Cox and Repatriation Commission (Veterans' entitlements)
[2019] AATA 2340
•1 August 2019
Cox and Repatriation Commission (Veterans' entitlements) [2019] AATA 2340 (1 August 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/3997
Re:Allan Cox
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:1 August 2019
Place:Perth
The Reviewable Decision dated 17 June 2016 is affirmed.
................................[sgd]........................................
Senior Member Dr M Evans
CATCHWORDS
VETERANS’ ENTITLEMENTS – whether Applicant’s cryptococcal meningitis resulting in blindness is defence caused – whether depressive disorder is defence caused – no applicable Statement of Principles for cryptococcal meningitis – standard of proof – meaning of reasonable satisfaction – whether material before the Tribunal raises a connection on the balance of probabilities between the Applicant’s cryptococcal meningitis resulting in blindness and the Applicant’s defence service – whether a defence caused injury or disease pursuant to s 70(5)(d) of the Veterans’ Entitlements Act 1986 (Cth) – contributed to in a material degree - reasonable satisfaction standard - conflicting expert evidence – whether medical evidence affected by hindsight bias – procedural fairness issues arising from the timing of witnesses – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A
Veterans’ Entitlements Act 1986 (Cth) – s 5D, s 5D(2), s 70(1), s 70(5), s 70(5)(d), s 70(7), s 120(4), s 120B, s 120B(3), s 120B(4), s 128(1), s 196B(3)
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Doolan and Repatriation Commission [1995] AATA 616
Hogben and Repatriation Commission [2012] AATA 878
Johnston v Commonwealth (1982) 150 CLR 331
Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901
Lipke and Repatriation Commission [2014] AATA 729
Lipke and Repatriation Commission [2017] AATA 2168
Re Abbott and Australian Prudential Regulation Authority [2008] AATA 641
Re Carter and Military Compensation Commission [2018] AATA 1642
Re Murray and Repatriation Commission [1997] AATA 117
Re Neal and Repatriation Commission [2012] AATA 843
Re Repatriation Commission and Falkner [1987] AATA 199
Re Will and Repatriation Commission [2012] AATA 710
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Rosenberg v Percival (2001) 205 CLR 434Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
Shire of Gingin v Coombe [2009] WASCA 92
Stitt and Australian Prudential Regulation Authority [2009] AATA 601
Young and Repatriation Commission [1990] AATA 466
SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 3rd ed, 2016)
DM Byrne QC and JD Heydon, Cross on Evidence (Butterworths, 3rd Aust ed, 1986)
Statement of Principles concerning depressive disorder (No. 84 of 2015)
Statement of Principles concerning depressive disorder (No. 28 of 2008 as amended by No. 41 of 2010)
Thomas B Hugh and G Douglas Tracy, “Medicine and the Law: Hindsight bias in medicolegal expert reports”, (18 March 2002) 176 Medical Journal of Australia, 277-278
Thomas B Hugh and Sidney W A Dekker, “Hindsight Bias and Outcome Bias in the Social Construction of Medical Negligence: A Review” (2009) 16 Journal of Law and Medicine, 846-857
REASONS FOR DECISION
Senior Member Dr M Evans
1 August 2019
REVIEWABLE DECISION
On 1 August 2016 the Applicant filed an application (Exhibit R1, T1) in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking review of part of a decision of the Veterans’ Review Board (VRB) dated 17 June 2016 (Exhibit R1, T2)
(the Reviewable Decision).The VRB affirmed two decisions of the Repatriation Commission:
(a)First, a decision of 5 December 2014 which determined that angina was not defence caused (Angina Decision); and
(b)Second, a decision of 18 June 2015 that cryptococcal meningitis resulting in blindness (CMRB) and depressive disorder (DD) were not defence caused (CMRB and DD decision).
The Applicant is not seeking review of the Angina Decision. He only seeks a review of the CMRB and DD decision (Exhibit A1, [78]; Exhibit R7, [2]).
BACKGROUND FACTS
The Applicant served in the Royal Australian Navy between 10 July 1970 and
13 December 1970 when he was discharged at his own request (Exhibit R2, ST1, pages 7-8).On 8 October 1971 the Applicant enlisted in the Royal Australian Air Force (RAAF). He served in the RAAF until approximately 27 June 1988 when he was discharged on the ground of being medically unfit for service due to being “permanently blind” (Exhibit R1, T18, page 76; Exhibit R2, ST1, pages 145-146).
The Applicant’s blindness was caused by a rare fungal infection known as cryptococcal meningitis which put pressure on his brain and optic nerves, resulting in his blindness (Exhibit R1, T44, page 241; Exhibit R1, T35, page 176).
Cryptococcus is a fungus that can be present in Eucalyptus trees (Exhibit R8, page 9). In a letter to the Applicant dated 20 April 2015 (Exhibit R1, T2, page 2), Dr James Flexman, Head of the Department of Microbiology and Infectious Diseases at Royal Perth Hospital (RPH) and Head of Clinical Microbiology at Fiona Stanley Hospital (FSH) for PathWest Laboratory Medicine WA, provided the following explanation of the fungus:
Cryptococcus gattii is found in urban, semi-rural and rural areas in all states and territories in Australia. The highest rates of the infection occur in the Northern Territory of Australia and Papua New Guinea. It has also been found in other countries including the USA, Canada, Brazil and India. It has an ecological niche in Eucalyptus trees, firs, hemlock and fruit trees. It can cause infections at various sites in the body, but the lungs and central nervous system are the most common locations. It can cause disease in patients that are not immunosuppressed. The infection occurs through inhaling yeasts or spores which can then disseminate. It is not transmitted from person to person or from animal to person. Finally, confirming that the organism was Cryptococcus gattii does not allow the specific source to be identified.
