Lipke and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2168

Lipke and Repatriation Commission (Veterans' entitlements) [2017] AATA 2168 (13 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2319
Re:Craig Lipke
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:13 November 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Deputy President J Sosso
CATCHWORDS
VETERAN’S AFFAIRS – Veteran’s Entitlements – whether the veteran’s condition was defence-caused – rhabdomyosarcoma – inability to obtain appropriate clinical management – where the condition was treated quickly and appropriately – the decision under review affirmed
LEGISLATION
Military Compensation and Rehabilitation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Brown v Repatriation Commission [2003] FCA 1130
Johnston v Commonwealth (1982) 150 CLR 331
Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901
Lipke and Repatriation Commission [2014] AATA 729
Repatriation Commission v Money [2009] FCAFC 11;173 FCR 410
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Wedekind [2000] FCA 649
Somerset v Repatriation Commission [2005] FCA 1399
SECONDARY MATERIALS
Statement of Principles concerning Soft Tissue Sarcoma (Instrument No. 6 of 2015)
REASONS FOR DECISION
Deputy President J Sosso
13 November 2017
INTRODUCTION

Mr Craig Lipke (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) of 1 March 2017 that the Applicant’s rhabdomyosarcoma condition was not related to service.
The veteran is currently 53 years old and enlisted in the Australian Army (the Army) on 3 March 1982. He rendered eligible defence service from 30 March 1982 to 30 June 2004. He also rendered periods of eligible operational service at various times in 2000 – 2004. His service after 30 June 2004 is not covered by the Act but is governed by the provisions of the Military Compensation and Rehabilitation Act 2004.
The veteran does not contend that his rhabdomyosarcoma condition arose out of his service, and the evidence before the Tribunal suggests that it is not the case – Exhibit 1 T29 p. 49. It is also not contested that his condition was diagnosed during his service. However, the gravamen of the Applicant’s case is that due to an inability to obtain appropriate clinical management, during his service, his condition worsened.
The overall factual matrix is not in dispute. The starting point is 13 May 1997 when the veteran presented to Army medical practitioners complaining of a lump in his neck. The note of his initial consultation with a medic is as follows – Exhibit 1 T5 p. 21:
“presents with lump in ® side of neck which appeared last Thursday. Finding it difficult to swallow with minimal pain. No previous history of growths. Sub dermal lump approx. 1 – 1.5 cm long. Not mobile. A/?? Refer MO.”
A further note on the same day in the Applicant’s Clinical Record by the treating doctor states:
“Most likely lymph node. No evidence of ear or throat infection. No scalp problems. No other masses. No systemic symptoms…watch and wait. Review 14 days.”
The veteran presented on 22 May 1997 for review. It was noted by the treating physician (Exhibit 1 T6 p. 22) that there was “no change in size or shape” of the lump in the veteran’s throat, he was “well but mildly tired” and he had no weight loss, “no other masses, no night sweats”. The treating physician also noted that the veteran was afebrile (normal temperature, no fever) “well looking, quite pale in nature”. Blood tests were ordered.
The veteran again presented on 3 June 1997 by which time blood tests had been undertaken and the results received. The clinical notes state that the blood tests were normal and the mass had regressed. However, another lymph node mass had appeared in the same “chain”. The veteran was advised to “watch and wait”. It was noted that if the mass stayed then the veteran should be referred for “surgical excision and/or fine needle biopsy.” – Exhibit 1 T6 p. 22.
The next medical record is dated 23 June 1997. The veteran presented “feeling very unwell with marked painful swelling on (right) lateral neck adjacent to previous lymph node.” The veteran stated that the swelling came up over the previous two days and he reported feeling “dizzy & cold”. Blood pathology and ultrasound were ordered. A provisional diagnosis of mumps was given and the veteran was directed to rest at home for a week and return on 30 June 1997 – Exhibit 1 T7 p. 23.
The ultrasound report of 23 June 1997 suggested mumps – Exhibit 1 T8 p. 24:
“The unilateral enlargement of the right parotid gland, and associated lymphadenopathy on this side, is in keeping with the clinical suggestion of mumps.”
When the veteran next presented on 30 June 1997 he reported “feeling much better” although there remained “significant swelling” – Exhibit 1 T10 p. 26.

The next report of the veteran presenting is 7 August 1997. By then the veteran complained of a lump on the right side of his jaw and neck. The treating medic made a provisional diagnosis of viral illness and referred the veteran to a doctor on the same day. He was then examined by a doctor who noted that there were no additional enlarged lymph nodes. Further blood pathology and serology were ordered – Exhibit 1 T10 p. 26.
