David Bean and Military Rehabilitation and Compensation Commission
[2014] AATA 940
•18 December 2014
[2014] AATA 940
Division Veterans' Appeals Division File Number
2014/1009
Re
David Bean
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 18 December 2014 Place Perth The decision under review is affirmed.
....................[sgd]...............................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Australian Army from 1981 to 1984 – applicant suffered recurrent skin infections, respiratory infections and related ailments during Army service – applicant tested for blood glucose but not for glucose tolerance during Army service – applicant contracted diabetes mellitus in 2004 – applicant’s diabetes mellitus not contributed to by failure to test for glucose tolerance or otherwise by Army service – applicant’s diabetes mellitus not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5(2), s 14(1) and s 147(1)
CASES
Johnston v The Commonwealth (1982) 150 CLR 331
REASONS FOR DECISION
Deputy President S D Hotop
18 December 2014
Introduction
David Bean (“the applicant”), who was born in January 1964, served in the Australian Regular Army from 16 June 1981 to 15 March 1984.
The applicant has applied to the Tribunal for review of a “reviewable decision”, dated 21 January 2014, made under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), which affirmed a determination, dated 27 March 2013, made under that Act, disallowing the applicant’s claim for compensation under that Act in respect of a condition described by him as “impaired fasting blood sugar”.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T30, pp 1–272) lodged by the Military Rehabilitation and Compensation Commission (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibit A1 tendered by the applicant;
·Exhibits R1–R5 tendered by the respondent; and
·the oral evidence of the applicant and of Dr William Hall.
The Applicant’s Claim for Compensation
The applicant’s completed and signed “Claim for Rehabilitation and Compensation” form, dated 24 November 2012, was lodged with the Department of Veterans’ Affairs (“DVA”) on 27 November 2012 (T4). In that form the applicant indicated that (inter alia):
·the condition for which he was claiming was “impaired fasting blood sugar”;
·the part of his body that was affected by that condition was “blood system/immune deficiency”;
·he first noticed that condition on “4/7/1981”;
·he first received medical treatment for that condition in “2004”;
·he reported that condition to his supervisor, namely, “RAP/1RTB”, on “4/7/81”;
·he had never suffered a similar condition in the past.
In answer to the question: “What aspects of your employment do you think contributed to your disease or illness?”, the applicant stated:
“ The lack of a diagnosis from my doctor/MO whilst serving in Aust Army even though the evidence indicates I was suffering from this condition and was not treated for it, this illness/disease has led to diabetes Type II.” (T4, p 24)
The applicant attached to his claim form a document headed:
“STATEMENT FOR FAILURE TO DIAGNOSE AND TREAT
IMPAIRED FASTING BLOOD GLUCOSE”
signed by him and dated 24 November 2012 in which he set out the symptoms experienced by him (and cited the documentary evidence thereof) and the following medical chronology and commentary:
“ 4/7/1981 I went to the Rap and was seen by a Cpl Medic. I had a boil on my neck. I was very ill. I was asked by the Cpl ‘if I ever had a boils [sic] before’. I told him yes. I had a couple as a kid. One when I was 6 or 7 years old on my left knee. And one when I was in grade 8 on my right bum cheek near my hip. The boil was lanced by the Cpl. (See page 1; F MED 60)
13/07/1981 I went to the Rap after completing a 16 km run in the morning and was seen by … MO. I still had the boil and I was now [sic] I had viral infection.. I was given antibiotics Amoxycillin 250 mg. (See page 2: F MED 60)
22/07/1981 I went to the Rap and was seen by … MO. I was still very ill. Both ears inflamed, throat inflamed, malignant cough producing green flemm [sic]. Was given Amoxycillin 250 mg. (See page 3: F MED 60)
04/08/1981 I went to the RAP with an infected eyelid (sty). I was given Antibiotic Ointment. (See page 4: F MED 60)
15/09/1981 I visited the RAP with headaches, vomiting, hot & cold flushes, and diarrhoea being extremely thirsty and sore ears. Once again I was given antibiotics Amoxycillin 250 mg. (See page 5: PM 60-1)
19/01/1982 I went to the RAP with an infected eyelid (sty). I was given Antibiotic Ointment. (See page 6: PM 60-1).
29/05/1982 Visit to the RAP with headaches for the past 2½ months. (See page 7: PM 60-1)
19/07/1982 Visit the RAP with Left eye infection was told I had conjunctivitis and a sty was forming on my eyelid internally was placed on Amoxycillin 500 mg on this visit. (See page 8: PM 60-1)
21/07/1982 RAP1 ARMD REGT With flu like symptoms with nausea also had another sty called an Internal Hordeolum which hadn’t started to heal at all considering I was already on antibiotics and was given ointment as well? I was admitted to 3CH Hospital by … MO I was in hospital for 3 days (See pages: 9/10/11 PM 60-1)
8/08/1982 General malaise for 3 days. (General feeling of being unwell) Throat and tonsils inflamed slight discharge in right ear. (See page: 12 MEDICAL IN CONFIDENCE)
05/10/1982 Attended 3 Camp Hospital with boil under right shoulder was treated with Magnoplasm and Panadeine. I was admitted to 3 camp Hospital the following day.
6/10/1982 (see page: 14) PM 60-1 Laboratory Request/Report (see page: 15)
‘Recurrent infections’
Blood tests were ordered and pathology was told to test my urine for sugar, swabs were also taken and sent off for testing. I was given Erythromycin 500 mg antibiotics and aspirin for pain.11/10/1982 My blood test came back. GLUCOSE 5.6 F MED 12 (see page 16)
6/10/1982 TO 10/10/1982 Report PM11 By: … MO (see page 17)
8/10/1982 PM 12 SPECIAL EXAMINATION REQUEST
Now I have an infection that is RESISTANT to Ampicillin and Penicillin. And this report is marked ‘Routine” (See page 19).
12/10/1982 was discharged from 3 Camp Hospital on light duty’s [sic] for 2 days I thought I would be ok as I was not told what illness I had. And the RMO had sent me back to work.
13/10/1982 HEIDELBERG HOSPITAL Sent a copy of their LABORATORY REPORT results to [MO] on the bottom of the Report *** NB REFERENCE RANGE FOR MALE AGED 50 IS REPORTED *** I WAS 18 YEARS OLD (see page 18)
I was never told about this results [sic]. Nor was I treated/counselled or supported in any way from the RMO ...
14/10/82 PM 60-1 REVIEW… MO ‘EPIGASTRIC PAIN, VOMITING, BRIGHT RED BLOOD ON TOILET PAPER. Worse in AM, Nausea @ meals,? Normal, No blood in? HUNGRY ALL THE TIME’
Light Duties 2 Days.
Still no answers from the MO. No Advice just more drugs to stop me vomiting. (See page 20)
On Page 22 you can clearly see BSL NORMAL crossed out and 5.6 in its place.
… MO knew A BSL of 5.6 was not normal for a 19 year man [sic]who ran 5 km ever 2nd day.
21/10/82 to CRMO MED 15 by … MO (see page: 23)
25/10/82 am PM 60-1 … MO LETHARGY, SORE THROAT, HEADACHE, RED THROAT, RX SOLUBLE ASPIRIN. (See page 25)
25/10/1982 pm PM 60-1 …. Recent admission 14/10/82. ?Glandular Fever Discharged from Hospital 21/01/1982 Returned to light duties. Tonight: Complaining of Nausea, Sharp pain in chest on inspiration sub external & vomiting 1-2 hrs. after evening meal, says he has been very thirsty. O/E P 24 R22 BP 140/90. Abdominal tenderness on Palpation Rx for admission. (See page 24)
26/10/1982 F Med Inpatient Summary Discharged for hospital 1/11/1982 (see page 29).
27/10/82 Pathology request: Throat swab/Sore throat. F MED 12 infection (see page 26).
15/11/1982 F Med 12 Request for Pathology/X-Ray investigation Recent Chicken Pox/Tired/lethargic (see page 27)
19/11/1982 F Med 12 Lab Report form: From request made on the 15/11/1982 IM Negative … (See page 28).
