Parow and Repatriation Commission [2003] AATA 59 (22 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1240

VETERANS' APPEALS DIVISION

Re: WILLIAM McGOWAN PAROW

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date: 22 January 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

The applicant's conditions of osteoarthrosis of right hip and supraventricular tachycardia are not war-caused within the meaning of that term in s.9 of the Veterans' Entitlements Act 1986.. The claim for lumbar spondylosis was withdrawn during the course of the hearing.

(sgd) E.A. Shanahan

Member

VETERANS' AFFAIRS - whether osteoarthrosis of right hip war-caused - whether the development of supraventricular tachycardia war-caused within the meaning of s.9 of the Veterans' Entitlements Act 1986 - whether material raises a reasonable hypothesis connecting supraventricular tachycardia with coronary artery disease secondary to cigarette smoking - no relevant Statements of Principles - argument as to whether coronary artery ischaemia and atrial fibrillation are relevant

Veterans' Entitlements Act 1986 ss.120(1), (3), 120A

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 January 2003 Miss E.A. Shanahan, Member

1. This is an application for review of a decision of a delegate of the Repatriation Commission (the Commission) dated 1 March 1999, which found that the applicant's supraventricular tachycardia was not war-related and a further decision of 23 December 1999 finding the applicant's right hip condition was not war-related. During the course of the hearing the claim for lumbar spondylosis was withdrawn. The decisions under review were affirmed by the Veterans' Review Board (the VRB) on 14 July 2000. By consent, the application for extreme disablement adjustment was withdrawn. A further application on 27 October 2000 was refused and the applicant's pension was continued at 100 per cent of the general rate. This was based on an impairment rating of 60 points and a lifestyle rating of 5 points.

2. At the hearing on 11 April 2002 the applicant was represented by Mr D. De Marchi, solicitor, and the respondent by Mr G. Purcell, of counsel. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). In addition, the applicant tendered a report from Dr W. Stone, Rehabilitation and Occupational Physician, dated 10 May 2001 (exhibit A1); a report of Dr M. Rosenbaum, Consultant Cardiologist, dated 4 May 2001 (exhibit A2), and a report from Dr S. Hall, Rheumatologist, dated 18 July 2001 (exhibit A3). The applicant had provided a lifestyle questionnaire (exhibit A4). Mr De Marchi also tendered X-ray films of the applicant's hips, dated 21 February 2002 (exhibit A5) and a further X-ray of the right hip, dated 13 January 2000 (exhibit A6). Mr Purcell tendered a report of Dr P. Scott, Senior Consultant Surgeon, dated 8 May 2001 (exhibit R1); a report of Professor R. Harper, Consultant and Interventional Cardiologist, dated 12 June 2001 (exhibit R2), and Dr M. Alston's, the treating General Practitioner, medical reports (a bulk document exhibit R3). At the resumed hearing on 7 August 2002, the respondent tendered a statement of Mr G. Purcell, counsel for the Commission, dated 7 August 2002.

BACKGROUND TO THE APPLICATION

3. The applicant was born on 30 June 1920 and served in the Royal Australian Air Force (the RAAF) from 23 April 1943 to 12 February 1947. As he served overseas he rendered operational service as defined in the Veterans' Entitlements Act 1986 (the Act). He was trained as a pilot, most of the training being conducted in Canada, and subsequently flew DC3 transports in New Guinea, Japan and the south-west Pacific Islands. While training in Canada, he suffered an injury to his left knee while skiing. He has subsequently undergone total left knee replacement. This has been accepted by the Commission as a war-caused injury. In addition to this injury, there are several other accepted disabilities as follows:

* ingrown toe nails with operation and infection

* non suppurative sinusitis

* sensori-neural hearing loss

* solar keratoses to the face and back

* basal cell carcinoma of the face and back

4. The applicant subsequently submitted a claim for supraventricular tachycardia, which was rejected on 14 July 2000 and, for right hip problems, which was also rejected on 14 July 2000. Both of these decisions were subsequently appealed to the VRB and it is noted that the appeal with respect to supraventricular tachycardia was made out of time.

5. The applicant argued two hypotheses. First, that the right hip pain (lumbar spondylosis, advised by Professor Hall) was a consequence of the left knee injury and the trauma to the right hip (back) due to the favouring of the right leg to relieve the left lower limb pain. Secondly, that the applicant's supraventricular tachycardia may be due to ischaemic heart disease and war-initiated smoking. The applicant stated that he commenced smoking when he commenced service. It was also postulated that the supraventricular tachycardia was aggravated by anxiety consequent upon his war service. The episodes of supraventricular tachycardia were first noted in 1962 and led to the applicant ceasing employment as a pilot. He did, however, work for a further 20 years in a more sedentary occupation. The second hypothesis was delineated by Dr Rosenbaum in his report dated 4 May 2001.

