King and Military Rehabilitation and Compensation Commission
[2005] AATA 89
•28 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 89
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/470
GENERAL ADMINISTRATIVE DIVISION ) Re BENJAMIN KING Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Joan Dwyer
Miss E.A. Shanahan, MemberDate28 January 2005
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
[sgd] Joan Dwyer
Senior Member
COMPENSATION – claim for compensation for costs of dental treatment in relation to extraction and removal of fractured tooth 2.1 – s 6A(2) Safety, Rehabilitation and Compensation Act 1988 – whether injury, namely death of tooth or widening of gap resulting from fracture of root of tooth, an unintended consequence of dental treatment applicant received whilst in Army – applicant involved in car accident during Army service but not while on duty – suffered facial and dental injuries including chipping of three upper front teeth – after initial hospital admission applicant’s treatment taken over by Army – chipped teeth repaired at Defence Dental Clinic – no dental x-rays taken after accident – four months after accident applicant fitted with orthodontic banding treatment to correct pre-existing alignment problem at Defence Dental Clinic – no x-rays taken prior to application of banding – three months after Army discharge and two years after orthodontic treatment tooth 2.1 became sore and loose – x-ray taken at civilian dental clinic revealed fracture and gap between tip of root of tooth and remaining root and crown –12 months later tooth again sore - tooth 2.1 extracted due to infection – evidence that death of tooth related to original fracture which Tribunal found was probably sustained in motor car accident – not possible on the evidence to find gap caused by fracture was increased by banding because no x-ray was taken before banding was applied – finding that if x-ray had been taken and fracture diagnosed applicant would have been referred for endodontic or other appropriate treatment – no evidence that endodontic treatment would have saved tooth because there was no appropriate referral – Tribunal not able to find on the evidence that tooth became infected and died as a result of the application of orthodontic banding in the presence of undetected fracture – decision under review affirmed.
PRACTICE AND PROCEDURE – Tribunal expressed a number of concerns – inadequacies of Army dental treatment in twice failing to take x-rays when it was appropriate to do so and in failing to refer for endodontic treatment benefited respondent by making it impossible for applicant to establish essential elements of his case – claim for only $3735.00 proceeded to costly two day hearing with three expert witnesses when in spite of inadequate Department of Defence dental treatment – Department of Defence rejected suggestion of applicant’s treating dental surgeon that matter be referred to Transport Accident Commission NSW (“TAC”), where claim would probably have been successful, and advised that it should be resolved within the Department – claim still not resolved and it may be too late to refer it to the TAC – Tribunal’s pre-hearing processes were inadequate prepare for hearing in that respondent’s expert witnesses relied substantially on two issues which had not been raised in their reports – matter not covered by a new pilot program directed towards early resolution of claims for medical treatment – matter not identified prior to hearing as suitable for giving of concurrent expert evidence.
McDonald v Director-General of Social Security (1983) ALD 6
Comcare v Houghton (2003) 73 ALD 676
REASONS FOR DECISION
28 January 2005 Senior Member Joan Dwyer
Miss E.A. Shanahan, Memberintroduction
1. This is an application made under s 64 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), for review of a reviewable decision made on 6 March 2003, affirming a determination dated 10 December 2001. That determination, disallowed Mr King’s claim for compensation in respect of the costs of dental treatment, including the cost of x-rays, and the extraction and replacement of fractured tooth 2.1.
2. The primary determination and the reviewable decision were made by Comcare. However, from 1 July 2004, the administration of all defence-related compensation claims was transferred to the Military Rehabilitation and Compensation Commission (the “MRCC”), established by the Military Rehabilitation and Compensation Commission Act 2004. The Act was amended to provide in ss 140 – 159 for the transfer to the MRCC of the administration of existing defence-related compensation claims. Section 144(3) of the Act provides that the MRCC replaces Comcare as a party to relevant proceedings.
3. Mr Carey of Counsel appeared for Mr King. Mr Lenczner of Counsel appeared for the Commission. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the exhibits tendered at the hearing. Many of the documents from Mr King’s service medical files in the T documents were illegible or almost illegible. A further set of documents containing clearer copies of those documents was lodged as additional T documents (the “Additional T documents”). Mr King gave evidence. Evidence on his behalf was given by Dr Hocking, his treating dental surgeon. Dr McNeill and Professor Woods, who are both orthodontists, gave evidence on behalf of the Commission.
4. The issue before the Tribunal is whether the condition or “injury” which required Mr King’s tooth to be extracted is an “unintended consequence” of dental treatment he received while serving in the Army.
5. During his service, but while he was off-duty, Mr King suffered facial and dental injuries when he fell from a moving car. He claims that those injuries included a fracture of the root of tooth 2.1, but that the fracture was not identified or treated during service. No dental x-rays were taken after the car accident, although the recorded injuries were mainly around Mr King’s mouth and included chipping of three upper front teeth including tooth 2.1.
6. Mr King claims that orthodontic banding treatment, which was undertaken by Dr McNeill (then Lieutenant Colonel McNeill) of the Department of Defence Dental Clinic, approximately four months after the car accident, and without a prior x-ray, aggravated the fracture, thus making it less likely to heal and more likely to become infected. He also claims that because no x-ray was taken, the fracture was undetected, and so he was not referred for endodontic treatment, which may have saved the tooth. On the evidence of Dr Hocking, Mr King’s treating dental surgeon, the tooth had to be extracted because it had become infected.
7. The respondent did not concede that there was a fracture of the root of the tooth prior to the orthodontic banding, but claimed that if there was, the banding treatment did not widen the gap caused by the fracture of the tooth, or if it did so, that the widening did not contribute to the death of the tooth and did not make the tooth less likely to heal naturally or more likely to become infected. It was the respondent’s case that if the root of the tooth was fractured in the car accident, then the tooth probably would have become infected or died in any event, and the banding did not accelerate that process or make it more probable.
8. We feel it is appropriate to say at the commencement of this decision, that in our view this was a hearing which should never have taken place. There are no winners as a result of our decision. Mr King, who had to have a tooth extracted and seeks the cost of treatment including a replacement bridge is left without the $3735.00 he claimed for that treatment. Comcare and the Military Rehabilitation and Compensation Commission (“the MCRS”) must have spent far more than that sum on the legal costs involved in a two day hearing before the Tribunal including Counsel’s fees, solicitors’ fees and the calling of two orthodontists as expert witnesses. In addition legal costs have been incurred in presenting Mr King’s case. Of course there are also significant costs incurred by the Tribunal in conducting a two member two day hearing.
9. Further, the evidence before us established that the Department of Defence dental treatment Mr King received, while he was in the Army, did not comply with the standard he was entitled to expect. No x-rays were taken after he had damaged three teeth in a motor car accident. Had such x-rays been taken the fracture of the relevant tooth, which we find happened in the car accident, should have been detected, and Mr King, according to the treating Army orthodontist, would have been sent to an endodontist or other appropriate specialist (trans, p189). As no referral was made, there was no evidence as to whether or not the tooth could have been saved by appropriate endodontic treatment. Thus, on the evidence before us, we can not find that the tooth could have been saved by endodontic treatment. It is, however, possible that endodontic treatment carried out at the appropriate time may have saved the tooth. It may be that if an endodontist were shown the x-rays taken at Dr Hocking’s clinic in August 1999, an opinion could be given on that issue.
