Elizabeth Neal and Repatriation Commission
[2012] AATA 843
•30 November 2012
[2012] AATA 843
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/1639
Re
Elizabeth Neal
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 30 November 2012 Place Hobart The decision under review is affirmed.
........................................................................
Ms A F Cunningham (Senior Member)
CATCHWORDS
Veteran's entitlements - defence service - whether multiple sclerosis was materially contributed to or aggravated by service - claimed that delay of diagnosis and stress and anxiety resulting from category 2 stressor suffered during service materially aggravated the disease - Tribunal found no causal connection between service and multiple sclerosis disease nor a category 2 stressor as defined in the SOP - decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1986 (the VE Act) ss 70(5), 120(4), 120(B) sub-section 3
Instrument No. 45 of 2002 and Instrument No. 101 of 2011 – Multiple Sclerosis
CASES
Lee v Minister of Pensions (2) 1948 3WPAR 1901
Brew v Repatriation Commission (1999) FCA 1246 Heerey J
Johnson v Commonwealth (1982) HCA 54 (1982)150 CLR 331
Repatriation Commission v Money (2008) FCA 118REASONS FOR DECISION
SM Cunningham
The applicant, Elizabeth Neal was a member of the Royal Australian Air Force for a period of three years between 19/11/87 and 19/11/1990. She suffers from multiple sclerosis. In December 2004 Ms Neal lodged a claim for multiple sclerosis, hearing loss and tinnitis. The Repatriation Commission accepted the claims for hearing loss and tinnitis but determined that multiple sclerosis was not related to defence service. The Veterans Review Board affirmed the Commission’s decision and Ms Neal now seeks a review by the Administrative Appeals Tribunal.
Ms Neal contends that the symptoms of multiple sclerosis were evident during her service and the RAAF’s failure to diagnose and properly manage the condition led to its fast progression.
Following the conclusion of the evidence, attention was drawn to a subsequent Statement of Principles which included additional factors potentially linking multiple sclerosis to relevant service. The factor relied upon is a category 2 stressor. No further evidence was called but the Tribunal reconvened to hear further submissions made on behalf of both parties.
ISSUE
It is accepted that Ms Neal suffered symptoms of multiple sclerosis during her eligible defence service. It is not contended that the condition arose out of or was attributable to service but that it was aggravated by service. The issue for the Tribunal to determine is whether the disease was contributed to in a material degree or aggravated by service.
CONTENTIONS
It was contended on behalf of the applicant that an inability to obtain appropriate clinical management including a diagnosis, caused chronic stress reactions which in turn exacerbated and made Ms Neal's multiple sclerosis condition permanently worse. Further, that if the condition had been correctly diagnosed during Ms Neal's service, it would not have progressed or worsened to the extent that it did. It was submitted that if the service medical practitioners who treated Ms Neal's symptoms had access to the same diagnostic materials that were available to a civilian at the time, an appropriate diagnosis could have been made.
It was submitted on behalf of the respondent that there is no evidence that the applicant's medical treatment was not appropriate by the standards of the time. Further, that the evidence does not support a finding that the condition was made permanently worse by a failure to diagnose multiple sclerosis during the applicant's period of service. Nor is there evidence it was contended, that the disease was contributed to in a material degree or aggravated by defence service.
EVIDENCE
The applicant, Elizabeth Neal gave oral evidence at the hearing. Dr Gary Fulcher, senior clinical psychologist was called to give evidence on behalf of the applicant. Dr David Andre Floate, consultant physician gave evidence on behalf of the respondent. Their written reports were included in the T documents which were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and tendered in evidence.
Ms Neal described the difficulties that she experienced with the physical training exercises particularly the 2.4 km time trial run which was required in order to remain in the RAAF. She said that she was often physically sick during early morning training runs and was told by one doctor who she consulted to just keep trying. She said that she was required to undertake "fatties training" which required a 5 a.m. start and swimming pool exercises.
