MacDonald and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2018] AATA 1520

MacDonald and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2018] AATA 1520 (6 June 2018)

Division:VETERANS' APPEALS DIVISION 

File Number:           2016/4263

Re:Cherie MacDonald

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:6 June 2018

Place:Melbourne

The decision under review is affirmed.

........................................................................

Senior Member A. Nikolic AM CSC

Catchwords

VETERANS’ AFFAIRS – claimed condition of disequilibrium – competing professional diagnoses of noise-induced vestibulocochlear nerve damage and cervicogenic dizziness - no applicable Statement of Principles for various diagnoses – evidence indicating range of possible causes for claimed condition -  Tribunal not reasonably satisfied that Applicant suffered vestibulocochlear injury – decision affirmed

Legislation

Military Rehabilitation and Compensation Act 2004 (Cth) ss. 6, 21, 23, 27, 319, 335, 338, 339

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

6 June 2018

INTRODUCTION

1. Sergeant (SGT) Cherie Macdonald (the Applicant), enlisted in the Australian Army on 26 February 2002 and continues to serve to the present day. She deployed to Afghanistan during the period 28 January 2012 until 17 October 2012.

2. On 18 October 2012, the Applicant made a compensation claim in respect of ‘Disequilibrium’[1] (the claimed condition), contending that she first noticed symptoms on 22 March 2012 while deployed to Afghanistan. In her application she attributed the claimed condition to ‘lack of sleep, stressful environment.’[2]

   [1] Exhibit R1, pp.158-165.

   [2] Ibid 157.

3. On 6 March 2013 a delegate of the Military Rehabilitation and Compensation Commission (the Commission) rejected SGT Macdonald’s claim, determining that the appropriate diagnosis was Vestibular Neuritis.[3] The delegate considered there was no evidence establishing a causal link between the claimed condition and military service.[4] The Veterans’ Review Board (VRB) considered the Commission’s decision on 4 February 2015, but adjourned the matter pending the provision of further medical evidence.[5] On 3 June 2016, after reviewing the additional medical evidence, the VRB affirmed the Commission’s decision.[6] SGT Macdonald has asked the Administrative Appeals Tribunal (Tribunal) to review the VRB’s decision.

   [3] The Royal Victorian Eye and Ear Hospital describes Vestibular Neuritis as a disorder resulting in inflammation of the inner ear and/or the nerve connecting the inner ear to the brain. It is generally caused by a viral infection and can cause vertigo (usually experienced as a spinning sensation), dizziness, imbalance, unsteadiness, and sometimes problems with vision or hearing. See, for example:  Exhibit R1, pp.188-191.

   [5] Ibid 200-204.

   [6] Ibid 209-215.

The hearing was held from 14-15 March 2018. The Applicant was represented by Mr Mathew Kenneally of counsel, instructed by Williams Winter Solicitors.  The Respondent was represented by Mr John Wallace of counsel, instructed by the Australian Government Solicitor. SGT Macdonald gave evidence and was cross-examined. Two consultant neurologists also gave evidence and were cross-examined:

(a)Dr Amanda Gilligan (called by the Applicant); and

(b)Associate Professor Brian Chambers (called by the Respondent).

For the reasons that follow, the decision under review is affirmed.

LEGISLATION

Section 23(1) of the Military Rehabilitation and Compensation Act 2004 (Cth) (the Act) provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person if:

(a)the person’s injury or disease is a service injury or disease under section 27; and

(b)the Commission is not prevented from accepting liability for the injury or disease by Part 4; and

(c)a claim for acceptance of liability for the injury or disease has been made under section 319.

Section 27 of the Act defines service injury and service disease. Relevant to SGT Macdonald’s application it provides:

For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:

(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;

(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;

…

(d)the injury or disease:

(i)     was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

(ii)    was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;

Defence service is defined at section 6 of the Act.

The method of making a claim is provided for at section 319 of the Act.

Section 335 of the Act sets out the standard of proof that applies to a claim that an injury is a service injury or disease, relating to warlike or non-warlike service:

Standard of proof for claims relating to warlike or non-warlike service

(1) If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person's injury, disease or death relates to warlike or non-warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:  This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.

When there is no sufficient ground for making a determination

(2)  In applying subsection (1) in respect of a person's injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)  that the injury is a service injury; or

(b)  that the disease is a service disease; or

(c)  that the death is a service death;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person while a member.

Note:   This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.

Relevantly, sections 338 and 339 of the Act provide that the connexion between a claimed injury and the rendering of service is to be tested by reference to the applicable Statement of Principles (SoP) made by the Repatriation Medical Authority (RMA), unless the RMA has neither determined a SoP in respect of an applicant’s claimed condition, or declared that it does not propose to make such an SoP in respect of the kind of injury claimed by an applicant. The parties in this matter agree there is no SoP relevant to SGT Macdonald’s claimed condition.[7] I find that there is no SoP for the conditions variously referred to in the materials lodged with the Tribunal (disequilibrium, vestibulocochlear nerve damage, or cervicogenic dizziness).

[7] Exhibit R6. The absence of an SoP is confirmed by a Senior Medical Advisor from the Department of Veterans’ Affairs.

As there is no relevant SoP to be applied to SGT Macdonald’s claimed condition, the issue of deciding whether a condition exists, is to be decided to my reasonable satisfaction in accordance with section 335(3) of the Act.

ISSUES FOR DETERMINATION

The issue of diagnosis is central to determining this matter. Once this issue is decided to my reasonable satisfaction, I may then proceed to consider whether the three conditions at section 23(1) of the Act are satisfied before liability can be accepted.

There are two competing diagnoses proffered by the expert medical witnesses:

(a)The Applicant relies upon the April 2017 diagnosis of consultant neurologist Dr Amanda Gilligan, who considers it possible that SGT Macdonald suffered vestibulocochlear nerve damage ‘…resulting in persistent disequilibrium…’[8] Dr Gilligan contends: ‘

Exposure to loud noises such as explosions and firing of equipment (sic), can cause damage to the vestibulocochlear nerve. It is possible that she has suffered damage to this nerve in the setting of her Armed Service in Afghanistan.  The symptoms were not present prior to her tour in Afghanistan and have been present since her return to Melbourne and episodically have been more severe.’

(b)The Respondent relies upon the August 2017 diagnosis of Associate Professor Brian Chambers, who contends that SGT Macdonald suffers from cervicogenic dizziness due to upper cervical spine dysfunction.[9] Moreover, the Respondent does not accept that SGT Macdonald experienced a sudden noise trauma in Afghanistan that damaged her vestibular nerve, ‘since there is no history of any significant blast exposure and no evidence on auditory and vestibular testing of any dysfunction.’[10]

[8] Exhibit A1.

[9] Exhibit R7, paragraph 2.

[10] Ibid paragraph 7.

SGT MACDONALD’S EVIDENCE

SGT Macdonald adopted her statement dated 27 July 2016.

In her oral evidence, SGT Macdonald said she was deployed to Tarin Kowt in a signals-support role, with responsibility for ten Australian and United States soldiers. Her role included predominantly office-type duties and frequency management tasks. Due to her medical status in 2011, a medical waiver was required to enable her to deploy to Afghanistan and a number of physical restrictions were imposed in relation to her medical limitations.[11] An assurance was provided that SGT Macdonald was unlikely to be ‘exposed to excessive physical demands.’[12] She was not permitted to leave the base at Tarin Kowt and agrees that she did not fire her weapon in Afghanistan except for range practices. On these occasions, SGT Macdonald states she was always provided with hearing protection. SGT Macdonald was asked about the following reference in the VRB report regarding her firing weapons in Afghanistan, which appeared inconsistent with her claim at the current hearing:

‘The claimant said that she was also exposed to the noise of gunfire while in Afghanistan. Her work involved her travelling in a vehicle with other soldiers. On occasion she and others in the vehicle all fired from inside the vehicle. They did not have hearing protection.’[13]

[11] Exhibit R1, p 72. SGT Macdonald’s deployment restrictions included: Physical training at own pace; No contact sports; Exempt Combat Fitness Test; No load carrying over 25kg; and required access to pharmaceutical medication, particularly ‘migraine medication.’   

[11] Ibid 217-218.

[12] Ibid 27-28.   

[13] Ibid 211.

SGT Macdonald could not explain why the VRB had recorded this from her evidence, confirming that she did not undertake patrolling outside of Tarin Kowt, or travel in vehicles where firing was necessary by her or in conjunction with other soldiers from any vehicle, or that such incidents occurred without hearing protection.

In her statement SGT Macdonald describes two notable incidents arising from her service in Afghanistan:[14]

(a)The first was a rocket that landed approximately 80 metres from her accommodation at Tarin Kowt (the rocket incident), which occurred ‘within a few days’ of her arrival. She submits the rocket ‘struck the Mess Hall’ causing her to be startled and shocked by the explosion, which she describes as ‘the first episode of enemy fire to which [she] had been exposed.’ She describes the noise as ‘loud,’ but ‘dulled…to an extent’ because she was inside a shipping container.

(b)The second incident relates to a sudden and unexpected exposure to noise from a simulator (the simulator incident), which SGT Macdonald describes as follows:

I had been walking between two shipping containers which housed electrical generators at Tarin Kowt. Although I did not know it at the time, I accidently walked through a simulated training exercise. Although it should have been, the area had not been cordoned off. I now know that the ordnance which exploded was around the corner of the shipping container which I was walking past. It detonated just as I was about to reach that corner and I was in very close proximity to it when it exploded. The noise was extremely loud and I immediately went to ground because my initial fear was that we were the subject of incoming rocket fire…The noise was excessive and I was stunned by it.

