Just to make matters – I am sorry to do this but I must, just to make matters worse for you, ma’am, a sliding hiatus hernia is like a sleeve of stomach which goes up into the chest and the opening of the gullet into that sleeve comes in at the top, but because of the anatomy of the area it does tend to roll in an symmetric manner and the left side of this sliding hernia does tend to roll up alongside the oesophagus so there is a paraoesophageal element in it and many doctors are terribly confused and call that a paraoesophageal hernia which they should not, because a para oesophageal hernia can only mean, to be exact about it, that the oesophagi gastric junction is underneath the diaphragm where it ought to be and it stays there and a piece of stomach goes up into the chest alongside it. That is a paraoesophageal hernia. But the sliding hiatal hernia and this one, all big sliding hiatal hernias, do have a paraoesophageal element and it may well be that that is what the people who made up this statement of principles had in mind and if that is so they have just completely screwed the whole thing up, absolutely.
35. Mr Marshall went on to discuss what he referred to as factor 5(b) in the SoP. The hiatus hernia SoP does not include any factor 5(b). Mr Marshall was referring to factor 5(b) of the SoP for gastro-oesophageal reflux disease (No. 63 of 1999) which is considered in the next section of these reasons.
36. Mr Marshall’s opinion that Mr Stevenson has a sliding hiatal hernia and not a paraoesophageal hiatal hernia was supported by Dr Moran in his evidence (trans p117) and in his report of 28 November 2002 (R1). In view of the agreement on this point between the two expert witnesses, there is no way in which the Tribunal can find that Mr Stevenson’s hiatus hernia is war-caused. Thus, the aspect of the reviewable decision dealing with hiatus hernia must be affirmed.
37. However, in view of Mr Marshall’s emphatic criticism of the SoP, we have decided to raise the question of whether it should be reviewed. We find it difficult to understand why the SoP does not recognise the possibility that sliding hiatal hernia and paraoesophageal hernia could both be acquired or aggravated by service-related activities which cause an increase in abdominal pressure. Mr Marshall said that a hiatal hernia, like any other hernia, can be caused or aggravated by an increase of intra abdominal pressure. During the hearing, the Tribunal referred to Black’s Medical Dictionary (MacPherson, G. (ed.), 39th ed., A & C Black, London, 1999) (“Black”) and to Harrison’s Principles of Internal Medicine (Harrison, T.R., & Braunwald, E., 15th ed., McGraw-Hill, New York, 2001) (“Harrison”). Black refers to chronic coughing and straining due to constipation as causing an increase in abdominal pressure such as to result in an acquired hernia. Harrison gives “forceful vomiting” as an example of a mechanism which increases oesophageal pressure so as to cause an acquired hernia. It is difficult to understand why activities which increase oesophageal pressure and may cause an acquired hernia or aggravate an existing hernia are not recognised in the SoP.
38. We hope that our comments in the preceding paragraph may lead to some review of the SoP, but our reservations about the relevant SoP cannot play any part in the decision-making process. The Tribunal is bound by s 120B(3) of the Act to be reasonably satisfied that a disease is war-caused only if the material before the Tribunal raises a connection between the disease and service, which is upheld by the relevant SoP. We have not been able to be satisfied of any connection, recognised by the relevant SoP, between Mr Stevenson’s sliding hiatal hernia and his service.
GASTRO-OESOPHAGEAL REFLUX DISEASE
39. Mr Stevenson was diagnosed as suffering from gastro-oesophageal reflux disease by Dr Pritchard in 1998 (R3 p62), although he would have had the disease earlier than the diagnosis, as it was described as “significant” when diagnosed.
40. In regard to the claim in respect of gastro-oesophageal reflux disease it was contended by the respondent that the appropriate SoP is Instrument No. 53 of 2002. In the Applicant’s Statement of Facts and Contentions, Mr De Marchi referred to Instrument No. 63 of 1999. Mr De Marchi stated that Mr Stevenson relied on factors 5(a) and (b) in Instrument No. 63 of 1999. They are as follows:
5. The factors that must exist before it can be said that, on the balance of probabilities, gastro-oesophageal reflux disease or death from gastrooesophageal reflux disease is connected with the circumstances of a person’s relevant service are:
(a) being treated with a smooth muscle relaxant drug for a condition for which the drug cannot be ceased or substituted, at the time of clinical onset of gastro-oesophageal reflux disease; or
(b) suffering from hiatus hernia at the time of clinical onset of gastro-oesophageal reflux disease; or
41. In the current SoP, No. 53 of 2002, the corresponding factors are 5(a), and (f) which are in identical terms to the factors in the earlier SoP. They provide as follows:
5.The factors that must exist before it can be said that, on the balance of probabilities, gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease is connected with the circumstances of a person’s relevant service are:
(a)suffering from hiatus hernia at the time of the clinical onset of gastro-oesophageal reflux disease; or
(f)being treated with a smooth muscle relaxant drug for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of gastro-oesophageal reflux disease.
There is also an additional relevant factor, factor (g) which provides:
(g)being treated with a nonsteroidal anti-inflammatory drug for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of gastro-oesophageal reflux disease.
42. Although Mr De Marchi, in his Statement of Facts and Contentions, had not indicated that he relied on any factor relating to clinical worsening, he did so during the hearing. This was because Mr Marshall said that he thought it was probable that Mr Stevenson was suffering from some gastro-oesophageal reflux disease prior to enlistment, because of the history of two hospital admissions during service and a suspected ulcer before enlistment. Dr Moran, however, did not agree with the suggestion that Mr Stevenson had gastro-oesophageal reflux disease prior to service.