In his application the Applicant did not argue that he contracted the cryptococcal meningitis as a result of his defence service. Instead, the Applicant claimed that his blindness was defence caused due to a delay in the diagnosis of cryptococcal meningitis (and consequently a delay in administering the appropriate treatment) by the Base Medical Facility at RAAF Pearce (BMF) (see Exhibit A1, [32]-[33]), and consequently that his depression which occurred as a result of his blindness was also defence caused.
ISSUES
The issues that require determination by this Tribunal are:
(a)Whether the material before the Tribunal raises a connection, on the balance of probabilities, between the Applicant’s CMRB and his defence service;
This involves a consideration by the Tribunal of whether there was a delay in the diagnosis of the Applicant’s cryptococcal meningitis, and consequent delay in administering the appropriate treatment, by the BMF.
(b)If so, and given that there is no applicable Statement of Principles (SOP) made under s 196B(3) of the Veterans Entitlements Act 1986 (Cth) (the Act), whether the CMRB is a defence caused injury or disease for the purposes of s 70(5)(d) of the Act.
This requires the Tribunal to consider whether the injury or disease was contributed to in a material degree by, or was aggravated by, the Applicant’s defence service. Applying this standard, the Tribunal needs to be satisfied that the failure to diagnose the Applicant and administer appropriate treatment earlier, causally contributed to the development of the cryptoccocal infection and the Applicant’s blindness.
(c)As stated in the Respondent’s closing submissions [4.5], if the Tribunal finds that the Applicant’s CMRB is a defence caused injury, then it follows that his DD will also be a defence caused disease:
…because it could be connected with the Applicant’s defence service through CMRB on the ground that the Applicant suffered from a medical illness that resulted in serious physical disability (ie the blindness) within two years before the clinical onset of DD for the purposes of [9(1)(h)] of the DD SOP and [6(a)(vii)] of the Previous DD SOP).
LEGISLATIVE FRAMEWORK
Subsection 70(1) of the Act provides:
(1) Where:
(a) …
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d)in the case of the incapacity of the member-pension by way of compensation to the member;
in accordance with this Act.
In the Applicant’s Statement of Facts, Issues and Contentions (SFIC) (Exhibit A1), the Applicant claimed that his CMRB is a defence caused injury or a defence caused disease in accordance with s 70(5) and/or s 70(7) of the Act. However, in the Applicant’s written closing submissions dated 25 February 2019, the Applicant submitted that a connection (that is, an accident) under s 70(7) of the Act could not be identified from the evidence at the hearing, and that the relevant subsection applicable to the Applicant is s 70(5)(d) of the Act.
As noted by the Respondent (Exhibit R7, [6] and [126]), the Tribunal must not limit its consideration to the case articulated by the Applicant if the evidence and material accepted by the Tribunal raises a case on a different basis (Benjamin v Repatriation Commission (2001) 70 ALD 622; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287). This means that the Tribunal must consider whether the Applicant’s CMRB is connected with his defence service in any way under s 70 of the Act.
The Tribunal is of the opinion that, following the hearing and a consideration of the evidence at the hearing, the applicable subsection is indeed s 70(5)(d) of the Act, which provides as follows:
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
…
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
but not otherwise.
(Emphasis added.)
In summary, s 70(5)(d) of the Act requires that the injury or disease was “contributed to in a material degree by, or was aggravated by, the defence service”.
Definition of disease and injury
Section 5D of the Act defines a “disease” and an “injury” as follows:
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b)the aggravation of a physical or mental injury.
Relevantly, s 5D(2) of the Act also provides:
(2) In this Act, unless the contrary intention appears:
…
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
(Original emphasis.)
Applying these definitions, although the cryptococcal meningitis would constitute a disease, the Applicant’s blindness is best regarded as an injury. This is because the cryptococcal meningitis put pressure on the Applicant’s brain and optic nerves, resulting in blindness. The Applicant’s DD, which was the effect of the blindness injury, is best regarded as a disease. At the Tribunal hearing, the parties were in agreement with these classifications.
Contributed to in a material degree by, or was aggravated by, the defence service
The meaning of “contributed to in a material degree” and “aggravated” were considered by the Tribunal in Young and Repatriation Commission [1990] AATA 466 (Young). In Young, the Tribunal was required to determine whether Mr Young's pre-existing schizophrenic condition was “contributed to in a material degree by, or was aggravated by”, his eligible war service; and whether his hypertension arose out of or was contributed to by his eligible war service, within the context of s 9(1)(e) of the Act.
With respect to the meaning of “contributed to in a material degree” the Tribunal stated, at [31]-[32]:
31. In Repatriation Commission v Bendy (No. G1360 of 1988: 15 May 1989) Davies J. said the expression "contributed in any material degree" was used in the Workers' Compensation Act 1958 (Vic.); section 7(3) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 as well as section 9(1)(e) of the Veterans' Entitlements Act 1986. In each case the reference to materiality serves to make it clear that the contribution is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. Davies J. said that:- "The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie dictionary namely, 'of substantial import or much consequence' but rather in its legal since of 'pertinent' or 'likely to influence'."
His Honour went on to say that:- "An issue of contributory cause should be approached in a practical, commonsense way. Nevertheless, if, as in the present case, it could not be said of the war service that, without it, the disease would not have developed, then it may be difficult to conclude that the war service was a contributing cause thereof."
