Debnam and Military Rehabilitation and Compensation Commission (Compensation)

Debnam and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 470 (12 April 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0161
Re:Raymond Debnam
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President I R Molloy
Date:12 April 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Deputy President I R Molloy
CATCHWORDS
COMPENSATION - claimed neuralgia condition – whether neuralgia condition caused by surgery performed – medical evidence - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Deputy President I R Molloy
12 April 2017

This is an application to review a decision made on 6 November 2015 (“the reviewable decision”)[1] affirming a determination dated 24 April 2014.[2]
[1] Exhibit 1, T85.
[2] Exhibit 1, T77.
The determination denied liability to pay compensation to the applicant, Mr Debnam, under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for his claimed neuralgia condition secondary to his accepted aggravation of pan sinusitis condition.
I set out below the background to Mr Debnam’s claim, the issues relevant to my decision, and my reasons. I have concluded that the reviewable decision should be affirmed.
BACKGROUND
Mr Debnam was born in 1945. He served with the Royal Australian Air Force from 1963 until retirement in 1991, having attained the rank of Wing Commander. He returned to full-time service under contract in 1995-6.
Mr Debnam describes a long history of sinusitis, which he says was first diagnosed in 1973.[3] He has undergone multiple operations for this condition with mixed results.[4]
[3] Exhibit 9, paragraph 3.
[4] Exhibit 5, Report of Dr Frank W. Anning, dated 26 May 2016.
On 8 May 1990, the respondent accepted liability to pay compensation to Mr Debnam under the SRC Act for “aggravation of pan sinusitis condition” (“the compensable injury”). The date of injury was determined to be 1974.
On 18 July 2006 Mr Debnam underwent elective surgery, performed by Dr Don Laing, an ear, nose and throat surgeon, being a bi-lateral Lothrop’s procedure to open up the frontal sinuses.[5]
[5] Exhibit 1, T28 & T30.
In the early history of Mr Debnam’s claim there appears to have been some doubt concerning precisely what procedure Dr Laing had undertaken in 2006. I should say that by this time Dr Laing had retired from practice and his notes were not available. I am informed he has subsequently died.
At the hearing before me, it appeared to be accepted that the procedure, as Mr Debnam contended, included the use of mini-trephines which were inserted into Mr Debnam’s skull through small holes drilled into his forehead. The purpose was to facilitate post-surgery flushing of the frontal sinus cavities using mini-catheters.
For the removal of doubt, I record that I am satisfied on the evidence that the procedure performed by Dr Laing in 2006 did include the insertion of mini-trephines.[6]
[6] See Exhibit 1, T42, report of Dr Ryan Somerville, 16 June 2009; Exhibit 5, Report of Dr Frank W. Anning, 26 May 2016, page 3; and Exhibit 9, Mr Debnam’s statement, page 1.
ISSUES
Mr Debnam’s claim is that due to the procedure performed by Dr Laing he suffers from a neuralgia condition for which he is entitled to compensation under the SRC Act.
The principal factual issues are whether Mr Debnam has the claimed neuralgia condition and, if he has, whether it is due to the surgery performed by Dr Laing in 2006. If these questions are each answered in the affirmative, then further factual and legal issues arise.
For the reasons set out below I am satisfied that Mr Debnam does have a neuralgia condition. I am not satisfied, however, that it is due to the surgery performed by Dr Laing.
Neuralgia condition
The respondent disputes that Mr Debnam has the claimed neuralgia condition. The respondent relies in particular on the reports and oral evidence of Dr Frank W. Anning, ear, nose and throat surgeon.
Mr Debnam relies, in particular, on the reports and oral evidence of Dr Michael Walsh, neurologist, as well as on his own written and oral evidence.
Each party also relies on various other medical reports and documents. I will refer to them briefly. They are relevant not only as to the nature of Mr Debnam’s condition, but also in determining its cause.
On 26 July 2006, that is eight days after the surgery, Dr Laing reviewed Mr Debnam and reported he had coped very well and there had been no post op pain.[7]
[7] Exhibit 1, T30.
Dr Laing reviewed Mr Debnam on 9 August 2006, and reported that he was doing well.[8]
[8] Exhibit 1, T31.
Dr Laing next reviewed Mr Debnam on 31 August 2006, and reported Mr Debnam “felt that his left frontal sinus was blocked.” He wondered about the existence of foreign material or fungus, and said: “Otherwise his nose is not looking bad.”[9]
[9] Exhibit 1, T33.
