Dempsey and Military Rehabilitation and Compensation Commission (Compensation)
[2021] AATA 25
•20 January 2021
Dempsey and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 25 (20 January 2021)
Division:GENERAL DIVISION
File Number(s):2020/0711
Re:Dominic Dempsey
APPLICANT
Military Rehabilitation and Compensation CommissionAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:20 January 2021
Place:Canberra
The decision under review is affirmed.
.......................................................................
Mr S. Webb, Member
MILITARY COMPENSATION – claimed service injury or service disease – anosmia the result of viral infection while rendering defence service - reasonable satisfaction – statement of principles applied from clinical onset of anosmia - consideration of causal factors – meaning of ‘inability to obtain appropriate clinical management’ – factors in statement of principles not made out or not related to service – consideration of symptoms not covered by statement of principles – causal tests – meaning of “an occurrence” for the purposes of the legislation – service injury or service disease not made out – decision affirmed.
Military Rehabilitation and Compensation Act 2004, s 23, 27, 319, 335, 339, 340, 341
Veterans Entitlements Act 1986, s 196B
Statement of Principles No. 119 of 2011
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Money [2009] FCAFC 11
Law v Repatriation Commission (1980) 29 ALR 64
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Knight [2012] FCAFC 83
Repatriation Commission v Law [1980] FCA 92
Sloan v Repatriation Commission [2012] FCA 1079Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
Mr S. Webb, Member
20 January 2021
Dominic Dempsey holds the rank of flight sergeant in the RAAF. During a period of peacetime defence service, he contracted an upper respiratory tract viral infection. His sense of smell was diminished. Subsequently, he did not regain his olfactory sense and a diagnosis of anosmia was made. He claimed compensation for a service injury. The Military Rehabilitation and Compensation Commission (Commission) refused the claim. This decision was affirmed on review by the Veterans’ Review Board, albeit for different reasons. Mr Dempsey applied to this Tribunal for review.
Facts
Mr Dempsey has a long history of periodic defence service. For present purposes the following periods of continuous full-time defence service are relevant:
5 October 2015 – 31 October 2016
1 May 2017 – 14 December 2018.
On 5 October 2015 he was posted to the Submarine Support Group and, on 1 February 2016 he took up a posting as Stores Manager for the HMAS Farncomb.
On 11 August 2016, Mr Dempsey consulted Dr Kristin Roe, a Medical Officer at the Keswick Clinic (a joint health facility in the Keswick Barracks in South Australia). He was experiencing tinnitus. Dr Roe referred him to Dr Kym Diamantis, an ear, nose and throat surgeon.[1]
[1] Exhibit 6.
On 22 August 2016, Mr Dempsey sought medical treatment at the Keswick Clinic for ear, nose and throat symptoms. He was examined by AB Nicole Sheppard, a nurse, who noted:
Problem (first) Common cold
HistoryMbr presented with a sore throat. Rhinorrhoea, headache, aching ears. Ears sore to touch, dry cough. Mbr taking disprin, gargling mouthwash.
Examination headache – extends from ears and heads frontal, throat – inflamed, the biggest problem is with his ears. ears – clear, tm’s intact, mbr cannot Valsalva, very little wax. Rhinorrhoea – dark yellow phlegm, dry cough – clear.
Family history Sister is next door, sister has been unwell
Socialnon-smoker, nil known allergies
Comment2 x FSK, aspalgin gargles, rest, stay hydrated
AdditionalUnfit for work 2 days[2]
[2] Exhibit 1, page 12.
On 24 August 2016, Mr Dempsey sought further treatment at the Keswick Clinic and consulted Dr Kristin Roe. The doctor noted –
HistoryWalk in – worsening left ear pain last few days – jaw pain onset today
Examination note swelling redness of ear – outer/pinna
ear canal swollen and tender = otitis externa
no tenderness
Problem (first) Other otitis externa (Left)
Commentphoned ENT Diamantis – suggest Ciproxin HC and pain relief and review on Monday (1/15pm) meembr to present earlier if any issues, analgesia discussed, constipation disc. Time off work – will see how he is overnight
MedicationCiproxin HC ear drops (ciprofloxacin (as hydrochloride) 0.2% (2mg/mL) + hydrocortisone 1% (10 mg/mL) 10ML DROPS TWICE DAILY
Paracetamol 500mg + codeine phosphate 30mg tablet 10 tablet 1 TAB WITH 1 PARACETEMOL 6-8HRL PRN SEVERE PAIN 2 6-8 HRLY[3]
[3] Exhibit 1, page 13.
On 29 August 2016, Dr Diamantis examined Mr Dempsey and reported –
Examination from my perspective was unremarkable and I have arranged for repeat audiometry to be carried out. I have also arranged for an MRI scan in view of the worsening of his tinnitus.
With regard to the acute ear infection we discussed last week it is pleasing to note that this is much improved and there was really little to see today. I have asked the patient to continue with his Ciproxin HC Drops for a further week and I will review him again around that stage with his test results. I will keep you informed of his progress.[4]
[4] Exhibit 4, report of Dr Diamantis, 29 August 2016.
On 1 September 2016, Dr Tony Leung, a dentist at the Edinburgh Health Centre, conducted an annual dental examination on Mr Dempsey – Mr Dempsey had a number of dental issues at the time which it is not necessary to record for present purposes.
Mr Dempsey gave oral evidence that on 5 September 2016 he noticed a significant reduction in his sense of smell and taste. His evidence is that he attended an Indian restaurant, being partial to spicy flavours, and noticed that he could smell but not taste the food. He stated –
I realised my sense of smell was seriously diminished. I had previously experienced temporary reduction in taste and smell associated with colds and flu so I initially thought nothing of it. I became worried after it had persisted for about two weeks, despite my nasal and sinus congestion clearing up.[5]
[5] Exhibit 5, paragraph 1.3.
On 12 September 2016, Dr Diamantis examined Mr Dempsey and reported –
The MRI was clear and pure tone testing demonstrated a precipicious high frequency sensorineural hearing loss which would certainly explain the tinnitus issue. The patient, as recommended by the audiologist, may well benefit from Neuromonics and I have provided the appropriate referral. From my perspective no follow up plans have been made but I would be only too pleased to review the patient any time in the future should you think it advisable.[6]
[6] Exhibit 4, report of Dr Diamantis, 12 September2016.
On 16 September 2016, Mr Dempsey sent an email to the Keswick Clinic in which he said –
…
Lastly, Im worried that as a result of my Flu three weeks ago, I have lost my sense of smell and taste (thought it would have come back by now). Would you mind advising the Doctor for peace of mind.
Im extremely busy with Farncomb at the moment but will come in if necessary.[7]
[7] T20e folio 137.
On 6 October 2016, Mr Dempsey consulted Dr Roe at the Keswick Clinic. The doctor noted –
HistoryURTI/sinus congestion – 6 weeks ago -difficulty with smelling/taste and sore throat
Green phlegm+++ in the morning
Examination throat: NAD
Problem (first) Chronic simple rhinitis
Commentdisc – trial inhaled steroid to treat sinus inflammation/mucous production has Hx of hayfever
Medicationbeclomethasone diproprionate 0.05% (50 microgram/actuation) nasal spray 200 ACTUATION ONE SPRAY EACH NOSTRIL TWICE DAILY[8]
[8] Exhibit 1, page 10
On 11 October 2016, Mr Dempsey completed a Separation Health Statement in which he recorded the following note –
For review: since having the flu late Aug 16, I have experienced significant loss of taste and smell.[9]
[9] Exhibit 2, page 1.
On that day, Dr Roe conducted a pre-discharge medical examination of Mr Dempsey and he completed a Comprehensive Preventive Health Examination form. There is no reference to Mr Dempsey experiencing any loss of taste or smell in this form. In response to the question Is there any other health problem troubling you? Mr Dempsey ticked Yes and noted Dental – front tooth plate.[10]
[10] Exhibit 3, page 2.