32. The Tribunal notes that the question of "material contribution" was also addressed by Davies J. in Australian Telecommunications Commission v Treloar (G489 of 1989: 20 November 1989) where at page 6 his Honour said: - "I remarked in Bendy's case, and have said on other occasions, eg. Westgate v Australian Telecommunications Commission (1987) 17 F.C.R. 235 at p.240, that it is sufficient that the employment contribute to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. When several separate factors together cause the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment. The Tribunal was, however, in error in holding that a contribution brought about by the employment, however small, was sufficient. A contribution which is so small as to be immaterial, which has no causal sigificance [sic], is not sufficient."
In Young, the Tribunal also discussed the meaning of “aggravated by” at [33]-[34]:
33. In Federal Broom Company Pty. Limited v Semlitch [1964] HCA 34; (1946) 110 CLR 626 Windeyer J., at pages 639 and 640, said:- "The words [aggravation and acceleration] have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word 'acceleration' probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli."
34. In Ogden Industries Pty. Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537, Windeyer J. at page 593 said:- "'Aggravation' means, I think, that an existing disease has been made worse, not that it has simply become worse. 'Acceleration' I have previously said and venture to repeat, 'probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli': Federal Broom Co. Pty. Ltd. v Semlitch. To this view I adhere."
In Re Will and Repatriation Commission [2012] AATA 710 (Re Will), the Tribunal cited paragraph [31] from Young with approval in the context of s 70(5)(d) of the Act, stating at [36] that:
36. Section 70 subsection 5(d) requires either a material contribution or aggravation. The meaning of this term was discussed by the Tribunal in its decision Young and Repatriation Commission [1990] AATA 466. The Tribunal referred to a number of previous decisions and stated at paragraph 31:
“In each case the reference to materiality serves to make it clear that the contribution is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. Davies J. said that:- "The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie dictionary namely, 'of substantial import or much consequence' but rather in its legal since of 'pertinent' or 'likely to influence'."
It is also clear from the authorities that the term “aggravation” means that the disease must have been made worse and not simply become worse during service.
In Young, at paragraph [37], the Tribunal relied upon the expert medical evidence to decide whether “the treatment delivered was appropriate in the circumstances”, and went on to conclude, at paragraph [41], that:
… the Tribunal does not find that Mr Dale’s treatment was inappropriate in the circumstances. There is no basis for a conclusion that the treatment materially contributed to or aggravated the AVM condition or that the condition was made worse as a result of such treatment. There was no persuasive medical evidence that the AVM condition was aggravated or made worse because of a failure to diagnose the disease during Mr Will’s period of service with the Navy.
Similarly, in both Re Will and Hogben and Repatriation Commission [2012] AATA 878 (Hogben) where there were no applicable SOP, the Tribunal relied on expert evidence that the treatment given to the veteran was “appropriate” (Re Will at [37] and Hogben at [22]).
In Johnson v The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 (Johnson) the joint judgment of Gibbs CJ, Mason and Wilson JJ discussed the definition of “aggravation” in the context of s 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Their Honours stated (at pages 336 – 337):
In Lee v. Minister of Pensions (No.2) (7), Denning J. (as he then was) discusses the (1948) 3 War Pensions Appeals R 1901, Denning J. (as he then was) discusses the question of the aggravation of cancer through war service. His Lordship says (1948) 3 War Pensions Appeals R, at p 1913:
"This case raises directly for consideration the question of aggravation of cancer by delay in diagnosis or treatment. Cancer has been proved to be not attributable to or aggravated by war service except in special circumstances. This question of delay is a special circumstance."
His Lordship then describes as an example of aggravation by delay (9):
"Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service . . . . there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service."
(Emphasis added.)
Their Honours later stated (at page 338) that:
There is some force in the comment of his Honour in Lucas that "aggravation" signifies "making worse" rather than "becoming worse", a comment reflected in the remarks of Brennan J. in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb "aggravate" than when it is applied to the noun "aggravation", especially when it is used in a passive sense in the expression "suffers an aggravation". "Aggravation" may mean "An increasing . . . in gravity or seriousness" as well as "being increased, in gravity or seriousness".
And further, at paragraphs [14]-[15]:
…The concept of aggravation implies a worsening and therefore predicates a starting-point with which the end result is to be compared…The evidence is that if the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down, if not entirely stopping, the "natural and fatal course" of the disease. The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease "taking its natural and fatal course, unimpeded by timely treatment", but a disease capable of effective medical management. If that be chosen as the starting-point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken. We accept the reasoning of Denning J. and Ormerod J. in the post-war English cases as relevant and persuasive in the present case and more in tune with s. 29 of the Act.
15. The object of the statute is to provide for the payment of compensation to employees who suffer injury or disease occurring in circumstances connected with their employment by the Commonwealth. Section 29 makes specific provision for the payment of compensation in cases of incapacity in which an employee contracts a disease or "suffers an aggravation, acceleration or recurrence of a disease", when employment by the Commonwealth is a contributing factor, by deeming the contraction of the disease or the aggravation, acceleration or recurrence to be a personal injury to the employee arising out of his employment by the Commonwealth. In this setting it is natural to suppose that Parliament intended that compensation is payable when an employee suffers an increase in the severity of a disease and his employment contributes to that increase in severity, whether the employment so contributes by actually making the disease worse or by delaying medical treatment which would arrest the natural course of the disease. It would scarce conform to the broad policy underlying the statutory provisions to confer an entitlement to compensation in the first case but not in the second.
