Hale and Repatriation Commission [2002] AATA 18 (16 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1652

VETERANS' APPEALS DIVISON )

Re BRIAN HALE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Member

Date 16 January 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

[SGD] Ms N Bell

Member

CATCHWORDS

VETERANS' APPEALS - disability pension - osteoarthrosis of the ankles and right shoulder - whether condition is war-caused - whether material before the Tribunal points to a hypothesis connecting the veteran's osteoarthrosis with the circumstances of the his eligible war service - Statement of Principles relevant to the hypothesis - consistency between the hypothesis and the Statement of Principles - whether inflammatory joint disease was suffered prior to the clinical onset of osteoarthrosis - standard of proof in determining whether an inflammatiory joint disease was suffered - whether veteran received appropriate clinical management for inflammatory joint disease

Veteran's Entitlements Act 1986 - sections 9(1), 120, 120A

Statement of Principles Instrument No 41 of 1998, as amended by Statement of Principles Instrument No19 of 1999, concerning osteoarthrosis

Statement of Principles Instrument No 126 of 1996 concerning rheumatoid arthritis

Repatriation Commission v Yates (1995) 57 FCR 241

Repatriation Commission v Deledio (1998) 83 FCR 82

Harris v Repatriation Commission (2000) 62 ALD 174

Repatriation Commission v Cooke (1998) 90 FCR 307

McKenna v Repatriation Commission (1999) 86 FCR 144

Re Crowe and Repatriation Commission (1999) 28 AAR 548

REASONS FOR DECISION

Ms N Bell, Member

1. This is an application by Mr Brian Hale ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 19 November 1999 which refused the Applicant's claim in relation to hypertension, malignant neoplasm of the prostate, fracture of the jaw, rheumatism of the ankles and right shoulder and rhinitis. On 3 August 2000 the Veteran's Review Board ("VRB") affirmed the Respondent's decision in all respects except that in relation to that part of the decision concerning rheumatism of the ankles and right shoulder, the VRB changed the diagnosis of those conditions to osteoarthrosis of the ankles and right shoulder.

2. At the hearing before the Tribunal the Applicant was represented by Mr Paul Jones. The Respondent was represented by Ms Trina McConnell. Dr Sachdev gave evidence to the Tribunal by telephone.

3. The following written material was placed in evidence before the Tribunal:

Exhibit No Description Date

TD1 T-Documents

A1 Applicant's Statement of Facts and Contentions 19 September 2001

A2 Medical report from Dr M Benanzio 20 April 2001

A3 Medical report from Dr G Richards 15 August 2001

R1 Respondent's Statement of Facts and Contentions 26 September 2001

R2 Medical report from Dr A Sachdev 01 February 2001

R3 Supplementary report from Dr A Sachdev 22 February 2001

R4 Clinical notes from Dr B Perry

R5 Clinical notes from Dr D West

background

4. Mr Jones for the Applicant advised the Tribunal, and had previously put the Tribunal and Respondent on notice, that the Applicant suffers from prostate cancer, the disease has spread and that he is completely deaf and very confused from the effects of the disease. The Applicant was consequently unable to give evidence either in person or by telephone. Mr Jones also indicated that the Applicant does not wish to pursue that part of his application relating to the conditions of hypertension, malignant neoplasm of the prostate, fracture of the of the jaw and rhinitis.

5. It was common ground between the parties that the Applicant served in the Australian Army from 10 February 1947 to 24 February 1949 and that this constitutes eligible war service, which, because he served overseas, in turn constitutes operational service.