On 18 August 1997 the veteran was referred to a surgeon for fine needle biopsy, which was performed on 21 August 1997. The treating surgeon (Dr Lawson-Smith) wrote to the referring medical officer (Major Barbour) and outlined the results of the biopsy – Exhibit 1 T13 p. 29:
“…I have biopsied a node from this gentleman’s right posterior triangle region this afternoon at Bethesda. The cytology has revealed what would appear to be germ cell tumour. This will be metastatic and its primary is yet to be determined. Melanoma and testicular tumours are both possible. His alpha feta protein and Beta HCG tumour markers were within the normal range. His chest x-ray was normal…
I have arranged for him to have CAT scans of his chest and abdomen together with an ultrasound of his clinically normal testes prior to seeing Michael at SCGH so that we can expedite his diagnosis and institute treatment as soon as possible.”
In a report of 27 August 1997 by Dr Anderson, the following conclusion was reached of a CT scan of the veteran’s head, neck and sinuses – Exhibit 1 T16 p. 33:
“Mass in right ethmoid associated with bone destruction including the floor of the anterior cranial fossa. Neoplastic infiltration of the right cervical lymph nodes is also demonstrated.”
In a letter dated 28 August 1997, Dr Terence McManus, Head and Neck Surgeon, wrote to Dr Byrne, Medical Oncologist, in the following terms – Exhibit 1 T17 p. 34:
“Thank you for referring this unfortunate patient with extensive disease in his neck which appears to arise from a tumour in the right ethmoid. By now you will have seen the report of his CT scan which has shown a mass in the right ethmoids which has destroyed the lateral wall of the ethmoid sinus and eroded into the maxillary sinus.
He has extensive lymphadenopathy in the right side of his neck and I have noted the biopsy report suggesting an anaplastic small round cell sarcoma….”
As the Applicant and his wife were originally from Brisbane, he elected to move from Perth to Brisbane for further treatment – Exhibit 1 T17, 18 pp. 34-35.
Dr Helen Juffs, Oncology Registrar at the Princess Alexandra Hospital, Brisbane, in a report dated 17 September 1997 made the following observations – Exhibit 1 T23 pp. 41-42:
“Examination is noteworthy for a mass of right cervical lymph nodes which measure 6 x 9 cm and extend to the root of the neck. There is no other lymphadenopathy.
Mr Lipke has had a CT of his sinuses which showed a mass occupying the right ethmoidal air cells with associated destruction of the lateral wall of the right ethmoid sinuses. The mass also extends to the superomedial wall of the right maxillary sinus and protrudes into this sinus. There was an air fluid level in the right maxillary sinus. Superiorally, there is partial destruction of the cribiform plate of the stenoid although no gross intracranial extension was evident.
A biopsy of that mass performed privately at the Holy Spirit this week confirms rhabdomyosarcoma...
Mr Lipke had his first cycle of VAC chemotherapy yesterday (11.9.97) and also had intrathecal Methotrexate. He appears to have tolerated this well…”
Subsequently it was determined that the Applicant required approximately twelve months of chemotherapy, which commenced on 11 September 1997, as well as local radiotherapy – Exhibit 1 T 28, 29 pp 47, 49.
From the outset the veteran believed that his condition should have been diagnosed earlier which would have resulted in less intrusive, far-reaching and lengthy treatment.
The current matter is the fourth compensation claim made by the veteran. The first was lodged on 23 July 2001, the second on 27 July 2009 and the third on 27 February 2013. Each of the claims were for compensation in relation to the rhabdomyosarcoma condition and each was unsuccessful. The third claim ultimately was considered by this Tribunal. In Lipke and Repatriation Commission [2014] AATA 729. In that matter, Member Dr Denovan was not satisfied that there was a sufficient, or causal, connection between the veteran’s rhabdomyosarcoma and his defence service.
The current compensation claim is also in respect of the rhabdomyosarcoma condition, and the essence of the veteran’s contention is that Dr Denovan had not properly considered case law relating to inability to obtain proper clinical management.
The reviewable decision in this matter was made by the Board on 1 March 2017. The Board in reaching its decision had regard to Statement of Principles No 6 of 2015 – Soft Tissue Sarcoma.
