Meakin and Military Rehabilitation and Compensation Commission (Compensation)
[2015] AATA 880
•16 November 2015
Meakin and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 880 (16 November 2015)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2014/1013
Re
Christopher Meakin
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 16 November 2015 Place Perth The Tribunal affirms the decision under review.
...(Sgd) CR Walsh.....................................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – liability for “amblyopia blind left eye” condition having regard to “physical/physiological/organic factors” only and not “psychiatric/psychological factors” – applicant suffered a fall from a submarine bunk at sea whilst employed by the Royal Australian Navy – “disease” versus “injury” - no clinical medical evidence of damage to left optic nerve - decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004
Military Rehabilitation and Compensation (Consequential and Transitional provisions) Act 2004 – s 7(1)(a) – s 7(1)(b)
Safety Rehabilitation and Compensation Act 1988 – former s 4(1) - s 5A(1) – s 5B(1) - s 14 – s 14(1) – s 24 – s 27
CASES
Anderson v Military Rehabilitation and Compensation Commission [2013] AATA 360
Comcare v Etheridge (2006) 149 FCR 522
REASONS FOR DECISION
Senior Member CR Walsh
16 November 2015
INTRODUCTION
Mr Meakin seeks a review of a decision of the Military Rehabilitation and Compensation Commission (MRCC), dated 22 October 2013, which affirmed a determination of the MRCC, dated 17 August 2008, denying liability to pay Mr Meakin compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) in respect of Mr Meakin’s claimed condition of “amblyopia blind left eye”.
FACTUAL & PROCEDURAL BACKGROUND
Mr Meakin enlisted with the Royal Australian Navy (RAN) on 2 January 1992.
On 13 January 1994, Mr Meakin suffered a fall from his bunk whilst at sea (in Jervis Bay, New South Wales) on board the submarine “HMAS Otway” struck his head on the deck plating (Fall) and:
There followed a period of L.O.C. [i.e. lack of consciousness] accompanied by periodic muscular contractions at about 5-10 minute intervals over a period of more than one hour. He was landed at HMAS Creswell and transferred to Shoalhaven Hospital. No medication was required to control the muscle spasms and consciousness returned at the time of boat transfer.
Investigations including Cerebral CAT Scan at Shoalhaven did not show pathology and there were no focal neurological signs. There was some parietal bruising on the left side of the scalp. He was transferred to Balmoral Naval Hospital the same day.[1]
[1] Exhibit 1 at p 22.
On 12 October 1994, Mr Meakin lodged a claim for compensation for “loss of vision in my left eye” which was said to have been caused by the Fall.
On 19 October 1995, the RAN Board of Final Medical Survey recommended that Mr Meakin be discharged as “Medically Unfit for Naval Service on the basis of his condition “Amblyopia Left Eye” which recommendation Mr Meakin accepted in a signed document titled “Reply to Notice of Intention”, of even date.
On 20 December 1995, the MRCC accepted liability for Mr Meakin’s condition of “aggravation of amblyopia left eye” sustained on 13 January 1994 (Accepted Left Eye Condition).
On 9 January 1996, Mr Meakin lodged a claim for compensation for permanent injury in respect of his Accepted Left Eye Condition.
On 7 August 1996, the MRCC accepted liability for payment of permanent impairment compensation in respect of Mr Meakin’s Accepted Left Eye Condition under ss 24 and 27 of the SRC Act.
On 8 August 1996, the MRCC paid an amount totalling $36,339.69 to Mr Meakin by way of permanent impairment compensation.
On 5 March 2008, Mr Meakin lodged a claim for compensation for “Amblyopia Blind Left Eye” (Claimed Left Eye Condition). The claim was made in a Department of Veteran’s Affairs “Claim for Disability Pension” form. Although Mr Meakin’s claim was lodged in a DVA “Claim for Disability Pension” form, MRCC accepts that Mr Meakin intended to bring his claim for the Claimed Left Eye Condition under the SRC Act, and his claim was determined accordingly.
On 17 August 2008, the MRCC made a determination that the MRCC was not liable to pay Mr Meakin compensation pursuant to s 14 of the SRC Act in respect of the Claimed Left Eye Condition because the MRCC was not satisfied, on the medical evidence that “it is probable, and not merely possible, that your military service contributed to a material degree to causation, aggravation, acceleration or recurrence of” the Claimed Left Eye Condition (Determination). The Determination states:
The DMA [Departmental Medical Advisor] has examined all the available medical evidence and has advised that the condition you suffer, Amblyopia, is most likely due to mismanagement or inadequate treatment in your childhood. My own research indicates that the condition is developmental and that the critical period for treatment is prior to 5 years of age.
The evidence also confirms that there is no causation for the condition from your ADF service, and that your service, including the head injury you sustained when you fell from your bunk, has not aggravated the condition.
On 11 September 2008, Mr Meakin informed the MRCC that he wished to “appeal” the Determination but that due to personal circumstances, he was unable to give sufficient time to this pursuit, and sought a deferral.
On 27 June 2013, Mr Meakin advised the MRCC that he wished to “re-activate” his “earlier claims for Rehabilitation and Compensation for loss of sight……” The MRCC treated this as a request by Mr Meakin for a reconsideration of the Determination and it did not take issue with Mr Meakin’s delay in making this request.
On 22 October 2013, the MRCC reconsidered and affirmed the Determination (Decision). The Decision states:
The contemporaneous medical evidence indicates that you suffered from a congenital left estropia which was surgically corrected at age 10. The loss of left eye vision during service has not been able to be explained, with Dr Hipwell noting that there was visual acuity deterioration on each specialist visit and stating “However, I am at a loss to account for this severe deterioration of vision in this left eye other than there being some psychological overlay.”
