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Scown and Repatriation Commission [2011] AATA 53 (3 February 2011)

Last Updated: 4 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5330

VETERANS' APPEAL DIVISION

)

Re
GEORGE SCOWN

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member Dr K S Levy RFD

Date 3 February 2011

Place Brisbane

Decision
The Tribunal sets aside the decision under review and substitutes the decision that:
The conditions of Dental Caries, Periodontal Disease, Dental Pulp Disease and Loss of Teeth are ‘defence-caused’ and the applicant is qualified to be paid pension for them with effect from 19 August 2008. The assessment of rate of pension is remitted to the respondent.

.............[Sgd].................................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Pension – Whether dental conditions caused by operational service and/or defence service – Reasonable hypothesis raised connecting conditions with defence service – Decision set aside


Veterans’ Entitlements Act 1986 (Cth) ss 68(1), 69(3), 70, 120(1), 120(3), 120(4)

Evidence Act 1995 (Cth) s 79

Statement of Principles No 2 of 2002, No 74 of 2002, No 72 of 2007, No 74 of 2007


REASONS FOR DECISION


3 February 2011
Senior Member Dr K S Levy RFD

INTRODUCTION
  1. The applicant, George Scown, a veteran of the Royal Australian Navy (RAN) made a claim for treatment and pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) for various dental conditions. The Repatriation Commission rejected his claims on 20 January 2009.
  2. Mr Scown sought further review on 24 March 2009 to the Veterans’ Review Board. That too was rejected. He applied for further review to this Tribunal.
  3. The conditions and the claims are unusual claims under the Act. The parties agreed at the initial hearing that it would be preferable if their respective dentists might consider the matter and provide a joint report. The matter was adjourned for a period to enable that to occur. While that was not achieved, an updated report was provided by the respondent’s independent expert and they both agreed to present “concurrent evidence”. This was an efficient process.

ISSUES

  1. The issues for the Tribunal to determine are:

(1) Whether Dental Caries, Periodontal Disease or Loss of Teeth are attributable to the applicant’s Operational Service (‘war-caused’); and

(2) Whether Dental Caries, Periodontal Disease or Loss of Teeth are attributable to the applicant’s eligible Defence Service (‘defence-caused’).

STANDARD OF PROOF

  1. The standards of proof to be met in respect of the issues in dispute are:
  2. In respect of other issues such as diagnosis and the date of clinical onset of the conditions, these also are to satisfy the standard of reasonable satisfaction under s 120(4) of the Act.

THE EVIDENCE

  1. Mr Scown enlisted in the RAN on 29 January 1963. He separated from the permanent RAN on 1 May 1992. He rendered further continuous full-time service with the Reserve Component of the RAN from 2 October 1993 to 30 June 1999.
  2. His service in the permanent RAN consists of the following periods recognised by the Act for compensation or pension purposes, subject to meeting various criteria:

The applicant served for the following periods:

In functional water of Malaysia, Singapore and Brunei

18 November 1964 to 22 January 1965 - 66 days

27 January 1965 to 8 February 1965 - 13 days

11 March 1965 to 21 April 1965 - 42 days

In territorial waters of South Vietnam

20 December 1967 to 3 January 1968 - 15 days

17 January 1968 to 16 February 1968 - 31 days

27 March 1968 to 26 April 1968 - 31 days

21 May 1968 to 13 June 1968 - 24 days

4 November 1971 to 8 November 1971 - 5 days

(b) Eligible Defence Service

Under the Act, eligible Defence Service is only recognised from 7 December 1972 (s 68(1) of the Act). The applicant’s Defence Service is therefore:

7 December 1972 to 1 May 1992.

  1. He also served for a period with the Naval Reserve prior to the “terminating date” of the Act (2 October 1993 to 6 April 1994) and served subsequently for a period covered by the Military Compensation Act 1994 (Cth) (7 April 1994 to 30 June 1999). Those periods are not recognised as eligible Defence Service (ss 69(3) and 68(1) of the Act).