10. Once again no x-rays were taken by the Department of Defence Dental Clinic before orthodontic banding was applied to correct the alignment of the upper jaw. The respondent’s witness, Professor Woods, said that the taking of such x-rays would be standard practice before applying orthodontic banding, unless there were already current x-rays, “so that you could diagnose and treatment plan properly, and then also have a record of where you started so you know where things have moved from” (trans, p194). He was “absolute” in saying he would always take such x-rays and added, “if I ended up in this Tribunal or another one with some problems and I was unable to produce the records, then I would have a difficulty explaining or substantiating and supporting what I did”.
11. Although there is no onus of proof on an applicant in a hearing before this Tribunal, the question at the end of the hearing is whether the case has been established. If it is not established, the applicant cannot succeed. As Woodward J explained in McDonald v Director-General of Social Security (1983) ALD 6, in considering a claim for invalid pension under the Social Security Act 1947, at p10:
Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf of the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity such, for example, as the state of the labour market for disabled persons. Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe this situation in terms of the legal onus of proof.
12. Unfortunately, the failure by the Army dentists to take x-rays showing the fracture before treatment, has benefited the respondent by making it impossible for Mr King to prove his case on the balance of probabilities. If x-rays had been taken shortly after the accident, or even just before the banding was applied, as is the standard practice, that would have provided evidence to establish first, whether endodontic treatment would have been valuable, and, secondly, whether the orthodontic banding enlarged the fracture of the root of the relevant tooth. X-rays prior to applying the banding would, of course, as Professor Woods said, also have allowed Dr McNeill to “diagnose and treatment plan properly”. Dr McNeill said that if he had seen a fracture on the x-rays he would have referred Mr King for endodontic or other treatment at that stage (trans, p139). Finally, if x-rays were available, that may have assisted settlement by showing what effect, if any, the banding had on the fracture. It seems very unfair that the fact that the Army dental treatment fell below appropriate standards disadvantages Mr King rather than the respondent in these proceedings.
13. We are also concerned to see from the letters Dr Hocking sent to the Army and the Department of Defence (T4 and T5) that originally, in December 2002, he suggested that the claim should be referred to the Transport Accident Commission (TAC) of New South Wales. On the evidence we heard, it appears that such a claim should have been successful, in that all the expert witnesses agreed that the fracture of the tooth, which we find was sustained in the motor car accident, was implicated in the death of the tooth three and a half years later. However, it appears from Dr Hocking’s letter of 24 April 2001 that Major Lerche of the Department of Defence told him that “[the] department is the place to resolve this problem”. Unfortunately, three years later it has still not been resolved. Dr Hocking wrote in his first letter to the Army of 19 December 2000, “A quick solution should be available to fix this problem”. We can only agree with him and regret that the matter took the course it did. It may now be too late for the claim to be made to the TAC.
14. Another matter of concern to us is that the Tribunal’s pre-hearing and hearing processes proved unsuitable for resolving the issues in dispute. The issue before us as to whether the death of the tooth was “an unintended consequence” of Mr King’s Army dental treatment (s6A(2) of the Act) depended on expert evidence as to whether or not the death of the tooth was a consequence of dental treatment, or lack of treatment. The Tribunal’s General Practice Direction of 1 July 1998 requires that all expert reports on which parties intend to rely must be served prior to the second conference at which the merits of each case will be discussed with a view to settlement. It is expected that those reports will set out the substance of the opinions the experts will give if they are called at the hearing. That did not happen in this matter.
15. Although Dr Hocking agreed that there was always only a slight chance of the fracture healing naturally, he pointed out that the chance of it healing with endodontic treatment was lost, because the fracture was not recognised after the accident or before the application of orthodontic forces to the crown of the tooth. It was his evidence that the fracture was made less likely to heal naturally because the orthodontic treatment Dr McNeill gave would have had the effect of leaving the tip of the root in place and shifting the body of the tooth away from the tip, thus widening the gap caused by the fracture. He wrote that the tooth was probably lost earlier than it would otherwise have been, because of the orthodontic treatment (A1 & A2).
16. Those reports and the full Army dental records concerning Mr King were before Dr McNeill when he wrote his report of 22 February 2004 (R2 &R4). Dr McNeill, in his report, first acknowledged that he had no recollection of treating Mr King and could only rely on the clinical records. Secondly, he pointed out that he had applied full upper bands with a light nickel titanium arch wire to straighten Mr King’s crooked upper front teeth. He made no suggestion in his report that the force he applied would have been too slight to have moved the crown of the tooth away from the tip of the root, nor did he make the point that the orthodontic force was applied mainly to the labial lateral incisors and not to the two front teeth. He acknowledged in his report that the orthodontic forces could have caused the painful episode. He wrote, “even if the root was fractured… orthodontic forces would not necessarily have caused the painful episode”. In paragraph 6 of his report he wrote, “I cannot categorically state that the root tip was separated from the crown of tooth 2.1 by orthodontic forces”. Thus his report clearly acknowledged that there was a possibility that the orthodontic forces could have separated the root tip from the crown of the tooth, but said that it could not be categorically stated to have happened. He did conclude that the orthodontic treatment he gave did not cause the tooth to die and did not cause the incident of infection which led to the extraction, but he did not explain the basis of those opinions.
17. Similarly, Professor Woods, in his report of 8 January 2004 (R1) wrote, “I agree that active orthodontic treatment may have moved the crown away from the fractured root tip”. He added ” but, in the absence of detailed records there is no way in which that definite association can be made”. When he wrote that report, Professor Woods had available to him all the relevant service medical records (R5) and the reports of Dr Hocking. No further records have emerged. When he gave evidence, Professor Woods changed his opinion significantly. He described the force applied as very light, and said that it would have been only a tipping force on the labial lateral incisors with hardly any force on the front teeth. He said it was unlikely, that it would have moved the crown of tooth 2.1 away from the fractured tip of the root, but if it did, it would have been only a very minor move of perhaps I millimetre, and that would not have been relevant to the ultimate fate of the tooth.
18. Professor Woods explained the change in his evidence as due to him having obtained more information. The only further information with which he was provided, so far as we were informed, was a photograph and accompanying text from a Dental Guide (R3) showing a method of banding teeth, which Dr McNeill said showed the method of banding he had used.
19. In view of Dr McNeill’s acknowledgement that he had no recollection of treating Mr King, we assume that what he meant was that he used the method described in the extract whenever he was applying full upper banding to correct, “labial lateral incisors and anterior irregularity” (Additional T Docs, p15).