Mr Debnam says that after the surgery performed by Dr Laing, he reported the presence of pain in the frontal sinus regions of his face, particularly the right side. He says that Dr Laing, and his general practitioner, Dr Karin Storm, treated this as frontal sinus pain.
This does not appear from any of the above reports from Dr Laing, which were all to Dr Storm.
There is a claim form on behalf of Mr Debnam, dated 31 October 2007, signed by Dr Storm, in respect of a claimed disability of gastro-oesophageal reflux disease.[10] It includes a reference to “tension headaches” and “dull constant pain”.
[10] Exhibit 1, T38.
In April 2009, Mr Debnam attended the Emergency Department, Caloundra Health Service. The clinical problem/diagnosis was described as frontal sinusitis. Relevant clinical findings included “tender R frontal/maxillary”.[11]
[11] Exhibit 1, T40.
On 8 May 2009, a general practitioner on the Sunshine Coast completed a Medical Impairment Assessment. It listed, relevantly, Facial pain – Fluctuating in severity, Frequency Permanent, Duration Past 20 + years.[12] Mr Debnam was also referred to an ear, nose and throat surgeon.
[12] Exhibit 1, T41.
On 16 June 2009, Dr Ryan Somerville, ENT surgeon, reported,[13] Mr Debnam “continues to have frontal pain which is most days and it tends to be variable in its intensity… Mr Debnam’s pain seems like it could possibly be neuralgic type pain which might be treated best with a trial of some Endep… Certainly it is only a tentative diagnosis, but I am unable to find any sinus cause for his pain.”
[13] Exhibit 1, T42.
This apparently prompted Mr Debnam to apply to the Veterans’ Review Board to review his accepted sinus condition. He also wrote to the Military Rehabilitation and Compensation Group on 25 June 2009 enclosing a copy of Dr Somerville’s report.[14] He said: “After examining my CT scan images Dr Somerville advised that nothing further could be done surgically for my condition and that I was suffering from nerve pain as a complication of my sinus surgery and I would probably have to consult a neurologist.”
[14] Exhibit 1, T69.
I note that Dr Somerville’s report included only a tentative diagnosis, and did not mention any cause.
The next significant event is that Mr Debnam saw Dr Adam Blond, ENT consultant, on
[15] Exhibit 8, Mr Debnam’s Chronological Report.
[16] Exhibit 1, T44
29 April 2011.[15] In a report of that date, Dr Blond said “there are no signs on his CT scan that would suggest this right-sided pain that he is experiencing is due to sinusitis. It is possible that this is a neuralgia associated with a previous frontal trephine. It is also possible that it is some sort of general trigeminal neuralgia. I would recommend that he has a neurological review as this could be a cluster-type headache or some other abnormality.”[16]
On 24 April 2012, Dr Tony Moor, Mr Denham’s then general practitioner, referred him to Dr Walsh. Dr Moor said Mr Debnam “has experienced long standing R supraorbital pain, which to me is neuropathic in nature, and he relates this to a surgical intervention he had years ogo (sic), which was a percutaneous drainage of his frontal sinus.”[17]
[17] Exhibit 1, T45.
In a report dated 16 August 2012,[18] Dr Walsh, neurologist, said of Mr Debnam “he has some pain over his right eye which is thought to be a neuralgic pain. He apparently had ear, nose and throat surgery and recalls having pain above his right eye after this. The pain has apparently become worse over the last couple of years.”
[18] Exhibit 1, T46.
Dr Walsh referred Mr Debnam to Dr Tim Sullivan, an oculoplastic surgeon, “to see whether local anaesthetic could be placed in the nerve to determine whether this is the actual cause of his problem.”
Dr Sullivan, in a report dated 3 October 2012,[19] said Mr Debnam stated that since the bilateral frontal sinus surgery “he has had bilateral orbital pain centered (sic) in the region of the supra-orbital notch and nerve bilaterally.”
[19] Exhibit 6.
The results of Dr Sullivan’s investigation are taken up by Dr Walsh in his report dated 7 January 2013:
“I note that he saw Dr Sullivan who did inject his supraorbital fissure on the right, which resulted in some improvement in his symptoms. … I think therefore, given that he gives a history of the symptoms remarkably improving with injection in his supraorbital region as well as the fact that on history he had the onset of symptoms after his sinus surgery, it would appear that it was precipitated by this, though of course the only evidence I have for this is the patient’s history.” [20]
[20] Exhibit 1, T 48.
Mr Walsh adds, in a report dated 1 August 2016,[21] that Mr Debnam apparently told Dr Sullivan that both supraorbital nerves were actually uncomfortable and Dr Sullivan apparently injected both.
[21] Exhibit 3.
In a response to the Department of Veterans’ Affairs, dated 10 March 2014,[22] Dr Walsh said:
“I certainly saw Mr Debnam from 2012 to 2013. At that point, he told me he developed supraorbital pain after an ear, nose and throat procedure. I certainly believed it was a neuralgic pain and appeared to be related to the supraorbital nerve in his supraorbital notch. I, therefore, have no problems in saying that this man has neuralgic pain from his supraorbital notch. It is his report which states that it started after the surgery for his sinus condition so I can only go by his report.”
[22] Exhibit 1, T51 & T78, 256.
Dr Walsh, in later reports, and in oral evidence, continued to maintain that Mr Debnam suffers from a neuralgia condition. In a report dated 16 June 2016, he said he still thought the original diagnosis of supraorbital neuralgia, in 2012, was “a reasonable one”. He also said, however, Mr Debnam’s presentation has changed, and his whole presentation is highly unlikely to be an isolated right supraorbital neuralgia at this point.
In oral evidence, in answer to questions from Mr Debnam, Dr Walsh was unequivocal. He said in 2012 he believed Mr Debnam had supraorbital neuralgia, and still believed he has supraorbital neuralgia.
As I have said, the respondent placed considerable reliance on the evidence of Dr Frank Anning. In a report dated 26 May 2016, Dr Anning said the applicant’s current main problem was bilateral frontal headaches, which are constant in nature and last from hours to days.
Dr Anning said the pain Mr Debnam was experiencing did not fit his understanding of neuralgia, which is mostly unilateral, consisting of sharp lancinating pains of fairly short duration. Dr Anning did not consider the characteristics of Mr Debnam’s pain really are those of neuralgia.
Dr Anning also thought it most unlikely Dr Laing would damage the supraorbital nerves doing a mini trephine. He also said that if the supraorbital nerves were damaged then the first symptoms would have been numbness and anaesthesia over the distribution of these nerves, but that Mr Debnam did not complain about this.
On all the evidence, on the question whether Mr Debnam suffers from supraorbital neuralgia, I prefer the opinion of Dr Walsh. In particular, I note that Dr Walsh, on his physical examination in 2012, found Mr Debnam was quite tender in his supraorbital notch which caused a “neuralgic type” pain across his forehead.
Dr Walsh referred Mr Debnam for the supraorbital fissure injection performed by Dr Sullivan. He noted that this resulted in some improvement to his symptoms. I also take into account that Dr Walsh is a neurologist, and that he has had the advantage of seeing Mr Debnam and reporting on his condition more or less regularly since 2012.
Dr Laing’s surgery
The respondent contends that, even if Mr Debnam were accepted as suffering from a neuralgia condition, there is no causal relationship between the surgery performed by Dr Laing in 2006. Reliance is placed on the report of Dr Anning, who said[23]:
“… The concept that Dr Laing, an experienced and senior surgeon and in fact one of the leaders of sinus surgery in this country, would damage the supraorbital nerves doing a mini trephine is highly unlikely.
“I also note that on 26 July 2006, Dr Laing notes that there is no post-operative pain. If the supraorbital nerves were damaged then the first symptom suffered would have been numbness and anaesthesia over the distribution of these nerves. Mr Debnam did not complain about this.”
[23] Exhibit 5, Report dated 26 May 2016.
Dr Anning also said that for bilateral neuralgia to be caused by damage due to a trephine on both sides at one time is extremely unlikely.
As stated above, Dr Walsh holds the view that Mr Debnam does have a neuralgia condition, but is non-committal on the cause.
In his response to the Department of Veterans’ Affairs, dated 10 March 2014[24], Dr Walsh said:
“It is his report which states that it started after the surgery for his sinus condition so I can only go by his report.”
[24] Exhibit 1, T51.
On 4 August 2015, Dr Walsh reported,[25]
“I reiterate my comments from the previous letter that the patient tells me that his supraorbital nerve discomfort occurred at the time of the operation.
I am not an ear, nose and throat surgeon and cannot easily explain the mechanism of injury of his supraorbital nerve during the operation because I certainly don’t believe trepanation through that point.
Dr Laing did not make mention in his reports of a supraorbital nerve palsy.
As a result, unfortunately, I am unable to provide you with an easy explanation for the mechanism of injury for the supraorbital nerve and Dr Laing did not note this in his letter, though I reiterate the fact that the patient claims that the onset of pain was at the time of the operation.”
[25] Exhibit 1, T52.
On 24 September 2015, Dr Walsh reported:[26]
