Glendenning and Comcare
[2004] AATA 6
•9 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 6
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/32
GENERAL ADMINISTRATIVE DIVISION )
Re PAUL ASHLEY GLENDENNING Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date9 January 2004
PlaceBrisbane
Decision The Tribunal:
(i) affirms the decision under review in so far as it relates to gastric erosions; and
(ii) sets aside the decision under review insofar as it relates to “abdomen condition: irritable bowel syndrome and epigastric pain” and substitutes its decision that, pursuant to sub-section 14(1) of the Safety, Rehabilitation and Compensation Act 1988, the respondent is liable to pay compensation to the applicant in respect of gastro-oesophageal reflux disease and irritable bowel syndrome.
...................(Sgd)....................
RG Kenny
Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/32
GENERAL ADMINISTRATIVE DIVISION
)
Re PAUL ASHLEY GLENDENNING Applicant
And
COMCARE
Respondent
ORDER TO AMEND DECISION [2004] AATA 6
Tribunal Mr RG Kenny, Member Date22 March 2004
PlaceBrisbane
WHEREAS the Tribunal made a decision in this matter on 9 January 2004, and it has come to the Tribunal’s attention that there was error in that;
AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the error with the least cost and inconvenience to the parties;
THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:
1. The decision page be amended as follows:
“(iii)that the respondent is liable to pay costs to the applicant in accordance with the Tribunal’s practice direction.”
…………(Sgd)……………
MEMBER
Administrative
Appeals
Tribunal
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/32
DIVISION
)
Re PAUL ASHLEY GLENDENNING Applicant
And
COMCARE
Respondent
ORDER TO AMEND DECISION [2004] AATA 6
Tribunal Mr R G Kenny, Member Date21 May 2004
PlaceBrisbane
WHEREAS the Tribunal made a decision in this matter on 9 January 2004, and it has come to the Tribunal’s attention that there were errors in that decision;
AND WHEREAS the Tribunal wishes to amend the decision so as to rectify the errors with the least cost and inconvenience to the parties;
THE TRIBUNAL ORDERS, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, that:
1.The word "diagnosed" in paragraph 14 of the decision be replaced with the word "prescribed".
MEMBER
CATCHWORDS
WORKERS’ COMPENSATION – aggravation of gastro oesophageal reflux disease and irritable bowel syndrome - relationship to employment – aggravation not permanent – gastric erosions an injury under sub-section 6A(2) – medical treatment with NSAIDS – unintended consequence of treatment
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 6A, 14
Comcare v Houghton (2003) 37 AAR 138
Re Eaton and Comcare (2002) 67 ALD 182
Re Price-Beck and Department of Veterans’ Affairs [2003] AATA 386
Repatriation Commission v Brown (1990) 12 AAR 253Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Re Wright and Comcare [2003] AATA 1331REASONS FOR DECISION
9 January 2004 Mr RG Kenny, Member Background
1. Paul Glendenning (the applicant) was born on 2 May 1962. He is currently serving as a member of the Australian Army into which he enlisted on 18 January 1979. On 19 August 1998, 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 irritable bowel syndrome and epigastric pain. On 9 December 1999, a delegate of the Military Compensation and Rehabilitation Service rejected the claim. On 23 August 2001, the applicant completed a claim for gastric erosion and, on 25 March 2002, that claim was rejected by another delegate of the Military Compensation and Rehabilitation Service. On 11 July 2002, both of those determinations were affirmed by the Manager Reconsideration with the Military Compensation and Rehabilitation Service and, on 4 September 2002, the applicant sought review of that reviewable decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, the applicant was represented by Mr R King-Scott of Counsel. Comcare (the respondent) was represented by Mr C Clark of Counsel.
