Thompson and Repatriation Commission
[2006] AATA 104
•8 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/332
VETERANS' APPEALS DIVISION
Re: ROBERT ARTHUR THOMPSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 8 February 2006
Place: Melbourne
Decision:The Tribunal:
(a)sets aside that part of the Repatriation Commission's decision made on 18 September 2001 concerning cardiomyopathy and chronic bronchitis and decides that these conditions are war-caused conditions under the Veterans' Entitlements Act 1986; and
(b)affirms that part of the Repatriation Commission's decision made on 18 September 2001 concerning cervical spondylosis.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - cervical spondylosis – cardiomyopathy – chronic bronchitis – alcohol consumption - smoking - whether service‑caused
Veterans’ Entitlements Act 1986 ss 119(h), 120(4), 196B(14)
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Cornelious [2002] FCA 750'
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
REASONS FOR DECISION
8 February 2006 Regina Perton, Member
1. Robert Arthur Thompson, who was born on 12 September 1921, served in the Royal Australian Air Force (RAAF) during World War II. He was posted to various locations in Australia between 5 March 1941 and 2 August 1945. Part of that time was spent training to be a pilot. The entire period is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
2. Mr Thompson suffers from a number of medical conditions. Some of these conditions have been accepted as war-caused by the Repatriation Commission: namely traumatic arthritis of the right knee, bilateral sensori-neural hearing loss, bilateral tinnitus and bilateral rotator cuff syndrome. He receives a disability pension from the Repatriation Commission at 90% of the general rate.
3. However, the Repatriation Commission did not accept that Mr Thompson’s other conditions, cervical spondylosis, cardiomyopathy, chronic bronchitis and bilateral cataracts were service-related. The VRB affirmed the Repatriation Commission decision on 30 January 2004P. Mr Thompson lodged an application for review of a decision of the Veterans’ Review Board (VRB) concerning cervical spondylosis, cardiomyopathy and chronic bronchitis. Mr Thompson did not seek review of the decision concerning the cataracts, for which he has now received successful treatment.
4. There is no dispute that Mr Thompson’s period in the RAAF constituted eligible war service or that Mr Thompson suffers from those medical conditions. The only issue before the Tribunal is whether the cervical spondylosis, cardiomyopathy and chronic bronchitis are war‑caused.
EVIDENCE
Mr Thompson
5. In a written statement dated 1 March 2004 (Exhibit A1) Mr Thompson stated that he was injured in a motor vehicle accident in 1938 resulting in a fractured scull and injuries to his shoulder and the right side of his face. He experienced pain and limitation of movement in his neck as a result of the accident. He stated that the symptoms in his neck gradually resolved; and by the time he enlisted he had no symptoms in his neck. Mr Thompson stated that he was free of neck pain for the first 3 years of service. He undertook training for parachute jumping and aerobatics in 1944. The training required him to jump from a platform about 10 feet above ground level onto sand. He was then required to tumble forward onto his right shoulder and then on to his feet, repeating the exercise about 6 times per session. Mr Thompson stated that he hurt his neck during one of the sessions and continued to suffer neck pain and limitation of movement thereafter. The neck symptoms were aggravated by further parachute jumping exercises and acrobatics performed in Tiger Moth aircraft. Mr Thompson stated that he did not report the symptoms in his neck during service even though they were constant. His failure to report the symptoms was because he did not want to be taken out of the flying program. He stated that he did not mention his neck problems during his discharge medical examination because he believed the symptoms would spontaneously resolve.
6. Mr Thompson stated that he has suffered from productive chest colds for many years. He also had a “smoker’s cough”. He stated that he started smoking at the age of 15 years. Prior to enlistment, he smoked about 6 to 8 cigarettes per day. His smoking habit increased during service, so that by the time he was discharged he was smoking 25 to 30 cigarettes a day. He attributed the increase in his smoking to peer group pressure, ready availability of tobacco and long periods of boredom (particularly during off-duty hours). Mr Thompson stated that he continued smoking until 1965, when he was smoking approximately 40 cigarettes per day. On 8 December 1965, he was treated by a hypnotherapist and has not smoked since.
7. Mr Thompson indicated that he was diagnosed with cardiomyopathy in June 2002. Mr Thompson stated that prior to enlistment, he was a very light drinker of alcohol. He would drink one or two glasses of beer after work on a Friday evening and no more than three or four glasses of beer on most Saturdays. He estimated that prior to enlistment, his weekly consumption was about four to six glasses of beer.
8. Mr Thompson stated that after his enlistment he drank whenever he could. He said there was a culture of having a drink when off-duty. He expressed the view that peer group pressure, ready availability and long periods of boredom with little else to do contributed to his drinking habits. He stated that there was no wet mess on his postings and he drank at local hotels. In his early days of service, he would consume no more than 4 to 5 glasses of beer per outing. However, when he was posted to Mildura in 1942P, he started to drink heavily. He served in Mildura from October 1942 to January 1944. He lived out of camp and had the opportunity to drink every evening along with other mates in the RAAF who also lived out of camp. He commenced drinking wine at this time. After January 1944, he was transferred to air crew and did not have the same access to alcohol as in Mildura. He drank excessively on weekends during this period. After his discharge, he drank every day and consumed at least 8 10 ounce pots of beer in an outing. He had difficulty settling down and obtained a variety of short term jobs. He drank at lunchtime and in the evening. He continued to consume alcohol at the rate of at least 8 pots of beer per day until the late 1990s.
