Bourke and Repatriation Commission (Veterans' entitlements)
[2023] AATA 2007
•11 July 2023
Bourke and Repatriation Commission (Veterans' entitlements) [2023] AATA 2007 (11 July 2023)
Division:GENERAL DIVISION
File Number(s): 2017/6176
Re:Simon Francis Bourke
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:11 July 2023
Place:Hobart
The decision under review is set aside and the original decision of a delegate of the respondent dated 12 March 2015 is reinstated.
....[sgn]....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Veteran’s Affairs – Diagnosis of Claimed Conditions – Whether the Applicant Suffers from Meniere’s Disease – Whether the Applicant suffers from Otitis Media, Otitic Barotrauma and Vestibular Migraine – Application of Statement of Principles – Whether the Meniere’s Statement of Principles Supports a Connection with the Applicant’s Service – Decision Set Aside
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Safety, Rehabilitation and Compensation (Defence-related claims) Act 1988 (Cth)
Cases
Cox and Repatriation Commission [2019] AATA 2340
Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 280 ALR 621
Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Rana v MRCC [2011] FCAFC 80; (2011) 55 AAR 300
Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Re Eylward and Comcare [2008] ATTA 63
Re Marinov and Comcare [2006] AATA 223
Re Quinn and Australian Postal Corporation [1992] AATA
Secondary Materials
Statement of Principles concerning Meniere’s Disease, No.60 of 2006
Statement of Principles concerning Meniere’s Disease No. 109 of 2015
Statement of Principles concerning Migraine, No. 8 of 2018
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION
This matter involves a review of a decision of the Veterans Review Board (VRB) dated 23 August 2017 (decision under review). The decision under review set aside an earlier decision of a delegate of the respondent dated 12 March 2015 that the appropriate diagnosis of the applicant’s claimed condition was Meniere’s disease but that the condition was not related to the applicant’s defence service.
BACKGROUND
The applicant is 74 years of age and previously served with the RAAF as a pilot. He commenced on 29 June 1973 and resigned with effect from 30 November 1973.
On 6 February 2015 the applicant lodged a claim for a disability pension seeking benefits under the Veterans Entitlements Act 1986 (VE Act) for a condition described as “inner ear disorder, possibly Meniere’s disease”. At the same time the applicant made a claim for sensorineural hearing loss and tinnitus under the Safety, Rehabilitation and Compensation Act1988 (SRC Act).
On 12 March 2015 a delegate of the respondent decided to accept the applicant’s SRC Act claim. In respect of the applicant’s VE Act claim the delegate decided that the appropriate medical diagnosis for the applicant’s condition was Meniere’s disease. However, the delegate determined that when applying the Statement of Principles (SoP) concerning Meniere’s Disease, Instrument No. 60 of 2006 to the applicant’s Meniere’s disease, the disease was not related to the applicant’s defence service.
On 24 April 2015 the applicant applied for a review of the original decision by the Veterans Review Board.
On 23 August 2017 the Veterans Review Board decided to set aside the original decision in relation to Meniere’s disease and substitute it for a new decision that:
(a)the applicant’s diagnosed conditions are “otitis media, otitic barotrauma and vestibular migraine”;
(b)the applicant suffers “no current incapacity” from the conditions of otitus media and otitic barotrauma; and
(c)the applicant’s vestibular migraine is not related to his defence service.
On 11 October 2017 the applicant applied for a review of the 23 August 2017 decision in the AAT, which is the matter presently before this Tribunal.
There have been a number of interlocutory issues that have required resolution prior to the substantive hearing including a preliminary issue in relation to the applicability of the condition of vestibular migraine to the relevant Migraine SoP and also some practical issues associated with the impact of Covid.
On 22 December 2017, SoP concerning Migraine (Balance of Probabilities) (No. Number 8 of 2018) was determined by the Repatriation Medical Authority (RMA) under section 196B(3) of the VE Act (2018 Migraine SoP). A preliminary question emerged as to whether the 2018 Migraine SoP extended to include vestibular migraine in the definition of migraine for the purpose of the SoP.
On 3 July 2019 the Tribunal decided, as a preliminary issue, that vestibular migraine is not covered by either the 2018 Migraine SoP or its predecessor SoP.
On 28 February 2020, the RMA amended the 2018 Migraine SoP to expressly include “vestibular migraine” in the definition of “migraine” by the Amendment SoP concerning migraine (Balance of Probabilities) (No. 16 of 2020).
A substantive hearing in the matter was held on 24 and 25 November 2022. The applicant was represented by Mr Ross Hart of Rae & Partners. The respondent was represented by Mr Schatz of counsel.
LEGISLATIVE PROVISIONS
The legislative provisions relevant to the matters for determination by the Tribunal are contained in the VE Act.
Section 120 of the VE Act provides as follows:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; or
(c) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member;
the Commission shall determine that the injury was a defence‑caused injury, that the disease was a defence‑caused disease or that the death of the member was defence‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b) a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7) In this section:
hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.
Section 120A of the VE Act provides as follows:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces; or
(iii) the British nuclear test defence service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
Section 120B of the VE Act provides as follows:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service, member of the Forces and British nuclear test defence service see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
The SoPs relevant to the determination of this matter include the:
(a) The SoP concerning Meniere’s disease (Balance of Probabilities) (No. 109 of 2015) (2015 Meniere’s SoP); and
(b) The SoP concerning Migraine, No. 8 of 2018.
The 2018 Migraine SoP includes the following relevant definitions:
migraine:
For the purposes of this Statement of Principles, migraine:
means migraine without aura, migraine with aura (which includes basilar migraine, sporadic hemiplegic migraine and retinal migraine), chronic migraine and vestibular migraine…
vestibular migraine:
vestibular migraine means a neurological disorder meeting the following diagnostic criteria (derived from ICHD 3):
A At least five episodes the filling criteria C and D.
B A current or past history of migraine without aura or migraine with aura.
C Vestibular symptoms of moderate or severe intensity, lasting between five minutes and 72 hours with the vestibular symptoms including spontaneous vertigo, positional vertigo, visually-induced vertigo, head motion -induced vertigo, and head motion-induced dizziness with nausea.
D At least half of episodes are associated with at least one of the following three migrainous features:
1. headache with at least two of the following four characteristics:
a) unilateral location;
b) pulsating quality;
c) moderate or severe intensity;
d) aggravation by routine physical activity.
2. photophobia and photophobia; or
3. visual aura.
E Not better accounted for by another ICHD 3 diagnosis or by another vestibular disorder.
clinical worsening of migraine:
clinical worsening of migraine means a change in the nature of the migraine resulting in one or more of the following:
a. attacks of migraine that are increased in frequency by a factor of two fold or more;
b. attacks of migraine that are increased in severity with debilitating, long-lasting symptoms including nausea, vomiting, photophobia or photophobia;
c. a conversion from episodic to chronic migraine;
d. an increase in the requirement for hospitalisation for management of the manifestations or complications of migraine; or
e. an episode of severe migraine resulting in status migrainosus, cerebral infarct, seizure or death.
The 2015 Meniere’s SoP includes the following relevant definitions:
a. For the purposes of this Statement of Principles, Meniere’s disease:
i.means a clinical condition characterised by recurrent attacks of episodic vertigo often associated with:
ii.nausea and vomiting;
iii.fluctuating sensorineural hearing loss; tinnitus; and
iv.a sense of fullness of the involved ear; and
b. excludes labyrinthitis, vertigo of central origin and other unspecified vertiginous syndromes.
ISSUES
The Tribunal accepts that as there is a relevant SoP for both alternate diagnoses in respect of the applicant’s claimed condition, the Tribunal is required to determine the claim pursuant to section 120B(3) of the VE Act.
Accordingly, the issues for determination by the Tribunal are:
(a)what is the correct diagnosis and date of clinical onset for the claimed condition;
(b)does the material before the Tribunal raise a connection between the claimed condition and some particular defence service rendered by the applicant;
(c)does the relevant SoP uphold the contention that the condition is, on the balance of probabilities, connected with that service.[1]
[1] See Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 at [67]; Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 373; Whitworth v Repatriation Commission [2013] FCA 1530 at [14].
The Tribunal accepts that the appropriate standard of proof to be applied in assessing the applicant’s claim is the “reasonable satisfaction standard” consistent with section 120(4) of the VE Act.
The Tribunal accepts that it would not be appropriate to limit its review to the specific case articulated by the applicant if, in its view, the material raises a case on another basis.[2]
[2] See Cox and Repatriation Commission [2019] AATA 2340 at [12].
The Tribunal accepts that in determining the date of clinical onset of the claimed condition, all of the features required to be found to make the diagnosis of the condition must be present before clinical onset can be said to have occurred.[3] As observed by the Full Court in Kaluza v Repatriation Commission:
if a doctor can say from the onset of those symptoms… that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which, “if observed by a clinician, would warrant a conclusion...”[4]
[3] Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331 at [14-16].
