Contents Bill Rolfe appointed Repatriation Commissioner 2

Decision

Greenwood J

[2007] FCA 898
13 June 2007

Meniere’s disease – application of Statement of Principles – whether inability to obtain appropriate clinical management – time of clinical onset

Mr Jakab claimed that his Meniere’s disease was related to his defence service. The claim was rejected and that decision was affirmed by the Board and the Tribunal.

Mr Jakab claimed that he contracted the disease during his defence service; because it was not diagnosed at that time he was unable to obtain appropriate clinical management of the effects of the disease; and the inability to obtain proper clinical management contributed to the effects of the disease in a material way or aggravated the disease.

The only factor in the relevant Statement of Principles is ‘inability to obtain appropriate clinical management’.

The Court noted that:

[21] … The AAT considered what it described as Mr Jakab’s lengthy history of symptoms the subject of his evidence before the Tribunal and concluded that the failure on the part of the medical practitioners to record important aspects of the symptoms identified by Mr Jakab, in their reports, was not simply a function of those doctors failing to ask the relevant questions of Mr Jakab that would have revealed the detailed sequence of clinical effects symptomatic of Meniere’s disease but rather that Mr Jakab did not manifest all the necessary symptoms (the constellation of symptoms) that, manifest upon presentation now, would enable a diagnosis of Meniere’s disease to be made …

[27] … Although some features associated with or consistent with Meniere’s disease were reported by Mr Jakab to the medical officers from time to time, during the period of Mr Jakab’s service, the AAT has relied upon the body of medical evidence so as to find that the necessary collection of symptoms were not present; those symptoms which were consistent with Meniere’s disease were explained by the medical conditions at the time; and that no connection was demonstrated between Meniere’s disease and the viral episodes relied upon by Mr Jakab. Accordingly, Mr Jakab failed to establish that he suffered or contracted a disease during a period of defence service or prior to the last period of that service and that the disease was contributed to in a material degree or was aggravated by defence service.

[28] In conducting an analysis of the factual matters, the AAT applied the correct statutory tests, addressed the correct questions and acted according to law. The factual findings made were open to the Tribunal.

Mr Jakab argued that even if the AAT took the view that Mr Jakab’s memory may have been unreliable as to any aspect of the symptoms, it could nevertheless have relied upon s 119(1)(h) of the VEA as a basis for reaching a conclusion that Mr Jakab suffered symptoms emblematic of Meniere’s disease during his service. He argued that the AAT ought not to have given weight and emphasis to the relatively short history of symptoms recorded by the medical practitioners in their reports, and that if the AAT was undecided as to the role or accuracy of Mr Jakab’s memory of the events, it failed to give weight to the ‘effects of the passage of time’ as required by s119(1)(h).

The Court rejected that argument, saying:

[34] First, Mr Jakab had access to the outpatient medical records which contain a record of the complaints he made to the medical officers at the time evidencing the symptoms apparent to the medical officers at the time.

[35] Secondly, as to other complaints of symptoms, Mr Jakab gave detailed evidence of his recollection of the symptoms, the severity of the symptoms and the combination of symptoms which he said demonstrated the onset of Meniere’s disease. Accordingly, this is not a case where Mr Jakab has poor recollection and was not able to obtain documents in support of his contentions. Accordingly, Mr Jakab was not presented with any identified ‘difficulties’ concerning any identified fact, matter or circumstance attributable to the effects of the passage of time.

[36] Thirdly, … a provision such as s119(1)(h) does not make out a case by enabling the decision-maker to reach a finding not supported by the evidence. In this case, the medical evidence did not support the proposition that the necessary conjunction of symptoms were present in order to lead the decision-maker to a proper conclusion that Mr Jakab had contracted the disease at the relevant time.

[37] Fourthly, Mr Jakab was able to articulate to the medical practitioners and to the Tribunal his precise recollection of the collection of symptoms he says he suffered at the various dates. Mr Jakab was also able to place the history of those symptoms in a proper chronology by reference to the relevant documents. Mr Jakab was in a position to engage with the medical practitioners, both general practitioners and medical practitioners experienced in the disciplines relevant to the disease and discuss the extent of the symptoms and their onset. It is clear from the reasoning of the Tribunal, that the AAT had regard to the engagement between Mr Jakab and the medical practitioners, the chronology of the symptoms recounted by Mr Jakab to the medical practitioners and the weight and emphasis to be given to the chronology of clinical events in making findings as to the onset of the disease. It is clear therefore that the Tribunal had regard to and took account of the effects of the passage of time.

[38] Fifthly, the fundamental criticism Mr Jakab makes of the AAT is that it preferred a view of the evidence which led it to find an onset of symptoms and thus the contraction of Meniere’s Disease at a much later date than Mr Jakab contends for. The AAT reached that conclusion in part in reliance upon matters going to recollection. In other words, the AAT was simply not satisfied as to the contended primary facts that symptoms of Meniere’s disease were manifest during the period of service, on all the evidence. Mr Jakab did not fail to establish his contention because of the effects of the passage of time with the result that the AAT ought to have called in aid s 119(1)(h) of the V E Act. Mr Jakab failed in discharging the standard of proof because the weight of evidence, in the view of the AAT, was inconsistent with a conclusion that the necessary symptoms of Meniere’s disease were present during the period of service. That conclusion was open to the AAT.

[39] Importantly, the section does not operate so as to strengthen the case or a contention of an applicant by lowering the threshold or standard of proof required by s 120 of the V E Act for establishing the clinical onset of the effects of Meniere’s disease especially in circumstances where the applicant contends for a demonstrated good recollection of each facet of the symptoms suffered over the period under examination. An appeal is not simply a process by which an alternative view of the evidence might be established. This is not a case where there is no evidence to support the conclusions of the AAT and no error of law is demonstrated.