Baird and Repatriation Commission [2010] AATA 66 (1 February 2010)

Last Updated: 1 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 66

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/3093

VETERANS' AFFAIRS DIVISION		)
	Re		JEFFREY BAIRD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr Egon Fice, Member Dr Kerry Breen, Member

Date 1 February 2010

Place Melbourne

Decision

The decision of the Veterans’ Review Board (VRB) dated 12 June 2007 in respect of Mr Baird’s claimed gastro-oesophageal reflux disease (GORD) is set aside. Instead, the Tribunal finds that Mr Baird’s GORD was war-caused. The Tribunal affirms the decision of the VRB dated 12 June 2007 regarding Mr Baird’s rate of pension.

(sgd) Egon Fice
Member

CATCHWORDS – gastro-oesophageal reflux disease – diagnosis – clinical onset – solicitors instructions to expert – independence of expert – war-caused disease – alcohol consumption and smoking – intermediate and special rate of pension – remunerative work – cause and extent of incapacity – alone test

Veterans’ Entitlement Act 1986 ss 7, 9A, 13(1), 21(2),23, 24, 24A, 101(1), 120, 120(1),(2),(3) 120A, 120A(3), 196B(2), (11)
Statement of Principles concerning gastro-oesophageal reflux disease No 11 of 2005

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Flentjar v Repatriation Commission [1997] FCA 1200; (1997) 48 ALD 1

Forbes v Repatriation Commission [2000] FCA 328; (1999) 58 ALD 394

Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437

Law v Repatriation Commission (1980) 29 ALR 64

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Peacock v Repatriation Commission (2004) 40 AAR 143

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

Walsh v Rother District Council [1978] 1 ALL ER 510

Wright v Repatriation Commission [2005] FCA 7

Chambers 21st Century Dictionary

REASONS FOR DECISION

1 February 2010

Mr Egon Fice, Member

1. Mr Jeffrey Baird served in the Australian Army (the army) between 29 September 1965 and 29 November 1967. He had operational service in South Vietnam between 2 April 1967 and 14 August 1967.
2. On 1 April 2005 Mr Baird lodged a claim for disability pension because he suffered gastro-oesophageal reflux disease (GORD), alcohol abuse and tinea. On 22 April 2005 Mr Baird lodged a further claim for what he described as heart problems. On 13 December 2005 a delegate of the Repatriation Commission (the Commission) determined that Mr Baird suffered GORD, alcohol dependence, tinea and ischaemic heart disease. The Commission accepted Mr Baird’s claims for tinea and ischaemic heart disease but rejected his claims for alcohol dependence and GORD. It also increased his rate of disability pension to 60 per cent of the general rate, with effect from 1 January 2005.
3. Dissatisfied with the Commission’s decision, Mr Baird sought a review by the Veterans’ Review Board (VRB). Mr Baird then applied to the Commission for an increase in his rate of disability pension to the special rate because his ischaemic heart disease had worsened. On 29 September 2006 a delegate of the Commission determined that Mr Baird was entitled to 100 per cent of the general rate of pension with effect from 18 May 2006.
4. On 12 June 2007 the VRB affirmed the Commission’s decision regarding Mr Baird’s claims for GORD and alcohol dependence and also that Mr Baird was ineligible for the intermediate or special rate of pension.
5. Mr Baird has applied for a review of the VRB decision regarding his claim for GORD and that his pension be increased to either the intermediate or special rate.
6. The questions which we must answer are:
   • (a) whether Mr Baird suffers from GORD;
   • (b) if the answer to (a) is in the affirmative, whether Mr Baird’s GORD was war-caused; and
   • (c) whether Mr Baird is entitled to the pension at the intermediate or special rate.

GORD – DIAGNOSIS

7. Mr Baird said that a short time after his discharge from the army he began to experience heartburn and belching. In his oral evidence, Mr Baird described it as a burning sensation in the ribs and back with burping to relieve that sensation. He said he put it down to a change of diet at that time. He obtained relief by taking Quick-Eze tablets. He used these on a regular basis, taking up to half a packet per day. He found that they provided him with effective relief because they took away the pain and eased what he described as the blockage. He thought that this happened about a year or so after he left the army. Mr Baird explained that, at that time, the heartburn was the most significant symptom for which he sought relief and he did not consider the belching to be significant. He said that he began carrying Quick-Eze tablets with him wherever he went and he kept some on his bedside table. He also recalled that drinking Coca Cola or taking Enos (fruit salts) relieved his symptoms.
8. On 29 March 2004 Mr Baird consulted his general practitioner, Dr VB Malcolm, complaining of pains in the chest and arms brought on by exercise, which he explained eased when he burped. Following continuing chest discomfort associated with a lot of burping, he was reviewed by a cardiologist, Dr W Ryan, on 3 November 2004. Mr Baird was admitted to Knox Private Hospital on 2 April 2004 where he underwent coronary angiography on 5 April 2004, resulting in coronary artery stenting on 6 April 2004.
9. While Mr Baird was in hospital, the nursing notes indicate that he suffered indigestion type discomfort. The notes also indicate that he sat up burping. He was given antacids for this complaint. He was discharged on 9 April 2004 with a number of new medications, including half an aspirin tablet per day, in addition to the anti-inflammatory drug Orudis, which he was already taking.
10. On 2 June 2004 Mr Baird sought advice from Dr Malcolm regarding what is recorded as severe dyspepsia. Dr Malcolm referred Mr Baird to Dr Buttigieg, a gastroenterologist. Dr Buttigieg performed a gastroscopy at Ringwood Private Hospital on 15 June 2004. In his report to Dr Malcolm, Dr Buttigieg said:

At gastroscopy the oesophagus, stomach and both 1st and 2nd parts of the duodenum were well visualised. He had 3 very thin linear erosions along the lower 1cm of the oesophagus and less. Antral erosions were noted with surrounding gastritis in a linear fashion consistent with bile reflux. Biopsies were taken from the gastric antrum and body of the stomach. A few patchy erosions were also noted in the duodenal cap. The 2nd part of the duodenum was normal.
I have taken biopsies from the gastric antrum and body in order exclude H-Pylori.

11. The biopsy result from Mr Baird’s gastric antrum disclosed insignificant gastritis and helicobacter bacteria were not seen. Dr G Hocking, who provided the biopsy report, also said that no specified pathological abnormality was identified. There was no evidence of ulceration in the biopsies submitted. He concluded that Mr Baird’s gastric biopsies were within normal limits.
12. On 21 June 2004 Dr Buttigieg, after reviewing Mr Baird, wrote to Dr Malcolm again. He said:

I reviewed Jeff on 21/6/2004 and again discussed the endoscopic finding. Fortunately the gastric biopsy was normal with no evidence of H-Pylori. It appears his erosions and duodenitis is predominantly caused by the combination of Orudis and low dose Aspirin.

It is not clear from Dr Buttigieg’s report whether the erosions he referred to in his letter of 21 June 2004 was a reference to the antral (stomach) erosions alone, or also the erosions in the lower oesophagus. However, given that Dr Buttigieg’s report was in respect of the gastric biopsy, we understood the reference to the erosions to be the antral erosions Dr Buttigieg referred to in his 16 June 2004 report.