3. The following material was taken into evidence:
Exhibit 1the document prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents – T1 to T23);
Exhibit 2 a statement, dated 7 October 2002, by the applicant;
Exhibit 3a statement, dated 18 December 2002, by the applicant;
Exhibit 4a statement, dated 23 June 2003, by the applicant;
Exhibit 5a medical report, dated 26 April 2001, by Dr Suzette E Blight, Rehabilitation Physician;
Exhibit 6a medical report, dated 13 May 2003, by Dr Robert Eaves, Consultant Physician and Gastroenterologist;
Exhibit 7a medical report, dated 24 June 2003, by Dr S Collins, Consultant Gastroenterologist;
Exhibit 8a medical report, dated 16 December 2002, by Dr Russell Broadbent, Consultant General Surgeon;
Exhibit 9a further medical report, also dated 16 December 2002, by Dr Broadbent;
Exhibit 10a further medical report, dated 14 January 2003, by Dr Broadbent;
Exhibit 11a treatment and medication record compiled from the applicant’s service documents; and
Exhibit 12a further medical report, dated 24 June 2003, from Dr Collins.
Issues and Legislation
4. The issues for determination in this matter are whether the applicant suffers from a disease and/or injury which has resulted from his employment with the Australian Army such that the respondent is liable to compensate him for medical treatment and impairment in accordance with the terms of the 1988 Act. Some of the evidence suggests that there have been symptoms relating to gastrointestinal problems in the applicant since 1979. At that time, compensation matters were determined in accordance with the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). However, in this matter, I have determined that the aggravation of the applicant’s gastro oesophageal reflux disease and irritable bowel syndrome are attributable to circumstances that arose out of his employment during the currency of the 1988 Act. Relevant to the determination of those issues are the following provisions of the 1988 Act:
“4. Interpretation
(1) In this Act, unless the contrary intention appears:
‘aggravation’ includes acceleration or recurrence.
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
‘impairment’ means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
‘injury’ means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
‘permanent’ means likely to continue indefinitely.
…
6A.Injury arising out of or in the course of employment—extended operation
(1) This section applies to the following employees:
(a) members of the Defence Force;
(b)members of the Air Training Corps established under section 8 of the Air Force Act 1923;
(c)members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;
(d)members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;
(e) persons declared by the Minister under subsection 5(6A).
(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.
(3)Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.
…
14. Compensation for injuries(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Contentions
5. For the applicant, Mr King-Scott submitted that the applicant had been diagnosed as suffering from irritable bowel syndrome (IBS), gastro-oesophageal reflux disease (GOR) and gastric erosions. He conceded that no aspect of the applicant’s employment with the Australian Army had been responsible for the initial development of these conditions but that the conditions had been aggravated by elements of his employment and, in particular, he referred to stressful components of his service, particularly whilst he was serving in Sydney and in Darwin, and which were related to additional responsibilities and difficult working conditions that he faced. He submitted that there were problems with obtaining appropriate meals and also from postural positions that the applicant was forced to adopt in relation to the discharge of his duties as a motor mechanic.
6. For gastric erosions, he submitted that the Commonwealth had been responsible for prescribing non-steroidal anti-inflammatory drugs (NSAIDS) as part of the regimen of treatment for orthopaedic problems in the applicant and that these had been responsible for the development of the gastric erosions.
7. For the respondent, Mr Clark conceded that the diagnoses were those which had been referred to by Mr King-Scott and submitted that there was no evidence to suggest that the conditions had their underlying cause as being related to the applicant’s employment.
8. Mr Clark submitted that, although, in relation to IBS and GOR, there was evidence to support the view that stress could constitute an aggravating factor for these conditions, any such aggravation would be temporary in nature and therefore would not constitute impairment as that term is used in sub-section 14(1) of the 1988 Act.
9. Further, he submitted that there were inconsistencies in the evidence of the applicant in the way that he referred to the stressful effects upon him of aspects of his employment and that an absence of any contemporaneous records in relation to stress should lead to the conclusion that this was not a phenomenon that acted upon the underlying conditions in the applicant.
10. In relation to gastric erosions, Mr Clark submitted that, whilst such conditions can be the result of the effects of NSAIDS on the stomach lining of a person who ingests them, this was not an unintended consequence of the treatment such that it can be said that they arose out of the applicant’s employment. Again, he submitted that, even if there were such a causal process involved, any effects upon the applicant were temporary and there was no impairment as required by sub-section 14(1) of the 1988 Act.
