Darren Barber and Military Rehabilitation and Compensation Commission - [2014] AATA 839

[2014] AATA 839

Division Veterans' Appeals Division

File Number

2013/4306

Re

Darren Barber

APPLICANT

And

Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 7 November 2014

Place Perth
The Tribunal:

· varies the decision under review by determining that the applicant’s malignant neoplasm of the thyroid gland is a “service disease”, within the meaning of s 29(2)(b) of the Military Rehabilitation and Compensation Act 2004 (Cth), for which the respondent is liable under s 23 of that Act;

· in all other respects, affirms the decision under review.

........................[sgd]................................................
S D Hotop

Deputy President

CATCHWORDS
MILITARY COMPENSATION – applicant rendered "peacetime service" – applicant claimed for acceptance of liability for various conditions – respondent accepted liability for septicaemia but refused to accept liability for Crohn's disease, diverticular disease of the colon, nephrolithiasis, lung scarring, and malignant neoplasm of the thyroid gland – applicant's malignant neoplasm of the thyroid gland is a "service disease" for which respondent is liable – none of the other conditions is a "service injury" or a "service disease” for which respondent liable – decision under review varied
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth), s 5, s 6, s 7, s 23, s 27, s 29, s 30, s 36, s 335, s 339 and s 341

Statement of Principles concerning diverticular disease of the colon No 14 of 2008

Statement of Principles concerning inflammatory bowel disease No 20 of 2012

Statement of Principles concerning malignant neoplasm of the thyroid gland No 40 of 2014

Statement of Principles concerning renal stone disease No 66 of 2010

CASES
Comcare v Houghton (2003) 128 FCR 485

Re Eaton and Comcare (2002) 67 ALD 182
Re Glendenning and Comcare (2004) 78 ALD 723
Re Wood and Military Rehabilitation and Compensation Commission (2007) 99 ALD 406

REASONS FOR DECISION
Deputy President S D Hotop
7 November 2014
Introduction

Darren Barber (“the applicant”) has applied to the Tribunal for review of a “reviewable determination” of the Veterans’ Review Board (“VRB”), dated 29 May 2013. That reviewable determination affirmed an “original determination” of the Military Rehabilitation and Compensation Commission (“the respondent”), dated 28 March 2011, whereby the respondent refused to accept liability under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) for the following conditions:
·Crohn’s disease;
·diverticular disease of the colon;
·nephrolithiasis;
·lung scarring; and
·malignant neoplasm of the thyroid gland.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T92, pp 1–269) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1, A2 and A3 tendered by the applicant at the hearing;
·Exhibits R1, R2 and R3 tendered by the respondent at the hearing;
·the oral evidence of the applicant, Allison Barber, Professor Ian Lawrance, and Dr Nat Lenzo; and
·Exhibit R4 (comprising a letter from the respondent’s solicitors to Dr John Armstrong, dated 21 August 2014, and enclosures), and Exhibit R5 (being a report of Dr John Armstrong, dated 10 September 2014), filed and served by the respondent on 23 September 2014 pursuant to a direction of the Tribunal made at the hearing on 12 August 2014.
The Factual and Medical Background
The following factual and medical background appears from the T Documents and Exhibits and is not in dispute.
The applicant, who was born in March 1968, served in the Royal Australian Air Force (“RAAF”) from 12 March 1987 to 21 February 1991 and in the Royal Australian Navy (“RAN”) from 5 March 2007 to 16 September 2011.
The applicant did not render “warlike service” or “non-warlike service”, within the meaning of the MRC Act, and his abovementioned service with the RAAF and the RAN was “peacetime service”, within the meaning of the MRC Act.
On 3 April 2009 Dr Stephen Rofe, Gastroenterologist, performed a colonoscopy on the applicant and, in his Colonoscopy Report of 3 April 2009, which is addressed to Dr Chris Lyttle, HMAS Stirling, Dr Rofe stated the following conclusion:
“ Punctate colonic ulceration. Ileal ulceration. These findings are very suggestive of Crohn’s disease.” (T4)
A report of Dr Rofe, dated 30 April 2009, relating to the applicant, which is addressed to Dr Lyttle, states as follows:
“ This man’s pathology report and the colonoscopy establishes the diagnosis of Crohn’s disease affecting the ileum and colon. I have explained this to him today pointing out the initial treatment approach would be to taper the steroids off and give him Imuran initially in a dose of one a day increasing to two a day after two weeks and then three a day after six weeks. In due course I will start a 5ASA drug, but not just at this stage. The steroids will be able to be weaned off completely, at the present time he should stay on 10 mg a day.
I don’t believe we need to do any small gut investigation at the present time bearing in mind the results of the colonoscopy. I have asked him to return in six weeks time in review and would be grateful if he can have a full blood count done in two weeks time as well as another in four weeks time and the result forwarded to my office, this is to check on a small number of patients who develop bone marrow toxicity to the Imuran.” (Exhibit R1)
A MRI Small Bowel Study report of Dr Alar Kaard, dated 20 November 2009, relating to the applicant, concludes as follows:
“ Comment: There is a prominent loop of thickened distal ileum (10 cm in length) without evidence of fistula or extraluminal collection or evidence of significant acute inflammatory change. There is mild luminal narrowing at this site and there is no evidence of obstruction. The findings are in keeping with Crohn’s disease. There is mild mesenteric lymphadenopathy.” (T7)
On 4 December 2009 Dr Rofe wrote to Dr Martin Liston, HMAS Stirling, informing him that the applicant had commenced “Humira” treatment on that day. (Exhibit R2)
On 3 March 2010 Dr Nigel Barwood, Colorectal Surgeon, performed a laparoscopy on the applicant and, in a report of that date to Dr Rofe, he described the outcome of that surgery as follows:
“ …
Open examination of the small bowel confirmed the laparoscopic findings of a large number of small bowel strictures. …
In all ten small bowel stricturoplasties were performed. In the mid jejunum, there were three strictures very close together and hence a mini resection and end to end anastomosis with 4.0 PDS was performed. There were three indurated segments of probable Crohn’s disease and a number of very minor strictures through which the 6 ml balloon easily passed. These were not treated. The entire small bowel was insufflated with CO2 to check for further strictures and leaks. The wound was lavaged and closed routinely with 1.0 PDS and 4.0 Monocryl.
Given the extent of the small bowel disease, a central venous line was inserted by the Anaesthetist and GPN will be commenced.
…” (T11)
On 10 March 2010 Dr Barwood provided a report to Dr Rofe concerning further surgery, namely, a laparotomy, which he performed on the applicant on 5 March 2010 because of the applicant’s deteriorating condition following the surgery of 3 March 2010. In that report Dr Barwood described that further surgery and its outcome as follows:
“ …
The small bowel was moderately distended throughout its length. All of the small bowel was exteriorized and carefully examined. There was a pinhole leak at the centre of stricturoplasty No 4 (the ileum from ileo caecal valve). This was repaired with 4.0 PDS sutures and an omental patch placed. This area was deliberately placed right under the laparotomy wound in case it subsequently developed a fistula
Consideration was given to an ileostomy. However, this would prove technically exceptionally difficult given the dilated nature of the small bowel and the large thickness of Darren’s abdominal wall. There was concern that placing an ileostomy may place back pressure on the more proximal stricturoplasties as well.
The abdomen was extensively lavaged in all quadrants with six litres of normal saline. The wound was then closed with 1 PDS and staples. Intra peritoneal drains were placed on the right and left sides and a central Yaete’s drain placed in the wound.
Post operatively Darren went back to ICU. He certainly did not tolerate a relatively small amount of sepsis well. This may relate to him being on Humira fairly recently, although at the time of surgery he was well beyond the half life of Humira.
During his ICU stay he developed a wound infection despite having a wound drain in situ. Clips were removed at the umbilicus and this was explored digitally under sedation in ICU. It [sic] was able to pass a finger through the sutures into the peritoneal cavity and there did not appear to be an underlying fistula.
Likewise a CT scan did not show any intra abdominal collection or other abnormality.
Darren has since been extubed and is making some progress. There is still some infected fluid coming from his wound and hence it is possible he has an underlying fistula. I will keep you updated with his progress.” (T12)
In follow-up reports, dated 1 April 2010 (to Dr Lyttle) and 12 April 2010 (to Dr Rofe), Dr Barwood referred to his recommendation to the applicant that he “go on maintenance medical therapy to reduce the risk of his small bowel Crohn’s disease flaring up”, and to the applicant’s acceptance that he should have “Azathioprine (Imuran)” treatment and his doubts about having “Humira” treatment. (T13, T14)
On 16 April 2010 Dr Rofe reported to Dr Lyttle, HMAS Stirling, as follows:
“ Darren is recovering, as you know, from his major abdominal surgery with multiple small bowel strictures secondary to his Crohn’s.
In due course he will need to restart his medication for his Crohn’s disease to reduce the risk of recurrence. One possibility is to restart the Imuran only, the other is to give Imuran and Humira as he was taking before and the third is to enter into a trial which is currently available in Western Australia to look at the post operative recurrence issues with Crohn’s. At the present time, I don’t believe anything else needs to be done until his abdominal wound heals and I would like to see him again in four to five weeks to take this issue further.” (T15)
On 2 May 2010 the applicant was admitted to the Emergency Department, St John of God Hospital with left flank pain, diagnosed with left renal colic, and discharged with medication on 3 May 2010. (T16)
A CT Renal Tract report, dated 3 May 2010, relating to a scan performed on the applicant on 2 May 2010, concludes as follows:
“ Comment: There is a 3 x 4 x 6 mm obstructing calculus seen within the left ureter at approximately the junctions of the proximal and mid thirds. There is associated mild to moderate renal pelvic dilatation, mild calyceal distention and ureteric dilatation proximal to this. Mild perinephric stranding is seen in addition, mild overall swelling of the left kidney compatible to renal outflow obstruction.
No further renal tract calculus disease or associated complication identified.
There is no suggestion of a post operative ileus/obstruction or post surgical intraabdominal collection related to recent bowel resection.” (T17)
A report, dated 4 May 2010, regarding X-rays performed on the applicant on 18 February 2010 states as follows:
“ …
ABDOMEN (SUPINE/ERECT)
Findings: No free fluid or free gas is seen.
There are multiple dilated loops of small bowel in the mid to upper abdomen with a number of fluid levels evident on the erect view. Gas is seen throughout a normal calibre large bowel. Appearances are consistent with a mid to distal small bowel obstruction.
CHEST (ERECT)
Findings: No free gas is seen and there is no pleural effusion.
There is a 2 cm mass projected over the left mid zone, which has developed since the prior plain film series of 20/05/09. Possibility of an intrapulmonary mass/metastatic deposit needs exclusion.
…” (T18)
A Thoracic CT Scan report, dated 6 May 2010, relating to the applicant, concludes as follows:
“ Comment:
1.Left side thyroid mass with retrosternal extension. This may represent either a thyroid neoplasm or part of a multinodular goitre – further assessment with thyroid ultrasound is suggested and if it is a solitary mass then fine needle aspiration could be performed.
2.An area of scarring and nodular density within the left mid zone most likely is the result of previous infection. If required this could be followed up with a CT scan in 6 months time to ensure there has been no increase in its size.” (T19)
A report of an Ultrasound of the applicant’s neck on 11 May 2010 found a “solitary large left lower lobe thyroid nodule … measuring 46 x 42 x 37 mm …”. (T20)
A report of Dr Barwood to Dr Rofe, dated 17 May 2010, states as follows:
“ I reviewed Darren in the rooms today. He is looking very well and has no abdominal symptoms currently. His umbilical wound has virtually healed and can be managed by a simple daily dried dressing.
I discussed a number of issues with Darren today.
1.His thyroid mass. I note that he is seeing Dean Lisewski for a follicular retrosternal goitre that would probably need a thyroidectomy. I would advise you get on with this as soon as possible as he will need to go on immosupressive [sic] treatment for his Crohn’s disease in the near future.
2.Prophylactic treatment for his Crohn’s disease. We have discussed this previously . He is due to see Stephen Rofe shortly and make a final decision on this. I have explained to Darren that in my view his risk of recurrent Crohn’s disease and the need for further surgery is extremely high. Any measures that can be undertaken to reduce this risk would be worthwhile. It clearly needs middle of the range prophylactics and a good case could be made for a more intensive prophylactic medication regime eg including a biological agent. I think Darren is coming round to this suggestion more and more. I will obviously leave the final decision on this to Stephen Rofe.
3.We have discussed Darren’s surgery and the impact this may have on his role in the Navy. Darren has pretty much come to the conclusion that working in submarines is not going to be an option and is looking at alternative roles for himself in the Navy currently.
Overall I am delighted with Darren’s progress. I plan to review him in twelve months time but have asked him to come sooner if he has any problems at all.” (T23)
A report of Dr Dean Lisewski, Consultant Surgeon, to Dr Liston, HMAS Stirling, dated 24 May 2010, noted that the applicant’s left thyroid mass was “biopsied as atypical” and stated that management was “best served by hemithyroidectomy”. (T25)
Dr Lisewski performed a hemithyroidectomy on the applicant on 3 June 2010, followed by a completion thyroidectomy on 11 June 2010 (T27, T28), and, on 23 June 2010, reported to Dr Liston as follows:
“ Mr Darren BARBER, a 42 year old gentleman was seen today, 23/06/2010, in my SJOG Murdoch rooms, unaccompanied. This visit was a second post-operative consultation.
You may recall a history of a staged total thyroidectomy for 45 mm minimally capsular invasive follicular carcinoma complicated by a wound infection. I performed a washout of the wound on 17/6/10. I am pleased to report that this infection has now resolved and I have removed his sutures today. Darren will be seeing Nat Lenzo to arrange radioiodine ablation. The patient is happy with my explanations . I have discussed arrangements for further management and have undertaken to consult urgently if there is any deterioration or new changes. I have made a further appointment to see the patient within 1 year. I would be happy to see Mr Barber sooner if necessary and I will keep you informed of his progress.” (T31)
On 30 June 2010 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for acceptance of liability under the MRC Act for:
·Crohn’s disease;
·septicaemia;
·kidney stones;
·scar on lungs; and
·thyroid cancer. (T33)
On 30 June 2010 the applicant also lodged with the DVA an “Injury or Disease Details Sheet” in respect of each of the abovementioned claimed conditions (T32) in which he provided information which is summarised in the following table:

Condition

Signs and symptoms

Date 1^st noticed signs or symptoms

Date 1^st received medical treatment

Crohn’s disease

Dietary constraints, bowel blockages and strong abdominal pain. Ongoing medication

Late 2008

April 2009

Septicaemia

High fever and massive infection due to small intestine blockage during routine bowel resection

March 2010

5 March 2010

Kidney stones

Strong flank pain

Mid-April 2010

6 May 2010

Scarring of the lungs

Sign of scarring on chest x-ray.

7 May 2010

May 2010

Thyroid cancer

5 cm tumour on left thyroid lobe.

May 2010

11 May 2010

A report of a CT scan of the applicant’s abdomen/pelvis on 15 November 2010 concludes as follows:
“ Comment:
1.At the region of interest there is no concerning solid mass lesion identified. What is noted, however, is a focal area of anterior abdominal wall scarring with mild to moderate regional muscular atrophy and minor divarication with a bowel loop immediately located deep or partially adherent to the adjacent scarred region at part of the anterior abdominal wall post-surgical site. In addition, there is a loop of slightly more small bowel wall thickening further away which may represent treated residual or early recurrent Crohn’s disease.
2.The previously noted calcified left vesicoureteric junction calculus is no longer present.
3.Very mild uncomplicated sigmoid diverticular disease.” (T51)
Dr Rofe performed a further colonoscopy on the applicant on 1 February 2011 and reported to Dr Liston the following findings:
·“colonic ulceration suggestive of Crohn’s disease”; and
·“diverticula in the sigmoid colon”. (T55)
On 28 March 2011 a delegate of the respondent made a determination accepting liability under s 23 of the MRC Act for septicaemia, but refusing to accept liability under s 23 of the MRC Act for Crohn’s disease, diverticular disease of the colon, nephrolithiasis, lung scarring, and malignant neoplasm of the thyroid gland. (T65)
On 29 May 2013 the VRB affirmed the abovementioned determination of 28 March 2011. (T90)
On 27 August 2013 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 29 May 2013 (being a “reviewable determination” as defined in s 345(1) of the MRC Act).
Additional Reports by Dr Rofe and Dr Barwood
Dr Rofe provided a report, dated 29 July 2010, relating to the applicant, to Dr Liston, which states as follows:
“ Thank you for your note concerning this man. He originally presented with symptoms and signs of chronic inflammatory bowel disease, confirmed by colonoscopy 3/4/2009. In fact, he has had symptoms of abdominal pain and diarrhoea for the two years prior to this. He was treated with Prednisolone, 5ASA and Imuran which resulted in an improvement in his condition, at least as far as his diarrhoea is concerned. However, later in 2009 he developed the onset of abdominal pain for which he had an MRI study of the small bowel performed 19/11/2009. This suggested that there was a thickened distal ileum approximately 10 cm in length. No obstructive pathology was seen.
These abdominal symptoms and colicky pain continued after this, even though the Imuran and steroids were continued. His treatment was changed to Humira 40 mg every second week, which resulted in some improvement of his abdominal pain. He was assessed surgically to determine if any small bowel pathology needed to be treated by resection and this was performed in March of this year. He required a laparotomy soon after this for post operative perforation.
Since that time his situation has improved although this has been complicated by other medical conditions and specifically thyroid cancer and a renal calculus.
At the present time his renal calculus disease is under control. His thyroid has been treated by resection and the administration of radioactive iodine. I have discussed the question of restarting his TNF alpha inhibitors with Dr Nat Lenzo and we agree that it is appropriate to restart the drug and I have given Mr Barber instructions to do so. He is to start an induction regime and then go to second weekly injections as before. He is likely to remain on Humira for some considerable time, certainly for the next two years.
The longterm prognosis is that of a patient who has already had intestinal resection for Crohn’s disease. There is a reasonable chance that he will require further surgery and a good chance he will require ongoing treatment. Complications occurring in patients with Crohn’s disease, possibly the majority of patients over a period of a decade will have some complication relating to their condition [sic]. Likewise relapse is likely to be a fact of life for him in the next decade interspersed with episodes of remissions, which may well be quite considerable in time.
Unfortunately the clinical course of any one patient with Crohn’s is difficult to characterise in terms of the nature of the condition itself.” (T39)

