Morris and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 1635
•6 October 2017
Morris and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1635 (6 October 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/5880
Re:Luke Morris
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:6 October 2017
Place:Brisbane
The decision under review is affirmed.
.................................[Sgd].....................................
Senior Member J Sosso
CATCHWORDS
COMPENSATION - Military Compensation – where Applicant suffers from ulcerative colitis – irritable bowel syndrome – whether condition connected to military service - statement of principles concerning inflammatory bowel disease – whether Applicant was using non-steroidal anti-inflammatory drugs before clinical onset of IBD - decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 s 23
Veterans’ Entitlements Act 1986 ss 339, 341CASES
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission [2002] FCAFC 398; 125 FCR 331
Repatriation Commission v Cornelius (2002) 35 AAR 345
Repatriation Commission v Gosewinckel (1999) 59 ALD 690SECONDARY MATERIALS
Statement of Principles concerning Inflammatory Bowel Disease, No. 20 of 2012
REASONS FOR DECISION
Senior Member J Sosso
6 October 2017
INTRODUCTION
Background
Mr Luke Morris (the Applicant) lodged a claim for compensation in respect of his bowel condition (ulcerative colitis) in November 2014 – Exhibit 1 T36 p. 113.
The Applicant served in the Royal Australian Air Force (RAAF) from 12 September 2006 until he was medically discharged on 28 February 2016 – Exhibit 12 p. 1 para 2, Exhibit 13 para 1. The Applicant was awarded the Australian Defence Medal in September 2010, and during various times in the 2007 – 2010 and 2013 – 2014 periods served with Australia’s Federation Guard (AFG). His substantive rank on discharge from the Australian Defence Force (ADF) was Leading Aircraftman where he served at RAAF Base Amberley – Exhibit 2 pp. 3 – 4.
Applicant’s basic contentions
Mr Black of Counsel, on behalf of the Applicant, summarised the Applicant’s basic contentions as follows – Exhibit 13 para 2:
(a)the Applicant suffers from a defence-related condition of ‘aggravation of the signs and symptoms of bilateral femoral neck deformity causing impingement’, the liability for which condition was accepted by the Military Rehabilitation and Compensation Commission (the Respondent) on 20 December 2007;
(b)following bilateral hip surgery on 24 April 2012, the Applicant was treated with over-the-counter non-steroidal anti-inflammatory medications to manage his hip pain and discomfort during his rehabilitation;
(c)by either late August 2012 or 27 June 2013, the Applicant experienced the ‘clinical onset’ of inflammatory bowel disease (IBD); and
(d)throughout August 2012 and until at least 27 June 2013, the Applicant continued using over-the-counter non-steroidal anti-inflammatory medications to manage his pain and discomfort.
Applicant’s statements
The Applicant provided a Member’s Statement with his claim, in which he made the following assertions – Exhibit 1 T37 p. 116:
“I Luke Morris was diagnosed with Inflammatory Bowel Disease (Ulcerative Pan Colitis) on 27 June 2013. I developed symptoms in late September 2012, however did not present myself to a medical facility until 2013 (when I was diagnosed) as I felt the problem was a case of Gastroenteritis/common stomach virus. As my symptoms progressively got worse, and did not subside, I attended a medical appointment where I was referred to a Specialist.
I believe the Australian Defence Force triggered this illness in the following ways.
On 24th April 2013 I was required to have surgery related to a hip injury that Defence accepted the aggravation of. During post surgery rehabilitation, I was prescribed non-steroidal anti-inflammatory medication.”
The Applicant also made a Statutory Declaration on 3 February 2016 in which he deposed to his usage of non-steroidal anti-inflammatory medications following his 2012 operation – Exhibit 4:
“1. On 24 April 2012 Dr Patrick Weinrauch (Brisbane Hip Clinic, St Andrew’s Hospital, Spring Hill) conducted a bilateral hip arthroscopy and osteoplasty to treat hip impingements that I suffered from. Post surgery, and upon discharge, I was prescribed with Naprosyn PR1000 for 28 days. Upon which I was advised to take over the counter anti-inflammatories and pain killers (namely Panadol Osteo/Ibuprofen) as required to manage pain and inflammation.
2. During the time between 22 May 2012 (cessation of Naorosyn (sic) PR1000) and August 2012 (onset of my Ulcerative Colitis symptoms) I was taking these over the counter medications to help in my post surgery rehabilitation. As this medication was purchased over the counter, I have no physical records of taking this medication.
3. Due to my employment at that time, and the pressure to become Individual Rediness (IR) (sic) compliant as quickly as possible, the medication was used to aid in my recovery and minimise the pain during activates (sic) such as physical fitness training, ceremonial activities, and load bearing exercises.
4. To the best of my recollection, I took the medication on average once – twice daily depending on activity, in the doses outlined on the packaging, for management of my post operation symptoms during the recovery phase.”
The Applicant also provided a Statement of Evidence which is dated 26 June 2017 – Exhibit 6.
In that Statement the Applicant deals at some length with his posting to AFG. AFG is a dedicated ceremonial unit and is the “face of the ADF” – para 5. It performs at significant events such as ANZAC Day and Australia Day, and places a very high level of importance on physical fitness and “looking good” – para 8. Normally, a daily program would involve an hour of physical training in the morning, then drill and ceremonial practice followed by more physical training in the afternoon. The Applicant also participated in the Precision Drill Team because he was one of the most experienced persons to play drums in the unit - para 10.