9. In his oral evidence, Mr Thompson stated that he had joined the RAAF in 1941 as he wanted to make a worthwhile contribution. His father was wounded at Gallipoli and later went to France, where he lost a leg. His father died in an accident, a few months before Mr Thompson was born. Prior to enlisting, Mr Thompson worked as an electrical fitter for the State Electricity Commission (SEC). Mr Thompson was paid 15 shillings per week and his board cost him 25 shillings. He initially used his savings to make up the difference but then was subsidised by an uncle. He could only afford 6 to 8 cigarettes a week. He stated that the reference to him smoking 20 cigarettes a day prior to enlisting, in a report prepared by Dr Hart, was incorrect.
10. In relation to cervical spondylosis and his neck injury, Mr Thompson stated that he was clear of neck pain for the first two or three years of service. He indicated that he undertook training for parachute jumping and aerobatics at Somers from February 1944 to 23 May 1944. He agreed that a photograph from the Writeway Research Service Pty Ltd (Writeway) report (see below) showed the platform from which they jumped and he described the exercise. They had one or two sessions each week with about six jumps per session. Mr Thompson said that he injured himself during one of those jumps with a resultant stiff neck and headache for a few days. He stated that he did not get any medical treatment but took aspirin as a pain killer. Mr Thompson did not see the medical officer as he was concerned about the scrub test. There was a surplus of candidates for pilots and he was concerned if he reported the injury he would be scrubbed. Mr Thompson said that he was very keen to be a pilot. Mr Thompson could not recall exactly how long the pain continued after the injury. The pain and stiffness faded after he took painkillers for approximately two weeks but resurfaced from time to time. Mr Thompson said that after the initial training at Somers, he was posted to Tasmania for further training. He said that he had flown Tiger Moths solo for about 200 hours. He said that he suffered occasional headaches and stiff necks while flying but it was not as bad as it had been during training.
11. Mr Thompson said that he did not mention neck problems at discharge because he believed the problem would fix itself. He held a variety of jobs for the first three or four years until he started working in the building trade. His neck problems resurfaced during that time. He sought medical assistance. Dr Neville Hayes, his repatriation doctor at that time, prescribed painkillers for his neck condition. Mr Thompson then received further assistance from Dr Allchin in November 1969. Dr Allchin x-rayed his neck and put him in a neck brace. Dr Allchin’s records show various visits by Mr Thompson in 1970 and a diagnosis of cervical spondylosis. Mr Thompson indicated that his neck symptoms had continued over the years to a certain extent.
12. Mr Thompson indicated that he had 19 postings during his four and a half years in the RAAF. He said that he felt he was frustrated as he did not believe he was doing anything productive or achieving much with each successive posting. He said drinking alcohol made it a little bit easier to put up with. He confirmed that there was no wet mess available to them, unlike those in the army. He said that the closing time of 6 p.m. in hotels was not strictly applied in most country towns. He said that RAAF members were welcomed with open arms after regular hours. Mr Thompson was in Mildura from August 1942 to February 1944. He lived out of camp and with other RAAF mates who were also out of camp, drank heavily every evening. He largely drank wine which was more available than beer. Wine, sold in flagons, cost eight shillings a gallon from a local distillery. He said drinking was the basis for social interaction and major off-duty pastime in Mildura.
13. Mr Thompson confirmed that during 1944, whilst training in Somers and Tasmania, he did not have the same access to alcohol that he had in Mildura. His drinking took place at weekends. Mr Thompson said that their instructors encouraged them to go into town on Friday nights and have a skinful. He said that he drank quite a deal on Friday night and Saturday. In Tasmania, they could also drink on Sunday. After Tasmania, the applicant was sent to Toowoomba where he drank in the army mess. He was then posted to Benalla where he did night and day flying and his drinking was confined to weekends.
14. After his discharge, Mr Thompson drank every day, with at least eight 10 ounce pots in an outing.He continued to consume alcohol at the rate of at least eight pots of beer per day until the late 1990s. Mr Thompson estimated the amount and type of alcohol he had consumed from enlistment, while he was at the various posts and during his subsequent working life (T2 p xvii), with differing figures depending on the nature of the work and the location. His calculations, which were discussed, showed he had consumed 369.8 kilograms of alcohol in the 10 years from October 1942 to September 1952. Mr Thompson indicated that he was diagnosed with cardiomyopathy in 1997 as a result of his symptoms of breathlessness.
15. Mr Thompson indicated that by the time he left the RAAF he was smoking about 25 to 30 cigarettes a day. He recalled that in the RAAF, they were issued with a cigarette ration card but could not recall if it was 7 or 10 packets a week. He said that he would have smoked at least 1 packet of 18 cigarettes per day. He also smoked a pipe. He said that he could not smoke around aircraft or on the tarmac. Mr Thompson recalled that by the time he stopped smoking on 8 December 1968, on being treated by a hypnotherapist, he had been smoking approximately 40 cigarettes a day. He said that in the years after he left the RAAF, he had symptoms of smoker’s cough with sputum in the early mornings, and at other times of the day when he was under stress.
16. Under cross-examination, Mr Thompson indicated that he left school at the age of 14 and left home a year later. He lived and worked in the country for a short time and then went to Melbourne to work. He started smoking a pipe twice a day when working for John Danks in Melbourne. He sustained his injuries in the motor vehicle accident in April 1938, when he was doing his apprenticeship with the SEC. A car collided with Mr Thompson’s bicycle. He was unconscious for 12 hours, hospitalised and off work for 2 months. He indicated that when he joined the RAAF he was still an apprentice electrical fitter. He was mustered as a wireless operator/electrical mechanic.
