Mason and Military Rehabilitation and Compensation Commission

[2013] AATA 717

`  [2013] AATA  717

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1206
Re	Faye Mason
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	8 October 2013
Place	Sydney

The Tribunal affirms the decision under review.

.........................[SGD].....................................

Deputy President RP Handley

CATCHWORDS

COMPENSATION - Military Rehabilitation and Compensation - claim for compensation for dependants of deceased member - member suffered from hypertension – member died from sudden cardiac death during a service approved football match – whether death was a service death - whether member received appropriate clinical treatment of hypertension from RAAF medical staff – no material contribution - decision affirmed

LEGISLATION

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 ss 7

Military Rehabilitation and Compensation Act 2004 ss 24, 28, 335, 339

Veterans’ Entitlements Act 1986 s 196B

CASES

Brew v Repatriation Commission (1999) 94 FCR 80

Johnston v Commonwealth (1982) 150 CLR 331
McKenna v Repatriation Commission (1999) 86 FCR 144
Quinlivan and Repatriation Commission [2013] AATA 191

Repatriation Commission v Money [2009] FCAFC 11

SECONDARY MATERIALS

Statement of Principles concerning Ischaemic Heart Disease Instrument No 90 of 2007, as amended

Statement of Principles concerning Hypertension Instrument No 36 of 2003, as amended

REASONS FOR DECISION

Deputy President RP Handley

Date: 8 October 2013

1. Ms Mason (the Applicant) has applied for a review of a decision of the Veterans’ Review Board (VRB) made on the 23 March 2011 confirming a decision of the delegate of the Military Rehabilitation and Compensation Commission (the MRCC, the Respondent) denying liability for her husband, Mr Mason’s death.

2. Mr Mason was born in 1965 and died at the age of 41. He and Ms Mason had two children. Mr Mason enlisted in the Royal Australian Air Force (RAAF) on 3 July 1990 at the age of 25 years and served until his sudden death during a service-approved football game on 22 April 2006. Mr Mason had peacetime service from 1 July 2004 until 22 April 2006. The Coroner certified the cause of death as “coronary artery vessel disease which is a natural cause of death” and noted that it could have occurred at any time.

3. On 14 December 2007, Ms Mason lodged a claim for ‘Compensation for Dependants of Deceased Members and Former Members’ in respect of her husband’s death, stating the cause of Mr Mason’s death was:

   (i)Coronary Artery Vessel Disease;

   (ii)Cardiomegaly – left ventricular hypertrophy;

   (iii)Moderate Obesity; and

   (iv)Hypertension.

   Mrs Mason lodged a further claim on 27 March 2008.

4. On 28 April 2008, a delegate of the MRCC accepted that the Applicant was a dependant partner of the Member, but denied liability for the claim on the ground that Mr Mason’s death was not causally related to his service. 

5. On 1 December 2008, Ms Mason requested a reconsideration of the MRCC determination, claiming her husband’s death ‘resulted from an occurrence on service, and but for him playing in that football match he would not have died’. The MRCC decided not to disturb the decision under review and referred the matter to the VRB. Neither the Applicant nor the Respondent appeared at the VRB hearing. The VRB confirmed the original decision on 12 December 2008 finding the material presented to the Board did not raise a connection between Mr Mason’s death and the relevant service.

6. On 1 April 2011, Ms Mason lodged an application with the Tribunal seeking review of the VRB’s decision.

   RELEVANT LEGISLATION AND ISSUES

7. Pursuant to s 7 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004, the Military Rehabilitation and Compensation Act 2004 (the MRC Act) only applies to compensation claims where the claimed death is related to service rendered on or after 1 July 2004. Consequently, Mr Mason had peacetime service from 1 July 2004 until his death on 22 April 2006.

8. Section 24(1)(a) of the MRC Act provides that the Commission must accept liability for the death of a member if the member’s death is a service death as defined by s 28. Section 28(1) states relevantly:

   (1)For the purposes of this Act, the death of a person is a service death if one or more of the following apply:

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

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

   …

9. Section 335(3) provides that the relevant standard of proof to be applied in making any determination or decision is that of ‘reasonable satisfaction’.

