MARCUS QUINLIVAN and REPATRIATION COMMISSION
[2013] AATA 191
[2013] AATA 191
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/1712
Re
MARCUS QUINLIVAN
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 3 April 2013 Place Canberra The decision under review is affirmed.
........................................................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION – military compensation – eligible service – visual impairment – congenital glaucoma – macular degeneration – myopia/loss of vision – amblyopia – question of diagnosis – whether service-caused – whether inability to obtain appropriate clinical management.
Legislation
Veterans’ Entitlements Act 1986 (Cth) sections 120(4), 120B and 196B
Statement of Principle No 70 of 2007 Myopia, Hypermetropia and Astigmatism
Statement of Principle No 14 of 2009 Macular Degeneration
Cases
Brew v Repatriation Commission (1999) 94 FCR 80
Brown v Repatriation Commission [2003] FCA 1130
Casarotto v Australian Postal Commission 17 ALD 321
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Johnston v Commonwealth (1982) 150 CLR 331
Martin v Australian Postal Corporation (1999) FCA 655
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Money (2009) 173 FCR 410
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Wedekind [2000] FCA 649
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
3 April 2013
Mr Quinlivan, born October 1921, claimed a disability pension for service-caused loss of vision and aggravated eye defects/diseases. The conditions were later diagnosed as bilateral loss of vision, aggravation of anisometropia, amblyopia, myopia, acquired cataracts in both eyes, and open-angle glaucoma. He has an accepted disability of lumbar spondylosis for which he is receiving pension at 100 per cent of the general rate.
The claim was rejected by the Repatriation Commission (Commission) on 14 March 2008. A review by the Veterans’ Review Board (Board) on 1 March 2010 upheld the decision under review in relation to amblyopia right eye, acquired cataracts, and bilateral open-angle glaucoma. The Board noted that to the extent the claim had covered myopia, astigmatism, anisometropia, and loss of vision left eye, the decision under review was also affirmed.
At the Tribunal hearing, the claimed conditions were confined to macular degeneration, congenital glaucoma, right eye amblyopia (‘lazy eye’, an eye condition which involves otherwise physically normal eyes), and loss of vision in the left eye.
Background
Mr Quinlivan served in Australia in the Australian Army from 5 November 1941 to 30 January 1942, and from 20 November 1942 to 20 July 1943. Accordingly he has eligible war service.
Mr Quinlivan’s father died in July 1936 when Mr Quinlivan was 14 years of age. Mr Quinlivan left school at that point and obtained work in the Post-Master General’s Department (PMG) as a messenger. In 1938 he moved to an administrative position as a junior mechanic at the PMG workshops, a reserved occupation. That meant he was exempt from war service.
Despite that Mr Quinlivan decided to enlist and was released by the PMG to do so. He was rejected by the Royal Australian Air Force (RAAF) in 1942 for ‘medical fitness’ reasons. However, he was accepted by the Australian Army but classified as having ‘B class vision’. Initially he was posted to a Postal Unit, which opposed his allocation because of his eye deficiencies. His substantive posting was to Headquarters (HQ) Salvage Unit Orderly Room.
Mr Quinlivan said that before his assessment by the RAAF in 1941 he had never been to an eye doctor and was unaware of any vision problems. He knew he had a ‘lazy eye’ and his mother had told him sometime after his father’s death that he was lucky not to be blind as he had suffered trauma to the right eye at birth. He had not noticed any problems with his eyes while at school and college. However, in his late teens he said he realised when he was playing cricket that he was not strong on the leg side compared with the cover side.
On enlistment Mr Quinlivan’s vision was assessed on 3 October 1941 as 6/60 (right eye) and 6/6 (left eye) without glasses. At a further medical on 20 November 1942 the notes recorded ‘Right eye v myopic, with high degree of anisometropia (unequal refraction) - correction could not give binocular vision’. On discharge Mr Quinlivan stated on the medical examination form on 19 July 1943 that he had ‘Bad eyes’. The examining medical officer recorded his vision as ‘R 6/60. L 6/12. With glasses R 6/60, L 6/6’. At the time of discharge he was diagnosed with right eye myopia with astigmatism, and amblyopia of the right eye. Amblyopia is an eye condition producing reduced vision that is not correctable by glasses or contact lenses.[1]
[1] Note for file by Dr Maya Kumaran, Medical Adviser, Department of Veterans’ Affairs, 14 March 2008.
Mr Quinlivan said in the HQ Salvage and Recovery Service he was tasked all day with transferring notes on cards into a volume. He said his eyes got sore and strained at that time and he experienced headaches. He said he reported to the sergeant but was advised ‘to get on with [the job]’.
Mr Quinlivan said he sought treatment for his eyes within a few weeks of discharge. The ophthamologist he consulted, Dr JA O’Brien, prescribed glasses. He also began consulting Dr Travers, another Melbourne ophthamologist.
Post service Mr Quinlivan returned to the PMG, Melbourne, but was then promoted in 1950 to a position with the Department of Labour and National Service in Canberra. There he was working in a clerical position and said he noticed his eyes deteriorating from this time. Nonetheless, his service was commendable, including periods in the 1950s and 1960s during which he worked overseas as an Australian expert under the Colombo Plan advising countries in the region about training and assisting in overseas posts.
Mr Quinlivan’s glaucoma was diagnosed in the 1960s and Pilocarpine drops were prescribed to reduce the pressure in the eyes. In about 1970 drops were ceased by Dr Leo Shanahan. However, later, when the pressures began to rise, on the advice of Dr Jenson Wong-See, treatment was re-instituted. Mr Quinlivan had cataracts removed, from the right eye in 2003, and from the left eye in 2005. After the operations his vision improved.
In 1970, when he had attained the level of Director, Class 10, in the Department of Trade and Industry, he was examined for possible invalidity retirement because of his eyes. His conditions were described by the Commonwealth Medical Officer, in a report dated 23 April 1970 as ‘right eye macular degeneration, left eye, myopia and both eyes, glaucoma’. The notes recorded:
Life long history of poor eyesight. Right eye badly injured when a child. With ageing, sight in both eyes became increasingly poor. 1969 - Found to have increased intraocular pressure and treated medically. Glaucoma. Officer finds that he is unable to undertake prolonged reading and writing.