Clause 6 outlines the factor that must exist before it can be said that, on the balance of probabilities, soft tissue sarcoma is connected with the circumstances of a person’s relevant service. In this matter factor (g) is relevant:
“(g) inability to obtain appropriate clinical management for soft tissue sarcoma.”
Clause 7 provides that paragraph 6(g) applies “only to material contribution to, or aggravation of, soft tissue sarcoma where the person’s soft tissue sarcoma was suffered or contracted before or during (but not arising out of) the person’s relevant service.”
In reaching its conclusion, the Board made the following findings – Exhibit 1 T2 pp. 11 – 12:
“26. Even if the clinical management of Mr Lipke’s condition was not appropriate, there is a further difficulty posed by the SoP. In order to satisfy the requirements of the SoP there must be evidence that Mr Lipke’s rhabdomyosarcoma was materially contributed to or aggravated by the clinical management he received for his condition. Where the contention is that cancer could have been detected and treated at an earlier time, this requirement will be met where the failure to diagnose the condition led to an aggravation of the condition compared to the course the disease would have taken had the timely treatment been given.
27. The Board is satisfied that there is no evidence establishing on the balance of probabilities that diagnosis and treatment in May would have improved the course that Mr Lipke’s disease took. In 1998 Mr Lipke’s prognosis was guarded. At that time Dr Thomson said that staging was the most important prognostic factor. He thought that a delay in diagnosis may impact on Mr Lipke’s prognosis, because the tumour would have grown during the period before it was diagnosed and this affects prognosis. At most Dr Thomson was saying that delay may impact on prognosis. In fact by the time of the hearing in 2017 there is no indication that the condition has recurred. The Board is therefore satisfied that the course of Mr Lipke’s illness has been made worse than it otherwise would have been had he been diagnosed and commenced treatment in May 1997.”
The application was heard in Brisbane on 17 October 2017. The Applicant was represented by Mr Ken Cullen of the Samford RSL. The Applicant did not give evidence. The Respondent was represented by Mr Ben Dube of Sparke Helmore Lawyers.
VETERAN’S SUBMISSIONS
Mr Cullen provided the Tribunal, in addition to his oral submissions on 17 October 2017, two written submissions: Submission Relating to Facts, Issues & Contentions (SRFIC) dated 28 June 2017 and “Submission for Mr Craig Lipke” dated 19 June 2017.
Mr Cullen drew to the Tribunal’s attention various passages and cases cited in Veterans’ Entitlements and Military Compensation Law (2^nd ed), Creyke and Sutherland, as well as an incident reported in the Courier Mail of 30 April 2017 and an article in Verbosity (Volume 20 No. 1, at pp. 22 – 24) – SRFIC p. 2.
Mr Cullen then outlined the gravamen of the veteran’s case (p. 3):
“CONTENTIONS
We contend that due to the mismanagement of the veteran’s health, he did not receive appropriate Clinical Management of the condition Rhabdomyosarcoma and due to the misdiagnosis that it reached Stage 4 Meningeal Rhabdomyosarcoma. From the clinical notes, none of the medical professionals could categorically state that in May 1997, the tumour was already a Stage 4 tumour. Dr Helen Juffs in her response to a request from Dr Paul Fyfe, she states, ‘that had the condition been diagnosed in May 1997, it is likely to have responded well to initial chemotherapy’. If Chemotherapy was administered and it cleared the tumour, the applicant would not have suffered the side effects of Radiation. We further contend that given the amount of case Law relating to misdiagnosis and the inability to obtain appropriate Clinical Management, the veteran should be successful in this case. We further contend that the applicant was deprived of the opportunity to obtain appropriate Clinical Management by the Unit Medical Officer by not referring him to a specialist or an army or defence Hospital…
SUMMARY
We believe that the Unit Medical Facility which the applicant attended used this veteran as a guinea pig as he played around with multiple diagnosis [sic] which were non-existent over a period of 3 1/2 months. Once a biopsy was confirmed on the 21 August 1997 the applicant received swift and appropriate Clinical Management.
Given there is doubt whether the condition was delayed or not there is evidence that it was. We believe if there is any benefit of doubt, it should be in the applicant’s favour and the decision of the Veteran’s Review Board be set aside. If the condition is favourable to the veteran, I do not believe it need [sic] to return to the Commission for assessment as the condition is in remission. A claim for side effects of radiation will be lodged and any assessment can be adjusted at that stage.
