Lees and Repatriation Commission [2002] AATA 2 (4 January 2002)

Last Updated: 9 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/873

Nº V2000/1257

VETERANS' APPEALS DIVISION

Re: FRANK ALFRED NORMAN LEES

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 4 January 2002

Place: Melbourne

Decision: The Tribunal affirms the decisions under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS - veterans' entitlements - orthopaedic conditions - anxiety - whether war-caused

Veterans' Entitlements Act 1986 ss9, 119, 120(1), 120(3), 120(4)

East v Repatriation Commission (1987) 16 FCR 517

Meehan v Repatriation Commission [2001] FCA 597

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

4 January 2002 G.D. Friedman, Member

1. This is an application by Frank Alfred Norman Lees (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 17 May 2000. The VRB affirmed a decision of a delegate of the respondent dated 3 September 1999 that thoracic spondylosis, localised osteoarthrosis of both knees, localised osteoarthrosis of the right hand, arthrosis of both hips, and anxiety were not war-caused. On the same date the VRB set aside a decision relating to pension assessment and increased disability pension to 90 per cent of the general rate with effect from 19 May 1999.

2. At the hearing of this matter, on 11 December 2001, Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell of Counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with five exhibits lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3).

BACKGROUND

4. The applicant was born on 16 November 1925. After obtaining his Intermediate Certificate he became a junior clerk with Equity Trustees before enlisting in the Royal Australian Air Force (RAAF) on 6 January 1944 when aged 18 years. He trained as an airman and later as an aircraft electrician. He served at Morotai and Balikpapan (in what is now Indonesia), and Labuan (in what is now Malaysia), where he serviced aircraft at various airfields. In February 1946 the applicant was transferred to Bofu, Japan, where he served with the British Commonwealth Occupational Force, before returning to Australia in April 1947. The service was operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act).

5. On discharge from the RAAF, on 19 June 1947, the applicant resumed work with Equity Trustees until 1948, when he returned to school and completed Leaving and Matriculation. He studied mechanical engineering at The University of Melbourne and graduated in 1953. In 1954 he moved to Canada to work for the Taylor Instrument Company. On his return, in 1956, he travelled extensively as a process control engineer for the company. In 1973 he joined the engineering faculty at Swinburne University and worked in the field of industrial liaison. In 1984 he transferred to The University of Melbourne, until his retirement in 1988. He has maintained his association with The University of Melbourne as an honorary liaison officer with responsibilities for research and the transfer of technology between universities. In 1989 he was made a Member of the British Empire and in 1995 he was made a Member of the Order of Australia for services to education and research links with industry.

6. After his period of service the applicant developed chronic neck and back pain.

7. On 24 February 1999 the applicant lodged an application with the respondent for disability pension for incapacity from thoraco/cervical problem, osteoarthritis hips, hips, knees and right hand and anxiety/PTSD. On 3 September 1999 the respondent refused the application on the grounds that the conditions were not war-caused. The VRB affirmed the decision of the delegate on 17 May 2000. The VRB also set aside a decision relating to pension assessment and increased disability pension to 90 per cent of the general rate with effect from 19 May 1999. The applicant sought review by the Tribunal of both decisions of the VRB. At the hearing the applicant's solicitor informed the Tribunal that the applicant was not proceeding with his application for review of the decision of the VRB to grant pension at 90 per cent of the general rate.

EVIDENCE

8. The applicant told the Tribunal that after serving in Morotai he was sent to Balikpapan in 1945. He was the only electrician in the operational base unit. He said that the base came under attack from the Japanese and there were many casualties. He stated that in October 1945 he volunteered for service in Japan and was flown to Labuan, where on 19 November 1945 he witnessed an accident (the Labuan incident) in which eight Australians died after a Beaufighter aircraft lost control during take-off and then caught fire. The applicant said that he and his fellow airmen tried unsuccessfully to shift a fire truck which had become bogged in the mud, and he could only watch helplessly as the victims were trapped inside the burning aircraft.