20. At the hearing the two main points made by the respondents’ expert witnesses and relied on by Mr Lenczner related to the degree of force applied, and the assertion that the forces were mainly applied to the two lateral incisors, and not to the front two teeth. If the method shown in R3 was Dr McNeill’s standard procedure for treating the problem Mr King had with his upper jaw, and if the method has the significance it was given in the hearing, we are at a loss to understand why Dr McNeill, in his report, did not make the point that the light forces he applied were not applied mainly to tooth 2.1 and would not have moved the crown of tooth 2.1 away from the root tip. Those would surely have been matters within his expertise. The change in the expert opinions meant that instead of the Tribunal having to decide whether something that was conceded to be possible was in fact probable, the respondent’s experts sought to discount even the possibility that orthodontic forces had moved the crown of tooth 2.1away from the tip of the root. That however only became apparent at the time of the cross-examination of Dr Hocking.
21. The Tribunal currently has two pilot programs in place either or both of which could have lead to this matter being resolved more satisfactorily. The first is directed towards early resolution of claims and covers claims of certain specified types including a “rejected claim for medical treatment”. The intention is that such claims be streamlined to an early settlement conference which will take place before the preparation of T documents, but with brief statements of facts and contentions and all medical reports available at that stage. The pilot only started on 1 September 2004, which was after the hearing of this matter had concluded. We do hope that the respondent has sufficient discretionary power to ensure that the problems and expense discussed above would, if a similar situation arose again, lead to an early resolution, which would see Mr King compensated for the moderate cost of his dental treatment, rather than the expenditure of far more money on legal fees and disbursements.
22. The second pilot applies where a matter has not been resolved and it looks as though it will proceed to a hearing. The Tribunal has developed a “Guide to the Use of Concurrent Evidence Procedures in the Tribunal” and a study is being carried out on the use of concurrent expert evidence. It is generally accepted that where expert witnesses are to give their evidence concurrently they should first confer together, without legal representatives present, and identify the issues as to which they agree, and those where their opinions differ. They then give their evidence together and the hearing process is more of a discussion between experts, with the legal representatives and Tribunal drawing attention to certain relevant issues, or asking for clarification, rather than examining and cross-examining the experts. With hindsight, we consider this would have been a matter suitable for the use of concurrent evidence, although of course there should earlier have been the exchange of reports which covered all the matters on which the respondent’s witnesses were relying. Anecdotally it has been suggested that the conferences between witnesses prior to the giving of evidence may play a part in leading to settlements, by allowing experts to discuss between themselves the matters in favour and against the points on which their opinions differ. We expect that in such discussions, there would have been agreement on the requirement for an x-ray before applying orthodontic banding, and that the effect of losing the opportunity for endodontic treatment would have been explored.
BACKGROUND FACTS
23. Mr King served in the Australian Regular Army (“the Army”) from 6 June 1995 to 4 August 1999.
24. On 14 June 1997, Mr King was involved in a car accident in Ingleburn, New South Wales, while off duty. The police report notes that, as the car was turning at a roundabout, Mr King, a passenger in the back seat, leant against the rear nearside passenger’s door and fell from the car onto the road (A3). Mr King was treated at Liverpool Hospital for lacerations to the face and head. A Liverpool Health Service report dated 14 June 1997 records (Additional T Docs, p17):
Lacerations to forehead, outer lower lip and inner lower lip -> sutured (catgut to inner lower lip). Prolene elsewhere. No loose teeth.
25. Later on the morning of 14 June 1997, Mr King was transferred to an Army hospital. A Department of Defence Outpatient Clinical Record on that date noted that he was missing his front top teeth (Additional T Docs, p16). That is puzzling as on all the evidence, although Mr King’s front teeth were chipped they were not “missing”. Another record that day notes “*Needs Dental R/V [review]” (Additional T Docs, p16).
26. Two days after the accident, on 16 June 1997, a Defence Department Dental Clinical Record noted # [fracture] to teeth 1.1, 2.1 and 2.2 (T27, p51).Mr King said that he had chips off the sides of the crown of those teeth rather than fractures of the crown of the tooth. That is consistent with the dental clinical record of 10 September 1997 (Additional T Docs, p22) which notes that those teeth had “MI” [mesial incisor] which the evidence establishes is a reference to chipping at the sides of the crown of a tooth. That clinical record shows that the breakages were repaired with “A2 composite”, a type of dental cement.
27. On 8 and 31 July 1997, after the chipping of those teeth had been noted and recorded, on 16 June, but before they had been repaired on 10 September, Mr King consulted Dr Robinson at the Department of Defence Dental Clinic about having his upper front teeth straightened and better aligned. His malalignment problem predated his Army service. Dr Robinson referred Mr King to Dr McNeill for treatment of his alignment problem. The referral stated “patient interested in correcting labial lateral incisors and anterior irregularity” (Additional T Docs, p15).
28. Mr King saw Dr McNeill on 16 September 1997. Dr McNeill advised that Mr King ought to have full upper and lower banding for two years to correct the malocclusion. He said in evidence that he did not offer that treatment to Mr King (trans, p128), but he noted that Mr King was “not interested”, and that he doubted he would comply with such a treatment plan. Dr McNeill’s Specialist Report recommended six months of full upper banding (Additional T Docs, p15). Dr McNeill did not take any history of the motor accident, nor did he take any x-rays before applying the banding.
29. According to Dr McNeill’s records he applied “FU [full upper] banding” on 28 October 1997 (Additional T Docs, p22). Mr King attended Dr McNeill for adjustments on 25 November 1997 and 10 February 1998. The banding was removed and a retainer was fitted on 17 March 1998 (Additional T Docs, p22 and 21). That was the last occasion Mr King attended Dr McNeill. Mr King continued to use the retainer, and was still using it at the time of the hearing (trans, p16).
30. Mr King had his wisdom teeth surgically removed in 1998 during his Army service. An orthopantograph (“OPG”) was taken on 14 October 1998, prior to that surgery (T28, p62). An earlier OPG had been taken shortly after Mr King enlisted in 1995. Neither of those OPGs were before the Tribunal. The evidence is that they were lost after being sent by registered post by Dr Hocking to the Department of Defence at its request on 12 September 2001. In spite of an investigation by Australia Post, they have not been found (T11-13, pp 21-23).
31. On 25 August 1999, about three months after his discharge from the Army, Mr King attended Pakenham Dental Clinic for treatment for a sore loose tooth. Periapical x-rays (“PAs”) showed that tooth 2.1 had “snapped about 2/3’s of the way down root” (A6, p4). Mr King gave a history of having injured that tooth as a result of a motor car accident and it being repaired while he was serving in the Army. No treatment was undertaken in August 1999, although root canal therapy “either now or when pain returns” was considered (A6, p4-5). .
32. On 5 December 2000, Mr King returned to Pakenham Dental Clinic with a recurrence of tooth ache. He saw Dr Hocking, who treated the tooth by opening and draining the infected area. Dr Hocking also noted that tooth 2.1 needed extraction. The extraction was performed on 18 December 2000 (A6, p5). Dr Hocking took an impression for a plastic upper denture and recommended bridgework to fill the gap. (A6, p5). Mr King provided Dr Hocking with the two OPGs taken while he was in the Army, as well as a copy of his Army dental records.
33. The following day Dr Hocking wrote to the Army Dental service, enclosing an invoice dated 20 December 2000 for a total of $3735.00 including the proposed bridgework (T4, p11-12). He wrote (T4, p11):
Private King is no longer in the force, however he has had an accident whilst a member which has just required treatment.
