Dihm and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2022] AATA 480
•18 March 2022
Dihm and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 480 (18 March 2022)
Division:VETERANS' APPEALS DIVISION
File Number:2021/2294
Re:Jack Dihm
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:18 March 2022
Place:Brisbane
The Tribunal affirms the reviewable decision.
............[SGD]........................................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – claim for compensation – dental caries - date of onset of disease prior to commencement of the Safety, Rehabilitations and Compensation (Defence-related Claims) Act 1988 (Cth) – transitional provisions dictate eligibility requirements – whether the Veteran’s disease was contributed to by his service – whether the Veteran’s disease resulted in incapacity for work – decision under review affirmed
LEGISLATION
Safety, Rehabilitations and Compensation (Defence-related Claims) Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
CASES
Comcare v Laidlaw (1999) 89 FCR 141
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Member D Mitchell
18 March 2022
INTRODUCTION
Mr Jack Dihm (the Veteran) is seeking review of a decision made by the Respondent on
15 February 2021.[1][1] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
The reviewable decision affirmed a determination[2] that the Applicant is not entitled to compensation under section 14 of the Safety, Rehabilitations and Compensation (Defence-related Claims) Act 1988 (Cth) (DRC Act) for the claimed condition of dental caries.[3]
[2] Exhibit 1, T Documents, T10, pages 98-102, Determination.
[3] Exhibit 1, T Documents, T15, pages 111-114, Reviewable Decision.
BACKGROUND
The Veteran served in the Royal Australian Army between 14 January 1972 and
14 January 1996.[4][4] Exhibit 1, T Documents, T4, pages 65-73, Statement of Service.
On 14 October 2020, the Veteran lodged a claim for acceptance of liability for dental caries under the DRC Act stating that he considered that his smoking and accepted conditions of APVD and diabetes type 2 contributed to his dental caries. The Veteran attached a completed injury or disease sheet completed by Dr Felipe Lemos, dentist.[5]
[5] Exhibit 1, T Documents, T1.4, pages 25-40, Claim for Compensation – Dental Caries, attaching Injury or disease details sheet completed by Dr Felipe Lemos.
On 25 November 2020, the Respondent, relying on a CMA Opinion[6] that provided that dental caries was detected on 31 March 1980, that the Veteran required treatment for this condition throughout his service and, that the current state was consistent with the progress of the disease at the pre-existing rate with no evidence of aggravation, determined that the Veteran was not entitled to compensation for dental caries.[7]
[6] Exhibit 1, T Documents, T9, pages 96-97, CMA Opinion.
[7] Exhibit 1, T Documents, T10, pages 98-102, Determination.
On 22 December 2020, the Veteran sought review of that determination.[8]
[8] Exhibit 1, T Documents, T11.1, pages 104-105, Request for Review.
On 15 February 2021, the Respondent affirmed the determination, finding that the Veteran’s dental caries were not related to his service.[9]
[9] Exhibit 1, T Documents, T15, pages 111-114, Reviewable Decision.
On 11 April 2021, the Veteran sought review of that decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T1; T1.1-1,9, pages 1-56, Application for Review and attachments.
Reports were provided from the Veteran’s treating dentists, including from Dr Lemos,[11] Dr Jenny Wang,[12] and Dr Peter Russell, prosthodontist.[13] Each report outlines the treatment required and recommended, as well as what treatment had already been provided. The reports did not, however, provide opinions that the Veteran’s service in the Army contributed to his dental conditions.
[11] Exhibit 3, Hearing Book, A1 and A2, pages 1-3, Reports of Dr Felipe Lemos.
[12] Exhibit 1, T Documents, T2.1, page 59, Report of Dr Jenny Wang;
[13] Exhibit 1, T Documents, T16 and T16.1, pages 115-123, Email from Dr Peter Russell to DVA enclosing a Request for approval of dental implants.