Applicant’s Evidence
11. The applicant joined the Army in 1979 when he was 16 years of age as an apprentice vehicle mechanic. He completed the first two years of his apprenticeship along with his basic training at Balcombe and then he served for two years at the base workshop at Broadmeadows where he continued with trade training. He said that he found the first two years very stressful because he felt that he did not really fit in as well as other soldiers and reacted anxiously, in particular, to being confronted by the excessive demands of various drill instructors. He said that, in 1979, he experienced stomach problems in the form of constant burning sensations, reflux, pain and burping. He said that he was placed in hospital for a few days where he was investigated and that, thereafter, he was required to take a special diet of bland food products.
12. The applicant said that his health improved during the two years at Broadmeadows where he was only involved in trade training which he enjoyed and where he finished off his apprenticeship. He said that, over the next few years, he experienced periods of stress at various postings in Brisbane and in Watsonia in Victoria and had some disappointments with prospects of promotion before being made a corporal in 1989. He said that he served for 2½ months in Western Samoa in 1991 which he found an enjoyable experience. He said that, throughout all of those years, he had continued to experience some discomfort with his stomach and his bowel movements but became quite ill at the end of his Western Samoan service where he had suffered from food poisoning from which he took about six months to recover and during which time he lost about 20 kilograms in weight.
13. He said that a stressful period of his service was when he was transferred to Sydney in the mid-1990s. His posting was on the basis that he would be promoted to Sergeant but this had not happened because of reductions in numbers of personnel and he found himself involved in the type of work for which he had not been fully trained and for which there were insufficient staff. He said that, in about 1994, his symptoms of gastric problems and reflux became more severe. He had particular difficulty with the Warrant Officer to whom he was responsible. He said that he went to a civilian medical practitioner, Dr Fitzpatrick, who was engaged by the Army to provide medical treatment for Army personnel and said that Dr Fitzpatrick had sent him to a gastroenterologist, Dr Lowe.
14. The applicant said that he had hurt his back in the mid-1980s and, again, in 1989 during the carrying out of a training manoeuvre and was diagnosed NSAIDS in the form of Naprosyn.
15. The applicant said that he had served in a Field Hospital as a Corporal but had been responsible for all of the mechanical work in that Unit as well as that in neighbouring Units who did not have their own mechanics. Once again, he said that he felt stressed by the additional responsibilities that he had to undertake. He said that he was eventually transferred to Robertson Barracks in Darwin as the vehicle mechanic sergeant. He said that, at that time, there was significant understaffing because of the diversion of Australian troops to East Timor and that this meant that there should have been three sergeants working there but that he was the only one responsible for supervising some 70 people and, because of the heightened state of readiness due to overseas involvement of troops, there was a much higher level of performance required. He said that he found the experience at Robertson Barracks extremely stressful in that he was working long hours and was not able to maintain a correct meal regimen to assist him in monitoring his stomach and bowel problems.
16. The applicant said that, over the years in the Army, he had also experienced symptoms of regurgitation of acidic fluid during his work as a motor mechanic, in particular, when he was stooping forward or working in situations which required him to have his head below the level of his body.
17. The applicant said that he is still serving at Robertson Barracks but in a smaller workshop with a much lighter workload and is now suffering from less stress and a consequential lessening of the symptoms associated with his stomach and bowel problems. He said that, whereas previously he was experiencing problems several times a week, it is now the case that this occurs on about a weekly basis. He said that his employment reports have been good in recent times and that he had been recommended for promotion to Warrant Officer.
18. In cross-examination, the applicant said that he had always associated the symptoms in his gastro-intestinal tract as being related to stress and that, in 1994, he had advised Dr Fitzpatrick of this belief. He said that he had also told other doctors who had treated him at Regimental Aid Posts but said that he was aware that no doctor had ever written that down in any reports. It was put to the applicant that he had only been mindful of the notion of stress as being a triggering factor for these conditions in recent times but he denied that this was the case.
19. The applicant agreed that there was no reference to any stomach problems in his medical records for a period from around 1980 through until the mid-1990s but the applicant said that he had continued to suffer from symptoms through that period and had medicated himself with such products as Mylanta. He agreed that there was no reference to any stress of service until he saw Dr Collins in February 2001. He said that the majority of the stress was due specifically to the circumstances of his service although he conceded that there were frustrations about lack of promotion and about some of his transfers. He also said that he had experienced elements of stress associated with the illness of his wife, whom he married in 1992, and who had suffered from kidney problems in 1997. However, he said that her condition had stabilised after about 6 months when medication was provided to her. He also said that he had experienced the stressors associated with the loss of a finger in an injury in 1985.