10. For claims under s 24(1), the conditions or events set out in the relevant Statement of Principles (SoP) must be met in order for the claim to be allowed. Section 339(3) states:

    …

    (3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:

    (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and

    (b)there is in force:

    (i)a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or

    (ii)a determination of the Commission under subsection 340(3) of this Act; and

    (c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

11. The applicable SoPs in this application are those in respect of Ischaemic Heart Disease (Instrument No 90 of 2007, as amended (SoP No 90 IHD)) and Hypertension (Instrument No 36 of 2003, as amended (SoP No 36 of Hypertension)). Pursuant to s 341(2), the Tribunal is to apply the current SoP when making its decision on the review. In the case of both SoPs, the amendments are not relevant to this case. SoP No 36 Hypertension must be considered because this is the subject of the factor relied on by Mrs Mason in SoP No 90 IHD: McKenna v Repatriation Commission (1999) 86 FCR 144, at [20ff].

12. The issue for the Tribunal to determine is whether Mr Mason’s death is a ‘service death’ pursuant to s 28(1). There is no dispute that Mr Mason died from IHD. The relevant ‘kind of death’ is death from IHD. For the Applicant’s claim to succeed, SoP No 90 IHD must be satisfied. SoP No 90 IHD (like SoP No 36 Hypertension) provides that at least one of the factors listed in the SoP must be related to the relevant service rendered by the person. The Applicant relies on factor 6(a) of SoP No 90 IHD, “having hypertension before the clinical onset of ischaemic heart disease”. Thus hypertension is relevant, and in this respect, the Applicant relies on factor 5(z) of SoP No 36 Hypertension, “inability to obtain appropriate clinical management for hypertension”. However, paragraph 6 of SoP No 36 provides that this factor can only apply “to material contribution to, or aggravation of, hypertension where the person’s hypertension was suffered or contracted before or during (but not arising out of) the person’s relevant service”.

13. There is no dispute that Mr Mason suffered from hypertension before the clinical onset of IHD. Clause 2 of SoP No 36 states:

    …

    (b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:

    (i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or

    (ii) the regular administration of antihypertensive therapy to reduce blood pressure,

    This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.

14. The above gives rise to the following issues:

    (a)Was the clinical management of Mr Mason’s hypertension appropriate?

    (b)If not, was he unable to obtain appropriate clinical management for his hypertension?

    (c)If so, was that inability related to his service?

    (d)If so, did that service-related inability to obtain appropriate clinical management make a material contribution to, or aggravate Mr Mason’s hypertension?

    MEDICAL EVIDENCE

    Professor Paul Nestel

15. Professor Paul Nestel, Cardiologist at the Heart Centre, Alfred Hospital in Melbourne, and Honorary Professor of Medicine at Deakin University, provided reports dated 19 March 2012 and 5 August 2013 at the request of the Applicant and gave evidence by conference telephone at the hearing. In his report dated 19 March 2012, Professor Nestel said:

    1. At autopsy the heart was found to be heavier than normal with a hypertrophied left ventricle. The probable cause of this was accepted to have been hypertension since other not uncommon causes such as coronary heart disease, excessive alcohol consumption and other structural cardiac abnormalities were ruled out. …

    4. … The probable cause [of death] was a rupture of an atheromatous plaque (which can be quite small) and may occur as the result of physical stress. He died while playing a game of a service based football match and it can be reasonably inferred that the extra physical exertion had caused the rupture of a plaque leading to an acute thrombosis. This is well recognised in the medical literature … but does not appear to have been taken into account in the decision. …

    6. … I have come to the conclusion that the hypertension had not been optimally managed as would have occurred under best practice is civilian life.

16. In his second report dated 5 August 2013, Professor Nestel said:

    I remain of the opinion that Mason suffered from hypertension which fluctuated in intensity, responded to treatment but that was untreated for an unspecified time until shortly before his death.

17. In his oral evidence, Professor Nestel said the evidence suggested that Mr Mason had not been treated by a specialist. The fact of his being diagnosed with hypertension at such an early age as 31, required, in Professor Nestel’s opinion, that he should have been referred to a Cardiologist for assessment and treatment, which would have been best practice in civilian life. This might have involved 24 hour monitoring of Mr Mason’s blood pressure to see if his blood pressure fluctuated in the course of the day, performing an echocardiogram - from which an enlarged heart would have been apparent - and more powerful medication. Professor Nestel said the drugs prescribed for Mr Mason and the dosage were not, in his opinion, the best available for his condition in the mid-2000s. Thus, Professor Nestel said while the RAAF doctors seem to have managed Mr Mason reasonably well, they did not do so optimally and consistent with best practice.

    Professor Michael O’Rourke

18. Professor Michael O’Rourke, Cardiologist at St Vincent’s Hospital in Sydney and Professor of Medicine at the University of NSW, provided a report dated 29 May 2012 at the request of the Respondent and gave evidence in person at the hearing. In his report, referring to Professor Nestel’s first report, Professor O’Rourke commented:

    1. Hypertension. … I believe there is ample evidence in the notes provided that Mr. Mason had careful scrutiny of his blood pressure over the years and that his management of blood pressure was completely appropriate over the whole time of his military service. The average levels of blood pressure were well within the normal range and the vast majority below the 135mmHg systolic and 90mmHg diastolic.