An independent medical examination report was provided by Dr John Joyce, dental surgeon, on 2 August 2021.[14] After a clinical examination of the Veteran and review of the provided service records, Dr Joyce opined that the Veteran was not suffering from dental caries at the time of consultation because he had undergone significant restorative treatments, as well as extractions.[15]
[14] Exhibit 3, Hearing Book, R1, pages 10-19, Report of Dr John Joyce.
[15] Exhibit 3, Hearing Book, R1, pages 10-19, Report of Dr John Joyce.
Dr Joyce opined that:[16]
·Dental caries is an ailment.
·The onset of the Veteran’s dental caries was 13 January 1977.
·Although there was some evidence from the Veteran’s original treatment card from 26 January 1972 that some dental treatment may have been undertaken prior to 1972, there were no other notes on that card with regards to any active caries or further treatment undertaken.
·The treatment card dated 13 January 1977 notes a number of tooth surfaces which underwent restoration and that a tooth was to be removed. The Veteran attended 5 further dental appointments between 18 January 1977 and
17 February 1977. It is highly probable that these restorations were performed due to dental caries and, therefore, the date of onset of the Veteran’s dental caries in the absence of any dental records prior to 1972 is 13 January 1977.·He is unable to confirm the cause of the Veteran’s dental caries.
·The dental notes over the years from 1972 up until 1995 are fairly vague in relation to diet, oral hygiene, saliva flow and tooth morphology.
[16] Exhibit 3, Hearing Book, R1, pages 10-19, Report of Dr John Joyce.
In relation to what the contributing causative factors to the development of the Veteran’s dental caries were generally, Dr Joyce stated:[17]
Dental caries can be caused by a combination of factors including type of bacteria in the mouth, diet (acidity and sugar content), oral hygiene, tooth morphology (deep fissures, hypo-mineralized areas and saliva quality (hydration).
It is to be noted that regular dental visits (6-12 monthly) along with early diagnosis, diet advice, oral hygiene advice, fluoride supplements for high-risk patients and meticulous home care may reduce the risk of developing dental caries.
[17] Exhibit 3, Hearing Book, R1, page 16, Report of Dr John Joyce.
Dr Joyce went on to opine that:[18]
·The Veteran did not suffer from any condition that arose out of service because, as at 31 October 1995, the dental treatment was complete without any active caries noted on completion of the 25do restoration and the full mouth scale and clean and fluoride.
·A significant deterioration has occurred from 1995 to 2015, and he has no clinical notes or radiographs over that period to comment on this deterioration. There was some mention of the diet from 1972-1995, and the incidence of smoking in relation to the Veteran’s cause of dental caries; however, he was unable to correlate these as direct causes of the Veteran’s dental caries.
[18] Exhibit 3, Hearing Book, R1, page 17, Report of Dr John Joyce.
The Veteran provided a further statement in response to Dr Joyce’s report, setting out details about his childhood and stated that he did not recall having any dental treatment prior to 1972.[19] The Veteran also reiterated the living conditions during his attendance at the Army Apprentices School and beyond, in particular, noting that:[20]
·He considered that the daily meals comprised a terrible diet of too many types of food and sugary drinks which were low in fibre or high in fat, salt and/or sugar. Large, insulated urns of tea sweetened with condensed milk and sugar, together with malt biscuits, were provided every day for consumption at the morning tea break.
·During his time at the Army Apprentice School, the drinking water was not fluorinated and that, to the best of his knowledge and belief, fluorinated supplements were not added to any drinkable solution provided.
·Regular dental inspections by the Dental Corps did not occur. As per his previous statement, he had not received annual dental reviews during the years 1973-1976, 1978-1979, 1981, 1984 or 1988-1989.[21]
·He commended smoking in the service in 1976 and the pack days increased throughout his service.
[19] Exhibit 3, Hearing Book, A3, pages 4-9, Statement of the Veteran.
[20] Exhibit 3, Hearing Book, A3, pages 4-9, Statement of the Veteran.
[21] Exhibit 1, T Documents, T1.2, page 23, Service Dental History and T2.2, pages 60-61, Overview – Dental Caries AAT Appeal – DVA Determination.
