Heiderich and Military Rehabilitation and Compensation Commission (Compensation)
[2022] AATA 4408
•20 December 2022
Heiderich and Military Rehabilitation and Compensation Commission (Compensation) [2022] AATA 4408 (20 December 2022)
Division:VETERANS’ APPEALS DIVISION
File Number:2021/5533
Re:Peter Heiderich
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal:Deputy President J Sosso
Date:20 December 2022
Place:Brisbane
The decision under review is set aside and, in substitution, the Tribunal decides:
(a)Mr Peter Heiderich has an accepted condition that has resulted in him suffering a permanent impairment;
(b)pursuant to Table 8.2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1), has a Whole Person Impairment value of 20%; and
(c)the matter is remitted to the Respondent with a direction to calculate the quantum of compensation payable to Mr Heiderich for non-economic loss pursuant to s 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
.................[SGD].......................................................
Deputy President J Sosso
Catchwords
COMPENSATION – distal sigmoid colon adenocarcinoma – Tables 8.1 and 13.2 – whole person impairment value – conflicting medical opinion – concurrent evidence – decision under review set aside and substituted and remitted with respect to quantum of compensation payable under s 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Legislation
Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth)
Cases
Canute v Comcare (2006) 226 CLR 535
Coonawarra Penola Wine Industry Association Inc & Others and Geographical Indications Committee [2001] AATA 844
McDonald v Director-General of Social Security [1984] FCA 57; (1983) 6 ALD 6
O’Maley and Comcare [1997] AATA 29
Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1
Temple and Repatriation Commission [2001] AATA 490
Wicks v Union Steamship Co of New Zealand Limited (1933) 50 CLR 328
Secondary Materials
Australian Government, Comcare, Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1), 2011.
Yde et al, “Chronic diarrhoea following surgery for colon cancer – frequency, causes and treatment options” International Journal of Colorectal Diseases (2018) 33:683 – 694.
REASONS FOR DECISION
Deputy President J Sosso
20 December 2022
INTRODUCTION
Mr Peter Heiderich (the veteran) seeks a review of a decision of a Delegate of the Military Rehabilitation and Compensation Commission (the Respondent) which affirmed the primary determination of another Delegate of the Respondent of 29 October 2020, denying liability to pay compensation for permanent impairment and non-economic loss resulting from distal sigmoid colon adenocarcinoma (DSCA) – Exhibit 1 T1.1 pp. 4 – 8.
The Applicant’s DSCA condition was accepted as defence-caused under the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) (the Act), with effect from 7 September 2017 – Exhibit 1 T1.1 p. 5.
The veteran was born in January 1967 and enlisted in the Royal Australian Air Force (RAAF) on 25 June 1984 when aged 17 years. The veteran’s mustering was as a cook. He was discharged from the RAAF on 3 December 1993, having served more than 9 years – Exhibit 1 T9 pp. 43 – 44.
In his statement of 11 October 2021, the veteran claimed he has experienced episodes of diarrhoea for “many years” and recalls suffering from this condition while serving in the RAAF. However, the symptoms came slowly, and he did not recall ever soiling his clothes. As a result, the veteran did not seek medical attention. The veteran recalled suffering a bout of diarrhoea, whilst serving in the RAAF, at least monthly. After being discharged from the RAAF, the veteran made adjustments to his lifestyle, including reducing his intake of coffee and alcohol – Exhibit 11 paras 4 – 12.
The adjustments to the veteran’s lifestyle relieved the frequency and duration of his diarrhoea episodes. In the period preceding his colon cancer surgery (discussed below), the veteran stated that he never lost control of his bowels or soiled himself. In the 5 years leading up to the colon cancer surgery, the veteran stated that he suffered from diarrhoea once every 2 to 3 months – Exhibit 11 paras 13 – 15.
The veteran has been diagnosed with a number of both physical and mental ailments – Exhibit 2 p. 2 para 9. In addition, the veteran reported to his treating health practitioner, in 2018, 2019 and 2020, that he consumed alcohol and smoked cigarettes – Exhibit 2 pp. 2 – 3 paras 10 – 12. In particular, the veteran reported, on 21 January 2019, that he smoked 1 – 2 packs of cigarettes per day between June 1984 and January 1995 and 30 – 40 cigarettes and “roll your own” per day since January 1995.
As at 4 November 2021, the veteran’s medication included a range of drugs including Valium, Mogadon, Metformin, Nexium, Panadeine Forte and Atozet – Exhibit 2 p. 3 para 13.
The veteran was examined by his General Practitioner (GP) Dr Muhammad Iqbal on 20 June 2017. Dr Iqbal made the following notes – Exhibit 7 p. 6:
“Semi formed stools 2-3 episodes per day, for the last 6 – 7 days, no fever, some bleeding PR, or abdo pain has been able to eat properly, able to take sips of water and retain them
…
Safety advice about worsening symptoms of bleeding PR or blood mixed with stools, fever abdo pain or worsening GE symptoms with inability to eat and drink and when to seek further help…”
On 29 June 2017, Dr Iqbal referred the veteran for a colonoscopy – Exhibit 7 p. 7. The procedure was performed on 1 August 2017 by Dr Simon Carter. A possible malignant tumour was identified in the distal sigmoid colon, which was biopsied – Exhibit 6 p. 24.
Dr Roderick Borrowdale, General Surgeon, confirmed, on 10 August 2017, that the distal sigmoid colon lesion was malignant – Exhibit 6 p. 23.
On 7 September 2017, the veteran underwent a left hemicolectomy, anterior resection. He had a moderately large distal sigmoid cancer in an abdomen. Dr Borrowdale was unable to progress very far laparoscopically and “the splenic flexure was extraordinarily difficult. In the end however both the resection and the anastomosis seemed to go well…” – Exhibit 6 p. 20.
Dr Borrowdale examined the Applicant on 7 December 2017 and opined that he “seems to be doing reasonably well”. The abdominal examination was “satisfactory” and Dr Borrowdale opined that the veteran’s “bowel function continues to gradually improve” – Exhibit 6 p. 19.
The next recorded assessment was made by Dr Peter Freeman, Surgical PHO, at Redcliffe Hospital on 24 May 2018. Dr Freeman made the following notes – Exhibit 6 p. 18:
“…Peter tells me he noticed what appears to be an incisional hernia 2 to 3 weeks ago as a protruding lump which has been causing him some discomfort around the site.
He tells me his bowels are opening 2 to 3 times a day and they are slightly looser than they were preoperatively but he denies passing any PR blood or mucous…
…
On examination today, his abdomen was soft and non−tender. He did have a reducible incisional hernia from his midline laparotomy, approximately the mid−portion of it with a measurement of approximately 5 x 3cm. His CEA level on 10th April 2018 was 1.8. I have discussed this with Dr Borrowdale and he was happy to book Peter up for an open incisional hernia repair with mesh, I have also booked Peter up for a colonoscopy to occur one year after his anterior resection and we will review him in another 6 months’ time with a repeat CEA as well as with an ultrasound.”
On the same day, the veteran completed a document titled “Adult Integrated Pre-Procedure Screening Tool” which consisted of 45 Questions. The veteran answered in the negative to the Question “Do you have any bowel or urine problems (e.g. bleeding or incontinence?)” – Exhibit 6 p. 15.
The veteran underwent a further colonoscopy on 5 September 2018, which was performed by Dr Borrowdale. Five small and medium sized polyps were found in the recto-sigmoid colon which were removed with a hot snare – Exhibit 6 pp. 16 – 17.
