Dodd and Military Rehabilitation and Compensation Commmission
[2007] AATA 1399
•5 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1399
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/680
VETERANS’ APPEALS DIVISION )
Re ROY ANTHONY DODD Applicant
And
MILITARY REHABILITATION and COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date5 June 2007
PlaceBrisbane
Decision
The Tribunal affirms the decision under review.
..............[Sgd]..............
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – military compensation scheme – time-frame for giving notice of injury – medical treatment includes dental treatment paid for by the Commonwealth – whether subsequent deterioration an injury or a disease – whether a consequence of treatment – whether any unintended consequence of treatment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 6A, 14, 53
Thiele v Commonwealth of Australia (1990) 22 FCR 342
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Comcare v Luck (1999) 29 AAR 403
Re Deveson and Comcare [1999] AATA 80
Re Ditchburn and Comcare [2003] AATA 450
Comcare v Houghton (2003) 128 FCR 485
Repatriation Commission v Brown (1990) 21 ALD 290
Re Price-Beck and Comcare (2003) 74 ALD 187
Re Shoobert v Military Rehabilitation and Compensation Commission [2004] AATA 1087
Re Eaton and Comcare (2002) 67 ALD 182Glendenning and Comcare (2004) 78 ALD 723
REASONS FOR DECISION
5 June 2007 Mr RG Kenny, Member Background
1. Roy Dodd served as a member of the Australian Army from 7 February 1968 until 6 February 1970 and from 31 October 1974 until 31 March 1998. On 10 October 2004, he completed a claim for rehabilitation and compensation in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) in respect of “failed Army dental treatment”. On 2 February 2005, a delegate of the Military Rehabilitation and Compensation Commission rejected the claim. On 25 August 2005, the determination was affirmed by the Manager Reconsiderations with the Military Compensation and Rehabilitation Service (MCRS) and, on 28 October 2005, Mr Dodd sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
2. The first issue for determination in this matter is whether or not the notice requirements as set out in s 53 of the Act have been complied with. It provides that the Act does not apply “unless notice in writing of the injury is given to the relevant authority as soon as practicable after the employee becomes aware of the injury”. However, s 53(3) qualifies that by providing that the notice is taken to be given where:
“(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause.”
3. If notice has been given under s 53 of the Act, the next issue to determine is whether Mr Dodd suffered an injury, as provided for in s 6A(2) of the Act, which reads:
“If, at any time, whether before, on, or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies”.
Applicant’s Evidence
4. Mr Dodd gave the following evidence. Before he joined the Army in 1968, as a national serviceman, he had no problems with his teeth apart from the ordinary fillings that one has at that age. He also said that he had no problems in that regard when he was first discharged from the Army in 1970 or in 1974 when he reenlisted. He recalled attending the dental unit in about 1977 where it was noted that he suffered from bruxism, the habit of grinding his teeth. He did this in his sleep and was told of the habit by his wife. This began after he returned from his tour of duty in Vietnam. A splint was made for him to wear on his teeth at night to alleviate the problem. Prior to 1993, he had various forms of dental treatment for tooth infections, root canal work, bad breath and painful jaw joints. His Army dentist was Robyn Clark and, in 1993, she referred him to prosthodontist, David Thomson. He was fitted with 20 crowns and 2 bridges. The treatment was undertaken over several months and, at its completion in December 1993, Dr Thomson told him that he would need to be reviewed every 6 months. Dr Thomson did not tell him how long the work would last but he believed that he would be “ok for about 15 years”. He was not told that temporary cement had been used in the dental work.
5. During the next six months, he experienced problems with some of the crowns and one of the bridges. In 1994, he lost one crown whilst swimming and another whilst he was eating. The Army dental section referred him to Dr Thomson who replaced the crowns. He also saw Dr Thomson on a few other occasions in 1994 for the adjustment of his splint, for the re-cementing of another crown and for the re-cementing of a bridge. In December 1995, Mr Dodd was transferred to Perth where he again underwent further dental treatment. After returning to Brisbane, he again saw Dr Thomson in January 1998 for the re-cementing of another crown. After leaving the army in March 1998, Mr Dodd went to Dr Clark who was then in civilian practice. She referred him to Dr Thomson for re-cementing of a crown in May 1999. He was no longer in the army at that stage.