Dr Hipwell states that the poor left visual acuity (despite normal vision on entry) is not due to the accident when you fell from the bunk bed.
Dr Chee did not have access to the reports and medical records noted above and state that the (sic.) yours is a complicated scenario given he is seeing you many year following the original incident.
I have preferred the contemporaneous opinion of the medical practitioners who treated you at the time of the incident in question. The weight of that medical opinion is that the cause of the vision loss is likely due to congenital estropia or has a psychological basis, and is unconnected with the incident where you fell off a bunk bed.
I am therefore satisfied there is a relationship between your left eye condition and your military service and I have affirmed the determination dated 17 August 2013 accordingly.
On 25 February 2014, Mr Meakin applied to the Tribunal and sought an extension of time up until that date to lodge his application. Mr Meakin’s stated “Reasons for Application” were:
I believe that my eye condition has been due totally to the fall whilst on the submarine.
On 7 April 2014, the MRCC advised the Tribunal that it did not oppose Mr Meakin’s application for an extension of time.
On 9 April 2014, the Tribunal granted Mr Meakin a time extension up until 25 February 2015 for the lodgement for the lodgement of his application for review.
ISSUES
On 30 March 2015, DP Hotop made the following direction:
1. The scope of the Tribunal’s review of the decision under review in this matter be limited to determining the issue of liability in respect of the applicant’s left eye condition having regard to physical/physiological/organic factors only and not having regard to psychiatric/psychological factors. [Emphasis added]
Consequently, the issue for determination by the Tribunal in this review application is whether the MRCC is liable to pay compensation to Mr Meakin for the Claimed Left Eye Condition (i.e. “Amblyopia Blind left eye”: refer to paragraph 10 above) pursuant to s 14 of the SRC Act by reference to evidence of any “physical/physiological/organic factors” only and not by reference to evidence of any “psychiatric/psychological factors”.
There is some evidence before the Tribunal of “psychiatric/psychological” factors in relation to the Claimed Eye Condition. For example, there is evidence that in about late January 1994, Mr Meakin’s wife left him (and moved back to her father’s house in Canberra)[2] which led him to suffer from depression. In this regard:
(i)on 28 January 1994, Mr Meakin was reported by his treating psychiatrist, Dr P Whetton as feeling “shocked” and “in a state of distress” and was not “fit for sea” and that he needed “to have an opportunity to sort out problems [with] his wife”[3];
(ii)on 4 February 1994, Mr Meakin was reported by the Medical Board of Survey as suffering from “Situation reaction with depressed mood” and “His emotional state was one of despair, hopelessness and loss” which was said to have arisen from the “imminent separation from his wife and child”[4]; and
(iii)on 8 February 1994, Mr Meakin was re-admitted to Balmoral Naval Hospital “suffering from an acute situational reaction following the confirmation of marital breakdown and custody/visiting rights dispute”[5].
[2] Exhibit 2.
[3] Exhibit 1 at pp 19-20.
[4] Exhibit 1 at pp 21 and 24.
[5] Exhibit 1 at p 51.
However, as a result of the direction made by DP Hotop on 30 March 2015 (see paragraph 18 above), such evidence is not relevant to the determination of this review application.
MEDICAL EVIDENCE
Childhood medical evidence
A “Discharge Summary” from the Westmead Centre, The Parramatta Hospitals, dated 1 March 1982, records that Mr Meakin (then aged 11) was diagnosed with “Left Esotropia” and that he received a “Left Recession and Resection” operation on 6 January 1982 in respect of that condition (1982 Discharge Summary). The 1982 Discharge Summary also contains the following “Summary”:
HISTORY: This healthy 11 year old boy has been known to have a left esotropia [i.e. a left eye squint] since the age of three. His previous therapy includes glasses and occlusion [i.e. “patching”] therapy. He has had no previous strabismus surgery.
EXAMINATION: Cover testing revealed that at distance there was a 15 prism dioptre left esotropia with good alternation of fixation and at near there was a 30 prism dioptre left esotropia with good alternation. Extra ocular movements were full and there was no oblique dysfunction.
On 6/1/82 a left medial rectus recession and a left lateral rectus resection was performed under general anaesthetic by Dr. Harding.
Post operative course was uneventful and the patient was discharged on 7/1/82 to be followed up by Dr. Harding in his rooms.
In a Statutory Declaration, dated 5 April 2015, Mr Meakin’s father, Mr Paul Trevor Meakin, states:
That on or about 2 May 1982, I accompanied my son Christopher lain Meakin to Dr. Harding’s rooms as a follow-up examination after the operation to correct a left eye squint. Christopher had received treatment in the form of patching of spectacles to correct the squint at a younger age, about 5 which was only partially successful. Sometimes he did not have a squint but at other times, when tired etc. he did have a squint. When Chris got to age 10/11 he became concerned about his appearance and after some teasing from school mates, asked if his squint be corrected. The operation was performed in Parramatta Hospital by Dr. Harding over 5-7th January 1982.
I particularly remember the meeting for two reasons:
1. The follow up was just outside the one month time frame for a free post op consultation and therefore we were presented with a bill; and
2. The Doctor did not have a good bed side manner. Although Christopher had initially been pleased with the cosmetic aspects of the squint correction, Dr Harding stated that although he thought he had done a good job if Christopher came back when he was 17 he would be able to improve it. I thought that was an inappropriate statement to make as it did upset Christopher at that time.