The Applicant stated he was under pressure to pass a physical fitness test because this impacts on the type of job and posting within the ADF. As the Applicant was aiming at being posted to AFG, he was particularly conscious about the need to regain his physical fitness after his 2012 operation – para 4. The following extracts from the Statement deal with the Applicant’s claimed usage of over-the-counter medicine following the 2012 operation:
“6. Recovering from hip surgery to the point of building a high level of physical fitness, including running and cycling, is long hard work. During the time between 22 May 2012 (cessation of Naprosyn PR1000) and August 2012 (first onset of my ulcerative colitis symptoms) I regularly took over the counter medications to help in my post surgery rehabilitation. The medication was purchased over the counter, and I have no physical records of taking this medication. However, I have been able to find some relevant bank transactions that were for purchases at Supermarkets for the dates 1 and 12 Aug 012 and 5 March and 29 April 2013 as attached.
7. Due to my employment at that time, and the pressure to become Individual Readiness (IR) complaint as quickly as possible, the medication was used to aid in my recovery and activities, and load bearing exercises. To the best of my recollection, I took medication (including Ibuprofen) on average once – twice daily depending on activity, in the doses outlined on the packaging, for management of my post operation symptoms during the recovery phase.”
The Applicant then states that he was posted to AFG in January 2013, but he still had problems with his hip and his “gastro” condition which was worsening – para 8. By March 2013 the Applicant states that he was only able to participate in fitness training without falling behind by taking medication, including Ibuprofen, on a regular basis - para 9. He also states:
“12. Due to this culture, and the fact that previously I could maintain my pain levels at a bearable level with medication, I continued to take anti-inflammatories on a regular basis to control the pain and allow me to participate in fitness training without falling behind too much.
13. Due to the increase in physical activity, and pushing through the pain by using medication, I began to develop pain in my right knee. As a way to manage this and not flag it with my chain of command, I relied more on anti inflammatories in combination with physio support.
14. I particularly remember that in the lead up to the eventual diagnosis of ulcerative colitis in June 2013, I was working hard on my physical training and using medications (including Ibuprofen) under the original advice of my physiotherapist.”
Applicant’s medical history
It is not contested that the Applicant suffers from a constitutional condition of the hips – Femoroacetabular impingement. Persons suffering from this condition have abnormally shaped hip bones which do not fit together perfectly and consequently rub against each other and cause damage to the joint – Report of Dr R Meyerowitz, 24 July 2015, Exhibit 1 T25 p. 53.
Shortly after the Applicant enlisted and commenced ADG training at Amberley he complained of bilateral hip pain which was made worse by pack marching, leopard crawling and running with boots. By early 2007 he began experiencing clicking in both hips. He was subsequently suspended from ADG training on medical advice and given less arduous activities, including clerical duties – Exhibit 2 p. 39.
On 26 November 2007 the Applicant lodged his first claim for liability under s 23(3) of the Military Rehabilitation and Compensation Act 2004 (the Act) in respect of “groin pain” and “hip impingement”. His claim was accepted for the following condition sustained on
8 March 2007- Exhibit 1 T29 p. 90:
“Aggravation of the signs and symptoms of bilateral femoral neck deformity causing impingement”.
It was accepted that this condition was related to the Applicant’s defence service. The Delegate made the following findings (p. 91):
“I have considered all the evidence and I am reasonably satisfied that signs and/or symptoms of your pre-existing bilateral femoral neck deformity causing impingement has been aggravated by your defence service.”
As noted above, on 24 April 2012 the Applicant underwent hip surgery at St Andrew’s War Memorial Hospital, Brisbane, performed by Dr Patrick Weinrauch. The Operation Record of the surgery describes the procedure as bilateral hip arthroscopy, right femoral osteoplasty and acetabular microfracture – Exhibit 1 T 5 pp. 26 - 28.
Dr Weinrauch prescribed the Applicant Narposyn SR 1000 once daily for 28 days – p. 26. Narposyn is a non-steroidal anti-inflammatory medication.
An Outpatient Clinical Record of the Amberley Health Centre of 14 May 2012 states that the Applicant was in “intermittent pain no analgesia” – Exhibit 2 p. 182.
In a Treatment Note of 3 August 2012 the treating Doctor noted that the Applicant’s hips were “much better. Running 1.8 km- little pain… gentle yoga” – Exhibit 2 p. 323.
A similar diagnosis was provided by Samantha Bidstrup, Rehabilitation Consultant, in a report dated 31 August 2012 (Exhibit 2 p. 237):
“Member remains on MEC J31 this month. He has resumed most pre-injury duties minus some lifting tasks. Nil issues reported. He reported no difficulties with any tasks, even more physical components of work… Physio, Geoff, has recommended weight loss to assist with general fitness of member… Dietician has also been recommended, in which case, the member is continuing to follow up this coming month.”
In a letter dated 28 September 2012 to Dr Greg Hampson, Dr Weinrauch also gave a very positive account of the Applicant’s post-operation recovery – Exhibit 1 T6 p. 29:
“Luke is now 5 months post bilateral hip arthroscopy which included a right femoral osteoplasty for FAL. His left hip is near perfect. His right is progressing very well. He has maintained his range of motion profile in rotation assessment and his hip is almost completely pain-free to Quadrant testing. Luke has intermittent catchy discomfort on a very irregular basis of the right hip. It does sound most like anterior capsular irritability and given that he has had an osteoplasty in the region, this is not uncommon. I suspect that it will continue to settle. It is not causing him great concern and he is able to perform running activities at ease at the moment. He has however noticed some discomfort to palpation in the region and I think to be thorough it is worthwhile him having an ultrasound and I have arranged for him to have this done at Qld X-ray and I can follow him up by Telemedicine consultation.”