Due to her awkward running gait and short stride, Ms Neal was referred by a service medical officer to Dr Nicholls an orthopaedic surgeon on 9 March 1988. After being transferred to Wagga where she was required to undertake a further fitness test, Ms Neal was referred to a number of other medical practitioners. Dr Richardson, an orthopaedic surgeon was consulted in relation to her running problems but reported that x-rays did not reveal any abnormalities. Ms Neal said that their failure to find a cause for her symptoms made her feel "fat and lazy" and caused her stress and anxiety. Ms Neal maintained that she was subject to a lot of pressure from superior officers and her peers.
Ms Neal was referred to Dr Wilkinson at the end of 1988 by which time she claims that she had definite symptoms of multiple sclerosis, however he was unable to find a cause for her symptoms. Ms Neal maintained that the most significant source of her stress was Dr Wilkinson's impression that there was nothing wrong with her, that she was a malingerer and wasting his time. She said that he appeared relieved and quite excited when a muscle biopsy led him to a diagnosis of McArdle’s disease. Dr Wilkinson told Ms Neal that she was under a lot of stress because of the muscle disorder and that she just needed to get on with things and relax. She believed that Dr Wilkinson considered that "it was all in my head" but never suggested that she consult a counsellor. When Ms Neal made an appointment with a civilian physician and then sought permission to attend the appointment, she was threatened with sanctions by a warrant officer at the tactical fighter group at Williamstown. After being threatened with AWOL she cancelled the appointment. She believes that had she kept the appointment, she would have been referred to Dr Floate who would have diagnosed her MS condition.
Ms Neal described her symptoms at the time of her consultations with Dr Wilkinson as extreme dizziness, fainting, vomiting and stroke-like in that her right side had "totally dropped". She also had trouble walking and was periodically falling over on the right side. Dr Wilkinson suggested at the time that perhaps her boyfriend had been beating her. She described the humiliation she felt at the workplace when she exhibited symptoms such as falling over, dropping things, slurring her words and then being told that there was nothing wrong with her.
Ms Neal believes that she saw Dr Wilkinson once a month when he visited the RAAF base. She recalled extreme pain in both forearms as well as itchy sensations forcing her to scratch her arms to the point that they bleed. She would cry in frustration. Although the weather was very cold at the time, she was not able to wear a cardigan because of her skin sensitivity. When she informed Dr Wilkinson of her symptoms he replied that they were psychosomatic. Ms Neal believed that Dr Wilkinson had thought she was "self –harming."
Once Dr Floate had diagnosed MS he immediately prescribed steroids to stop her attacks and further damage. Ms Neal believes that if she had been correctly diagnosed whilst in the air force she could have been treated with steroids whenever she sustained an attack. Further, she would not have endured the stress of not being believed and the consequential anxiety which brought on her attacks. Ms Neal believes that her anxiety led to a number of lapses that could have been avoided if she had been properly treated and thus less damage occasioned.
In her DVA submission Ms Neal stated:
"At night (during basic training) when I would finally get to bed (after doing all the chores necessary during training such as polishing boots, ironing clothes, cleaning floors, cleaning cupboards, scrubbing the toilets and tiles and so on - this was after the extra running that would take hours). I would get a maximum of two hours sleep and getting to sleep was difficult at the dread of the next day’s exercising and I would lie in bed and be able to count my heart beat without feeling for a pulse as it was beating so fast and so loud, I would also lay underneath a bar heater turned on in the middle of summer and shiver as I was so exhausted and cold and scared, sleep would not refresh me and I would drag myself through the next day perpetually so anxious that I would often be trembling with fear".
At the request of Ms Neal, Dr Gary Fulcher provided a written report on the relationship between stress and disease activity in multiple sclerosis and the possible impact of stress on Ms Neal’s multiple sclerosis during her air force service. In his report Dr Fulcher stated:
"Further research in this area of stress was performed through the MS Society that demonstrated that people with MS experience psychological trauma with regard to having and being diagnosed with MS. These studies showed that about 15% of people with MS develop full-blown post- traumatic stress disorder (PTSD) and approximately 60% develop_ partial PTSD, both of which impinge on psychological well-being and impair functioning. The relevance of this finding is that people with MS are more susceptible to being stressed and have a greater tendency for immune dysfunction and neuro- inflammatory responses (leading to relapse) under stress."