On 11 October 2018, the veteran completed an “Injury or disease details sheet”. The disease was stated to be “colon cancer”. The signs and symptoms were stated as “sigmoid colonic adenocarcinoma bowel resection on the 7 Sept 2017 – IBS Symptoms for a period of 20+ years”. The veteran claimed that the service contribution to the disease was as follows – Exhibit 1 T10 p. 45:
“Increased consumption of red meat and processed meats (cook) alcohol consumption. Over 250 kg whilst in service. Smoking 15 pack years cigarettes”.
On 11 November 2018, the veteran made a claim for two conditions – Exhibit 1 T11 pp. 47 – 57:
(a)left knee injury; and
(b)bilateral shoulder injury.
The veteran also made the following statement in his claim – Exhibit 1 T11 p. 53:
“These injuries along with cancer and mental health conditions have rendered me unemployable since Feb 2017”.
On 3 April 2019, a Delegate of the Respondent rejected the veteran’s claim for thoracic spondylosis, lumbar spondylosis, DSCA, and cervical spondylosis – Exhibit 1 T15 pp. 75 – 81. In reaching his conclusion on DSCA, the Delegate provided the following reasons – Exhibit 1 T15 pp. 79 – 80:
“Consideration was given to what service and or service related factors could have contributed to the causation of your condition. In considering your contention, I note that I am unable to consider to what extent red and processed meats contributed to the development of your condition as consumption of red and processed meats will be unable to be linked to service.
Furthermore, alcohol consumption under the DRCA is not compensable in this case. This is based on the view that habitual consumption of alcohol cannot be seen to be related to ADF service and or excessive consumption of alcohol has no established nexus to your ADF employment. Therefore, liability cannot be considered with regards to the risk factor of alcohol consumption causing the development of your colon cancer condition.
The CMA advised that cigarette smoking is therefore the primary risk factor for the development of your distal sigmoid colon adenocarcinoma condition. Consideration was therefore given to whether a nexus can be established between your smoking habit and your military service. I have considered your smoking questionnaire dated 21 January 2019 where you indicate that you first commenced smoking in June 1984.
In order for liability to be accepted under the DRCA, I must be satisfied that service and service related factors contributed to the development of your habitual smoking to the extent that service either assisted in starting and or continuing your smoking habit.
I have examined your contention and factored into my decision the fact that at the time of enlistment, you were approximately 17.5 years of age as well as your contention that you commenced smoking in June 1984. The Commonwealth Government introduced a smoke free work policy in 1988 which applied at all Commonwealth workplaces. A medical presentation in November 1987 in your service medical records confirmed that you received advice on the harmful effects of smoking and were encouraged to cease smoking during service.
In reaching my decision, I have considered medical records during service where you were provided advice to cease smoking. I have also given consideration to factors that encouraged habitual smoking during service including access to cheap cigarettes and peer pressure. I am not satisfied that those factors were as prevalent in a work environment in the 1980s where community attitude and service culture around smoking were different to the service culture where smoking was encouraged as was the case prior to 1973.
There appears to be no apparent stressor and or event that enables me to be satisfied that service and or service related factors caused you to develop a smoking habit.
Therefore after considering all available evidence, I am not satisfied on the balance of probabilities that service and or service related factors contributed to the development of your distal sigmoid colon adenocarcinoma condition to a significant degree.”
The veteran sought reconsideration of the Delegate’s decision, and, on 25 March 2020, a Review Officer set aside the above Determination so far as it related to DSCA and, instead, accepted liability with effect from 7 September 2017 – Exhibit 1 T18 pp. 85 – 88.
Without setting out at length the Review Officer’s reasons, suffice it to say, on the basis of the evidence presented, she was reasonably satisfied that the veteran’s smoking arose in the course of his military service, and he became so habituated to smoking that it made a significant contribution to the contraction of DSCA.
The veteran, subsequently, made a claim for incapacity payments and non-economic loss in respect of the accept condition of DSCA. In a letter to the veteran, dated 27 March 2020, a Delegate of the Respondent stated that he had forwarded the veteran’s request to be assessed for permanent impairment to the Department of Veterans’ Affairs Permanent Impairment Team – Exhibit 1 T19 pp. 89 – 90.
On 24 July 2020, a Delegate of the Respondent determined the veteran’s incapacity payment as follows – Exhibit 1 T20 p. 91:
(a)$850.05 (gross) per week for the period from 7 September 2017 to 19 October 2017;
(b)$850.05 (gross) per week for the period from 15 January 2018 to 30 June 2018; and
(c)$1,260.33 (gross) per week for the period from 1 July 2018 to 7 October 2018.
The Delegate concluded that the veteran was entitled to an arrears payment of $43,316.01 (gross) for the period 7 September 2017 to 7 October 2018, with a net arrears figure of $28,236.01 – Exhibit 1 T20 pp. 91 – 92.
A subsequent Determination of 29 October 2020 dealt with the veteran’s claim for permanent impairment compensation – Exhibit 1 T23 pp. 107 – 111.
The Delegate informed the veteran that in order to determine if he was eligible for permanent impairment compensation, consideration had to be given as to whether – Exhibit 1 T23 pp. 107:
(a)the veteran had an impairment;
(b)the impairment was permanent and stable;
(c)there was an assessable impairment in accordance with the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (the Guide);
(d)the degree of the impairment meets the thresholds for compensation; and
(e)the veteran had been paid a previous lump sum benefit for permanent impairment.
The Delegate found that compensation was not payable for the claimed condition because the impairment did not meet the threshold of 10% Whole Person Impairment (WPI) for the minimum payment – Exhibit 1 T23 p. 107.
In reaching this conclusion, the Delegate stated that the “key” evidence was a medical report of Dr Ian Fraser dated 2 August 2020.
The Tribunal has been provided with a copy of this “report” which, in reality, is a pro forma “Impairment Assessment” in which Dr Fraser dealt with all four claimed conditions – Exhibit 1 T21 pp. 96 – 101.
At the outset, Dr Fraser opined that the condition of DSCA was permanent as from September 2017 and was stable as from 2017 – Exhibit 1 T21 p. 96.
Dr Fraser opined that there was no evidence of malnutrition, and dietary modification was stated to be “significant change to diet has been required to avoid symptoms or minimise complications”. Alteration to bowel habit was stated to be moderate, with more severe constipation and/or more frequent diarrhoea. Alteration to stool content was stated to be abnormal stool content occurring infrequently – Exhibit 1 T21 pp. 97 – 98.
Dr Fraser opined that colon cancer contributed 100% of the veteran’s impairment – Exhibit 1 T21 p. 99.
With respect to the activities of daily living and how the veteran’s condition impacted on them, Dr Fraser answered that the condition had no impact on the following tasks – Exhibit 1 T21 pp. 100 – 101:
(a)ability to receive and respond to incoming stimuli;
(b)standing;
(c)moving;
(d)feeding;
(e)control of bladder and bowel;
(f)self-care; and
(g)sexual function.
In assessing the veteran’s condition, the Delegate used Table 8.1 (disorders of the oesophagus, stomach, duodenum, small intestine, pancreas, colon, rectum and anus) and 13.2 (malignancies) of the Guide. The Delegate assessed the veteran at 0% WPI in relation to Table 8.1 and 5% WPI in relation to Table 13.2 – Exhibit 1 T23 p. 108.
Accordingly, the Delegate determined that there was no payment eligibility under either s 24 or s 27 of the Act.
The veteran, subsequently, requested a reconsideration of this Determination.