[4] [2011] FCAFC 97; (2011) 280 ALR 621 at [66].
CONSIDERATION
Tribunal materials and other evidence
The materials considered in determining this matter included:
i.T-documents
ii.Supplementary T-documents
iii.Various written submissions of the parties
iv.Respondent’s list of case authorities dated 22 November 2022
v.Tribunal book prepared by the Respondent dated 25 October 2022 including:
· Pilot’s Flying Logbook from 1971-1977
· Records produced by the Civil Aviation Safety Authority including:
o Undated Selective scanning report
o CASA medical questionnaire dated 3 May 1991
o Letter to applicant re annual eye report dated 3 May 1991
o Letter to applicant re annual eye report dated 11 June 1991
o Letter to applicant re lack of response to correspondence dated 12 July 1991
o Letter, applicant to CASA dated 17 July 1991
o Letter to applicant re annual eye report dated 5 September 1991
o Notation - no reply to letters sent dated 22 October 1991
o Flight Crew Licensing Reports dated 5 September 2005
· Claim for Compensation dated 19 July 1995
· RAAF Record of service dated 5 December 1995
· Minutes from DGAFHS dated 7 November 1995
· Medical Report - Dr A. Saha dated 29 February 1996
· Medical Report - Dr A. Saha dated 18 April 1996
· Medical Report - Mr G. Earles dated 13 June 1996
· Medical Report - Mr G. Earles dated 24 July 1997
· Letter, applicant’s solicitors to Mr G. Earles dated 30 July 1997
· AAT consent decision – ‘member of the forces’ dated 21 August 1997
· Medical Report, Mr G Earles, ENT Surgeon, to Hannover Life and results of some investigations dated 5 September 1997
· Medical Report - Mr G. Earles (undated)
· Medical Report - Prof. M. Paparella dated 23 December 1997
· Medical Report, Mr W Brennan, ENT Surgeon, to Hannover Life dated 3 March 1998
· Medical Report - Mr G. Earles dated 5 March 1998
· Letter, applicant’s solicitor to Prof. M. Paparella dated 30 March 1998
· Letter, Prof. M. Paparella dated 12 June 1998
· Medical Report, Dr S Johl, consultant psychiatrist, to Dr G Earles dated 15 June 1998
· Medical Report, Mr W Brennan, ENT Surgeon, to Hannover Life dated 4 August 1998
· Surveillance report for Hanover Life dated 15 October 1998
· Letter, Prof. M. Paparella dated 17 November 1998
· Medical Report, Dr J Gill, consultant psychiatrist, to Hannover Life dated 22 August 1999
· Medical Report, Dr S Johl, consultant psychiatrist, to Hannover Life dated 4 October 1999
· Medical Report - Mr G. Earles dated 27 June 2000
· AAT decision and reasons – Meniere’s disease (VEA) dated 28 January 2000
· Medical Report, Dr S Johl, consultant psychiatrist, to Dr I Roddick dated 23 March 2001
· Medical Report - Dr A. Saha dated 6 July 2001
· Proof of evidence of Gil Moore, aviation consultant dated 20 July 2002
· Letter from Dr I Roddick dated 24 October 2002
· Summary of various doctor’s clinical notes re Dr Bourke (2002)
· Undated Proof of evidence of Dr Bourke – for the 1998 applications
· Supplementary proof of evidence of Dr Bourke dated 19 February 2003
· AAT decisions and reasons – Meniere’s disease (SRCA) dated 20 November 2002
· Medical Report, Dr S Johl consultant psychiatrist, to Dr J Giefing dated 15 March 2005
· MRI Report, Barin and Cervical Spine dated 7 March 2012
· Service medical records
· Claim for disability pension – ‘inner ear problems’ dated 15 January 2015
· Repatriation Commission Decision dated 22 May 2015
· Requests for review under ss 31 & 136 of VEA dated 22 May 2015 (sic)
· Non-intervention decision dated 2 May 2015
· Letter, applicant to Dr Szmulewicz – prior to initial appointment dated 26 June 2015
· Medical Report, Dr M Tan dated 29 June 2015
· Medical report, Dr M Tan (Neurologist) dated 28 September 2015
· Medical report, Dr G Dragovic (Registrar) dated 14 December 2015
· Medical report, Dr S Szmulewicz (Neurologist) dated 4 April 2016
· Medical Report, Dr S Johl, consultant psychiatrist, to Dr M Hamilton dated 14 February 2017
· Letter, RSL Advocate to Dr Szmulewicz, requesting report dated 13 March 2017
· Letter, applicant to Dr Szmulewicz, requesting report and enc summary of history dated 21 April 2017
· Applicant’s ‘Military and Civilian History of Claimant’s Illness’ dated 21 April 2017
· Letter, applicant to Dr Szmulewicz dated 21 April 2017
· Letter, RSL Advocate to Dr Szmulewicz re his opinion dated 9 May 2017
· Medical report, Dr S Szmulewicz (Neurologist) (annotated) dated 31 May 2017
· Letter, applicant to Dr Szmulewicz, seeking changes to medical report dated 12 June 2017
· Changed medical report, Dr S Szmulewicz (Neurologist) dated 19 June 2017
· REVIEWABLE DECISION – VRB Decision dated 23 August 2017
· Application for Review dated 11 August 2017
· Letter, applicant to AAT – ground of review dated 12 October 2017
· Section 37 Statement dated 9 November 2017
· Medical report, Dr S Szmulewicz (Neurologist) dated 26 March 2018
· Medical report, Dr S Szmulewicz (Neurologist) dated 27 June 2018
· Medical Report, Dr S Johl, consultant psychiatrist, to Dr M Hamilton dated 23 July 2018
· Medical report, Dr S Szmulewicz (Neurologist) dated 10 March 2019
· Undated CV, Dr S Szmulewicz
· Medical Report, Dr RG Hyde, consultant psychiatrist, to Dr M Hamilton dated 13 March 2019
· AAT Decision and Reasons re preliminary question dated 3 July 2019
· Medical report, Dr S Szmulewicz (Neurologist) dated 30 September 2019
· Briefing letter to Assoc Prof Spira seeking medical report dated 7 July 2020
· Medical report by Assoc Prof Paul Spira dated 7 August 2020
· CV, Assoc Prof Spira 11 August 2020
· Dr David Szmulewicz – response to report from Assoc Prof Spira undated
· Briefing letter to Assoc Prof Spira dated 26 February 2021
· Supplementary report of Assoc Prof Spira dated 10 March 2021
· Medical report by Prof Robert Briggs dated 20 December 2021
· Supplementary report of Dr S Szmulewicz dated 18 February 2022
· J Sohn, ‘Recent Advances in the Understanding of Vestibular Migraine’ (Behavioural Neurology, Vol 2016)
· Summoned Medical Records
o Various Extracts from the medical records produced by the Royal Victorian Eye and Ear Hospital – blank pages, duplicate material and irrelevant material has been omitted
o Various Extracts from the medical records produced by Northern Midlands Medical Services– blank pages, duplicate material (including material relating to the Royal Victorian Eye and Ear Hospital treatment), and some irrelevant material (such as material relating to the applicant’s eye condition) has been omitted
o Various Extracts from the records produced by Mr S McKean, speech pathologist, re tinnitus management, comprising:
§ Referral from Dr Szmulewicz dated 8 October 2018
§ Various Visit Notes, 30 October 2018 to 3 September 2019
§ New Client Questionnaire dated 5 December 2018
§ Various Tinnitus Functional Indices dated 4 December 2018, 5 March 2019, 28 May 2019 and 20 August 2019
§ Progress reports from Mr S McKean, speech pathologist dated 21 December 2012
§ Progress Report from Mr S McKean, speech pathologist dated 30 May 2019
· Statements of Principles
o Meniere’s Disease SOP (No. 60 of 2006) – commenced 8 November 2006 dated 30 October 2006
o Meniere’s Disease SOP (No. 109 of 2015) – commenced 21 September 2015
o Migraine SOP (No. 57 of 2009) – commenced 2 September 2009
o Migraine SOP (No. 8 of 2018) – commenced 29 January 2018
o Amendment Migraine SOP (No.16 of 2020) – commenced 23 March 2020
o Migraine SOP (No. 8 of 2018) complied 23 March 2020
· Statements of Facts, Issues and Contentions
o Applicant’s Amended SFIC dated 11 March 2022
o Respondent’s amended SFIC dated 20 May 2022
· Annexures
o Statement A: Flying Training in the RAAF — Medical Problems — Discharge. 1971−1973
o Statement B: Hypobaric Chamber Training — 1FTS RAAF Point Cook. 1973.
o Statement C: RAAF Medical Intervention — Dr J Stubbings (ENT Surgeon). 1973.
o Statement D: Flying Post RAAF — Alternative Careers — Chronological Progression. 1974−1914.
o Statement E: Simon Francis Bourke — COMCARE — AAT — August 2003
o Statement F: Independent Medical Report — Assoc Prof Spira (Neurologist) 2020.
o Statement G: Royal Victorian Eye and Ear Hospital Melbourne — Vestibular Migraine — Tertiary Investigation and Successful Management. 2015−Current.
vi.Letter of Dr David Szmulewicz dated 31 May 2018
(i)Letter of Dr David Szmulewicz dated 19 June 2018
vii.Report of Dr David Szmulewicz dated 30 September 2019
viii.Report of Associate Prof Spira dated 25 August 2020
In addition, at the hearing the Tribunal received oral evidence from:
(i)Mr Bourke and Dr Szmulewicz for the Applicant
(ii)Associate Professor Spira for the Respondent
Contentions
The applicant claims that the correct diagnosis of his claimed condition is vestibular migraine. The applicant rejects Meniere’s disease as the correct diagnosis. The applicant contends that he developed the condition as result of experiencing problems with his ears during his RAAF pilot training at Point Cook in 1973. The applicant contends that as such the conditions are attributable to his relevant service. He contends that he meets the factors necessary for his conditions to be considered connected to his defence service under the relevant SoPs.