6. It is also common ground between the parties that the Applicant currently suffers from osteoarthrosis of the right shoulder and both ankles.

issues

7. The issue to be considered by the Tribunal in this application is whether the Applicant's condition of osteoarthrosis in his right shoulder and in both ankles is a war-caused disease. This in turn requires consideration of whether the Applicant's osteoarthrosis is connected with the circumstances of his operational service, by virtue of him having suffered inflammatory joint disease in a joint before the clinical onset of osteoarthrosis in that joint. The issue of the condition suffered by the Applicant prior to the onset of his osteoarthosis was in dispute. The inflammatory joint disease nominated by the Applicant was rheumatoid arthritis.

legislation

8. The relevant legislation in this application is the Veteran's Entitlements Act 1986 ("the Act") and in particular sections 9,120 and 120A. There are two Statements of Principles ("SoP") relevant to this application. The parties are in agreement that they are SoP No 41 of 1998, as amended by SoP No 19 of 1999, concerning osteoarthrosis, and SoP No 126 of 1996 concerning rheumatoid arthritis.

9. Section 9(1) of the Act provides:

"Subject to this section, for the purposes of this Act, 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:

(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise."

10. Sections 120 and 120A of the Act are set out later in this Statement of Reasons.

evidence

dr benanzio

11. Dr Benanzio in his report of 20 April 2001 (Exhibit A2) reports, following examination of the Applicant, that the Applicant was bedridden in 1946 for five weeks because of ache and swelling of the right shoulder and both feet. The Applicant was told he had rheumatic fever, and he progressively improved with some occasional residual discomfort. In 1947 he joined the Army as a volunteer and was assigned to Infantry in which he was sent to a camp. Within about five weeks he developed ache and cramps in the right shoulder and right foot and was taken to Concord Hospital where he was admitted for one week. His tonsils were removed and he was given medication and was sent home on leave. The Applicant returned to the camp for two or three weeks and his condition again improved, although he experienced a residual degree of discomfort.

12. Dr Benanzio reported that in 1947 the Applicant was sent to Japan as a Medical Orderly in the Regimental Aid Post. Approximately one month after his arrival in Japan he again developed ache in the right shoulder and right foot. He was seen by the Medical Officer but no specific report was entered. He was, however, given medication. The Applicant reported to Dr Benanzio that he continued on normal duties and never took a day off, but continued to see the Medical Officer for medication. No x-rays were taken. In 1949 when he went back to Australia he was still experiencing ache but did not report this and his conditions were not reported on his discharge in February 1949.

13. Dr Benanzio reported that at a certain stage the Applicant was seen by Dr Atkins, General Practitioner and prescribed gold salts medication. No specialist was consulted.

14. Dr Benanzio provided the following opinion:

"In 1946 this patient developed rheumatic pathology in the right shoulder and both feet. He improved, but he continued to experience a residual degree of discomfort.

A flare-up of the condition occurred after joining the Army and being in a camp for about five weeks. He was transferred to Concord Hospital, as reported above.

He continued to experience a degree of discomfort, but nevertheless he was sent to Japan where, after about one month, the condition flared up again. The irritation could have been caused by the cold weather. He was again seen by a Medical Officer, and from that time he continued to take medication prescribe by the Medical Officer.

He managed his duties despite the residual symptoms, until he was sent back to Australia in 1949.

After discharge from the Army he was put on specific treatment with gold salts.

As reported to me, he had further flare-ups of complaints in the right shoulder and both feet until he retired in 1990....

The orthopaedic diagnosis is of osteoarthritis in both shoulders and both ankles.

With reference to your letter of 1^st February 2001, I agree that Mr Hale developed "inflammatory joint disease" in the right shoulder and both ankles, and that such "inflammatory joint disease" contributed to the osteoarthrosis in his right shoulder and both ankles."

dr g richards

15. Dr Richards was not able to examine the Applicant due to the Applicant's illness, however, Dr Richards gave the following opinion after perusing the documentation available to him, in a report dated 15 August 2001 (Exhibit A3):

"There is no doubt that he had an inflammatory type arthritis in 1946 when he was hospitalised for five weeks with generalised joint pain mainly involving the legs, wrists, shoulders and the back and had documented fever. This was at the time that he was working as an apprentice butcher in Queensland.

The differential diagnosis at that time in retrospect may have been post viral polyarthritis such as the Ross River arthritis, Brucellosis particularly as he worked as a butcher, rheumatic fever and an episode of chronic systemic inflammatory arthritis such as rheumatoid disease and sero - negative spondylarthropathy. Unfortunately no investigations at the time were available. This was prior to him joining the Army and in 1947 he volunteered for the Army and it was assumed that at the time of entry he was asymptomatic.