The report recommended invalidity retirement, and noted of his glaucoma: ‘The condition in both eyes is irreversible. It is to be expected that the glaucoma will remain static under treatment, but no cure may be anticipated’. He was invalidity retired in 1970.
In 1971 following an examination of Mr Quinlivan’s eyes at the request of the Commission, a report dated 22 March 1971 by an ophthalmologist, Dr Yorke Pittar, queried whether Mr Quinlivan had glaucoma, given that ‘the tensions [in his eyes] are within normal limits after no treatment for five to six weeks’. The assessment of vision in his eyes was ‘R.E. Less than 6/60 (uncorrected) and 6/60 (corrected); L.E. 6/24 – 1 (uncorrected) and 6/5 (corrected)’. The report said ‘I would think that his refractive error is not in any way related to his war service but it is possible that nervous tension can cause an elevation of pressure in the eye’.
Mr Quinlivan has established the William A Quinlivan - Glaucoma Australia Research and Scholarship Fund and is personally knowledgeable about the condition. He also provided considerable material concerning glaucoma for the purposes of the review.
Medical evidence
Dr Dunlop
Dr Iain Dunlop, ophthalmologist, provided a report on 23 September 2009 following three consultations with Mr Quinlivan in 2001 and another on 10 September 2009. He said that examination had revealed features in the right eye ‘consistent with congenital glaucoma and secondary myopia and amblyopia’. A supplementary report dated 2 May 2011 said: ‘[I]t is more probable than not that the particular condition glaucoma does worsen with slow, irreversible field loss if it is not detected and treated’.
His report noted that the ophthalmologist who examined Mr Quinlivan in 1941 had recognised
…the large myopic and amblyopic right eye [of Mr Quinlivan] but there is no record…that an intraocular pressure has been taken nor that unilateral congenital glaucoma has been recognised…The ophthalmologist’s comments appear to be correct and accurate, but incomplete in our current state of knowledge.
I do not have the expertise to know (1) whether intraocular pressures were routinely measured in 1941 (although the pressure in congenital glaucoma is typically both normal or low) and (2) whether the diagnosis of a unilateral congenital glaucoma would have been regarded as a sub-speciality skill beyond the normal capability and expertise of a general ophthalmologist conducting a general eye examination at the time.
Professor Molteno
A report was provided by Professor ACB Molteno, Head, Ophthamology, Department of Medicine, University of Otago Dunedin School, Dunedin, New Zealand, dated 18 October 2011. In relation to congenital glaucoma, which he said was ‘extremely seldom the result of birth injury’, he expressed the opinion that ‘the birth injury could have been confused with an arrested case of mild congenital glaucoma and the diagnosis then would have been less precise than now on the whole’. The report was referring at this point to diagnosis at time of birth, that is, 1921. Professor Molteno also noted that glaucoma medication is ‘not good for congenital glaucoma’.
A/Prof Goldberg
Mr Quinlivan was a patient of Associate Professor (A/Prof) Ivan Goldberg, University of Sydney, who was President, Australian and New Zealand Glaucoma Interest Group from 20 November 2001. A/Prof Goldberg diagnosed ‘combined mechanism glaucoma’, rather than congenital glaucoma. Combined mechanism glaucoma is a rare condition combining open-angle and angle-closure glaucoma. He noted that the angle-closure component was eliminated with laser treatment, and the open angle component was being treated with pressure reducing medication. He also noted ‘age-related macular degenerative changes’ more in his right than his left eye; and significant right amblyopia with best corrected vision of right 6/30, left 6/5. His report noted that ‘It is quite possible that an injury suffered at birth could have contributed to the development of his amblyopia’. He also said ‘…there is a possibility, even if somewhat remote, that his birth trauma predisposed him to develop a glaucomatous process, at least in the right eye’. However, examination did not indicate ‘congenital or juvenile glaucoma’. In a letter dated 17 October 2011, he confirmed that congenital glaucoma ‘extremely rarely’ results from birth trauma. He reported: ‘His myopia (which is a risk factor for later development of glaucoma) and his dense right amblyopia would have been evident’ in the 1940s. He concluded: ‘On balance of probabilities, Mr Quinlivan’s glaucomatous process most likely developed as he passed through his middle years and into his senior years’. In another paper he noted glaucoma ‘is much more common in people over the age of 40’.
In his letter dated 17 October 2011, A/Prof Goldberg nominated the Schiotz tonometer as the instrument which would have measured glaucoma in 1941, alongside use of a Bjerrum-style screen to assess the optic disc. In his view, the slit lamp to diagnose glaucoma ‘did not come into general use [in Australia] apparently till the late 1940s’. Drugs regularly used for glaucoma at that time, were Eserine and Pilocarpine. Phospholine iodide may also have been available.
Dr Orekondy
Dr Sid Orekondy, eye specialist, provided a report for Mr Quinlivan dated 11 March 2012. The conditions he had been asked to comment on were:
·Right eye open-angle glaucoma and excludes congenital glaucoma;
·Right eye myopia and astigmatism;
·Right eye acquired cataract;
·Right eye amblyopia; and
·Loss of vision left eye.
Dr Orekondy accepted that Mr Quinlivan suffered from all five conditions. He said, as relevant:
·the right eye myopia with astigmatism was present pre-service and probably started during early childhood. The condition had led to the macular degeneration;
·right eye amblyopia existed pre-service. Given the loss of vision in the left eye between enlistment and discharge from the army, this in all probability could be related to the work he did on service. ‘The right eye being amblyopic (childhood), left eyestrain could have caused the headaches and eye fatigue’; and
·loss of vision, left eye, ‘in the balance of probability, reduction of the vision in the left eye is related to his military service. Right eye amblyopia remained the same but it would have added to the eyestrain’. He also attributed Mr Quinlivan’s eyestrain to his high myopia right eye with macular degeneration.
Dr Orekondy noted that Mr Quinlivan’s vision did not improve because of his amblyopia and macular degeneration.