With respect to an aggravation by a delay in diagnosis, Johnson was applied by the Full Federal Court in Repatriation Commission v Money [2009] FCAFC 11; 173 FCR 410 (Money). Money was an appeal concerning s 70(5)(d) of the Act where there was an applicable SOP in force. However, the following passage from the Full Court’s judgment was not made in the context of interpreting the SOP but rather, as noted by the Respondent in its closing submissions (at paragraph [19]), in the context of addressing the meaning of “aggravation” with respect to the failure to diagnose a condition. Accordingly, the Tribunal agrees that the Court’s commentary regarding an aggravation by a delay in diagnosis in Johnson and Money are equally applicable to the current application, where there is no SOP. In Money, the Full Court stated at [52]:
52 Consistent with what we have said, a failure to diagnose and hence to recommend what the Tribunal described as appropriate "prophylactic measures", could in appropriate circumstances properly be found to constitute an inability to obtain appropriate clinical management of a disease…
…The submission that is made is that there was no finding made by the Tribunal that Mr Money’s IFA [idiopathic fibrosing alveolitis – a lung disease] should have been diagnosed during his defence service and would have been diagnosed if he had been a civilian. Further, it is said there is no evidence that Mr Money would have received the "prophylactic" advice if he had been properly advised at the time by a civilian doctor using reasonable care and skill. Reliance was placed on the reasoning in Lee v Minister of Pensions [No 2] (1948) 3 WPAR 1901 at 1914, approved in Johnston v The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 339.
54 There is, in our view, a short answer to this. There was the expert evidence of Dr Waring before the Tribunal that a diagnosis could have been made in 1979 (during the period of Mr Money’s defence service) and no differentiation was made between civilian and defence medical practitioners; the Tribunal’s conclusion that there was a systems failure in the medical management structure that the Navy had in place in relation to Mr Money’s disease was itself premised upon the failure to diagnose when a diagnosis could and should have been made; and the Tribunal itself indicated what in the circumstances appropriate medical management of Mr Money would at the time have required. As her Honour concluded (at [55]), it is clear that the Tribunal did consider the comparative issues of service and civilian care mandated by Lee and Johnston which form the basis of the appellant’s submission. It is, in our view, clearly implicit in the Tribunal’s reasons that, but for the Navy’s systems failure, the IFA could and properly would have been diagnosed by doctors (service or civilian) during the period of Mr Money’s service and that, if diagnosed, he would have received appropriate advice from medical practitioners (military or civilian) concerning precautionary measures.
…
58 We have already indicated that the Navy’s failure to diagnose Mr Money’s IFA, and the consequent failure to provide advice to him could, with an appropriate evidentiary foundation, have resulted in Mr Money’s inability to obtain appropriate clinical management of his disease for the purposes of the SoP. However, for such to be the case, the cl 6 limitation on cl 5(a) had to be satisfied.
59 It was insufficient to show that, according to the "plain English" meaning (the Tribunal’s description: Reasons [46]) of the expression "appropriate clinical management" or in the "broadest sense" of the term (Dr Waring’s evidence), there was simply an inability to obtain such management. Before such an "inability" could qualify as a cl 5(a) factor it had to be shown to have contributed in a material degree to, or aggravated, Mr Money’s very slowly progressive disease.
(Emphasis added.)
In summary, when considering whether there was an aggravation by a delay in diagnosis, comparative issues of service and civilian care are relevant for consideration by the Tribunal. Applying Johnston, when considering whether an aggravation was contributed to in a material degree by the Applicant’s defence service, it is relevant for the Tribunal to compare the care that the Applicant received from the BMF with the care he would have received if he was treated by civilian doctors.
The Respondent also referred to three decisions where the Tribunal considered whether delays in diagnosis resulted in the failure to obtain appropriate medical treatment. In these decisions there was an applicable SOP. In Re Neal and Repatriation Commission [2012] AATA 843, the Tribunal stated, at [55] that:
… The Tribunal prefers the evidence of Dr Floate, who treated and diagnosed Ms Neal’s condition. He is a specialist in the field and had access to the relevant medical records. Dr Floate did not consider that the RAAF service doctors could be held responsible for a delay in diagnosis because there was nothing that manifested on the clinical examination which would have led to a diagnosis of multiple sclerosis at the time. Nor is there any evidence that a failure to diagnose the condition at an earlier point of time and potentially afford the opportunity for earlier treatment, caused an aggravation of the disease in that it was made worse than it otherwise might have been…
In Re Lipke and Repatriation Commission [2014] AATA 729 (First Lipke Decision) a veteran claimed that he should have been diagnosed earlier (at [13]), that is, that there was an unreasonable delay in diagnosis and treatment. At [15]-[18], the Tribunal stated:
15. The issue of inability to obtain appropriate clinical management was discussed in the matter of Lee v Minister of Pensions (No. 2), which was referred to with agreement in the matter of Johnson v Commonwealth. In summary, J Denning (as he was then) opined that if, because of a veteran’s service, he is at a place overseas when the onset of his disease occurs and he is unable to be treated with the same skill, or in as good facilities with access to as good treatment, as he would have in civilian life, then he has not been able to access appropriate clinical treatment as a result of his service.
16. Mr Lipke’s circumstances are not of the nature his Lordship described. He was based in Australia at the time he was diagnosed. Mr Lipke’s claim is based on an assumption that there was medical negligence. I do not believe the factor in the SoP encompasses medical negligence of the nature claimed by Mr Lipke. It does however, cover inferior treatment when a soldier is treated by doctors with inferior training, and/or lack of access to the same medical diagnostic facilities and treatment facilities, as he would have had as a civilian in a civilian facility.
17. There is no suggestion that the doctors who treated Mr Lipke were lesser qualified than those practicing in civilian practice at the time. Nor is there any suggestion he did not have access to the same investigations and same specialists that he would have had, had he not been in serving in the military.