6. Mr Dodd agreed that he had received dental treatment on many occasions during his service prior to seeing Dr Thomson and had been advised frequently of the need for oral hygiene techniques to be practiced including the flossing procedure. He believed that he was compliant with the practices and considered that the oral hygiene instructions were not specific to him but rather “standard stuff” in dental advice. He believed that he complied with flossing requirements about 80% of the times he cleaned his teeth. He denied being blasé about his oral hygiene and said that, whilst he was told he needed to practise flossing, he was not told that it was “imperative” to do so. He did not receive, in 2000, a telephone message or letter advising him to return to see Dr Thomson.
7. Mr Dodd made, from 1970 onwards, several successful claims for recognition of various conditions as being related to his Army service in Vietnam. These were for hearing loss, tinnitus, lumbar spondylosis and post traumatic stress disorder. He is now in receipt of the special rate of pension under the Veterans’ Entitlements Act 1986. Although he could not recall doing so, he accepted that there was documentation to indicate that he had sought review after initial rejection of a claim for one of those conditions. Mr Dodd did not claim compensation for his teeth while he was still in the army. He was not aware that he was able to make such a claim and, in any event, the cost and carrying out of any dental treatment was covered by the army. Mr Dodd was treated by Dr Clark until October 2004 and became aware of the costs associated with having his crown work corrected. He understood that it might cost up to $30,000. He had been in employment since leaving the army but that work had ceased in 2003. Given his financial situation, and faced with the costs of the dental work, he lodged a claim for compensation.
Medical Evidence
8. The medical evidence in this case comprised reports and oral evidence from three specialist prosthodontists, David Thomson, William Bruce and Peter Vincent.
Dr Thomson
9. Dr Thomson’s routine practice is to have a full discussion with a patient about treatment including the nature of the cement material that he would use for crown and bridge work and about the importance of review after treatment was completed. He used a semi-permanent cement called Fynal which would allow the crowns to be removed, modified and replaced if required. In a report, dated 1 March 2007, Dr Thomson wrote that, “[i]f the restorations required no modification then the crowns were to be removed and cemented permanently after a 12 month period”. He also wrote that the patient was “to present six monthly for monitoring”. He said that, if the patient were not regularly reviewed, he would have problems with the crowns as there was an expectation that the temporary cement would fail if there was no follow-up.
10. Dr Thomson rejected the suggestions that the crowns were not fitted properly in the first instance and that there was a lack of marginal integrity between the crown and the tooth surface at that time. He conceded that the cement was not immune from dissolving but also said that it could last for years. He said that, given the number of crowns fitted, the re-cementing of some of them did not constitute a failure of the treatment.
11. When Dr Thomson re-cemented crowns in 1994 and 1999, it was his normal routine to inspect all of the other denture work at the same time. He re-cemented the crowns with permanent cement and it was his practice to discuss with the patient the issue of whether he would use temporary or permanent cement. Dr Thomson did not accept the suggestion that Mr Dodd had not been so informed. The permanent cement was a better option at that stage because he had checked the teeth and considered that it was appropriate to use permanent cement at that time. He did not consider, even with hindsight, that it would be prudent to replace all the crowns with permanent cement. He said that this could have been done but was not necessary and he advised Mr Dodd to consult him if he had further difficulties.
12. In his treatment notes, Dr Thomson included many references to oral hygiene. He did not routinely include such notations and would do so where the patient’s oral hygiene was not as good as expected. He said that such matters were very important for the maintenance of teeth. He last saw Mr Dodd in July 1999 when he again reinforced the need for oral hygiene and noted that he would need to be recalled in 12 months time. His treatment notes referred to a telephone message being left on his answering machine in August 2000 and a recall slip being sent to him in September 2000.
13. Dr Thomson’s treatment notes also included a 1996 entry that Mr Dodd had been “transferred [and] won’t be returning”. This was not a notation made by himself and he did not know whether it meant that Mr Dodd had been transferred to another dentist or transferred to a different Army establishment. It was put to Dr Thomson that he should have advised the Army, at that stage, that they would need to do follow-up work on Mr Dodd. Dr Thomson did not agree because he had provided reports of Mr Dodd’s treatment to the Army including the need for review and these would be available for any subsequent Army dental treatment.
14. Dr Thomson did not agree with the summary provided by Dr Bruce although he accepted his clinical assessment of the present state of Mr Dodd’s teeth. He considered Dr Vincent’s summary to be preferable but disagreed with his suggestion that it might have been preferable to remove the teeth and provide Mr Dodd with full dentures.