In the interim, Dr Fraser provided a further report dated 4 July 2021. In that report, he opined as follows – Exhibit 1 T26 p. 115:
“His bowel function has changed in the sense that he is now plagued by intestinal hurry by moving his bowels up to 6 times a day and they are loose and poorly formed compared to previous surgery. On occasion accidents do occur and he is forced to carry spare underwear when he travels by car. In addition to this he complains this abdominal scar pulls when he carries any house hold shopping which causes him discomfort and pain.”
On 29 July 2021, a Review Officer affirmed the Determination of 29 October 2020 – Exhibit 1 T1.1 pp. 4 – 8.
The Review Officer gave the following reasons for her decision – Exhibit 1 T1.1 p. 7:
“The criteria for ratings under table 8.1 require objective signs and symptoms of the disease to be present. Under DRCA we adopt an injury by injury approach as supported by the High Court cases of Canute and Fellowes. In the provided report, it’s unclear what objective signs and symptoms the Dr is reporting are present in order to meet a criteria of 15%.
I note the additional report provided from Dr Fraser dated 4 July 2021. As the adenocarcinoma has been excised and there appears to be no ongoing treatment as the condition is no longer present. The impairment described is occasional soiling when travelling by car. Therefore under Table 8.1 a score of 5% is appropriate.
There is no rating applicable under table 13.2 as the impairment due to the consequence of treatment for the accepted condition does not meet the threshold for moderate effort in completing activities. The Medical Impairment Assessment completed by Dr Fraser dated 2 August 2020 does not show any impairments in the activities of daily living.
I note Dr Fraser states that his scar causes discomfort and pain, however pain is not covered under Section 25, and this would be covered under Section 27 – Non-Economic Loss if eligible to receive a payment. Therefore under table 13.2 a score of 0% is appropriate.
Therefore, I am not satisfied that the degree of whole person impairment has stabilised at 10% or more and it is my decision to affirm the determination under review.”
As previously noted, the veteran lodged an application for review of the decision of 29 July 2021 – Exhibit 1 T1 pp. 1 – 3. The following reasons were given by the veteran for the review application – Exhibit 1 T1 p. 2:
“The decision is wrong as it involves a misunderstanding of the nature of the condition and its residual effects.”
MEDICAL EVIDENCE
Introduction
Apart from the summonsed medical records of Go2 Health (Exhibit 5), Redcliffe Hospital (Exhibit 6), Rothwell Family Practice (Exhibit 7) and various reports of various treating doctors, including Dr Fraser and Dr Iqbal, the Tribunal has been presented with detailed reports by Dr Michael Mar Fan, for the veteran, and Dr Mark Norrie, for the Respondent.
The reports of Dr Mar Fan and Dr Norrie are dealt with below.
Dr Mar Fan – Report 28 January 2022
Dr Mar Fan, a Consultant General and Colorectal Surgeon, examined the veteran on 19 January 2022 and prepared a detailed report dated 28 January 2022 – Exhibit 9.
Dr Mar Fan observed that the veteran was, then, unemployed, had daily bowel movement, although, somewhat loose, and had loss of bowel control on a monthly basis. Whilst the veteran takes fibre supplements, he “is not on any anti-diarrheal”. It was noted that the veteran complained of occasional pain around the surgical scar – Exhibit 9 p. 3.
Dr Mar Fan noted that the veteran has “no issues” with effects on daily living – Exhibit 9 p. 4.
With respect to the veteran’s abdomen, Dr Mar Fan made the following observations – Exhibit 9 p. 4:
“Examination of the abdomen confirmed a long midline scar 340 mm from xiphisternum to just above the pubic [sic] bone. He also has a transverse incision above the umbilicus measuring 100 mm across. No obvious divarication of the recti with no evidence of recurrent incisional hernia.”
Dr Mar Fan then addressed to Table 8 and Table 13.2 of the Guide. With respect to Table 8, Dr Mar Fan opined as follows – Exhibit 9 p. 5:
“…it is my opinion that the claimant fulfils a 20% impairment in the disorder of the oesophagus, stomach, duodenum, small intestine, pancreas, colon, rectum and anus. I believe he exhibits symptoms consistent with partial faecal incontinence requiring continued treatment. Partial faecal incontinence almost certainly is related to resection of his rectosigmoid colon. I would have thought that the frequency would even be more severe if he was not taking Panadeine Forte for his other medical issues. I do not believe the other objective signs of disease as part of the 20% impairment criteria is relevant given the fact that he has already fulfilled the first criteria.
Next, in relation to Table 13.2, Dr Mar Fan made the following observations – Exhibit 9 p. 5:
“In relation to table 13.2 a 10% impairment due to malignancy is fair and reasonable. Claimant had evidence of an incisional hernia in the past which certainly will preclude him from doing his activities of normal living. He felt that he may will have a new one developing but on examination today it feels more of a divarication of the recti. His exercise tolerance is relatively poor for someone of his age. He can do up to about 500 metres before getting short of breath, a part of this might be related to his underlying smoking as well.”
Dr Mar Fan concluded as follows – Exhibit 9 p. 5:
“Therefore, in my opinion I believe the claimant is entitled to a 20% impairment in the disorder of the colon as well as a 10% impairment in the disorder of malignancy based on his history, my clinical findings, and my interpretation of the approved guides.”
Dr Norrie – Report 5 May 2022
Dr Norrie, Gastroenterologist, examined the veteran on 24 March 2022 and prepared a detailed report dated 5 May 2022 – Exhibit 3. Dr Norrie was briefed with most of the material before the Tribunal, including the summonsed documents (Exhibits 5 – 7) as well as Dr Mar Fan’s report of 28 January 2022 – Exhibit 3.
First, Dr Norrie outlined the veteran’s history and dealt, at some length, with his operation. Although lengthy, this part of Dr Norrie’s report is particularly helpful and is quoted in full – Exhibit 3:
“5 Mr Heiderich describes a history of having irritable bowel symptoms for many years, and at least 10 years prior to his surgery for a distal sigmoid carcinoma. A further episode in the notes suggests that he may have had symptoms for at least 20 years prior to this, even as early as 1997.
6He describes having watery diarrhoea with rectal bleeding on wiping and crampy lower abdominal pains that do not radiate and are made worse by stress. They were not related to food at that time, but he now finds that his symptoms are less related to stress but are more related to food, particularly dairy, milk and coffee, and by cutting these things out, his symptoms have improved. He has seen a dietician who put him on a FODMAP diet and this did improve his symptoms, but he found that it was difficult to stick to this.
7 Although Mr Heiderich had symptoms of alteration in bowel habit and rectal bleeding prior to having his colonoscopy on 01 August 2017 – performed by Dr Roderick Borrowdale, General Surgeon – there was no distinguishable change in his symptoms in that sense to precipitate the colonoscopy, and what appears to have precipitated the colonoscopy was that he had a positive faecal occult blood test under the National Bowel Cancer Screening P60rogram.
8There was a large polyp seen in the distal sigmoid colon, but the distance from the rectum was not documented and it was endoscopically thought to be a malignancy; however, the biopsies at that stage only revealed a tubular adenoma with high grade dysplasias. He had other polyps noted at that time, as well as diverticulosis.
9On the basis that this was a presumed malignancy, he then went for an intended laparoscopic left anterior resection on 07 September 2017, but this was turned into an open procedure because of problems with the fact that he was obese, he had what was described as a ‘fatty colon’, and it was difficult to mobilise his splenic flexure.
10A subsequent note by the Surgeon stated that the surgery after that point appeared to go well.
11Since that time, Mr Heiderich has been troubled by a pain on the right side that is a sharp, intermittent pain that may last for up to 20 minutes and occur with moving. It sounds like an abdominal wall musculoskeletal pain, possibly related to a neuroma from the previous surgery.”