In a supplementary report dated 15 May 2012, Dr Orekondy said he agreed with Dr Dunlop’s findings concerning congenital glaucoma in Mr Quinlivan’s right eye but noted that the Australian Military Forces Medical History Sheet had made no reference on 3 October 1941 to congenital glaucoma. He denied any knowledge of the appropriate clinical management available in 1941. He noted that slit lamp was not used routinely to detect glaucoma, as the machine was not readily available until the late 1940s (quoting A/Prof Goldberg) and he said that the letters of A/Prof Goldberg, and Professor Molteno did ‘not indicate availability or otherwise of the slit lamp’. In his view there was no record of it being used in the Army. A/Prof Goldberg had noted that ‘hand performed kinetic perimetry was available’. He had no knowledge of any difference at the time in clinical management for the civilian as compared with the service population. The only comment he could make concerning the failure to refer to congenital glaucoma was that ‘Perhaps for the knowledge and expertise at that time it could have been appropriate clinical management’.
Dr Orekondy said that ‘The right eye myopia with astigmatism was recognised and diagnosed by the army ophthalmologist on 3 October 1941’ who recorded that ‘because of the amblyopia, corrective glasses were not going to be beneficial and would not have improved the vision’. So the failure to prescribe glasses was, he said, ‘appropriate clinical management’ at the time. He also agreed that ‘High myopia is often associated with myopic degeneration of the retina including macula’. He confirmed that macular degeneration is often associated with old age, but in Mr Quinlivan’s case, ‘macular degeneration is more likely than not due to high myopia’ in the right eye.
Dr Nave
Dr J Robert Nave, eye specialist, provided a report dated 27 July 2011. He confirmed the diagnoses, as relevant, of myopia and astigmatism, and right amblyopia. In relation to glaucoma and the different views of other specialists, Dr Nave said:
Mr Quinlivan has probably been suffering from longstanding normal/low tension glaucoma, a relatively recent diagnosis in which glaucomatous damage occurs in the absence of significantly raised intraocular pressure…Low tension glaucoma could have a combined mechanism causation…but also be very longstanding, possibly congenital in etiology.
Dr Nave also noted ‘both Drs Goldberg and Dunlop are in agreement that Mr Quinlivan probably did not have elevated intraocular pressures in either eye when he attended for his pre-enlistment ocular examination in 1941’. As he explained in relation to the factor ‘inability to obtain appropriate clinical management’:
[Mr Quinlivan] already had extremely poor vision in his right eye at the time of his enlistment due to amblyopia associated with anisometropia and there would have been no reason to look beyond these conditions in 1941 for an explanation of the poor vision in his right eye. With a normal intraocular pressure, it would have been impossible to have made a diagnosis of any form of glaucoma at that time, particularly where there was no evidence of cupping of either disc and the right eye was amblyopic…[I]n 1941 no ophthalmologist would have the knowledge, ability or resources to treat low tension glaucoma.
In his view, the right amblyopia commenced at or shortly after birth; the myopic astigmatism (constitutional in origin) probably developed in childhood; the myopic astigmatism in his left eye developed between enlistment and discharge; and the glaucoma did not become apparent until 1960, at the earliest. His opinion was that the statement of principles for glaucoma was not applicable. In summary he did not consider any of Mr Quinlivan’s conditions were caused or aggravated by service.
In a supplementary report, dated 26 June 2012, Dr Nave disagreed with Dr Dunlop’s finding that Mr Quinlivan suffered from congenital glaucoma, the symptoms of which he said could equally be related to high myopia and open-angle glaucoma. He also noted that Mr Quinlivan ‘had never demonstrated any of the classical signs of congenital glaucoma either prior to or at the time of examination in 1941, as both Prof Goldberg and Prof Molteno make reference to this fact’. As he went on:
In all probability, the marked anisometropia and right amblyopia associated with high right myopia…in 1941 was simply a congenital abnormality of development. I do not believe any investigations at that time would have been helpful in his management (except to have excluded congenital glaucoma) and no treatment would have been indicated.
In relation to the question whether Mr Quinlivan’s left compound myopic astigmatism was related to his employment as a clerk during his service, Dr Nave’s opinion was that with glasses, Mr Quinlivan’s vision in his left eye remained at 6/6 between enlistment and discharge. On that basis there was no deterioration. In any event, he noted that ‘there was no record of the refraction required to correct the vision of his left eye from an unaided 6/12 to a corrected 6/6’ at discharge.
Dr Nave conceded that both environmental and genetic factors have a role in the development of myopia. He noted there was no evidence of a Quinlivan family history of myopia. The influence of close work on myopia he said was debatable, given recent research at the University of Sydney Faculty of Health which indicated that ‘a deficiency in sunlight is the true culprit’. He hypothesised that even though Mr Quinlivan was engaged in prolonged close work on the 330 days of his employment, ‘it is unlikely that such work would have prevented him from participating in normal outdoor activities, including playing sport, during his out-of-work hours’. He concluded that the close work was ‘not a significant factor in the development of his myopia’.
Legislation
The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act) sections 120(4), 120B, 196B. Relevant Statements of Principles (SoPs) are:
·No 70 of 2007 Myopia, Hypermetropia and Astigmatism; and
·No 14 of 2009 Macular Degeneration.
Issues
The issues are:
·What was the correct diagnosis of the claimed conditions;
·Whether Mr Quinlivan’s circumstances on service satisfy any of the factors, or meet the requisite standard of proof, relating to the claimed conditions; and
·Whether those conditions can be related to any of Mr Quinlivan’s eligible war service.
Consideration
The changes during the course of this matter in the conditions claimed has created difficulties since not all the expert medical reports have addressed the conditions over which review was sought, whether before the Veterans’ Review Board or before the Tribunal. That has meant that much of the material in the medical reports related to open-angle or other kinds of glaucoma, rather than congenital glaucoma. The Tribunal has taken that into account.
Mr Quinlivan’s claim is that service was the cause of his loss of vision in the left eye, and aggravated his other eye conditions. His contentions are:
·as his vision defects/diseases were known to the Army he should not have been exposed to a prolonged and sustained reading and writing work environment leading to loss of vision during service;
·there was a failure to provide appropriate clinical management of his eye condition which would have revealed vision deterioration, confirmed eye defects previously diagnosed, and discovered eye defects not detected initially and supplied corrective glasses; and
·in relation to his claimed condition, at the hearing Mr Quinlivan contended that all the conditions except loss of vision in his left eye were aggravated or accelerated by service; loss of vision in his left eye was caused by service.