Shortly after being in the Army he developed recurrence of pain in the right shoulder and right foot and in September 1947 underwent a tonsillectomy for infected tonsils which was one of the treatments for rheumatic complaints at the time.

Apparently he had recurrence of pain in the shoulder and foot. I note the statement that he recalls keeping reasonable health whilst in Japan where his duties were as a Medical Orderly.

Following discharge from the Army he complained of variable pains mainly in the right shoulder and right ankle but I also note that subsequent medical history includes more generalised joint involvement involving wrists, small joints of the hands and feet. He was treated with gold salts, which is an intramuscular form of gold rather than gold tablets and had such treatment for a few years. Gold salts at the time was mainly prescribed for inflammatory rheumatic conditions including rheumatoid arthritis...

In summary it would appear that Mr Hale suffered some inflammatory joint condition in the 1940's. It is obviously difficult to give an exact label for this inflammatory arthritis which initially appeared to be episodic but then appeared to be of a persistent chronic nature. He was given gold salts in injectable form and this again would be consistent in a clinical impression of an inflammatory arthritis such as rheumatoid disease or sero-negative type of inflammatory arthritis. It is most unlikely that he had rheumatic fever.

There was no mention that he had psoriasis and as far as I could see there was no family history of an inflammatory arthritis.

It is possible that the gold treatment may have achieved partial remission of his condition but subsequent events did suggest that he had problems with his shoulders and ankle. It would appear that his first episode occurred prior to military service but he did suffer a relapse of symptoms shortly after entry into the Army. The tonsillectomy performed was one of the recognised treatments at the time for patients with inflammatory arthritis.

...

Gold salt treatment was introduced after he came out of military service but such treatment could have been considered during his active military service."

professor f w marsden

16. Professor Marsden's report of 22 May 2000 (T12, pp74-77) gives a similar history in relation to the Applicant, with the exception that the Applicant reported to him that gold tablets were prescribed to him in, or about, the years of 1959 and 1960 by Dr Atkins at Casino. Professor Marsden gave the following opinion (T12, p77):

"Osteoarthrosis. Mr Hale has a history suggestive of an adolescent rheumatic disorder - the first onset of which appears to have been at the age of 19 years. There is documented evidence of a flare of this condition in the early part of his Army service while in training at the Greta camp, but prior to his embarkation to Japan. He then gives a history of intermittent symptoms and it appears that he has had treatment for this over the years by his attending general practitioners.

There is clinical evidence of restriction of the range of joint motion, particularly at the right shoulder. It is likely that he has a degenerative arthritic condition - an osteoarthrosis - which may well have been secondary to those early episodes of rheumatic disorder. The true aetiology and indeed attributability of this is difficult to establish with certainty after all this time."

dr a sachdev

17. Dr Sachdev, in his report of 1 February 2001 (Exhibit R2) gave a similar history to Professor Marsden and Dr Richards, noting that the Applicant had been diagnosed, prior to entry into the Army, as suffering from rheumatic fever which rendered him bedridden for five to six weeks. He also noted that a tonsillectomy had been performed on the Applicant not long after his entry into the Army in February 1947 and that he had following residual joint pain which he would treat by taking aspirin. Dr Sachdev noted that the Applicant had told him that he had mentioned his pain to the Medical Officer but that "no notice was taken and there was no report made". Dr Sachdev gave the following opinion:

"This patient suffers from osteoarthritis of the right shoulder, as well as right ankle.

Symptoms from his right shoulder and right ankle are dating back to rheumatic fever he suffered at the age of 19 for which he was treated by Dr Doyle.

Following this he continues to have ongoing symptoms relating to his right shoulder, as well as right ankle for which he has had conservative treatment intermittently.

At present the diagnosis is degenerative osteoarthritis of his right shoulder, as well as his right ankle."