17. Mr Thompson was shown forms concerning smoking and alcohol use that he signed while in the RAAF. On 21 February 1941, he indicated that he smoked and drank alcohol. On 22 July 1943, on an Entry Examination, Flying Ranks, Board Record, he answered yes to smoking and no to alcohol. Mr Thompson responded that he lied on the form in 1943 about his alcohol use as he was keen to maximise his chances of flying. Ms McCulloch, the advocate from the Department of Veterans’ Affairs representing the respondent, challenged Mr Thompson about his recollections of his alcohol consumption, asking Mr Thompson about his various postings and where and when he drank at each. Mr Thompson described his recollections of what he did at each post, the amount of flying, the free time etc. He indicated that they were not issued beer on any base. All the drinking was done off‑base, usually at a local hotel. He reiterated that, in Tasmania, the trainee pilots were encouraged to unwind at the weekend and have a skinful. They drank on the weekends but tapered off on Sundays so they would not have hangovers on the Monday morning when they had to fly. He was adamant that he had calculated his alcohol consumption as accurately as he could.
18. Mr Thompson indicated that he was not in continual pain from his neck injury. It was first described as cervical spondylosis between 1969 and 1970, before he applied in 1970 for its recognition as a service‑related disability. He said he had been in pain well before that time but could not recall what particular year it started. A report from Dr Allchin indicated Mr Thompson had first consulted him in November 1969 about his neck problem. Mr Thompson said he had seen other doctors about the problem earlier. He had worn a collar for six months in 1970 without any benefit. He discussed his major knee operation which did not prevent him from undertaking pilot training. He was adamant that he did not report his neck soreness while at Somers due to his fear that it might have jeopardised his flying career.
19. Under re-examination, Mr Thompson said that Dr Hayes, who treated him in the late 1950s, had treated him for a neck problem. He had prescribed painkillers and rest. He said that he had initially seen Dr Allchin for a pinched sciatic nerve but also saw him about his neck. He said Dr Allchin also undertook chiropractic adjustment. He recalled that he had not been able to play golf on several occasions due to his neck injury, prior to seeing Dr Allchin. He said that he continued to work but every couple of weeks would have a spell of neck problems which he alleviated by using a peanut pillow at the back of his neck.
Dr Seabridge
20. Dr Colin Seabridge, Consultant Psychiatrist, prepared a written report dated 28 November 2003 (T18) at the request of the respondent. He said that he was aware that Mr Thompson is suffering from cardiomyopathy and that his cardiologist had raised the possibility that the disorder had been caused by, or contributed to, by excessive alcohol consumption. Dr Seabridge stated that:
…
In his early training, he began to drink and would go out at the weekend with his mates, but again said that he would generally only have six to eight beers.
His alcohol consumption increased slowly, but in October of 1942, he was transferred to Mildura, where he found he had a lot of spare time, the job was frustrating and unrewarding, and he developed the habit of drinking sherry, muscat and port. The men had “living out passes” and were able to stay out all night. During 1943 he had surgery on his knee at Heidelberg, and convalesced at Warburton. The ambulant men had passes again, that permitted them to drink at the local hotel, and of a night they would go out by taxi and drink after hours in country pubs.
Mr Thompson has gone to pains to attempt to document his daily and weekend alcohol consumption between March 1941 when he joined the airforce to the present day. Between January 1944, and the end of 1945 when he was discharged, his alcohol intake was only slight, and his commitment to his job was high. His heavy period of alcohol consumption is between October 1942 and December 1943.
His heavy consumption commenced again following the war, and between 1945 and 2001 his alcohol consumption was sufficiently high to exceed the requirements laid down in the Statement of Principles, namely 300 kgs of alcohol over a 10-year period. He estimates an average daily consumption of 8.9 standard drinks per day.
However the commencement of his drinking during his service time in Mildura, when he began to consume fortified wines due toe the lack of availability of beer, was attributed to the boredom and frustration in his job. The criteria for substance abuse or dependence, namely exposure to a severe stressor, or the existence of a psychiatric diagnosis, are not fulfilled.
Also, in answer to your particular question, the requirement of 300 kg of alcohol being contained within a 10-year period including his service years, namely from October 1942 to October 1952, are not fulfilled.
21. Under cross-examination Dr Seabridge was questioned about his comment in the report that Mr Thompson’s alcohol consumption, listed as an average of 4.5 pots per day, was slight. Dr Seabridge said that such consumption was not sufficient to warrant a diagnosis of substance abuse or dependence. Dr Seabridge said that he thought 4.5 pots per day would be average or below average for most servicemen. He also indicated that most servicemen probably drank more than the general population. Ms McCulloch objected to these answers on the basis that Dr Seabridge had no knowledge of service life. Dr Seabridge indicated that he has interviewed some 600 to 700 servicemen about their alcohol intake and reasons for it, and had been a National Service trainee himself. He said that based on his experience, 4.5 to 5 pots per day would be an average consumption. He agreed with applicant’s counsel that this was due to the availability of drink, the need to relieve stress, peer group pressure and nothing else to do. He also agreed that there was a drinking culture in the armed forces. Dr Seabridge indicated his use of the word slight to describe Mr Thompson’s drinking at time of discharge was in comparison to his reported alcohol consumption at other times. There was discussion of the table prepared by Mr Thompson, the way Dr Seabridge calculated the figures he produced in the report and the difficulty of doing this so many years later. Eventually, Ms McCulloch conceded that Mr Thompson had consumed the requisite 300 kg of alcohol in a 10 year period, even if there was a dispute about whether he reached that figure when one included his time in the RAAF. Dr Seabridge also agreed with that analysis.