    2. Specific blood pressure recordings. Professor Nestel noted elevation of blood pressure of 146-160 systolic and 90-105mmHg diastolic on five occasions in the medical notes. On each occasion these were the initial recordings and blood pressure was subsequently recorded as normal. … The definition of hypertension requires persistent elevation of arterial pressure. The levels given by Professor Nestel are those of a type which would be seen when a person was excited or alarmed to a minor degree and consistent with other attendances with pain from orthopaedic injuries. …

    5. … I believe that it is most likely that coronary artery disease, described in the autopsy report, was the cause of death. No other cause of death was found. … There appears to have been no reason to suspect cardiac disease in this man and so no reason to have an echocardiogram performed. The mild cardiac hypertrophy is I believe attributable to Mr. Mason’s bodily status with a height of 179cm and weight of 97kg. Mild hypertension controlled by therapy may have been a contributing factor.

    6. Professor Nestel states that he has come to the conclusion that hypertension had not been optimally managed as would have occurred under best practice in civilian life. There would be few people in civilian life who would have had the access to medical care which was available to Mr Mason. The medical care that Mr. Mason received was that recommended by the National Heart Foundation and by guidelines of various professional bodies around the world. I disagree with Professor Nestel’s views.

    …

    Specific Questions

    a) …

    Ans. The autopsy findings showed evidence of cardiac enlargement of moderate degree. I believe that this is attributable to Mr. Mason’s large body size to a substantial degree. Certainly the deceased’s blood pressure was well managed. There is no other inconsistency with autopsy findings. …

19. Professor O’Rourke said that the 50-60% stenosis found in the left anterior descending artery “is sufficient during exercise in a football match to bring about myocardial ischemia, and an arrhythmia such as ventricular fibrillation which can cause cardiac arrest and death”.

20. In answer to a question about the treatment provided to Mr Mason, Professor O’Rourke said that “the treatment provided to the deceased for hypertension was totally in accordance with appropriate clinical management”. In oral evidence, he said that, in his opinion, Mr Mason was better treated than many in civilian life.

21. Professor O’Rourke said a person’s blood pressure can vary as a result of a number of factors. In Mr Mason’s case, the vast majority of the readings were within the normal range and the variations were relatively minor and not consistent. The variations can, in some instances, be explained according to whether Mr Mason was rested or seated at the time the readings were taken. Professor O’Rourke said having a hypertrophied ventricle is more closely related to coronary artery disease than hypertension. Mr Mason’s hypertrophied left ventricle could account for fibrosis and plaque but there is no evidence from the autopsy, either macroscopically or microscopically, of a rupture of plaque.

22. I asked Professor O’Rourke to comment on Professor Nestel’s evidence about what optimal treatment would have constituted in Mr Mason’s case. Professor O’Rourke said he disagreed with Professor Nestel that 24 hour monitoring was required in Mr Mason’s case: his blood pressure readings were not even borderline. Moreover, such a case does not raise the need for echocardiography. With regard to the medication prescribed for Mr Mason, Professor O’Rourke said that in his view Renitec (Enalapril maleate) was a reasonable drug to use although he acknowledged that this is one of the older drugs that is usually taken twice daily, rather than newer longer duration drugs that are only taken once a day and with which compliance is often better.

    Other Medical Evidence

23. There was also medical evidence contained in the Tribunal documents, for example medical reports, clinical records, and the autopsy report, and the Applicant provided the Tribunal with copies of other further relevant Department of Defence medical documents, in particular, clinical records.

    SUBMISSIONS

24. At the conclusion of the hearing, given the extensive clinical records in relation to Mr Mason’s blood pressure, I asked the parties to put their submissions in writing to facilitate my giving them proper consideration.

    Applicant

25. Mr Colborne, for the Applicant, noted Professor Nestel’s evidence that the aim of treating hypertension is to ensure a person’s blood pressure remains within normal limits. Professor Nestel said Mr Mason should have been referred to a specialist given the diagnosis of hypertension at such a young age, and should have been investigated with 24 hour monitoring and had a more effective regime of medication. Mr Colborne referred to Professor O’Rourke’s evidence that the vast majority of Mr Mason’s blood pressure readings were within the normal range. The Applicant submits this was not the case and that Professor O’Rourke’s observations are not consistent with the clinical records for the period 1992 to 2006 which show 24 blood pressure readings with either a systolic reading of 140mmHg or greater or a diastolic reading of 90mmHg or greater, as opposed to 18 readings that were normal. Mr Colborne also noted that Professor O’Rourke appears to have been working with a definition of hypertension that was not consistent with that in the SoP.