Although Dr Fulcher had not assessed or formally consulted with Ms Neal, he read a summary of her experiences in the RAAF and her account of various medical opinions offered her during that time. On the basis of this material he stated that it is clear that Ms Neal found the air force training to be highly stressful and that the stressful experience lasted long enough to predict a higher rate (up to 3 fold, according to Mitsonis) of MS attacks. He stated that the repetition of the stressful experiences would have created a chronic stress response that could have stimulated glucocorticoid resistance which is a condition seemingly specific to hypothalamic-pituitary-adrenal axis responses to stress in MS that has been suggested as a key trigger or primer for MS genesis. Dr Fulcher went on to state that the ongoing stress resulting from her air force experiences may have led to a post-traumatic stress reaction if not post-traumatic stress disorder for which she should receive appropriate therapy. Dr Fulcher noted that Dr Wilkinson had reported on Ms Neal's anxiety level in his report of 14 November 1989. Dr Fulcher also noted that MS can be difficult to diagnose by non-specialists in the area.
Dr Fulcher stated that he was only asked to report on the connection between stressful experiences and MS and not the progression of the disease. He had not been provided with a copy of Dr Floate’s report. Apart from a copy of a report prepared by Dr Wilkinson, Dr Fulcher had not viewed any of the medical records of Ms Neal or other medical reports. His sole source of background information was a statement prepared by Ms Neal covering the period November 1987 until November 1990 being her period of enlistment.
Dr Fulcher considered that Ms Neal's inability to obtain the medical advice and assistance that she was clearly seeking would have been extremely stressful. A further contributor to her stress would have been her ongoing struggle with the required exercise routines and the consequent humiliation she endured. Dr Fulcher maintained that the association between stress and the development of chronic stress and the worsening of MS is now quite clearly established and has been for a number of years. He believed that Ms Neal’s stress and the lack of an accurate diagnosis and early treatment would have led to a worsening of Ms Neal's condition.
It was Dr Fulcher's opinion that Ms Neal's symptoms should have raised a suspicion of MS and that it would have been prudent to have referred her for an MRI which was available and known to be an essential part of the McDonald criteria for making a diagnosis of MS. Dr Fulcher agreed that although the diagnostic criteria at that time included the use of MRIs, they were certainly more difficult to obtain and less sophisticated than those currently used. When it was pointed out to Dr Fulcher under cross-examination that Dr Floate had opined that there was nothing on clinical examination of Ms Neal that would have triggered the question of MS, Dr Fulcher replied :
"I think it may have triggered that question in another neurologists mind".
Ms Neal's condition of multiple sclerosis was diagnosed by Dr David Floate in the latter part of 1991. Dr Floate first started treating Ms Neal in September 1991 and she continued as his patient until June 2004 when she moved to Tasmania.
In his evidence to the Tribunal, Dr Floate described Ms Neal's form of multiple sclerosis as the "relaxing and remitting type" as distinct from the progressive form which declines from onset of the condition and for most people there is a progression of disability over time. Dr Floate said that with the relaxing and remitting form of MS, in between bouts of symptoms, a person could appear quite normal.
Dr Floate said that there is some overlap of symptoms for MS and McArdle's disease. He explained that McArdle's disease exhibits symptoms of muscle weakness and cramping with some pain. MS tends to be more asymmetric with symptoms such as visual disturbance, balanced disturbance and for some people sustained weakness.
In a written report dated 7 March 2005 addressed to a delegate of the Military Rehabilitation and Compensation Commission, Dr Floate addressed 2 issues. Firstly, the effect of exercise on multiple sclerosis and secondly, whether Ms Neal's MS condition could have been diagnosed any earlier and would that have made a difference in terms of her symptoms and progress of the disease. In his report Dr Floate stated that he had not been able to find evidence that multiple sclerosis is caused by exercise and he did not have evidence that exercise would actually produce damage to the central nervous system in somebody who already has multiple sclerosis. He noted that there is some evidence that a degree of exercise can be beneficial for patients who have MS in maintaining levels of function. Dr Floate also noted that patients with clinically definite multiple sclerosis have an increased incidence of symptoms with rises in body temperature. He went on to state that the symptoms exhibited following exercise do not result in an exacerbation of the multiple sclerosis but constitute a transient change in the conduction along the nerve resulting in some exacerbation of symptoms that may have already been present.
