May v Military Rehabilitation and Compensation Commission
[2011] AATA 886
•14 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
[2011] AATA 886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2351
VETERANS’ APPEALS DIVISION ) No 2010/4032 Re Benjamin May Applicant
And
Military Rehabilitation and Compensation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Dr H Haikal-Muktar, Member
Date14 December 2011
PlaceSydney
Decision The Tribunal decides that:
(i) Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, Mr May’s application lodged on 10 June 2010 is dismissed.
(ii) With regard to Mr May’s application lodged on 21 September 2010, and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, dated 22 April 2010, is affirmed.
....................[sgd].......................
Mr R P Handley
Deputy President
CATCHWORDS
COMPENSATION – Military rehabilitation and compensation – claim in respect of low immunity, fatigue, illnesses, dizziness – whether applicant suffered an “injury” – whether sudden or identifiable physiological change – in the course of employment – whether applicant suffered a disease – material contribution – vaccinations – reviewable decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
Comcare v Sahu-Kahn (2007) 156 FCR 536
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
McDonald v Director-General of Social Security (1984) FCR 354
Re Montesalvo and Australian Postal Corporation [2011] AATA 319
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Re Provost and Repatriation Commission [2011] AATA 153
Re Stace and Military Rehabilitation and Compensation Commission [2009] AATA 134
REASONS FOR DECISION
14 December 2011 Mr R P Handley, Deputy President Dr H Haikal-Muktar, Member 1. Benjamin May has applied for a review of two decisions of the Military Rehabilitation and Compensation Commission (MRCC): first, a decision dated 2 March 2010 refusing to extend the time to reconsider a decision made on 11 March 2003 denying liability for a claim in respect of “low immunity, fatigue, illnesses, dizziness – immune system/whole body” – Mr May’s application in respect of this decision was lodged on 10 June 2010 (2010/2351); and second, a decision dated 22 April 2010 in which the decision dated 11 March 2003 was reconsidered but affirmed – Mr May’s application in respect of this decision was lodged on 21 September 2010 (2010/4032). The second decision rendered a review of the first decision unnecessary and the Tribunal has therefore dismissed Mr May’s first application for lack of utility under s 42B(1) of the Administrative Appeals Tribunal Act 1975, which also covers situations where an application, for whatever reason, now lacks substance.
Background
2. Mr May was born in 1975 and is aged 36. He enlisted in the Royal Australian Air Force (RAAF) on 6 November 1998 and was discharged on 30 July 2004 at the rank of Officer Cadet. On 29 November 2002, Mr May lodged a claim for rehabilitation and compensation dated 20 November 2002 in respect of “low immunity, fatigue, illnesses, dizziness” which he claimed was caused by vaccinations received in the course of his employment in the RAAF. On 11 March 2003, a MRCC delegate denied Mr May’s claim noting that specialists who had examined Mr May had been unable to diagnose any specific condition or determine a cause for his symptoms, and the delegate was therefore unable to connect the claimed condition with his RAAF service.
Relevant Legislation
3. Pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), the MRCC will be liable “to pay compensation … in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”. The principal issue in this case is whether Mr May suffered an ‘injury’ as defined in the SRC Act.
4. At the relevant time, the following definitions appeared in s 4(1) of the SRC Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
5. Thus, where a person has suffered an injury other than a disease (often referred to as an injury simpliciter), the causal connection of which the Tribunal must be satisfied is that the injury arose out of or in the course of their employment. Where a person has suffered from a disease, the Tribunal must be satisfied that the disease, or any aggravation of the disease, was contributed to in a material degree by the person’s employment.
6. In Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, the High Court said that a long line of decisions in Australia had recognised that for there to be ‘an injury’ requires that it be established that there has been “a sudden or identifiable physiological change”: Gleeson CJ and Kirby J at [35]. If an injury, in what was described as the “primary sense of that word”, happens in the course of the person’s employment, “it is ordinarily compensable without proof of a specific causal connection with the worker’s employment”: at [39].
7. Mr May contends that he suffered an injury simpliciter and not a disease and that there is sufficient evidence to establish a causal link between his condition and the vaccinations he received while in the RAAF. The MRCC contends that whether Mr May’s condition is treated as an injury simpliciter or a disease, there is an insufficient causal link, there being no clear diagnosis for his condition and it having not been established that his symptoms are connected with the vaccinations he received. It therefore denies liability to pay compensation to Mr May under s 14(1) of the SRC Act.
Mr May’s Oral Evidence
8. Mr May told the Tribunal that his father was a pilot and aircraft maker. Mr May was involved with riding motorbikes, driving cars and flying aircraft from an early age. Inevitably, as a result, he suffered various minor injuries. He contracted pneumonia in 1990 and was sick for about two weeks. In 1992, he injured his back in an accident in a ‘war bird’. He has been advised that neither of these incidents have had any long lasting effect on his health. In 1996, he had health problems that appear to have been associated with him contracting glandular fever. At that time, Mr May was in his third year of a degree in aviation at the University of Newcastle and engaging in a wide range of extracurricular activities such as cycling, water skiing and surfing, as well as flying a variety of aircraft. In July 1996, he undertook work experience and by the end of the month was feeling less energetic than usual. He consulted his general practitioner on 25 August 1996. In September 1996, Mr May hosted his 21st birthday party. In October 1996, he started shedding activities to concentrate on studying for his exams. In November 1996, after his exams, he took a break of three weeks to relax and then underwent his medical examination for entry into the RAAF which, he said, he “duxed”.