CONSIDERATION
Introduction
It is not contested that the Tribunal is required to decide the matter to its reasonable satisfaction – s 120(4) Veterans’ Entitlements Act 1986 (the Act). This is the civil standard of proof, which is sometimes referred to as the balance of probabilities or preponderance of probability – Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335.
Section 120B(3) of the Act requires that “reasonable satisfaction” be assessed by means of a two-step inquiry:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service”.
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine Statements of Principle (SoP) for, inter alia, the Act – s 196B(1).
If the Authority is of the view that on the sound medical-scientific evidence available that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that, on the balance of probabilities, an injury, disease or death is connected with the circumstances of that service – s 196B(3).
Subsection 196B(14) outlines seven circumstances in which, for the purposes of s196B(3), a factor causing or contributing to a veteran’s injury or disease is “related to service” rendered by a veteran.
Three of the seven circumstances are relevant to this matter and are set out below:
“(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or…
(d) it was contributed to in a material degree by, or was aggravated by, that service…”
In this matter it is also not contested that at the relevant time to this claim there is a relevant Statement of Principles (SoP) determined under s 196B(3), namely No 6 of 2015, Soft Tissue Sarcoma which took effect from 27 January 2015. As previously noted, factor (g) in clause 6 of the SoP is inability to obtain appropriate clinical management for soft tissue sarcoma.
“Soft tissue sarcoma” is defined by clause 3(b) as follows:
“a malignant neoplasm derived from extra skeletal connective tissue, including fibrous, fat, smooth muscle, nerve, vascular, histiocytic and synovial tissue, and which can occur at any site in the body. The definition includes atypical fibroxanthoma and Mullerian adenosarcoma, but excludes mesothelioma, Kaposi’s sarcoma, malignant neoplasm of the bone and articular cartilage, and malignant neoplasm of the lymphopoietic and haematopoietic tissue.”
It is not contested that rhabdomyosarcoma falls within the definition of “soft cell sarcoma”.
Rhabdomyosarcoma
The Respondent accepts that there is evidence before the Tribunal providing a diagnosis of Rhabdomyosarcoma – Respondent’s Statement of Facts and Contentions (RSFIC) para 4.2.
Is Rhabdomyosarcoma defence-caused? – Respondent’s submissions
The Respondent submits that the veteran’s rhabdomyosarcoma is not defence-caused – RSFIC para 4.3.
The Respondent further submits (RSFIC para 4.4) that the Tribunal could only be reasonably satisfied that claimed rhabdomyosarcoma is defence-caused if the material before the Tribunal raises a connection between some service rendered by the veteran, namely in this matter, the inability to obtain appropriate clinical management

(s 120B(3)(a), and there is in force an SoP that upholds the veteran’s contention

(s 120B(3)(b)).
Relevant Medical Evidence
Dr Helen Juffs provided a medical report dated 26 November 1997 which dealt with the treatment of the veteran prior to his admission to Princess Alexandra Hospital and the implications of that treatment – Exhibit 1 T29 pp 49 – 50:
“Mr Lipke had presented five months earlier to his doctor in Campbell Barracks, Swinbourne, with right paracervical lymphadenopathy. Whether diagnosis of this disease at that time would have changed his prognosis would depend on whether it was surgically resectable at that stage. This would require an ENT opinion. If he had unresectable disease in May this year, then the delay in diagnosis may not significantly effect his prognosis.
Had the condition been diagnosed and treated in May 1997, it is unlikely to have responded well to initial chemotherapy. As stated above, the risk of relapse would be related to whether surgical resection was possible at that time…
As a predominately childhood disease there is limited data on adults with this condition. The general trend in adults is for a good initial response to chemotherapy, but a high relapse rate. As a patient presenting with Stage IV disease, Mr Lipke’s prognosis is very guarded…
Mr Lipke’s employment in the military per se is unlikely to have contributed to his current illness. In terms of his commonwealth funded medical treatment it is likely that there was a delay in diagnosis. As stated above, whether this adversely effected his prognosis would depend on the surgical resectability of his disease in May…
If Mr Lipke had presented with surgically resectable disease he would still be undergoing chemotherapy. As such his current degree of impairment would be unchanged.”

In accordance with Dr Juff’s suggestion, an ENT opinion was obtained. In a letter dated 27 December 1997, Dr William Coman, Clinical Associate Professor of Surgery at the University of Queensland and a specialist in head and neck surgery, opined – Exhibit 1 T31 p. 52:
“With respect to the two questions raised in your correspondence; I do not believe that if Mr Lipke’s condition had been diagnosed in May, 1997 that it would have been surgically resectable. I believe that the primary tumour, even at that time, was too advanced to allow surgical resection.