In response to an email from Dr Susan Sharpe, HMAS Stirling, requesting answers to the following questions regarding the applicant’s “Humira” treatment:
“(1) Do you think that the Humira therapy has had a significant impact on his disease, and/or do you think he requires a longer trial period (say 12 months) to assess its efficacy?
(2)If he were to deploy to sea (in the event that his condition remains stable after a trial ashore), he would be able to give himself the Humira medications fortnightly. If he had exacerbations requiring NBM, IVT and Prednisolone (or other short term immunosuppressant), this would be able to be administered by a medical sailor. The difficulty arises with an exacerbation requiring surgery, which would involve transfer back to shore. Are you able to predict how frequently this may occur, or would it be prudent to wait for a trial period on the Humira before assessing his fitness for sea?
(3)Does Humira have any broader immunosuppressive effects other than TNF-alpha targeting? There are sometimes concerns sending sailors back to sea if they are on medications such as methotrexate which can increase their risk of cancer and infection.” (T43)
Dr Rofe reported, by letter dated 23 August 2010, as follows:
“ Thank you for your email dated 17 August with regard to the specific questions that you have asked.
1.The Humira therapy has been given on two occasions, the first being in an attempt to avoid surgery from small intestinal obstruction. On that occasion he required surgery eventually. On the second occasion more recently we restarted Humira in an effort to avoid recurrence of the small intestinal obstructive symptoms. It is too early to determine whether his most recent course of Humira will be effective in this regard, this will become obvious over the next one to two years.
2.I thank you for your description of the possibility of a flare of his condition while at sea and what treatment that would entail. There is a possibility that if a flare occurred he would require surgery. Unfortunately, it is not possible to predict how frequently this would occur and I agree with the suggestion of waiting, over a period of twelve months, to determine to what extent this is likely to be a problem. However, Crohn’s disease is a remitting condition and it is difficult, if not impossible, to give long term guarantees that no flare of the condition requiring surgery will occur.
3.Humira is a potent immunosuppressive agent. There is a risk of infection occurring with this medication and documented episodes of both common and uncommon infections have occurred with TNF alpha inhibitor therapy in Australia and the United States. To what extent this increased risk would be an issue from the point of view of sea deployment is difficult to quantify. It would seem reasonable to state there is an increased risk but if it is possible to extrapolate from patients receiving this therapy while not deployed it would seem the risk is small. The neoplastic association of TNF alpha inhibitors has received coverage in recent years. Bearing in mind the number of patients receiving this therapy not so much for Crohn’s disease but for rheumological conditions it would seen the risk of rare tumours such as hepatosplenic lymphoma to be very small [sic].
I have to acknowledge that it is difficult to be precise regarding the answer to your questions and I appreciate the thrust of your enquiry however both the nature of the condition itself and the response of this condition to TNF alpha inhibitors therapy is not predictable. Broad guidelines can be given but specific responses to specific patients are difficult to define with accuracy.
In general, I agree with your suggestion to continue with the drug for at least twelve months to allow a fuller picture or at least a more precise picture to what extent this will be an issue in the future to be defined.” (T44)
Dr Barwood provided the following report, dated 31 August 2010, to Dr Liston:
“ I reviewed Darren in the rooms today. We looked at a number of issues:
1.His extensive Crohn’s disease is currently well controlled. He has no abdominal or bowel symptoms to suggest disease recurrence at this stage. He has seen Stephen Rofe and has been started on Humira anti Crohn’s prophylaxis treatment.
2.Darren has developed an incisional hernia. This is not surprising given his size and his difficult surgery. He is keen to have this repaired as soon as possible. I have arranged a mesh repair of incisional hernia next month at St John’s Murdoch.
We did discuss the issue of his Humira. On a risk benefit basis, I think he would be better off staying on Humira throughout the peri operative period. This does increase his risk of infections somewhat, but on the other hand significant recurrence of his Crohn’s disease would represent a major problem for him.
3.I note he has been diagnosed with follicular thyroid cancer and has been treated with Thyroidectomy by Dean Lisewski and radio active Iodine ablation by Nat Lenzo.
…” (T46)
The Applicant’s Evidence
The applicant confirmed that he had given the following oral evidence at the hearing before the VRB on 14 June 2012 (as set out in the VRB’s Reasons for Decision, dated 29 May 2013 – T90, pp 250–252):
“· He was discharged from the Navy on 16 September 2011. He did not wish to leave. He had to do so because of his Crohn’s disease.
·Although he was diagnosed with Crohn’s disease in April 2009, in hindsight he thinks he probably had symptoms for one or one and a half years prior to this.
·He qualified as a submariner on 12 March 2009. The training and process for qualifying placed him under a lot of stress at work, in the period from May 2008 up until qualifying in March 2009. There was a lot of study involved and he felt a ‘lot of relief’ when he finally qualified.
·As part of his training to qualify as a submariner he had to travel on a 30 day voyage by submarine in May 2008 to Hawaii. He recalls having a bout of symptoms (including extreme constipation) in Hawaii. In hindsight they were symptoms of Crohn’s disease but at the time he did not realise that was the cause.
·After that voyage his training involved being stationed on a submarine, HMAS Collins, in dry dock up until March 2009. In the last three to four months of that period he was tested on his knowledge, to enable him to become qualified as a submariner. The testing was comprised of ‘walk-throughs’, to get components in a task book signed off. There were three main walk-throughs, each lasting about three hours. The walk-throughs involved being questioned about all aspects of the submarine while walking throughout the submarine with an examiner. In addition to the walk-throughs, he had to undergo a final Board hearing.
·After qualifying as a submariner he was posted to HMAS Farncomb. His posting was supposed to be for three years but within a week he became ill.
·He was diagnosed with Crohn’s disease in early April 2009. As a result he could not continue on submarines so was placed in a position at the submariners’ training school.
·He commenced being treated by Dr Rofe, Gastroenterologist and Hepatologist, in Perth and commenced taking Humira as treatment for his Crohn’s disease.
·After his initial diagnosis he continued to be very unwell with Crohn’s disease and accordingly a decision was made that he undergo surgery. Dr Barwood, Colorectal Surgeon, performed that surgery on 3 March 2010. However, following the surgery a pinhole leak was located and he underwent further surgery to repair the leak. He ended up with septicaemia. He was in a coma and it was thought he could die. He remained in hospital for four weeks.
·He continued to be treated by Dr Rofe after the surgery but eventually became dissatisfied with that treatment. He was in a period again where he was particularly unwell and sought a second opinion, from Dr Ian Lawrance who immediately formed the view the claimant had an infection. Dr Lawrance prescribed antibiotics and the symptoms resolved. Dr Lawrance also recommended he cease taking Humira and accordingly he ceased taking that in about February 2011.
·He continued under the care of Dr Lawrance after this, until he was discharged and relocated to Brisbane in September 2011. In Brisbane he commenced seeing a specialist at the Mater Hospital but later changed to seeing Dr Graham Radford-Smith, Gastroenterologist, at the Royal Brisbane and Women’s Hospital (RBWH), due to the proximity to his home.
·He continues to have ongoing episodes related to his Crohn’s disease.
·His thyroid cancer is being continually monitored. In fact, he only left hospital the day prior to the hearing and has been advised that a further lump has been identified and it requires investigation. His treating oncologist is Dr Roger Allison at the RBWH. He also has a treating general surgeon, Dr David Chalk, at RBWH.
·In hindsight he is now unhappy with the treatment he received from Dr Rofe. He considers Dr Rofe did not provide an adequate level of care and attention. He also considers that Dr Rofe’s decision to recommend surgery was wrong as surgery was not warranted at that time.
·He is also unhappy with the care provided by Dr Barwood because Dr Barwood caused the pinhole leak which led to septicaemia. Also, Dr Barwood should have been and was not aware that the claimant had only just ceased taking Humira at the time surgery was performed. The fact that he had only recently ceased taking Humira hindered his ability to recover from the infection caused by the pinhole leak.
·The treatment for his Crohn’s disease, including the treatment by Dr Rofe and the surgery by Dr Barwood, was all provided by the Navy.
·He cannot recall ever having pneumonia.”
In his oral evidence the applicant sought to qualify the abovementioned evidence he had given to the VRB regarding the timing of his being diagnosed with Crohn’s disease. He said that in April 2009 he had not been “officially” diagnosed with Crohn’s disease – rather, it was “suspected” that he had Crohn’s disease at that time; a “definitive” diagnosis of Crohn’s disease had not yet then been made. He added that he was uncertain as to the time when he was diagnosed with Crohn’s disease.
The applicant said that, when he joined the RAN in 2007, he was “healthy and fit” but that, four years later, he was “medically discharged as unwell”.
The applicant said that, in his opinion, while in the RAN, he “was not medically managed to the standards that a normal person would expect” – on occasions he was treated by some doctors on the Base who said that they had never dealt with Crohn’s disease before or at least a person whose condition was as serious as his – it was “like a guessing game” with his health.
The applicant said that, in early March 2010, he was subjected to bowel surgery on the basis of a “suspected” diagnosis of Crohn’s disease when such surgery should have been “the absolute last resort” following a “definitive” diagnosis of Crohn’s disease and all pharmaceutical investigations having been completed. He said that, as a result of that surgery, his condition has been aggravated to the point where he has now had multiple surgeries and lost nearly all of his small bowel. He said that, had his condition been properly investigated in 2009–2010 and he been given the best available pharmaceutical medication, instead of surgery, he would not be in his present bowel condition which is irreversible.
In cross-examination the applicant said that he first became aware that he had a lump in his neck when it was brought to his attention in April 2010 following x-rays.
The Evidence of Allison Barber
Allison Barber, the applicant’s wife, gave brief oral evidence in which she referred, in relation to the applicant’s claim for lung scarring, to a series of chest x-rays which were performed on the applicant in the period from 4 March 2010 to 13 March 2010 while he was hospitalised and in a coma. Reports of these x-rays were tendered in evidence (part of Exhibit A1 – see paragraph 39 below).
Documentary Material Tendered by the Applicant
The applicant tendered in evidence (Exhibit A1) a bundle of radiological reports, namely:
·report, dated 4 march 2010, of a chest x-ray at 5.30 pm on 3 March 2010;
·report, dated 6 March 2010, of a chest x-ray on 5 March 2010;
·report, dated 6 March 2010, of a chest x-ray at 8.00 am on 6 March 2010;
·report, dated 8 March 2010, of a chest x-ray at 7.30 am on 8 March 2010;
·report, dated 10 March 2010, of a CT of abdomen and pelvis at 1.30 pm on 10 March 2010;
·report, dated 12 March 2010, of a chest x-ray on 12 March 2010;
·report, dated 12 March 2010, of a chest x-ray at 12.30 pm on 12 March 2010;
·report, dated 13 March 2010, of a chest x-ray at 8.30 am on 13 March 2010;
·report, dated 11 May 2010, of an ultrasound of the neck on 11 May 2010; and
·report, dated 13 May 2010, of an ultrasound guided fine needle aspiration left thyroid nodule on 13 May 2010.
[The Tribunal notes that each of the eight abovementioned reports in March 2010 was addressed to Dr Barwood, and that the two abovementioned reports in May 2010 (which are in the T Documents – see T20 and T22) were addressed to Dr Liston, HMAS Stirling.]
The applicant also tendered in evidence two recent letters of Dr Barwood, one dated 12 May 2014, the other dated 1 August 2014. Dr Barwood's letter of 12 May 2014, which is addressed “To Whom It May Concern”, states as follows:
“ Mr Barber is a current patient of mine who was referred to me in February 2010 with chronic Crohn’s Disease. At that stage Mr Barber was a serving member in the Australian Defence Force (ADF). Since his ‘Medical Discharge’ from the Royal Australian Navy in September 2011 Darren has been unable to work.
I have performed a number of complex abdominal procedures on Mr Barber which include an open small bowel resection and incisional herniae repair.
Earlier this year Mr Barber had a complicated would [sic] infection post hernia repair and a further procedure following that. Mr Barber is now under the care of a microbiologist and receiving daily nursing with IV antibiotics for a severe infection. (Golden Staph, Pseudomonas)
Mr Barber has endured a significant amount of surgery and pain management over the fast [sic] four years which has impacted on his ability to move as freely as he once did.
…” (Exhibit A2)
Dr Barwood’s letter of 1 August 2014, which is also addressed “To Whom It May Concern”, states as follows:
“ Darren has been a patient of mine since 2010. I met him with abdominal pain in 2010. He had a 12 month history at that stage but no definite diagnosis. Despite a number of investigations including colonoscopies and MRI scans the diagnosis did not become clear until he had a laparoscopy on 3 March 2010.
This very much to everyone’s surprise showed very extensive small bowel Crohn’s disease with a number of strictures which required very extensive surgical treatment.
Since then Darren has required a number of further operations both for his Crohn’s disease and also subsequent herniae.
As the diagnosis of Crohn’s disease was not apparent until 2010, it would seem unlikely he would have had any knowledge of this up until that point. Up until then he had undiagnosed abdominal pain and had presented to hospital a number of times without a specific diagnosis.
Hence despite the delay in diagnosis, I think Darren genuinely has developed his Crohn’s disease during his time in the Navy and has not done anything untoward to present the facts otherwise. I would be very grateful if you could assist him with his ongoing medical care.” (Exhibit A3)
The Evidence of the Medical Witnesses
Professor Ian Lawrance
Professor Lawrance, Gastroenterologist, confirmed that he has been treating the applicant in relation to his Crohn’s disease since February 2011, except for a period of nine months from late 2011 when the applicant resided in Brisbane. Professor Lawrance also confirmed that he had provided letters dated 21 February 2011 (T57), 4 April 2011, 16 May 2011 (T75) and 25 July 2011 (T79) to Dr Whittle [sic], HMAS Stirling regarding the applicant’s progress. He also confirmed that a report, dated 18 January 2013, regarding the applicant’s treatment in the Gastroenterology Clinic at Fremantle Hospital from August 2012 to January 2013, had been provided to the respondent by Dr Oldham on behalf of the Director, Clinical Services, Fremantle Hospital (T85).
Professor Lawrance’s first letter, dated 21 February 2011, states as follows:
“ Thank you for referring along Darren for a second opinion. He was diagnosed with Crohn’s disease with loose bowel motions, PR bleeding and abdominal cramping in April of 2009. He supposedly had a small bowel MRI which showed some mid small bowel inflammation and he went to surgery under Mr Nigel Barwood who found 11 small bowel strictures and did a small resection of the mid jejunum. This was then closed with an end to end anastomosis but unfortunately he had a complicated disease course requiring Intensive Care therapy. He was put onto Humira and was weaned off his Imuran. Unfortunately he has now been going to the toilet frequently, 10 times a day and has had a subacute bowel obstruction requiring hospitalisation in Murdoch Hospital. He was put on IV Hydrocortisone for this and has just come out today and is on Prednisone 50 mg a day. He had a follicular thyroid cancer removed in 2010 and he is on Thyroxine for that. This makes things rather difficult as we are trying to use immunosuppressing medication in the context of a recent resection for cancer.
He is an ex smoker having smoked from 1987 to 1994, 40 cigarettes a day. He is allergic to elastoplast and as far as he knows there is no family history of inflammatory bowel disease. He has two siblings and four children, all of whom are well. He was born in Australia of Australian parents and is of Caucasian origin. In the past he has had an operation for an undescended testis, he has had the mid jejunal resection and the thyroid cancer removed.
This is a rather difficult problem and I think we do need an MRI small bowel enteroclysis to see if there is active inflammation of the small bowel and see whether or not there is any holdup. I am going to give him a course of Metronidazole and Ciprofloxacin 1 tablet twice a day for ten days to treat any bacterial overgrowth which could be causing diarrhoea. His bowel motions have settled down somewhat on the IV Hydrocortisone, he is going to continue on the 50 mg of the Prednisone a day. He does not feel that the Humira is working and he has just had a colonoscopy by Stephen Rofe which showed active inflammation of the large bowel and this was despite having the Humira.
We need to determine the level of inflammation, the location of the inflammation and then work out the best option for treatment. The Imuran in combination with an anti-TNF alpha can be very effective. Imuran by itself is also very effective but at this stage there is still active inflammation on this medication and we need to see whether there is holdup in strictures that may need to be dilated by enteroscopy. I need more information and we will see what the MRI shows and see whether or not he improves with the antibiotic therapy and whether or not the anti-inflammatory Prednisone medication is keeping his bowels under control. Certainly the fact he has had surgery in the past, which was complicated, could in itself be part and parcel why he is getting the subacute bowel obstruction and it is not due to active small bowel inflammation. He will keep us informed about how he is going through Jill Philpott, my IBD Nurse Coordinator and we will get other things organised.”

