Helen Stransky and Military Rehabilitation and Compensation Commission
[2012] AATA 403
•29 June 2012
[2012] AATA 403
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2520
Re
Helen Stransky
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr W Isles
Date 29 June 2012 Place Sydney The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member J F Toohey and Dr W Isles
CATCHWORDS
VETERANS ENTITLEMENTS – presbyopia – applicant developed blurred vision following general anaesthetic – whether a service injury or disease – Statement of Principles (SOP) for presbyopia – whether SOP upheld – evidence of inability to obtain appropriate clinical management but Tribunal satisfied did not cause or aggravate presbyopia – whether presbyopia unintended consequence of treatment for which respondent liable – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 ss 5, 6(1)(c), 23(1)(a), 23(2)(a), 27, 29, 335(3) and 339(3)
SECONDARY MATERIALS
Statement of Principles No. 118 of 2007
REASONS FOR DECISION
Senior Member J F Toohey and Dr W Isles
29 June 2012
BACKGROUND
Ms Helen Stransky served in the Australian Regular Army from January 1984 until August 2009. She is now aged 49. Her service is peacetime service for the purposes of the Military Rehabilitation and Compensation Act2004 (the Act).
In October 2008, Ms Stransky underwent a gynaecological procedure under general anaesthetic. The procedure was intended to relieve debilitating pain that was affecting her ability to work. The cost was met by the Commonwealth.
When she woke from the anaesthetic, Ms Stransky found her near and distance vision was blurred. She had worn glasses for reading previously, without any problems. The distance vision problem settled quickly but her near vision remained blurred. She had originally planned to have one week off work following the procedure but this was extended to three weeks on account of the problems she was having with her vision.
Ms Stransky complained of continuing difficulty with close vision in subsequent medical consultations at the Defence Force Health Centre in November and December 2008. In January 2009, she saw a visiting optometrist who prescribed stronger reading glasses. She manages with these quite well but believes they are not strong enough for close reading.
Ms Stransky contends the respondent is liable to compensate her for presbyopia which she says was caused by her long years of work at computers and was aggravated by the general anaesthetic in October 2008. She claims compensation for permanent impairment and medical treatment. The respondent contends there is no connection between her condition and her service.
THE ISSUE
There is no dispute that Ms Stransky suffers from presbyopia. We have to decide whether the respondent is liable to compensate her for her condition.
THE LEGISLATION
By s 23(1)(a) of the Act, the respondent must accept liability for an injury sustained, or a disease contracted, by a person if that injury or disease is a service injury under s 27. It is agreed that none of the other requirements of s 23(1) is in dispute.
Section 27(d) relevantly provides that an injury sustained, or a disease contracted, is a service injury or disease if it was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
By s 23(2)(a) of the Act, the respondent must accept liability for an injury sustained, or a disease contracted, by a person if that injury or disease is a service injury or disease under s 29 (arising from treatment provided by the Commonwealth). It is agreed that none of the other requirements of s 23(2) is in dispute.
Section 29 concerns injuries and diseases aggravated by treatment. Section 29(2)(b) relevantly provides that an injury sustained, or a disease contracted, by a person is a service injury or disease if the person receives any treatment for an earlier injury or disease that is not a service injury or disease and, as an unintended consequence of that treatment, the relevant injury or disease, or a sign or symptom of it, is aggravated by the treatment.
Injury or disease?
Injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include a disease or the aggravation of a physical or mental injury: s 5.
Disease means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or the recurrence of such an ailment, disorder, defect or morbid condition, but does not include:
(a)the aggravation of such an ailment, disorder, defect or morbid condition; or
(b)a temporary departure from the normal physiological state, or from the accepted ranges of physiological or biochemical measures, that results from normal physiological stress or the temporary effect of extraneous agents.
Ms Stransky’s presbyopia, which existed before the general anaesthetic, appears more in the nature of a disease – being an ailment, disorder or defect – than an injury. For the reasons set out below, we accept that she suffered a temporary aggravation of her presbyopia following the general anaesthetic in October 2008. We accept the evidence of Dr Michael Steiner that it is possible that the temporary aggravation was caused by the anaesthetic. On that basis, her condition would be excluded from the definition of disease because it was the temporary effect of extraneous agents.
The point was not argued before us but, in any event, for the reasons set out below, we are not satisfied that Ms Stransky’s presbyopia was a service injury or disease within the meaning of the Act.
Standard of proof
Ms Stransky’s service is peacetime service for the purposes of the Act: s 6(1)(c). The standard of proof is to our reasonable satisfaction: s 335(3).
IS THE RESPONDENT LIABLE UNDER s 23(1)?
In a claim for acceptance of liability under s 23(1) that relates to peacetime service, s 339(3) provides that we are to be reasonably satisfied that an injury or disease is a service injury or disease only if:
(a)the material before us raises a connection between the injury or disease and some particular defence service rendered by Ms Stransky while a member; and
(b)there is in force a Statement of Principles (SOP) determined under subsection 196B(3) or (12) of the Act; and
(c)the material and the SOP uphold the contention that her condition is, on the balance of probabilities, connected with her service.
SOP No. 118 of 2007 concerning presbyopia is in force. For its purposes, presbyopia means “physiologically blurred near vision due to a reduction in power of accommodation of the lens of the eye”. There is no dispute that Ms Stransky’s condition satisfies this definition.
Clause 5 of the SOP states:
The factor that must as a minimum exist before it can be said that, on the balance of probabilities, in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating presbyopia is inability to obtain appropriate clinical management for presbyopia.