Professor McCarthy
22. Professor John McCarthy of the Australian Defence Force Academy prepared a report dated 12 August 2004 (Exhibit R1) at the request of the respondent. The report concerned the availability of alcohol to RAAF personnel in Australia, as well as to the general population, between March 1941 and August 1945. Professor McCarthy stated that a ration of beer was made available to RAAF personnel under the rank of sergeant during the war. The amount of beer made available was dependent on time and place. He cited a letter written in 1945 that suggested a ration of 6 bottles of beer per man per week was the standard at that time. This equated to 4.404 litres per week.
23. In his report Professor McCarthy stated that consumption of alcohol was tightly regulated by the RAAF during the war and was far from freely available. He described the amounts available in the officer’s mess. He also stated that for airmen below the rank of sergeant there were no wet canteens for most of the war. While some were established in March 1944, none was at a location at which Mr Thompson was based. He indicated that Mr Thompson’s assertion that weekend drinking was encouraged when he was doing flying training did not accord with the recollections of others, who cited the scrub list as a reason to avoid hangovers caused by excessive drinking.
24. Professor McCarthy provided information about the number of hotels and their accessibility in towns near the various postings of Mr Thompson. He concluded that licensed premises were available at most of his postings. While beer was not rationed at these premises, alcohol production was reduced and opening hours restricted. He noted that there was a flourishing black market in liquor. Professor McCarthy stated that Mr Thompson could well have been supplied with fortified wine at either Mallala or Mildura as they were in wine producing districts. He also stated that with the short supply of beer during the war, drinking of wine was an alternative.
25. In his oral evidence Professor McCarthy indicated that RAAF personnel were not allowed to drink on base but were allowed to go off base to could drink while off duty. He indicated that while it was frowned upon for aircrew to drink in the 24 hours before they flew, such was not the case for air maintenance crew. He also stressed that drinking on duty was a serious offence.
26. Under cross-examination Professor McCarthy was referred to a list prepared by Mr Thompson describing the type and quantity of alcohol he had drunk at various postings (T2 p xvii). Professor McCarthy conceded that some instructors at Somers and in Tasmania would have encouraged trainees to have a drink, relax and wind‑down on the weekends. Professor McCarthy also agreed that Mr Thompson’s estimates could well be valid.
Dr Hart
27. Dr David Hart, Consultant Respiratory Physician, prepared a report dated 20 October 2004 (Exhibit A4) at the request of the applicant’s solicitors. He described the history he had taken from Mr Thompson. He indicated that Mr Thompson had started smoking at the age of 14 and averaged 20 cigarettes per day in the RAAF. He continued to smoke after leaving the RAAF and by the 1960s, was smoking around 40 cigarettes per day. He stated that through hypnosis Mr Thompson had quit smoking for good on 8 December 1965. Mr Thompson had told him that while he was smoking, he had a ‘smoker’s cough’ and that he had a predisposition to ‘chest colds’. The predisposition to ‘chest colds’ has persisted despite the fact that he has stopped smoking. He gave the following opinion of Mr Thompson’s medical condition:
…
1. Mr Thompson suffers from chronic bronchitis as defined by the daily production of discoloured sputum. He also has mild airways obstruction by no diffusion impairment. This means that he does not have emphysema but does have chronic bronchitis with mild airways obstruction.
2. I believe that this chronic bronchitis is due to his habit of cigarette smoking which began prior to enlistment. I can find no other factor in his service history sufficient to generate any other hypothesis linking his war service with his chronic bronchitis.
3. The predominant explanation for Mr Thompson’s breathlessness is his severe dilated cardiomyopathy. The contribution form his mild airways obstruction is quite small and very difficult to estimate separately. His overall METS impairment is that he is quite symptomatic at the 2-3 MET level. My best estimate of the contribution to his overall impairment made by his lung disease is about 10%....
28. In his oral evidence Dr Hart indicated that he could not give an exact date of the onset of chronic bronchitis but that it would have been a decade or two before Mr Thompson stopped smoking in 1965. He reiterated his view that the significant breathlessness from which Mr Thompson suffered was mainly due to the cardiomyopathy and the left ventricular failure, rather than to chronic bronchitis.
Dr Roth
29. Dr John Roth, Mr Thompson’s treating doctor since 1982, provided a report dated 13 June 2004 (Exhibit A2). Dr Roth confirmed that Mr Thompson has severe cardiac failure and chronic bronchitis/chronic airways disease. He stated the following:
…
I have no doubt that previous heavy consumption of alcohol and tobacco were significant causes of these conditions. I am unable to confidently state that the conditions fit within the ‘Statement of Principles’ but I no not believe that it can be said that there is no reasonable hypothesis to connect the medical conditions with war service.
Dr Dick
30. Dr Ronald Dick, Cardiologist, provided a written report dated 27 July 2004 (Exhibit A3). His clinical notes were also before the Tribunal. Dr Dick stated that Mr Thompson has a dilated cardiomyopathy and fairly severe chronic obstructive airways disease. As to the causes of his condition, Dr Dick stated:
….
Apparently during his armed services he came in contact with a significantly increased amount of alcohol consumption. During that period of the war years and also immediately following, he seemed to drink to excess.
