Douglas and Military Rehabilitation and Compensation Commission
[2010] AATA 575
•3 August 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL N° 2007/3482, N° 2007/3483
VETERANS’ APPEALS DIVISION
Re:ROY DOUGLAS
Applicant
And:MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
CORRIGENDUM
Tribunal: Miss E A Shanahan, Member
Date: 25 October 2010
Place:Melbourne
Member Shanahan made a Decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 3 August 2010.
The Applicant advised the Tribunal on 11 October 2010 that there is an error in the decision.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar in paragraph 26 of the decision insert before the third sentence in the quotation And in the letter from Helen Wilson of 27 March 2006 to Dr Wong:.
(sgd) E A Shanahan
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3482
VETERANS' APPEALS DIVISION ) No 2007/3483 Re ROY DOUGLAS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Miss E A Shanahan, Member Date3 August 2010
PlaceMelbourne
Decision
The Tribunal affirms the decisions under review.
(sgd) E A Shanahan
Member
MRCC – tooth damage as a reservist – forty years of dental treatment accepted as compensable – further applications 2006 – liability denied – unrelated to original injury – decisions affirmed
Commonwealth Employees’ Compensation Act 1930
Military Rehabilitation and Compensation Act 2004
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 6A, 14, 16
Oceanic Life Limited v The Commissioner of Stamps (1999) 168 ALR 211
Oceanic Life Limited and Anor v The Chief Commissioner of Stamp Duties [1999] NSWCA 416
Comcare Australia v Rope (2004) 80 ALD 99Telstra Corporation Limited v Hannaford (2006) 90 ALD 263
REASONS FOR DECISION
3 August 2010
Miss E A Shanahan, Member
1. Mr Douglas was a member of the Melbourne University Army Reserve in the 1950s. On 13 May 1955 his right upper lateral incisor tooth (tooth 12) was fractured during his reserve duties. Liability under the Commonwealth Employees' Compensation Act 1930 was accepted. He was treated by Dr R W Cannon from the time of the injury until Dr Cannon's retirement at approximately the end of 1995. Tooth 12 was restored in 1959 and in 1969 Dr Cannon performed a replacement of the porcelain jacket crown and gold retention post which had been the subject of wear and tear. In 1979 following further bone resorption the tooth 12 root was extracted, a temporary denture fashioned and on 13 September 1979 a bridge was inserted. The bridge carried with crowns on teeth 13, 14 and 15 was replaced again in 1991 following further bone resorption (T11, p33). All procedures performed by Dr Cannon were paid for by the Department of Defence, at that time the relevant department responsible for administering legislation for military compensation. The respondent, the Military Rehabilitation and Compensation Commission (MRCC), being currently responsible for administering the legislation under the Department of Veterans’ Affairs.
2. Mr Douglas transferred to the care of Dr Joe Wong on 30 December 1992. Dr Wong saw Mr Douglas on a regular basis for dental examination and minor treatment in the way of repair of fillings and the treatment of sensitive teeth. The cost of these procedures was met by Mr Douglas. In February 1998 Dr Wong identified the need to reconstruct the bridge area and also recommended porcelain crowning of the four opposing lower teeth and the rebuilding of eight of the right sided teeth to maintain the overall occlusal plane. The Department of Defence accepted liability for these procedures on 24 August 1999 and the treatment was undertaken between December 1999 and May 2000. The total cost of this dental work was $25,115. Further applications for dental work were received in September 2001, May 2002 and November 2005 and liability was accepted for all of the recommended treatment except that requested in September 2001. Dr Mark Bowman, a consultant with Dental Services VSO, examined the September 2001 request and on the basis that there was a lack of evidence to justify further crowns to the four nominated teeth recommended alternative treatment, which was eventually undertaken.
