Graham and Repatriation Commission [2002] AATA 112 (23 January 2002)

Last Updated: 27 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 112

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/118

VETERANS' APPEALS DIVISION )

Re JOHN GRAHAM (deceased)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G A Mowbray

Date 23 January 2002

Place Canberra

Decision The Tribunal affirms the decision under review, being the Repatriation Commission's decision dated 13 July 1998.

................(sgd)..........................

Member

CATCHWORDS

VETERANS' AFFAIRS - Disability Pension - motor neurone disease - date of clinical onset - inability to obtain appropriate clinical management

Repatriation Commission v Cooke (1998) 90 FCR 307; 28 AAR 400

Repatriation Commission v Budworth (2001) 33 AAR 476

Re Robertson and Repatriation Commission [1998] AATA 127

REASONS FOR DECISION

22 February 2002 G A Mowbray

The Application

1. On 3 June 1998 John Neil Graham (the Applicant) completed a claim to have his diagnosed motor neurone disease accepted as being related to service. It is accepted by all concerned that Mr Graham suffered from motor neurone disease. On 13 July 1998 the Repatriation Commission (the Respondent) refused the claim for motor neurone disease, finding that the relevant Statements of Principles were not satisfied.

2. On 11 May 2000 the Veterans' Review Board decided to adjourn the hearing of the matter under section 152 of the Veterans' Entitlements Act 1986 (the Act). On 1 February 2001 a differently constituted Board decided to affirm the decision under review.

3. An application for review was then made to the Tribunal. At the end of the hearing on 23 January 2002 oral reasons for decision were given and the decision under review was affirmed. On 25 January 2002 the Tribunal received a request for written reasons from the Applicant's representative, Mr Paul Crabb, pursuant to s43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared, which reflect the reasons given at the hearing with appropriate minor editing.

Background

4. Mr Graham was born on 30 August 1951. He enlisted in the Royal Australian Air Force on 4 March 1975 and was discharged on 12 May 1991. He initially served as a motor body builder but became a photographic interpreter in 1981. All of this time is eligible defence service under the Act, except for the period from 17 January to 28 February 1991 which was operational service because Mr Graham served in the Persian Gulf during that time.

5. After his discharge Mr Graham undertook similar work as a civilian for the Department of Defence. He ceased work in December 1997 due to the effects of his disease which caused him to be retired from the Public Service on invalidity grounds. He died on 29 December 2001. His wife, Jennifer Therese Graham, continues his claim as his legal personal representative.

Statements of Principles

6. It is accepted by both parties that the relevant Statements of Principles are Instrument No.65 of 2001 and Instrument No.66 of 2001. The relevant factors in Instrument No.65 of 2001, which deals with operational service, are as follows:

Factors

5. The factors that must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting motor neuron disease or death from motor neuron disease with the circumstances of a person's relevant service are:

...

(c) inability to obtain appropriate clinical management for motor neuron disease.

Factors that apply only to material contribution or aggravation

6. Paragraph 5(c) applies only to material contribution to, or aggravation of, motor neuron disease where the person's motor neuron disease was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.

Issues

7. The issues for the Tribunal therefore were:

* the time of clinical onset of Mr Graham's condition, it being accepted that the condition in question is motor neurone disease; and

* if Mr Graham had motor neurone disease during his service, whether he was unable to obtain appropriate clinical management for motor neurone disease.

Evidence

8. The Tribunal had before it the following documents which were taken into evidence

* Exhibit T1-T15 - the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975

* Exhibit A1 - Applicant's Statement of Facts and Contentions dated 30 October 2001

* Exhibit A2 - report of Dr Peter McCullagh dated 10 April 2001

* Exhibit A3 - Dr McCullagh's curriculum vitae

* Exhibit R1 - Respondent's Statement of Facts and Contentions dated 21 January 2002

* Exhibit R2 - death certificate for John Neil Graham

* Exhibit R3 - a Department of Veterans' Affairs form titled Details of Will, Probate and Letters of Administration, completed by Mrs Graham's solicitor on 17 January 2002

* Exhibit R4 - memorandum approving Jennifer Therese Graham to take action to pursue this matter before the Tribunal

* Exhibit R5 - report of Professor J G McLeod dated 16 August 2001

* Exhibit R6 - supplementary report of Professor McLeod dated 5 January 2002

* Exhibit R7 - clinical notes of Dr Gytis Danta

* Exhibit R8 - clinical notes from Belconnen Medical Centre

9. Oral evidence was given by Dr McCullagh and Professor McLeod to supplement their written reports. It is worth noting here that the T-documents contained two earlier reports of Dr McCullagh in addition to the one identified as Exhibit A2.

When was the clinical onset of Mr Graham's motor neurone disease?