9. The applicant also described an incident that occurred on 17 March 1947 during his service in Japan (the Bofu incident). He said that on that day the weather was cold and the runway at Bofu was icy when a pilot started and revved the engine of his aircraft, causing a high velocity slipstream which flung the applicant to the ground onto his knees and left wrist and caused him to roll along the ground. He stated that he suffered a fractured left wrist, bruising and a sore neck, back and right hip. The applicant said that he was treated at a hospital formerly used by the Japanese and never again worked as an aircraft electrician.

10. The Tribunal was told that after his discharge the applicant became irritable and that this condition has persisted. He said that he only travels in large aircraft and avoids airline travel wherever possible. He explained that he still has limited mobility and has constant pain in his neck, back and legs. He said that he has stiff knees and cannot lift heavy objects. In cross-examination he agreed that when he appeared before the VRB he made no mention of ongoing physical injuries.

11. In a written report dated 26 February 2001 (Exhibit A1), Dr E. Cole, psychiatrist, described symptoms at the time of discharge from the RAAF as including excessive anxiety and worry about a number of events including his future and study, undue fatigue and irritability. Dr Cole stated that the applicant was suffering from a mild generalised anxiety disorder, but that the condition was stabilised and no psychiatric treatment was required. In oral evidence he told the Tribunal that he prepared his report after one interview with the applicant. In cross-examination Dr Cole stated that the applicant was not suffering from post traumatic stress disorder, but worried excessively about a number of matters such as his disabled daughter, and this has not changed significantly since his discharge from the RAAF. Dr Cole added that the applicant's reluctance to travel in light aircraft was not a phobia about flying, because he has travelled widely on commercial aircraft for many years.

12. In a written report dated 4 July 2001 (Exhibit R2) Mr P. Lugg, orthopaedic surgeon, stated that, in relation to the applicant's neck and back, left hip, knees and the joints of both hands:

In my opinion the cause of the diagnoses relates to age...Other factors that may be involved include a general predisposition to developing degenerative change. He has fairly widespread osteoarthritis.

In terms of the thoracic spondylosis, I do not believe the circumstances of the veteran's service in the RAAF satisfies any of the causal factors in the statement of principles for this condition. Similarly I do not believe that in the case of osteoarthritis involving the hands or the knees or the hips ...the veteran's service in the RAAF satisfy the causal factors in the statement of principles for this condition.

Mr Lugg gave oral evidence to the Tribunal and confirmed the contents of his report.

13. In a written report dated 7 June 2001 (Exhibit R3), Dr T. Gidley, consultant psychiatrist, stated that the applicant had anxious periods during the war followed by some difficulty adjusting post-war. He said:

In most day to day situations Mr Lees says he is able to control his anxiety. Actual symptoms of anxiety are minimal and seem to be confined to some difficulty concentrating, mild tension and sleep disturbance - his sleeping pattern however is also influenced by his arthritis. A diagnosis of Generalised Anxiety Disorder requires that the condition cause clinically significant distress or impairment in occupational, social or other important areas of functioning. I doubt that this latter criterion is met.

Dr Gidley concluded that although the applicant's service satisfied the causal factors in the relevant Statement of Principles (SoP), he was not suffering from any diagnosable psychiatric disorder. Dr Gidley gave oral evidence to the Tribunal and stated that the applicant has shown minimal signs of anxiety, and in fact has functioned extremely well as measured by success in his career and his family relationships.

CONSIDERATION OF THE ISSUES

14. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.

15. Mr De Marchi, on behalf of the applicant, noted that there was no dispute between the parties that the applicant had rendered operational service, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that each condition was a war-caused condition unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

16. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Mr De Marchi submitted that the applicable SoPs were Nº 1 of 2000 and Nº 48 of 1994 concerning Generalised Anxiety Disorder, Nº 41 of 1998 and Nº 81 of 2001 concerning Osteoarthrosis, and Nº 29 of 1999 concerning Thoracic Spondylosis.

17. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Mr De Marchi submitted that the hypothesis fits within the template and is reasonable. He relied on the statements and oral evidence of the applicant and the medical reports.

18. The fourth step requires the Tribunal to consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the disease or condition was not war-caused. At this stage the Tribunal is required to make findings on questions of fact. Mr De Marchi, on behalf of the applicant, submitted that there was sufficient material before the Tribunal to find that the relevant conditions were war-caused. He said the Labuan incident and the Bofu incident resulted in the applicant suffering from thoracic spondylosis, localised osteoarthrosis in both knees, localised osteoarthrosis of the right hand and arthrosis affecting both hips (the orthopaedic conditions). The applicant also suffered anxiety disorder as a result of his service, in particular as a result of witnessing the death of airmen in a burning aircraft. Mr De Marchi referred the Tribunal to s119 of the Act and noted that the passage of time and the lack of proper records should be taken into account by the Tribunal when assessing the evidence.

19. Mr Purcell, on behalf of the respondent, submitted that the applicant had not identified any medical evidence in support of the contention that the orthopaedic conditions were causally related to service. He said that at the time of the incidents there was no report of any orthopaedic injury or trauma to the joints, apart from abrasions to the left wrist. He also stated that the medical evidence pointed to degenerative factors as the most likely cause of the orthopaedic conditions. In addition he said that the applicant was not suffering from any diagnosable psychiatric condition.

20. Mr Purcell referred the Tribunal to East v Repatriation Commission (1987) 16 FCR 517 in which the Full Federal Court stated at p 533:

A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

He submitted that in this case the raised facts fall short of fitting the template. He said that there was nothing in Dr Cole's report that would suggest that the applicant suffered from a psychiatric condition. Accordingly he submitted that the applicant did not satisfy the third step in Deledio.

21. Mr Purcell submitted further that s119 does not apply in this case because the applicant had a good recollection of the events in question and no medical records were missing.

22. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

23. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease or condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant.

24. In respect of the second step, the Tribunal finds that SoPs Nº 1 of 2000 and Nº 48 of 1994 concerning Generalised Anxiety Disorder, Nº 41 of 1998 and Nº 81 of 2001 concerning Osteoarthrosis, and Nº 29 of 1999 concerning Thoracic Spondylosis determined by the Repatriation Medical Authority under s196B(2) or (11) of the Act are relevant and in force.

25. In respect of the third step, the Tribunal finds the applicant to be a credible witness and accepts his evidence that he witnessed a tragic accident at Labuan and suffered temporary neck pain in trying to move the fire truck. In the Bofu incident he suffered bruising, discomfort and a fractured wrist. However, the Tribunal accepts the only comprehensive medical evidence, which was given by Mr Lugg, and finds that the orthopaedic conditions were primarily the result of degenerative changes due to the ageing process. In relation to the claim for anxiety, the Tribunal noted the evidence from the applicant that at times he was worried about his studies and later about his disabled daughter. Nevertheless, he was able to manage his anxiety and make significant achievements in his chosen profession. The Tribunal accepts Dr Gidley's evidence that the applicant displayed minimal actual symptoms of anxiety and that there was no evidence of clinically significant distress or impairment in occupational, social or other important areas of functioning. The Tribunal does not accept the generalised diagnosis by Dr Cole.

26. For these reasons, in applying the relevant SoPs the Tribunal has formed an opinion that the hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoPs and it is deemed not to be reasonable. Consequently the third step is not met, so the application must fail.

27. The Tribunal accepts the submission from Mr Purcell that the provisions of s119 of the Act, in relation to the effect of the passage of time and the lack of evidence, are of limited application in this case because the recollection of the applicant was clear, and there were no missing medical records.

DECISION

28. The Tribunal affirms the decisions under review.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of

G.D.Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 11 December 2001

Date of decision: 4 January 2002

Solicitor for applicant: Mr D. De Marchi, De Marchi & Associates

Counsel for respondent: Mr G.Purcell

Solicitor for respondent: Advocacy Section, Department of Veterans' Affairs