HISTORY:
On or about 16/06/97 he had a car accident off base and was transferred to the Army Hospital. ON subsequent days he was treated by you and others. I believe a grossly fractured root of the 21 was missed. This has subsequently been extracted with bridgework required in the future.
If he had been properly diagnosed I feel that the $4000.00 costs would have been borne by TAC NSW.
I have OPGs before and after the event and feel an approach should be made on Private Kings behalf to TAC for recoupment of the current and future account.
I am available to discuss the problem … after January 15th 2001. A quick solution should be able to solve his problem.
34. The matter was not resolved, in spite of Dr Hocking’s efforts to discuss the issue with Department of Veterans’ Affairs (“the Department”). Mr King lodged his claim for compensation with the Department on 27 April 2001 (T3). Dr Hocking also sent a further letter to the Department on 24 April 2001 (T5). That letter read, in part (T5, p13):
I have been advised by Major Lerche that your department is the place to be to resolve this problem. I am unsure if it is a Motor Accident Board or Services problem or it may even be a neglect case through the non-diagnosis. I am anxious to not let it proceed through lawyers.
HISTORY
On or about 16/06/1997 he had a car accident off base and was transferred to the Army Hospital. On subsequent days he was treated by the Dental Unit. It appears that the 21 was fractured and not diagnosed at the time. The tooth has subsequently been removed and a part denture is in place awaiting healing and bridge work.
If the fracture had been diagnosed at the time then the cost of treatment would have been dealt with.
…
His Dental Records includ[ing] two OPG films that show before and after views of the tooth are at my surgery. The fracture may look worse since orthodontic treatment was carried out after the accident but before his discharge.
35. The Department, by letter dated 2 May 2001, requested further information, including all medical/dental records and x-rays in relation to the injury (T6, p15). Although Dr Hocking sent the original OPG’s he was holding to the department as requested by registered mail, they were apparently lost in the mail, as explained in paragraph 30 above. On 9 October 2001 a delegate disallowed the claim, because no further information was received in response to the letter of 2 May 2001.
36. Dr Hocking wrote a further letter dated 13 November 2001 (T14, p24) noting that the documents had been lost by Australia Post. He said:
There were two OPG’s. One showing the 21 without a fracture, the other with a fractured 21. Orthodontic treatment had been undertaken during this time.
37. By a further determination dated 10 December 2001, Mr King’s claim was again disallowed (T17). The delegate decided that the original injury to the tooth did not fall within the provisions of s 6 of the Act, because it occurred during an ordinary recess in Mr King’s employment, outside his official hours of duty. The delegate also decided that Mr King’s claim did not fall within the provisions of s 6A(2)(b) of the Act, because his claim was not in respect of an “unintended consequence of … treatment” paid for by the Commonwealth, as “there is no evidence to support your claim that the non-diagnosis of the fractured tooth has in any way caused an additional condition” (T17, p27).
38. The determination was affirmed by the reviewable decision dated 6 March 2003.
RELEVANT LEGISLATION
39. Section 16 of the Act provides for compensation in respect of medical expenses:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
40. “Injury” is defined in s 4 of the Act, to mean injuries arising out of, or in the course of, an employee’s employment:
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 (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
41. Section 6A of the Act provides for compensation in respect of unintended consequences of medical treatment provided to members of the Defence Force:
(1) This section applies to the following employees:
(a) members of the Defence Force;
….
(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 term “medical treatment” is defined in s 4(1) of the Act to include dental treatment.
42. There is no dispute that Mr King received medical treatment paid for by the Commonwealth. The issues in dispute in this matter are whether he suffered an injury as an unintended consequence of that treatment (s 6A(2)(b)), and whether medical treatment was required in respect of that injury.
The evidence
43. Dr Hocking explained that the toothache and soreness with which Mr King presented to him was due to infection around the tooth with the fracture. He described the fracture shown on the x-ray of 25 August 1999 as a displaced diagonal fracture two thirds of the way up the root of tooth 2.1. He explained that on review of the x-ray it was decided that the tooth, “probably long term it didn’t have a future’. Because the pain had become less, the decision was made to postpone treatment until it next became sore, which was over a year later in December 2000.
44. Dr Hocking described what he had seen in the two x-rays which had been given to him by Mr King and were done during Army service. He said there was no fracture in the first one, which was taken in 1995. The later one, done in 1998, showed a fracture in the root of tooth 2.1.
45. Dr Hocking said that the point of applying banding to teeth is to shift the teeth in relation to each other and to the jaw bone. He said the retainer which was given to Mr King after the bands were removed is to lock the teeth into the position to which they have been moved. He explained what he considered had been the effect of the banding(trans49-50):
Well the whole point of the bands are to shift the teeth and in this case, with the fractured one, I think when they shifted the teeth they shifted the body of the tooth and left the root where it is, so it’s opened up the fracture.
46. Dr Hocking said it was possible that if the fracture had not been disturbed in any way by the shifting of the teeth, Mr King may not have needed treatment for that tooth, because it may have had an opportunity to repair the fracture by natural processes. He said if there had been no space as a result of the fracture then there would have been “a slight chance” that it could have healed (trans, p50). He said that the effect of displacing the fracture by movement of the teeth through banding would reduce or probably remove the chance of the tooth healing naturally. He said if PA x-rays had been taken, they would have disclosed the fracture and it would have been treated straight away (trans, p54).
47. Dr Hocking said that after trauma such as Mr King had sustained, a tooth can die anytime, but if you widen the gap caused by a fracture, you could make the infection worse, if there were infection present.
48. Dr Hocking said that it is good dental practice, when you see that there is chipping of teeth after trauma, to take PA x-rays of the root of the tooth to see if there is any fracture. He said if he was thinking of applying orthodontic banding he would always take a pre banding x-ray. He said he did not think any orthodontist would do banding without first taking appropriate x-rays (trans, p117).
49. In cross-examination, Dr Hocking explained that his concern about the effect of banding being applied without realising that the tooth had a fractured root, was that it might make it impossible to treat the fracture. He said that if the fracture had been recognised beforehand, other treatment such as endodontic treatment, could have been tried to reduce the chance of the tooth dying.
50. Mr Lenczner asked Dr Hocking to comment on Professor Woods’ report (R1). Professor Woods had written in paragraph 4 of his report, that active orthodontic treatment may have moved the crown away from the fractured root tip. He wrote in paragraph 4 of his report (R1, p2):
I agree that the active orthodontic treatment may have moved the crown away from the fractured root tip – but, in the absence of detailed records, there is no way in which that definite association can be made. There would be many cases in day to day practice in which braces are used in teenagers, especially, in cases in which the upper incisor teeth have previously sustained root fractures. Patients will have been warned the pulp death leading to either endodontic treatment or tooth loss may occur at any time in the short or long-term. In such cases, it wouldn’t necessarily be considered that the orthodontic treatment would automatically lead to an acute episode or bring such an episode on more quickly.
Professor Woods had concluded in paragraph 10 of his report:
I do not think the orthodontic treatment, what ever its objectives, caused the root fracture or the subsequent acute flare-up.
