Craig Lipke and Repatriation Commission
[2014] AATA 729
•8 October 2014
[2014] AATA 729
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1905
Re
Craig Lipke
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 8 October 2014
Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
VETERANS' AFFAIRS – Benefits and entitlements – eligibility for pension – rhabdomyosarcoma inability to obtain appropriate clinical management – whether these is material contribution to a condition – whether there is aggravation of a condition – no connection between eligible defence service and condition – Not entitled to any benefits – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlement Act 1986 (Cth) ss 70, 120, 196B
Military Compensation and Rehabilitation Act 2004 (Cth)
CASES
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Ford v Repatriation Commission [2007] AATA 1109
Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331
Lee v Minister of Pensions (No. 2) (1948) 3 War Pensions Appeals R
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Law (1980) 31 ALR 140
SECONDARY MATERIALS
Statement of Principles concerning Soft Tissue Sarcoma, No. 14 of 2006 as amended by No. 36 of 2008 and No.74 of 2011
REASONS FOR DECISION
Dr M Denovan, Member
9 September 2014
INTRODUCTION
The applicant in these proceedings is Mr Craig Lipke (“the applicant”). The applicant enlisted in the Australian Army (“the Army”) from 3 March 1982. Within the meaning of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”), he rendered eligible defence service from 30 March 1982 to 30 June 2004. He rendered several periods of eligible operational service during this time, however his claim only relates to events that occurred outside the periods of operational service. His service subsequent to
30 June 2004 is not covered by the Act, and as such is covered by the
Military Compensation and Rehabilitation Act2004 (Cth).
The applicant seeks review of the decision of the Veterans’ Review Board (“VRB”), dated 26 March 2014, which affirmed the decision of the Repatriation Commission dated 17 June 2013, that rhabdomyosarcoma is not related to service.
He contends that due to an inability to obtain appropriate clinical management, during his defence service, his condition worsened.
The applicant applied to this Tribunal on 10 April 2014. He has elected to have the matter heard on the papers. The Respondent conceded to this request.
There is no dispute about the diagnosis, and both parties agree the condition did not arise out of the applicant’s service, but was diagnosed during his service. The issues I must decide are:
·Whether there was an inability to obtain appropriate clinical management; and, if so
·Whether there was a material contribution to, or aggravation of, the rhabdomyosarcoma as a result.
EVIDENCE
The following evidence was filed, and taken into evidence, marked as follows:
·Exhibit one: ‘T-Documents’, in accordance with s 37 Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibit two: Copy of extracts from applicant’s service medical records, diagnostic reports, and hospital reports for period 30 March 1982 to 24 April 2007;
·
Exhibit three: Applicant’s statement of issues, facts and contentions dated
27 June 2014; and
·Exhibit four: Respondent’s submissions.
LEGISLATION AND ISSUES
Under s 70(5)(a) of the Act, a disease contracted by a member of the Forces is taken to be a defence-caused disease if the disease “arose out of, or was attributable to, any defence service”. Section 70(7) provides in effect that:
(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces… was due to… a disease that would not have been contracted, but for his or her having rendered defence service…
(b)if the incapacity was due to disease -- the incapacity of the member shall be deemed to have arisen out of that disease and that disease is deemed to be a defence-caused disease contracted by the member for the purposes of this Act.
The issues that have arisen in the present matter are to be decided in accordance with the civil standard of proof, that is, on the balance of probabilities. This follows from
s 120(4) of the Act, which provides that the Tribunal shall decide the matter to its reasonable satisfaction. Section 120(6) of the Act provides that nothing in s 120 or in any other provision of the Act is to be taken to impose “any onus of proving any matter that is, or might be, relevant to the determination of the claim or application” upon a claimant or applicant for a pension.
There is no statutory definition of the concept of an death, injury or disease being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in ss 196B(14)(a), (b) and (e). This provides relevantly that a factor causing, or contributing to, a disease is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(e)in the case of a factor causing, or contributing to, an injury -- it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in his or her environment consequent upon having rendered that service.