Had the tumour been surgically resectable, the prognosis for Mr Lipke may have been better, but nevertheless the prognosis for rhabdomyosarcoma presents with metastatic disease and is always guarded.”
A further medical opinion was sought from Associate Professor Thomson, who was then Director of Oncology at Princess Alexandra Hospital. In a letter dated 11 March 1998 he said – Exhibit 1 T33 p. 54:
“This letter is to confirm that we are treating Craig for Stage IV rhabdomyosarcoma involving his sinuses and neck. There were apparently symptoms for the previous 5 months when he was in Western Australia. It is difficult to prognostication whether intervention at this stage may have improved his prognosis. In treatment of this disease, staging is related to resectability and it would be difficult to tell whether or not at that stage it was resectable. As he apparently presented with cervical lymphadenopathy, he was then probably already Stage IV at that presentation. However, this tumour had certainly grown during this time and as a general rule bulk of disease is also an important prognostic factor, although as I said, in rhabdomyosarcomas, resectability is by far the most important prognostic factor.”
Inability to obtain appropriate clinical management: failure to diagnose, misdiagnosis – judicial guidance
The starting point, on the facts presented in this matter, is the decision of Denning J (as he then was) in Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901. This early English decision, which arose out of World War II claims, was quoted by the High Court in Johnston v Commonwealth (“Johnston”) (1982) 150 CLR 331. It was a case concerning contended aggravation of cancer through delay in diagnosis and treatment. Denning J described an example of aggravation by delay as follows:
“Cases, where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man’s favour that in civil life he would, with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service…there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service.”
The reasoning of Denning J was accepted by the High Court in Johnston (at 339).
In considering the phrase “appropriate clinical management” the standard of clinical management at the particular time of service, is the relevant standard - per Kenny J, Repatriation Commission v Wedekind [2000] FCA 649 at [17].
Kenny J also assumed, without finding, that the Tribunal may be reasonably satisfied that there was an “inability” to obtain appropriate clinical management owing to a relevant diagnostic failure – at [17].
This assumption was also evinced by Greenwood J in Somerset v Repatriation Commission [2005] FCA 1399. His Honour made the following observations (at [36]):
“It may be that in some circumstances an inability to obtain appropriate clinical management for a disease is a function of a failure to diagnose the existence of the condition. In those circumstances, the factor (in this case clause 4) that must exist might not be demonstrated simply because the symptoms or effects of the disease were not properly identified as referable to the disease. In this case, the evidence before the Tribunal suggested that the Shepparton event did not cause the disease and that there were no symptoms manifesting a basis for believing that Mr Somerset had the disease during the period of service.”
However, any doubts about a failure to diagnose or a misdiagnosis providing a proper basis for a claim that there was an inability to obtain proper clinical management were dispelled by the Full Federal Court in Repatriation Commission v Money (“Money”) [2009] FCAFC 11. For present purposes reference can be made to two short passages of the judgment of Finn and Edmonds JJ:
“52…a failure to diagnose and hence to recommend what the Tribunal described as appropriate ‘prophylactic measures’, could in appropriate circumstances properly be found to constitute an inability to obtain appropriate clinical management of a disease…
58…the Navy’s failure to diagnose Mr Money’s IFA and the consequent failure to provide any advice to him could, with an appropriate evidentiary foundation, have resulted in Mr Money’s inability to obtain appropriate clinical management of his disease for the purposes of the SoP…”
First step – s 120B(3)(a)
The task required of the Tribunal by s 120B(3) was explained by Dowsett J in Money as follows:
“86 Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. First, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles ‘upholds the contention’ that the disease is, on the balance of probabilities, connected with such service…..In the present case there was no established link between contracting the disease and the Veteran’s service…Hence the question to be answered is whether the service materially contributed to, or aggravated, his condition. The Commission must answer that question in accordance with ss 120(4) and 120B(3)…Section 120B(3)(a) requires that before the Commission can be so satisfied, it must identify a connection between the material contribution or aggravation of the Veteran’s IFA and his service. The Commission must then consider whether the statement of principles upholds the contention that any contribution to, or aggravation of, his IFA was connected with his service. The statement of principles would only do so if he had been unable to obtain appropriate clinical management of his IFA, and such inability was related to his service.