13. Dr Malcolm provided a medical report dated 4 February 2008 and he also gave oral evidence at the hearing of this matter. We were provided with a copy of his clinical records. In his report of 4 February 2008 Dr Malcolm diagnosed Mr Baird as having GORD. He said Mr Baird had upper abdominal pains with burping. This was first reported to him when he saw him on 29 March 2004. Dr Malcolm also reported that Mr Baird was troubled by persistent belching which has continued to the present day. In fact, it appears Mr Baird told Dr Malcolm that his constant belching embarrassed him and he deliberately avoided face-to-face encounters with people.
14. There is a significant entry on the request form for the gastroscopy dated 2 June 2004. Dr Malcolm wrote: severe dyspepsia. On Acimax x 2. not helped. There was also an entry in Dr Malcolm’s clinical notes dated 6 February 2007 recording: Reflux 30 years GORD all that time.
15. Under cross-examination Dr Malcolm confirmed that prior to being prescribed Pariet for his GORD, Mr Baird had been prescribed Acimax on about 6 April 2004. This was two months prior to his gastroscopy. Dr Malcolm confirmed that he prescribed Pariet because the Quick-Eze and Acimax had not adequately addressed Mr Baird’s problems. In particular, the Quick-Eze and Acimax did not resolve Mr Baird’s belching problem.
16. Mr Baird was examined by Dr A Wall, a gastroenterologist and general physician, on 24 October 2008. After that consultation, Dr Wall prepared a report dated 19 December 2008 and a supplementary report dated 14 February 2009. Dr Wall took a history from Mr Baird which included the fact that in or around September 1967, he suffered excessive burping followed by an acid taste in the mouth. Mr Baird relieved these symptoms by self-medicating with oral antacids, identified as Quick-Eze.
17. According to Dr Wall, Mr Baird described a burning retrosternal painful discomfort and a pain, not resembling that of typical reflux, across the centre of the chest and having more of a spasm quality. It is worth noting that this may well have been Dr Wall’s impression, rather than what was told to him by Mr Baird. In his cross-examination, Mr Baird was asked if he had told Dr Wall that he had chest spasms. He explained that he may have had spasms but these were in his back, not his chest. Otherwise, the history Mr Baird gave Dr Wall was consistent with that given to other medical practitioners.
18. It is also significant to note that Dr Wall, along with his instructions to provide a report, was given numerous medical reports prepared by psychiatrists, cardiologists, general practitioners and an occupational health physician. Dr Wall also had copies of both of Dr Buttigieg’s reports. Dr Wall noted in his report that Mr Baird’s pain at times was relieved by deep voluminous burping, while lesser burping would give much less satisfying relief. Dr Wall also reported an atypical observation for GORD. He said that Mr Baird did not suffer postural symptoms on stooping, lifting or lying down, although the burping which he experienced throughout the day also occurred when he was resting in bed prior to sleep.
19. Dr Wall reported that there was no doubt Dr Buttigieg described physical changes in Mr Baird consistent with acid injury to the oesophagus at the time of the gastroscopy.
20. Dr Wall explained that oesophageal erosions are principally caused by acid reflux damage. He noted that at the time of the gastroscopy, Mr Baird was taking Orudis, a potent anti-inflammatory agent and also a low dose of Aspirin. Dr Wall said that either of these substances may cause erosions of the lower oesophagus if their transit to the stomach is delayed and they linger in that area for more than the usual amount of time (which he explained was difficult to specify) and when Antral erosions are present in the stomach. Therefore, although Dr Wall seemed to accept that the objective evidence for GORD was the presence of erosions in the lower oesophagus, he opined that those erosions might not be attributable to GORD in Mr Baird’s case. Dr Wall concluded that the evidence was insufficient to establish Mr Baird suffered from GORD.
21. Dr Wall also reported that GORD patients may have associated aerophagia (swallowing of air) as part of their presentation, although aerophagia is not a part of GORD. According to Dr Wall, Mr Baird’s primary problem is aerophagia. His frequent belching causes his protective lower oesophageal sphincter valve to open allowing acid reflux to occur with subsequent symptoms. Although frequent belching may therefore produce frequent acid exposure, according Dr Wall, Mr Baird’s basic condition is not that of GORD but rather aerophagia.
22. Dr Wall’s supplementary report was prepared after he had the benefit of reading two reports prepared by Dr M G Korman, another gastroenterologist. It appears that Dr Wall was asked for that report in order to indicate whether aerophagia would, on its own, be regarded as a disease. In his report, Dr Wall said that typically, GORD and aerophagia with reflux overlap each other but, in the case of Mr Baird, because the acid component of his reflux appeared to be under control by medication, he discarded a diagnosis of GORD. Dr Wall referred to another medical practitioner’s view that he was seen to be gulping air which was in keeping with the diagnosis of aerophagia. Although that practitioner was not identified, it appears to be Dr Horsley, an occupational physician.
23. Dr Wall also said that patients with GORD and heartburn may swallow excessive amounts of saliva in an attempt to neutralise symptoms, and in doing so, may swallow air which has to be regurgitated. He said that this problem usually disappears once the acid is well controlled, but although he was of the view that Pariet controlled Mr Baird’s acid, the disabling belching continued. He also referred to the fact that Mr Baird had been a smoker, and that smokers were inclined to swallow air to excess at times and therefore had a greater tendency to belch than the general population.
24. Dr Korman is a specialist physician in gastroenterology. He interviewed Mr Baird and provided two medical reports, dated 6 November 2008 and 23 January 2009. Dr Korman also gave oral evidence at the hearing of this matter.
25. Dr Korman recorded that Mr Baird told him that on his return to Australia from Vietnam, he noticed two significant symptoms, belching and a burning discomfort under the lower aspect of his sternum (breast bone) and in the epigastrium (the region over the pit of the stomach). According to Mr Baird, he started to take Quick-Eze for the burning sensation (typical heartburn) which he experienced. He did not see a doctor but took advice from a pharmacist who suggested the antacid Quick-Eze. Quick-Eze apparently effectively controlled his symptoms and Mr Baird simply continued to regularly to use that antacid for many years. Dr Korman said that the symptoms described to him, heartburn and belching are typical of GORD.
26. Dr Korman referred to Dr Buttigieg’s report following Mr Baird’s gastroscopy and said:

it confirmed not only erosive oesophagitis (gastro-oesophageal reflux), but also gastric erosions, gastritis and mild duodenitis, all of which may have been related to a combination of Oridis [sic] and Aspirin.

Dr Korman said that:

The endoscopic findings are typical of patients who have a long history of gastro-oesophageal reflux.

As for Mr Baird’s belching, Dr Korman said that this was a common complicating factor with gastro-oesophageal reflux. He was uncertain of the mechanism but suggested it included air swallowing, probably triggered by minor discomfort in the epigastrium or lower oesophageal area. He said this leads to the reflex of swallowing air to try and ease the discomfort. Dr Korman also said there may be abnormalities in the effectiveness of the lower oesophageal sphincter. In his opinion, Mr Baird’s belching was in part due to air swallowing and in part due to gastro-oesophageal reflux. He was also certain that stressful situations played a significant role in triggering the symptom.