07/01/1983. F MED 12 I visited 3 camp hospital this am and was placed on antibiotics for Boil around tattoo upper right arm, visited the Rap over 3 days to have the boil expressed and redressed. (See page 30).
07/01/1983 Request for Pathology: Culture Boils after tattoo. See page 31 for results, infection still resistant to the antibiotics that the hospital prescribed for me. Results did not arrive back at the hospital until the 13/1/1982 I was never contacted to be given alternative medication for this resistant infection … PLEASE NOTE: For the length of time that this infection has been in my body the list of sensitive antibiotics had reduced from 6 types (Chloramphenicol, Erythromycin, Sulphafurazole, Cloxacillin, Streptomycin and Tetracycline) down to 3 types (Cloxacillin, Erythromycin & Tetracycline). (See page 31)
9/01/1983 I visited 3 camp hospital again in the afternoon to have the boil redressed and to make them aware I had another one forming on my stomach. (See page 32).
21/02/1983 Admitted to 3 camp hospital after visiting the casualty area in the morning with Vomiting, sore throat, cough & diarrhoea. Put on yet another antibiotic Bactrim. (See page 33/34).
06/04/1983 F MED 60-1 Recurrent boils mainly in upper limbs Lymphangitis (which is an infection in the lymphatic system) was suspected and noted on this document but again I was not informed of this and was again given the same antibiotic as every other time. (See page 35).
PLEASE NOTE: In all of the cultures that were taken for testing the results showed Heavy Pure Growth of Staph Aureus. The list of sensitive drugs had increased again to 4 types (Erythromycin, Cloxacillin, Streptomycin and Tetracycline). (See page 36).
9/05/1983 PM 60-1 Boil on left wrist (swollen lymph gland) was seen by a CPL. … at the RAP 1 AR. (See page 37).
11/05/1983 Request for Pathology: Fasting Blood Sugar: Recurrent Boils. (See page 38).
11/05/1983 Request for Pathology: Culture of puss from boil on left arm results showed Heavy Pure Growth of Staph Aureus. Yet again!!! (See page 39).
12/05/1983 Request for Pathology: Fasting Blood Sugar: Recurrent Boil like lesions. (See page 40).
16/05/1983 Review of boils. Require daily dressings until 20/05/1983 (See page 41).
31/05/1983 Admitted to 3 Camp Hospital: Viral URTI, Cough, headaches, sore ears, general aches and pains as well as lethargy. I was given Amoxil 250 mg (See page 42/43).
8/08/1983 11 Fld Amb General feeling of being unwell sore throat, Rhinorrhoea, non-productive cough o/e Viral URTI/gastritis (see page 44).
10/10/1983 Blood test result BSL 6.9 (See page 45)
06/12/1983 Rap 1 ARMD REGT Large boil under right arm (recurrent problem) swabs were taken was given Bactrim and blood tests were requested. (See page 46/47).
09/12/1983 Culture on boil puss result/report: A moderate pure growth of Staph aureus (See page 48).
20/12/1983 3 Camp hospital: boil in right arm pit recurred again. O/E: large inflamed boil under right armpit for incision > pus released. Magnoplasm dressing. (See page 49).” (original emphasis) (T4, pp 26–29)
A completed “Injury or Disease Details Sheet”, dated 20 November 2012, was also lodged with the DVA together with the abovementioned claim form on 27 November 2012 (T3). In that document the applicant:
·described the injury or disease as “impaired fasting blood sugar”;
·described the symptoms thereof as “recurrent infections that would not heal”;
·answered the question: “How do you believe your service caused, contributed to or aggravated this injury or disease?”, as follows: “high stress levels would drive the blood sugar higher”;
·indicated that he first noticed signs or symptoms of the injury or disease on “4/7/1981”; and
·answered the question: “On what date did you first receive medical treatment for this injury or disease?”, as follows: “NEVER TREATED”. (T3, p 17)
In that document Dr Murphy:
·provided the following diagnosis of the claimed condition:
“ Impaired fasting bsls – possible early diabetes - no glucose tolerance test undertaken to confirm the diagnosis”;
·stated the following basis for the diagnosis:
“ noted investigations as causes for recurrent severe infections;
·answered the question: “When did the claimant first consult you for this injury or disease?”, as follows:
“ Diagnosed with NIDDM in 2004”. (T3, p 17)
Relevant Medical Evidence
The applicant’s service medical records
The applicant’s service records (including medical records) are in evidence (T20, pp 54 – 107; T30; Exhibit A1). These records include numerous references to medical attendances by the applicant to his Regimental Aid Post in the period from 30 June 1981 to 20 December 1983 for various complaints of symptoms including recurrent boils, recurrent infections and inflammations, recurrent headaches, thirstiness, nausea, vomiting, diarrhoea, lethargy and general malaise.
The applicant’s service medical records also include the results of various blood tests (including glucose levels) as follows:
·8 October 1982 – 5.6 MM/L (T20, p 72);
·12 May 1983 – 5.5 MM/L (fasting) (T20, p 98);
·10 October 1983 - 6.9 MMOL/L (T20, p 103).
In a Medical History Questionnaire, completed by the Examining Medical Officer on 9 March 1984 for the purpose of the applicant’s discharge from the Army, it is indicated that (inter alia) the applicant never had, and was not presently suffering from, “sugar diabetes”. (T30, pp 259–260)
Post-service medical evidence
A report of Dr Nigel Sinclair, Cardiologist, dated 10 October 2000, which is addressed to Dr S Gray, Emergency Department, Swan Districts Hospital, states as follows:
“ Thank you very much for asking me to see David Bean a 36 year old man who has had several episodes of chest pain over the last week. The [sic] first began while he was sitting watching television when he became warm, dyspnoeic and then felt like someone was sitting on him. The sensation lasted about five minutes and he was somewhat dizzy thereafter. He went to bed and when he woke in the morning was still dizzy. Then while sitting on the toilet he developed a sensation like a power surge going through his body and then felt very vague and woke up in hospital. The sensation in his chest is like he is being crushed. Since then he has felt very tired, has had rapid heart beats periodically and has been quite dizzy. He has been sleeping 15 hours per day and has also been slightly constipated with flatus ++.
He has a past medical history of asthma as a child and had an injury in 1998 causing L4/5/S1 instability. He has had oesophageal reflux in the past until he was commenced on Losec. Current medication is Losec, Digesic and Prothiaden and he has been smoking 35-40 cigarettes per day until recently when he has cut back to 6-10 per day and says he is stopping.
He has a poor family history of ischaemic heart disease with his maternal grandfather developing angina at 35, a paternal grandfather dying at 38 with chest pains and his father dying of an infarct at 58.
On physical examination he is a pleasant man mildly overweight he has no abnormalities on general physical exam. His blood pressure was 130/75, pulse rate 70 and regular. There was no evidence of cardiac failure or cardiomegaly and heart sounds were normal without added sounds or murmurs. There was no pain on palpation or percussion of the chest wall. The remainder of his physical examination was normal. Resting ECG was also normal.
The chest pain is quite atypical for angina but I will organise a Persantin thallium stress test on him since he is unable to exercise much. He will also have a full blood picture, urea, electrolytes, glucose, cholesterol and thyroid estimation and I will review him again next week.
…” (part of Exhibit R4)
A report of a pathology test, dated 8 July 2002, noted that the applicant’s “fasting glucose” level was 5.1 mmol/L and commented that diabetes was “unlikely”. (part of Exhibit R4)
A report of a pathology test, dated 17 April 2003, noted that the applicant’s glucose level was 5.4 mmol/L (within the normal range of 3.0–5.5 on a fasting basis). (part of Exhibit R4)
In an extract from the applicant’s medical records produced under summons by St Andrews Medical Group, it is recorded that (inter alia):
·at a consultation with Dr Michael Murphy on 5 October 2004, a pathology test (including “BSL”) was requested;
·at a consultation with Dr Andreas Marangou on 17 October 2004, “Type II DM” was noted;
·at a consultation with Dr Michael Murphy on 18 October 2004, a script for “Diabex” tablets was written. (part of Exhibit R4)
An extract from the applicant’s medical records produced by St Andrews Medical Group includes the following entry:
“ Current Medical History:
18/10/2004 Diabetes: Type 2”. (part of Exhibit R4)
A report of Dr Ross Littlewood, Midland Eye Clinic, dated 25 September 2006, which is addressed to Dr Uma Rao (cc Dr Michael Murphy), states as follows:
“ Thank you for referring David who attended with a recent history of phosphenes in the lower left peripheral field of vision in the left eye and ghost images. I note the diabetes and the old history of facial reconstruction after a facial fracture during armed service. From his description I suspect the eye suffered significant blunt trauma at the time.
