Norman Davie and Comcare
[2014] AATA 1
[2014] AATA 1
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3484
Re
Norman Davie
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 16 January 2014 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
COMPENSATION – Commonwealth employee – whether medications prescribed for compensable back injury caused sensorineural hearing loss and tinnitus – relevance of Statement of Principles in claims under Safety Rehabilitation and Compensation Act 1988 – comparative evidentiary value of various research studies and reports of general application and specifically focused expert medical evidence – burden and standard of proof – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 6A, 14
Statement of Principles concerning Sensorineural Hearing Loss No 6 of 2011
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
Holbrook and Australian Postal Commission (1993) 5 ALN N46
Ladic and Capital Territory Health Commission (1982) 5 ALN N60
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Kirby and Collector of Customs (1989) 20 ALD 369
Field v Australian Postal Corporation [2003] AATA 1036
Robertson v Comcare [2002] AATA 1259
Roe v Comcare [2003] AATA 126
Re Elliott and Comcare (2001) 64 ALD 423
Re Winter and Commonwealth of Australia (1989) 18 ALD 264
REASONS FOR DECISION
The Hon R J Groom AO (Deputy President)
16 January 2014
INTRODUCTION
Mr Davie was an employee of the then Repatriation Department, now known as the Department of Veterans’ Affairs, from 1975 until 1991. He then became a Tasmanian State Service employee when the Repatriation General Hospital in Hobart was transferred to the Tasmanian Government. Mr Davie continued in a managerial role in the State Department of Health and Human Services until he retired in April 2009.
In 1975 Mr Davie, then a Commonwealth employee, successfully claimed compensation for a work-related back injury “… causing lumbar disc degeneration at L5 level and adjustment reaction with mixed emotional features …”
To relieve the pain caused by his compensable back injury Mr Davie was prescribed various medications by his general practitioners. The cost of the medications was paid for as part of his entitlement to compensation following his 1975 claim.
It is not in dispute in these proceedings that Mr Davie suffers binaural high tone sensorineural hearing loss. On 14 December 2011 Mr Davie made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for “sensorineural deafness”. It is alleged that this deafness is caused by, or materially contributed to by, the medications prescribed for the back injury.
On 14 May 2012 the respondent denied liability for sensorineural hearing loss (bilateral) as well as for a further condition of tinnitus (bilateral). In a reviewable decision dated 23 July 2012 (T12) the respondent affirmed the determination of 14 May 2012.
The applicant has now applied to this Tribunal for a review of the decision of 23 July 2012.
It is common ground between the parties that each of the medical conditions which Mr Davie suffers is a “disease” for the purposes of the Act. It is also agreed by the parties that because the onset of the diseases occurred some years ago the following former definition of “disease” in section 4 of the then Act applies in these proceedings:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.
THE ISSUES
The principal issues to be determined by this Tribunal are:
(a)Did the various medications taken by Mr Davie for his compensable back injury contribute in a material degree to the diseases of sensorineural deafness and tinnitus from which he now suffers?
(b)If so, then is the respondent liable to pay to the applicant compensation for these diseases pursuant to section 14 of the Act?
DID THE MEDICATIONS CONTRIBUTE IN A MATERIAL DEGREE TO THE DISEASES SUFFERED BY THE APPLICANT?
Mr Davie stated in his statutory declaration of 10 December 2012 (A4) that:
“The amount and type of medication I have been continually taken over the past 20 years or so for my back condition (chronic pain) has been as directed by my treating doctors Dr T Craven and Dr G Pitt.
The medications include Paracetamol, Pandeine Forte, Paracetamol Forte, Osteo-Panadol, Mersyndol, Mersyndol Forte, Nurofen, Mobic, Vioxx, Celebrax, Feldene, Somac, Valium and Temazepam.
In a determination by a Comcare delegate in January 2003 in relation to my back condition a score of 4 was determined by the delegate in relation to Non Economic loss of Pain. “Pain occurring most of the time, restrictions of activity, resistant to treatment”.
I have taken Paracetamol as directed by my treating doctors as and when required, (see attachments). The necessary dosage being between 6 to 8 per day.
In June 2009 when examined by Dr A Sheehan I advised him of my Panadol usage of between 6 to 8 per day.
All the prescribed medications have been taken in accordance with the treating doctors medical requirements.
Comcare has approved and paid for the above medications”.
In this case there is an absence of direct expert medical evidence in support of Mr Davie’s claim that his deafness and tinnitus were caused by or contributed to in a material degree by taking the medications prescribed by his general medical practitioners to ease the pain caused by his back injury.
In contrast, the respondent’s case is supported by a medical specialist who provided written reports and gave oral evidence at the hearing. Mr David Matison, a Consultant Ear Nose and Throat Surgeon with more than 40 years specialist experience, said that in his opinion it was not “probable” that the drugs Mr Davie has been taking for his back injury had caused or contributed to his hearing problems. Mr Matison did not rule out that there was perhaps a “possibility” that the medications may have been partly responsible for Mr Davie’s medical conditions.
Mr Skinner, an RSL advocate, who appeared for Mr Davie, did not call the applicant to give oral evidence but relied entirely on a number of documents in evidence before the Tribunal. They included the following:
(1)Statutory declarations of Mr Davie dated 10 December 2012, 22 March 2013 and 10 April 2013.
