ADDEI-SAI ROBERTSON and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 213
•26 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 213
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1782
VETERANS' APPEALS DIVISION ) Re ADDEI-SAI ROBERTSON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date26 March 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................[Sgd]..............................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Military Rehabilitation and Compensation Commission – Period of Army service - Claim for acceptance of liability for epilepsy – Diagnosis of juvenile myoclonic epilepsy – Condition not arising out of Army service – Condition not an unintended consequence of medical treatment - Decision to deny liability affirmed
Administrative Appeals Tribunal Act 1975 s 37J
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 6A, 14Comcare v Houghton (2003) 37 AAR 138
Wood and Military Rehabilitation and Compensation Commission [2007] AATA 2097REASONS FOR DECISION
26 March 2010 Mr R G Kenny, Senior Member BACKGROUND
1. Addel-Sai Robertson served in the Australian Regular Army from 9 July 1996 until 24 September 1996. On 26 August 2005, she claimed, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), acceptance of liability by the Military Rehabilitation and Compensation Commission (the MRCC) for epilepsy. Ms Robertson alleged this was caused, in 2001, by “a fall in hospital whilst hospitalised for an ankle reconstruction, Wesley Hospital Brisbane”. The MRCC rejected her claim on 11 May 2006. That decision was affirmed by the MRCC on 12 March 2007.
2. The matter was determined in the absence of the parties with their consent.[1]
[1] In accordance with s 37J of the Administrative Appeals Tribunal Act 1975.
ISSUES, LEGISLATION AND CONTENTIONS
3. The first issue for determination is whether Ms Robertson suffers from epilepsy. In the event that she does, the further issues are: whether it arose out of her army service; whether it was contributed to in a material degree by her army service[2]; or whether it resulted as an unintended consequence of treatment paid for by the Commonwealth[3].
[2] See s 6(1) of the Act.
[3] See s 6A(2) of the Act.
4. It is common ground that: on 9 October 1996, the MRCS accepted liability for “stress fractures base left 1st metatarsal and adjacent medial cuneform bone and stress fractures base right cuboid and articular surface of dome of right talus”; that Ms Robertson was in the Wesley Hospital in March 2001 for treatment for that condition; that this treatment was paid for by the MRCC; and, that Ms Robertson experienced a fall in a hospital bathroom on 29 March 2001 during the period of recovery from her treatment.
5. Ms Robertson’s contention is that her epilepsy developed as a result of trauma to her head which occurred when she slipped on the floor of a bathroom in the Wesley Hospital. Ms Robertson contended that she did not have epilepsy before she joined the Army and that she now suffers from generalised epilepsy rather than juvenile myoclonic epilepsy. While conceding that she had taken Pethidine before the fall, she contended that it was not an excessive dosage and that the slippery bathroom floor was responsible for the fall, her consequential head injury and the development of post-traumatic epilepsy. She also contended that, even if her epilepsy were genetic in nature, it was dormant and may have remained so for the rest of her life if she had not experienced the head trauma as a result of the fall. Ms Robertson contended that the MRCC should accept liability for her epilepsy in the same way that it did for the dental damage which also resulted from the fall.
EVIDENCE
6. In evidence were many reports from orthopaedic surgeons, psychiatrists, pain management specialists, radiologists, Commonwealth medical officers, general practitioners and physiotherapists. Most of these relate to various conditions, apart from epilepsy, that Ms Robertson suffers. Of relevance to her epilepsy are the reports from neurologists Dr Noel Saines, Dr Jon Reimers, Dr John Archer and Dr John Cameron; from consultant in rehabilitation medicine Dr Roger Watson; from general practitioner Dr Mark Bartsch; and from the Townsville Hospital.
7. Dr Saines in his report dated 3 April 2001, wrote:
[Ms Robertson] had gone to the bathroom for a shower after breakfast. She has no recall of the episode or the preceding events that morning. She was heard to fall and was found lying on her face and fitting. She was confused afterwards and had bitten her tongue.