The Pattern of Service

  1. The Operational Service, as shown above, is clustered over a five month period from November 1964 to April 1965, as well as four voyages in a six month period from December 1967 to June 1968 and one five day voyage in November 1971.
  2. The Defence Service is more varied and with periods of busy command postings and overseas training.
  3. During the period of eligible Defence Service Mr Scown served:

1981– Sea trials for HMAS Tobruk

(f) 1981 - 1984 – Promoted Commander and posted back to Canberra in a joint operations role.
(g) 1984 – Appointed CO, HMAS Tobruk for two years – Based in Brisbane and then Garden Island, Sydney for the first 18 months and spent “a great deal of time at sea”. In the last six months, HMAS Tobruk was based at Cockatoo Island for a refit.
(h) 1986 – United Kingdom – Professional Development Courses – two months.
(i) 1987 - 1988 – Posted back to Canberra for one year.
(j) 1988 – 1992 – CO HMAS Moreton – “on the road the whole of the time”.

Oral Evidence of Mr Scown

  1. Mr Scown told the Tribunal he gave priority to his role as a Naval Officer. He regarded the annual dental checkups as “the organisation’s responsibility”.
  2. That evidence mirrored his written statement dated 19 February 2010, that the naval dental support systems were inadequate to treat against Dental Caries; that on board most ships, dental treatment was not available; and that he “either put off making dental appointments or deferred them due to the demand of my job”[1].

The Expert Evidence of Dr Outridge and Dr Kellaway

  1. Concurrent evidence was presented by the parties’ dental consultants, Dr Outridge (for Mr Scown) and Dr Kellaway (for the respondent). Dr Outridge participated by telephone while Dr Kellaway appeared in person.
  2. Dr Outridge had a long history of employment as a Dental Officer with the Australian Army from 1975 to 1995 and was the Officer Commanding Base Dental Units, including those in Field Force Groups. He also had experience as a Staff Officer in the Army Dental Directorate in Canberra and has familiarity with Defence policy, particularly during most of the period in which Mr Scown served. Dr Kellaway has postgraduate dental qualifications at Masters and Doctorate levels and has qualifications and experiences in both Australia (mostly in Queensland and Research in Sydney as a young dentist) and also in the United States some years ago (in Alabama and New York State). He has also been a Dental Adviser to the Department of Veterans’ Affairs for almost twenty years.
  3. Both expert witnesses diagnosed Mr Scown as having Dental Caries and Periodontal Disease. In addition, Dr Outridge opined that Mr Scown satisfied the Statement of Principles (SoP) for the condition “Loss of Teeth”. Dr Kellaway diagnosed in the alternative, stating that Mr Scown satisfied the SoP for “Dental Pulp Disease”.
  4. The records show that Mr Scown has poor oral hygiene, poor parodontal (or gum) condition and had a generally poor oral condition at the time of enlistment. However, he was given substantial treatment immediately after enlistment and was declared dentally fit in August 1963. Dr Kellaway noted that because of the condition on enlistment, Mr Scown was especially vulnerable to dental decay. He said that clinical onset of Dental Caries was earlier than enlistment on 29 January 1963. Dr Outridge’s view was that as he was declared dentally fit after dental repair work, the date of clinical onset of Dental Caries was post-1963.
  5. For Periodontal Disease, Dr Kellaway pointed to clinical onset as being after October 1989 or March 1990. Dr Outridge noted the applicant was dentally fit in 1987 and then made comment about his dental condition at time of discharge being uncertain. He made no other comment pointing to clinical onset of this disease.
  6. For Loss of Teeth, Dr Outridge said clinical onset should be regarded as post-1963. Dr Kellaway, on the other hand, diagnosed a condition of Dental Pulp Disease, which has very similar criteria to the SoP for Loss of Teeth. Dr Kellaway said the date of clinical onset should be regarded as 20 January 1971 to 9 December 1971 and extending up to and including 10 September 1973.
  7. The critical oral evidence of Dr Outridge was that while Mr Scown did require fillings at the time of enlistment, he did not regard that as unusual. He also concurred with the evidence of Dr Kellaway that apart from one entry in 1968 referring to prescription of fluoride[2], there was only one other such entry in the records on 14 July 1977[3]. Dr Kellaway also noted that there was clearly some difficulty in obtaining definitive dental treatment in 1971 and from 1973 to 1977, and as a consequence, he concluded that Mr Scown was unable to obtain appropriate clinical management as set out in SoP No 72 of 2007 for Dental Caries. Dr Outridge agreed with that view.
  8. In reference to Dental Pulp Disease (as diagnosed by Dr Kellaway), Dr Outridge also concurred in his oral evidence and referred to folios of the T-Documents to justify that opinion[4]. Dr Kellaway accepted there was Dental Pulp Disease in all of the teeth referred to by Dr Outridge and Dr Kellaway specifically stated that Mr Scown was suffering Dental Caries in all these teeth. Dr Kellaway also noted however that tooth 11 was not appropriately treated as it was delayed for twelve months, while the other teeth mentioned by Dr Outridge were appropriately treated.
  9. Mr Harding, for the applicant, put to both experts whether there is a requirement for a specialist to refer a matter to another specialist if an issue cannot be resolved, or whether the doctors of last referral should keep the matter under surveillance. Dr Outridge agreed with the proposition that referral was appropriate. Dr Kellaway also agreed but with one reservation, which was that there were no specialists in dentistry in 1963 except for General Surgeons. At that time it was up to a General Practitioner to treat all aspects of dentistry.
  10. Mr Scown pointed out that in postings such as HMAS Moreton he could have obtained dental treatment at Victoria Barracks, Brisbane or from Gallipoli Barracks, Enoggera. Dr Outridge said in his experience notices were sent to units for people to attend annual dental checkups. If they did not attend, their names were given to the member’s unit, often with repercussions for the member. However, the Army had little control over members of other services of the Defence Force.
  11. Dr Kellaway also observed in his report of 8 November 2010 (page 1) that “.... any inability to obtain definitive dental treatment on a regular basis in his early career may have had a multiplying effect on the whole dentition to some extent”. Dr Outridge expanded on this in his oral evidence and told the Tribunal that:
  12. Dr Kellaway agreed. He said childhood practices including eating sweets affected later dental conditions and vulnerability. He said, however, we are responsible for our own actions.
  13. Both Dr Kellaway and Dr Outridge were professionally qualified, had extensive and relevant experience and I accept their evidence as expert evidence for the purposes of s 79 of the Evidence Act 1995 (Cth).