6. On 1 March 1999, the Repatriation Commission denied the applicant's claim for supraventricular tachycardia and on 23 December 1999, the Commission refused the applicant's claim for the right hip on the basis that a diagnosis could not be confirmed. The pension was assessed at 100 per cent of the general rate with effect from 22 August 1999.

7. The applicant (the veteran) has appealed both decisions to the Administrative Appeals Tribunal.

8. The hearing of this matter was held over a period of two days, first on 11 April 2002 and the resumed hearing was held on 7 August 2002. Following the adjourned hearing of 11 April 2002, counsel for the respondent observed the applicant as he left the site of the hearing and walked some 250 metres without apparent discomfort or assistance. Counsel for the respondent filed a witness statement, presented to the Tribunal at the resumed hearing of 7 August 2002. Counsel was excused from the continuation of the respondent's case and gave evidence before the Tribunal as to his observations on 11 April 2002. Mr Purcell was temporarily replaced by Ms J. McCulloch, an advocate with the Department while he gave his evidence. Once this evidence was heard the applicant withdrew the application relating to the lumbar spondylosis.

9. There remains only the consideration of the hypothesis that the applicant's supraventricular tachycardia is indicative of underlying ischaemic heart disease, which may be related to the smoking history and the claim for right hip osteoarthritis.

10. It is noted that the applicant has been in receipt of 100 per cent pension of the general rate since 23 December 1999, and the issue before this Tribunal is whether or not he was entitled to 100 per cent of the general rate from the period 14 May 1998 to 23 December 1999.

EVIDENCE BEFORE THE TRIBUNAL

11. The applicant gave evidence that he was a pilot during the Second World War and flew in New Guinea in aeroplanes then called C47s but now referred to as DC3s. This was a transport aeroplane. Prior to enlistment, he had not smoked cigarettes but had taken this up following enlistment because cigarettes were available, cheap and, in his opinion, servicemen were encouraged to smoke. He stated that during his period of service, he had smoked up to two packets of American cigarettes per day. He continued to smoke after service, ceasing in 1990. The applicant was shown newspaper cuttings regarding an episode when there were difficulties in landing an aeroplane at Moorabbin Airport. He was photographed smoking a cigar.

12. The applicant stated that he developed supraventricular tachycardia some 30 years ago and this was partially controlled by medication. These episodes occurred twice a week. The applicant also gave evidence relating to his right hip condition. He advised he had ceased working in 1962 as a commercial pilot and then commenced working with a local real estate agent. It was during this time of employment that he developed his first episode of supraventricular tachycardia and on that day he resigned from his position in the real estate agency. No definitive diagnosis of his cardiac condition was made until a few years later when he was undergoing prostate surgery at St Vincent's Hospital. A bout of supraventricular tachycardia occurred and he was seen by a cardiologist. It was explained to him that this abnormality was an "electrical thing".. In answer to a question posed by the Tribunal, the applicant agreed that he had undergone 12-monthly physical examinations while a commercial airline pilot and, during that period, no physical abnormalities relating to his heart or his left knee were reported.

13. Dr Stone gave evidence for the applicant by telephone. Dr Stone is a Rehabilitation Physician and Occupational Physician and, in particular, has been a Rehabilitation Physician since 1973. Dr Stone's evidence was directed primarily to the applicant's left knee injury and his complaint of right hip or back pain. Dr Stone was asked to comment on the applicant's supraventricular tachycardia but declared that this was outside his field expertise. With respect to the right hip, Dr Stone stated that the applicant had an ampalgic gait, meaning that he favoured his left leg perhaps to the detriment of the right hip.

14. Mr Purcell requested that the applicant's legal representative restate their case in more specific terminology so that the appropriate Statement of Principles (SoP) could be identified. The applicant's original claim was stated to be for right hip and this has been subsequently amended to read lumbar spondylosis. In addition, the original contention regarding the supraventricular tachycardia had been that the applicant's anxiety and stress relating from his war service had contributed to the supraventricular tachycardia but the evidence being proposed by Dr Rosenbaum, for the applicant, had altered the hypothesis to supraventricular tachycardia due to underlying ischaemic heart disease, the latter being related to the applicant's smoking which commenced during his war service. There was considerable debate regarding the actual hypotheses.

