Connelly and Military Rehabilitation and Compensation Commission (Compensation) - [2021] AATA 702

Connelly and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 702 (30 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7245
Re:Barbara Connelly
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Dr Peter Fricker OAM, Member

Date:30 March 2021
Place:Canberra

The reviewable decision of 6 December 2018, refusing Mrs Connelly compensation pursuant to s 17 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, is affirmed.
.......................................................................
Deputy President Gary Humphries AO
Presiding Member
Catchwords
COMPENSATION – Military Rehabilitation and Compensation Commission – liability for injuries resulting in death – where cause of death is unknown – where multiple causes possibly implicated in fall resulting in death – whether death was contributed to a significant degree by his service – whether Applicant is entitled to the benefit of the doubt in uncertainty – Tribunal not satisfied that compensable conditions resulted in death – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Compensation (Commonwealth Government Employees)Act 1971
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
Brackenreg v Comcare [2010] FCA 724
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Comcare v Martin [2016] HCA 43
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lees v Comcare [1999] FCA 753
McAuliffe v Comcare [2002] FCA 769
McDonald v Director-General of Social Security (1984) 1 FCR 354
Secondary Materials
Department of Veterans Affairs’ Policy Manual
Duignan, Brian. ‘Occam's razor’. Encyclopedia Britannica (Web Page, 5 Aug. 2020), < FOR DECISION
Deputy President Gary Humphries AO
26 March 2021
INTRODUCTION

