Toyer and Repatriation Commission (Veterans' entitlements)
[2020] AATA 2640
•28 July 2020
Toyer and Repatriation Commission (Veterans' entitlements) [2020] AATA 2640 (28 July 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2019/0958
Re:ERIC TOYER
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:28 July 2020
Place:Brisbane
The decision that adjustment disorder with depressed mood and anxiety is not related to service is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the adjustment disorder with depressed mood and anxiety is defence-caused.
................................[SGD]........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – decision under review remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847
Kaluza v Repatriation Commission [2014] FCA 1137
SECONDARY MATERIALS
Statement of Principles concerning adjustment disorder (Reasonable Hypothesis) (No. 23 of 2016)
Statement of Principles concerning adjustment disorder (Balance of Probabilities) (No. 24 of 2016)
REASONS FOR DECISION
Senior Member Katter
28 July 2020
APPLICATION
The Applicant seeks a review of the decision that a disability pension is not payable in accordance with the Veteran’s Entitlement Act 1986 (Cth) (“the Act”).
BACKGROUND
The Applicant served in the Royal Australian Navy from 13 January 1962 until February 1973[1]. The Applicant had operational service in Vietnam from 20 September 1971 to 17 December 1971 and defence service from 7 December 1972 to 16 January 1973[2].
[1] Exhibit 1, T16, page 73 and Exhibit 1, T2(a), page 10.
[2] Exhibit 1, T2(a), page 10.
By a claim for disability pension and/or application for increase in disability pension form dated 11 December 2016[3], at part E, the Applicant stated as to details of the new disabilities claimed as war or defence caused[4]:
“Disability 1 Reduced lung capacity
Signs and symptoms Ongoing reduction in lung capacity & fitness when jogging – free diving – scuba diving & hiking
How do you believe your service caused, contributed to, or aggravated this disability? Ongoing minimal & occasional intense exposure to asbestos fibres during sea service & whilst maintaining ships when posted to HMAS Kuttabul E.M.P[.]
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 2013
Disability 2 Anxiety Depression
Signs and Symptoms Single diagnosis & subsequent research on asbestos- related diseases presents a very uncertain picture for my & wife’s future
How do you believe your service caused, contributed to, or aggravated this disability? Without exposures to asbestos HMA Ships this would not have occurred … ”
[3] Exhibit 1, T16, page 81.
[4] Exhibit 1, T16, page 74-75.
As to the medical diagnosis in part E of that form dated 11 December 2016[5], the Applicant stated as to “reduced lung capacity”:
[5] Exhibit 1, T16, page 81.
“Diagnosis Pleural Plaque detected in CXR @ Maclean Hosp. 19.10.16
Basis for diagnosis
CXR 19.10.16
CT Scan 21.10.16
Dr David Hope
Yamba Clinic 266462085 …
Nov 2016”.
As to the claim form dated 11 December 2016[6], lodged on 21 December 2016, the Respondent decided on 28 June 2017[7]: “I have accepted your claim for Pleural Plaque. My decision takes effect from 21 September 2016. I have decided that Adjustment Disorder with depressed mood and mild anxiety is not related to service. I have decided that a disability pension is not payable at this time.”
[6] Exhibit 1, T16, page 81.
[7] Exhibit 1, T34, page 181.
The reasons for the decision of the Respondent, decided on 28 June 2017, state relevantly as to why a disability pension was not payable[8]:
“Assessment of Pension with effect from 21 September 2016
Medical Impairment
The guide is arranged into Chapters for different body systems that are used to assess the degree of medical impairment.
The table below summarises Mr Toyer’s medical impairment rating under the Guide:
[8] Exhibit 1, T34, page 186-187.
Condition & Body System
Chapter
Impairment Rating
Cardiorespiratory Impairment
Pleural Plaque
Chapter 1
0 points.
Disfigurement & Social Impairment
Pleural Plaque
Chapter 17
0 points.
The above ratings convert to a single value of 0 points. To achieve this impairment rating, individual ratings are not added arithmetically but combined using the Combined Values Chart in the Guide.