With respect to the question as to whether the diagnosis could have been made earlier, Dr Floate stated that after reading Ms Neal's service medical records and in retrospect, the initial symptoms of difficulty with her right leg in relation to exercise may have been related to central nervous system problems, but stated that:
"There was nothing that manifested on the clinical examination to lead to the diagnosis of the multiple sclerosis at that time. She was of course seen by Dr Halmagyi , who was suspicious of the central problem but he also advised waiting to see if more signs evolved and hence I do not think the RAAF service doctors could be held responsible for a delay in diagnosis. Unfortunately Demyeling disease can be difficult to diagnose, even where it is the only presenting condition, but in Ms Neal's case there was of course the complicating problem of the McArdle's disease, which clouded the issue."
In his evidence to the Tribunal Dr Floate agreed that it was possible that the diagnosis could have been made earlier but went on to state :
"It was a difficult time in evolution of her diagnosis and I think that because there was that very strong histological indication then of myophosphorylase deficiency the McArdle's disease seemed to surface most strongly but she did have some indications that exercise, for example, was leading to some problems when she was running."
Dr Floate also said that her described symptoms of her right leg falling to one side when running, raised the question of "whether there may have been something that could have been central rather than muscle in origin". Further, that the issue of foot drop that occurred when running which was put down to a possible muscle disorder, could have suggested central nervous system dysfunction.
Dr Floate noted that arrangements had been made for Ms Neal to see Professor Hamalgyi, a world-renowned specialist in neurotological disorders, who had recommended investigation following a further attack which would include visual evoked potentials, MRI and CSF examination. Dr Floate suggested that Dr Halmagyi wanted to get a clearer picture of what was happening in the clinical signs because he had not found anything major at his initial examination. Dr Floate said this was common in the case of neurological disease as there was no other treatment for her at that time. Dr Floate explained that active disease modifying treatment was not then available and the only form of treatment was corticosteroids which sometimes shorten an attack of MS or a relapse but do not really alter the ultimate outcome. He suggested that Dr Halmagyi would have preferred to wait and see whether such treatment was justifiable because drugs such as interferons or copaxone or the more recently available oral medication were not then available. It was his evidence that the drugs that were available had no effect on the underlying disease or its progression and worked mainly by reducing inflammatory responses within the nervous system thereby shortening an episode of symptoms. More effective medication such as betaferon did not become available in Australia until around October 1996.
Although Ms Neil’s symptoms could have suggested causes other than McArdle's disease, Dr Floate said that there was no evidence that an earlier diagnosis could have produced a different outcome for Ms Neil’s MS in "that she continues to show the same relapsing, remitting type of condition". Dr Floate stated that Ms Neil’s exercise regime " can cause symptoms in a previously affected pathway, but these are reversible symptoms, because it's the conduction phenomenon, rather than an actual increase in the pathology at that time". He commented that when the body cools down, the appearance of symptoms dissipates.
As to the impact of stress on the condition Dr Floate said that this is a contentious issue and the subject of ongoing studies. He agreed that there are papers available that indicate that there may well be “some interference of stress in increasing the likelihood of relapses of multiple sclerosis”. Dr Floate referred to studies which have suggested that disturbances of routine and other life stressors not necessarily of a major nature, working together can contribute towards relapses . However Dr Floate said that he had not assessed the impact of stress factors reported by Ms Neal on her MS condition. On reviewing his notes Dr Floate said that he had not discussed the impact of any stressors on Ms Neil’s condition and had not made a record of any stressors reported by Ms Neal, for instance the stress of meeting the required physical standards or her frustration in not having her condition promptly diagnosed. Dr Floate also referred to the studies regarding the association between stress and the development of MS but suggested that the evidence is not strong and further investigation is required. The applicant does not claim however that stress played a part in the development of her MS.