18. In answer to specific but undisclosed questions put to him by the Respondent in earlier correspondence, Dr Sachdev replied that the Applicant's present condition of osteoarthritis cannot be linked to factors occurring before his Army service and that the Applicant's condition of rheumatic fever had not been aggravated by operational service. He also stated "I have gone through Dr Marsden's conclusions and agree with what he says in his report regarding diagnosis and causation."

19. In his oral evidence to the Tribunal, Dr Sachdev said that rheumatic fever is not the same as rheumatoid arthritis, and that rheumatic pathology is a broad term and not a diagnosis. He said that in his view the Applicant has never had rheumatic arthritis because there is no evidence to establish that he had. He said that rheumatoid arthritis generally occurs in middle aged people, that only three per cent of sufferers are under the age of thirty, that it usually manifests in the smaller joints such as the hands and usually affects women. He said that there was no evidence, on his examination of the Applicant, of "burnt out rheumatoid arthritis" which he said were deformities of the joints. He said that there was also no evidence of this on x-rays.

20. Dr Sachdev confirmed his opinion that the Applicant suffers from osteoarthritis of the joints including his right ankle and his right shoulder.

21. Dr Sachdev told the Tribunal that gold injections were a common treatment for rheumatoid arthritis in the 1940's but that treatment would not have been provided to the Applicant because, in his view, his symptoms were not serious enough. In this regard he observed that the Applicant had no absences from service following his tonsillectomy. He was of the view that the medical treatment given to the Applicant while still in service was appropriate to his condition and did not aggravate it. He noted that in those days tonsillectomies were very common and it was thought that joint pain may be due to infection in the tonsils, especially if there had been some prior rheumatic pathology.

22. In cross examination Dr Sachdev conceded that if he suspected that a person had rheumatoid arthritis he would refer the person to a rheumatologist and would defer to that specialist's opinion. However he stated that if someone came to him at age 19, a diagnosis of rheumatoid arthritis would not even occur to him. He did concede, however, that it is possible that someone of 19 could have rheumatoid arthritis and that rheumatoid arthritis does vary significantly in severity and symptomatology. He also conceded that the pain associated with rheumatoid arthritis may manifest in shoulders or ankles and is not limited to the smaller joints.

23. When asked by Mr Jones, representative for the Applicant, whether it was possible that the Applicant had sero -negative arthritis, Dr Sachdev conceded that it was possible and noted that a diagnosis of that condition is achieved by a process of exclusion of other conditions after investigation. He agreed that sero - negative arthritis is a chronic condition that is not always present but he was of the opinion that the Applicant would have had more symptoms than he is reported to have had. He again noted the diagnosis in the Applicant's service medical records of "sub acute rheumatism".

24. In answer to a question from the Tribunal, Dr Sachdev said that there is no connection between the conditions of rheumatic fever and rheumatoid arthritis. He also stated that the main treatment for the rheumatoid arthritis in the 1940's was aspirin and rest followed, if it had not settled down, by gold injections. He said, however, that because of possible side effects gold injections were not given lightly.

25. Dr Sachdev stated that he considers the clinical notes and other materials available do not support a conclusion that the Applicant had sero - negative arthritis.

26. In answer to a further question from Mr Jones, Dr Sachdev agreed that the Applicant had been diagnosed as having rheumatic fever. He also agreed that a common side effect of rheumatic fever is the development of heart valve disease and conceded that there was no evidence of the Applicant having developed this disease. He agreed that it was possible, given that the Applicant had had gold injections, that he may have been diagnosed with rheumatoid arthritis. He said that the aim of gold injections was to get the patient into remission but that it was not a curative treatment. He said that gold injections would stop erosion but would not make erosion, that had already taken place, disappear. He stated that wherever rheumatoid arthritis occurs, there is always erosion and noted that there was no x-ray evidence of erosion in relation to the Applicant.

other medical evidence

27. The Applicant's service medical records (T5) show at page 1 a record of the Applicant having suffered "rheumatism" in July 1947. Clinical notes on page 5 of T5 show a diagnosis of sub-acute rheumatism on 9 June 1947 and on page 7 of those records it is noted that in June 1946 the Applicant had an attack of "influenza", following which he complained of weakness, pain and being unable to walk. It was noted that both his ankles were swollen. He was diagnosed as having sub-acute rheumatism and chronic tonsillitis.

