Swan and Repatriation Commission
[2001] AATA 701
•7 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1198
VETERANS' APPEALS DIVISION )
Re BRIAN LAWRENCE SWAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Ms N P Bell, Member
Date7 August 2001
PlaceSydney
Decision 1. The decision under review is set aside and the Tribunal substitutes its decision, namely: THAT the injuries and diseases of ischaemic heart disease, generalised anxiety disorder and left inguinal hernia are defence-caused injuries and diseases; AND THAT the Applicant is entitled to pension for disability occasioned by the said injuries and diseases as and from the 19th day of April 1999. 2. The disease of lumbar spondylosis is neither a defence-caused nor a war-caused disease. 3. This matter is remitted to the Respondent, Repatriation Commission, in order that it might assess the rate of pension to be paid for all war-caused and defence-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether ischaemic heart disease caused or contributed to by failure of service medical authorities to properly investigate and treat. Anxiety state as a sequelae of surgery for ischaemic heart disease. Lumbar spondylosis said to have been caused by an incident whilst making a bed in service accommodation. Domestic activity not attributable to service.
Veterans' Entitlements Act 1986 - subss120(1), (3), (4) and (6), s120A, s120B
Holthouse v Repatriation Commission 1 RPD 287
Thomsen v Davison [1975] Qd R 93
REASONS FOR DECISION
Senior Member M D Allen Ms N P Bell, Member
By application made 3 August 2000 the Applicant sought review of a decision by the Respondent dated 24 November 1999 and affirmed by a Veterans' Review Board which decision refused the Applicant's claim to have the conditions of ischaemic heart disease, generalised anxiety disorder, left inguinal hernia and lumbar spondylosis with intervertebral disc degeneration attributed to either his operational service or his defence service as those terms are defined in the Veterans' Entitlements Act 1986 as amended (the VEA).
The Applicant served in the Royal Australian Navy from 1 July 1956 to the 30 June 1991. He had periods of operational service in the Far East Strategic Reserve and as a crew member of HMAS Sydney when that vessel visited the port of Vung Tau in the Republic of South Vietnam. The Applicant's defence service pursuant to subsection 68(1) of the VEA commenced on 7 December 1972 and continued until his date of separation from the service, namely 30 June 1991.
So far as the Applicant's operational service is concerned the standard of proof in this matter is that set forth in subsections 120(1) and 120(3) of the VEA. These subsections require the Tribunal to find that the claimed disabilities are war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for so finding. The Tribunal will be so satisfied if it is of the opinion that the said material does not raise a reasonable hypothesis connecting the claimed disabilities with the circumstances of the particular service rendered by the Applicant. Pursuant to subsection 120A(3), any hypothesis raised by the material before the Tribunal will not be a reasonable hypothesis unless it conforms with a so-called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
The standard of proof in respect of the Applicant's defence service is that prescribed in subsection 120(4) of the VEA, namely to the Tribunal's "reasonable satisfaction". The Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 equated that standard to the civil standard of proof, namely that of proof on the balance of probabilities.
Section 120B of the VEA provides that in respect of claims made on or after 1 June 1994, the Tribunal can only be reasonably satisfied that their claimed injury or disease is attributable to defence service if there exists an SoP upholding the contention that the said injury or disease is, on the balance of probabilities, connected with that service.
Subsection 120(6) of the VEA provides that neither party to the application before the Tribunal bears any onus of proof.
In dealing with this application for review, we intend to deal with each of the claimed conditions seriatim. Before dealing with the conditions, however, we must point out that, in the opinion of the Tribunal, a claim made pursuant to Part IV of the VEA can only have reference to the Applicant's service on or after 7 December 1972. A condition which has its genesis in the Applicant's service prior to that date cannot be regarded as having been caused or contributed to by the Applicant's defence service unless there has been a material contribution to the condition by the incidences of defence service.
ISCHAEMIC HEART DISEASEAs we understand the Applicant's case, he attributes ischaemic heart disease to his defence service upon two bases. The first is that the diet of which he was required to partake as a serving member of the Royal Australian Navy, whilst aboard a ship or living in at a naval establishment, was high in fats and caused or contributed to a high cholesterol reading which in turn led to coronary heart disease. The hypothesis contended for by the Applicant is supported by Instrument No 38 of 1999 being the SoP regarding ischaemic heart disease in force at the time the Respondent made its original decision in this matter. Factor 5(d) of that SoP reads that a factor connecting the circumstances of a person's relevant service with ischaemic heart disease is:
"the presence of dyslipidaemia before the clinical onset of ischaemic heart disease; …"
There is evidence from other former naval personnel, as well as the Applicant, as to the nature of the diet which was undertaken by members of the Royal Australian Navy during the time the Applicant was a serving member. In Exhibit A7, Associate Professor David Sullivan, Clinical Lipidologist, states that:
"… the salient points are that Mr. Swan, who was a non-smoker without a family history of premature coronary disease, suffered definite coronary artery disease in 1997. It is a matter of conjecture as to whether or not a reported chest pain in 1982 represented the date of onset of this condition. In the absence of hypertension or diabetes, elevated cholesterol level appeared to be the major contributing risk factor."
