Trevor Jones and Repatriation Commission
[2014] AATA 887
•28 November 2014
[2014] AATA 887
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/3950
2013/3954
Re
Trevor Jones
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 28 November 2014 Place Brisbane The Tribunal affirms the decisions under review.
..............................[Sgd]..........................................
Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS – Posttraumatic Stress Disorder – PTSD – Alcohol dependence – Alcohol Use Disorder – Gastro-oesophageal reflux disease – Smoking – Whether connected to relevant service – Hypothesis connecting the worsening of PTSD with service not reasonable – Evidence incapable of establishing connection between smoking or alcohol dependence and relevant service – Decisions of Commission under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 9, 5D, 13, 16, 120, 120A
CASES
Border v Repatriation Commission (No. 2) [2010] FCA 1430
Delahunty v Repatriation Commission [2004] FCA 309
Gibson and Repatriation Commission [2009] AATA 115
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 60 ALD 401
Repatriation Commission v Thomas (2002) 71 ALD 289
Stoddart v Repatriation Commission [2003] FCA 334Woodward v Repatriation Commission [2003] FCAFC 160
SECONDARY MATERIALS
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000
Statement of Principles concerning Posttraumatic Stress Disorder No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked)
Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014
Revocation and Determination of Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 11 of 2005
Statement of Principles concerning Gastro-oesophageal Reflux Disease No. 65 of 2013Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009 as amended by No. 29 of 2014
REASONS FOR DECISION
Deputy President I R Molloy
28 November 2014
Mr Jones served in the Royal Australian Navy from 10 July 1965 to 9 July 1985. This included operational service in Vietnam from 3 April 1971 to 8 April 1971, and from
17 May 1971 to 1 June 1971.
On 24 June 2013 the Veterans’ Review Board affirmed a decision of the
Repatriation Commission dated 18 April 2011 which refused Mr Jones’ claims under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for gastro-oesophageal reflux disease and sleep apnoea. The Board also affirmed a decision of the Commission dated
6 February 2013 refusing his claims for alcohol dependence and alcohol abuse, and posttraumatic stress disorder (“PTSD”) as varied.
ISSUES
Mr Jones applied to the Tribunal for review of the Commission’s decisions. The issues, broadly, are whether he suffered from the war-caused incapacities as claimed. At the hearing the claim in respect of sleep apnoea was expressly abandoned.
BACKGROUND
In June 1969 Mr Jones was serving in HMAS Melbourne when it collided with
USS Frank E Evans in the South China Sea. The Frank E Evans was split in half. The Melbourne was badly holed and the forward compartments flooded.At the time of the collision Mr Jones was asleep below decks in the forward section of HMAS Melbourne. He was awakened by a loud noise and almost thrown out of his bunk. He remembers thinking the ship was sinking. He also remembers the ship seemed to rise up at the bow and then suddenly drop, shuddering and vibrating violently with a loud grinding noise of metal against metal.
Not knowing what had happened Mr Jones ran to a weather deck and saw half a ship grinding and scraping down the side of the Melbourne and heard a broadcast to launch sea boats. Helicopters were also launched, using their landing lights to illuminate the water. United States sailors were lifted on board the Melbourne. Mr Jones remembers seeing survivors covered in furnace fuel oil. Some were badly burnt and injured.
After the accident, HMAS Melbourne proceeded to Singapore for dry dock and temporary repair. In Singapore Mr Jones and others from the Melbourne “hit the grog”. After the repairs were carried out, the ship returned to Australia.
In Australia Mr Jones was living with his partner in a caravan at the back of his parents’ home at Shellharbour. This was about a one hour drive from HMAS Albatross where he was then based. He says that for the next few months he found it very hard to cope.
He says he was having trouble sleeping and finding it very difficult to concentrate as his mind kept wandering. He says he was drinking heavily, feeling on edge and uptight. He could not talk about the collision even though it was always on his mind.
He says that with the help of his partner and family he started to get his life back together. He was posted to HMAS Duchess which was berthed in Sydney, and would travel from Sydney to Shellharbour on weekends. He says the Duchess was about the same size as the Frank E Evans.
