Henry Hryckiewicz and Military Rehabilitation and Compensation Commission

[2015] AATA 206

[2015] AATA  206

Division	VETERANS' APPEALS DIVISION
File Number	2014/0930
Re	Henry Hryckiewicz
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	2 April 2015
Place	Sydney

The Tribunal sets aside the decision and substitutes a decision that the applicant’s migraine and eyesight glare condition was contributed to in a material degree by his military service, and the respondent is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988.

........................[sgd]................................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

COMPENSATION –volunteer national serviceman – eyesight glare sensitivity and migraine attacks – whether liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 – whether military service contributed to condition - – ailment materially contributed to by service –– respondent liable to pay compensation for eyesight problems – decision under review set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 147

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

2 April 2015

1. This is an application to review of the decision dated 16 December 2013 which affirmed a determination denying liability to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of the applicant’s claimed “eyesight problems”.

   BACKGROUND

2. The applicant was born in 1951. He commenced National Service in the Australian Army on 27 January 1971 and was discharged in September 1972.  He lodged a claim for rehabilitation and compensation in respect of eyesight problems on 24 August 2010 which, he stated, had occurred during service whilst he was undertaking military duties.

3. By determination dated 30 August 2011, the applicant’s claim for compensation for eyesight problems in both eyes was disallowed.  As noted the reviewable decision was made on 16 December 2013 affirming the earlier determination. 

   ISSUE

4. The issue for this Tribunal to determine is whether the eye sight problems suffered by the applicant are an injury resulting in impairment and if so, whether they were contributed to, to a material degree, by his military service.

   RELEVANT PROVISONS

5. Under ss 14(1) and 147(1) of the Act, the respondent is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work, or impairment.

6. “Injury” is defined in s 4 to include a disease suffered by an employee.  The expression “disease” is defined to include an ailment suffered by an employee or the aggravation of any such ailment which was contributed to in a material degree by the employee’s employment.  “Ailment” is defined as a physical or mental ailment, disorder, defect or condition whether of sudden onset or gradual development.

   EVIDENCE OF APPLICANT

7. The applicant provided a statement to the Tribunal on 29 August 2014 wherein he states that he was a volunteer National Serviceman.  In 1970 he had a medical at Maitland and recalls that he may have had his eyes tested and that he was treated for short sightedness.  He had only needed to wear clear glass lenses for short sight.  He was in the first intake in 1971 and at least seven weeks into his service, whilst doing a quick inspection his Commanding Sergeant questioned him abou hist squinting. He explained that his eyes were sore and he had trouble opening his eyes when the full sun was shining.  He was then referred to an eye specialist in Newcastle who he thinks was a Dr Douglas.  This doctor tested his eyes and asked numerous questions. The applicant says the doctor stated to him that the nerves behind the eyes may have been damaged or strained due to the amount of light exposure he was forced to endure due to his field training, which was all day everyday on various weapon ranges and locations which were not undercover. 

8. He says the doctor suggested that he try “transition” glasses and eye drops.  He says the glasses and medication supplied helped him endure his eye pain and he considered there was no need to complain.

9. After discharge in 1972 he returned to Newcastle and worked in an enterprise for 35 years. However, later during this work he had to venture into the sun and he was supplied with transition glasses by the company to withstand the glare.  He has since left the enterprise and is at present in strained financial circumstances. 

10. He says that he had no eye problems from primary school onward except having lenses changed yearly if needed.  He says that after using prescribed tinted glasses his headaches occurred less often but never disappeared.  These headaches started just after he started his service but he never complained.

11. He says that he managed his headaches for many years with the help of a drug called Deralin, which he still takes together with eye drops. He is in receipt of a disability pension and asks only for glasses when needed, and medication.

    MEDICAL EVIDENCE

12. Dr McKay, since deceased, saw the applicant on 14 September 1971 and reported that the applicant complained of pain behind his eyes which he had then experienced for several months.  He prescribed new glasses and exercises.  He again saw the applicant on 26 October 1971 and noted that the applicant reported some “improvement”.

13. In the next meeting on 17 February 1972, the applicant had experienced increasing pain around his right eye which had since settled.  The doctor formed the view that there was “a slight bout of optic neuritis”.  The doctor ordered some tinted glasses and eye drops.