In the small hours of the morning of 21 January 2017 Mr Langton (“Blue”) Connelly – a 91-year-old RAAF veteran – fell while walking to the bathroom and struck his head. That morning he was taken to the Canberra Hospital. Later that night Mr Connelly was found lying in a corridor, having suffered a second fall. A few days later he died at the hospital, the cause of death being listed as subdural haemorrhage.
[W]hatever happened to Blue Connelly on that night is completely unknown, Dr John Howe, his GP, later told the Tribunal. [1] This statement defines the challenge faced by the Tribunal in determining the application for compensation made by his widow, Mrs Barbara Connelly. It also dictates, ineluctably, our conclusion that her application must be refused.
[1] In this decision, italics generally connote a direct quotation.
BACKGROUND
Mr Connelly served in the Royal Australian Air Force between April 1943 and July 1982. His service gave rise to medical conditions which were recognised as compensable. At the time of his death he had accepted claims under the Act in respect of the following conditions (the Compensable Injuries):
(a)cervical and lumbar spondylosis with disc protrusion, especially at L4/L5 level; and
(b)osteoarthritis of the right knee with two loose bodies.
Following her husband’s death, Mrs Connelly submitted a claim for compensation pursuant to s 17 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the Act). She did so on the basis that she was wholly or partially dependent on him at the time of his death. The Military Rehabilitation and Compensation Commission (the Commission), by determination dated 27 July 2017, denied liability in respect of Mr Connelly’s death. Mrs Connelly sought reconsideration of this decision but on 6 December 2018 the Commission affirmed its earlier determination. On 18 December 2018 she applied to the Tribunal for merits review of the Commission’s decision.
Due to the coronavirus pandemic the hearing of this application was conducted by videoconference, with some witnesses appearing by telephone. The Tribunal is satisfied that the parties were given a reasonable opportunity to give evidence and present their arguments at the hearing, noting sections 33A and 39 of the Administrative Appeals Tribunal Act 1975.
MRS CONNELLY’S EVIDENCE
Mrs Connelly gave evidence by telephone. She became a nurse in 1963. She and Mr Connelly married in May 1989. She took an interest in the management of his medication from then on.
Mr Connelly developed nocturia in the last 10 years of his life, necessitating getting up 4-6 times a night. To reach the toilet from their bed, he needed to travel five or six steps, she said. There were no trip hazards.
Under cross-examination, she said that she was asleep at the time Mr Connelly fell early in the morning of 21 January 2017. She said she was with him at the hospital until about 9 o’clock that night, but when she returned the next morning she observed a massive change, complete change in his presentation since the night before.
She was taken to a consultation record of cardiologist Dr Deborah Hayes of 25 September 2015, where the latter recorded [Barbara] says blood pressure occasionally drops very low. She was asked if she recalled that occurring. She responded:
Well, I mostly remember it being high, but I expect there may have been times when it went low. It was very difficult to control, his blood pressure.
In answer to a question from the Tribunal, she said that she had only noticed a problem with foot drop in that later time; at one point he experienced paralysis of his foot for a period of about 7-10 days. He had only had one fall – up a step – in the last two or three years of his life, in an unfamiliar environment. It was a trip, she said. However, she had not observed him ever faint in this period. When asked if he could feel light-headed or dizzy, she said, not that he told me about. Blue was very good at keeping things to himself.
MR CONNELLY’S MEDICAL HISTORY
The following history appears from medical records tendered and other evidence taken at the hearing.[2]
[2] Paragraphs [12]-[55] reflects the summary of Mr Connelly's medical history contained in the Commission's Statement of Issues, Facts and Contentions dated 27 November 2019. Mrs Connelly's representative accepted the accuracy of the Commission’s summary.
Mr Connelly experienced problems with his back, including a disc lesion at the L5/S1 level, from as early as October 1960. On 5 April 1982 he claimed compensation in respect of cervical and lumbar osteoarthritis and their sequelae. The condition was reported to have developed as a result of an incident in or around July 1958, described as follows:
Whilst carrying out airborne test on aerial cameras at 20,000 feet I lost my grip on one camera and in saving it from falling from the aircraft I injured my back. The camera weight was 90 – 100 lbs.
By determination dated 29 October 1982 the Commission’s predecessor accepted liability under the Compensation (Commonwealth Government Employees) Act 1971 in respect to cervical and lumbar spondylosis with disc protrusion especially at L4-5 level, sustained in 1958.
In April 1997 he had a pacemaker inserted to address the effects arising from sick sinus syndrome. From 2007 onwards he consulted with Dr Hayes. Dr Hayes closely monitored Mr Connelly’s cardiac health and made running adjustments to his medication and pacemaker settings, in order to achieve optimal control of his symptoms. In a report dated 3 September 2007 she reported on developments whilst Mr Connelly was overseas in the UK, when he was hospitalised twice, once after experiencing chest pain and the other after fainting on the lavatory.
On 5 May 2008 Dr Hayes recorded the following history:
As you say, his main concern is lethargy, so that he feels pretty exhausted after lunch time. This seems to be a feeling of fatigue, rather than problems with exercise, as such, although he does become breathless when he pushes himself. As he points out, however, he has to get up at least every two hours, all night, because of nocturia which is probably what is causing the lethargy.
On 25 May 2008 she reported that Mr Connelly returned to see her earlier than planned, due to episodes of being dizzy, for no particular reason. She changed his pacemaker settings.
Mr Connelly was admitted to the Prince of Wales Hospital between 27 December and 31 December 2008 for what the discharge summary described as a PR bleed and syncopal episode. He was hospitalised again at the Canberra Hospital in June 2009, in relation to HT, AF, sick sinus syndrome, PPM, and PR bleed, having presented after 2 episodes of dysarthria and ataxia lasting 1 – 3 hours. His neurological assessment was reported as being normal on examination at the time of admission, but the notes record that he developed transient mild dysarthria and ataxia several times whenever his SBP dropped below 130 mmHg. The discharge summary records a primary diagnosis of transient ischemic attack (TIA), and noted that he suffered from postural hypotension (>20mmHg drop from lying to standing). The discharge summary noted that his systolic blood pressure would need to be maintained above 140-150 mmHg to avoid TIA symptoms.
Further records from his GP’s practice note a history of TIAs (secondary to low blood pressure) dating from 2009.
Mr Connelly was under the long-term care of Dr Eddie Cassar (Consultant Physician) and Jac Cousin (Physiotherapist) in relation to lower back pain. In 2009 he received six courses of acupuncture over 6 weeks in relation to his back. However, on 27 August 2009 Dr Cassar reported Mr Connelly had suffered a relapse of degenerative spondylosis. He reported that he usually responded fairly quickly to standard acupuncture and this would be offered 1-2 times per week. He expected resolution of discomfort and functional incapacities within 4-6 treatments.
Mr Connelly saw Dr Hayes on 5 September 2010, on account of breathlessness. Her records note:
In fact, what he describes in (sic) the episodic need to take a deep breath. He thinks it takes about 1:00 minute for his breathing to catch up, and to get oxygen back to his brain. Interestingly, these episodes never occur at night. They may occur at rest, or perhaps more often on exertion. There are no associated features.
Looking back through his notes, I think he has had similar symptoms for a while, but was concerned about them …
Mr Connelly saw Dr Hayes on 9 October 2010 with worsening shortness of breath. His pacemaker settings were adjusted, and a stress test was arranged. He saw her again on 21 March 2011, when she noted he became breathless when walking up a hill, but was comfortable otherwise. She noted he continued to have episodes of breathlessness and pallor, in association with chest discomfort when leaning back. He was doing daily exercise to manage his back problems. Dr Hayes noted being concerned about low blood pressure. She also noted Mr Connelly was becoming significantly kyphotic, and she queried whether more osteoporosis treatment was required.