15. Dr Thomson described a rapid decline in the state of Mr Dodd’s teeth between 1999, when he last saw him, and 2004 when Dr Bruce provided his analysis of the state of the teeth at that time. He said that this was not entirely surprising in the absence of regular monitoring and good oral hygiene. He did not accept that this rapid decline was due to the failure of the temporary cement. He said that bruxing can place undue loads on the teeth but considered that this would not be a problem if Mr Dodd was wearing his splint at night.
16. Dr Thomson agreed that, once temporary cement begins to dissolve, bacteria can enter below the crown, that this cannot be cleaned or even seen and that the decay process would begin. However, he said that, where that process began, it would be associated with pain which would cause the patient to seek dental treatment.
Dr Bruce
17. Dr Bruce completed reports dated 30 June 2004, 18 July 2005, 14 February 2006, 24 February 2006, 22 September 2006, 24 October 2006 and 21 December 2006. He noted that 7 crowns were replaced in the first two years after Dr Thomson’s treatment. He said that Mr Dodd now requires remedial dental work comprising crown replacements, root canal work, probable implant prosthodontics as well as extractions. Dr Bruce said that some of Mr Dodd’s teeth were in good condition and that these were located in the low front or part of the mouth where the saliva glands under the tongue are able to provide frequent rinsing. He identified the following teeth as needing treatment:
tooth
treatment
11, 13, 21, 22, 34 new porcelain/gold crown 14 new full porcelain/gold gold bridge retainer, possible root canal therapy 15 remake of bridge 16, 17 new full gold crown 24, 26 new crown bridge 25 probable extraction 35, 36 pontic implant or partial lower denture 37 extract/implant or porcelain lower denture 46 dismantle? new crown or extract/implant
18. The teeth for which Dr Bruce did not recommend treatment were 12, 23, 27, 38, 41, 42, 43, 44 and 45. Dr Bruce identified decay in teeth 14, 21 and 37 and possible decay in teeth 25 and 47. He identified problems with the crowns or bridge components in teeth 11, 13, 14, 16, 17, 21, 22, 24, 25, 26, 34, 35, 36, 37 and 46.
19. Dr Bruce was referred to Mr Dodd’s Army dental records from 1968 to 1970. He said that the extent of treatment which had been undertaken by that time indicated poor oral hygiene by Mr Dodd prior to enlistment. He said that the frequent references to oral hygiene did not mean that Mr Dodd was not compliant with appropriate practices. He considered that it was quite usual, especially where complex dental work was undertaken, to reinforce the need for this to be undertaken by the patient.
20. Dr Bruce considered the initial plan of Dr Thomson to be a good one but that the expected follow-up was necessary in order for it to be successful. This had not occurred. Nevertheless, he considered that, if permanent cement had been used initially, there would have been less opportunity for bacteria to develop. He said that, with permanent cement, the expected median survival time was 16.6 years. He considered that Mr Dodd was now worse off than he would have been if he had not had the treatment in the first place.
21. Dr Bruce agreed that Mr Dodd’s bruxism had played an important part with his teeth problems. However, he considered that the dislodgement of the crowns was not due to this but to the action of acid in Mr Dodd’s mouth and to infection caused by bacteria which entered the teeth due to the dissolving of the temporary cement. Dr Bruce was critical of the extended use of temporary cement and said that, by using that term, he was not referring to the number of teeth involved but to the long time-frame over which the temporary cement was retained without inspection. He said that, if he had been treating Mr Dodd, he would have re-cemented the crowns with permanent cement after 12 months.
22. Dr Bruce did not agree that full dentures were an option for Mr Dodd in 1993. Dr Bruce noted the report completed by Dr Thomson in July 1995 in which he described the crown and bridge work as being in good condition. He conceded that Dr Thomson must have inspected all the teeth at that time.
Dr Vincent
23. Dr Vincent completed a report dated 4 July 2006. He rejected the contention that the crowns had not been properly fitted by Dr Thomson. He also disagreed that there had been inappropriate marginal integrity and that this was demonstrated by the fact that the majority were still in place. He referred to the Fynal cement used by Dr Thomson. He described it as a very good temporary cement and one which, in the past, was used as permanent cement but which has been over taken by advanced technologies. He said that he has had experience with that cement where it has supported a crown for 15 years. He said it was a common practice to use temporary cement initially because, once a permanent cement is used, it is almost impossible to remove the crown. He believed that it was not necessary to replace all of the crowns with permanent cement on the basis that “if it ain’t broke don’t fix it”. However, he said that, if temporary cement is used, it needs to be followed up with subsequent inspections. Dr Vincent described the procedure conducted by Dr Thomson in 1994 as replacement of the crowns rather than a repair of them. He said that, when cement dissolves, an opportunity arises for bacteria to enter the teeth but that, if that happened, the crown would usually come off before decay set in.