Dr Oldham’s report of 18 January 2013 states as follows:
“ Your correspondence dated 6 September 2012, addressed to Professor Lawrance and requesting a medical report on the abovenamed, has been referred to me. Please note that future correspondence should be directed to the Executive Director, Medical Services, and not to individual medical officers.
Mr Barber has requested reconsideration by the Veterans’ Review Board of a decision which disallowed liability for his compensation claim for ‘Crohn’s disease and Diverticular disease of the Colon’ conditions. The Board understands the patient suffers Crohn’s disease and diverticulosis.
In relation to the following questions, I was advised by the Inflammatory Bowel Disease Unit Manger on 10 December 2012 as follows;
1.Is this diagnosis correct? Yes.
1a.If so, can you advise whether he suffers any other conditions relevant to your area of expertise: Multiple small bowel strictures.
2.For each diagnosis, when was the clinical onset of each condition? (This is when, more likely than not, there were sufficient signs or symptoms to enable a medical practitioner to diagnose the condition). Crohn’s Disease April 2009.
Professor Lawrance saw Mr Barber in Clinic on 1 August 2012, prior to which the patient had resided for 9 months in Brisbane. Professor Lawrance noted on that date that Mr Barber had multiple SB strictures (13) and PR bleeding, but a recent colonoscopy had shown there was no active colonic Crohn’s disease and most likely the bleeding was due to haemorrhoids. MRI small bowel enteroclysis was to be arranged.
MRI Small Bowel Enteroclysis was performed on 6 September 2012. There were multiple areas of distal small bowel narrowing. Those did not result in overt hold-up, although there was contrast enhancement suggesting some active inflammation.
Mr Barber was admitted to Fremantle Hospital on 17 September 2012 with small bowel obstruction. On 22 September 2012 he underwent a laparotomy with division of adhesions and small bowel resection with 7 x small bowel stricturoplasties. On-table enteroscopy showed at least eight significant strictures that would not allow a passage of a Foley catheter for balloon dilatation. There was evidence of mild ulceration throughout the small bowel but no deep fistulas. Mr Barber was left with 2.5 metres of small bowel in situ. He was discharged on 29 September 2012.
Mr Barber presented with a small wound infection on 30 September 2012 and was admitted to Fremantle Hospital from 1 to 5 October 2012.
By review on 24 October 2012 he was passing diarrhoea approximately five times per day but no blood.
At Surgical A Clinic review on 5 November 2012 our Colorectal Surgeon noted that Mr Barber needed aggressive medical prophylaxis, as his risk of further disease was very high.
By Gastroenterology Clinic review on 28 November 2012 Mr Barber was still having significant bowel symptoms, waking two to three times at night to open his bowel. He was experiencing crampy abdominal pains which he said was his typical Crohn’s pain. He was also feeling very tired and sleeping most of the day. It was hard to distinguish the symptoms he got from his abdominal strictures/2.5 metres of small bowel and his active Crohn’s. However, the treating doctor had no doubt that the patient had active disease off his Infliximab and arranged for him to have a re-induction of Infliximab together with an iron infusion. His 6-MMP and 6-TGN levels were also done. Mr Barber was asked to contact our Inflammatory Bowel Diseases nurses if he had further worsening of his symptoms. He was to be reviewed again after re-induction.
Mr Barber attended for Infliximab infusions on 6 and 20 December 2012 and 17 January 2013.
Mr Barber is scheduled for review in the Gastroenterology IBD Clinic on 23 January 2013 with regular follow up to be provided. …
…”
In response to questions from the applicant, Professor Lawrance said that he was unable to comment on the applicant’s treatment in the period before he first saw him. As regards the appropriateness of surgery or pharmaceutical medications for treating Crohn’s disease, Professor Lawrance said that it depends on how severe the bowel inflammation symptoms and blockages are. He said that his preference it to try to control symptoms medically as much as possible without surgery. He commented generally that practitioners in England are “far more surgically oriented” as compared with practitioners in Australia who are “more medically oriented” and tend to manage medically more aggressively so as to avoid surgery if possible.
Dr Nat Lenzo
Dr Lenzo, Consultant Physician, confirmed that he has treated the applicant from June 2010. Dr Lenzo’s first report, dated 28 June 2010, which is addressed to Mr Lisewski, states as follows:
“ Thank you for asking me to see Darren who is a 42 year old gentleman who works for the Navy in submarine training. He is married with four children, the youngest is 14 years of age. He does have a 21 year [sic] daughter at home who is currently pregnant. He is an ex-smoker, smoked for 20 years and ceased in 2007. He drinks occasional alcohol. He has a significant past history of Crohn’s disease and interestingly he has been on the drug Humira (anti-TNF) for Crohn’s disease and has had some complications with sepsis related to the use of this immunosuppressant type therapy. He had a bowel resection in March 2010 and was unwell this year following this. I note his more recent diagnosis of thyroid cancer for which you performed a staged total thyroidectomy in early June 2010. He had a large 4.5 cm tumour which was minimally capsular invasive but with no angioinvasio and no extra thyroidal extension. Apart from the Crohn’s disease he previously had renal colic. He has had a colonoscopy in April 2009. There is a history of kidney cancer in his father.
He is currently on 150 mcg Thyroxine. He is not back on his Humira. He is on Caltrate. He has had courses of steroids in the past for his Crohn’s disease. He is unaware of his bone density.
I have discussed with Darren and his wife the reason for providing ablation. He is in the intermediate risk category of MACIS criteria. His use of Humira is of interest as there has been a reported increase in incidences of thyroid cancer with the use of these type [sic] of medications. He is unaware how long, however, he had the lump in the neck and is likely he has had this lesion for a period of time. Whether there was a more prominent growth following Humira will be always be [sic] unknown. He is keen to go back onto the Humira as he has had such a good response from the Crohn’s disease point of view. I have informed him that we will need to monitor him closely if that is the case. I have decided to treat him with 4.0GBq of I-131 for radioactive iodine ablation. As he works in submarine instruction and it is difficult for him not to be at peak performance, it is probably best if we treat him using Thyrogen stimulation rather than taking him off his Thyroxine. I have discussed the radiation safety aspects of the therapy particularly as he has a pregnant daughter at home. I have also discussed potential side effects. If he is to go back onto Humira I will likely monitor him more closely with estimates of thyroglobulin and neck ultrasound. I have discussed with him the logistics of treatment including low iodine diet and coming into Fremantle Hospital for a few days. He is happy with this and in fact was well versed with what was required as he has done a lot of reading with respect to thyroid cancer in the last few weeks. I have also given him further literature to review.
I have not changed his current medications but will see what his thyroid function is like when he leaves hospital. I have informed him that we usually run patients on excess Thyroxine to try and minimise the level of TSH in the blood. As he has had steroids in the past and will be biochemically hyperthyroid for a period of time I have decided to perform a baseline bone density study to ensure he does not need any stronger prophylactic therapy for bone health.
…” (T35)
Dr Lenzo subsequently provided progress reports regarding his treatment of the applicant to Dr Liston/Dr Lyttle at HMAS Stirling (see T47, T48, T52, T54, T58).
In December 2012 Dr Lenzo provided the following (undated) report to the respondent:
“ Thank you for your request for information and request for report dated 7 September 2012. For your records I am a Specialist in Internal Medicine and Nuclear Medicine and I have been managing patients with thyroid cancer since I completed my Australian post graduate training in 2000. I also have fellowship training in treatment of thyroid cancer through the University of Michigan.
With request [sic] to your questions:
1.When was the likely onset of Mr Barber’s thyroid gland cancer?
Mr Barber presented to me on 28 June 2010 following his surgery for follicular thyroid cancer. He gave a history of noticing a lump in his neck for about 12 months prior to presentation. He had had problems with Crohn’s disease which required hospital admission. In the months prior to his thyroid gland surgery he had noted a sudden increase in size of the neck lump. He was reviewed by my colleague, Endocrine Surgeon, Mr Dean Lisewski, who performed a left hemithyroidectomy on 3 June 2010. This revealed a minimally invasive 4.5 cm follicular carcinoma. He underwent completion thyroidectomy on 11 June 2010. The remnant specimen was unremarkable. He unfortunately suffered a postoperative infection of the neck and required a washout of his infected neck wound on 17 June 2010. The tumour did reveal minimal capsular invasive but no angio-invasion and no extrathyroidal extension. There does not appear to have been any nodal spread in the pathology specimen from the notes that I have.
Thyroid cancer is usually a slow growing tumour and is often present for a number of years prior to diagnosis. Follicular thyroid cancer grows slightly more quickly than some of the other thyroid cancer variants such as papillary thyroid cancer. I note he had a rapid growth of the tumour which may have been related to some of the treatment he was on at the time. It is difficult to know exactly when the thyroid cancer first began but it would likely be several years before the actual diagnosis was made.
2.Is it more likely than not that Mr Barber suffered thyroid gland cancer as a consequence of using Humira?