The Commission contends ‘that there are no incidents or conditions of service that caused or aggravated the various claimed eye conditions’ and that there is insufficient evidence to suggest satisfaction of any other allowable factors in the relevant Statements of Principles (SoPs), or at law, where no SoPs apply.
As Mr Quinlivan has eligible service the standard of proof applicable to whether there is a connection between any of his claimed conditions and his service is the balance of probabilities or reasonable satisfaction standard (section 120(4) of the Act), affected as appropriate by the relevant SoP.[2] That standard applies to the diagnosis of the conditions.[3] Section 196B(14) provides, as relevant, that ‘A factor causing, or contributing to a disease is related to service rendered by a person if:…(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’. ‘Disease’ for the purpose of section 196B(14) means: ‘(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’, [other than] a ‘temporary departure from ‘(i) the normal physiological state…that results from normal physiological stress’.
[2] Act ss 120B, 196B(14).
[3] Repatriation Commission v Cooke (1998) 160 ALR 17.
There is no issue that Mr Quinlivan’s eye conditions come within the meaning of ‘disease’. The Tribunal is satisfied to the requisite standard that they are physical ailments, disorders, defects or morbid conditions of the eyes that have been diagnosed by appropriate medical experts. Nor are any of the conditions due to a temporary aggravation of the condition as a result of normal physiological stress. Where the claim is that the condition was aggravated by service, the Tribunal is satisfied that the aggravation is long-standing and not a temporary increase in symptoms.
The interrelationship between standard of proof, the test in section 196B(14) of being ‘related to’ service, and the requirement that the connection with service must be found in the factors in the relevant SoP(s), was described as follows in Repatriation Commission v Money:
…the SoP is bifocal in its enquiry: Has the…factor contributed materially to, or aggravated the person’s…disease? Was that factor related to that person’s...service? These questions are to be answered on the balance of probabilities: s 120B(3).[4]
In addition, the majority noted in relation to the factor relied on by Mr Quinlivan in the relevant SoPs, namely, ‘inability to obtain appropriate medical treatment’: the inability ‘must occasion a material contribution to, or aggravation of, the…disease’.[5]
[4] Repatriation Commission v Money (2009) 173 FCR 410 at [7] per Finn and Edmonds JJ.
[5] Ibid at [42].
Diagnosis of claimed conditions
Mr Quinlivan sought review of decisions relating to macular degeneration (right eye), congenital glaucoma (right eye), amblyopia (right eye), and loss of vision in the left eye, accepted to be myopia with astigmatism, left eye. The Commission has accepted that Mr Quinlivan suffered from macular degeneration and amblyopia in the right eye. The Commission did not accept that Mr Quinlivan has congenital glaucoma in the right eye, preferring instead the diagnosis of open angle glaucoma. The Commission also noted that as myopia is assessed using glasses and Mr Quinlivan’s left eye on discharge was assessed, as corrected, at 6/6, there had been no loss of vision in his left eye, and hence any claim for myopia could not succeed.
The Tribunal accepts on the medical evidence that the concessions in relation to macular degeneration and right eye amblyopia are appropriate. Accordingly the Tribunal finds, on the balance of probabilities, that Mr Quinlivan is suffering from macular degeneration (right eye) and amblyopia (right eye). The issue concerning the diagnosis of myopia, left eye, is dealt with subsequently in these reasons.
No diagnosis of congenital glaucoma appears in the service records. Nor is there any reference to this possible condition in the invalidity retirement documents. Dr Dunlop, who had treated Mr Quinlivan in 2001 and again in 2009 first raised this condition in his report of 2009. He said Mr Quinlivan had features in the right eye ‘consistent with congenital glaucoma’. Dr Orekondy, a non-treating specialist, in his supplementary report of 15 May 2012 said he agreed that Dr Dunlop’s findings were suggestive of congenital glaucoma in the right eye.
The other treating specialist, A/Prof Goldberg had also noted ‘there is a possibility, even if somewhat remote, that his birth trauma predisposed him to develop a glaucomatous process, at least in the right eye’. However, he also reported that examination did not indicate ‘congenital or juvenile glaucoma’ and said ‘it is unlikely that there would have been ophthalmological findings to suggest a glaucomatous process’.
The Tribunal gives weight to the opinions of Dr Dunlop and A/Prof Goldberg as they have examined Mr Quinlivan. At the same time, both statements are tentative, and A/Prof Goldberg, in particular, notes that the possibility of Mr Quinlivan developing congenital glaucoma arising out of his birth trauma was ‘somewhat remote’ and that in his opinion, his examination did not indicate congenital glaucoma. So his view contradicts that of Dr Dunlop. Professor Molteno said it is ‘extremely seldom’ that congenital glaucoma results from birth trauma, while conceding that Mr Quinlivan’s birth injury ‘could have been confused with an arrested case of mild congenital glaucoma’.
Dr Nave’s view of the difference of opinion among the medical experts was that Mr Quinlivan may have been suffering low tension glaucoma which could be longstanding, possibly congenital, in aetiology. At the same time, he said low tension glaucoma could not have been diagnosed in 1941 given knowledge, ability and resources at the time. In his supplementary report he reinforced this view noting that the symptoms of congenital glaucoma could equally have related to his high myopia, and open-angle glaucoma. He also noted that Mr Quinlivan ‘had never demonstrated any of the classical signs of congenital glaucoma either prior to or at the time of examination in 1941’.
In summary, Dr Dunlop and Dr Orekondy considered only that he had symptoms consistent with congenital glaucoma. A/Prof Goldberg said his examination did not find symptoms of the condition and that his glaucomatous condition ‘most likely developed as he passed through his middle years and into his senior years’. In other words he did not have congenital glaucoma. Professor Molteno conceded that the birth injury may have been mild congenital glaucoma but that it was seldom the result of birth injury. Dr Nave disagreed with their tentative views and proposed an alternative type of glaucoma which could have existed from birth.
The Tribunal accepts that Mr Quinlivan had a problem with his right eye at or shortly after birth. Mr Quinlivan’s evidence, based on his mother’s comment that without her husband’s intervention Mr Quinlivan could have been blind, is indicative of the seriousness of the condition. Professor Molteno notes that the symptoms of congenital glaucoma are a hazy large eye, the child’s sensitivity to light requiring it to close its eyes, crying when exposed to light, and the diameter of the cornea beyond the normal values for age. In other words, the condition was easily discernible. The description Mrs Quinlivan gave her son does not suggest a case of mild congenital glaucoma. Rather it suggests that something more serious was apparent.