28. The Tribunal notes that the clinical notes of Dr D West, the Applicant's General Practitioner, do not commence until 1986. The clinical records of Dr B Perry, another of the Applicant's general practitioners, do not commence until 1998.

submissions

29. Mr Jones, for the Applicant, submitted that the hypothesis put forward by the Applicant is essentially as outlined in Dr Richards' report. He noted Dr Sachdev's concession that he would defer to the opinion of a rheumatologist. He also noted the difficulty of attempting in 2001 to diagnose a condition suffered in 1946 when there are few medical records available.

30. Mr Jones drew the Tribunal's attention to Dr Richards' conclusion in his report that the Applicant had suffered an inflammatory arthritis such as rheumatoid disease or sero - negative type of inflammatory arthritis, prior to joining the Army in 1947.

31. Mr Jones also drew attention to the common comments of Dr Richards and Dr Sachdev that gold salts were the recommended medication for rheumatoid arthritis in the 1940's. In particular, the Tribunal was referred to Dr Richards' conclusion that gold salts treatment could have been considered for the Applicant during his active military service. Mr Jones submitted that gold salts treatment was given to the Applicant shortly after leaving the Army and was effective. He submitted that had this treatment been given to the Applicant earlier its effect would have been greater.

32. Finally, Mr Jones submitted that it could not be established beyond reasonable doubt that the Applicant did not suffer rheumatoid arthritis or that the military had treated his condition appropriately.

33. Ms McConnell, for the Respondent, submitted that the available evidence does not support the hypothesis that the Applicant suffered rheumatoid arthritis. In particular, she submitted, there is no evidence of the Applicant having suffered swelling or erosion. She noted that of all of the medical experts whose evidence was before the Tribunal, Dr Richards was the only one who did not actually examine the Applicant. She also noted that Dr Marsden reported that the Applicant was not given gold salts until 1959.

34. Ms McConnell drew the Tribunal's attention to the Applicant's ability to continue to work in Japan and the absence of any evidence of his conditions worsening during his service.

35. In the alternative Ms McConnell submitted that if the Tribunal concludes that the Applicant suffered rheumatoid arthritis, there is no material to establish that he was given inappropriate clinical management. She noted in this respect that he had no absence from duty and that he received surgery, ie, a tonsillectomy, which was considered at that time to be appropriate treatment for the symptoms he suffered.

36. Ms McConnell referred the Tribunal to the decision of the Federal Court in Repatriation Commission v Yates (1995) 57 FCR 241.

37. Finally, Ms McConnell submitted that it was appropriate for the Tribunal to affirm the decision under review in relation to the Applicant's conditions of hypertension, malignant neoplasm, fracture of the jaw and rhinitis. Mr Jones expressed his agreement in relation to this last point.

consideration

38. It is convenient to set out the relevant provisions of sections 120 and 120A of the Act:

"120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, 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 or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

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, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

(4) 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 a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

...

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

...

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

39. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Federal Court summarised the steps that are to be taken by the Tribunal in applying the above provisions, in relation to a condition contended to arise out of operational service, and deciding whether a disease or injury is war-caused. The Tribunal adopted these steps in consideration of this application.

does the material before the tribunal point to a hypothesis connecting the applicant's osteoarthritis with the circumstances of his operational service?

40. Mr Jones, for the Applicant submitted that the Applicant's hypothesis is in accordance with that outlined in the report of Dr Richards (Exhibit A3). In summary, that is: the Applicant was hospitalised for five weeks with an inflammatory type of arthritis in 1946 prior to joining the Army. Shortly after joining the Army he developed recurrence of pain in the right shoulder and right foot and in September 1947 underwent a tonsillectomy - one of the treatments for rheumatic complaints at that time. After leaving the Army he was treated with gold salts which was mainly prescribed for inflammatory rheumatic conditions including rheumatoid arthritis. This treatment indicates an inflammatory arthritis such as rheumatoid disease or sero - negative type of inflammatory arthritis. Had the gold salts treatment been administered earlier, ie, during his military service, his condition would not have progressed to the extent that it has and the osteoarthritis he suffers now would not be so severe.

which statement of principles is relevant to the hypothesis?