24. Dr Vincent considered that Mr Dodd’s dental records at the time of his initial enlistment and until 1970 revealed a very high degree of decay for a person of his age. He said that this pointed to a lack of care by him for his teeth and that this was also reflected in the constant hygiene reminders and problems with gingivitis of the gums which are referred to in the Army medical records in the 1970s and 1980s. Dr Vincent considered that it was not normal practice to include references to flossing in treatment notes unless there was a perceived problem with the person’s oral hygiene. He said that Dr Thomson should have taken into account the history of Mr Dodd’s approach to oral hygiene as part of the assessment of what to do with his teeth in 1993.
25. Dr Vincent considered Mr Dodd’s habit of bruxing to be responsible for dislodging some of the crowns because the pressure created by that habit would fracture the cement. He noted that Mr Dodd was taking antidepressant medication and said that this has the effect of drying the mouth through reduction in saliva which meant that there was less opportunity for the teeth to be cleaned in a natural manner. He agreed that review on a regular basis of Mr Dodd‘s teeth would have enabled account to be had of the effects of bruxism and to any oral hygiene problems.
26. Dr Vincent was referred to the notes relating to the dental work completed on Mr Dodd in Perth in 1996. He said that this had nothing to do with the work of Dr Thomson. In one case, it was due to a gum problem. In the other, the crown had been removed to work on an underlying problem with the root canal which had resulted from treatment in the 1980s. He considered that, if a patient presented with that problem, the dentist would not take the opportunity of inspecting all the other teeth and would focus on resolving the particular problem which the patient brought to the dentist. Nevertheless, he considered that it would have been reasonable for Mr Dodd to have been referred for a check-up of all of his crown work at that stage but that, if this was not done, it would have been the patient’s responsibility.
27. Dr Vincent was of the opinion that any failure in the crown work was not only due to the use of the temporary cement. He considered that relevant factors in the causation were tooth decay, gum disease and bruxing. He also said that there was a protrusion of Mr Dodd’s central incisors and he considered that this was also a relevant factor in the dislodgement of crowns. He conceded that, in his report, he had said that the use of temporary cement would have gone a long way to explaining why the crowns and bridges come out. In evidence, he said that this was not the only cause although he conceded that it did contribute to the outcome.
28. Dr Vincent said that, sometimes, complex dentistry may be too difficult and that, in such cases, full dentures may be the best option. However, he noted that the work had not failed in this case and that Mr Dodd was still not ready for full dentures. He said that he is not worse off now than if he hadn’t had the treatment because he has had 12 years usage of his teeth.
Submissions
29. In relation to the timing of the initial compensation claim, Mr Anforth, for the applicant, submitted that no difficulty arose because each visit by Mr Dodd to an army dentist or a dentist to whom he was referred by the army, the Commonwealth was given notice of the problems with his teeth. He submitted that this was sufficient to satisfy the terms of s 53 the Act.
30. Mr Anforth submitted that Mr Dodd suffered an injury in that there was harm suffered by him in the form of the poor state of his teeth. He submitted that this was an unintended consequence of Dr Thomson’s treatment in that he failed to use permanent cement initially or in the 12 months time-frame he initially nominated. He also submitted that there was a failure by the Army to follow up with regular reviews of his teeth. Mr Anforth submitted that, at all times, Mr Dodd had been unaware that temporary cement had been used to affix his crowns. He also submitted that the evidence did not establish that Mr Dodd demonstrated poor oral hygiene or that his habit of grinding his teeth were responsible for the damage to the crowns. He submitted that, even if there was a shortfall in his oral hygiene management and even if bruxism played a part in contributing to his condition, the Army was bound to take him as they found him and that included his oral hygiene standards and his bruxism. Mr Anforth submitted that, as long as there was material contribution, in the sense of being more than de minimus, to the poor state of his teeth, that was sufficient to make the condition a consequence of the treatment. He submitted that the present state of Mr Dodd’s teeth was not an outcome intended by Dr Thomson and was, therefore, within the terms of s 6A of the Act.