Full details of the impairment assessment can be requested from the Department.
Lifestyle Effects
The Lifestyle effects are determined using Chapter 22 of the Guide.
Mr Toyer elected to have an average lifestyle allocated under the Guide based on the level of his medical impairment.
This results in a lifestyle rating of 0.
Combined Assessment
Under the Guide, no pension is payable for an impairment rating of 0 points and a lifestyle rating of 0.
I have therefore decided that a disability pension is not payable to Mr Toyer.”
On 11 November 2017 by an application for review form, the Applicant applied for review to the Veterans’ Review Board[9]:
[9] Exhibit 1, T40, page 198.
“I am unhappy with the decision because …
Pre 2010/11 my METS score would have been around ‘10’[.]
Only recently – Oct 17 did I find out that Pleural Plaques/Asbestos was first detected in 2011 – See Initial Report 23.6.11 CXR that does ‘not’ refer Plaques.
See Report CT 5/10/17 that notes Plaques were present in 2011[.]
My level of fitness has deteriorated markedly in past 6-7 years. Obviously due to lung condition/asbestos[.]
My condition/fitness in decline. Present METS score – 4/5[.]
I had a coronary event when recently visiting Aust – dizziness – Collapsed & now have a pacemaker installed.
I do suffer depression – Not clinical but due to lung condition – which is “YOURS” – Similarly anxiety due to this condition.
Plenty more to come.”
The Veterans’ Review Board decided on 21 November 2018[10] to affirm the decision under review, being the decision of the Respondent dated 28 June 2017[11].
[10] Exhibit 1, T78, page 386.
[11] Exhibit 1, T78, page 387.
By an application for review of decision submitted to this Tribunal on 21 February 2019, the Applicant applied for review of the decision of the Veterans’ Review Board, stating the following reasons for the application[12]:
“The evidence presented to the VRB was incomplete. I had a consultation in July 2018 with Dr Keith Adams for this VRB case. At that consultation I offered Dr Adams a more recent and comprehensive CT Scan dated February 2018 to complement the previous CT scan dated October 2016, which indicated plural plaques, which was subsequently linked to my service time. Dr Adams declined to accept or review the more recent CT scan and his report failed to demonstrate or acknowledge the severity of the plaques and subsequent reduced lung capacity, which has led to my adjustment disorder with depressed mood and mild anxiety. Subsequent to the VRB decision, all the evidence was reviewed by Dr Matthew Carter and his report confirmed severe plural plaques and loss of lung volume. (See letter dated 19/12/18).”
[12] Exhibit 1, T2, page 6.
CONSIDERATION
The Applicant rendered “operational service”[13] as defined in s 6 of the Act and the Applicant’s injury or disease will therefore be found to be service-related if there is a reasonable hypothesis connecting the injury or disease to service: sub-ss 120(1) and (3) of the Act[14].
[13] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 2 on page 8.
[14] There is a note in sub-ss 120(1) and (3) of the Act stating that those sub-ss are “ ... affected by section 120A”.
In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:
In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take … .
… As [the Applicant] contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows … :
1 The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCA Trans 303)).
2 If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the … Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the … Act as qualified by s 120(3) and s 120A (Budworth (at [19])).
3 In applying ss 120(1), 120(3) and 120A of the … Act, the Tribunal was to consider all the material and determine whether:
(i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and
(ii) that hypothesis can be regarded as reasonable, if the “raised facts” are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).
4 If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).
5 If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is “upheld” by the SoP in the sense of being “consistent with the ‘template’ to be found in the SoP” (Deledio step three (at 97G)).
6 If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.
The Respondent accepts that the medical evidence supports a finding that the Applicant suffers from a psychiatric condition; an adjustment disorder[15].
[15]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 1 on page 8.