20. The applicant was referred to the claim form for irritable bowel symptoms and epigastric pain which was signed by him on 19 August 1998. He agreed that the cause given for the development of the conditions did not include a reference to stress. He said that, whilst he had signed the form, he had not completed it as this was done by the Warrant Officer who was responsible for dealing with all claims. He said that he had told the Warrant Officer his background including the stressful circumstances of service but that the words used in completing the form were entirely those of the Warrant Officer and that he was not in a position to make any amendments to the form.
Consideration
gastro oesophageal reflux disease and irritable bowel syndrome
21. The medical evidence in this case comprised reports and oral evidence from three specialists, that is, Consultant Physician and Gastroenterologist Dr Robert Eaves, who was called by the applicant, Dr Russell Broadbent, Consultant General Surgeon, who was called by the respondent, and Dr S Collins, Consultant Gastroenterologist, who was also called by the respondent. There is agreement in the evidence from those practitioners with the relevant diagnoses of the applicant’s conditions. I am satisfied that he suffers from the diseases of gastro-oesophageal reflux (GOR) and irritable syndrome (IBS) as well as the injury of gastric erosions as the terms “disease” and “injury” are defined in sub-section 4(1) of the 1988 Act.
22. I am also satisfied, on the basis of the medical evidence given by Dr Eaves, Dr Broadbent and Dr Collins, that the applicant’s employment are not the primary cause of GOR or IBS. In each case, their evidence has implicated stress as a factor which is capable of aggravating, rather than causing, those conditions. Dr Eaves attributed the stress of the applicant’s service as detailed to him as being responsible for that aggravation. Dr Broadbent, who considered the applicant was a person with a low tolerance to stress and unsuited to military life, was of the opinion that the circumstances that the applicant had described were no greater than those which would pertain in civil employment. Dr Collins made reference to the applicant’s claims that he had experienced significant stress on various occasions through his employment in respect of long hours of work and levels of responsibility and, in oral evidence, said that these kinds of factors could be responsible for the aggravation.
23. I am satisfied that the applicant did experience periods during his service when his workload was significantly greater than would normally be the case for a person of his rank and that this resulted in long hours and periods of excessive responsibility which were stressful to him and which, on the basis of the medical evidence, were responsible for the aggravation of the underlying conditions of GOR and IBS. In particular, this related to his service in the 1990s as revealed in the significant increase in the extent to which he underwent medical investigations and treatment for gastrointestinal problems during that period. In addition, there is medical evidence in respect of the effects of postural changes insofar as it might aggravate the condition of GOR. Dr Eaves expressed the opinion that bending forward or working upside down with the head lowered could result in the promotion of regurgitation and the aggravation of GOR. That was also the evidence of Dr Broadbent and I am satisfied that these kinds of physical activities were required to be undertaken by the applicant as part of his duties as a vehicle mechanic. I am satisfied that this is an additional employment-related factor which has resulted in the applicant’s GOR.
24. In oral evidence, Dr Eaves expressed the opinion that the symptoms of both GOR and IBS in the applicant were likely to be temporary and related to the level of stress that the applicant was under at a given time. He also expressed the opinion that this was the case with any change of posture so that, as long as the applicant was not involved in postures that promoted regurgitation, the symptoms would disappear. Dr Broadbent expressed the opinion that, if the stressors were removed, the symptoms associated with GOR or IBS would abate. Dr Collins also expressed the opinion that the effects of the conditions were temporary in that the symptoms would wax and wane depending on the presence or absence of stressors at a particular time.
25. The term “injury” in sub-section 4(1) of the 1988 Act includes a disease and the term “impairment” is also defined in sub-section 4(1) of the 1988 Act to include the damage or malfunction of any part of the body or of any bodily system or function or part thereof. The evidence of Dr Eaves is that the applicant continues to suffer from symptoms associated with GOR and IBS and that is also the evidence of Dr Broadbent and Dr Collins. On the basis of the evidence, I am satisfied that, in the case of the applicant’s IBS and GOR, stressors of service were an effective and operative cause of the aggravation in the applicant and that, in the case of GOR, the need to adopt postural changes adverse to him was an effective and operative cause in the development of that aggravation: see Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510.