41. There are two SoPs relevant to this hypothesis: SoP No. 41 of 1998, as amended by SoP No. 19 of 1999, concerning osteoarthrosis, and SoP No. 126 of 1996 concerning rheumatoid arthritis. The factor in SoP No. 41 of 1998 relied upon by the Applicant is factor 5(b):

"suffering inflammatory joint disease in a joint before the clinical onset of osteoarthritis in that joint."

42. There is only one factor in SoP No. 126 of 1996, factor 5(a):

"inability to obtain appropriate clinical management for rheumatoid arthritis."

is there consistency between the hypothesis and the statement of principles?

43. The third step for the Tribunal, according to Deledio [supra], is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP that the SoP says must exist, and that factor must be related to the Applicant's service. Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 where he said:

"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD 261 at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.

44. However, it is necessary, before turning to the question of the hypothesis' consistency with the relevant SoPs, to consider another important area of dispute between the parties. Whereas the Applicant's current diagnosis of osteoarthritis is not in dispute, the diagnosis of the condition suffered by him during his military service is very much in dispute. The Tribunal notes that on 10 October 2001, after this application was heard but before this determination by the Tribunal was made, the Full Federal Court handed down its decision in Repatriation Commission v Budworth [2001] FCA 1421, on appeal from the decision of a single Judge of the Court in Budworth v Repatriation Commission (2001) 63 ALD 422. The Full Court considered the issue of how the Tribunal should differentiate "between matters as to which the Commission was subject to the 'reverse onus' of proof beyond reasonable doubt erected by s 120(1) and qualified by s 120(3) and the matters as to which the Appellant bore the ordinary civil onus imposed by s 120(4) of the Act". The Full Court concluded that the issue of whether a veteran is injured or is suffering a particular disease must be decided on the basis of the civil standard of proof, that is, to the reasonable satisfaction of the decision-maker.

45. In view of the Full Court's decision in Budworth [supra], the Tribunal sought further submissions from the parties on the question of the appropriate standard of proof to be applied to the issue of the diagnosis of the Applicant's earlier condition in light of the Full Federal Court's decision.

46. Mr Jones submitted for the Applicant that the relevant part of the Full Court's decision in Budworth is in paragraphs 19 and 20 as follows:

"19 The expression "as claimed" in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which it is attached, namely, "that the veteran suffered the injury or contracted the disease." This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).

20 It was also submitted in the alternative by counsel for Mr Budworth, that if Cooke was correctly decided, it is not authority for "the approach of the appellant". We disagree. We regard Cooke as decisive of the critical issue on this appeal, namely what standard of proof is to be applied when determining whether a claimed injury or disease exists. Consequently we consider that the primary Judge erred in concluding that the reverse criminal standard of proof contained in s 120(1) of the Act was relevantly applicable. Although therefore we affirm the order of the primary Judge that the matter be remitted to the AAT to be heard and determined according to law, such determination will require reconsideration of the matters referred to in [9] above, and the appropriate application of the correct standard of proof as to whether the claimed disease exists."

47. Mr Jones submitted that the Court's use of the expression "as claimed" is crucial in this application in that the Applicant's condition "as claimed" is osteoarthritis and the existence of rheumatoid arthritis and whether there was any clinical mismanagement by the military authorities, are matters relevant to determining whether the condition "as claimed" is war caused. He submitted that in determining whether the condition "as claimed" is war caused, the reverse criminal standard should be applied. He also referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307, in which the Court indicated its view that evidence as to whether there is, or was, a disease is far more readily available than evidence of matters of war causation which involve assessment of events as long as half a century ago. Mr Jones submitted that it is unlikely that the Full Court in Cooke [supra] expected that issues such as whether the Applicant in this application suffered rheumatoid arthritis and whether this was clinically mismanaged by the military would need to be addressed under section 120(4) of the Act.