The Duchess was deployed on escort duties to Vietnam in April 1971. This was his first trip to Vietnam. Mr Jones says that when the Duchess was entering Vung Tau Harbour, accompanying HMAS Sydney, scare charges were set off. Mr Jones was on duty in the boiler room, at about the water-line, when he heard explosions. He says there were about six others in the boiler room including a petty officer.
He says when he heard the explosions he did not know what was happening. He said he thought the ship had been hit by mines. In cross-examination he said the timing between the explosions was seconds.
Mr Jones said the petty officer rang through to check what was happening. He relayed to Mr Jones what was going on. Mr Jones returned to his duties in the boiler room. The other sailors in the boiler room maintained their stations.
Mr Jones says he had thought he would drown or be burnt by the boiler. He says his mind went back to the collision with the Frank E Evans. In a statement dated
17 September 2013, he says he was in fear of his life.[1] He says, “I was physically ill and could not believe this was happening to me again, all the old memories and feelings came flooding back and the bad dreams returned”.[2]
[1] Exhibit 5, paragraph 14.
[2] Exhibit 5, paragraph 15.
Mr Jones says that he was still shaking when he left the boiler room. He says that after the scare charge incident he felt compelled to remain on the upper deck. He could not go below when in the company of other vessels.
Mr Jones also recounts an incident in Vung Tau Harbour when he was on a motor cutter. He says a US helicopter exploded floating debris and he was showered with some of it.
Mr Jones says that when he returned from Vietnam he was on edge and agitated all of the time. He had difficulty concentrating and was unable to sleep, waking often after nightmares. He says he commenced even heavier drinking and could not sleep unless he had “a couple of beers to settle [him] down.”
In an Alcohol Questionnaire, dated 17 June 2013, Mr Jones said from April 1971 his alcohol consumption increased from one or two schooners a day, to an “excess of
10 to 15 schooners plus spirits when available”.[3]
[3] T documents, page 385.
On his return from Vietnam, Mr Jones was still with his partner at Shellharbour at his parents’ place. There were arguments about his drinking. His partner eventually left him in 1973. Mr Jones recounted subsequent episodes of heavy drinking including a conviction for high range DUI (driving under the influence) in 1971.
Mr Jones remained in the Navy. He completed an apprenticeship as a fitter and turner. He married in 1982. He described it as a good marriage for a while but there were problems connected with his drinking. His wife left him on four occasions. They were eventually divorced. They have three children. Mr Jones says they get along.
Mr Jones left the Navy in 1985 aged 36. He then worked with his brother as an engineer. For four years he worked as a fitter and turner at a power station at
Narangba, Queensland. He stopped working in power stations after his marriage finally broke down in about 1994, when he became a sole parent for his 11 year old son.
Mr Jones has been living in a de facto relationship for the past 18 years. He says today he is still anxious and depressed, suffers frequent nightmares and often gets moody, irritable and upset. He still drinks heavily. For the last 20 years he has worked 25 hours a week driving a school bus.
LEGISLATION
Section 13(1) of the Act provides, relevantly, that where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran in accordance with the Act.
Section 5D of the Act defines “disease” to include any ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 9(1)(a) and (b) of the Act provide, relevantly, that an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service or was attributable to war service.
Pursuant to s 16(a) the Act, a claim is to be dealt with under s 120 of the Act.
Section 120 of the Act provides relevantly:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, [or] that the disease was a war‑caused disease … as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) … in respect of the incapacity of a person from injury or disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury … ;
(b) that the disease was a war‑caused disease … ;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, [or] disease … with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) … applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b)a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
…
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Subsection 120A(3) of the Act provides relevantly:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, [or] a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) …
There is a current Statement of Principles (“SoP”) in respect of each of the conditions for which Mr Jones claims. Each SoP sets out the factors that must be related to operational service before it can be said that an injury or disease is connected with the circumstances of such service.
The application of ss 120(1) and (3) of the Act involves four steps as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97]-[98]. Where the existence of the claimed injury or disease is in issue, it is necessary first to determine,
to the standard of reasonable satisfaction referred to in s 120(4) of the Act,
whether the veteran has the claimed (or perhaps some other) injury or disease: Repatriation Commission v Cooke (1998) 90 FCR 307.
