Re Herbert Boyne Wood and Repatriation Commission [1991] AATA 301 (6 December 1991)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: HERBERT BOYNE WOOD
And: REPATRIATION COMMISSION
No. P90/1109 AAT No. 7555
Veterans' Affairs

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS' APPEALS DIVISION
M.D. Allen(1) (Senior Member), T.R. Russell(1) (Member) and Dr J. Campbell(1) (Member)

CATCHWORDS

Veterans' Entitlement - Conditions of onychomycosis and ingrown toenails. Hypothesis raised that said conditions caused by fungal infection in South West Pacific Area. Hypothesis raised no evidence to reject claim beyond reasonable doubt.

Veterans' Entitlements Act 1986 - Sub-sections 120(1) and (3)

East v Repatriation Commission [1987] FCA 242; 74 ALR 518

Webb v Repatriation Commission 78 ALR 696

Repatriation Commission v Whetton (unreported NG 193/1991 Beaumont, Burchett and Lee JJ, Sydney 14 October 1991)

HEARING

PARRAMATTA
6:12:1991

ORDER

The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely:

THAT the Commonwealth of Australia is liable pursuant to Section 13 of the Veterans' Entitlements Act 1986 (as amended) to pay to HERBERT BOYNE WOOD pension for incapacity occasioned by the war-caused diseases of onychomycosis and ingrown toenails as and from the 13th day of March 1989;

AND THAT this matter is remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid to the said HERBERT BOYNE WOOD for incapacity occasioned by all war-caused injuries and diseases.

DECISION

On 13 June 1989 the Applicant applied to the Respondent to have recognised as war-caused diseases the conditions diagnosed as onychomycosis and ingrown toenails. That application was rejected by a delegate of the Respondent on 2 February 1990 and on 19 September 1990 the Veterans' Review Board affirmed that decision. By notice lodged 21 December 1990 the Applicant sought further review by this Tribunal.

2. The said application for review came on for hearing before this Tribunal at Parramatta on 2 December 1991, the Applicant being represented by Mr Wood of counsel, instructed by Cameron Gillingham Boyd, Solicitors, and the Respondent being represented by an officer of the Department of Veterans' Affairs.

3. At that hearing the following documents were taken in as exhibits:
Exhibit A - Documents prepared pursuant to Section 37 of the

Administrative Appeals Tribunal Act 1975
Exhibit B - Report of Dr Bruce S. Mackie dated 19 July 1991
Exhibit C - Photos of the Applicant's right foot
Exhibit D - Photos of the Applicant's left foot
Exhibit 1 - Letter to Department of Veterans' Affairs from
Dr T.H. Lee dated 15 March 1991 plus annexures
Exhibit 2 - Letter to Department of Veterans' Affairs from
Dr Bruce S. Mackie dated 20 March 1991 plus annexures
Exhibit 3 - Letter to Department of Veterans' Affairs from
Dr A. Hardy dated 8 July 1991 plus annexures.

4. As the Applicant had "operation service" as that term is defined in Section 6 of the Veterans' Entitlements Act 1986, pursuant to Sub-sections 120(1) and (3) of the said Act, the Tribunal shall determine that the diseases claimed as being war-caused were so caused, unless it is satisfied. beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal shall however be deemed to be satisfied beyond reasonable doubt if, after a consideration of the whole of the material before it, it is of the opinion that the said material does not raise a reasonable hypothesis connecting the said diseases with the circumstances of the particular service rendered by the Applicant.

5. As to what constitutes a "reasonable hypothesis" see the decision of the Full Court of the Federal Court in East v Repatriation Commission [1987] FCA 242; 74 ALR 518 at 534, namely:

"A reasonable hypothesis requires more than a possibility not
fanciful or unreal consistent with the known facts. It is an
hypothesis pointed to by the facts, even though not proved
upon the balance of probabilities."