Mr Connelly saw her on 22 August 2012. Dr Hayes reported he had reached a stage where his atrial fibrillation would become more of a problem. She outlined that breathlessness was probably more related to his lungs than his heart, but stated it could be a reflection of inadequate heart rate response with exertion (amongst other possibilities). She adjusted his pacemaker to help with exertional dyspnoea.
On 25 January 2011 Mr Cousin reported Mr Connelly had been having more frequent and persistent problems with his lower back, right knee, and right hip over the past year. He was also becoming significantly more kyphotic. Exercises were reportedly not as helpful as in the past, and Mr Cousin queried whether he may also have ankylosing spondylitis.
On 30 April 2013 Dr Hayes recorded the following history:
…dizzy episodes on getting up at night following painful neck problem – has to sit on side of bed until it resolves. May also happen if bends head down and back repeatedly
no change to tablets
getting up at night longstanding problem (nocturia q 2 hourly or so)
A bone scan taken on 11 July 2013 was reported to show multilevel disc disease.
On 1 May 2013 he again saw Dr Hayes. The record indicates the reason for appointment was pacemaker check, dizziness. Dr Hayes recorded:
I checked Blue and his pacemaker on 21st January, having removed the minute ventilation feature when I saw him last. This confirmed that his palpitations had settled and were therefore due to [what looks to me otherwise] to be appropriate pacing rate.
At that time, his pacemaker parameters had been under-sensing AF, so I adjusted them accordingly.
He came back to me on 30th April, as he developed dizziness. His description is of probably vertigo rather than light-headedness on getting up at night, so that he has to sit on the side of the bed until symptoms resolve. This may also happen if he bends his head down and then back repeatedly. His approximately second hour nocturia has been going on for a long time, so it is not just that he is getting up at night, whereas previously he used not to. There has been no change in his medication.
… CONCLUSION:
Dizziness is unrelated to the heart and he wonders if it is to do with his neck, as he started to have pain in his neck just before the dizziness began.
On 5 October 2013 Dr Cassar reported Mr Connelly was getting on in years noting his developing progressive kyphosis as well but was reported to be coping at that time.
On 10 January 2014 Dr Hayes reported that, over the course of 2013, Mr Connelly began to notice exertional breathlessness. She reported that he sometimes wakes at night, taking a deep breath whilst in bed, particularly if he lies on his back. He was quite troubled by nocturia. She noted that his breathlessness was likely due to pulmonary fibrosis, but noted that, whilst she was not expert, she did not consider the condition required specific treatment.
In February 2014 Dr Cassar proposed a pain/rehabilitation plan consisting of examination, acupuncture/laser treatment, potential CT guided spinal injections and rehabilitation assessment.
In August 2014 Dr Howe completed two medical reports for the Department of Veterans’ Affairs, in which he reported:
(a)Mr Connelly suffered spinal kyphosis/scoliosis and spondylosis of the entire spine, generalised osteoarthritis and osteopenia. The conditions were significantly affecting his gait, posture and mobility;
(b)He suffered sick sinus syndrome and paroxysmal atrial fibrillation, controlled by a pacemaker, but which leaves him breathless, lethargic and suffering from palpitations;
(c)He was using a walking stick. He suffered intermittent right leg sciatica, which lasts until treated. He also suffered back pain with muscle spasms, when seated or standing.
On 21 April 2015 Dr Cassar reported that Mr Connelly’s kyphosis and accompanying mechanical back disorder, mostly lumbar with leg pain radiation issues, necessitated treatment from time to time, mainly in the form of acupuncture and deep tissue laser. He reported:
Such interval treatment gets him out of relapses and fortunately this has kept him mobile to a reasonable degree, as I note when I can attend…a Sunday church service.
On 16 June 2015 Dr Hayes recorded the following:
gradually worsening dyspnoea with exertion: now 17 steps at home make him breathless, and dyspnoeic on daily 1 hr or so walk around plaza. No associated symptoms to suggest angina…
Vertigo on lying down yesterday, settled rapidly but blood pressure to 224 or so then and for a period afterwards, thence to CALMS where [glyceryl trinitrate] patch applied (blood pressure came down but headache kept him awake).
Usual blood pressure around 170 systolic.
2 – 3 weeks ago, noted numbness of right arm in bed – seen by Dr Cassar (for pain) who did nuclear medicine scan of some sort of neck – conclusion = “old age” (no investigation re arteries) …
Diagnosis: dyspnoea probably combination of crackles / age / hypertension with diastolic dysfunction / poor increase in heart rate with exercise
Vertigo probably the cause of hypertension rather than cause
??? [significance] of carotid area bruit.
On 10 July 2015 she noted Mr Connelly had been unwell following previous changes in therapy. His medications were modified.
On 25 September 2015 Mr Connelly reported being well in general, apart from high blood pressure in the evenings if he was unable to get up and walk. He reported sometimes not feeling well, and when his pulse was checked at those times, it was more irregular than usual. Mr Connelly’s wife reported his blood pressure occasionally dropped very low, and Dr Hayes noted there was a past history of TIAs, meaning he should be formally anticoagulated. On 14 October 2015 Dr Hayes recorded that his breathing was slowly worsening, particularly if he tried to do something quickly. He was, however, managing one hour of exercise per day. She planned to attempt increasing his impaired heart rate response to exertion.
On 20 May 2016 Dr Mr Connelly saw an anaesthetic and pain specialist, Dr Anandhi Rangaswamy, who reported that his lower back pain had been worsening over the past year or so. Mr Connelly reported lower back pain with radiation down the right leg to the knee most of the time, about 6/10 on average, with exacerbation to 10/10 with certain activities like bending or stretching. Two days later he again saw Dr Rangaswamy, who planned to perform a right L4/L5 and L5/S1 diagnostic median branch block and right sacroiliac joint injection.
On 25 May 2016 Dr Hayes reported that Mr Connelly was experiencing dyspnoea: essentially respiratory - ??? even aspiration. She suggested respiratory review if he wished to take dyspnoea further. On 31 August 2016 Leanne McGilvray, an occupational therapist, recommended home modifications (a stair lift to internal stairs and bathroom handrails).
Mr Connelly attended Mr Cousin for physiotherapy on 18 occasions in the 12 months prior to his death. He presented on 3 occasions in December 2016 and 3 occasions in January 2017, the last being 18 January 2017.
On 21 January 2017 at approximately 10:20am Mr Connelly was assessed by ACT Ambulance officers in his home. The electronic patient care record records the following:
Hx
Cause
Fall on same level
Description
[Patient] had an accidental fall at 2am this morning and hit R side of body on chair. since then increasing pain in R lumbar area (pre-existing back injury) and muscular neck area. increasing haematoma R eye. no new neurological def. hx of hard to control hypertension (strong reaction to most anti-hypertensives). improvement post gentle dose of morphine especially headache.
Assessment
Primary Survey
no immediate life threat
Secondary Survey
Pain described as aching Head
Neck (Generalised)
Left Lumbar Region
Right Lumbar Region
Bruising / haematoma eye
Orbit
He was conveyed that morning by ambulance to the Canberra Hospital, where he was seen in the Emergency Department. An Emergency Department Triage sheet recorded the following:
UNSTEADY ON FEET FALL GOING TO TOILET AT 0200 HRS. HIT CHAIR. R. PERIORBITAL SWELLING, LOWER LUMBAR BACK PAIN.
ORIENTED. PH. PPM [Permanent pacemaker], CVA, ON PRADAXA.
He was assessed by a doctor in the Emergency Department at 11:50am that day, when the following history was recorded:
91 yo male.
·Mechanical fall @ 0200 today
·Headstrike to right side of head against small table
·Nil LOC
·Nil nausea, dizziness, change in cognition …
·Was able to get up, but reports neck pain
PMH
Sick sinus syndrome. Has PPM.
GORD
Hypertension. Poorly controlled.
BPH.
Chronic lower back pain.
TIA
Nill [illegible]
Non-smoker
Nil ETOH
Independent [activities of daily living]. Lives with wife.