15. It had been intended to call Dr Rosenbaum to give his evidence by telephone at this time. However, he did not have his clinical notes available to him and recommended by telephone that the applicant should have undergone an Echocardiogram. In addition, the availability of one of the respondent's witnesses was in some doubt as his availability was very limited.

16. With the agreement of both parties, the Tribunal adjourned the hearing to enable further cardiological assessment of the applicant and, in particular, the performance of an echocardiogram. In addition, Mr De Marchi, for the applicant, undertook to clarify the hypotheses upon which the applicant relied.

17. The hearing resumed on 7 August 2002. The applicant's solicitor, Mr De Marchi, provided a supplementary statement of facts and contentions. Dr Rosenbaum had produced a further report with the results of an echocardiogram. Dr Rosenbaum's report was tendered (exhibit A7) and in addition a further short report from the treating general practitioner, Dr Alston, was received (exhibit A8).

18. Mr Purcell requested that the applicant be recalled to give evidence and tendered a witness statement made by himself, dated 7 August 2002 (exhibit R4). As Mr Purcell was to give sworn evidence before the Tribunal, it was agreed that a departmental advocate should take over the running of the respondent's case. In the interim, the Tribunal proceeded to hear the evidence of Dr Rosenbaum for the applicant. Dr Rosenbaum had previously provided a report dated 4 May 2001 (exhibit A2) wherein he postulated that the applicant's supraventricular tachycardia could be regarded as predisposed to by war service as:

(a) it is likely that cigarette intake has predisposed to coronary artery disease and thus supraventricular tachycardia; and

(b) supraventricular tachycardia is worsened by anxiety and depression, and it is likely that there is a train of events from war service through anxiety and depression to the predisposition to and worsening of the supraventricular tachycardia.

Dr Rosenbaum, in his report of 22 April 2002, provided an account of the echocardiogram that had been performed on 22 April 2002. This investigation was reported as being normal with the exception that the left ventricle was at the upper limit of normal in size and the aortic valve was mildly thickened. Despite these findings, the left ventricle exhibited normal function, as did the aortic valve. Dr Rosenbaum had concluded that left ventricular systolic function is at this examination normal and there is no haemodynamically significant valve lesion.

19. In evidence before the Tribunal, Dr Rosenbaum expanded on the echocardiograph findings. Mr De Marchi asked him the significance of a left ventricle at the upper limit of normal. Dr Rosenbaum indicated that this could indicate incipient impairment of function but added that this was not a likely diagnosis in the applicant's situation. He reiterated that the left ventricle was within the boundaries of normal size. Despite the essentially normal echocardiogram, Dr Rosenbaum felt that the question of coronary artery disease remained open and that there was a possibility that the applicant did have coronary artery disease. Dr Rosenbaum was asked by Mr De Marchi if supraventricular tachycardia resembled atrial fibrillation or may be incorrectly diagnosed and, in fact, be atrial fibrillation. Dr Rosenbaum declined to answer the question, although he stated that it was his clinical experience that many people with supraventricular tachycardia do, in fact, have atrial fibrillation. Dr Rosenbaum did agree that there was no evidence of myocardial infarction old or new in the applicant's investigations, nor was there any substantive echocardiograph evidence of myocardial ischaemia. He found the applicant's most recent echocardiograph, done by himself, was normal. He did, however, note a slight abnormality in conduction between the atrium and the ventricle, which he felt, could reflect myocardial ischaemia.

20. In cross-examination, Mr Purcell pointed out to Dr Rosenbaum that the applicant had retired in 1980 and not 1962 as reported by Dr Rosenbaum. Dr Rosenbaum agreed that the applicant had no symptoms indicative of ischaemic heart disease, namely, chest pain, shortness of breath or nocturnal pain. On direct questioning, Dr Rosenbaum agreed that, on the basis of the echocardiogram, it was not likely that the applicant had underlying coronary artery disease. Dr Rosenbaum later changed his statement to ...not very likely. Dr Rosenbaum agreed with Professor Harper's statement that supraventricular tachycardia ...is an electrical fault of the heart, which allows the heart to intermittently go out of rhythm. However, he disagreed with Professor Harper's statement in his report of 12 June 2001 (exhibit R2) that supraventricular tachycardia is not due to ischaemic heart disease. Dr Rosenbaum did accept that the most common cause of supraventricular tachycardia was an abnormal electrical circuit related to the atrio-ventricular node. Dr Rosenbaum explained that his contention that the supraventricular tachycardia was worsened by anxiety and depression was based on the physiological responses to anxiety and depression, which increased adrenaline levels which in turn could predispose to episodes of supraventricular tachycardia. On direct questioning, Dr Rosenbaum stated that the slightly prolonged PR intervals in the echocardiogram findings of 22 April 2002 were not significant abnormalities. On the balance of probabilities, these changes were not indicative of or due to ischaemic heart disease (trans, p.65, line 20-21). Dr Rosenbaum agreed that the echocardiogram was not really abnormal. Dr Rosenbaum was taken to the diagnostic criteria for ischaemic heart disease provided in SoP Instrument Nº 80 of 1998 and agreed that, in the applicant's case, there was no evidence of ischaemic heart disease on the criteria of the SoP.