There are a number of reports in the literature indicating that some of the new treatments with TNF inhibitors such as Humira may cause or increase the progression of tumours. The tumours described include lymphoma, thyroid cancer, gastrointestinal tract tumours, skin cancers and other solid tumours. A recent metanalysis, however, looking at patients with rheumatoid arthritis having biologic therapy did not reveal any statistically significant risk. A number of case reports have, however, described the onset of tumours which [sic] anti-TNF therapy. Whether Humira caused Mr Barber’s cancer is difficult to know definitively. It appears that he was started on treatment with Humira by Dr Stephen Rofe, Gastroenterologist, sometime between 2009–2010. A more likely situation is that the Humira may have sped up the growth of already underlying small thyroid cancer and I imagine the thyroid cancer would have been present prior to 2010.
3.Is it more likely than not that his thyroid cancer was made permanently worse than it otherwise would have been, because of his use of Humira?
Once again whether the Humira alters the pathogenicity of tumours is difficult to accurately determine. There is no definite evidence to suggest that the underlying tumour pathology is altered by Humira but rather the normal immune mechanisms that keep infections and tumours under control are diminished with the use of anti-TNF treatment such as Humira. In the setting of an immune compromise state it is well known that tumours can progress more rapidly and have worsened prognosis.
4.What was the likelihood of Mr Barber contracting thyroid gland cancer, or of his cancer being made permanently worse, as a result of using Humira?
As mentioned in Sections 2 and 3 in my opinion it is unlikely that the Humira caused the actual thyroid cancer though as I have mentioned this is almost impossible to definitively determine. The more likely scenario is that the Humira helped in the progression of the tumour. The fact that the tumour grew to such a large size in a short period of time would be something that could be seen in an immune compromised patient. Whether the long term prognosis would be altered is unknown. In other similar cases it appeared that the cessation of the immuno-compromising drug returns a patient back to their usual pre-morbid state. There are a number of cases where cessation of these drugs have caused regression of certain tumours.
Whether his long term prognosis was worsened by the Humira is in many ways also too early to tell. If he goes back onto similar type medications there is a possibility that if he has a remnant disease not successfully treated with surgery and radioactive iodine therapy this could again flare up. At present there is no indication on blood testing that he has remnant disease, however, I am currently closely following up some abnormal tissue in the neck to see whether this is just solely scar tissue post his surgery and somewhat stormy postoperative course.
…” (T84)
In his oral evidence Dr Lenzo noted that there was a temporal relationship between the applicant’s being treated with Humira from December 2009 to February 2010 and the rapid acceleration in the progression of his existing thyroid tumour in that period. He opined that it was likely that the applicant’s treatment with Humira, an immuno-suppressant medication, in the period from December 2009 to February 2010 caused his existing thyroid tumour to progress more rapidly in that period.
Additional Medical Evidence Provided by the Respondent
After the hearing in this proceeding, the respondent, in accordance with a direction made by the Tribunal at the hearing, filed and served a report of Dr John Armstrong, Consultant Respiratory and Sleep Physician, dated 10 September 2014, in relation to the applicant’s claim for “lung scarring”. The parties were given leave to file and serve written submissions regarding that report and the applicant’s claim for “lung scarring”. The respondent did so but the applicant did not.
Dr Armstrong’s report, which is addressed to the respondent’s solicitors, states as follows:
“ I am in receipt of your letter of 21 August 2014 requesting my opinion regarding the possibility of lung scarring in relation to Darren Barber.
I acknowledge receipt of two letters from Dr Nigel Barwood, colorectal surgeon, detailing operative and perioperative details covering the period 3^rd to 5^th March 2010. I acknowledge receipt of reports on chest x-rays and chest CT scans covering the period from 28 May 2009 to 4^th August 2011.
…
This report is made on the basis of the clinical information provided by Dr Barwood and on the chest x-ray and chest CT scan reports provided. I have not been able to review the radiological imaging directly and therefore there may be some limitation to my interpretation of the radiological abnormalities in the clinical context of this case.
Clinical Background
It is stated that Mr Barber has the following conditions: Crohn’s disease, nephrolithiasis, diverticular disease and malignant neoplasm of the thyroid gland. It is also claimed that he has lung scarring arising from complications of abdominal surgery for Crohn’s disease.
The letter from Dr Nigel Barwood, colorectal surgeon, describes extensive surgery on 3^rd March 2010 resulting in partial resection of a portion of small bowel and the performance of 10 small stricturoplasties. A further letter from Dr Barwood describes clinical deterioration within two days of surgery with the development of a small bowel leak, declining renal function and sepsis. The leak was repaired however Mr Barber subsequently developed a wound infection. He was managed postoperatively in the Intensive Care Unit.
Reports of Chest x-rays and chest CT Scans between 28 May 2009 and 4 August 2011
1.Preoperative Imaging
A chest x-ray was performed on 18^th February 2010 approximately two weeks before surgery and reports a 2 cm mass in the left mid-zone. This chest x-ray was not reported until 4^th May 2010. There is reference in this report to a previous chest x-ray of 28^th May 2009, which indicates that this mass was not present on that earlier chest x-ray.
2.Postoperative Imaging
A series of chest x-rays were taken in the perioperative period between 2^nd March 2010 and 12^th March 2010. I have reviewed the reports relating to these images. The first chest x-ray on 3^rd March 2010 reports mild pulmonary vascular congestion. A chest x-ray taken on 5^th March 2010, following the second laparotomy, reports left basal atelectasis and elevation of the left hemidiaphragm. The left basal atelectasis is again reported on a chest x-ray taken on 6^th March 2010. A further chest x-ray on 8^th March 2010 reports a small left pleural effusion. These findings are confirmed in a CT scan performed on 10^th March 2010 where bibasal atelectasis and small bilateral pleural effusions are reported. This was an abdominal CT scan which also provided some imaging of the bases of the lungs. All the abnormalities referred to in these chest x-rays and the chest CT scan have resolved on a chest x-ray performed on 12^th March 2010, one week after surgery.
3.Follow-up Imaging
A chest CT scan performed on 6^th May 2010, two months after surgery, reports scarring and a nodular density in the left mid-zone. A subsequent chest CT scan on 28^th April 2011, approximately 12 months later, reports band-like atelectasis in the left upper lobe. A chest CT scan on 4^th August 2011, which is the most recent available to me, does not report the area of atelectasis or scarring or scarring elsewhere in the lung fields. This would indicate that the abnormality in question has resolved.
Summary of Radiological Findings
1.A left sided abnormality is reported as a 2 cm mass initially in a preoperative chest x-ray however there is no comment of any left sided abnormality until a CT scan performed two months postoperatively reports a nodular density in the left mid-zone. A further chest CT scan, 12 months later, reports band-like atelectasis in the left upper lobe but this has subsequently resolved on a further chest CT scan performed four months later.
It is likely that the abnormality reported on each of the above investigations is the same lesion but without the ability to directly view the imaging this remains speculative. However as the latest CT scan does not demonstrate this abnormality it is unlikely to be due to significant scarring.
2.Bibasal atelectasis, pleural effusions and pulmonary vascular redistribution are reported on chest x-rays and an abdominal CT scan (with imaging of the lung bases) in the perioperative period. These findings are all consistent with postoperative changes secondary to abdominal surgery and subsequent sepsis. They result from pulmonary vascular leakage and changes resulting from positive pressure ventilation in the Intensive Care Unit.
3.Pulmonary nodularity is noted in CT chest scan reports. Several small pulmonary nodules are noted on the chest CT scan of April and August 2011. These nodules have been stable between the two series of imaging. They are likely to be pulmonary granulomas and have no relationship to Crohn’s disease, the abdominal surgery performed or the complications of surgery experienced.
On at least two chest x-ray reports the endotracheal tube was noted to be close to the right main bronchus but was never reported to be placed in the right main bronchus. Had the endotracheal tube been placed inadvertently in the right main bronchus it may have resulted in atelectasis in areas of the right lung. It is noted that the areas of atelectasis are in fact in the left lung. I did not consider this finding to be an issue in this claim.
A left sided thyroid mass was reported on a chest CT scan of 6^th May 2010. Presumably this was a thyroid carcinoma and was an incidental finding and is not an issue in this claim.
Summary
In summary, this man underwent major abdominal surgery complicated by bowel leakage, sepsis and some renal impairment resulting an [sic] Intensive Care Unit admission requiring ventilatory support. I note that Mr Barber had been taking Humira (adalimumab), a TNF inhibitor, referred to in Dr Barwood’s letter, which would have resulted in some degree of immunosuppression further predisposing him to sepsis and pulmonary infection. The radiological abnormalities described in the imaging reports are entirely consistent with those seen in patients following major abdominal surgery.
There is no evidence of permanent pulmonary scarring however the nature of the left sided abnormality noted preoperatively is unclear. The left sided abnormalities reported in the perioperative period are most likely due to infection and/or atelectasis. The pulmonary nodularity reported is an incidental finding and unrelated to the primary condition of Crohn’s disease or the complications of abdominal surgery in the postoperative period.
Schedule of Questions
In answer to your specific questions:
I do not believe that Mr Barber has radiological evidence of lung scarring. I have reviewed the radiological imaging reports which cover the perioperative period and a follow-up period as detailed above. This opinion is made without access to the hard copy of electronic copies of the imaging performed.
…” (Exhibit R5)

