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No.7 March 2008

Repatriation Commission and Money

COURT Federal Court, Sydney (heard in Perth)
JUDGE Stone J
DATE OF DECISION 4 March 2008
DECISION Appeal dismissed with costs.
ISSUES Whether idiopathic fibrosing alveolitis was defence caused – “meaning of inability to obtain appropriate clinical management”

Facts

Mr Money served in the Royal Australian Navy from 14 March 1963 until his discharge on 13 March 1983. He rendered eligible "defence service" for the purposes of the Veterans’ Entitlements Act 1986 (VEA) from 7 December 1972 until his discharge.  

Mr Money made a claim for disability pension in respect of ‘breathing disorder’. A delegate of the Repatriation Commission (Commission) determined that the appropriate diagnosis for Mr Money’s lung condition was ‘chronic bronchitis and emphysema’ and rejected Mr Money’s claim.  The decision was affirmed on review by the Veterans’ Review Board (VRB). 

Mr Money sought further review by the Administrative Appeals Tribunal (Tribunal). The Tribunal set aside the decision and substituted its decision that Mr Money’s idiopathic fibrosing alveolitis (IFA) was defence caused. Central to the Tribunal’s decision was the meaning ascribed to the term ‘appropriate clinical management.’ The Commission appealed the decision of the Tribunal to the Federal Court.

Court’s consideration

The meaning of  “inability to obtain appropriate clinical management

The first issue of appeal concerned the Tribunal’s construction of the expression “inability to obtain appropriate clinical management”.  The Commission submitted that a failure to diagnose in accordance with contemporary medical knowledge does not create an inability to obtain appropriate clinical management where there is no effective treatment for the disease. The Commission cited Somerset and Repatriation Commission [2005] FCA 1399 as authority for this proposition.

Justice Stone considered that Somersetwas distinguishable on the ground that there was no basis for believing that the veteran was suffering from the disease during his period of service. In addition, her Honour noted that in Repatriation v Wedekind [2000] 649 the Court was prepared to assume, without deciding, that diagnostic failure could lead to an inability to obtain appropriate clinical management.

In respect of the relevant phrase, Justice Stone noted that it had two separate aspects. In her Honour’s view the plain meaning of ‘appropriate clinical management’:

[39]…would include not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition. If the phrase "appropriate clinical management" was intended to be limited to active treatment, one might ask why the phrase "appropriate clinical treatment" was not used in its place…

In relation to the second aspect of the relevant phrase and whether the Tribunal erred in failing to consider the meaning of ‘inability’ Justice Stone said:

[42] The Tribunal clearly found that there was an inability to obtain appropriate clinical management; it expressly states so in [82] of its reasons. Although the Tribunal made no express findings as to why the identified systemic failures in the naval medical system presented a barrier to Mr  Money receiving appropriate clinical management, it is implicit in its reasons that Mr Money was reliant upon the Navy’s medical system during his period of service. As a matter of practical reality, a person in Mr Money ’s position could not reasonably have been expected to take steps to obtain medical care beyond that offered by the Navy; see Brew at 88. The applicant has not demonstrated that the Tribunal applied an incorrect construction.

Overall, Justice Stone was of the view that a failure to diagnose was sufficient to create a barrier to obtaining appropriate clinical management. The evidence in Mr Money’s case was that a diagnosis could have been made in 1979.

Aggravation  & the SoP regime

The Tribunal made a finding that Mr Money’s smoking had accelerated the natural course of his IFA, and held that if a diagnosis had been made, he should have been advised to stop smoking.  In respect of this finding, the Commission contended that as the Repatriation Medical Authority (RMA) did not include smoking as one of the factors in the IFA SoP, the Tribunal’s finding subverted the system of SoPs and subsumed the RMA’s function of making determinations.

Justice Stone held that a factor not being mentioned in an SoP is not inconsistent with it being a factor that aggravates a disease, though it cannot of itself be a factor that creates a connection with defence service.  Her Honour stated:

[48]…a Statement of Principles is not a conclusive statement of the factors that may aggravate a disease; rather it is a statement of the factors that may connect a disease to service…a finding that providing advice to avoid a factor that is not included in a Statement of Principles would constitute appropriate clinical management of a condition does not undermine the regime of the Statement of Principles in the way the applicant suggests.

In addition, in respect of whether Mr Money’s IFA had worsened during his defence service, Justice Stone noted the evidence that the course of Mr Money’s IFA had been unusually slow. Nonetheless, Her Honour held that ‘a slow worsening is still a worsening’.

Formal decision

Justice Stone held that the findings of the Tribunal were clear: Mr Money’s IFA was aggravated by his inability to obtain appropriate clinical management of his condition, and that inability arose from a systemic failure of the Navy’s medical structures. The Commission’s appeal was dismissed with costs.

Editorial Note

Nearly all SoPs contain the ‘inability to obtain appropriate clinical management” factor.  It only applies to aggravation or material contribution of a claimed condition where that claimed condition is contracted before or during the person’s relevant service.

In the Money case, the central issue for consideration was the meaning of the phrase ‘appropriate clinical management.’  An important point made by the Court is that this phrase can encompass a more “passive” approach to treatment.  For example, it could include advice to avoid certain behaviours such as smoking. Nonetheless, it is important to remember that ‘appropriate clinical management’ must be measured by the standards available at the time of the persons relevant service.1  In every case the issue of appropriate clinical management will largely be a medical matter.  

Furthermore, while the Court held that ‘appropriate clinical management’ could include treatment that would have ‘no effect on the ultimate progression and outcome of a condition’,  it is important to note that this finding does not alleviate the important step of considering whether the inability to obtain appropriate clinical management had aggravated the person’s claimed condition.  Clearly, if clinical management would have had “no effect on the condition”, a failure to obtain it could not have made the condition worse.

Finally, the other important issue for consideration in the Money case concerned the Tribunal’s finding that smoking had accelerated Mr Money’s IFA. Specifically, whether this finding challenged the exclusivity of SoPs in setting out the factors that cause certain injuries, diseases or deaths.  The Court held that this was not the case. While a smoking factor was not mentioned in the SoP for IFA it could aggravate the condition. However, it could not by itself create a connection with Mr Money’s relevant service.

 


1 Repatriation Commission v Wellington (1999) 57 ALD 507

All Practice Notes