An X-ray of the chest was obtained the same day. The following history was recorded:
91 Y.O M: MECHANICAL FALL 0200 HR. SUSTAINED PAIN TO RIGHT SIDE OF CHEST. NIL SHORTNESS OF BREATH OR PLEURITIC CHEST PAIN. HOWEVER, SPO2 93-94% RA, AND TENDER TO LATERAL ASPECT OF RIGHT CHEST WALL CXR REQUESTED AS BASELINE ASSESSMENT.
Mr Connelly was assessed by the Neurology registrar at the hospital at 3:30pm. The following history was recorded:
91yo [male]
B/G SSS, PPM, TIA’s – on Plavix (Dr Hayes, Cardiologist)
HTN, chronic ↓
N at home [with] wife, I [with] stick + frame
Trip + fall at home ~2am. Hit forehead. [nil] LOC [nil] seizure.
Some [headaches] since (improving). [Normal] speech + alertness
O/E GCS 15, alert / well.
[nil] facial or UL/LL weakness
[nil] UMN signs.
Mr Connelly was assessed by a Registrar at around 5:30pm. The Registrar recorded that he presented with a mechanical fall with head injury.
Still on 21 January 2017, a CT scan of the brain was obtained. The CT scan was reported to show bilateral subdural haematomas, on a background of ischaemia and mild generalised central atrophy.
In a nursing progress note dated later that night, time stamped 21:00, the following history was recorded:
Nursing 8B. Pt admitted to ward 8B @1650h from ED. Pt obs taken + neuro obs. R IVC removed. Pt ambulate to toilet via w/walker assisted by wife. Pt c/o neck pain, PRN fentanyl 25mcg s/c given with good effect. Pt tolerating diet + fluids. Pt vomited pre- dinner about 50mls. Pt [resting in bed], nil issues.
In the next nursing progress note, time stamped 23:45, the following was recorded:
Nursing entry: Pt’s care taken over at 2130 hrs Pt alert C/O ↑ neck pain had fentanyl 25mcg given at 2200hrs. Vomited ± 400mls greenish food stuff antiemetics given. At 2315 hours Pt found on the floor in the corridor outside his room. Pt had vomited +++ [with] vomitus on his gown. Pt awake sustained skin tear Rt elbow. Pt cleaned transferred from floor with sling lifter. RMO notified and coming … Obs done GCS 15 at 2339 hrs BP ↑ 211/89. Rechecked again. Pt’s GCS fluctuating disoriented. BR rechecked 195/87. RMO in attendance.
Shortly after midnight on 22 January 2017 a doctor recorded the following history:
91 y M admitted post-fall resulting in bil. SDH.
SSS on PPM              LBP
GORD            TIA
Poorly controlled HTN …
Presented to ED on 21/1 post – mechanical fall at home with head strike. Only symptom headache.
CT B → Acute b/l SDH → 15mm on R
11 mm on L
Mass effect.
[Neurosurgical Registrar] →   on d/w wife + pt, decided not for acute [surgical] interventions even in event of neurological deterioration
→        will consider burr hole drainage next 2/52 if symptomatic.
→        plan = rpt CT B 2/52
cease Plavix
This episode at ~ 2315,
N/S found pt lying on floor outside room on his back facing upwards.
Awake.
Fall unwitnessed.
Only injury notes R elbow skin tear + bleed → dressed.
Helped back to bed.
Initial GCS 15.
ATOR, pt GCS fluctuating between 14 – 15 (given 25 mic g fentanyl for neck pain which was present on admission)
Unable to recall events surrounding fall.
Denies pain anywhere. Has had several vomits (even before 2nd fall). Feels tired.
O/E …
Intermittently confused + disoriented to year / place.
No head injuries (new). Existing R periorbital haematoma.
Unable to perform full neuro exam as pt unable to stay awake for more than several seconds but easily rousable.
Power UL (grip 5/5 bil)
Power LL unable to be assessed but moving all 4 limbs normally). No hip pain / discomfort.
Plantars ↓bilaterally.
Imp     Unwitnessed fall. No concrete ↓ in GCS. Vomiting ? 2° [subdural haematoma].
An entry on 22 January 2017, timestamped 10:16, recorded that Mr Connelly had suffered a Mechanical fall. The entry also noted that he had suffered a second fall overnight.
Dr Sasikala Selvadurai, a geriatrician, assessed him on 23 January 2017. The record noted recurrent falls. That day he was reviewed by a physiotherapist, who noted:
[Independent with] walking >200m daily walks to / from shops. Wife states slight decline relying more on 4WW + ↓ (L) leg [illegible] (2° to CLB pain).
On 29 January 2017 a clinical note (timestamped 08:35) recorded the following:
‘RE ? unconscious for 2 – 3 minutes in bathroom
History noted:
B/L SDH; not for surgical intervention
Not for METS / NFR
went to bathroom with assistance; large bowel motion
witnessed unresponsiveness for 2 – 3 minutes
remain unresponsive in chair; nil fall / headstrike …
nil recollection of events or how he returned to bed
patient feels much unchanged ……
Imp ? syncope
On 31 January 2017 Mr Connelly’s pacemaker was assessed by a technician, Paul Marley. The following was recorded:
Patient seen in 4b after syncopal event. Patient in AF device undersensing atrial lead sensitivity already 0.15 has not mode switched RV lead sensing, impedance and threshold test results measured are all within normal limits … ? chronic AF not being detected.
A repeat CT scan of the brain was performed on 1 February 2017. It was reported to show:
1.Bilateral subdural haematoma formation
2.Mass effect with midline shift to the right side. Comparing with the previous CT scan performed on the 21/01/2017, the midline shift has markedly worsened and there is increase in the maximum width of the left SDH from 14mm to 17mm. The density of bilateral haematomas has reduced suggesting evolution.
On 3 February 2017 Mr Connelly was transitioned to palliative care arrangements, and on 8 February 2017 he passed away, aged 91. The cause of death listed on the death certificate was subdural haemorrhage (18 days).
On or around 8 February 2017 a discharge summary was prepared by Dr Selvadurai. The summary notes:
Primary Discharge Diagnosis
Bilateral acute SDH
Additional Diagnosis
Aspiration pneumonia
Poor oral intake
? syncopal episode
Unwitnessed fall on ward
Presenting History & Symptoms (including reason for encounter)
91 year old gentleman BIBA post mechanical fall at 0200hrs -> headstrike to Right side of head against table. Nil LOC, Nil nausea dizziness, change in mentation immediately post event.
Past Medical History
HT
AF
Sick sinus syndrome
PPM
TIA
GORD
On 8 June 2017 Mrs Connelly provided a statement, in which she said:
My husband’s mobility had been gradually deteriorating. He had chronic lower back pain + stiffness ever since his back injury at work in the 1950s – I much admired his determination to manage his disability as well as possible, through regular visits to physiotherapists + a daily exercise routine. He was advised to take Panadol Osteo as necessary which he did, and always before bed.
At approximately 2am on the morning of the 21st January 2017, as he was going to the toilet, he fell backwards, hitting his head on an upholstered wooden stool + breaking off one of its legs. He complained of headache + had 2 skin tears which I dressed. We went back to bed + rested but had little sleep. In the morning, the headache had increased + Blue said he thought he needed to go to hospital. I called the ambulance + he was taken to TCH. Blue was conscious + lucid + the staff thought we could go home but they would do a brain scan.
We were told there were 2 subdural haematomas and a bed was found for my husband on the renal ward where he was allocated a single room. I think I left him at about 9pm that night.
In the morning, I [rang] him several times on his mobile with no response. When I arrived on the ward, I found Blue in a shared room, unconscious + being bathed in bed. He had new dressings on both his knees and the staff told me that he had fallen again during the night. I was shocked + angry that I hadn’t been informed. A doctor from the neurology or gerontology team came to talk to Blue’s son Shane + me + suggested a syringe driver. I asked for it to be postponed.
Over the next 5 days, Blue’s condition gradually improved. He recovered his speech + was able to walk, supported, along the corridor, but we were told that we should investigate nursing home care. He started to deteriorate and another brain scan revealed a further cerebral bleed. Fluids were ceased at some point thereafter and ‘Blue’ died at 4pm on 8th Feb 17.
He worked hard to manage + accept his injury but occasionally he did say ‘I wish I hadn’t had that accident. It has made such a difference to my life.’
THE MEDICAL EVIDENCE
Mrs Connelly and the Commission each called a medical witness at the hearing.
In a report dated 24 July 2017 Dr John Howe, Mr Connelly’s general practitioner, gave this assessment:
Mr Langton Connelly, has been my patient since 1980. During this time, he has suffered mobility conditions that resulted from an accident occurring during his service in the RAAF. In 1982, his conditions “Cervical and Lumbar Spondylosis with Disc Protrusion” were accepted under the Compensation Act 1971, as service related.
In recent years, he has required mobility aids to enable him to get around. This has been a direct result of his accepted conditions.
He was fitted with a pacemaker in 1997 for Sick Sinus Syndrome. This has proven effective in controlling his heart rate and was regularly monitored by his Cardiologist.
His wife, Mrs Barbara Connelly, was his carer and kept a close eye on him. However, as a result of his service related conditions, his poor mobility caused him to fall resulting in a brain haemorrhage which led to his eventual demise. Having reviewed his hospital notes during his admission, I note that they record his fall to be due to “mechanical” problems not cardiac.
In summary, I am of the opinion that Mr Connelly sustained a fatal brain haemorrhage due to a fall caused by his service related conditions.
In a further report dated 6 January 2020, Dr Howe said that his earlier statement was still apposite. He said that, despite pain and mobility problems, Mr Connelly persisted with exercise daily. He said:
Considering his healthy lifestyle and keenness for exercise, I think that, but for his back injury, he would have continued to exercise strenuously, and may have had an influence in preventing his TIAs, hypertension and his cardiac conditions.