8. Dr Saines noted that there was no personal or family history of epilepsy, that Ms Robertson had been recovering well from surgery and that she had been on a Pethidine infusion with the dose not being excessive. He examined her CT scan, conducted at the Wesley Hospital on 29 March 2001, and EEG recording and detected no abnormality. He wrote:
It remains uncertain why [Ms Robertson] suffered the epileptic seizure. Perhaps vaso motor syncope, the intravenous Pethidine and a minor head injury may be a contributing factor. However, I would regard the episode as occurring in provocative circumstances and would observe her progress rather than treat as a recurrent epilepsy at this stage.
9. In a further report, dated 10 May 2001, Dr Saines confirmed his earlier analysis but added that he did not believe that the fall in the shower caused any permanent neurological condition. In a follow-up report, dated 20 August 2001, Dr Saines considered that Ms Robertson had recovered from her previous neurological event and that her neurological examination was normal.
10. Dr Reimers completed an EEG report on 16 November 2004. He noted an “abnormal recording consistent with the presence of an underlying generalised seizure disorder”.
11. In his report, dated 29 September 2005, Dr Archer referred to Ms Robertson’s fall at the Wesley Hospital, noting that her last recollection was sitting in the shower with one leg on a chair before waking up in a hospital bed several hours later. He also noted the hospital files that showed Ms Robertson was found lying face down on the bathroom floor with blood over her face and nose. Dr Archer believed that Ms Robertson has a generalised idiopathic epilepsy, possibly juvenile myoclonic epilepsy which often begins in the late teens or early 20’s. He described this as largely genetically determined and not related to Ms Robertson’s surgery. His opinion was that Ms Robertson had an inherited tendency towards epilepsy and, in the post operative context with analgesia and other factors present, he presumed that this triggered her seizure. He considered that the condition was unlikely to have been due to a head injury and suspected that the facial injuries she received resulted from her falling during the seizure.
12. Dr Cameron completed a report, dated 10 December 2007. He detailed the circumstances of Ms Robertson’s fall and noted that a CT head scan was performed at the time and that this revealed no intracranial pathology or complication from her head injury. He also noted that an EEG was unstable but non-specific. From his examination of Ms Robertson, he considered that the only abnormal findings were of a non-organic nature. Dr Cameron concluded that Ms Robertson most probably suffered from juvenile myoclonic epilepsy which he described as a congenital hereditary condition. He considered that, while it was “conceivable” that her first seizure may have been triggered by Pethidine infusion, this would have been a temporary exacerbation of a pre-existing epileptic tendency with any subsequent epileptic events being a consequence of her underlying tendency to epileptic events. Dr Cameron’s opinion was that Ms Robertson suffered the seizure when reaching out for a towel and then falling, hitting the floor. His conclusion was that the initial seizure was not caused by an underlying head injury and that her epilepsy was not caused, aggravated or accelerated by her employment with the Commonwealth.
13. Dr Watson, in a report dated 14 December 2004, diagnosed epilepsy and wrote that there seemed to be no reasonable doubt that this was a consequence of the cranial trauma of the head injury when she fell at the Wesley Hospital. In a subsequent report, dated 2 July 2008, he noted that Ms Robertson recalled the actual circumstances leading up to the fall at the Wesley. He recorded that she had entered the bathroom in a wheelchair which had no brakes and which slipped backward causing her to be projected forwards and falling heavily on her face on the floor, resulting in abrasions to her face, tooth damage and unconsciousness. Dr Watson did not agree that there was anything to suggest that Ms Robertson’s epilepsy was predisposed or precipitated by an excessive dose of Pethidine. He considered that it was possible that she was predisposed to epilepsy but could see no reason to suggest that her epilepsy would have developed without the trauma she experienced. He considered that the trauma was the precipitating incident for the condition.
14. Dr Mark Bartsch, general practitioner, reported, on 1 November 2004, that Ms Robertson experienced a seizure two days earlier. Townsville Hospital records, dated 2 June 2005 and 6 June 2005, report that Ms Robertson had presented at the hospital with seizures.
15. Also in evidence were various materials obtained by Ms Robertson from internet sources, including the Repatriation Medical Authority, concerning epilepsy and medical negligence as well as her service medical records, commentary on the Tribunal decision Wood and Military Rehabilitation and Compensation Commission [2007] AATA 2097 and information from the Commonwealth Ombudsman.