Apparently a glioma near the chiasm was first diagnosed on a scan done to detect sinus problems. I am told there is some enlargement over time and he is due to have a repeat MRI soon. He wanted to know to what extent his symptoms were related to an eye problem and if there was evidence of an optic nerve disease. The visual acuity with optical correction was 6/5 in the right eye and 6/6 in the left eye with astigmatism in the left eye not presently corrected in his glasses and a mild hyperopic shift. His field of vision showed a superior arcuate defect in the left eye connected to the blind spot and consistent with a focal pre chiasmal optic nerve bundle defect. There is no way of knowing how old this is without previous studies.
The discs and vessels are normal with no abnormal pulsation of the vessels. There is a subtle swelling in the left macula that is consistent with a low grade central serous choroidopathy – a stress related event not all that uncommon in adult males. There is no diabetic retinopathy and there is no direct relationship between the macula lesion and the glioma. The only evidence of a possible effect from the glioma is the field of vision defect and even this is not the typical pattern one would expect. The field defect might also be explained by the previous trauma damaging the nerve. There is no relationship between lighting environment and the phosphenes and no visible retinal lesion to account for them. They may be due to a disturbance in the visual pathway behind the eye although the old MRI scan available to me demonstrated a lesion that is not directly involving the nerve.
I gave him an Amsler grid and asked him to let me know if the distortion increases but advised a further check in around 3 months to look for resolution of the macula lesion. Since it is usually self limited I expect the appearance to improve, and I have taken photographs as a baseline reference.” (part of Exhibit R4)
Letters of Dr Minoti Bhagat
A letter of Dr Minoti Bhagat, Endocrinologist, dated 10 April 2013, which is addressed to Dr Murphy, states as follows:
“ …
Thank you for referring David with regards to his diabetes, he is seeking an opinion regarding his time in the army and potential failed opportunity to diagnose diabetes at that stage.
He joined the army at 17 and suffered from recurrent skin infection [sic] particularly but also respiratory infections and was often very thirsty. He was seen repeatedly in regards to his skin infections, he did have a blood sugar level of 5.6 fasting and also a random sugar 6.9. He was never sent for an oral glucose tolerance test. With the knowledge of his recurrent infections it certainly seems possible that diabetes may have been the underlying cause. Following forcible discharge from the military in 1984, he worked in television and quite a sedentary life [sic] and continued to have a few infections and thirst but put it down to living in the Northern Territory. He was also increasingly socially isolated at that time and embarrassed about his discharge from the army. Eventually he was diagnosed by yourself in 1994 [sic], initially blood sugars were around 13 to 14. He has now been on Metformin for quite some time; his diet is good mainly salad, chicken, fish. He exercises regularly with walking or cycling and has been losing 1 or 2 kilograms a month. His weight is now 99 down from 150 kilograms. Recent blood sugars have been between 5 – 6 and his levels increase to 8 he starts to get a headache [sic]. He has not had any recent boils but does have occasional ear and nose infections. He complains of some numbness in his toes. He has no evidence of retinopathy or nephropathy. He has had an angiogram which showed no problems. He has not had any neurological symptoms and has ongoing review with his psychiatrist. Blood pressure has been fine, cholesterol is slightly elevated, he does not drink any alcohol but does continue to smoke 25 to 30 cigarettes per day. There is a family history of diabetes in his Grandmother and mother and cardiovascular disease in his grandfather and father who died in their 50s or 60s.
Examination: Weight 99 kgs, Pulse 80 and regular. Blood pressure 110/70. Heart sounds were dual with no added sounds. Chest was clear, Abdomen soft and non tender with no masses. Peripheral pulses were intact. There was reduced sensation in the left toes and in the right fore foot and toes. Reflexes were present bilaterally at the ankles.
Results:
HbA1C 6.0%
UACR 2.9
Cholesterol 5.8TSH 1.11
Plan:
1.David’s diabetes management at the moment seems very good; the only other things I would suggest would be regular podiatry which he says is planned and instituting a plan to quit smoking which he is discussing with his psychiatrist, this would halve his cardiovascular risk. I will write a letter to DVA to support his claim.” (Exhibit R5)
A letter of Dr Bhagat, dated 10 April 2013, which is addressed to the DVA, states as follows:
“ I reviewed Mr Bean today with regards to his diabetes and also a summary of his medical records as well as more detailed notes from that time. In summary, he had repeated skin infections as well as some respiratory infections, he frequently complained of thirst and headaches. He had one fasting blood sugar of 5.6 as well as a random blood sugar of 6.9. A fasting blood sugar of 5.6 in a 17 year old should certainly have prompted an oral glucose tolerance test, especially in the context of the large numbers of skin infections which should certainly raise alarm bells for diabetes. I think there was a missed opportunity to diagnose likely diabetes at that time. Since his diabetes has been treated, Mr Bean has not had further problems with skin infections.
I am also concerned that the delay in diagnosis may lead to an increased risk of long term complications of his diabetes. Currently Mr Bean is managing his diabetes very well with extremely good control and he does not have any current retinopathy or nephropathy although he does have a suggestion of peripheral neuropathy.” (T19)
A further letter of Dr Bhagat, dated 24 April 2013, to the DVA states as follows:
“ Further to my previous letter regarding Mr Bean he has asked me to detail likely symptoms he would have had if he did have diabetes during his time in the army. High blood sugars would lead to tiredness and easy fatigue, extreme thirst and increased urination, and propensity to dehydration with associated symptoms of dizziness and possible faints due to low blood pressure. High blood sugars would also impair white cell function leading to propensity to infections which he did have. Infections would have associated symptoms of pain and tenderness for skin infections, and fevers and feeling unwell with poor appetite, possibly nausea and vomiting and low blood pressure. All of these symptoms would have made it extremely difficult for Mr Bean to complete the tasks required in the training period and thereafter.” (T22, p 110)
Reports of Dr William Hall
Dr William Hall, Consultant General Surgeon, assessed the applicant on 12 July 2013 at the request of the DVA and subsequently prepared three reports relating to the applicant. Those reports are set out in paragraphs 24-26 below.
The Applicant’s Evidence
The applicant confirmed that the contents of the statement which he attached to his compensation claim form (T4, pp 26–29; see paragraph 5 above) are true and correct.
The applicant also confirmed that the contents of a statement, which he prepared and filed in this proceeding on 18 November 2014, are true and correct. The contents of that statement which are of a factual nature are as follows:
“2.1 1 am a 50 year old that enlisted in the Royal Australian Army at the age of 17. I was told that I was found to be fit in every way and was of the understanding that for the next 6 years I would be under the guidance of the best of what Australia had to offer and my current lifestyle is a direct result of my service.
2.2I served the Royal Australian Army in a time period that advice from medical staff was often overruled or ignored as this was the culture of the times. (A58 to A62)
2.3I was only posted (Sent) to 2 locations. (A6 to A7) So at all time the Medical staff had access to all of my medical history. Yet with the best Medical Australia had to offer a simple test that would confirmed the condition, the Administration failed to ask for the test. (See Attached MED1 complete medical records for a reason to do the test)
2.4If the test was conducted I would have been found not fit for field force units or discharged under Royal Australian Army Conditions of service.
2.5Symptoms missed or just put down to laziness on my behalf (A8 to A27). Please take note of the dates of the reports.
2.6All blood test done report that of a blood glucose of a fifty year old (PT30 page 146,149, 150, 157, 171,) I was only 17.5 to 20 years old.
