Woodford and Repatriation Commission
[2000] AATA 797
•8 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 797
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1997/575
VETERANS' APPEALS DIVISION )
Re JOHN FRANCIS WOODFORD
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date8 September 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether Applicant's narcolepsy caused or contributed to by head injury on service or whether condition existed prior to service. Whether failure to diagnose on service aggravated the Applicant's narcolepsy.
Veterans' Entitlements Act 1986 - s70, s120
Repatriation Commission v Moss 59 FLR 226
Repatriation Commission v Smith (M J) 15 FCR 327
Brigenshaw and Briginshaw 60 CLR 336
G v H 181 CLR 387
REASONS FOR DECISION
8 September 2000 Senior Member M D Allen
By application made 29 April 1997 the Applicant sought review of a decision by the Respondent, as affirmed by a Veterans' Review Board, that his narcolepsy was not a defence-caused disease.
Section 70 of the Veterans' Entitlements Act 1986 provides that the Commonwealth is liable to pay pension to a member of the Forces, or former member of the Forces who has become incapacitated from a defence-caused disease. A disease shall be taken to be defence-caused if the said disease arose out of or was attributable to the member's defence service. Paragraph 70(5)(d) also provides that pension is payable if the disease was either contracted during defence service but did not arise out of service or was suffered or contracted before the commencement of defence service and the said disease was aggravated by defence service.
Subsection 120(4) of the Veterans' Entitlements Act 1986 states:
"Except in making a determination to which subsection (1) or (2) 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 pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction
Note: This subsection is affected by section 120B."
So far as s120B is concerned there is currently no Statement of Principles relating to narcolepsy, consequently the decision of this Tribunal will be based simply upon whether or not it is reasonably satisfied that the Applicant's narcolepsy arose out of or was attributable to the Applicant's defence service or whether it was aggravated by that service. Subs120(6) of the Veterans Entitlements Act 1986 provides that no party to this review bears any onus of proof.
As to the term "reasonable satisfaction", in Repatriation Commission v Smith (M J) 15 FCR 327 the Full Court of the Federal Court pointed out that the term "reasonable satisfaction" equated to the civil standard of proof, that is to say proof on the balance of probabilities.
In Brigenshaw and Briginshaw 60 CLR 336 Dixon J (as he then was) stated at pp361-363:
"… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. …"
See also the remarks of Deane, Dawson and Gaudron JJ in G v H 181 CLR 387 at 399:
"It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that '[t]he 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'. Thus, if there is an issue of 'importance and gravity', to use the words of the trial judge, due regard must be had to its important and grave nature."
The Applicant's narcolepsy was diagnosed by Dr Ambrogetti, Consultant Physician, in July 1994. Document T9 in the documents prepared for the Tribunal, pursuant to s37 of the Administrative Appeals Tribunal Act 1975, is a report by Dr Ambrogetti dated 26 July 1994 to the Applicant's general practitioner. In that report Dr Ambrogetti states inter alia:
"Thank you for asking me to review this gentleman who almost certainly suffers from narcolepsy. …"
In a later report dated 24 August 1994 to the Applicant's general practitioner, Dr Ambrogetti stated (T9, p32):
"I reviewed Mr Woodford on the 19.8.94 following sleep study and multiple sleep latency test. The findings are in keeping with the diagnosis of narcolepsy. …"
Two issues were raised in this application for review, the first whether the Applicant should have been diagnosed with narcolepsy either upon enlistment or during his service and whether this failure to diagnose has aggravated his disease, or, alternatively, whether a head injury sustained whilst on service caused or contributed to his narcolepsy.
Unfortunately the history in this matter is confusing. In evidence the Applicant denied that there was any genetic predisposition stating that no member of his family suffered from the condition or any condition like it. He also denied some of the earlier history.
In the Applicant's service documents there are notes of attendances by him at service medical facilities. For example, on 11 March 1980 the notes read (T3, p12):
"1) Sneezing, …
2) told he looks half asleep & has great trouble staying awake in lecture."