Dr Norrie noted that the veteran informed him that his colon cancer issues had no effect on his activities of daily living. However, with respect to his recreational activities (including photography, art, painting and attending music festivals), the veteran told Dr Norrie that his post-operation condition had “significantly reduced outdoor activities because of his ongoing need to be near a toilet” – Exhibit 3.
Dr Norrie was asked a series of Questions, the first of which was what was the impairment (if any) resulting from the veteran’s DSCA. The response was as follows – Exhibit 3:
“Mr Heiderich’s symptoms are suggestive of a diarrhoea predominant irritable bowel syndrome and, in my opinion, are not directly related to his sigmoid colon adenocarcinoma. It also seems unlikely that his intermittent incontinence is related to the sigmoid adenocarcinoma.
From the description of the colonoscopy, it appears that the anastomotic junction was in the distal rectum. Without surgery in the deep part of the pelvis, there is less risk of causing pelvic floor or neurological damage that may affect pelvic floor function and increase risk of incontinence.”
In response to further Questions, Dr Norrie opined that the veteran’s diabetes may contribute to exacerbate his symptoms and, while noting that the duration of the veteran’s symptoms had been at least 14 years and possibly more than 20 years, Dr Norrie noted that the veteran claimed that “his symptoms have worsened since he had the surgery” – Exhibit 3.
Dr Norrie also opined that the veteran may get improvement by following a FODMAP diet, and also noted that he had never had a gastroscopy and had not had other diagnoses excluded such as celiac disease or lactase deficiency – Exhibit 3.
The next Question asked of Dr Norrie was what (if any) are the symptoms of the veteran’s DSCA, and the response was as follows – Exhibit 3 p. 7:
“The adenocarcinoma has now been resected, so the question posed is whether Mr Heiderich has any residual symptoms as a consequence of the loss of 250 millimetres of bowel, and as a consequence of the surgery that he had performed.
As previously stated, in my opinion, it is probable that the symptoms that Mr Heiderich is describing are related to diarrhoea predominant irritable bowel syndrome which antedated the surgery, rather than a consequence of the surgery itself. The shortened colon would not be expected to cause his symptoms per se, and damage to his pelvic floor or nerves from the surgery would seem unlikely with an uncomplicated anterior resection where the rectum is intact.”
Dr Norrie was also asked to assume that the veteran has partial faecal incontinence, and was given a range of possible reasons for that state of affairs. In response, Dr Norrie opined as follows – Exhibit 3:
“I consider it is very unlikely that the previous distal sigmoid colon carcinoma would have contributed to Mr Heiderich’s partial faecal incontinence. This partial faecal incontinence would certainly be contributed to by the fact that he is vulnerable to having loose watery stools that are often only solidified by his being on Panadeine Forte. There are many possibilities for why this may be the case, and the most likely reason for this would be the diarrhoea predominant irritable bowel syndrome that antedated his surgery.
In conjunction with this, when one has irritable bowel syndrome, dietary modification is often required to improve symptoms, and so it is likely that diet is contributing to Mr Heiderich’s symptoms. He has already acknowledged that certain things in his diet, including coffee and dairy make his symptoms worse.
The watery stools and vulnerability to partial faecal incontinence could also potentially be made worse by medications, and he is on several medications that may have this side effect, most notably, Metformin but this may also be a side effect of Nexium.
I consider it is unlikely that the alcohol, tobacco and cannabis consumption are contributing to his symptoms presently.
It is possible that Mr Heiderich’s symptoms may also be related to his newly diagnosed diabetes, although bowel symptoms tend to become more prevalent when one has had this condition for a long period of time, and he has only been diagnosed with this for two years.”
Finally, Dr Norrie was asked, having regard to his responses, what are the permanent impairment percentages he would ascribe to the veteran’s DSCA under Tables 8.1 and13.2. His response was as follows – Exhibit 3 p 10:
“Mr Heiderich has mild incontinence of gas and liquid stool which would give him a degree of permanent impairment of 5% under Chapter 8 Digestive system and Table 8.1. However, I believe that this impairment is related to his diarrhoea predominant irritable bowel syndrome and not to his previous distal sigmoid colon adenocarcinoma.”
Dr Mar Fan – Report 31 May 2022
Dr Mar Fan was briefed to supply a supplementary report after being provided with Dr Norrie’s report of 5 May 2022 – Exhibit 10.
Only one Question was asked of Dr Mar Fan, namely, having read Dr Norrie’s report, what was his response. Dr Mar Fan opined as follows – Exhibit 10:
“Dr Norrie’s expert opinion is that the claimant’s past history of irritable bowel syndrome prior to the anterior resection for sigmoid carcinoma is the sole cause of the claimant’s ongoing diarrhoea.
I have noted the claimant has had colonoscopy on two occasions in the past but no evidence of any upper endoscopy. There is no evidence of any disease (in particular, no biopsy results) in either the upper or lower gastrointestinal tract as the cause for his bowel frequency and incontinence.
In my expert medical report of 28.01.2022, I opined that the claimant’s partial faecal incontinence is almost certainly related to the resection of his rectosigmoid colon. I believed the frequency of his bowel motion would have been more severe if he was not taking Panadeine Forte for his other medical issues. I award him a 20% impairment in the disorders of oesophagus, stomach, duodenum, small intestine, pancreas, colon, rectum, and anus as a result.
As a practising colorectal surgeon, I consider the symptoms exhibited by the claimant are not uncommonly seen in my day-to-day work. I have also included with this report an article published in the International Journal of Colorectal Diseases recently. It was mentioned that in patients that had underwent left hemicolectomy with anterior resection can suffer from liquid stool in up to 10% of the patients. It was noted the incident is much higher with a right-sided resection. Therefore, the occurrence of loose bowel motion and subsequent faecal soiling is not an uncommon finding in some patients that have underwent a left-sided colon resection.
In my opinion, I believe the claimant has a genuine reason (ie. post left colon resection) rather than a presumed diagnosis of irritable bowel syndrome (with no mucosal biopsy available to exclude other causes). I stand by my opinions given in my earlier independent medical examination report.”
The Tribunal was also provided with a copy of an article written by Yde et al, titled “Chronic diarrhoea following surgery for colon cancer – frequency, causes and treatment options” published in the International Journal of Colorectal Diseases (2018) 33:683 – 694.
The Purpose of the article was stated to be – Exhibit 10:
“The growing population of survivors after colon cancer warrants increased attention to the long-term outcome of surgical treatment. The change in bowel anatomy after resection disrupts normal gastrointestinal function and may cause symptoms. Thus, many patients surviving colon cancer have to cope with bowel dysfunction for the rest of their lives…”
The Conclusion reached by the authors of the article was as follows – Exhibit 10:
“Diarrhoea is likely a common long-term complication after colon cancer surgery. Attention to this complication and a specific diagnosis will aid the targeted treatment of patients suffering from this complication.”
Dr Norrie – Report 4 August 2022
Dr Norrie was briefed to supply a supplementary report and he was briefed with Dr Mar Fan’s supplementary report of 31 May 2022 – Exhibit 4.
Dr Norrie stood by his original diagnosis, and opined that Dr Mar Fan had misinterpreted his report when he claimed that he opined that the veteran’s past history of irritable bowel syndrome (IBS) was the sole cause of his going diarrhoea. Dr Norrie opined as follows – Exhibit 4:
“…irritable bowel syndrome is the most likely cause of his diarrhoea and that the distal sigmoid adenocarcinoma resection is unlikely to be contributing to his symptoms overall. I did not state that the predominant irritable bowel syndrome is the sole cause as Mr Heiderich has not had his symptoms fully investigated in that he has not had a gastroscopy and has not had small and large bowel biopsies to exclude other possibilities such as microscopic colitis, lactose intolerance or coeliac disease.
