MARCUS QUINLIVAN and REPATRIATION COMMISSION

Case [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

  1. 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.

  2. 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.

  3. 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

  4. 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.

  5. 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.

  6. 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’

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Details
AGLC
MARCUS QUINLIVAN and REPATRIATION COMMISSION [2013] AATA 191
Case
[2013] AATA 191
Decision Date

CaseChat Overview and Summary

In the case of Marcus Quinlivan and the Repatriation Commission, the Tribunal heard claims from Mr Quinlivan regarding the cause and aggravation of his eye conditions, namely macular degeneration, congenital glaucoma, right eye amblyopia, and loss of vision in the left eye, in relation to his service in the Australian Army. The Tribunal was tasked with determining the correct diagnosis of these conditions, whether Mr Quinlivan's service met any of the factors or requisite standard of proof relating to these conditions, and if these conditions could be related to his eligible war service.

The legal issues that the Tribunal had to decide included whether Mr Quinlivan's service was the cause or contributed to his eye conditions, and if there was a failure to provide appropriate clinical management of his eye conditions during service. The Tribunal had to consider the balance of probabilities or reasonable satisfaction standard in determining the connection between Mr Quinlivan's claimed conditions and his service, as well as the relevant Statements of Principles (SoPs), or at law, where no SoPs apply.

After considering the evidence presented, the Tribunal concluded that there were no incidents or conditions of service that caused or aggravated Mr Quinlivan's claimed eye conditions. The Tribunal found that the evidence did not support the contention that service was the cause of his loss of vision in the left eye or that it aggravated his other eye conditions. Additionally, the Tribunal found that there was insufficient evidence to suggest satisfaction of any other allowable factors in the relevant SoPs, or at law, where no SoPs apply.

The Tribunal's decision was based on the medical evidence presented, which indicated that Mr Quinlivan's glaucomatous process most likely developed as he passed through his middle years and into his senior years, rather than as a result of his service. The Tribunal also found that the failure to provide appropriate clinical management of Mr Quinlivan's eye conditions during service did not contribute to the development or aggravation of his eye conditions.

In conclusion, the Tribunal dismissed Mr Quinlivan's claims regarding the cause and aggravation of his eye conditions in relation to his service in the Australian Army. The Tribunal found that the evidence did not support a connection between his service and his claimed conditions.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 evidenceDr 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’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.