10. The standard of proof for this issue is the balance of probabilities, as set out in Repatriation Commission v Cooke ((1998) 90 FCR 307; 28 AAR 400), Repatriation Commission v Budworth ((2001) 33 AAR 476) and related cases.

11. Ms Breuer (appearing for the Respondent) took the Tribunal to the decision of the Tribunal in Re Robertson and Repatriation Commission ([1998] AATA 127) and in particular paragraph 23:

[W]e consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say 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.

Similarly, in Dr McCullagh's first report (T8, pp.37-40) he refers to an address from Professor Donald, Chairman of the Repatriation Medical Authority:

[C]linical onset means what the English language usage of these words means. It means the first time the veteran noticed anything to do with the disease. Clinical onset is not when it's diagnosed, not when the first laboratory or X-ray is done. Clinical onset in its ordinary English usage means the first time the patient notices anything to do with the actual disease.

The evidence that Mr Graham relied on for the clinical onset of his motor neurone disease was principally that of Dr McCullagh. Dr McCullagh pointed to medical evidence in February 1990 that there was a problem in Mr Graham's intercostal muscles, which are in the chest wall. Dr McCullagh's suspicion was that this problem was due to motor neurone disease. He said that this was confirmed by later testing and the later diagnosis of the disease.

Dr McCullagh also referred to, and placed great reliance upon, a passage in the draft of an article to be sent to The Lancet, edited by Drs Horsley, Danta and Siejka (T8, pp.43-6):

The second was a 46 year-old air force veteran, who presented in 1997 with weakness and cramps in the hands and forearms, which had been present for about 18 months, although later he could recall chest wall cramps as far back as 1990.

It is not disputed that this passage refers to Mr Graham, who was a patient of Dr Danta.

12. Dr McCullagh and Mr Graham's counsel, Mr Crabb, also referred to a study by Miller et al that outlined the variation in the period between the first symptoms of motor neurone disease arising and diagnosis. The mean interval was 1.2 ± 1.6 years (that is, the standard deviation was 1.6 years), with a range of 0 to 31.9 years.

The Commission relied principally on Professor McLeod, but also referred to material from Dr Danta and Dr Colin Andrews. Professor McLeod's view was that clinical onset occurred in 1996. He said that in most cases early symptoms of motor neurone disease appeared in the hands, perhaps the lower limbs and the tongue. It was very unusual for early symptoms to occur in the chest wall and he was not aware of any such cases.

Professor McLeod also said that the rate of progress of motor neuorne disease, and the rate of degeneration of muscle because of the disease, was generally constant. If the onset of Mr Graham's disease had been in 1990, Professor McLeod would have expected him to die within three years, given the rapid progress and development of the disease that had in fact occurred from 1996 onwards. Furthermore, Professor McLeod said that in cases where the motor neurone disease had first developed in the chest wall he would expect that the patient would have rapidly developed respiratory problems. There was no evidence of this in this case.

Ms Breuer referred to the report of Dr Danta for an insurance matter (R7, p.21) where he said that the first symptoms appeared in April 1996. Reference was also made to 'EMG' (electromyography) conducted by Dr Andrews in 1997 (R7, p.42) which found no evidence of symptoms of motor neurone disease.

13. The Tribunal is therefore faced with a choice between on the one hand the evidence of Dr McCullagh, and on the other the evidence of Professor McLeod supported to some extent by Dr Andrews and Dr Danta. The Tribunal accepts that each of these persons is an appropriate expert to provide evidence in this matter. Clearly Dr McCullagh has wide expertise, although he is not a practising neurologist. Professor McLeod is an eminent neurologist and Drs Danta and Andrews are well-experienced neurologists practising in Canberra.

14. In the Tribunal's view, the weight of evidence is against the Applicant, Mr Graham. Particular weight must be given to the evidence of Professor McLeod that if in 1990 Mr Graham was suffering from motor neurone disease evidenced by problems in intercostal muscles he would have rapidly developed respiratory problems and most likely would have died within two or three years. This would have occurred well before he saw any doctors or neurologists for the condition in 1996-7.

15. Taking the evidence as a whole - including the reports of the experts called for both sides and the neurological evidence - the Tribunal cannot be satisfied on the balance of probabilities that clinical onset occurred during any period of service undertaken by Mr Graham.

16. Consequently, there is no need for the Tribunal to consider the second issue which was before it, namely the appropriateness of the clinical management which was undertaken for Mr Graham.

Decision

17. The Tribunal's decision is that the Repatriation Commission decision of 13 July 1998 be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of G A Mowbray

Signed: ..............(sgd)...............................................................

Associate

Date of Hearing 23 January 2002

Date of Decision 23 January 2002

Date of Written Reasons 22 February 2002

Counsel for the Applicant Mr Paul Crabb

Solicitor for the Applicant Snedden Hall & Gallop

Counsel for the Respondent Ms Susie Breuer

Solicitor for the Respondent Departmental advocate