Houghton and Comcare - [2002] AATA 927

DECISION AND REASONS FOR DECISION [2002] AATA 927

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1793

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID HOUGHTON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date15 October 2002
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof determines that liability be accepted for hearing loss in the right ear and that the matter be remitted to the Respondent for assessment of the Applicant's compensation entitlements.

[SGD] Dr J D Campbell Member
CATCHWORDS
Workers' Compensation - Military Compensation Scheme - Acoustic nerve neuroma - surgical treatment - loss of hearing in treated ear – whether hearing loss an unintended consequence of the medical treatment

Safety, Rehabilitation and Compensation Act 1988 - sections 4, 6A
Acts Interpretation Act 1901 - section 15 AA
Military Compensation Bill 1993 – Explanatory Memorandum

Theile v Commonwealth of Australia (1990) 22 FCR 342
Oswald v Bailey (1987) 11 NSWLR 715
Re Eaton and Comcare (2002) 64 ALD 182
Vallance v R (1961) 108 CLR 56
Australian Paper Manufacturers Ltd v American International Underwriters (Australia) Pty Ltd [1994] 1 VR 685

REASONS FOR DECISION

15 October 2002 Dr J D Campbell, Member

In this matter, Mr David Houghton ("the Applicant") seeks a review of the decision of the Reconsideration Officer of the Military Compensation and Rehabilitation Service ("the Respondent") dated 17 August 2000. The decision of 17 August 2000 affirmed an earlier decision of an authorised delegate, dated 5 July 2000, that liability was not accepted for the hearing loss in the right ear on the basis that it was not an unintended consequence of an operation undertaken on 8 March 1999.
A hearing was held in Sydney on 8 August 2002 at which the Applicant was represented by Mr P Strain of Counsel. The Respondent was represented by Ms E Ford of Counsel. There was no oral evidence in this matter, with there being no disagreement between the parties on the facts, which were included in material placed before the Tribunal.
The following material was placed into evidence before the Tribunal:

Exhibit          Description Date
TD1 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 being T1-T17, pp 1-89
A1      Applicant's Statement of Facts and Contentions          16 October 2001
A2      Report of Dr J Scoppa       7 August 2001
A3      Report of Dr J Scoppa       7 August 2001
A4      Report of Dr J Scoppa       22 October 2001
A5      Report of Dr M Redmond   1 February 1999
R1      Respondent's Statement of Facts and Contentions     6 August 2002

issue

The relevant issue in this matter is whether the Applicant's hearing loss in his right ear is an unintended consequence of the surgical removal of a right acoustic nerve neuroma on 8 March 1999.
legislation
The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 4 and 6A.
background
The Applicant was born on 20 July 1965. In 1974 the Applicant is recorded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Houghton and Comcare

Details

AGLC: Houghton and Comcare [2002] AATA 927
Case: [2002] AATA 927
Decision Date: 15 October 2002

CaseChat Overview and Summary

In the case of Houghton and Comcare, the Federal Circuit Court was tasked with determining whether the Applicant, a former member of the Australian Defence Force, was entitled to compensation for hearing loss in his right ear, which occurred as an unintended consequence of surgery to remove an acoustic neuroma. The Applicant had joined the Navy in 1984 and had a documented history of hearing loss in his left ear. In 1999, he underwent surgery to remove a right intracanalicular acoustic neuroma, which resulted in total hearing loss in the right ear and additional hearing loss in the left ear. The primary legal issue before the Court was whether the hearing loss in the right ear qualified as an "injury" under the Safety, Rehabilitation and Compensation Act 1988 and, specifically, whether it was an unintended consequence of the medical treatment received.

The Court considered the statutory provisions of sections 4 and 6A of the Act, as well as the Explanatory Memorandum to the Military Compensation Bill 1993, which introduced section 6A. Section 6A of the Act provides that if an employee receives medical treatment paid for by the Commonwealth and, as an unintended consequence of that treatment, the person suffers an injury, the injury is deemed to have arisen out of or in the course of the employee's employment. The Court also referred to relevant case law, including Theile v Commonwealth of Australia, Oswald v Bailey, and Re Eaton and Comcare.