9. Mr May said that while he experienced fatigue in 1996, it was quite different to the fatigue and vertigo he experienced after receiving vaccinations in the RAAF. The doctor who examined Mr May for his RAAF medical on 26 November 1996, recorded that Mr May suffered from dizziness. Mr May said this was an inaccurate description – what he described was light headedness as a result of feeling fatigued, which was quite different from the chronic dizziness or vertigo he later suffered and still suffers which involves a disequilibrium. In February 1997 and October 1997, Mr May had further RAAF tests to check that his back injury and glandular fever had resolved, after which he was found to be A1 fit and healthy. Early in 1998, he had a flight test after which he was accepted for entry into the RAAF. The RAAF agreed to defer his entry for 12 months and he went to Germany to undertake a kung fu course. However, later in 1998, the RAAF was pressing for him to join earlier and he therefore returned to Australia via the United States, arriving home in November 1998.
10. Mr May said he underwent a “barrage” of medical tests and was found fit to fly. This was notwithstanding that, at the time of the tests, he was tired from travelling back to Australia and his return home, having the medical tests in Sydney and then travelling to Melbourne for entry into the RAAF, all of which involved a lot of driving. After arrival at RAAF Laverton on 6 November 1998, he was informed that he was required to have various vaccinations. He had already had a Twinrix vaccination in January 1998 and questioned why he had to have a further Twinrix vaccination. Despite a blood sample being taken to ascertain whether he had Hepatitis A and B immunity, and before his pathology test results were available, he was told to have a further Twinrix anyway and he had this and the ADT(B) vaccinations on 10 November 1998. Mr May said that the pathology test results subsequently showed that he had the necessary Hepatitis A and B immunity and did not need the further Twinrix vaccination. He claims that the medical staff ignored safety procedures and there was a culture of ignoring safety concerns.
11. Mr May said that about 30 to 60 minutes after receiving the Twinrix vaccination, the roof of his mouth and his tongue began to feel strange and his tongue felt bigger and swollen. When eating lunch, this affected the feeling he had in his mouth. Over the next few days, he felt nausea and stomach discomfort and within a week he was struggling to keep attending work even though he was still passing the fitness tests because, he said, of his being very fit on entry. On 24 November 1998, he reported sick. Notwithstanding this, he went with other new cadets on a training exercise to the Grampians. While there, he found it was very difficult to deal with the diarrhoea he was experiencing and reported to the Emergency Room where he was put on a saline drip.
12. Mr May said that over the next few months, his fitness began to decline. His teeth became sore, his glands were swollen, he had headaches, and he experienced a feeling of disequilibrium, which he described as an incorrect perception of the spatial environment. Thus, Mr May dates his vestibular problems from this time. As he feels less well, he feels dizzier. He also contracted an upper respiratory tract infection. Mr May said he does not attribute all his symptoms to the vaccinations on 10 November 1998.
13. Mr May said he also suffered adverse drug reactions to later vaccinations although these might have been an aggravation of the initial reaction to the first vaccinations. Each further vaccination gave rise to a “constellation of symptoms” and his fitness decreased rapidly on each occasion. In May 1999, he was hospitalised in Newcastle and after this, he was transferred to Perth. There he suffered continuing upper respiratory tract infections and, at one stage, he was again hospitalised and was near to dying. He was diagnosed with mycoplasmal pneumonia.
14. Mr May said the RAAF doctors initially refused to send him to see an Immunologist, but eventually he was referred to Dr Martin Stuckey, a Clinical Immunologist in Perth, who decided to try him on gammaglobulin therapy and put him on Intragam infusions which had worked for several other pilots Dr Stuckey had treated. Such treatment required that he was “grounded” for 48 hours after each infusion and not permitted to fly. However, his symptoms improved significantly and when, ultimately, he was taken off Intragam after further immunological investigations and an assessment by another Clinical Immunologist, Dr David Sutherland in Newcastle, his symptoms increased. For example, Mr May described experiencing vertigo after aerobatic manoeuvres and the difficulty he experienced in landing an aircraft.
15. Mr May said he had not made a claim for workers compensation before 29 November 2002 because he had been frightened of losing his job. However, by that time it was clear to him that he was not going to get the treatment he needed. Mr May expressed some bitterness about his treatment in the RAAF, both by his senior officers and some medical officers.
Medical Evidence
16. Mr May has provided a significant number of documents to the Tribunal. The Tribunal has deliberately not referred to all those documents, preferring to refer only to those documents that are material to its review.