Posttraumatic stress disorder
Mr Jones relied on reports from three consultant psychiatrists, namely, Dr Scott Jenkins, Dr Marsh May, and Dr Mohamed Milad. Dr Jenkins diagnosed Mr Jones in 1999 as suffering from PTSD and alcohol dependence. In 2012 he provided a diagnosis of anxiety disorder and alcohol abuse, without any apparent reference to his earlier diagnosis. Dr May was Mr Jones’ treating doctor. He diagnosed Mr Jones in 2002 as suffering from PTSD occasioned by overwhelming stress and fear following a collision at sea and exacerbated by his experiences in Vung Tau Harbour.
Dr Milad’s reports are more recent[4] and he also gave oral evidence. His view was that
Mr Jones probably experienced PTSD during his time in service on HMAS Melbourne, on the Duchess, and after leaving the Navy.
[4] Exhibit 3, report dated 23 January 2014, and Exhibit 4, supplementary report dated 28 April 2014.
In his first report, Dr Milad said he did not think there were active symptoms of PTSD. His report included:
History of post-traumatic stress disorder, most likely in partial remission, probable residual symptoms but not amounting to a full diagnosis of post-traumatic stress disorder.
…
The most probable cause of his incapacity now would be his alcohol dependence and his co-morbid medical conditions including his chronic pain.
In his later report Dr Milad:
Over the years he has managed to reduce his symptoms with excessive alcohol use and certain coping styles. Over the years his symptoms have subsided and in his current state I consider he continues to experience residual symptoms of post-traumatic stress disorder, in view of the symptom profile he presents at the moment.
Dr Milad clarified his position in oral evidence. He acknowledged that his first report may have given the impression that Mr Jones had PTSD but was not suffering from that condition now. He said his first report was prepared based on an examination and interview of about one and half hours. He saw Mr Jones a couple of times after his first report and before preparing his later report.
In forming his opinion Dr Milad considered the diagnostic criteria in DSM-IV-TR.[5]
Dr Milad said the clinical onset of PTSD was “during and after his services at
HMAS Melbourne”.In all the circumstances, especially now having heard Dr Milad, I am reasonably satisfied with the diagnosis of PTSD. In saying that I am satisfied that the collision involving HMAS Melbourne exposed Mr Jones to a traumatic event. I would not be satisfied as to the diagnosis of PTSD if the only event relied on were the scare charge incident in Vung Tau Harbour.[6] However, that is a matter best left to later consideration.
[5] American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000.
[6] Compare Repatriation Commission v Bawden [2012] FCAFC 176 at [40], [45], [49] & [50].
The next requirement, the first step in Deledio, is a consideration of all the material to determine whether that material points to a hypothesis connecting PTSD with the circumstances of Mr Jones’ particular service. No question of fact-finding arises at this stage.
On behalf of Mr Jones it is contended that his PTSD was clinically worsened by his service in Vietnam, specifically, the scare charge incident in Vung Tau Harbour. This raises a hypothesis connecting Mr Jones’ PTSD with his operational service.
There is an SoP, No. 82 of 2014, in force in respect of PTSD. The SoP concerning PTSD in force at the time of the Commission’s decision was SoP No. 5 of 2008.
There is no dispute that Mr Jones is entitled, on the basis of an accrued right, to have his claim assessed by reference to the SoP in force at the time of the Commission’s decision if, by reference to the current SoP, the Tribunal is of the view that his claim should be refused.[7] Although that stage has not been reached, it is convenient to deal now with a related contention.
[7] Repatriation Commission v Gorton [2001] FCA 1194 at [66]; Repatriation Commission v Thomas (2002) 71 ALD 289 at [25].
On behalf of Mr Jones, it is submitted that he is entitled to rely on
SoP No. 5 of 2008 as amended by Instrument No. 19 of 2014. I do not accept that.
In Repatriation CommissionvGorton [2001] FCA 1194, at paragraph [66], Allsop J (with whom Emmett J agreed), said there was no basis for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and revoked before the Tribunal’s review.
In Repatriation Commission v Thomas (2002) 71 ALD 289, Mansfield J said, at [36], he did not think any right accrued before the Tribunal to have a claim determined by reference to the SoP in force at the time of the Board’s decision when the then current SoP has replaced one in force at the time of the Commission’s decision. His Honour said his conclusion accorded with the judgments in Gorton, and of Lee and Cooper JJ in Repatriation Commission v Keeley (2000) 60 ALD 401.