Then at 13 March 1980 it is noted:
"Still suffering from URTI – headache, productive cough. …
Re Tiredness – tended to fall asleep a lot in previous job in bank, & inordinately sleepy when hospitalized with broken nose – apparently investigated – normal.
May need physician assessment about this when over URTI – I do not feel it was adequately assessed at enlistment medical."
On 28 February 1983 Dr I Wilkinson, Neurologist, saw the Applicant and made a report to the Senior Medical Officer at RAAF Base Williamtown. That report occurs at page 15 of the s37 documents and at page 16 the report reads inter alia:
"The remainder of the neurological examination appears normal. I note that he also complains of extreme tiredness, and this has caused a number of his visits too. No explanation ? found for this, but he says that his family also do suffer from this problem."
Exhibit A2 in this matter is a report by Dr Ron Grunstein, Clinical Associate Professor at the Centre for Respiratory Failure and Sleep Disorders at the Royal Prince Alfred Hospital, Sydney. In that report Associate Professor Grunstein states inter alia:
"He was diagnosed as having narcolepsy by Dr Antonio Ambrogetti in 1994 based on clinical history, sleep study and multiple sleep latency test. His symptoms date back to his teens.
Relevant features of narcolepsy include a probable history of cataplexy and hypnogogic hallucinations.
He had a history of head injury caused by a motor vehicle accident immediately prior to military service.
He has clearly had impaired educational and social development related to daytime sleepiness and consequent reduction in vigilance. …"
In a later report dated 19 January 1998 to the Applicant's solicitors (Exhibit A3, Associate Professor Grunstein states inter alia:
"… As I stated in my previous report, Mr Woodford has narcolepsy. This disorder was present during his war service (sic) but was not diagnosed by his medical practitioners. I believe that the failure to diagnose and therefore inability to obtain appropriate clinical management has led to major psychosocial disability in the case of Mr Woodford. Therefore I would strongly support the contention that the delay in diagnosis has aggravated the psychological and social consequences of the disorder…"
As a result of proceedings before a Veterans' Review Board the Applicant's case was referred to Dr Ambrogetti for a further report. Dr Ambrogetti's report to the Deputy Commissioner for Veterans' Affairs at Sydney dated 4 October 1996 is Document T22. That report reads:
"As you know from previous records in your possession I have seen Mr Woodford for Dr Marley since July 1994.
In regards to the specific question from attachment 1 I would make the following comments;1. Narcolepsy was present before Mr Woodford enlisted in the RAAF. Specifically symptoms were present back to his school age and during his service as a bank officer.
2. Failure to diagnose and treat narcolepsy during his service would not have aggravated narcolepsy as such. However, failure to diagnose and treat the symptoms related to narcolepsy would cause disruption to his personal life and his service achievements and career. Specifically it is highly likely that his poor performance during his training and his service was strictly related to narcolepsy.
From the file that you have provided it is documented that the patient had complained and reported the feeling of sleepiness and tiredness.
There has been failure to diagnose the condition during the first medical examination and subsequent examinations during his service."
In evidence to the Tribunal, the Applicant stated that he had never had narcolepsy prior to joining the Air Force. He did have the occasional nap when he worked in a bank prior to enlistment but that was due more to the boring nature of bank work. He worked in a small branch with only four people including the Manager, consequently he feels that if had any tendency to drop off to sleep at inappropriate times it would have been noticed. As to being tired whilst at recruit training, that was because he was doing a large amount of unaccustomed exercise. It was because of the arduous nature of recruit training that he tended to fall asleep but it was significant that he achieved very good results in his recruit course. So far as his family is concerned, nobody had a history of sleep problems.
The Applicant's pre-enlistment medical is at page 20 of the s37 documents. In that pre-enlistment medical a note is made of the Applicant's broken nose following a motor vehicle accident in March 1979 and then, two weeks later, his involvement in a bus crash. It is noted that he was hospitalised for one week following the motor vehicle accident but there is nothing in those details which to my mind should have alerted service medical authorities to any incipient problems with narcolepsy.