I was not suffering the symptoms of disequilibrium prior to this incident and the symptoms commenced soon after.

I did not initially report the symptoms of disequilibrium. This is because I did not link them to the explosion and I thought that they would pass spontaneously. I therefore put up with the symptoms for a few weeks before eventually reporting to the RAP.[15] Initially the doctor at the RAP thought that the symptoms might be related to dehydration…No real diagnosis of my condition was made at this time. The symptoms have continued to the present day.

…

I was present on the rifle range during rifle exercises but on those occasions I have been provided with hearing protection and I consequently was not exposed to excessive noise.

I believe that the disequilibrium is related to my exposure to excessive noise from the detonation of the ordnance during the simulated exercise in the Base at Tarin Kowt.’  

[14] Ibid 217-218.

[15] Regimental Aid Post.  An RAP was established at Tarin Kowt to provide immediate treatment and triage of casualties.

SGT Macdonald states the military base at Tarin Kowt was subjected to rocket attacks 1-2 times per week during her tour of duty. In relation to the rocket incident, she described a ‘vibration’ and a loud noise from the explosion that was ‘loud enough but not the loudest noise [she had] ever heard.’ She said the rocket attack occurred in the early hours of the morning when she was asleep in a shipping container with two other roommates.  The container door was closed and she claims to have been woken by the explosion, for which there was no pre-warning. She described the force protection measures in place at Tarin Kowt as including a system that detected rockets, provided an audible warning to members of the base, and was able to destroy the incoming rocket. The audible warning was designed to provide sufficient time for those threatened to seek protection. She also described a half-metre thick dirt wall surrounding the sleeping and working accommodation. Her evidence was that the rocket impacted approximately 80 metres away but ‘still made the sound of an explosion.’ SGT Macdonald elaborated in her oral evidence that she felt the explosion more as a thud and vibration, rather than a noise that might be considered loudly explosive in nature.

SGT Macdonald claims to have first experienced symptoms of disequilibrium on 22 March 2012[16], but ‘put up with the symptoms for a few weeks.’[17] She says the symptoms persist to the present day, describing them as ‘intermittent [and] brought on by sudden movement of [her] head.’ She states that she is ‘more prone to the symptoms when [feeling] tired or rundown’ and that frequently ‘the symptoms suddenly and spontaneously occur with no triggering incident.’[18]

[16] Exhibit R1, p 157.

[17] Ibid 218.

[18] Ibid 217.

SGT Macdonald attributes her disequilibrium solely to the simulator incident, which she says occurred ‘sometime in March 2012.’[19] To her knowledge, no-one else was unexpectedly exposed to the noise from the exploding simulator. She is unable to recall the specific date of this incident and submits that she did not report it to anyone. SGT Macdonald states the simulator incident occurred approximately 2.5 metres away from her and was the ‘loudest explosion’ she had ever heard. In her written statement she describes the noise as ‘much louder than the rocket fire incident…’ In any event, SGT Macdonald does not attribute her disequilibrium symptoms in any way to the earlier rocket incident.

[19] Ibid 218.

SGT Macdonald states her initial response to the simulator incident was to ‘go to ground’ because she thought it might have been another rocket. But after quickly realising that no one else around her had gone to ground, she claims to have ‘got up and walked on [her] merry way’ to meet work colleagues for coffee. She subsequently became aware that the origin of the simulator incident was the ‘Slovaks conducting a mass casualty exercise,’ during which a simulator was used to initiate the exercise. She claims not to have reported the incident to anyone because of her embarrassment at not realising it was an exercise. SGT Macdonald agreed that with hindsight, she should have reported the incident.

SGT Macdonald submits she did not seek medical attention following the simulator incident, stating that she checked herself over and ‘appeared fine.’ She claims not to have experienced any headache or other symptoms following the simulator incident, nor did she consider it to be the cause of her subsequent disequilibrium symptoms until approximately three years later in 2015, when she undertook an internet search and made a connexion between loud noise events and vestibular-related symptoms.

In terms of her medical history, SGT Macdonald agrees that she has experienced migraines since the age of 14 and that her records reflect a history of migraines and more frequent, but comparatively less-severe headaches. I note in this regard that a condition of SGT Macdonald’s deployment to Afghanistan was that she had access to migraine medication.[20] SGT Macdonald states that her migraines ceased after the birth of her second child in 2014, after which she can recall only one migraine. She could not understand why the assessing physician for her Defence Medical Employment Classification Review (MECR) in May 2012 had recorded that she had not required migraine medication since 2008[21], stating ‘that’s not correct.’

[20] Ibid 73.

[21] Ibid 46.

At the hearing SGT Macdonald described her migraines as so intense in the past that they required hospitalisation. She claims they have been well-controlled with medication, however, which continues to be prescribed to the present day. She describes her current medication as consisting of a wafer that she puts under her tongue when she feels a migraine coming on and then goes to ‘straight to sleep.’ 

SGT Macdonald describes the onset of her symptoms in Afghanistan in March 2012 as ‘not feeling right,’ a lack of energy and feeling drained. She sought medical advice, which originally attributed her symptoms to dehydration. She was unconvinced this was the cause. She could not remember when the dizziness started, but submits it ‘escalated quite quickly’ to the point where she ‘could not function,’ and made her feel as if she was being ‘pulled to the left.’ When asked about references in the medical evidence to her feeling as if she was being pulled to the right, SGT Macdonald stated this was erroneous and her symptoms made her feel as if she was being pulled to the left.

A viral cause for SGT Macdonald’s symptoms was suspected, but this was ruled out after her return to Australia, as were other diagnoses like Multiple Sclerosis. SGT Macdonald submits that she was told to rest and although the disequilibrium symptoms were ‘not as bad as before,’ they were nevertheless continually present. She contends that she has never been completely free from these symptoms. SGT Macdonald stated during the hearing that even though she had informed treating doctors about the persistent nature of her symptoms, she was nevertheless medically cleared to return to Afghanistan within a month. She agreed, however, that by the time of her return to Afghanistan her medical records note that her balance and hearing were assessed normal and no evidence of inner ear disease had been found.

1. After approximately four weeks in Australia, SGT Macdonald returned to Afghanistan and completed her tour of duty. She submits that she was able to do her role and managed her persistent symptoms by having a ‘sleep at lunchtime’ and not doing physical exercise. She submits that the symptoms have never again been as severe as the initial symptoms causing her return to Australia, but have never completely disappeared.

2. SGT Macdonald submits that she had access to the beta-blocker medication propranolol after returning to Afghanistan, which had been prescribed as a consequence of her migraine history and a suspicion at the time that her symptoms were migraine-related. When asked by counsel for the Respondent whether she experienced migraines after arriving in Afghanistan, SGT Macdonald responded ‘No.’ When asked if she continued to have migraines after her return to Australia, SGT Macdonald also responded ‘No.’ She could not understand why Dr Vaughan and others had noted that she continued to experience migraines. SGT Macdonald cavilled at the suggestion that she had experienced more than one migraine after the birth of her second child in 2014, explaining that she defined a migraine as occurring only when she had to be hospitalised. This issue is explored later in these reasons.

3. After her tour of Afghanistan ended, SGT Macdonald went to Europe for two weeks of leave before returning to Australia. She describes her symptoms after return to Australia as ‘manageable’, but submits they increased in frequency and severity after the birth of her second child in 2014. She found that her symptoms were exacerbated by a lack of sleep and neck pain, causing her to seek a further referral to Dr Gilligan in 2015. She was referred by Dr Gilligan to physiotherapist Ms Ann Woodward, who provided a number of sessions of treatment. These treatments focussed on bringing her ‘centre of balance to normal,’ vestibular massage, and vestibular exercises, such as focussing on a chess board, or her thumb, or a spot on the wall.  SGT Macdonald agreed that problems with her ‘neck increased [her] vestibular problems.’ When asked by counsel for the Respondent whether soreness and stiffness in both sides of her neck and shoulders contributed to her headaches, SGT Macdonald responded ‘No.’ She agreed, however,  with Ms Woodward’s assessment that by November 2015, she felt ‘about 95%’ and the treatment had reduced her symptoms considerably.

4. SGT Macdonald states that she could not recall being briefed on the results of testing undertaken by Oto-Neurology Diagnostic Service in June 2015[22], which reported her hearing and vestibular function tests as ‘normal’ and a slight rotational chair asymmetry as ‘unlikely to be of clinical significance.’ She could not remember whether Dr Gilligan had prescribed propranolol to her in July 2015, but contended that this occurred ‘when we were still focussed on migraine-oriented vertigo…we were trialling different things.’ When asked about a migraine reported by Dr Gilligan in August 2016, SGT Macdonald stated ‘that was the only migraine I had.’ When asked whether that represented an increase in migraine headaches, SGT Macdonald responded ‘I had an increase from none to one, so I suppose that’s an increase.’ SGT Macdonald’s repeated insistence that she only had one migraine headache after the birth of her second child in 2014 is inconsistent with other evidence before the Tribunal. This issue is explored later in these reasons.

   [22] Exhibit A4.