At no time during the operation phase or post op follow up was there any mention of Christopher’s visual acuity and as assessed on his In Patients form it was noted as normal. The Doctor made no mention of amblyopia or the need for follow up occlusion therapy.
Christopher had no further treatment or operations on his eyes before he joined the Navy in 1992 with 6/6 vision in both eyes[6]. [Emphasis added]
[6] Exhibit 6.
In a Statutory Declaration, dated 28 September 2015, Mr Meakin’s mother, Mrs Enid Teal Meakin, states:
After learning that my oldest son, age 17, had been tested at a Defence Force Recruiting Centre and had been found to be red/green colour blind, I determined to have youngest son, Christopher, also tested.
I made an appointment at a local Optometrists in the Westfield Centre North Rocks NSW and was present when the tests were conducted. Both visual acuity and colour perception were tested and found to be 6/6 both eyes and colour perception normal. Looking back over 33 years I am unsure if this occurred in 1982 or 1983 but have remembered the time based on my eldest son’s age at the time. I have been unable to obtain a copy of these results as the Optometrist has closed[7].
[7] Exhibit 7.
Mrs Meakin did not appear before the Tribunal and give evidence. Given that there is no documentary medical evidence to substantiate the content of Mrs Meakin’s Statutory Declaration and the length of time that has passed since Mr Meakin allegedly had his eyes tested at a “local optometrists” in the Westfield Centre in North Rocks, NSW (at which time Mr Meakin was allegedly found to have had 6/6 vision in both eyes), the Tribunal places little weight on the content of Mrs Meakin’s Statutory Declaration.
Adult medical evidence before the Fall
A Department of Defence “Medical History Questionnaire”, dated 9 September 1991, records “no” as the answer to the questions whether Mr Meakin had “eye trouble” or presented any “disability”[8].
[8] Exhibit 1 at pp 6-7.
A Department of Defence “Entry Medical Examination Record”, dated 6 January 1992, records Mr Meakin’s “Distant Vision” (unaided) as 6/6 in respect of both right and left eyes, and “normal” to the questions asked of “Eyes-general”, “Eyes-ocular motility” and “Eyes-ophthalmoscopic” and “Eyes-visual fields”[9].
[9] Exhibit 1 at p 8.
A Department of Defence “New Entry Medical Check”, dated 9 January 1992, records Mr Meakin as having 6/6 “Distant Vision” in both his right eye and his left eye[10].
[10] Exhibit 4, Doc 3.
A Department of Defence “Medical Examination Record”, dated 8 July 1993, records Mr Meakin’s eyes as not having been examined[11].
[11] Exhibit 4, Doc 4.
A Department of Defence “Supplementary Health Examination”, dated 2 September 1993, records both Mr Meakin’s left eye and right eye as having “Distant Vision” of 6/6[12].
[12] Exhibit 4, Doc 5.
A Department of Defence “Supplementary Health Examination”, dated 7 October 1993, records both Mr Meakin’s left eye and right eye as having “Distant Vision” of 6/6[13].
[13] Exhibit 4, Doc 6.
Medical evidence in 1994, 1995 & 1996 after the Fall
Illawarra Area Health “Admission/Transfer Notes”, dated 13 January 1994, state:
Pt with h/o falling approx. 1 metre off bunk in submarine onto steel deck + hit L side of head at approx ct 30. Pt unconscious fitted approx. 10 time - episodes lasting 10-20 secs. Generalised seizures, last one at 0755 Lump + tender on R side of head. Pt responded to vocal commands 0807. Q/A pt alert no memory of event c/o pain L hip region + L side of head. Mild weakness L arm + leg[14].
[14] Exhibit 1 at p 11.
By report dated 18 January 1994, Dr G Herkes (Neurologist) states:
……[Mr Meakin] is alleged to have fallen from a bunk while on a submarine. He then had some movements which were called “seizures” recurrently lasting for five to ten minutes. He subsequently was transferred to Shoalhaven Hospital. Parietal occipital bruising was found but the CT scan was normal. During the whole episode of the jerking, which lasted several hours, there was no tongue biting or incontinence.
When he awoke he had a retrograde amnesia lasting for over six-seven days. He has had headaches since the event, and some blurring of vision in his left eye. He feels a little unsteady on his feet and indeed even claims he dropped his son over the weekend.
He had one previous episode several years ago of bilateral arm and leg jerking, associated with a helicopter scare. Otherwise he has had an appendectomy and some strabismus as a child.
……….
On examination his acuity was 6/6 in the right eye and 18/6 in the left. I could detect a field defect on confrontation today, he has slight restriction of his lateral rectus movement in the left eye and his fundi were relatively normal. Tone, power, reflexes and co-ordination were normal. On heel to toe walking he did have some non-organic imbalance. His toes were flexor.
An EEG was performed and was completely normal….With a normal EEG I think we can be assured that there does not appear at the moment to be an active epileptogenic process[15]. [Emphasis added]
[15] Exhibit 1 at pp 16-17.
A Department of Defence “In- Patient Record/Summary of Treatment”, dated 31 January 1994 (31 January 1994 Report), records the following under the heading “Clinical Notes/Discharge Summary”:
DATE OF ADMISSION: 13.1.94 DISCHARGED: 31.1.94
PRESENTING COMPLAINT – Head injury – followed by seizure. Medivac from HMAS OTWAY to Shoalhaven Hospital.
PAST HISTORY-
Panic attack on Heli Lift on exercise 6 months ago. No LOG.
OTHER PROBLEMS — Nil current Correct of Strabismus aged 10/11 EXAMINATION - Visual disturbance left eye. Left parietal haematoma.