14. He was seen again by Dr McKay on 2 March 1972 when he noted that there was an improvement in symptoms and the applicant no longer suffered any pain.

15. The contemporary documents in 1971 and 1972 contained in the T documents do not indicate any complaint by the applicant as to “glare” although there is some reference to optic neuritis.

16. The applicant was examined by Dr Hollenbach who, in a report dated 17 March 2011, stated that the applicant’s main problem was “glare” which he has been suffering since his days in the military according to the history given to him.  He noted there were “no overt, anatomical or clinical signs pointing to any sinister cause for the glare symptom due to any malfunction of the visual system”. 

17. On 18 June 2011, Dr Hollenbach confirmed that the applicant suffered from glare, the impact of which was unknown.  That is to say it was unknown whether the condition was caused, aggravated or accelerated by some feature or aspect of the applicant’s military service.  He expressed the view that the extent of any contribution by the applicant’s service to the condition was “indeterminate”.  The doctor could not describe the extent to which any such condition was contributed to by the applicant’s service.

18. On 5 July 2011 Dr Binetter diagnosed photophobia as the applicant experienced light sensitivity in sunlight and needed sunglasses outside the building.  The doctor did not accept that the eye condition was caused, aggravated or accelerated by the applicant’s military service.

19. In a report of 19 July 2013 Dr Davis agreed with Dr Hollenbach that the applicant’s main condition was glare, which he had been suffering since his days in the military.  The doctor took a history as to the applicant’s squinting when out in the sun and noted that he suffered migraines in the sun.  He stated that there was a strong history of glare intolerance which appears to have started at the time of his military service.

20. However, in a later letter dated 19 September 2014 Dr Davis considered all the records of treatment received by the applicant during the service and the other opinions given by doctors as to his eye condition.  He disagreed with any diagnosis of mild optic neuritis and did not believe that the applicant’s service would have accelerated any problem with his eyes.  He did not consider that the applicant’s migraine would have been made worse lifelong by his service.  He considered that his service could not have caused “optic neuritis” unless there was exposure to toxic chemicals at the time and there is no history of such exposure.

21. In summary, the latest evidence of Dr Davis is that there is very little chance that the applicant had neuritis in view of his normal visual acuity.  He considered that the applicant had long standing migraines which have been treated and seem to have started whilst he carried on military service.  He thought the dry eyes would be unrelated to his military service. 

    REASONING

22. The applicant does not appear to have had the squinting or glare problems prior to his period of service, although he had some eye problems including myopia.  I accept the evidence of the applicant as being accurate with the reservation that it is difficult to recall precisely what happened more than 40 years ago. 

23. I note that Dr Davis in his final report and with the benefit of all other reports accepts that the migraines and glare sensitivity suffered by the applicant seems to have started with his military service.  Other evidence is that it is “indeterminate” and “difficult to quantify” precisely what is the extent of the impairment caused by the glare.  I do not consider his dry eyes are related to his military service but I do consider and prefer the evidence of Dr Davis that the migraine and glare sensitivity started with military service, and that part of the cause of the migraines would be glare. Dr Davis says “…when he is out on hot glarey [sic] days, being a migraine suffer, he is more likely to suffer attacks.”  He also says that during the service of the applicant he would have probably been more at risk to migraine attacks than before or after it. 

24. After taking into account the reports and records contained in the T documents and the supplementary documents produced by the respondent, the preferable conclusion is that the migraines appear to have started during the applicant’s military service and that the glare aggravated that condition. Consequently the provision of sunglasses alleviated the glare problems to a substantial extent.  Dr Davis points out the applicant’s dependence on sunglasses started with his military service.

25. Having regard to the above considerations and to the documentary evidence I am satisfied that the respondent is liable to pay compensation for the applicant’s “eyesight problems”.

26. More specifically I consider that the applicant has suffered an injury resulting in impairment, and that the injury was a disease suffered by the applicant and was contributed to in a material degree by his service, which exposed him to excessive glare and to the onset of migraine attacks.

    DECISION

27. The decision under review is set aside and there is substituted a decision that the applicant’s migraine and eyesight glare condition was contributed to in a material degree by his employer and the respondent is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlain QC, Deputy President

.............................[sgd]...........................................

Associate

Dated 2 April 2015

Date of hearing	26 February 2014
Applicant	In person
Solicitors for the Respondent	Moray & Agnew Solicitors