CONSIDERATION

  1. I have considered all of the evidence available to the Tribunal. Diagnoses must be established. It is indisputable on the evidence before me that Mr Scown has both Dental Caries and Periodontal Disease. Dr Outridge was of the view he also satisfied the definition in the SoP for the condition “Loss of Teeth”. As the hearing progressed the condition of Dental Pulp Disease, as referred to by Dr Kellaway, took some prominence. Dr Outridge agreed that such a diagnosis was justified. I accept this evidence and accordingly find as a fact that the applicant suffers from Dental Pulp Disease.
  2. I have examined SoP No 73 of 2002 and No 74 of 2002 in relation to Dental Pulp Disease and I am satisfied there is a significant overlap between these SoPs and the SoPs dealing with Loss of Teeth. From my understanding of the evidence, Dental Pulp Disease can be viewed as the precursor to Loss of Teeth. Therefore, a diagnosis of Dental Pulp Disease is appropriate in this case, in addition to the conditions of Dental Caries, Periodontal Disease and Loss of Teeth. For that reason, the Statements of Principle for all conditions will be considered.
  3. Limiting these, for the reasons below, to those applicable to Defence Service, the relevant SoPs and the questions under s 70 of the Act, the factors in contention are:

Dental Caries

SoP No 72 of 2007 Defence Service – Factors 6(a)(f) and (i) and the definition of “exposure to fluoride” in paragraph 9

Periodontal Disease

SoP No 2 of 2002 Defence Service – Factor 5(m)

Dental Pulp Disease

SoP No 74 of 2002 Defence Service – Factors 5(a), (b), (c) and (f) and paragraph 6 concerning material contribution to the disease

Loss of Teeth

SoP No 74 of 2007 Defence Service – Factor 6(h) and paragraph 7 concerning material contribution to Loss of Teeth

