KEN RAABE and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 931

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2625

VETERANS' APPEALS DIVISION		)
Re		KEN RAABE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date3 December 2009

PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the reviewable decision.

.....................[Sgd].........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Incapacity – accepted Bell’s palsy condition – whether applicant suffers mental blockages – whether mental blockages attributable to Bell’s palsy – blockages not attributable to Bell’s palsy – no incapacity – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(9), 19

REASONS FOR DECISION

3 December 2009 Senior Member Bernard J McCabe         

1. Mr Ken Raabe, the applicant, claims he is entitled to receive incapacity benefits pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for the period 1992 to 1994 when he says mental blockages affected his ability to work. He attributes those blockages to his accepted Bell’s palsy condition, which developed during his service in Navy. The Military Rehabilitation and Compensation Commission, the respondent, denies it is liable to pay Mr Raabe incapacity benefits. Mr Raabe has asked the Tribunal to review the respondent’s decision.

2. In determining whether Mr Raabe is entitled to incapacity benefits pursuant to s 19, I must have regard to s 4(9) of the Act. Section 4(9) says an employee experiences an incapacity if he or she has:

(a) an incapacity to engage in any work; or

(b)  an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

3. Subject to other provisions of the Act, Mr Raabe will be entitled to be paid incapacity benefits with respect to the relevant period if I can be satisfied:

·Mr Raabe suffered mental blockages during the period in question;

·the blockages can be attributed to his Bell’s palsy; and

·Mr Raabe was incapacitated for employment because of his Bell’s palsy condition.

4.      I am persuaded that the applicant’s suffers mental blockages. But I am not satisfied there is a connection between his mental blockages and his Bell’s palsy. He is not therefore entitled to incapacity benefits. I explain my reasons below.

The history of the proceedings

5.      Mr Raabe served in the Navy from 1961 until 1973. While serving aboard HMAS Ovens in July 1972, Mr Raabe sustained a nerve palsy to the right side of his face as a result of overexposure to cold air from an air conditioning unit. Navy doctors treating Mr Raabe diagnosed Bell’s palsy, a condition that causes facial paralysis. Mr Raabe lodged a claim for compensation for Bell’s palsy in August 1972, which was subsequently accepted in September 1973.

6.      Mr Raabe’s Bell’s palsy troubled him in the years following his naval service. He wrote to the respondent in October 1991 to request information about medical attention and compensation for the “long term and continuous effect” of his Bell’s palsy condition. The respondent sent Mr Raabe to Dr Peter Landy for a medical examination, who concluded Mr Raabe’s no longer suffered the effects of his Bell’s palsy condition. The respondent then ceased making compensation payments. It was not until June 2007 that the respondent resumed making compensation payments when it determined its liability to pay compensation for his Bell’s palsy should continue after it received fresh medical evidence.

7.      In July 2007, Mr Raabe wrote to the respondent to claim incapacity payments for the period of 1992, 1993 and 1994. He claimed that he was unable to work during the period due to what he described, without more, as the “side effects” of his Bell’s palsy condition. He detailed his working history in another letter to the respondent, but provided no further documentation. The respondent determined that it was not liable to pay Mr Raabe incapacity benefits. It reasoned that Mr Raabe had not provided proof of his incapacity resulting from his accepted condition. It is this decision which Mr Raabe has asked the Tribunal to review.

8.      During the course of the hearing, it became clear that the mental blockages were the “side effects” of which Mr Raabe complained in his claim letter. This does not appear to have been clear to the respondent at the time of its decision. With this clarification in mind, the proceedings were adjourned so the applicant could obtain further evidence that would assist me to resolve the matter.