It is submitted by the Applicant that the adjustment disorder has developed as a consequence of the Applicant’s accepted service-related pleural plaques condition, with the onset of the adjustment disorder condition following the diagnosis of pleural plaques[16]. The hypothesis of the Applicant does find “support” in the evidence and is not merely “left open”[17], in that there are facts which support the hypothesis connecting the adjustment disorder with the diagnosis of pleural plaques. Dr Yeung, a psychiatrist, stated that the Applicant had ‘developed’ an adjustment disorder with depressive anxiety[18], stating the ‘main stressor’ as the communication to the Applicant that he had recently been accepted for asbestos exposure for service and had been diagnosed with pleural plaques[19].
[16]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 3 on page 8.
[17] Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847 at [15] per Gordon J.
[18] Transcript, P-59, lines 14-15.
[19] Transcript, P-59, lines 21-25.
As the “raised facts” point to a hypothesis of a connection, there must then be a decision as to whether a Statement of Principles was in force in respect of the “kind of disease” from which the Applicant suffers. There is a Statement of Principles concerning adjustment disorder (Reasonable Hypothesis) (No. 23 of 2016) and a Statement of Principles concerning adjustment disorder (Balance of Probabilities) (No. 24 of 2016). The Applicant and the Respondent referred particularly to factor 9(7) in the Statement of Principles 24 of 2016:
“At least one of the following factors must exist before it can be said that, on the balance of probabilities, adjustment disorder or death from adjustment disorder is connected with the circumstances of a person’s relevant service:
(7) having, or being diagnosed with, a medical illness or injury which is life- threatening or which results in serious physical or cognitive disability, within the three months before the clinical onset of adjustment disorder; … .”
In Statement of Principles 23 of 2016 factor 9(8) is similar in wording to factor 9(7) in Statement of Principles 24 of 2016.
As a Statement of Principles is in force in respect of the adjustment disorder which is suffered[20] by the Applicant, then the hypothesis is reasonable only if it is “upheld” by the Statement of Principles in the sense of being “consistent with the ‘template’ to be found in the SoP”[21]. The Respondent submits that there is not a serious physical or cognitive disability within the three months before November 2016[22], being the diagnosis of pleural plaques. The Applicant stated that when he had an X-ray on 21 October 2016 the pleural plaques were ‘picked up’ then[23]. The Applicant stated that he had a CT scan on 21 October 2016, with that having a ‘massive impact’ on him[24]. The Applicant stated that the pleural plaques contributed to a loss of function and loss of breathing, thereby being a serious physical disability[25]. The Applicant referred to a report by Dr Carter, which stated relevantly that, as to the Applicant, it was a “somewhat unusual instance where pleural plaques are severe, calcified, with associated adhesions, and loss of lung volume. This corresponds with the restrictive deficit in spirometry”[26]. Dr Carter further stated that the Applicant had severe, calcification with associated adhesions and loss of lung function[27].
[20]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 1 on page 8.
[21] Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J.
[22] Transcript, P-22, lines 38-41.
[23] Transcript, P-40, lines 14-15.
[24] Transcript, P-45, lines 46-47.
[25] Transcript, P-42, lines 1-24.
[26] Transcript, P-29, lines 10-16.
[27] Transcript, P-93, lines 14-15.
Dr Adam, a fellow in occupational and environmental medicine (a faculty of the Royal Australian College of Physicians)[28], gave oral evidence at the hearing. Dr Adam confirmed the finding of pleural plaques as to the Applicant[29]. Dr Adam stated that ‘pleural plaques are clearly an indicator or they’re consistent with asbestos exposure, however, they are not a precursor of the other asbestos-related diseases and in particular they are not a precursor to mesothelioma’[30]. Dr Adam stated, to his belief, that pleural plaques are not a serious physical disability[31] or severe chronic medical condition[32]. Dr Adam stated to the Applicant, when the Applicant was examined by Dr Adam, that pleural plaques do not cause loss of lung capacity[33]. The Doctor stated that the Applicant’s lung capacity was 76 per cent of average, with the population average being 84 percent[34]. Dr Adam was ‘taken’, in cross-examination, to the report of Dr Carter[35]. It was suggested to Dr Adam, by the Applicant, that Dr Carter had a CT scan of the Applicant, which Dr Adam did not consider[36]. Dr Adam stated that he would be able to have a look at another CT scan[37]. Dr Adam stated that the Applicant’s lung function is, in the report documentation of Dr Carter, approximately 80 percent of that predicted for his age and height[38]. Dr Adam stated that ‘the most extreme example, would be where the whole – almost the whole pleural membrane was scarred, and that might, as Dr Carter mentioned, cause some restriction on the ability of the lungs to expand, but that of itself would not be life-threatening’[39].