3. On 18 January 2006, Dr Wong advised that Mr Douglas had developed a peri epical infection in the root of tooth 46 (the second right pre molar in the lower jaw) and sought approval and payment for treatment of this tooth. The respondent again sought Dr Bowman's opinion and Dr Bowman reiterated his earlier finding that there was no evidence of a relationship between the compensable tooth (originally tooth 12) and tooth 46. On this basis liability was denied. The primary determination was dated 6 February 2006 and following reconsideration the reviewable decision was made on 1 March 2007 affirming the determination (application number 2007/3482). Associate Professor Jack Gerschman had been consulted and the affirmation of the decision was based on his report of 29 October 2006 (T80, pp160-184). While the respondent had accepted liability for treatment involving tooth 16 and tooth 46 on 2 July 2002, that liability had been in error according to Dr Bowman and Associate Professor Gerschman.
4. The second application (number 2007/3483) related to treatment to tooth 16. On 16 March 2006 Dr Wong had requested funding for treatment of this tooth as it had developed pulpitis and required root canal treatment. This tooth had a crown that had previously been funded by the respondent in July 2002. Liability was denied by letter dated 28 February 2007. This letter stated that treatment to this tooth had been funded in the past due to an administrative oversight. The determination was reconsidered at the request of Mr Douglas and affirmed on 17 April 2007. Mr Douglas applied to the Administrative Appeals Tribunal on 27 July 2007 for review of both of these decisions.
5. The respondent was not seeking recovery of fees paid for any treatment performed by Dr Wong attributable to the 2002 administrative error.
6. Mr Douglas was represented by Mr Garry Bigmore QC of Counsel and the respondent was represented in the 2009 hearing by Mr Ben Dubé of Counsel and in 2010 by Ms Ann McMahon of Counsel. The Tribunal was provided with the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents and Supplementary T‑documents, Ex R1) and the parties filed further documentation as follows:
For the Applicant –
Dr Wong's dental records relating to Mr Douglas (Ex A1)
A Bundle of Documents provided by Mr Douglas with a covering letter dated 28 April 2008 (Ex A2)
Letter of instruction from Sparke Helmore solicitors to Associate Professor Gerschman dated 20 May 2008 (Ex A3)
For the Respondent ‑
A letter from Dr Wong to the Commission dated 31 March 2008 (Ex R2)
Associate Professor Gerschman's report dated 30 September 2008 (Ex R3)
Report of Dr Roy Judge dated 11 January 2010 (Ex R4)
7. Dr Wong, Dr Judge and Associate Professor Gerschman gave evidence before the Tribunal.
ISSUES BEFORE THE TRIBUNAL
8. Were the –
(i)Disease processes in teeth 16 and 46 related to the original compensable injury to tooth 12; and
(ii)If so, was the treatment proposed by Dr Wong appropriate in terms of being reasonable.
The respondent has accepted that the original injury was to tooth 12 and that any treatment involving teeth 13, 14 and 15 was reasonably required.
9. The Tribunal had taken into evidence Dr Wong's dental notes and records regarding Mr Douglas (Ex A1). Dr Wong gave evidence on the first day of the hearing on 4 May 2009. In his examination in chief, Dr Wong said he had recommended treatment to teeth 16 and 46 in 2002 in order to rebuild Mr Douglas's occlusion. The original bridge inserted to treat tooth 12 had brought about wear and tear on the right hand side. Both teeth 16 and 46 had been crowned.
10. In 2006 a root fracture had been detected in tooth 46 necessitating removal of the tooth. Ideally, in Dr Wong's opinion, this should have been replaced with an implant supported tooth a procedure which would cost in the vicinity of $6,000 to $6,500. In the same year tooth 16 became infected and root canal treatment was required at a cost of approximately $1400.00. Dr Wong explained that porcelain surfaced teeth abutting natural enamel increased tooth wear and tear.
11. Mr Dubé for the respondent took Dr Wong through his clinical records in detail as the notes were difficult to read and written in dental shorthand. There was no chart depicting Mr Douglas's dental status when first seen by Dr Wong. Dr Wong believed he had such a chart in other records not provided to the Tribunal. The records indicated an average of 2 replacement fillings per year. Dr Wong believed the entry recorded as a filling of tooth 12 was an error given that tooth 12 had been removed in 1959.