Mr Heiderich also has comorbidity in the sense that he has diabetes and is also on medications that may also be contributing to his diarrhoea.
…
In my opinion, the most likely cause for Mr Heiderich’s diarrhoea is diarrhoea predominant irritable bowel syndrome for the following reasons:
·Firstly, he had this diagnosis made before surgery,
·Secondly, he has typical symptoms of diarrhoea predominant irritable bowel syndrome that respond to dietary modification with a FODMAP diet and
·Thirdly, Mr Heiderich suffers from anxiety and depression and Post Traumatic Stress Disorder. There is a clear association between psychiatric disorders and irritable bowel syndrome.
…
Mr Heiderich did state that his symptoms have worsened since surgery, but it is also known that previous surgery has been associated with a worse outcome from irritable bowel syndrome.
In summary then, I opine that diarrhoea predominant irritable bowel syndrome is the most probable cause of his diarrhoea based on his fulfilling the Rome 4 Criteria for
Irritable Bowel Syndrome and the left sided colonic surgery per se is unlikely to be a contributor to his diarrhoea…”
THE LAW
Subsection 24(1) of the Act provides that where an injury to an employee results in a permanent impairment, the Commonwealth is liable to pay compensation to the employee in respect of the injury.
“Impairment” is defined in s 4 to mean “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 of function”. “Permanent” is defined in s 4 to mean “likely to continue indefinitely”.
Subsection 24(2) provides that for the purpose of determining if an impairment is permanent, regard is had to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
The concept of “permanent impairment” was considered by the Tribunal in O’Maley and Comcare [1997] AATA 29 where the following observations were made:
“32. In McDonald v Director-General of Social Security [1984] FCA 57; (1983) 6 ALD 6 the Full Court of the Federal Court was considering the concept of permanent incapacity for work in the context of Social Security entitlements. Northrop J distinguished that issue from that of ‘permanent disablement’ under workers’ compensation legislation saying that the High Court in Wicks v Union Steamship Co of New Zealand Limited [1933] HCA 58; (1933) 50 CLR 328 had ‘characterised the concept of 'permanent' as being forever’. However in view of the statutory definition of ‘permanent’ in the Act, the concept need not mean ‘forever’ but ‘means likely to continue indefinitely’. It is thus similar to that explained by Woodward J in McDonald at pp13-14 when he said: ‘The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent. In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future. . . . . . . There will be many cases in the difficult borderline region between temporary and permanent incapacity where the Director- General or the AAT will have to decide which is the more appropriate description. It is not necessary to have a 'settled expectation' of permanency before so finding; a belief - even on a fine balance - that indefinite duration is more likely than foreseeable termination, will suffice.’ (emphasis added)”
Pursuant to s 24(5) of the Act, the degree of permanent impairment of an employee is determined by applying the provisions of the approved Guide.
In this matter, as previously explained, the relevant provisions of the Guide are Tables 8.1 and 13.2. Both Tables are set out below:
Table 8.1 - Oesophagus, Duodenum, Stomach, Small Intestine, Pancreas, Colon, Rectum and Anus
% WPI
Description of level of impairment
0
Symptoms present but no anatomical loss or alteration
5
Symptoms and/or signs present and there is anatomical loss or alteration but continuous treatment is not required and weight and nutrition are maintained at a steady level
or
Mild incontinence of gas or liquid stool
10
Objective signs of disease present and at least one of the following:
· dietary restrictions needed for control
· drugs needed for control
· weight loss of up to 10% of desirable weight
15
Objective signs of disease present and at least two of the following:
· dietary restrictions needed for control
· drugs needed for control
· weight loss of up to 10% of desirable weight
20
Partial faecal incontinence requiring continual treatment
or
Objective signs of disease present and all of the following:
· dietary modification needed for control
· drugs needed for control
· loss of up to 10% of desirable weight per range on standard BMI chart.
25
Objective signs of disease present and one of the following:
· dietary restrictions and drugs produce partial but incomplete control
· weight loss of 10 to 20% of desirable weight
30
Objective signs of disease present and both of the following:
· dietary restrictions and drugs produce partial but incomplete control
· weight loss of 10 to 20 percent of desirable weight
40
Objective signs of disease present with two of the following:
· disturbed bowel habit
· pain (periodic or continual)
· continual manifestations (for example, fever or anaemia)
· weight loss of 10 to 20 percent of desirable weight
45
Complete faecal incontinence
50
Objective signs of disease present with all of the following:
· disturbed bowel habit
· pain (periodic or continual)
· continual manifestations (for example, fever or anaemia)
· weight loss of 10 to 20 percent of desirable weight
55 - 75
Objective signs of disease present and a combination of the following:
· severe persistent disturbance of bowel habit
· severe persistent pain
· constitutional manifestations
· weight loss of more than 20 percent of desirable weight
· severe limitation of activity
Table 13.2 – Malignancies
% WPI
Description of level of impairment
0
No symptoms or evidence of disease and able to undertake normal activities with no special care needed
10 - 15
Some signs or symptoms of disease and normal activities can be undertaken with moderate effort
35
Does not require institutional care but needs assistance with activities of daily living other than self care
50
Can still be maintained at home but with considerable assistance and frequent medical care
65
Requires institutional or hospital care and considerable assistance with activities of daily living other than self care
75
Requires institutional or hospital care and considerable assistance with activities of daily living including self care
85
Intensive support and/or treatment needed (disease may be progressing rapidly)
Subsection 24(7) provides that if an employee has a permanent impairment other than a hearing loss, and the degree of permanent impairment is less than 10%, compensation is not payable.
It is important to note that the Act has been drafted on the basis that an “injury” may result in more than one “impairment”. It may be that a person has two distinct medical conditions that overlap, but which, may result in different identifiable effects. In which case, it is not appropriate to apply a single WPI to the ailments and each must be considered separately – Robson v Military Rehabilitation and Compensation Commission (2013) 214 FCR 1.
The leading authority on applying the Guide in this context is Canute v Comcare (2006) 226 CLR 535 where the High Court made the following observations:
“11 Section 24(5) of the Act is expressed in terms of ‘the degree of permanent impairment of the employee’. This expression is said by Comcare to reflect an approach of assessing impairment on a “whole person” basis. However the definition of ‘impairment’ is not expressed in those terms. Section 4(1) provides:
‘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;
…
permanent means likely to continue indefinitely.’
The definition of ‘impairment’ (and by extension the concept of ‘permanent impairment’) is expressed in terms of effects on bodily parts, systems and functions. This disaggregated sense of the word is reinforced by the use of the indefinite expression ‘a permanent impairment’ in s 24(1). Textually, the Act assumes that ‘an injury’ may result in more than one ‘impairment’.
12 Content is given to the expression ‘degree of permanent impairment of the employee’ by reference to the Guide to the Assessment of the Degree of Permanent Impairment (the Guide), to which s 24(5) refers. The Guide is subordinate legislation which is to be prepared by Comcare and approved by the Minister pursuant to s 28 of the Act. Section 28(1) stipulates that the approved Guide set out:
‘(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.’
It is the first edition of the Guide which is relevant to these proceedings, and it is this which is identified in references in what follows to ‘the Guide’.
