Tyers and Repatriation Commission [2010] AATA 108 (12 February 2010)

Last Updated: 12 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3972

VETERANS' APPEALS DIVISION		)
	Re		DAVID ALAN TYERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

M.D. Allen, Senior Member and Dr M.E.C. Thorpe, Member

Date 12 February 2010

Place Sydney

Decision

The decision under review is AFFIRMED.

...................[sgd].........................
M D Allen, Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – No dispute Applicant’s asthma caused by exposure to antigens during RAAF service. Question for Tribunal was what was the date of clinical onset. Held clinical onset prior to 7 December 1972 so no entitlement under Veterans’ Entitlements Act 1986.

LEGISLATION

Veterans’ Entitlements Act 1986 s68, 69, 120(4), 120B.

CASES

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484

Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

February 2010

M.D. Allen, Senior Member and Dr M.E.C. Thorpe, Member

1. By Application made the 25th day of august 2008, the Applicant sought review of that part of a determination by the Repatriation Commission, as affirmed by the Veterans’ Review Board (“VRB”), rejecting his claims to have the disease of asthma recognised as being caused by his Defence service in the Royal Australian Air Force (“RAAF”).
2. Part IV of the Veterans’ Entitlements Act 1986 (“VEA”) provides for the payment of pension for the incapacity occasioned to members of the Defence Forces who were serving on or after the 7th day of December 1972. Any incapacity arising prior to that date, not being caused by operational service, is not compensable under the VEA, but recourse must be had to the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 (“SRC”) as amended.
3. As the Applicant’s asthma arose out of, or was caused by, his Defence service, the standard of proof in this matter is that proscribed by ss120(4) VEA, viz to the Tribunals “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Full Court of the Federal Court equated that to the civil standard of proof, viz proof on the balance of probabilities.
4. Ss120(6) VEA provides that neither party to this review bears any onus of proof.
5. Section 120B VEA mandates that the Tribunal can be reasonably satisfied that a disease is attributable to Defence service only if a Statement of Principal (“SOP”) determined under s196B VEA upholds the contention of connection with Service.
6. Instrument No. 86 of 2001 is the current SOP regarding asthma contracted during non-operational defence service. Factor 5(a) of that Instrument states that asthma will be connected to a persons relevant service if “for the first episode of asthma only, being exposed to an occupational antigen within the 24 hours before the clinical onset of asthma”.
7. The Respondent conceded that the Applicant does suffer from asthma and that Factor 5(a) in the Instrument No. 86 of 2001 applies to him. The issue in this matter is when did the Applicant experience his first episode of asthma.
8. In Lees v Repatriation Commission [2002] FCAFC 398; [2002] 36 AAR 484, the Full Court of the Federal Court affirmed previous decisions that had stated that the clinical onset of a disease can be said to be when there is present those signs and symptoms of a disease which, if observed by a clinician, would warrant the conclusion that the patient suffered from a particular illness or disease.
9. The case for the Respondent is that the Applicant experienced his first episode of asthma on 14 August 1972, that is prior to the effective date of 7 December 1972 when Part IV of the VEA came into force. The Applicant on his part says that his first episode of asthma was on 21 May 1979 when he was hospitalised whilst serving at RAAF Fairbairn.
10. Although the Applicant gave evidence in these proceedings we find that his evidence inevitably suffers from the fact that, whereas he was totally honest in his evidence, considerable time has elapsed since the particular events.
11. During his service in the RAAF, the Applicant’s trade was that of an engine fitter and this involved him in working frequently with chemicals. He first had problems with reaction to chemicals in 1965. At that time he found that after spray painting without any protective equipment being provided that he would develop headaches and breathing difficulties. Later, in 1972 and working with chemicals on engines, he developed an allergic reaction as well as wheezing and developing a chest infection.
12. An extract from the Applicant’s service medical documents reveal an outpatient attendance at an RAAF Medical Facility on 14 August 1972. The particular note reads:

“3 days URTI. Now starting to wheeze. Slight cough, bronchospasm...”.

The Applicant was prescribed medication and excused duty for two days.