17. Mr May’s service medical records indicate that Mr May developed glandular fever in April 1996 but, on 11 December 1996, his general practitioner, Dr Catherine Girdler, confirmed that he had “clinically recovered” from this. However, Mr May continued to experience fatigue thereafter. On 16 December 1997, Dr Jane Wu of the Immunology Clinic at St Vincent’s Hospital in Sydney, noted that Mr May had presented to the clinic with chronic fatigue that appears to have been secondary to glandular fever. In the last few months, Mr May had noticed a considerable improvement in his energy levels and felt he was “back to normal”. After examining Mr May, Dr Wu said his chronic fatigue “appears to have resolved”.
18. Prior to commencement of service, Mr May received a first dose of the Twinrix vaccine (against Hepatitis A and B) in January 1998. After Mr May commenced his service on 6 November 1998, he had the following vaccinations:
·10 November 1998: ADT(B) (diphtheria/tetanus) and a second dose of Twinrix;
·18 December 1998: Sabin (OPV) (an oral polio vaccine) and MMR (measles, mumps and rubella);
·21 January 1999: Typhim Vi (typhoid);
·10 February 1999: BCG (tuberculosis) following testing on 8 February 1999, and a second dose of Sabin (OPV) (polio);
·30 March 2000: Pneumovax (pneumococcal vaccine).
19. The first medical record for Mr May in the period after the vaccination on 10 November 1998 is on 22 November 1998 when, possibly, a nurse recorded that Mr May had reported sick with a three day history of nausea and loose bowel motions, stating that he had a hepatitis injection a week ago and also had a spongy soft palate. The doctor who examined him diagnosed a viral illness. Mr May was reviewed by Chief Medical Officer Dr Vicky Grove on 23 November 1998 who recorded that Mr May was feeling better but had a “cough – yellow phlegm, sore abdo, diarrhoea settled”. On 26 November 1998, she again reviewed Mr May noting that he had been sent on an exercise, had been “OK 1st day … unwell later” and had been treated at Horsham Hospital. (A letter from Wimmera Health Care Group noted that on 24 November 1998 Mr May was treated in the Emergency Department for viral gastroenteritis.) His nausea had settled, but he still had “some recurrence of diarrhoea/loose motions”, headache, no energy and some abdominal discomfort. In her notes on 26 November 1998, Dr Grove diagnosed an ongoing viral illness and “??bact gastro” (bacterial gastroenteritis). Dr Grove reviewed Mr May again on 1 December 1998 and 4 December 1998, by which time he was improving.
20. On 18 December 1998, there is a note (author unknown) of a phone call received from Dr Grove that Mr May was “not to have Twinrix today as unwell after last Twinrix”. (Mr May received the oral polio vaccine, Sabin, that day and a MMR injection. He received the Typhim injection on 21 January 1999.) The next relevant record is on 8 February 1999 when Mr May is reported to be suffering from nausea and diarrhoea, which is recorded as having settled by 9 February 1999 but by which time he had a sore throat. (On 10 February 1999, Mr May received a BCG injection and a second dose of Sabin.) A record made on 15 February 1999, records that Mr May’s diarrhoea and nausea had settled, he was feeling better and was fit for full duties. On 25 February 1999, an unidentified doctor found Mr May was fit for a combat survival course. There is a note that Mr May had reacted to the Hepatitis vaccine and a blood sample had been taken for testing of his immunity to Hepatitis A. If this showed a level of immunity that was “OK”, there was no need for a third Hepatitis A injection.
21. There follow clinical notes for 5 May 1999 (nausea, headache, sore throat, cramping abdominal pain, diarrhoea), 10 May 1999 (improving slowly), 6 July 1999 (sore throat, dry cough, sore glands, congestion, headaches, hay fever), 15 July 1999 (well on Rhinocort, sore throat), 3 August 1999 (nausea, headaches vomiting/diarrhoea, abdominal cramps and lethargic, as well as left ear ache), 24 August 1999 (sore throat, productive cough, left faucal ulcers), 25 August 1999 (tongue swelling, pushing forward on teeth, difficulty talking with sore throat – very likely viral illness), 27 August 1999 (has lost voice, tongue less swollen but still fissured, ulcers less deep), and thereafter continuing notes on Mr May’s throat infection, with admission to Hollywood Private Hospital on 23 September 1999 and discharge on 29 September 1999 with a diagnosis of bacterial pharyngitis. There are further notes on his condition which had significantly improved by mid-October 1999. On 8 November 1999, Mr May was recorded as fit to return to full flying duties. On 7 December 1999, Mr May is recorded as having experienced sinus pain on descending from 12,000 feet to 2,000 feet in four seconds, which continued for some days, and following which he had a sore throat and then headaches, diarrhoea, nausea and abdominal discomfort. There follow other similar records.
22. Mr May was first examined by Dr Martin Stuckey, Clinical Immunologist, in March 2000 on a referral from Flight Lieutenant Dr Glenn Pascoe, medical officer. In a report to Dr Pascoe dated 30 May 2000, Dr Stuckey noted persistent lymphopenia (low lymphocytes count). Investigations had revealed normal serum immunoglobulin concentrations but low IgG1 level. Dr Stuckey then stated that “Ben does need gammaglobulin treatment especially in view of his recent recurrence of infection”. He recommended a six month trial of intravenous gammaglobulin treatment. This commenced with three weekly intravenous infusions of immunoglobulin (Intragam) in June 2000. In a letter to RAAF Dr Michael Seah dated 15 September 2000, Dr Stuckey said that Mr May had been in good health and had not had an infection since 10 July 2000, by which time he had had two doses. Dr Stuckey said:
… Intragam has been successful in treating his IgG subclass deficiency.