13 Part A of the Guide is concerned with permanent impairment, and Pt B is concerned with non-economic loss. Part A gives effect to the definition of ‘impairment’ in s 4(1) of the Act by a structure which compiles descriptions of impairments into groups according to body system and by expressing each impairment as a percentage value of the functional capacity of a normal healthy person. The Guide then contains a ‘Combined Values Chart’ in Table 14.1. This enables each impairment expressed as a percentage to be combined ‘to give the total effect of all impairments … as a percentage value of the employee’s whole bodily system or function’. The Guide claims, in this way, to import the notion of ‘whole person impairment’ from the American Medical Association's Guides.
14 However, it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of ‘an injury’ (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each ‘injury’. The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee ‘resulting from an injury’. Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable ‘under this section’; that is, ‘in respect of the injury’ (s 24(1)).
15 The scheme of the Act proceeds in this way from the occurrence of ‘an injury’, in the defined sense. As previously remarked, the Act assumes that more than one ‘injury’ may occur. Therefore it is not correct to say that s 24(5) imports a ‘whole person’ approach to the determination of the degree of permanent impairment. That ignores the centrality of ‘an injury’ to the scheme upon which Comcare’s liability to compensate depends.”
Finally, attention should also be drawn to s 27 which provides for compensation for non-economic loss. The term non-economic loss is defined in s 4 as follows:
“means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.”
Subsection 27(1) provides that where an injury to an employee results in permanent impairment, and compensation is payable pursuant to s 24, the Commonwealth is liable to pay additional compensation in respect of the injury for any non-economic loss suffered by the employee as a result of that injury or impairment. The amount of compensation is calculated by reference to the formula prescribed by s 27(2).
THE HEARING
A Hearing was convened in Brisbane on 9 November 2022.
The veteran appeared in-person and was represented by Mr Anthony Harding of Counsel.
The Respondent was represented by Mr Jamie Watts, who also appeared in-person.
The veteran testified and was cross-examined. In addition, Dr Mar Fan and Dr Norrie gave concurrent evidence.
CONSIDERATION
Does the accepted condition result in an impairment?
The first issue requiring resolution is whether the evidence, on the balance, supports the proposition advanced by the veteran that he suffers an impairment as a result of his accepted condition, or that his symptoms result from a pre-existing IBS.
Before answering this question, it is desirable to briefly set out the Tribunal’s observations about the concurrent evidence or “hot tubbing” that occurred. Concurrent evidence is used occasionally and, in my experience, usually in the context of workers’ compensation matters. In the case of the Administrative Appeals Tribunal, it has been used for at least the last 25 years. In Temple and Repatriation Commission [2001] AATA 490, Senior Member Dwyer made the following observations (at [67]):
“The practice of calling two medical expert witnesses together is still unusual within the Tribunal. I consider it appropriate to record how helpful I found it to be and to express the Tribunal's appreciation to the doctors for their cooperation, and to the representatives for their assistance in making the necessary arrangements. I suggest that the approach be adopted more frequently. There is benefit in a more investigative and less adversarial approach…”
Sometimes concurrent evidence can result in a significant reduction in hearing time and a narrowing of the issues due to the convergence of approach by expert witnesses. In Coonawarra Penola Wine Industry Association Inc & Others and Geographical Indications Committee [2001] AATA 844, an estimated hearing time of 6 months was reduced to 5 weeks due the successful use of concurrent procedures.
In this matter, however, hot tubbing did not result in the expert medical witnesses deviating from the opinions they expressed in their written reports. Neither Dr Mar Fan nor Dr Norrie made any significant concessions or adopted the opinions and assessment of the other Doctor. In short, the concurrent evidence did not result in a narrowing of the issues or shine any new light on what had already been presented to the Tribunal in written form.
It needs to be emphasised, however, that the concurrent procedure that was adopted was helpful to the Tribunal. The Tribunal was able to listen to the exchange of opinions between the expert witnesses and form a view as to which of the opinions expressed better comported to the evidence presented. In short, while the hot tubbing did not narrow the issues or shine a bright light on the evidence, it did assist the Tribunal in weighing the evidence presented. Concurrent evidence potentially has benefits and drawbacks depending on a range of factors, but, on the balance, in this matter, the Tribunal found it useful.
Dr Norrie opined in both of his reports, and when giving evidence at the Hearing, that the most likely cause of the veteran’s ongoing diarrhoea condition was his “pre-existing” IBS, a condition which Dr Norrie suggested may have been present for up to 20 years.
In coming to this conclusion, Dr Norrie claimed that the veteran had been “diagnosed” with IBS prior to his colon cancer surgery, met the diagnostic criteria for IBS in the Rome IV criteria, responded positively when on FODMAP diet, and suffered from other physical and mental conditions that may also result in diarrhoea symptoms (anxiety, depression, PTSD).
It is the case, as Dr Norrie conceded when giving evidence, that there is no test currently available that will definitely diagnose IBS. Tests can be performed which will exclude other conditions, and if those other conditions are excluded, then a treating doctor may use the Rome IV criteria to determine if it is more likely than not that a patient is suffering from IBS. The Tribunal accepts, as Dr Norrie quite properly pointed out, that there may be a range of other possible causes for a person to be suffering from a condition that meets the symptoms of IBS. It would appear, from the evidence presented, that this is an inexact area of medical science, and a treating doctor is required to undertake, potentially, an extensive series of investigations to ultimately draw a sound clinical conclusion and develop a secure treatment regime for a patient.
Further, it may well be the case that the veteran exhibited the signs and symptoms consistent with a diagnosis of IBS over a long period of time.
It is not contested that one of the additional tests that a treating doctor may order is a colonoscopy in order to rule out, or rule in, possible causes of a person suffering the signs and symptoms of IBS.
This is, in fact, what occurred in the case of the veteran. A colonoscopy was ordered and, as explained earlier, it was determined that cancer was present and surgical intervention occurred.
Dr Mar Fan, when giving evidence, made the obvious and compelling observation that, when the veteran was exhibiting the symptoms of IBS, he underwent a colonoscopy and cancer was detected. In short, the colonoscopy, rather than excluding cancer as a possible cause of his IBS symptoms, actually confirmed it.
It may be that the veteran has suffered from IBS, or at least, the symptoms of that ailment. However, it is incontestable that he was suffering from colon cancer, and the existence of this potentially fatal ailment appears to be the predominant cause of his IBS symptoms, at least, in the period leading up to surgery.
Insofar as there is a difference of opinion between Dr Norrie and Dr Mar Fan, the Tribunal prefers the conclusions of Dr Mar Fan as they better comport with the uncontested evidence.
There is also evidence before the Tribunal that the veteran’s condition has deteriorated since surgery.
Dr Mar Fan attached to his supplementary report, the article by Yde et al previously referred to. As the learned authors opined, diarrhoea is likely a common long-term complication of colon surgery. Indeed, apart from academic research, the Tribunal was presented with a report of Dr Fraser of 4 July 2021. Dr Fraser, as previously noted, opined that the veteran’s bowel function “has changed in the sense that he is now plagued by intestinal hurry by moving his bowels up to 6 times a day…” – Exhibit 1 T26 p. 115.
Dr Fraser was not called to give evidence, and the Tribunal has no reason to doubt the cogency of his diagnosis.
In addition, the Tribunal received evidence from the veteran about his condition. Reference can be made to the following extracts from his Statement of 11 October 2022 – Exhibit 11:
“26.The episodes of diarrhoea that I have suffered since my bowel surgery are completely different to the episodes of diarrhoea that I had suffered over many years from IBS. I no longer suffer the former type of diarrhoea since my surgery in September 2017. The IBS diarrhoea (as I call it) would usually last for a total period of around 24 hours whereas the latter diarrhoea is immediate, urgent and usually lasts 1 or 2 sit downs, that is, I might have to go a 2nd time.