5. SGT Macdonald states that she currently has good and bad days, managing her symptoms by closing her eyes and bringing herself to ‘central focus,’ or by putting sunglasses on. She attends physiotherapy to relieve tension in her neck, which she says is related to her vestibular condition, and does the ‘vestibular exercises’ directed by her physiotherapist. She agrees that an increase in headaches causes her symptoms of disequilibrium to worsen. She also agrees that turning her head quickly causes her to have an episode of dizziness. Good days are characterised by ‘haziness and some dizziness.’ Bad days are characterised by an inability to concentrate or ‘do anything productive like driving.’ She becomes very dizzy, short-tempered and needs to lie down on these occasions. She submits that her symptoms can be initiated by headaches, sleep deprivation, suddenly turning her head while reversing in a vehicle, when travelling in an elevator, or the flicker of light between aisles in a supermarket, which made her feel ‘very dizzy.’

6. SGT Macdonald submits that she only came to realise the connexion with the simulator incident after her symptoms persisted for a number of years without a reliable diagnosis. She states that after viral and migraine-related causes were discounted, the diagnosis of vestibulocochlear nerve damage ‘became clear’ to her after she undertook an internet search and noted similarities with her own circumstances. She discussed the product of her internet search with Dr Gilligan in either late 2015 or 2016, but could not recall the specific nature of their discussions regarding a noise-induced cause for her symptoms, or to being referred for further testing as a result of these discussions.[23] She also could not recall having a discussion with anyone else about a noise-induced cause for her symptoms prior to the VRB hearing on 3 June 2016.  She could not recall having a discussion with any member of the VRB regarding exposure to loud noises.

   MEDICAL EVIDENCE

   [23] Exhibit A6.

   Medical Evidence Relating to Afghanistan Deployment

7. A clinical record from general practitioner (and Regimental Medical Officer) Dr Anthony Sayce, states that SGT Macdonald presented at the Tarin Kowt Medical Centre on 11 April 2012. She had previously been seen by a medic who considered she was suffering from dehydration. Dr Sayce records the following history from his consultation with SGT Macdonald:

   ‘feels like getting off a boat onto dry land for the first time…no spinning – no falling down – no dizziness associated with postural changes...no tinnitus – no associated nausea – feels as if she is being pulled to the right.’ [24]

   [24] Exhibit R1 p.14.

8. Dr Sayce further records that SGT Macdonald had a history of ‘multiple ear infections’ including a rupture of the Tympanic Membrane. He saw SGT Macdonald a week later on 18 April 2012, noting that she continued to experience dizzy spells, but had been taking Stemetil[25] with some benefit and was ‘perhaps 60% better’ with improved concentration.’[26] A further consultation on 24 April 2012 recorded that SGT Macdonald was still experiencing ‘episodes of dizziness’ without nausea and Dr Sayce suspected ‘vestibular inflammation, possible infection.’[27] He prescribed an anti-inflammatory corticosteroid (Prednisolone), an antibiotic (Clarithromycin), and scheduled SGT Macdonald for a review two weeks later.

   [25] Stemetil is used to treat nausea, vomiting and dizziness due to various causes, including migraine (severe headache). See, for example: Exhibit R1, p.11.

   [27] Ibid 12.

There is no reference in any of Dr Sayce’s clinical notes to an initiating cause for SGT Macdonald’s symptoms. In light of her persistent symptoms, however, SGT Macdonald was returned to Australia at the end of April 2012 for follow-up of ‘vestibulitis-type symptoms’ for which there was ‘No obvious precipitating event. No obvious cause.’[28] On 7 May 2012 Dr Sayce wrote:

‘Progressive worsening of vestibular symptoms whilst on deployment. Presented four weeks ago with balanced disturbance, no tinnitus, no nausea, feels as if she is being pulled to right when walking. Initially thought to be vestibular neuronitis, some mild improvement with prochlorperazine, trial of short course of antibiotics and pulse prednisolone, to no avail. Sudden worsening one week ago, no response to scopolamine transdermal patches, unable to sleep, impaired concentration, difficulty walking, can’t undertake PT, not coping. Symptoms getting progressively worse, needs RTA[29] for investigation and management.’[30]

[28] Ibid 9.

[29] Return to Australia.

[30] Exhibit R1, p.58.

On her return to Australia SGT Macdonald was seen on 14 May 2012 by general practitioner Dr William Wong, who ordered an MRI and referred her to Dr Gilligan. Dr Wong stated in his referral note:

‘On approx. 11 April she had sensation of lightheadedness, which was originally attributed to dehydration which did not respond to rehydration. She was not exposed to any chemicals, fumes, trauma or blast injuries. Had symptoms of “sea legs” whereby there was a sensation of the ground moving beneath her feet which made her feel unstable, and felt she was being pulled to the right when walking….Was then thought to have inner ear inflammation...

…

Examination today was unremarkable. Modified Rhombergs test was normal at 60 secs, neurological exam was normal. Audiogram was normal. Ears NAD[31] Eyes PEARLA[32], acuity normal, no nystagmus, no diplopia. BP 120/80, pulse 76 bpm[33]T 37.0 deg tympanic.[34]

[31] No Abnormality Detected.

[32] Pupils Equal and Reactive to Light and Accommodation.

[33] Beats Per Minute.

[34] Exhibit R1, 150.

An MRI of SGT Macdonald’s brain was performed by Dr Paul Marks on 14 May 2012, who reported:

‘There is no mass in the posterior fossa. The 7^th and 8^th cranial nerves have a normal appearance. The cochlea has a normal appearance. There is no widening of the vestibular aqueduct on either side.’

Normal cerebral examination…’[35]

[35] Ibid 149.

The Applicant was then seen by Dr Gilligan on 16 May 2012, whose report states in part:[36]

‘Around the 7^th April 2012 (sic), she awoke one morning feeling as what she describes as lightheaded and lethargic. She thought she may be anaemic and commenced iron tablets. The symptoms progressed and she developed ongoing problems of disequilibrium….Over the last few weeks the symptoms have dissipated and she has returned to normal. She is keen to return to active duties.

She had a series of blood tests all of which were normal. I note her audiometry is also normal. She had an MRI scan performed on 14^th May 2012 and reported by Dr. Paul Marks. I reviewed the scans and I agree with him that they are completely normal.

I note she has a history of migraine. The migraine headaches commenced at age of 14. She has no premonitory symptoms….

…

On examination today, neurologically she is completely normal… Her gait and balance were normal.

This lady may have suffered from a prolonged bout of disequilibrium which may have been due to an acute viral vestibulitis. The other possibility is that she has developed a migraine phenomenon, in the setting of dehydration and sleep deprivation.

…

There is no medical reason otherwise that she should not return to active service in Afghanistan and would recommend her return to active service.’

[36] Ibid 151-152.

Dr Wong also referred the Applicant to Ear Nose and Throat Surgeon Mr John Redhead for vestibular testing. Mr Redhead’s report dated 30 May 2012 states in part:[37]

‘Thank you for referring Cherie who has suffered from episodes of vertigo. This started several months ago and has improved rapidly. At the moment she is driving with no problems and rarely experiences unsteadiness…

Hearing has remained fine…

The tympanic membranes were normal. She has exostoses which are not obstructing. She has no nystagmus and she was Rhomberg negative.

Audiogram shows normal hearing and normal middle ear pressures.

I can find no evidence of inner [ear] disease. I agree with Dr. Gilligan who suggested “migraine phenomena” or viral vestibulitis’

[37] Ibid 155.

SGT Macdonald underwent a MECR in late May 2012, which was an essential precondition to her being able to return to Afghanistan. The MECR was confirmed by Senior Medical Officer Dr R. Vandenberg on 5 June 2012,[38] who states in part:

‘Vestibulitis / vestibular symptoms. Onset start April 2012 whilst deployed in HQ in Uruzgan Province in Afghanistan, and first reported to medical staff on 11 April 12.

…

-    did not resolve after four weeks of medical treatment, and was medically evacuated to Australia on 11 May 12.

-    …

-    upon RTA… Had MRI brain 14 May 12 (totally normal) and been examined and assessed by Neurologist Dr Amanda Gilligan and ENT (who specialises in vestibular disorders). Clinically, her balance was normal with no abnormalities. No nystagmus, Rhomberg’s negative, hearing normal, no inner ear disease.

-    both suspected either viral vestibulitis or “migraine phenomenon” associated with sleep deprivation and dehydration in Afghanistan…

-    patient is well with no vestibular symptoms at all.

-    both specialists supported her return to full duties and…return to Afghanistan.’

[38] Ibid 44-48.

SGT Macdonald re-deployed to Afghanistan and completed her tour of duty. Her deployment ended on 17 October 2012 and she submitted her Claim for Liability and/or Reassessment of Compensation on 18 October 2012. In response to a request for information regarding an appropriate diagnosis for the claim,[39] Department of Veterans’ Affairs Medical Officer, Dr Felix Sedal, opined on 6 March 2013:

‘Of the two mooted diagnosis (migraine phenomenon and viral vestibulitis/vestibular neuritis), viral vestibulitis is the most probable, given that [the Applicant] has not experienced typical migraine symptoms since 2009, and the described symptoms do fit with a prolonged episode of vestibular neuritis.