2.7The only time I was told about any concern was by a nurse (A25)
2.8At no stage was I informed that I had a Glucose problem, I was told the infections were from me being dirty and not washing properly …
…
2.11For the whole of my service I suffered with infections and illness with no assistance from the army medical staff. (See complete medical and service records attached)
2.12The only family history was that of my Grandmother who had diabetes at age 59 and lived to be 90 odd.
2.13The amount and type of Fluids is a good idea of the amount of sugar I was consuming at the time I served in the Royal Australian Army. (A28 to A38)
2.14My service record is a good indication of the amount physical stress placed upon me while serving at a Filed force unit as opposed to a non-Feld force unit.
…”[sic] (Exhibit A1)
[The Tribunal notes that voluminous attachments to the above statement are included in Exhibit A1).
In cross-examination the applicant gave evidence to the following effect:
·the date “4/7/1981” referred to in his claim form is the date on which, he believes from discussions with Dr Murphy, his “impaired fasting blood sugar” condition should have been “picked up” by conducting an impaired glucose tolerance test;
·his blood test on 10 October 1983 (which showed a glucose level of 6.9) was administered while he was in Heidelberg Hospital for other reasons and was administered on a random, not a “fasting”, basis;
·his blood test on 12 May 1983 was a “fasting” test but he could not recall whether his blood test on 8 October 1982 was a “fasting” test;
·Dr Murphy referred him to Dr Bhagat with a view to obtaining a report from Dr Bhagat in support of his claim for compensation.
The Evidence of Dr William Hall
Dr Hall, Consultant General Surgeon, confirmed that he had examined the applicant on 12 July 2013 and that he had subsequently prepared three reports regarding the applicant, and a letter clarifying his first report.
Dr Hall’s first report, dated 2 August 2013, is addressed to the DVA and states as follows:
“ …
Thank you for referring Mr David Michael Bean for medical assessment and report. Based on Mr Bean’s medical condition as specified in your referral, I confirm that my specialty is appropriate for the conduct of this assessment.
Having reviewed the available records and file data, interviewed and examined Mr Bean, I now submit a detailed medical report in answer to your request.
I obtained the following information from my interview with Mr Bean (unless otherwise specified).
HISTORY:
Occupation/Work Duties:
Mr Bean states that he was born in Western Australia and attended school, leaving school in Year 11 aged 17 years. He had a number of after-school jobs and then took up being an apprentice locksmith. He states he joined the full-time section in the Australian Defence Force in 1980 and after initial basic 12-week training he was transferred to First AR Regiment in Victoria at Puckapunyal where he stayed until March 1984.
He states that in his time in the military he was never transferred overseas. There were short deployments to the Northern Territory and Queensland (Yeppoon).
Onset of Symptoms/Sequence of Events:
Mr Bean states that while he was in the military he developed a number of boils/abscesses, the first which [sic] was in about July 1981 which was on the right side of his neck. This was followed soon later by boils on his arms, a sty in his eye, infection in his right finger and other infections on the arms, which continued until 1984 when he left the Defence Force. He additionally states that during his military time he complained and reported events of dizziness and not being able to carry out the same duties as his peers by way of general fatigue and tiredness.
Initial/Early Treatment Received:
He states all the treatments he received for the boils during those four years were through the Army medical system and he was at one time admitted to the Heidelberg Hospital in Victoria. He states his blood sugar was checked on a number of occasions and knows that it was in the order of 5.5 mmol/L by military testing on 8/10/82. He states that in October 1983 when he was in the Heidelberg Hospital he had a level of 6.9 but he is not sure this figure was ever relayed back to the military.
Subsequent Progress/Specialist Management:
He states he saw only the Army doctors besides the one admission to Heidelberg Hospital. He had various boils lanced but did not require a general anaesthetics [sic] for these. He was placed on antibiotics and the conditions invariably settled down with poultices and dressings.
He states that his weight when he was in the Army was in the order of 62 kg to 67 kg which was the figure when he left the military in 1984. He states that no other colleagues in the Army had as many infections as him. He states that while he was in the military he played both Union and League rugby.
Mr Bean states that the boils were tested per bacteriological culture and were usually a staphylococcus aureus. He states that his episodes of tiredness were variously assessed including having tests for chickenpox and glandular fever in around 1982. He states additionally he had various episodes of abdominal pain, nausea and vomiting for which he was given antacids and no other specific therapy nor investigations such as a gastroscopy was carried out.
On direct questioning he states he had no major injuries or accidents while in the military. He is aware of having broken a finger and also having his foot crushed under a gun turret but there were no fractures there.
Current Status:
Mr Bean states he has been out of the Army for 30 years and has undertaken various jobs in this time. Quite a bit of it has been in the Darwin area, working at the Darwin Hotel and later working with various TV companies. He is currently out of work and spends most of his time at home as well as doing local walking exercise.
Present Activities:
He states he has no restrictions in activities of daily life but is not happy driving in traffic and his wife drives the vehicle then. He states he sleeps a lot but is capable of carrying out all the normal household duties and assists with house maintenance, vacuuming, cooking and shopping.
Present Treatment:
He states he sees Dr M Murphy of Midland and a diabetic specialist, Dr M Bhagat and has done so since about 1998. His current medications include Lithium, ‘Diazepam’, ‘Largactil’, and ‘Seroquel’. He is also on ‘Lispro insulin’ as well as ‘Diaformin’, ‘Zoton’ and has a ‘Ventolin’ puffer. He states his blood sugar levels hover around 10 mmol/L currently. He has seen an ophthalmologist about a month ago and his eyes are in good order.
Past Medical History:
He states he was perfectly well until he joined the Army at age 17 although was a mild asthmatic prior to that and had not needed treatment for the asthma while in the military. He states he had had a single boil on his body as a child.
He states he had a general anaesthetic in 1988/1989 in Darwin Hospital for repair of an umbilical hernia. He states in 2010 he had surgery to his nose and sinuses. He states that he was diagnosed as being non-insulin dependent diabetic in 1998 by Dr Murphy. He was initially put on to ‘Diaformin’ and was additionally managed with diet and exercise. He attended for psychiatric treatment from a Dr H Piirto around that time and was also placed on Lithium then.
After I completed his examination he did admit that he had undergone coronary angiogram in 2009 for presumed angina. No stent or intervention was apparently carried out.
Family History:
He states his mother lived to her late 60s in Darwin and died of an unknown cause. He is not aware of the details of his father. He is the second eldest of six children. None of the others have diabetes and there is no immediate family member who has diabetes mellitus. (He believes a maternal grandmother was diagnosed with Type II Diabetes in her 70s).
Personal/Social History:
He states he has been married for the last 27 years and is in a stable relationship. They have two children. He states he smoked cigarettes from age 17 until now and he is still smoking. He states ethanol consumption was heavy in the military but has been almost zero since 1984. He admitted to having tried other drugs around the time of leaving the military.
REVIEW OF FILE RECORDS:
1. Copy of letter from Dr Minoti Bhagat, dated 24 April 2013
2. Letter of statements [sic] from Mr David Bean, dated 12 April 2013 (3 pages)
3. Copy of letter from Dr Michael Murphy, dated 9 April 2013
4. Copy of letter from Dr Minoti Bhagat, dated 10 April 2013
5.List of summary of medical records of former DPR David M Bean, dated 7 April 2013 together with 42 attached pages variously listed as page 15 through to page 191
6.‘Statement for Failure to Diagnose and Treat Impaired Fasting Glucose’ as a letter from Mr David M Bean signed 24 November 2012 and attached 3 pages
7.Copy of the medical records referred to in the ‘Statement’ in Item 6; 21 pages of copies of medical records from ADF
8.A block of copies of medical records from military, numbered 1 to 49 … from 4 January 1981 to 20 December 1983
9.A block of additional copies of medical records from Australian Army numbered in black ink, page 1 to page 74.
[Dr Hall then set out the details of his physical examination of the applicant, and continued:]
SUMMARY AND ASSESSMENT:
I find Mr Bean to have a history of being in the military for about four years from 1980 to 1984.