12. In November 1996 tooth 46 had undergone a replacement filling and later this filling was ground down to a lower level. Teeth 44 and 45 also had fillings performed in 1997. Dr Wong agreed that as suggested by his notes he decided on 23 February 1998 that Mr Douglas required a full mouth reconstruction. With Mr Douglas's agreement he had sought approval from the department for this reconstructive work and was authorised to proceed. Dr Wong estimated that on average a crown had an expiry time of seven years.
13. In 2007 Dr Wong verified that he had referred Mr Douglas to periodontist Dr Gary Yip for an implant after tooth 13 had become infected and required removal. It was decided to replace the tooth 12 site that is the original injured tooth with an implant at the same time. Following the removal of tooth 13 it was necessary to wait for healing to occur before the implants were sited and while this was normally a three month wait, in Mr Douglas's case, it was 12 months. In the interim, a partial denture was fitted, the denture being supported by wires connected to tooth 16 and tooth 25. Dr Wong was unable to explain the reason for the prolonged 12 month interval between extraction and implantation as this was a decision that had been made by Dr Yip. Dr Wong had been responsible for the design and placement of the denture and had used tooth 16 as the anchor for aesthetic reasons that is, so that the wires would be less visible. He had not been dissuaded from using tooth 16 by the fact that it had been subject to root canal surgery in 2006 and also had been treated as part of the reconstruction in 2002. Dr Wong agreed with Mr Dubé that he could have used tooth 15 to anchor the denture but this was not as aesthetically pleasing as using tooth 16.
14. The Tribunal asked Dr Wong if wear and tear on his dentition as described by Dr Wong was normal for someone aged 75 (Mr Douglas's age). Dr Wong believed that in Mr Douglas's case the wear and tear might be greater than normal for someone of his age because Mr Douglas para‑functioned that is, he is a tooth grinder and clencher. In such persons a cycle was established in that the wear and tear caused by teeth grinding necessitated more dental intervention and repair with non enamel substances which in turn created further problems. Dr Wong had provided Mr Douglas with a splint on completion of all the reconstruction work but he could not police the wearing of this splint.
CHRONOLOGY OF DENTAL TREATMENT
15. The respondent had prepared a chronology of Mr Douglas's dental treatment from 1955 which is useful in terms of understanding the evidence of Dr Judge and Associate Professor Gerschman.
16. Between 1955 and 1991 Mr Douglas was under the care of Dr Cannon following the fracture of tooth 12 in 1955. This tooth was fractured by a blow from a camera and was eventually extracted. Dr Cannon was responsible for several procedures and in July 1991 advised that a cantilever bridge replaced tooth 12 necessitating treatment to teeth 13, 14 and 15. The respondent had accepted liability for all of this work and none is in dispute.
17. In October of 1998, Dr Wong had recommended the cantilever bridge constructed by Dr Cannon in 1991 be replaced as its design did not conform to modern dental practice and this replacement would result in a more cosmetic result. The respondent accepted liability for the replacement of the bridge.
18. In January 1999, Dr Wong reported that there had been damage to the opposing teeth as a result of the bridge work and recommended rebuilding the four lower teeth with porcelain crowns in order to bring about a similar wear rate. Once more liability was accepted.
19. In August 1999, Dr Wong advised that further dental work was required as a result of the gradual loss of height of the teeth involved in the rebuilding of the four lower teeth. Once more the respondent accepted liability.
20. In August 2001, Dr Wong advised that Mr Douglas was prone to grinding his teeth and as a result further procedures were required to re-establish occlusion involving crowning of teeth 16, 17, 46 and 47. Also crowns on teeth 21, 44 and 45 were damaged and should be replaced. He advised an occlusal splint would need to be replaced following these procedures. Dr Wong subsequently described the dental work proposed as a full mouth reconstruction. The respondent accepted liability for the restoration of teeth 12, 44 and 45 and the provision of a splint. The extent of the treatment was based on the advice of Dr Bowman.