Exhibit A4 is a report by Associate Professor Grunstein dated 26 February 1998 to the Applicant's former solicitors. That report reads:
"In your letter dated the 2nd February 1998, you asked me to provide an opinion why Mr Woodford's narcolepsy would not have been diagnosed during service, yet was able to be diagnosed some 6 years after the service in 1994.
Diagnostic techniques for the diagnosis of narcolepsy were present in Australia in the mid 1980's but were not widespread. It would be reasonable to say that knowledge of sleep medicine was rather rudimentary within the medical profession at that time. One could argue that within the military forces, it would have been important for medical practitioners to have an adequate concept of the differential diagnosis of sleepiness, given the importance of daytime performance. However it is clear that over the years between the mid 1980's and 1994 there was marked increase in the education of doctors in training as well as doctors in practice regarding sleep disorders.
Thus there is no easy answer to your question. I trust my attempt has been satisfactory."
As a result of the first day's hearing in this matter, I requested a further report be obtained from Dr Ambrogetti. At the resumed hearing at Newcastle on 31 August 2000 the additional report by Dr Ambrogetti dated 8 May 2000 was taken as Exhibit R2. In addition Dr Ambrogetti gave oral evidence.
The report of Dr Ambrogetti reads:
"background
Mr Woodford is known to have narcolepsy of moderate to severe degree which has been interfering with his daily activities for many years. His condition went undiagnosed during his service with considerable emotional and personal implication to the patient. He eventually was treated and has regained self employment and still continues in the refrigeration industry.
Narcolepsy is a condition with a strong genetic association even though genetic markers are not present in all patients. More importantly the same genetic markers which are present in narcolepsy patients are also present in 20% of the general population without symptoms. In the past when narcolepsy syndromes have been triggered by head trauma the words symptomatic narcolepsy and post-traumatic narcolepsy have been used. However, the more recent classification of sleep disorders, the last edition of which is 1997, classified hypersomnolence syndrome following head trauma under a separate heading of 'post-traumatic hypersomnolence' (Ref. 1). Although it is recognised that the trauma associated with symptoms of hypersomnolence is usually severe, often associated with loss of consciousness for a variable period of time, a genetic background has also been suspected. This is to say that the hypersomnolence (narcoleptic syndrome) is triggered by the trauma on a background of genetic predisposition.
More recently, however, it has been reported that post traumatic narcolepsy can occur following mild to moderate close severe head trauma (Ref. 2).
It should be noted that the literature available on this condition is very limited.
Mr Woodford described an incident during his service whereby he had a head injury following a diving exercise whereby he hit his head on the diving board. Although he did not lose consciousness he was somewhat disoriented for the first few hours and he was observed in the local hospital at the time. A diving accident of this nature almost certainly was associated with concussion which would meet the criteria of at least mild to moderate close head injury. In fact diving injuries of this nature are often associated with much more severe damage such as tetraplegia or even death.
In regards to your specific question as if an injury of this nature may have aggravated his narcolepsy syndrome it is not possible to give an answer except on probabilistic terms. It can be said that an injury of that nature, according to what has been reported in the literature, may have aggravated his symptoms.
Putting a probability of this occurrence is essentially guess work given the little information available. If I am pressed to give a probability I would have a neutral stance quoting a 50% probability;
As far as the question in regards to exposure to chlorine gas I am aware of only one report from Bedrich Roth (Ref. 3) in his book 'Narcolepsy and hypersomnia', published in 1980 in which it is mentioned that symptomatic hypersomnia (secondary narcolepsy) can be associated with 'intoxication by various industrial poisons (Methychloride, Trichloroethylene, organic solvents etc).'
Given the fact that this quotation was not referenced I assume that his statement came out of his extensive personal experience from which his book is based.