In Gibson and Repatriation Commission [2009] AATA 115, to which I was referred, Deputy President Forgie questioned whether a right accrued to have a claim assessed by reference to an amended or new SoP which has come into force at the time of the Board’s decision, or when the Commission undertakes a review of its own decision, but is revoked before review by the Tribunal.[8] However the decision does not provide any support for the contention that an amendment made after the Board’s decision and before the Tribunal hearing may be relied upon. That is the case here.
[8] Paragraphs [62] and [81] – [84].
Accordingly, Mr Jones’ PTSD claim is to be assessed by reference to the current
SoP, No. 82 of 2014, and if the decision does not favour him, then by reference to
SoP No. 5 of 2008 in force at the time of the Commission’s decision.
The next step, the third step in Deledio, is to determine whether the hypothesis raised is a reasonable one. The question is whether the hypothesis is consistent with the template to be found in the SoP. The hypothesis raised must contain one or more of the factors determined to be the minimum which must exist, and be related to the relevant service. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
SoP No. 82 of 2014, cl 6, states relevantly:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder … with the circumstances of a person’s relevant service is:
…
(h) experiencing a category 1A stressor before the clinical worsening of
posttraumatic stress disorder; or(i) experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder; or
(j) living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder.
Clause 9 of SoP No. 82 of 2014 provides relevantly:
For the purposes of this Statement of Principles:
"a category 1A stressor" means one of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties.
"a hostile or life-threatening environment" means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a) experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;
(b) experiencing or being under threat of nuclear, biological or chemical agent attack; or
(c) being involved in combat or going on combat patrols.
For convenience I will also set out at this stage part of SoP No. 5 of 2008, in force when the Commission made its decision. Clause 6 of SoP No. 5 of 2008 provides, relevantly, that the following factors must exist before it can be said that a reasonable hypothesis is raised connecting PTSD with the circumstances of a person’s relevant service:
(e)experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(f)experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder.
Clause 9 of SoP No. 5 of 2008 contains substantially the same definitions of
“a category 1A stressor” and “a category 1B stressor” as appear in SoP No. 82 of 2014.
Proof of facts is not in issue at this point. The Tribunal is not determining whether the material before it establishes the premises in question; rather it is to determine whether the material points to some fact or facts (the raised facts) which support the hypothesis. The hypothesis relied on by the veteran to support his claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.[9]
[9] Repatriation Commission v Hill (2002) 69 ALD 581 at [57].
For the Commission it is contended that none of the factors in cl 6 of SoP No. 82 of 2014 are satisfied. For Mr Jones reliance is placed on the scare charge incident in
Vung Tau Harbour as his experiencing a life-threatening event before the clinical worsening of his PTSD.
Whether an event might or is capable of fulfilling the requirement of “life-threatening” is not dependent on there being an actual threat, judged objectively and with full knowledge of all the circumstances. It is sufficient that the event which is said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing the event, is capable of and did convey such a threat. The experiences of the particular person must be taken into account and the approach should not be unduly restrictive.[10] It is a mixed objective and
subjective test.[11]
[10] Delahunty v Repatriation Commission [2004] FCA 309.
[11] Stoddart v Repatriation Commission [2003] FCA 334 at [55]; Woodward v Repatriation Commission [2003] FCAFC 160 at [139]; Borderv Repatriation Commission (No. 2) [2010] FCA 1430 at [67].
Mr Jones had been in the Navy nearly six years at the time of the scare charge incident. He was a reasonably experienced sailor. On hearing the explosions the petty officer, as Mr Jones observed, rang through to check what was going on. The crew in the engine room maintained their stations. Within what must have been no more than a few minutes the petty officer had informed Mr Jones of the scare charges. I have not overlooked that Mr Jones had experienced the collision with Frank E Evans two years before, and he was now on a ship said to be of a similar size. However I do not consider that a reasonable person in his position, with his knowledge and experience, would have perceived the scare charge event as involving actual or threatened death or serious injury.