21. In answer to a question posed by the Tribunal, Dr Rosenbaum agreed with Professor Harper's opinion that paroxysmal atrial tachycardia, a form of supraventricular tachycardia, is due to a conduction defect which is unrelated to ischaemic heart disease.

22. The applicant's legal representatives determined not to call any further expert medical witnesses.

THE RESPONDENT'S CASE

23. The respondent was represented by Mr Purcell and shortly thereafter Ms McCulloch who decided not to call Professor Harper or Mr Scott to give evidence. They relied on their written reports. Professor Harper's report was referred to at length in the cross-examination of Dr Rosenbaum. Professor Harper in his report of 12 June 2001 (exhibit R2) was of the opinion the applicant had a supraventricular tachycardia due to an electrical conduction defect between the atrium and ventricle of the heart, which was, in no way, related to ischaemic heart disease. Mr Scott, in his report dated 8 March 2001 (exhibit R1), had provided an opinion regarding the applicant's right hip pain. He made a diagnosis of age-related degenerative osteoarthrosis of the right hip of a mild degree. There was also a minor degree of lumbar spondylosis and neither of these conditions satisfied the relevant SoP.

24. Ms I. Black, clerk instructed by De Marchi & Associates, replaced Mr De Marchi as the legal representative of the applicant with the Tribunal's permission.

EVIDENCE OF MR GERARD LAWRENCE PURCELL

25. Mr Purcell accepted his witness statement of 7 August 2002 wherein he described his observations of the applicant's movements following the adjournment of the first day of hearing on 11 April 2002. Mr Purcell had observed the applicant walking a distance of 50 to 100 metres and then climbing a circular staircase without any difficulty. No walking aid was used during this period. Mr Purcell lost sight of the applicant as he crossed Princes Bridge walking towards Flinders Street station. Mr Purcell was cross-examined by Ms Black, for the applicant, and confirmed that he had watched the applicant walk for a distance of 100 metres, at an average pace. By average pace, he meant that of a normal person and unrelated to age. Whether walking on the flat or up the circular staircase, Mr Purcell was of the opinion that the applicant walked as any normal person would walk unaided.

26. Following Mr Purcell's evidence, the applicant was recalled. In examination-in-chief by Ms Black, the applicant agreed that his degree of mobility varied from day to day and that on the day in question he was feeling well and had climbed the circular staircase with the use of the handrail provided on those steps. On a good day, he agreed he could walk 100 metres un-aided and that, while he had difficulty going down stairs, he was able to walk up stairs. The applicant recalled that he had rested half way across Princes Bridge for a minute or so. In cross-examination by Ms McCulloch, the applicant informed the Tribunal that he had not used his walking aid/seat as the terrain was irregular. He agreed that he could now walk better following his knee replacement.

27. The Tribunal had before it the reports of the treating general practitioner, Dr Alston, who was not called to give evidence at the hearing. Dr Alston's notes record frequent falls associated with the knee pathology and prior to the knee replacement, all of which seem to have subsided with analgesia and non-steroidal anti-inflammatory drug treatment. Dr Alston had referred the applicant to an orthopaedic surgeon, Dr H. Morris, who diagnosed left knee degenerate tear of a medial meniscus and advised arthroscopy. On 14 February 2000, following the applicant's left knee replacement, Mr Morris diagnosed synovitis of the right hip, secondary to minor degenerative change. Dr Alston subsequently provided a report dated 1 August 2002, confirming that the applicant had suffered frequent falls over the years and these had become more frequent since his total knee replacement in 2001.

THE RELEVANT LEGISLATION

28. As the applicant served in RAAF from 23 April 1943 to 12 February 1947 and served overseas, he has operational service attracting subsections 120(1) and 120(3) of the Act. This requires the Tribunal to find his claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. As the claim was lodged after 1 June 1994, the Tribunal is also required to apply s.120A of the Act and assess the reasonableness of the hypotheses raised in accordance with any SoPs issued by the Repatriation Medical Authority (RMA) or any other relevant determinations or declarations under the Act..