He had a number of soft tissue abscesses and boils including a sty in one eye. The number of these is not grossly excessive and he does however state that other members of the military did not have as many infections as he had.
In his ‘Statement’ which he pointed out to me listed an eye infection in August 1981, another eye infection in July 1982. In October 1982 he had a boil under the right shoulder/arm which was treated and in October 1982 had a sore throat ? infection and in January 1983 had boils after having had tattoos and the boils were in the region of the tattoo. Further boils were reported in April 1983 and there was a further culture from boils on his left arm in 1983 in May; ‘large boil under right arm in December 1983’.
He is concerned about his later health on account of the missed abnormal blood sugars as quoted and I find there are records of blood sugars being done in October 1982 with a glucose of 5.6 mmol/L and the Heidelberg Hospital reports however blood glucose of 6.9 mmol/L in October 1982. No date was noted on that document but it relates to other events around October 1982.
From then on the various pathology tests seem to cover only the cultures which had invariably been a staphylococcus aureus commonly resistant to penicillin, ampicillin, streptomycin and sulphafurazole indicating that Mr Bean was probably the carrier of this organism rather than it being acquired in a hospital etc.
A request for fasting blood sugar on 12 May 1983 is noted but no results are seen in the notes. A blood sugar level of 6.9 mmol/L is noted on a sample of plasma dated 10 October 1983 which apparently is not a fasting test.
The criteria for the diagnosis of Diabetes Mellitus have changed downwards over the years but in around 1980 the criteria for the diagnosis thereof required an abnormal blood sugar was [sic] greater than 7.0 mmol/L. In more recent years from about 1998 onwards the consideration of finding a blood sugar between 5.5 and 6.9 mmol/L is diagnosed as ‘impaired glucose tolerance’ and this should raise a warning flag to watch such persons either by way of an immediate full glucose tolerance test and/or repeat testing over subsequent months and years.
Should Mr Bean have been diagnosed as having an impaired glucose tolerance or even established diabetes even back in 1980 and no doubt additional dietary and exercise programs would have been advised to defer the onset and degree of the diabetes which was eventually found in 1998 [sic]. We have known for a number of years that the metabolic control of his diabetes through weight control and exercise significantly defers the onset of full blown diabetes and often as many as ten years. I note his current weight is 96 kg.
SCHEDULE OF QUESTIONS:
In answer to the specific questions as outlined in your letter of referral dated 20 May 2013:
…
Please note:Your answers should be on the balance of probability (not possiblity) and be based on current mainstream medical opinion and medical/scientific research.
To help avoid the necessity for additional investigation it is important that all relevant questions are answered.
1.Do you consider that the fasting blood sugar levels in the 1980’s should have prompted further medical investigations? Please explain your answer.
I note the fasting blood sugar levels in the 1980s for Mr Bean had been 5.6 mmol/L and a random one of 6.9 mmol/L and these alone are not actual criteria for the diagnosis of diabetes but certainly in reasonable medical practice this should raise the suspicion of this possibility particularly in the presence of multiple infections that this man has had. I therefore consider this to be a ‘yes’.
2.If your answer to Question 1 is yes, what further investigations should have been undertaken and would earlier intervention have altered the course or final outcome of the current condition? Please explain your answer.
I am of the opinion that the further investigation should have been a full glucose tolerance test. I am sure this would have shown some level of impaired glucose handling if not full blown diabetes and therefore dietary advice and exercise advice would have needed to be handed out. We know when a person maintains ideal body weight and reasonable exercise, they can defer the onset of diabetes mellitus for many years, perhaps even ten years beyond the time it would have occurred otherwise. The explanation for this is that maintaining correct body weight and doing frequent exercise together with adjusting dietary intake of unrefined sugars does reduce the eventual conversion to diabetes, ie glucose intolerance to the level of needing medication. The longer that high blood sugars go uncontrolled the worse is the cumulative effect of creating damage to blood vessels and hence all organs of the body in particular the eyes, kidneys, liver and nerves.
3.Does Mr Bean currently suffer from diabetes and if so, is this condition related to any failure to diagnose and treat the fasting blood sugar levels?
Based on Mr Bean’s testimony to me and letters enclosed with this request, there is evidence that he does in fact currently have diabetes mellitus. He informs me that he is currently using insulin as well as taking ‘Diaformin’ tablets, ie Yes, therefore he does have diabetes.
The relationship of this disease in regard to failure to diagnose and treat his blood sugar levels in 1982 or 1983, is significant in that should he have become sufficiently aware of his diabetic tendency at that stage he would have presumably been given adequate dietary and weight management advice together with exercise advice which should have deferred the onset of his diabetes significantly.
I doubt that it would have changed the fact that now in 2013 he is in fact significantly diabetic requiring insulin and tablets but it would possibly have reduced the duration that he would have had high blood sugars affecting his blood vessels etc.
4.What effect would the blood sugar levels have had on Mr Bean’s ability to function?
I am of the opinion that the recorded blood sugar levels in the 1980s per se would not majorly have altered Mr Bean’s ability to function which I presume means his function while in the military in the 1980s but should he have in fact had impaired glucose management/handling within his body, he would perhaps have been metabolically less robust than his colleagues with normal blood sugars and the level of effort tolerance would have possibly been reduced. This is therefore a possibility at the time but the absolute probability of it is relatively low but in reality is unknown.
5. Please provide any further comments you consider relevant to this claim.
I note it is unfortunate that Mr Bean has developed significant weight gain and is now over 96 kg. He is also smoking which is deleterious to the diabetic status and major blood vessels. He does fortunately have a normal blood pressure currently and it is indeed fortunate that he does not have any obvious peripheral manifestations of the diabetes such as nerve damage by way of lack of sensibility of his toes or reduction of the apparent blood flow there in that his toes were pink and hair growth not diminished. The microvasculature is usually maximally affected and that [sic] as he has good circulation in his toes with no neuropathy and apparently his ophthalmologist is happy with his retinae I am of the opinion that his diabetes was not particularly severe prior to 1998 when first diagnosed.
…” (original emphasis) (T27)
Dr Hall provided a supplementary report, dated 16 January 2014, to the DVA which states as follows:
“ …
This is in reply to your request of 3 December 2013 for a supplementary report regarding Mr David Michael Bean, and my report on Mr Bean of 12 July 2013.
In reply to the specific questions in your correspondence:
1.In answer to question one ‘Do you consider that the fasting blood sugar levels in the 1980s should have prompted further medical investigations? Please explain your answer’ – you have responded ‘Yes.’
Would you now advise whether in your medical opinion had further medical investigations been carried out at the time would Mr Bean [sic] still have gone on to develop diabetes?
Referring to my original report on page 2 under ‘Initial/Early Treatment Received’ I quote that he stated that in October 1983 when he was in Heidelberg Hospital (Victoria) he had a blood sugar level of 6.9 (mmol/L). The vexed question of whether he was in fact a diabetic is unknown at that point in time. Referring to various sources on the assessment of diabetes I refer in particular to a World Health Organisation pamphlet ‘Definition and Diagnosis of Diabetes Mellitus and Intermediate Type Hyperglycaemia’ (2004) where the definition of the types of diabetes mellitus was put into four groups by this report. The most obvious one is Type 1/early onset diabetes which usually occurs under the age of 25 which he clearly did not have.
The second group was that of diabetes Type 2 which is associated with an impaired glucose management and on page 21 of the document the chapter is headed ‘How should impaired fasting glucose be defined?’ There is a long discussion on the concern of an individual finding of raised blood glucose level but the standards in this document which is current for 2003/2004 onwards is that an impaired glucose level on fasting glucose of greater than 7.0 mmol/L is considered impaired glucose tolerance but consideration is given for incidental fasting glucose findings of >6.1 mmol/L and/or 7.0 mmol/L is considered suspicious of impaired fasting glucose levels [sic].
However the considered criteria is that on a glucose tolerance test or what is otherwise known as an oral glucose tolerance test (OGTT) the two-hour level of blood glucose per this test should reach about 11.1 mmol/L to be diagnostic of impaired fasting glucose metabolism ie diabetes.