Whereas the Applicant's diet may well have led to his having an elevated cholesterol level, that diet was over a considerable period being from the time he enlisted for naval service in 1956 and there is no material before us to say that the diet undertaken by the Applicant in the period from 7 December 1972 made a material contribution to his elevated cholesterol.
What is clear from the evidence before us, however, is that the Applicant underwent a medical examination at the Joint Services Medical Centre in Canberra on 7 November 1988. In the course of that medical examination a blood sample was taken from the Applicant and sent for a pathology report. The pathologist's report was forwarded back to the Joint Services Medical Centre with the following notation (Exhibit R8):
"COMMENT:
FASTING SPECIMEN:
The lipid results are elevated, may we recommend full lipid studies after a 14 hour fast with cholesterol.high and low density lipoproteins, triglycerides and lipid electrophoresis."
It is not in dispute that nothing was done regarding that report.
The Applicant underwent a further medical examination whilst at HMAS Nirimba in January 1990. A blood sample was forwarded for pathology with the notation:
"Previous sl. ? cholesterol check fasting cholesterol TG's"
Again, although a result was obtained showing high cholesterol and triglyceride levels, the Applicant was never informed of the result of these tests.
It is the Applicant's contention that had he been informed of the tests, he would have been able to modify his diet and thereby reduce his cholesterol levels. That this would have been a prudent and possible course is pointed out by Associate Professor Sullivan in his report of 24 May 2001 (Exhibit A7). Associate Professor Sullivan states:
"It therefore seems likely that HDL would also have been around the average level when lipid levels were measured in 1988 and 1991. This would lead to the conclusion that at this time the cholesterol levels of 5.9 and 6.6 were attributable to mild to moderate increase in LDL cholesterol. …
… As far as management is concerned, guidelines at the time of the initial cholesterol testing would have warranted the commencement of a prudent diet with reduced dietary cholesterol and saturated fat intake."
In the opinion of Associate Professor Sullivan, dyslipidaemia was present before the clinical onset of ischaemic heart disease which occurred in 1997.
In a report to the Respondent dated 21 November 2000 (Exhibit R2), Dr Michael Darke, Cardiologist, states:
"He was found to have high cholesterol on two occasions on the 7th November 1988 with a level of 5.9 and on 12th January, 1990 at 6.6. …"
Dr Darke then comments: "He was treated initially with diet,…" whereas this was not the case, indeed the Applicant did not even know of his high cholesterol levels.
At page 5 of his report, Dr Darke comments:
"If of course a breakdown of the total cholesterols had been made into LDL and LDL and if the HDL levels were quite low, say, between .55 and .9 then there may have been an accent by the Medical Practitioner to instigate a higher level of physical activity and possibly consider treatment to somehow raise the HDL. …"
Of course this is precisely what did not happen as the suggested testing was simply ignored by the Joint Services Medical Centre at Canberra.
In a report dated 13 June 2001 (Exhibit R4), Dr Darke says:
"We do have two readings before on the 7th November 1988 and the Fifteenth January 1990. What we do not have is any evidence from the record that RAN Personnel were aware of those two readings and consequent upon that we have no evidence of any action taken."
Which sums up very neatly the complaint of the Applicant, namely that although in 1988 further tests were advised, no action was taken.
As was pointed out by W B Campbell J (as he then was) in Thomsen v Davison [1975] Qd R 93:
"The duty of care owed to a soldier by a regimental medical officer, who examines the soldier for Army purposes and who requests the soldier to visit a laboratory for the purpose of undergoing further tests so that his true state of health can be ascertained, extends to the requirement to make all reasonable steps to inform himself of the results of the tests and, if they prove to be adverse, to advise the soldier to undergo investigation and treatment."
In that case an Army medical officer was held liable in negligence to a soldier whom he had referred for tests but had not informed of the result of the said test. In this matter, having heard and seen the Applicant give evidence, we are under no doubt whatsoever that if he had been advised of the results of the tests in both 1988 and 1990, he would have taken steps, for example by modifying his diet to reduce his LDL cholesterol levels. Because the tests were not carried out the Applicant continued with high cholesterol levels and Factor 5(d) in Instrument No 39 of 1999 was met.