Dr Joyce was asked to provide a supplementary report[22] in response to further information that had come to light and statements provided by the Veteran. Dr Joyce provided that his opinion, as summarised above, had not changed.[23]
[22] Exhibit 3, Hearing Book, R2, page 28, Briefing letter to Dr John Joyce.
[23] Exhibit 3, Hearing Book, R2, pages 29-33, Report of Dr John Joyce.
At Hearing, the Veteran appeared by telephone, was self-represented and gave evidence under affirmation. The Tribunal considers that the Veteran was open and honest in the provision of his evidence. The Veteran told the Tribunal that he accepted the reports and opinions of Dr Joyce, in particular, he accepted that the date of onset was 13 January 1977 and that his dental caries condition was correctly referred to as being a disease.[24]
[24] The Veteran’s evidence at Hearing was consistent with the statements he provided throughout his application and review processes.
THE LAW
The transitional provisions of the DRC Act provide rules in relation to the acceptance of liability in relation to an injury, loss or damage suffered by an employee before the commencing day of the DRC Act.[25]
[25] Section 123A and 124 of DRC Act.
In this matter, the date of onset of the Applicant’s dental caries has been agreed as
13 January 1977. As such, in order for the Veteran to be entitled to compensation under the DRC Act, compensation would have had to have payable to him in respect of that injury under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act).[26]
[26] Sections 124(1A) and (2)(c) of DRC Act.
Section 27(1) of the 1971 Act sets out the general liability to pay compensation as follows:
If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
There is no dispute that the Veteran’s dental caries is a disease for the purposes of the 1971 Act, and such classification is accepted by the Tribunal. Section 29(1) and (2) of the 1971 Act relevantly provides:
(1)Where –
(a) an employee contracts a disease or suffers an aggravation, acceleration
or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If –
….
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g) …the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
The term disease is defined in section 5(1) of the 1971 Act to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.
Section 5(11) of the 1971 Act relevantly provides that the incapacity of an employee shall be taken to have resulted from a disease contracted by an employee or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the disease or the aggravation acceleration or recurrence, as the case may be, contributed to the incapacity.
As such, the 1971 Act requires that for compensation to be payable in relation to disease, the disease must:[27]
(a) be contributed to by the employment; and
(b) result in incapacity for work.
[27] As confirmed by Finn J in Comcare v Laidlaw (1999) 89 FCR 141 at 145.
ISSUES
The issue to be determined by the Tribunal is whether the Veteran is entitled to compensation for dental caries under section 14 of the DRC Act.
In considering this issue, the Tribunal must consider the Veteran’s entitlement for compensation under the 1971 Act, noting that it is accepted that the Applicant’s dental caries had a date of onset of 13 January 1977 and was a disease for the purposes of the 1971 Act. On that basis, the questions that must be answered in the affirmative in order for the Veteran to be successful in his application are:
(a) was his dental caries condition contributed to by his service; and
(b)did his dental caries condition result in an incapacity for work?
CONSIDERATION
At Hearing, the Veteran told the Tribunal that he has a Department of Veterans’ Affairs (DVA) Gold Card that covers all of his medical treatment while in Australia. The issue for the Veteran is that he and his wife reside in Vanuatu and, with the COVID-19 restriction on travel, is not able to readily return to Australia to receive medical treatment. This means that, as his dental caries are not an accepted condition, he is not automatically entitled to have treatment for that condition paid for under his DVA Gold Card. The Veteran told the Tribunal that he has to seek approval from DVA in relation to any treatment he sought to have in Vanuatu, and it can take up to 6 months for a decision to be made.
As such, the Veteran is seeking to have his dental caries condition recognised as being contributed to by his service.
The Veteran told the Tribunal, both in his written material and at Hearing, about his challenging childhood and that, as a result, he did not recall having any treatment prior to 1972. The Veteran said, however, that he accepts that the evidence shows that he did.