26. On the basis of the medical evidence, I am satisfied that the impairment from which the applicant suffers in respect of GOR and IBS is temporary in nature in that the symptoms come and go depending upon whether the applicant is exposed to employment-related stressors or postural changes that affect regurgitation. The conditions manifest themselves from time to time and, in that sense, can be described as periodic but temporary presentations. However, whilst the applicant continues as an employee of the Commonwealth, those temporary aggravations will continue to present themselves and, in that sense, because the applicant remains in employment with the Army, the respondent remains liable. There is no evidence that he is incapacitated for work but, nevertheless, as the impairment in ongoing while his employment continues, I am satisfied that the respondent is liable to pay compensation in accordance with the 1988 Act in respect of GOR and IBS for impairment in accordance with the terms of sub-section 14(1) of the 1988 Act.
gastric erosions
27. Pursuant to sub-section 6A(2) of the 1988 Act, this condition will constitute an injury which will be taken to have arisen out of the applicant’s employment if, pursuant to paragraph 6A(2)(b) of the 1988 Act, it was an “unintended consequence” of his treatment.
28. In the Federal Court decision Comcare v Houghton (2003) 37 AAR 138, Lindgren J said that, according to subsection 6A(2) of the 1988 Act, it is the suffering of an "injury", rather than any ongoing impairment, which is referred to as the unintended consequence of the medical treatment and his Honour said that the scheme expressed in the 1988 Act involves the following:
§there must be medical treatment paid for by the Commonwealth (subsection 6A(2)(a));
§there must be the unintended consequential suffering of an injury (subsection 6A(2)(b));
§there must be resultant impairment (subsection 14(1)).
Clearly, in an appropriate case, there might also be resultant permanent impairment as provided for in section 24 of the 1988 Act.
29. In relation to the first of those matters, I am satisfied that the applicant received medical treatment in the form of NSAIDS and that this was treatment paid for by the Commonwealth in respect of his orthopaedic conditions. It is not pertinent to the operation of section 6A that those conditions have been accepted by the respondent under the 1988 Act because subsection 6A(3) of the 1988 Act provides that subsection 6A(2) thereof is applicable whether or not the original condition that was being treated was compensable under the 1988 Act.
30. In Houghton, Lindgren J held that the term “injury”, as it is used in sub-section 6A(2) of the 1988 Act, does not take its meaning from the definition of injury in sub-section 4(1) of the 1988 Act. His Honour referred to the distinction in sub-section 14(1) of the 1988 Act between an “injury” and the “impairment” which results from the injury. In relation to the term “injury”, his Honour said:
“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’.”
31. On the facts of Houghton, Lindgren J was unable to determine whether there had been an injury because the Tribunal had not made the necessary findings in that regard. In Re Price-Beck and Department of Veterans’ Affairs (as delegate for Comcare) [2003] AATA 386, the Tribunal applied the meaning ascribed to the term “injury” in Houghton and also noted that the term “injury”, unlike the definition in sub-section 4(1) of the 1988 Act, did not extend to a disease. In that case, the employee suffered a recurring infection in his tooth as a result of the failure of root canal therapy which had been performed in the Commonwealth’s service 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 sub-section 6A(2) of the 1988 Act. However, in Re Wright and Comcare [2003] AATA 1331, it was held that memory loss was a form of harm which would constitute an injury for the purposes of sub-section 6A(2) of the 1988 Act. I am satisfied that gastric erosions also constitutes an injury under that provision.