From the mid-1980s on Mr Connelly experience pain daily: either severe headaches originating from his cervical spondylosis, neck pain, lower back pain, sciatica or knee pain. He took paracetamol and either took or applied NSAIDs daily; these were usually non-prescription medications.
Dr Howe was called by Mrs Connelly to give evidence by telephone at the hearing. He told the Tribunal that he had been Mr Connelly’s doctor since before 2000. He said that sick sinus syndrome was a type of cardiac condition. Mr Connelly’s back condition restricted his capacity to exercise. His back condition worsened as he got older. Dr Howe also said that he had no record of him suffering from a TIA in the last two years of his life.
Connelly suffered from back spasms, causing him pain and immobility. Dr Howe prescribed a small dose of Valium at night to assist him deal with spasms. He was asked during examination in chief what contribution would have been made to his fall at home on 21 January 2017 by factors such as kyphosis, sciatica, back pain and muscle spasms. He answered:
… it’s very hard not having been there at the moment he fell… they could be contributory, it could be a blood pressure thing where he had a hypertensive, a TIA, it could be just the fact that …he was getting old then…
Well, see, he may have had a small cardiac event at the same time, you know, it could be he might have just got a bit of chest pain or something… It’s really hard, Ross, because he had so many different conditions and one of the most significant being that he was getting older…
Dr Howe also referred to the unsureness of his gait.
Mrs Connelly’s representative asked Dr Howe about the intermittent nature of his suffering from TIAs. The witness said:
Well, some people have TIAs and they’re not aware that they’ve had a TIA, you know, they just have a little event and they don’t even report it, because they recover… it is, as it says, transient; so it can last as few as a couple of seconds or it can go for a longer period of time.
Dr Howe told the Tribunal:
Well, whatever happened to Blue Connelly on that night is completely unknown, and I don’t know what factors could have contributed, but it could have been a TIA, it could be because of his drop foot, it could be because he had sciatic pain, there are so many… the fact that he is older, and more frail, unsteady on his feet, all contributory factors to the fall.
He was asked if, applying the principle of Occam’s razor, it was more likely that Mr Connelly fell because of his mobility problems. He responded that those problems would definitely be a significant factor.[3]
[3] Occam's razor: of two competing theories, the simpler explanation of an entity is to be preferred: >
Under cross-examination it was put to him that, given his evidence about TIAs being sometimes of very short duration and sometimes not noticed by the sufferer, the fact that he did not record any TIAs in his clinical notes in the two years prior to Mr Connelly’s death does not mean that they did not occur. He agreed with this proposition.
He also agreed with the proposition put to him by the Tribunal that Mr Connelly had been on his medications long enough, and side effects such as dizziness or syncope were sufficiently familiar to him, that it was unlikely that such side effects would have contributed to his fall.
He was also asked by the Tribunal why he considered that an issue with mobility was more likely to have contributed to his fall at home than other factors such as labile blood pressure. He said that this was his opinion based on my general practice. He was then asked what factor about his general practice should lead the Tribunal to prefer his opinion over that of the other medical witness, Dr Nicholas Burke. He responded:
Only the fact that I knew Blue Connelly so well and I was - I had seen him on so many occasions and I was able to say, well, you know, I’m familiar with his reduction in mobility whereas the other issues that he had, we - well, for want of a better word - had under some degree of control.
On 4 November 2019 Dr Burke, an occupational physician, provided a report having reviewed Mr Connelly’s relevant medical records, including notes from the Canberra Hospital. Dr Burke opined:
Hence, it does not appear possible from the notes to exactly explain why he fell at that particular time.
There are a number of possible causes. These include stumbling and falling because of his knee problem or his lower back problem.
Other possible causes would include stumbling or falling because of his cardiac issues, his labile blood pressure and atrial fibrillation.
Certainly, reading the history, each of these two scenarios, that is the fall precipitated by problems related to his knee or back or fall associated with dizziness, unsteadiness or ataxia associated with his cardiac/neurological condition would seem equally likely. On balance I do not think it is possible to state, on the balance of probabilities, that his fall was due to his service-related conditions or due to other factors.
Dr Burke made a number of further comments, based upon his review of the relevant clinical records. These included:
(a)It was not possible to tell which of Mr Connelly’s two falls in January 2017 led to the brain bleed which resulted in his death.
(b)There are a number of other, non-accepted conditions which would have impacted upon his mobility. These include hypertension, atrial fibrillation and sick sinus syndrome.
(c)The factors which appeared to mainly impact upon his mobility were his accepted conditions and his age. The impact of other factors (cardiac/neurological) is likely to have been intermittent.
(d)It is not possible to conclude, on the balance of probabilities, what caused Mr Connelly’s fall in his home on 21 January 2017. I believe it is reasonably likely that it could have been related to his service-related conditions. However, I believe it is also reasonably likely that it could have been associated with his cardiac/neurological conditions.
In relation to the causal relationship between Mr Connelly’s Compensable Injuries, and the subdural haematoma Dr Burke stated:
I do not believe it is possible, on the balance of probabilities, to consider that the subdural haematoma and subsequent death were caused or materially contributed to by the accepted injuries. I believe it is a distinct possibility that it was related to his service-related conditions; however, I believe there is an equally valid possibility that it was related to his cardiac/neurological condition.
He prepared a second report dated 3 December 2019. He indicated he had now considered notes from the ambulance service in relation to the first fall. He concluded that he would not change his earlier opinion based on the limited amount of information in that report.
Dr Burke gave evidence by video conference. In relation to Mrs Connelly’s evidence that her husband had been fully lucid before the second fall but unconscious and unable to speak afterwards, he said:
Well, on the face of it, it does seem to advise that the second fall may have been more significant. But obviously - you know, obviously you can have a bleed and then aggravate it with a second fall. So again, I would be loath to try and blame one of the falls of being more contributory than the other based on that particular piece of information.
He was then asked if any significance could be drawn from the fact that Mr Connelly reportedly fell backwards in his first fall. Dr Burke responded:
One possibility is that it’s due to cardiac or neurological-type conditions - a condition - and I suppose my thought with regard to that is you would think that would be more likely when a person falls backwards, that those factors would be more likely to result in that. You know, if it was due to other factors you would think - you know, such as pain or a knee giving way or something like that, you would think a person - you would think - would fall to the side, or maybe fall forwards…
I suppose the other thing, too, is that if he - if he falls - the fall is sufficient to cause a subdural haematoma, then obviously the person has come down very rapidly, you know that. And again, I think that would be something which would lead you to think okay, possibly it is due to a central cause such as a cardiac or a neurological-type condition whereby the person, you know, loses consciousness or very close to loses complete consciousness, and then falls quite rapidly and then injures their head that way.
He was asked to explain what he meant by referring to Mr Connelly’s cardiac/neurological factors as being intermittent. He replied:
Obviously the cardiac or the neurological conditions would be - you know, wouldn’t cause issues such as dizziness, you know, light-headedness, those sorts of symptoms, all the time. But I would have thought - well, I believe that they would cause and could cause those types of symptoms on an intermittent basis, and I think particular circumstances would bring them to light, such as, as I said before, (indistinct) and then suddenly stands up, so postural factors. Or you know, such as, you know, being sitting on the toilet and post (indistinct) instances such as that. I’m sure everybody’s experienced, you know, a light-headedness when they change postures. And those sorts of factors, you know, are more likely to bring forth those sorts of symptoms.
It was put to Dr Burke in cross examination that the lack of any reference to a TIA or other cardiac problem in the last two years of Mr Connelly’s life was more likely to elevate the back/knee problem as the cause of his fall. His response was:
Not really because - so I don’t think what could have occurred at this stage would even be regarded as a cardiac event or a neurological event, it’s basically just short term symptoms which, you know, cause him to as I said lose consciousness or lose orientation or to do whatever and then fall suddenly so I don’t think it’s necessary to say that he needs to have a TIA to actually cause this particular event, you know, it could be a less degree of a cardiac or neurological problem and it would still cause him to fall.