VA — R L near : R L
INVESTIGATIONS -X-ray CX spine; CTbrain at Shoalhaven Hospital EEG - Normal Seen by Dr P Whetton, Psychiatrist.
CLINICAL PROGRESS — Fell from bunk. Observed to have seizures during period of unconsciousness over 1 1/2 hours.
No incontinence. No oral trauma. Retrograde amnesia, 5 days.
MEDICATION ON DISCGARGE — Nil
EMPLOYMENT RESTRICTIONS - CATEGORY SIX UNFIT FOR SEA. TMU SUBMARINES.
MEDICAL CATEGORY ON ADMISSIONS ONE ON DISCHARGE SIX.
FOLLOW UP — DR. P WHETTON 28.1.94.[16]
[16] Exhibit 1 at pp27-28.
The 31 January 1994 Report also records Mr Meakin’s “Final Diagnosis of Principal Disease or Injury” (at point 14) as:
SITUATION REACTION. DEPRESSED MOOD.
A Department of Defence “Report of the Medical Board of Survey”, dated 7 February 1994, reports:
Neurological examination was normal apart from some restriction of ocular movements in the left eye - the sequelae of surgery for strabismus during childhood[17].
[17] Exhibit 1 at p 22.
A report of Dr K Meades (Eye specialist and Surgeon), dated 18 May 1994, states that Mr Meakin had:
…….,6/36 vision in the left eye, normal intraocular pressures and fundi. His visual co-ordination showed a moderate alternating left esotropia with (sic.) became large on disassociation. This looked longstanding and I wonder whether he has been amblyopic in this eye for many years[18].
[18] Exhibit 1 at p 29.
In a Department of Defence “Outpatient Clinical Record”, dated 10 August 1994, Dr Lawless states that Mr Meakin had “a significant acuity defect in his left eye of which he is quite concerned” and “feels ‘Lazy’ L eye since with poor reading and coordination Strab surgery at 10 yrs” and that:
There is no structural explanation of the poor vision in left eye today….cannot explain his visual loss in the left eye to his satisfaction”. [Emphasis added]
and suggested to Mr Meakin that a further ophthalmological opinion be obtained[19].
[19] Exhibit 1 at pp 32-33.
A Department of Defence “Outpatient Clinical Record', dated 29 September 1994, notes:
Discussion regarding progress. Meakin indicated that despite visual loss he felt he was ready to return to submarines. Explained that at this stage it would be prudent to seek another ophthalmological opinion as recommended by Dr Lawless. Possibility that…no physical cause would be found was discussed. For appointment [with] Dr Hipwell then review[20].
[20] Exhibit 1 at p34.
A Department of Defence “Outpatient Clinical Record', dated 25 October 1994, notes:
Can’t explain visual loss in the eye on anatomical grounds[21]. [Emphasis added]
[21] Exhibit a at p 34.
A report of Dr GC Hipwell (Ophthalmic Surgeon), dated 31 October 1994,states:
I was asked to see [Mr Meakin] at the request of my colleague, Dr Michael Lawless…….
On examination the visual acuity in the right eye was 6/4 and the left eye is perception of light. There were normal extraocular movements but he quite clearly presents with a congenital left esotropia which he admits to having had surgically corrected when he was ten years of age. The fundus of this left eye is normal. He has normal reacting pupillary responses and a normal optic nerve.
His medical records show that he had 6/6 vision in both eyes and I would assume that this young man had an alternating esotropia with possible equal vision on entry and it is possible for the vision to have deteriorated in that eye due to strabismic amblyopia over the past few years. However, his presentation of perception of light only in his left eye was not consistent with that history and it was interesting that his visual acuity had deteriorated on each specialist visit that he has been to over the last few months. It is of course possible for this injury to have caused him to stop alternating and he now prefers fixing with his right eye. However, I am at a loss to account for the severe deterioration of vision in his left eye other than there being some psychological overlay[22]. [Emphasis added]
[22] Exhibit 1 at pp37-38.
A handwritten report of Dr P Whetton (Psychiatrist), dated 5 December 1994, states:
…..it is most likely that he has had amblyopia for years and perhaps the record of 6/6 vision on the [left] eye at the time of entry was incorrect.... Essentially, he wants to get out of the Navy, I think the injury at the beginning of the year was minor and has not caused any great physical sequelae but has become a focus for his discontent and a possible vehicle for his leaving the service[23].
[23] Exhibit 1 at pp 39-40.
A Department of Defence “Outpatient Clinical Record”, dated 23 January 1995, records that Mr Meakin had:
No change in visual acuity[24].
[24] Exhibit 1 at p 35.
A Department of Defence “Report of Medical Board of Survey”, dated 2 November 1995, states:
When reviewed on 28.7.95, the member stated that….
[Mr Meakin’s] visual deficit remained unchanged with all sight in his left eye remaining blurred. He was unable to distinguish any letters on the eye chart with the left eye; visual acuity of the right eye was 6/5. As a result of his visual loss, his work rate as a carpenter has slowed as he [has] difficulty judging distances. He is able to perform tasks in his electrical trade with less difficulty. He has to take care driving and rotate his head more when driving because of the decrease in his field of vision. He is no longer able to play rugby because of the visual deficit.
………..
……on 1 August 1995 [Mr Meakin] has suffered progressive loss of vision in his left eye, to the point where he is now functionally monocular…The origin of his vision loss has been fully investigated and it would appear to be amblyopia secondary to a congenital squint[25]. [Emphasis added]
[25] Exhibit 1 at pp 53-54.