31. Mr Clark, for the respondent, submitted that notice of any injury had to be in writing and any such notice had not been given by Mr Dodd at any time prior to his formal claim being lodged in 2004. Mr Clark submitted that this was not as soon as practicable after he became aware of his teeth problems. Mr Clark submitted that the respondent would be prejudiced by the delay, in particular, because of the rapid deterioration in the condition of Mr Dodd’s teeth after he left the Army which needed to be considered under s 6A(2) of the Act.
32. Mr Clark submitted that Mr Dodd was an unreliable witness whose evidence in relation to various aspects of his claim should not be accepted. This included the state of his teeth when he first joined the army, the extent to which he complied with oral hygiene requirements and the extent to which he was advised by Dr Thomson about aspects of his treatment including the use of temporary cement to affix his crowns. He also submitted that there was no identifiable injury which had been suffered by Mr Dodd and that his dental problems constituted a disease. Alternatively, he submitted that, if there were such injury, it could not be seen to be a consequence of the treatment provided by Dr Thomson. In that regard, he submitted that use of the term “consequence” meant that there needed to be a direct causative link between the treatment and the injury and that the principles of causation applicable elsewhere in the Act were not applicable to s 6A. He submitted that any injury could not be a consequence of Dr Thomson’s treatment if other causal factors were involved. He referred to bruxism, poor oral hygiene and the effects of the antidepressant medication taken by Mr Dodd as fulfilling that causal role. In relation to “treatment”, Mr Clark submitted that this was a reference to some positive aspect of treatment carried out by Dr Thomson and not the absence of any subsequent follow-up of that treatment.
Consideration
Notice requirement
33. The Act provides for compensation to be paid by the Commonwealth in respect of a work-related injury which is an unintended consequence of medical treatment paid for by the Commonwealth. The term “medical treatment” is defined in s 4(1) of the Act to include dental treatment. I accept, as was submitted by Mr Anforth, that the Act is beneficial in nature and that it should not be construed restrictively: see Thiele v Commonwealth of Australia (1990) 22 FCR 342. However, I also accept that the purpose of the notice requirement in section 53 of the Act is as described in Re Tierney and Reserve Bank of Australia(1988) 15 ALD 534 at 535:
"Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee's assertion of an injury alleged to have occurred on some specific occasion in the course of the employee's work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act."
34. In accordance with s 53(1)(a) of the Act, written notice of the applicant’s injury was to have been given by the applicant to the respondent "as soon as practicable" after he became aware of that injury. Mr Dodd’s claim form was received by MCRS in December 2004. This form can also constitute a notice: see Comcare v Luck (1999) 29 AAR 403 at 417.
35. In his claim form, Mr Dodd nominated April 1993 as the time when he first noticed his injury. However, the treatment complained of was commenced by Dr Thomson in July 1993. The first dislodgement and re-cementing was for the crown on tooth 11 in February 1994. Similar procedures followed for the bridge work on teeth 14 and 16 in May 1994; with tooth 12 in June 1994 after the crown was “flossed out”; with either tooth 37 or 38 in January 1998; and, after he left the army, with tooth 27 in May 1999. Dr Thomson saw him for the final time in July 1999 when he conducted a scale and polish procedure and noted that Mr Dodd was not using his interproximal brush. He noted that he wished to see Mr Dodd in 12 months time for an examination. His treatment notes indicate that a voice message was left on a telephone answering machine for Mr Dodd on 23 August 2000 and that a recall slip was sent to him on 29 September 2000. Mr Dodd’s evidence was that he received neither of these communications and, in the case of the voice message, it was noted at the hearing that an incorrect telephone number was recorded on the relevant page of Dr Thomson’s treatment notes.
36. It was Dr Thomson’s evidence that, when he completed re-cementing procedures, it was his practice to examine all of the teeth. I accept his evidence in that regard. Given that Dr Thomson did not wish to see Mr Dodd for 12 months, I am satisfied that the internal problems with Mr Dodd’s teeth were not manifest at that time. He did not return to see Dr Thomson thereafter.