87 The logical starting point is identification of the connection. It is to be found in the material before the Tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. Nonetheless, the connection must have a factual basis demonstrated in such material. For present purposes, it would not be sufficient to identify the connection as being simply ‘inability to obtain appropriate clinical management’. That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service. The process necessarily involves:
·identification of a discernible material contribution or aggravation; and
·description of the connection between such contribution or aggravation and the Veteran’s service.”
Accordingly, the first task of the Tribunal is to determine, from the evidence adduced, identification of the connection postulated by s120B(3(a). As Dowsett J explains, this requires identification of “any discrete contribution to, or aggravation of, the Veteran’s condition” ([88]) which could be attributed to his inability to obtain appropriate clinical management.
This exercise, as Dowsett J highlights, is a factual and threshold one. I do not read in his Honour’s judgment that the requirement of being satisfied that the material “raises a connection” imposes on the decision-maker a particularly onerous or rigorous task. It is a preliminary factual exercise which provides the foundation for the second stage. Nonetheless, unless the material adduced “raises a connection”, there is no scope for moving to the second stage and determining if the relevant SoP upholds the contention that the disease, on the balance of probabilities, is connected with the relevant service.
The evidence before the Tribunal on this key matter is relatively small, but consistent.
Dr Juffs opined (Exhibit 1 T29 pp. 48-49) that rhabdomyosarcoma is staged by its surgical resectability, and when the veteran presented at Princess Alexandra hospital it was unresectable, and was defined as reaching Stage IV. She went on to opine that whether the diagnosis of this disease in May 1997 would have changed his prognosis would have depended on whether it was surgically resectable at that stage. Dr Juffs stated that the answer to this key question required an ENT opinion.
Such an opinion was provided by Associate Professor Coman who opined on 27 December 1997 that the primary tumour by May 1997 “was too advanced to allow surgical resection” – Exhibit 1 T31 p. 52.
Associate Professor Thomson was slightly more circumspect. He, unsurprisingly, opined that it was difficult to “prognosticate” on whether intervention in May 1997 would have improved the veteran’s prognosis. He noted that in the case of rhabdomyosarcomas, resectability is by far the most important factor. Critically, however, he said: “As he apparently presented with cervical lymphadenopathy, he was then probably already Stage IV at that presentation” – Exhibit 1 T33 p. 54.
Each of the medical experts notes that in the case of rhabdomyosarcoma, the key issue is whether it is surgically resectable. A patient presented with Stage IV is unresectable and treatment consists of chemotherapy and radiotherapy – Exhibit 1 T29 p. 49. In short, once a patient reaches Stage IV, surgical intervention is no longer feasible as the primary means of treating this condition, and a patient must then have lengthy and intrusive chemotherapy and radiotherapy treatment. In this matter, it is this lengthy, intrusive and debilitating treatment that has resulted in the veteran suffering ongoing side-effects which have deleteriously impacted on his life.
Critically for the Tribunal is whether the veteran has already reached Stage IV when he presented in May 1997. If he had, then even if the Army medical officers and medics misdiagnosed his condition, their failure did not result in the veteran’s condition being “aggravated” in the sense of it progressing to the next stage.
In this context, there is a further medical report in the “T Documents” (Exhibit 1). It is dated 27 August 2001 and is written by Dr Henry Brigden DMO. The report was requested by Ms Cathy Kelly, Delegate of the Respondent on 22 August 2001 – Exhibit 1 T37 p. 67. It appears to be a “desktop” report based on a review of extant materials, as distinct from a medical report following a physical examination of a patient. What is of interest is the conclusion that Dr Brigden reaches which is set out below – Exhibit 1 T38 p. 69:
“However, on the basis of the three expert opinions from Brisbane, obtained by MCRS and on file, it appears that at the time of first presentation, in May 97, the tumour was already at Stage IV, that is, with metastatic spread, and that being the case the prognosis was not affected by the time taken to establish the diagnosis.
That being the case (and certainly, on the balance of probabilities), it cannot be said that it constituted a material contribution to, or aggravation of, his condition as the SOP requires under paragraph 6.”
The Tribunal must proceed on the medical evidence before it. That evidence is straightforward and has not been seriously challenged. It suggests, on the balance, that when the veteran presented in May 1997 he had already reached Stage IV and the failure to diagnose his condition, and the misdiagnosis, although causing delays of approximately three months, did not result in the condition progressing to another stage. In short, the medical evidence leads, on the balance, to the conclusion, that the veteran’s condition in May 1997 was no longer surgically treatable, and the chemotherapy and radiotherapy which he ultimately underwent, would have been the primary means of treatment in May 1997 had he been correctly diagnosed.