The respondent contends that the correct diagnosis of the applicant’s claimed condition is Meniere’s disease. The respondent contends that the applicant’s circumstances do not meet the factors necessary for his conditions to be considered connected to his defence service under the relevant SoP. In any case, the respondent contends that the issue of attributing the applicant’s Meniere’s disease with his service has already been the subject of a previous determination by the Tribunal differently constituted in January 2000 and that it would be inappropriate to relitigate that issue in the absence of any compelling evidence. The respondent contends that no such evidence has been forthcoming.
Findings and consideration
The applicant gave evidence that:
(a)He first commenced flying training as a private pilot in February 1971 with the Aero Club of Southern Tasmania. He was declared medically fit for that purpose. He was about 20 at the time.
(b)The applicant achieved approximately 300 flying hours prior to joining the RAAF but had 157 hours as a pilot.
(c)He was initially rejected by the RAAF but applied again and on the second occasion he was accepted into their pilot training course.
(d)A medical examination was undertaken in September 1972 at the RAAF headquarters in Hobart and the applicant was declared medically fit for military flying subject to further tertiary medical examinations. Those further tertiary examinations were then subsequently undertaken by RAAF appointed specialists in Melbourne including an Ear, Nose, and Throat consultation which occurred on the 7th and 8th of March 1973. The applicant was declared medically fit for military flying.
(e)On 30 April 1973 the applicant received notification of his acceptance to commence pilot training with the RAAF at Point Cook in Victoria with effect from 29 June 1973.
(f)In late August - early September 1973 the applicant commenced flying training. As part of the training he completed a mandatory aviation medicine course which involved, among other, things hypoxia training in a hyperbaric chamber.
(g)On 7 September 1973 the applicant undertook his first flight as part of his training with the RAAF. The aircraft he flew was a “Winjeel” CAC CA-25 training aircraft. The aircraft had a Pratt & Whitney 9 cylinder radial engine which developed about 450 horse power. It was a heavy and cumbersome aircraft.
(h)The applicant told the Tribunal that generally speaking he had no difficulties with the technical aspects of his flight training.
(i)On 24 September 1973 the applicant reported feeling fullness in the ears, quite nauseated and was experiencing slight dizziness during the flying training.
(j)He stated that he had never experienced such symptoms before and was referred to the Point Cook medical officer, Flt Lt Nowatny, who prescribed him Dramamine tablets. The applicant was grounded until 1 October 1973. He was also told to go and see the aviation medicine people and get tested for air sickness because they were entering into the aerobatics aspect of training and some cadets were getting nausea when undertaking aerobatics. He “half” undertook the test and reported that he didn’t have an issue with airsickness. It was then recommended he just take Dramamine tablets for a week and not be very active.
(k)On 1 October 1973 the applicant recommenced flying. He flew again on the second, third, fourth, fifth and ninth of October 1973.
(l)On 9 October 1973 the applicant reported experiencing a painful right ear while flying. The applicant claims this occurred while doing aerobatic manoeuvres. He reported not be able to the Valsalva manoeuvre. The applicant told the Tribunal that on that morning there was a check flight done which involved 3 circuits, take-offs and landings. He noted “there might have been some other things, various elements, you know, approaching the runways without engine power or whatever, if its full flap or half flap, stuff like that”. He furthered “that afternoon I went with the instructor out in the flight training area to do the flight duty code, and I think it’s 18, which is an introduction to aerobatics which I’d previously done before but we were then moving on with what should have been done in the week I’d been off”.
(m)When asked whether he completed training on the 9th the applicant told the Tribunal “I can remember this quite vividly, we took off, we went down near Geelong……. We were limited to 5200 feet……..Aerobatics was generally done between 5 and 3000 feet, not below 3000 feet. So the instructor was actually showing me various basic aerobatics and we were doing steep turns and we actually did some small turns”. He told the Tribunal it was not too long until he started to get a bad blockage in the ears to point where he had to tell the instructor he could not continue and they then went back to Point Cook. He told the Tribunal he was in quite a “traumatic state”. He stated it was mainly in his right ear. He told the Tribunal he had to be helped from the aircraft and he experienced a spinning effect and dizziness. He told the Tribunal he could not remember much of the detail after that but he went back to quarters and laid down for the rest of the day. He was then referred to the senior medical officer, Flt Lt Nowatny who prescribed him Panadol. He was then referred to Dr Stubbings in Melbourne. In cross-examination it was put to the applicant that his recollection of the events of 9 October 1973 were not accurate and counsel for the respondent took the applicant to the evidence referenced in the earlier Tribunal decision in 2003 which had not accepted the applicant’s previous evidence on this point. The applicant accepted that the detail in his logbook would be the best evidence of something that occurred 50 years or so ago. The applicant accepted the logbook did not record him undertaking aerobatics training on the 9th of October. However, the applicant told the Tribunal that he did go out on the aerobatics training flight on that day but that it was just not recorded in his logbook because it was not a meaningful flight due to it being interrupted. When pressed the applicant conceded that his memory might be a bit inaccurate.
(n)On 10 October 1973 the applicant was grounded again.
(o)The applicant was then medically examined by the Point Cook medical officer on 11 October 1973 and reported to have fluid build-up in both ears and a metallic like foreign object on his right eardrum. The applicant was referred to an ENT specialist, Dr Stubbings, who diagnosed the applicant with the condition of serous otitis media, infection in the middle ear. He then saw Dr Stubbings again another 3 or 4 times. He noted that the medical specialists were monitoring his ears to see if they were draining or not.
(p)When the applicant was asked who had given him advice that he had an infection the applicant told the Tribunal that it was Flt Lt Nowatny and that he was prescribed Eromycin for the treatment of the infection. When pressed on this in cross examination the applicant conceded that he could not recall exactly who it was who had told him that he had an infection or prescribed him medication.
(q)The applicant reported experiencing further issues through the course of October, 1973. The applicant’s medical records include reference on 23 October 1973 to the applicant reporting ongoing issues with his right ear.
(r)On 8 November 1973 the applicant again consulted with Dr Stubbings who advised that the applicant be restricted from flying in non-pressurised aircraft the remainder of the year. The applicant’s medical records note that Dr Stubbings observed that the applicant “can partially auto inflate the right ear indicating return of function of right Eustachian tube”.
(s)The applicant’s evidence was that he then became concerned about his future as a pilot and consequently approached the Point Cook medical officer who carried out a commercial pilot’s licence medical examination to determine if he would be considered medically fit for commercial flying in the general aviation industry. The medical officer determined that he is fitness would be considered “doubtful” due to Eustachian tube dysfunction, elevated blood pressure and issues with colour blindness.
(t)On 30 November 1973 the applicant was discharged from the RAAF “on request”. The applicant’s evidence is that his request to resign was a consequence of his medical incapacity to continue with his military pilot training and a desire to pursue a career as a commercial pilot.
(u)After leaving the RAAF the applicant worked for a period with the Hydroelectric Commission and following that a private firm as a design draftsman.
(v)In February 1974 the applicant upgraded his private pilot license to unrestricted level and flew regularly as a private pilot until 12 February 1977 when he ceased flying as a pilot “due to other lifestyle commitments”. Despite this the applicant continued to renew his pilot’s licence, including undertaking the necessary medicals, until 1991.
(w)The applicant’s evidence was that he subsequently became quite interested in real estate and secured a position with real estate firm based in Hobart in 1982. He told the Tribunal that he worked in real estate from 1982 through to about 1996, ultimately moving to Launceston for work in that field.
(x)The applicant’s evidence was that, prior to the early to mid 1990’s he had a couple of occurrences where he would experience bouts of dizziness, sometimes leading to vertigo and fullness in the right ear with associated tinnitus in particular when flying as a passenger. The applicant noted that he experienced major problems when flying in commercial aircraft’s and is required to take medication several days prior to a flight.