27.When it happens, I have no warning and no chance to avoid it or even get to the nearest toilet. I cannot prevent as I lose control of my bowels.
28. I have read Dr. Norrie’s comments concerning the comparison between the 2 types of diarrhoea. I disagree with him when he says they are similar. Based on my own personal experience, they are totally dissimilar. I never suffered from bloating with the IBS diarrhoea. When I suffer these accidents since my bowel surgery, I would not describe the amount of liquid stool as small. It is enough to soil my underwear and my shorts or trousers depending on what I am wearing.
…
30.The other change in my bowel habits since the surgery has been the frequency. In the immediate period after the surgery, I was passing bowel motions up to 6 times a day. Now, on a bad day, I pass 3 bowel motions. However, they are not loose bowel motions. The only loose bowel motions that I now suffer from are the urgent, uncontrollable ones.
…
33.It is only since my bowel surgery that I have experienced these new and quite different episodes of diarrhoea.”
The veteran’s account of his condition since his colon cancer surgery is mirrored in the Statement of his partner of 12 years, Ms Katrina Dalitz – Exhibit 12. The Tribunal has no reason to doubt the truthfulness of the Statement of Ms Dalitz.
In short, since his operation, Dr Fraser opined that the veteran’s bowel condition has deteriorated, and this diagnosis is consistent with the veteran’s statement about his condition as quoted above. Both Dr Fraser’s opinion and the veteran’s statement, support Dr Mar Fan’s diagnosis that the underlying cause of the veteran’s more recent bowel problems is the accepted condition of colon cancer, and the surgical intervention required to deal with that ailment has resulted in an aggravation of the veteran’s bowel problems.
The Tribunal finds that, on the balance of probabilities, the veteran’s accepted condition has resulted in the impairment claimed.
Is the impairment permanent?
The Respondent contends that the veteran’s impairment is not permanent and relies on Dr Norrie’s opinion that the veteran has not undertaken all reasonable rehabilitative treatment for his impairment, in particular, the veteran has not adhered to the FODMAP diet prescribed by his dietician – Exhibit 2 para 46.
The Full Federal Court in Comcare v Filla (2002) 115 FCR 163 (Filla) made the following observation:
“13 What is ‘reasonable rehabilitative treatment’ is a question for the Tribunal; any views or comments by the primary judge in the present case, or indeed by this Court, are not determinative of the matter, nor of any necessary relevance. The questions of fact are matters for the Tribunal and not for the Court.”
It is also helpful to quote the further observations of the Full Court:
“10On remittal to the Tribunal, the question to be considered is: what, if any reasonable rehabilitative treatment exists for the particular impairment, the permanence of which is under consideration, having regard to the circumstances touching on those aspects before it.
11 Whether the rotator cuff surgery is ‘reasonable rehabilitative treatment’ is a question of fact that would have to take account of many factors, including the risk of failure and the possible extent of the benefit of the treatment, particularly when compared to the present position. Whether or not it was reasonable for the respondent to refuse to undertake rotator cuff surgery is quite a different question from whether, considering the prospects of success, risk of adverse consequences, pain, discomfort and inconvenience necessarily involved in the operation when compared with the measure of success that might possibly be achieved, and other factors, the rotator cuff surgery may fairly be described as ‘reasonable rehabilitative treatment’.
12Indeed, it may be that treatment which offers just a chance of restoring a person to her pre-injury condition is not properly to be described as ‘rehabilitative treatment’. Where the prospect of ‘restoration’ involves a not insignificant possibility of failure, it is a question whether such treatment is truly ‘rehabilitative treatment’. The Shorter Oxford English Dictionary relevantly defines ‘rehabilitate’ as: ‘To restore to a previous condition; to set up again in proper condition’.”
In determining if an impairment is permanent, a decision-maker is required to take into consideration the factors prescribed in s 24(2) of the Act. In considering those factors, it is necessary to first determine the nature and cause of the impairment. In the opinion of Dr Norrie, the veteran’s impairment is most probably IBS and, accordingly, a range of interventions are open to relieve the veteran of his IBS symptoms.
For the reasons previously expressed, the Tribunal does not, on the balance, agree that the diagnosis of Dr Norrie best comports with the evidence presented. Instead, the Tribunal prefers the diagnosis and reasoning of Dr Mar Fan that the accepted condition of colon cancer with resulting surgery has resulted in the impairment now being suffered by the veteran.
This is a key consideration, because if the impairment is as a result of surgical intervention to treat colon cancer, then the likelihood of improvement and the nature of reasonable rehabilitative treatment is qualitatively different to that which would pertain if the primary impairment was IBS.
Dr Mar Fan opined in his supplementary report that, as a practising colorectal surgeon, the “symptoms exhibited by the claimant are not uncommonly seen in my day-to-day work” – Exhibit 10. The article by Yde et al also referred to diarrhoea as a likely common long-term complication after colon cancer surgery.
As will be recalled, in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6, the Full Federal Court found it is not necessary to have a “settled expectation” of permanency, it is only necessary to make a finding that, on the balance, an indefinite duration is more likely than foreseeable resolution or restoration.
Based on the evidence of Dr Mar Fan and the other material presented, it would appear to the Tribunal that the treatment of the veteran’s distal sigmoid colonic tumour has had the unfortunate by-product of him being “plagued by intestinal hurry”, and, as Dr Fraser observed, the veteran also complains his “abdominal scar pulls when he carries any house hold shopping which causes him discomfort and pain” – Exhibit 1 T26 p. 115.
The article by Yde et al which, itself, is a review of numerous international studies of chronic diarrhoea following surgery for colon cancer, contains the following observations – Exhibit 10 p. 13:
“…Long-term bowel dysfunction has a great impact on quality of life in the population of colon cancer survivors. This review emphasizes the need for great awareness about long-term outcomes following colon cancer surgeries as the number of patients surviving colon cancer increases. Although studies of the prevalence of chronic diarrhoea after surgery in colon cancer patients are limited, it appears that this is a common complication. Further studies are required to fully relate the type of surgery to the development of diarrhoea…”
Based on the material before the Tribunal, the preferable finding to be made is that the veteran is more likely to suffer from “intestinal hurry” indefinitely, rather than this condition being resolved in the foreseeable future. Further, although adherence to a FODMAP diet would most probably assist the veteran, there is no compelling evidence, other than the opinion of Dr Norrie (whose opinion is predicated on the veteran suffering from IBS), that this would offer anything other than partial relief for his ongoing post-operative condition. The Tribunal agrees that dietary modification offers the veteran some relief of his condition and, to that extent, agrees with that aspect of Dr Norrie’s diagnosis – Exhibit 3. However, the Tribunal does not agree that dietary modification is a panacea for the veteran’s condition. In short, dietary modification of itself, could not be categorised as “rehabilitative treatment” as explained by the Full Federal Court in Filla.
The Tribunal, therefore, finds that the veteran’s impairment is permanent for the purposes of s 24 of the Act.
Degree of impairment
Introduction
It is now necessary to ascertain the degree of impairment based on Tables 8.1 and 13.2 of the Guide.
Both Tables provide impairment values expressed as fixed percentages. It is necessary for a decision-maker to choose an impairment value amongst the specified percentages. In short, it is not open for a decision-maker to choose an impairment value not specified in either Table.
Impairment is also system or function based. A single injury may result in multiple losses of function with consequent multiple impairments. When more than one Table is applicable to an injury, separate scores are allocated to each functional impairment.
Table 8.1
Table 8.1 of the Guide is used to determine the percentage of WPI for disorders of the oesophagus, duodenum, stomach, small intestine, pancreas, colon, rectum and anus.