In these circumstances therefore, we are reasonably satisfied that the Applicant's ischaemic heart disease is a direct result of his dyslipidaemia prior to the clinical onset of ischaemic heart disease which condition itself was caused or contributed to by his naval service.
ANXIETY STATEOn 19 October 1999 the Applicant was interviewed by Dr John Pickering, Psychiatrist, on behalf of the Respondent. In his report of that date (T10) Dr Pickering states (p124):
"The chain of causative events of Mr Swan's Generalised Anxiety Disorder revolved around his Ischaemic Heart Disease and need to have coronary bypass surgery. …"
In a later report dated 28 June 2001 (Exhibit R5), Dr Pickering stated:
"Mr Swan continues to suffer from a Generalised Anxiety Disorder. …"
Dr Pickering concludes that report by stating:
"Overall, this writer believes that the following statements answer your questions:
1.There was no 'sub-clinical' anxiety but rather an episode of Panic Disorder Without Agoraphobia which arose during 1968 while Mr Swan was engaged in some degree of hazardous duty aboard HMAS Sydney, with the additional stressor of being exposed to blue asbestos. The latter was far less important than the former.
2.This caused an anxiety disorder which became intertwined with a number of physical illnesses … By the end of 1973, he appeared to be quite well.
3.This previous episode of anxiety which occurred during and in all likelihood causally related to his war service has increased the risk of him developing anxiety disorders later in life.
4.The current episode of Generalised Anxiety Disorder was substantially caused by the coronary artery bypass surgery that he had in 1998."
In its Statement of Facts and Contentions (Exhibit R1) the Respondent stated:
"The Respondent notes the history given to Dr J. Pickering … and relies upon his conclusion that the Veteran's generalised anxiety disorder arose out of need for heart surgery in 1998, well after his service with the RAN."
Given the reports of Dr Pickering and the statement in the Respondent's Statement of Facts and Contentions it can be concluded that the Respondent does not dispute the diagnosis, that is to say that the Applicant does in fact suffer from an anxiety disorder, and, as the Tribunal has already found that the Applicant's ischaemic heart disease was as a result of his defence service, it seems clear that if the anxiety disorder arose out of the need for heart surgery then the concomitant anxiety disorder is also a defence-caused disease.
The SoP for generalised anxiety disorder is Instrument No 49 of 1994 as amended by Instrument No 276 of 1995. The factor connecting the anxiety disorder with service is:
"(a)experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder;"
Whereas "stressful event" is defined in the said instrument as meaning - an occurrence which evokes feelings of anxiety or stress. It seems difficult to argue that heart surgery is not an occurrence which would evoke a feeling of anxiety or stress. As the factors which led to the Applicant suffering a general anxiety disorder conform with the relevant SoP, the Tribunal is reasonably satisfied that the said anxiety disorder is a defence caused disease.
LUMBAR SPONDYLOSIS
The factors pertaining to lumbar spondylosis and defence service are set out in Instrument No 28 of 1999. It was argued by the Applicant that he satisfied Factors 5(g) and (j) of that instrument. Those particular factors are:
"(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
…
(j)being occupationally required to undertake continuous heavy physical activity for at least 10 years before the clinical onset of lumbar spondylosis, and where such continuous heavy physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following cessation of such activity;"
At the outset we can state that we do not accept the Applicant's claim that the back pain which he suffered whilst living at HMAS Harman in 1986 whilst making a bed constitutes a trauma to the lumbar spine. In Instrument No 28 of 1999, trauma to the lumbar spine is defined in the following terms, namely:
"a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, …"
In our opinion, to simply experience pain whilst bending over and undertaking an activity is not a discrete injury to the lumbar spine.
Even if we are wrong in this regard, it is difficult to see how the incident can be said to have occurred as a result of the Applicant's naval service. Admittedly the Applicant was living in naval quarters as his duty required him to be in Canberra. However, his decision to live at HMAS Harman was a personal and domestic one. An officer of his rank at the time would not have been, as would a junior sailor, required, as a matter of naval administration and discipline, to live on the base. That he chose to do so was entirely for his own convenience. It could not be suggested, for example, that if he had hurt his back whilst residing in a private dwelling house or a unit which he had rented in Canberra, he would have been entitled to pension pursuant to the VEA. This much is made clear by the earlier decision of the Federal Court in Holthouse v Repatriation Commission 1 RPD 287.