18. The factor in the SoP does not provide for the finding that there is a causal link between service and a person’s disease or injury simply because the management was not optimal or, because with the wisdom of retrospect, a better management of the disease or injury can now be proposed. The comparison is not that which is optimal – it is that which he would have received in civilian life.
(Emphasis added, footnotes omitted.)
In the First Lipke Decision the Tribunal further stated (at [21]-[22]):
21.The delay in diagnosis in this case, whilst unfortunate, was not surprising and would likely have occurred if Mr Lipke had consulted a civilian doctor. There is no evidence (other than the misguided opinion of Dr Brigden, who I consider mislead himself as to the interpretation of the legislation), that suggests otherwise.
22. As indicated in the medical evidence before the Tribunal, the type of cancer Mr Lipke was diagnosed with is very rare in adults. An uncommon cancer, it is diagnosed mostly in children. It is most unlikely a civilian doctor would have sent the veteran off for a fine need biopsy in May 1997 simply because he presented with an enlarged lymph node. Lymph nodes in the neck and all over the body, become enlarged on a regular basis, and the cause is usually infection. Doctors are trained to consider likely diagnosis, by keeping in mind the mantra ‘common things are common, rare things are rare’. Infection is common; the cancer Mr Lipke was diagnosed with is rare.
Re Lipke and Repatriation Commission [2017] AATA 2168 (Second Lipke Decision) concerned a fresh claim by the same veteran, and also cited Denning J (as he then was) in Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901 and the High Court’s decision in Johnston. Relevantly, the Tribunal stated at [69]:
69. As previously stated, the standard of clinical management at the time of service is the relevant standard – Repatriation Commission v Wedekind [2000] FCA 649 at [17]. It is clear that the veteran was misdiagnosed in May 1997 and for a short time thereafter. It is also not contested that the condition he suffered is a rare one, and not a condition that adults are usually afflicted with. It is not obvious that the medical attention he received was negligent or substandard even if it turned out to not address his actual condition. The test that needs to be applied is would a properly trained physician at that time and with the knowledge and expertise expected have approached the matter as occurred? The test is not how, with the wisdom of hindsight, would a medical practitioner have acted. It is all too trite to say that the only clear vision is rear vision. Rear vision is always 100% correct and provides an absolute standard. That is not the test in this, or any other matter.
70. The evidence before the Tribunal is that the veteran was provided from his first presentation in May 1997, and for a short time thereafter, with a standard of care and attention that was reasonable and appropriate, albeit incorrect in terms of diagnosis. Mr Cullen acknowledges that once the correct diagnosis was made, the veteran received speedy and appropriate treatment. There is also no contest that his condition was not immediately diagnosed. In terms of paragraph (b), on the balance, the evidence leads strongly to the conclusion, that he received appropriate clinical management.
(Emphasis added.)
Standard of proof
The relevant standard of proof which the Tribunal must apply, standing in the shoes of the Commission, is articulated in s 120(4) of the Act which provides that:
(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.
(Emphasis added.)
This “reasonable satisfaction” standard is synonymous with the civil standard of proof which is also expressed as the “balance of probabilities”, “preponderance of probability” or “preponderance of evidence” (DM Byrne QC and JD Heydon, Cross on Evidence (3rd Aust ed, 1986), page 246, cited in Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (3rd ed, Federation Press, 2016), page 425 (Creyke and Sutherland). Creyke and Sutherland, citing Re Appleby and Repatriation Commission (1988) as an example, state that, “In practice, decision-makers often adopt a ‘more probable than not’ test when applying s 120(4)” (page 425).
Relevantly, Creyke and Sutherland (page 424) note judicial and tribunal interpretations of the reasonable satisfaction standard, commencing with Beaumont J (with whom Northrop and Spender JJ agreed) in Repatriation Commission v Smith (1987) 15 FCR 327:
s 120(4) speaks in terms of a reasonable satisfaction. This expression has settled meaning, at least in a curial context. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at 362):
… It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and the consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Creyke and Sutherland continue on to cite the following definition from Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372:
In cases falling under art 4(2) and art 4(4) (which are generally cases where the man was fit on his discharge, but incapacitated later by a disease) there is no compelling presumption in his favour, and the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the Tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well-settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.
In the context of the Act, Creyke and Sutherland (page 425) cite the following passage from Doolan and Repatriation Commission [1995] AATA 616, in which the Tribunal stated that the reasonable satisfaction standard may vary depending on the seriousness of the matter, and that being reasonably satisfied is not a mathematical exercise:
8. The Tribunal interprets its task, based on these precedents, as having to be reasonably satisfied on each of the facts, and in so doing we must consider the seriousness or gravity of the matter in reaching the ‘persuasion of the mind’ on the facts. However, being reasonably satisfied on each of the dependent facts is not an exercise which can be approached by way of statistical probability theory unless there is a clear independence of the facts involved; nor is it appropriate or necessary to identify the precise degree of certainty in respect of each of the facts and then calculate a cumulative probability score for all of the facts taken together. It is not possible to treat the evidence before the Tribunal with quantitative precision. Coming to the “persuasion of the mind” on the balance of probabilities and taking into account all of the evidence is a matter of judgement for the decision maker – it is not a mathematical exercise.
Creyke and Sutherland (page 426) also note that the decision-maker (in this case the Tribunal) must consider whether the reasonable satisfaction standard has been reached with respect to medical evidence, which can sometimes be inexact. They discuss
Re Repatriation Commission and Falkner[1987] AATA 199:
Decision-making under the VEA [the Act] generally involves the existence and degree of incapacity of an applicant, issues frequently based on medical or scientific evidence. Hence, it is to matters of this kind that the reasonable satisfaction standard is to be applied.