The condition is not cured by this treatment and he will require ongoing infusions to stay healthy. …
With few exceptions, the treatment is lifelong.
If he continues treatment he should remain well and be fit enough to resume study and flying. If he discontinued treatment I would expect that after an interval of a month or two his health would deteriorate back to the level it was at in March/April 2000.
23. Mr May was reviewed by Dr David Sutherland, Clinical Immunologist, on 19 March 2001. In a letter dated 22 March 2001 to RAAF Dr M O’Donoghue, he said he found Mr May to be “in rude good health” and his “general physical examination was entirely normal”. Dr Sutherland recommended increasing the gap between Intragam infusions from three weeks to four and said he would undertake further tests of Mr May’s lymphocyte function. In a letter to RAAF Dr W J Pettigrew dated 2 July 2001, Dr Sutherland reported “an extensive series of immunological tests, undertaken on the 5th and 7th of June, more than six weeks after Mr May’s last infusion of gamma globulin yielded no recognisable abnormality in his immune function.” Referring to Dr Stuckey’s findings, Dr Sutherland said:
It is possible that Mr May had experienced some kind of intercurrent immunosuppressive event, such as a viral infection at that time. Whatever the explanation, it is clear that Mr May no longer needs intravenous infusions of gamma globulin, and he had remained well without these, up to the time of my discussion of the results with him on the 28th of June.
24. In July 2002, Mr May again consulted Dr Stuckey who in a letter dated 27 August 2002 to RAAF Dr Markus Schmidt said:
… I saw him on the 15 July 2002 after he had had two severe upper respiratory infections, and an episode of muscular fatigue and dizziness. …
There is no clear evidence at the present time of a humoral immune deficiency, and therefore no clear indication for re starting the Intragram. However if Ben does continue to have proven bacterial infection, or if his immunoglobulins or subclasses fall further, then we could start the Intragram again.
25. In December 2002, Mr May was examined by an Ear, Nose and Throat (ENT) Surgeon, Dr Peter Barrie, in relation to the “imbalance” Mr May has had “since he was given immunisation injections in 1998”. In a letter to RAAF Dr P McCarthy dated 18 December 2002, Dr Barrie said: “Physical examination reveals normal tests of balance with no gaze nystagmus”. Dr Barrie recommended that Mr May should see Dr Michael Halmagyi, a Neurophysiologist at the Royal Prince Alfred Hospital in Sydney. In a letter to Dr McCarthy dated 12 March 2003, Dr Halmagyi said:
On examination I could find no vestibular abnormalities. …
I cannot find any pathological cause for his minor vestibular symptoms …
On the specific question of could immunisation cause vestibular problems, I found no validated example of it and I personally have never seen someone in whom I attributed their vestibular problems to an immunisation.
26. On 27 October 2003, Mr May’s general practitioner, Dr Catherine Girdler, notified the New South Wales Public Health Unit, Newcastle, of Mr May suffering “immunisation adverse reactions” which were “most likely related to vaccinations given in the course of his enrolment as a pilot in the RAAF”. The NSW Public Health Unit appears to have in turn notified the Adverse Drugs Reaction Unit at the Therapeutic Goods Administration (TGA) of this. Mr May had prior email correspondence with Dr Barry Thompson of the Adverse Drug Reactions Unit who, having received a description of symptoms from Mr May following his vaccinations, said in an email dated 11 July 2003, that having assumed that “the reactions recorded occurred with the onset of each respective drug”, Mr May appeared to have answers to the likely causes of his symptoms. In a later email dated 11 November 2003, sent prior to a short meeting with Mr May, Dr Thompson stated: “Please remember, I am not able to give medical or treatment advice. If you are enquiring about Vestibulopathy, please remember I am not an ENT Specialist or Neurologist.”
27. Dr Girdler also referred Mr May for assessment by an ENT Specialist, Dr John Tonkin. In a report dated 1 July 2003, Dr Tonkin said that Mr May had told him of a history of vertigo starting on the day after being vaccinated on 10 November 1998 and associated with vomiting and diarrhoea. This was diagnosed by RAAF doctors as being due to a “viral invasion”. Dr Tonkin’s clinical findings were mild imbalance, and inconsistent both with Mr May’s symptoms and with Eustachian tube dysfunction. He ordered additional tests including “a test of the organ of balance” at the Prince of Wales Hospital. In a letter to Dr Girdler dated 9 September 2003, Dr Tonkin reported that the test results were all negative, including the balance test result which was normal. Dr Tonkin then referred Mr May to a Neuro-Physiotherapist, Kathee De Lapp at St Vincent’s Hearing and Balance Centre, for an intensive course of vestibular rehabilitation.
28. In January 2004, Mr May was reviewed by Professor Paul Fagan, an ENT Surgeon, who in a letter dated 13 January 2004, said:
I have thoroughly reviewed all the information available about Mr May.