13. The next entry of importance in the Applicant’s medical records is dated 21 May 1979. At that time he was admitted to a Service Medical Facility after complaining of a wheezing chest for some weeks with some bronchospasm. On 22 May a note was made that the Applicant was now coughing up blood.
14. A further entry for 5 June 1979 records:

“Now producing some discoloured sputum and feels tighter. On examination air entry good but has ? expiratory wheeze.”

15. The Applicant’s representative obtained reports from specialist physician Dr Burns.
16. In his original report of 19 November 2008, Dr Burns said:

Date of onset: It is difficult to now, forty plus years after the onset, to pinpoint an actual date when the respiratory symptoms occurred for the first time. It seems likely they began as an intermittent phenomenon in the 1960s with actual asthma declaring itself later in 1969 at Richmond. This was when he returns to temperate Sydney from the tropics. At Richmond he continued to be exposed to the same types of fumes as in Malaya and earlier.”

In later report dated 26 April 2009, Dr Burns opined:

“According to the SOP, under Factor 5, there should be a history of antigen exposure followed by asthmatic symptoms within 24 hours. It is now too long ago to be able to specify that time frame with any accuracy. He would have been continually exposed to those occupational allergens in 1972 which was when his asthma became established. The development of allergic sensitization was the cause of his problem with clinical symptoms only occurring late in the course of events.”

Later in a report of 12 July 2009, Dr Burns said:

“That wheeze in 1969 is likely on further consideration to be a symptom of an attack of bronchitis. If that was the beginning of his asthma then the wheezing should have persisted which it does not seem to have done. The 1976 respiratory symptoms were certainly those of allergic rhinitis. I knew Dr Ion Morrison well and I do not think he would have missed asthma if it was there.

The 1979 file note records his wheezing as sufficiently characteristic as to merit asthma treatment. It had been present for some weeks, presumably coming on whilst he was working and thus handling those chemical allergens. The discharge diagnosis was thought to be probable allergic asthma. Hence the first recognition of that condition was in1979.

17. When he gave evidence in this matter, Dr Burns was provided with a copy of the Applicant’s medical records containing the entry for 14 August 1972. That caused some shifting in Dr Burns’ opinion.
18. We found it difficult to fully determine what Dr Burns’ ultimate opinion was. As we understand his evidence, Dr Burns was firmly of the opinion that the Applicant’s asthma was caused by his exposure to antigens during his RAAF service. It seems that on balance his opinion is that the episode in August 1972 was an attack of asthma.
19. Respiratory physician, Dr Cassim examined the Applicant at the request of the Respondent and had access to his Service medical documents. In his report of 8 May 2009 he diagnosed asthma and in a later report dated 27 July 2009 stated that he agreed with the onset of illness as indicated in the report of Dr Burns.
20. In evidence, Dr Cassim stated that his opinion was that the Applicant’s asthma had existed since 1972. Speaking to the 25 August 1972 clinical note, he stated “URTI is a trigger factor for asthma attacks”.
21. Because the original report of Dr Cassim did not detail a history of the Applicant’s RAAF service, we requested from the Respondent copies of any letters of instruction forwarded to Dr Cassim. In a letter dated 16 July 2009, Dr Cassim was provided with two reports of Dr Burns, but that letter does not state which of Dr Burns three reports, the latter being dated 12 July 2009, were provided
22. Suffice it to say that in his report of 27 July 2009 Dr Cassim referred to “first chest symptoms in 1972” and as stated above, gave evidence that the Applicant’s asthma had existed since 1972.
23. Given the medical opinions before us, we are satisfied that the first clinical presentation of the Applicant’s asthma was in August 1972. That being so, no entitlement exists pursuant to the VEA 1986 notwithstanding that all medical opinion concludes that it was the Applicant’s exposure to antigens during his RAAF service that caused the Applicant’s asthma.
24. The decision under review is AFFIRMED.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M.E.C. Thorpe, Member.

Signed: .....................[sgd].......................................

K. Lynch, Associate

Date of Hearing 5 February 2010

Date of Decision 12 February 2010

Counsel for the Applicant Mr C Colborne

Solicitor for the Applicant Legal Aid

Solicitor for the Respondent Sparke Helmore