51. Mr Lenczner asked Dr Hocking to comment on Professor Woods’ conclusion. He suggested to Dr Hocking that whether the crown would move away from the tip of the root would depend on the sort of pressure applied by the banding. As we have indicated in the introduction to this decision, that issue had not been raised in the reports of either of the respondent’s expert witnesses. Dr Hocking replied (trans, p69):
I would have thought if you were putting force on the crown of the tooth which is detached from the root, the root has got no force on it, so it is going to separate from the tooth.
[But, Doctor, you would have to - if you put pressure on the top of the – the face of the tooth … that may have no consequence at all. You would have to put some particular pressure, which related the pressure to the position of the fracture?
Well, if we are not shifting the tooth, why are we doing the orthodontic treatment?... The whole point in orthodontic treatment is to shift the crown of the tooth.
52. Mr Lenczner suggested that it would need to be a particular sort of pressure. Dr Hocking disagreed (trans, p69):
No, I disagree, because the whole point… I mean, you can get very marked shifting of teeth in orthodontic treatment. That's the reason you do them. You can get sort of quarter inch shifting. And shifting the crown, putting pressure on the crown, is going to shift the crown, and no pressure on the tip of the tooth will shift the crown away from the root.
53. Dr Hocking said it was not correct to say that even the slightest pressure would move the crown away from the root, but if the pressure is not great enough, it will not shift the tooth, which is the object of the orthodontic banding. The tenor of his evidence was that if the pressure is sufficient to move the crown, it will probably also move the crown away from the root, if the root is fractured. He said that he could see no reason to put bands on except to shift the teeth.
54. Mr Lenczner then referred Dr Hocking to Dr McNeill’s report (R2). That report conceded that there was a possibility that the orthodontic forces applied by the banding had caused Mr King’s painful episode in December 2002 which resulted in the extraction of tooth 2.1. Paragraphs 3,4, 6 and 7 read:
3.The clinical records do not outline any unintended consequences. The painful episode and subsequent removal of the tooth and root as outlined by Dr Hocking, could be the result of some trauma. It cannot be proven beyond doubt that the orthodontic treatment was the cause of the painful episode.
Even if the root was fractured (and we now have no way of proving this) orthodontic forces would not necessarily have caused the painful episode, the end result would have been the same even without orthodontic treatment. If a tooth with a fractured root is left unattended it may become painful in a short time or take years to show signs of a problem. In Mr King’s case very light forces were used to align the anterior teeth and treatment time was less than six months.
4.I agree that the active orthodontic treatment may have moved the crown away from the fractured root tip – but, in the absence of detailed records, there is no way in which that definite association can be made. There would be many cases in day to day practice in which braces are used in teenagers, especially, in cases in which the upper incisor teeth have previously sustained root fractures. In such cases, it wouldn’t necessarily be considered that the orthodontic treatment would automatically lead to an acute episode or bring such an episode on more quickly.
…
6.Without having access to radiographs before and after treatment, I cannot categorically state that root tip was separated from the crown of tooth 2.1 by orthodontic forces. If we assume that it was separated, one cannot state that orthodontic treatment was the cause of the incident described by Dr Hocking.
7.As the discussion above would indicate, one could never say that tooth 2.1 would have been removed earlier because of orthodontic treatment. If as has been alleged the 2.1 root was injured at the time of the accident the events that followed i.e. “loose and sore 2.1” was a natural outcome even without orthodontic treatment.
55. Dr McNeill, like Professor Woods, then concluded, without explaining the basis for his conclusion:
In my opinion the orthodontic treatment which I provided did not cause a root fracture, did not cause the tooth to die and did not cause the incident as outlined by Dr Hocking.
56. Dr Hocking said that if Dr McNeill had straightened the upper anterior teeth, as he wrote in paragraph 1 of his report, that meant that he had straightened the upper front six teeth. Mr Lenczner suggested that Dr McNeill would say in evidence that the light pressure he applied was on the two teeth at the side of the front teeth and therefore not on 2.1 which is one of the two front teeth. The Tribunal questioned why Dr McNeill had not written that in his report. Unfortunately Dr Mc Neill was not asked that question at the hearing.
57. Dr Hocking said that he would not necessarily have expected Mr King to feel pain from any widening of the fracture while the banding was on, because he could feel pain with the orthodontic treatment anyway. Pain would be felt due to the shifting of the teeth. He said that opening the gap of the fracture would be a problem whether the tooth was already dead or not. He explained that if the tooth was already dead, widening the gap would make it more likely that infected tissue would fill the space. He said there would probably be infection present, because that would be why the tooth died. If the pulp was still alive, then when it started dying, you would get toxicity and inflammation and pain, as did occur.
58. Mr Lenczner suggested to Dr Hocking that if the widening of the gap allowed an infection to be introduced or increased an infection, you would have expected Mr King to complain of pain shortly after the bands were applied or removed. Dr Hocking said that would not necessarily be the case, because sometimes an infection may be present for years and just sit there quietly. He said a tooth may die shortly after initial trauma, or may die years later. He agreed that it was possible that Mr King may have had an infection present for some years during the banding process, and then the infection just flared up in 1999 and 2000. He agreed that he was hypothesising that whatever happened during the widening process did not manifest itself for one and a half years.
59. Dr Hocking agreed that if pressure was applied on the two incisors on either side of the front teeth to shift them back, and the central teeth were not being shifted, then it is less likely that the banding would have separated the crown of the central 2.1 tooth from its root, although there would still have been some force on the central teeth.
60. The respondent’s written submissions placed reliance on the following passage in Dr Hocking’s evidence (trans, p92):
Now, do you know of any literature which deals with the issue that is being considered by the Tribunal, namely, of the fact of pressure on fractured teeth, insofar as shifting crown from root? You know, any studies that have been undertaken, or anyone who has undertaken any research as to what, you know, the relationship is between placing pressure on teeth in, say, banding processes? --- No.
Sorry? --- I'm sure there's hundreds out there.
But you don't know of any? --- Well, I'm sure if I go to a library I'll be able to pick you some up with half an hour. I'm sure they're out there.
Yes. But for the purposes of this case, having delivered your opinion that you did, did you do any research? Did you look at any literature before you advanced the hypothesis that in this man's case the banding caused the shifting of the crown from the root? --- No. No. It's just the obvious possibility. [emphasis added]
61. When it became apparent that Mr Lenczner placed great significance on Dr Hocking’s use of the word “possibility”, Dr Hocking commented that he could not see any difference between the words “possible” and “probable” and added, “I am saying both aren’t I?” (trans, p94). We consider that the use of the term “the obvious possibility” does change the description, so that it is not referring to what lawyers sometimes describe as a “mere possibility”, but rather to a “probability”.
62. Dr Hocking said that in his opinion what caused the acute episode of inflammation was the death of the nerve, rather than the orthodontic treatment, but he did not agree that something must have happened shortly before to precipitate the death of the nerve. He explained that things progress for reasons that cannot be explained. Somehow the nerve died, and infected the surrounding tissue. He said a dead nerve can be a source of infection, but he could not say “why it infects”.