Noting that these criteria are more modern and that the considerations in the ‘1980 world’ is that a level of >8.0 mmol/L was considered diabetic and impaired glucose tolerance was diagnosed as a level of 8.0 or greater in the fasting situation and probably greater than 11.0 mmol/L during a two-hour oral glucose tolerance test [sic].
The article also goes on to discuss that when fasting glucose levels are greater than 6.9 are [sic] in a group defined as ‘impaired fasting glucose persons’ the finding is that nearly half have an isolated impaired fasting glucose level on a single test but not true impaired glucose tolerance and about a third have impaired glucose tolerance and about one-fifth have diabetes mellitus.
Also, in one study known as the DECODE study an incidence in the prevalence of isolated impaired fasting glucose levels was found to be in the order of 5.2% in 30 to 39-year-old men and 10% in 50 to 59-year-old men. My original answer indicated that in my opinion the raised blood glucose level found in 1982/1983 was merely a flag to index a suspicion this man could have diabetes mellitus or at least impaired glucose metabolism.
Thus my consideration that Mr Bean should have been further medically assessed stands.
2.Would you also please advise whether Mr Bean’s diabetes condition is worse today than it would have been, as a result of the failure to diagnose and treat his condition in the 1980s?
We have from his commentary and the records that he was diagnosed as being non-insulin dependent diabetic by Dr Murphy in 1998. He apparently commenced therapy with ‘Diaformin’ and was advised regarding diet and exercise around that time. Once again, there is no family history of diabetes and we have only information regarding his mother in this respect however there is an unconfirmed statement that a maternal grandmother was also diagnosed with Type 2 diabetes in her 70s. (No information is available on his father’s health.)
It is therefore uncertain whether Mr Bean did in fact have an impaired glucose metabolism in 1982 and whether this was merely a random finding of a raised blood glucose level in 1982 or was in fact a warning that he was likely to develop the diabetes. Blood sugar levels tend to be higher during illness and it is noted that he was in hospital when the finding of a raised blood sugar was noted in 1983.
Apparently persons of that age namely around 30 [sic] years of age do not often have a raised blood glucose level but in general studies 5% of the population do in fact have a blood glucose level classified as an ‘incidental fasting glucose’ finding greater than 6.1 or 6.9 mmol/L which varies depending on which author and article one is referring to.
Therefore it is largely conjecture as to whether Mr Bean would have been able to be diagnosed as a diabetic in 1982 or not.
I note he was employed at other times by various television companies and also employed at the Darwin Hotel. I would wonder if there is any data relating to pre-work medical assessments for these positions and it would appear there are a number of practitioners in his lifetime beyond 1982 who would also have had the chance to possibly explore his diabetic potential.
It is noted that Mr Bean was not particularly overweight in the 1980s but certainly in later years his weight had gone up significantly and at the time I examined him his weight was 96 kg. Had he not gained weight at some point in time after he left the military I would suspect that his diabetes/impaired glucose metabolism would have been delayed for a number of years and perhaps he might not have been diagnosed as a diabetic in 1998 or even today.
Therefore it is uncertain whether he might have actually been able to be diagnosed as a diabetic in the 1980s or merely have had the borderline blood glucose level found and without an oral glucose tolerance test being performed at the time it is really uncertain whether the diagnosis could have been made.
However I am of the suspicion that the diabetes found in 1998 by Dr Murphy probably had only been in existence for a few years at that time though we have no evidence either way on that matter.
It is also noted that he consumed fairly large amounts of ethanol while in the military but there does not seem to be any reports of him having had attacks of pancreatitis which is also a causative factor in developing diabetes mellitus.
It is noted he stated that he saw an ophthalmologist about a month prior to my assessing him in 2013 and he said his eyes were in good order. The duration of significantly raised blood sugar leads to progressive retinal damage and the fact that his eyes were considered good in 2013 would tend to indicate that his blood sugars had been fairly satisfactory up until close to that time. There is a graph published in the medical literature that shows that when the blood sugar levels exceed 11mmol/L there is a rising incidence of retinopathy (ie abnormal features in the blood vessels within the eye seen by ophthalmologists) of a rising J curve pattern.
I am therefore suspicious that his blood sugars were not particularly above 11 mmol/L for any significant amount of time, ie no more than perhaps some 12 months in view of his apparently good findings of no ophthalmological problems that he reports.
I have therefore come to the opinion that yes he could have been diagnosed as a diabetic much earlier ie at some time between 1982 and 1998 but the significantly raised level of blood sugar needed to cause organ damage was not really in evidence in view of his good ophthalmological findings. Ophthalmological findings of retinopathy tend to correlate fairly strongly with the risk of cardiovascular disease and obviously smoking increases the risks of cardiovascular disease significantly but does not have any direct effect on retinopathy. Therefore his apparently good retinal status mitigates any significant longstanding untreated diabetes mellitus.
Therefore in the final analysis I am of the opinion that the failure to diagnose diabetes in the 1980s if it had been there the effects on him have been minimal and perhaps less than a 5% worsening of his longevity based on current findings and reports of his health in around July 2013 [sic].
…” (original emphasis) (T28)
At the request of the respondent’s solicitors, Dr Hall prepared a report, dated 24 September 2014, which states as follows:
“ …
Thank you for your letter requesting further opinion regarding Mr Bean’s (SRCA) Military Rehabilitation and Compensation Commission dispute.
I refer you to my previous reports of 2 August 2013 and 14 [sic] January 2014 to the Department of Veterans’ Affairs.
Referring to your letter 1 September 2014 I confirm my speciality is appropriate to conduct this assessment excluding sections specified in this report.
The contents of this report are based on my previous reports and any further facts obtained from further reading of the current supplied enclosures.
[Dr Hall then set out the enclosures and background information provided to him by the respondent’s solicitors, and continued:]
Schedule of Questions:
(a)The Applicant has been prescribed various medications such as, Seroquel, Largactil, olanzapine and Stemetil.
(i)Is there any medical or scientific research which identifies a link between the use of anti-psychotic medications and the onset, aggravation or acceleration of blood sugar glucose impairment? If so, please identify what the research is?
(ii)Does that research make any conclusions about the strength of that link? In particular, does it suggest that the link is possible or probable (probable meaning more likely than not)?
(iii)Does that research make any conclusions about whether the strength of any link is affected by a dose-response relationship?
These three questions essentially fall outside my area of expertise and are probably best answered by a specialist pharmacologist.
My general understanding is that certain drugs especially those described as atypical antipsychotic drugs which include Seroquel, olanzapine and others not mentioned in your question do have risk of triggering hyperglycaemia (my reference is the MIMS Annual, a large volume Published by MIMS Australia covering virtually all therapeutic agents available in Australia).
I found no direct reference to specific problems from Largactil or Stemetil but caution in their use in diabetic situation is advised. In addition I note from previous documents that he had one time been on Avanza in around 2002 which apparently does not carry the same risks as the drugs Seroquel and olanzapine.
(b)Do you consider that the Applicant’s family history of diabetes could have been a contributing factor to the onset of the Applicant’s Diabetes Mellitus Type II condition?
(i)Please identify the strength of that contribution and whether you consider it probable or possible?
It is well reported in multiple medical articles and textbooks that there is a genetic link by way of the family history of diabetes mellitus sufferers and the incidence of such in their offspring.
I was given information by Mr Bean that his grandmother had diabetes mellitus but I was not informed that his mother had such which is reported elsewhere in documents now provided.
It would appear that if a mother is affected there is roughly a 25% life long chance of an offspring developing diabetes mellitus but environmental factors particularly those of diet and weight control are highly contributory towards the development of such diabetes mellitus and if controlled the disease may well be delayed many years if not completely.
There is no reported gene that is known to specifically indicate the inheritance of Type 1 diabetes mellitus. Some reports quote rates as low as a 10% chance of a child developing diabetes mellitus where a first degree relative has such disease.