Although he would appear to be genuinely handicapped, I cannot find any evidence of any vestibular or central nervous system abnormality and indeed, the whole matter is very puzzling.
29. In 2008, Mr May was assessed by Dr Thomas R Kertesz, ENT Surgeon, at the request of Mr May’s then general practitioner, Dr Roslyn Doyle (letters to Dr Doyle dated 6 May 2008 and 27 May 2008). The results of the tests organised by Dr Kertesz were within normal limits although the vestibular function test showed the vents were increased in size, while in the past they had been reduced. He noted no diagnosis and recommended a trial of medication (Serc) to see if this led to a reduction in symptoms.
30. In 2008, Dr Doyle also referred Mr May to Dr David V Pohl, ENT Surgeon, for assessment. In a letter to Dr Doyle dated 2 June 2008, Dr Pohl noted Mr May’s “long history of imbalance and short episodes of rotational vertigo associated with nausea” and the extensive investigations of his condition. Dr Pohl described his examination findings as unremarkable, but arranged an MRA scan. In a further letter dated 10 June 2008, he said this scan had proved normal and concluded that he was “unable to find a cause for his imbalance and dizziness”.
31. Mr May had further assessments in 2011. Dr Anthony Lowy, Occupational Physician, in a report dated 6 May 2011, noted a normal physical examination with “no validation of vestibular disease”. He said he was “of the firm opinion that Mr May’s constellation of symptoms described at this assessment is not consistent with substantial pathology within his vestibular system.” Dr Andrew Charles Dowe, ENT Surgeon, in a report dated 11 June 2011, agreed with Dr Lowy. Mr May was also assessed by a psychiatrist as suggested by Dr Lowy. In a report dated 7 June 2011, Dr Marilyn Moore concluded that Mr May “does not suffer from a diagnosable psychiatric disorder” and “There is no psychiatric disturbance which … could better account for his symptoms”.
32. At the request of the MRCC, Mr May was assessed by Dr Robert Loblay, Physician, Director of the Allergy Unit at the Royal Prince Alfred Hospital in Sydney. In a report dated 26 October 2010, Dr Loblay said that Mr May’s symptoms “could be categorized as a ‘functional somatic disorder’”. Noting that Mr May had a prior history of ‘probable glandular fever’ followed by a period of post-infectious chronic fatigue in 1996, Dr Loblay said:
5. Whether or not the chronic condition he developed after the vaccinations was in some way related to the post-infectious fatigue he suffered from in 1996 is uncertain. The clinical features, though significantly different, are partially overlapping with those of chronic fatigue syndrome which has also been classified as a ‘functional somatic disorder’. However, the fact that he apparently made a full recovery from his chronic fatigue argues against any direct connection. …
8. I consider it very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given.
33. In a supplementary report dated 1 September 2011, Dr Loblay said:
… I am not suggesting that it is completely impossible that Mr May’s condition is related to his vaccinations. Nor can I completely exclude the possibility that the particular circumstances pertaining at the time of his vaccinations (psychological, general health, individual vulnerability) could have contributed to the development of his condition. All I can say is that his condition is unlikely to be related to his military service ‘on the balance of probabilities’.
34. Dr Loblay also gave evidence at the hearing. He said after Mr May was referred to him for assessment by the MRCC’s solicitors, he agreed to see Mr May as a patient to see if he could identify what was causing his symptoms and assist in treating these. Dr Loblay said he accepts that Mr May is not malingering and is significantly disabled by his condition. He also accepts that based on Mr May’s history, there is a temporal relationship between his vaccinations and symptoms. However, Mr May’s history is not characteristic of an immune reaction to vaccinations. If a person has an immune response to something, there is always evidence of inflammation and Dr Loblay was not satisfied of this in Mr May’s case.
35. Dr Loblay acknowledged that he has not been able to find an alternative explanation for Mr May’s condition. In Mr May’s case, there is no biological mechanism consistent with a vaccine generating an immune response. However, Dr Loblay said it is not uncommon for a person to have symptoms without there being an explanation for the symptoms and without there being a diagnosable disease. He described Mr May’s condition as an “illness”, being a subjective description of his symptoms. In answer to a question from the Tribunal, Dr Loblay said that in the absence of damage to the vestibular system, the vertigo experienced by Mr May cannot be linked to an immunological reaction.
Submissions
36. The MRCC does not concede that the symptoms complained of by Mr May were consequent upon him receiving vaccinations during his RAAF service. Despite Mr May having been assessed by a significant number of specialists, there is no clear diagnosis for his illness and no sufficient causal link with his RAAF service. Nevertheless, the MRCC accepts that Mr May suffers from a chronic condition which it says can probably be best described as a ‘functional somatic disorder’ as suggested by Dr Loblay.
37. The MRCC contends that in the absence of any objective evidence to establish a sudden and ascertainable or dramatic disturbance of Mr May’s normal physiological state, his condition cannot be characterised as an injury in the ordinary sense. Rather, it should be characterised as an ‘ailment’ as defined in s 4(1) of the SRC Act. Thus, liability for Mr May’s condition must be considered by reference to the definition of ‘disease’, thereby requiring a material contribution by Mr May’s RAAF service to his condition.