Mr Dempsey completed the period of continuous full-time service on 31 October 2016 and was discharged. He returned to his erstwhile employment with the Department of Defence in Canberra. This continued until 1 May 2017 when he commenced another period of continuous full-time service. There is no evidence that Mr Dempsey sought medical treatment relating to diminution of olfactory function during the period from 1 November 2016 to 30 April 2017. On 7 March 2017, Mr Dempsey was examined by Dr John Norgrove, a medical officer at the Harman Clinic. The doctor noted –
HistoryCommencing CFTS contract with RAN in Apr 17 for 2 years. PHE Oct 2016 – MEC J21. Denies any illness or injury since PHE. …[11]
…
[11] Exhibit 1, page 33.
On or about 2 May 2017, Mr Dempsey was posted to HMAS Stirling in Western Australia.
The medical records in evidence establish that Mr Dempsey sought medical treatment in respect of conditions not related to his olfactory function on at least 12 occasions in the period from 3 May 2017 to 3 October 2017. The clinical records of these consultations make no reference to any issue or complaint relating to Mr Dempsey’s olfactory function.
On 3 October 2017, Mr Dempsey underwent an annual dental examination that was performed by Lieutenant Alexander Mcdonald. The notes of this examination include the following –
Exam type: ADE (reservist CFTS) C/C: mbr interested in implant; loss of sense of smell/taste since ‘flu’ 2016 MHx … mbr strongly advised to make medical appt for investigation of loss of sense of smell/taste
…[12]
[12] Exhibit 1, page 27.
On 12 October 2017, Mr Dempsey consulted Dr Benjamin Grant, a medical officer at the Stirling health Centre. The doctor noted –
Problem (FIRST)[D]Anosmia
New referral Referral to neurologist Outpatient, Routine, , (Consultant: Generic referral). Thank you for seeing [Mr Dempsey], whom has been reporting anosmia and loss of both anterior and posterior taste to his tongue. Symptoms for over a year, post significant throat infection.
…
Historyreprots has been havign trouble with sense of smell and global taste for over a year
states happened post severe throat infection last year
has been waiting for it to return, but not fully.
gets intermittent smell. but states taste poor.
Examination cranial nerve, apart sfom smell, examine unremarkable in office
will likely need BOS/MRI / CN MRI and inflame markers – suggest go onto early with neurology referral
…[13]
[13] Ibid page 26.
On 13 November 2017, Mr Dempsey was examined by Dr Peter Silbert, a neurologist. The doctor reported –
[Mr Dempsey’s] cranial MRI did not show any lesion to account for his anosmia.
I note looking at his ADF records that he had an URTI on 22 August 2016, and that seems to be when this developed from. In the absence of structural pathology, presumably it is a post-viral anosmia. As he is over 12 months, unfortunately it is likely to be permanent.[14]
[14] T6 folio 30.
On 12 December 2017, Mr Dempsey lodged a claim for compensation in respect of post viral anosmia.[15] In response to the question When did it happen? He replied 22/08/2016 and included the following statement –
I believe my condition was not diagnosed correctly/sufficiently at Keswick Barracks Health Centre to relieve me of my flu and severe throat. I have now sustained damage to my nasal and tasting nerves whereby I have little sense of smell and zero sense of taste. The conditions I worked in whilst supporting HMAS Farncomb at Australia Submarine Corporation Osborne S.A. may have contributed to me getting the flu and subsequent permanent damage. I worked within the submarine, in a warehouse and also air conditioned office environment.[16]
[15] T7.
[16] T7 folio 34.
On 19 April 2018, a delegate of the Commissioner decided to refuse Mr Dempsey’s claim.[17]
[17] T10.
On 27 November 2018, Mr Dempsey lodged a further claim in respect of anosmia (as well as other conditions).[18] Details of the claimed condition were completed by Dr Roe in the following terms –
Medical diagnosis Anosmia 2⁰ to viral illness
Permanent
Basis for diagnosis - member gives adequate history (assoc w viral illness), neurologist has confirmed diagnosis
Unclear how 2nd opinion from ENT would benefit as the virus has permanently damaged the olfactory nerve in the mucosa of the nasal cavity and through the ethmoid bone’s cribiform [sic] plate[19]
[18] T11a; T11 refers.
[19] T11b folio 60.
On 7 December 2017, Mr Dempsey’s advocate lodged a request for review of the Commission’s primary decision to refuse his anosmia claim.[20]
[20] T13 and T13a.
On 29 May 2019, Dr Russell Bird, a consultant otorhinolaryngologist provided a report to the Department of Veterans’ Affairs.[21] He stated –
In Mr Dempsey’s case, the history is compelling and on the basis of probability, I am convinced that his anosmia is due to viral infection, severely damaging the olfactory organ at the roof of each nostril.
…
I am very confident that Mr Dempsey’s total anosmia is due to viral invasion of his olfactory organs during the upper respiratory infection which began in late August 2016.[22]
[21] T16.
[22] T16 folio 84.
In a supplementary report, dated 26 August 2019, Dr Bird reported –
Mr Dempsey’s upper respiratory infection that began on or just before 22 August 2016 was almost certainly viral in origin. The treatment prescribed by the on-duty nurse i.e. asprin and gargles, was perfectly acceptable and proper. Because the symptoms became worse Mr Dempsey then returned and was reviewed by a medical practitioner who prescribed antibiotics. Mr Dempsey’s health gradually returned to normal which would be expected over time in any event. Whether the antibiotics assisted in this is a moot point.
…
I do not think earlier treatment with antibiotics or any other medication would have prevented his loss of sense of smell. Antibiotics do not kill viruses and thus it is not realistic to expect that had antibiotics been given 48 hours earlier, his sense of smell would have been retained.[23]
[23] T18 folios 91-92.
On 20 November 2019, the Veterans Review Board decided to affirm the decision, rejecting Mr Dempsey’s claim in respect of anosmia.[24]
[24] T22.
On 12 February 2020, Mr Dempsey applied for review by this Tribunal.
On 9 April 2020, Dr Safi Albekaa, an ear, nose, throat, head and neck surgeon, provided a report, in which he stated –
[Mr Dempsey] realised that his sense of smell and taste were seriously diminished on 5 September 2016. This is about two weeks after his initial presentation to the Keswick Clinic with the cold/flu symptoms and I believe this is where the onset of anosmia occurred.
…
[Mr Dempsey] informed me that on 22 August 2016 he was treated by the nurse at the Keswick Clinic with Asprin gargles and on 24 August 2016 by Ciproxin ear drops and simple analgesia. His anosmia was not addressed even when he saw the doctor at the Keswick Clinic on 6 October 2016 and he was treated with a nasal spray which I assume was a nasal steroid. The standard practice of medicine here is that [Mr Dempsey] should have been referred to an ENT specialist for further investigation and treatment. This was not done even though he raised the issue with the medical officers at the Keswick Clinic on 16 September 2016 nor at his medical discharge on 11 October 2016.
…
I believe the window of opportunity for assessment and treatment of [Mr Dempsey’s] loss of smell and taste by an ENT specialist (ie. Diagnostic evaluation and treatment with appropriate steroids) was missed by Keswick Clinic in 2016…
…
The treatment of post-viral anosmia, which is systemic and topical steroids, has a reasonable outcome in reversing the symptoms, namely the loss of smell and taste if the treatment is given within the first 2-4 weeks of the start of the upper respiratory tract infection. There is no treatment available when the patient presents with post-viral anosmia a year or more after the occurrence of the URTI.[25]
[25] Exhibit 7.