CONSIDERATION
16. I have considered the secondary materials relating to epilepsy as provided by Ms Robertson[4]. However, given the nature and extent of specialist medical evidence available, I am satisfied that the matter is best determined on what they have reported. In particular, this is because their respective opinions are based upon examination of Ms Robertson and her circumstances.
[4] Identified in paragraph 15 above.
17. On the medical evidence detailed above, including that of Dr Reimers, Dr Bartsch and the Townsville Hospital, I am satisfied that Ms Robertson suffers from epilepsy and that she has continued to suffer from that condition since 2001. I am also satisfied that she experienced an incident in March 2001 which resulted in her being found on the floor of a bathroom at the Wesley Hospital. I am also satisfied that Ms Robertson’s epilepsy did not manifest itself before the incident at the hospital.
18. Differing accounts of the incident in the Wesley Hospital bathroom have been provided by Ms Robertson. The history recorded by Dr Saines was that Ms Robertson had no recollection of the incident. Dr Archer recorded her last memory as sitting in the shower with one leg on a chair. Dr Cameron recorded Ms Robertson’s last memory as reaching up for a towel and slipping. Those accounts reflect no or limited insight into the details of how Ms Robertson came to be on the bathroom floor. They contrast with the details taken by Dr Watson who recorded that Ms Robertson recalled the actual circumstances leading up to the fall including being projected forwards when her chair slipped and hitting her head. Dr Saines’ first report was taken from Ms Robertson only a few days after the incident occurred. His second report, dated 10 May 2001, was made after he saw Ms Robertson again on 4 May 2001. It contains no variation to the history he initially took of the incident. The reports of Dr Archer, Dr Cameron and Dr Watson are prepared subsequently, some years after the incident occurred[5]. I am satisfied that the account recorded by Dr Saines is the most reliable record of Ms Robertson’s memory of the incident. This is because of the proximity of the incident to that account in April 2001 and to the absence of any change to this account in May 2001.
[5] Dr Archer in 2005; Dr Cameron in 2007; and Dr Watson in 2004 and 2008.
19. Dr Saines does not give an opinion as to the nature of Ms Robertson’s epilepsy. Dr Cameron and Dr Archer were of the opinion that Ms Robertson suffers from juvenile myoclonic epilepsy, a congenital hereditary or genetically determined condition. On the basis of their evidence, I am satisfied that Ms Robertson’s suffers from juvenile myoclonic epilepsy.
20. While Dr Cameron wrote that it was conceivable that Ms Robertson’s first seizure may have been related to Pethidine infusion, this was not his final opinion. In that regard, I note Dr Saines’ opinion that the Pethidine dosage was not excessive. Dr Cameron’s conclusion was that the initial seizure was not caused by an underlying head injury. Dr Archer’s conclusion was that the condition was unlikely to have been due to a head injury and he suspected that the facial injuries Ms Robertson received resulted from her falling during the seizure. Dr Saines, on 10 May 2001, expressed his belief that the fall in the shower did not cause any permanent neurological condition in Ms Robertson.
21. Dr Watson supports the contention that Ms Robertson’s epilepsy was causally associated with her fall. Dr Watson’s specialty is not in the field of neurology and is not consistent with the opinions of neurologists Dr Saines, Dr Archer and Dr Cameron. Moreover, I am satisfied that his opinion is based on Ms Robertson’s apparent assertion that she recalled the circumstances of her fall including falling and striking her head prior to the seizure. As noted above, I am satisfied that she had no recollection of the details concerning the incident.
Causation: ss 14, 6 and 6A of the Act
22. Liability arises under s 14(1) of the Act for an injury arising out of, or in the course of employment. The terms injury and disease are defined in s 4(1) of the Act and injury is defined to include a disease. The definitions read:-
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
23. For the purposes of s 6 of the Act, I am satisfied that there is no material in evidence before me which points in any way to Ms Robertson’s employment in the army being responsible in any way for her epilepsy, either as an injury arising out of, or in the course of that employment or as a disease being contributed to in a material way by that employment.
24. Despite that, the obligation to pay compensation will arise if the requirements of s 6A of the Act are met. The first of these is that Ms Robertson received medical treatment paid for by the Commonwealth. The term medical treatment is defined to include:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
............
