Turner and Repatriation Commission
[2007] AATA 1446
•20 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1446
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200500787
VETERANS’ APPEALS DIVISION ) Re ROSS TURNER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date20 June 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...........[Sgd]...........
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – applicant had eligible defence service in the Royal Australian Navy – applicant claims brain tumour arose out of exposure to a solvent during his eligible defence service – whether Statement of Principles Instrument No 18 of 2003 ‘Malignant Neoplasm of the Brain’ applies to the applicant’s matter – consideration of the meaning of “recurrent” and “primary” –whether a causal connection exists – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 120, 196B, 196D, 196W
Acts Interpretation Act 1901 (Cth) ss 46ALegislative Instruments Act 2003 (Cth) s 6
Farley-Smith and Repatriation Commission [2005] AATA 968
Keeley v Repatriation Commission (1999) 56 ALD 455
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577Brew v Repatriation Commission (1999) 56 ALD 403
Re O’Brien and Repatriation Commission [2003] AATA 525Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION
20 June 2007 Dr KS Levy, RFD, Senior Member
Introduction
1. Mr Ross Turner was a serviceman in the Royal Australian Navy (RAN) for ten years from 1967 to 1977. There is no evidence of any operational service but he has had “eligible defence service” under the Veterans’ Entitlements Act 1986 (the Act). He claimed that he now has a brain tumour which is referable to that service, and that he should be entitled to a disability pension and medical treatment from the Department of Veterans’ Affairs.
2. It is not in dispute that Mr Turner was exposed to Turcosolv, a solvent product, for some period of his eligible defence service. That chemical has been the subject of suggested links to various carcinomas. Mr Turner claims that chemical is the cause of his brain tumour. The Repatriation Commission has adopted the position that there is not sufficient evidence to justify that claim. The Repatriation Commission also says the Statement of Principles (SoP) No 18 of 2003 “Malignant Neoplasm of the Brain” must be satisfied if the applicant is to succeed. The applicant, while previously maintaining that the SoP was relevant, now argues it is not relevant to his case.
Issues
3. The issues which must be determined by the Tribunal are:
(i) Whether the Statement of Principles No 18 of 2003 – Malignant Neoplasm of the Brain, is relevant to determination of the applicant’s claim?
(ii) Whether there is a causal connection between Mr Turner’s brain tumour and his eligible defence service? In that regard, the applicant must demonstrate that either, at least one factor of the SoP is satisfied (if the SoP is to apply); or that the evidence can be upheld on the balance of probabilities (if the SoP does not apply).
Evidence
4. The evidence submitted to the Tribunal follows a number of directions hearings for over 12 months held to resolve the disputes between the parties about the issues to be determined, and more particularly the evidence which can be said to be relevant in deciding those issues.
5. Briefly, the history of this claim is as follows:
(a)The original application was made on 19 October 1994 and, after hearing, was rejected in 1995.
(b)There was an accumulation of evidence over the decade which followed. A fresh claim was made on 18 February 2005 but was rejected by the Repatriation Commission on 10 June 2005. An application for review of that decision was made to the Veterans’ Review Board on 28 June 2005 and rejected by that Board on 2 November 2005. The matter was then appealed to this Tribunal on 2 December 2005.
(c)The 2005 application was considered under SoP No 18 of 2003 – Malignant Neoplasm of the Brain. At least one of the factors in paragraph 5 of the SoP has to be established. At the Veterans’ Review Board, Mr Richards, advocate for the applicant, conceded that factors 5(a) and 5(b) of the SoP were not applicable to Mr Turner’s claim. The Board held it was unnecessary to consider Factor 5(c). As there was no evidence to support a link between the applicant’s visual problems and his brain tumour, the Board held that the contention was “fanciful”. Mr Richards now argues that SoP No 18 of 2003 should not apply as the applicant, Mr Turner, has a “recurrent” brain tumour, and not a “primary malignant neoplasm of the brain” as defined in the SoP. Mr Stoner, advocate for the respondent, argued that Mr Turner has a recurrence of the “primary” tumour and therefore, the SoP applies. Mr Stoner further says that none of the factors in Factors 5(a), (b) or (c) apply. It has previously been conceded by the applicant, that Factors 5(a) and (b) did not apply as there is no evidence of the applicant having any radiation treatment. With respect to Factors 5(c), this refers to the applicant’s inability to obtain appropriate clinical management for malignant neoplasm of the brain. Mr Stoner has submitted that paragraph 5(c) only applies where the conditions in paragraph 6 apply. That is, it applies “only to material contribution to, or aggravation of, malignant neoplasm of the brain where the person’s malignant neoplasm of the brain was suffered or contracted before or during (but not arising out of) the person’s relevant service”. (See paragraph 6 of SoP No 18 of 2003). Paragraph 5(c) is therefore not satisfied.