…

Vestibular neuritis is not associated with any specific virus that could be related to service, nor is its aetiology entirely clear. There are no other factors related to service that could be considered to have caused or aggravated this condition. In this context, vestibular neuritis should not be considered as service related.’[40]

[39] Ibid 166.

[40] Ibid 187.

I note that Dr Sedal’s reference to no ‘migraine symptoms since 2009’ is inconsistent with SGT Macdonald’s evidence at the hearing that she has only experienced one migraine since the birth of her second child in 2014, but did experience migraines prior to that time.  I note also a Defence Outpatient Clinical Record dated 20 November 2012, which states there was ‘no medical issue’ in the month after SGT Macdonald returned to Australia.[41]

MEDICAL EVIDENCE POST AFGHANISTAN DEPLOYMENT

[41] Ibid 179.

Evidence of Dr Amanda Gilligan

SGT Macdonald returned to see consultant neurologist Dr Amanda Gilligan in 2015, which was approximately three years after her tour of duty in Afghanistan had ended. Seven medical letters by Dr Gilligan were accepted into evidence,[42] key aspects of which follow:

[42] Exhibits A1, A2, A3, A5, A6, and A7.

(a)Letter dated 29 May 2015.[43] In a letter to the VRB, Dr Gilligan recounts the results of her 2012 consultation with SGT Macdonald and notes that ‘viral vestibulitis can persist for a period of weeks, but not for four years.’ She also notes that episodic disequilibrium ‘can be a phenomena (sic) related to migraine, but is not commonly precipitated by head movement without headaches.’ She opined this was ‘suggestive of a primary vestibular cause,’ and that ‘trauma to the right vestibular nerve is possible’ because SGT Macdonald:

[43] Exhibit A3.

‘…is right-handed and generally uses a firearm on her right shoulder.

She has been in close vicinity to rocket attacks during her tour of duty in Afghanistan and also has had episodes where she has felt that there has been significant noise reflected into her right ear from firearms.’

(b)Letter dated 22 July 2015.[44] Dr Gilligan notes that physiotherapy had improved SGT Macdonald’s ‘symptoms and her headaches,’ but:

[44] Exhibit A5.

‘She is ‘still having a headache once a week, lasting 2-3 days with some features of migraine, including photophobia and visual haziness as well as dizziness…She has previously tried propranolol without any clear effect while she was overseas but when she was on overseas duty there was quite significant sleep disturbance dehydration and irregular meals which can often contribute to poor control of migraine.’

This 32-year-old lady has disequilibrium, most likely secondary to complex migraine, exacerbated by her work environment with disabling vertigo at times. There has been symptomatic improvement but she warrants migraine prophylaxis. I have given her a prescription today for propranolol with an increasing dose…’

(c)Letter dated 7 October 2015.[45] Dr Gilligan notes in part:

[45] Exhibit A6.

‘Unfortunately, she still has ongoing headaches. She reports she has had at least 3 mild headaches in the last week and two significant migraines in the last two months, lasting up to 10 hours…She feels that her disequilibrium has improved with the physiotherapy…the disequilibrium now appears to only occur when she is particularly tired.

…

Her symptoms have improved with propranolol but she is still having some ongoing symptoms. For this reason, I have suggested we increase her migraine prophylaxis to 20 mg in the morning and 40 at night and then up to 40 mg twice a day if required. I have given her a prescription for Maxalt for acute migraines and suggested she keep up the monthly physiotherapy and increase her exercise as tolerated.’ 

(d)Letter dated 3 February 2016.[46] Dr Gilligan notes:

[46] Exhibit A7.

‘She still has intermittent episodes of disequilibrium which are often triggered by sleep deprivation or sudden head movements…This lady’s migraine (sic) are well controlled and she has mild intermittent symptoms of disequilibrium which she reasonably controls with lifestyle factors.

I am happy to review her again in six months’ time as required.     

(e)Letter dated 3 August 2016.[47] Dr Gilligan notes:

[47] Exhibit A8.

‘…In recent months, her headaches…increased…to 4-5 episodes per week. She has had infrequent brief episodes of episodic disequilibrium.

…

This lady appears to have had an increase in her migraine headaches and related symptoms. I have suggested we increase the Propranolol to 40 mg twice a day and potentially up to 40 mg the morning and 60 at night or even 60 mg twice a day if tolerated….’

(f)Letter dated 25 April 2017.[48] In response to a letter of instruction from SGT Macdonald’s solicitor, Dr Gilligan writes in part:

[48] Exhibit A1.

‘She reports that she is right-handed and has fired firearms from her right shoulder and had been in close vicinity to explosions…

…

Exposure to loud noises such as explosions and firing of equipment (sic), can cause damage to the vestibulocochlear nerve. It is possible that she has suffered damage to this nerve in the setting of her Armed Service in Afghanistan. The symptoms were not present prior to her tour in Afghanistan and have been present since her return to Melbourne and episodically have been more severe.’

…

In my medical opinion, Cherie Macdonald has suffered damage to her vestibulocochlear nerves, resulting in persistent disequilibrium which causes ongoing symptoms and impacted on her capacity to drive and work.’

(g)Letter dated 31 October 2017.[49] In response to a further letter of instruction from SGT Macdonald’s solicitor,[50] Dr Gilligan expresses disagreement with Associate Professor Chambers’ diagnosis of cervicogenic dizziness. Her letter states in part:

[49] Exhibit A2.

[50] Exhibit A9.

‘She has had ongoing symptoms of disequilibrium, which, in my opinion, are potentially due to trauma during her tour in Afghanistan….During her time in Afghanistan she reports that she was exposed, on several occasions to loud explosions. She is right-handed and handles firearms with her right arm, on her right shoulder.

…

…I initially thought she may have had an episode of vestibular neuronitis but, she also had a past history of migraine. Vertigo and disequilibrium can be a symptom of migraine. Sleep changes and dehydration while living in Afghanistan, could have provided an environment to exacerbate migraine and migraine phenomena.

She has had migraine headaches in the past and they have now been well controlled with medication. These migraine have not been temporarily associated with vestibular symptoms. Her disequilibrium has persisted after her migraine headaches had settled so the symptoms are less likely to be vestibular migraine. The causes of disequilibrium are many and varied and it is clear that she does not have viral neuronitis or BPPV.

She was last seen in August 2016, at which stage, I increased her propranolol as she had had more frequent headaches. She still had episodic disequilibrium, which can impact on daily activities. Most patients with chronic disequilibrium develop neck pain, and she had a survival MRI scan in 2016, to exclude other potential causes for her neck pain. Cervical pain was not a prominent feature of her initial presentation.

…

…Cherie Macdonald has had extensive vestibular physiotherapy without significant improvement in her symptoms overall. The diagnosis of cervicogenic disequilibrium is a clinical diagnosis with no absolute test that can confirm it. I’m not convinced that this is her primary diagnosis.

…

It is possible that her symptoms relate to potential barotrauma. Although she has no severe hearing loss and only subtle abnormalities on her vestibular function testing, she also has subtle abnormalities on physical examination as documented by associate Professor Brian Chambers. This included abnormalities of her smooth visual pursuit and vestibular occular reflex suppression test, consistent with right-sided mild vestibular dysfunction and consistent with ongoing symptoms.

I would support that the ongoing symptoms of disequilibrium are a result of potential trauma during her active service for the army.

1. In her oral evidence to the Tribunal, Dr Gilligan noted that SGT Macdonald’s symptoms persisted for approximately three years after returning to Australia, as a result of which SGT Macdonald was referred back to Dr Gilligan for further assessment and management in 2015. At that time Dr Gilligan says she ruled out viral vestibulitis on the basis that this condition normally settles within weeks or months, whereas SGT Macdonald’s symptoms had persisted for much longer. She also ruled out migraine phenomenon, because SGT Macdonald’s ‘ongoing daily symptoms of disequilibrium and unbalance’ were not resolved by migraine medication and continued after her migraines had settled.

2. Dr Gilligan agreed that migraines can produce focal neurological symptoms and problems with balance, but stated that SGT Macdonald’s migraines ‘appeared to be well-controlled…so this seemed to be two different issues.’ She submitted that SGT Macdonald’s dizziness preceded her neck pain, and considered the neck pain may have actually been caused by her disequilibrium. The mechanism, she opined, resulted from disequilibrium causing a person to feel like they were falling over, thereby causing them to develop a rigid posture with attendant neck spasm.

3. Dr Gilligan said she referred SGT Macdonald to physiotherapist Ann Woodward in May 2015 for assessment and treatment. I note in this regard physiotherapy records from Ms Woodward comprising five sessions between 21 May 2015 and 13 November 2015.[51] Following their initial consultation on 21 May 2015, Ms Woodward noted a diagnosis of:

   ?Vestibular Migraine

   
   

   ?Cervico-genic dizziness or Vest. Hypofunction[52]

   [51] Exhibit R2.

   [52] Ibid p.3.

4. In relation to headaches, Ms Woodward records the following history from SGT Macdonald: ‘…can get tunnel vision - nausea at end of n/a with these current diseq. episodes.’[53]  Dr Gilligan stated that while there was an improvement in SGT Macdonald’s neck pain in response to this physiotherapy, her ‘disequilibrium didn’t settle.’

   [53] Ibid p.4.