Ms Stransky contends that she was unable to obtain appropriate clinical management for the blurring of her vision following the general anaesthetic. She says, firstly, that there was a delay before she was referred for assessment after she complained of blurred vision and, secondly, that she was inappropriately referred to an optometrist instead of a specialist ophthalmologist.
Ms Stransky’s medical records show that she reported the continuing problems with close work in consultations with the Defence Force Health Centre on 18 November 2008 and again on 16 December 2008 at which time an optometrist appointment was arranged for 8 January 2009.
The respondent contends that appropriate clinical management was available to Ms Stransky. The respondent says she had access to medical staff and attended the Defence Force Health Centre following the surgery; that, given the advice that the problem would settle with time, it was reasonable to have waited until her consultation in December before arranging a referral to the visiting optometrist; and that the appointment with the optometrist was promptly arranged early in January, following which strengthened glasses were obtained by February.
Dr Michael Steiner, consultant ophthalmic surgeon, saw Ms Stransky in February 2012 for assessment. He has provided a report and gave oral evidence before the Tribunal. In his report, he stated:
The appropriate clinical management for presbyopia is the use of reading glasses. While there was no need to change her reading glasses within the two or three weeks following the anaesthetic, I do believe that making her wait from September to January before stronger reading glasses were prescribed was inappropriate. That would not have affected her prescription in the long-term but would have made close vision difficult in the intervening period.
Dr Steiner gave oral evidence that the referral in December 2008 was “perfectly reasonable”. However, he thought the delay in obtaining proper correction for Ms Stransky’s reading glasses would have meant she experienced further discomfort due to symptoms of eye strain from glasses with inappropriate correction. He thought it would have been preferable to suggest she buy stronger glasses from a chemist or service station in the meantime, so as to make her more comfortable, and it was “a pity” this did not happen because she suffered unnecessary eye strain the meantime. He also thought an earlier specialist consultation may have lessened some of her concerns about her eyesight. However, he could not say there was a failure to obtain appropriate clinical management.
In our view, it is reasonable to expect that “appropriate clinical management” would aim as soon as reasonably possible to alleviate any discomfort and distress caused by a condition. On that basis, it might be said that Ms Stransky was unable to obtain appropriate clinical management for her presbyopia. However, even if we were to accept that, there is no evidence that any inability to obtain appropriate clinical management caused, or materially contributed to or aggravated, her condition.
Dr Steiner gave evidence that he diagnosed Ms Stransky as having hypermetropia, and a degree of presbyopia appropriate for her age which means she needs to wear reading glasses for close work; her presbyopia is due to the natural stiffening of the lens with age, and is quite normal. He says the delay in referral and the fact that Ms Stransky saw an optometrist, instead of an ophthalmologist, had no bearing on her presbyopia. It did not materially cause or aggravate her condition. We accept Dr Steiner’s uncontested evidence.
In our view, the material and the SOP do not uphold the contention that Ms Stransky’s presbyopia is, on the balance of probabilities, connected with her service. It follows that the respondent is not liable under s 23(1) to compensate her for her condition.
IS THE RESPONDENT LIABLE UNDER s 23(2)?
Documents before the Tribunal show that, following the surgery in October 2008, Ms Stransky wrote to Dr Shields at the Defence Force Health Centre, expressing her disappointment at her treatment. She copied the letter to Dr Dwina Dobriansky, the specialist who performed the gynaecological procedure.
On 17 December 2008, Dr Dobriansky replied, stating:
From the point of view of the blurred vision post-operatively, I have also taken the opportunity to speak to my anaesthetist, Dr Simon Bradfield. He is unaware of a general anaesthetic causing blurred vision per se. I wondered if it might be a transient effect of [a hormone related to the gynaecological procedure] and that was the rationale for waiting another week or so to be certain that all the hormonal effects have resolved …
In a Minute dated 5 November 2009, Dr R Meyerowitz, medical adviser to the Department of Veterans Affairs, noted Dr Dobriansky’s letter. He noted that “the ophthalmologist” indicated that her decreased vision was due to presbyopia and that stronger glasses were required for close work. He concluded that Ms Stransky’s contention that her worsening presbyopia was not an unintended consequence of the surgery. Dr Meyerowitz’s reference to “the ophthalmologist” appears to be incorrect. It appears he was referring to a report from Mr David Mallett, optometrist, in March 2009. We have not had the opportunity to hear from Dr Meyerowitz and we disregard his report for present purposes.
Dr Steiner does not think the general anaesthetic itself played any part in causing or aggravating Ms Stransky’s presbyopia. He thinks it possible that it caused “mild temporary decompensation of her latent longsightedness” which could have lasted several weeks but, if so, it settled leaving no residual effects of the anaesthetic. He was not aware of any evidence in the medical literature linking general anaesthesia with presbyopia. He was also of the view that Ms Stransky did not have the appropriate strength of correction for her presbyopia when he saw her in February 2012 and that felt this could have contributed to her continuing visual problems.
We are not reasonably satisfied, on the evidence before us, that Ms Stransky’s presbyopia was an unintended consequence of the treatment provided by the Commonwealth. It follows that it is not a service injury or disease for the purposes of s 23(2).
CONCLUSION
We have sympathy for Ms Stransky. She underwent surgery hoping that it would relieve debilitating pain so that she could better perform her work. As it turned out, the procedure did not help as expected. We accept that she honestly believes the general anaesthetic permanently affected her eyesight. However, on the evidence before us, we are not reasonably satisfied that is so.
We affirm the decision under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr W Isles. ..........[sgd]..............................................................
Associate
Dated 29 June 2012
Date(s) of hearing 19 June 2012 Applicant In person Solicitors for the Respondent Ms E Baggett, DLA Piper Australia
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