Nickolopoulos and Military Rehabilitation and Compensation Commission (Compensation)

[2024] AATA 3545

Nickolopoulos and Military Rehabilitation and Compensation Commission (Compensation) [2024] AATA 3545 (4 October 2024)

Division:VETERANS' APPEALS DIVISION

File Number(s):       2021/5358

Re:Konstantinos  Nickolopoulos

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:4 October 2024

Place:Adelaide

The Tribunal affirms the Reviewable Decision.

...................[sgnd]............................

Senior Member George

CATCHWORDS

VETERANS – Australian Army – loss of vision – whether applicant suffers an eye ailment – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975

Military Rehabilitation and Compensation Act 2004

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

REASONS FOR DECISION

Senior Member George

4 October 2024

1. Mr Nickolopoulos is aged 63 and was a solider, on and off, over the course of three decades. He was variously enlisted in, and discharged from: the Citizen Military Forces, the Australian Regular Army Supplement, the Army Reserve, the Army Active Reserve, and the Standby Reserve. He did not see active service.

2. Mr Nickolopoulos has made several claims for compensation, and other benefits, arising from his Army service. Appropriately, the parties resolved a claim for compensation for an aggravation of complex post-traumatic stress disorder on the first day of the hearing. Subsequently, very few of the exhibits are relevant when determining the remaining threshold issue of whether Mr Nickolopoulos suffered an eye ailment.

3. The Tribunal affirms the Reviewable Decision for the following reasons.

   MATERIAL FACTS

4. Mr Nickolopoulos gave evidence that he did basic field training at Puckapunyal, which he described as ‘bushwhacking’, and again later at Kapooka. Mr Nickolopoulos was trained in the use of the rifle and different types of grenades and flares. He was exposed to fires and used fire hoses and extinguishers. He says that he was exposed to the sun, insects, dust, asbestos, rabbit poison, and cooking gas. Notably, Mr Nickolopoulos also underwent CS gas, or ‘tear gas’, training.

5. Mr Nickolopoulos gave an account of his CS gas training. It was conducted in Puckapunyal in the 1970s. Mr Nickolopoulos was a member of the Citizen Military Forces. The trainees were made to do a two-kilometre run wearing jungle green uniform. Mr Nickolopoulos remembered that the weather was hot, and it was dusty. The trainees were issued respirators, but they did not wear them whilst running.

6. Following the run, Mr Nickolopoulos and his fellow trainees entered a building. Mr Nickolopoulos saw a sergeant put material on a burner. The trainees put their respirators on when “gas, gas, gas” was called. The trainees had their respirators removed and were exposed to gas. When this happened to Mr Nickolopoulos, tears ran down his eyes and he felt a burning sensation.

7. Following their exposure, the trainees were placed outside in the fresh air. There was water present, but the trainees were not allowed to wash themselves. This was presumably because CS gas reacts with moisture. Mr Nickolopoulos’ evidence was that several trainees vomited, including himself. Some trainees collapsed. They were itchy and had rashes on their hands. The Tribunal is reasonably satisfied that the trainees were exposed to a relatively high dosage of CS gas, although no safety concerns seem to have been formally raised at the time.

8. Mr Nickolopoulos undertook multiple comprehensive medical examinations throughout the course of his service. There are no military medical records that reflect physical damage to Mr Nickolopoulos’ eyes from CS gas or from any other exposure. Despite this evidence, Mr Nickolopoulos does not accept that his eyes were functioning normally following his exposure to CS gas.

9. Civilian prison records in 2009 indicate that Mr Nickolopoulos had lost his glasses after being arrested. His eyes were tested without glasses. The left eye was 12/12, the right eye was 9/9 and both eyes were 9/9.

10. In late 2019 and early 2020, Mr Nickolopoulos consulted his general practitioner about eye concerns. He was referred to an ophthalmologist, Dr Sophie Leikin.

11. In a report dated 5 October 2023, Dr Leikin did not observe abnormalities to Mr Nickolopoulos’ eyes that could explain his visual acuity. Dr Leikin considered Mr Nickolopoulos’ exposure to CS gas but was unable to provide him with a diagnosis.

12. Today, Mr Nickolopoulos is legally blind. He attributes this to his exposure to the CS gas and other substances during his service, the sun, and his post-traumatic stress disorder. He has also attributed his poor eyesight to taking medication.

13. During the hearing, Mr Nickolopoulos called psychiatrist Professor Ian Bush in support of his case. Professor Bush gave evidence that it is very unlikely that emotional trauma could cause damage to the optic nerve.

14. The Respondent called neurologist Dr Noel Saines. Dr Saines was unable to relate the circumstances of Mr Nickolopoulos’ service to a central neurological condition that would cause his visual loss. Dr Saines noted that Mr Nickolopoulos did not present with visual disturbance until late and that there was a progression of visual loss.

15. Dr Saines was not aware of any information that gave rise to brain visual pathway damage, and that any such damage would be expected to be most severe initially and non-progressive later. Dr Saines was candid that he did not have a specific expertise in toxins, but that he had seen many different toxins affect the brain. His opinion is that maximum damage is caused early on, and toxins do not show a progressive course of damage many years later. Dr Saines also noted that Mr Nickolopoulos’ medications would not cause progressive blindness.

16. The Respondent also called ophthalmologist Dr Michael Steiner. In his report of 10 June 2024, Dr Saines had agreed with Dr Steiner that Mr Nickolopoulos’ poor eyesight was not due to any ocular condition. Both doctors agreed that Mr Nickolopoulos’ poor eyesight may be a result of injury to the higher centres of the brain. In his report of 9 May 2024, Dr Steiner found no sign of any damage to Mr Nickolopoulos’ eyes. On the contrary, Mr Nickolopoulos’ eyes appeared to be normal.

17. Under cross examination, Dr Steiner was unshaken in his evidence that Mr Nickolopoulos was legally blind but not totally blind. Dr Steiner gave evidence that some medications such as quinine can cause blindness and that tobacco, alcohol, and steroids can also cause problems with the eye. Dr Steiner did not believe that post-traumatic stress disorder would cause organic changes to the eye. Materially, Dr Steiner’s evidence was that the only significant factor in Mr Nickolopoulos’ military history was his exposure to CS gas.

    CONSIDERATION

18. Although CS gas exposure may have long-term effects on a person, the evidence is clear that these effects would be known relatively quickly following exposure. Despite Mr Nickolopoulos’ evidence, the medical evidence does not record him suffering issues with his vision until decades after his CS gas exposure.

19. Materially, there is no objective medical evidence before the Tribunal of any abnormalities of Mr Nickolopoulos’ eyes, or physical damage to them. Although he is now legally blind, the balance of the medical evidence before the Tribunal is overwhelmingly that Mr Nickolopoulos’ poor eyesight is not due to any ocular condition.

20. Accordingly, the Tribunal is reasonably satisfied that Mr Nickolopoulos does not suffer an eye ailment.

21. As the threshold issue has not been met, it follows that there was no contribution to an eye aliment by events occurring during Mr Nickolopoulos’ service. No compensation is therefore payable under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 or the Military Rehabilitation and Compensation Act 2004.

    DECSION

22. The Tribunal affirms the Reviewable Decision.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

............................[Sgnd]...................................

Feng Jiang, Associate

Date of Decision:	4 October 2024
Dates of Hearing:	16, 17, 19 July 2024, 27 August 2024
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Ms Lindsay Cooper Australian Government Solicitor