In Re Repatriation Commission and Falkner (1987), an example was given by the Tribunal:
The fact that medical and scientific evidence does not always provide clear answers to questions does not necessarily mean that a court or tribunal cannot reach a state of reasonable satisfaction in respect of such matters. This was demonstrated in Commonwealth of Australia v Henderson (1985) 8 ALN N62, where the court dismissed an appeal against a decision of the Tribunal assessing additional hearing loss by reason of tinnitus at 5%. The court said:
It is true that the evidence was that audiologists have not been able to devise a reliable test to measure hearing loss in terms of mixed sound, and that they are therefore driven to rely solely on the pure tone test for the assessment of sensori-neural loss. But in making an assessment of additional hearing loss of 5% by reason of tinnitus, the tribunal was doing no more than courts and tribunals are called upon to do every day – to do the best they can with the material before them.
In Re Carter and Military Compensation Commission [2018] AATA 1642 Deputy President Boyle at [58], referring to the decision of Senior Member Lewis in Re Murray and Repatriation Commission [1997] AATA 117 at [24]-[54], stated:
At [53] the learned Senior Member summarises the effect of the standard [that is, the reasonable satisfaction standard] as being “The Tribunal, therefore, is bound to apply the civil standard of proof and will only be satisfied by a probability not a mere possibility.”
Relevantly, Deputy President Boyle agreed that this is the appropriate standard of proof to be adopted by the Tribunal in applying s 120(4) of the Act.
SOP for DD
With respect to the Applicant’s claim for DD, a SOP has been determined under s 196B(3) of the Act. The current SOP for DD is the Statement of Principles concerning depressive disorder (No. 84 of 2015) (DD SOP). The previous version of this SOP was Statement of Principles concerning depressive disorder (No. 28 of 2008 as amended by No. 41 of 2010) (Previous DD SOP). Subsection 196B(3) of the current SOP provides:
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or
(ba) peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service…
Subsection 120B(3) of the Act provides clarification as to the application of the “reasonable satisfaction” standard in s 120(4) of the Act. It provides:
(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.
Paragraph 9(1)(h) of the current SOP provides that:
At least one of the following factors must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service:
(1) for major depressive disorder, major depressive episode, persistent depressive disorder, premenstrual dysphoric disorder, other specified depressive disorder and unspecified depressive disorder only:
...
(h)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder…
Paragraph 6(a)(vii) of the Previous DD SOP provides that:
6. The factor that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service is:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(vii) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder;…
(Original emphasis.)
As noted in 9(c) above, the Respondent conceded that if the Applicant’s blindness is a defence caused injury, then his DD would also be a defence caused disease because it can be connected to his defence service through the operation of the DD SOP and the Previous DD SOP.
THE HEARING AND EVIDENCE
The application was heard over four days (the hearing). The hearing commenced on
27 September 2018 and at the conclusion of 28 September 2018 was adjourned and resumed on 7 February 2019, and concluded at the end of 8 February 2019. The Applicant was represented by Mr Grayden, and Counsel for the Respondent was
Mr Schatz, instructed by Ms Ling.
In summary, the adjournment was required because the parties called witnesses out of order. That is, the whole of the Applicant’s case was not presented in its entirety, followed by the whole of the Respondent’s case. This created issues with respect to procedural fairness, which required an adjournment and the recalling of the medical witnesses to remedy.
Specifically, on the first day of the hearing (27 September 2018), the Applicant was called and cross-examination commenced, but not finished. Squadron Leader Pat Hall, RAAF (Ret’d) (SQNLDR Hall) was called by the Applicant. Following SQNLDR Hall, the Respondent called Dr du Plessis.
On the second day of the hearing (28 September 2018), the cross-examination of the Applicant resumed, and then the Applicant called Dr Cunningham. During
Dr Cunningham’s evidence, it became apparent that he took an entirely opposing view to Dr du Plessis. Further, Dr Cunningham had not been provided with relevant medical records, and consequently appeared to be basing his opinion on a different (and factually inaccurate) timeline to Dr du Plessis. He also had not reviewed the report of Dr du Plessis. Given the importance of timing in terms of the progression and diagnosis of the Applicant’s CRMB, an adjournment was necessary to ensure that the expert medical witnesses based their diagnoses on the same factual material, and to ensure that they each had the opportunity of commenting on the reports of the other.
On the third day of the hearing (7 February 2019), questions were asked of the Applicant by Mr Grayden by way of re-examination. Dr Cunningham was then recalled by the Applicant, was examined in chief, cross-examined, and then questions were asked by way of re-examination.
On the final day of the hearing (8 February 2019), Dr du Plessis was recalled.
An examination in chief was conducted by Mr Schatz, followed by a cross-examination from Mr Grayden and re-examination by Mr Schatz.
Whilst it can be difficult to schedule witnesses for a hearing, it is important from a procedural fairness perspective that they are called in the appropriate order. That is why the Tribunal sometimes gives leave for medical witnesses to give evidence by telephone (as did Dr du Plessis). Further, medical witnesses must be properly briefed by being provided with the necessary medical documentation upon which to base their opinions. The parties’ failure to call witnesses in the appropriate order in this case resulted in what should have been a two day hearing extending to four days, as well as requiring written closing submissions in order for the proceedings to be concluded within that time. This is not consistent with the objectives of the Tribunal in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which include economy and proportionality.
At the close of the hearing on 8 February 2019, the parties were directed by the Tribunal to file written closing submissions. The following closing submissions were subsequently filed with the Tribunal:
(a)Applicant’s Submissions dated 25 February 2019;
(b)Respondent’s Closing Submissions dated 12 March 2019 with attached chronology; and
(c)Applicant’s Submissions in Reply dated 19 March 2019.