In line with the recommendations of Ms Bidstrup, the Applicant was assessed on
8 October 2012 by a Department of Defence Dietitian who noted in the part of the report detailing medications that the patient was taking “Nil” – Exhibit 1 T7 p. 30.
The Applicant was also continuing to have physiotherapy treatment. In the Discharge Summary document which was signed by Mr Poole on 8 January 2013, the Applicant’s improvement was stated to be 80 – 100%. It was recommended that the Applicant could return to work and it was noted “Recovered well from B/L hip.” – Exhibit 2 p. 314
Outpatient Clinical Records of the Duntroon Health Centre also indicate that the Applicant’s post operation recovery was proceeding in a very positive manner. In the notes of an examination of 14 January 2013 the treating doctor observed – Exhibit 2 p. 352:
“Rehab has been going well. Anticipate being able to upgrade in next few months”
When the Applicant was examined on 5 February 2013 the treating doctor noted – Exhibit 2 p. 352:
“Doing very well after hip arthroscopy
Now able to run at one pace
Fit to do all activity at AFG”
Dr Randell examined the Applicant on 7 February 2013 and upgraded him from J31 to J21, and, in the section of the Medical Employment Classification Report dealing with specific employment or deployment restrictions, noted – Exhibit 2 p. 366:
“1-2 fit for running within own limitations
1-7 lower limb P/T at own pace”.
Five days later the Applicant was examined and was diagnosed as follows – Exhibit 2
p. 346:
“Hot flushes, headaches
Congestion
Sore throat at night
No cough
Eating and drinking well
Not sleeping well
Referred to pharmacy
Chet for 1 day”.
The following day the Applicant was again examined - (p. 346):
“Still unwell but better than yesterday
Feels … dehydrated
Throat slightly scratchy at night
Feels better dehydrated today”.
On 15 March 2013 the Applicant complained about “gastro symptoms”, and the treating doctor made the following observations (p. 346):
“Wishes to discuss mild ongoing gastro symptoms
Loose bowel for several months since QLD showground
Feeling if bloated but no swelling
No nausea/vomiting but has stomach awareness
Blood or mucus in diarrhoea
Tried restricting dairy to see if might be lactose intolerance but no difference
Plan 2 gicodile/ cryptosporidium
Triazole 2g start
If not improved, check stool for o/c/p, reducing substances + celiac screen”.
There is a further medical report which was written ten days later. The treating doctor noted (p. 346):
“Ongoing small bowel cramps intermittently…
No response to triazole. Cramps persist
Check m/l/s stool…also coeliac screen.”
The Applicant underwent a colonoscopy on 27 June 2013. The treating physician,
Dr Roger Lee, reported the following findings – Exhibit 1 T11 p. 34:
“Indication
Luke is a 25 yo gentleman who presents for investigation of 12/12 altered bowel habits with associated bloating. Bowels fluctuate 1-5/day with variable stool consistency. No rectal bleeding in addition Luke describes intermittent regurgitation with a burning sensation in the throat…
Findings
Digital rectal examination was normal. No perianal disease was noted. Diffuse pan colitis contiguous to the anal verge was noted. The mucosa appear oedematous with loss of vascular pattern but no contact bleeding nor deep serpiginous ulceration. The terminal ileal mucosa appeared normal. Multiple biopsies were taken throughout the colon and terminal ileum. No polyps or tumours seen.
Diagnosis
Probable ulcerative pancolitis.
Follow Up
See your General Practitioner (Dr Randell) for the results of today’s biopsies. Start Mesalazine 500 mg tabs two tabs tds…”
Following the colonoscopy, Dr Lee reviewed the Applicant’s progress every 4-6 weeks. The Tribunal has been provided with medical reports prepared by Dr Lee on 12 August, 16 September 29 October and 16 December 2013. In his report of 12 August 2013,
Dr Lee opined – Exhibit 1 T12 p. 36:
“Luke presented with a 12 month history of altered bowel habits with his recent colonoscopy showing moderate pancolitis. Biopsies have confirmed similar findings in keeping with a diagnosis of ulcerative pancolitis. Luke was started on Mesalazine 250 mg tablets two tds but did not have any significant response and has been taking four tablets tds over the last month. At present his bowels remain quite variable, functioning up to six times per day and often six times at night with watery stools but less abdominal pain.
I explained to Luke we need to increase his Mesalazine to a maximum dose of 4 g daily (16 250 mg tablets). I suggested that if he does not settle over the next three to four weeks when he is reviewed we need to add a short course of Prednisone 50 mg daily. Thirdly I have given him some information with regards to other treatment options including the use of Imuran long term to control his colitis…”
When Dr Lee examined the Applicant on 16 September 2013 he was told by the Applicant that his condition had not improved very much and he was still using his bowels 3-4 times daily and during the night. Dr Lee opined that the Applicant’s treatment needed to be stepped up and prescribed 3mg Entocort capsules daily for one month and then two capsules daily for one month - Exhibit 1 T13 p. 37.