27. After reading Dr Wall’s opinion, Dr Korman provided a supplementary report disagreeing with Dr Wall’s diagnosis. In Dr Korman’s opinion, GORD remained primarily the clinical diagnosis and Mr Baird’s heartburn and belching were typical symptoms. The Tribunal questioned him about the three thin linear erosions in the lower one centimetre of Mr Baird’s oesophagus. Dr Korman said that those erosions confirmed the presence of GORD. When further cross-examined by Ms K Miller, who appeared for the Commission, about the three linear erosions, Dr Korman said:

If there are linear erosions, it is fairly diagnostic of GORD, more so than related to medication.

28. Dr Korman confirmed that Mr Baird had significant gastro-oesophageal reflux which contributes to his belching, and leads to his embarrassment, frustration and inability to work at the sort of jobs he would like to do.
29. Dr R Horsley, an occupational physician, provided two reports following two consultations with Mr Baird. In those reports she made some comments about Mr Baird’s GORD and aerophagia. However, in her oral evidence at the hearing, she declined to offer any expert opinion regarding these conditions as she said she was not qualified to do so but she did indicate that in the course of the consultations, Mr Baird belched frequently, probably every ten minutes. She said she found that disconcerting.
30. In our opinion, the correct diagnosis of Mr Baird’s condition is GORD. We prefer the expert opinion provided by Dr Korman to that of Dr Wall. There are a number of reasons for that.
31. The problem we have with Dr Wall’s evidence stems, in part, from the instructions given to him by the Commission’s solicitors when requesting the report. Attached to the letter of instructions were numerous documents, including reports from general practitioners and specialists. However, rather than simply allowing Dr Wall to read those opinions in full, the Commissioner’s solicitors provided a summary of what they considered to be the pertinent points made in the various reports. The problem which arises from this approach is that the reader of such a letter is more inclined to focus on the summary rather than the reports in their entirety.
32. This was clearly the case in this matter. Dr Wall, in his report, rather than referring directly to other medical opinions, referred specifically to the paragraphs summarising the various medical opinions set out in the solicitors’ letter. While we do not infer that the summaries made by the solicitors are deliberately slanted towards their views, almost invariably, such an approach will lead to the solicitors referring primarily to matters which support their client’s case. In our view, this has influenced Dr Wall’s decision.
33. Dr Wall’s opinion was essentially in agreement with Dr Korman, although he arrived at a different conclusion. He agreed that Mr Baird had GORD type symptoms and that the evidence of acid injury to the oesophagus was consistent with a diagnosis of GORD. However, where he differed from Dr Korman was that he focussed on Mr Baird”s belching; concluding that although GORD patients may have associated aerophagia as part of their presentation, aerophagia is not a part of GORD. He said that the need to belch to decompress stomach discomfort temporarily causes the protective lower oesophageal sphincter valve to open allowing acid reflux to occur.
34. Dr Wall focussed on Mr Baird’s belching and the effect this was claimed to have on his capacity for work because the summaries prepared by the Commission’s solicitors focussed on these aspects of Mr Baird’s symptoms. He was also clearly influenced by the summary of comments from the other medical practitioners, who are not gastroenterologists, regarding air swallowing. Although an expert in this field of medicine, and having examined Mr Baird himself, Dr Wall did not give any evidence of having observed air swallowing or, as we would have expected, belching during the examination. The comments made by other practitioners appear to have led Dr Wall to the conclusion that Mr Baird’s aerophagia was not connected to his reflux symptoms.
35. In fact, Dr Wall went further to make comments about whether aerophagia could be war related. He said in his first report:

I am not aware of a war related disability due to a functional symptom such as aerophagia and belching, and there may well be no attribution to war service in that psychiatric assessment does not appear to have put him into a compensable bracket of stress following that service.

With respect to Dr Wall, this is not an opinion which he is qualified to give. Whether a claimed injury is war-caused, as that term is defined in the VE Act, is a question for the Tribunal to answer after hearing and testing all of the evidence and making findings of fact.

36. The opinions of others regarding air swallowing appear to have led Dr Wall to speculate about the cause Mr Baird’s aerophagia. He referred to a number of possibilities, including oesophageal spasm, air swallowing due to smoking, obesity and cardiac disease. In his first report, Dr Wall initially said Mr Baird described a pain in addition to the pain he experienced under the lower aspect of the sternum and in the epigastrium. Dr Wall described that as a pain not resembling that of typical reflux but of a pain across the centre of the chest more of a spasm quality. However, when Mr Baird was asked in cross-examination whether he experienced any spasms, his answer was No. When asked if he told Dr Wall that he experienced spasms he said he may have but he did not experience spasms in the chest. He said he might have had occasional muscle spasms in his back, but not in his chest.
37. Nevertheless, Dr Wall developed his thesis stating:

...since his dominant oesophageal pain has not been that of burning reflux, but has been that of a spasm like pain often radiating through into the mid-back. Historically it appears this pain has been relieved by a profound belch, and we clinically recognise a syndrome of air swallowing with oesophageal spasm as independent from GORD.

38. Another example is Dr Wall’s reference to the taking of aspirin daily along with Orudis, a non-steroidal anti-inflammatory. Dr Buttigieg, in his second report of 21 June 2004, referred to Mr Baird’s erosions and duodenitis being predominantly caused by the combination of Orudis and low dose aspirin. In our opinion, that is a reference to the antral erosions rather than the very thin linear erosions in the lower one centimetre of his oesophagus. Dr Wall appeared to speculate that erosions of the lower oesophagus may be caused by drugs such as Orudis and aspirin if they linger in the lower oesophagus for more than the usual amount of time. However, Dr Wall did not offer an explanation for why those drugs might linger in the lower oesophagus for longer than is usually the case or, more importantly, why this may be so in Mr Baird’s case.
39. In his first report, Dr Wall referred to Dr Horsley’s report where she indicated a diagnosis other than GORD should be pursued. With respect to Dr Horsley, she is not an expert in this area and it is rather unusual for an expert to refer to a non-expert’s report and adopt its recommendations.
40. In that report, Dr Wall, when focusing on Mr Baird’s air swallowing, said:

The increase of air swallowing after his cardiac events in my opinion would underline the fact that he has a very anxious make-up which was not helped at all by the discovery of his significant cardiac disease ...

41. It is not clear where Dr Wall obtained evidence that Mr Baird has a very anxious make-up. Although Mr Baird believed his belching increased after his first myocardial infarction, and thought that the stress related to that event may have triggered belching, there was no evidence of Mr Baird having an anxious make-up.
42. Dr A P Sheehan, a psychiatrist, examined Mr Baird on 28 July 1998. He found no evidence of any significant psychiatric impairment or disability. He did not find that Mr Baird suffered from generalised anxiety disorder. Dr L Fernando, also a psychiatrist, examined Mr Baird on 6 January 1999. Although Dr Fernando’s medical notes refer to Dr Malcolm suggesting that Mr Baird suffered from a mild anxiety state, Dr Fernando reported that Mr Baird did not suffer from an anxiety disorder. In fact, the Commission’s solicitors in their letter to Dr Wall refer to Dr Fernando’s notes but, incorrectly, quote Dr Fernando’s notes as reporting no anxiety.
43. Dr Horsley did comment that in her view, Mr Baird’s belching was likely to be a consequence of an anxiety-based condition resulting from habitual air swallowing. Again, with respect to Dr Horsley, she is not qualified to provide that opinion. Despite that, the Commission’s solicitors quoted Dr Horsley’s opinion and it appears that Dr Wall adopted it. That opinion is contrary to the evidence of the two psychiatrists who have examined Mr Baird. Again, this highlights the problem of solicitors providing summaries of reports in their instructions to an expert in the form in which it was done in this matter. The form of instruction given by solicitors for the Commission clearly has a tendency to erode the independence of the expert. That appears to have happened to some degree in this case.
44. Therefore, on the balance of probability, we find that Mr Baird does suffer from GORD.