It is helpful to refer to the veteran’s statement of 11 October 2022 in dealing with the symptoms he is currently experiencing.
The veteran stated that, prior to the diagnosis of his bowel cancer condition, he was experiencing symptoms such as soft stools, blood in his stools and dizziness – Exhibit 11 p. 4 para 18.
Following his surgery and rehabilitation in hospital, the veteran returned home. On the first day he was allowed to get “out and about”, he went to the local shopping centre to enjoy a coffee. After only taking a couple of mouthfuls, he experienced an urgent need to pass wind. He determined to drive home but could not control his bowels and soiled his clothes. Following this incident, the veteran stated that he continues to suffer these incidents on a regular basis, usually monthly, and without warning – Exhibit 11 p. 4 paras 20 – 21.
The veteran has attempted to make adjustments to his lifestyle to deal with this situation – Exhibit 11 p. 5 para 24:
“24.I am still suffering from this problem. I have made some adjustments to my lifestyle to alleviate the consequences, but it still occurs from time to time in public places. The adjustments include the Fodmap diet recommended by Dr Fraser and the dietician at his practice. Acting on dietary advice, I tried to avoid processed food and eat more fresh fruit and vegetables.”
With respect to Table 8.1, Dr Norrie gave the following assessment in his report of 5 May 2022 – Exhibit 3:
“Mr Heiderich has mild incontinence of gas and liquid stool which would give him a degree of permanent impairment of 5% under Chapter 8 Digestive system and Table 8.1. However, I believe that this impairment is related to his diarrhoea predominant irritable bowel syndrome and not to his previous distal sigmoid colon adenocarcinoma.”
Dr Mar Fan, in his report of 28 January 2022, made the following assessment – Exhibit 9 p. 5:
“With respect to Table 8, it is my opinion that the claimant fulfils a 20% impairment in the disorder of the oesophagus, stomach, duodenum, small intestine, pancreas, colon, rectum and anus. I believe he exhibits symptoms consistent with partial faecal incontinence requiring continued treatment. Partial faecal incontinence almost certainly is related to resection of his rectosigmoid colon. I would have thought that the frequency would even be more severe if he was not taking Panadeine Forte for his other medical issues. I do not believe the other objective signs of disease as part of the 20% impairment criteria is relevant given the fact that he has already fulfilled the first criteria.”
In order to choose an impairment value of 20%, a person must meet the following requirements:
“Partial faecal incontinence requiring continual treatment
or
objective signs of disease present and all of the following:
·dietary modification needed for control
·drugs needed for control
·loss of up to 10% of desirable weight per range on standard BMI chart.”
As will be noted, to achieve an impairment value of 20%, a person must either suffer from partial faecal incontinence requiring continual treatment or exhibit objective signs of disease and comply with all three specified factors.
In this matter, Dr Mar Fan has made a specific diagnosis of partial faecal incontinence requiring continual treatment.
Dr Norrie, however, gave a more guarded diagnosis in his report of 5 May 2022 – Exhibit 3:
“Mr Heiderich appeared to have normal anal sphincter tone on rectal examination, and on today’s examination, there was no evidence of excoriation suggestive of perianal irritation, but that does not exclude the possibility that this may occur intermittently.”
It will be noted that Dr Norrie did not rule out partial faecal incontinence.
The Tribunal listened to the testimony of the veteran. He presented as an honest person who gave direct and unqualified answers to the questions posed during cross-examination. The veteran’s account of his post-surgery condition was consistent with his Statement. Further, Ms Dalitz made herself available to give evidence and be subject to cross-examination. In the event, Mr Watts informed the Tribunal that she was not required for cross-examination – Transcript (Tr.) 09.11.2022 p. 2. The Tribunal has no reason to doubt her account of the veteran’s condition as recorded in her Statement.
In this matter, the two expert medical witnesses have opined a different level of impairment values. When confronted with two options such as this, a decision-maker is open to choose the more generous level of impairment for an applicant.
Based on the evidence presented, the Tribunal finds that impairment value that most suits the veteran, pursuant to Table 8.1, is 20%.
Table 13.2
Table 13.2 of the Guide is used to determine the WPI for persons afflicted with malignancies.
In his report of 28 January 2022, Dr Mar Fan opined that the veteran met the requirements for 10% WPI. Table 13.2 provides that a WPI for “10 – 15” requires:
“Some signs or symptoms of disease and normal activities can be undertaken with moderate effort.”
In reaching this conclusion, Dr Mar Fan made the following observations – Exhibit 9:
“In relation to table 13.2 a 10% impairment due to malignancy is fair and reasonable. Claimant had evidence of an incisional hernia in the past which certainly will preclude him from doing his activities of normal living. He felt that he may will [sic] have a new one developing but on examination today it feels more of a divarication of the recti. His exercise tolerance is relatively poor for someone of his age. He can do up to about 500 metres before getting short of breath, a part of this might be related to his underlying smoking as well.”
In comparison, Dr Norrie, when asked if moderate effort was required for the veteran to undertake normal activities as a result of his DSCA, he opined as follows – Exhibit 3:
“As stated by Mr Heiderich, based on his current symptoms, he is able to undertake his normal activities of daily living with no limitation.”
Further, Dr Norrie also opined that there “are no objective signs of Mr Heiderich’s distal sigmoid colon adenocarcinoma present, and any level of impairment could only be calculated on Mr Heiderich’s reported symptoms” – Exhibit 3.
It will also be recalled that Dr Fraser opined on 2 August 2020 that the veteran’s DSCA had no effect on 7 listed activities of daily living – Exhibit 1 T21 pp. 100 – 101. These included standing, moving, feeding, self-care and sexual function.
Dr Mar Fan, in his report of 28 January 2022, also reported that, with respect to effects on activities of daily living, the veteran “had no issues with that since the operation”. In addition, Dr Mar Fan also opined that the veteran had no issues with his hobbies – Exhibit 9.
It is tolerably clear to the Tribunal that the veteran is able to undertake normal activities with no special care needed, and that there is no evidence of his colon cancer re-appearing. As Dr Fraser noted, the veteran “has survived the surgery well” – Exhibit 1 T21 p. 101.
In these circumstances, the appropriate percentage WPI for Table 13.2 is 0%.
Conclusion
The Tribunal assesses the veteran as having a WPI of 20%, and, as a consequence, compensation is payable pursuant to s 24 of the Act.
Compensation for non-economic loss
Having determined that the veteran has suffered an injury resulting in permanent impairment and compensation is payable under s 24, he is also entitled to additional compensation pursuant to s 27.
The question of the quantum of non-economic loss was not addressed in the parties’ submissions, or at the Hearing. Mr Harding submitted that if the Tribunal found that compensation was payable pursuant to s 24, that the appropriate course of action would be for the Tribunal to remit the question of quantum of non-economic loss to the Respondent – Tr. 09.11.2022 pp. 70 – 71. The Tribunal agrees that this is the correct approach.
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides:
(a)Mr Peter Heiderich has an accepted condition that has resulted in him suffering a permanent impairment;
(b)pursuant to Table 8.2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (Consolidation 1), has a Whole Person Impairment value of 20%; and
(c)the matter is remitted to the Respondent with a direction to calculate the quantum of compensation payable to Mr Heiderich for non-economic loss pursuant to s 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
......................[SGD]..................................................
Associate
Dated: 20 December 2022
Date of hearing: 9 November 2022 Counsel for the Applicant: Mr Anthony Harding Solicitor for the Applicant: Mr Terence O'Connor
Cockburn LegalSolicitor for the Respondent: Mr Jamie Watts
Australian Government Solicitor
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