In addition, the comment of Mr Quinlivan’s mother suggests that being serious, the condition would have required treatment. There is no evidence that treatment was provided. In addition, Mr Quinlivan’s evidence was that he had no trouble with his eyes during his schooling and had never been to an eye doctor prior to service. Again that would be surprising if a condition of sufficient seriousness to warrant potential blindness had been detected. A/Prof Goldberg said he did not detect any symptoms of congenital or juvenile glaucoma. Again, if the condition had been serious, it is unlikely that it would be undetectable either then or later. Finally, the majority of the experts note that congenital glaucoma is seldom the result of birth trauma. That suggests it is unlikely to have been birth trauma that caused the condition. There is also an alternative explanation for Mr Quinlivan’s injury at or around birth, and that was his amblyopia or lazy right eye. The Tribunal is accordingly not satisfied on the balance of probabilities that Mr Quinlivan suffered from congenital glaucoma. However, if the Tribunal is wrong in this finding, that does not conclude the matter.
Whether Mr Quinlivan’s circumstances on service satisfy any of the factors of the relevant SoPs, or meet the requisite standard of proof, relating to the claimed conditions
Macular degeneration
There is a SoP relating to Macular Degeneration (No 14 of 2009) which describes the condition as ‘age-related macular degeneration’, subdivided into ‘early age-related macular degeneration’ or ‘late age-related macular degeneration’. Early age-related and late age-related are not defined. The factor claimed as relevant to macular degeneration was factor 6(g), ‘inability to obtain appropriate clinical management for macular degeneration’. The claim is for aggravation or acceleration of the condition due to service. Factor 7 in the SoP states that factor 6(g) applies ‘only to material contribution to, or aggravation of, macular degeneration where the person’s macular degeneration was suffered or contracted before or during (but not arising out of) the person’s relevant service’. Accordingly the first step is to decide when Mr Quinlivan’s macular degeneration ‘was suffered or contracted’.[6] Mr Quinlivan claims that his macular degeneration was present during his service.
[6] SoP No 14 of 2009, factor 6(g). See also Brown v Repatriation Commission [2003] FCA 1130 at [9].
Dr Pittar diagnosed macular degeneration in 1971 which he said was associated with high myopia. The Tribunal is satisfied that the enlistment assessment indicated high myopia was present prior to service. Dr Orekondy accepted that Mr Quinlivan had macular degeneration, which he said was due to his right eye myopia with astigmatism and was present in childhood. As he said high myopia does not occur within the period of one year. Dr Orekondy also noted in his supplementary report that although macular degeneration ‘is also present in age-related macular degeneration which occurs in old age’, given Mr Quinlivan’s medical history ‘macular degeneration is more likely than not due to high myopia’. Accordingly it was his opinion that despite it being more usually associated with ageing, in Mr Quinlivan’s case his macular degeneration began in childhood, that is ‘early age-related macular degeneration’.
Dr Nave’s view was that Mr Quinlivan’s ‘high right myopia’ was likely to have been due to ‘a congenital anomaly of development’. He did not comment specifically on macular degeneration, but given the evidence, which the Tribunal accepts, of the relationship between macular degeneration and high myopia, by inference he too may have accepted that Mr Quinlivan’s condition was of the early age-related variety. A/Prof Goldberg noted ‘age-related macular degenerative changes’. Dr Dunlop had diagnosed congenital glaucoma and secondary myopia and amblyopia, arising, it can be inferred, in childhood. Dr Pluschke, ophthalmologist, in a report to the Department of Veterans’ Affairs in 2008, diagnosed amblyopia since childhood.
In summary it was accepted by Dr Pittar, Dr Orekondy, and A/Prof Goldberg that Mr Quinlivan had macular degeneration in his right eye. A/Prof Goldberg said it was ‘age-related’, and Dr Pittar and Dr Orekondy accepted it was associated with his high myopia which arose in childhood. Dr Nave, Dr Dunlop and Dr Pluschke diagnosed other eye conditions - high right myopia, amblyopia or congenital glaucoma – which also arose in childhood. To the extent that macular degeneration is associated with one or more of these conditions, it can be inferred that these medical practitioners would also have found that his macular degeneration preceded service. On balance the Tribunal finds that Mr Quinlivan’s macular degeneration was present prior to and during service.
That means the Tribunal must consider whether there has been an ‘inability to obtain appropriate clinical management’ for the condition. The factor requires a positive finding that an applicant was unable to obtain appropriate clinical management for a condition which existed prior to and was aggravated by, or was developed on service. The questions to be answered were listed by Kenny J in Repatriation Commission v Wedekind and as edited, are as follows:
In summary, before the AAT could be reasonably satisfied that [the condition] was war-caused, it had to be satisfied that: (a) [the veteran] was unable to obtain appropriate clinical management for [the condition] during…war service, after having contracted the [condition]; (b) subject to (c),…inability to obtain appropriate clinical management was related to…war service; and (c) the [condition] was contracted while…rendering war service and was contributed to in a material degree by, or was aggravated by,…war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which [the veteran] contracted …[the condition]; the appropriate form of clinical management; whether [the veteran] was unable to obtain that form of clinical management; whether that inability related to …service; whether the [condition] was contracted during…service; and whether it was contributed to in a material degree by, or was aggravated by, [the veteran’s] particular service.[7]
[7] Repatriation Commission v Wedekind [2000] FCA 649 at [12].
The word ‘inability’ has also received judicial attention. In Brew v Repatriation Commission, Merkel J (with whom Mansfield J agreed; Heerey J dissented) said:
…‘inability’…[means]‘lack both means lack of ability; lack of power, capacity, means’ (Macquarie Dictionary or ‘the condition of being unable; lack of ability, power or means’ (New Shorter Oxford Dictionary). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means, or a subjective barrier such as ‘the condition of being unable’. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.[8]
The expression ‘clinical management’ has been held to mean ‘the technique of treating all manifestations of a disease etc: New Shorter Oxford English Dictionary’.[9]
[8] Brew v Repatriation Commission (1999) 94 FCR 80 at [26].
[9] Repatriation Commission v Money (2009) 173 FCR 410 at [38].