29. With regard to the claim of osteoarthrosis of the right hip, the relevant SoP is Nº 41 of 1998. With regard to the supraventricular tachycardia, there is no SoP issued by the RMA. Given the lack of a SoP relating to the supraventricular tachycardia, the Tribunal is bound to consider the claim in the terms established by Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The claim for osteoarthrosis of the right hip does not meet the SoP criteria in the opinion of both the applicant's and respondent's expert witnesses. Thus, the only issue for determination by the Tribunal is whether the supraventricular tachycardia is war-caused.

30. The Tribunal notes that in Repatriation Commission v Deledio (1998) 83 FCR 82 (1998) 49 ALD 193, the Full Federal Court on 23 April 1998 stated that, if there was no SoP in force, the hypothesis will be taken not to be reasonable and in consequence the application must fail. This obiter of the Full Court has been found to be in conflict with the basic intentions of the Act and is not followed in this decision. The Tribunal relies on Bushell, where the Court stated (at p.409):

...

Per curiam. To be "reasonable", a hypothesis must possess some degree of acceptability or credibility. It is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind that constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion that supports the hypothesis has little support in the medical profession or among scientists. However, a hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature, nor if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. The case will be rare whence it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.

APPLICANT'S FINAL SUBMISSION

31. The applicant's legal representative withdrew the claim relating to the applicant's lumbar spondylosis but pursued the claim for right hip osteoarthrosis. The Tribunal thus had to consider only the evidence relating right hip osteoarthrosis and supraventricular tachycardia. The claim for osteoarthrosis was based upon SoP Nº 81 of 2001, factor 5(e), which states:

...

(e) ... having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint;

The disordered joint mechanics were defined as permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology.

32. With respect to the claim for supraventricular tachycardia, the applicant relied on the evidence of Dr Rosenbaum and agreed that there was no SoP applicable. The applicant's legal representative stated that the only issue before the Tribunal related to the level of pension paid between 14 September 1997 and 26 August 1999, after which the applicant received a 100 per cent rate of general pension. It was agreed that the applicant did not qualify for extreme disablement adjustment.

RESPONDENT'S FINAL SUBMISSION

33. The respondent contended that the applicant's supraventricular tachycardia was not due to any underlying ischaemic heart disease, but arose from an electrical conduction defect. This was supported by the opinion of Professor Harper and was not negated by the evidence of Dr Rosenbaum.

34. With respect to the claim for osteoarthrosis of the right hip, Professor Hall had stated that there was no evidence for such a process and Mr Scott's report alluded to minor osteoarthritic changes in the right hip. The evidence of minor osteoarthritis was regarded by expert witnesses as being commensurate with the applicant's age of 82.

35. Dr Stone had given evidence that there was an ampalgic gait which meant that the applicant favoured his left leg and put more weight on his right leg. As such, this could affect the opposite hip, that is, the right hip. The radiological evidence is to the effect that there are very minor changes in the right hip.

36. With respect to the right hip pain, the clinical and radiological evidence is that the changes and symptoms are consistent with the applicant's age of 82 and are minor on all criteria. While the skiing injury to the left knee, in the 1940s, is accepted as a war-caused injury, the applicant has benefited from total knee replacement, and is, in fact, in a better state of health than he was prior to this procedure. On his own evidence, he can walk further and has less pain, discomfort and restriction of movement. SoP Nº 81 of 2001 is not satisfied.

37. No evidence had been produced from a qualified psychiatrist as to whether or not the applicant suffered from anxiety and depression.

38. With regard to the hypothesis raised that the applicant's supraventricular tachycardia was secondary to ischaemic heart disease, contributed to by his smoking history, the Tribunal notes the evidence of Dr Rosenbaum and Professor Harper and also notes that there is no Statement of Principles provided by the RMA on the subject of supraventricular tachycardia. Bushell and Byrnes are therefore applied. Dr Rosenbaum, for the applicant, eventually concluded that there was no scientific evidence of ischaemic heart disease on either ECG or echocardiography. There were certainly no symptoms to suggest underlying ischaemic heart disease. On this basis the hypothesis is regarded as being too tenuous to be sustainable.

39. The Tribunal affirms the decision under review on the basis that there is no evidence of ischaemic heart disease which may have resulted in supraventricular tachycardia and that the right hip pain is due to minimal radiological and clinical changes, which are attributable to the applicant's age of 82.

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Catherine Thomas

Clerk

Dates of Hearing: 11 April 2002

7 August 2002

Date of Decision: 22 January 2003

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

Counsel for the respondent: Mr G. Purcell

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