This may have some effect upon his development of a dilated cardiomyopathy.
There does not appear to be any other significant cause for his cardiomyopathy and besides having the possibility of having had an intercurrent virus contribute to this, I am unsure as to exactly the cause.
However I would find that at excess amount of alcohol at any stage in someone’s life can contribute to a cardiomyopathy.
…
Writeway Report
31. Air Commodore M.J. Brennan (Ret’d) of Writeway prepared a report for the respondent dated 23 February 2005 (Exhibit R2). The report covered Mr Thompson’s service history and in particular, the nature of aircrew training at 1 Initial Training School at Somers. In his summary, he stated:
15. It seems unlikely that jumps were made from a platform by aircrew trainees during ITS training to practice proper parachute landing technique. However, it is likely that during ITS training, this landing technique was taught and practised during various physical training activities that Mr Thompson would have been involved in.
…
CONSIDERATION OF THE ISSUES
32. The standard of proof to be applied in this matter is that of reasonable satisfaction under Section 120(4) of the Act. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act and any applicable Statements of Principles (SoPs) issued by the Repatriation Medical Authority. Section 196B(14) of the Act states:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service;
…
For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and an injury or disease, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition.
33. The relevant SoP for cervical spondylosis at the time of the original decision was SoP N° 51 of 2002 as amended by Instruments N° 64 of 2002 and N° 82 of 2002. Factors 5(g) and 5(s) stated:
(g)suffering a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis; or
…
(s)suffering a trauma to the cervical spine within the 25 years immediately before the clinical worsening of cervical spondylosis; or
34. Paragraph 8 of the SoP states:
"trauma to the cervical spine" means a discrete injury to the cervical 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 cervical spine. These acute 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 cervical spine has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.
35. On 16 November 2005, a fresh SoP came into force replacing N° 51 of 2002, N° 34 of 2005. Factors 6(f) and 6(p) have similar requirements but are worded slightly differently:
(f)having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis; or
….
(p)having a trauma to the cervical spine within the twenty-five years before the clinical worsening of cervical spondylosis; or
…
36. The definition of trauma to the cervical spine in the later SoP is slightly altered:
“trauma to the cervical spine” means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c)surgery to the cervical spine.
37. The relevant SoP concerning chronic bronchitis and emphysema at the time of the original decision was N° 74 of 1997. The relevant factor was:
5…
(a)…
(b)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
Paragraph 8 of the SoP defines pack-year:
“pack-year” means 7 300 cigarettes, or 1 460 cigars, or 7.3kg of pipe tobacco;
38. On 7 October 2004, a fresh SoP was issued concerning chronic bronchitis and emphysema and the previous SoP revoked. SoP N° 31 of 2004 expanded on the earlier definition of pack-year as follows:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
The relevant factor in N° 31 of 2004 is 5(a), which altered the smoking period from 15 years to 10 years:
(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or…
39. The relevant SoP concerning cardiomyopathy at the time of the original decision was N° 20 of 1998 as amended by N° 23 of 2002. The relevant factor was:
5…
(a)for men, drinking at least 300kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or
39. In paragraph 7, this is further defined:
“alcohol (contained within alcoholic drinks)” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
40. In a written submission dated 13 May 2005, Mr Chancellor, counsel for the applicant, submitted that Mr Thompson suffered a trauma to the cervical spine as defined in the SoP. He highlighted the evidence in the Writeway report that Mr Thompson may well have been required to jump from a platform and provided a photograph of such a structure. Mr Chancellor highlighted the evidence given by Mr Thompson that he hurt his neck during one of the jumps from the platform and that he had a stiff neck and headache for a few days. He stated that Mr Thompson therefore had symptoms and signs of pain, tenderness and altered range of movements. He indicated that Mr Thompson had not sought medical treatment at the time of the injury but used painkillers to treat the problem due to his concern over ramifications if he had sought treatment. Mr Thompson had neck pain from time to time while in the RAAF but the symptoms became more marked later. Mr Thompson had received treatment from his doctor in Brighton in the 1950s comprising painkillers and suggested rest. Mr Chancellor submitted that the 1950s treatment, and the treatment by Dr Allchin in November 1969, met the criteria that the diagnosis of cervical spondylosis occurred within the requisite 25 year period set out in the SoPs. He also submitted that the injury suffered by Mr Thompson in his pre-service accident was a head injury not a neck injury. He submitted that Mr Thompson’s failure to mention the neck injury at discharge was because he believed the symptoms would spontaneously resolve and that his failure to seek treatment until the mid to late 1950s was not unexpected given the slow rate of degenerative changes following trauma. He argued that the intermittent nature of the neck symptoms could explain why he had not mentioned the problems in various documents over the years.
41. In relation to chronic bronchitis, Mr Chancellor submitted that Mr Thompson was smoking at least 20 cigarettes per day from shortly after he joined the RAAF until he ceased smoking in 1968, a period of some 17 years. He stated that Mr Thompson was only smoking 6 to 8 cigarettes per day prior to his enlistment. He submitted that the 20 cigarettes per day at time of enlistment, cited by Dr Hart in his report, were due to mistake and/or confusion on Mr Thompson’s part. He cited evidence given by Mr Thompson that he rang his solicitor when he saw the report to confirm that the wrong history had been included. He stated that Dr Hart was of the opinion that Mr Thompson suffers from chronic bronchitis as defined by the daily production of discoloured sputum.