37. In evidence were treatment notes from Dr Clark which indicate that she treated him between 1999 and 2004. On 12 June 2003, Dr Clark wrote to the Commonwealth Department of Veterans’ Affairs and advised that a large number of crowns needed replacement, that defective root canal therapies required re-treatment and that the military needed to accept some of the responsibility. It was Mr Dodd’s evidence that he became aware of the extent of his dental problems and their relationship to his military service in discussions with Dr Clark. The relevant time for the purposes of sub-section 53(1) of the Act is the time when the applicant became aware of the injury. Further, the awareness is not in relation solely to the presence of an injury but to that of an injury which arises out of employment. This distinction was noted by the Tribunal in Re Deveson and Comcare [1999] AATA 80; see also Re Ditchburnand Comcare [2003] AATA 450. In Re Deveson and Comcare, the Tribunal said:
“12. The Tribunal is mindful that in considering whether the applicant has complied with the obligations imposed by s53 of the 1988 Act, s53 of the 1971 Act or s16 of the 1930 Act, in each case the notification obligations relate only to injuries as defined by the relevant legislation. That of course means an injury arising out of or in the course of the person's employment. For example, when ‘injury’ is used in s53 of the 1988 Act, regard must be had to the definition of ‘injury’ in s4 which makes it clear that the injury is one which arises out of or in the course of employment, and similarly with s27(1) of the 1971 Act and s9 of the 1930 Act.
13. Having regard to the above, the Tribunal finds as fact that the first point in time at which the applicant could be said to have become aware, in any meaningful sense, of his injuries, being injuries that arose out of or in the course of his employment, was after he had gathered together all the material relevant to his claim and had confirmed in his own mind that there was a connection between the circumstances of his employment and his medical conditions. On his evidence, this was only a matter of a few weeks prior to the lodging of his claim for compensation on 15 July 1997 which served also as notification for the purposes of the 1988 Act”
38. Leaving aside the issue of whether or not Mr Dodd suffered from an injury rather than a disease, I am satisfied that notice was given to the Commonwealth in the timely manner required by s 53 of the Act. This was either through the letter written by Dr Clark or by the formal claim that Mr Dodd lodged in December 2004. Even if that were not the case, all of the Army’s dental records are available as are the records of Dr Clark for the post-service period and I am satisfied that the respondent is not prejudiced by treating Mr Dodd as having given sufficient notice. There was no evidence led by the respondent which would support a contrary finding.
Treatment by the Commonwealth and Mr Dodd’s injury
39. In Comcare v Houghton (2003) 128 FCR 485, Lindgren J described the scheme in the Act as involving the following:
§there must be medical treatment paid for by the Commonwealth (s 6A(2)(a));
§there must be the unintended consequential suffering of an injury (s 6A(2)(b));
§there must be resultant impairment (s 14(1)).
40. It is not in dispute and I am satisfied that the dental treatment provided by Dr Thomson constitutes medical treatment, as that term is defined in s 4(1) of the Act, and that it was paid for by the Commonwealth.
41. In Houghton, the employee suffered hearing loss following an operation for surgical removal of an acoustic neuroma. The Tribunal had determined that the hearing loss was an injury for the purposes of s 6A of the Act. In the Federal Court, Lindgren J held that the term injury, as it is used in s 6A(2) of the Act, does not take its meaning from the definition of that term in s 4(1) of the Act. His Honour referred to the distinction in s 14(1) of the Act between an injury and the impairment which results from the injury and said (at 492):
“The word ‘injury’ has a wide meaning. Hill J considered the meaning of the word as it occurred in the Veterans' Entitlements Act 1986 (Cth) in Repatriation Commission v Brown (1990) 12 AAR 253 at 257-259, and concluded that it signified the suffering of some harm. In that case, his Honour was concerned with the grinding down of two healthy teeth to near the gum line in order to provide the foundation for the fitting of a bridge. Hill J thought that, regarded in isolation, the two healthy teeth might be seen to have been injured by being ground down, but that properly viewed, the grinding down was not harmful but beneficial. Accordingly, his Honour held that the grinding down itself did not constitute an ‘injury’.”
42. Lindgren J held that the hearing loss constituted an impairment, as provided for under s 14 of the Act, but not an injury (at 492). Whatever constituted the injury which caused the hearing loss had not been identified by the Tribunal. His Honour said that, according to s 6A(2) of the Act, the unintended consequence of the medical treatment must be an injury rather than any ongoing impairment.
43. The Concise Oxford Dictionary gives the meaning of injury as “….wrongful action or treatment; harm, damage”. That reference to “harm” is consistent with the interpretation in Repatriation Commission v Brown (1990) 21 ALD 290, referred to by Lindgren J in Houghton (above), and in Re Price-Beck v Comcare (2003) 74 ALD 187. There, the Tribunal applied the meaning ascribed to the term in Houghton and also noted that the term injury, unlike the definition in subsection 4(1) of the Act, did not extend to a disease.