In response to a question as to whether acute stress causes relapses which are not temporary in nature but result in an accumulation of damaged nerve cells, Dr Floate said :
"I think any relapse can be associated with some risk that there is going to be malfunction of that nerve cell at some time in the future, even if it recovers for a while, and I have to say that there is some evidence to indicate that the acute stressors can be associated with the frequency of relapse, so it's not all nicely proven, in terms of the pathological pathway, and how this stress-how the stress actually produces that, by what mechanism produces that. But there are studies in groups of patients who may-or would vary from around the 50 up to the hundred in a study, where there is evidence to say that there is an increased risk of relapse in relation to those acute stresses. But I have to say we are still studying that , or at least other researchers are still studying it, and I think there is the possibility that there is a slight increase, not a big effect, but clinically it could possibly have an effect. We have to wait for further evidence. So I think there is some room for accepting that."
It was Dr Floate’s opinion that Dr Wilkinson "did very well to find the McArdle's disease, so I think that was very perceptive that he actually could pick that part of things, but it did cloud the issue as far as other symptoms were concerned.
The T-documents contain a number of reports from various medical specialists. On 9 March 1988 Dr Alan Nichol an orthopaedic surgeon, reported that he was unable to account for Ms Neal’s symptoms of cramping, short steps and general awkwardness when running. He suggested a graduated exercise in running campaign.
In April Ms Neal was referred to Dr Richardson regarding her muscular problems. He ordered a full blood count and ESR and subsequently suggested that Ms Neal:
"Has a very sensitive sympathetic nervous system response to stress."
Dr Richardson noted that she had also reported black spots before her eyes if she exercises too much and from heat when on parade and concluded that he suspected:
"That the overall picture here is one of some psychosomatic problem and I feel the best approach is that she be reassured and that she should be encouraged to just undertake normal activities but particularly she should undergo warm-up and warm-down exercises prior to any activities."
Ms Neal was also referred to Dr Sage in June 1988 regarding discomfort in her calves and underwent tests on 5 April 1989. On 14 April 1989 Dr Wilkinson reported that he was concerned that Ms Neal had some underlying metabolic problem and suspected McArdle's disease which was confirmed on 9 May 1989 following a muscle biopsy. Ms Neal also saw an ophthalmologist on 5 June 1989 and had ongoing appointments with Dr Wilkinson who on 14 September 1989 referred her to Dr Stewart.
Dr Wilkinson continued to report unexplained symptoms and on 14 November 1989 reported that
"Her anxiety level is understandably high. She has not heard from Prince Alfred and I have suggested she writes herself."
On 12 January 1990 Dr Warner, cardiologist reported a normal echocardiogram. In May 1990 Ms Neal underwent audiology tests. Ms Neal was referred to Dr Halmagyi who reported on 18 October 1990 that he considered the McArdle's disease to be irrelevant to her present problems as it is a disorder of the neuromuscular system unrelated to the vestibular system. He noted that:
"The cause at this stage is not clear. It would be best I think to restrict the investigations until and if a further attack occurs. The visual evoked potentials and MRI and CSF examination could be done at that time. Also I would recommend that should any further acute attacks occur, Dr Wilkinson may well be able to take the opportunity to examine her in the acute phase and come to a more definite conclusion about the level of the abnormality in the neuro axis".
A report was prepared by Dr Henry Brigden on 7 January 2005 following the lodgement of her MCRS claim. He noted that Ms Neal was discharged in late 1990 without her medical condition having been fully diagnosed, in spite of her having been seen by several specialists over a period of almost 2 years. Dr Brigden went on to state that Ms Neal was having multiple system problems and that there are several reports indicating that not all of her symptoms were due to McArdle's disease. Dr Brigden went on to state:
"There would appear to be no reasonable doubt that she had early symptoms as far back as several months before Dr Wilkinson first saw her in April 1989, almost certainly represented the beginning of her (then undiagnosed) Multiple Sclerosis. The picture was unfortunately clouded by the diagnosis of McArdle's disease. Nevertheless there were various symptoms continuing up to the time of the discharge which were clearly not related to McArdle's disease."
In his report Dr Brigden noted that Ms Neal is now on specific medication for her condition, Interferon Beta 1B, which is a strictly controlled medication only available on prescription for the relapsing-remitting type of MS. He stated that whilst this medication does not cure the condition it does slow its progression. In a postscript to his report Dr Brigden noted that Interferon and Beta 1B has only been available through the PDS system from November 1996 and it would not have been available between 1990 and 1991.