5. Dr Gilligan maintained it was ‘possible’ that SGT Macdonald suffered some damage to her vestibular nerve during her service in Afghanistan, because she had been in the vicinity of loud explosions and had fired her weapon from her right shoulder. Dr Gilligan agreed, however, that she had no specific details in relation to such explosions, including factors like type, volume and proximity. She had relied in this regard on SGT Macdonald’s references to repeated right-handed firing of her rifle and exposure to ‘incidents in Afghanistan that were loud and forceful.’ When it was pointed out that SGT Macdonald was not claiming her condition was contributed to by firing a rifle from her right shoulder, because hearing protection was always provided, Dr Gilligan stated: ‘If that’s her documented evidence I would accept her documented evidence.’ When it was pointed out that SGT Macdonald’s evidence at the hearing regarding the rocket incident was that it was more of a thud-like sound and vibration, rather than an explosive noise event, Dr Gillian agreed that sound-induced vestibular damage was unlikely to have occurred from such an acoustic event. Importantly, when asked how soon someone would seek medical assistance if they had been exposed to noise of sufficient intensity to cause vestibular damage, Dr Gilligan said the disabling symptoms would occur ‘in close proximity’ to the noise-induced trauma – ‘usually within 24 hours to 2 days’ and would likely be accompanied by hearing loss.

6. Dr Gilligan maintained that although SGT Macdonald had a history of migraine, she had reported not previously experienced disequilibrium-type symptoms before going to Afghanistan. She said that her diagnosis in relation to SGT Macdonald had changed over time in light of persistent symptoms and considered it possible that she had suffered some specific barotrauma or vestibular nerve damage. Dr Gilligan noted, however, that ‘you would expect some hearing loss in conjunction with this.’  She agreed there was no reference to any specific, damaging loud noises during her 2012 consultation with SGT Macdonald, stating that it was only when she recommenced treating SGT Macdonald three years later in 2015, that they ‘discussed significant barotrauma because her symptoms had not resolved,’ and it was only then that she ‘entertained other causes.’

7. In relation to Associate Professor Chambers’ report, Dr Gilligan disagreed with his diagnosis of cervicogenic dizziness, because it usually arose from a neck injury first. She said cervicogenic dizziness was not a ‘continuous disabling condition,’ which is what SGT Macdonald exhibited. She described cervicogenic dizziness as ‘generally a default diagnosis when no other cause is found.’

8. During cross-examination, Dr Gilligan agreed she had not seen Dr Redhead’s report, nor had she reviewed SGT Macdonald’s service medical records, which had been provided to her by the Applicant’s solicitor. When asked about a possible association of migraine with SGT Macdonald’s disequilibrium, Dr Gilligan stated there was a possibility in 2012 that it could have been migraine phenomenon, but migraine ‘didn’t explain all of the dizziness.’ She maintained that SGT Macdonald ‘developed severe disequilibrium that never settled.’ When referred to her own notes from 2012, in which she supported SGT Macdonald’s return to Afghanistan on the basis that her medical condition was completely normal, Dr Gilligan maintained that the Applicant’s disequilibrium symptoms had never completely resolved. When asked to comment on the June 2012 MECR, which reported ‘patient is well with no vestibular symptoms at all,’[54] Dr Gilligan cavilled with the results, stating: ‘a general practitioner may not do specific tests.’ When asked if she accepted there were no symptoms of vestibular dysfunction shown in this medical report, Dr Gilligan stated: ‘I cannot tell you about this person’s qualifications and on face value I can’t say this is absolutely the truth.’

   [54] Exhibit R1, p.46.

9. Dr Gilligan also did not accept that Sport & Interventional Pain Physician, Dr Neels Du Toit, had been treating SGT Macdonald for neck problems. She stated there was ‘not strong objective evidence of cervical fact joint dysfunction’ and did not agree SGT Macdonald had ‘facet joint disease.’ I note in this regard the references to neck problems in SGT Macdonald’s service medical records, which Dr Gilligan did not review, and correspondence from Dr Du Toit on 31 May 2017,[55] which states in part:

   ‘Cherie Macdonald presented to me with persistent left shoulder and left lower cervical pain. It is my opinion that the majority of her pain is coming from the left lower cervical facet joints.’

   [55] Exhibit R3.

10. I note the results of an MRI undertaken on 4 August 2016 of SGT Macdonald’s cervical spine, which reported): ‘Minor broad-based posterior disc bulge at C5/6.’ I further note an operation report from Dr Du Toit dated 3 August 2017 regarding medial branch blocks to the left C4-7 levels of SGT Macdonald’s cervical spine. It is therefore difficult to understand the basis of Dr Gilligan’s unwillingness to accept that SGT Macdonald had received treatment for what appears to have been persistent neck problems.

11. Dr Gilligan also cavilled with the results of audiology testing conducted at her request in June 2015, which were approved by Dr Luke Chen.[56] These results reported SGT Macdonald’s hearing and vestibular function tests as normal, and rotational chair tests that were ‘unlikely to be of clinical significance,’ Dr Gilligan insisted this did not tell the whole story and there was no ‘absolute test…unless you could see structural abnormality’- and that could only be undertaken post mortem.  Dr Gilligan stated that SGT Macdonald was ‘a very credible witness’ and that she had relied on the subjective information provided by SGT Macdonald about exposure to explosive incidents in Afghanistan in reaching her diagnosis, in addition to test results and their previous consultation in 2012.

    [56] Exhibit A4.

    Evidence of Associate Professor Brian Chambers

12. A report by Associate Professor Chambers was accepted into evidence, which states in part: [57]

    [57] Exhibit R7.

    ‘From about 2014 she has had recurring problems with her neck particularly tightness in the left posterior cervical region and pain radiating down the left upper limb…

    Ms Macdonald has a history of migraine headaches that commenced around the age of 11 or 12… Interestingly, she has been migraine-free since the birth of the second child three years ago. She is not sure whether the improvement is due to changes in hormonal status or to taking propranolol as prescribed by Dr Gilligan.

    …

    She had a full range of cervical spine movement. However, palpation of the neck revealed bilateral upper cervical stiffness and tenderness worse on the left than the right.

    I performed a detailed neuro-otological examination. Clinically her hearing was normal. There was no nystagmus at rest or triggered by Hallpike testing. She had mildly broken ocular pursuit but normal saccadic movements. The VOR suppression test revealed saccadic intrusions as she swung to the right consistent with the mild level of pursuit deficit. The head impulse test revealed equal and opposite eye movements consistent with normal vestibulo-ocular reflex function. She had excellent balance and could maintain her balance walking heel-to-toe. Romberg’s test was negative…

    There were no other relevant neurological findings.

    INVESTIGATIONS

    MRI – Brain (3 June 2015): Normal

    MRI – Cervical Spine (4 August 2016): Minor broad-based posterior disc bulge at C5/6. No spinal cord or nerve root compression.

    Auditory and Vestibular Function Tests (24 June 2015): Hearing is within normal limits bilaterally. Rotational chair asymmetry unlikely to be of clinical significance. All other vestibular function tests are normal.

    …

    She most likely suffers from cervicogenic dizziness. This is a relatively common, but often overlooked cause of recurring dizziness. It may or may not be associated with symptoms of neck injury. The underlying cause is thought to be due to cervical facet joint dysfunction. Cervical facet joints are richly innovated with sensory endings that project to the vestibular system.

    I do not think her symptoms are compatible with vestibular migraine nor with vestibular neuritis. Similarly, I think it is unlikely she suffered significant barotrauma given the normal results of auditory and vestibular testing.

    I do not believe she suffers from vestibulocochlear nerve barotrauma or other injury since there is no history of any significant blast exposure and no evidence on auditoria and vestibular testing of dysfunction.

    …

    As discussed earlier in my report I believe it is most likely she is suffering from cervicogenic dizziness due to upper cervical spine dysfunction…

13. In his oral evidence, Associate Professor Chambers referred to SGT Macdonald’s service medical records as reflecting ‘frequent visits, predominantly for left-sided neck issues and shoulder problems.’ He pointed out that SGT Macdonald’s hearing tests had consistently been ‘perfectly normal.’ In relation to the reference to tinnitus in the 2017 audiology results,[58] Associate Professor Chambers said SGT Macdonald had not given him a history of tinnitus and he had not seen such a reference in ‘any other reports or records.’ In any event, he said that there is no test for tinnitus, which could have a number of possible causes, but commonly results from hearing loss, which SGT Macdonald did not have.

    [58] Exhibit R5.

14. Associate Professor Chambers stated that in over 30 years of practice, during which he saw patients with vestibular problems at least weekly and at times daily, those ‘with non-specific dizziness were commonly associated with headaches and neck pain, but not always.’ He said cervicogenic dizziness could arise abruptly, consistent with SGT Macdonald’s presentation in Afghanistan. He noted from the available medical evidence that SGT Macdonald has had a lot of neck management and physiotherapy, requiring branch blocks and ablation. In particular, the reports of Dr Du Toit[59] and her service medical records reinforced his opinion that SGT Macdonald suffers from cervicogenic dizziness. He agreed with Dr Gilligan that SGT Macdonald was not suffering vestibular migraine or vestibular neuritis.

    [59] Exhibit R3.