38. The MRCC contends that none of the medical specialists who have examined Mr May have identified a relevant causal connection between My May’s symptoms and the vaccinations he received during service. Most recently, Dr Loblay considered it “very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given”. Thus, in the absence of evidence supporting a finding of a material contribution by Mr May’s service to his condition, he has not suffered a ‘disease’ as defined in s 4(1) of the Act and nor, thereby, an ‘injury’ establishing liability for the payment of compensation under s 14 of the SRC Act.
39. Mr Clark, for the MRCC, referred to the Full Federal Court decision in McDonald v Director-General of Social Security (1984) FCR 354, where the Court recognised that although there is no legal onus of proof on the applicant in such Tribunal proceedings, statutes will commonly require that the decision-maker (and therefore the Tribunal standing in that person’s shoes) be satisfied of certain facts. In Re Montesalvo and Australian Postal Corporation [2011] AATA 319, at [14], the Tribunal said “there must be credible evidence upon which the Tribunal can form a view that there is a [causal] connection”. Mr Clark submitted that Mr May needs to identify relevant medical evidence to satisfy the Tribunal of a causal connection and Mr May’s own evidence of his symptoms is not sufficient for this purpose.
40. Mr Clark noted the clinical notes from November and December 1998 relied on by Mr May merely record the history given by Mr May and do not express any medical opinion and, in particular, as to any connection between the vaccinations and Mr May’s reaction. With regard to Dr Thompson, it is clear that the TGA is not in the business of providing clinical advice, as an examination of the relevant documents reveals.
41. Mr May said that he had no pre-existing medical condition prior to receiving vaccinations during the course of his RAAF service. He “went from healthy to handicapped, from pilot to disabled” after being vaccinated. The probable cause, he contends, is an unintended Adverse Drug Reaction (ADR) to medical treatment he received while in the RAAF. He claims that his health deteriorated after each occasion on which he was vaccinated. Mr May said his initial reactions were temporarily close to the vaccines being administered. He noted that nobody has come up with a rational alternative explanation.
42. Mr May referred to three references to his suffering an adverse reaction to a vaccination. On 18 December 1998, in Mr May’s clinical notes, Chief Medical Officer Dr Vicky Grove noted that Mr May was “unwell after last Twinrix”, and in a note dated 25 February 1999, an unidentified doctor noted “reaction to Vaccine”. Mr May’s file was reviewed by Dr Paul McCarthy on 6 July 2001. In a summary of clinical details, Dr McCarthy referred to “adverse reactions to vaccinations”. On 27 October 2003, Mr May’s general practitioner, Dr Catherine Girdler, notified the NSW Public Health Unit, of Mr May suffering “immunisation adverse reactions” which were “most likely related to vaccinations given in the course of his enrolment as a pilot in the RAAF”. Dr Barry Thompson of the TGA gave this a “Causality certain” rating on the Australian Adverse Drug Reactions Advisory Committee data base. A review of the TGA’s ‘Public Case Details’ indicates that the ‘Causality certain’ rating is in respect of the BCG vaccination in February 1999. With regard to the other vaccinations, the rating attributed to the listed reactions is ‘Causality possible’. Mr May also stated that two other doctors he consulted while confirming his ADR to him orally, refused to document this.
43. At the hearing, Mr May contended that as a result of the vaccinations, he suffered an ‘injury’ (rather than a ‘disease’) arising in the course of his employment. He referred to the High Court decision in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning Services) (for example, Gleeson CJ and Kirby J at [35]), where the Court referred to the long line of decisions in which it has been recognised that an injury involves “a sudden or identifiable physiological change”. Mr May contended that he had provided evidence of clinical features occurring within 30 to 60 minutes of the vaccination on 10 November 1998. As was recognised by the High Court (as above at [39]):
If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment.
44. Mr May also referred to the decision of the Tribunal in Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797, where at [14], Deputy President Todd said:
It should be added that while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate.
45. Mr May submitted that the Tribunal, as Rich ACJ said in Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538, at 563, should begin its investigation “from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology”. Mr May said that in his case, it should be inferred that he contracted vertigo and other conditions as a result of the vaccinations. As Glass JA said in Fernandez v Tubemakers of AustraliaLtd [1975] 2 NSWLR 190, at 197, evidence that a causal connection is possible, can be sufficient if the material before the court justifies an inference of a probable connection: see Re Provost and Repatriation Commission [2011] AATA 153, at [42]. The Tribunal in Re Montesalvo and Australian Postal Corporation [2011] AATA 319, at [15], said:
A temporal connection between two events will often be present where there is a casual connection, but one should hesitate before concluding that a temporal connection of itself indicates a causal relationship between the events unless alternative explanations for the second event have been considered and discounted – and perhaps not even then.
46. Mr May said alternative explanations have been considered and discounted in his case. He noted the Tribunal decision in Re Stace and Military Rehabilitation and Compensation Commission [2009] AATA 134, a case which is distinguishable on its facts because unlike in Mr May’s case, there was no evidence of a reaction to the vaccination in the period after it had been administered.
47. Mr May was critical of Dr Loblay’s reports contending that he had failed to observe the guidelines for expert witnesses, but also that he had misconstrued some of the material which he took into consideration in formulating his opinion.