48. Ms McConnell, for the Respondent, submitted that the correct interpretation of the Full Court's decision in Cooke [supra] is that the diagnosis of a condition should be decided to the reasonable satisfaction of the decision maker. She allowed for no distinction to be made between the condition "as claimed" and the condition relevant to the subhypothesis.

49. The Tribunal had regard to the decision of the Full Federal Court in McKenna v Repatriation Commission (1999) 86 FCR 144 in which the Court said:

"A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts."

50. This suggests that the component parts of a hypothesis should be separated out and each dealt with individually. On this approach, it would be necessary for the Tribunal to deal with the question of whether a disease or injury existed in the context of each subhypothesis and not as a part of the overall or head hypothesis. It would follow that, applying the Full Court's decision in Budworth [supra], the question of whether the Applicant suffered from inflammatory joint disease would have to be subject to the civil standard of proof.

51. On the other hand, the use by the Full Court in Budworth [supra] of the words "as claimed" suggests that it is only the existence of the condition "as claimed" that should be subject to the civil standard, and not the condition, or conditions, involved in any subhypothesis of war causation. In addition, in Cooke [supra] there appears not only the passage referred to by Mr Jones but also the reference by the Court to whether a disease "exists", indicating, by use of the present tense, a focus on the current condition. Their Honours said at FCR 311:

"We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease."

52. Given the views expressed and the language used by the Full Court in Budworth [supra] and in Cooke [supra], the Tribunal considers that the preferable view is that, in the circumstances of this application, the question of whether the Applicant suffered inflammatory joint disease is an issue relevant to the question of the war causation of the Applicant's current condition of osteoarthrosis. That being so, the appropriate standard of proof in determining whether the Applicant suffered inflammatory joint disease is the standard of war causation or the reverse criminal standard.

53. Turning then to the question of the consistency of the Applicant's hypothesis with the relevant SoPs, as discussed above, the factor in SoP No. 41 of 1998, concerning osteoarthrosis, relied on by the Applicant, is factor 5(b):

"suffering inflammatory joint disease in a joint before the clinical onset of osteoarthritis in that joint."

54. The material before the Tribunal that supports conformity between this factor and the Applicant's hypothesis is the report of Dr Richards (Ex A3) and the report of Dr Benanzio (Exhibit A2). Dr Richards reported that the Applicant suffered "infammatory type arthritis in 1946 when he was hospitalised for five weeks with generalised joint pain mainly involving the legs, wrists, shoulders and the back and had documented fever." Dr Richards also reported that the Applicant had a recurrence of pain in his right shoulder and right foot shortly after he joined the army and in September 1947 underwent a tonsillectomy which was one of the treatments of rheumatic complaints at the time. Dr Richards reported that it was most unlikely that the Applicant had rheumatic fever and that the condition suffered by the Applicant was inflammatory arthritis such as rheumatoid disease or sero-negative type of inflammatory arthritis.

55. Dr Benanzio reported that the Applicant had developed "inflammatory joint disease in the right shoulder and both ankles".

56. Therefore, there is material before the Tribunal that supports the contention, as part of the Applicant's hypothesis, that he suffered inflammatory joint disease in his ankles and right shoulder before the clinical onset of osteoarthritis in those joints.

57. It is now necessary to consider whether, as part of the Applicant's hypothesis, there is material before the Tribunal consistent with the contention that the Applicant's inflammatory joint disease was war caused. There is only one factor in SoP No. 126 of 1996, concerning rheumatoid arthritis, factor 5(a):

"inability to obtain appropriate clinical management for rheumatoid arthritis."

58. The Applicant's hypothesis in this respect is that had he been given treatment with gold salts during his military service, his condition would not have progressed to the extent that it has.