63. Dr Hocking referred to an extract about root fractures from a text, Shaeffer, Hine and Levy, ‘Oral Pathology’ (A7):
Histologic Features
Healing in such cases may be of several types. The most satisfactory form of healing is the union of the two fragments by calcified tissue, and this is analogous to the healing of a bony fracture. The clot between the root fragments is organized, and this connective tissue is subsequently the site of new cementum or bone formation. There is nearly always some resorption of the ends of the fragments, but these resorption lacunae ultimately are repaired. If the apposition between the two fragments is not close, the union is by connective tissue alone.
64. Mr Lenczner asked Dr Hocking about the size of the root fracture he had seen on the x-rays, and whether it would have been difficult to miss, He replied (trans, p116):
[T]his one was a big fracture, a very big fracture. It was shouting at you.
65. Dr McNeill gave evidence over the telephone from New South Wales. His report of 22 February 2004, and the letter requesting that report were before the Tribunal (R2 and R4). As already stated, he acknowledged in his report, that he had “absolutely no recollection of treating Mr King”. As has already been explained, Dr McNeill’s report (especially paragraphs 4 and 6 quoted in paragraph 54 above) was written in such a way as to suggest that Dr Hocking’s analysis of the role of the orthodontic treatment in causing the painful episode which led to removal of the tooth was possible, although not necessarily the correct explanation. He pointed out that it could not “be proven beyond reasonable doubt” and wrote that he could not ”categorically state that the root tip was separated from the crown by orthodontic forces”. Those passages were hard to reconcile with Dr McNeill’s unexplained conclusion in the report, that the orthodontic treatment did not cause the tooth to die and did not cause the painful episode described by Dr Hocking.
66. We have already referred to the facts that Dr McNeill made no point in his report as to the nature of the banding being such as to apply most pressure on the teeth at either side of the two front teeth, rather than on tooth 2.1, and that he did not suggest that the pressure applied would not be such as to move the crown away from the root of the tooth, if an undetected root fracture were present at the time the orthodontic banding was applied. He rather raised doubt as to whether there was an undetected root fracture.
67. Dr McNeill was asked was to compare the pressure on the two front teeth with that on the teeth on either side. He said that the labial lateral incisors would have more pressure applied to them “simply because they’re more out of line than the central incisors (trans, p130).
68. Mr Lenczner asked Dr McNeill to assume that Mr King did have an undetected fracture of the root of tooth 2.1 when the banding was applied, and to respond to the proposition that the banding then moved the crown of the tooth away from the root. Dr McNeill, to our surprise, described that proposition as “rubbish” (trans, p131). He seemed to have forgotten that in his report he had simply asserted that it could not be categorically stated that the root tip was separated from the crown of tooth 2.1 by orthodontic forces. He added that he applied “very, very small force”. As we have said, we wonder why, if that were so, Dr McNeill had not made that point in his report.
69. In cross examination, Dr McNeill said that if he had known that there was a fractured root of the tooth, he would have taken that into account in deciding how to treat Mr King. He said he would have referred him “to an endodontist probably or someone who was skilled in that field” (trans, p139).
70. Dr McNeill, in his evidence, attempted to reconstruct events in such a way as to show that he had given consideration to the fact that Mr King had recently sustained some trauma to his teeth. He said that he had waited four months for the damage sustained in the accident to heal before applying the orthodontic banding (trans, p139). As Mr Carey pointed out to him, according to the records he had not seen Mr King for the first three of those four months, and there is no note indicating that he was waiting for any healing before applying the banding. The further difficulty with Dr McNeill’s reconstruction was that it was impossible to understand why, if he was aware that Mr King had recently sustained trauma to his teeth, and had waited for any damage to heal, he did not order x-rays before applying banding in order to confirm the healing. On the evidence of Dr Hocking and Professor Woods, that is standard prudent orthodontic practice, even where there is no fracture.
71. Dr McNeil did say that placing orthodontic force on a weakened and traumatised tooth, “wouldn’t make any difference whatsoever; the end result would be the same – the tooth would die”. If that were so, the Tribunal wonders why Dr McNeil, said that he had waited for the fracture to heal. However on his evidence, if he had been were aware of the fracture, he would have referred Mr King for an endodontic opinion. That suggests that there must have been some chance that such treatment could have saved the tooth. Dr McNeill did not claim to have discussed with Mr King the fact that one or more of the teeth damaged in the accident may ultimately die.
72. Dr McNeil was very reluctant to accept, even for the purpose of cross examination, that there was or may have been a fracture of the root present, when he applied the orthodontic banding. He explained, “I mean, there were three other dentists that saw those x-rays and no one saw a fracture. I just don’t want to implicate myself in this business” (trans, p143).
73. When Dr McNeill was asked about the force that can be applied using a thin wire, he said (trans, p143):
In this case the teeth, reading from the notes, were – he had such a minor occlusion – in other words his teeth growing in a small way out of line – that the force on to 2.1 would be minimal. That’s what I am trying to say.
74. That description of Mr King as having only a minor orthodontic problem seems to be inconsistent with Dr McNeill’s note back to Dr Robinson on 16 September 1997 (Additional T Documents, p15), when he told her that Mr King should have much more significant orthodontic treatment, namely full upper and lower banding treatment for two years to correct his malocclusion. It is also inconsistent with Dr McNeill’s evidence as to the treatment that Mr King really required (trans, p128).
75. Dr McNeill said that when the banding was removed at the end of four and a half months of treatment, Mr King would have had “a nice well rounded arch form” (trans, p143). He agreed that to move the two lateral incisors, pressure would have been applied to all the upper teeth by the banding, which went right around to the first molars (trans, p144).
76. When Mr Carey endeavoured to obtain Dr McNeill’s agreement to the proposition that although most pressure was applied to the two lateral incisors, the teeth adjacent to them would have been the teeth which had the next most pressure, he was reluctant to agree. Then he did point out that the canine teeth, as the teeth behind the lateral incisors, also had force applied to them. He said, “the central incisors are not entirely catching all the force; there are other teeth involved as well”. He added that all the 12 teeth come under some orthodontic force (trans, p144). We find, on the basis of that answer, that the lateral incisors did have the most force applied to them, but the next greatest force was applied to the adjoining teeth, including tooth 2.1.
77. When Mr Carey asked Dr McNeill to talk about the healing process where there is a fracture of the root of a tooth, he explained, “It would only heal if it was a hairline fracture. It would not heal if it had been displaced in the accident” (trans, p147). That reasoning we consider would apply however the fracture was displaced and thus supports the view that if the fracture was originally well placed, but was then displaced and widened by the orthodontic treatment that would have reduced the chance of it healing naturally.
78. Dr McNeill added that if the fracture was a hairline fracture, it would have healed in four months. Under cross-examination he amended that to saying there was a good chance the fracture could have healed in four months, if it was a hairline fracture (trans, p148).
79. Professor Woods was shown the PA x-ray which had been taken at Dr Hocking’s clinic in August 1999. He confirmed that it showed a fracture of the root of the tooth. He said there was “a bit of a channel” between the part of the root attached to the crown and the rest of the root near the bone. He said they were “obviously divergent” (trans, p168).
