Rowe and Repatriation Commission [2011] AATA 119 (23 February 2011)

Last Updated: 24 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos. N200600478, N200600492

VETERANS' APPEALS DIVISION		)
	Re		TERRENCE ROWE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member Air Vice-Marshal T Austin AM, Member

Date 23 February 2011

Place Sydney

Decision

The Tribunal varies the diagnosis from undefined connective tissue disorder to unclassified inflammatory rheumatic disease. In all other respects the decisions under review are affirmed.

..................[sgd]....................................
Ms N Bell, Presiding Member

CATCHWORDS – Veterans’ Entitlements – polymyositis – autoimmunity - unclassified inflammatory rheumatic disease – diagnosis – standard of proof – reasonable satisfaction – hypothesis

Veterans’ Entitlement Act 1986

Repatriation Commission v Cooke (1998) 52 ALD 1

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690

REASONS FOR DECISION

Ms N Bell, Senior Member Air Vice-Marshal T Austin AM, Member

1. This application has been remitted by the Federal Court. The Tribunal was assisted by a Statement of Agreed Facts and Issues submitted by Mr Rowe and the Repatriation Commission prior to the hearing.
2. Mr Rowe served in the Australian Navy from 9 April 1966 to 8 April 1986. He had 6 periods of operational service aboard HMAS Sydney – 18 weeks of operational service in total. The parties agree that during operational service Mr Rowe was a regularly exposed to a non-toxic level of mercury vapour. The precise extent of that exposure is not known. Mr Rowe claimed disability pension for polymyositis, osteoporosis, hypertension, and anxiety state.
3. In 2002, Mr Rowe’s GP referred him to Dr Ian Gotis-Graham, rheumatologist, with severe myalgia in his thigh, elbow pain, general morning stiffness, and fatigue. Dr Gotis-Graham diagnosed polymyositis (an autoimmune disease) and Mr Rowe was commenced on prednisone and later methotrexate. Mr Rowe has responded well to these medications.
4. It is agreed between the parties, and we concur, that if the claimed condition, referred to by Mr Rowe as polymyositis, is war caused, then his osteoporosis, hypertension and anxiety disorder would also be found to be war caused on the basis of the Statement of Principles relevant to each condition. There is no Statement of Principles in existence concerning polymyositis. Our focus then is on the condition labelled by Dr Gotis-Graham as polymyositis.
5. In relation to this condition, the hypothesis put forward by Mr Rowe was that his exposure to mercury during operational service gave rise to autoimmunity in the form of polymyositis, a disease that involves the production by the body of autoantibodies. Later in the hearing when the weight of the expert medical evidence appeared to be against a diagnosis of polymyositis or any other autoimmune disease, it was submitted by Mr Rowe that the Tribunal should consider the question of whether Mr Rowe suffers from an autoimmune disease as part of Mr Rowe’s hypothesis rather than as part of the diagnosis of his condition. By considering this aspect of the diagnosis question as part of the hypothesis of war causation, Mr Rowe would have the benefit of the reasonable hypothesis standard of proof rather than the more rigorous reasonable satisfaction standard.
6. The issues for us to consider are therefore the correct diagnosis of Mr Rowe's condition, and whether the line between diagnosis and war causation may be drawn as urged by Mr Rowe.

WHAT IS THE CORRECT DIAGNOSIS?