CLINICAL ONSET

45. The Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, at [23], described the clinical onset of a disease in the following way:

... we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

That meaning of clinical onset seems to have been accepted by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.

46. The Full Court of the Federal Court (Heerey, Moore and Kiefel JJ) in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 explained that while Statements of Principles (SoPs) are directed towards causation, the means of establishing the necessary link in the relevant SoP between the disease and war service for the purpose of establishing a reasonable hypothesis is to require that the symptoms or features of the disease are revealed within the timeframe expressed in the SoP. The Court said that this is intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.
47. The relevant SoP dealing with GORD is Instrument No 11 of 2005. This SoP came into effect on 2 April 2005, immediately prior to the Commission’s original decision. Clause 2(b) defines gastro-oesophageal reflux disease in the following way:

(b) For the purposes of this Statement of Principles, “gastro-oesophageal reflux disease” means a chronic clinical condition involving the regurgitation of gastro-duodenal contents into the oesophagus together with resultant chronic symptomatic or histological evidence of oesophageal inflammation.

48. Mr Baird’s evidence regarding his symptoms has been consistent. In his written statement he said that a short time after his discharge, he experienced burping and a burning sensation in his chest. Those symptoms worsened over the years and, currently, the burping is a significant problem although the burning sensation is not as severe as it used to be. He treated the symptoms with Quick-Eze until he was diagnosed with GORD by Dr Malcolm in 2004. Dr Korman described Mr Baird’s description of his symptoms, namely heartburn and belching, as typical of gastro-oesophageal reflux. Mr Baird told Dr Korman and Dr Wall that those symptoms became apparent soon after his return to Australia. In his oral evidence, Mr Baird said this was shortly after November 1967.
49. Ms Miller submitted that, if Mr Baird suffered from GORD, there were two possible dates which could be identified as the point of its clinical onset. The first date was in May 2005 when Dr Malcolm provided a diagnostic report to the Department of Veterans’ Affairs confirming the diagnosis on clinical grounds and/or by relevant investigation. According to Ms Miller, there is a distinction between gastric reflux by itself and GORD. Under cross-examination, Dr Korman agreed that reflux was an early symptom of GORD, producing acid material which moves from the stomach to the oesophagus. Ms Miller submitted that a diagnosis of GORD required objective evidence, usually by way of a gastroscopy identifying erosion in the oesophagus. Alternatively, she submitted that if objective evidence was not required, one needed to examine the treatment over a period of years relevant to establishing a diagnosis. She suggested that might be between 2000 and 2004.
50. We do not accept Ms Miller’s submissions. What the SoP requires to be established is the clinical onset of the disease, not confirmation that it exists. Dr King, who gave expert evidence in Robertson’s case, described the expression clinical onset this way:

Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph. I think perhaps a good example is the patient who is perfectly well and comes in and you find that they have high blood pressure, even though they have got no symptoms of it, the clinical onset of their high blood pressure is when the doctor discovers it, although they may have had it for years and years and years before.

51. The Court in Lees’ case referred to the description of the disease in the SoP when approaching the question of clinical onset. Following that approach, clinical onset is established when Mr Baird experienced a chronic clinical condition involving the regurgitation of gastro-duodenal contents into the oesophagus with resultant chronic symptomatic or histological evidence of oesophageal inflammation. By this, we understand that the condition needs to be long-standing, and there must be regurgitation of stomach contents, including acid, into the oesophagus, which results in the person suffering what is commonly described as heartburn. There is nothing in the SoP which suggests that objective evidence of erosions in the oesophagus need to be established before it can be said a person has GORD. While no doubt that procedure would confirm the diagnosis, establishment of clinical onset does not require such objective confirmation.
52. Mr Baird began to suffer heartburn and reflux in about 1968. According to Mr Baird, and this evidence was uncontroverted, he has continued to suffer reflux and heartburn consistently since 1968, treating the condition by using Quick-Eze, an antacid. Although the Quick-Eze provided rapid temporary relief, Mr Baird’s evidence was that the reflux continued to recur regularly, such that he always carried Quick-Eze tablets with him. In our opinion, certainly by 1969 or 1970, if Mr Baird had been examined by a doctor, he would have been diagnosed with GORD. Accordingly, we find that the clinical onset of Mr Baird’s GORD was in about 1969 or 1970.

WAS MR BAIRD’S GORD WAR-CAUSED?

53. Where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
54. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):

... 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:
...
(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; ...

55. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7, VE Act).
56. Mr Baird contended that his smoking of tobacco and consumption of alcohol were responsible for him developing GORD. He contended that his smoking of cigarettes and alcohol consumption can be attributed to his operational service.
57. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437, where Barwick CJ said, at 443:

Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". ...

58. Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:

... these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.

59. Toohey J said, in relation to the 1920 Repatriation Act, at 72:

In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.

60. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused, unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Mr Baird rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his GORD
61. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth.
62. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP, determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
63. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:

1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the 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. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

HYPOTHESIS

64. Mr Baird contended that his GORD is related to the smoking of cigarettes and his consumption of alcohol, both of which increased significantly during his tour in Vietnam. According to Mr Baird, he was not a smoker prior to his posting to Vietnam. He started smoking in Vietnam. He said that cigarettes were very cheap, about one dollar per carton. He believed that they eased the general apprehension that he felt while in the war zone. Mr Baird was a driver, frequently driving trucks in convoy. He said that to relieve the stress he would smoke while driving or when the trucks would stop for a rest break.
65. As for drinking alcohol, Mr Baird said that he did not drink alcohol before joining the army, although he started drinking alcohol prior to his posting to Vietnam. However, once in Vietnam, he said his drinking increased significantly because there was nothing else to do. He said that when the trucks were put away at about 4.00pm, there was nothing else to do but to go to the wet canteen and drink alcohol. If he went to see a movie in the evening, he would also drink alcohol and smoke cigarettes. He said that that’s what all of my mates were doing in Vietnam and he simply went along with it.
66. Mr Baird said that while in Vietnam he drank as much alcohol as he could, whenever he could. He continued to drink heavily after his discharge from the army, although he denied he had an alcohol problem. In its SoP dealing with GORD, the RMA has indicated that there is a causal link between smoking, excessive alcohol consumption and GORD. Therefore, we are satisfied that the material before us does point to a hypothesis connecting Mr Baird’s GORD with his operational service.

SOP IN FORCE

67. The RMA has made an SoP concerning GORD. The current SoP is Instrument No 11 of 2005 which came into effect on 13 April 2005. It remains the current SoP for GORD.

IS THE HYPOTHESIS REASONABLE?

68. The hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. In other words, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person’s service. The factors set out in Clause 5 of the SoP relied on by Mr Baird are:

...

(c) smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastro-oesophageal reflux disease; or

(d) consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; or ...