Accordingly the incident relied on as recalled by Mr Jones does not fit the definition of a “category 1A stressor” under either of the above SoPs, so that the hypothesis connecting the worsening of his condition of PTSD (even accepting that to have occurred) with service is not reasonable.
Alcohol abuse
Dr Jenkins diagnosed Mr Jones as suffering from alcohol abuse in 1999.[12] I am reasonably satisfied based on Dr Jenkins’ report and Dr Milad’s reports[13] as to the diagnosis of alcohol abuse or dependence. A hypothesis is raised connecting Mr Jones’ condition with his relevant service. The SoP in force is No. 1 of 2009 as amended by
No. 29 of 2014.
[12] T documents, pages 54-56.
[13] Exhibit 3, pages 9 and 10; Exhibit 4, page 3, paragraph 5.
In order to raise a reasonable hypothesis there must be material pointing to each element of one of the factors in cl 6 of SoP No. 1 of 2009, relevantly:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol use disorder.
Clause 9 of SoP No. 1 of 2009 as amended by SoP No. 29 of 2014 includes the following definitions:
For the purposes of this Statement of Principles:
"a clinically significant psychiatric condition" means a specified disorder of mental health, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties.
In accordance with cl 5 of SoP No. 1 of 2009, at least one of the factors set out in cl 6 must be related to the relevant service rendered by the veteran. As I have already found that the Vung Tau scare charge incident is not capable of satisfying the requirement of a “category 1A stressor” in respect the PTSD claim, it is equally incapable of satisfying that requirement in respect of this claim under factors 6(b) and (c) above.[14]
Similarly factor 6(a) is incapable of being related to Mr Jones’ relevant service. Consideration of the SoP as in force at the time of the Commission’s decision does not lead to any different result.
[14] See McKenna v Repatriation Commission (1999) 86 FCR 144.
Gastro-oesophageal reflux disease
I am reasonably satisfied that Mr Jones suffers from gastro-oesophageal reflux disease based on the assessment of his medical officer Dr Potter[15] and that a relevant hypothesis is raised.
[15] T documents, pages 116-117.
The relevant SoPs No. 65 of 2013, currently in force, and SoP No. 11 of 2005, which was in force at the time of the Commission’s decision. Under cl 6 of the current
SoP No. 65 of 2013 the relevant factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease with the circumstances of a person’s relevant service are:
(c)smoking at least 1.5 pack-years of cigarettes, or the equivalent thereof in other tobacco products, within the five years before the clinical onset of gastro-oesophageal reflux disease; or
(d)consuming an average of at least 300 grams of alcohol per week for at least the 12 months before the clinical onset of gastro-oesophageal reflux disease.
Under cl 5 of SoP No. 11 of 2005 the relevant factors are:
(c) smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastro-oesophageal reflux disease; or
(d)consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro- oesophageal reflux disease.
There is clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[16]
[16] Repatriation Commission v Cornelius [2002] FCA 750 at [26].
The material reveals the earliest diagnosis of gastro-oesophageal reflux disease was by Dr Barry Berglin, respiratory physician, in 1992. Mr Jones relied on earlier medical records. However none of them supported the diagnosis. A daily medical report dated
3 January 1971 contained a diagnosis of abdominal pain and vomiting. A questionnaire dated 24 March 1980 included ticks against shortness of breath, difficulty breathing, and pain to chest.[17] A daily record dated 24 August 1981 referred to symptoms of sharp pains in the central chest unrelated to exercise, and a diagnosis of muscular chest pain.[18]
It was also said that Mr Jones was taking over-the-counter medication such as Mylanta during his service years for indigestion pains. This in my view is incapable of supporting a finding of clinical onset of the condition.
[17] T documents, page 234.
[18] T documents, page 288.
The evidence is that Mr Jones ceased smoking in 1987. That is five years before
Dr Berglin’s diagnosis. Moreover the material is incapable of fulfilling the required connection between Mr Jones’ smoking or consumption of alcohol and his relevant service.
CONCLUSION
The decisions of the Commission under review are affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ...........................[Sgd].............................................
Associate
Dated 28 November 2014
Date of hearing 29 September 2014 Advocate for the Applicant Tom Jehn, Vietnam Veterans' Association of Australia Solicitors for the Respondent
Bruce Williams, Department of Veterans' Affairs
11
1