Finally, he was asked if Dr Howe’s opinion should be given greater weight by virtue of his having treated Mr Connelly over a long period of time. He answered that he, Dr Burke, had made his determination based on the contemporaneous medical records, and on that basis he did not believe it was possible to be as definitive about the cause of the fall as Dr Howe had been.
LEGISLATION
Liability for the injury of Commonwealth employees, including defence personnel, is set out in s 14 of the Act, as follows:
14 Compensation for injuries
(1) Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 17 of the Act provides that:
17 Compensation for injuries resulting in death
(1) This section applies where an injury to an employee results in death.
…
(3) Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependent on the employee, the Commonwealth is liable to pay compensation in respect of the injury of $400,000 and that compensation is payable to, or in accordance with the directions of, the MRCC for the benefit of all of those dependants.
What is meant by injury in the sections is found in ss 5A and 5B. Section 5A provides:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or …
Section 5B provides:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
However, the present terms of s 5B commenced on 13 April 2007; prior to that, the section provided that contribution to a material degree from employment was required to constitute a disease. This is the test which would apply to a disease which arose before the commencement date. It is possible that a condition now claimed by Mr Connelly’s dependents to have been employment-related may have arisen before 13 April 2007, and would therefore be assessed according to the lower threshold.
ISSUES BEFORE THE TRIBUNAL
Section 17 provides that the dependent of an employee is entitled to compensation where an injury to that employee results in death. The parties agreed, and the Tribunal so finds, that each of the relevant conditions from which Mr Connelly suffered fell, at least conceptually, into the category of a disease under s 5B(1). The task faced by the Tribunal in these proceedings, therefore, is to determine which of the conditions he suffered from resulted in his death. If he died as a result of a disease which had been materially contributed to by his defence employment, then his widow is entitled to compensation. If he died as a result of a disease which had not been so contributed to, she is not entitled to compensation.
This raises the question of which of Mr Connelly’s conditions were contributed to, to a material degree, by his employment. Two conditions already satisfy this test, since they have been accepted by the Commission as Compensable Injuries: cervical and lumbar spondylosis with disc protrusion, and osteoarthritis of the right knee. Mrs Connelly submitted that other conditions he suffered from were also materially contributed to by his defence service: hypertension, sick sinus syndrome, TIA and atrial fibrillation. However, the Commission observed that no claim has ever been made in respect of those conditions, and any liability claim which could be made has not been through the determination and internal review stages of decision making provided for in the Act. Accordingly, the Commission submitted, whilst the Tribunal is entitled to (and indeed must) consider any causal contribution from Mr Connelly’s cardiac/neurological and other health complaints when determining, as a matter of fact, what caused his falls, the Tribunal is not entitled to proceed on the basis that those conditions are “service related” and hence provide a basis for determining that the falls were caused by compensable factors.
This submission must be accepted. The Tribunal’s jurisdiction to consider an entitlement to compensation is predicated on prior consideration and reconsideration of any claim by the Commission under the terms of Part VI of the Act. Until that process has been completed, there is no reviewable decision as defined by the Act before the Tribunal: see Lees v Comcare [1999] FCA 753 at [39]. The so-called cardiac/neurological conditions have not been considered by the Commission, and hence cannot be treated as injuries that are compensable for the purposes of the present deliberations.
CONTENTIONS
Mrs Connelly
Mrs Connelly’s case before the Tribunal was, essentially, that her husband’s fall caused the haematomas that killed him, and injury arising out of service was responsible for that fall. That injury, specifically, was either his accepted back and knee conditions or his cardiac/neurological conditions which, although never claimed, were contributed to, to a significant degree, by his service. Whichever of these caused the fall that, ultimately, killed him, it was an injury which was contributed to significantly by his military service.
In what the Tribunal understands to be an alternative argument, she contended that if the cardiac/neurological conditions cannot be regarded as related to service, then the Tribunal should still find that the more likely cause of his fall at home were the accepted back and knee conditions. This finding should follow an assessment of the likely mechanical action involved in the fall and greater weight given to the evidence of Dr Howe, who had a better appreciation of the effect of Mr Connelly’s back, knee and foot drop conditions on his mobility. The Tribunal should discount the possibility that a TIA caused the fall, since there are scant references in the medical records of this condition in the two years prior to his death, nor could Mrs Connelly recall him experiencing them.
Finally, it was contended that, since the Act is beneficial legislation, the Policy Manual of the Department of Veterans’ Affairs should be taken into account, with its injunction that a veteran should be given the benefit of any doubt when a decisionmaker is genuinely undecided on the question of eligibility for a benefit.
The Commission
The Commission accepted that, at the time of his death, Mr Connelly suffered ongoing symptoms arising as a result of his Compensable Injuries, which affected his mobility. However, the Tribunal must have regard to his health circumstances as a whole. Mr Connelly suffered from a range of non-compensable health complaints which, in addition to his age, also gave rise to substantial limitations on his mobility. His medical advisors sought to manage a range of disabling symptoms including dizziness, vertigo, breathlessness, atrial fibrillation and heart palpitations.
The circumstances of his fall at home on 21 January 2017 remain a mystery. Significantly, the Commission said, none of the practitioners who took a history from Mr Connelly, or Mrs Connelly, attributed the fall specifically to Mr Connelly’s chronic low back pain, right leg or right knee conditions. The Tribunal was urged to accept the evidence of Dr Burke to the effect that it is impossible to state, on the balance of probabilities, that Mr Connelly’s fall was due to his compensable back and knee injuries.
The Commission submitted that the Tribunal must be able to reach the state of satisfaction required by the Act before an entitlement to compensation can be found under s 17. Common law authority to this effect takes precedence over departmental policy. It is submitted that careful analysis of the material before the Tribunal can only result in its finding itself in a state of uncertainty as to what caused Mr Connelly’s fall on 21 January 2017. Whilst it is possible that the fall was significantly contributed to by Mr Connelly’s Compensable Injuries, this scenario rises no higher than a possibility (amongst other, equally plausible possibilities) on the evidence available.
CONSIDERATION
Several discrete arguments were put to the Tribunal, which it will consider under the following headings.
The meaning of results in death
Sections 14 and 17 provide that compensation is payable where an injury to an employee results in death. In this context Mrs Connelly invited the Tribunal to consider the High Court’s decision in Comcare v Martin [2016] HCA 43, where the court stated at [42]-[43]:
Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any "common sense" approach to causation which can provide a useful, still less universal, legal norm. Nevertheless, the majority in the Full Court construed the phrase "as a result of" in s 5A(1) as importing a "common sense" notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.
Within a statutory context which includes ss 5A and 5B, the exclusionary phrase "as a result of" in s 5A(1) is naturally read, not as imposing its own separate and free-standing test of causation, but rather as referring relevantly to the test of causation spelt out in s 5B(1).
[References omitted.]
Mrs Connelly submitted that, on the basis of this approach by the court, the Tribunal should not seek meaning from a statutory test arising from extraneous materials when the text and context of the Act provides meaning which best effects its statutory purpose. Accordingly, in this case s 17 should be taken to mean that an injury results in death if the injury contributed to a significant degree to the death.