69. The expression relevant service is defined in the SoP as operational service under the VE Act.
70. Mr Baird completed a report on his cigarette smoking in March 2005. In that report he stated he commenced smoking on a regular basis when he was in Vietnam in 1967. He said that he smoked at least one packet per day and sometimes up to two packets per day. Mr Baird also said that he tried to stop smoking permanently a number of times without success, before finally giving up cigarette smoking in about 1995.
71. In his oral evidence Mr Baird said that he was a non-smoker prior to going to Vietnam but when he started smoking, he smoked about 20 cigarettes per day, which was then a packet. He said he ceased smoking in about mid-1990s. As for alcohol consumption, Mr Baird said that he did not drink at all prior to joining the army. Before his Vietnam tour, Mr Baird said he drank only beer on no more than about three occasions per week and on those occasions he consumed no more than four or five seven-ounce glasses of beer. He did not recall drinking alcohol to the point of intoxication prior to going to Vietnam. However, in Vietnam, he said he drank as much alcohol as he could, when he could.
72. Mr Baird said that after being discharged from the army he drank every night after work at the hotel, frequently to the point of intoxication. He estimated that immediately after Vietnam, he was consuming six 10-ounce glasses of beer each evening after work. He said on weekends he would drink more heavily, consuming between 12 and 24 small cans of beer over a weekend. He said that he has continued to consume alcohol at about the same rate until the present day, his current consumption being approximately six to eight cans of beer per day and a bottle of wine shared with his wife per day.
73. Quite clearly, Mr Baird’s hypothesis satisfies both Factors 5(c) and 5(d) of the SoP. Therefore, it is a reasonable one.

WAS MR BAIRD’S GORD WAR-CAUSED?

74. It is at this point in the analysis that we are required to make findings of fact from the material before us in support of Mr Baird’s claim. We are required to find in favour of Mr Baird unless we are satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved, either by proof beyond reasonable doubt that a fact, or a fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact inconsistent with the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 464 at 567).
75. Ms Miller, quite correctly in our opinion, conceded that because the Commission has accepted Mr Baird’s ischaemic heart disease as a war-caused condition and Mr Baird relied upon his service smoking to establish the connection between his relevant service and ischaemic heart disease, the Commission did not dispute the causal relationship between Mr Baird’s operational service and his smoking. Therefore, for the purposes of this application, we find that Mr Baird’s smoking is causally related to his operational service. However, that by itself does not satisfy Factor 5(c) of the SoP.
76. Although Ms Miller submitted that Mr Baird had stopped smoking by 2000, and that the clinical onset of GORD, if we were to agree with that diagnosis, was either in 2000 or 2004, the evidence from various medical records and from Mr Baird at the hearing of this matter was that he quit smoking in about the mid-1990s. Therefore, Ms Miller submitted, Mr Baird could not satisfy Factor 5(c) of the SoP.
77. However, because we have found that the clinical onset of Mr Baird’s GORD was in about 1969 or 1970 that submission falls away. Mr Baird’s unwavering evidence was that he commenced smoking when he went to Vietnam. He also said that although he had tried to give up smoking numerous times, he finally ceased smoking in the mid-1990s. Although the clinical records of Dr Bartlett dated 22 July 1986 indicate he told Dr Bartlett he did not smoke, that is not necessarily inconsistent with Mr Baird’s evidence. When asked about this in cross-examination, Mr Baird simply said he could not recall telling Dr Bartlett that, although it might have been correct at that time.
78. The clinical records of Dr Fernando dated 6 January 1999 record that Mr Baird said he smoked a pack of cigarettes a day in Vietnam and gave up 20 years ago. When asked about that, Mr Baird simply said yes. Again, that is not inconsistent with Mr Baird having attempted to give up smoking on numerous occasions. Dr Ryan, who saw Mr Baird on 19 April 2004, noted that he had not smoked for 35 years. When asked about this Mr Baird simply said that he was not sure why he told Dr Ryan that but it could have been because that’s what he wanted to hear. Again, it is not necessarily inconsistent with Mr Baird’s evidence.
79. The same can be said of the clinical notes of Knox Private Hospital, made in 2005, recording that Mr Baird ceased smoking 30 years ago. Regardless of whether or not Mr Baird’s answers to the various medical practitioners were correct, there was no evidence that he was not smoking in 1970. Accordingly, these facts are not inconsistent with his hypothesis.
80. On the evidence before us regarding Mr Baird’s smoking, we cannot be satisfied beyond reasonable doubt that Mr Baird was not smoking at least 10 cigarettes per day for a continuous period of at least six months immediately before the clinical onset of GORD. Therefore, we find that Mr Baird’s GORD was war-caused as that expression is defined in the VE Act.
81. Although it is not necessary for us to examine whether Mr Baird’s alcohol consumption satisfies Factor 5(d), for the sake of completeness, we have done so.
82. Mr Baird’s evidence was that before being conscripted into the army, he did not consume any alcohol at all. After his conscription but prior to his posting to Vietnam, he consumed beer only on no more than three occasions per week, and on those occasions he consumed four or five seven-ounce glasses of beer.
83. However, while in Vietnam, his drinking increased substantially. In the hearing before the VRB, Mr Baird’s advocate said that Mr Baird drank six to 10 stubbies a day and this continued throughout his service. At the hearing before us, he said that he continued drinking after his discharge and consumed approximately six pots of beer each evening after work before catching the train home. He also said that his current alcohol consumption is approximately six to eight cans (375ml) of beer per day and one bottle of wine (shared with his wife) per day.
84. Our information, from the Victorian Government Health Information website, discloses that 285 millilitres of full strength beer contains 10 grams of alcohol and is regarded as one standard drink. In other words, every 28.5 millilitres of full strength beer contains one gram of alcohol. On the basis that Mr Baird was consuming full strength beer, which is what was commonly available in the 1960s and 1970s, and each can contained 375 millilitres of beer, Mr Baird was consuming between 552 grams and 736 grams of alcohol per week. That does not account for the wine he said he also consumed.
85. On Mr Baird’s evidence, this level of consumption continued between 1967 and 1970. We have no reason to doubt the accuracy of Mr Baird’s evidence regarding his alcohol consumption, which remains high to this very day. It has been commented upon by a number of medical practitioners who have examined him. Therefore, we find that Mr Baird does satisfy Factor 5(d) dealing with the consumption of alcohol in the SoP concerning GORD.
86. Ms Miller submitted that Mr Baird’s service in Vietnam was not the cause of his drinking heavily but rather was merely the setting in which that activity occurred. She said that the evidence was that Mr Baird was not drinking because of any apprehension or fear of being in Vietnam. Ms Miller referred us to the decision of the Full Court of the Federal Court (Davies, Burchett and Einfield JJ) in Repatriation Commission v Tuite [1993] FCA 39; (1993) 29 ALD 609. In that case, Davies J, who agreed with the reasons given by Burchett and Einfield JJ added the following at 611:

Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. ...