42. Mr Chancellor submitted that Mr Thompson’s smoking habit was aggravated and accelerated by war service. He highlighted Mr Thompson’s evidence in which he attributed his increase in smoking to factors including peer group pressure (as everyone seemed to smoke), lengthy periods of boredom, rations of cigarettes and ready availability of tobacco. A further personal factor was Mr Thompson’s frustration at a multitude of postings and an inability to see action, particularly given his father had been a World War I hero. Mr Chancellor pointed to a 1959 document that recorded a smoking habit of at least 20 cigarettes per day. He submitted that Mr Thompson had to establish that his smoking was contributed to in a material degree, or was aggravated by the service, or would not have occurred but for the rendering of the service. He cited Kattenberg v Repatriation Commission (2002) 34 AAR 562 as a relevant authority.
43. In relation to secondary cardiomyopathy, Mr Chancellor submitted that Mr Thompson met the criterion in paragraph 5(a) of the SoP within a 10 year period. He pointed to two reports by Dr Dick, the treating cardiologist, in which he stated that Mr Thompson’s drinking was a major contributory factor to the development of his cardiomyopathy. Dr Dick also stated that there did not appear to be any other significant cause. Mr Chancellor referred to the document prepared by Mr Thompson documenting his alcohol intake from March 1941 to 2001. He also highlighted Dr Seabridge’s evidence in which he concurred that Mr Thompson’s alcohol consumption between 1945 and 2001 exceeded the requirements laid out in the SoP. He also pointed to Dr Seabridge’s evidence that servicemen tended to drink more than the average person and that there had been a culture of drinking. Mr Chancellor referred to Mr Thompson’s evidence that he was a light drinker prior to enlistment, partly due to his low income, and his evidence as to where, why and when he drank when in the RAAF. He also highlighted Professor McCarthy’s evidence that Mr Thompson could well have been supplied with fortified wine in Mallala and Mildura and that licensed premises would have been accessible near most of his postings.
44. Mr Chancellor referred to the contradictory evidence in Mr Thompson’s entry examination for the Flying Ranks Board dated 22 July 1943, in which Mr Thompson had stated that he did not drink alcohol. He highlighted Mr Thompson’s evidence that he had lied to the Board to give himself the best chance of becoming a pilot. He argued that this was consistent with his motivation in not reporting his neck injury because of his fear of being scrubbed. Mr Chancellor submitted that Mr Thompson’s war‑time experience gave rise to a drinking habit which became heavier after the war. He cited Kattenberg as authority that Mr Thompson’s drinking habits were war‑caused.
45. In a written submission dated 12 April 2005, Ms McCulloch noted that the SoP for cervical spondylosis required the clinical onset of cervical spondylosis to be within 25 years of the trauma. She submitted that the clinical onset of a condition occurs when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or when the condition is actually found on diagnostic testing, regardless of the extent of symptoms (Lees v Repatration Commission (2002) 74 ALD 68, Repatriation Commission v Cornelious [2002] FCA 750 and other earlier cases).
46. Ms McCulloch provided extracts from Mr Thompson’s service records, which she submitted provided no evidence of a neck problem during service. The records noted Mr Thompson’s pre-enlistment head injury of 1938, his knee injury in July 1943 sustained while playing football, further knee problems in January 1944, a hand injury and remarks in 1945 declaring him fit on posting. She also noted that his medical examination at discharge on 2 August 1945 did not record a neck problem as a disability. Ms McCulloch highlighted a medical report prepared by the Repatriation Department on 22 January 1959 when Mr Thompson made a claim for his knee injury. In that report, his spine was recorded as having no problems. On 28 August 1970, pain in the back of neck and shoulders with continual headaches was described with Mr Thompson signing a document that stated that he had strain to neck and spine during training and parachuting on service. Ms McCulloch also highlighted a report by Dr J Vaughan for the Repatriation Department on 10 November 1970 (T6) in relation to a claim by Mr Thompson for cervical spondylosis in which Dr Vaughan stated:
…There is no record of clinical injury on service. In my opinion, there is no relationship to parachute training during w.s. It is noted that a/n suffered a head injury P.T.E….The spondylosis could possibly be a result of that accident…there was no aggravation d.w…s.
The symptoms have been present for 12 months daily.
47. Ms McCulloch also noted that, in giving evidence before the VRB, Mr Thompson had been unable to recall exactly how long he suffered from his neck injury, saying that the accompanying headache would have been for three or four days. He also said he was still able to do what was asked of him despite his pain.
48. Ms McCulloch submitted that when Mr Thompson applied for cervical spondylosis as a war-caused disability in August 1970, Dr Allchin advised that he had first sought treatment for his neck in November 1969. Ms McCulloch submitted that the clinical onset of cervical spondylosis was on or about 3 November1969 when Mr Thompson first sought treatment for the recent exacerbation with left brachial neuritis. Ms McCulloch submitted that Mr Thompson’s service medical history showed that he was not averse to seeking medical treatment. She stated that he attended frequently and was hospitalized on 10 occasions prior to commencing pilot training at Somers. She argued that his evidence at the hearing that he did not seek medical treatment for his stiff neck in 1944 because of the scrub test does not account for him not recording the alleged injury at discharge in August 1945. She noted that his hand and knee injuries were recorded, as well as his hospitalization for other illnesses. Ms McCulloch also queried Mr Thompson’s failure to mention the neck symptoms in January 1958, when he claimed for his knee conditions, if he had been suffering the neck problems since 1944. She noted that, some sixty years after his service, Mr Thompson told the Tribunal that he recalled an incident where he hurt the back of his neck and had a stiff neck and headache for a few days.