A report of Dr D Candy (Ophthalmologist), dated 17 June 1996, states:
Mr. Meakin was first seen on the 6th May 1996 and again on the 9th May 1996 after having had further investigations i.e. electrophysiological testing carried by Dr. W.M. Carroll and perimetry.
I have read the notes pertaining to his Naval Service, dating from the 9th September 1991 until his date of discharge in late 1995.
The left eye which was the cause of his discharge from the Navy, was recorded as having an unaided visual acuity of 6/6/
Following an accident at sea on H.M.A.S. Otway on the 13th January 1994, the left eye was injured and from the date of injury there was progression in deterioration of vision. Upon my examination on the 6th May 1996, his level of vision was reduced to vague hand movements and the contracted field of vision was equivalent to a 69% loss of visual field.
……….
The deterioration in sight which the patient experienced following his accident on 13th January, would appear to have been the result of trauma to the pre-chiasmatic pathway of the left eye involving the retinal units and optic nerve fibres subserving the central and vertebral field of vision in this eye.
I have calculated Mr. Meakin to have a percentage whole person impairment of 20%, based on table 6.1[26]. [Emphasis added]
[26] Exhibit 1 at pp 83-84.
Recent medical evidence
In August 2013, Mr Meakin was examined by Dr K Chee (Ophthalmologist) at the Mandurah Eye Centre on referral from his medical practitioner at the Modern Medical Clinic, Dr J Lau. In his report, dated 20 August 2013, Dr Chee states:
[Mr Meakin] tells me he fell off a bunk in a submarine in 1994 while at sea and lost consciousness for a period of time afterwards. When he regained consciousness he became aware of significant loss of vision in his left eye. He was reviewed by Drs Michael Lawless and G Hipwell (both ophthalmologists in New South Wales) and their conclusion was that there was no structural explanation for the poor vision in his left eye and that amblyopia was the more likely explanation…..the patient tells me that he had squint surgery at age 10 years old and that the attending surgeon has apparently reported that he had normal vision at that time….He has also been seen by my now retired colleague Dr Doug Candy but I have no reports available.
On examination, his vision is right 6/6 and left hand movements unaided. There is no relative afferent pupillary defect. Corneas are clear and he has normal pressures of right and left 16. Interestingly, there are signs of posterior subcapsular cataracts bilaterally, worse the left. Dilated fundoscopy shows healthy looking discs with no signs of pallor or oedema. His maculae also look unremarkable.
It was unusual for someone in his age group to develop cataracts in the absence of diabetes, steroid use, radiation exposure or direct trauma to the eye. In any case, I do not think that the cataracts can account for the poor vision in his left eye. There are no signs of left optic neuropathy.I cannot provide a clear cause to explain the reduced vision in his left eye but I think it is very unlikely that it can be attributed to amblyopia particularly if it can be shown that the patient had normal vision at age 10. Furthermore, one has to explain how he managed to enter the navy if he had ‘such poor vision in his left eye to start with[27]. [Emphasis added]
[27] Exhibit 1 at pp 128-129.
In a letter to Dr W Ward, dated 17 March 2014, Dr Chee states:
Clinically, there are no signs to suggest a left optic neuropathy. Is the reduced vision secondary to a traumatic cataract on a background of amblyopia or are we just dealing with severe amblyopia here?[28] [Emphasis added]
[28] Exhibit 8.
More recently, at the request of the MRCC, Mr Meakin underwent a further medical examination by Dr G Raad (Consultant Ophthalmologist). In a report, dated 29 August 2014, Dr Raad states:
OPTHALMOLOGICAL EXAMINATION:
Visual acuity in the right eye was 6/6 and N5 with a presbyopic correction – normal.
There was a residual estropis, with good control.
Ocular movements were full.
Colour blindness tests were normal.
Visual acuity in the left eye was only hand movements and this could not be improved.
Bilateral posterior cortical lens opacities are present in each eye.
Reading through his files I noticed in the examination on 18 January 1994 visual acuity in the right eye was recorded as 6/6 and in the left eye 6/18.
In report dated 18 May 1994, the visual acuity recorded in the left eye as 6/36, by Dr K Meades Ophthalmologist.
In report dates 10 August 1994 it is recorded as 3/60.
In report dated 31 October 1994 as recorded by Dr Hipwell, Ophthalmic Surgeon visual acuity in the left eye was only perception of light.
In report dated 23 May 2014 Dr. Kevin Chee states the left visual acuity as counting fingers unaided.
I also note that when he joined the Navy the right visual acuity was recorded as 6/6[Normal], whereas the left6/ blank. That is, there appears to be no record of the left eye visual acuity on enlistment.
It is interesting that on each time his vision has been recorded it has deteriorated.
I noticed that an EEG was performed which was completely normal, as well as full neurological examination.
SUMMARY AND ASSESSMENT:
Mr Meakin appears to suffer from left amblyopia as a result of his childhood squint. This is confirmed by the fact that he had preoperative occlusion wan was also considered postoperative occlusion.
I think there is a very large functional overlay with has aggravated the decreased vision in the left eye.
I know of no ocular or neurological condition which can cause such a visual loss with no findings on either Clinical examination or Investigative tests.
………..
The diagnosis is left amblyopia with residual mild convergent squint, also early bilateral cataracts more marked on the left more than the right eye.
These lens changes are NOT responsible for the reduced vision, in the left eye.
………..
It is my opinion from the assessment and review of documents of Mr Meakin today that he requires intensive psychiatric assessment and management further comment on which is outside my area of expertise[29]. [Emphasis added]
[29] Exhibit 11 at pp 3-4.