“Mr Debnam tells me that there was a history of trepanation through the region of interest, his frontal sinus. I do note that he now tells me that both supraorbital regions are equally painful at this point.
Unfortunately, Dr Lang’s (sic) notes didn’t include the position of drains and if it is possible that, as Mr Debnam says, the drains did pass through his supraorbital region, it does raise the possibility that the injury to the supraorbital nerve did occur as a result of the drains.
As I reiterated in my previous statement, unfortunately given the time that has passed from the procedure, it is impossible to be absolutely clear but the patient is very clear in his report that the symptoms occurred at the time of the operation.”
[26] Exhibit 1, T53.
In his report dated 16 June 2016,[27] Dr Walsh said:
“When I first saw the patient he told me that he clearly remembered an association with the right neuralgia and the surgery, though I have always noted in my letters that I could not prove that and could only go on the patient’s comment.
… I cannot and have never been able to offer a cause and can only reiterate the patient’s report of causality. Over the years since 2012 it appears as if there has been a change in the pattern of symptoms, particularly to a more bilateral nature, which would go against the diagnosis of supraorbital neuralgia bilaterally from surgery.”
[27] Exhibit 2.
By report dated 7 September 2016,[28] Dr Walsh said:
“It is possible that if the trephines injured [Mr Debnam’s] supraorbital nerve it may have caused neuralgia.”
[28] Exhibit 4.
Mr Debnam is clearly convinced that his condition is due to the surgery performed by Dr Laing. He has believed this since 2009. It seems to follow from the tentative diagnosis of neuralgia by Dr Somerville in June of that year, although there was no mention in Dr Somerville’s report of any cause.
Mr Debnam says, “believing the nerve condition to be a direct result of his 2006 frontal sinus surgery”, in 2009 he applied for Veterans’ Review Board to review his accepted sinus condition, with neuralgia. He also wrote to the Military Rehabilitation and Compensation Group on 25 June 2009, seeking nerve pain be added to his accepted condition of chronic sinusitis with operations.[29]
[29] Exhibit 9, Mr Debnam’s statement, page 2.
Mr Debnam says he has not asserted Dr Laing touched or damaged the nerves directly, but submits he unintentionally damaged the supraorbital nerves as a consequence of bilateral drilling of holes and insertion of trephines through Mr Debnam’s supraorbital notch areas during his surgery on Mr Debnam’s frontal sinuses.[30] This he says may account for the delayed onset of supraorbital neuralgia symptoms.[31]
[30] Ibid, page 19.
[31] Ibid.
Mr Debnam says that Dr Walsh is mistaken when he says Mr Debnam reported the onset of frontal pain at the time of the operation. Mr Debnam says he reported pain after the surgery, and at no time has he said pain occurred at the time of the operation.[32] In answer to questions from Mr Debnam concerning the delayed onset of symptoms, Dr Walsh said: “Anything is possible in medicine.”
[32] Exhibit 9, Mr Debnam’s statement, page 10.
As I have said, there is no doubt that Mr Debnam is convinced that his condition is due to the surgery performed by Dr Laing. He is an earnest and effective advocate of that view. On all of the evidence, however, I cannot find it to be more than a possibility.
Mr Debnam contends that the surgery is the only known possible cause of his condition.[33] I am not satisfied that that is so. None of the medical experts employs that reasoning. None gives that evidence or draws that conclusion. Dr Walsh’s evidence, as I have said, is that anything is possible in medicine.
[33] Ibid, page 3.
Dr Walsh, who considers that Mr Debnam does have a neuralgia condition, has refused to speculate on the cause. So far as he relates it to Dr Laing’s surgery at all, he is careful to say he can only rely on what Mr Debnam has told him. That includes that Mr Debnam’s symptoms arose at the time of the operation. Yet Mr Debnam denies that the symptoms occurred at that time, or that he has ever told Dr Walsh that.
As I have said, I cannot be satisfied Mr Debnam’s neuralgia condition is due to the surgery performed by Dr Laing in 2006.
CONCLUSION
Consequently, the reviewable decision dated 6 November 2015 is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate
Dated: 12 April 2017

Date of hearing: 5 December 2016

Date final submissions received: 13 February 2017

Applicant: In person

Counsel for the Respondent: Mr Charles Clark

Solicitors for the Respondent: Moray and Agnew

[2017] AATA 470

12 April 2017

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	5 December 2016
Date final submissions received:	13 February 2017
Applicant:	In person
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Moray and Agnew