(d)The applicant provided copious material about his solvent exposure. Some of this relates to the Department of Defence Instructions/Records which it is said by the applicant, is inferential to his case. Other material was supplied which was more general and scientific in nature. The respondent objected to the admission of the majority of that material as it has been obtained from the internet and there is no independent evidence to attest to the “expertness” or efficacy of the authors propounding various views about the connection exposure to solvents and the applicant’s brain tumour.
(e)However, at the opening of the hearing in January 2007, the applicant sought an adjournment to endeavour to obtain a witness from the United States of America, Dr Gina Solomon. The applicant tendered an article entitled “Brain and Central Nervous System Tumours” (Exhibit 9). Dr Solomon’s article, which was obtained by the applicant from the internet, was prepared in 2003. She is shown as holding the positions of “Senior Scientist, Natural Resources Defense Council” and is also Assistant Clinical Professor of Medicine, University of California, San Francisco.
(f)The adjournment was granted so that Dr Solomon might be secured to provide evidence. However, on resumption of the hearing, the Tribunal was advised that Dr Solomon had refused to give evidence. However, her article reveals the following:
·A national cancer institute study reported associations between brain cancers and occupational exposure to several solvents including carbon tetrachloride and trichloroethylene (page 4 of Exhibit 9).
·There was a consistent relationship between the children who developed brain tumours where their parents have reported significant exposure to solvents (page 4 of Exhibit 9).
·The causes of brain and central nervous system cancers are largely unknown. (Page 1 of Exhibit 9) “Ionizing radiation is the only established environmental cause of brain tumours (Preston-Martin 1996). Occupational exposure to radiation has been consistently linked to adult brain tumours (Alexander and DiMarco 2002), …..Other environmental agents that have been suggested as contributing to this type of cancer include pesticides, solvents, electromagnetic fields (including cell phones) and nitrosoamides that may be created in the digestion of processed meats such as bacon, ham and sausages (Preston-Martin et al. 1996).” (Page 2 of Exhibit 9).
(g)The applicant referred the Tribunal to a number of folios in the T Documents, which was said to show that the brain tumour was “recurrent” and not “primary”. The applicant’s advocate referred specifically to folios 17, 18, 20, 28, 32 and 34, to argue that the SoP was not relevant.
(h)He also referred to a number of documents produced from the records of the navy which outlined various instructions and orders over the period 1971-1977 and also some documents on his service medical file. New handling procedures for dealing with solvents were introduced in August 1976 and again in January 1977 (exhibit 10).
(i)The first application was made following a diagnosis in 1994 of neoplasm of the frontal lobe. That was clearly a primary tumour. The more recent application, it is argued, is a “recurrent” tumour and therefore does not fall within the terms of SoP No 18 of 2003.
Consideration
6. I have considered all of the documentary and oral evidence in determining how the issues below should be resolved.
Issue 1 – Does SoP Number 18 of 2003 Malignant Neoplasm of the Brain apply to this claim?
7. As alluded to earlier, the applicant suggests that the SoP should not apply in this case, despite maintaining the opposite view in the hearing of the decision under review. The argument is essentially that the SoP defines “Malignant Neoplasm of the Brain” as meaning “…. a primary malignant neoplasm arising from the cells of the brain ….” (my emphasis). In terms of that definition, the applicant’s advocate says that his tumour is not a “primary tumour” as it is not an original tumour but a recurrent tumour. The applicant’s case relies on the reference in medical opinions and other evidence to indicate that the applicant’s brain tumour is “recurrent” or a “recurrence”. (See T documents folios 17 (questions 1 and 3); 18 (question 6); 20 (question 5); 28 (questions 2 and 3); 32; and 34. In addition, the applicant refers to a letter from Dr Neil Fletcher dated 19 September 2006 where he states that Mr Turner has a malignant neoplasm of the brain and which is a “recurrence of his tumour diagnosed in 2004”. He goes on to say “I have no expertise in this area, however it is my opinion that exposure over a period of three years, to chemicals which may increase cancer risk according to a reputable source, warrants further investigation and expert opinion.” (Exhibit 11).