By the time of next examination of 29 October 2013, the Applicant was taking Entocort 9 mg daily and Salofalk 1.5 g tds. His bowel movements were still variable, ranging from once to 10 times a day. However, Dr Lee was optimistic about the Applicant’s prospects – Exhibit 1 T14 p. 38:
“I am hopeful that Luke’s symptoms should improve now that he is on Entocort. I have suggested he could take Salofalk four tablets bd (2 g bd) which might improve his compliance and make it a little easier for him. I plan to review him in December 2013 and if he is not continuing to improve I would plan to add regular Imuran to his regimen. I have asked him to remain on Entocort 9 mg for the first month and reduce it by 3 mg every month thereafter.”
When Dr Lee examined the Applicant on 16 December 2013, he was informed that when the Applicant reduced his ingestion of Entocort to 6 mg per day, his bowel movements increased up to 10 daily. Dr Lee opined – Exhibit 1 T15 p. 39:
“Luke’s colitis is not under ideal control. This is despite being on a maximal dose of Entocort and Salofalk. I have suggested that he would need to add Imuran 2mg/kg to his regimen…”
On 29 December 2013 the Applicant presented to the Calvary Hospital Emergency Department complaining of vomiting and diarrhoea. He was examined and discharged the same day, being diagnosed with fever, abdominal pain, diarrhoea and gastroenteritis – Exhibit 1 T16 pp. 40- 41.
Dr Lee again examined the Applicant on 10 February 2014, and provided the following diagnosis – Exhibit 1 T 17 p. 44:
“On the 29th December 2013 he presented to Calvary Emergency Department with vomiting and was treated with analgesia and antiemetics. His liver function tests were essentially normal at the time and his symptoms resolved over 24 hours. I note that on some recent blood tests dated the 13th January 2014 he had moderately abnormal liver function tests in a mixed pattern. He has been taking some oral supplements consisting of protein and branched chain amino acids, but tells me he has not been taking any for the last few weeks. His other screening pre Imuran includes - ANA, varicella, hepatitis B, TPMT and full blood count all normal.
Luke is yet to undergo a chest x-ray and I have added on an abdominal ultrasound in view of his abnormal liver function tests which are unexplained. I have asked to try and locate a copy of his Mantoux result which he tells me was undertaken at Duntroon. I have asked him to remain off all supplements for the time being and hopefully his liver function tests will return to normal so that we can start him on Imuran when our pre treatment investigations are complete.”
When he was next examined by Dr Lee on 17 March 2014 his condition had improved.
Dr Lee reduced his dosage of Entocort from 9 to 6 mg daily for the next month, and 3 mg thereafter. Dr Lee also asked the Applicant to desist from taking all non-essential supplements and medications as he was of the view that these were the likely cause of his liver disturbance – Exhibit 1 T19 p. 46.
In the May - June 2014 period the Applicant’s bowel movements increased from four to 12 per day and he was also passing occasional blood and mucous. Dr Lee examined the Applicant on 23 June 2014 and was uncertain why the Applicant had deteriorated. He opined that the deterioration could have its origin in an infection, the reduction in the Entocort dosage may have been premature or that the diarrhoea was a side-effect of his medications – Exhibit 1 T21 p. 48.
Following pathology tests on 7 July 2014, the following diagnosis was provided for the Applicant’s ongoing diarrhoea condition – Exhibit 1 T22 p 49:
“Clostridium difficile is associated with antibiotic induced diarrhoea and colitis. Primary treatment requires the withdrawal where possible of antibiotic therapy. If diarrhoea is severe or persistent treatment with metronidazole may be effective.”
The Applicant was examined by Dr Norgrove at the Duntroon Health Centre on
17 July 2014. In the Medical Employment Classification Review Record, Dr Norgrove made the following observations – Exhibit 1T34 p. 106:
“LAC Morris is currently managed on mesalazine 2g bd (oral) and azathioprine 150mg daily (commenced in May 14). Unfortunately LAC Morris’s symptoms have worsened recently and C. difficile has been isolated. LAC Morris was commenced on 400 mg metronidazole po tds for a week today.
LAC Morris has been posted to 6 SQN at RAAF Amberley effective 25 Aug 2014. He is interested in participating in the FOCUS clinical trial (faecal enema treatment for colitis) and his participation has been endorsed by Dr Lee by telecon today. LAC Morris will pursue this upon posting to AMB (can participate through Namboor (sic) Hospital).
LAC Morris requires immunosuppressant therapy to manage his condition. The condition is chronic. LAC Morris is likely to be unfit for deployable service in the long term. He is able to carry out effective RAAF service in a garrison/on base environment. LAC Morris’s condition is manageable with medical officer and specialist care. MEC J42 is recommended.”
At the time this report was prepared, the Applicant was posted to AFG. His condition rendered him unfit for ceremonial parades.
The Applicant underwent a second colonoscopy on 24 October 2014 at the Wesley Hospital in Brisbane. Dr Bryant, who performed the procedure summarised the Applicant’s condition as “Pancollitis with features of both ulcerative and pseudomembranous colitis”, and made these concluding comments – Exhibit 1 T23 p. 50:
“I would recommend admission for confirmation of Clostridium difficile colitis and appropriate therapy.”
Applicant’s claim history
42.On 18 November 2014 the Applicant lodged his Claim for Compensation. He listed his claimed disease as “Inflammatory Bowel Disease”, and stated that he had been “medically downgraded to J40” – Exhibit 1 T4 pp. 18 – 25.
The Applicant’s claim was rejected by a Delegate of the Respondent in a decision dated
6 March 2015. The Delegate’s reason for rejecting liability are set out below – Exhibit 1 T39 p. 123:
“On review of the service medical information on file, I have noted in particular the gastroscopy report from Dr Roger Lee dated 27 June 2013, which confirms diagnosis of your condition.