32. A medical report, dated 15 November 2000, shows that, at that time, the applicant was taking NSAIDS. An endoscopy report completed in February 2001 does not demonstrate any stomach abnormality but, in a further endoscopy conducted in April 2001, a healed gastric erosion is noted. The evidence of Dr Eaves was that gastric erosions developed in the applicant in response to NSAIDS which were prescribed for his orthopaedic conditions. He said that gastric erosions can be caused by bacteria in the stomach, namely helicobacter pylori, but he also said that, in the applicant’s case, he had noted the results of endoscopies which showed that the applicant was helicobacter negative. He considered that the applicant’s condition was related to NSAIDS. Dr Collins also reported that the applicant suffered from multiple erosions that appeared to be induced by that form of medication. Dr Broadbent, in his evidence, said that gastric erosion was like a grazing of the surface of the stomach and that the condition can be acute or chronic. He gave, as an example of an acute presentation, a situation where the grazing of the surface was caused by the introduction of an inspecting device such as an endoscope. He said that, in the applicant’s case, the presentation was chronic and was related to the ingestion of NSAIDS.
33. On the basis of the medical evidence, I am satisfied that the applicant’s gastric erosions have been caused by the ingestion by him of NSAIDS.
34. In his evidence, Dr Eaves said that gastric erosions were a well-known side effect of the use of NSAIDS and that, although this was not an outcome which was desired by a medical practitioner who prescribed the medication, it was certainly one that would be contemplated with the use of the drug. Dr Broadbent said that he expected gastric erosions to occur when NSAIDS were utilised, that the effect would not be the same in all cases but that some degree of effect would be anticipated. He said that this was particularly so with earlier forms of the drug and that it was a matter of balancing risks against benefits.
35. In Re Wright and Comcare[2003] AATA 1331, the following was noted in relation to the term “unintended consequences” in section 6A of the 1988 Act:
“65. In Comcare v Houghton (above), Lindgren J also made reference to the approach which the Tribunal had adopted in relation to the meaning of the term ‘unintended consequences’ in subsection 6A(2) of the Act. His Honour noted that the Tribunal had declined to follow the construction adopted by the Tribunal in Re Eaton and Comcare (2002) 67 ALD 182. In Re Eaton and Comcare, the Tribunal determined that, an unintended consequence will be one which is:
(a)not desired or aimed for or designed by the provider of the medical treatment; and
(b)not a likely consequence of the medical treatment.
66. The Tribunal in Houghton’s case had adopted a broader interpretation and concluded that an unintended consequence was one which was not desired, sought or aimed for by the operating surgeons. In the Federal Court, Lindgren J refrained from expressing an opinion on the meaning of ‘unintended’ or ‘unintended consequences’ in sub-section 6A(2) of the Act because it was not necessary to do so for the resolution of the appeal. However, his Honour said (at 146):
‘I need go only so far as to say that in my opinion subs 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce. Yet this appears to be the meaning attributed to the word ‘unintended’ by the Tribunal.’
67. As I read that opinion, it is not inconsistent with the approach adopted by the Tribunal in Re Eaton and Comcare and I have decided to adopt the construction utilised by the Tribunal in that case. Accordingly, an unintended consequence in subsection 6A(2) of the Act 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.”
36. In this case, evidence has been given in relation to the state of medical knowledge of the relationship between the use of NSAIDS and the development of gastric erosions. On that evidence, I am satisfied that it was highly likely that gastric erosions would occur although, obviously, this was not a result that was desired, aimed for or designed by the practitioners who prescribed the medication. Whilst it was not inevitable that the gastric erosions would occur, I am satisfied that the high degree of likelihood involved means that their presentation cannot be described as an unintended consequence of the treatment given. In that situation, I am satisfied that gastric erosions was not an injury which may be deemed to have arisen out of the course of the applicant’s employment pursuant to section 6A of the 1988 Act.
37. This means that, pursuant to subsection 14(1) of the 1988 Act, the respondent is not liable to pay compensation for incapacity or impairment in relation to that condition.
Decision
38. The Tribunal:
(i)affirms the decision under review in so far as it relates to gastric erosions; and
(ii)sets aside the decision under review insofar as it relates to “abdomen condition: irritable bowel syndrome and epigastric pain” and substitutes its decision that, pursuant to sub-section 14(1) of the 1988 Act, the respondent is liable to pay compensation to the applicant in respect of gastro-oesophageal reflux disease and irritable bowel syndrome.
Costs
39. The respondent is liable to pay costs to the applicant in accordance with the Tribunal's practice direction.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 17 and 18 November 2003
Date of Decision 9 January 2004
Counsel for the Applicant Mr R King-Scott
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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