The Tribunal found that the Applicant's hearing loss in the right ear was a direct and intended consequence of the surgical procedure undertaken to remove the acoustic neuroma. The evidence indicated that while the surgical team aimed to preserve hearing, the probability of achieving this goal was poor, and hearing loss was a known risk of the surgery. The Tribunal concluded that the hearing loss in the right ear was not an unintended consequence of the medical treatment, as it was a foreseeable outcome of the surgical procedure, and therefore, it did not qualify as an injury under section 6A of the Act. Consequently, the Tribunal dismissed the Applicant's claim for compensation for the hearing loss in his right ear.

The final orders of the Court were that the Applicant's claim for compensation for the hearing loss in his right ear was dismissed, and no orders were made regarding the hearing loss in his left ear as it had already been compensated.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular sections 4 and 6A.background The Applicant was born on 20 July 1965. In 1974 the Applicant is recorded as having normal hearing in his right ear and some slight high frequency sensorineural hearing loss in his left ear (T3, p5). The Applicant was rejected in an attempt to join the Army in 1981 on grounds of hearing loss (T3, p8). The Applicant was subsequently considered medically fit and joined the Navy on 25 June 1984, with a hearing standard II. On 19 March 1990 the Applicant was referred to Dr Ng, an ENT specialist who in a report dated 27 March 1990 noted that his audiogram had not changed significantly since 1986, and that his high frequency hearing loss has probably arisen from head injury as a child (T3, p17). In 1996/97 the Applicant was recorded as stating that he became aware of hearing loss worse for the right ear, together with a history of long standing tinnitus. The Applicant was referred to Dr B Panizza, an ENT specialist on 22 February 1999 with a right intracanalicular acoustic neuroma (T8, pp56-57). This was removed on 8 March 1999 using a right sub-occipital approach by Dr Panizza and Dr M Redmond, a consultant neurosurgeon (T13). Following surgery Dr Redmond records that "he has lost hearing in the right ear which was not unexpected." (T13, p78) while Dr Panizza records the Applicant as having "essentially a dead ear on the right side as a result of having his acoustic neuroma removed." (T8, p56). In a consultant's report dated 2 February 1999, Dr Redmond, made the following comments (Exhibit A5):"Small intracanalicular right acoustic neuroma. No family history of neurofibromatosis - fibrous schwannoma removed right arm - 1998.He has useful hearing right ear. I have suggested surgery with attempted hearing preservation. I have outlined the nature of surgery, including the risks - death, stroke, nerve injury VII, VIII, epilepsy, infection, CSF leak, meningitis and anaesthetic risk. It will not help the tinnitus…" On 7 January 1999 the Applicant lodged a claim for compensation in respect of hearing loss. On the basis of Dr Panizza's report (T8) liability was accepted in respect of high frequency sensorineural hearing loss of the left ear (T9). Following a request for reconsideration by the Applicant on 8 December 1999 (T10), liability was accepted by the Respondent on 5 July 2000 for the Applicant's muscular contraction headaches (T14), with Dr Redmond having reported that the Applicant had no impairment arising out of his headaches (T14). On 14 July 2000 the Applicant requested a further reconsideration claiming that his total hearing loss in his right ear and the additional hearing loss in his left ear were both unintended consequences of medical treatment pursuant to section 6A(1) of the Act (T15). On 24 July 2000 the Respondent offered to pay the Applicant an amount of $2752.53 under sections 24 and 27 of the Act in respect of hearing loss of the left ear (T16). On 17 August 2000 the Respondent reviewed the determination of 5 July 2000 in respect of the Applicant's hearing loss and affirmed that decision not to accept liability for the hearing loss in the Applicant's right ear (T17).medical evidence