44. Mr Anforth submitted that harm to Mr Dodd was “the poor state of his teeth”. Whilst Lindgren J in Houghton attributed a wide meaning to the term injury, I am satisfied that it is not so wide as to extend to the harm as nominated by Mr Anforth. Not all of Mr Dodd’s teeth were treated by Dr Thomson and, further, some of those he did treat have not been identified by Dr Bruce as requiring treatment. In particular, this is the case with teeth 12, 23, 27, 44 and 45. In addition, those teeth which have been identified by Dr Bruce as requiring treatment do not suffer from a common problem. He described decay in teeth 14, 21 and 37; possible decay in teeth 25 and 47; as well as problems with the crowns or bridge components in teeth 11, 13, 14, 16, 17, 21, 22, 24, 25, 26, 34, 35, 36, 37 and 46.
45. The work undertaken on each of Mr Dodd’s teeth in preparation for the fixing of the crowns and bridges can not, in itself, constitute the injury. This is because the injury recognised under s 6A(2) of the Act must be a consequence of that treatment and not “part and parcel” of the treatment itself: see Houghton at 493 and Re Shoobert v Military Rehabilitation and Compensation Commission [2004] AATA 1087 at par 36.
46. In Re Price-Beck (above), the employee suffered a recurring infection in his tooth as a result of the failure of root canal therapy which had been performed by the Commonwealth some years earlier. As a result of the infection, the tooth was removed. The Tribunal held that the infection from which the applicant suffered did not constitute an injury for the purposes of s 6A(2) of the Act but, rather, a disease. I am satisfied that this is equally applicable to the dental caries recognised by Dr Bruce in teeth 14, 21 and 37 and possibly 25 and 47. As this does not constitute an injury, any decay in those teeth does not fall within the ambit s 6A(2) of the Act.
47. I am satisfied that the harm relating to Mr Dodd’s teeth which constitutes an injury is the dislodgement of various crowns fitted by Dr Thomson. In part, this arose through the use of temporary cement and an absence of a regular review program to monitor the crowns. However, it is not only crowns fixed with temporary cement which have been identified by Dr Bruce for replacement. Dr Thomson replaced the crowns on teeth 11, 12, 14 and 27 with permanent cement yet Dr Bruce recommended replacements for two of these ie teeth 11 and 14. Also, the original crowns on the teeth 23, 44 and 45, for which temporary cement was used, remain intact and have not been recommended for replacement by Dr Bruce. That is consistent with the evidence of Dr Vincent that there were factors other than the use of temporary cement which bore responsibility for the dislodgment of the crowns. He identified decay, gum disease, bruxing, the protrusion of Mr Dodd’s incisor teeth and the effect of saliva reduction due to antidepressant medication. Dr Thomson and Dr Bruce both referred to the role of bruxing in causing damage to crowns, although Dr Bruce considered that the dislodgment of the crowns was due to the action of acid in Mr Dodd’s mouth and infection caused by bacteria.
48. The original plan of treatment by Dr Thomson was to replace the crowns after 12 months. However, his evidence and that of Dr Vincent was that it was appropriate to remove and replace crowns only as needed. This was done on those occasions when Mr Dodd returned to see Dr Thomson with particular problems. I am satisfied that, on those occasions in 1994, 1995, 1998 and 1999, when he saw Mr Dodd, he took the opportunity to inspect the teeth and found no immediate need to replace any crowns additional to those about which Mr Dodd had come to see him. Indeed, the report completed by Dr Thomson in July 1995 described the crown and bridge work as being “in good condition”. Also, after he re-cemented the crown on tooth 27 in May 1999, he reviewed him 2 months later and was able to defer any further review for another 12 months. By then, Mr Dodd was no longer in the Army and no further treatment was provided at Commonwealth expense.
49. I have noted Mr Anforth’s contention that Dr Thomson should have followed up on review of arrangements for Mr Dodd after he had been “transferred” in 1995. However, I accept as entirely reasonable the explanation given by Dr Thomson that the Army was in possession of all the relevant treatment details. I have also noted Mr Anforth’s contention that a review should have been arranged by the dentists who treated Mr Dodd in Perth in 1996. Clearly, this was not done. However, the examination by Dr Thomson in 1999 did not provide him with any reason for concern and, as noted above, he was able to defer any further review for another 12 months.