26. Mr Colborne said the Applicant submits Mr Mason was not receiving appropriate clinical management of his hypertension because:

    ·He should have had 24 hour monitoring of his blood pressure to see if it was adequately controlled, a matter that was raised by a Commonwealth Medical Officer on 9 December 1997. Mr Colborne said the fact that ambulatory blood pressure monitors were not in use by General Practitioners (GPs) until 2006 is beside the point given that such monitoring might have occurred had Mr Mason been referred to a specialist following Mr Mason’s 1997 diagnosis.

    ·Given his young age when hypertension was diagnosed and numerous elevated blood pressure readings, he should have been referred to a specialist to optimise treatment.

    ·His intermittent blood pressure readings should have resulted in more aggressive treatment to maximise the times when his blood pressure was normal: it was the high blood pressure readings while on treatment that was the basis for Professor Nestel’s opinion that the treatment had not been optimal.

    ·Inadequate control of his hypertension by Enalapril meant that he probably had intermittent high blood pressure that caused damage to his heart.

27. Mr Colborne referred the Tribunal to the decision of Senior Member Professor Creyke in Quinlivan and Repatriation Commission [2013] AATA 191. Mr Colborne submitted that Mr Mason was dependent on the RAAF for treatment. There is no evidence to suggest that Mr Mason believed the treatment he was receiving was inappropriate. Mr Colborne also referred to the decision in Brew v Repatriation Commission (1999) 94 FCR 80, at [30], where Merkel J, with whom Mansfield J agreed, said:

    If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a "condition of being unable" to obtain treatment.

28. Mr Colborne said the facts of that case explain the reference to psychological or emotional circumstances, but any circumstances that have that effect will constitute an inability to obtain appropriate clinical treatment.

29. Mr Colborne contended that Mr Mason’s inability to obtain appropriate clinical treatment was a consequence of the treatment provided to him by RAAF medical staff and was clearly related to service (s 196B(14)(b) of the Veterans’ Entitlements Act 1986 (VEA 1986)). Professor Nestel’s evidence was that failure to control Mr Mason’s blood pressure meant that it was intermittently abnormal and this led to ventricular hypertrophy. Thus, Mr Mason’s service made a material contribution to his hypertension. Mr Colborne noted that service only has to make a contribution to inability to obtain appropriate clinical treatment and if Mr Mason was on five occasions not fully compliant with treatment, this has to be seen in the context of the large number of reviews of Mr Mason’s condition undertaken over the relevant period.

1. With regard to Mr Mason ceasing to take medication 18 months prior to his being reviewed on 22 March 2006 and remaining “normotensive”, Mr Colborne said discontinuing medication is likely to have been on medical advice and “it seems probable that some RAAF records are missing”. (Mr Kelly responded that one would have expected a recommendation from treating doctors to cease medication to have been recorded in writing. He said the fact of Mr Mason’s level of fitness being upgraded to medically fit without restriction is consistent with his having remained normotensive despite having ceased medication 18 months previously.)

   Respondent

2. Mr Kelly, for the Respondent, submitted that there is no evidence of clinical worsening after Mr Mason was diagnosed with hypertension. After he was diagnosed with hypertension in 1997, Mr Mason was trialled on different doses on Enalapril to monitor the effect on his blood pressure and any side effects. It was during this period of trialling different doses that the Commonwealth Medical Officer questioned whether 24 hour monitoring of Mr Mason’s blood pressure was required. It was not until 22 July 1998 that his blood pressure was considered stabilised with treatment. There was no evidence to suggest that this process was out of the ordinary, inappropriate or less than optimal clinical management. Professor Nestel stated that Enalapril was a very good drug “in the 1990s” but its disadvantage was that it needed to be taken twice daily because it did not have 24 hour coverage. Professor O’Rourke considered Enalapril a very good drug for the treatment of hypertension although he acknowledged that since 2006, doctors prescribe medication with a longer lifespan because patients comply with such a medication regime better.