21. On 13 May 2002, Dr Wong requested the respondent fund treatment in the form of crowns to teeth 16, 46 and 47 and removal of broken roots at tooth 17. The respondent accepted liability for these procedures.
22. On 30 November 2005, Dr Wong advised that Mr Douglas required work to repair a loose upper left lateral incisor by removing the compromised root and replacing the tooth with a two unit cantilever bridge cantilevering the left canine. The respondent accepted liability for an X-ray, re-cementing of a crown, extraction of the lateral incisor, a temporary bridge and a permanent cantilever bridge.
23. With respect to treatment to tooth 46, the subject of application number 2007/3482, Dr Wong had provided a letter in January 2006 stating that Mr Douglas had developed an infection in his right lower second molar (tooth 46) which required treatment and requested authorisation and payment for treatment of this tooth on the basis that this was a tooth that had been treated in the past and such treatment previously authorised. After several further requests in regard to tooth 46, the respondent obtained another opinion and advised Dr Wong that liability was only accepted for the reasonable cost of medical treatment to teeth 12, 13, 14 and 15.
24. In regard to the treatment of tooth 16, the subject of application number 2007/3483, Dr Wong had requested funding for the treatment of tooth 16 on 16 March 2006 on the basis that authority had been provided for the crowning of this tooth in July 2002. On the basis that liability was confined to treatment of teeth 12, 13, 14 and 15, this request was denied.
25. Associate Professor Gerschman was to have given evidence on 5 May 2009 but became acutely ill on the day and required hospitalisation. The hearing was adjourned for some 11 months. Associate Professor Gerschman assessed Mr Douglas on 24 July 2006 (T80, p160) at the request of the respondent.
26. In his report Professor Gerschman recorded the 24 August 1999 letter from Mr Steven Munn, a delegate of the Act, to Dr Wong stating (T80, p162):
This office has accepted liability for damage to front teeth sustained by the above during his reserve duties in 1956.
This office will pay for any reasonable dental treatment Mr Douglas requires due to the direct or indirect effects of the injury he sustained in 1956.
. . .
If it is found that treatment previously paid for is not causally related to the loss of his front tooth the Department will not seek recovery of expenses already paid, but payment for future treatment will be limited to the compensable injury only and will be monitored more closely.
27. Associate Professor Gerschman estimated that a sum greater than $40,000 had been paid for Mr Douglas's dental work by the department and most of this had accrued in the previous six years. In his report Associate Professor Gerschman concentrated on tooth 46 (the second right lower molar tooth) which had been extracted. Twenty six of the original 32 teeth were present and Mr Douglas's oral hygiene was excellent except for mild periodontal disease. The bridge work involving teeth 12, 13, 14 and 15 was described as cosmetic, well constructed and functional. Other (unrelated) bridge work and extensive crown work was noted. Mr Douglas's occlusion was Class II, that is, there was overlap between the upper and lower dentition (buck toothed).
28. Associate Professor Gerschman recommended that tooth 46 be replaced with an implant supported crown. However, in his opinion the conditions in tooth 46 leading to its extraction had no causal relationship to the treatment of other teeth or the loss and treatment of tooth 12 nor had there been any such relationship between tooth 12's loss and the subsequent dental work Dr Wong performed upon Mr Douglas's teeth.
29. Associate Professor Gerschman provided a supplementary report on 30 September 2008 (Ex R3) concerning tooth 16 which was then being used as a retainer for the partial denture replacing tooth 12. Dr Wong had earlier reported that tooth 16 required root canal treatment. This treatment had been performed at Mr Douglas's expense, liability being denied by the department. Dr Wong now sought to have this treatment accepted retrospectively as tooth 16 was being used to anchor the temporary denture relating to tooth 12. In Associate Professor Gerschman's opinion tooth 15 could have been used to anchor the denture although ideally teeth 16 and 26 would be used. The Tribunal notes Dr Wong's evidence was that he used tooth 16 and tooth 25.