The applicant’s evidence

9.      Mr Raabe was engaged in various occupations during the period he alleges to have been incapacitated. From 1991 to 1992, he worked in real estate in Hervey Bay. He enjoyed considerable success in that role, judging by the newspaper clippings he provided to me. But he said he had to stop work in 1992 because his facial condition was worsening. He said it prevented him from working. Mr Raabe explained he would forget names of clients and addresses of houses he selling. He rejected a suggestion that his decision to leave was prompted by the economic downturn occurring during this period. Mr Raabe tendered a copy of a letter from Mr Doug Shorthouse, his former employer, dated October 2008 to support his evidence (Exhibit 5). Mr Shorthouse wrote that the applicant left his employment “due to his continuing short [t]erm memory loss which effected his real estate sales ability.”

10.     Mr Raabe was unemployed from the time he left Mr Shorthouse’s employment from sometime in late 1992 until sometime in 1994. At the hearing he told me that he did not claim unemployment benefits during this time and relied on his wife to support him. He did not obtain a doctor’s certificate stating that he was unable to work. But he said he did call the Department of Veterans’ Affairs advising them that he could not work. He also tendered the first page of a letter he wrote to the department in September 1992, which he said explained his problems (Exhibit 6). Unfortunately, the remaining pages are missing. He also supplied tax returns for the years in question, which show a reduction in Mr Raabe’s taxable income during this period too.

11.     Mr Raabe returned to the workforce as a part-time driving instructor in 1994. He said he only took on students when he was feeling well. He said the he worked at most 20 hours per week. He said in a letter to the respondent dated October 2007 that he had days when he would have to cancel appointments. He explained he stopped taking students in late 1994 after he narrowly avoided accidents on several occasions. He did not explain to Mr Gerry Savage, the proprietor of the driving school, his reasons for leaving the job (Exhibit 3).

12.     Mr Raabe moved to Cairns in 1995 upon the recommendation of Dr Max Upfal, his treating general practitioner at the time. He explained that he suffers fewer side effects of Bell’s palsy in the warmer climate.

The medical evidence

13.     I was provided with medical reports from several doctors whom Mr Raabe saw during the period of alleged incapacity. Dr Landy, a consultant neurologist, prepared a report dated 31 January 1992 (albeit in connection with a different claim for compensation). Dr Landy could not see any connection between the “blockage” Mr Raabe’s claimed to suffer and Bell’s palsy. Dr Landy referred the applicant for CT and MRI scans for further investigation. After those investigations were complete, Dr Landy wrote a follow up report dated 21 April 1992, in which he concluded there was no neurological cause for Mr Raabe’s blockage. He suggested idiopathic trigeminal neuropathy might account for Mr Raabe’s sensation of blockage but did not know its cause.

14.     Dr L Parker, an otolaryngologist, authored three reports which say more or less the same thing. He wondered whether the applicant’s condition might be Sluder’s neuralgia as a long term complication of Bell’s palsy, although he did not express this view with strong conviction. To this end, he recommended further testing of the kind Dr Landy suggested. He did not prepare a follow up report when the results of the CT and MRI were available.

15.     Dr Jon Reimers, a neurologist, wrote several reports. In his report dated 22 June 2006, he considered the diagnosis of trigeminal neuropathy as inconsistent with Mr Raabe’s history. Dr Reimers thought Mr Raabe’s condition might be explained by having atypical facial pain which followed his Bell’s palsy. Dr Reimers confirmed that view in his report dated 28 May 2007. Dr Reimers prepared a third report for Mr Raabe in August 2009. Dr Reimers wrote he was not able to identify what caused the blockage effect Mr Raabe claims he suffers. But he went on to add: “whatever the cause of this ‘blockage effect’, it does seem to be related to the onset of his Bell’s palsy.” He did not state that the applicant was incapacitated during the period in question.

16.     In addition to the medical reports, Mr Raabe provided me with an entry from Wikipedia (Exhibit 9) and a copy of a Canadian study into the spectrum of illnesses of Bell’s palsy (Exhibit 8). Both these documents suggest that memory problems – albeit it without further explanation – might be one of the neurological symptoms of Bell’s palsy. Neither Mr Raabe nor the respondent has been able to access the records of Dr Max Upfal, Mr Raabe’s general practitioner during the period of alleged incapacity, as Dr Upfal has passed away. Mr Raabe said these records would also support his claims.