LEGISLATION
The eligibility provisions for the payment of Defence Force pensions are contained in division 2 of the Veteran’s Entitlements Act 1986 (the VE Act). Section 70(5) provides that the Commonwealth is liable to pay a pension by way of compensation to a member of the defence forces who is incapacitated by a "defence caused disease". Subsection (5) provides that the disease will be taken to be defence caused where it was contributed to in a material degree or was aggravated by any defence service rendered by the member.
As the applicant has rendered eligible defence service, the relevant standard of proof is that provided in section 120 (4), that is the "reasonable satisfaction” standard. As Stone J said in Repatriation v Money (2008) FCA118 at paragraph 7 :
“This requires the Commission to ask itself whether it was satisfied on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327. Section 120 does not impose an onus of proof on the applicant for a pension or on the Commission; s120(6). Nevertheless, the Commission can only reach the requisite state of satisfaction if two conditions are fulfilled; s 120B(3). First, the material before the Commission must raise a connection between the disease and some particular service rendered by the person. Secondly, where there is a Statement of Principles in force concerning that disease, that Statement of Principles must uphold the contention that the disease is, on the balance of probabilities, connected with the service”.
As the claim which has led to this application for review was lodged after 1 June 1994, the provisions of section 120 B of the VE Act apply. Subsection (3) relevantly provides that the decision maker is to be reasonably satisfied that a disease is defence caused if the material raises a connection between the disease and some particular service rendered and there is a statement of principles in force that upholds the contention that the disease is, on the balance of probabilities, connected with that service.
The relevant statements of principles for Multiple Sclerosis are instrument number 45 of 2002 and instrument number 101 of 2011. With respect to instrument number 45, only one factor is listed which is contained in clause 4 being "the inability to obtain appropriate clinical management for Multiple Sclerosis". The factors relied upon in instrument number 101 of 2011 are factor 6 (j) "experiencing a category 2 stressor within the three months before the clinical worsening of Multiple Sclerosis and (l) "inability to obtain appropriate clinical management for Multiple Sclerosis”.
The category 2 stressor relied upon is defined in clause 9 (c) as "having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experience bullying in the workplace or school environment.”
DISCUSSION AND FINDINGS
Inability to obtain appropriate clinical management
There was convincing evidence that Ms Neal suffered from Multiple Sclerosis during her defence service. It is not alleged that her condition arose out of or was attributable to her service but that it was contributed to in a material degree or aggravated by the RAAF's failure to find the cause of the symptoms that she was experiencing during her service and diagnose her condition as Multiple Sclerosis.
In a letter dated 16 February 2010, Ms Neal's general practitioner, Dr WC Holley opined that the delay in diagnosis resulted in an inability to obtain appropriate clinical management of her condition. It was his opinion that the continuation of the "very physically demanding occupation caused severe anxiety and aggravated her medical condition (MS).' He went on to state:
"It is also my opinion that the delay in diagnosis and the failure to obtain appropriate medical treatment resulted in Ms Neal's condition being made worse by her service. It is also my opinion that Ms Neal has suffered permanent ongoing psychological damage as a result of her inability to obtain appropriate clinical management during the period of her service."
Ms Neal's MS condition was not diagnosed until she consulted Dr Floate following her discharge from the RAAF. It is contended that Ms Neal had exhibited MS symptoms several months before she first consulted Dr Wilkinson in April 1989 and her condition could have and should have been diagnosed during her service. Reference is made to the report of Dr Halmagyi who opined that McArdle's disease was relevant to the present condition as her symptoms were vestibular rather than neuromuscular.
There are a number of issues to be decided. They include whether there was an inability for Ms Neal to obtain appropriate clinical management; was the RAAF's clinical management appropriate in the circumstances; and whether any inability to obtain appropriate clinical management constituted a material contribution to her MS condition.