Dr Raad was subsequently provided with copies of Mr Meakin’s RAN service medical records, and in response, provided a “Supplementary report”, dated 14 November 2014. In this “Supplementary report”, Dr Raad states:
I have re-studied the file on Mr Christopher Meakin and can see no reason to change the opinion expressed in my letter of 29 August 2014.
The recordings dated 9 January 1992 are very ambiguous as are the ones on 2 September 1993, also those on 7 October 1993.
As none of these were recorded by a trained Ophthalmologist, I attach very little significance to them[30].
[30] Exhibit 12 at p 1.
In another “Supplementary report”, dated 1 May 2015, Dr Raad states:
There was certainly no evidence of any injury and if an injury had occurred there would be changes in the fundus of this eye. There were no signs of any retinal damage or of any optic nerve damage. I consider this precludes Dr Candy’s vies which he expressed as, “maybe”.
……….
I still maintain that the loss of vision in the left eye is the result of “amblyopia ex anopsia” that is, loss of vision through disuse as a result of the left convergent squint.
There is certainly nothing to suggest from the clinical findings that this amblyopia is traumatic in origin[31]. [Emphasis added]
[31] Exhibit 13.
In a further “Supplementary report”, dated 1 September 2015, Dr Raad states:
Thank you for the visual electrophysiology report performed on 28 April 2015.
This report suggests bilateral optic nerve disease.
……….
The alleged accident occurred on 13 January 1994.
The EEG report, dated February 1994 was reported as completely normal.
The brain scan and EEG performed in August 1994 was also reported as normal.
EEG performed and reported in June 1996 was also reported as normal.
It appears that this bilateral optic nerve disease occurred after the above investigations were performed.
What the aetiology is I do not know, but there is no reason for me to change my opinion that Mr Meakin was amblyopic in the left eye as a result of the childhood squint that his present visual deterioration is not the result of the alleged accident of 13 January 1994[32]. [Emphasis added]
[32] Exhibit 14.
In a report dated 21 September 2015, Dr Chee states:
I understand that I have been requested to respond to the report from Dr Raad dated 1 September 2012. I acknowledge that I have read this report. I have also read the reports from Dr Raad dated 29 August 2014, 14 November 2014 and 1 May 2015.
………..
I have seen the EEG report from June 1996. Dr Raad states that it was reported as normal. However, the report, which is by Dr Doug Candy, clearly states that Mr Meakin was suffering from an amblyopic eye but that the deterioration in sight following the accident on 13 January 1994 appeared to be the result of trauma to the prechiasmatic pathway of the left eye. This contradicts D Raad’s comment that the report is normal.
…..Mr Meakin underwent further electrophysiology testing on 28 April 2015. This was organized by me and reported by Dr Steven Colley. The findings suggest bilateral optic nerve disease.
……….
I also wish to make a comment regarding Dr Raad’s report dated 29 August 2014.
In that report, Dr Raad states that Mr Meakin underwent an operation to his left eye for a marked left convergent squint at the age of 5 years old. I have seen the discharge summary of that operation and I note that Mr Meakin was in fact 11 years old when the surgery was performed. Unfortunately, there do not appear to be any documents stating Mr Meakin’s vision in his left eye at that time. If he was clearly amblyopic in his left eye at that age, he would almost certainly have carried that diagnosis in to his adult life[33]. [Emphasis added]
[33] Exhibit 10.
In his oral evidence before the Tribunal, Dr Chee said that there was no clinical evidence proving that there was any left optic nerve damage (i.e. that there was any physical, physiological or organic injury) to Mr Meakin’s left eye. Dr Chee also said that if there had been an “injury” to Mr Meakin’s left eye is would be “most unusual” not to see left optic nerve damage to that eye “even years down the track”. Dr Chee noted that Dr Candy was the only doctor to reach the conclusion that that there was physical, physiological or organic damage to the optic nerve of Mr Meakin’s left eye. According to Dr Chee, if there is no clinical evidence of physical, physiological or organic injury to Mr Meakin’s left eye the conclusion that his vision loss is functional (or psychological) “seems irresistible”. Dr Chee commented that Mr Meakin has a dense cataract in his left eye (which is unusual given Mr Meakin’s age) and if this cataract was removed he would be better placed to comment on whether Mr Meakin has some optic nerve disease (i.e. because the cataract impacts upon EEGs) but that this does not change the fact that there is no clinical evidence of left optic nerve injury in Mr Meakin’s case.
In his oral evidence before the Tribunal, Dr Raad described Mr Meakin’s left eye condition as being a residual convergent left squint, stated that there is no injury to Mr Meakin’s left optic nerve (no ocular damage) and that the structure of Mr Meakin’s left eye is normal. Dr Raad said that this conclusion was based, among other things, on the various EEGs which had been performed on Mr Meakin’s left eye over the years. Dr Raad also noted that Mr Meakin has bilateral cataracts but that these were irrelevant as there was no evidence of left optic nerve damage. Dr Raad described the eye as being an outgrowth of the brain and the left and right optic nerves as only being a few millimetres long and as "crossing over" and connecting the eyes to the brain, hence his reliance on Mr Meakin’s EEG results. According to Dr Raad, where an injury to the eye occurred there would be an instantaneous loss of vision and there would be visible damage to the optic nerve. Dr Raad commented that he saw no optic nerve damage in 2014 and that there has been no change in Mr Meakin’s left optic nerve in at least 20 tears, since the Fall in 1994, based on the EEG results. According to Dr Raad, the fact that various eye chart tests performed on Mr Meakin before his entry into the navy recorded Mr Meakin as having 6/6 vision in his left eye at that time means either one of two things – that the people who administered the eye tests recorded the results incorrectly or that Mr Meakin cheated on the tests, by memorising the eye charts, because of his desire to join the navy. Dr Raad commented that the fact that Mr Meakin had occlusion (patching) as a 5 year old boy shows that he already had defective vision, before joining the navy, and the Fall and, further, that the operation Mr Meakin had when he was 11 years old to correct his squint (left esotropia) was “purely cosmetic, to make him look respectable/normal”.