3. Mr Kelly referred to Professor O’Rourke’s evidence that he would not have recommended 24 hour monitoring and that there are no agreed guidelines for this. Mr Kelly noted that it is only with the benefit of hindsight and the evidence revealed by the autopsy of an enlarged heart and left ventricular hypertrophy that Professor Nestel formed the opinion that an echocardiogram should have been performed in Mr Mason’s case. Professor Nestel initially said that it “was not unusual for a person who develops hypertension early in life to be seen by a specialist”. Asked by Mr Colborne “Would you say that he didn’t receive appropriate clinical treatment for his condition?”, Professor Nestel answered:

   No. I said quite clearly that I – I thought the RAAF doctors managed him reasonably well. What – what I’d say just now was that it wasn’t optimal and it wasn’t consistent with best practice, assuming that he had not been seen by a specialist cardiologist …

   However, Professor Nestel acknowledged that many civilians suffering from hypertension receive neither optimal management nor best practice treatment.

4. Mr Kelly submitted that provided there was a timely diagnosis followed by treatment by a suitably qualified medical practitioner exercising due care, skill and diligence, it matters not that some other possibly more appropriate or optimal treatment representing best practice might have been available. There is no evidence of an inability to obtain clinical management which was appropriate. Such an inability cannot be inferred from Mr Mason having been provided with medical treatment by the RAAF. Moreover, the clinical records indicate that on a number of occasions Mr Mason was not fully compliant with treatment: that he ran out of Enalapril or did not need to take Enalapril for a time without adverse effect. For example, for between 18 months and two years before his death he was not taking medication. No evidence was presented that it was ever recommended to Mr Mason that he cease taking his medication. The Respondent submits that it should be inferred that he chose to discontinue taking his medication.

5. Mr Kelly submitted that the question of whether there was a material contribution to or aggravation of Mr Mason’s hypertension only arises in relation to the period after 22 July 1998. On that date, Mr Mason’s clinical notes record that his blood pressure was stable on medication and that there was no need for him to be monitored as frequently. After that date, there were blood pressure readings on 34 occasions with readings consistent with the SoP definition of hypertension on only 10 occasions. However, given Professor Nestel’s evidence that in managing a person’s hypertension long term, intermittent increases in blood pressure are not unusual, and Professor O’Rourke’s evidence that a person’s blood pressure varies with different activities, elevated blood pressure readings are not in themselves evidence of material contribution or aggravation. Professor Nestel’s reliance on the autopsy evidence of an enlarged heart and hypertrophied left ventricle as evidence of aggravation was not shared by Professor O’Rourke. Professor O’Rourke considered the mild cardiac hypertrophy may have been attributable to Mr Mason’s height and weight and, while mild hypertension controlled by therapy may have been a contributing factor, Mr Kelly said this cannot be regarded as a contribution or aggravation caused by an inability to obtain appropriate clinical management.

6. Mr Kelly noted that Professor Nestel had conceded that, in his initial report, his statement that the probable cause of the enlarged heart and left ventricle hypertrophy was hypertension drew on a report by Dr M Kumaran dated 23 January 2008. The Respondent submits the report was for the purpose of classifying how the Applicant’s claim should be classified and should not be considered a detailed report regarding Mr Mason’s condition. (Mr Colborne commented that notwithstanding that it was not a detailed report, there is no basis for saying it was not a considered opinion.)

7. Mr Kelly’s noted Professor O’Rourke’s evidence that not all civilian doctors would have referred Mr Mason to a specialist for assessment. Professor O’Rourke thought Enalapril an appropriate medication and considered that Mr Mason was receiving appropriate clinical treatment. He said it was inevitable that there would be variations in Mr Mason’s blood pressure readings over time and according to his activity at the time of the reading and, for example, where a reading was taken at a time Mr Mason had sporting injuries. Even Professor Nestel acknowledged that Mr Mason was being reasonably well treated.

8. Mr Kelly referred to Professor O’Rourke’s evidence that he thought it more likely that the hypertrophy of Mr Mason’s left ventricle was related to coronary artery disease than hypertension. However, if the Tribunal accepts that the enlargement of Mr Mason’s heart or hypertrophy of the left ventricle was caused or contributed to by hypertension, the Respondent submits that it cannot be established that such contribution resulted from an inability to obtain appropriate clinical management.

9. With regard to the medication prescribed for Mr Mason, Mr Kelly submitted that Professor O’Rourke’s evidence that any change in medication might have been expected after 2006 should be preferred. With regard to Professor Nestel’s evidence about the use of ambulatory 24 hour blood pressure monitors, Mr Kelly noted that Professor Nestel acknowledged that such monitors were not in widespread use by GPs at that time and that there is nothing to suggest that this would have prevented any identified worsening of Mr Mason’s hypertension. Similarly, Professor Nestel did not indicate a time when an ECG should have been conducted, following referral to a Cardiologist.