30. Associate Professor Gerschman appeared before the Tribunal on 19 April 2010 and adopted his reports as true and correct. In his examination of Mr Douglas he had found only modest evidence of teeth clenching as opposed to Dr Wong's claim and given Mr Douglas's age, there should have been an enormous amount of enamel damage (termed bruxism) had he been a tooth clencher and there was not. Associate Professor Gerschman was of the opinion that the bridge work performed between 1956 and 1991 would have been well constructed given that Dr Cannon was then one of the leading crown and bridge dentists in Melbourne.
31. The only relationship between tooth 12 and tooth 16 that Associate Professor Gerschman could deduce had resulted from Dr Wong's decision to use tooth 16 rather than 15 for the denture support clasp. Using tooth 16 in this manner after its unrelated treatment for root canal was not in his opinion an option the core of the dental profession would have chosen and was therefore unreasonable and excessive.
32. Associate Professor Gerschman reiterated his opinion that the disease processes and treatment of tooth 46 and 16 were unrelated to the injury to tooth 12.
33. Mr Douglas had taken issue with some aspects of Associate Professor Gerschman's report and with the wording of the letter of instruction. This letter requested Associate Professor Gerschman's opinion on the direct effects of the tooth 12 injury. The reviewable decision of 1 March 2007 referred to the direct and indirect effects of this injury. The parties agreed to obtain a further opinion from an expert acceptable to both parties. Dr Roy Judge, a prosthodontist, was consulted.
34. Dr Judge saw Mr Douglas twice and provided a report dated 11 January 2010 (Ex R4). His report included a detailed description of the current status of Mr Douglas's dentition. Teeth 17, 18, 28, 46 and 47 were missing.
35. Given that tooth 46 had been extracted Dr Judge considered the opposing tooth (tooth 16) was non functional despite being restored and healthy. Based on Dr Wong's clinical notes Dr Judge raised doubts that Mr Douglas had needed replacement of the tooth 12 bridge constructed by Dr Cannon in 1991. Similarly he could not justify the placing of crowns on teeth 43, 44, 45 and 46 as recommended by Dr Wong on 4 January 1999, as adequate protection of these teeth could have been provided by the use of a nocturnal splint. Dr Judge described the photographs provided by Dr Wong to support the need for this treatment as being of poor quality and of no diagnostic value. Crowning of the left lower teeth to jack open the jaw was not the preferred treatment in Dr Judge's opinion, as full coverage crowns were a destructive non-reversible treatment choice.
36. Dr Judge was asked by the respondent to nominate the best treatment for teeth 16 and 46. He recommended replacement of the missing tooth 46 with a dental implant. However, tooth 46 loss was related to the extent of rehabilitation treatment performed by Dr Wong and not to the initial loss of tooth 12. Tooth 16's treatment was, on the same reasoning, unrelated to the original injury.
37. In his evidence before the Tribunal Dr Judge expanded on his report. He said the temporary use of tooth 16 as a clasp anchor for the bridge involving tooth 12 should have had no effect on the tooth unless the clasp was too tight, in which case it would cause severe pain and be readily diagnosable. In effect Dr Wong had undertaken a full mouth reconstruction to compensate for the loss of tooth 12, a treatment plan that was unreasonable and without support in the dental profession.
38. The Tribunal asked Dr Judge if Dr Wong's treatment of Mr Douglas had been excessive. His answer was in the affirmative. The only relationship that he could see that existed between teeth 46 and 16 and the original injury had arisen from Dr Wong's course of care.
relevant legislation
39. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides liability to pay compensation to an employee in respect of an injury resulting in impairment.
40. Section 16 is concerned with medical treatment of an injury. Such medical treatment includes dental treatment.
41. Section 16(1) states:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare [MRCC] determines is appropriate to that medical treatment.
42. Section 6A extends the operation of the Act to members of the defence force, defence force cadets and would include university regiments. Section 6A(2) states:
(2)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.
Section 6A(2A) provides exceptions to the above relating to employees who are members within the meaning of the Military Rehabilitation and Compensation Act 2004 (the MRCA) and
. . .