Discussion
48. There appears to be no dispute that Mr May is significantly disabled by his condition. This was confirmed by Dr Loblay in giving evidence at the hearing, and the Tribunal notes a Centrelink ‘Job Capacity Assessment Report’ dated 28 October 2011 provided by Mr May which indicates that he is qualified for a disability support pension. That report states that the medical condition from which Mr May suffers is vertigo. The evidence before us indicates that it is this condition that Mr May currently finds most disabling. Yet, in the Tribunal’s view, there is no medical evidence to establish a connection between Mr May’s vertigo and the vaccinations he received while in the RAAF.
49. It is the causal connection between the vaccinations Mr May received and the reaction Mr May claims to have suffered following the vaccinations which is the critical issue in this case. Mr May does not contend that he suffered a ‘disease’. If, as he contends, he suffered an injury other than a disease, the Tribunal needs to be satisfied that this injury arose out of or in the course of his employment. For liability to be established under s 14 of the SRC Act, the Tribunal must also be satisfied that the injury resulted in incapacity for work or impairment.
50. For the sake of completeness, the Tribunal decided it should also consider whether Mr May suffered a ‘disease’, in particular, whether the vertigo which Mr May suffers was contributed to in a material degree by his employment. A ‘disease’ can be more difficult to establish than an injury simpliciter because such an ailment, or the aggravation of such an ailment, must have been contributed to in a material degree by his employment.
51. However, even to establish an injury simpliciter requires, as the High Court stated in its decision in Kennedy Cleaning Services, that there has been “some sudden or identifiable physiological change”. The question in Mr May’s case is whether there is sufficient evidence to establish this. The Tribunal notes that ‘physiological’ is defined in the Macquarie Dictionary (Revised 3rd edition) as meaning “consistent with the normal functioning of an organism” and ‘physiology’ as “the science dealing with the functioning of living organisms of their parts”.
Did Mr May suffer an injury simpliciter arising out of or in the course of his employment with the RAAF?
52. We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May’s case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms – in this case Mr May’s personal evidence – sufficient to establish a non-disease injury? The Tribunal’s understanding of the current state of the law, discussed above, is that the answers to both questions is ‘No’.
53. Mr May has described the symptoms he experienced following the vaccinations he received on 10 November 1998. It is clear from the medical tests that Mr May underwent before he was accepted for entry into the RAAF as an officer cadet, that he was healthy and very fit. Mr May states that within 30 to 60 minutes of receiving the vaccinations, he began to experience symptoms and that these increased over the next few days. He says his tongue felt swollen, he felt dizzy and experienced nausea and diarrhoea. There are clinical notes on his reporting sick from 22 November 1998 and these notes appear to record the symptoms as described by Mr May at the time. The medical opinions recorded in the notes (see above at [19]) indicate that Mr May’s treating doctors thought that he was probably suffering from a viral illness and possibly bacterial gastroenteritis. Thereafter, he had a history of infections, particularly of the upper respiratory tract, which, on some occasions required hospital treatment.
54. Mr May was first examined by an Immunologist, Dr Stuckey, in March 2000. While tests appear to have proved inconclusive, Dr Stuckey commenced Mr May on a six month trial of intravenous gammaglobulin treatment. Mr May’s health improved during this period although Dr Sutherland, who reviewed Mr May in 2001, was obviously sceptical about whether Mr May had in fact benefitted from the treatment, expressing the view that Mr May’s immune function was normal. Following Dr Sutherland’s report, the treatment was not resumed, although Mr May clearly considers that it was of significant benefit to his functioning.
55. Since 2002, Mr May has been examined and assessed by a large number of specialists, in particular in relation to his vertigo. However, none of the investigations undertaken have proved definitive and none of the specialist reports have attributed any pathological cause to his vertigo. The Tribunal notes, in particular, Dr Halmagyi’s comment (letter dated 12 March 2003) that he had never personally seen someone in whom he attributed their vestibular problems to an immunisation.
56. The Tribunal also had particular regard to the evidence of Dr Loblay, who, as stated above, is the Director of the Allergy Unit at the Royal Prince Alfred Hospital in Sydney. Dr Loblay has many years’ experience in the investigation and treatment of immune reactions, both to drugs and to vaccines. Despite the reservations about Dr Loblay’s evidence expressed by Mr May, the Tribunal found his evidence convincing and noted his opinion (report dated 26 October 2010) that it is “very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given.”
57. However, Dr Loblay added (report dated 1 September 2011):
I should also qualify my conclusions by saying that I am not suggesting that it is completely impossible that Mr May’s condition is related to his vaccinations. Nor can I completely exclude the possibility that the particular circumstances pertaining at the time of his vaccinations (psychological, general health, individual vulnerability) could have contributed to the development of his condition.
58. Having reviewed the medical evidence, the Tribunal is satisfied that there is a temporal relationship between the vaccinations and the symptoms described by Mr May, some of which were recorded in the clinical notes during the periods after the vaccinations. Despite Mr May having been assessed by a significant number of specialists, there is, however, no medical explanation for Mr May’s ‘illness’ in the period following the vaccinations, the ‘illness’ being what Dr Loblay described as a subjective description of a collection of symptoms. The question is whether that illness amounts to a sudden or identifiable physiological change in the normal functioning of the body or its organs such that the illness can be said to be an injury simpliciter for the purposes of the SRC Act.