The reports of CT scans of the applicant’s chest in 2011, which are referred to in Dr Armstrong’s abovementioned report, are included in the T Documents and are set out below.
A report of a CT scan of the applicant’s chest, which was performed on 28 April 2011, states as follows:
“ …
CT CHEST
Clinical Details: History of scarring/nodular density in the left mid zone close to the pleural surface (refer report dated 6 May 2010). History of follicular thyroid carcinoma and Crohn’s disease.
Findings:
The trachea and main bronchi are patent. There is no mediastinal adenopathy nor evidence of a pericardial or pleural effusion.
There is no alveolar consolidation, pulmonary collapse nor evidence of a discrete intrapulmonary mass.
Peripheral subpleural nodularity (3.5 mm diameter) noted in the subpleural lateral lingula (correlating to the finding seen on CT dated 6 May 2010). There is no appreciable increase in size of the subpleural nodule when compared to prior imaging. Small 2.5 mm diameter pulmonary nodule noted in the anterior right upper lobe (not mentioned on prior imaging) and calcified 2.5 mm diameter nodule is seen in the posterobasal segment of the right lower lobe (consistent with a calcified pulmonary granuloma).
Linear smooth band-like atelectasis appreciated in the left upper lobe (likely to represent post-inflammatory atelectasis/pleuroparenchymal scarring).
The latter not well appreciated on the prior imaging included. There is no interval intrapulmonary mass nor CT evidence of definitive pulmonary metastatic disease.
Infradiaphragmatically the liver and spleen are homogenous and the adrenals are normal in size and shape.
Comment:
1.Subpleural peripheral nodularity in the lateral lingula is essentially stable when compared to prior imaging included.
2.Note made of a small 2.5 mm diameter pulmonary nodule in the anterior right upper lobe (not mentioned on prior imaging), and calcified 2.5 diameter nodule in the posterobasal segment of the right lower lobe (reflecting a pulmonary granuloma).
...” (T73)
A report of a CT scan of the applicant’s head and chest, which was performed on 4 August 2011, relevantly states as follows:
“ …
CT SCAN OF HEAD AND CHEST
Clinical Details: Previous thyroid carcinoma. Headache/nystagmus/nausea. Follow-up of pulmonary nodules.
Technique: Contrast-enhanced multislice imaging with axial, sagittal and coronal reconstructions.
Findings: …
…
CT Chest: Normal enhancement of the mediastinal vascular structures. No chest adenopathy.
Unchanged configuration of 4 mm nodule lying anterolaterally within the lingula (subpleural position).
Stable appearance of the right anterolateral 2.5 mm nodule within the right upper lobe.
Stable appearance of the tiny granuloma at the extreme right base posteromedially.
No new parenchymal lesions.
No confluent pathology.
Clear pleural spaces.
Beneath the diaphragms, no active pathology is identified.
Comment:
1.…
2.Stable appearances of bilateral tiny pulmonary nodules (left anterolateral lingula, 4 mm; right upper lobe anterolateral 2.5 mm; right base posteromedial tiny granuloma).
Further follow-up at 12 months would be recommended as a precaution.
…” (T80)
The Relevant Legislation
The MRC Act
The MRC Act relevantly provides as follows:
“ 5     Definitions
(1)     In this Act:
…
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.
…
service disease has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note:A reference to a service disease being contracted includes a reference to a disease being aggravated by defence service (see section 7).
service injury has the meaning given by section 27, subsections 29(1) and (2) and section 30.
Note:A reference to a service injury being sustained includes a reference to an injury being aggravated by defence service (see section 7).
…
service injury or disease means a service injury or a service disease.
…”
“      6 Kinds of service to which this Act applies
(1)   In this Act:
(a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and
(b)non‑warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non‑warlike service for the purposes of this Act; and
(c)peacetime service means any other service with the Defence Force; and
(d)defence service means warlike service, non‑warlike service or peacetime service.
…”
“7     Reference to service injury sustained or service disease contracted includes reference to aggravation etc
To avoid doubt, a reference to a service injury being sustained, or a service disease being contracted, at a particular time includes a reference to an injury or disease that is aggravated, or materially contributed to, by defence service at such a time.”
“      23         Commission’s acceptance of liability for service injuries and diseases
When Commission must accept liability for service injuries and diseases
(1) The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 27; and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:
(a)claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b)all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c)all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
When Commission must accept liability for service injuries and diseases arising from Commonwealth treatment
(2)                 The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 29 (arising from treatment provided by the Commonwealth); and
(b)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note:The standard of proof mentioned in subsection 335(3) applies to all claims:
(a)that an injury or disease is a service injury or disease under section 29; and
(b)when determining whether a person sustained a particular injury or contracted a particular disease.
When Commission must accept liability for service injuries and diseases arising from aggravations of signs and symptoms
(3)        The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:
(a)the person’s injury or disease is a service injury or disease under section 30 (aggravations etc of signs and symptoms); and
(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and
(c)a claim for acceptance of liability for the injury or disease has been made under section 319.
Note 1:The standard of proof mentioned in subsections 335(1) and (2) applies to claims that the injury or disease is a service injury or disease that relates to warlike or non‑warlike service.
Note 2:The standard of proof mentioned in subsection 335(3) applies to the following:
(a)claims that an injury or disease is a service injury or disease that relates to peacetime service; and
(b)all claims when determining whether a sign or symptom was aggravated etc; and
(c)all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Acceptance of liability for aggravations etc of injuries and diseases
(4)        A reference in this section to acceptance of liability for an injury or disease is taken to include a reference to acceptance of liability for an aggravation of an injury or disease.
Note:   The definitions of injury and disease exclude aggravations (see section 5).”
“ 27     Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)   the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)   was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence 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 rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note:This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i)   to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.”
“29     Definitions of service injury, service disease and service death arising from treatment provided by the Commonwealth
Liability for injuries and diseases caused by treatment
(1)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a)   all of the following apply:
(i)the person receives treatment for an earlier service injury or service disease;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease; or
(b)   the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and as an unintended consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease.
Liability for injuries and diseases aggravated by treatment
(2)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) all of the following apply:
(i)the person receives treatment for an earlier service injury or service disease;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment; or
(b) the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and, as an unintended consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment.
…”
“30     Definitions of service injury and service disease for aggravations etc of signs and symptoms
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:
(a) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
(b)in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.”
“ 36     Exclusion relating to use of tobacco products
The Commission must not accept liability for:
(a)an injury sustained, or a disease contracted, by a person, or the death of a person; or
(b)an injury or a disease that has been aggravated, or materially contributed to; or
(c)an injury or disease, a sign or symptom of which has been aggravated, or materially contributed to;
if the injury, disease, death, aggravation or material contribution is related to defence service only because of the person’s use of tobacco products.”
“ 335    Standard of proof for Commission and Chief of the Defence Force
Standard of proof for claims relating to warlike or non‑warlike service
(1)   If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person’s injury, disease or death relates to warlike or non‑warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person’s injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)   that the injury is a service injury; or
(b)   that the disease is a service disease; or
(c)   that the death is a service death;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person while a member.
Note:   This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
Other determinations to be made to its reasonable satisfaction
(3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.”
“339    Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.
Note:   Subsection 335(3) is relevant to these claims.
(2)If the Repatriation Medical Authority has given notice under section 196G of the Veterans’ Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:
(a) the Commission is not to determine a claim for acceptance of liability for a person’s injury, disease or death of that kind; and
(b) the Commission, the Board or the Tribunal is not to make a decision on the review of:
(i)a determination by the Commission on such a claim; or
(ii)such a determination as previously affirmed or varied; or
(iii)a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);
unless or until the Authority:
(c)   has determined a Statement of Principles under subsection 196B(3) of that Act in respect of that kind of injury, disease or death; or
(d) has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii)a determination of the Commission under subsection 340(3) of this Act; and
(c)   the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
“ 341    Current Statement of Principles to be applied on review of a decision
(1)This section applies if:
(a)the Commission, the Board or the Tribunal is reconsidering or reviewing a determination in relation to a claim to which section 338 or 339 applies; and
(b)at the time of the making of the decision on the review, there is in force a Statement of Principles (the current Statement of Principles) determined under section 196B of the Veterans’ Entitlements Act 1986 in respect of:
(i)the kind of injury sustained by the person in respect of whom the claim is made; or
(ii)the kind of disease contracted by the person in respect of whom the claim is made; or
(iii)the kind of death suffered by the person in respect of whom the claim is made.
(2)Subject to section 340, the Commission, the Board or the Tribunal is to apply the current Statement of Principles when making its decision on the reconsideration or review.
(3)To avoid doubt, it is declared that no right, privilege, obligation or liability is acquired, accrued or incurred that would permit the Commission, the Board or the Tribunal, in making a decision on the reconsideration or review, to apply any Statement of Principles that is no longer in force.”
The Statements of Principles