An unintended consequence of treatment
50. In the event that the dislodgment of various crowns constitutes an injury for the purposes of s 6A(2) of the Act, it must still be determined whether or not this was an unintended consequence of treatment. The Act provides no guidance on what is meant by an unintended consequence. The Concise Oxford Dictionary gives the meaning of consequence as “….what comes by causation or follows by logic (from something preceding). The meaning of consequent is “following as a result; following logically; logically consistent; as a result, therefore. Event that follows another; the second half of a conditional proposition, dependent on the antecedent”. Mr Anforth submitted that a consequence would arise if the result was materially contributed to by the treatment. I accept that that is the appropriate manner for addressing causation in circumstances where section 4 of the Act is applicable. However, that is because s 4 specifically refers to a material degree of contribution. That is not the case with s 6A(2) of the Act. I am satisfied that, for a particular result to be a consequence of treatment, a more direct causal relationship than that which arises under s 4 is applicable: see Houghton (above) at 493. Accordingly, where there are causal criteria other than the treatment which leads to the injury, I am satisfied that the result can not be said to be a consequence of the treatment.
51. I accept as correct the reference by Mr Clark to the quality of Mr Dodd’s evidence. He was not a convincing witness. In relation to his employment history after leaving the Army, he was very guarded in his responses. Before agreeing that he had two jobs in warehouse management between 1998 and 2003, he gave inconsistent accounts in nominating his employers, where they were located and the length of time that he had been engaged by them. His evidence about his dental state at the time of his initial enlistment in the Army and about his oral hygiene levels are inconsistent with the observations of the specialists in this matter. Both Dr Bruce and Dr Vincent were of the opinion that his records revealed significant problems with his teeth in the first period of his service. Dr Thomson’s treatment notes included many references to oral hygiene information and his evidence was that this would be included in circumstances where there was concern about the maintenance of proper practices by the patient. That was also the opinion of Dr Vincent. Dr Bruce considered that, while such notations may be made routinely, they were particularly important to reinforce the need for proper practices where complex work was carried out.
52. I do not accept Mr Dodd’s evidence where it conflicts with that of Dr Thomson. In particular, that relates to the information provided by Dr Thomson to Mr Dodd about his treatment, the type of cement that he was using and the options available at the time when the re-cementing of a crown took place. It also relates to his standards of oral hygiene and this is of significance because of the contributing role that this played in crown dislodgment. Dr Thomson described decay and gum disease and Dr Bruce described infection caused by bacteria as contributing to the problem. I am satisfied that these factors, as well as bruxing, contributed to the dislodgment of Mr Dodd’s crowns. Reference was also made to the role played by antidepressant medication in reducing saliva. However, there is evidence that Mr Dodd did not begin to take this medication until 2003. Those additional factors arose independently of the treatment provided by Dr Thomson and I am satisfied that the dislodgment of Mr Dodd’s crowns is not a consequence of that treatment.
53. Even if it were a consequence of the treatment, s 6A(2) of the Act requires that it be unintended. An unintended consequence is one that is not desired, aimed for or designed by the provider of the medical treatment and which is not a likely consequence of the medical treatment: see Re Eaton and Comcare (2002) 67 ALD 182 and Glendenning and Comcare (2004) 78 ALD 723. The provision does not extend to “an unavoidable direct consequence of the medical treatment”: see Houghton (above) at 494. Dr Thomson used temporary cement when he completed the initial work on Mr Dodd’s teeth. In his evidence, Dr Bruce said that, where permanent cement has been used, the median survival life for a crown was 16.6 years. There was general consensus in the evidence of the prosthodontists in this matter that the greater solubility of temporary cement, when compared with that of permanent cement, would result in a shorter period of crown survival although Dr Vincent was able to describe one such crown which had lasted for 15 years. While I am satisfied that it was not the desire, aim or design of Dr Thomson for Mr Dodd’s crowns to become dislodged, there was a high degree of likelihood, even an inevitability, that this would happen and, accordingly, I am satisfied that that result was not an unintended consequence of Mr Dodd’s medical treatment for the purposes of s 6A of the Act.
Decision
54. The Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Fiona Kamst
Legal Research Officer
Dates of Hearing 14 and 15 May 2007
Date of Decision 5 June 2007
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant James Watt and Co
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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