6. The process to be undertaken by the Tribunal in its consideration of the matter was further explained by the Full Court of the Federal Court in Webb v Repatriation Commission 78 ALR 696. At p705 Foster J says:

"In any given case s 120 requires, in my view, that the
Commission survey the whole of the relevant material before
it and determine whether there is established a basic
foundation of fact upon which the required hypothesis of
connection can be raised. In determining whether this
foundation exists, it applies the prescribed 'heavy burden of
disproof' (per Toohey J, Law v Repatriation Commission
(1980) 29 ALR 64 at p74). The Commission must then
determine whether, upon the foundation so established, the
reasonable hypothesis of connection is raised. This
determination may involve simply a process of bare
reasoning from this foundation of fact (cf Adelaide
Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 pp563-4) or
may require the consideration of competing propositions as
to the connection or lack of it advanced by way of expert
medical testimony; or both. It is quite clear that into this
area of deliberation there must not intrude any question of
onus of proof in the accepted sense of either the veteran or
the Commission bearing an overall burden of proof in the
case; nor of any particular standard of proof, let alone one of
disproof to the criminal standard of a postulated connecting
hypothesis."

7. The Applicant had service in the South West Pacific Area as Commander Royal Engineers 11 Division, 5 Division and 3 Division. During this service, particularly whilst in the Buna he worked in areas of swamp and his boots and feet frequently became saturated.

8. In evidence the Applicant confirmed a statement which he had made at the time of his application to the Veterans' Review Board, namely:

"When I was first posted to New Guinea in June 1943, my
toe-nails were perfectly normal and healthy, but, when I
returned to Australia in January 1946 (sic) they were badly
deformed, presumably due to fungal infection ..."

9. The Applicant submitted that there did exist an hypothesis linking his onychomycosis which in turn had caused his ingrown toenails with the circumstances of his war service. That hypothesis was that the present conditions suffered by him were caused or contributed to by a fungal infection contracted whilst on active service.

10. There is no doubt as to the present diseases affecting the Applicant's foot, namely, onychodystrophy of all toenails with ingrown nails on both big toes. This diagnosis was made by Dr Bruce Mackie, Dermatologist, in his report of 19 July 1991.

11. Dr Mackie's report continues:

"This has probably been caused by a combination of factors
which would be as follows:-
1. Fungous (sic) infection
2. Arteriosclerosis
3. Tight footwear.
At this stage it is impossible to say which of these factors
was the most important, but it is possible that fungous (sic)
infection on tropical service played a major causative role."

12. There is no direct evidence of the Applicant having suffered a fungal infection whilst on service and he stated in evidence that he could not recall having tinea whilst in New Guinea. To say that he cannot recall having had tinea is not a denial of having had that disease and the statement of Dr Hardy, a General Practitioner who had practised in New Guinea, that the conditions experienced by the Veteran in New Guinea were highly conducive to the acquisition of tinea of the foot and toenails is consistent with the experience of the Members of this Tribunal.

13. In Repatriation Commission v Whetton (unreported No NG193/1991; Beaumont, Burchett and Lee JJ, Sydney 14 October 1991) the Federal Court pointed out that s 120 makes it mandatory to reach a finding in favour of a veteran unless his case can be rejected beyond reasonable doubt, or applying ss 120(3) the Tribunal can form the opinion that the material before it does not raise a reasonable hypothesis. As the Full Court further pointed out, it is not the case that the Tribunal must be satisfied of the affirmative, namely, that the said reasonable hypothesis has been raised.

14. In this matter there does exist on the material placed before the Tribunal the hypothesis that the Applicant contracted a fungal infection whilst on active service which was a contributing cause of his present diseases of the foot. None of the facts upon which that hypothesis is based have been negatived beyond reasonable doubt. The said hypothesis exists so ss120(3) does not apply in this matter. Further, there is no sufficient evidence for the Tribunal to find that it is satisfied beyond reasonable doubt that the said diseases are not war-caused.

15. The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision that the diseases of onychomycosis and ingrown toenails suffered by the Applicant are war-caused diseases. The matter is remitted to the Respondent in order that it might assess the degree of incapacity.

16. Neither party addressed on the matter but the documents contained in Exhibit A show that the said diseases are to be accepted as war-caused for the purposes of payment of pension (if any) as and from 13 March 1989.