The relevant Statement of Principles details several factors, one of which must be satisfied before I can be reasonably satisfied that your Ulcerative Colitis is connected to your service.
The following factors were considered most relevant in investigating your claim:
6(g) being treated with a drug or a drug from a class of drugs in the specified list, for at least the seven days before the clinical worsening of inflammatory bowel disease
“a drug or a drug from a class of drugs in the specified list’ means:
(a) Isotretinon;
(b) Non-steroidal anti-inflammatory drugs; or
(c) Tumour necrosis factor antagonists.
I have noted your contention that you were prescribed non-steroidal anti-inflammatory medication post surgery for a hip injury. However, I could not find any evidence on file to suggest you were taking such medication. Furthermore, you began experiencing symptoms of your condition in September 2012; the report from Dr Lee dated 12 August 2013 states that you have a 12 month history of altered bowel habits. And as your hip surgery was not until April 2013, it would appear that your condition had its origins well before the date of your hip surgery. As such, this factor cannot be considered.
I have considered all the other factors and I am not satisfied you meet the requirements for any of the other Statement of Principles.”
It will be noted that the Delegate in reaching her decision incorrectly states that the Applicant’s surgery was April 2013. Accordingly, much of the reasoning underlying her decision was predicated on a misapprehension.
In a letter dated 16 March 2015, the Applicant requested a reconsideration of the above Determination. The Applicant contended that the Delegate was incorrect for the following reasons – Exhibit 1 T40 pp. 124-125:
“3. Within the above mentioned correspondence, under the heading Connection to service, it is stated that no evidence could be found on file to suggest I was prescribed non-steroidal anti-inflammatory medication post surgery for hip injury. Dr P. Weinrauch, the Orthopaedic Surgeon who conducted my hip surgery and provided after surgery medical advice, has provided me with documentary evidence to satisfy this doubt. The medication was issued as stated in his post operation orders. This information can be found in enclosure 1.
4. Also within the above mentioned correspondence, under the heading Connection to service, reference is made to key events in relation to when surgery was conducted and the onset of my illness. The dates that have been included in the delegate’s decision in relation to connection to service use incorrect information. Whilst the dates referenced in regards to the report from Dr Lee dated 12 August 2013 stating that I have a 12 month history of altered bowel habits are correct, the dates referenced for my hip surgery have been misguided. That date for my hip surgery that the delegate has used to direct their decision asper the Reasons for Decision said surgery was conducted in April 2013. According to the report from Dr P Weinrauch that can be found at enclosure 1, dated 28 September 2012, I was 5 months post surgery at the time of the report. The Operation Record also states that surgery was conducted on 24 April 2012, not the incorrect date of April 2013 as previously mentioned. Also, my original Members Statement advised that hip surgery was performed in April 2012, not April 2013 as stated in the determination. I believe that this documentary evidence satisfies this point in relation to connection to my service also.”
The Review Officer, Ms Sandra Austin, affirmed the decision under review, but on different grounds. In her decision, Ms Austin correctly dates the Applicant’s surgery as
24 April 2012. Accordingly, this decision is not, on its face, subject to the same error as was manifest in the decision of 6 March 2015. The relevant sections of Ms Austin’s reasons are set out below – Exhibit 1 T46 pp. 135 – 137:
“Background and reasons
On 20 December 2007, a delegate of the Military Rehabilitation and Compensation Commission (MRCC), accepted your claim for ‘Aggravation of the signs and symptoms of bilateral femoral neck deformity causing impingement’ (your accepted condition). In a report from Dr Mark Young, Sports Physician, dated 17 May 2007, he reported that you had a ‘rare, pre-existing condition’ which has been aggravated by your service and made it symptomatic.
Since 2007, as you continued your service, you continue to experience symptoms relating to this condition.
On 24 April 2012, you underwent surgery on both hips for this condition. In the operation report it states ‘Oral analgesic prescription provided. Naprosyn SR 1000 once daily for 28 days.’ Naprosyn SR 1000 is a non-steroidal anti-inflammatory drug.
In your claim for compensation dated 12 November 2014, you advise that you first developed symptoms of ulcerative colitis in September 2012 and you were diagnosed with the disease in June 2013.
In a minute dated 12 February 2015, Dr Maya Kumaran, Medical Adviser, notes in June 2013, you ‘presented with a 12 month history of altered bowel habits’, underwent a colonoscopy and biopsy, and were diagnosed with ulcerative colitis…..
Conclusion
While I accept you were taking a non-steroidal drug for 28 days post 24 April 2012, the evidence I have suggests you stopped taking this drug on 22 May 2012. The date of clinical onset of the disease is determined to be 27 June 2013, being the date the condition was confirmed by biopsy. There is no evidence that you took a non-steroidal drug for ‘at least the seven days before the clinical onset of inflammatory bowel disease’ (ulcerative colitis) in June 2013 (see SoPs, 6(d)). Rather, this disease appears to have developed some months after you were prescribed the non-steroidal drug following the surgery you had. I do not consider any other ‘factor’ in paragraph 6 of the relevant SoPs applies.
Therefore, I have decided that inflammatory bowel disease is not ‘connected with the circumstances of [your] relevant service’, and accordingly the decision under review is confirmed and as such, compensation is not payable under s 23(1) of the Act.”
The hearing
A hearing was convened in Brisbane on 4 August 2017. The Applicant appeared in person and gave evidence. The Applicant was represented by Mr Matt Black of Counsel and the Respondent was represented by Mr Charles Clark of Counsel.