In the specific case of Mr Woodford it is virtually impossible to give a meaningful probability as if his exposure to chlorine may have aggravated his narcoleptic syndrome.
…Ref. 1The International Classification of Sleep Disorders revised 1997, pg. 49, post-traumatic hypersomnia.
Ref. 2Lankford AD et al. 'Post traumatic narcolepsy in mild to moderate closed head injury', Sleep, 17:S25-S28.
Ref. 3Narcolepsy and hypersomnia by Bedrick Roth 1980. Published S. Karger basal, pg 193."
In addition Dr Ambrogetti gave oral evidence. He specifically stated that failure to diagnose would not have resulted in the disease process itself becoming worse.
He also stated that possibly trauma can unmask an asymptomatic narcolepsy but added he could not give any degree of probability but it was a possibility.
Given the reports of Dr Ambrogetti referred to above together with the reports of Associate Professor Grunstein, I am not reasonably satisfied that any failure to treat the Applicant's narcolepsy whilst in service in any way made the condition worse than it otherwise would have been.
I have had regard to the Applicant's sworn evidence in this matter and I consider that possibly treating medical practitioners may have misunderstood what he said on occasions, thus I cannot be satisfied that he had a pre-existing condition prior to joining the RAAF. Taking the Applicant's case at its highest and best, however, it would seem that the only way the condition could have manifested itself during service was if an asymptomatic condition was made symptomatic by his closed head injury when he injured his head on a diving board whilst at RAAF Base Williamtown.
The Applicant himself dates the onset of his symptoms from that time, however, I note in evidence Dr Ambrogetti referred to it as a possibility and not a probability and in his report he gave it a 50% probability. Dr Ambrogetti, I might state, dismissed the probability of exposure to chlorine leading to the condition.
Having regard to the evidence of Dr Ambrogetti I find that I cannot be reasonably satisfied, on a preponderance of probability (see Brigenshaw and Briginshaw supra), that the Applicant's head injury did cause or contribute to his narcolepsy.
So far as the failure to diagnose is concerned, I am satisfied that it did not make the disease process itself worse and any results that had upon the Applicant's psychological state and his failure to progress in either the RAAF or employment outside the RAAF is not capable of being recompensed under the Veterans' Entitlements Act 1986. This matter was dealt with by the Full Court of the Federal Court in Repatriation Commission v Moss 59 FLR 226 – see for example Deane and Fitzgerald JJ (as they then were) at p243, namely:
"The conclusion which we have reached, on the facts as found by the Tribunal, is that the disadvantages and lack of skills and abilities to which Mr. Moss is presently subject cannot properly be seen as an incapacity for the purposes of the Act. They represent the consequences of a past incapacity which no longer exists. They do not constitute a present incapacity in the relevant sense. …"
The matter was further explained by Fox J at p231 where, after referring to Table C of Schedule 3 of the then Repatriation Act 1920 stated:
"No reference is made to economic loss, and no provision is made there, or elsewhere, for machinery to determine economic loss, either initially or from time to time. The fact is that the Acts in question provide for pensions. They are not analogous to workers' compensation, or employees' compensation legislation, where the central emphasis is on employment-related loss of earnings, temporary or permanent. The fact that provision is made for lump-sum payments and limits are placed on amounts of compensation does not affect the general nature of that type of legislation. The central question there is the effect of injuries or diseases on economic capacity. In the Repatriation Acts, pension payments are, so far as relevant, related to war-caused incapacities or disabilities. The latter lead directly to prescribed entitlements. The fact that 'incapacity' relates primarily and principally to physical or mental incapacity is apparent from a number of provisions of the 1920 Act. …"
Similar comments apply to the Veterans' Entitlements Act1986 as amended.
For the reasons outlined above therefore the decision under review will be affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDates of Hearing 2 December 1999 – Newcastle
31 August 2000 - Newcastle
Date of Decision 8 September 2000
Representative for the Applicant Applicant self-represented
Advocate for the Respondent Mr R Wallis, Department of Veterans' Affairs
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