Non-insulin dependent diabetes ie type 2 is again a vexed problem with no clear-cut chromosomal inheritance being known. There is consideration that on the 6th chromosome there are a number of loci which do have associations with increased risks of Type 2 diabetes. It has also been noticed that diabetes can develop in the absence of any genetic determinants.
Diabetes is now generally considered to be an autoimmune disease. It should therefore be noted that the family history of Mr Bean could be contributory particularly if two sequentially related family members were involved but the strength of such consideration is fairly low in the order of 10% to perhaps 15% risk factor, ie it is therefore less than probable that he would accordingly develop diabetes if his first degree relative was affected.
(ii)If you consider there is a link established with respect to the use of anti-psychotics, please rate the relative importance of that as compared to the family history of diabetes.
As in question (a) this falls outside of my field of expertise and I suggest a Pharmacologist or Endocrinologist be requested to answer this.
[The timing when he was exposed to antipsychotics may also have a bearing on this and it appears that he did not take antipsychotics particularly before 2002.]
(c)Please review the various blood sugar glucose tests. Does this cause you to alter your opinion previously provided in regards to the date of onset of the Applicant’s Diabetes Mellitus Type II condition? Please explain.
As expressed in particular in my second report of 14 [sic] January 2014 the importance of an exact level of blood sugar and the diagnosis of diabetes has been altered over the years and based on the 2003/2004 World Health Organisation Booklet ‘DEFINITION AND DIAGNOSIS OF DIABETES MELLITUS AND INTERMITTENT HYPERGLYCAEMIA’, the presence of a blood sugar level between 6.1 and 6.9 were suggestive of possibility of diabetes being present but a glucose tolerance test is the final defining criterion/situation on which diabetes can in fact be diagnosed.
Again I point out that a level 6.9 should have been a flag to the presence of a person suffering multiple infections of the skin to have had a glucose tolerance test done to clarify the situation, even back in the 1980s [sic].
(d)The Applicant claims that the failure to perform oral glucose tolerance tests on him during his service between 1981 and 1984 led to his Diabetes Type II condition developing:
(i) Do you agree with his contention? Please explain.
I expressed most of my opinion regarding this in my second report of 14 [sic] January 2014 in that should a glucose tolerance test have been performed the possibility of it being positive for diabetes mellitus based on there being a warning that he was found to have a blood sugar level of 6.9 does not mean he would definitely have been found to be diabetic. In order to make the diagnosis of diabetes mellitus the two-hour blood glucose level during a GTT needs to rise to 11.1 mmol/L.
Referring back to the same document (in c above) it was found that when fasting glucose levels are greater than 6.9 in a group who are suspected of having impaired fasting glucose levels that [sic] nearly half have ‘impaired fasting glucose’ on a single test but not true ‘impaired glucose tolerance’ impairment and about one third have impaired glucose tolerance with about one-fifth having ‘diabetes mellitus’.
Thus on the basis of probability it is possible he could have been diabetic if only one-fifth ie 20% are in fact found to be diabetic when followed up with the glucose tolerance test the probability is however less than 50%, namely a 20% risk thereto [sic].
…” (original emphasis) (part of Exhibit R1)
Dr Hall’s letter of 1 December 2014, which is addressed to the respondent’s solicitors, states as follows:
“ …
Thank you for your request for clarification of my report on Mr David Bean.
As per my discussion on 28 November 2014 with Ben Dube, of Sparke Helmore Lawyers, I now clarify the following from my report.
In my first report of 2 August 2013 it has come to light that there are errors on page 3 under Present Treatment, in that the first sentence should read ‘He states he sees Dr M Murphy of Midland and has done so since 1998 and more recently a diabetic specialist Dr M Bhagat’.
On page 6 under SUMMARY AND ASSESSMENT in the fourth paragraph starting ‘He is concerned about … in October 1982’ should read 1983. All the references to 1982’s need to be corrected to 1983.
…” (original emphasis) (Exhibit R2
In his oral evidence-in-chief Dr Hall was asked to assume that the applicant was first diagnosed with type 2 diabetes in October 2004 (rather than in 1998, as stated in his reports of 2 August 2013 and 16 January 2014) and was asked whether, on that assumption, he would alter any of the opinions expressed in those reports. Dr Hall acknowledged that he had mistakenly recorded the timing of the onset of the applicant’s diabetes. He said that the later date (2004 instead of 1998) of the onset of the applicant’s diabetes “would, to some degree, decrease the assessment of the potential damage that he might have suffered with the delayed diagnosis”.
In cross-examination Dr Hall was asked to explain the difference between impaired glucose tolerance and diabetes type 2. He said that there is a “watershed zone” where some people will be found to have slightly-raised glucose levels but, on re-testing, they will be found to be normal, whereas a small percentage will be found to be “genuinely diabetic”. He described diabetes as “a continuum from real normal to very severe type 2”.
In response to questions from the Tribunal, Dr Hall said that impaired glucose tolerance is a “warning flag” for the potential onset of diabetes and is used in epidemiological studies for preventive purposes. He added that impaired glucose tolerance is not itself classified as a physical ailment.
The Relevant Legislation
The relevant provisions of the SRC Act, as in force at all material times, are as follows:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
5 Employees
(1) In this Act, unless the contrary intention appears:
…
employee means:
(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)a person who is employed by a licensed corporation.
…
(2) Without limiting the generality of subsection (1):
…
(b)a member of the Defence Force; …
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted …, by the person’s performance of duties as such a member of the Defence Force …
…”
Pursuant to ss 14(1) and 147(1) of the SRC Act, the respondent is “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
The Issue
Although the applicant reiterated that he was claiming for the failure on the part of the Army medical officers to test him for impaired glucose tolerance during his service, in substance his claim is that his condition of type 2 diabetes is compensable under the SRC Act by reason of such failure to test him for impaired glucose tolerance.
It is common ground that the applicant suffers from type 2 diabetes mellitus. Accordingly, the issue for the Tribunal’s determination is whether the applicant’s type 2 diabetes mellitus is an “injury” (as defined in s 4(1) of the SRC Act) in respect of which the respondent is, pursuant to ss 14(1) and 147(1) of the SRC Act, liable to pay compensation to him
Analysis
The relevant physical condition
As previously mentioned, it is common ground that the applicant suffers from type 2 diabetes mellitus. It is also common ground that the applicant was first medically diagnosed with that condition on 17 October 2004.
As regards the date on which the applicant contracted type 2 diabetes mellitus, there is relevant medical evidence before the Tribunal in the form of the results of three blood glucose tests during the period of the applicant’s Army service, namely:
·8 October 1982 5.6 MM/L;
·12 May 1983 5.5 MM/L;
·10 October 1983 6.9 MMOL/L. (T20, pp 72, 98, 103)
The Tribunal notes that all of those results fell within what was then considered to be the normal range and that no diagnosis of type 2 diabetes mellitus was made at that time. The Tribunal notes, furthermore, that, according to the applicant’s evidence, the test performed on 10 October 1983 was not a “fasting” test, and it follows, in the Tribunal’s opinion, that the result of 6.9 MMOL/L would not have been regarded as reliable for the purpose of determining whether a diagnosis of type 2 diabetes mellitus should be made at that time. Having regard to the abovementioned evidence (being the only blood glucose test results in the period of the applicant’s Army service which are in evidence before the Tribunal), the Tribunal is not satisfied that the applicant was suffering from type 2 diabetes mellitus during the period of his Army service. Furthermore, there is no evidence before the Tribunal on the basis of which it could be satisfied that the applicant was suffering from type 2 diabetes mellitus in the period up until 17 October 2004 when such a diagnosis was first made by a medical practitioner.
On the basis of the medical evidence before it, the Tribunal finds that the applicant suffered or contracted type 2 diabetes mellitus on or about 17 October 2004 (“the condition”).
Is the condition a compensable “injury” under s 14(1) of the SRC Act?
In terms of the definition of “injury” in s 4(1) of the SRC Act, the Tribunal is satisfied that the condition is neither “an injury (other than a disease)” nor “an aggravation of a physical … injury (other than a disease)”, within the meaning of paras (b) and (c) of that definition.