8. The respondent argues that the word “recurrent” means “occurring again or often or periodically” (The Australian Concise Oxford Dictionary); or that reference should be had to the definition of the Macquarie Concise Dictionary 3rd Edition, which defines “recurrent” as “that recurs; occurring or appearing again, especially repeatedly or periodically”. The respondent submits that “[a]ccordingly, the word ‘primary’ in the SoP definition does not operate to restrict the applicability of the instrument to the first occurring malignant neoplasm occurring on a particular site, to the exclusion of a recurrence of that neoplasm that may occur on the same site (or another site) at some later date. Rather, a ‘primary’ neoplasm is to be distinguished from a secondary neoplasm which occurs on another sight of the body, as a sequela of the primary neoplasm”.
9. The Tribunal has considered the meaning of the word “primary” in a technical medical sense. In Dorland’s Illustrated Medical Dictionary, 30th edition 2003, “primary” is defined as “first in order or in time of development; principal”. In considering the significance of that definition, the word “principal” has been defined as “first or highest in rank, importance, value etc; chief; foremost” (Concise Macquarie Dictionary). It might therefore be said to be the cause which is directly responsible for the original condition or which is not auxilliary to the original cause or condition. It must have a direct relationship to the origins, in this case, of the tumour in question. That would not preclude the original tumour from arising and subsiding periodically. That of course, must be differentiated from a “secondary” tumour which would by definition, be a consequential effect of, but not the same as, the primary tumour, in that it would not be the same type or in the same location of the body. Therefore, it would be different in origin and intensity and occurring in a different locus of the body.
10. It seems to me therefore, that there can be a recurrence of a primary tumour. These may not be “cured” but may be treated and recede. However, they may re-occur, even in the same part of the body. My reasoning in this respect seems to be consistent with Senior Member J Handley’s decision in Farley-Smith and Repatriation Commission [2005] AATA 968 at paragraph 63. A primary tumour may be successfully treated, but that is not to be understood as being “cured”, as would be for example, a laceration to the epithelial or subordinate layers of the skin which could be cured or healed. The evidence of Dr Solomon does not reveal any known scientific cause of tumours of the brain.
11. On that basis, I find that the SoP must apply in this case. However, in arriving at that conclusion, I have also considered s 196B of the Act which prescribes the functions of the Repatriation Medical Authority (RMA). Section 196D provides that the Statements of Principles determined under s 196B may be disallowed for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). While that section has since been repealed it is clear that when it was enacted that instruments caught by s 46A of the Acts Interpretation Act 1901 (Cth) were instruments of subordinate legislation. Section 6 of the Legislative Instruments Act 2003 together with the notes to the Acts Interpretation Act 1901 (Cth) reveal that s 46A remains in force for the purposes of instruments which were previously subject to s 46A.
12. The SoPs are therefore subordinate legislation. They are not merely regarded as “procedural” (see Keeley v Repatriation Commission (1999) 56 ALD 455 at [22]). There have been three SoPs issued in relation to Malignant Neoplasm of the Brain as follows:
(a)SoP No 204 of 1995 – Primary Malignant Neoplasm of the Brain
(b)SoP No 41 of 1999 – Malignant Neoplasm of the Brain
(c)SoP No 18 of 2003 – Malignant Neoplasm of the Brain
13. It is apparent that the SoP has changed in title but so has the definition. The definition has now become more specific (see paragraph 2(b) of SoP No 18 of 2003). The factors which must exist have changed with each iteration of the SoP, indicating more up-to-date “sound medical-scientific evidence” on which the RMA could rely in undertaking their functions in the issue of SoPs (see s 196B and 196W).