The relevant SoP for the applicant’s conditions and eligible defence service is that for Soft Tissue Sarcoma, No. 14 of 2006 as amended by No. 36 of 2008, and No. 74 of 2011.
The applicant relied on factor 6(h), as per 2(E) of SOP No. 74 of 2011, which reads:
Factor 6(h) only applies to material contribution to, or aggravation of, soft tissue sarcoma where the person’s soft tissue sarcoma was suffered or contracted before or during (but not arising out of) the persons relevant service.
HISTORY
The history of this matter is not in dispute. The following is a summary of medical evidence relating to the diagnosis and treatment of the veteran’s rhabdomyosarcoma (exhibit two):
·13 May 1997 – the veteran presented to the RAP Unit complaining of a lump in the throat. It was noted he had no systemic symptoms (that is no fever, aches and pains, or other symptoms in any part of his body) and no ear infection. The treating doctor diagnosed the lump as an enlarged lymph node, and ordered a review in 14 days.
·22 May 1997 – the veteran presented to the RAP for review. It was noted there had been no change in size or shape in the mass. The veteran was noted to feel well, but mildly tired; he said he had no weight loss, no other masses, and no night sweats. The veteran was observed to look well and was afebrile (normal temperature, no fever). Blood tests were ordered.
·3 June 1997 – the blood tests were noted to be normal. The mass had regressed but another lymph node in the same chain (lymph nodes in the neck run in chains) was enlarged. He was advised to watch and wait. It was noted that if the mass stayed then veteran should be referred for surgical excision or fine needle biopsy.
·23 June 1997 – the veteran presented feeling very unwell with marked painful swelling on right later neck adjacent to previous lymph node. The swelling came up over last two days. The veteran reported feeling dizzy and cold. Blood pathology and ultrasound were ordered. The provisional diagnosis was mumps. The veteran was ordered to rest at home for one week and return.
·23 June 1997 – the ultrasound report indicated findings consistent with mumps.
·30 June 1997 – the veteran was feeling much better.
·7 August 1997 – veteran returned complaining of lump on right side of jaw and neck. He was initially assessed by a medic, who made a provisional diagnosis of a viral illness. He was referred to a doctor on the same day. The doctor noted there were no additional enlarged lymph nodes; further blood pathology and serology was ordered. The veteran returned to the RAP later on the same day, the medic noted he had right sinus pain and prescribed antibiotics.
·18 August 1997 – the veteran presented to the RAP and referred to a doctor the same day. The doctor noted the veteran had enlargement of the right cervical chain of lymph nodes, and results of all blood tests were unremarkable. He referred the veteran a surgeon for fine needle biopsy.
·21 August 1997 – the veteran was reviewed by a surgeon and a fine needle biopsy was performed.
·21 August 1997 – The veteran returned to the surgeon. He was told the results of fine needle biopsy which were consistent with a metastatic germ cell tumour. Computed tomography (“CT”) scans of head, neck, sinuses, chest and abdomen and ultrasound of testes was ordered. The veteran was referred to an oncologist.
·26 August 1997 – the veteran was seen by oncologist Dr Byrne. In his report dated the same day, Dr Byrne indicated the likely diagnosis was of an anaplastic small round cell sarcoma, possibly alveolar rhabdomyosarcoma. He was referred to an ear, nose and throat (“ENT”) surgeon for evaluation, and further CT scans ordered.
·27 August 1997 – CT scans and ultrasound were performed – ultrasound of scrotum and CT of chest, abdomen and pelvis were all unremarkable. The CT scan of head, neck and sinuses demonstrated a mass in the right ethmoid associated with bone destruction. Infiltration of the cervical lymph nodes was noted.
·11 September 1997 – chemotherapy was commenced.
·2 October 1997 – the veteran was admitted to hospital.
·12 November 1997 – veteran was admitted to the Oncology Ward.