10. Mr Kelly noted that the evidence establishes that from 10 February 2005, Mr Mason was not having regular treatment to reduce his blood pressure and his blood pressure readings from that date do not satisfy the definition of hypertension in the SoP. He concluded that the Applicant cannot therefore claim that Mr Mason’s hypertension was materially contributed to or aggravated by an inability to obtain appropriate clinical management.

    DISCUSSION

11. As stated above, the first issue for the Tribunal to decide is whether the clinical management of Mr Mason’s hypertension was appropriate. It appears from the clinical records that prior to October 1997, with one exception, when Mr Mason’s blood pressure was checked it was within the normal range – that is less than 140/90 according to the definition of hypertension in clause 2(b) of SoP No 36 Hypertension. On 11 October 1997, his blood pressure was 140/110 when he presented with an injury following a rugby match and it remained elevated when checked over the following days. On 13 November 1997, when his blood pressure was still elevated, Mr Mason was diagnosed as having hypertension and he was commenced on Enalapril. In a clinical record dated 9 December 1997, a Commonwealth Medical Officer, after noting Mr Mason’s blood pressure as 150/100, and 130/90 after five minutes rest, and noting that Mr Mason had taken Enalapril over the previous week, added “? 24 hour BP Monitoring”.

12. Over the course of the next few weeks, Mr Mason’s blood pressure continued to be monitored and the dosage adjusted. His blood pressure appears to have been within normal limits on 22 January 1998, he was hypertensive on 12 February 1998 having run out of Enalapril several days earlier, his blood pressure was within normal limits on 22 June 1998, but was 130/92 standing on 25 June 1998, and he was hypertensive on 29 and 30 June 1998. Mr Mason’s Enalapril dosage was increased on 1 July 1998 and, on 22 July 1998, when his blood pressure was 120/80, the medical officer recorded that there was “No need for monitoring as frequently now”. However, Mr Mason’s blood pressure continued to be checked every few months.

13. At various times when his blood pressure was checked over the next few years, Mr Mason was hypertensive. In a medical review on 14 April 2000, Mr Mason’s blood pressure was recorded as “well controlled” on Enalapril: he was “fit for full duties but requires access to a pharmaceutical resupply and periodic MO review”. There are clinical records of his blood pressure between 2000 and February 2005. A review dated 30 June 2004 found Mr Mason’s hypertension “well managed on medication without side effects”. At the time of a review on 10 February 2005, Mr Mason was no longer taking medication , he was found to be “fit and well”, but it was noted that his parents had blood pressure problems – this had previously been noted on 20 August 1998.

14. On 28 February 2006, Mr Mason’s blood pressure was recorded as 100/70. On 2 March 2006, the clinical notes record that he was hypertensive and that he had not taken any medication for more than two years. On 15 March 2006, Mr Mason’s blood pressure was 120/80. Finally, on 22 March 2006, in a Medical Review, it was noted that Mr Mason’s medication for hypertension “was ceased some 18 months ago. Sgt Mason has remained normotensive”. His medical fitness level was upgraded to “Medically fit, without restriction”.

15. On 22 April 2006, Mr Mason “collapsed suddenly whilst playing football … and…could not be resuscitated” (Report of the Autopsy performed on 24 April 2006 dated 26 June 2006).

16. Both Professor Nestel and Professor O’Rourke have expressed their opinions on the issue of whether the clinical management of Mr Mason’s hypertension was appropriate. Professor Nestel’s general comment was that the RAAF doctors had managed Mr Mason reasonably well. Nevertheless, Professor Nestel said the treatment was not optimal and consistent with best practice. Professor O’Rourke commented that few people in civilian life would have had access to the medical care available to Mr Mason. He said the medical care Mr Mason received was that recommended by the National Heart Foundation and by the guidelines issued by professional bodies.

17. There are a number of aspects of Mr Mason’s treatment. First, in relation to the review of his blood pressure readings, the evidence of the clinical records referred to above shows that his blood pressure was checked at regular intervals leading up to and after the diagnosis that he was suffering from hypertension. On 22 July 1998, the treating Medical Officer appears to have been satisfied that treatment with Enalapril had stabilised Mr Mason’s blood pressure so that less frequent monitoring was required. In the medical review conducted on 14 April 2000, the reviewing officer stated that Mr Mason’s blood pressure was “well controlled”.  Mr Mason’s blood pressure continued to be checked at regular intervals, although by 10 February 2005, he was no longer taking medication. Amongst the documents provided, there is no record as to exactly when he stopped taking medication and why.