  1. The hypothesis to be assessed did not in fact become fully formulated until the concurrent evidence of the experts was presented. Indeed, it is apparent from the evidence of the experts that Mr Scown had a particular vulnerability to developing Dental Caries and it appears this has existed from his childhood years.
  2. While the template refers to exposure to fluoride and Dr Kellaway told the Tribunal he could not recall when fluoridated treatment first occurred in Australia, it is apparent Mr Scown received fluoride treatment on 17 May 1968 and on 14 July 1977 (the only two entries on his records). However, Mr Scown’s theory is that he was mostly unable to access professional dental services during his RAN service.
  3. As the evidence unfolded it was clear that the dental specialists agreed that it pointed to Mr Scown being unable to obtain appropriate clinical management for his dental conditions. Both dentists said there was an inability to obtain appropriate clinical management but this was in the period of eligible Defence Service. Mr Harding, rightly in my view, early in his submissions conceded there was no case that would succeed in relation to Operational Service. Given the relatively brief periods involved in the total periods of service up to the points of Operational Service, that is a sensible approach. I agreed that the claims cannot succeed in relation to the periods of Operational Service.
  4. I will turn then to the evidence as it relates to periods of Defence Service, and the applicable SoPs in that regard.
  5. With respect to Periodontal Disease, Dr Kellaway stated that clinical onset was after October 1989 and March 1990 (based on notations by a dentist or dental hygienist). Indeed, Dr Kellaway then stated that “mild localised Periodontal Disease only became evident some 13 years subsequent to the eligible service period”. He also alluded to a notation of 16 April 2005, some of which is not specific in its relevance to Periodontal Disease. However, it is clear that there is no evidence about Periodontal Disease during any of the periods of Operational Service.
  6. In relation to Dental Pulp Disease, there was evidence of this condition starting to develop in January 1971 when there was a draining sinus in tooth 11 at that time. This was before eligible Defence Service, although the applicant did have this during the five day voyage which counts as Operational Service from 4 to 8 November 1971. It is clear that this was definitively treated at HMAS Williamstown on 9 December 1971.
  7. For Dental Caries, Mr Williams (the respondent’s advocate) put to Mr Scown that in 1973 (at HMAS Wewak) and the period from 1974 to 1977 (in the UK on a course, at sea with HMS Norfolk and undertaking NATO service) he attended dentists in Australia or overseas on sixteen occasions. Mr Scown’s response merely reiterated his service postings, particularly at HMAS Moreton when he was frequently away. In 1973, at HMAS Wewak, he was at sea for six months. While in the UK from 1974 to 1977, he clearly was on course for nine months and at sea for a substantial part of the two-year period following the course. However, it is apparent that he did get some treatment there. From 1977 onwards, he was mostly in Canberra or in postings where he could access treatment.
  8. It is true that he was at sea on HMAS Tobruk for part of the time after 1977. Mr Scown makes numerous references to the fact that he either put off making dental appointments or deferred them due to demands of the job. In a peacetime role, particularly as a Senior Officer or Commanding Officer, this is sometimes unavoidable. However, in all occupations, there are always discretionary times or an ability to delegate some tasks to allow for personal requirements, particularly health-related ones. For some claims, such as on HMAS Wewak when he was based in Brisbane and his posting to HMAS Moreton, the availability of dental treatment at Victoria Barracks and Gallipoli Barracks was within convenient driving distance. While it may not always have been possible to get an appointment of first choice, it seems that Mr Scown elected not to avail himself of dental services which were clearly available over a relatively lengthy period. As a Unit Commander who was responsible for the health and wellbeing of others, he would have been aware of the responsibility to look after such needs in his staff and the Coxswain undoubtedly could have arranged such appointments for him. Another example is when HMAS Tobruk was undergoing a refit at Cockatoo Island. Mr Scown says in his statement that “dental treatment was available when we were undergoing refit but required travel away from Cockatoo Island”. That remark ought not to be readily accepted: it ignores the convenience of Cockatoo Island being in close proximity to Sydney Harbour and other Naval facilities.