49. Ms McCulloch submitted that there is no evidence in any of the relevant documents that Mr Thompson had any injury to his neck at Somers. She pointed to Dr McCloskey’s comments in 1970 that the spondylosis was indicative of the severe injuries sustained in 1938, rather than a strain to the neck and spine during training and parachuting on service. Ms McCulloch submitted that Mr Thompson’s more recent history of the alleged trauma, symptoms and duration of those symptoms is unreliable. She pointed to changes in his recollection of events and the lack of records of the injury in the service medical discharge documents or in his claim and clinical examination in 1959. Ms McCulloch submitted that there is no causal or temporal relationship between the cervical spondylosis and the sore or stiff neck described to the VRB and to the Tribunal. Furthermore, it does not meet the definition of trauma in factor 5(g) of the SoP. She also submitted that the clinical onset of the claimed condition was in or about November 1969; and that even if there had been a relevant injury in June 1944, the requirements in factor 5(s) were not met.
50. Ms McCulloch submitted that there is no causal link between Mr Thompson’s drinking and his service. She submitted that Mr Thompson’s evidence that he needed to lie about his alcohol consumption in order to be accepted as part of the flying crew was inconsistent with his evidence that the majority of instructors encouraged him to drink on weekends. She also pointed to his challenge of Dr Seabridge’s report, in which Dr Seabridge stated that Mr Thompson did not drink before enlisting, which Dr Seabridge indicated did not accord with his hand-written notes. Ms McCulloch submitted that little weight can be given to Mr Thompson’s recent recollections. She noted that he admitted that he was prepared to provide false information when it suited his desire to join the flying ranks. He demonstrated that he was prepared to dispute Dr Seabridge’s history when it became apparent that it did not meet legislative requirements. She also submitted that it was counter-intuitive that a majority of nine flying instructors would encourage trainee pilots to consume a skinful of alcohol given the seriousness of the task they were undertaking. She submitted that such encouragement could have endangered instructors' lives and potentially caused serious damage to aircraft necessary for the war effort.
51. Ms McCulloch noted discrepancies between the histories Mr Thompson gave to various doctors and Mr Thompson’s evidence to the Tribunal. Mr Thompson’s evidence was that he started smoking at about the age of 15, smoking about 6 to 8 cigarettes per week. Dr Hart indicated in oral evidence that his notes of interview showed that Mr Thompson told him he started smoking at 14, smoked 20 per day in the RAAF and then increased towards 40 per day after leaving. Ms McCulloch submitted that Mr Thompson’s recollection of his history of smoking is unreliable; that it has altered in the course of the application and that the Tribunal can be satisfied that on the balance of probabilities, his current history is fabricated. She also submitted that the applicant was an established smoker prior to enlistment and that there is no causal relationship between his smoking or alleged increase in smoking and his service.
52. Ms McCulloch submitted that as there is no causal relationship between Mr Thompson’s service and the claimed conditions, the factors in the relevant SoPs are not met. She referred to his admission of giving false information when seeking entry to the flying ranks and his challenge of the histories he had given to two medical experts. She submitted that the Tribunal should give little weight to his recent histories, which were given for the purposes of the claim. She also argued that his recollection of the history of his alleged neck injury, smoking and alcohol consumption is unreliable and has changed over time when compared to that he gave to the VRB, Dr Seabridge and Dr Hart.
53. In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing. The Tribunal must form an opinion whether the contention raised by Mr Thompson fits within, or is consistent with, a factor set out in the SoPs. If the contention fails to fit within the template, the claim will fail.
54. The Tribunal notes that in Kattenberg v Repatriation Commission (2002) 73 ALD 365 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated (at 374):
…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996.
55. In respect of chronic bronchitis, there was no dispute between the parties that Mr Thompson was a smoker before he joined the RAAF. Mr Thompson declared his smoking at the time of enlistment. There is corroboratory evidence in medical reports that Mr Thompson consumed in excess of 20 cigarettes per day for more than a decade continuously. Dr Hart dated the clinical onset of chronic bronchitis to the last few years prior to his report in October 2004. The Tribunal accepts that Mr Thompson satisfies the requirement in factor 5(a) in SoP N° 31 of 2004, in that he smoked the equivalent of at least 10 pack years of cigarettes before clinical onset.
56. The Tribunal accepts the explanations given by Mr Thompson of why his smoking rate increased after enlistment. It accepts his estimate of the amount he smoked before he joined the RAAF. It is plausible that Mr Thompson’s consumption of cigarettes increased after he joined the RAAF for the reasons he gave, which included peer group pressure, lengthy periods of boredom and ready availability of tobacco. His personal frustration at not being to serve overseas and the multiple postings during the war also appear relevant. The Tribunal notes that after his discharge, Mr Thompson’s smoking increased substantially until he stopped, following hypnosis in 1968.
57. The Tribunal finds that Mr Thompson was a heavy smoker in the 1950s and 1960s. However, he had a smoking habit prior to service. Considering the material as a whole, the Tribunal is reasonably satisfied that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service and that it would not have occurred but for the rendering of the service. Therefore, there is a temporal or causal connection between Mr Thompson’s level of smoking and his eligible service.