It was accepted by the High Court in Johnston v Commonwealth that the relevant legal principles relating to the expression ‘inability to obtain appropriate clinical management’ as a whole were as follows:
·the injury/disease should have been diagnosed and would have been by a reasonably competent medical practitioner, and was not;
·the injury or disease was not treated with the skill and expertise that would have been expected to have been given to a civilian at that time; and
·if the appropriate treatment had been given, the injury or disease would not have progressed or worsened to the extent that it did.[10]
In addition, the majority found in Money that the ‘inability’ must relate to the claimed disease but does not envisage only ‘positive treatment of the disease’ and may include a failure to provide advice, or a failure to diagnose if it led to an inability to advise or to eliminate the possible impact of extraneous causes that might accelerate the progress of the disease.[11]
[10] Johnston v Commonwealth (1982) 150 CLR 331 at 337.
[11] Repatriation Commission v Money (2009) 173 FCR 410 at [43] – [44].
If the Tribunal is correct in its finding that Mr Quinlivan’s macular degeneration was a secondary consequence of high myopia, amblyopia, or possibly congenital glaucoma, the issues are whether the condition could have been diagnosed in 1941, whether, if diagnosed, it could have been treated, or at least advice given that would have ameliorated the acceleration or aggravation of the disease, and the diagnosis, treatment and/or advice would have been available to the civilian population at the time. The Tribunal must also be satisfied that the inability to obtain appropriate medical treatment on service contributed to in a material degree, or aggravated, the condition.
Macular degeneration as its alternative designation of ‘age-related macular degeneration’ indicates is most often found in the older age group. Early age-related macular degeneration is known to be less common. Mr Quinlivan was only 19 or 20 at the time of his enlistment, so it was not unreasonable for an ophthalmologist not to have been looking for that condition when examining him. In addition, Mr Quinlivan said he had never attended an eye doctor prior to service, so he would not have alerted any medical examiner to problems with his eyes. He did have an obvious eye problem, his ‘lazy’ right eye or amblyopia which was clearly visible and his high myopia, which was also identified. These conditions were sufficient explanation for the deficiencies in his right eye which were detected on enlistment. In these circumstances the Tribunal finds that a reasonably competent medical practitioner would have been unlikely to have diagnosed the condition in 1941, given its relative rarity in someone as young as Mr Quinlivan with an existing and obvious defect in that eye which was identified and which would account for his sight problems in that eye. In those circumstances, there is no need to consider other elements of the tests, and the reviewable decision in relation to Mr Quinlivan’s macular degeneration is affirmed.
Congenital glaucoma
There is no SoP for congenital glaucoma. That means the test to establish whether the aggravation or acceleration of the condition was related to service arises under s 120(4) of the Act. That provision requires that any decision made by the Commission in relation to a matter under the Act must be decided to its ‘reasonable satisfaction’, that is, on the balance of probabilities.[12] This standard applies to a claim that a condition is related to eligible war service.
[12] Repatriation Commission v Smith (1987) 74 ALR 537 at 546.
The Tribunal has decided that Mr Quinlivan was unlikely to have suffered from congenital glaucoma. However, it also decided that in the event that finding was incorrect, it would consider in addition whether any such condition would have been diagnosed on service by a reasonably competent medical practitioner, and was not.
Dr Dunlop in a report on 10 September 2009 noted that pressure in the eye is not necessarily raised in congenital glaucoma, but rather that the eye responds to increased pressure by expansion. The Tribunal has noted that if Mr Quinlivan had an expanded right eye on service, a reasonable explanation would have been his amblyopia in the right eye. Dr Dunlop also said he did not have the knowledge to know whether intraocular pressures were routinely measured in 1941. In any event, since pressure in congenital glaucoma was ‘typically both normal or low’, measurement of intraocular pressure may not have detected the condition.
In Professor Molteno’s view any congenital glaucoma of Mr Quinlivan was of a mild variety which would make it harder to identify. That difficulty would have been compounded in Mr Quinlivan’s case since his birth injury may have been confused with a mild congenital glaucoma. In other words, it was not unreasonable for there to be a failure to diagnose. A/Prof Goldberg said there was no ‘structural anomaly…which would permit a diagnosis of congenital or juvenile glaucoma’ on ophthalmic examination, indicating that an assessment would not have identified the condition if it was present.
Dr Orekondy specifically excluded congenital glaucoma in his initial report. In his supplementary report he simply noted that ‘there was no clinical evidence provided or mentioned of congenital glaucoma in the right eye in the Australian Military Forces Medical History Sheet’. Dr Nave in his subsequent report said Mr Quinlivan’s symptoms did not demonstrate ‘any of the classical signs of congenital glaucoma either prior to at the time of his examination in 1941’.
The predominant evidence, which the Tribunal accepts, was that Mr Quinlivan’s symptoms were not of the kind to have indicated to a reasonably competent ophthalmologist in 1941 that Mr Quinlivan may have had the condition. That means there was no action which would have been taken during service which could have avoided any aggravation or acceleration of the condition, had it been present.
Dr Dunlop indicated that even if tested, the congenital glaucoma was unlikely to have been picked up. As he said ‘at the least, such a diagnosis would have required the use of a slit-lamp, and there is no indication that any findings arising from a slit-lamp examination have been recorded in the report’. Professor Molteno provided evidence that diagnosis would have been by tonometer, direct ophthalmoscope, or slit-lamp, but that the slit-lamp was not generally available in Australia in the 1940s. The lack of availability of the slit lamp in 1941 was supported by A/Prof Goldberg and Dr Orekondy.
The tonometer and ophthalmoscope were available in 1941. However, given the absence of obvious indicators of glaucoma, whether congenital or another variety, Mr Quinlivan’s ignorance of his eye problems, Dr Dunlop’s view that he did not know whether assessment at the time was done routinely, an issue not addressed by other experts, and the availability of other obvious conditions in his right eye, the Tribunal is not satisfied that a reasonably competent medical practitioner would have used a tonometer, or ophthalmoscope to assess Mr Quinlivan’s right eye for glaucoma in 1941.