(y)However, in the early to mid 1990’s the applicant’s episodes of vertigo had become a concern and had caused a restriction in his lifestyle and his capacity to continue running his business as a real estate agent. He described episodes emerging with little warning which could last for approximately one hour and sometimes a longer duration of several days. The applicant stated that he experienced nausea sometimes to the point of vomiting. He stated that during those attacks he was unable to maintain his balance and on occasions had resulted in falling to the ground. He also stated that his experience of tinnitus increased during these attacks, that his hearing diminished during the vertiginous episodes and that he also experienced a sense of fullness in the right ear at the time of the attacks. The applicant described an example of where he had experienced an attack and fallen as a result down near the Tamar River. The applicant initially said in his evidence that this occurred in around 1992. In cross examination he accepted that it in fact occurred in around 1994 or 1995. He stated that his GP initially thought it might be Meniere’s disease. He told the Tribunal that as a consequence he was referred to an ENT specialist, Dr Gavin Earles. He managed the applicant’s condition for about two decades and prescribed various medications. He then started having regular consultations. He described things getting a bit better after that as he was no longer in a stressful business situation as he had sold his business. After that the condition really waxed and waned. He started having some mental health issues and started to also see Dr Johl.
(z)The applicant then enrolled in an Art & Design course at TAFE and then went onto the University of Tasmania where he commenced a PhD which was granted in 2011. Following that the applicant undertook post-doctoral research with the School of Architecture. It was around this time that his condition started to get worse again and he started to have issue with balance. In around 2014 he mentioned to Dr Earles that his condition was getting worse and he was then referred to the Royal Victorian Eye and Ear Hospital. He initially saw Dr Tan and then, ultimately, he came under the supervision of Dr Szmulewicz. Dr Tan suggested it might be vestibular migraine and prescribed medication and then subsequently in 2017 Dr Szmulewicz diagnosed him with vestibular migraine. The applicant was advised to undertake vestibular therapy with a practice based in Launceston. He has also maintained regular consultation with Royal Victorian Eye and Ear Hospital including with Dr Szmulewicz.
(aa)When asked in cross examination whether it was true, consistent with his medical report from November 1973, that as at 1973 the applicant had never experienced significant headaches, the applicant said he agreed with that. When asked whether he had ever experienced migraines the applicant stated that he had not. When pressed further and asked whether he had also never experienced a migraine with aura or a migraine without aura the applicant replied that he had not. “Never?”. “No”. When asked whether it was true that he had never had any fits, convulsions, turns, blackouts, fainting or giddiness the applicant had agreed that he had answered no to the question at the time and that the answer was truthful. When asked whether it was true that as at 1973 he had not experienced photophobia or phonophobia he told the Tribunal that he had not at that time and that it was only much later in around 2007 at the time he was doing his PHD when he had first experienced those symptoms. The applicant also agreed that he had never experienced visual aura symptoms.
The Tribunal found the applicant to be a truthful and credible witness. The Tribunal does, however, have some concern regarding the reliability of the applicant’s recollection of some events in 1973. The Tribunal was left with the distinct impression that some of the applicant’s recall of specific events may not represent a genuinely independent recollection of those events and may have been impacted by the passage of time. The applicant had some difficulty recalling specific details regarding substantially more recent events and his claim to have specific recall of detail of what occurred on the 9th of October 1973, for example, struck the Tribunal as somewhat inconsistent with his demonstrated recall more broadly.
The Tribunal accepts the applicant’s evidence as described above but with a number of exceptions:
The Tribunal does not accept the applicant’s evidence with respect to the specific detail he provided in relation to the 9th of October 1973. In this respect the Tribunal accepts the respondent’s contention that the documentary evidence as interpreted by an independent witness at the previous Tribunal hearing in 2003 is to be preferred.
The Tribunal also does not accept that the applicant experienced notable bouts of symptoms consistent with those he experienced in 1973 prior to the mid 1990s. The applicant appeared to subsequently accept this point when he conceded that his former GP Dr Roddick who had acted as the applicant’s GP from January 1987 had previously given evidence at an earlier matter that it was not until March 1995 that the applicant first complained to him of any dizziness or vertigo.
The Tribunal also does not accept that the applicant has an accurate independent recollection of the specific details of flights undertaken or the specific details of his treatment by medical specialists in 1973. With respect to these details the Tribunal prefers the evidence contained in the service records.
The Tribunal materials include extracts of various service medical records of the applicant. The Tribunal accepts the service medical records as being accurate.
An outpatient record dated 11 October 1973 includes a note from ENT specialist Dr Stubbings who noted of the applicant had “Difficulty clearing ears 3/7 [three days] ago while flying - now has bilateral fluid levels, and also an unusual (?metallic) object apparently on his (r) drum”. Dr Stubbings noted "Ears - Bilateral serous otitis media, fluid levels move on Valsalva. I cannot see any foreign body in the right ear. Nose - Clear. Pharyanx - NAD". Dr Stubbings concluded "Treat as you suggested with decongestant spray and eskornade. It does not seem to be any nasal abnormality predisposing to this condition. Denies having a cold at the time of flying”.
The applicant subsequently underwent cauterisation of his right ear at the recommendation of Dr Stubbings which, according to the records, resulted in partial relief.
A further outpatient consultation record from a senior medical officer dated 23 October 1973 notes " L ear is cleared completely but the R ear is still causing trouble. There is no fluid remaining but he cannot Valsalva and his drum does not move. This prevents him flying and is holding him back on his course. Could you see him again and advise management at this stage please?".
The applicant’s service medical records indicate that he continued to have difficulties in particular with his right ear through the course of October, however, as at November 1973 the applicant was recorded as being able to “partially auto inflate R ear indicating returning function to right eustachian tube”. Dr Stubbings recommended that the applicant should "be entirely restricted from flying for the remainder of this year in non-pressurised aircraft".
Consistent with the applicant’s evidence, in around mid-November 1973 the applicant consulted the Point Cook senior medical officer to examine him and determine if he would be medically suitable for commercial flying in the general aviation industry. The medical officer expressed a view that the applicant’s capacity to meet the medical standard for a commercial license was “doubtful” due to “Eustachian Tube Dysfunction”, mildly elevated systolic blood pressure and issues with colour perception.
On the basis of the evidence the Tribunal is satisfied that during the applicant’s pilot Training at Point Cook the applicant suffered elevated fluid levels behind both ear drums and eustachian tube disfunction, most likely as a consequence of an infection while flying. The Tribunal accepts the applicant’s evidence that he experienced bouts of dizziness and nausea during this period. The Tribunal is satisfied that at the time of the applicant’s discharge his condition had substantially resolved.
The Tribunal is satisfied that the applicant next experienced bouts of vertigo including dizziness and also nausea as well as a sense of fullness in the right ear commencing in around 1994/1995. The Tribunal accepts that from this time the applicant experienced episodes of recurrent vertigo at a sufficient level of intensity to cause falls, tinnitus, a sense of fullness in his right ear and associated hearing loss. The Tribunal is satisfied that the applicant had a further escalation of these symptoms during the period he was undertaking a PhD and during the following period of post-doctoral research.
In the Tribunal’s view these conclusions are further supported by of the weight of the medical reports that have addressed the applicant’s condition. It is clear that the reports in closest proximity to the re-emergence of the applicant’ issues in around 1994/1995 lent strongly towards a diagnosis of Meniere’s disease.
For example, in a letter dated 24 October 2002 to the applicant’s solicitors, the applicant’s former GP, Dr Ian Roddick, noted that he consulted with the applicant in 1995 where he complained of dizziness and tinnitus with no eardrum damage. Dr Roddick also noted that “I diagnosed Meniere’s disease” and referred him to ENT surgeon, Dr Gavin Earles.
On 29 February 1996 the applicant was examined by Dr Ashok Saha, a consultant oto-laryngologist. In that report Dr Saha noted that:
.. he [ the applicant] gave a history of giddiness which commenced after his discharge from the Air Force about 12 months later. For the last 18 months these symptoms have become worse. The symptoms are on movement of the head the giddiness becomes worse, at times severe enough to start him having vomiting attacks. There is a hearing loss present during the giddy attacks, more on the right then the left side. He also gives a history of ringing noises which is known as tinnitus in both of his ears, more on the right than the left side.
… On examination today, both his external ear canals and drums were normal, the tuning fork test was normal. All the neurological examinations were normal. The findings in his nose, throat and post nasal space were all within normal limits. The hearing test showed a perfectly normal hearing in both ears except that the 1000 frequency in his right ear where there was a minor degree of hearing loss of 30 dB present. According to the history and clinical findings the diagnosis is early Meniere’s disease however at present it appears to be under control.
Dr Saha went on to note that:
I have reviewed all of his history in the Defence Services where in 1973 he suffered from a middle ear infection and fluid formation in his middle ear. After various treatments this condition improved before his discharge from the Defence Service when his ears were normal. There was no mention in his history that he was left with a residual problem as far as his ears were concerned.