On 10 August 2020, Dr Bird produced a supplementary report in which he disagreed with Dr Albekaa about treatment with systemic and topical steroids in a case such as Mr Dempsey’s and stated –
… As stated above systemic and topical steroids are not required for the treatment of simple upper respiratory infections. …
…
Mr Dempsey’s treatment from 22 August through to 6 October 2016 was completely appropriate. There is no treatment that would have changed the longterm outlook. The anosmia has been caused by viral invasion of the olfactory organ in the roof of each side of his nose. This would have occurred while he was symptomatic with the upper respiratory tract infection but because virtually all patients suffer a reduction in sense of smell when nasal congestion is present, there was no way of knowing that his loss may have been permanent. Even if there was some way of knowing that the loss might be permanent, there is no recognised treatment to prevent the end result.[26]
[26] Exhibit 8, page 7.
On 4 September 2020, Dr Albekaa provided a supplementary report in which he disagreed with Dr Bird and said –
I believe it is common ENT practice to treat post viral anosmia with a combination of systemic and topical steroids within the first two to four weeks of the start of the upper respiratory tract infection. It is important to commence with the treatment when the anosmia has not resolved after two weeks.[27]
[27] Exhibit 7.
The doctor attached a medico-scientific paper in support of his opinion, entitled Treatment of Postviral Olfactory Loss with Glucocorticoids, Ginko biloba, and Mometasone Nasal Spray.[28] As will appear, there is a good deal of controversy about the appropriateness and efficacy of different treatment modalities for post-viral anosmia. The authors of the report drew the following conclusion -
This study showed that olfactory function significantly improved in patients with postviral olfactory loss after treatment with glucocorticoids, G. biloba and mometasone furoate nasal spray. Although combination therapy with oral prednisolone and G. biloba did not show significantly better efficacy than monotherapy with oral prednisolone, G. biloba might be helpful in improving odor identification. Many more patients experience post viral olfactory loss and seek recovery of their olfactory function than otolaryngologists have previously thought. Its pathogenesis is not well understood; therefore treatment methods are underdeveloped. Postviral olfactory loss is caused by neurodegeneration of cells in the olfactory neural system. More clinical trials are required to evaluate drugs shown to be effective against neurodegeneration for the future treatment of olfactory disorder.[29]
[28] Archives of Otolaryngology - Head and Neck Surgery, Volume 135 (No. 10), October 2000.
[29] Ibid page 1004.
Considering the expert evidence given in this case, it appears that little has changed since this report was written in 2000, although new treatment modalities, including olfactory retraining, have emerged.
Issues
The central issue to be decided is if Mr Dempsey’s compensation claim in respect of loss of sense of smell is made out under the Military Rehabilitation and Compensation Act 2004 (MRCA).
Consequently, it is necessary to determine if Mr Dempsey sustained a ‘service injury’ or a service disease’ under s 27 of the MRCA for which the Commission is liable under s 23 of that Act.
The applicable standard of proof is set out in s 335(3), being the reasonable satisfaction standard to which s 339 applies - reasonable satisfaction is to be assessed by reference to Statement of Principles (SOP) unless no SOP has been determined for the kind of injury or the kind of disease under claim.
The following questions arise:
(a)What is the kind of injury or disease under claim?
(b)Has an SOP been determined for that kind of injury or disease?
(c)If so, are the terms of the SOP satisfied?
(d)If no SOP has been determined, is the claimed injury or disease within the meaning of ‘service injury’ or ‘service disease’?
Kind of injury or disease
Mr Dempsey’s advocate, Rodney Dunn, asserts that Mr Dempsey initially suffered from a partial loss of his sense of smell in August 2016, and the partial loss became total and permanent sometime later, by November 2017. In his submission, Mr Dempsey’s partial loss of his sense of smell and taste is consistent with hyposmia, whereas his total and permanent loss of smell and taste is consistent with anosmia. Mr Dunn argues that Mr Dempsey’s diminished sense of smell was caused by an occurrence during service, namely the contraction of a viral illness that damaged his olfactory nerves. He maintains, furthermore, that this was not appropriately managed and his subsequent anosmia was the result of an inability to obtain appropriate clinical management.
The Commission asserts that this interpretation of events is not supported by the expert medical evidence of Dr Bird and Dr Albekaa. In the Commission’s submission, the upper respiratory tract viral infection Mr Dempsey contracted in August 2016 damaged his olfactory nerves and resulted in the onset of anosmia on or before 5 September 2016.
In order to determine the kind of injury or kind of disease for which Mr Dempsey claimed compensation, one must carefully consider the available evidence, including the contemporaneous medical evidence and expert medical evidence of Dr Bird and Dr Albekaa.
On the question of diagnosis and clinical onset, the medical evidence of Dr Bird, Dr Albekaa, Dr Silbert and Dr Roe is clear and compelling – Mr Dempsey suffered from post viral anosmia that first became symptomatic between 22 August 2016 and 5 September 2016, more than 12 months before Dr Silbert reported the diagnosis. In all likelihood, the anosmia was caused by the upper respiratory tract viral infection for which Mr Dempsey first sought medical treatment on 22 August 2016. Dr Bird’s evidence is that, during the infection, the virus invaded and severely damaged the olfactory organ at the roof of each nostril. Even though Dr Bird and Dr Albekaa could not identify the precise nature or location of the damage caused, the effect points to the damage caused. It is probable on their evidence that Mr Dempsey’s olfactory nerves and related structures were damaged, albeit, perhaps, at a cellular level. This is consistent with the neurodegenerative cellular changes referred to it the medico-scientific paper Dr Albekaa attached to his report.
There is no probative medical evidence that Mr Dempsey suffered from hyposmia in or about August or September 2016, or at any time. Mr Dunn’s assertions in respect of hyposmia lack evidentiary support and they cannot be accepted. Speculative theorising and unsupported conjecture of this kind provides no proper basis for fact finding applying the reasonable satisfaction standard of proof.
Hyposmia and anosmia are not interchangeable medical terms, and it is not established that hyposmia may be causally related to anosmia if left untreated. Hyposmia involves loss of smell sensitivity whereas anosmia involves loss of ability to smell – a medical spectrum involving total or partial loss.
Mr Dunn made much of the narrower definition of ’anosmia’ in SOP Instrument No. 119 of 2011 in respect of Anosmia (the anosmia SOP), to which I will return shortly. Medical diagnosis of the condition under claim is not confined to an SOP definition, which has a different purpose. Diagnostic assessment requires consideration of the medical evidence, and it does not start with the SOP.
On evidence of Dr Bird and Dr Albekaa, Mr Dempsey’s loss of sense of smell and taste is consequent to damage to his olfactory nerves that occurred during the viral infection he contracted in August 2016. This is consistent with their diagnoses of post-viral anosmia. It is not established that the diminution of his sense of smell and taste was the result of altered olfactory sensitivity associated with hyposmia.
I am reasonably satisfied that the kind of injury or disease under claim is post viral anosmia that commenced with Mr Dempsey’s diminished sense of smell and taste on or shortly after 22 August 2016, consequent upon damage to his olfactory nerves caused by the upper respiratory tract viral infection he contracted in August 2016.
Applicable SOP
In Mr Dunn’s submission, the anosmia SOP applies in respect of Mr Dempsey’s anosmia but not in respect of his hyposmia or partial anosmia. He argues that Mr Dempsey’s hyposmia or partial anosmia must be assessed as a ‘non-SOP’ condition.
The Commission asserts that the anosmia SOP applies.
The Repatriation Medical Authority (RMA) determined SOPs in respect of anosmia under s 196B(3) of the Veterans’ Entitlements Act 1986 (VEA) in 2011, namely Instruments No. 118 and No. 119 of 2011.
On 26 October 2018, the RMA gave notice that it intended to review a number of SOPs, including the anosmia SOP.
At the time of the hearing in this application, no new SOP had been determined and the hearing proceeded on the basis of the anosmia SOP. Subsequently, on 24 December 2020, the RMA decided to issue a new SOP concerning anosmia – No. 20 of 2021. Clause 2 of this SOP provides that the instrument commences on 25 January 2021.
At the date of this decision, the anosmia SOP remains in force and, under s 341 of the MRCA, it is the anosmia SOP that must be applied.