59. The only material before the Tribunal that provides opinion or comment on the treatment or clinical management of the Applicant's condition during his service, other than the oral evidence of Dr Sachdev, is that of Dr Richards. In his report of 15 August 2001 (Exhibit R3) Dr Richards said:

"He was treated with gold salts, which is an intramuscular form of gold rather than gold tablets and had such treatment for a few years. Gold salts at the time was mainly prescribed for inflammatory rheumatic conditions including rheumatoid arthritis...

It is possible that the gold treatment may have achieved partial remission of his condition but subsequent events did suggest that he had problems with his shoulders and ankle. It would appear that his first episode occurred prior to military service but he did suffer a relapse of symptoms shortly after entry into the Army. The tonsillectomy performed was one of the recognised treatments at the time for patients with inflammatory arthritis. ...

Gold salt treatment was introduced after he came out of military service but such treatment could have been considered during his active military service."

60. The Tribunal must consider whether this material supports the contention, as part of the Applicant's hypothesis, that he was unable to obtain appropriate clinical management for his rheumatoid arthritis. The Tribunal is satisfied that the range of appropriate clinical management to be considered is the treatment available to the military and civilian population at the time of the Applicant's service (see Re Crowe and Repatriation Commission (1999) 28 AAR 548).

61. Dr Richards stated in his report that the tonsillectomy performed on the Applicant was one of the recognised treatments at the time for patients with inflammatory arthritis. It follows that some clinical management was given and that it was one of the "recognised treatments" at that time. Dr Richards takes the matter one step further and says that it is possible that the gold treatment, administered to the Applicant after his discharge from the army, may have achieved a partial remission of his condition but he also states that the Applicant had later problems with his shoulders and ankle. Finally, he says that "Gold salt treatment... could have been considered during his active military service".

62. The only evidence given by Dr Sachdev that was supportive of the Applicant's hypothesis was that the main treatment for rheumatoid arthritis in the 1940's was aspirin and rest, followed by gold injections if the condition had not settled down. He also said that gold injections were not given lightly because of possible side effects and that the Applicant's lack of absences from work show that his condition was not serious enough to warrant treatment with gold salts.

63. The Tribunal considers that this evidence of Drs Richards and Sachdev falls somewhat short of supporting the hypothesis of inability to obtain appropriate clinical management. Dr Richards' report allows that the later administration of gold salts may have given rise to a remission and that the Applicant could have been given this treatment during his service, but goes no further than that. While he says that gold salts at that time was mainly prescribed for inflammatory arthritis, he also says that a tonsillectomy was one of the recognised treatments for inflammatory arthritis at the relevant time. He does not appear to favour treatment with gold salts over treatment by tonsillectomy.

64. Dr Sachdev's evidence, that the main treatment for rheumatoid arthritis was rest and aspirin followed by gold salts in the event of the condition not settling down, is qualified by his comments about side effects of gold salts and his observations about the severity of the Applicant's condition as demonstrated by his consistent attendance on duty following his tonsillectomy.

65. The Tribunal considers that the material before it is neither consistent with the suggestion that there was an inability to obtain appropriate clinical management, nor allows that to be assumed. It follows that the aspect of the Applicant's hypothesis that links his contended condition of rheumatoid arthritis with his war service is not consistent with the relevant SoP. This aspect of the hypothesis is therefore not, pursuant to sections 120(3) and 120A(3) of the Act, reasonable. The effect of this is that the whole of the Applicant's hypothesis is not reasonable (see McKenna, [supra]).

66. It is therefore unnecessary to pursue the final step, summarised in Deledio [supra], of ascertaining whether there is, beyond reasonable doubt, no sufficient ground for determining that the Applicant's osteoarthrosis is war caused. In the absence of a reasonable hypothesis, the Applicant's osteoarthrosis cannot be found to be war caused.

decision

67. The Tribunal affirms the decision under review.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

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

Associate

Date/s of Hearing 10 August 2001 and 28 September 2001

Date of Decision 16 January 2002

Solicitor for the Applicant Mr Paul Jones

Advocate for the Respondent Ms Trina McConnell