Considering all of his history during his service in the Defence Force and his present findings, in my opinion there is no link between the short service in the Air Force and his present condition.
Dr Saha prepared a further report dated 18 April 1996 in which he notes:
Going through his [the applicant’s] Defence Services notes it appears that this man flew with an upper respiratory tract infection three days before he was referred on 11 October 1973 to an ENT Specialist. He was seen on the same day, 11 October 1973 by an ENT Specialist in the Defence Services who diagnosed that he had bilateral serous otitis media, meaning that he had fluid in both middle ears. This happened due to Eustachian tube dysfunction associated with having a cold or upper respiratory tract infection.
As far as further consultation and treatment is concerned, in my opinion the treatment provided was satisfactory during that period of time. It was provided with decongestant followed by Eustachian tube catheterisation.
… The findings of the eardrum now does not suggest that he ever had any perforation or rupture to his eardrum, in the records from the Defence Force nowhere was it mentioned that there was any trauma to his eardrums, therefore in my opinion there is nothing suggesting that the Eustachian tube catheterisation may have damaged his ears. His visit to the ENT Specialist on 11 October, 1973 showed that his eardrums moved on catheterisation and air could be heard entering the middle ear, this suggests that his Eustachian tube function was normal.
On his last visit on the 8th November, 1973 both his eardrums moved and he was discharged from ENT care however he was advised not to fly until 1974. In my opinion it was preventative so that he would not have any recurrence of symptoms. There is no record in the Defence Force discharge summary that this man was still suffering with giddiness, nausea, vomiting or any problems with hearing loss.
On 13 June 1996 the applicant was examined by ENT surgeon, Dr Earles. Dr Earles diagnosed the applicant with Meniere’s disease. In his report Dr Earles stated that:
You described a history of episodes of vertigo which first commenced approximately two years ago. A typical episode comes on spontaneously without warning and lasts about an hour. It is associated with a sensation of nausea and on some occasions this has been severe enough to result in vomiting. During these attacks you are totally unable to maintain your balance or do anything other than lie down and wait for the episode to pass. You have noticed that tinnitus from which you have suffered for some time is usually worse during a giddy attack and you have noticed that your hearing deteriorates during vertiginous episodes. There is also a sense of blockage or fullness in the right ear around the time of the attacks.
… It is my opinion that, on the history provided and the results of the examinations and special investigations that you are suffering from Meniere’s disease.
Dr Earles, in subsequent report dated 5 September 1997 noted the following:
An electrocochleogram was carried out on 14 February 1996. This gave results that were within normal limits, which rather tended to go against Meniere’s disease. It does not, however, exclude the diagnosis.
Notwithstanding this observation, Dr Earles went on to conclude that:
Mr Bourke has been extensively investigated. My diagnosis is that he has Meniere’s disease affecting the right inner ear.
In a further letter dated 5 December 1997 Dr Earles addressed the potential for a link between Meniere’s disease and barotrauma. Dr Earles stated:
With regard to the possibility that acoustic barotrauma might be a pre-cursor to Meniere’s disease or have exacerbated a pre-existing condition, which subsequently led to the development of Meniere’s disease.
The pathogenesis of Meniere’s disease is as yet undefined and my perusal of the literature has not revealed any evidence that there is a definite causal relationship between barotrauma and Meniere’s disease. My discussions with several ENT surgeons who have a particular interest in Meniere’s disease and/or vestibular disorders have confirmed this view. I must therefore conclude that it is not at all probable that Mr Bourke’s Meniere’s disease is related either directly to otitic barotrauma that he experienced during his flying career in the Air Force or that such barotrauma exacerbated a pre-existing condition.
However, Dr Earles wrote a further letter dated 5 March 1998 where, on the basis of a communication from Dr Michael Paparella as well as a report he had been provided, he indicated a wish to amend his earlier report to the effect that there is now some evidence that Meniere’s disease may be caused by otitic barotrauma.
In a letter dated 23 December 1997 Dr Michael Paparella stated:
We have seen patients who have had barometric pressure alterations, or what I call middle ear/inner ear interactive changes….We have seen this in patients where I have described how trauma in various forms, whether it is acoustic or physical of which barotrauma is one example, can be a precursor to Meniere’s disease.
In a subsequent letter dated June 12, 1998 Dr Paparella expanded on his view as follows:
..it is quite possible during barometric pressure changes during flying and training of flying to experience ear problems as well as to exacerbate Meniere’s disease. In fact it is possible for a barotrauma episode, namely resulting in middle ear, inner ear interaction to trigger damage to the inner ear which can eventuate to be fairly classical Meniere’s disease.
In 1998 the applicant was examined by ENT surgeon Mr Warwick Brennan. In his report dated 3 March 1998 Mr Brennan suggested Meniere’s disease but was less certain in his conclusion. Mr Brennan stated:
Certainly, this patient has some form of labyrinthine disorder and this behaves in a pattern very similar to Meniere’s disease, but it is not certain whether Meniere’s disease is the cause.
In a subsequent report dated 4 August 1998 Mr Brennan reached a similar conclusion stating:
This patient has ongoing vertigo, a mild sensorineural hearing loss and tinnitus worse in the right ear. This could be related to Meniere’s disease or some other form of disequilibrium.
After the applicant’s more recent flair up of symptoms which occurred at the time he was undertaking his PhD and then also during his post-doctoral studies, the applicant was referred to the Royal Victorian Eye and Ear Hospital. It was at this time that the alternate diagnosis of vestibular migraine emerged.
In 2015 the applicant consulted with neurologist Dr Michael Tan from the Royal Victorian Eye and Ear Hospital. Dr Tan prepared a report dated 29 June 2015. Dr Tan’s conclusions in respect of the appropriate diagnosis are also somewhat less certain. In his report Dr Tan noted that the applicant denied a history of migraines and concluded that “I suspect some of Mr Bourke’s symptoms may possibly be related to vestibular migraine.”
In a follow up letter dated 28 September 2015, Dr Tan stated:
I have reassured Simon that his imbalance symptoms could be consistent with vestibular migraine..
The Tribunal materials included a report from otology/neurotology specialist Dr Robert Briggs, dated 20 December 2021. Dr Briggs addressed the claim by the applicant that hypobaric training undertaken and ‘decompression illness’ he claimed to have suffered during his training may have contributed to his condition. Dr Briggs reviewed statements produced by the applicant and examined the applicant. Dr Briggs expressed his view that neither the applicant’s hypobaric training nor his claimed decompression illness are likely connected to the symptoms he suffered commencing 24 September 1973. Dr Briggs concludes that, based on Dr David Szmulewicz’s opinion, “it certainly appears that Dr Bourke does suffer from vestibular migraine. Whilst it is possible that Dr Bourke did suffer from vestibular migraine after 24 September 1973, during the period of his eustachian tube dysfunction and barotrauma, all of his symptoms at that time were consistent with otitic barotrauma secondary to otitis media, rather than vestibular migraine”.
In 2017 the applicant consulted Dr Szmulewicz, a neurologist and neuro-otologist also from the Royal Victorian Eye and Ear Hospital. Dr Szmulewicz wrote a brief letter dated 19 June 2017 in which he stated that the applicant has been diagnosed with vestibular migraine.
In a letter dated 26 March 2018 Dr Szmulewicz stated that:
Mr Bourke suffers with vestibular migraine (migrainous vertigo, migraine associated with vertigo)
“Migraine” is a broad diagnostic term which encapsulates many migraine “types”. The International Headache Society’s classification/ICHD-3 beta lists these migraine “types”, but not a single entity is labelled “migraine” – they are all denoted by a label which identifies the “type” of migraine eg “migraine without aura” or “chronic migraine” and includes “vestibular migraine”.
In a letter dated 27 June 2018 Dr Szmulewicz added:
The definition of migraine in classification systems such as the IHCD is not wholly reflective of vestibular migraine which amongst other particularities, has specific treatments, for example those that address the symptoms of imbalance or dizziness, which include medications and vestibular rehabilitation (or physiotherapy).
In a further report dated 10 March 2019 Dr Szmulewicz stated as follows:
The “Migraine Statement of Principles” SOP No 57 of 2009 together with its associated ICD-10 code 43 does not apply to the parameters used in the clinical diagnosis of vestibular migraine.
.. The definition of migraine in classification system such as ICHD-3 beta is not wholly reflective of vestibular migraine which amongst other particularities, has specific treatments, for example those that address the symptoms of constant imbalance or dizziness, which include medications, vestibular physiotherapy and cognitive therapy for associated anxiety, as in Dr Bourke’s case.
… He has been diagnosed with vestibular migraine and now, after many years, receives significant relief from management of the disease. Over two decades ago is symptoms had been diagnosed as Meniere’s disease, often misdiagnosed in patients from vestibular migraine.