However, the Commission submitted that the High Court in Martin was concerned with the meaning of the phrase as a result of, as it appears in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). This is a different test, it said, to the test required in ss 14 and 17 of the present Act. Rather, it is submitted that the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 is more apposite to the present proceedings. There, the NSW Court of Appeal outlined (at 463-464) the required process in determining whether death or injury results from a work injury:
The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase `results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death `results from' a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death `results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death `resulted from' the work injury which is impugned.
This decision was applied, in the context of the SRC Act (and, by analogy, to the present Act) by Drummond J in McAuliffe v Comcare [2002] FCA 769 at [11].
The Commission’s submission on this point must be accepted. A different evaluative exercise is involved in determining whether X is a result of Y as compared to whether Y results in X. Even if Martin should be construed as requiring that an injury satisfies the test in s 17 if it makes a significant contribution to the death (which, in our opinion, it does not), we do not believe that the present case is one where that issue arises. That is because, as is discussed below, the evidence here does not suggest that several of the possible causes of Mr Connelly’s fall operated in concert to produce that outcome; rather, the evidence suggests that only one factor caused the fall (with the Tribunal unable to say with any confidence which factor that was). The question of relative contribution – significant, material or otherwise – from several factors does not arise in this scenario.
What caused Mr Connelly’s fall at home?
This leads the Tribunal to an evaluation of the evidence as to what factor caused Mr Connelly to fall at home in the early hours of 21 January 2017.
Mrs Connelly characterised the choice facing the Tribunal on this question as essentially a binary one: either the fall was caused by what she called back and knee problems and or it was caused by cardiac/neurological conditions. Although we would hesitate to say that the evidence sits comfortably with that dichotomy (both medical witnesses, for example, referred to the ageing process as a potential cause in its own right) the categorisation is convenient if we assume that the back and knee problems (also sometimes referred to by the witnesses as mobility issues or poor mobility) relate to the conditions already accepted by the Commission as service-related, and the cardiac/neurological conditions (including hypertension, dizziness, vertigo, breathlessness, atrial fibrillation, heart palpitations and TIAs) as being a reference to conditions which have not been so accepted.
Mrs Connelly has submitted, as already indicated, that her husband’s hypertension, sick sinus syndrome, TIAs and atrial fibrillation conditions were in fact service related, despite not yet being accepted by the Commission. For the reasons already given, the Tribunal does not accept that submission. Additionally, it should also be noted that one potential factor – foot drop – is not easily characterised and may be service-related (because it arises from one of the already-accepted conditions) or not.
Into whichever side of this dichotomy the responsible condition falls, we understand the evidence to have been that it was most likely one such condition which caused him to fall. We do not take the evidence to be that more than one factor was likely to have operated simultaneously – say, that he had a back spasm at the same time as a TIA. It seems clear that one factor alone, of the many from which he suffered, was likely to have caused the fall. As such, issues of relative contribution from different factors do not arise.
On the balance of probabilities, argued Mrs Connelly, her husband’s fall was more likely to have arisen from the back and knee problems. She contended that the back/knee condition was ever present and worsening, with the risk of falling increasing over time. This led to Dr Howe to recommend that he be moved to a nursing home. By contrast, the evidence suggests that TIAs were not occurring in the last two years before Mr Connelly died. This is consistent with the clinical records of Dr Howe and the recollection of Mrs Connelly. It is also consistent, it was submitted, with the fact that his only fall in those years was due to tripping in unfamiliar circumstances, and not to, say, a TIA.
In 2013 Dr Hayes recorded that Mr Connelly had dizzy episodes when getting up at night but that he would sit on the side of the bed until it resolved. By such devices, it was suggested to the Tribunal, he was able to manage the risk from dizziness, and avoid it. Significantly, the triage notes on the day of his hospital admission make no mention of dizziness or a TIA. In summary, mobility issues, which were a constant problem, were more likely to be responsible for his fall than intermittent TIAs, or dizziness, which was under control.
The Commission pointed, conversely, to the clinical notes which suggest that Mr Connelly’s medical practitioners had, over many years, sought to refine his medication and pacemaker settings, in order to assist with optimal management of disabling symptoms including dizziness, vertigo, breathlessness, atrial fibrillation and heart palpitations. These conditions constituted ever present risk factors in his life.
Notwithstanding that TIAs are not referred to in clinical notes dating from Mr Connelly’s last two years, the Commission pointed to numerous references to coronary artery disease, labile blood pressure and atrial fibrillation in Dr Hayes’ clinical notes. There are references in this period to breathlessness after walking short distances, to his wife recording that he had very low blood pressure occasionally and to generally feeling unwell sometimes.
The Tribunal notes that the clinical record in the years immediately preceding Mr Connelly’s death suggests he suffered a wide range of conditions, but is otherwise uncooperative in identifying a particularly likely culprit for the fall on 21 January 2017. It is reasonably clear that his back and knee conditions and his cardiac/neurological conditions affected him frequently, if not daily. Nothing in the clinical record suggests that one particular factor or another assumed greater prominence in the weeks or months before his death.
We are not persuaded that the lack of reference to TIAs in the late medical records demonstrate that he ceased to suffer from them. It is not clear, firstly, why this particular condition would abate or disappear when his health was generally deteriorating over this period. In addition, as Dr Howe observed, a TIA can last for just a second or two, and some sufferers may not even be aware that they have experienced one. Even if he was aware that TIAs affected him occasionally and fleetingly, Mr Connelly may not have shared that knowledge. As his wife noted, Blue was very good at keeping things to himself.
Against this background, identifying the cause of an unwitnessed fall is particularly problematic. Mrs Connelly was asleep and did not see him fall. The records taken by hospital staff and paramedics in the days following the incident shine no great light on that question either. Several references appear to Mr Connelly having suffered a mechanical fall, but it was accepted by both parties that this term is unclear and is used inconsistently in medical settings, and offers no particular insight in this instance. Dr Burke confirmed in his evidence that it’s hard to know exactly what a person had in mind when making an entry of a mechanical fall. The Canberra Hospital records refer, variously, to mechanical fall, unsteady on feet and Trip + fall. The descriptions of his medical state on examination by paramedics and later hospital staff relate to his condition several hours after the fall, and are generally unenlightening.
An interrogation report on his pacemaker some 10 days after his falls seems to suggest that the pacemaker was undersensing his level of atrial fibrillation. Whether this might have contributed to the falls is simply not clear.
Significantly, we note that none of the practitioners who took a history from Mr Connelly, or Mrs Connelly, attributed the fall specifically to Mr Connelly’s chronic low back pain, right leg or right knee conditions or to a cardiac/neurological issue. Some conditions are ruled out (Nil…dizziness, says one note), but no condition is expressly identified as a cause. Of the three descriptions of the fall used in the records – mechanical fall, unsteady on feet and Trip + fall – only the latter hints at a cause, and even that must be excluded given Mrs Connelly’s evidence that the well-worn pathway between the bed and the toilet was clear of any trip hazards. Certain conditions were listed in the hospital records, but only for the purpose of documenting his prior history. His pain symptoms were noted to have increased, but this was in the period following his fall.