87. Burchett and Einfield JJ made it clear that not everything which occurs while a serviceman is in camp is necessarily attributed to his war service. However, they said that in Mr Tuite’s case, the circumstances and incidence of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotine addiction (at p 614).
88. Mr Baird’s evidence about his drinking habits was frank. He said that while there was no single event which caused him any significant concern, there was a sense of general apprehension when convoys were travelling between Vung Tau and Nui Dat. He said that the typical day finished around 4.00pm and when the trucks were put away there was nothing else to do but to go and have a beer, which is what his fellow soldiers would do. If there was a movie to see in the evening, they would drink in the course of watching that movie. There was no evidence which contradicted Mr Baird’s account of his life in Vung Tau after the working day had been completed.
89. Therefore, we have no hesitation in finding that Mr Baird’s service in Vietnam, including his confinement to the camp at Vung Tau in circumstances where many of the soldiers would go and drink beer at the end of the day, had a causal influence upon his increased consumption of alcohol. It was the circumstances of confinement in a camp in a war zone and the nature of the work which caused the increase in Mr Baird’s alcohol consumption rather than it simply being the setting in which that activity occurred.
90. Ms Miller also submitted that Mr Baird’s service in Vietnam could not be the cause of his continued excessive alcohol consumption after leaving the service. Although Mr Baird indicated that he drank a lot in Vietnam because alcohol was cheap, when he was asked why he continued drinking similar quantities of beer after his return to Australia where the beer was more expensive, he said he simply enjoyed drinking and he was earning more and therefore could afford it. In fact, Mr Baird’s evidence was that he continued the habit of drinking beer every night after work that he had developed in Vietnam. In our opinion, Mr Baird simply continued the habit he developed while in Vietnam. There was no evidence to the contrary.
91. Therefore, although we have found that the clinical onset of Mr Baird’s GORD was in about 1969 or 1970, within two years after his discharge from the army, we find that there is a causal connection between Mr Baird’s continued drinking habits and his operational service in Vietnam. We are therefore unable to be satisfied beyond reasonable doubt that Mr Baird’s GORD is not war-caused as a consequence of his excessive alcohol consumption.
92. It follows that we would set aside the VRB decision made on 12 June 2007 regarding GORD and instead we find that Mr Baird’s GORD was war-caused.

INTERMEDIATE OR SPECIAL RATE OF PENSION

93. In accordance with the decision of the VRB made on 12 June 2007, Mr Baird’s rate of pension was 100 per cent of the general rate commencing on 18 May 2006. On that date, Mr Baird lodged an application with the Department of Veterans’ Affairs for an increase in the disability pension, claiming that he was entitled to the intermediate or special rate of pension under Part II Division 4 of the VE Act.
94. An application for an increase in pension may be made by a veteran who is receiving a pension under Part II of the VE Act (s 15(1)). The basis for such an application must be that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed.
95. Where an application is submitted to the Commission, s 19(5C) of the VE Act provides that the Commission must assess:

(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and
(b) subject to subsection (6), the rate at which the pension is payable.

96. Section 19(6) of the VE Act provides that where a pension is payable sometime during the assessment period at the rate provided by s 23 or s 24, then, subject to s 24A (which is not applicable in this case), the rate at which the pension is payable must not be lower than the rate provided by whichever of the sections applied, or applied most recently, during the assessment period.
97. The assessment period is defined in s 19(9) of the VE Act and:

in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.

The application day is also defined in s 19(9) and it means:

(a) the day on which the claim or application was received at an office of the Department in Australia; or
(b) if subsection 20(2), 20(2B) or 21(2) applies to the person—the day on which the claim or application referred to in paragraph 20(2)(a), 20(2B)(a) or 21(2)(a) was so received.

98. Section 21(2) relevantly provides:

(2) Where:
(a) a person makes an application in writing of a kind referred to in subsection 15(1) or (2), but otherwise than in accordance with a form approved for the purposes of paragraph 15(3)(a);
(b) the person subsequently makes an application of a kind so referred to in accordance with a form so approved:

(i) at a time when the person had not been notified by the Department, in writing, that it would be necessary to make the application in accordance with a form so approved; or

(ii) within 3 months after the person had been so notified; and

(c) an increased pension, or a pension, is granted to the person upon consideration of that application in accordance with a form so approved;
the Commission may, subject to this Act, specify as a date that a determination of an application made under section 15 takes effect, the date on which the application referred to in paragraph (a) was received at an office of the Department in Australia.

99. As Mr Baird lodged an application in the approved form on 27 January 2006 for an increase in his disability pension regarding previously accepted disabilities that is the earliest date from which the special rate pension can be paid to him. In addition, the assessment period as far as Mr Baird’s claim is concerned is from 27 January 2006 to the present date (see Peacock v Repatriation Commission (2004) 40 AAR 143).
100. Mr Baird’s principal claim is that he is entitled to the special rate of disability pension or, alternatively, that he is entitled to the intermediate rate of pension. The relevant sections of the VE Act are ss 23 and s 24.
101. Sections 23 and 24 of the VE Act may apply to a veteran if:
     • (a) the veteran has made a claim under s 15 for an increase in the rate of pension that he or she is receiving;
     • (b) the veteran has not yet turned 65 when the claim or application was made; and
     • (c) the degree of incapacity of the veteran from war-caused injury or war-caused disease or both has been determined to be at least 70 per cent.

There was no issue about the fact that Mr Baird satisfied these criteria.

102. To qualify for a pension under s 23 of the VE Act, a veteran’s incapacity from war-caused injury or war-caused disease, or both, must by itself render the veteran incapable of undertaking remunerative work otherwise than on a part time basis or intermittently (s 23(b)). Section 24(b), which applies to the special rate of pension, requires that the veteran be totally and permanently incapacitated. That means the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as to, by itself alone, render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
103. Sections 23(1)(c) and 24(1)(c) are in identical terms. They provide:

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity;

104. If a veteran is entitled to special rate of pension then the veteran is not entitled to the intermediate rate (s 23(1)(d)).
105. In determining, for the purposes of ss 23(1)(b) or 24(1)(b) of the VE Act, whether the veteran is incapable of undertaking remunerative work, we are required to have regard to only the following matters:
     • (a) the vocational, trade and professional skills, qualifications and experience of the veterans;
     • (b) the kinds of remunerative work which the person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
     • (c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b) (s 28).

REMUNERATIVE WORK

106. Mr Baird completed the equivalent of year 11 of secondary schooling. After leaving school, he worked as a clerk with an insurance company and subsequently became an inspector with that company. He was working with the insurance company when he was called up for National Service. After his discharge, he resumed his employment with the company for approximately 12 months.
107. After ceasing work with the insurance company, Mr Baird worked as a salesman for Café Bar for about 12 months and then for a stock broker for about two to three years. He then obtained employment as a real estate agent, subsequently setting up his own real estate agency. He has essentially been self-employed since about 1973, except for a period of about two to four years when he worked as a salesman for a company called Phoneware/Techniplan Telecontrol Pty Ltd. (Techniplan).
108. Mr Baird gave up his real estate agency when he suffered his first heart attack in April 2004. He eventually purchased the business of Techniplan and he resumed work as a real estate agent, operating both businesses. Mr Baird was also developing a website designed to assist vendors of small businesses negotiating sales of their businesses to prospective purchasers. Mr Baird said that he established the website because of the difficulties he experienced in face-to-face contact as a result of his belching.
109. Mr Baird also operated a mattress sales business briefly. A friend of his was dealing with mattresses designed for caravans and campervan trailers when it got into financial difficulty. Mr Baird essentially took over that business in about 2005 but that business only lasted for a couple of months. That business involved face-to-face selling.
110. The meaning of the expression remunerative work was dealt with by the Full Court of the Federal Court in Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at [36]. The Court said:

... The requirement to consider “remunerative work that the veteran was undertaking” does not mean a particular job with a particular employer but the substantive remunerative work that the veteran had undertaken in the past. ...