The Veteran told the Tribunal he was a retired solider, having served 24 years in the Army. He enlisted at 16 years and 9 months old. He was a kid who then put his whole life into his role as a radio mechanic. The Veteran said it was the Army’s responsibility to train, feed and look after him medically for the period he was enlisted. Over the years, he has submitted numerous claims in relation to medical conditions, of which, 12 have been approved.
The Veteran told the Tribunal he felt that the system had let him down. He was not provided with regular dental checks during his enlistment and, while he could request medical reviews, the reality was that completing his trade and seeking to establish his career meant that was not possible. The Veteran said the culture was that you would grin and bear the pain, and deal with any problems when you could.
The Veteran outlined the dental and some of the other treatment he has received since his discharge from the Army. He said that he accepts the reports of Dr Joyce, and that he had no idea that he may have had treatment for dental caries prior to his enlistment until he read Dr Joyce’s report.
The Veteran told the Tribunal that there was no record that he was ever incapacitated for work due to his dental caries or any of the dental work that he underwent during his enlistment. Further, he does not recall having ever had any time off due to his dental concerns, rather he said that after receiving treatment, generally, he would be sent straight back to work with a numb mouth. The Veteran said it was a different time then, you just got on with things.
The Respondent sought to rely on its Statement of Issues, Facts and Contentions.[28] In summary, the Respondent contended that the Veteran is not entitled to compensation under the DRC Act in relation to his dental caries condition because:
·on the balance of probabilities, relying on the evidence of Dr Joyce, the evidence before the Tribunal does not show that the Veteran’s service caused his dental caries; and
·there is no evidence before the Tribunal that the Veteran’s dental caries resulted in an incapacity for work.
[28] Exhibit 3, Hearing Book, R3, pages 37-46, Respondent’s Statement of Issues, Facts and Contentions.
In looking at this matter, the Tribunal appreciates the concerns raised by the Veteran in relation to access to dental services in Vanuatu, especially in circumstances where travelling back to Australia is no longer an easy feat and, at times, prohibitive. Further, the Tribunal appreciates the Veteran’s honesty in relation to his service and the treatment he received both during and post his enlistment.
The Tribunal accepts that access to medical treatment and the culture in relation to requesting such treatment in the Army was very different during the Applicant’s enlistment.
It is accepted by both the Veteran and the Respondent that the date of onset of the Veteran’s dental caries was 13 January 1977. The Tribunal accepts that to be the case, noting Dr Joyce’s report.
In considering whether the Veteran’s dental caries were contributed to by his service, regard must be had to whether the available evidence allowed for a causal connection to be established on the probabilities, rather than on possibility or conjecture.[29]
[29] Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.
The Veteran conceded that there was no available corroborating evidence in relation to his diet up to the date of onset and that the dental notes provided limited information. He told the Tribunal that, although he did not know exactly what had caused his dental caries, he believes his service was a contributing factor.
The Tribunal considers that, based on the evidence before it, largely being that provided by the Veteran and Dr Joyce, the causal connection between the Veteran’s dental caries and his service have not been established to be more than a possibility. As such, while the Tribunal accepts the Veteran’s evidence, the Tribunal cannot be satisfied that the strength of the evidence before it establishes, on the basis of probabilities, a causal connection to his service.
Given the requirements of the 1971 Act, even if the Tribunal could have been satisfied that the Veteran’s dental caries were contributed to by his service in the Army, all evidence before the Tribunal indicates that this condition did not result in an incapacity for work. As such, the Veteran’s claim must fail.
Consequently, based on the evidence before it, the Tribunal finds that the Veteran would not have been entitled to compensation for his dental caries condition under the 1971 Act and, consequently, is further not eligible for compensation under section 14 of the DRC Act for that condition.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..................[SGD]...........................................
Associate
Dated: 18 March 2022
Date of Hearing: 9 March 2022 Applicant: By phone Solicitors for the Respondent: Ms Nicky McGowan
Australian Government Solicitor
0
3
0