In view of the temporal proximity of the commencement of the new SOP, I heard the parties in respect of delaying the Tribunal’s decision. Both parties submitted that the Tribunal should proceed to issue the decision, applying the anosmia SOP, and that delay is not necessary in the circumstances.
Mr Dunn is correct in his assertion that no SOP has been determined in respect of hyposmia or partial anosmia.
Are the SOP terms satisfied?
Mr Dunn asserts that the SOP definition of ‘anosmia’ does not apply to Mr Dempsey’s partial anosmia or hyposmia. He asserts that the SOP applies only from the time Mr Dempsey’s anosmia became total and permanent. In his submission the clinical onset of ‘anosmia’ as defined for the purposes of the SOP was sometime in 2017.
In Mr Dunn’s submission, the terms of the anosmia SOP are satisfied thereafter in respect of Mr Dempsey’s anosmia, as at least one of the essential factors set out in cl 6 are made out in the circumstances of Mr Dempsey’s case. In particular, Mr Dunn argues that Mr Dempsey was unable to obtain appropriate clinical management of anosmia.
During the hearing I asked Mr Dunn to clarify the case he was pressing in respect of the SOP. In doing so, he expressly confined his case to a singular factor under s 6 of the SOP, namely the factor in cl 6(o) concerning inability to obtain appropriate clinical management of anosmia. I explained that the Tribunal must consider all relevant, applicable factors in the circumstances of the particular case and asked if the factor in cl 6(c), concerning a specified condition resulting in physiological damage (see below), might be relevant and applicable in Mr Dempsey’s case. During the hearing Mr Dunn did not press any assertions in respect of this factor, although the case pressed has changed somewhat in submissions made orally at the conclusion of the hearing and subsequently in writing. This notwithstanding, Mr Dunn argued that the contraction of the viral infection that caused damage to Mr Dempsey’s olfactory organ is “an occurrence” for the purposes of s 27(a) of the MRCA. While I will deal with that issue below, it is prudent to determine if factor 6(c) in the anosmia SOP is applicable in the circumstances.
The Commission asserts that Mr Dempsey was provided with appropriate clinical management but he did not pursue treatment options that were open to him. Thus, in the Commission’s submission, Mr Dempsey was not unable to obtain appropriate clinical management of his anosmia and the factor in cl 6(o) is not met.
The Commission also argues that the factor in cl 6(c) is not satisfied for want of probative evidence that the viral infection Mr Dempsey contracted in August 2016 damaged his olfactory neuroepithelium, olfactory bulb or olfactory neural pathways. In the Commission’s submission, absent particular and probative evidence, the Tribunal cannot be reasonably satisfied that damage of the particular kind specified in cl 6(c) occurred. The Commission contends, therefore, that the terms of the SOP are not satisfied.
In order to determine when the anosmia SOP applies, it is necessary to assess when clinical onset of Mr Dempsey’s anosmia occurred.
Clinical onset
The SOP sets out a definition of ‘anosmia’ in cl 3(b) –
For the purposes of this Statement of Principles, "anosmia" means an acquired, total and permanent loss of the ability to smell, due to a defect in the olfactory neuroepithelium, olfactory nerves or olfactory neural pathways.
As can be seen, there are two causally related elements to this definition. Each must be satisfied for the definition to be made out. Thus, for ‘anosmia’ to be established for the purposes of the SOP, it must be established that –
(a)the person has an acquired, total and permanent loss of the ability to smell; and
(b)this loss is due to a defect in the olfactory neuroepithelium, olfactory nerves or olfactory neural pathways.
Mr Dunn argues that Mr Dempsey’s partial loss of the ability to smell, or partial anosmia (which he refers to as hyposmia), is outside the terms of the definition, such that the SOP does not apply unless and until the anosmia became total and permanent.
The Commission asserts that the definition is satisfied and the SOP applies from the clinical set of Mr Dempsey’s anosmia.
There are four things to say about this.
Firstly, on the evidence of Dr Bird, Dr Albekaa and Dr Silbert, I am reasonably satisfied that Mr Dempsey has acquired a total and permanent loss of ability to smell – he has an acquired, total and permanent anosmia. The proposition that he suffered from hyposmia before anosmia is not supported by evidence and it is not made out.
Secondly, the anosmia SOP applies in Mr Dempsey’s case, and it does so from the clinical onset of his anosmia condition. The SOP does not provide any guidance about what is meant by the term ‘clinical onset’, in cl 6(c) for example.
In Lees v Repatriation Commission,[30]when dealing with an SOP for generalised anxiety disorder, the Full Federal Court said at [16] “the definition of "generalised anxiety disorder" does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest” and upheld that there was aclinical onset of a disease either:
- when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time;or
- when a finding is made on investigation which is indicative to a doctor that the disease is present.[31]
[30] [2002] FCAFC 398.
[31] Ibid, at [13].
In Kaluza v Repatriation Commission,[32] Jacobsen J said at [93] -
The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[32] [2010] FCA 1244.
On appeal, when discussing Lees’ case in Kaluza v Repatriation Commission,[33] the Full Court held at [66] -
The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion ...’.
[Original emphasis.]
[33] [2011] FCAFC 97.
In Sloan v Repatriation Commission,[34] Bromberg J held at [93] –
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[34] [2012] FCA 1079.
Thus it can be understood that the determination of clinical onset is a matter for medical evidence. Within this frame, it is conceivable that the clinical onset of ‘anosmia’ might involve a sudden loss of sense of smell or it might involve the gradual emergence of clinically recognisable symptoms which ultimately become total and permanent. There may be a question about what the words ‘total’ and ‘permanent’ mean in the context of the SOP definition of anosmia. It might be argued, for example, on the one hand, that ‘total’ should be construed to mean a threshold beyond which the loss of ability to smell may be treated as functionally or effectively ‘total’ or, on the other hand, it might be argued that a stricter construction, more aligned with the plain meaning of the word ‘total’, being absolute and entire, should be adopted; but this point was not raised or agitated so I will go no further with it.
On Mr Dempsey’s evidence, with some support from the evidence of Dr Grant, following the onset of symptoms in August 2016 his loss of smell and taste was not total: it was significantly diminished and for a time it was variable and not absolute. As I have said, the clinical onset of his ‘anosmia’ is to be determined on the medical evidence.
Clearly enough, the SOP definition of ‘anosmia’ must be applied. Symptoms necessary to fulfill the definition of ‘anosmia’ must exist before the SOP applies. To my mind this does not exclude circumstances in which the clinical onset of ‘anosmia’ is medically described by the emergence of symptoms that progressively worsened and resulted in the total and permanent loss of sense of smell.
Thirdly, the evidence of Dr Bird, Dr Albekaa, Dr Silbert and Dr Roe is sufficient to establish, on the balance of probabilities, that Mr Dempsey’s anosmia is of a post-viral origin – the virus damaged Mr Dempsey’s olfactory organ. Dr Bird and Dr Albekaa explained that, while the precise mechanism and the specific damage caused cannot be ascertained with certainty in Mr Dempsey’s case, nevertheless the mechanism is one that involves damage to the olfactory nerves and related cells, or disruption of neural pathways, resulting in loss of smell and taste. I accept their uncontroverted evidence on this point.
Fourthly, Dr Bird’s evidence is that, in all likelihood, Mr Dempsey’s anosmia was first symptomatic when he was experiencing the effects of the upper respiratory tract viral infection in late August 2016. Dr Albekaa was more circumspect in his evidence, suggesting that Mr Dempsey’s anosmia was apparent by 5 September 2016 when Mr Dempsey experienced a significant diminution in his ability to smell and taste. When one carefully considers Mr Dempsey’s evidence on this point, it is quite clear (in his words) that he realised his sense of smell was significantly diminished - I became worried after it had persisted for about two weeks, despite my nasal and sinus congestion clearing up. [35] As can be seen on this evidence Mr Dempsey’s loss of ability to smell would have commenced on or soon after 22 August 2016, 2 weeks prior to 5 September 2016. Dr Bird’s evidence in respect of the onset of Mr Dempsey’s anosmia is consistent with that history and, for this reason, it is preferred. I am reasonably satisfied that Mr Dempsey’s anosmia was first symptomatic on or soon after 22 August 2016 and it would have been clinically evident at that time, albeit perhaps masked somewhat by other symptoms of the upper respiratory tract infection he was then suffering. That being so, the date of clinical onset of Mr Dempsey’s anosmia is probably on or soon after 22 August 2016.