15. In relation to the June 2015 audiology report, Associate Professor Chambers agreed with Dr Chen, that any asymmetries noted ‘did not reach the threshold for clinical significance and should be regarded as normal.’ Associate Professor Chambers noted that acoustic trauma generally affects hearing and he could not find anything in the available literature within his specialisation to support the proposition that vestibulocochlear nerve damage could occur without attendant hearing damage. He said if acoustic trauma had occurred as contended, that would be accompanied by symptoms like ringing in the ears, hearing loss and significant pain. These symptoms would occur immediately and would be evident on examination. In SGT Macdonald’s case, however, her hearing was normal and there was no evidence of damage to her ear drum. He noted that an audiology assessment in November 2017[60] was ‘perfectly normal across the hearing range,’ whereas people with noise-induced hearing loss hear less of higher frequencies in particular.  He said SGT Macdonald’s speech discrimination was normal for both standard speech and softer speech.

    [60] Exhibit R5.

16. In relation to SGT Macdonald’s neck, Associate Professor Chambers submitted that the postural problem he identified during his examination with SGT Macdonald predisposed her to chronic neck problems. He states, however, that tests for postural vertigo (Hallpike testing), to detect the presence of crystals formed in the inner ear, have been consistently negative in SGT Macdonald’s medical records and were also negative during his consultation with her. He said postural vertigo is one of the most common causes of vertigo and is easily treated. Associate Professor Chambers also pointed out that the Romberg’s Test he conducted, which is used to investigate the cause of loss of motor coordination, was also negative. He noted that SGT Macdonald had excellent balance, which he did not consider would be the case for someone who had vestibular or inner ear dysfunction.

17. During cross-examination, Associate Professor Chambers said some patients can have vertigo episodes without headaches and in SGT Macdonald’s case she had a good response to the propranolol prescribed for her migraines, but to no effect in relation to her dizziness.  In response to Dr Gilligan’s submission that there was no test for cervicogenic dizziness, Associate Professor Chambers disagreed, stating that commonly, the x-rays of sufferers were normal, but a lateral view of the neck showed a straightening of the cervical lordosis, which often reflected muscle spasm caused by neck pain. He said it was clear from SGT Macdonald’s medical records that the facet joint injections / branch blocks she had received supported his diagnosis of cervicogenic dizziness, as did her response to neck physiotherapy. His ‘strong clinical suspicion’ was further supported by his review of Ms Woodward’s physiotherapy reports and his examination of SGT Macdonald’s neck facet joints.

18. In response to the proposition that neck pain usually preceded cervicogenic dizziness, Associate Professor Chambers stated that ‘neck pain could precede dizziness and vice versa.’ In response to Dr Gilligan’s contention that SGT Macdonald’s neck pain could have been caused by her vestibular dysfunction, Associate Professor Chambers stated: ‘I don’t hold that view.’ He considered that when first presenting for treatment of her symptoms in 2012, SGT Macdonald could have been experiencing vestibular migraine, but subsequently suffered from a different condition. He also noted Ms Woodward’s assessment that there had been a 95% improvement in SGT Macdonald’s symptomology at the time of discharge from physiotherapy in 2015. He said that relapses were common if the underlying causes, like stress and postural abnormalities, were not addressed. He described a hierarchy of treatment options, extending into medication, facet joint injections under ultrasound guidance, and surgery. Associate Professor Chambers submitted that in his experience, approximately 75% of patients responded to neck physiotherapy, while 25% required additional treatment of some sort. He considered the possibility of SGT Macdonald suffering dysfunction of her vestibulocochlear nerve without any evidence of nerve injury as ‘a remote possibility.’ Associate Professor Chambers considered SGT Macdonald’s vestibular system to be normal.

19. Associate Professor Chambers did not agree with Dr Gilligan’s concerns that the 2015 audiology results, taken together with SGT Macdonald’s history, were suggestive of damage to vestibulocochlear nerves. He contended that ‘thresholds were not reached [in the audiology testing] for a clinically-significant result,’ and that other factors that could have impacted the results, including the patient’s cooperation, tiredness, and any medication they might be taking.

20. Associate Professor Chambers said he did not share Dr Gilligan’s concerns about the audiology testing performed on SGT Macdonald, stating it was standard practice for an audiologist to perform the tests and for an Oto-Neurologist to interpret the results. He also did not share Dr Gilligan’s concerns about some references in the medical history taken by non-specialists, stating that such a history did not need to be taken by a specialist.

21. Associate Professor Chambers contended that SGT Macdonald’s presentation was inconsistent with noise-induced vestibular damage, which ‘would have come on immediately.’ He said the symptoms from such an event would have been disabling and necessitated immediate medical attention, whereas SGT Macdonald’s presentation for medical treatment was some weeks after the acoustic trauma she relies upon.

    Service Medical Records

22. I have had regard for a substantial quantity of service medical records tendered during the hearing. These were predominantly contained in the T-documents and Exhibit R3 and R4.

    Audiology Results

23. SGT Macdonald’s hearing results from her presentation at the Tarin Kowt RAP until November 2017 have been consistently normal. Most recently, she was referred for audiology assessment on 3 November 2017. A report from City Hearing Audiology Services on the same day[61] states in part:

    ‘Cherie reported that during her service with the ADF, which includes active service overseas, she has been exposed to frequent episodes of high level noise and has been diligent with her use of personal hearing protection where practicable...She also reported an episode whilst serving in Afghanistan, where she was subjected to a bomb blast accidentally whilst walking through a controlled explosion area. Since this event she reported loud, continuous tinnitus bilaterally and frequent, ongoing episodes of vertigo…

    Otoscopy revealed clear external auditory ear canals and healthy looking tympanic membranes. Impedance tympanometry results are normal bilaterally, indicating normal middle ear function and status. Pure tone audiometry...shows normal hearing levels bilaterally...Cherie's measured speech discrimination performance is normal in both ears, for speech at both the normal conversational level...and softer speech level...

    (emphasis added)

    [61] Exhibit R5.

24. The reference to frequent exposure to ‘high level noise’ and a ‘bomb blast’ in this report is not supported by the evidence before me, including that of SGT Macdonald herself. The reference to ‘loud, continuous tinnitus bilaterally and frequent, ongoing episodes of vertigo…’ is also not supported by the evidence. Moreover, I note there is a dearth of references to tinnitus in the evidence before me, including in the reports of Dr Gilligan or Associate Professor Chambers. Had SGT Macdonald suffered loud, continuous tinnitus bilaterally as a consequence of the simulator incident, I consider it more probable than not, that she would have reported this and sought medical assistance more proximate to the acoustic event she relies upon.

    Other Evidence

1. On 15 March 2018 I adjourned the hearing in order for the Respondent to seek instructions on whether there was any evidence from official records regarding a rocket incident occurring at Tarin Kowt Base in Afghanistan, as referred to by SGT Macdonald in her statement and during oral evidence.[62] The Respondent provided a response to the Tribunal and Applicant on 19 April 2018.

   [62] Exhibit R1, 217.

2. The Applicant was afforded an opportunity to respond and did so on 3 May 2018. This response encompassed an objection to the Tribunal considering the information submitted by the Respondent, unless its author was made available for cross-examination. In light of the Applicant’s objection, the Respondent advised the Tribunal on 15 May 2018 that it no longer sought to rely on the information provided.

3. In relation to this additional material, I note that SGT Macdonald does not attribute her claimed condition to have arisen from exposure to a rocket attack during her deployment, so any information relating to any such attack is not considered further. The information provided by the Respondent and Applicant during the adjournment was not taken into evidence and no weight is placed on it.

   CONSIDERATION

4. A number of inconsistencies in SGT Macdonald’s oral evidence were raised during the hearing. For example, her contention that she was returned to Afghanistan, despite telling medical staff that symptoms causing her repatriation from Afghanistan only a few weeks earlier had persisted, is unsupported by the evidence. To the contrary. Within a few weeks of returning to Australia and after consultations with a general practitioner, consultant neurologist, ENT specialist, MRI, blood and hearing tests, SGT Macdonald was clinically assessed as normal. In considering the results of those comprehensive tests, Defence’s MECR process found her to be fully fit to return to Afghanistan and complete her tour.

5. SGT Macdonald’s description of the noise from the rocket incident in her written statement as ‘loud,’ but ‘dulled…to an extent’ because she was inside a shipping container, was inconsistent with her oral evidence. During the hearing she stated that she felt the explosion from the rocket incident as more of a thud and vibration, rather than a noise that might be considered loudly explosive in nature. In that respect, use of the rocket incident as a benchmark for the ‘much louder’ simulator incident is of little use in determining how much louder the noise from the simulator incident may have been.

6. SGT Macdonald’s claim that she has only suffered one migraine since the birth of her second child in 2014, is clearly erroneous given the frequent references to her experiencing migraines after that time in the medical evidence. This is irrespective of her contention that she only considered migraines as occurring on occasions when she required hospitalization. Moreover, the 2017 reference in the City Hearing Report to her exposure to a ‘bomb blast’ and ‘loud continuous tinnitus bilaterally,’ is similarly unsupported by other evidence– including in the reports of the two specialists who gave appeared at the hearing. The VRB’s reference to SGT Macdonald firing with others from inside a vehicle in Afghanistan without hearing protection, is, on her own evidence, also erroneous. Notwithstanding the submission of SGT Macdonald’s counsel that inconsistencies in her evidence and a failure to recall a number of details of her medical history were inevitable given the passage of time and the number of medical appointments undertaken over the years, I remain troubled by the issues noted above.