CONSIDERATION
The VRB recorded Mr Lipke saying he believed his condition should have been diagnosed earlier. He said had it been diagnosed sooner, his treatment would have not been so radical and he would have suffered fewer side effects such as dry mouth syndrome, and symptoms in his legs and hands which he understands is myopathy.
Was there an inability to obtain appropriate clinical management?
Dr Brigden, Departmental Medical officer, stated:
It may be conceded that there was a time period between Mr Lipke presenting to his RAP with symptomology which ultimately led to the diagnosis… Whether that was an unreasonable delay in diagnosis and treatment, may certainly be arguable.
The issue of inability to obtain appropriate clinical management was discussed in the matter of Lee v Minister of Pensions (No. 2),[1] which was referred to with agreement in the matter of Johnson v Commonwealth.[2] 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.
[1] (1948) 3 War Pensions Appeals R.
[2] [1982] HCA 54; (1982) 150 CLR 331 at [14].
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.
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.
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.
Mr Lipke claims that the treatment he received at the RAP in 1997 was inappropriate. I observe that doctors serving in the military in Australia have undergone the same training as civilian doctors. The same medical board registers them. They have access to the same specialist doctors, most of whom are civilian. The diagnostic facilities are the same as those available to civilians. The main difference between civilians and serving military personnel is that those civilians without private health insurance will usually have longer waiting times to see a specialist that will serving military personnel.
If I am wrong, and the factor does encompass the possibility of medical negligence of a nature that was not a result of the soldier being away from usual medical facilities or unable to access facilities as good as are available to Australian civilians, then my decision would not change as I do not accept there is any suggestion that Mr Lipke should have been treated differently.
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.
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.
Before spending money on what may well be unnecessary investigations, and in the process traumatising the patient, more common diagnoses such as infection should be illuminated before the doctor progresses to more aggressive and invasive procedures. Fine needle biopsies are ordered to assist with diagnosis when the doctor is considering the possibility of existence of cancer or other serious conditions. As the procedure is invasive, other investigations should be performed first. Had a civilian doctor referred the veteran for a fine needle biopsy when he first presented in May, I think it likely his management would have been regarded as inappropriate.
The doctor’s presumptive diagnosis based on the symptoms Mr Lipke reported, and his clinical examination, was supported by the ultrasound. He was not put on notice to consider other possibilities until the usual time frame for a mumps infection had lapsed. The diagnosis of sarcoma may have been made earlier had the ultrasound result not been consistent with mumps. I do not expect a civilian doctor would have managed the matter any differently.
On 30 June 1997 Mr Lipke reported feeling much better. This would have suggested to most doctors, even with the presence of enlarged lymph nodes, the diagnosis of mumps infection had been correct and was subsequently passing, resulting in an improvement in Mr Lipke’s feeling of wellbeing.
It is possible that when Mr Lipke presented on 7 August 1997 an alert doctor may have decided to send him to see a specialist for a fine need biopsy at that point. Unlike the military, which has access to visiting specialist doctors each week, civilian patients often wait one or two weeks to see a surgeon even in circumstances of this type which are relatively urgent. Had Mr Lipke been managed in a civilian environment, it is possible he would have not been seen so promptly by a specialist, and may have waited longer for a fine needle biopsy to be performed.
I recognise that I have been engaged to make an objective decision in this matter, and whilst I practiced as a general practitioner in civilian practice for 10 years, and also worked in RAPs as a visiting civilian medical practitioner for several years, I have not been engaged to give my professional opinion.
Dr Brigden has not concluded that inappropriate clinical management was due to
Mr Lipke being away from medical facilities. Rather, he implies Mr Lipke was forbidden from seeking medical advice outside the RAP, and thereby denied appropriate clinical management. There is no basis for this conclusion as it relies on an assumption that the treatment available within the military facilities in Australia is inferior to civilian facilities. Although Dr Brigden opined it is arguable that there may have been some delay in diagnosis and treatment, he has not elaborated, and it is not clear why he considers this to be the case. Even if Dr Brigden is correct and the veteran was unable to obtain appropriate clinical management due to his service, the claim fails because there was no negative long term consequence resulting from that delay, as discussed below.