.. As mentioned in my letter dated 19 June 2017, is my opinion that it is more likely than not that this condition would have been exacerbated by the activities he undertook during his AAF pilot training 1973.
I gather from past medical information that Dr Bourke suffered from otic barotrauma whilst undergoing flying training and subsequently suffered persistent otitis media with clinical onset of the condition in October 1973.
Under the circumstances it is more likely than not that the events of 1973 would have aggravated the unknown underlying condition of vestibular migraine causing a clinical worsening of that disease. The pathophysiology of migraine is thought to involve a vulnerability (for example, inherited) the development of the condition, which may be realised following certain events, including for instance physical trauma or intercurrent infection.
At the time of clinical worsening of vestibular migraine in 1973, there would be potential for associated symptoms to manifest as “late effects” in later life, such as the unfortunate previously misdiagnosed Meniere’s disease and the correct diagnosis of vestibular migraine as in Dr Bourke’s case. In part, this is possible because of variable natural history of migraine, such that it may alter in presentation over the lifetime in an effected individual (both in the intensity and particulars of the symptomatic manifestation).
In a further report dated 30 September 2019 Dr Szmulewicz as the following:
Migraine triggers are many and differ between individuals. In my experience an intercurrent infection or trauma are not uncommon triggers and so, Dr Bourke’s vestibular migraine was more likely than not to have been triggered by the otitis media and/or the otic barotrauma which occurred in 1973.
Additionally, it may be relevant that barotrauma is a cause of hearing loss and/or tinnitus.
Vestibular migraine has a very variable course which may be episodic, chronic or chronic with episodic exacerbations. The latter being the case with Dr Bourke.
… It is believed that in many patients that an inherited vulnerability to migraine exists and that at some point in time, a triggering event (which includes an intercurrent infection or trauma) for the onset (and/or exacerbation) of migrainous symptoms occurs. I note that in Dr Bourke’s case, both his mother and brother had suffered with migraines.
Migraine may manifest clinically in later life, in part, this is understood to be part of the variable natural history of migraine, such that it may alter in presentation (both in intensity and particulars of the clinical manifestations) over the lifetime in an effected individual, as is more likely than not to have occurred in Dr Bourke’s case.
Psychological symptoms are seen in a significant proportion of patients with balance disorders, and these include anxiety, mood disturbance and sleep issues.
I believe that the diagnosis of Meniere’s disease, initially thought to be the cause of Dr Bourke’s disequilibrium, was most likely incorrect and that the vestibular migraine is the correct diagnosis. Unfortunately, the misdiagnosis of Meniere’s disease delayed Dr Bourke receiving effective treatment, which has included medication, vestibular therapy and mental health management. Dr Bourke’s future management will likely include tinnitus re-training therapy together with psychiatric and psychological consultation.
In my capacity as a neuro-otologist, vestibular migraine is the most common condition that I manage and is the most common presentation to our tertiary referral multi—modality balance disorders service at the Royal Victorian Eye and Ear Hospital, of which I am the head of clinic.
The Tribunal materials included a report dated 7 August 2020 by associate Prof Paul Spira. Prof Spira reviewed information contained in two folders of documents forward to him by solicitors for the respondent including the applicant’s service records and other medical reports. Prof Spira did not examine Dr Bourke for the purpose of preparing his report. In his report Prof Spira stated as follows:
Dr Bourke’s episodic recurrent vertigo appears to have had its onset sometime in 1994.
.. It seems that since that time Dr Bourke has experienced a number of associated complaints recurrently at variable frequency. The features have included the following components:
·Episodic sense of pressure within his ear/s
·Severe recurrent vertigo of a severity sufficient to result in falls
·Non-pulsatile tinnitus
·Episodic muffling of his hearing leading to eventual fixed hearing impairment
Dr Tan, who clearly has an interest in vestibular disorders, added that he had also complained of bifrontal headaches without any nausea or vomiting but with some photophobia and phonophobia.
… Dr Tan has suggested that Dr Bourke may be suffering from vestibular migraine. The alternative diagnosis of Meniere’s disease has also been proffered and I note that audiograms have demonstrated some low-frequency hearing impairment consistent with the diagnosis of Meniere’s disease. Nonetheless, formal vestibular functioning testing and electrocochleography have not provided any definitive findings.
I believe that the events which occurred between 24 September and 8 November 1973 were of a readily recognisable form and there can be little doubt about the diagnosis at that time in light of the contemporaneous documentation available. It is obvious that Dr Bourke had problems with blockage of his eustachian tubes preventing the normal drainage of the middle ear cavities to the oropharynx. This resulted in a buildup of fluid within the middle ear cavities as was seen on examination of the eardrums by both the RAAF outpatient medical officer and the ear nose and throat surgeon, Dr Stubbings. As expected with this condition, there was some improvement obtained through the use of nasal decongestants and insufflation of the eustachian tubes. During the flight on 9 October 1973, the fact that the eustachian tubes were blocked, prevented equilibration of pressure between the middle ear cavities and surrounding air pressure. With the fall in air pressure in the rising aircraft, this would have led to further outward bowing of the eardrums inducing significant ear pain. It is this which led to Dr Bourke seeking medical attention at the time. There was nothing in the history to suggest either Meniere’s disease or migrainous vertigo and Dr Bourke’s experience at that time is readily understandable on the basis of eustachian tube dysfunction alone.
There seems to have been a 20 year delay between the difficulties with eustachian tube dysfunction and Dr Bourke’s development of what is, in effect, Meniere’s syndrome. This term refers to a triad features consisting of episodic vertigo, tinnitus and hearing impairment, with the commonest cause of this syndrome being Meniere’s disease itself. I believe that, on the basis of information we have available, the most likely explanation for Dr Bourke’s course since 1994 is that he suffers from Meniere’s disease.
The term “vestibular migraine” has gained some popularity over the past decade but, I believe, on highly questionable grounds. It is mainly employed by neurologists with interest in vestibular disorders in trying to explain episodic and, often, non-specific giddiness in the absence of a viable diagnosis. The term is in fact controversial and migraine specialists tend to question the existence of this entity which is, at the very least, greatly over-diagnosed and usually with only a tangential link to any recognisable migrainous disorder. I believe this has indeed been the case with Dr Bourke for the following reasons:
1. Dr Bourke’s syndrome of episodic sense of pressure in one ear followed immediately by dulling of hearing, severe vertigo and tinnitus is absolutely typical Meniere’s disease. At multiple presentations with these symptoms, headache was not mentioned as an associated feature.
2. The diagnosis of vestibular migraine should never be entertained in the absence of the history of migraine. Dr Bourke does not have such a history. I searched his general practitioner’s records for any mention of a headache history to suggest migrainous events. GPs records covered the period 16 March 2009 to 26 July 2019. There was also a summary of past medical records prepared in 2002 covering the years 1987 to 2002. There was no mention of migraine in the records until the diagnosis of migrainous vertigo was suggested by Dr M Tan in July 2015, I believe in error. He was equivocal in providing that diagnosis and stated “I suspect some of Mr Bourke’s symptoms may possibly be related to vestibular migraine”. The general practitioner (Dr J Oxford) must have had some doubt about that diagnosis and Dr Bourke was obviously questioned by him about his headache history on 15 September 2017. Dr Oxford recorded “nil headaches- pt had a single headache in the past couple of decades when finishing PhD and spending long amounts of time on computer-relieved by new glasses.” This is not a history of migraine in any form.
3. The vast majority of migraine sufferers have clearly been identified as migraine sufferers by the time they reach the age of 30. It is exceedingly rare for migraine to develop for the first time in the mid-40s.
4. Dr Bourke does not meet the diagnostic criteria for migraine over the period of documentation.
5. Some neurologists who favour the use the diagnostic category “ vestibular migraine” suggest that the vestibular disorder itself merely represents an unusual migraine aura. If this was so one would not expect the company features of tinnitus and hearing loss, features suggesting end-organ dysfunction (i.e. vestibular apparatus and cochlea) rather than involvement of brainstem structures which would not produce such syndromic and clearly lateralised features. Furthermore, the vertigo represented in a migraine aura, should be followed by a typical migraine headache with its recognisable features. This is not the history provided by Dr Bourke.
… Overall the picture provided is a textbook description of Meniere’s disease and furthermore there has been low frequency hearing impairment recorded since that time, a further feature of Meniere’s and not a feature of vestibular migraine.
In his report Prof Spira expressed his agreement with the conclusions of Dr Saha dated 6 July 2001 in which he indicated his belief that Dr Bourke suffered from Meniere’s disease. Prof Spira also noted in relation to Dr Earle’s opinion of 13 June 1996 there was no mention of headache in the symptom complex and that Dr Earle’s Report had noted the low frequency hearing loss on the right.