[35] Exhibit 5, paragraph 1.3.
On Dr Bird’s evidence, absent spontaneous recovery, Mr Dempsey’s anosmia was probably permanent once the damage to his olfactory nerves occurred, in or soon after 22 August 2016. Dr Albekaa explained that this would likely be so unless remedial treatments of the kinds he suggested were successful. No such remedial treatments were attempted and there is no compelling medical evidence that Mr Demspey’s anosmia should be treated as other than total and permanent from the date on which the virus damaged his olfactory nerves.
From this it follows that the anosmia SOP applies from on or soon after 22 August 2016. Even if I am wrong about this, for reasons that will appear, it does not affect the result in Mr Dempsey’s case.
For the anosmia SOP template to be satisfied, it must be established that one or more of the factors set out in cl 6 are related to his relevant service.
Factors
The SOP sets out factors by which ‘anosmia’ may be related to the person’s relevant service for the purposes of ss 23 and 339(3) of the MRCA.
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, anosmia or death from anosmia is connected with the circumstances of a person’s relevant service is:
a) having chronic nasal polyposis for at least the ten years before the clinical onset of anosmia; or
b) having chronic sinusitis for at least the ten years before the clinical onset of anosmia; or
c) having a specified condition which damages the olfactory neuroepithelium, the olfactory bulb or the olfactory neural pathways at the time of the clinical onset of anosmia; or
d) having a specified systemic disease before the clinical onset of anosmia; or
e) having Paget's disease of bone affecting the skull at the time of the clinical onset of anosmia; or
f) having a specified neurological disorder at the time of the clinical onset of anosmia; or
g) being treated with a drug which is associated in the individual with the development of symptoms or signs of anosmia within three weeks of commencing drug therapy, in the absence of clinical or laboratory evidence of anosmia prior to commencing drug therapy, and the persistence of anosmia at least six months after discontinuing drug therapy; or
h) receiving an intranasal application of a preparation containing zinc gluconate or zinc sulphate within the 48 hours before the clinical onset of anosmia; or
i) regularly using intranasal cocaine such that there is destruction of the nasal septum, palate or paranasal sinuses before the clinical onset of anosmia; or
j) inhaling fumes from a specified metal or compounds containing a specified metal for a cumulative period of at least 5000 hours before the clinical onset of anosmia, and where that exposure has ceased, the clinical onset of anosmia occurred within one year of cessation; or
k) inhaling fumes from a specified volatile substance for a cumulative period of at least 5000 hours, before the clinical onset of anosmia, and where that exposure has ceased, the clinical onset of anosmia occurred within one year of cessation; or
l) experiencing acute, symptomatic poisoning from a neurotoxic substance from the specified list within the 30 days before the clinical onset of anosmia; or
m) smoking at least 40 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of anosmia, and where smoking has not ceased prior to the clinical onset of anosmia; or
n) having pellagra at the time of the clinical onset of anosmia; or
o) inability to obtain appropriate clinical management for anosmia.
Factors that apply only to material contribution or aggravation
7. Paragraph 6(o) applies only to material contribution to, or aggravation of, anosmia where the person’s anosmia was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
9. For the purposes of this Statement of Principles:
…
"a specified condition" means:
…
(d) an infection;
…
In the circumstances of this case and having careful regard to the submissions of the parties, only the factors in cl 6(c) relating to a specified condition and cl 6(o) relating to appropriate clinical management are relevant – other factors are not applicable.
Factor 6(c) - specified condition
With regard to the factor in cl 6(c), the upper respiratory tract viral infection Mr Dempsey contracted in August 2016 is within the meaning of ‘a specified condition’ set out in cl 9.
Contrary to the Commission’s submission, the evidence of Dr Bird and Dr Albekaa is sufficient to establish that it is probable the infection caused damage to Mr Dempsey’s olfactory nerves, and this adversely affected his ability to smell and taste. While each doctor was not able to identify with precision or certainty the nature, extent or location of such damage or to explain the neurophysiological mechanism underlying Mr Dempsey’s olfactory loss, both were unequivocal in their assessment that the upper respiratory tract infection probably caused damage to his olfactory nerves. Their evidence clearly addresses the limit of current medical knowledge and understanding and, within that frame, it is compelling. On this basis, it is probable, and I am reasonably satisfied, that Mr Dempsey’s August 2016 infection damaged his olfactory nerves or his neural pathways at the time of clinical onset of his anosmia. That being so, the circumstances of the factor in cl 6(c) are made out.
Factor 6(c) - related to service
The remaining consideration in respect of this factor is whether the infection Mr Dempsey sustained that damaged his olfactory nerves is related to his relevant service.
The phrase ‘related to service’ and the causal inquiry it entails is given meaning in s 340(7) of the MRCA –
Definition of related to service
(7) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a member if:
(a) it resulted from an occurrence that happened while the member was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it was contributed to in a material degree by, or was aggravated by, that service; or
(d) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his or her having rendered that service; or
(e) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, the death of a member—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the member; or
(ii) but for changes in the member’s environment consequent upon his or her having rendered that service; or
(g) it resulted from an accident that occurred while the member was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
Lest there be any confusion about the causal test arising from the rather complex legislative apparatus, it is appropriate to refer to the construction applied by the Full Federal Court in Repatriation Commission v Knight[36] when dealing with comparable provisions under the Veterans Entitlements Act 1986 –
15. The inquiry demanded by s 196B(14)(d) in relation to material contribution &c. is significantly different to the usual questions of that kind which arise in ordinary personal injury litigation. In most personal injury litigation contexts the question of material contribution will arise in a domain where what is sought to be discerned is some species of causative connexion between an ailment (which the claimant alleges he or she has) and an event or situation for which the claimant seeks compensation. A typical example of this kind of situation was afforded by the former s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which defined a ‘disease’ as an ailment ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth’.
16. Section 196B(14) is quite different because its focus is on the connexion between the employment (that is, in this context the veteran’s service) and the ‘factor’ specified in the relevant Statement. On occasions, this can generate confusion. That confusion can arise because of the conceptually malleable nature of a ‘factor’, its intermediate role in the elaborate apparatus of s 196B and because the ultimate causal questions posed by s 196B(14) do not seek to determine whether the operational service caused the death or disease. In many ways, this is a counterintuitive posture for the Act to adopt but it is an inevitable consequence of seeking to specify in advance, through the system of statements of principles, the outcome of various – often controversial – medical issues of causation. To give perhaps a simplistic example, if the relevant Statement specifies that exposure to Agent Orange is accepted to cause cancer then the issue is not, as it might be in ordinary personal injury litigation, whether the employment caused cancer, but rather whether the employment (i.e. service) caused exposure to Agent Orange. It is these intermediate events which are the ‘factors’ upon which the Act operates. It does so not only by way of specification though a Statement but also by way of causal inquiry under s 196B(14). By adopting that approach, complex as it is, the Act ensures that these at times controversial causation questions are determined in the same way in every case and without the need for the summoning of expert evidence on the issue in each hearing before the Tribunal.
17. Despite the centrality of the concept of a ‘factor’ to the operation of these provisions the Act does not define what a factor might be. It is true that by s 196B(2) a Statement of Principles is to set out ‘the factors that must as a minimum exist’ and also ‘which of those factors must be related to service rendered by [the] person’ but this does not take the matter very far.