111. It is apparent from the evidence that Mr Baird has had a number of different kinds of remunerative employment since his discharge from the army. However, we think it is fair to say that the substantive remunerative work which Mr Baird has undertaken since his discharge was sales work and self-employed entrepreneurial activities. His work included activities which involve face-to-face interaction with customers and other people as well as activities which are conducted over the internet and do not involve face-to-face contact. He has worked as a sole trader at times and also has had employees work for him in his businesses. Under cross-examination, Mr Baird said that he continued to earn a small sum from Techniplan in which he continues to have an interest.

CAUSE AND EXTENT OF WORK INCAPACITY

112. To qualify for the disability pension at the intermediate rate, Mr Baird must satisfy ss 23(1)(b) and 23(1)(c). To qualify for the disability pension at the special rate, Mr Baird must satisfy ss 24(1)(b) and 24(1)(c) of the VE Act. That is, Mr Baird’s incapacity from a war-caused injury or war-caused disease must, of itself alone, render him incapable of undertaking remunerative work other than on a part-time basis or intermittently (for the intermediate rate); or for periods aggregating no more than eight hours per week (for the special rate). The war-caused injury or war-caused disease alone must prevent him from continuing to undertake the remunerative work that he was previously undertaking; and, as a result, he must be suffering a loss of salary or wages, or of earnings on his own account that he would not be suffering if he were free from his incapacity.
113. If there are any other reasons which limit or prevent Mr Baird from continuing to engage in remunerative work, he cannot satisfy the requirements of s 23(1)(b) or (c) or s 24(1)(b) or (c). In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5, the Full Court of the Federal Court said that not only must the veteran be prevented by reason of a war-caused injury or war-caused disease from continuing to undertake remunerative work but the war-caused injury or war-caused disease must be the only factor preventing him from continuing him from continuing to undertake that work.
114. As Nicholson J explained in Forbes v Repatriation Commission (1999) 58 ALD 394, when referring to the test in Flentjar:

[39] ... The question whether the veteran by reason of the war-caused condition “alone” has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. ...
[40] As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. ...

115. It should therefore be apparent that if any factors other than Mr Baird’s accepted medical conditions prevent him from continuing to undertake the remunerative work that he was undertaking, he will not be eligible for a pension at either the intermediate or special rate. The assessment of Mr Baird’s capacity to undertake remunerative work must relate to the assessment period in accordance with s 19(6) of the VE Act. That is, between 10 May 2006 and the present date.
116. We must also bear in mind s 23(2) of the VE Act in respect of the claim for the intermediate pension. It provides that s 23(1)(b) will not be taken to be fulfilled in respect of the veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

117. As for Mr Baird’s claim for the special rate of pension, we must bear in mind the provisions set out in s 24(2)(a) of the VE Act. For the purpose of s 24(1)(c), a veteran who is incapacitated from a war-caused injury or war-caused disease shall not to be taken to be suffering a loss of salary or wages or of earnings on his or her own account by reason of that incapacity:

24(2)(a) ...
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; ...

118. Mr Baird suffered a second myocardial infarction (heart attack) in April 2005 and, following that episode, he finally ceased work. Mr Baird’s evidence was that he conferred with Dr Malcolm about retirement and, although he said Dr Malcolm did not suggest that course, he agreed with Mr Baird when he suggested it. Mr Baird said that he was concerned about his health and the risk of suffering a further heart attack. That, combined with his belching problems, caused him to decide that he could not longer work. When it was put to Mr Baird in re-examination that if it were not for his second heart attack and his burping problem he would still be working, Mr Baird responded that if it were not for the second heart attack, he would have continued working but he could cope with the belching.
119. The first issue with which we must deal is that raised by s 23(1)(b) and/or s 24(1)(b) regarding the level and nature of Mr Baird’s war-caused incapacity. A finding in favour of Mr Baird under these subsections of the VE Act is only the first step in a three step process. As Tamberlin J said in Wright v Repatriation Commission [2005] FCA 7 at [15]:

... This is because a finding that an applicant satisfies subsection s 24(1)(b) of the Act goes to the nature and level of incapacity by which ability to undertake remunerative work is to be assessed. If the character and effect of the incapacity is such as to render the veteran incapable of undertaking remunerative work for a period aggregating more than eight hours per week then condition 24(1)(b) is satisfied. The next and distinct step is to proceed to consider the requirements of s 24(1)(c) which is concerned with the causation of the veteran’s inability to continue with the remunerative work that he or she was previously undertaking. The two findings are separate and complementary. They pose different hurdles which the veteran must surmount. ...

120. The third step is that posed by the second limb of the subsections referred to above: that is, the evidence must disclose that Mr Baird was suffering a loss of salary or wages or of earnings on his own account, which he would not be suffering if he were free from his war-caused incapacity.
121. Dr Malcolm provided a report to the Department of Veterans’ Affairs on 24 May 2005. In that report, he said that Mr Baird’s constant belching has become such that he was embarrassed by it and he seeks to avoid face-to-face encounters with people.

This makes it difficult for him to interview clients or prospective clients as his job is Sales. He gets embarrassed, and then gets angry, and feels he cannot do his job properly.

Referring only to his belching, Dr Malcolm said that Mr Baird was unable to do his usual job and should retire due to that medical disability.

122. In a report dated 4 February 2008, Dr Malcolm said Mr Baird had a 60 per cent blocking of the left anterior descending coronary artery, which was stented with a good result, and he has had no other cardiac events. Dr Malcolm again reported the difficulties Mr Baird experienced in face-to-face encounters with people because of his belching. In his opinion, Mr Baird should retire because he was unable to do his usual job. In his view, Mr Baird’s GORD and heart problems prevented him from undertaking remunerative work for periods aggregating more than eight hours per week.
123. When it was put to Dr Malcolm that Dr Horsley, an occupational physician, said that Mr Baird’s ischaemic heart disease did not affect his capacity for work in sales, Dr Malcolm agreed and said Mr Baird’s ischaemic heart disease was stable and did not constitute a barrier to Mr Baird conducting a business. Ms Miller put to Dr Malcolm in cross-examination that if Mr Baird was working in a business from home, using the telephone, fax and email, his hours of work would not be limited. Dr Malcolm said there should not be any restriction in that case, indicating that Mr Baird could work 38 to 40 hours or, reasonable hours.
124. In his report dated 6 November 2008 Dr Korman reported that Mr Baird told him that he gave up his work in around April 2004 when he suffered his first heart attack and that he was convinced to stop work after his second heart attack in April 2005. Dr Korman did not offer an opinion about the effect of his GORD on Mr Baird’s capacity to work.
125. Dr Horsley examined Mr Baird on two occasions prior to providing a report dated 22 May 2008. Dr Horsley has practised as an occupational physician for about 19 years.
126. After reviewing many medical reports and conducting an examination, Dr Horsley said she believed Mr Baird’s primary disability was his regular and chronic belching. She said this occurred every 10 minutes or so and was disconcerting to any other party involved in conversation with Mr Baird. She said:

I could imagine that this would seriously impact upon any interaction with customers.