Did mr raabe suffer mental blockages?

17.     Mr Raabe claims his Bell’s palsy condition affected his concentration and recall of information. He says these mental blockages caused him to forget names and addresses during his time working in the real estate. The letter from Mr Shorthouse mentions, without more, Mr Raabe’s short-term memory problems. Other than this letter, Mr Raabe did not provide the Tribunal with much documentation supporting his claims, especially during any of the years he is seeking incapacity payments. Some of the documentation, like Dr Upfal’s records, was not accessible; other pieces, like Mr Raabe’s letter dated October 1992, have been misplaced. The respondent says I do not have enough evidence to persuade me that the applicant suffered “mental blockages” as he described at the relevant time.

18.     While I agree the evidence in Mr Raabe’s favour is limited, there is some contemporaneous evidence that supports his claim. Dr Landy’s report refers to the applicant’s blockages as does the applicant’s letter dated October 1992. Other evidence like Mr Shorthouse’s letter and Dr Reimers’ reports provide some – albeit non-contemporaneous – support. I am prepared to accept that Mr Raabe suffered memory problems at the relevant time.

Is mr raabe’s mental blockage a side effect of bell’s palsy?

19.     Mr Raabe relied on the Canadian study and the Wikipedia article in support of his argument that mental blockage may be a side effect of his Bell’s palsy.

20.     The respondent again submits that the medical evidence does not go far enough to support a finding that the mental blockage was a side effect of Bell’s palsy. The respondent’s submissions focussed on Dr Reimers’ report of August 2009. It argued the report does not go so far as to directly attribute Mr Raabe’s mental blockage to his Bell’s palsy. Rather it submitted that Dr Reimers’ report notes there is a temporal connection between the onset of Mr Raabe’s mental blockage and his Bell’s palsy.

21.     The medical evidence dealing with Mr Raabe’s memory problem and its relationship to his Bell’s palsy is scant and contradictory. None of the medical reports deal with this issue in more than a passing fashion. Dr Landy concluded there is no connection between the blockage and the applicant’s Bell’s palsy. Dr Reimers suggests there may be a connection between the two.

22.     I am not satisfied there is a connection between Mr Raabe’s mental blockage and his Bell’s palsy. I do not regard Dr Reimers to be merely referring to a temporal connection, as the respondent contends, when he wrote: “whatever the cause of his ‘blockage effect’, it seems to be directly related to the onset of his Bell’s palsy” (Exhibit 7). But I do not consider Dr Reimers’ conclusion on this point to be expressed with a strong sense of conviction. The Canadian study, which refers to memory problems in approximately 25% of Bell’s palsy victims, offers some support for Mr Raabe’s view but it is difficult to know what to make of it. The evidence is not sufficient to support anything more than a possible connection between Mr Raabe’s blockage and his Bell’s palsy.

23.     While I am satisfied Mr Raabe was affected by mental blockages during the relevant period, I cannot be satisfied on the current state of the medical evidence that any incapacity he experienced was attributable to his accepted condition of Bell’s palsy. It is possible, but I am not positively persuaded that it is so. In those circumstances, it is unnecessary for me to go on and resolve the further question of the extent to which he was incapacitated during the period in question.

Conclusion

24.     Mr Raabe was an honest witness. It is clear to me that he has struggled with his Bell’s palsy for a long time. I do not doubt that he genuinely believes there is a connection between his Bell’s palsy and his memory blockages. But the current state of evidence makes it impossible for me to reach that conclusion. In those circumstances, the reviewable decision must be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:............................[Sgd]..................................................
  Michael Buckingham, Associate

Date/s of Hearing  7 November 2008
  22 September 2009
Date of Decision  3 December 2009
Solicitor for the applicant          Unrepresented
Counsel for the respondent      Mr C Clark
Solicitor for the respondent      DibbsBarker Lawyers