Dr Floate stated in his report of 7 March 2005:
"When one looks in retrospect, the initial symptoms of difficulty with the right leg in relation to exercise may possibly have been related to central nervous system problems rather than to be myophosphoralase deficiency but there was nothing that manifested on the clinical examination to lead to the diagnosis of the multiples sclerosis at that time. She was of course seen by Dr Halmagyi, who was suspicious of a central problem but he also advised waiting to see if more signs evolved and hence I do not think the RAAF service doctors could be held responsible for a delay in diagnosis. Unfortunately Demyelinating disease can be difficult to diagnose, even where it is the only presenting condition, but in Ms Neal's case there was of course the complicating problem of the McArdle's disease, which clouded the issue."
The phrase "inability to obtain appropriate clinical management" has been considered by the Tribunal and the Federal Court on a number of occasions. In Brew v Repatriation Commission (1999) FCA 1246 Heerey J said at paragraph 3 :
"However ‘inability’ can, according to context, be used in the sense that a person is physically capable of performing some act, chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force."
He goes on to state at paragraph 5 :
"If doctors are present, you are able to obtain appropriate clinical management. Therefore there cannot be inability, whatever your reasons for not seeking treatment ."
In Brew’s case Heerey J considered that in the appellant’s case, as a member of the armed services working in a military establishment in wartime, a group culture against seeking medical treatment could operate as a powerful disincentive, and may have amounted to an inability to obtain appropriate clinical management.
In Brew v Repatriation Commission (supra) Merkel J (with whom Mansfield J agreed) said:
“…inability” in cl(1) (e)[i]s “lack of ability; lack of power, capacity, means” (Macquarie Dictionary or “the condition of being unable; lack of ability, power or means” (New Shorter Oxford Dictionary). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the “condition of being unable”. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case. … In my view it would be erroneous to limit “inability” to “some overwhelming psychological or emotional incapacity”. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a “condition of being unable” to obtain treatment.”
‘Clinical management’ was discussed in Johnson v Commonwealth (1982) HCA 54; (1982) 150 CLR 331 where the High Court cited with approval the statement of Denning J in Lee v Minister of Pensions (2) (1948) 3WPAR 1901 that the expression covers:
“Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas were deep x-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country, and if, owing to war service is not so treated, any ensuing aggravation is due to war service… There are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service." (At Para 337).
It is contended that Ms Neal was prevented from seeking medical treatment outside the RAAF due to a threat of sanction by a superior member. In line with the reasoning in Brew’s case, this may constitute an "inability" to obtain appropriate clinical management.
Although it was argued Ms Neal was prevented from seeking medical treatment outside the RAAF on this occasion, the evidence does not support a finding of an inability to obtain professional care and medical treatment. Throughout the relevant period, Ms Neal was referred to and consulted a number of medical practitioners including medical specialists who appeared to be using their best endeavours to find a cause for her symptoms. It was submitted on behalf of Ms Neal that Dr Wilkinson failed in his duty of care to diagnose Ms Neal's MS condition which was diagnosed by Dr Floate shortly after her discharge. The applicant relies on Dr Fulcher‘s evidence who suggested that Dr Wilkinson's failure to diagnose Ms Neal's MS condition after treating her for over two years, caused her anxiety which aggravated her condition and made it "permanently worse". It is contended that Ms Neal should have had access to the same treatment that was available to civilians at the time for if she had, the disease would not have progressed to the extent that it did.
Dr Fulcher's opinion however is not supported by Dr Floate, the neurologist who diagnosed Ms Neal's MS condition. The Tribunal prefers the evidence of Dr Floate, who treated and diagnosed Ms Neal’s condition. He is a specialist in the field and had access to the relevant medical records. Dr Floate did not consider that the RAAF service doctors could be held responsible for a delay in diagnosis because there was nothing that manifested on the clinical examination which would have led to a diagnosis of multiple sclerosis at the time. Nor is there any evidence that a failure to diagnose the condition at an earlier point of time and potentially afford the opportunity for earlier treatment, caused an aggravation of the disease in that it was made worse than it otherwise might have been. There is no persuasive evidence that Ms Neal's anxiety resulting from a failure to diagnosis her MS condition caused a worsening of the disease. The evidence from Dr Brigden and Dr Floate was that the treatment subsequently prescribed by Dr Floate was not available during Ms Neal‘s period of service. It is the Interferon Beta 1B medication which is prescribed for the relaxing-remitting type of MS which slows the progression of the disease. That medication was only available through the PBS from November 1996.