(g) treatment and maintenance as a patient at a hospital; or
(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise;
............
25. It is not disputed that the treatment in the Wesley Hospital was paid for by the Commonwealth and included the procedures carried out on Ms Robertson’s ankle, the administration of Pethidine and her utilization of toilet and shower facilities at the hospital.
26. The second requirement of s 6A of the Act is that Ms Robertson suffered an injury which is an unintended consequence of the treatment she received.
27. In the Federal Court decision of Comcare v Houghton[6], the employee suffered hearing loss after surgical removal of an acoustic neuroma. The Tribunal determined that the hearing loss was an injury for the purposes of s 6A of the Act. Lindgren J held that the term “injury”, as it is used in s 6A(2) of the Act, does not take its meaning from the definition of that term in s 4(1) of the Act and referred to the distinction in s 14(1) of the Act between an injury and the impairment which results from the injury. In relation to the term injury, his Honour said:
The word ‘injury’ has a wide meaning. Hill J considered the meaning of the word as it occurred in the Veterans' Entitlements Act 1986 (Cth) in Repatriation Commission v Brown (1990) 12 AAR 253 at 257-259, and concluded that it signified the suffering of some harm. In that case, his Honour was concerned with the grinding down of two healthy teeth to near the gum line in order to provide the foundation for the fitting of a bridge. Hill J thought that, regarded in isolation, the two healthy teeth might be seen to have been injured by being ground down, but that properly viewed, the grinding down was not harmful but beneficial. Accordingly, his Honour held that the grinding down itself did not constitute an ‘injury’.
[6] (2003) 37 AAR 138.
28. Lindgren J held that the hearing loss constituted an impairment, as provided for under s14 of the Act, but not an injury. Whatever constituted the injury which caused the hearing loss had not been identified by the Tribunal. His Honour said that, according to s 6A(2) of the Act, it is the suffering of an injury, rather than any ongoing impairment, which is referred to as the unintended consequence of the medical treatment. He described the scheme of the provision as involving the following:
·there must be medical treatment paid for by the Commonwealth (s 6A(2)(a));
·there must be the unintended consequential suffering of an injury (s 6A(2)(b));
·there must be resultant impairment (s 14(1)).
29. As to the second of those factors, Lindgren J said (at para 41):
… I need only go so far as to say that in my opinion s 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce.
30. While I am satisfied that epilepsy is a disease rather than an injury, I have, nevertheless, given consideration to it for the purposes of s 6A of the Act.
31. Ms Robertson’s medical treatment included Pethidine administration. The inference I draw from the evidence of Dr Saines, Dr Archer and Dr Cameron is that such medication is known to precipitate epilepsy. Accordingly, if it did so in Ms Robertson’s case, it can not be said that epilepsy is an unintended consequence of its administration. The case of Wood and Military Rehabilitation and Compensation Commission[7] referred to by Ms Robertson is distinguishable from her situation because, there, the consequences experienced by Mr Wood from a surgical procedure were found to be unintended.
[7] [2007] AATA 2097
32. Ms Robertson was in the process of utilizing the shower facilities at the hospital when she suffered a seizure. I am satisfied that the epilepsy she suffers was not a consequence of this. Dr Watson supports her contention that her fall and associated head injury were responsible for her epilepsy. However, that is not the opinion or the three neurologists. I prefer their evidence to that of Dr Watson because of their specialty and because Dr Watson has relied on a history from Ms Robertson which I have not accepted.
33. Dr Saines considered that Ms Robertson’s fall in the shower did not cause her epilepsy. Dr Archer considered Ms Robertson’s epilepsy to be genetically determined with the fall occurring during the seizure. Dr Cameron’s opinion was also consistent with Dr Archer’s view that the seizure preceded Ms Robertson’s fall in that she suffered the seizure when reaching out for a towel and then fell, hitting the floor. Dr Cameron concluded that the initial seizure was not caused by an underlying head injury. Accordingly, I am satisfied that Ms Robertson’s epilepsy is not a consequence of her medical treatment. This means that the requirements of s 6A of the Act are not met.
DECISION
34. The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: .............[Sgd]................................................................
Kate Slack, Research AssociateHearing on the papers
Date of Decision 26 March 2010
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