As regards the factor set out in para (l) of clause 6 of the SoP, although the Tribunal is satisfied that that factor exists, or is met, in the applicant’s case in that he had Crohn’s disease involving the small intestine at the time of the clinical onset of his nephrolithiasis on or about 2 May 2010, the Tribunal is not satisfied that that factor is “related to” the applicant’s RAN service, as required by clause 5 of the SoP.
Likewise, as regards the factor set out in para (o) of clause 6 of the SoP, assuming that the surgery which the applicant underwent in March 2010 for his Crohn’s disease constituted “a partial or complete ileal resection”, and that that factor exists, or is met, in the applicant’s case, the Tribunal is not satisfied that that factor is “related to” the applicant’s RAN service, as required by clause 5 of the SoP.
The Tribunal, furthermore, is satisfied that none of the other factors set out in clause 6 of the SoP exists, or is met, in the applicant’s case.
For the sake of completeness, the Tribunal notes that, having regard to the medical evidence before it, it is not satisfied that either s 29 or s 30 of the MRC Act is satisfied in respect of the applicant’s nephrolithiasis.
Determination
Pursuant to s 335(3) of the MRC Act, the Tribunal is reasonably satisfied that the applicant’s nephrolithiasis is not a “service injury” or a “service disease” within the meaning of the MRC Act, and it so determines. Accordingly, the respondent is not liable under s 23 of the MRC Act for the applicant’s nephrolithiasis.
Malignant neoplasm of the thyroid gland
As previously mentioned, it is common ground that the applicant suffers from malignant neoplasm of the thyroid gland, and, on the basis of the medical evidence before it, the Tribunal so finds. The Tribunal also finds that that condition constitutes a “disease”, as defined in s 5(1) of the MRC Act.
As also previously mentioned, the Tribunal is satisfied that the applicant was suffering from malignant neoplasm of the thyroid gland as at 2 May 2010. Having regard to the medical evidence before it, the Tribunal is unable to determine a precise, or even an approximate, date on which the applicant contracted malignant neoplasm of the thyroid gland. The Tribunal, however, is reasonably satisfied, on the basis of Dr Lenzo’s report of December 2012 (set out in paragraph 47 above), that it is likely that the applicant contracted malignant neoplasm of the thyroid gland in the period 2008–2009.
In order to determine whether the applicant’s malignant neoplasm of the thyroid gland is a “service disease” within the meaning of the MRC Act, the Tribunal will follow the same approach as set out in paragraphs 61 and 62 above.
There is currently in force a relevant Statement of Principles (“SoP”) determined under s 196B(3) of the VE Act, namely, Statement of Principles concerning malignant neoplasm of the thyroid gland No 40 of 2014, which relevantly states as follows:
“ …
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that malignant neoplasm of the thyroid gland and death from malignant neoplasm of the thyroid gland can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the thyroid gland or death from malignant neoplasm of the thyroid gland is connected with the circumstances of a person’s relevant service is:
(a)   having received a cumulative equivalent dose of at least 0.5 sievert of ionising radiation to the thyroid gland at least ten years before the clinical onset of malignant neoplasm of the thyroid gland; or
(b)   having received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the thyroid gland at least five years before the clinical onset of malignant neoplasm of the thyroid gland and when aged less than twenty years; or
(c)   having a specified disorder of the thyroid gland at least one year before the clinical onset of malignant neoplasm of the thyroid gland; or
(d)   being obese for a period of at least five years before the clinical onset of malignant neoplasm of the thyroid gland; or
(e)   undergoing stem cell, bone marrow or solid organ transplantation before the clinical onset of malignant neoplasm of the thyroid gland; or
(f)    inability to obtain appropriate clinical management for malignant neoplasm of the thyroid gland.
Factors that apply only to material contribution or aggravation
7.Paragraph 6(f) applies only to material contribution to, or aggravation of, malignant neoplasm of the thyroid gland where the person’s malignant neoplasm of the thyroid gland was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9.For the purposes of this Statement of Principles:
‘a specified disorder of the thyroid gland’ means:
(a)   goitre (includes thyroid adenoma);
(b)   Graves' disease; or
(c)   Hashimoto's thyroiditis;
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms; and
H is the person’s height in metres;
‘cumulative equivalent dose’ means the total dose of ionising radiation received by the particular organ or tissue. The formula used to calculate the cumulative equivalent dose allows doses from multiple types of ionising radiation to be combined, by accounting for their differing biological effect. The unit of equivalent dose is the sievert. For the purposes of this Statement of Principles, the calculation of cumulative equivalent dose excludes doses received from normal background radiation, but includes therapeutic radiation, diagnostic radiation, cosmic radiation at high altitude, radiation from occupation-related sources and radiation from nuclear explosions or accidents;
…
‘relevant service’ means:
(a)   eligible war service (other than operational service) under the VEA;
(b)   defence service (other than hazardous service and British nuclear test defence service) under the VEA; or
(c)   peacetime service under the MRCA;
…”
Having regard to the whole of the evidence before it, the Tribunal is not satisfied that any of the factors set out in clause 6 of the SoP exists, or is met, in the applicant’s case.
The Tribunal notes, furthermore, that, having regard to the medical evidence before it, it is not satisfied that s 30 of the MRC Act is satisfied in respect of the applicant’s malignant neoplasm of the thyroid gland.
The medical evidence before the Tribunal, however, raises the issue of a relationship between the applicant’s treatment with “Humira” medication (with which he was treated for his Crohn’s disease) and his malignant neoplasm of the thyroid gland, and brings s 29 of the MRC Act into play.
Section 29 of the MRC Act relevantly provides as follows:
“29     Definitions of service injury, service disease and service death arising from treatment provided by the Commonwealth
Liability for injuries and diseases caused by treatment
(1)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a)   …; or
(b)   the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and as an unintended consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease.
Liability for injuries and diseases aggravated by treatment
(2)For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a) … or;
(b) the person receives any treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease and, as an unintended consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment.
…”
According to the medical evidence before the Tribunal, the applicant was initially treated with Humira for his Crohn’s disease from 4 December 2009 until (approximately) mid February 2010 (Exhibit R2 and T8). It appears from the T Documents that the applicant resumed Humira treatment in August 2010 (T39, T44) but ultimately discontinued that treatment on a date (which cannot be determined precisely from the medical evidence before the Tribunal) between February and May 2011 (T57, T75). The Tribunal, however, notes the applicant’s evidence to the VRB that he ceased taking Humira “in about February 2011” (see paragraph 32 above).
The Tribunal notes Dr Lenzo’s evidence (see paragraphs 47 and 48 above) that it is unlikely that the applicant’s Humira treatment caused him to contract malignant neoplasm of the thyroid gland but that it is likely that that treatment, in the period from December 2009 to February 2010, caused that pre-existing condition to progress more rapidly in that period.
Having regard to that evidence, the question arises, for the purposes of s 29(2) of the MRC Act, whether, “as an unintended consequence of” the Humira treatment in the period from December 2009 to February 2010, the applicant’s pre-existing malignant neoplasm of the thyroid gland was “aggravated by [that] treatment”.
The meaning of the phrase “unintended consequence” in s 6A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), which is relevantly comparable to s 29(1)(b) and s 29(2)(b) of the MRC Act, was considered by the Federal Court of Australia in Comcare v Houghton (2003) 128 FCR 485. Lindgren J said (at 493–494):
“ … in my opinion s 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce. …:
In earlier decisions of the Tribunal a somewhat broader interpretation of the phrase “unintended consequence” in s 6A(2) of the SRC Act and s 29 of the MRC Act appears to have been adopted. For example, in Re Eaton and Comcare (2002) 67 ALD 182 the Tribunal said (at 194):
“ … the tribunal is satisfied that the correct approach is that if a consequence (or result) is to come within the expression ‘unintended consequences’ [sic] pursuant to s 6A of the Act that consequence (or result) must be one that both:
(a)is not desired or aimed for or designed by the provider of the medical treatment; and
(b)is not a likely consequence of the medical treatment.”
See also Re Glendenning and Comcare (2004) 78 ALD 723; Re Wood and Military Rehabilitation and Compensation Commission (2007) 99 ALD 406.
Although Dr Lenzo, in his oral evidence, expressed the opinion that it was likely that the Humira treatment received by the applicant for his Crohn’s disease in the period from December 2009 to February 2010 caused his malignant neoplasm of the thyroid gland to progress more rapidly in that period, in his report of December 2012 (set out in paragraph 47 above), in answer to the question: “What was the likelihood of Mr Barber contracting thyroid gland cancer, or of his cancer being made permanently worse, as a result of using Humira?”, he stated as follows:
“ … in my opinion it is unlikely that the Humira caused the actual thyroid cancer though as I have mentioned this is almost impossible to definitively determine. The more likely scenario is that the Humira helped in the progression of the tumour. The fact that the tumour grew to such a large size in a short period of time would be something that could be seen in an immune compromised patient. …”
On the basis of Dr Lenzo’s evidence, the Tribunal is satisfied on the balance of probabilities, and finds, that the applicant’s existing malignant neoplasm of the thyroid gland was “aggravated”, within the meaning of s 29(2)(b) of the MRC Act, by the Humira treatment he received for his Crohn’s disease in the period from December 2009 to February 2010.
Having regard to the whole of Dr Lenzo’s evidence, however, the Tribunal is not satisfied that, considered objectively, that aggravation was an “unavoidable direct consequence” (cf Houghton, at 493–494), an “inevitable consequence” (cf Eaton, at 195), or a “highly likely consequence” (cf Glendenning, at 732) of that Humira treatment. Indeed, the Tribunal is unable, on the basis of the evidence before it, to assess or estimate the probability or degree of likelihood of that aggravation resulting from that treatment.
In determining whether that aggravation was an “unintended consequence”, within the meaning of s 29(2)(b) of the MRC Act, of the Humira treatment, there is, however, a further matter to be considered, namely, the relevant knowledge of the medical practitioner(s) who provided that treatment to the applicant at the relevant time. Although it seems that the applicant was already suffering from malignant neoplasm of the thyroid gland in the period from December 2009 to February 2010, his suffering from that condition did not become known to his treating medical practitioners until May 2010 and was not formally diagnosed until 24 May 2010 (see paragraphs 17–20 above). There is no evidence before the Tribunal that Dr Rofe, or the RAN Medical Officers (Dr Liston and Dr Lyttle) who referred the applicant to Dr Rofe, were aware, or even had reason to suspect, that the applicant was suffering from malignant neoplasm of the thyroid gland in the period from December 2009 to February 2010 when he was receiving the Humira treatment from Dr Rofe.
In those circumstances it cannot reasonably be said that aggravation of the applicant’s malignant neoplasm of the thyroid gland was an intended consequence of his Humira treatment by Dr Rofe in the period from December 2009 to February 2010. Rather, having regard to the considerations referred to in paragraphs 109 and 110 above, the Tribunal is satisfied, and finds, that that aggravation was an “unintended consequence” of that treatment, within the meaning of s 29(2)(b) of the MRC Act.
Section 29(2)(b) of the MRC Act also requires that the relevant treatment be “treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or service disease …”. The respondent informed the Tribunal that “the medical treatment received by the applicant in the course of his service, including the treatment and surgery for his Crohn’s disease and the prescription of medication including Humira was provided in accordance with Regulation 58E of the Defence Force Regulations 1952”. The Tribunal notes that the Defence Force Regulations 1952 were made under the Defence Act 1903 (Cth). Accordingly, the Tribunal is satisfied that the Humira treatment received by the applicant, in the period from December 2009 to February 2010, from Dr Rofe for his Crohn’s disease (which the Tribunal has determined is not a service injury or a service disease), on referral from an RAN Medical Officer, constituted “treatment under regulations made under the Defence Act 1903 for an earlier injury or disease that is not a service injury or a service disease”, within the meaning of s 29(2)(b) of the MRC Act.
Determination
Pursuant to s 335(3) of the MRC Act, the Tribunal is reasonably satisfied that, pursuant to s 29(2)(b) of the MRC Act, the applicant’s malignant neoplasm of the thyroid gland is a service disease, and it so determines. Accordingly, the respondent is liable under s 23(2) of the MRC Act for the applicant’s malignant neoplasm of the thyroid gland.
Lung scarring
The Tribunal is satisfied, on the basis of the chest CT scan of 4 August 2011 (T80) and Dr Armstrong’s report of 10 September 2014 (Exhibit R5), that the applicant was not suffering from lung scarring as at 4 August 2011, and, in the absence of any medical evidence of lung scarring since that date, the Tribunal cannot be satisfied that he is presently suffering from lung scarring.
There is, however, medical evidence before the Tribunal that the applicant formerly suffered from lung scarring, namely, a report of a chest x-ray performed on 18 February 2010 (T18), various chest x-rays and a CT scan performed in the period from 3 March 2010 to 10 March 2010 (part of Exhibit A1), and a thoracic CT scan performed on 6 May 2010 (T19). On the basis of that evidence, the Tribunal is satisfied, and finds, that the applicant suffered from lung scarring in the period February–May 2010, having contracted that condition in or about February 2010. The Tribunal is also satisfied that that condition constitutes a “disease”, as defined in s 5(1) of the MRC Act.
Pursuant to s 335(3) of the MRC Act, the Tribunal is to determine whether the lung scarring contracted by the applicant in or about February 2010 is a “service disease”, within the meaning of the MRC Act, to its reasonable satisfaction.
The Tribunal understands that the Repatriation Medical Authority has neither determined a Statement of Principles (“SoP”) under s 196B(3) of the VE Act, nor declared that it does not propose to make such a SoP, in respect of lung scarring. That being the case, pursuant to s 339(4) of the MRC Act, subs (3) of s 339 of that Act does not apply in relation to the applicant’s claim for acceptance of liability for lung scarring.
In support of his claim for acceptance of liability for lung scarring, the applicant stated as follows:
“ It is my belief the scarring on my lung is due to my need of a breathing ventilator, as a result of septicaemia, and an extended stay in St John of God Hospital, Murdoch. For over a week I needed assistance breathing as my lungs could not function on their own. As a result of my lungs not functioning during this period and a tube attached to the breathing apparatus, I now have scarring on my lungs caused by friction from the tubes placed down my throat. My Submarine Service has been immediately ceased as a result of the scarring and has effectively ended my career as a Submariner and is a direct result of the severe complications caused by the surgery.” (T34, p 65)
The Tribunal notes that the hospitalisation referred to by the applicant related to his surgery for Crohn’s disease in March 2010.
Having considered the relevant medical evidence before it, the Tribunal is of the opinion that that medical evidence does not support the proposition that the lung scarring contracted by the applicant in or about February 2010 is, on the balance of probabilities, a service injury or a service disease, within the meaning of s 27 of the MRC Act. More specifically, that medical evidence does not establish, to the Tribunal’s reasonable satisfaction, that, on the balance of probabilities, the lung scarring, contracted by the applicant in or about February 2010:
·resulted from an occurrence that happened while the applicant was a member of the Defence Force rendering defence service (s 27(a)); or
·arose out of, or was attributable to, any defence service rendered by the applicant while a member of the Defence Force (s 27(b)); or
·was contributed to in a material degree by, or was aggravated by, any defence service rendered by the applicant while a member of the Defence Force after he contracted lung scarring in or about February 2010 (s 27(d)); or
·satisfied the circumstances referred to in para (c) or (e) of s 27 of the MRC Act.