The following materials were admitted during the course of the hearing. Some of these materials are submissions (for example the SFICs of the parties’) and secondary materials (for example journal articles) rather than evidence, but, given the volume of materials, have been given exhibit numbers for ease of reference:
(a)Applicant’s SFIC dated 3 August 2018 (Exhibit A1);
(b)Applicant’s witness statement dated 19 July 2018 (Exhibit A2);
(c)letter from SQNLDR Hall dated 5 November 2017 (Exhibit A3);
(d)bundle of documents obtained from the Department of Human Services under Freedom of Information Act 1982 (Cth) (Exhibit A4);
(e)document titled “Further questions DVA Doctor Report 17 May 17” (Exhibit A5);
(f)Applicant’s submission on depression under cover of a letter from the Defence Force Welfare Association dated 13 November 2016 (Exhibit A6);
(g)comments from the Applicant regarding the Veterans’ Review Board Decision under cover of a letter dated 21 September 2016 (Exhibit A7);
(h)
bundle of documents produced by Dr Cunningham, Consultant Neurologist
(Dr Cunningham) at the Tribunal hearing on 28 September 2018 (Exhibit A8);
(i)
briefing letter of Mr Grayden to Dr Cunningham dated 18 October 2018
(Exhibit A9);
(j)letter of Mr Grayden to the Tribunal dated 2 November 2018 (Exhibit A10);
(k)medical report of Dr Cunningham dated 1 January 2019 (Exhibit A11);
(l)Curriculum Vitae of Dr Cunningham dated 1 January 2019 (Exhibit A12);
(m)
journal article titled "Management of Chronic Headache", Volume 43 No 3 dated March 2014 Pages 106-110 handed up by Dr Cunningham at the hearing on
7 February 2019 (Exhibit A13);
(n)s 37 Documents (T Documents) numbered T1 to T47 (Exhibit R1);
(o)two volumes of supplementary T Documents dated 16 March 2017. Volume 1 is numbered ST1 to ST36 and volume 2 is numbered ST37 to ST91 (Exhibit R2);
(p)briefing letter of Ms Ling to Dr du Plessis dated 12 April 2017 with briefing documents attached (Exhibit R3);
(q)three volumes of medical records produced under s 128(1) of the Veterans’ Entitlements Act 1986 (Cth) (Exhibit R4);
(r)documents produced by the Read Street Medical Centre under s 128(1) of the Veterans’ Entitlements Act 1986 (Cth) (Exhibit R5);
(s)documents produced by the RPH under s 128(1) of the Veterans’ Entitlements Act 1986 (Cth) (Exhibit R6);
(t)Respondent’s SFIC received by the Tribunal on 26 September 2018, including attachments (Exhibit R7);
(u)medical report of Dr du Plessis dated 17 May 2017 (Exhibit R8);
(v)Royal Australian Air Force Record of Leave from 1972 to 1978 (Exhibit R9);
(w)Thomas B Hugh and G Douglas Tracy, “Medicine and the Law: Hindsight bias in medicolegal expert reports” (18 March 2002) 176 Medical Journal of Australia, 277-278 (Exhibit R10);
(x)Thomas B Hugh and Sidney W A Dekker, “Hindsight Bias and Outcome Bias in the Social Construction of Medical Negligence: A Review” (2009) 16 Journal of Law and Medicine, 846-857 (Exhibit R11); and
(y)Curriculum Vitae of Dr du Plessis (Exhibit R12).
The Tribunal has had regard to all of the materials and submissions before it, and has also had regard to the complete transcript of proceedings. Notwithstanding the witnesses initially being called out of order, the Tribunal is satisfied that the steps outlined above with respect to adjourning and resuming the hearing and recalling the witnesses ensured that procedural fairness was adequately afforded to the parties and that the evidence was able to be properly tested and evaluated.
THE EVIDENCE
Timeline as shown by medical records
The relevant sequence of events has been compiled from the medical records and documentation before the Tribunal. Many of the records were handwritten and difficult to decipher.
An RAAF Inpatient Summary (Exhibit R1, T44, page 249-250) shows that the Applicant was admitted to hospital for two days on 2 July 1981. The Applicant “presented with sudden onset of total body paralysis” which “resolved spontaneously” and had a “good” prognosis. The diagnosis was “Hysterical attention seeking disorder” (see also Exhibit R1, T5, page 29).
An entry in the Outpatient Clinical Record of the BMF dated 28 April 1987 at 1.40pm which states (Exhibit R2, ST1, page 136):
Chronic cough – productive grey – white sputum.
Wheeze.
Heavy smoker – 30/day
No dyspnea
[remainder of entry indecipherable]
A subsequent entry dated 4 May 1987 at 10.40am states “Much better”. The handwriting appears to state that the Applicant is to continue on with Benadryl until “cessation” (Exhibit R2, ST1, page 136).
An Outpatient Clinical Record shows that the Applicant attended the BMF on 27 May 1987 at 9.20am and recorded (Exhibit R2, ST1, page 136):
Struck occiput on roof of car while getting out on 22/5. Occipital headache started on 24/5 and has persisted since.
Relieved by Panadol.
o/e [on examination] bp [blood pressure] 130/75 P.reg [Pulse regular]. Fundi normal. Cranials intact r/flexes all p & e [reflexes all present and normal] plantars ↓↓ [down]
Review on 29/5 if no better. Sick leave 28/5 & 29/5
Paracetemol
A letter from Dr Gubbay dated 25 June 1987 recorded that the Applicant (Exhibit R1, T44, page 244):
…struck his head on the side of the roof of a car and was stunned by the blow but not rendered unconscious.