Some tentative references to syncope do appear in the hospital notes. In the discharge summary prepared by Dr Selvadurai is a reference to ? Syncopal episode, but the reference has more the form of a guess (or proposing of a possible diagnosis) than of a medical finding.
Had Mr Connolly suffered an episode of back spasm, or acutely increased lower back pain at the time of his fall, one imagines that this history would have been provided by him, or Mrs Connelly, at the relevant time. The fact that no such history was provided suggests that the history of back pain/knee was simply one of the many conditions which potentially contributed to his fall.
There are suggestions in the evidence Mr Connelly suffered bouts of drop foot in his last few years. Mrs Connelly said that he once experienced paralysis of his foot for a period of about 7-10 days. However, her evidence was that the problem was intermittent and that the only fall he experienced at this time was not attributable to foot drop but was a trip up a step. Dr Burke told the Tribunal that he thought it more likely that Mr Connelly would have fallen forwards had his foot been dragging, not backwards. Even if there was evidence implicating this condition in the fall at home, it is far from clear that the condition in fact relates to one of his compensable conditions. Foot drop may be a side effect or sequela of osteoarthritis of the knee, but that is speculation. Unfortunately, neither of the doctors was asked to comment on a possible linkage.
In circumstances such as these the Tribunal is particularly dependent on the testimony of expert medical witnesses appearing at the hearing. Here, two doctors gave evidence which was, for the most part, fairly consistent. Each described the range of possible factors contributing to the fall, and each expressed the view that certainty as to which was responsible was not attainable. Dr Burke gave evidence that it was impossible, on the balance of probabilities, to find that the subdural haematoma and subsequent death were caused or materially contributed to by the accepted injuries. He considered it is a distinct possibility that the fall was related to his service-related conditions; however, there was an equally valid possibility that it was related to his cardiac/neurological conditions.
Dr Howe’s evidence largely reflects Dr Burke’s. The former said:
… it’s very hard not having been there at the moment he fell… they could be contributory, it could be a blood pressure thing where he had a hypertensive, a TIA, it could be just the fact that …he was getting old then…
Well, see, he may have had a small cardiac event at the same time, you know, it could be he might have just got a bit of chest pain or something… It’s really hard, Ross, because he had so many different conditions and one of the most significant being that he was getting older…
It strikes the Tribunal that there is an incongruity in Dr Howe’s position. During evidence in chief he made the case – persuasively, we believe – for agnosticism as to the cause of Mr Connelly’s fall. He testified that whatever happened…on that night is completely unknown. It was under cross-examination that he was referred to the opinion expressed in his report of 24 July 2017 that poor mobility caused him to fall. When asked why his opinion should be preferred over Dr Burke’s, he said that his opinion was based on my general practice. By this he meant, he said, that he was familiar with Mr Connelly’s reduction in mobility whereas he had the other issues…under some degree of control.
By contrast, Dr Burke said that the impact of the cardiac/neurological issues were intermittent, by which we understand him to mean that they could affect Mr Connelly without warning. While the treatment regimen for those issues might be under some degree of control, the possibility that they could still strike him randomly could be said to make them less predictable, more difficult to prepare for, and therefore more likely to catch him off guard.
Dr Burke is a specialist in the field of occupational medicine, including musculoskeletal medicine and functional capacity. His field of specialisation appears to be an apposite foundation on which to base his recommendations as to the cause of the falls. On the other hand, it is not clear to the Tribunal what superior perspective of those issues is conferred on Dr Howe by virtue of his greater experience of Mr Connelly’s reduction in mobility issues. His experience might, as he implied, give him an insight not available to Dr Burke, but the mechanism by which that occurred was not explained.
On balance, the Tribunal considers that the approach taken by Dr Burke better reflects the totality of the evidence. While the back and knee condition were constant factors in Mr Connelly’s life, so too was the broad range of other conditions – impinging on his daily life intermittently and in varying degrees of intensity – falling under the heading of cardiac/neurological conditions. Isolating the back and knee condition as the likely cause of the fall simply does not accord with the trend of the evidence, which draws one’s attention to other factors. Dr Burke’s conclusion that it is impossible to state, on the balance of probabilities, that Mr Connelly’s fall was due to the Compensable Injuries should be accepted.
Mrs Connelly’s representative postulated this scenario as an explanation for the fall: Mr Connelly told his wife that he had fallen backwards. This tells us that he was conscious when he fell. He would be unlikely to recall the circumstances of a fall caused by syncope or a temporary loss of consciousness in a TIA. Hospital records confirm he fell on the right side of his head. In any fall, including a fall starting backwards, a conscious person would automatically attempt to cushion the fall to protect the head. An unconscious person would fall wherever gravity required. The Canberra Hospital’s Neurological Registrar recorded that the incident involved nil loss of consciousness. Trip + fall would not have been recorded by the registrar if he had attributed the fall to a TIA or syncope. It is, therefore, more likely that he fell because of mobility issues.
While this explanation – an amalgam of forensic and medical science – has certain attractions, it is simply a hypothesis. Unfortunately, the opportunity was not taken to put this hypothesis to either of the medical witnesses. The Tribunal would have benefited from their assessment. In the absence of this having happened, we must assume that factors of this kind were already considered by the doctors in coming to their respective views. Indeed, Dr Burke described to the Tribunal his analysis of the known circumstances of the first fall – including the fact that he fell backwards and the likely velocity of the fall – and concluded that they tended to suggest a cardiac or neurological culprit.
The impact of the second fall
As noted above, Mr Connelly sustained a second fall late on 21 January 2017, after his admission to the Canberra Hospital. Like the fall at the beginning of that day, it was unwitnessed. The doctor who attended him after the second fall noted that he was Intermittently confused + disoriented and was unable to stay awake for more than several seconds.
Mrs Connelly’s evidence was that when she arrived at the hospital the next day she observed a massive change, complete change in his presentation since the night before. Whereas he had been lucid the day before, now he was unconscious.
The Commission submitted that there must be considerable uncertainty as to whether it was the first or second fall which ultimately resulted in Mr Connelly’s death. As such, it further muddies the waters in terms of the causal connection linking his military service to his death.
Mrs Connelly submitted that a CT scan between the first and second falls revealed that he had suffered two subdural haematomas. These were, ultimately, the cause of his death. There is no evidence that the second fall had any bearing on this outcome. She submitted that, regardless of whether the second fall might have aggravated the haematomas or cause new damage, the damage resulting from the first fall made a significant contribution to his death.
The Tribunal accepts that, on the balance of probabilities, it was more likely the first fall which caused the subdural haematomas. There is indeed no evidence of any exacerbation, or new injury, arising from the second fall, whereas the haematomas were present following the first fall. On balance, the Tribunal would accept that it was the first fall which caused his death. However, as the cause of the first fall cannot be determined, this finding in relation to the second fall takes the issues before the Tribunal no further.
Benefit of the doubt
Having heard the evidence, the Tribunal finds itself in a state of uncertainty. Although there are several possible causes of the fall (or falls) which led to Mr Connolly’s death, we are unable to find that any particular cause was likely to have triggered the fall.
The question thus arises as to the fate of Mrs Connelly’s application for merits review in that circumstance. She argued that the Commission – and the Tribunal standing in its shoes – is bound to apply the Department of Veterans Affairs’ Policy Manual in making decisions affecting veterans and their dependents.
The Policy Manual, at 3.5.4, states:
Although the [Military, Rehabilitation and Compensation Act] is regarded as 'beneficial legislation', this does not mean a departure from the normal rules of administrative decision making in the weighing of evidence. Generally speaking, wherever there is more than one interpretation of the facts or legislation, the interpretation adopted should favour the claimant. A beneficial interpretation of the material does not mean that decision makers are free to depart from the law or to behave capriciously or arbitrarily. The concept is not concerned with remedying substantive deficiencies in the evidence or the applicant's case [Bey v Repatriation Commission [1997] FCA 452].
However, if, when weighing up the material and asking whether or not contention X (due to peacetime service) caused or aggravated condition Y (injury, disease or death), a decision maker is genuinely unable to decide, the claimant should be given the benefit of any doubt.
Mrs Connelly summarised the effect of this provision as being that if the Tribunal remains unable to decide which of a compensable or non-compensable condition caused his fall, then he (and his dependents) should be given the benefit of the doubt, and the outcome which best accords with the purpose of this beneficial legislation should result. She cited Bull v Attorney-General (NSW) (1913) 17 CLR 370 where Isaacs J said at 384:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.
[Citation omitted.]
On the other hand, the Commission contended that this is not a case in which the Tribunal can find an entitlement to compensation under s 17 by giving Mrs Connelly the benefit of the doubt. Policy guidance cannot displace the requirement of the Tribunal to apply s 17 and make its decision in line with the legislative test.
Bull v Attorney General (NSW) does not assist Mrs Connelly as this is not a case in which the legislative provisions are ambiguous, or alternate interpretations of the legislation are available. The dispute between the parties here concerns the factual material. While Mrs Connelly does not bear a formal onus of proof to make out her claim (Brackenreg v Comcare [2010] FCA 724 per Mansfield J at [45]) the Tribunal must nevertheless be able to reach the state of satisfaction required by the Act before an entitlement to compensation can be found under s 17.
This was reinforced by the Full Federal Court in Beezley v Repatriation Commission (2015) 150 ALD 11 where North, Tracey and Mortimer JJ said at [68]:
If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest …
Similarly, the approach required of an administrative decision maker is encapsulated by the reasoning of Woodward J in McDonald v Director-General of Social Security (1984) 1 FCR 354 who held at 357:
If no such material is available to the decision-maker, of if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail.
Woodward J further held at 358:
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.
Whilst his Honour’s comments were made in relation to a claim for social security benefits, the Commission submitted that they apply equally in the workers compensation setting. As Mrs Connelly is seeking to establish liability, at a minimum, the Tribunal needs to be satisfied that s 17 has been met. The authorities do not permit the Tribunal to elevate one “risk factor” over another, simply to obtain the most beneficial outcome for an applicant in circumstances where the medical evidence does not support that approach.
Here, said the Commission, the evidence presented is not sufficient to satisfy the statutory requirements – the service injuries were merely one of many risk factors which may have caused Mr Connelly to fall, but the Tribunal simply cannot find, with any degree of certainty, that the service injuries did cause him to fall on either of the occasions on which he fell.
The Tribunal acknowledges a tension between the requirements of the common law and the policy approach evident in the Policy Manual. According to the former, in a case of genuine doubt the applicant must fail whereas, according to the latter, in such a case the applicant must succeed.
In Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, Brennan J (as he then was) postulated these rules with respect to the application of ministerial policy made to provide consistency in the interpretation of statutory provisions (at 640 and 645):
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny…
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
In the present case, the Policy Manual appears to be departmental, as opposed to ministerial, policy. Moreover, the Manual’s provisions dealing with balance of probability cases appear to set it at odds with the common law requirement, as explained in the cases cited above, that an applicant must satisfy the entitling criteria, even under a beneficial statute. To conclude that the policy is unlawful (in the language of Drake) would be an overstatement; the least that could be said is that the policy does not sit comfortably with the principles articulated by the judges in those cases. It must be remembered that their Honours were engaged in each instance in an exercise of statutory interpretation. They were describing the evaluative threshold of eligibility demanded by the relevant statute and the task that a decision-maker must undertake in assessing whether an applicant might meet that threshold.
Judicial guidance of this kind cannot lightly be set aside. In this context, the Tribunal would normally look to explicit legislative direction allowing it to put aside those principles in favour of the approach mandated by the Manual. The absence of such explicit direction suggests to us that the common law principles continue to take precedent.
Accordingly, we find that there is no benefit of the doubt principle at work in the present circumstances to overcome or offset the manifest uncertainty as to the cause of Mr Connelly’s fall.
CONCLUSION
The evidence does not allow the Tribunal to be positively satisfied that the compensable conditions caused, or even significantly contributed to, Mr Connelly’s first fall on 21 January 2017. It was this fall, in all likelihood, which caused the haematomas which brought on his death. It follows that the Tribunal cannot be satisfied that the compensable service-related conditions resulted in his death. The position at common law in this eventuality is clear: if an applicant’s circumstances are not persuasive that he or she meets the statutory test of eligibility, then the application must fail.
The reviewable decision of 6 December 2018, refusing Mrs Connelly compensation pursuant to s 17 of the Act, is affirmed.

1. I certify that the preceding one-hundred and forty (140) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO and Dr Peter Fricker OAM, Member.

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Associate
Dated: 30 March 2021

Date(s) of hearing:

17 – 18 August 2020

Date final submissions received:

1 October 2020

Applicant’s Advocate:

Veterans’ Support Centre Belconnen ACT

Solicitors for Respondent:

Sparke Helmore Lawyers

Date(s) of hearing:	17 – 18 August 2020
Date final submissions received:	1 October 2020
Applicant’s Advocate:	Veterans’ Support Centre Belconnen ACT
Solicitors for Respondent:	Sparke Helmore Lawyers