In summary, in 1941 the medical experts would have had difficulty diagnosing the condition, given that symptoms of congenital glaucoma do not, as in the case of other kinds of glaucoma, typically result in significant increase in intraocular pressure. In addition although the slit-lamp was not then commonly available in either civilian or military treatment, use of other diagnostic equipment was either not routine, or, as in Mr Quinlivan’s case, in the absence of symptoms of the condition, and with other conditions in his right eye which could have masked the congenital glaucoma condition, the failure to use the equipment would not have been unreasonable. The result is there is insufficient evidence to enable the Tribunal to be satisfied on the balance of probabilities that a reasonably competent medical practitioner would have diagnosed and treated the condition, if it existed, during his service.
Right eye amblyopia
There is no SoP for amblyopia. That means the test to establish whether the aggravation or acceleration of the condition was related to service arises under s 120(4), the tests for which were described for congenital glaucoma. Mr Quinlivan contended, in relation to the argument for aggravation or acceleration, that the principles in the cases have established that:
If the Tribunal is satisfied that the ongoing symptomatic state, or increased symptomatic state, of the condition was contributed to in a material degree by the conditions of the applicant’s defence service, then…it is irrelevant that the condition may (or may not) have become deteriorated in the future. The Tribunal only needs to be satisfied that the present state of the applicant’s eyes are in fact contributed to in a significant degree by the conditions experienced by the applicant while on defence service.[13]
[13] Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Martin v Australian Postal Corporation (1999) FCA 655; Casarotto v Australian Postal Commission 17 ALD 321 per Hill J at 326 – 327.
Right eye amblyopia was diagnosed on discharge. The condition was not specifically mentioned in the eye conditions recorded on enlistment, nor in 1942 when the eye conditions from which he suffered were described only as ‘Right eye v myopic, with high degree of anisometropia’. However, the evidence of Dr Dunlop was that the diagnosis of anisometropia indicated that Mr Quinlivan also had amblyopia. Dr Nave also acknowledged the connection. In addition, most of the specialists who provided reports for this matter noted that amblyopia is an eye condition which is easily detected. The Tribunal is satisfied on the balance of probabilities, that Mr Quinlivan’s amblyopia, a condition he had since childhood, was diagnosed on service.
Dr Orekondy’s view was that the condition was untreatable. As he said despite the work on service being performed by Mr Quinlivan ‘right eye amblyopia would have remained the same’ and ‘corrective glasses were not going to be beneficial and would not have improved the vision’. Dr Nave’s view was that none of Mr Quinlivan’s eye conditions were either caused or aggravated by service. As he said in his second report:
…the marked anisometropic and right amblyopia associated with high right myopia in Mr Quinlivan’s right eye in 1941 was simply a congenital anomaly of development. I do not believe any investigations at that time would have been helpful in his management…and no treatment would have been indicated.
In Mr Quinlivan’s case, it is clear his eye conditions continued to deteriorate until he was invalided from the Australian Public Service in 1971, some thirty years after his service. The difficulty for Mr Quinlivan is that there is little medical evidence that the condition had deteriorated during service. In which event the impact on his amblyopia may have been ‘evanescent in its effects’.[14] There is no evidence of whether Mr Quinlivan’s amblyopia condition became worse on service, nor whether if it did so, the deterioration has been because of his conditions of service. The Tribunal notes that it is the combination of the effects of Mr Quinlivan’s eye conditions which have created problems with his vision and it is not, accordingly, clear in many of the reports whether doctors are discussing the impact of service on any one condition, rather than on the totality. There is also a focus in the medical evidence on glaucoma rather than on the other eye conditions which again makes it difficult to implicate service conditions as contributing to any single condition.
[14] Martin v Australian Postal Commission (1999) FCA 655 at [28] per Burchett J.
Post service Mr Quinlivan continued in a clerical position until his invalidity retirement in 1971. That means he would have been involved in considerable written work. He was also apparently still playing golf, and driving until early in the 2000s. He did start wearing glasses post service, but Dr Orekondy noted that corrective glasses would not have improved his amblyopia. Nor is it known whether the diagnosis and treatment of his glaucoma in the early 1960s led to an improvement in his amblyopia. The medical report on Mr Quinlivan’s invalidity examination simply noted that ‘the effects of ageing’ had led to deterioration in his right eye, without specifying whether the reference was to amblyopia, myopia, or glaucoma. Nonetheless, it is unlikely given his age during service that ‘the effects of ageing’ referred to Mr Quinlivan’s situation in 1941-42.
The Tribunal is not satisfied on the balance of probabilities that the evidence available relating to Mr Quinlivan’s amblyopia during service indicated any deterioration of the condition during service. The condition had been diagnosed, but could not be corrected by glasses. Nor was there any evidence that any advice during service about his amblyopia could have alleviated its symptoms. In these circumstances, the Tribunal is reasonably satisfied that there was no aggravation or acceleration of the condition during service and the decision in relation to amblyopia is accordingly affirmed.
Myopia/Loss of vision, left eye
The loss of vision, left eye, as was accepted at the hearing, is a claim for myopia, left eye. There is a SoP for this condition, namely, No 70 of 2007 Myopia, Hypermetropia and Astigmatism. Mr Quinlivan claims that his condition of myopia, left eye was caused by service as his left eye was assessed as 6/6 on enlistment, but uncorrected was 6/12 on discharge. Mr Quinlivan’s argument is that his eye had deteriorated during service due to the work he was doing and that this should have been diagnosed and glasses prescribed. It was not until he made the appointment post-discharge with Dr O’Brien that he was provided with glasses for the condition.
His claim was that the causal link to service was factor 6(d), namely, an ‘inability to obtain appropriate clinical management for myopia, hypermetropia or astigmatism’. The claim, as expressed at the hearing, was that the close writing work he performed on service was the cause of the deterioration.
The medical evidence relating to Mr Quinlivan’s myopia in the left eye is limited given the focus on glaucoma in the reports. Dr Dunlop in his report of 23 September 2009 noted that the left eye was short-sighted. In January 2001, he said the evidence was that his best corrected vision in the left eye was 6/9-2. Otherwise, he said, the left eye was normal. Dr Yorke Pittar in his report dated 22 March 1971 assessed Mr Quinlivan’s left eye as 6/24-1 (uncorrected) and 6/5 (corrected). Dr Orekondy confirmed that Mr Quinlivan had loss of vision in the left eye. He noted that:
…in all probability [the loss of vision] could be related to the work he did, which involved close work transferring information from cards to a volume in the orderly room. It occurred all day. The right eye being amblyotic…left eyestrain could have caused the headaches and eye fatigue.