(d)the treatment is provided either:
(i)on or after the MRCA commencement date; or
(ii)before, and on or after, the MRCA commencement date (whether the treatment spans the commencement date or is provided during separate periods before and on or after that date).
Note:After the MRCA commencement date, compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for such an injury or aggravation.
Mr Douglas would appear to fall under the exception to s 6A(2)(b).
SUBMISSIONS
43. Mr Bigmore argued that Dr Judge and Associate Professor Gerschman both identified a relationship albeit not causal, between the tooth 12 injury and Dr Wong's treatment of tooth 46 and 16. He submitted that the respondent had accepted liability and paid for the 2002 treatment amounting to a full mouth reconstruction and did not seek reversal of this payment suggesting that the payment had been made appropriately. The implant and root canal treatment Dr Wong proposed for teeth 46 and 16 respectively was identified by both experts as the preferred treatment. Mr Bigmore contended that if any treatment provided by Dr Wong in 2002 was excessive or unreasonable this was irrelevant in light of the Act. (The Tribunal presumes this refers to s 6A(2)(b) of the Act). Mr Bigmore referred the Tribunal to the 5th Edition of the text entitled Statutory Interpretation in Australia by D C Pearce and R S Geddes published by Butterworths 2001 which dealt with expressions denoting a connection or relationship. Particularly the expressions in respect of and connected with, both of which the Courts have determined should be given the widest possible meaning of any expression intended to convey some connection or relation between the two matters to which the words refer. Mr Bigmore also referred the Tribunal to the New South Wales Court of Appeal’s consideration of the phrase relating to as reported in Oceanic Life Limited and Anor v The Chief Commissioner of Stamp Duties [1999] NSWCA 416.
44. Ms McMahon contended that the treatment of teeth 46 and 16 as proposed by Dr Wong, while appropriate in terms of the disease process affecting these two teeth, was not and never had been related or secondary to the injury of tooth 12. The 2002 mouth reconstruction had been paid for by the respondent in error.
45. The respondent relied on the decision of the Full Federal Court in Telstra Corporation Limited v Hannaford (2006) 90 ALD 263 wherein it was held that:
(i)It is open to the tribunal as part of a ss 16, 19 and/or 24 review to revisit the original acceptance of liability pursuant to s 14.
. . .
(iii)It is open to the tribunal to find liability pursuant to ss 16, 19 and/or 24 for a disease/injury bearing a different diagnostic label to that for which liability has been accepted pursuant to s 14, as long as the condition for which liability is found by the tribunal is in fact the same condition which existed “all along”.
46. Ms McMahon also referred to the decision of Stone J in Comcare Australia v Rope (2004) 80 ALD 99 wherein it was considered appropriate for the Tribunal to engage in a cost benefits analysis in relation to medical, or as in this case dental, treatment.
TRIBUNAL'S DELIBERATIONS
47. It is not disputed that the Department of Defence’s acceptance of liability for the damage to Mr Douglas's right second incisor tooth was correct and in accordance with the Commonwealth Employees’ Compensation Act 1930. Since 1955 various departments have paid for dental treatment arising from the loss of this tooth which in dental terminology is tooth 12. Between 1956 and 1991 all treatment was conducted by Dr Cannon and is regarded by both the respondent and the dental experts as being appropriate and reasonable throughout that period. Following Mr Douglas's transfer to the care of Dr Wong in 1991 routine dental care was provided and paid for by Mr Douglas until Dr Wong advised in 1998 that the bridge involving the lost tooth 12 and adjacent teeth 13, 14 and 15 be replaced. The reason given by Dr Wong for the planned replacement was that the bridge was not ideal given the advances in dental treatment that had occurred since 1991. As Dr Wong's clinical records are sparse and his memory of events had faded with the passage of time, it is not clear as to whether or not there were any other indications for replacing the bridge.