In an undated letter received on 18 December 2020, Dr Szmulewicz provided a response to Prof Spira’s opinion noting the following:
It does not appear that Assoc Prof Spira had access to potentially relevant information such as clinical notes and investigation results from our service as well as other clinics, and my own correspondence and reports.. These support a diagnosis of vestibular migraine (VM) and do not support a diagnosis of Meniere’s disease (MD).
… With regard to clarity, the use of the term “Meniere’s syndrome” is potentially problematic. It is not a widely accepted or a well defined term and has been used as an acknowledgement by some in the field that the underlying disease process (pathophysiology) in MD remains somewhat uncertain, in particular, that the endolymphatic hydrops is not universally present in cases of MD which meet the diagnostic criteria (AAO-HNS).
“Belief that most likely explanation is MD” - I do not believe that Dr Bourke meets the AAO-HNS Meniere’s disease guidelines for the diagnosis of Meniere’s disease. I am uncertain whether Assoc Prof Spira had considered these guidelines.
… Additionally, the report does not broach the topic of VM and its overlap with MD, which I believe is instructive in expanding on the complexity and nuances involved in diagnosis and why this is best established by a neuro-otologist, as well as supporting the diagnostic entity of VM not only in vestibular medicine but also in migraine practice.
In a further letter dated 10 March 2021 associate Prof Spira made a number of statements in response to Dr Szmulewicz’s undated letter including the following:
With respect to the report of Dr Szmulewicz it appears that this was largely a critique of my own report. Overall, he appears to be arguing on definitional issues rather than addressing the specifics of Dr Bourke’s case.
… Dr Bourke fails to meet [the diagnostic criteria of vestibular migraine] on the most fundamental point, i.e. the need for a personal history of migraine with or without aura. Dr Bourke has no such history.
Dr Szmulewicz and Prof Spira also gave evidence at the hearing. The Tribunal is satisfied that both Dr Szmulewicz and Prof Spira are highly credentialed specialists well qualified to be giving expert in opinions in the present matter.
There is clearly significant disagreement between them both in their written opinions and in their evidence provided at the hearing itself.
A central aspect of disagreement centred around the applicant’s history of headaches and migraine. The Tribunal accepts that the 2018 Migraine SoP (together with its predecessor) requires that to be reasonably satisfied that the applicant was suffering vestibular migraine it is a necessary precondition that the applicant had “A current or past history of migraine without aura or migraine with aura”. The Tribunal is also satisfied that a tension headache does not meet that criteria. Dr Szmulewicz in his evidence conceded these points.
In his oral evidence Dr Szmulewicz told the Tribunal that there were features of the applicant’s symptoms that you would not expect to see in a person suffering Meniere’s disease and one such example he provided was that the applicant had suffered “headaches, more specifically bifrontal headaches on both sides”. Dr Szmulewicz told the Tribunal he understood the applicant had experienced several episodes of headaches in the 1990s. Dr Szmulewicz conceded in evidence that he had relied in part on Dr Tan’s report for his understanding the applicant’s history when preparing his June 2017 report, and that he did not himself have contemporaneous notes of the history the applicant had provided.
In cross examination it was put to Dr Szmulewicz that he had based his observation of the applicant experiencing episodes of headaches, both in his oral evidence and in his report, on the reference to headaches in Dr Tan’s report and that his reference appeared inconsistent with the applicant’s GP clinical records.
In his written report Prof Spira had stated that from his review of the applicant’s records he could not find a history of headaches and certainly no history of migraine. He expressed a belief that Dr Tan had misinterpreted the clinical notes when including the reference to headaches in his report.
Dr Szmulewicz was taken to the record of the applicant’s GP, Dr John Oxford, which was made a few months prior to Dr Szmulewicz’s June 2017 report. Dr Oxford’s record notes “-strange sensations in the head - not painful – 3/52 ago – pin point sensations on L parietal area of scalp then frontal and then generally over the top” and then on the second line reads “- nil headaches - pt had a single [headache] in the past couple of decades when finishing PhD and [spending] long amounts of time on computer – [relieved] with new glasses”.
In response Dr Szmulewicz told the Tribunal that he was not convinced that was where Dr Tan had got his refence to the applicant suffering headaches from. He told the Tribunal that he found the GP’s note somewhat contradictory and was concerned about the quality of it.
Dr Szmulewicz was then taken to the record of Dr Caroline Tinston on 30 August 2010 which notes the reason for the visit as being moderate, tension headache noting “few months of type headaches some from neck - tight - also some tightness and throbbing temple - Assessment: tension headaches - just finished PhD 2 months ago”. Dr Szmulewicz conceded that tightness of headache did not equate to pulsating migraine for the purpose of the ICHD-3 criteria. A further record of Dr Caroline Tinston on 9 September 2010 noted “headaches much better”. There was also a reference to a consultation with Dr Shafiqul Islam on 20 September 2010 which noted “constant mild headache”.
The respondent contends these are the only contemporaneous GP records that evidence the applicant suffering headaches and that they are attributable to the period the applicant was undertaking his PhD and his post-doctoral research. The Tribunal accepts that contention. The Tribunal also accepts the applicant’s evidence given at the hearing that he does not have a history of significant headaches and has never suffered migraines.
The respondent’s counsel put to Dr Szmulewicz that the clinical records evidence tension headaches around the time the applicant was completing his PhD with no record of associated nausea or vomiting and that those records represent the only documented history of headaches in the 20 years prior to 2017. Dr Szmulewicz replied that he was not certain Dr Tan’s reference to a headache history is referencing the same period referenced in the GP notes but he is relying on Dr Tan’s recorded history of headaches over the GP clinical notes. Dr Szmulewicz continued to press his view that the applicant’s history as recorded by his practice is nonetheless sufficient to satisfy the ICHD 3 criteria of a history of migraine for the purpose of diagnosing vestibular migraine.
The Tribunal found Dr Szmulewicz’s evidence in this respect unpersuasive and does not accept it. The Tribunal is satisfied that the only documented history of the applicant suffering headaches in the clinical records are those of the applicant’s GP’s referencing the period during which he was completing his PhD and undertaking his post-doctoral research. The Tribunal is satisfied that they do not constitute a history of migraine that would satisfy the diagnostic criteria for vestibular migraine for the purpose of ICHD 3. The Tribunal is also satisfied that Dr Szmulewicz had relied on Dr Tan’s record of the applicant’s history of headache for the purpose of his June 2017 report and that, consistent with Prof Spira’s stated belief, Dr Tan’s history was based on a misunderstanding of the GP clinical records. In the Tribunal’s view these conclusions fundamentally undermine the reliability of Dr Szmulewicz’s opinion more broadly, as well as that of Dr Tan.
In addition, the Tribunal also does not accept Dr Szmulewicz’s evidence on the issue of the applicant’s hearing loss and whether it is or is not indicative of Meniere’s disease. Again, the Tribunal prefers the evidence of Pro Spira on the point. Dr Szmulewicz told the Tribunal in his oral evidence that in his view the applicant did not have a pattern of hearing loss indicative of Meniere’s disease. Prof Spira told the Tribunal that from about 1995 the testing results showed a very specific loss at about 1000 hertz. Prof Spira told the Tribunal that in his opinion this represented a mid to low frequency hearing loss typical of Meniere’s disease. He stated that it also is suggestive of tinnitus which is a feature of the condition. In addition, Prof Spira noted that the applicant’s hearing tests in 1995 and 1996 showed an issue in one ear which was another feature of the condition. Prof Spira told the Tribunal that the subsequent test results were also indicative of the condition and of a progressively worsening condition. The Tribunal found Prof Spira’s evidence on this point highly credible and persuasive and accepts his evidence.
The Tribunal also accepted Pro Spira’s evidence that Meniere’s disease is episodic and that the fact that the applicant’s condition involved extended periods where there were significantly less severe symptoms and even the apparent resolution of the symptoms, is not inconsistent with Meniere’s disease.
The Tribunal had other concerns regarding the reliability of Dr Szmulewicz’s evidence. The Tribunal was left with the distinct impression that Dr Szmulewicz had initially formed his opinion that the applicant was suffering vestibular migraine on a wider or less precise criteria than that established for the purpose of ICHD 3 and that he was endeavouring to make his pre-conceived opinion fit within the ICHD 3. In his oral evidence Dr Szmulewicz told the Tribunal “well, the truth is that people like me who are doing this day out, day in don’t sit there and go through the criteria, so it’s a clinical impression”. This is also consistent with observations he made in letters dated 26 March 2018 and 10 March 2019.
The Tribunal also accepts the respondent’s contention that the manner in which he modified his letter of 31 May 2017 to remove the words “entirely possible” and substitute the words “more likely than not” raises some question regarding the extent of independence and objectivity in the opinion Dr Szmulewicz has provided in respect of this matter. The Tribunal does not wish to suggest that Dr Szmulewicz had moulded his opinion at the request of the applicant but the manner in which the letter was changed after a request from the applicant does suggest some wish to be helpful to the applicant in the presentation of this case.