7. In relation to Dr Gilligan’s oral evidence, I am concerned that she had not reviewed SGT Macdonald’s service medical records, which accompanied the Letter of Instruction from the Applicant’s solicitor.[63] When asked why, Dr Gilligan said that after advising the Applicant’s solicitor that review of these documents would incur a higher fee for her services, she claims to have been instructed to provide her expert opinion without reference to the service medical records. Dr Gilligan also confirmed at the hearing that she had not seen Dr Redhead’s 2012 report, or the reports of treating Defence physicians relating to SGT Macdonald’s return from Afghanistan.

   [63] Exhibits A10 and A11.

8. Dr Gilligan’s medical letters did not comply with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence. The Letters of Instruction from the Applicant’s solicitor did not refer to the Guideline, nor did Dr Gilligan acknowledge her overriding duty to provide impartial assistance to the Tribunal.[64] One letter of instruction to Dr Gilligan is particularly focussed on the legal basis upon which an injury or disease might be accepted under the Act, including the standard of proof to be applied by the Tribunal and the application of terms like ‘reasonable hypothesis,’ and ‘balance of probabilities.’  By way of example, Dr Gilligan is asked to provide a ‘detailed report and prognosis,’ including:

   1.    …;

   2.    whether you believe that there is a reasonable hypothesis to connect the condition with the circumstances of our client’s war-like service in Afghanistan;

   3.    whether you believe that, on the balance of probabilities, there is a reasonable hypothesis to connect the condition with the circumstances of our client’s defence service…’[65]

   [64] Ibid paragraph 3.1 and 4.5.

   [65] Exhibit A11.

9. Given that Dr Gilligan is medically rather than legally trained, I consider her expertise does not extend to considering terms like ‘reasonable hypothesis’ and ‘balance of probabilities.’ Her opinion in matters like these is best directed to determining the most appropriate diagnosis, any facts and assumptions underlying her conclusions, and the sources of the factual material on which she relies. Unfortunately, the conclusions contained in Dr Gilligan’s medical letters were not fully informed by highly relevant material, including SGT Macdonald’s service medical records. As a consequence, I do not accept Dr Gilligan’s submission that SGT Macdonald had not previously experienced symptoms of disequilibrium before being deployed to Afghanistan. I note, for example, that SGT Macdonald had experienced the following symptoms in the three years prior to her deployment to Afghanistan:

   (a)faintness and dizziness in the context of a migraine in July 2008;[66]

   (b)light-headedness and vertigo in May 2010;[67] and

   (c)persistent dizziness in April 2011.[68]

   [66] Ibid 107.

   [67] Ibid 97.

   [68] Exhibit R1, p.90.

10. Dr Gilligan’s reference to SGT Macdonald experiencing ‘ongoing daily symptoms,’ and that she supported SGT Macdonald’s return to Afghanistan, despite her disequilibrium symptoms ‘having reduced but not resolved,’ is inconsistent with other evidence before me – including that of Dr Gilligan. On 16 May 2012, for example, Dr Gilligan considered that SGT Macdonald had ‘returned to normal’ and ‘was keen to return to active duties…On examination today, neurologically she is completely normal.’ Similarly, SGT Macdonald’s service medical records do not reflect either ‘ongoing’ or ‘daily’ symptoms after her return from Afghanistan. After Dr Gilligan started seeing SGT Macdonald again in 2015, medical letters relating to those consultations refer to the ‘episodic, and at times ‘infrequent’ and ‘brief’ instances of disequilibrium. In October 2015, Dr Gilligan noted that the disequilibrium only occurred when SGT Macdonald was particularly tired. In a letter to Dr Gilligan dated 15 September 2015, physiotherapist Ms Woodward noted the Applicant was ‘about 90% improved by her estimate and is working full time now with only an occasional vertigo symptom. The daily headaches have ceased but there is an occasional migraine.’[69] On 13 November 2015, Ms Woodward noted that SGT Macdonald ‘feels about 95% now.’[70] On 13 November 2015 Ms Woodward released SGT Macdonald from physiotherapy with exercises to complete ‘for her vestibular migraine’ and in the event that she feels her ‘dizziness returning…or escalating.’[71] In February 2016 Dr Gilligan noted SGT Macdonald’s ‘intermittent episodes’ of disequilibrium were triggered by sleep deprivation or sudden head movements. The evidence above is plainly inconsistent with SGT Macdonald’s contention, supported by Dr Gilligan, that symptoms of disequilibrium were present at varying levels of intensity on a continuous basis since she first reported them in Afghanistan in 2012.

    [69] Exhibit R2, p.9.

    [70] Exhibit R2, p.7.

    [71] Exhibit R2, p.10.

11. The evidence regarding SGT Macdonald’s migraines is also inconsistent. The MECR in 2012 noted SGT Macdonald’s claim that she had not required migraine medication since 2008. At the hearing SGT Macdonald contended that note in the MECR was erroneous. On 4 February 2015, the VRB recorded SGT Macdonald’s evidence that she had not experienced migraine symptoms since ‘about 2009.’[72] SGT Macdonald contended at the current hearing, however, that she has experienced only one migraine since the birth of her second child in 2014, but experienced migraines prior to that time. Dr Gilligan states in her letters and oral evidence that SGT Macdonald’s migraine headaches were well controlled by medication. Other evidence, however, suggests that SGT Macdonald’s migraines were not as well-controlled as she and Dr Gilligan contend, and that she continued to experience them after the birth of her second child in 2014:

    (a)In May 2015, Dr Gilligan referred SGT Macdonald to physiotherapist, Ms Woodward, including for treatment relating to headaches. At their initial consultation, Ms Woodward noted that SGT Macdonald’s headaches at times resulted in tunnel vision and nausea;

    (b)In July 2015 SGT Macdonald was reported as having a headache once per week lasting 2-3 days with symptoms of photophobia, visual haziness and dizziness. As a consequence, her prescription for propranolol was increased. Physiotherapist Ms Woodward noted on 30 July 2015, that she treated SGT Macdonald for vestibular migraine after ‘2 headaches in past 2/52.’ A further migraine was noted by Ms Woodward on 11 September 2015;

    (c)In October 2015 SGT Macdonald was reported to have experienced three mild headaches in the previous week and ‘two significant migraines in the last two months, lasting up to 10 hours.’ Her migraine prophylaxis was again increased and a prescription for Maxalt was provided ‘for acute migraines.’

    (d)Although Dr Gilligan noted in February 2016 that SGT Macdonald’s migraines were well-controlled, following a review in August 2016, she noted that the migraine headaches had again increased and a further increase in migraine-related medication was prescribed.

    [72] Exhibit R1, p.204.

12. From July 2015 until their last consultation in August 2016[73], Dr Gilligan considered it necessary to increase SGT Macdonald’s migraine medication on three occasions. This evidence demonstrates that her migraines were a recurrent problem.

    [73] Exhibit A2.

13. Dr Gilligan’s submission that SGT Macdonald’s neck pain only emerged after her disequilibrium, and that her neck pain may in fact have resulted as a consequence of her disequilibrium, was again proffered without reference to SGT Macdonald’s service medical records. These disclose, for example, that SGT Macdonald suffered neck pain and stiffness in November 2010[74], and neck pain immediately preceding a migraine in December 2009.[75] When counsel for the Respondent asked SGT Macdonald questions about seven physiotherapy treatments she had received in November 2010[76] for the treatment of cervical neck pain, she responded ‘I can’t recall.’ It is clear from the available evidence, however, that SGT Macdonald experienced episodic neck pain for a number of years prior to her deployment to Afghanistan.

    [74] Exhibit R1, p.19.

    [75] Exhibit R1, p.102. This medical record notes that SGT Macdonald’s migraine was preceded by neck pain.

    [76] Exhibit R4.

14. Dr Gilligan’s submission that notwithstanding an improvement in SGT Macdonald’s neck pain following physiotherapy, her ‘disequilibrium didn’t settle,’ is inconsistent with the available evidence. On 16 July 2015, Ms Woodward wrote to Dr Gilligan reporting pleasing progress after four sessions, ‘with decreased number and severity of episodes and no headaches. She feels she is about 60% improved and has increased her days at work to fulltime now.’[77] Ms Woodward wrote again to Dr Gilligan on 15 September 2015 advising: ‘I am pleased to report that she is about 90% improved by her estimate and is working full time now with only an occasional vertigo symptom.’[78] Ms Woodward wrote again to Dr Gilligan two months later on 13 November 2015, advising that after a combination of vestibular rehabilitation and manual therapy, SGT Macdonald was being discharged from physiotherapy, with:

    ‘A better understanding of the triggers for her vestibular migraine and has home exercise to complete should she feel that dizziness is returning or that her episodes are escalating.[79]

    [77] Exhibit R2, p.8.

    [78] Ibid 9.

    [79] Ibid 10.

15. The evidence confirms that SGT Macdonald’s symptoms settled completely after her initial return from Afghanistan in 2012, to the point where she was clinically assessed as normal and able to resume her deployment within a number of weeks. There is a dearth of evidence pointing to continuing symptoms of disequilibrium after SGT Macdonald’s return to Afghanistan, or after she completed her tour of Afghanistan in 2012, or in the approximately three year period before she resumed her consultations with Dr Gilligan in 2015. Moreover, the evidence shows that any disequilibrium symptoms she may have been experiencing in 2015 improved significantly in response to physiotherapy, enabling her to return to full time work.