58. In respect of cervical spondylosis, Mr Thompson has given evidence that he injured his neck while undergoing training at Somers in June 1944. The Tribunal notes that he did not report the injury nor seek any treatment apart from self‑administered painkillers. His explanation for not reporting the injury, namely his concern at being scrubbed, is plausible. However, the Tribunal is not satisfied that the neck strain suffered during training was an injury serious enough to meet the definition of trauma in the SoP. Trauma to the cervical spine, where medical intervention has not been sought, requires symptoms to last at least ten days following their onset. Mr Thompson has given various estimates of how long the pain lasted, from three or four days to a week or two, before various bodies. He stated that he had problems with his neck from time to time during the rest of his time in the RAAF. However, he did not rate the injury or the subsequent neck discomfort as significant enough to report when he was discharged, when it no longer would have had an impact on his service. It is also possible that the cervical spondylosis dates back to Mr Thompson’s serious accident in 1938, notwithstanding the lack of diagnosis at the time.
59. The Tribunal takes into account the report of Dr McCloskey in 1970 (Exhibit R3), when he determined that Mr Thompson’s cervical spondylosis was indicative of injuries sustained in 1938 rather than a strain to his neck and spine during the training and parachuting on service. The Tribunal notes that Mr Thompson gave evidence that he did not undertake any parachute jumps, but whether the error was due to his statements or Dr McCloskey’s assumptions is irrelevant. The Tribunal is not reasonably satisfied that Mr Thompson suffered a trauma to the cervical spine, as defined in the relevant SoP, during training in June 1944. The Tribunal finds that Mr Thompson does not satisfy factor 5(f) or 5(p) of SoP N° 34 of 2005 nor its predecessors, or 5(g) or 5(s) of N° 51 of 2002. None of the other factors is relevant. Hence, he does not meet the requirements of the relevant SoP for cervical spondylosis.
60. In respect of secondary cardiomyopathy, the Tribunal notes the June 2004 report by Dr Roth, Mr Thompson’s treating doctor for over 20 years. Dr Roth stated that he had …no doubt that previous heavy consumption of alcohol and tobacco were significant causes of his cardiac problem and his chronic bronchitis. Dr Dick, Mr Thompson’s cardiologist, in a report dated 27 July 2004, indicated that Mr Thompson’s consumption of alcohol was likely to be linked to his development of a dilated cardiomyopathy. Dr Dick stated that there did not appear to be any other significant cause for his cardiomyopathy unless it was an intercurrent virus. Whilst he was unable to determine the exact cause for the myopathy, Dr Dick stated that an excess amount of alcohol at any stage in a person’s life can contribute to a cardiomyopathy. Mr Thompson presented evidence of his level of drinking from enlistment to recent years. Dr Seabridge did not accept that Mr Thompson’s level of drinking would necessarily be described as excessive during service and he and Ms McCulloch queried aspects of Mr Thompson’s recollection of his drinking while in the RAAF. However, they acknowledged that, based on Mr Thompson’s estimates, if a different 10 year period, commencing after the war, was taken into account, Mr Thompson’s level of drinking met the requirements of factor 5(a) of SoP N° 20 of 1998, in that he drank at least 300 kg of alcohol during such a period. The Tribunal accepts that Mr Thompson’s estimates of his drinking are fairly accurate and finds that he meets factor 5(a) of the relevant SoP.
61. It is therefore necessary to consider whether Mr Thompson’s level of drinking was related to his service. The Tribunal accepts Mr Thompson’s evidence that he was not a heavy drinker when he joined the RAAF. The Tribunal also accepts that he drank heavily during some of his postings, particularly in Mildura where he spent a considerable period. The Tribunal is satisfied that Mr Thompson drank fortified wines while in the wine districts. Professor McCarthy, the respondent’s witness, confirmed that Mr Thompson would have had access to fortified wine in Mildura and Mallala and confirmed the existence of hotels in locations close to several of Mr Thompson’s other postings. The Tribunal accepts that some instructors may well have encouraged trainees to have a skinful on the weekends. The Tribunal is also satisfied that the evidence he has given about his level of drinking is also reasonably accurate under the circumstances. The challenges to some of his figures by Ms McCulloch, such as during hospitalization or at certain postings, may well be valid. However, the overall trend and levels of alcohol consumption are reasonable estimates, given the length of time that has elapsed since service. The Tribunal finds that Mr Thompson’s evidence as to the reasons why his drinking increased in the RAAF is plausible. The Tribunal is reasonably satisfied that the level of Mr Thompson’s drinking was contributed to in a material degree by his service. The Tribunal is therefore satisfied that the cardiomyopathy is war-caused.
62. In summary, the Tribunal is reasonably satisfied that Mr Thompson’s chronic bronchitis and secondary cardiomyopathy are war-caused. That is not the case with the cervical spondylosis. The Tribunal takes into account the beneficial nature of the Act and the effect of the passage of time (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) cannot be used to provide evidence of facts if none exists. In the matter before it the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not enable the Tribunal to find in Mr Thompson’s favour in relation to cervical spondylosis.
DECISION
63. The Tribunal:
(a)sets aside that part of the Repatriation Commission's decision made on 18 September 2001 concerning cardiomyopathy and chronic bronchitis and decides that these conditions are war-caused conditions under the Veterans' Entitlements Act 1986; and
(b)affirms that part of the Repatriation Commission's decision made on 18 September 2001 concerning cervical spondylosis.
I certify that the sixty-three [63] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 4 March 2005
Submissions: 15 April 2005, 13 May 2005
Date of decision: 8 February 2006
Advocate for the applicant: Mr G. Chancellor
Solicitor for applicant: Williams Winter
Advocate for the respondent: Ms J. McCulloch
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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