The matter for the Tribunal’s determination, therefore, is whether the condition is a “disease”, within the meaning of para (a) of the definition of “injury” in s 4(1) of the SRC Act.
The Tribunal will be satisfied that the condition is a “disease”, within the meaning of para (a) of the definition of “injury” in s 4(1) of the SRC Act, if it meets the definition of “disease” in s 4(1) of that Act.
In terms of the definition of “disease” in s 4(1) of the SRC Act, there can be no dispute that the condition is an “ailment” (as defined in s 4(1)), and thus an “ailment suffered by [the applicant]”, within the meaning of para (a) of that definition.
Although it may be inferred from Dr Hall’s reports of 2 August 2013 and 16 January 2014 that it is possible that the applicant had impaired glucose tolerance in the period 1982–1983 (having regard to his blood glucose test results of 5.6 MM/L, 5.5 MM/L and 6.9 MMOL/L referred to in paragraph 35 above), a glucose tolerance test was not then administered to the applicant, and, in the absence of any such test results indicating that the applicant then had impaired glucose tolerance, the Tribunal cannot be satisfied, on the balance of probabilities, that he had impaired glucose tolerance at that time. In any event, the Tribunal accepts Dr Hall’s evidence that impaired glucose tolerance is not itself a physical ailment. Accordingly, in the Tribunal’s opinion there can be no suggestion that the type 2 diabetes mellitus suffered by the applicant in October 2004 constituted an “aggravation of [an] ailment” suffered by the applicant, within the meaning of para (b) of the definition of “disease” in s 4(1) of the SRC Act.
Accordingly, the critical matter for the Tribunal’s determination is whether the condition “was contributed to in a material degree by the [applicant’s] employment by the Commonwealth”, within the meaning of the definition of “disease” in s 4(1) of the SRC Act.
Pursuant to s 5(2) of the SRC Act, the applicant’s employment by the Commonwealth is, for the purposes of that Act, to be taken to be constituted by his “performance of duties as … a member of the Defence Force”.
The applicant’s case, however, is not based on his performance of duties as a member of the Army in 1981–1984 or matters ancillary or incidental thereto; it is instead based on his claim that, during the period of his Army service, Army medical officers failed to test him for impaired glucose tolerance, despite the myriad infections and symptoms he had been suffering and of which they were aware and which may have been indicative of his having that condition, and that that failure resulted in his ultimately suffering type 2 diabetes mellitus. He summarised his contention as follows:
“ I believe if the blood test had been done when I was in the Army I would have either been sent to a non-field force unit and would have received the medical treatment and life style advice that would have prevented the impaired glucose tolerance from developing into type 2 diabetes.”
The respondent, nevertheless, was prepared to accept the applicant’s abovementioned contention regarding failure on the part of Army medical officers to arrange for him to be tested for impaired glucose tolerance during his period of Army service as related to his “employment by the Commonwealth”, within the meaning of the definition of “disease” in s 4(1) of the SRC Act. That concession by the respondent was based on Johnston v The Commonwealth (1982) 150 CLR 331 in which the High Court of Australia held that a failure to diagnose the presence of a disease suffered by a serving member of the Royal Australian Navy, and thereafter to provide appropriate treatment, in the course of his service was directly related to his employment by the Commonwealth. In that case the applicable legislation was s 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (a predecessor of the SRC Act) which provided for the payment of compensation in circumstances where an employee contracts a disease or suffers an aggravation thereof to which the employee’s employment by the Commonwealth was a contributing factor. The Tribunal notes that s 7(2) of that Act, relating to the meaning of “employment by the Commonwealth” in the case of a member of the Defence Force, was in terms similar to the relevant provisions of s 5(2) of the SRC Act set out in paragraph 31 above.
Accordingly, the Tribunal will proceed on the basis that the failure by Army medical officers to arrange for the applicant to be tested for impaired glucose tolerance during his period of Army service involved his “employment by the Commonwealth”, within the meaning of the definition of “disease” in s 4(1) of the SRC Act.
The question for the Tribunal’s determination, therefore, is whether the applicant’s type 2 diabetes mellitus, suffered by him on or about 17 October 2004, “was contributed to in a material degree by [his] employment by the Commonwealth”, including the failure by Army medical officers to arrange for him to be tested for impaired glucose tolerance during his period of Army service. If that question is answered in the affirmative, the applicant’s type 2 diabetes mellitus will be a “disease”, as defined in s 4(1) of the SRC Act, and a compensable “injury” under s 14(1) of that Act.
The Tribunal notes the letters of Dr Bhagat (set out in paragraphs 16-17 above) in which reference is made to the applicant’s suffering recurrent skin infections, respiratory infections, thirstiness and headaches, in the context of blood sugar test results of 5.6 and 6.9, during his Army service, and to his not having been given an oral glucose tolerance test at that time. The Tribunal also notes that, in his letter of 10 April 2013 to the DVA, Dr Bhagat refers to “a missed opportunity to diagnose likely diabetes at that time”, whereas, in his letter of the same date to Dr Murphy, Dr Bhagat comments that it “certainly seems possible that diabetes may have been the underlying cause” (emphasis added). Likewise, Dr Hall, in his reports of 2 August 2013 and 16 January 2014, adverts merely to the possibility of the applicant’s having had impaired glucose tolerance or type 2 diabetes mellitus during his Army service. The Tribunal is not satisfied, having regard to Dr Bhagat’s letters and Dr Hall’s reports, that it was probable (that is, likely) that the applicant had impaired glucose tolerance or type 2 diabetes mellitus during his Army Service.
The Tribunal notes, furthermore, that the pathology reports of 8 October 1982 and 12 May 1983 which record the applicant’s blood glucose level as 5.6 MM/L and 5.5 MM/L, respectively, note that the reference range (namely, 4.0–11.0 MM/L) referred to therein is for a “male aged 50”, whereas the applicant was 18–19 years of age when those tests were conducted. Unfortunately, Dr Hall was not asked to comment on that matter in his oral evidence but the Tribunal infers, from Dr Hall’s reference to the pathology report of 8 October 1982 in his abovementioned reports without comment on that matter, that he regarded the test result recorded in that pathology report as valid for the applicant. Accordingly, the Tribunal is satisfied that the abovementioned blood glucose test results were valid for the applicant.
Having regard to the whole of the evidence before it, the Tribunal is not satisfied, on the balance of probabilities, that the applicant’s type 2 diabetes mellitus, which he suffered on or about 17 October 2004, “was contributed to in a material degree”, or at all, by the failure on the part of Army medical officers to arrange for him to be tested for impaired glucose tolerance during his Army service in the period 1981–1984, or otherwise by his Army service. The Tribunal is not so satisfied, having regard to the following considerations:
·the Tribunal, having regard to the three abovementioned blood glucose test results obtained during the applicant’s Army service, and in the absence of any glucose tolerance test, is not satisfied, on the balance of probabilities, that the applicant had impaired glucose tolerance or type 2 diabetes mellitus during his Army service;
·the Tribunal is not satisfied, on the balance of probabilities, that, had a glucose tolerance test been administered to the applicant during his Army service, impaired glucose tolerance or type 2 diabetes mellitus would have been demonstrated or indicated;
·there is no medical evidence before the Tribunal on the basis of which it could be satisfied, on the balance of probabilities, that the applicant had impaired glucose tolerance or type 2 diabetes mellitus in the period between the end of his Army service in March 1984 and October 2004 when he was first medically diagnosed with type 2 diabetes mellitus.
The Tribunal determines, therefore, that the applicant’s type 2 diabetes mellitus is not a “disease” as defined in s 4(1) of the SRC Act, and, accordingly, is not a “disease” within the meaning of para (a) of the definition of “injury” in s 4(1) of the SRC Act. It follows that that condition is not an “injury”, as defined in s 4(1) of the SRC Act, and is, therefore, not a compensable “injury” under s 14(1) of that Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ................[sgd D Brodie]..............................................
Administrative Assistant
Dated 18 December 2014
Date of hearing 2 December 2014 Applicant In person (unrepresented) Counsel for the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Contract Formation
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Unjust Enrichment
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