18. Here then is the problem: the breadth of these requirements is such that a ‘factor’ may embrace not only a medical or psychological condition but may also include physical surroundings. The effect of that potential difference in the nature of factors redounds significantly when the inquiry is into whether the factor is related to service under s 196B(14). The present Statement shows this with some clarity. Some of the factors it specifies are diseases in themselves whilst others are situations or environments, such as exposure to tobacco smoke. On the disease front, cl 6(c) specifies as a factor ‘being obese for at least five years before the clinical onsetof ischaemic heart disease’. The Statement accepts the soundness of the posited link between obesity and ischaemic heart disease but what it requires (through cl 5) is that the obesity be connected to service. Put simply, did service contribute to obesity?
19. Where the factor specified is itself not a disease but a situation, a less subtle inquiry is called for. In this case the factor was exposure to tobacco smoke. The question raised by s 196B(14)(d) (through cl 5) becomes, in that context, whether the service contributed to the exposure to tobacco smoke.
[36] [2012] FCAFC 83.
The architecture of the MRCA includes a similar apparatus for establishing service causation in respect of an injury or a disease claimed under s 319: where an SOP has been determined, this sets out the factors (‘intermediate events’) the Repatriation Medical Authority has decided may be causally related to the condition or injury claimed. Under the SOP, at least one of these factors must be related to the circumstances of the person’s relevant service. When making a determination of this kind for the purposes of the anosmia SOP and in order to establish a ‘service injury’ or a ‘service disease’ for the purposes of s 23 and s 27 of that Act, the causal test set out in s 340(7) of the MRCA and the standard of proof set out in s 335(3) must be applied.
The present evidence does not establish that the upper respiratory tract infection Mr Dempsey contracted in August 2016 resulted from an occurrence that happened while he was rendering service, or that it arose out of, or was attributable to his service. While it may be accepted that, for the purposes of the SOP and s 27(a) of the MRCA, the term “an occurrence” refers to an event with a direct consequence, even in appropriate circumstances the contraction of a disease,[37] the proposition that Mr Dempsey’s infection itself amounts to an occurrence for the purposes of the SOP cannot be accepted. The words ‘resulted from’ import causality in respect of a factor.[38] Clearly enough, the causal inquiry in the circumstances of Mr Dempsey’s case is whether the factor in cl 6(c), including the infection he contracted, was the result of “an occurrence” while he was rendering service. As the infection cannot be the result of itself and no other causal occurrence emerges from the evidence, the proposition must be rejected.
[37] Repatriation Commission v Keeley [2000] FCA 532, per Lee and Cooper JJ at [15].
[38] Repatriation Commission v Money [2009] FCAFC 11 at [50]; Woodward v Repatriation Commission [2003] FCAFC 160 at [86]-[87].
Presently, the materials before the Tribunal do not establish that Mr Dempsey’s service materially contributed to or aggravated the infection, or that the infection would not have occurred but for him rendering service or any related changes in his environment consequent upon his posting with the Submarine Support Group. No such causal nexus is made out on the present evidence..
I note that there is only scant evidence of the circumstances in which Mr Dempsey contracted the upper respiratory tract infection, and the contemporaneous medical records shed but little light on the nature of the infection. For the purposes of the anosmia SOP, it is not sufficient to prove that Mr Dempsey contracted the infection during a period in which he was rendering service. More is required to satisfy one of the kinds of causal connection set out in s 340(7) of the MRCA. No such connection is made out.
Factor 6(o) - appropriate clinical management
The factor in cl 6(o) requires an inability to obtain appropriate clinical management of anosmia. This is not synonymous with a failure to obtain appropriate clinical management or a deficiency in appropriate clinical management. More is required to establish an inability of the kind that lies at the heart of the factor in cl 6(o). In Repatriation Commission v Money (Money’s case),[39] Finn and Edmonds JJ explained that, in appropriate circumstances, the term ‘appropriate clinical management’ may include prudential recommendations, even in circumstances where no efficacious treatment for the particular ailment exists, and that failure to diagnose a condition could result in an inability to obtain appropriate clinical management of that condition.[40]
[39] [2008] FCAFC 11.
[40] Ibid, per Finn and Edmonds JJ at [43] and [44].
On close examination of the evidence, I am reasonably satisfied that the circumstances of Mr Dempsey’s case did not amount to or result in an inability to obtain appropriate clinical management of his anosmia condition.
On 22 August 2016, Mr Dempsey consulted a nurse and on 24 August 2016 he consulted Dr Roe, complaining of symptoms that were associated with an upper respiratory tract and ear infection. On Dr Bird’s evidence the treatment provided was appropriate. Dr Albekaa explained that referral to an ear, nose and throat surgeon would have been appropriate. Even though Dr Albekaa’s opinion has the benefit of hindsight and, as Dr Bird observed, it would not be reasonable or appropriate to refer everyone with an upper respiratory tract infection for specialist opinion, that is exactly what occurred in Mr Dempsey’s case.
On 24 August 2016, Dr Roe arranged for Mr Dempsey’s appointment with Dr Diamantis to be brought forward. Consequently, Dr Diamantis examined Mr Dempsey on 29 August 2016 and referred him for a cranial MRI scan. On 12 September 2016, having received the MRI scan, Dr Diamantis examined Mr Dempsey again and reported to Dr Roe that the scan was clear and no follow up plans had been made. The content of any matters raised or discussed, or advice that may have been given, if any, in these consultations on 29 August 2016 and 12 September 2016 is not established by reliable evidence and remains opaque. Dr Diamantis was not called to given oral evidence.
On 16 September 2016, Mr Dempsey sent an email asking for a copy of Dr Diamantis’ report and for Dr Roe to be informed that his ability to smell and taste had not returned. In this communication Mr Dempsey noted that he was very busy but he would come in if necessary.[41] There is no evidence that he did so and no further action was taken. In circumstances where Mr Dempsey had consulted Dr Diamantis 4 days earlier and did not attend the Keswick Clinic on 16 September 2016 or in following up his email, I am not persuaded and the evidence does not establish that the absence of further action amounted to or resulted in an inability to obtain appropriate clinical management of anosmia. Furthermore, the present evidence does not point to any additional clinical management action that would have been appropriate or that Mr Dempsey was unable to obtain as a result.
[41] T20e folio 137.
On 6 October 2016, Mr Dempsey again consulted Dr Roe and complained of symptoms including continuing difficulty with his ability to smell. The doctor prescribed a nasal steroid spray. When examined on this point, she explained that Mr Dempsey had a history of rhinitis and it was appropriate to treat the related nasal inflammation and mucous production with a nasal steroid spray. Dr Bird and Dr Albekaa agreed that such symptoms could contribute to loss of ability to smell.
On Dr Bird’s evidence, Dr Roe’s prescription of a nasal steroid spray was appropriate and there was no other appropriate treatment for Mr Dempsey anosmia at that time. Dr Albekaa considered that a systemic steroid would have been appropriate. I accept Dr Bird’s evidence that treatment of this kind is somewhat controversial and in Mr Dempsey’s circumstances it would not usually be considered appropriate as it carries the risk of adverse side effects. Furthermore, Dr Diamantis did not prescribe such treatment and he did not make any such recommendation to Dr Roe. In the circumstances of Mr Dempsey’s case, I am not persuaded that appropriate clinical management of anosmia includes treatment with a systemic steroid.
The content of medical advice or recommendations given to Mr Dempsey by Dr Roe on 6 October 2016 in respect of his olfactory difficulty or anosmia is not clear on the present evidence. Dr Roe and Mr Dempsey could not recall precise details. Even if one accepts that Mr Dempsey was unaware of clinical management or treatment options for his undiagnosed anosmia in September and October 2016 and he relied upon the medical information and advice he was given by Dr Roe and Dr Diamantis, if any, it does not follow that this resulted in an inability to obtain appropriate clinical management of anosmia. On Dr Bird’s evidence, notwithstanding the existence of controversial or experimental treatment modalities, such as the treatments referred to by Dr Albekaa and in the journal articles Mr Dunn provided, there was nothing more that could or should have been done by way of appropriate clinical management of Mr Dempsey’s anosmia.
