Bourke and Repatriation Commission [2000] AATA 44 (28 January 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1998/36

VETERANS' APPEALS DIVISION )

Re SIMON FRANCIS BOURKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 28 January 2000

Place Hobart

Decision The Tribunal affirms the decision of the delegate of the Repatriation Commission dated 6 October 1997.

[Sgd C P Webster]

Senior Member

CATCHWORDS

Veterans' Entitlements - Meniere's disease - Statement of Principle No. 28 of 1997 - "inability to obtain appropriate clinical management...".

Veterans' Entitlements Act 1986 - s.120(4)

REASONS FOR DECISION

28 January 2000 Mr C P Webster (Senior Member)

Issues

1. Simon Francis Bourke ("the applicant") seeks a review of a decision of the delegate of the Repatriation Commission("the respondent") of 6 October 1997 which rejected the applicant's claim that Meniere's disease was defence-caused.

2. The standard of proof to be applied is that in s.120(4) of the Veterans' Entitlements Act 1986 ("the Act").

3. The Administrative Appeals Tribunal ("the Tribunal") is bound to apply the relevant Statement of Principle No. 28 of 1997 as to the cause of Meniere's disease.

4. The factor contained in the relevant Statement of Principle which the applicant claims is relevant to this review is that in clause 5 which states:-

"5. The factor that must exist before it can be said that, on the balance of probabilities, Meniere's disease ... is connected with the circumstances of a person's relevant service is:

(a) inability to obtain appropriate clinical management for Meniere's disease."

That clause must be read in conjunction with clause 4 which states:

"4. Subject to clause 6, the factor set out in the paragraph in clause 5 must be related to any relevant service rendered by the person."

5. The only issue in dispute in this review and the issue to be determined by the Tribunal is whether during the applicant's relevant service he was unable to obtain appropriate clinical management for Meniere's disease.

Evidence

6. The "T" documents were tendered into evidence.

7. The applicant tendered medical reports and articles relating to Meniere's disease including reports of Dr. Michael Paparella.

8. The applicant gave oral evidence. His evidence was as follows:-

(a) that he was born on 15 November 1949;

(b) that he served in the Royal Australia Air Force from 21 June 1973 to 30 November 1973;

(c) that during his service he experienced giddiness, vertigo; nausea and trauma and was referred to a medical officer in September 1973;

(d) he again experienced problems with his ears and giddiness and on 11 October 1973 he presented again for treatment and was referred to Dr. J Stubbings, an ear, nose and throat specialist, located in Melbourne;

(e) he saw Dr. Stubbings on 4 occasions;

(f) he was discharged from the RAAF. At that time he was still consulting Dr. Stubbings. He did not see Dr. Stubbings after his discharge as the applicant returned to Tasmania;

(g) at no time did Dr. Stubbings diagnose Meniere's disease;

(h) the applicant did not consult a medical practitioner for any problems until 1993;

(i) he was subsequently diagnosed as suffering Meniere's disease.

Findings of Fact

9. The Tribunal finds that the applicant is a credible and truthful witness.

10. The Tribunal therefore finds as fact the statement of facts contained in the applicant's evidence (a) to (i) inclusive above.

11. The Tribunal accepts the evidence of Dr. Paparella, even though he was not available for cross-examination in that he states:

(a) Meniere's disease may or may not have been present in 1973 (report 9 July 1999);

(b) that the state of medical knowledge in 1973 was such that if Meniere's disease had been present it could have been diagnosed (report of 26 October 1999);

(c) the diagnosis of Meniere's disease may have been present and could have been missed but the association of the applicant with flying and flying training would not have been a factor in any failure to diagnose the existence of Meniere's disease (report of 12 June 1999).

12. The Tribunal also accepts the evidence of Mr. Gavin Earles, an ear, nose and throat specialist who was of the opinion that the applicant now suffers Meniere's disease (see report of 13 June 1996).

13. The Tribunal notes that Mr Earles is not able to state that the applicant was suffering Meniere's disease in 1973

Application of the Law

14. The applicant must satisfy the requirement of the relevant Statement of Principle.

15. The Tribunal must be satisfied to its reasonable satisfaction that during the period of service the applicant had an inability to obtain appropriate clinical management for Meniere's disease.

16. Counsel for the respondent, appropriately, concedes that if the applicant was not given appropriate treatment in management for Meniere's disease the applicant would succeed.

17. The applicant argues that the failure of Dr. Stubbings to diagnose the existence of Meniere's disease in 1973 was inappropriate.

18. He relies on the reports of Dr. Paparella and Mr. Earles and argues that Meniere's disease was present in 1973 and Dr. Stubbings failed to diagnose it in his treatment of the applicant was not appropriate.

19. There is no evidence that the applicant was suffering Meniere's disease in 1973. The evidence points to the cause of the applicant's Meniere's disease commencing as a result of the incidents of 1973, but there is no evidence that Meniere's disease actually existed or could be diagnosed in 1973.

20. There is no evidence adduced by either doctor as to how quickly or easily Meniere's disease could have been diagnosed if it had existed in 1973, particularly in the case of an airman, such as the applicant, where problems, other than Meniere's disease, may have been thought by the treating specialist to have been the cause of the applicant's complaints at the time of the examination.

21. The applicant was referred speedily by the medical officer to an ear, nose and throat specialist, Dr. Stubbings, who had not completed his examination and diagnosis of the applicant when he returned to Tasmania.

22. There is nothing to suggest that what Dr. Stubbings had done by the time the applicant had left Victoria was inappropriate or that if Dr. Stubbings had continued with his treatment and examination he would not have reached a correct diagnosis of the applicant's condition.

23. There is no evidence to suggest that Dr. Stubbings should have reached a diagnosis of Meniere's disease on the basis of four examinations, assuming that the applicant was indeed suffering from Meniere's disease in 1973.

24. The Tribunal is not reasonably satisfied that the applicant satisfies the relevant Statement of Principle.

25. The Tribunal is not reasonably satisfied either that the applicant suffered Meniere's disease in 1973 or that he did not obtain appropriate clinical management for Meniere's disease, if that was the condition from which he was suffering during his relevant service. Even if the applicant had suffered Meniere's disease in 1973, there is no evidence to suggest that the treatment he received from Dr. Stubbings was inappropriate.

Decision

26. The decision of the delegate of the Repatriation Commission of 6 October 1997 is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 3 December 1999

Date of Decision 28 January 2000

Solicitor for the Applicant Mr R Hart (Rae and Partners)

Solicitor for the Respondent Mr M Castle (Department of Veterans' Affairs)