  9. Nevertheless, this apparent tendency to avoid treatment or minimise the relative ease with which treatment or checkups might have been arranged does not detract from the force of the expert evidence that Mr Scown, from the start, came to his defence service with a particular vulnerability to the development of Dental Caries. The evidence of Dr Outridge and also Dr Kellaway placed that clearly in perspective. That vulnerability must also be considered in the context that not only was he a patient with a high rate of Dental Caries, the dental records during his naval service show little access to fluoride treatment. Furthermore, certainly in the period between 1971 to 1977, he also did not receive annual checkups as required, or receive regular dental treatment.
  10. As shown by the evidence of the professional witnesses, Mr Scown emphatically satisfies Factor 6(i) of No 72 of 2007, namely having an inability to obtain appropriate clinical management for Dental Caries. The qualifying paragraph 7, where there must have been a material contribution to his condition, is satisfied also in my view given the chronic and recurring nature of his dental problems and the particular vulnerability mentioned by the expert witnesses. Based on Mr Scown’s dental records, and his evidence of unavailability of dental services during his RAN service, I am of the view that the clinical onset of Dental Caries was at some point after his posting to the course in England in September 1974 and therefore Factor 6(a) is also satisfied. I am not satisfied, based on the availability of dental services to the applicant either in Australia or overseas had he been prepared to utilise them, that Factor 6(f) is satisfied. But it is unnecessary to decide this as Mr Scown succeeds on other grounds. Therefore, Dental Caries can be determined favourably for Mr Scown as being attributable to his eligible Defence Service as he satisfies two factors in the template in the relevant SoP.
  11. In relation to Periodontal Disease, the consequential effect of an inability to obtain adequate treatment for Dental Caries resulted in Periodontal Disease in the period of eligible Defence Service. This did not occur until later in the period of eligible Defence Service and, as Dr Outridge stated, oral hygiene instruction was not sufficient. There should have been annual dental interception and this did not occur. Dr Kellaway identified this also, although the date of clinical onset was in his evidence a little later, and subsequent to 1989 or 1990. The Periodontal Disease clearly arose as a consequence of an inability to obtain appropriate clinical management in respect of a number of teeth. The obligation of a professional person to “follow through” was also not satisfied. Both experts giving concurrent evidence agreed that those obligations by Navy personnel (or the ‘Navy system’) were not satisfied.
  12. The diagnosis of Dental Pulp Disease (SoP No 74 of 2002) also has been accepted. The presence of this condition, and its consequences, effectively satisfied the SoP on Loss of Teeth (No 74 of 2007) also. The condition of Dental Pulp Disease is defined in SoP No 74 of 2002 as “inflammation, infection, necrosis or degeneration of the pulp of the teeth”. There is strong evidence here of the incidence of Dental Caries in the applicant’s case – a factor common to both the abovementioned SoPs. Dr Kellaway refers to the period from 1971 to 1973 where tooth 11 was not properly treated in 1971 for approximately twelve months. There was an abscess on that tooth subsequently in 1973 which was treated at that time and again in 1977 when the tooth was lost. Factor 5(f) of SoP No 74 of 2002 is therefore satisfied for the period of eligible Defence Service.
  13. Even if I am wrong in treating SoP No 74 of 2007 (Loss of Teeth) as overlapping with the SoP for Dental Pulp Disease above, Factor 5(c) of SoP No 74 of 2002 would be satisfied also. As mentioned also in Dr Outridge’s report of 10 August 2010, “the fact that teeth were lost confirms that Service dental requirements for annual dental care (to Class 1) could not possibly have been being met”. Dr Outridge implies that Factor 6(h) of SoP No 74 of 2007 and the requirements of paragraph 7 of that SoP are also met; that is, that Mr Scown had an inability to obtain appropriate clinical management for Loss of Teeth. The template for Dental Pulp Disease (inability to obtain appropriate clinical management), a precursor to the Loss of Teeth condition, is therefore satisfied. For the same reasons, the Factor in Loss of Teeth is also satisfied.
  14. Mr Scown’s claims therefore succeed, because in four of the SoPs above the conditions now claimed are connected with the circumstances of his relevant Defence Service, and have been satisfied to the requisite standard of proof.

CONCLUSION

  1. The decision under review should be set aside. The Tribunal substitutes the decision that:

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD


Signed: ..........................[Sgd]...................................................

Associate


Date/s of Hearing 28 October 2010 and 2 December 2010

Date of Decision 3 February 2011

Counsel for the Applicant Anthony Harding

Solicitor for the Applicant Terence O'Connor

Solicitor for the Respondent Bruce Williams, Departmental Advocate

[1] see Exhibit No 2, paragraphs 14, 15, 22 and 25
[2] Exhibit 5, Folio 159
[3] Exhibit 5, Folio 126
[4] see Exhibit 5, Folios 78, 106, 107, 108, 111, 113, 119, 126, 127, 151, 155 and 160

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