ISSUES
Mr Clark, on behalf of the Respondent, summarised the issues to be determined by the Tribunal – Exhibit 12 p. 8. The Tribunal accepts that this is an accurate summary of the matters in contention:
(a)Does the Applicant suffer from ulcerative colitis?;
(b)If yes, what is the relevant Statement of Principles (SoP) applicable to the Applicant’s claimed condition?;
(c)What is the date of the onset of the Applicant’s condition?;
(d)Does the Applicant satisfy the criteria identified in the SoP relevant to his claimed condition, such that his condition can be said to be connected to his military service in order for liability to be accepted?
CONSIDERATION
Introduction
The Military Rehabilitation and Compensation Act 2004 (the Act) provides for compensation and other benefits for current and former members of the ADF who suffer a service related injury or disease. The Act applies to ADF members who suffer an injury or disease on or after 1 July 2004. Accordingly, the relevant provisions in the Act apply to the Applicant.
The Act provides for three types of military service. The relevant service in this matter is peacetime service.
It is not contested that the Applicant following his enlistment was a permanent forces member in the ADF who engaged in peacetime service – Exhibit 12 p. 8 para 2.
With one difference, the SoP regime under the Veterans’ Entitlements Act 1986 applies to claims under the Act- ss 339, 341.
Ulcerative colitis
The Respondent accepts that the medical evidence supports a finding that the Applicant suffers from ulcerative colitis – Exhibit 12 p. 8 para 1.
Relevant Statement of Principles
It is also not contested by the parties that the relevant SoP applicable for determining liability under the Act is SoP 20 of 2012 – Inflammatory Bowel Disease – Exhibit 12 p. 9 para 3, Exhibit 13 p. 1 paras 3 and 4.
IBD is defined by cl 3(b) of the SoP to include ulcerative colitis.
Clause 6 of the SoP enumerates the factors, one of which must exist, before it can be said, on the balance of probabilities, IBD is connected with the circumstances of a person’s relevant service. Subclause 6(d) is accepted by both parties as the relevant factor in this matter: Exhibit 12 p. 10 para 7, Exhibit 13 para 4.
Subclause 6(d) provides:
“(d) being treated with a drug or a drug from a class of drugs in the specified list, for at least the seven days before the clinical onset of inflammatory bowel disease..”
The term “a drug or a drug from a class of drugs in the specified list” is defined in cl 9 to include:
“(b) non-steroidal anti-inflammatory drugs”.
The term “relevant service” is also defined by cl 9 to mean, inter alia, peacetime service under the Act.
Clinical onset of IBD
As Mr Black contends (Exhibit 13 para 8), the term “clinical onset” is not defined in either the Act or SoP 20 of 2012. There is, however, an extensive body of Federal Court jurisprudence on what this term means: Repatriation Commission v Gosewinckel (1999) 59 ALD 690, Repatriation Commission v Cornelius (2002) 35 AAR 345 and Lees v Repatriation Commission [2002] FCAFC 398; 125 FCR 331. However, for present purposes reference can be made to the Full Federal Court decision of
Kaluza v Repatriation Commission[2011] FCAFC 97 where McKerracher, Perram and Robertson JJ observed (at [50]) that the primary judge noted that there was clinical onset of a disease either:
·when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
Their Honours later provided the following guidance (at [66]):
“The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of a disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court, in adopting the approach of Branson J at first instance in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion…’”
(emphasis in the original)
Mr Black submits (Exhibit 13 para 11) that the Applicant first became aware of the relevant symptoms of IBD in late August 2012, and refers the Tribunal to the Gastroscopy Report of Dr Lee of 27 June 2013 (Exhibit 1 T11 p.35), the 12 August 2013 letter of
Dr Lee (Exhibit 1 T12 p. 36) and the report of Dr Glanville Thynne of 12 July 2016 – Exhibit 3 pp. 2, 7.
Mr Clark, however, submits that the contemporaneous medical evidence fails to document the Applicant suffering from the symptoms of IBD before 15 March 2013 – Exhibit 12 p. 10 para 13.
There is a degree of imprecision and contradiction in the Applicant’s statements. In the Injury or disease details sheet which was completed by the Applicant when he first lodged his claim, he answered to the Question, “When did you first notice signs or symptoms of the injury or disease”, “28/09/2012” – Exhibit 1 T36 p. 114. Moreover, in the “Members Statement” dated 12 November 2014, the Applicant said: “I developed symptoms in late September 2012, however did not present myself to a medical facility until 2013..” – Exhibit 1 T37 p. 116.
As Mr Clark highlights (Exhibit 12 p. 10 para 13), in the period April 2012 until March 2013, the Applicant was the recipient of ongoing medical treatment and attention. The extensive history of this treatment is partly set out earlier in this decision. However, the first mention of any bowel issues does not appear until 15 March 2013.
Of particular note there is no mention of the Applicant’s bowel problems in the reports of Ms Ann Wong, Dietitian/Nutritionist of 29 January 2013 and 19 March 2013 – Exhibit 1 T8-9 pp. 31-32. If the Applicant was experiencing the severe symptoms of IBD this would, in the normal course, have been an important matter for Ms Wong to be have been aware of when making dietary recommendations. The absence of any mention of this condition in her reports suggests that she was unaware of the condition.
The report of Dr Thynne does not materially assist the Applicant as Dr Thynne did not examine him until 12 July 2016, and makes his clinical assessment about the onset of IBD from the information provided by the Applicant. As Dr Thynne stated – Exhibit 3 p. 7:
“Your client, Mr Luke Morris, advised me that he started experiencing loose bowel actions up to five times per day late August 2012.”