[28] Transcript, P-77, lines 14-18.
[29] Transcript, P-77, lines 35.
[30] Transcript, P-78, lines 5-8.
[31] Transcript, P-78, lines 35-36.
[32] Transcript, P-78, lines 46-47.
[33] Transcript, P-85, lines 10-11.
[34] Transcript, P-85, lines 35-37.
[35] Transcript, P-87, lines 1-10.
[36] Transcript, P-86, lines 10-14.
[37] Transcript, P-92, lines 27.
[38] Transcript, P-93, lines 31-35.
[39] Transcript, P-97, lines 35-40.
Therefore, the Applicant has been diagnosed with a medical illness (pleural plaques), which results in serious physical disability (loss of lung function), within three months before the clinical onset of adjustment disorder. The loss of lung function is a serious physical disability as those words are used in factor 9(7) and 9(8) of the Statements of Principles 23 and 24 of 2016. “Serious” is an adjective for something that is not frivolous, not slight or negligible and the evidence of Dr Carter and Dr Adam is that there was a loss of lung function in the Applicant, as referred to above, that was not frivolous, slight or negligible. Therefore, it is found, having regard to the evidence referred to above, that the Applicant had a serious physical disability, as that phrase is used in the factors in the relevant Statements of Principle.
As the hypothesis is upheld by the Statements of Principle, as referred to above, then the evidence must be ‘weighed’ under s 120(1) of the Act to decide whether the hypothesis is disproved beyond reasonable doubt.
As to whether the hypothesis is disproved beyond reasonable doubt, Dr Elsa Yeung, a psychiatrist, was called to give oral evidence by the Respondent, further to a written report. Dr Yeung conducted a face-to-face assessment of the Applicant on 16 May 2017[40]. Dr Yeung stated that the Applicant had multiple stressors that ‘developed’ into an adjustment disorder with depressive anxiety[41]. The Doctor specifically stated that the main stressor included a physical condition where the Applicant was told he had recently been accepted for asbestos exposure for service by the Respondent and also had been diagnosed with pleural plaques[42]. Dr Yeung stated that there was a lot of uncertainty there[43], but also particularised other stressors[44]. Dr Yeung stated that the adjustment disorder developed in 2016, after the X-ray was done confirming the pleural plaques[45]. The Doctor had no concern about the Applicant’s cognitive ability, describing the adjustment disorder as a secondary condition focusing around the uncertainty of the Applicant’s physical condition[46].
[40] Transcript, P-59, lines 5-6.
[41] Transcript, P-59, lines 14-15.
[42] Transcript, P-59, lines 21-25.
[43] Transcript, P-59, lines 25-26.
[44] Transcript, P-59, lines 29-37.
[45] Transcript, P-59, lines 39-45.
[46] Transcript, P-60, lines 15-20.
It is found, having regard to the evidence referred to above, that the hypothesis is not disproved beyond reasonable doubt. The claim as to the adjustment disorder with depressed mood and anxiety therefore succeeds as it is not so disproved.
DECISION
The decision that adjustment disorder with depressed mood and anxiety is not related to service is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction[47] that the adjustment disorder with depressed mood and anxiety is defence-caused.
[47] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
.............................[SGD]...........................................
Associate
Dated: 28 July 2020
Date(s) of hearing: 1 May 2020 Date final submissions received: 23 June 2020 Applicant: Appeared by telephone Counsel for the Respondent: Mr F. Huezo Solicitors for the Respondent: Moray & Agnew Lawyers
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