In contrast the Tribunal found Prof Spira’s evidence, both his written reports and also his oral evidence, to be extremely well considered, consistent and credible. The Tribunal acknowedlges that Prof Spira did not examine the applicant. However, the Tribunal is satisfied by the comprehensive nature of his written reports and the quality of his oral evidence that the absence of a physical examination in this instance does not warrant reducing the weight of Prof Spira’s opinions. The Tribunal also accepts that Prof Spira expressed some concern about the frequency with which vestibular migraine is sometimes diagnosed in a general context. The Tribunal, however, is satisfied that Prof Spira clearly explained the basis for his view and the Tribunal did not understand his evidence to reflect a lack of independence or objectivity when considering the applicant’s symptoms and determining the appropriate diagnosis.
The Tribunal accepts Prof Spira’s opinion that a diagnosis of vestibular migraine should not be accepted because:
(a)at multiple presentations the applicant presented with symptoms including an episodic sense of pressure in one ear followed immediately by dulling of hearing, severe vertigo and tinnitus and that at each of these presentations headache was not mentioned as an associated feature. The Tribunal accepts Prof Spira’s opinion that these symptoms are typical of Meniere’s disease and also consistent with the diagnostic criteria set out in the 2015 Meniere’s SoP.
(b)A diagnosis of vestibular migraine requires a clear history of migraine and that the applicant does not have such a history.
(c)The vast majority of migraine sufferers have clearly been identified as migraine sufferers by the time they reach the age of 30 and that it would be “exceedingly rare” for the applicant to have developed migraine for the first time in his mid 40s.
(d)The applicant does not meet the diagnostic criteria for migraine.
(e)The applicant does not meet the diagnostic criteria for vestibular migraine.
(f)That having regard to the applicant’s whole history as evidenced by the independent medical records it is evident that “Dr Bourke’s episodes since 1994 are typical of Meniere’s disease”.
The Tribunal is also satisfied, that the weight of the medical opinions prior to Dr Tan’s report in 2015 also support a diagnosis of Meniere’s disease.
For these reasons, the Tribunal is satisfied that the correct diagnosis of the applicant’s claimed condition is Meniere’s disease and not vestibular migraine.
The respondent contends that in circumstances where the Tribunal finds that the correct diagnosis of the applicant’s claim condition is Meniere’s disease, that the Tribunal should have careful regard to and adopt the findings of the previous Tribunal decision that considered that condition and its connection to the applicant’s service. This refers to the previous decision of Senior Member Webster on 28 January 2000.
The respondent has referred the Tribunal to relevant case law that has considered the question regarding the appropriateness of reopening a previous finding of the Tribunal in the absence of fresh compelling evidence that would provide a reasonable basis for questioning the reliability of the previous decision. That case law is described below.
In Re Quinn and Australian Postal Corporation [1992] AATA 668 the Tribunal stated as follows:
Section 33 of the Administrative Appeals Tribunal Act 1975 provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, the Tribunal conducts itself.
It would seem inappropriate and unreasonable to us for there to be re-litigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and re-litigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.
The Full Court in Morales v Minister for Immigration and Multicultural Affairs stated as follows:
The procedural flexibility that the AAT Act gives to the Tribunal has been seen as a source of power not to allow a matter finally determined before it to be relitigated…
In our view, essentially administrative nature of the Tribunal’s function and the nature of its task in looking to the correct or preferable decision, in circumstances where it is to have regard amongst other things to the dictates of fairness, point to the conclusion that the Tribunal may, in appropriate circumstances, conclude that a previous decision should be applied again as the correct and preferable decision when it is sought to revisit the earlier decision at some later time. Of course, the circumstances that a Court has set aside an entire decision may mean that it is either impermissible, or quite inappropriate, to adopt such a course but that would not necessarily be the case where, as here, a particular determination had not itself been the subject of challenge.[5]
[5] (1998) 82 FCR 374 at 390.
The principle has been acknowledged again in the Full Court in Rana v MRCC where it was stated that:
The task of the Tribunal under the AAT Act is, albeit very generally expressed, to reach the correct or preferable decision on the merits (s43) and in doing so to “ensure that every party…. is given a reasonable opportunity to present his or her case…” (s.39).[6]
In discharging those tasks, in an appropriate case, the Tribunal may have regard to the findings of fact made between the same parties in earlier proceedings before the same or a differently constituted Tribunal. Although a Tribunal may not be bound to make the same findings of fact, findings previously made-especially after a contested hearing-may appropriately be adopted in subsequent proceedings. It’s freedom to do so may well depend upon the facts and circumstances of each individual case. There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made.[7]
[6] [2011] FCAFC 80; (2011) 55 AAR 300 at 26.
[7] [2011] FCAFC 80; (2011) 55 AAR 300.
As noted in the respondent’s submissions, the Full Court in Rana noted that it would be imprudent to attempt to identify an exhaustive set of circumstances where a party should be given an opportunity to relitigate an issue but provided some non-exhaustive examples including:
(a)where a party was previously unrepresented and where there may now be a more thorough and focused cross-examination of the evidence;
(b)where a party wishes to adduce evidence that was not previously available;
(c)where the Tribunal is of the view that the “correct or preferable” finding is one different from that previously made.
The Full Court in Rana also observed that the general principle should not operate in such a way that Tribunal would deny party natural justice by re-applying previous Tribunal findings.
In Re Eylward and Comcare Senior Member Hastwell also considered this principle and stated as follows:
However, the use of the powers under s 33 of the AAT Act is not confined to consideration of estoppel. The issue of causation was raised in the 2003 application and was fundamental to the success or otherwise of that application. It is being raised again in the current application. Considerations of estoppel may be taken into account by the Tribunal in deciding whether to exercise its powers to dismiss an application or allowed to proceed under s 33 of the AAT Act. Nevertheless, it remains a discretionary matter for the Tribunal as to whether to dismiss an application in particular circumstances.
……..Having considered all the material before the Tribunal, including the medical evidence upon which the applicant intends to rely in pursuing the current application, the Tribunal is satisfied that the applicant brings nothing new to the Tribunal with respect to issues of causation.
It is accepted principle that issues of incapacity and impairment can be reconsidered by the Tribunal where there are changed circumstances or new events that have altered prior levels of impairment or incapacity. Liability is a different issue. Once the Tribunal has determined that a respondent is not liable for a particular injury that gave rise to incapacity and/or impairment, then it should only be in unusual circumstances where fairness and justice to the parties requires a redetermination and/or where there is significant new evidence which would justify the Tribunal re-opening the issue of liability, that an applicant should be allowed to reopen that issue and seek a new determination…[8]
[8] [2008] AATA 63.
The principle was also considered in the case of Re Marinov and Comcare [2006] AATA 223. In that case the Tribunal stated:
... ...generally, a matter that has once been decided by the Tribunal should not be revisited or relitigated unless, with an eye to fairness and justice to the parties, and the requirement for the Tribunal to make the correct or preferable decision, there is good reason to do so.
In all of the circumstances of this case, and having considered all of the evidence before it, the Tribunal is satisfied that the issue of the connection of the applicant’s claimed condition of Meniere’s disease and his relevant service has been the subject of a previous determination by the Tribunal constituted by Senior Member Webster. In his decision, Senior Member Webster decided that he was not reasonably satisfied that the applicant satisfies the relevant Meniere’s SoP. He also decided that he was not reasonably satisfied that the applicant suffered Meniere’s disease in 1973 or that he did not obtain appropriate clinical management for Meniere’s disease, if that was the condition from which he was suffering during his relevant service. That decision was not subsequently challenged. The Tribunal is satisfied that both the parties had a fair and reasonable opportunity to fully litigate the issue in respect of that decision. Having considered the decision of Senior Member Webster, and having assessed the evidence before the Tribunal, the Tribunal is satisfied that there is no reasonable justification for reopening the previous determination made by Senior Member Webster on the issue. The Tribunal is satisfied that there is no fresh and compelling evidence that should cause the Tribunal to reopen the issue. Having considered the whole of the evidence, the Tribunal is satisfied that the conclusions reached by Senior Member Webster are plainly correct.
Accordingly, the Tribunal adopts the findings and determination made by Senior Member Webster in respect of the connection of the claimed condition of Menier’s disease to the applicant’s service for the purpose of its decision in this matter.
In the Tribunal’s view, the correct or preferable decision in the circumstances of this case is for the decision under review to be set aside and for the original decision of a delegate of the respondent dated 12 March 2015 to be reinstated with full effect.
DECISION
The decision under review is set aside and the original decision of a delegate of the respondent dated 12 March 2015 is reinstated.
| I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of |
...[sgn].....................................................................
Associate
Dated: 11 July 2023
| Dates of hearing: | 24 and 25 November 2022 |
| Representative for the Applicant: | Mr Hart |
| Solicitors for the Applicant: | Rae & Partners |
| Representative for the Respondent: | Mr Schatz |
| Solicitors for the Respondent: | Australian Government Solicitor |
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