As Dr Thynne was not called to give evidence, and hence was not subject to cross-examination, it is not possible to say whether that diagnosis would have been maintained.
In any event, as Mr Clark submits, it is not critical to this matter whether the Tribunal determines that the clinical onset of IBD was late August 2012, 15 March 2013 or
27 June 2013. Based on the evidence before the Tribunal the better view would be that clinical onset was 15 March 2013 when the Applicant first sought medical intervention. However, for the purposes of this determination, the Tribunal will apply a beneficial approach, and proceed on the basis of Mr Black’s submission, that the date of clinical onset was late August 2012.
Was the Applicant being treated with non-steroidal anti-inflammatory drugs?
The Applicant contends that after his initial prescription for Narposyn SR 1000, he regularly purchased over-the-counter medications to deal with his pain and inflammation. In particular, the Applicant asserts that the regularly purchased and used Panadol Osteo and Ibuprofen.
Annexed to Exhibit 13 is a Chronology prepared by Mr Black will lists various extracts from physiotherapist reports and related medical and bank reports, which suggest, it is contended, that the Applicant was suffering from ongoing pain and discomfort, particularly with physical exercise, in the year following his 2012 operation.
The Applicant also gave oral evidence at the hearing. He repeated his claims made in the various written statements outlined above that he regularly purchased over-the-counter medications at supermarkets to deal with ongoing pain and discomfort issues, and that most purchases were cash transactions. He also testified that he did not regard the over-the-counter products as medications, as he was so habituated to ingesting them.
As was previously noted, the Applicant’s case ultimately rests on the Tribunal accepting that he was regularly ingesting non-steroidal anti-inflammatory drugs after he concluded his initial prescription of Narposyn SR 1000 until the onset of IBD, whether the clinical onset be late August 2012 or 15 March 2013. The Applicant concedes that there is no written evidence that supports his case, however he invites the Tribunal to accept that this occurred from the fact that the medical records disclose he was in constant pain and discomfort and that there is no reason to disbelieve his version of events.
Mr Clark, conversely, contends (Exhibit 12 pp. 10-11 para 14) that the available contemporaneous evidence fails to support a finding that the Applicant was taking non-steroidal anti-inflammatory medication for seven continuous days prior to the date of clinical onset, irrespective of which of the dates outlined above is chosen.
Having considered all of the written evidence and listened to and observed the Applicant give evidence, the Tribunal concludes that, on the balance, the submissions of Mr Clark are to be preferred.
The contemporaneous medical evidence discloses no basis for concluding that the Applicant was either suffering from IBD or taking non-steroidal anti-inflammatory medication, other than Narposyn, during 2012, including seven continuous days prior to either the end of August or September 2012.
First, in the Outpatient Clinical Record of 14 May 2012 Dr Hampson noted “intermittent pain. No analgesia” – Exhibit 2 p. 182. Indeed, the first specific mention in the ADF medical records of the Applicant taking anti-inflammatory non-steroidal medicine is a report of Dr Norgrove of 22 May 2014 where he noted – Exhibit 2 p. 339:
“discontinue ibuprofen given colitis and medication regime”.
Mr Clark asked the Applicant during cross-examination if he told Dr Hampson on
14 May 2012 he was taking no analgesia. The Applicant’s response was, to the effect, that he could not say why Dr Hampson made that note.
Second, there is a further Outpatient Clinical Record of 21 June 2012, when the Applicant presented suffering from flu like symptoms. The treating Doctor noted that the Applicant was taking Paracetamol and recommended OTC (over the counter) medication – Exhibit 2 p. 180. Again, there is no mention of the Applicant taking any other medication.
Third, the Applicant’s submissions are predicated on the fact that after the 2012 operation he was in pain and discomforted and required the regular ingestion of over the counter anti-inflammatory medicine. Yet the medical report of 3 August 2012 notes: “running
1.8 km – little pain – gentle yoga” – Exhibit 2 p. 323. The next report of 9 August 2012 was also positive: “continues to go well” – p. 323.Fourth, when the Applicant was examined by Samantha Bidstrup, Rehabilitation Consultant on 31 August 2012 she also reported no ongoing pain and discomfort issues, and, further, reported he had no difficulties with “any” tasks. She noted – Exhibit 2 p. 237:
“He has resumed most pre-injury duties minus some lifting tasks. Nil issues reported. He reported no difficulties with any tasks, even more physical components of work”.
Fifth, Dr Weinrauch examined the Applicant in late September 2012. In his report dated
28 September 2012 he noted that his left hip “is near perfect” and his right “is progressing very well”. He then noted “his hip is almost completely pain-free to Quadrant testing” – Exhibit 1 T6 p. 29. Mr Clark specifically asked the Applicant if what Dr Weinrauch had reported was the exact opposite to what the Applicant was telling the Tribunal. The Applicant answered in the affirmative.
Sixth, when the Applicant had a consultation with a Dietitian on 8 October 2012, medications the Applicant were taking were noted as “Nil” – Exhibit 1 T7 p. 30. Mr Clark asked the Applicant if this reflected the account he was giving to the Tribunal, and the Applicant replied in the negative.