In conclusion, then, the material adduced fails to identify any discrete contribution to, or aggravation of, the veteran’s condition by the medical treatment he received from May 1997 until his condition was correctly diagnosed and then appropriately treated. If there was an alternative raised by the evidence, even if was less likely, then a decision-maker would conclude that that a connection has been raised, and then determine whether such contention is upheld by the relevant SoP. However, there is no proper scope for this approach in this matter. The medical evidence is unambiguous. The medical evidence is that the veteran had reached Stage IV of his condition by May 1997. In these circumstances the Tribunal is not satisfied, on the balance, that the evidence raises a connection within the meaning of s 120B(3)(a).
Second step – s 120B(3)(b)
Based on the above finding, it is not necessary for the Tribunal to move to the second step. However, if the Tribunal’s reasoning above is in error, and the material does raise a connection within the meaning of s 120B(3)(a), the second step will be addressed below.
The Respondent drew the Tribunal’s attention to Cooper J’s judgment in Brown v Repatriation Commission (“Brown”) [2003] FCA 1130. His Honour outlined (at [9]) the steps an applicant would need to address in order to successfully claim that the claimed condition was connected with the circumstances of the particular service. Modified to reflect the circumstances of this matter, those steps are set out below:
(a)there was a diagnosis of rhabdomyosarcoma (the condition);
(b)there was an inability to obtain appropriate clinical management for the condition;
(c)the inability to obtain appropriate clinical management was related to service of the veteran;
(d)the condition was contracted before a period during which the veteran was unable to obtain appropriate clinical management; and
(e)the condition was materially contributed to, or aggravated by, the failure to obtain appropriate clinical management.
The Respondent contends (RSIFC para 4.13) that factor 6(g) is not satisfied as the Applicant cannot establish paragraphs (b), (c) and (e) of the test in Brown. Although the “test” outlined above has no strict statutory basis, it is, nonetheless, a useful tool in focusing on the key questions to be addressed. With that caveat in mind, the Tribunal will now address paragraphs (b), (c) and (e).
Inability to obtain appropriate clinical management
Mr Cullen submitted on behalf of the veteran that there had not been appropriate clinical management.
In the document entitled “Submission for Mr Craig Lipke”, Mr Cullen makes the following submission:
“We believe if Mr Lipke was a civilian the civilian doctor would not have procrastinated with the medical treatment that Mr Lipke had to endure. I Wish to bring to the attention of the Tribunal that servicemen and women cannot and I repeat cannot seek 2^nd opinion medical advice without approval from the RAP.
If the army doctor thought he had mumps surely hospitalisation would have been more appropriate than sending him home, given that this lump on his neck had been there from 13 May 1997 until 23 June 1997, a total of 40 days or 2 days short of 6 weeks…”
Conversely, the Respondent contends (RSIFC para 4.13(a)) that there is no medical evidence that in 1997 a reasonably competent medical practitioner would have diagnosed the veteran’s condition at an earlier time or that the veteran was not treated with the skill and expertise that would have been expected to have been given to a civilian at that time.
The Tribunal has the benefit of the previous determination of Dr Denovan, who is a very experienced medical practitioner. Dr Denovan made the following observations:
“17. There is no suggestion that the doctors who treated Mr Lipke were lesser qualified than those practicing in civilian practice at the time. Nor is there any suggestion he did not have access to the same investigations and same specialists that he would have had, had he not been serving in the military.
18. The factor in the SoP does not provide for the finding that there is a causal link between service and a person’s disease or injury simply because the management was not optimal or, because with the wisdom of retrospect, a better management of the disease or injury can now be proposed. The comparison is not that which is optimal – it is that which he would have received in civilian life.
19. Mr Lipke claims that the treatment he received at the RAP in 1997 was inappropriate. I observe that doctors serving in the military in Australia have undergone the same training as civilian doctors. The same medical board registers them. They have access to the same specialist doctors, most of whom are civilian. The main difference between civilians and serving military personnel is that those civilians without private health insurance will usually have longer waiting times to see a specialist that will serving military personnel.”