18. In his report dated 19 March 2012, Professor Nestel said he had reviewed as many blood pressures as he could find and “to the credit of the RAAF doctors BP was measured frequently”. He noted five elevated blood pressure readings but also noted “that many other readings were well within good management levels”. In his later report dated 5 August 2013, Professor Nestel, while noting the raised BP readings, also commented that “There were of course normal values also and in my report I praised the RAAF doctors for their frequent observations and management during this time.”

19. In oral evidence, Professor Nestel said intermittent increases in blood pressure are not unusual in a person with hypertension, further::

    … blood pressures rise more with various environmental stressors, such as exercise or mental stress in a person who has intermittently high readings than they do in a person who has consistently normal blood pressure.

    However, Professor Nestel said the fact that Mr Mason’s hypertension was intermittent, suggests that his treatment was not optimal. In answers to questions in cross-examination, Professor Nestel agreed that many civilians suffering from hypertension receive neither optimal management nor best practice treatment.

20. In his report dated 29 May 2012, Professor O’Rourke said:

    I believe there is ample evidence in the notes provided that Mr. Mason had careful scrutiny of his blood pressure over the years and that his management of blood pressure was completely appropriate over the whole time of his military service. The average levels of blood pressure were well within the normal range and the vast majority below 135mmHg systolic and 90mmHg diastolic.

    Professor O’Rourke said that given “the multiple measures of blood pressures in the clinical notes and the response to mild antihypertensive therapy”, no argument of inability to obtain appropriate clinical management can be validly argued: he said “the treatment provided to the deceased for hypertension was totally in accordance with appropriate clinical management”.

21. In oral evidence, Professor O’Rourke said blood pressure varies with all sorts of activities:

    When people are aroused and competing it varies all over the place and so we try to ensure the person is resting and relaxed at the time the blood pressure is taken to get basal levels of blood pressure.

    If a person is said to have hypertension, then his/her blood pressure would need to be consistently elevated above 140/90. In Mr Mason’s case, the variations “are relatively minor”:

    But around 140 over 90 in a young man like this, tall, well, maybe tending to be an overweight man, that wouldn’t be considered a worry.

    Professor O’Rourke said Mr Mason “was better management [sic] than most people in civilian life”.

22. Having reviewed Mr Mason’s blood pressure readings over the relevant period and having had regard to the expert evidence, I am satisfied that the review of Mr Mason’s blood pressure readings over this period was appropriate. Mr Mason’s blood pressure was reviewed at regular intervals and the experts appear, for the most part, to agree that this aspect of Mr Mason’s clinical management was appropriate.

23. Secondly, with regard to whether the medication prescribed for the control of Mr Mason’s hypertension was appropriate, as stated above his hypertension seems to have stabilised using Enalapril by 22 July 1998 and, in the medical review conducted on 14 April 2000, the reviewing officer stated that Mr Mason’s blood pressure was “well controlled” on Enalapril. Professor Nestel said Enalapril “was a very good drug in the 1990s” but its disadvantage was the need for it to be taken twice daily because of its relatively short half-life:

    … it was eventually, certainly by the mid-2000s, replaced by a whole series of ace inhibitors or similar kinds of drugs which have a longer period of efficacy. So to me the use of Enalapril even into 2006, suggested that he had not been seen by a senior consultant in the RAAF because I believe a specialist would probably have changed the nature of the treatment. In addition to this, a specialist would probably have requested an echocardiogram to demonstrate the possibility that the heart had already enlarged and that there was a left ventricular hypotrophy.

    Professor Nestel said “in the final analysis it was not the best treatment, not the best drug”.

24. Professor O’Rourke said that Enalapril was:

    … a very, very good drug for the treatment of hypertension and for heart failure. And the major studies on the treatment of hypertension and heart failure were done with Enalapril.

    However, Professor O’Rourke acknowledged that Enalapril has a relatively short half-life – a less prolonged action in the body than more modern agents. He said that since 2006, drugs with a longer duration of action have been used and thus not Enalapril. But Enalapril was used in major trials in the US just before 2006 and was a very reasonable drug to use in Mr Mason’s case even though Professor O’Rourke would not now prescribe it.

25. I am satisfied from the expert evidence that Enalapril was appropriate treatment for hypertension at the time of Mr Mason’s diagnosis with hypertension in late 1997 and continued to be appropriate treatment until probably the mid-2000s. During the period to early 2005, Mr Mason’s hypertension appears to have been relatively well controlled by Enalapril and, while by 2006, the experts agree that it was no longer the best medication available because of its shorter half-life, by this time Mr Mason was no longer taking medication for hypertension, his having discontinued this by early 2005.