Seventh, when Mr Clark asked the Applicant why the various medical reports noted that the Applicant was going well and failed to note that he was in pain and discomfort and taking over-the-counter anti-inflammatory medicine, he replied that he didn’t tell the Doctors because of the stigma. The Applicant’s account is unconvincing. There is absolutely no indication in the voluminous medical material before the Tribunal that the Applicant was anything but resolute in obtaining full medical intervention when it was required. There is no suggestion in any of the documents that he was slow to seek help or was shy in disclosing any medical issue he was suffering from. Moreover, if the stigma related to him being perceived as “trying to get out of duties”, then this is inconsistent with the fact that the Applicant was at various times on restricted duties due to his hip condition.
Eighth, it was put to the Applicant during cross-examination that he was entitled as an ADF member to free medical treatment and pharmacy goods, including Ibuprofen.
Mr Clark tendered a document which lists the free medicine provided to the Applicant during his ADF service. It was admitted into evidence as Exhibit 10 and comprises five pages. There is no record of the Applicant having accessed any non-steroidal anti-inflammatory drugs from ADF Pharmacies in the six months after his April 2012 operation.
When the Applicant was presented with this evidence his response was that ADF Pharmacies only provided generic brand medicine which was not as good as the brand medicine. So instead of obtaining free generic medicine he purchased brand over-the-counter medicine at grocery stores.
Having regard to the very extensive use of various ADF Pharmacy products by the Applicant during his ADF service, his explanation was unconvincing. Additionally, Exhibit 10 discloses that the Applicant was provided both generic and brand medicines. In fact, the majority of the medicine provided was brand medicine.
Ninth, when one compares the rather meagre medical evidence about the over-the-counter medicine the Applicant was ingesting and compares it with the over-the-counter medication the Applicant accessed from ADF Pharmacies, there is a direct correlation.
Importantly, on 22 May 2014 Dr Norgrove recommended that the Applicant cease taking Ibuprofen. A perusal of Exhibit 10 discloses that the Applicant obtained a packet of Value Choice Ibuprofen (200mg 24 tablets) from the Duntroon Clinic Pharmacy on
19 May 2014.
Exhibit 10 also discloses that the Applicant obtained Ibuprofen from the Amberley Health Centre Pharmacy on 4 April 2011 and 30 November 2011, but there is no record of the Applicant obtaining Ibuprofen between November 2011 and May 2014.
Similarly on 21 June 2012 the treating Doctor noted that the Applicant was taking Paracetamol. Again Exhibit 10 discloses that on 21 June 2012 the Applicant obtained a packet of Value Choice Paracetamol tablets (500mg 24) from the Amberley Health Centre Pharmacy.
Exhibit 10 also discloses that the Applicant obtained Panadol Osteo SR-TAB 665 mg on
6 December 2010 and 10 February 2016, but on no other occasion between those dates.
These records suggest that Exhibit 10 is an accurate and comprehensive record of the use of over-the-counter medicine by the Applicant during his ADF service.
The Tribunal was presented with a dossier of medical reports and records prepared during the Applicant’s ADF service. It was admitted as Exhibit 2. It comprises 394 pages. It is an exhaustive history of the very detailed medical interventions that occurred during the Applicant’s peacetime service. It contains numerous accounts of various doctors’ examination of the Applicant and contains records of drugs that were prescribed. However, the documents that comprise Exhibit 2 contain almost no mention of the Applicant either being prescribed or taking non-steroidal anti-inflammatory medicine in the 2012 – 2013 period. Mr Clark submitted that if the Applicant was indeed taking such medication on the regular basis he describes that there would have been some mention of this in the documentation. Mr Clark submitted that it defies belief that the records are bereft of any such record. The Tribunal agrees with Mr Clark’s submission.
Finally, the Applicant’s initial Members Statement of 12 November 2014 contains no reference to the ingestion of over-the-counter anti-inflammatory medicine. Rather, the Applicant simply and correctly asserts that he “was prescribed non-steroidal anti-inflammatory medication”. That, of course, is correct and the records disclose that Narposyn SR 1000 was indeed prescribed but only for a limited time, and the Applicant was not ingesting it for seven continuous days before the clinical onset of IBD in late August 2012, let alone any of the later possible dates for clinical onset.
Conclusion
It is not contested that the Applicant suffers from IBD and that this disease has had a devastating impact on his professional life and also significantly impacted on his private life.
It is also not contested that the Applicant served Australia commendably whilst enlisted and had an honourable military service.
The only issue, however, for the Tribunal to determine is whether the Applicant was using non-steroidal anti-inflammatory drugs for at least seven days before the clinical onset of IBD.
There is no evidence, apart from the Applicant’s statements and testimony, that he was using non-steroidal anti-inflammatory drugs, apart from the initial prescription of Narposyn SR 1000, in the period April 2012 until June 2013.
It is immaterial, in these circumstances, whether the clinical onset of IBD is determined to be late August 2012, 15 March 2013 or 27 June 2013.
Consequently, the Applicant has not satisfied the requirements of SoP 20 of 2012 such that it is not possible to say that, on the balance of probabilities, his IBD is connected with the circumstances of his peacetime service with the ADF such that liability can be accepted pursuant to the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 102 (one hundred and two) paragraphs are a true
copy of the reasons
for the decision herein of Senior Member J Sosso..............................[Sgd].......................................
Associate
Dated: 6 October 2017
Date of hearing: 4 August 2017 Counsel for the Applicant: Mr Matt Black Solicitors for the Applicant: Mr Brian Briggs
Slater & Gordon SolicitorsCounsel for the Respondent: Mr Charles Clark Solicitors for the Respondent: Dr Megan Brooks
Ms Rachel Blake
Moray & Agnew Lawyers
0
2
0