16. Dr Gilligan’s letter dated 25 April 2017 proffers a diagnosis that seeks to connect SGT Macdonald’s disequilibrium symptoms with her Afghanistan service in a highly speculative way and, for the reasons adduced earlier, without reference to highly relevant information like SGT Macdonald’s service medical records. The very general statement ‘exposure to loud noises such as explosions and firing of equipment (sic) can cause damage to the vestibulocochlear nerve,’ is applied to SGT Macdonald’s circumstances without reference to the specific nature and circumstances of an acoustic incident that might cause such damage. Moreover, it does not reflect SGT Macdonald’s own evidence that she wore hearing protection on ranges and that her claim relies exclusively on the acoustic effect of the claimed simulator incident.

17. The certainty underlying Dr Gilligan’s contention that SGT Macdonald’s ‘symptoms were not present prior to her tour in Afghanistan and have been present since,’ is difficult to understand, given that Dr Gilligan did not examine SGT Macdonald between their last consultation in 2012 and when she next examined her some three years later in 2015. Dr Gilligan, on her own evidence, also did not have regard for SGT Macdonald’s service medical documents, so the basis of her knowledge of any symptomology during the intervening period is entirely reliant on the history she took from SGT Macdonald. 

18. The discrepancies and irregularities noted above raise some concerns in weighing and considering the value of Dr Gilligan’s evidence and the findings she makes. At the hearing, attempts were made to reconcile areas of concern with Dr Gilligan, whose responses were at times imprecise and overly reliant on speculation. Her linkage of vestibulocochlear nerve damage arising from acoustic trauma in Afghanistan rises to no more than a possibility. It is a possibility diminished by Dr Gilligan’s own evidence that  exposure to noise of sufficient intensity to cause vestibular damage, would cause disabling symptoms ‘in close proximity’ to the noise-induced trauma – ‘usually within 24 hours to 2 days’ and would likely be accompanied by hearing loss. This is entirely inconsistent with SGT Macdonald’s presentation in Afghanistan and the repeated findings of normal hearing.

19. I was at times left with the impression that Dr Gilligan appeared as an advocate for the Applicant and was not satisfied that her answers resolved my concerns. I am therefore unable to confidently rely on her analysis and conclusions in this matter and have decided to afford Dr Gilligan’s evidence less weight overall.

20. Although both specialists at the hearing have relevant expertise, I note that Associate Professor Chambers’ report complied with the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence (the Guideline),[80] while Dr Gilligan’s did not. Associate Professor Chambers’ clinical interests, encompassing some 30 years of experience, focus particularly on vestibular disorders and he sees patients with such complaints on at least a weekly and at times daily basis. Dr Gilligan’s areas of interest focus predominantly on stroke, Parkinson’s disease, epilepsy and general neurology. Associate Professor Chambers also reviewed SGT Macdonald’s service medical records in compiling his report and in providing his oral evidence. Dr Gilligan’s conclusions are uninformed by SGT Macdonald’s service medical records. Associate Professor Chambers dealt with questions at the hearing in a detailed and forthright way, clearly reflecting the overriding duty expert medical witnesses have to provide impartial assistance to the Tribunal. That said, Associate Professor Chambers’ evidence about an appropriate diagnosis for SGT Macdonald is also speculative and rises no higher than that of possibility. He assesses that she ‘most likely’ suffers from cervicogenic dizziness, and considers this ‘may or may not’ be associated with symptoms of a neck injury.

    [80] See: condition is SGT Macdonald suffering from?

21. Both specialists agree that a patient with noise-induced vestibulocochlear nerve damage would need to present for medical treatment in close proximity to the event causing such damage. Associate Professor Chambers considers that symptoms like ringing in the ears and pain would require immediate medical assistance. Dr Gilligan considers a medical presentation would be required within 24-48 hours. Both specialists also agreed that the main symptom of such damage would be hearing loss. SGT Macdonald’s presentation in Afghanistan is entirely inconsistent with such indicators of vestibulocochlear nerve injury. Moreover, her hearing tests and vestibular function tests have been consistently normal since she initially presented at the Tarin Kowt RAP in April 2012.

22. In her compensation claim she attributed her disequilibrium symptoms to ‘lack of sleep [and a] stressful environment’ – not to the sort of acute presentation indicative of noise-induced vestibulocochlear nerve damage. She presented to the RAP in Afghanistan some three weeks after the claimed simulator incident, where Dr Sayce recorded her symptoms as a feeling like she had gotten off a boat for the first time, but without spinning, falling down, or tinnitus, or nausea, or dizziness associated with postural changes.  At the hearing SGT Macdonald described the onset of her symptoms in Afghanistan as ‘not feeling right,’ and a lack of energy. There is no reference in any of the service medical records to an initiating cause for SGT Macdonald’s symptoms, or the sort of presentation that both specialists said would have followed an acoustic event of sufficient intensity to cause vestibulocochlear nerve damage. On her repatriation to Australia, SGT Macdonald’s MRI, audiology tests, blood tests, hearing tests and neurological examinations were normal. Within a few weeks, SGT Macdonald was deemed by a consultant neurologist, ENT specialist and Defence’s MECR process as ‘normal’ and fit to return to Afghanistan and complete her tour. She then undertook a two-week holiday in Europe and returned to Australia to continue her military career, which continues to the present day. It was some three years after her tour of Afghanistan had ended, that she claims to have made the connexion between the simulator incident and her symptoms, after undertaking an internet search and discussing her thoughts with Dr Gilligan.

1. I note in passing the correlation between SGT Macdonald’s claimed symptoms of disequilibrium as occurring during tiring, stressful periods in her life. This includes the early days of her Afghanistan deployment and following the birth of her second child.[81] During her oral evidence, SGT Macdonald said she best coped with disequilibrium symptoms after returning to Afghanistan by having ‘regular sleeps to keep going.’ The evidence shows her symptoms also increased in frequency and severity after her second child in 2014, finding they were exacerbated by a lack of sleep and neck pain. This caused her to seek a further referral to Dr Gilligan in 2015. On 13 August 2015, Ms Woodward noted that SGT Macdonald was ‘aware that fatigue can precipitate symptoms as in dizziness.’ Dr Gilligan noted in her letter dated 7 October 2015 that SGT Macdonald only experienced symptoms when she was particularly tired. On 13 November 2015 Ms Woodward noted that SGT Macdonald had experienced an increase in symptoms with increased fatigue. In her 31 October 2017 letter, Dr Gilligan pointed to changes in SGT Macdonald’s sleeping patterns in Afghanistan as conducive to exacerbating her migraines and migraine phenomenon.

   [81] Ms Ann Woodward’s 2015 report states that ‘symptoms present during pregnancy,’ which caused SGT Macdonald to work three days a week on voluntary leave without pay. On that occasion, Ms Woodward queried cervicogenic dizziness or vestibular migraine, or vestibular hypofunction as potential diagnoses.

2. I am unconvinced on the available evidence that the interaction between SGT Macdonald’s migraines and other frequent headaches, in the context of particularly stressful and tiring situations, has been sufficiently explored to entirely discount a diagnosis like vestibular migraine. That is of course a matter for medical specialists, who are unable to agree on what might be causing the symptoms SGT Macdonald contends she suffers from. I simply highlight that the evidence before me at times points to a range of possible causes, encompassing migraine, viral infection, stress and fatigue, and postural abnormality linked to SGT Macdonald’s neck condition.

   CONCLUSION

3. I am reasonably satisfied that SGT Macdonald did not suffer a noise-induced vestibulocochlear injury from the simulator incident or any other acoustic incident during her tour of Afghanistan, of sufficient intensity to cause such an injury. If she had, it would have been almost immediately apparent to her and to treating physicians, rather than being determined as a diagnosis of exclusion some three years after her Afghanistan deployment had ended. It is more probable than not that her initial clinical presentation would have established a link between an acoustic event of sufficient intensity to damage her vestibulocochlear nerve, rather than a more general presentation of ‘not feeling right,’ having ‘a lack of energy and feeling drained,’ and then attributing these symptoms at the conclusion of her tour of Afghanistan to a ‘lack of sleep, stressful environment.’ The evidence shows that SGT Macdonald’s initial symptoms were progressive rather than acute in nature, worsening approximately a week prior to her medical repatriation to Australia. Her hearing has been assessed as consistently normal over time. Moreover, SGT Macdonald’s rapid recovery and medical clearance for return to Afghanistan after extensive medical tests in Australia, is plainly inconsistent with someone who had suffered acoustic trauma sufficient to cause vestibulocochlear nerve damage.

4. It is not possible to determine from the available evidence, which diagnosis might best explain the symptoms SGT Macdonald says she continues to experience, or whether a viral cause, or migraines, or stress and fatigue, or a postural abnormality associated with her neck, or another cause underlies these symptoms. In any event, as a result of my finding above, it follows that SGT Macdonald has not suffered a service injury from the simulator incident she relies upon, within the meaning of section 27 of the Act. It is therefore not necessary to proceed to determining whether the condition claimed by SGT Macdonald is a service injury or a service disease.

   DECISION

5. It follows that the decision under review is affirmed

96.     I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 6 June 2018

Dates of hearing:	14 & 15 March 2018
Date of final submissions:	15 May 2018
Advocate for the Applicant:	Mr Mathew Kenneally
Solicitors for the Applicant:	Williams Winter
Advocate for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Australian Government Solicitor