80. Professor Woods said that Dr McNeill would have only used a light titanium wire and that it applies only a very light force of a tipping nature. He said that would not have moved the whole tooth, but would simply have rotated the incisors, so that they tipped inwards. He said the use of titanium wire would make it unlikely that the central incisors moved at all.
81. Professor Woods said that “taking those two pictures together, you would expect that there wasn’t much movement” of tooth 2.1 (trans, p171). We find he was mistaken in referring to two pictures, as there was only one picture available, due to the loss of the 1998 x-ray in the post. He then went on to say that even if there was major movement caused by the orthodontic treatment, “it doesn’t necessarily lead to pulpal death” (trans, p171). He added: “There is no known relationship either clinically or anecdotally or within our literature, and the literature worldwide is extensive, to show a direct relationship between any tooth movement orthodontically and loss of vitality of the pulp or the death of the pulp.” He did not claim that there had been any literature looking for such a relationship, and so we do not consider that answer to have been of assistance to us.
82. Professor Woods said that fractured teeth are frequently moved in clinical practice. He added, “The most important thing in day to day practice, of course, is to, if you can, to pick it up beforehand to make sure it is like that, and there has got to be good discussion with patients and families, however, that that fracture exists.” He did not to explain what the content of that discussion would be. He also said that a fracture should be given three, four or six months for the tissues around it to settle down before orthodontic treatment is given (trans, p172).
83. Professor Woods said that after a tooth has been fractured, it may die at any time. He said the death of Mr King’s tooth was not necessarily related to the orthodontic treatment.
84. In cross-examination Professor Woods agreed that it is unusual in dental practice not to have x-rays taken after trauma. He seemed to expect that such x-rays would have been taken, but he said that if they had not been taken at that time, he would expect them to be taken before commencing any orthodontic treatment. He agreed that is a matter of prudence (trans, p177).
85. Professor Woods said that on the basis of the information he had as to only light pressure being applied, he would not expect that tooth 2.1 had moved more than a millimetre, if at all, and he questioned the effect of moving it. Later, he said that he accepted that there would have been some movement of the tooth 2.1 in relation to the root, of a millimetre or so, but it would not be of any consequence (trans, p184). A question or two later, Professor Woods again said it was unlikely that tooth 2.1 had moved. When that was clarified, he explained “I certainly concede, there is no question I am conceding that there would be potential movement across that gap, there is no question about that, I am accepting that, but I don’t believe that it is of any…consequence, a millimetre” (trans, p185).
86. Professor Woods said that when a fracture of a root heals it is by fibrous tissue, which has some capacity for movement. It may later harden, but not necessarily. He said that if the root had stayed in good alignment, it was possible that the tooth may have stayed viable, but even if it had done so, it would probably still be likely that in the long term the pulp would die. He agreed that any increase of the gap resulting from the fracture would decrease the prospect of hardening tissue and fibrous tissue joining the fracture, but he said there was only a slim chance of any hardening tissue forming anyway. Although he said there had only been a slim chance of total repair, he did agree that any movement decreases the chance of repair (trans, p187). He did not agree that movement increased the chance of pulp dying. He explained that bacteria are so tiny that there could have been “millions and millions and millions of bacteria” in the fracture, even before it was widened (trans, p188). He said it is the opening that counts and it does not matter whether it is large or small.
87. In re-examination, Professor Woods said that so far as he was aware, in 16 years of orthodontic practice he had not seen the death of pulp related to the effect of orthodontic treatment on a root fracture. He did not explain why, in the light of that answer, in his opinion it is always important to discuss the existence of a fracture with patients and families.
88. Professor Woods was quite definite that one should always do an x-ray before putting bands on. He explained why (trans, p194):
To take full records so that you could diagnose and treatment plan properly, and then also have a record of where you started so you know where things have moved from.
[So with your patients you would always take films before you did any sort of treatment?] I am allowed to be absolute here; yes, always. And I would be expected to be if I ended up in this Tribunal or another one with some problem and I wasn’t able to produce the records, then I would have a difficulty explaining or substantiating and supporting what I did.
findings
(1) We accept Dr Hocking’s evidence and find that there was no fracture of the root of tooth 2.1 shown on the PA performed in 1995, but there was such a fracture shown on the PA performed in 1998, even though it was not noted in the Army dental records.
(2) We find that fracture probably occurred in the car accident on 14 June 1997 when Mr King sustained trauma to his mouth and teeth.
(3) We find that fracture was clearly shown, as confirmed by Professor Woods in his evidence, in the PA taken on 25 August 1999 and taken into evidence.
(4) We find that, because there was no x-ray taken before Dr McNeill applied orthodontic full upper banding during Mr King’s Army service, it is not possible to compare any x-rays to see whether the gap caused by the fracture was increased during the time the banding was in place.
(5) We find that good dental practice requires that x-rays be taken before orthodontic treatment is given, and that it is even more imperative to take such x-rays where, as here, there is a history, or evidence of trauma, such as recently repaired chipping of 3 teeth.
(6) We find that Dr McNeill was trying to reconstruct the scenario in the way most favourable to him. We find that his evidence that he waited four months to treat Mr King to allow his injuries to his teeth to settle down (trans, p137) was not correct. We do not accept Dr McNeill’s evidence that he read the history in the clinical notes of the Department of Defence Dental Clinic, and was aware that Mr King had sustained damage to his teeth in a motor car accident. We find that for some reason, he failed to attend to the evidence of very recent repair, six days earlier, or three chipped crowns at 1.1, 2.1 and 2.2. We find that if he had noticed that history or the chipping, he would surely have recognised the need to take x-rays of the relevant teeth before applying full upper banding.
(7) We find that as Dr McNeill did not recognise that Mr King had recently suffered trauma to his teeth, he did not give any thought to the appropriate course to adopt in view of that trauma.
(8) We find that not implicating himself was Dr McNeill’s main concern in giving evidence. That seems to suggest that in his opinion there was some substance to Mr King’s claim that his problem was, or could have been, partly attributable to the treatment administered by Dr McNeill.
(9) We find that if appropriate standards of good dental practice had been met, PA x-rays of the anterior teeth would have been taken before orthodontic banding was applied, even if it was not known that the teeth had recently sustained trauma.
(10) We find that if Dr McNeill had been aware of the fracture of the root of tooth 2.1, he would have referred Mr King to an endodontist or other appropriate specialist for treatment of the fractured tooth.
(11) As there was no endodontic referral, we cannot find whether or not such treatment could or would probably have saved tooth 2.1.
(12) We find that it is probable that the orthodontic forces applied to the crown of tooth 2.1 did move it slightly in relation to the tip of the root, but in the absence of any x-ray showing the position of the crown and the root of the tooth before forces were applied, we cannot make any findings as to the nature of that movement.
(13) We find that, in the absence of endodontic treatment, there was never more than a slight chance that the fracture would heal naturally.
(14) We find that, in the absence of successful endodontic treatment, there was always a chance that the tooth would die at some time because of the fracture.