The factors listed in in the SOP must be related to service in that there is a causal connection between the condition and service as distinct from a temporal connection. As the Federal Court noted in Repatriation Commission v Money (2008) FCA 118 at paragraph 48, a Statement of Principles (SOP) contains a list of factors that may potentially aggravate a disease however that factor of itself does not raise a connection with defence service.
For all of the above reasons the Tribunal is not reasonably satisfied that there is a causal relationship between Ms Neal's MS condition and her service. The evidence does not support a finding that Ms Neal's service materially contributed to or aggravated her MS condition.
Category 2 stressor
It was submitted on behalf of Ms Neal that there is evidence that she experienced bullying in the workplace in the form of bastardisation during and following her recruit training. She was required to undertake extra exercise regimes due to her inability to pass the basic time trial training tests for RAAF service personnel.
The term “bullying” as used in the SOP definition for a category 2 stressor is defined in the Oxford dictionary as “overbearing, insolence, personal intimidation, dominating, menacing”. The term” bully” is defined in the Macquarie dictionary as “an overbearing person who browbeats smaller or weaker people”.
Ms Neal gave evidence that during her training and attempts to pass the fitness tests when she was often physically sick and felt dizzy, she was told to just keep trying. She was informed that if she did not pass the test she would be kicked out of the RAAF. She was also required to participate in early morning "fatties training".
It was submitted by Mr Rudge that Ms Neal was only required to complete the usual physical tests required of all service personnel and that her inability to successfully complete the tests was due to her MS condition. Mr Rudge contended that there was no evidence connecting Ms Neal‘s anxiety and stress with her service which was instead caused by her condition. Mr Rudge contended that there was no evidence that the RAAF imposed any unreasonable requirements on Ms Neal to complete the fitness training exercises which were a necessary precondition for retention within the service. He maintained that the RAAF responded to Ms Neal's symptoms by referring her to a number of medical practitioners and specialists who included a cardiologist, biomedical practitioner, physician, urologist and ophthalmologist. Mr Rudge submitted that there is no evidence that "a stressor " contributed to a decline in Ms Neal's condition which he maintained was simply progressing through its normal course of deterioration. Reference was made to published research which states that people with multiple sclerosis are more susceptible to stress.
I accept that Ms Neal’s repeated failures to pass the required time trial and fitness tests caused her much anxiety and stress. The medical evidence suggests that one of the contributing factors to Ms Neal's inability to pass these tests was her MS condition. I find that due to her MS condition, undiagnosed at the time, Ms Neal was more susceptible to stress. I accept that ongoing medical consultations with various specialists and repeated medical tests which failed to find the true cause of her symptoms, also caused her considerable stress and anxiety. I do not consider however, that Ms Neal experienced a category 2 stressor as the term is defined in clause 9 of the SOP because I do not accept that her treatment in the RAAF in response to her failure to pass the required fitness tests, constituted "bullying in the workplace". Ms Neal’s problems and symptoms were acknowledged by the RAAF and she was referred for consultation and treatment by many specialists. Whilst Ms Neal may have considered the required fitness tests onerous and unreasonable, this may well have been because she was concerned as to the reasons why she was unable to complete the required tests and her unexplained symptoms. There is a signed statement from Ms Neal in which she stated that whilst she has experienced frequent fatigue, she has not let her McArdle’s disease affect her duties and considers that her fitness level allows her to perform her duties adequately. This does not suggest that Ms Neil believed she was bullied at the time but confirms a desire to remain in the RAAF and complete the required duties to the best of her ability.
Factor 6 (j) further requires evidence of experiencing a category 2 stressor within three months of the clinical worsening of multiple sclerosis. For the reasons identified above, I am not reasonably satisfied that Ms Neal experienced a category 2 stressor as the term is defined nor is there evidence connecting a stressor with a clinical worsening of the condition. There is accordingly no need to consider the requirement for a causal connection between this factor and Ms Neal's service.
The Tribunal is not satisfied on the balance of probabilities of a connection between Ms Neal's multiple sclerosis disease and her service and accordingly affirms the decision under review.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 22 October 2012 Counsel for the Applicant Mr David Skinner
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink – Program Litigation and Review Branch
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