43. The relevant factors relating to clinical worsening in SoP No. 53 of 2002 are factors 5(o) and 5(p) which provide:
(o)being treated with a smooth muscle relaxant drug for a condition for which the drug cannot be cased or substituted, at the time of the clinical worsening of gastro-oesophageal reflux disease; or
(p)being treated with a nonsteroidal anti-inflammatory drug for a condition for which the drug cannot be ceased or substituted, at the time of the clinical worsening of gastro-oesophageal reflux disease.
Factor (o) is identical to factor 5(h) in the earlier SoP. Factor (p) is a new factor.
44. Mr De Marchi did not point to any way in which Instrument No. 53 would be more beneficial to Mr Stevenson than the current SoP. Thus, applying Repatriation Commission v Gorton (2001) 65 ALD 609, we must apply the current SoP. The relevant factors relied on by Mr Stevenson are factors (a), (f), (g), (o) and (p) of SoP No. 53 of 2002.
45. Mr Stevenson cannot succeed on factor 5(a), “suffering from hiatus hernia at the time of the clinical onset of gastro-oesophageal reflux disease”, because Clause 7 of the SoP provides:
Inclusion of Statements of Principles
1.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
46. We have already found that Mr Stevenson’s hiatus hernia is not a war-caused disease. As Mr Marshall pointed out, it is difficult to imagine when the SoP for hiatus hernia would operate to allow a hernia to be found to be war-caused.
47. As to factors (f), (g), (o) and (p), Mr Stevenson cannot succeed in respect of those factors unless there is a finding that the back pain for which he was taking medication is war-caused or related to service and that he was taking the specified medication at the time of the clinical onset or clinical worsening of the gastro-oesophageal reflux disease.
48. Mr Stevenson said that the only medication he had been given during service for his back pain following the gun incident was Aspirin. He said that after discharge when he saw a doctor because of back pain the treatment was mainly aspirin, and also physiotherapy and massage. He said he had the pain intermittently, but most of the time between 1945 and 1986. Mr Stevenson said that in later years he had been prescribed Indocid and Brufen for the back pain.
49. Dr Moran said that Aspirin is not a muscle relaxant drug but that it is a non steroidal anti-inflammatory drug. He said that Brufen and Indocid and similar drugs are also anti-inflammatories. Thus, factors (f) and (o) are not relevant, as Mr Stevenson’s back pain was not treated with smooth muscle relaxant drugs.
50. As to factors (g) and (p), Mr Billet pointed out that the definition of lumbar spondylosis in SoP No. 47 of 2002 includes “degenerative changes affecting the lumbar vertebrae or intervertebral discs causing local pain”. Mr De Marchi relied on that description. We have found that Mr Stevenson’s back pain due to lumbar spondylosis is not war-caused. Therefore factors (g) and (p) cannot assist him to have gastro-oesophageal reflux disease found to be war-caused, on the basis that he was being treated for lumbar spondylosis with non-steroidal anti-inflammatory drugs, at the time of clinical onset or clinical worsening of his gastro-oesophageal reflux disease.
51. However, bearing in mind that the Tribunal has an inquisitorial role and is not limited to the case as put by the applicant (Bushell v Repatriation Commission (1992) 109 ALR 30, Benjamin v Repatriation Commission (2001) 34 AAR 270), we have considered whether the episode of back pain as a result of the gun incident, even if it does not meet the definition of “trauma to the lumbar spine”, may be relevant to factors (g) and (p). We considered whether, if Mr Stevenson was treated with Aspirin for an episode of back pain, that treatment could provide a connection, recognised by the relevant SoP, with the gastro-oesophageal reflux disease.
52. Such a connection is recognised in factors (g) and (p), but only if Mr Stevenson was being treated with Aspirin at the time of the clinical onset (factor (g)) or clinical worsening (factor (p)) of gastro-oesophageal reflux disease. Mr Marshall’s evidence would not support a case relying on clinical onset because he said he thought Mr Stevenson probably already had gastro-oesophageal reflux disease before enlistment (trans, p42). However, his evidence, if accepted, could support a case relying on clinical worsening as recognised in factor (p).
53. There was however a conflict between the evidence of Mr Marshall and Dr Moran. Dr Moran said he thought Mr Stevenson had functional dyspepsia during service, but not gastro-oesophageal reflux disease. He said the recorded symptoms of vomiting and abdominal pain were not symptoms of gastro-oesophageal reflux disease. Dr Moran also said there is no clinical onset of gastro-oesophageal reflux disease unless there is a symptom of heartburn. Other symptoms are spontaneous regurgitation and dysphagia, which means difficulty swallowing. He said there is no mention of heartburn in Mr Stevenson’s service records. He gave evidence that, as he wrote in his report (R1), Mr Stevenson told him his heartburn first occurred after his discharge from the Army and had persisted since then.
54. We find Mr Moran’s opinion more persuasive. We find that the clinical onset of gastro-oesophageal reflux disease was after Mr Stevenson’s discharge from service. We rely on the facts that gastro-oesophageal reflux disease was not diagnosed during two hospital admissions during service, and that heartburn is not mentioned in any medical records at that time. We do not find that Mr Stevenson had either the clinical onset or the clinical worsening of gastro-oesophageal reflux disease at the time he took Aspirin during his service.
55. Thus, none of factors (a), (f), (g), (o) or (p) can be relied on by Mr Stevenson so as to lead to a finding that gastro-oesophageal reflux disease is war-caused.
56. The aspect of the decision dealing with gastro-oesophageal reflux disease will be affirmed.
DECISION
57. The decision under review will be affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Dr. P. Fricker, Member, and Mr. W.G. McLean, Member
Signed: Josephine McKay
AssociateDates of Hearing 4 June 2003 & 14 August 2003
Date of Decision 4 February 2004
Solicitor for the Applicant Mr De Marchi
Advocate for the Respondent Ms McCulloch
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