A subsequent entry in the Outpatient Clinical Record notes an attendance by the Applicant on 29 May 1987 at 10.30am, and states (Exhibit R2, ST1, page 137):
Continues to have occipital headache after falls. No alteration in conscious state. Pupils… [equal] and reactive, Fundi √ [normal] R [prescribed] Mersyndol.
The next entry shows that the Applicant attended the BMF on 29 May 1987 at 4.30pm. The following entry was made:
SEE ABOVE. Headache worse. No response to medication – request to see MO [medical officer] at Swan District Hospital. Request granted.
Immediately below is an entry from 7.00pm on 29 May 1987 which states (Exhibit R2, ST1, page 137):
New medication ordered. Sgt Cox to come to Bmf [BMF] am [in the morning] his for [sic] review.
The next entry is from 30 May 1987 and states (Exhibit R2, ST1, page 137):
See report from Swan District Hospital re head injury.
The Tribunal notes that this report was not contained in any of the documents produced under summons and was not otherwise before the Tribunal.
The next entry indicates that the Applicant reported to the BMF on 1 June 1987 and that he was to report to the Swan District Hospital again and to notify the BMF of the medical officer’s findings (Exhibit R2, ST1, page 137):
VA L 6/6 R 6/6 [Visual acuity is normal in both eyes] Reported to BMF c/o [complaining of] on going headache from ? concussion DNO notified, to Report to Swan District hosp and notify BMFPEA of MO findings.
An attendance form from the Swan District Hospital Emergency Department (R2, ST2, page 221) records that the Applicant attended there at 6.28pm on 1 June 1987. The following notes were made (although they are faded and difficult to decipher):
See 870508899
Still has headache
Gets relief… [with] Codral forte
Headache (L)s [handwriting indecipherable]... throbbing.
Also pain in (L) neck
[indecipherable]…weakness...
o/e [on examination] ...
Cranial N N – [cranial nerve for vision – see explanation of Dr du Plessis for this shorthand, Transcript, day 1, page 101]
PNS-NAD [handwriting unclear]
Cervical [handwriting unclear] spine – Tender in facet joints ROM ↓ flexion
A/ Headache… [secondary] to neck facet joint pain
P/ Neck manipulated by Dr Smith
Codral forte
Naprosyn 500 prn bd
R/v [review][indecipherable, but possibly BMO] tomorrow.
Also on 1 June 1987, the following note was made (Exhibit R2, ST1, page 137):
2025 hrs notified by SGT Cox from Swan Dist Hospital that LMO thinks that his condition stems more from a neck problem rather then [sic] concussion.
R [prescribed] Codral Forte
Napryson
To be reviewed by RAAF MO in AM hrs.
On 2 June 1987 at 1.50pm, the following note was recorded in the Outpatient Clinical Record of the BMF (Exhibit R2, ST1, page 137):
See notes from SD. Hospital
Still headaches + Very tender (2)… [indecipherable]. Region front below occiput.
For Xray of skull + cervical spine.
Physio probably next step
These medical records indicate that the Applicant presented again at the BMF on
3 June 1987 (Exhibit R2, ST1, page 137). They state:
Headache nausea, vomiting, vertigo on positional changes. Afebrile ? Tinnitus [difficult to decipher] (no different to usual amount ???) Pupils both small (? normal) but equal + R – L + A- Fundi. NAD. Rx [treatment] Stemetil prior to Xray [appears to be crossed out] ... leaving for Xray
The next entry from the BMF, also dated 3 June 1987, and made after the Applicant had an x-ray states (Exhibit R2, ST1, page 138):
X-ray- NAD [normal] –
Stemetil worked well.
D ? [diagnosis of possible] Viral labyrinthitis
Rx [treatment] Stemetil…[remaining notes indecipherable]
On 5 June 1987 at 10.50am, the Applicant again presented to the BMF. The entry states (Exhibit R2, ST1, page 138):
Dizzyness [sic] much less – needed only 2 Stemetil tabs since 3/6/87
Still has (L) occipital headaches – not worse if
lying on (R) side. No vomiting since 3/6 PERLB [pupils equal reacting to light – see Dr du Plessis evidence, day 1, page 106]. Fundi disc margins clear. D [diagnosis] tension headache.
Rx [treatment] Valium 10mg ...
Panadeine
On 8 June 1987, there is another entry with the time 1.10pm, which shows that the Applicant presented to the BMF after the weekend on Monday with the same symptoms (Exhibit R2, ST1, page 138). It states:
Valium no help at all on weekend.
Symptoms the same. Repeat CNs – NAD [no abnormality after Dr looked at intracranial nerves – see Dr du Plessis evidence, day 1, page 106].
D/W [Discussed with] Dr Gubbay [a neurologist – unlikely intracranial cause
Suggested conservative Rx [treatment] for neck musculo ligamentous cause
[Symbol indicating “therefore”] Back on Naprosyn
Bd [twice a day] Heat Comp [compress]/ Metsal
Review weekly
On 9 June 1987 at 2.30pm another entry states (Exhibit R2, ST1, page 139):
Unhappy with treatment
Getting nowhere [with] NSAIDs /Heat/ Metsal/ Panadeine
Referred physiotherapist
Associate
Dated: 1 August 2019
Date(s) of hearing: 27 and 28 September 2018, 8 and 9 February 2019
Solicitors for the Applicant:
Representative for the Applicant:
Robert Greyden Legal
Mr R Greyden
Counsel for the Respondent: Mr A Schatz Solicitors for the Respondent:
Representative for the Respondent:
Australian Government Solicitor
Ms T Ling
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