On 11 October 2016, Mr Dempsey underwent a pre-discharge examination with Dr Roe and recorded his loss of smell and taste in a related Separation Health Statement.
I am not persuaded that the circumstances of Dr Roe’s pre-discharge medical examination, in which the doctor did not refer Mr Dempsey for further specialist examination and assessment, resulted in an inability for Mr Dempsey to obtain appropriate clinical management of his anosmia. The only reference to Mr Dempsey continuing to experience difficulties with his ability to smell is a notation he made in the Separation Health Statement he prepared – other contemporaneous records of the examination, including detailed medical examination forms that were completed by Mr Dempsey and Dr Roe, do not refer to any such difficulties. It is possible that Dr Roe did not provide any advice or recommendations to Mr Dempsey in respect of his persistent olfactory difficulties. Even if that is correct, it does not follow and I am not persuaded that this resulted in an inability to obtain appropriate clinical management of his anosmia. Mr Dempsey was discharged from service on 31 October 2016 and it was then open to him to obtain clinical management of his anosmia following his return to Canberra. On Dr Bird’s evidence, all that could have been done by way of appropriate clinical management of anosmia, was done, and had a diagnosis of anosmia or another referral been made at the time, in all likelihood, no other appropriate clinical management would have been undertaken at the time or subsequently. It will be clear by now that I prefer Dr Bird’s evidence to that give by Dr Albekaa in respect of appropriate clinical management of anosmia. To my mind, even though the treatment options and modalities Dr Albekaa referred to may have some efficacy in some cases, whatever ‘appropriate clinical management’ of anosmia might include medically, for present purposes it is unlikely to extend so far as to embrace treatment options that are experimental and unproved or modalities that are controversial and associated with risks greater than commonly accepted in medical science.
Following his discharge on 31 October 2016, Mr Dempsey returned to Canberra. I accept his evidence that he expected his sense of smell would return as it had done in the past after bouts of influenza. Mr Dempsey consulted doctors on 12 occasions over subsequent months, but he did not seek treatment for his continuing olfactory difficulty or anosmia. While a person in Mr Dempsey’s position might not be expected to have knowledge of medical treatment options, such that he may rely on the professional opinions and advice of qualified medical doctors, the present evidence does not establish that he was unable to obtain these things in Canberra after 31 October 2016.
If there was a deficiency in or some difficulty obtaining appropriate clinical management of Mr Dempsey’s anosmia prior to his discharge on 31 October 2016, and I make no such finding, one might expect this to be remediated by Mr Dempsey obtaining clinical management of this condition following his return to Canberra thereafter. By his own account, he did not seek further clinical management of any olfactory difficulty or anosmia until October 2017, during a subsequent period of service. This was a matter of his own choosing that is not attributable to any circumstance or aspect of the clinical management he obtained or that was provided by Dr Roe and Dr Diamantis prior to 31 October 2016.
No diagnosis of anosmia was made prior to Mr Dempsey’s discharge on 31 October 2016 or subsequently until he sought further treatment for his olfactory difficulties in October 2017. Mr Dempsey’s loss of ability to smell arose in the context of symptoms of the upper respiratory tract viral infection he contracted in August 2016 and symptoms of rhinitis in October 2016. I accept Dr Bird’s evidence that such symptoms might commonly result in a diminution or loss of ability to smell, and that olfactory loss of this kind would be indistinguishable from anosmia and might not remit for a period after the resolution of other symptoms.
I note in passing that Dr Bird and Dr Albekaa did not suggest diagnostic tests for anosmia other than those undertaken by Dr Roe and Dr Diamantis, namely referring Mr Dempsey to an ear, nose and throat surgeon and obtaining a cranial MRI scan. That is what was done. In these circumstances it may not have been possible to diagnose anosmia in the period from 22 August 2016 to 31 October 2016.
I am not persuaded that the failure or inability to diagnose anosmia prior to 31 October 2016 resulted in an inability to obtain appropriate clinical management of that condition in Mr Dempsey’s case. It was Dr Albekaa’s opinion that other treatment modalities, involving systemic steroids, would have been appropriately applied within 2 to 6 weeks from the onset of the viral infection in August 2016. Dr Bird strongly disagreed on grounds that this would mean treating many patients suffering upper respiratory tracts infections with systemic steroids who did not require and who would not be helped by such treatment and in so doing exposing them to unwarranted risk of other adverse health effects. In view of the controversial or unproven nature of the treatment options Dr Albekaa suggested and the associated risks, I prefer Dr Bird’s evidence on this point. On the present evidence, including that given by Dr Albekaa, it is not established that more should have been done, or even what else could have been done, in the provision of appropriate clinical management of Mr Dempsey’s anosmia in the period prior to Mr Dempsey’s discharge on 31 October 2016. That being so, I am satisfied that the failure or inability to diagnose anosmia prior to 31 October 2016 did not result in an inability to obtain appropriate clinical management of that condition.
In sum on this point, simply put, the present evidence does not establish that the circumstances prior to Mr Dempsey’s discharge on 31 October 2016 resulted in an inability to obtain appropriate clinical management of his anosmia. It appears to me that he obtained appropriate clinical management in the circumstances at that time and it was open for him to seek further clinical management or advice about other treatment modalities or options in respect of his diminished sense of smell. There is no evidence that he was unable to obtain appropriate clinical management of his anosmia on his return to his home in Canberra thereafter. By his own account, he did not pursue clinical management or any treatment at all for his anosmia for most of the following year. This was a matter of choice which is not properly characterised as an inability to obtain appropriate clinical management.
Factor 6(o) – related to service
Furthermore, even if I am wrong on these matters, under cl 5 of the SOP, the factor in cl 6(o) must be related to the person’s service and, under cl 7, it only applies to a material contribution to, or aggravation of anosmia that was suffered before or during, but not arising out of the person’s service. In Money’s case, Dowsett J set out the process to be followed –
87. … For present purposes, it would not be sufficient to identify the connection as being simply "inability to obtain appropriate clinical management". That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service. That process necessarily involves:
• identification of a discernible material contribution or aggravation; and
• description of the connection between such contribution or aggravation and the Veteran’s service.[42]
[42] Ibid, per Dowsett J at [87].
The present evidence does not establish that any inability to obtain appropriate clinical management prior to 31 October 2016 materially contributed to or aggravated Mr Dempsey’s anosmia.
Taking Dr Albekaa’s evidence at the highest, the various treatment options to which he referred have two common characteristics. Firstly, they are somewhat controversial or experimental - they are not scientifically proved or widely accepted. On my assessment of the present evidence, as I have said, such treatments are not essentially within the scope of ‘appropriate clinical management’. Secondly, the treatments are intended to reverse or ameliorate the effects of anosmia – their purpose aims to be remedial, therapeutic or analeptic. I am not persuaded that the absence of such treatments from clinical management of Mr Dempsey’s anosmia contributed materially or aggravated his anosmia. The present evidence does not establish that failure to provide advice or recommendations about treatments of the kinds referred to by Dr Albekaa, and any resultant inability to obtain such treatments prior to Mr Dempsey’s discharge on 31 October 2016, materially contributed to or aggravated his anosmia.
I am reasonably satisfied that Mr Dempsey’s anosmia was caused by damage to his olfactory nerves consequent to the viral infection he contracted in August 2016. On the present evidence, the proposition that Mr Dempsey’s anosmia was materially contributed to or aggravated by an inability to obtain appropriate clinical management of anosmia is not made out on the balance of probabilities.
I am not persuaded or satisfied that the factor in cl 6(o) is made out.
That being so, Mr Dempsey’s claim does not satisfy the requirements of the anosmia SOP.