Evidence

Evidence Before The Court

On 7 January 1999 the Applicant lodged a claim for compensation in respect of hearing loss. On the basis of Dr Panizza's report (T8) liability was accepted in respect of high frequency sensorineural hearing loss of the left ear (T9). Following a request for reconsideration by the Applicant on 8 December 1999 (T10), liability was accepted by the Respondent on 5 July 2000 for the Applicant's muscular contraction headaches (T14), with Dr Redmond having reported that the Applicant had no impairment arising out of his headaches (T14). On 14 July 2000 the Applicant requested a further reconsideration claiming that his total hearing loss in his right ear and the additional hearing loss in his left ear were both unintended consequences of medical treatment pursuant to section 6A(1) of the Act (T15). On 24 July 2000 the Respondent offered to pay the Applicant an amount of $2752.53 under sections 24 and 27 of the Act in respect of hearing loss of the left ear (T16). On 17 August 2000 the Respondent reviewed the determination of 5 July 2000 in respect of the Applicant's hearing loss and affirmed that decision not to accept liability for the hearing loss in the Applicant's right ear (T17).medical evidence Dr Scoppa, a consultant ear, nose and throat surgeon provided three reports in this matter. In the first report dated 7 August 2001, Dr Scoppa details the following (Exhibit A2): Dr Scoppa also detailed the following opinion (Exhibit A2):"The probability of hearing preservation in acoustic neuroma surgery is poor, and most patients who undergo this type of surgery usually lose hearing irrespective of surgical approach used. There are numerous articles in the medical literature on so-called hearing preservation surgery for acoustic neuroma removal. I attach a representative article on acoustic neuroma surgery by Scrivener and Segelov (1). I draw your attention to the following relevant paragraphs on page 753 of their article:"The prime purpose of surgery in acoustic neuroma is the total removal of the tumour, while preservation of facial nerve function is next in importance. Preservation of hearing, usually possible only in very small tumours, represents the ultimate in achievement, but must be regarded as "cream on the cake" rather than a routine target.""A small series of six patients was treated by a middle fossa approach, the aim being to preserve hearing in patients with a small tumour. The average tumour size in this group was only 1.2 cm but while there was no mortality or serious morbidity, facial nerve preservation still rested at the 50% mark and hearing preservation was not possible."It is clear therefore that it is the intention of the operating surgeon or surgeons to try and preserve any serviceable hearing that may be present pre-operatively in acoustic neuroma surgery by appropriate selection of the operative approach, but that this intention is rarely able to be achieved. Thus Dr Redmond is correct in stating in his report of 30 June 2000 that Mr Houghton's post-operative hearing loss "was not unexpected", however the intention at surgery was to try and preserve the 81.6% hearing that Mr Houghton had prior to surgery, as evidenced by the approach used and by Mr Houghton's pre-operative discussion with Dr Panizza.It is further patently obvious that it was intended to preserve hearing at the time of surgery when one notes Dr Redmond's handwritten consultation report of 1/2/99 where he states:"He has useful hearing in the right ear. I have suggested surgery with attempted hearing preservation.""

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, Counsel submitted that there is no evidence to support an argument that the Applicant's hearing loss is the result of an "accident" which occurred during surgery, while there is much evidence to suggest that the hearing loss was a probable consequence of a routine deliberate surgical procedure.consideration and findings In this matter as the facts are not in contention between the parties, the Tribunal makes the following finding of facts: The issue before the Tribunal is whether the hearing loss in the right ear was an unintended consequence of the surgery undertaken. The Tribunal notes section 6A of the Act, which states:"Section 6AInjury arising out of or in the course of employment - extended operation (1) This section applies to the following employees:(a)members of the Defence Force;(b)members of the Air Training Corps established under section 8 of the Air Force Act 1923;(c)members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;(d)members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;(e)persons declared by the Minister under subsection 5(6A).(2) If, at any time, whether before, on, or after, 1 December 1988:(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and(b)as an unintended consequence of that treatment the person suffered or suffers an injury;the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act." The Tribunal also notes the definition of injury contained within section 4 of the Act"injury means(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee…" The Tribunal further notes the Explanatory Memorandum to the Military Compensation Bill, which resulted in the insertion of section 6A into the Act as a consequence of the Military Compensation Act 1994:"8. Clause 5, which inserts a new section 6A, covers members of the Defence Force, members of Cadet Corps and persons declared under the new subsection 5(6A) for any injury that arises from medical treatment provided at Commonwealth expense where that injury is an unintended consequence of the treatment. This entitlement applies regardless of whether there has been negligence and regardless of whether the original condition being treated was compensable." In addressing the purpose of section 6A of the Act, the Tribunal observes the following: The Tribunal observes that, while there may be some concerns raised by the section as to whether it is intended to cover only injury, there is little room for misunderstanding as to what the purpose of the section is, and its placement within the confines of the Act, which is one of beneficial purpose, provided an individual's circumstances in a particular matter permit the necessary sections of the Act to be employed.