26. Thirdly, with regard to the need for specialist assessment and treatment, Professor Nestel said “it’s not unusual for a person who develops hypertension early in life to be seen by a specialist” – to be referred to a cardiologist for assessment and treatment - which would have been best practice in civilian life. He said assessment might have involved 24 hour monitoring of Mr Mason’s blood pressure to see if his blood pressure fluctuated in the course of the day, and performing an echocardiogram - from which an enlarged heart would have been apparent. In his report dated 5 August 2013, Professor Nestel said:

    When I was mildly critical of the manner of his management in the final year(s), I considered that a man who developed treatable hypertension at age 31 may have required better supervision with a target well below 140/90. I understand he was not being treated at that time. It was unfortunate that treatment was allowed to lapse for whatever reason (as I understood the situation). Ambulatory BP monitors were already available in 2006 and used by cardiologists when doubt arose about the true blood pressure in a vulnerable individual.

27. With regard to the use of a 24 hour blood pressure monitor, Professor Nestel said this would have established whether Mr Mason had significantly raised blood pressures for part of the day. While “this would not necessarily have been carried out in all general practices … [it] would certainly have been carried out … in specialist clinics or by specialists that would be consistent with best practice.”. Although the RAAF doctors “managed him reasonably well ... it wasn’t optimal and it wasn’t consistent with best practice”: “it would have been appropriate” for Mr Mason to have been referred to a cardiologist.

1. In cross-examination, Professor Nestel agreed that 24 hour blood pressure monitoring devices were not in widespread use by GPs in 2006. In his report dated 19 March 2012, while acknowledging that “clinical evidence of ischaemic heart disease became manifest only through his [Mr Mason’s] sudden cardiac death”, Professor Nestel said:

   In a civilian environment in the mid 2000s he may well have had a proper evaluation of function and his cardiac hypertrophy diagnosed with an echocardiogram.

   This suggests that in terms of a time frame, much of Professor Nestel’s focus was on best practice in the mid-2000s rather than in the period from 1997.

2. In cross-examination at the hearing, Professor O’Rourke confirmed the statement he made in his report that, based on the vast majority of readings, the average level of Mr Mason’s blood pressure was well within the normal range. He said the Guidelines of the European Society of Hypertension would not have recommended 24 hour blood monitoring in a situation like this where there were multiple recordings, most of them on the lower side of 140/90. Moreover, the Guidelines do not recommend echocardiography in a case such as this.

3. In my view, given that Professor Nestel’s focus appears to be the mid-2000s and that the experts’ evidence about Mr Mason’s blood pressure readings indicates that these were appropriately monitored, and in the light of Professor O’Rourke’s evidence indicating that 24 hour monitoring and echocardiography would not ordinarily have been warranted in a case such as Mr Mason’s, I am not satisfied that the clinical management of Mr Mason’s hypertension was not appropriate. While it could be speculated that some treating doctors might have taken a different approach to the RAAF doctors’ clinical management of Mr Mason’s hypertension, I am not satisfied that had Mr Mason been treated in civilian life, the treatment he received would have been any different from that which he received while serving in the RAAF.

4. There is no evidence of clinical worsening after Mr Mason’s diagnosis with hypertension. The evidence suggests it was thought that his condition might have improved: in the Medical Review on 22 March 2006 it was noted that Mr Mason “has remained normotensive”, his having ceased taking medication for hypertension “18 monts [sic] ago”. Mr Mason’s medical fitness level was upgraded to “medically fit, without restriction”.

5. I am not satisfied from the evidence that treatment during the course of his service made a material contribution to the development of his disease or aggravated that disease: Johnston v Commonwealth (1982) 150 CLR 331, at 340 and see Repatriation Commission v Money [2009] FCAFC 11, at [42].

6. Having so concluded, the Tribunal must affirm the decision under review and it is unnecessary for me to consider the other issues identified above which would follow from a finding that the clinical management of Mr Mason’s condition was not appropriate. The Tribunal nevertheless acknowledges Mr Mason’s service to Australia and the very significant loss to Ms Mason and their family as a result of Mr Mason’s death at such a young age.

   DECISION

7. The Tribunal affirms the decision under review.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.

...............................[SGD]..............................

Associate

Dated   8 October 2013

Date(s) of hearing	12 August 2013
Date final submissions received	2 September 2013
Counsel for the Applicant	C Colborne
Solicitors for the Applicant	KCI Lawyers
Counsel for the Respondent	B Kelly
Solicitors for the Respondent	Australian Government Solicitor