Is there a ‘service injury’ or a ‘service disease’ for which the Commission is liable?
Mr Dunn asserts that Mr Dempsey’s hyposmia and anosmia each amount to a service injury or a service disease. In his submission, Mr Dempsey’s hyposmia or partial anosmia was the result of an occurrence in the form of a viral infection while rendering service, within the meaning of s 27(a) of the MRCA, and his anosmia was the result of his inability to obtain appropriate clinical management of the hyposmia (or partial anosmia) condition.
The Commission asserts that the viral infection Mr Dempsey contracted is not within the meaning of ‘an occurrence’ for the purposes of s 27(a) of the MRCA.
The section is in the following terms-
27 Main definitions of service injury and service disease
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e) the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
For the reasons that follow, Mr Dunn’s submissions and Mr Dempsey’s claim are not made out.
Firstly, Mr Dempsey’s claim is to be assessed applying the reasonable satisfaction standard of proof. Under s 23 of the MRCA, liability for a ‘service injury’ or a ‘service disease’, as defined in s 27 of that Act, is to be determined applying the reasonable satisfaction standard of proof set out in s 335. In the circumstances of Mr Dempsey’s case, reasonable satisfaction is not at large, but is subject to s 339 of the MRCA –
339 Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.
Note: Subsection 335(3) is relevant to these claims.
(2) …
(3) In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act; and
(c) the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim for acceptance of liability for a person’s injury, disease or death if the Repatriation Medical Authority has neither determined a Statement of Principles under subsection 196B(3) of the Veterans’ Entitlements Act 1986, nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury sustained by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
As can be seen, in a case where an SOP has been determined in respect of the kind of injury or disease sustained or contracted by the person, as in Mr Dempsey’s case, reasonable satisfaction about the existence of a service injury or a service disease may be achieved only where the material raises a connection between the injury, disease or death under claim and the particular service rendered by the claimant and the materials and the SOP uphold that connection on the balance of probabilities.
There is no discretion vested in the Tribunal to depart from these provisions.
Secondly, the anosmia SOP (as with all SOPs) “sets out the minimum conditions that must exist for a claim to succeed”.[43] If the SOP does not uphold Mr Dempsey’s claim in respect of anosmia, the claim cannot succeed. The anosmia SOP sets out factors, at least one of which must exist and be related to Mr Dempsey’s relevant service. The contraction of an infection, which he presses as “an occurrence” that caused his anosmia (or hyposmia) for the purposes of s 27(a) of the MRCA, is within the scope of factor 6(c). I have dealt with this above.
[43] Woodward v Repatriation Commission [2003] FCAFC 160 at [100], citing Re Jenkin and Repatriation Commission (1997) 47 ALD 721.
Thirdly, much as Mr Dunn asserts that Mr Dempsey suffered from hyposmia or partial anosmia that only later became ‘anosmia’ for the purposes of the SOP when it became permanent and total, as I have said, this is not consistent with the medical evidence.
Fourthly, even if Mr Dempsey’s anosmia was found to fall outside the terms of the SOP definition on grounds that it was not total and permanent for a time, as I have said, the SOP applies from the date of clinical onset of the ‘anosmia’.
Lastly, even if Mr Dempsey’s claim in respect of loss of olfactory function was to be assessed as a ‘non-SOP’ condition, the causal tests set out in s 27 of the MRCA would apply.
The Full Federal Court in Repatriation Commission v Law[44] considered provisions of the Repatriation Act 1920 that are different to but relevantly comparable with s 27 of the MRCA and concluded that ‘an occurrence’ refers to an event, mishap or incident that causes incapacity or death “which is susceptible of differentiation from the course of events which constitute the ordinary course of life”.[45] In consideration of the MRCA, to my mind, the meaning of “an occurrence” set out by the Full Court in Law’s case is consistent with the text and purposes of s 27(a).
[44] [1980] FCA 92; (1980) 31 ALR 140.
[45] Ibid at 149.
Thus, for the purposes of s 27(a) of the MRCA, “an occurrence” may be taken to refer to an event, mishap or incident that is temporally related to the person’s relevant service, differentiated from the course of events in the ordinary course of life and causally related to the service injury or service disease under claim.
This requires careful consideration of the nature and circumstances of the alleged ‘occurrence’.
As I have said, there is only scant evidence of the circumstances in which Mr Dempsey contracted the upper respiratory tract viral infection for which he first sought treatment on 22 August 2016. There is simply not sufficient evidence to enable me to be reasonably satisfied that Mr Dempsey’s contraction of the infection was differentiated from the course of events in the ordinary course of life. While it is not necessary for service to have been causally implicated in the contraction of the infection or to have contributed to it for it be “an occurrence”,[46] and in appropriate circumstances the contraction of a disease or an infection might be within the meaning of “an occurrence”, there must be some characteristic or feature or circumstance, or some conduct of the person as Toohey J observed in Law v Repatriation Commission[47], that lifts the contraction of the infection from the course of ordinary life. No such finding can be made on the present evidence - the circumstances in which Mr Dempsey contracted the virus in August 2016 remain opaque.
[46] Woodward v Repatriation Commission [2003] FCAFC at [86].
[47] (1980) 29 ALR 64.
In submissions, Mr Dunn noted that the viral infection was referred to as a common cold, which he considered to be unremarkable. He sought to distinguish this from a viral infection that damages the olfactory nerves. As I comprehend this submission, it is the damage to Mr Dempsey’s olfactory nerves sometime after the contraction of a common cold which is raised as “an occurrence”. It is this event that Dr Bird and Dr Albekaa identified as the onset of Mr Dempsey’s ‘anosmia’, whereupon the anosmia SOP applies. Even if I am wrong about this, and I have misunderstood Mr Dunn’s submission, no different result obtains.
If it were to be accepted that Mr Dempsey’s olfactory difficulties should be assessed outside the terms of the anosmia SOP on the basis that they were for a time outside the defined meaning of ‘anosmia’, his claim and Mr Dunn’s submissions are not made out. The present evidence and the whole of the materials before the Tribunal do not establish that Mr Dempsey was unable to obtain appropriate clinical management of his olfactory difficulty, or that his service, including any such inability, materially contributed to or aggravated the onset or progress of this condition at any time. Furthermore, it is not established that Mr Dempsey’s loss of olfactory function arose out of, or is attributable to his service, or that he would not have suffered the olfactory loss but for the service he rendered.
I will go no further on this point as it is not necessary to do so. I have found that the anosmia SOP applies from the clinical onset of Mr Dempsey’s ‘anosmia’ on or soon after 22 August 2016. It would not be consistent with the purposes and objects of the legislation to assess his olfactory loss outside the terms of the SOP for anosmia, as to do so would undermine or usurp the SOP scheme the legislation provides.
Conclusion
Having considered the whole of the material before the Tribunal, I am unable to be reasonably satisfied that Mr Demspey’s claim in respect of anosmia as a service injury or a service disease is made out.
The connection contended for by Mr Dunn between Mr Dempsey’s anosmia and the circumstances of his service is not upheld, on the balance of probabilities, by the material before the Tribunal and the anosmia SOP. The assertion that Mr Dempsey suffered from hyposmia is not supported by probative medical evidence and is rejected. The submission that he suffered from symptoms of olfactory loss that are outside the defined meaning of ‘anosmia’ in the SOP is rejected – the SOP applies from the clinical onset of ‘anosmia’ on or soon after 22 August 2016.
The proposition that Mr Dempsey suffered from partial olfactory loss for a time after he contracted the upper respiratory tract infection in August 2016 but before the clinical onset of total and permanent anosmia does not amount to a service injury or a service disease – none of the causal tests in s 27 of the MRCA are satisfied.
That being so, the decision under review must be affirmed.
Decision
Decision affirmed.
I certify that the preceding 135 (one hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.
........................................................................
Associate
Dated: 20 January 2021
0
8
0