Likewise, in the Tribunal’s opinion, the relevant medical evidence before it does not establish, to its reasonable satisfaction, that, on the balance of probabilities, the lung scarring, contracted by the applicant in or about February 2010, was either contracted in the circumstances referred to in s 29(1) of the MRC Act or aggravated in the circumstances referred in s 29(2) of the MRC Act.
Furthermore, in the Tribunal’s opinion, the relevant medical evidence before it does not establish, to its reasonable satisfaction, that, on the balance of probabilities, any sign or symptom of the lung scarring, contracted by the applicant in or about February 2010, was, within the meaning of s 30 of the MRC Act, contributed to in a material degree by, or was aggravated by, any defence service rendered by the applicant while a member of the Defence Force after he contracted lung scarring in or about February 2010.
Determination
Pursuant to s 335(3) of the MRC Act, the Tribunal is reasonably satisfied that the lung scarring contracted by the applicant in or about February 2010 is not a “service injury” or a “service disease” within the meaning of the MRC Act, and it so determines. Accordingly, the respondent is not liable under s 23 of the MRC Act for the lung scarring contracted by the applicant in or about February 2010.
Conclusion
The Tribunal has determined as follows:
·none of the following conditions falling within the applicant’s claim for acceptance of liability under the MRC Act is a “service injury” or a “service disease” within the meaning of that Act, namely, Crohn’s disease, diverticular disease of the colon, nephrolithiasis, and lung scarring;
·the following condition falling within the applicant’s claim for acceptance of liability under the MRC Act is a “service disease” within the meaning of s 29(2)(b) of that Act, namely, malignant neoplasm of the thyroid gland.
Decision
For the above reasons, the Tribunal:
·varies the decision under review by determining that the applicant’s malignant neoplasm of the thyroid gland is a “service disease”, within the meaning of s 29(2)(b) of the MRC Act, for which the respondent is liable under s 23 of that Act;
·in all other respects, affirms the decision under review.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

………………………..[sgd D Brodie]............................................
Administrative Assistant
Dated 7 November 2014

Dates of hearing 11, 12 August 2014

Date of last submissions 23 September 2014

Applicant In person (unrepresented)

Counsel for the Respondent Mr B Dube

Solicitors for the Respondent Sparke Helmore

Division	Veterans' Appeals Division
File Number	2013/4306
Re	Darren Barber
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	7 November 2014
Place	Perth

Condition	Signs and symptoms	Date 1^st noticed signs or symptoms	Date 1^st received medical treatment
Crohn’s disease	Dietary constraints, bowel blockages and strong abdominal pain. Ongoing medication	Late 2008	April 2009
Septicaemia	High fever and massive infection due to small intestine blockage during routine bowel resection	March 2010	5 March 2010
Kidney stones	Strong flank pain	Mid-April 2010	6 May 2010
Scarring of the lungs	Sign of scarring on chest x-ray.	7 May 2010	May 2010
Thyroid cancer	5 cm tumour on left thyroid lobe.	May 2010	11 May 2010

Dates of hearing	11, 12 August 2014
Date of last submissions	23 September 2014
Applicant	In person (unrepresented)
Counsel for the Respondent	Mr B Dube
Solicitors for the Respondent	Sparke Helmore