127. Although Dr Horsley noted Mr Baird had not had a psychiatric assessment, that is incorrect. Dr A Sheehan saw Mr Baird on 14 September 1998. Mr Baird was also examined by Dr Fernando in January 1999. Dr Fernando found that he suffered no anxiety disorder and Dr Sheehan said he could find no evidence of any significant psychiatric impairment or disability on either Mr Baird’s history or examination. He did not consider Mr Baird suffered from a generalised anxiety disorder. Therefore, although Dr Horsley opined that Mr Baird’s gastric condition was anxiety based, resulting from habitual air swallowing, that opinion is not supported by the psychiatric evidence or by the evidence of Dr Korman. Dr Wall did not comment on whether he observed any air swallowing or anxiety.
128. Although Dr Horsley said that in theory, Mr Baird would be able to work in a telephone-based environment with no face-to-face contact with customers, where he could mask his belching, she concluded:

I believe that he has realistically come to the end of his working life. I believe that the primary barrier to return to work is his repetitive belching.

Dr Horsley added that this is a non-accepted condition. That is because Dr Horsley was given, in her instructions, a list of accepted war-caused disabilities and those disabilities which were not accepted as war-caused. GORD of course was stated to be non-accepted. We are concerned that Dr Horsley’s opinion regarding the effect of belching on his capacity to work may have been influenced by the fact that she was told this condition was not accepted as war-caused. While it was clearly a factor which, on Mr Baird’s evidence, influenced his decision to cease working, more significant was his second heart attack which was primarily why he made that decision. He said he could cope with the belching.

129. We have now found that Mr Baird’s GORD was war-caused. Dr Horsley’s assumption that Mr Baird’s GORD was not war-caused, we believe, led her to state that his war-caused conditions alone did not prevent him from working more than eight or twenty hours per week. Again, we apprehend that Dr Horsley was influenced by the form in which she received instructions to prepare a report for the Commission. This had the effect of undermining her independence. Given Mr Baird’s evidence about the effect of belching on his ability to continue working, Dr Horsley’s opinion regarding Mr Baird’s work capacity cannot be sustained, at least on the basis of his belching problem.
130. As for Mr Baird’s ischaemic heart disease, Dr Horsley thought that it was stable and, because he primarily worked in a managerial/supervisory/self-employed role, had no specific impact on the nature of his capacity for work. Dr Malcolm, who said in cross-examination that Mr Baird’s ischaemic heart disease was stable and presented no barrier to continuing to operate a business, supported that opinion. Dr Horsley considered Mr Baird’s physical capacity to be considerable because he could ride a bicycle up to 20 kilometres and walk up to five and a half to six kilometres. Dr Horsley was also of the opinion that Mr Baird’s bilateral sensorineural hearing loss and bilateral tinnitus had no specific impact upon his capacity to work.
131. Mr Baird readily indicated he was still involved with Techniplan, earning up to $10,000 per year from that business. He was also receiving some $1,000 to $2,000 per year in commissions from the mattress enterprise which he took over. However, he said his involvement in those businesses was minimal. In fact, he told Dr Horsley that his involvement in Techniplan took about one hour per week.
132. The evidence indicates to us that Mr Baird continues to have a level of physical capacity which would enable him to work in a relatively sedentary occupation. Having regard to Mr Baird’s vocational, trade and professional skills and qualifications, his work would essentially involve face-to-face and telephone contact with clients, to sell goods or obtain contracts to install public address systems for Techniplan.
133. Although Dr Horsley said that, realistically, Mr Baird’s working life had come to an end, that opinion was based solely on Mr Baird’s belching problem. However, Mr Baird frankly admitted that he could cope with his belching problem. Ms Miller suggested to Mr Baird that he could continue with an internet business or telephone business as a self-employed person. However, as Mr Baird said, his essential qualification was making sales and at some point in the course of those sales, there needed to be face-to-face interaction. Although he had established a website for selling businesses, he was never able to get sufficient participants to convert that into a viable business. In fact, he never reached the point where he was able to earn from that business.
134. We therefore find that Mr Baird is not totally and permanently incapacitated, nor is he incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently, due solely to any war-caused injury or disease. In other words, he does not satisfy the requisite level of incapacity set out in ss 23(1)(b) or 24(1)(b) of the VE Act. This finding would dispose of this part of Mr Baird’s claim. However, if we are wrong about Mr Baird’s level of incapacity for work, we would nevertheless find, for the reasons set out below, that Mr Baird is not prevented from continuing to undertake remunerative work solely because of a war-caused injury or disease.

THE CAUSE OF MR BAIRD’S INABILITY TO CONTINUE REMUNERATIVE WORK

135. We must determine whether Mr Baird’s war-caused diseases, by themselves alone, prevent him from continuing to undertake remunerative work that he was undertaking; and whether he is therefore suffering a loss of salary or wages or earnings on his own account that he would not be suffering if he were free from his incapacities (ss 23(1)(c) and 24(1)(c)),
136. The first problem Mr Baird faces is that he continues to be engaged in remunerative work which he was undertaking, even if his remuneration is minimal and the hours he spends at that work are also minimal. The word prevent means:
     • (1) to stop someone from doing something, or something from happening; to hinder.
     • (2) to stop the occurrence of something beforehand or to make it impossible; to avert. (Chambers 21st Century Dictionary).

Quite clearly, Mr Baird has not ceased to undertake remunerative work he was undertaking due to his war-caused ischaemic heart disease or GORD. He has merely reduced his workload.

137. Furthermore, the evidence was that Mr Baird is not prevented from continuing to undertake the remunerative work he was undertaking. He decided to substantially reduce his work load because of his concerns following his second heart attack. However, the medical evidence was that excellent results were achieved with stenting in 2004 and 2006. He has retained considerable physical capacity. His decision to retire from much of his remunerative work was not based on medical advice to do so. Therefore, we must find that Mr Baird cannot satisfy the essential eligibility criterion set out in ss 23(1)(c) or 24(1)(c) of the VE Act. It follows that Mr Baird cannot qualify for the intermediate or special rate of pension

CONCLUSION

138. As we have explained above, we are of the opinion that Mr Baird does suffer from GORD. In our view, the evidence establishes that his belching problems are primarily part of that condition. That is because we prefer the opinion of Dr Korman over that of Dr Wall. Therefore, we find that the VRB decision made on 12 June 2007 regarding Mr Baird’s GORD was incorrect and we set aside that decision and instead determine that Mr Baird’s GORD was war-caused.
139. We have found that Mr Baird’s GORD and ischaemic heart disease do not render him incapable of undertaking remunerative work aggregating more than eight hours per week or on a part-time basis or intermittently. We are not satisfied that those medical conditions prevent him from continuing to undertake remunerative work that he was undertaking and, therefore, suffering a loss of salary or wages or of earnings on his own account. In fact, the remunerative work which he was undertaking, although only of limited scope, has continued. We therefore find that the decision of the VRB made on 12 June 2007 regarding Mr Baird’s rate of pension was correct and we affirm that decision.
     

I certify that the one hundred and thirty-nine [139] preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Member and

Dr Kerry Breen, Member

Signed: Dianne Eva

Clerk

Dates of Hearing 1 and 2 December 2009

Date of Decision 1 February 2010

Counsel for the Applicant Ms F Ryan

Solicitor for the Applicant Mr Michael Jorgensen, Williams Winter

Solicitor for the Respondent Ms K Miller, Australian Government Solicitor