The second basis for the Applicant's claim was that during the course of his naval service he had been forced to crawl into restricted spaces and also had been required to undertake continuous heavy physical activity, for example lifting hatch covers, and this had occurred for at least 10 years before the clinical worsening of lumbar spondylosis.
During the course of submissions it was argued by the Respondent that, given the Applicant's rank, any heavy lifting would have been done by subordinates. Whereas there is a suspicion that would have been the case, it is contrary to the Applicant's sworn evidence in this matter and, as was pointed out by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 at 169-170, inference must be carefully distinguished from conjecture or speculation. In the absence of objective facts to rebut the applicant's sworn evidence then the inference that he did not undertake the heavy physical activities he swore that he did simply cannot be drawn.
In his report of 19 October 2000 Associate Professor Sambrook, Professor of Rheumatology at the University of Sydney, states (Exhibit A10):
"I note the relevant Statement of Principles in Mr Swan's case is instrument 28/1999 and of the factors so there listed, the relevant one for consideration in Mr Swan's factor 5(j). In regard to the type of physical activity Mr Swan had to undertake, there were supporting letters from Admiral Halthouse (sic), Captain Stuart and Commander Coles indicating that the nature of activities as a Marine Engineer certainly fitted within the activities envisaged in factor 5(j) and this seems to have been accepted by the Veterans Review Board in its decision of July 2000. However, I understand there was a rejection of this claim on the basis of the aggregated service being less than ten years. However Mr Swan pointed out that the VRB did not include the whole of his naval service. This appears to be a disingenuous argument to me and I would have thought the whole of his service should be relevant to continuous heavy physical activity in determining the aggregated amount."
The Tribunal has sympathy for the opinion expressed by Professor Sambrook, however, as stated above, our opinion is that the definition of defence service in subsection 68(1) of the VEA restricts the period of service to that commencing on 7 December 1972. When one has regard to the Applicant's posting since that time, and since that time only, it cannot be said that he has met the requirements of Factor 5(j) in Instrument No 28 of 1999.
LEFT INGUINAL HERNIAThe Applicant's evidence was that he first became aware of his hernia whilst Commander of HMAS Nirimba, and preparing to undergo a daily jog in order to maintain his level of fitness. Immediately prior to his jogging he had performed a series of exercises including "sit-ups". He reported to the Base Medical Officer and, at a later period when his duties allowed, he underwent an operation for the repair of his left inguinal hernia. Unfortunately, the operation was not successful and it broke down and had to be repaired. The initial repair was also unsuccessful but later laparoscopic surgery has proved successful.
In his report of 16 October 2000 Dr Russell Butler, Consultant Physician, states (Exhibit A5):
"Mr Swan saw maintenance of physical fitness as a necessary part of his naval service. The development of a left inguinal hernia in October 1990 followed immediately after an exercise period. It was Mr Swan's custom to start his exercises by doing 'sit-ups.' The performance of a 'sit-up' involves a lifting action, which I am informed equates to lifting 10-20kg. This would be accompanied by elevation of intra-abdominal pressure and could certainly be a contributor to the development of inguinal hernia. …"
Instrument No 73 of 1998 is the applicable SoP for inguinal hernia. One of the factors which connects inguinal hernia with a person's relevant service is:
"5.(a) the presence of increased intra-abdominal pressure within the three days before the clinical onset of inguinal hernia;"
It is clear from the report of Dr Butler referred to above that this particular factor has been met in the Applicant's case. At the time the Applicant was in a lunch break and, as the Commander of HMAS Nirimba, could be said to still be on duty. In addition, the jogging was undertaken as part of a fitness regime required to maintain the Applicant at an acceptable level of fitness for his duties in the Royal Australian Navy. In these circumstances it is our opinion, and we so find, that the activity including the "sit-ups" prior to jogging were undertaken as part of his defence service.
For the reasons set out above the decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the injuries and diseases of ischaemic heart disease, generalised anxiety disorder and left inguinal hernia are defence-caused injuries and diseases, and that the Applicant is entitled to pension in respect of incapacity occasioned by the said injuries and diseases as and from 19 April 1999. The disease of lumbar spondylosis is not a war-caused nor a defence-caused disease.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Ms N P Bell, MemberSigned: (Kwai-Ling Wong) .....................................................................................
AssociateDate/s of Hearing 12 July 2001
Date of Decision 7 August 2001
Solicitor for the Applicant Mr A Halstead, Legal Aid Commission
Solicitor for the Respondent Mr S Modder, Department of Veterans' Affairs
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