ANALYSIS
Mr Meakin’s claim for compensation falls to be determined under s 14 of the SRC Act, rather than under the Military Rehabilitation and Compensation Act 2004 (MRC Act), because the Fall, which Mr Meakin alleges caused the Claimed Left Eye Condition because it occurred and Mr Meakin’s RAN services were rendered after the commencement date of the MRC Act, being 1 July 2004: s 7(1)(a) and (b) of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004[34].
[34] See also Anderson v Military Rehabilitation and Compensation Commission [2013] AATA 360 at [24] to [27] per DP Hotop. This is the case despite the fact that Mr Meakin made his compensation claim in respect of the Claimed Left Eye Condition on 5 March 2008: see paragraph 10 above.
Section 14(1) of the SRC Act, titled “Compensation for injuries”, states:
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The term “injury” is defined in s 5A of the SRC Act (with effect from 13 April 2007) as follows:
5A(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
At the time of the Fall in 1994, “injury” was defined in former s 4(1) of the SRC Act as:
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’.
In short, the word “being” in the former s 4(1) definition of “injury” in the SRC Act was replaced by the words “that is” in the current definition of “injury” in s 5A of the SRC Act.
The term “disease” is defined in s 5B of the SRC Act (with effect from 13 April 2007) as follows:
5B(1) In this Act:
disease means
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
At the time of the Fall in 1994, “disease” was defined in former s 4(1) of the SRC Act as being an ailment that was “contributed to, to a “material” degree, by the employee’s employment” (cf “contributed to, to a “significant” degree, by the employee’s employment” in current definition of “disease” in s 5B of the SRC Act).
Ultimately, the question whether a particular condition is an “injury” or a “disease” for the purposes of the SRC Act is dependent upon the ordinary meaning of those terms, having regard to the specific facts of a case.[35]
[35] Comcare v Etheridge (2006) 149 FCR 522.
It is unclear whether Mr Meakin claims to have suffered an “injury” arising out of, or in the course of, his employment with the RAN as a result of the Fall, or whether his claim is that he has a “disease” that arose prior to 13 April 2007 or since, and, therefore, whether the that “disease” has been contributed to, to a material degree, or contributed to, to a significant degree, by any injury occasioned in the Fall. Based on the evidence before the tribunal, and the way in which Mr Meakin’s representative ran his case, it appears the more likely scenario is that Mr Meakin’s position is that he sustained an “injury” which arose “out of, or in the course of his employment” with the RAN as a consequence of the Fall.
However, for practical purposes this distinction is ultimately of limited relevance since as stated above (in paragraph 18), in determining whether the MRCC is liable to compensate Mr Meakin under s 14 of the SRC Act for the Claimed Left Eye Condition allegedly suffered by him as a result of the Fall, the Tribunal is limited to a consideration of any “physical/physiological/organic factors” only.
In short, the Tribunal finds that the MRCC is not liable under s 14 of the SRC Act to compensate Mr Meakin for the Claimed Left Eye Condition as there is simply no clinical medical evidence of a “physical/physiological/organic” injury to Mr Meakin’s left eye as a consequence of the Fall.
The medical evidence provided relatively contemporaneously with the time of the Fall (in 1994 and in 1995) is not consistent as to diagnosis and does not reflect the views of Dr Candy (Ophthalmologist), who first saw Mr Meakin in May 1996 and provided his report in June 1996, that Mr Meakin’s loss of vision in his left eye had resulted from the Fall (i.e. that Mr Meakin’s deterioration of sight would “appear to have been a result of trauma to his pre-chiasmatic pathway of the left eye involving the retinal units and optic nerve fibres”: see paragraph 45 above. Importantly, none of this evidence establishes any “physical/physiological/organic” injury to Mr Meakin’s left eye as a consequence of the Fall.
More specifically:
· Dr Herkes (Neurologist) found in January 1994 that Mr Meakin’s left fundus (back of his left eye) was relatively normal and that the result of his EEG was “completely normal”: see paragraph 33 above;
· The 31 January 1994 Report states the “Final Diagnosis of Principal Disease or Injury” as being “Situation Reaction. Depressed Mood”: see paragraphs 34 and 35 above;
· the Medical Board of Survey’s report of 7 February 1994 states that Mr Meakin’s “Neurological examination was normal” apart from “the sequelae of surgery for strabismus during childhood”: see paragraph 36 above;
· Dr Meades (Eye Specialist and Surgeon) found on 18 May 1994 that Mr Meakin had “normal intraocular pressures and fundi (back of the eyes)” and made the observation that Mr Meakin may have been “amblyopic” in his left eye “for many years”: see paragraph 37 above;
· various Department of Defence “Outpatient Clinical Records” establish that there was “no structural explanation of the poor vision” in Mr Meakin’s left eye, that the visual loss in Mr Meakin’s left eye could not be explained on “anatomical grounds”, that no “physical cause” for the loss of vision in Mr Meakin’s left eye could be found: see paragraphs 38, 39 and 40 above;
· Dr Hipwell (Ophthalmic Surgeon) found in October 1994 that the “fundus” (back) of Mr Meakin’s left eye was normal, that Mr Meakin had “normal reacting papillary responses and a normal optic nerve” and that it was possible for the vision in Mr Meakin’s left eye to have deteriorated over the past few years due to “strabismic amblyopia”: see paragraph 41 above; and
· the Medical Board of Survey report of 2 November 1995 states that the origin of Mr Meakin’s “vision loss has been fully investigated” and it “would appear to be amblyopia secondary to a congenital squint”: see paragraph 44 above.