Dr Denovan also referred to the fact that the veteran’s condition is very rare in adults, and is usually diagnosed in children and observed (at [22]):
“It is most unlikely a civilian doctor would have sent the veteran off for a fine need [sic] biopsy in May 1997 simply because he presented with an enlarged lymph node. Lymph nodes in the neck and all over the body, become enlarged on a regular basis, and the cause is usually infection. Doctors are trained to consider likely diagnosis, by keeping in mind the mantra ‘common things are common, rare things are rare’. Infection is common; the cancer Mr Lipke was diagnosed with is rare.”
As previously stated, the standard of clinical management at the time of service is the relevant standard – Repatriation Commission v Wedekind [2000] FCA 649 at [17]. It is clear that the veteran was misdiagnosed in May 1997 and for a short time thereafter. It is also not contested that the condition he suffered is a rare one, and not a condition that adults are usually afflicted with. It is not obvious that the medical attention he received was negligent or substandard even if it turned out to not address his actual condition. The test that needs to be applied is would a properly trained physician at that time and with the knowledge and expertise expected have approached the matter as occurred? The test is not how, with the wisdom of hindsight, would a medical practitioner have acted. It is all too trite to say that the only clear vision is rear vision. Rear vision is always 100% correct and provides an absolute standard. That is not the test in this, or any other matter.
The evidence before the Tribunal is that the veteran was provided from his first presentation in May 1997, and for a short time thereafter, with a standard of care and attention that was reasonable and appropriate, albeit incorrect in terms of diagnosis. Mr Cullen acknowledges that once the correct diagnosis was made, the veteran received speedy and appropriate treatment. There is also no contest that his condition was not immediately diagnosed. In terms of paragraph (b), on the balance, the evidence leads strongly to the conclusion, that he received appropriate clinical management.
Inability to obtain appropriate clinical management was related to the service of the veteran

This question is inexorably related in this matter to the issues dealt with in the previous question.
First, as already stated, the veteran received appropriate medical treatment, and that treatment was at least as good, on the evidence presented, as he would have received had he been not enlisted.
Mr Cullen appropriately raises a very critical issue, namely that Australians when enlisted are in a totally different legal environment. They are required to present to military medical officers and are limited in the medical choices they can make. This limitation could be a significant legal issue if an enlisted person is provided with substandard medical assistance and is also limited in terms of accessing alternative medical advice and intervention.
In this matter there is no suggestion that the medical assistance provided was substandard or in any way less than the veteran would have received if he had not been enlisted.
Second, as already found, the medical evidence strongly suggests that when the veteran first presented in May 1997 he had already reached Stage IV, and his tumour was not resectable. Whatever initial misdiagnosis occurred, it did not aggravate or worsen his condition.
The condition was materially contributed to, or aggravated by, the failure to obtain appropriate clinical management
The above discussion deals with this matter. There is no evidence that suggests, on the balance, that the veteran’s condition was aggravated or worsened by the misdiagnosis or lack of diagnosis in the two or three months after his initial presentation in May 1997.
SoP not satisfied to uphold the contention
The material before the Tribunal does not satisfy factor (g) of the SoP and, consequently, does not uphold the contention that the veteran’s condition was, on the balance of probabilities connected with his service.
CONCLUSION
The veteran has over many years sought relief on the basis that the condition he suffered should have been diagnosed earlier and the treatment for it commenced earlier.
It is not contested that when he presented in May 1997 there was a failure to correctly diagnose his condition, and this persisted until August 1997. However, the evidence presented also suggests that the medical treatment he received following his first presentation was not inappropriate. In any event, he had already reached Stage IV of his condition and the initial misdiagnosis did not result in any critical time delays resulting in the condition worsening and the medical treatment becoming more intrusive with deleterious side effects.
It is also not contested that once his condition was diagnosed he was treated quickly and appropriately.
The issue for the Tribunal was whether the veteran’s condition was defence-caused as required by s 120B(3) of the Act.
As outlined above, the Tribunal, after carefully considering all of the evidence, submissions and case law, has formed, on the balance, a negative opinion.
DECISION
The decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

....................................[Sgd]....................................
Associate
Dated: 13 November 2017

Date of hearing: 17 October 2017

Advocate for the Applicant: Mr Ken Cullen
Samford RSL

Solicitors for the Respondent:

Mr Ben Dube
Sparke Helmore Lawyers

Date of hearing:	17 October 2017
Advocate for the Applicant:	Mr Ken Cullen Samford RSL
Solicitors for the Respondent:	Mr Ben Dube Sparke Helmore Lawyers