In his supplementary report Dr Orekondy concluded ‘In the balance of probability, reduction of the vision in the left eye is related to his military service’ but he said he was unable to give an opinion as to whether Mr Quinlivan’s service meant he was unable to obtain appropriate clinical management. As he said he lacked knowledge of the civilian and military practices in regard to treatment in 1941.
A/Prof Goldberg, in a series of letters to other medical specialists including Mr Quinlivan’s treating general practitioner, recorded over a dozen readings between 2001 and 2011. On 11 December 2001 he said: Mr Quinlivan had ‘essentially normal visual field on the left side’, and on 25 February 2011, the assessment was: ‘fortunately little in the way of visual field loss in his all important left eye.…The left eye achieves 6/6’. In other words, although there were variable readings over the ten years to 2011, Mr Quinlivan’s visual acuity had not deteriorated and showed no loss of vision. Consistently the reports noted that without spectacles Mr Quinlivan could read N5 print. These reports since 2001 by Mr Quinlivan’s treating specialist indicate that overall Mr Quinlivan’s vision in his left eye, even uncorrected, had not deteriorated, despite his increasing years. This suggests that any diminution of his visual acuity during service was of temporary duration.
Dr Nave, however, did say that Mr Quinlivan had myopia in the left eye. In his view the ‘myopic astigmatism in his left eye would appear to have developed between the time of his enlistment and discharge, i.e., in about 1942’. However, his opinion was that ‘the myopic astigmatism is undoubtedly constitutional in etiology’. He went on: ‘I feel there are no factors relevant to the Statement of Principles connecting these conditions with his clerical army service’. As he said ‘I do not believe that any of Mr Quinlivan’s ocular conditions have been either caused or aggravated by his period of eligible war service’.
Dr Nave’s view was that since on discharge, Mr Quinlivan’s corrected vision was 6/6 and since assessment for impairment purposes is on corrected, not uncorrected vision, Mr Quinlivan had technically not suffered any loss of vision in the left eye. However, in deference to Mr Quinlivan’s view he said ‘unfortunately there was no record of the refraction required to correct the vision of his left eye from un unaided 6/12, to a corrected 6/6’. He also noted that ‘Mr Quinlivan has maintained a level of corrected vision of 6/6 or better for distance and N5 for near, at least up until February 2011’. In his view the dramatic increase in the myopic power of his left lens occurred between June 2000 and April 2004 prior to his left cataract surgery in February 2005. In his view this suggested that ‘the increased myopia at that time was due to the cataract formation’.
He pointed out that the causes of myopia are multifactorial and include both genetic and environmental factors. He had no evidence of genetic predisposition in the case of Mr Quinlivan’s parents. He also noted that ‘The role of prolonged near work in the etiology of myopia has long been a debateable issue’. He quoted Wikipedia to the effect that ‘both genetic and environmental factors, particularly significant amounts of near work are thought to contribute to the development of myopia’, an opinion he said was supported by the American Optometric Association’s research between 1997 and 2006. By comparison, he said:
…more recent studies including research from the University of Sydney Faculty of Health indicated that ‘while the belief that prolonged close up activities like reading and playing computer games cause short-sightedness (myopia) is popularly held, new research indicates that a deficiency in sunlight is the true culprit’.
The explanation was that:
…reduction in outdoor activities associated with prolonged close work which is responsible with the reasoning behind this being that retinal dopamine is a known inhibitor of eye growth and the release of retinal dopamine is stimulated by light. A consistent link has been discovered between the time spent outdoors and the prevention of myopia irrespective of the amount of near work performed.
He concluded that Mr Quinlivan would not have been inhibited by his work from continuing ‘in normal outdoor activities, including playing sport, during his out-of-work hours’. As he said ‘It is therefore my opinion that Mr Quinlivan’s relatively short period of near work for the civilian military forces between 1941 and 1943 was not a significant factor in the development of his myopia.’ Alternatively he affirmed his view that there was ‘no measurable loss of visual or ocular function resulting from that myopia’.
Mr Quinlivan had objected to Dr Nave’s views in a letter dated 26 September 2011 on a number of grounds including that it was not ‘a fair balanced and accurate statement’. However, the focus of his objections was on the opinions of Dr Nave in relation to glaucoma, not to the research on myopia.
The Tribunal accepts that Mr Quinlivan had eyestrain, his eyes were sore, and he developed headaches due to the work he did on service. It also accepts that his left eye had apparently deteriorated from 6/6 to 6/12 during service. At the same time, as Dr Nave points out, assessment of impairment to eyes is based on corrected vision. With correction Mr Quinlivan’s sight on discharge was normal. Mr Quinlivan said he sought and obtained glasses within weeks after he finished his service. Thereafter the best evidence held by the Tribunal in relation to Mr Quinlivan’s left eye condition is found in the letters of A/Prof Goldberg which commenced in 2001. These reports to Mr Quinlivan’s general practitioner indicate there was fluctuation in the vision in his left eye, but in 2001, the eye was assessed as normal as it was in 2011. In other words, whether corrected or otherwise, Mr Quinlivan’s left eye either had normal or nearly normal acuity throughout this period. Indeed, there was no technical deterioration in his vision when corrected during service.[15] Accordingly the Tribunal is not able to be satisfied that there was any compensable impairment in his left eye due to service. In any event, any deterioration of his eye would appear to have been temporary rather than permanent.
[15] Guide to the Assessment of Veterans’ Pensions (GARP V) 159.
Accordingly the Tribunal finds that that Mr Quinlivan has macular degeneration and right eye amblyopia but these conditions were not service-related. The Tribunal does not find that Mr Quinlivan has congenital glaucoma in the right eye, preferring the diagnosis of open angle glaucoma. As Mr Quinlivan’s left eye, vision corrected, has shown no loss of vision, the decision on that condition is affirmed.
I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Professor Creyke, Senior Member ........................................................................
Associate
Dated 3 April 2013
Date of hearing 6 February 2013 Counsel for the Applicant Mr Fergus Thompson Solicitors for the Applicant Capital Lawyers Respondent In person Advocate for the Respondent Mr Tim O'Reilly
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