Dr Candy’s report, dated 17 June 1996, provides that the Fall “would appear to have been the result of trauma to the pre-chiasmatic pathway of the left eye involving the retinal units and optic nerve fibres”. Dr Candy’s report is the only medical report which suggests any physical/physiological/organic injury to Mr Meakin’s left eye condition as a result of the Fall. The Tribunal notes that Dr Candy’s 1996 report uses the words “would appear” indicating a hypothesis of what happened to Mr Meakin’s left eye (or tentative diagnosis) rather than an actual diagnosis of his left eye condition and it must be read in this light and afforded little weight, particularly in circumstances where Dr Candy’s hypothesis or tentative diagnosis has subsequently been proven to be clinically incorrect.[36]
[36] Since providing his 1996 report, unfortunately Dr Candy passed away and, therefore, was unable to provide evidence clarifying the content of his 1996 report.
More recently, Mr Meakin was examined and medical reports were provided by Dr Chee (Ophthalmologist) and Dr Raad (Consultant Ophthalmologist). Neither of these specialist doctors found any “physical/physiological/organic” injury to Mr Meakin’s left eye as a result of the Fall.
Specifically:
· in August 2013, Dr Chee found that “There are no signs of left optic neuropathy” and that he could “not provide a clear cause to explain the reduced vision in [Mr Meakin’s] left eye”: see paragraph 46 above;
· in March 2014, Dr Chee found that “Clinically, there are no signs to suggest left optic neuropathy”: see paragraph 47 above;
· in August 2014, Dr Raad diagnosed Mr Meakin with “left amblyopia with residual mild convergent squint”, noted that an EEG and neurological examination performed on Mr Meakin was “completely normal” and stated that he knows of “no ocular or neurological condition which can cause such a visual loss with no findings on either Clinical examination or Investigative tests”: see paragraph 48 above;
· in May 2015, Dr Raad reported that there was “no evidence of any injury and if an injury had occurred there would be changes in the fundus (back) of the eye. There were no signs of any retinal damage or of any optic nerve damage” and there was no clinical evidence to suggest that Mr Meakin’s “amblyopia” is “traumatic in origin”: see paragraph 50 above; and
· In September 2015, Dr Raad noted that the EEG’s performed on Mr Meakin in February 1994, August 1994 and June 1996 were all reported as “normal” and stated that Mr Meakin was “amblyopic in his left eye as a result of the childhood squint” and that Mr Meakin’s present left eye condition was “not the result of the alleged accident of 13 January 1994 [i.e. the Fall]: see paragraph 51 above.
The oral evidence of both Dr Chee and Dr Raad at hearing confirmed what they concluded in their various medical reports, namely that there is no clinical medical evidence of injury to Mr Meakin’s left optic nerve. That is, both doctors agree that nothing that happened to Mr Meakin in 1994 (i.e. the Fall) resulted in injury to Mr Meakin’s left optic nerve and altered that eye because there would be evidence of optic nerve damage presently and there isn’t. Further, both Dr Chee and Dr Raad agreed that Mr Meakin’s left eye cataract is of no relevance in determining whether there is “physical/physiological/organic” injury to Mr Meakin’s left eye, cataracts simply being a cloudy protein formation on the eye. In short, the oral evidence of Dr Chee and Dr Raad clearly supports a finding that there is no physical, physiological or organic injury to Mr Meakin’s left eye as a consequence of the Fall.
As set out above (in paragraphs 26 to 31), Mr Meakin underwent a number of eye tests prior to joining the RAN in 1992 and before the Fall. These tests consistently report that Mr Meakin had 6/6 vision in his left eye. In his evidence, having concluded that “there are no signs of left optic neuropathy”, Dr Chee commented that “one has to explain how [Mr Meakin] managed to enter the navy if he had such poor vision in his left eye to start with”: see paragraph 47 above. In his evidence, Dr Raad commented that the only plausible explanation for these 6/6 eye chart test results is that the eye tests were recorded incorrectly by the person performing test (noting that they were not performed by trained ophthalmologists) or that Mr Meakin cheated on the tests, by memorising the eye charts, in order to gain entry to the navy. Ultimately, the Tribunal places little weight on these eye chart test results for the reason that they are effectively rendered irrelevant (displaced) by subsequent clinical findings in relation to Mr Meakin’s left eye, such as the EEGs (Electroencephalography) performed on Mr Meakin in February 1994, August 1994 and June 1996 which all found Mr Meakin’s left eye to be “normal” and that there is no left optic nerve damage or change to the fundus (back) of the left eye as a result of an injury.
DECISION
For the above reasons, the Tribunal affirms the Decision.
I certify that the preceding 73 (seventy three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ..(Sgd) A Tran......................................................................
Administrative Assistant
Dated 16 November 2015
Date(s) of hearing 27-28 October 2015 Counsel for the Applicant Mr T Robbins Representative for the Applicant Mr PT Meakin Counsel for the Respondent Mr J Lenczner Solicitors for the Respondent Australian Government Solicitor
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