14. I note that if a previous decision had been decided under a former SoP which had been revoked but which was more beneficial than the current SoP, then the applicant would have been entitled to have the decision reviewed as if the former SoP had not been revoked (Repatriation Commission v Keeley [2000] FCA 532). That is not the case here. However, as a consequence of the interpretation in paragraph 11 above, and the matters mentioned in paragraph 13, there is an apparent intention to change the application of the SoP to a later one, on each occasion of the re-issue of the relevant SoP. That is not to say that the relevant SoP must be current at the date of the development of the applicant’s condition, but the applicable SoP must exist at the date of the claim or application for review made after 1 June 1994 (see Keeley v Repatriation Commission (supra)). Therefore I determine that SoP No 18 of 2003 must apply to assessing a causal connection in this case.
15. The applicant’s Malignant Neoplasm of the Brain was first diagnosed in 1994. A medical certificate was issued on 12 September 1994 and the applicant’s claim for pension was initiated on 18 February 2005. There is therefore a strong presumption that the SoP is to apply in this case. But I must make a determination de novo and therefore, I must make a determination which is the correct or preferable one based on the material before this Tribunal (see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J while sitting as a Full Bench of the Federal Court).
Issue 2- Is there a causal connection?
16. In determining whether there is a causal connection between the condition and Mr Turner’s eligible defence service, the respondent concedes that the applicant has been exposed to the solvent Turcosolv for at least one hour per day on average, for five days a week for at least three years. There is ample evidence that the applicant was so exposed and the Tribunal makes a finding of fact accordingly.
17. To establish a causal connection, the applicant must satisfy either Factor 5(a), 5(b) or 5(c) of paragraph 5 of SoP No 18 of 2003. As stated earlier, the applicant had conceded that there was no evidence to show that the applicant had ever had any radiation treatment as required. The Tribunal finds that neither Factor 5(a) or 5(b) is therefore satisfied. In respect of Factor 5(c), the applicant is required to show a connection with his service in the RAN and this must demonstrate an inability to obtain appropriate clinical management for Malignant Neoplasm of the Brain. This is further amplified in paragraph 6 of the SoP which provides that paragraph 5(c) only applies if there is a material contribution to, or aggravation of, such a condition where it was suffered or contracted before or during (but not arising out of), the person’s relevant service. The respondent submitted also that in the absence of a diagnosis of this condition during service, there cannot be an inability to obtain appropriate clinical management. The respondent also submits that there is no material to show that the condition would have developed and manifested itself any earlier (see Brew v Repatriation Commission (1999) 56 ALD 403; Re O’Brien and Repatriation Commission [2003] AATA 525 at [7]).
18. I am of the view that it may not be beyond the realm of possibility for an applicant to demonstrate, or at least convince a Tribunal, that a condition may have existed during service, even though it may not have been diagnosed. But there must be something more than an applicant contending that that is the case. There must be some credible independent evidence for the Tribunal to accept that proposition. Indeed, there is no onus of proof on any party to first establish their case (see s 120(6) of the Act). However, s 120(4) provides that I must be satisfied to the standard of “reasonable satisfaction”. This means that there must be some evidence to satisfy the Tribunal on the balance of probabilities.
19. There is no expert opinion which links the applicant’s tumour to Turcosolv as the applicant’s advocate maintains. If there is, it was not provided to the Tribunal. Even at the early stage of directions hearings of suggesting that, as there are complex medical issues involved in this case, it would be useful to have a medical expert present evidence. No such expert was presented by either the applicant or the respondent. There is a volume of documentary material, but the only one which is of particular credibility (in a medical or scientific sense) is Exhibit 9 by Dr Gina Solomon. However, even that evidence suggests that there may be links to brain tumours from many agents, including solvents, pesticides, and mobile phones as well as other possible contributors. The respondent referred the Tribunal to Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, where Dixon J said that “[b]ut reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
20. Applying the sentiment of the High Court in that case, implies that reasonable satisfaction in cases such as this cannot be inferred without a substantive basis upon which to make such a conclusion. In the final analysis, I find that the evidence provided is not sufficient to prove a causal connection between the brain tumour to the applicant’s eligible defence service, on the balance of probabilities.
21. In the circumstances, the decision under review is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD Senior Member.
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 23 January and 4 April 2007
Date of Decision 20 June 2007
For the Applicant Mr B Richards and Mr P Jones
For the Respondent Mr J Stoner, departmental advocate
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