59. The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change. Similarly, objective evidence of diarrhoea and upper respiratory infections would be evidence of physiological change, albeit that these conditions would ordinarily be considered ‘ailments’ in the context of the SRC Act. However, there is no objective evidence of Mr May’s swollen tongue or dizziness, or pathology to support his account of his symptoms. The only contemporary evidence is his description of a swollen tongue and dizziness to the doctors who subsequently examined him and recorded his description in their clinical notes. The Tribunal accepts that there is objective evidence of Mr May suffering from diarrhoea and upper respiratory infections. Diagnoses were made in respect of these ailments which were treated and subsequently resolved. Nevertheless, even if we were to accept, which we do not, that these ailments should be treated as the product of an injury simpliciter, there appears to be no objective evidence connecting these conditions with the vaccinations. More particularly, as is discussed below, there is insufficient evidence to establish that the ailments were contributed to in a material way by Mr May’s employment.
60. We note, in particular, Dr Loblay’s oral evidence that, in Mr May’s case, there is no biological mechanism consistent with a vaccine generating an immune response. The doctors who examined Mr May from late November 1998 onwards diagnosed him at various times as suffering from gastroenteritis, and viral and bacterial infections including pneumonia, and there is no objective evidence to connect these conditions with the vaccinations Mr May received. Moreover, it is not these ‘ailments’ that appear to be the current cause of his incapacity.
61. With regard to what we have loosely described as Mr May’s vertigo, which is the condition which is the principal cause of Mr May’s current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.
62. The Tribunal does not accept, as Mr May contended, that the fact that there is no plausible alternative explanation is sufficient to establish, on the balance of probabilities, that he suffered a physical injury as a result of the vaccinations. The medical evidence, for example of Dr Halmagyi and Dr Loblay, discounts the possibility of such a connection. Moreover, while the Tribunal accepts that Mr May is significantly disabled by vertigo, we note the medical evidence, for example of Dr Kertesz and Dr Pohl in 2008 and Dr Lowy and Dr Dowe in 2011, indicating a lack of any pathology consistent with Mr May’s symptoms, resulting in their inability to make a diagnosis.
63. In conclusion, we are not satisfied on the balance of probabilities that Mr May suffered a physical injury – an injury simpliciter – amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs that can be attributed to the vaccinations he received while serving in the RAAF. There is insufficient evidence to establish that he suffered such an injury in the course of his employment.
Did Mr May suffer a ‘disease’ – an ailment – that was contributed to in a material degree by his employment?
64. Turning to the question of whether Mr May suffered a ‘disease’, the Tribunal notes that the meaning of the word ‘material’ in this context was discussed by Finn J in Comcare v Sahu-Kahn (2007) 156 FCR 536. His Honour said, at [13], that “the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection can be disregarded.” At [15], he referred to the definition of the word ‘materially’ in the Shorter Oxford English Dictionary which he said:
… probably captures the essence of what the legislature was conveying. That meaning is:
‘4. In a material degree; substantially, considerably.’
65. The Tribunal accepts that Mr May contracted ailments such as gastroenteritis and upper respiratory tract infections while he was serving in the RAAF. However, these conditions appear to have been transient and the current cause of his incapacity appears to be what we have described as vertigo, an illness the symptoms of which appear to be ongoing. First, as noted above, none of the specialists who have examined Mr May have been able to make a definitive diagnosis for this condition. Second, there is no objective evidence to connect the condition with the vaccinations Mr May received and, therefore, we are not satisfied that Mr May’s vertigo was contributed to in a material degree by his employment in the RAAF. Thus, there is no ‘disease’ in respect of which the RAAF is currently liable to pay Mr May compensation.
Conclusion
66. The Tribunal is not unsympathetic to Mr May’s situation and we acknowledge what appears to be his frustration that the medical profession has been unable to attribute a diagnosis to his condition and that the legal system has failed to provide him with compensation for what he believes to have been an injury suffered in the course of his employment with the RAAF. The symptoms Mr May suffered cut short what might have been a very promising career as a pilot in the RAAF given the evidence of his being a high achiever and his impressing the Tribunal as a highly intelligent person.
67. It is therefore with considerable reluctance that the Tribunal concludes that Mr May did not suffer an injury as defined in s 4(1) of the SRC Act in the course of his service in the RAAF and the MRCC is not therefore liable to pay him compensation pursuant to s 14.
Decision
68. The Tribunal decides that:
(i)Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, Mr May’s application lodged on 10 June 2010 is dismissed.
(ii)With regard to Mr May’s application lodged on 21 September 2010, and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, dated 22 April 2010, is affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Dr H Haikal-Muktar, Member.
Signed:......[sgd].........................................................................
AssociateDates of Hearing 24 and 25 November 2011
Date of Decision 14 December 2011
Appearance for the Applicant Self-represented
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Mr B O’Brien, DLA Piper
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