Dempsey and Military Rehabilitation and Compensation Commission (Compensation)

This matter concerned an appeal by Dominic Dempsey, a flight sergeant in the RAAF, against a decision by the Military Rehabilitation and Compensation Commission to refuse his claim for compensation for a service injury. Mr Dempsey had contracted an upper respiratory tract viral infection during peacetime defence service, which resulted in a diminished sense of smell that did not recover, leading to a diagnosis of anosmia. The Veterans’ Review Board had affirmed the Commission's decision, though on different grounds. The Tribunal was required to review Mr Dempsey's application.

The primary legal issue before the Tribunal was to determine the clinical onset of Mr Dempsey's anosmia, a condition defined in a Statement of Principles (SOP). This involved considering when the symptoms or features of the condition were such that, if observed by a clinician, they would warrant a conclusion of the presence of the disease. The Tribunal also had to consider whether the anosmia was of a post-viral origin, as required by the relevant SOP.

The Tribunal applied the disjunctive test for clinical onset established in *Kaluza v Repatriation Commission*, which allows for clinical onset to be determined either by the date of the onset of symptoms that indicate the presence of disease, or by a finding made on investigation when a person attends a doctor. The Tribunal noted that the determination of clinical onset is a matter for medical evidence and that it is not necessarily the date the patient first sees a doctor. The Tribunal accepted the medical evidence that Mr Dempsey's anosmia was of a post-viral origin, with the virus having damaged his olfactory organ, likely through damage to olfactory nerves and related cells or disruption of neural pathways.

The Tribunal found that the evidence was sufficient to establish, on the balance of probabilities, that Mr Dempsey's anosmia was of a post-viral origin. The Tribunal also considered the meaning of "total" and "permanent" in the context of the SOP definition of anosmia, noting that the clinical onset could involve progressively worsening symptoms.