48. In 1998 Dr Wong had recorded that he advised Mr Douglas that he required a full mouth reconstruction. Between 1998 and 2001 Dr Wong sought departmental funding to pursue this full reconstruction. It was not until December 2001 that an opinion was obtained from a consultant dentist by the Department of Defence SRCA delegate. Dr Bowman had advised that there was a lack of evidence to justify further new crowns for teeth previously not involved in relation to the treatment of tooth 12. Despite this advice extensive reconstruction work was undertaken and eventually the department accepted liability and paid Dr Wong's fees.
49. The respondent has attributed the payment of these fees to Dr Wong as an administrative error, the nature of which was not advised. While not pertinent to this decision, the Tribunal assumes this administrative error was founded either by the failure to follow Dr Bowman’s expert advice or the payment of Dr Wong’s fees for treatment to the left sided dentition (upper left lateral incisor) in December of 2005 after the MRCA commencement date, when liability under the Act for the unintended consequences of medical treatment paid for by the Commonwealth ceased (s 6A(2A)(c)). Such compensation is provided under the MRCA now administered by the Department of Veterans’ Affairs. At all times Mr Douglas’s compensation has been determined in accordance with the Act.
50. The issues before this Tribunal relate only to the past and planned future treatment of tooth 16 for which Dr Wong sought acceptance of liability for root canal treatment (T48, p99) on 16 March 2006 and the planned replacement of tooth 46 with an implant supported crown. Tooth 46 had previously been crowned with liability for this procedure accepted on 2 July 2002. A split had developed in tooth 46 necessitating its extraction in approximately 2007. It is not clear from Dr Wong’s clinical notes when exactly tooth 46 was extracted. The basis for these claims was essentially that earlier dental work (in 2000 and 2002) had been accepted as compensable by the Department of Defence under the Act.
51. Dr Judge and Associate Professor Gerschman both have doctorates of philosophy in dentistry, appointments on the staff of the Royal Dental Hospital of Melbourne and are Members of the academic staff of the School of Dental Science at the University of Melbourne. They are both in private practice in Melbourne. In summary their opinions were that past and planned treatment of teeth 16 and 46 was unrelated to the original compensable injury to tooth 12 and could only be indirectly linked with this injury as a result of Dr Wong’s previous care plan. In their opinion the latter had not been clinically indicated, was in fact deleterious in that it was irreversibly destructive and was not a course of treatment accepted by the core of the dental profession. Alternative simpler, more protective and less expensive treatment had not been considered by Dr Wong. Both experts considered the full mouth reconstruction undertaken by Dr Wong to have been unreasonable treatment leading to the pathology of teeth 16 and 46.
52. Dr Cannon’s treatment of Mr Douglas between 1969 and 1991 was paid for by the Department of Defence and cost in the order of $7,123.00. Expenditure on Mr Douglas’s dentition between 2000 and 2006 was over $40,000.00 and in 2006 Dr Wong agreed this was a considerable sum for the loss of one tooth (T51, p 103). It is difficult for the Tribunal not to perceive Dr Wong’s charges as being excessive in terms of cost/benefit for the loss of tooth 12. A comprehensive quotation is not available for the proposed tooth 16 and tooth 46 treatment. The Tribunal determines that there is not and never has been a direct relationship between the compensable injury to tooth 12 and any treatment undertaken or planned to tooth 16 and tooth 46. The contended link between tooth 12 and tooth 46 and tooth 16 has arisen indirectly from Dr Wong’s overall care plan of Mr Douglas’s dentition. This care plan and the treatment it included was unreasonable for the reasons given by Dr Judge and Associate Professor Gerschman and to such a degree that s 16 of the Act is not satisfied.
53. The Tribunal affirms the decisions under review.
I certify that the fifty-three [53] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member
(sgd): Leah Berardi
Clerk
Dates of Hearing 4 May 2009, 19 April 2010
Date of Decision 3 August 2010
Counsel for the Applicant Mr G Bigmore, QC
Counsel for the Respondent Mr B Dube, Ms A McMahon
Solicitor for the Respondent Sparke Helmore
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