7. Dr Gotis-Graham, Mr Rowe's treating rheumatologist, made a clinical diagnosis of polymyositis but acknowledged the absence of autoimmune antibodies, elevations in CK and negative EMG and muscle biopsy results. He based his diagnosis on clinical history and findings, the progression of the disease since first seeing Mr Rowe, his exclusion of other possible causes and Mr Rowe’s response to prednisone and methotrexate.
8. Dr Peter McCullagh, experimental pathologist (retired), after lengthy evidence most of which went to the potential of mercury exposure to cause an autoimmune response, proposed a diagnosis of undefined connective tissue disorder that is autoimmune in origin. He based this on Mr Rowe’s response to prednisone and methotrexate. He said that the negative results obtained from testing do not exclude autoimmunity as there are many other antibodies that do not show up on conventional testing. He said that Mr Rowe has not undergone exhaustive testing. He also said that there are many human antibodies that have not yet been identified at all.
9. Dr Paul Darveniza, neurologist, diagnosed undefined connective tissue disorder rather than polymyositis given the results of the investigations and tests. He considered that Mr Rowe’s weakness on physical examination was secondary to his pain rather than wasting or intrinsic muscle disease. However, he agreed that
   Mr Rowe’s response to immuno suppressive therapy was indicative of a connective tissue disorder.
10. Professor Leslie Schreiber, rheumatologist, diagnosed unclassified inflammatory rheumatic disease and fibromyalgia. He said that neither are autoimmune in origin. He would not exclude auto immunity but said there is no evidence to support its existence in this case. Professor Schreiber said there are many different antibodies and the testing that is currently done may not detect all possible antibodies. However he said that in 90% to 95% of cases of autoimmunity if ANA is absent, as it was in Mr Rowe, then other markers of autoimmunity are present. No such markers are present in Mr Rowe. In relation to Mr Rowe’s response to prednisone and methotrexate Professor Schreiber said that while both drugs can be immunosuppressive, they can be equally effective in treating a wide range of inflammatory conditions that are not autoimmune in origin. He noted that methotrexate is often used as a steroid sparing agent by allowing lower doses of steroids to be used to the same effect.
11. Professor Philip Sambrook, rheumatologist, rejected the diagnosis of polymyositis and made a diagnosis of unclassified rheumatic disease. He disagreed strongly with the suggestion that a positive response to prednisone and methotrexate indicates autoimmune disease. While he accepted that there could be an antibody present for which there is no currently available test, he maintained that one would then need to rely on other evidence to support a diagnosis of polymyositis or any other autoimmune condition. Professor Sambrook said he would agree with
    Dr McCullagh that it is possible Mr Rowe’s connective tissue disease is an auto immune disease created by mercury exposure. However, he said it is a remote possibility and if the question is considered on the balance he would say that
    Mr Rowe does not have an autoimmune disease.
12. Professor David Champion, physician and pain consultant, did not support a diagnosis of polymyositis given the absence of confirmatory tests. Rather, he diagnosed chronic widespread pain syndrome and an unclassified inflammatory rheumatic syndrome.
13. When pressed, those experts who rejected polymyositis as a diagnosis allowed for the possibility of autoimmunity but considered it unlikely. The exception was Dr McCullagh who spoke at length about the many antibodies that have yet to be identified and the limited range of antibodies for which Mr Rowe has been tested.
14. The weight of the medical evidence is that, on the balance of probabilities,
    Mr Rowe suffers from unclassified or unspecified inflammatory rheumatic disease with no autoimmunity. We note the concession made on behalf of Mr Rowe to this effect. The diagnosis of polymiositis is, on the balance of probabilities, rejected.

CAN AUTOIMMUNITY BE HYPOTHESISED?

15. Mr Rowe advanced a submission that a diagnosis of unclassified inflammatory rheumatic disease is so broad as to allow for autoimmunity to remain as a plank of the hypothesis, a possible cause of the disease, to be dealt with according to the less stringent standard of reasonable hypothesis. The “cause” of Mr Rowe’s unclassifiable inflammatory disease, it was submitted, may be autoimmunity and, as a cause, it may be the subject of a hypothesis.
16. We have difficulty with this submission. The condition claimed by Mr Rowe was polymyositis. The presence of autoimmunity, or positive tests for it, would give rise to a diagnosis of polymyositis. The majority of medical experts whose evidence we heard considered and then rejected the diagnosis of polymiositis because of the absence of positive tests for autoimmunity. The presence, or likely presence, of autoimmunity would take Mr Rowe’s disease out of the broad umbrella daignosis of unclassified inflammatory rheumatic disease and into the more specific diagnosis of polymiositis or another specific autoimmune disease.
17. In Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690, Weinberg J, commenting on the Full Court’s judgment in Repatriation Commission v Cooke (1998) 52 ALD 1, said:

The Full Court observed that it made good sense to apply the reasonable satisfaction standard to the question whether a disease or injury existed given that evidence concerning that issue was far more likely to be readily available than evidence relevant to causation. The Court observed that the language of s.120(1) and s.120(3) [of the Veterans’ Entitlement Act 1986] assumed the existence of a relevant disease or injury. The function of those subsections was to specify the standard of proof to be used when determining whether the disease or injury related to the operational service rendered by the veteran, and not whether the veteran was presently suffering from any such disease or injury.

18. The evidence concerning the issue of diagnosis of Mr Rowe’s condition is readily available: his tests for antibodies and autoimmune disease, and in particular polymyositis, have returned negative. The clinical signs expected by the majority of expert medical witnesses to be present with autoimmune disease are absent. The information and evidence needed to make a diagnosis of Mr Rowe’s condition, albeit a broad diagnosis that excludes specific autoimmune diseases such as polymyositis, is readily available. Recourse to hypothesis is unnecessary and, in the words of Weinberg J, it would not make good sense to have that recourse. It would also, in our view, be counter to the language of the provisions which direct only questions of causation, and not diagnosis, to the realm of hypothesis.

ARE MR ROWE’S CLAIMED CONDITIONS WAR CAUSED?

19. The only hypothesis that has been suggested by Rowe as providing a causal link between his operational service and his claimed conditions depends on him having had an autoimmune response. We have found that he has a condition that does not involve that pathology.
20. It follows that his claimed conditions are not connected to his service.

DECISION

21. The Tribunal varies the diagnosis from undefined connective tissue disorder to unclassified inflammatory rheumatic disease. In all other respects the decisions under review are affirmed.
    

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, and Air Vice-Marshal T Austin AM, Member.

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

Associate

Dates of Hearing 8 & 9 December 2010

Date of Decision 23 February 2011

Counsel for the Applicant Mr Geoffrey Kennett SC

Solicitor for the Applicant Ms Louise Buchanan,
Australian Government Solicitor

Counsel for the Respondent Mr Mark Vincent

Solicitor for the Respondent Mr Paul Jones,
Legal Aid Commission of NSW