(15) On the evidence, we cannot find that the tooth became infected and died as a result of the application of orthodontic banding in the presence of an undetected fracture.
consideration
89. There has, so far as we are aware, been one decision of the Federal Court on the meaning of s 6(2A) of the Act, Comcare v Houghton (2003) 73 ALD 676. Lindgren J said in Houghton, at paragraphs 20 and 21:
[20] In my opinion, the word “injury” in both places where it appears in s 6A(2) does not bear its s 4(1) meaning: cf Re Elliott and Comcare (2001) 64 ALD 423 at 441. Essential to all aspects of that definition is a causal or temporal connection with employment. But the purpose of s 6A is to create an entitlement to compensation which does not depend on the medical treatment’s being of an “injury” in that sense: contrast s 4(3) set out at [18] above. Provided only the medical treatment is paid for by the Commonwealth, s 6A(2) deems the unintended consequential injury to which it refers, to have arisen out of or in the course of the person’s employment, thereby attracting the operation of s 14(1).
[21] Mr Houghton, an employee to whom s 6A applied, received medical treatment in the form of the surgical removal of his acoustic neuroma, which was paid for by the Commonwealth. His claim must be, in terms of s 6A(2)(b) of the Act, that as an “unintended consequence” of that medical treatment he “suffered” an “injury”, according to the ordinary meaning of the latter term. Certainly following the surgery Mr Houghton had lost his remaining hearing in his right ear, and that loss of hearing was an “impairment” for the purposes of s 14(1). The question is whether that impairment was the result of an “injury” (not in the s 4(1) sense) which was an “unintended consequence” of his “medical treatment”. If it was, s 6A(2) deems that injury to have arisen out of, or in the course of, Mr Houghton’s employment, for the purposes of, notably, s 14(1) and the definition of “injury” in s 4(1).
90. His Honour then explained that the Tribunal in Houghton had asked the wrong question in asking whether the loss of Mr Houghton’s remaining 81.6% hearing in the right ear which resulted from the operation he underwent to remove an acoustic neuroma was “an unintended consequence” of that surgery. As we understand his reasoning, the question should have been asked, not in relation to the hearing loss, which is an impairment, but in relation to the injury, which caused the loss of hearing. His Honour said that the Tribunal did not have evidence as to the physiological change which constituted the “injury”, and that it was necessary that an injury be identified to satisfy the requirements of s 6A(2)(b) of the Act. Lindgren J also considered that the Tribunal had been in error in considering the meaning of the words “unintended consequence” in isolation. He said they should be considered in the context in which they appear in s 6A(2)(b). His Honour said at paragraphs 31 and 32:
[31] Moreover, all these words were to be applied to the physical things, events and processes constituting Mr Houghton’s operation, as to which, unfortunately, the tribunal made no findings. For all that is revealed by the tribunal’s findings, Mr Houghton may not have “suffered” an “injury” which was a “consequence” of (and therefore conceptually distinct from) his “medical treatment”.
[32] According to s 6A(2), it is the suffering of an “injury”, rather than any ongoing impairment, which is referred to as the unintended consequence of the medical treatment. The scheme expressed in the Act can be illustrated as follows:
(1) medical treatment paid for by the Commonwealth (s 6A(2)(a));
(2) with the unintended consequential suffering of an injury (s 6A(2)(b));
(3) resulting in, relevantly, impairment (s 14(1)).
The second of these three steps was not examined by the tribunal; the tribunal asked only whether the impairment of loss of hearing was an unintended consequence of the surgery.
91. There was evidence in that matter that the decision had been taken to perform surgery using one procedure rather than another, in order to give the best chance of preserving Mr Houghton’s remaining hearing. It was “uncontroversial” that Mr Houghton lost his remaining hearing in the right ear as a result of “something that happened while he was undergoing surgery”. In spite of those matters, Lindgren J said at paragraphs 38 – 42:
[38] It is uncontroversial that Mr Houghton lost such hearing as he had prior to the surgery as a result of something that happened while he was undergoing surgery. But until there are full findings of facts, one cannot say whether that something was the “suffering” of “injury” which was “an unintended consequence of [medical] treatment [paid for by the Commonwealth]”. It may be that full findings of fact will make it clear that whatever it was that caused Mr Houghton’s loss of hearing is properly to be regarded as part and parcel of the operation or as a separate consequence of it. Full findings of fact may show that at some point of time it was clear that an injury causing loss of hearing was certain to occur. If so, further questions will arise.
[39] Although the tribunal asked itself the wrong question, I would sustain its decision if, but only if:
• the only inference available on the tribunal’s findings was that Mr Houghton’s loss of hearing resulted from an “injury” which he “suffered” as a “consequence” of his “medical treatment”; and
• the word “unintended” meant simply and without qualification “undesired”, “unsought” or “not aimed for”.
Neither of these conditions is satisfied.
[40] The first condition is not satisfied in the absence of full findings of fact.
[41] As to the second condition, I need go only so far as to say that in my opinion s 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce. Yet this appears to be the meaning attributed to the word “unintended” by the tribunal.
[42] The tribunal erred in law, first, by posing for itself the wrong question and, as a result, failing to make factual findings as to whether Mr Houghton “suffered” an “injury” as a “consequence” of “medical treatment”; and, secondly, by treating the word “unintended” as meaning simply and without qualification, “not desired by the individual undertaking the act”.
92. His Honour declined to discuss the meaning of the term “unintended consequence” in the absence of findings of fact. The decision of the Tribunal that Mr Houghton was entitled to compensation for the loss of hearing was set aside and the matter was remitted to the Tribunal for further hearing. His Honour said in his concluding remarks:
[45] The proceeding had the potential to raise legal issues of general importance. From the viewpoint of clarification of the law, it is unfortunate that the lack of factual findings makes it presently impossible to resolve those questions. The attention of those responsible should be drawn to the unsatisfactory nature of s 6A(2). Difficult questions touching its construction are bound to continue to arise.
93. In this matter, the relevant “injury” is the death of tooth 2.1, but the evidence does not allow us to find that it was an “unintended consequence” of the treatment Mr King received at the Defence Department Dental Clinic. That death of the tooth may have been able to be prevented if those treating Mr King had not overlooked the need for x-rays and, with the assistance of appropriate x-rays, had found the fracture and referred Mr King for endodontic treatment but, on the evidence before us, that is no more than a mere possibility. Similarly, there is no evidence on which we could find that tooth 2.1 probably died in consequence of the slight movement of the crown of tooth 2.1 caused by the application of orthodontic forces.
94. Although we have suggested that it is unfortunate that the claim for the cost of dental treatment was not resolved at an earlier stage, where there may be wide discretions, or by referring it to TAC NSW, without the need for a protracted and expensive hearing, we have no general discretion. We are bound by the provisions of the Act. As the matter was presented at the hearing, the only way in which the claim could have succeeded under the Act was if it was covered by s 6A(2) of the Act. We find it is not covered by that provision.
95. The decision under review will be affirmed.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer and Miss Anne Shanahan, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 2 March 2004 & 12 May 2004
Date of Decision 28 January 2005
Counsel for the Applicant Mr Carey
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr Lenczner
Solicitor for the Respondent Dibbs Barker Gosling
0
2
0