Was there a material contribution to, or aggravation of the rhabdomyosarcoma?
In Repatriation Commission v Bendy[3] (“Bendy”), Davies J noted in reference to Repatriation Commission v Law[4] that it is sufficient if a veteran's war-service was one of a number of causes of a disease, providing it was a contributing cause. There must be a material contribution, which must also be of a causal nature. In the matter of Bendy, Davies J concluded that for something to be a material contribution, it must be "pertinent" or "likely to influence". The contributing factor need not be part of a "special character" or involving a special risk. Davies J also noted that “it would be wrong to consider solely factors of which it can be said that without them the disease would not have developed for that is not the test”. The issue of contributing cause should be approached in a "practical, common-sense way", Davies J concluded. In the matter of Ford v Repatriation Commission,[5] the Tribunal noted this is the appropriate application both for issues of initial contribution and aggravation.
[3] (1989) 18 ALD 144.
[4] (1980) 31 ALR 140.
[5] [2007] AATA 1109.
The High Court decision in Federal Broom Co Pty Ltd v Semlitch[6] (“Semlitch”) there was discussion surrounding the notion that a contribution does not require the contributing factor to be a "causa sine qua non" and the "but for" test is not appropriate. Windeyer J noted that the "real effective cause" or the "proximate cause" formulations are also not appropriate. All that is required is that it added measure to the creation of a condition or its aggravation or acceleration. Thus, the contributing factor must be part of a cause.
[6] [1964] HCA 34; (1964) 110 CLR 626.
The meaning of aggravation has been considered by many Tribunals and by the
Federal Court on many occasions. It is generally accepted that aggravation means ‘making worse’, or increasing the gravity and seriousness of the condition. The meaning of "aggravation" was considered by the High Court in Semlitch. Windeyer J[7] explained that a condition was aggravated if the consequences of the sufferer’s affliction have become more serious. His Honour added, at 639, that the real question was “whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.
[7] Ibid, at 637.
Relevant to this matter is the matter of Johnston,[8] the High Court said that failure to diagnose and treat cancer can lead to the worsening of the condition when compared with the course that, with timely treatment, it should have taken.
[8] [1982] HCA 54; (1982) 150 CLR 331 at [14].
In her report dated 26 November 1997 Dr Helen Juffs stated that whether the diagnosis five months earlier would have changed the prognosis would depend of whether the cancer was surgically resectable at that stage. Had the disease in May been unresectable, then the delay in diagnosis may not significantly affect his prognosis. She opined an ENT surgeon opinion was necessary as to whether or not the cancer was likely to have been resectable five months earlier.
In his report dated 27 December 1997 Professor Coman, ENT specialist opined that had the condition been diagnosed in May it would not have been resectable. He stated that he believed even at that time it was too advanced to allow surgical resection.
Oncologist, Associate Professor Thomson, in his report dated 10 March 1998, stated that it was difficult to prognosticate on whether intervention at an earlier stage would have improved the veteran’s prognosis.
On the basis of the three expert opinions sited above, Dr Brigden concluded that at the time Mr Lipke first present in May 1997 “the tumour was already Stage IV, that is, with metastatic spread, and that being the case the prognosis was not affected by the time taken to establish the diagnosis”.
I agree with Dr Brigden on this point, and make the same conclusion for the same reasons. There is no evidence therefore, that, even if there was any inability to obtain appropriate clinical management, there was any material contribution, or aggravation of the rhabdomyosarcoma, as a result. The factor in the SoP is not raised by the circumstances of this case.
CONCLUSION
I am not satisfied there is a sufficient, or casual, connection between the applicant’s rhabdomyosarcoma, and his defence service, that satisfies the legislative requirements.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member .......................[Sgd].................................................
Associate
Dated 8 October 2014
Date of hearing 19 September 2014 Advocate for the Applicant Ken Cullen, Samford RSL Solicitors for the Respondent Bruce Williams, Department of Veterans' Affairs
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