(2)Letters from Dr Craven of the Lenah Valley Medical Centre dated 18 November 1996, 19 April 1999, 8 September 1999 and 30 March 2009.
(3)A report prepared for the Repatriation Medical Authority (RMA) entitled “Investigation into Sensorineural Hearing Loss” for consideration at the RMA’s December 2010 meeting.
(4)A document providing information about the members of the RMA and the Specialist Medical Review Council.
(5)Statement of Principles concerning “Sensorineural Hearing Loss” No 6 of 2011 (“SOP”).
(6)A clinical research study report on “Analgesic Use and the Risk of Hearing Loss in Men” published in the American Journal of Medicine Volume 123, No 3, March 2010.
(7)A paper prepared by the ‘League for the Hard of Hearing’ entitled “Ototoxic Medications - Drugs that can cause hearing loss and tinnitus”.
It is apparent that no medical specialist or general practitioner has advised Mr Davie that his hearing loss and tinnitus were probably caused, or contributed to in a material degree, by the medications he was prescribed and has taken over many years. It would appear that Mr Davie has somehow uncovered the reports and other written material suggesting a link between the medications he has been taking and his hearing loss and tinnitus. His compensation claim is reliant on that written material.
The applicant places particular emphasis on the SOP concerning sensorinueral hearing loss and the medical report prepared for the RMA’s December 2010 meeting. The “SOP” system was originally created for the purpose of determining claims by war veterans and others under the Veterans’ Entitlements Act 1986. Each SOP sets out factors which must, as a minimum, exist before it can be said that a “reasonable hypothesis” has been raised on the material linking service to the veteran’s medical condition. Fact finding and the application of the relevant standard of proof (which varies according to the nature of the service rendered by the veteran) come at a later point in the “Deledio” process of analysis (see Repatriation Commission v Deledio (1998) 49 ALD 193). The SOP system has no legislated purpose in claims under the Safety Rehabilitation and Compensation Act. The relevant SOP is of limited persuasive value here except to suggest the possibility that there can be a link between the use of certain medications and hearing loss.
The report prepared for the RMA was written as part of a routine review of relevant SOP’s. The report refers to the research study published in the American Journal of Medicine (A3). Mr Matison reviewed that study as well as other written information “collated by Mr Davie”. Mr Matison, in his report dated 22 March 2013 (R3), expressed concern that this study relied on self-reporting which he said “can be very inaccurate”. He also said the study:
“… does not involve controls so that a comparison can be made between the men studied and the equivalent cohort not taking regular analgesics”.
Mr Matison also said:
“The final paragraph of the summary of this paper states only that “regular use of analgesics specifically Aspirin NSAIDS and Acetaminophen (Paracetamol) might increase the risk of hearing loss particularly in younger individuals
This statement is equivalent to saying that the risk is possible rather than probable, thus rendering the study inconclusive”. (R3, page 2)
After reading the contents of this study the Tribunal agrees with Mr Matison’s opinion that it is inconclusive and does not substantiate a probable link between the medications taken by Mr Davie and his hearing loss and tinnitus.
The paper from the “League for the Hard of Hearing” states that some commonly used medications “could potentially cause damage to your hearing” (Tribunal’s emphasis). It also indicated that “usually any hearing problems will only be caused by exceeding the recommended dosage of the medications”. Mr Davie said in his statutory declaration of 10 December 2012 (A4) that:
“All the prescribed medications have been taken in accordance with the treating doctors medical requirements”.
It is noted the paper comments that some of the drugs listed including “non-steroidal anti-inflammatory drugs” “can cause hearing loss”. It is stated that “toxic effects are dose related and are almost always reversible once medications are discontinued”.
It is further noted that for the condition of tinnitus the paper lists “caffeine” as a toxic substance (as well as “alcohol” and “nicotine”). There is no evidence before the Tribunal as to whether Mr Davie, at any time, has used those substances.
The Tribunal finds that the paper from the “League for the Hard of Hearing” does not assist it in establishing a probable link between the medications prescribed for Mr Davie and for his hearing loss and tinnitus.
The four letters signed by Dr Craven, a General Medical Practitioner at the West Hobart Surgery do no more than confirm that Mr Davie has taken “analgesics and anti-inflammatory medications “to help ease his back pain”. The letters suggest that the medications have not been constantly taken but are “used as and when required” (letter of 30 March 2009).
As mentioned Mr Matison was the only medical expert to give oral evidence at the hearing. In a written report of 7 May 2012 (T9) Mr Matison stated at page 3 of that report:
“Mr Davie has been aware of deafness since 2006, associated with a high pitched tinnitus, sometimes sleep disturbing.
Mr Davie states that he has not been exposed to excessive noise and has not used firearms, directly refuting the first paragraph in the Case Summary under the heading “New Claim”. He knows of no past ear disease or family history of deafness. There has been no vertigo or earache. His general health is impaired due to a lumbar back injury from lifting heavy objects at work in 1975 and consequent depression.
At present he is taking Mersyndol, Panadol and Mobic for pain. Due to a stomach upset from the Mobic he is also on Somac. He takes Valium, Temazepam and Cymbalta for depression”.
As far as causation is concerned Mr Matison stated at page 5:
“Nil known, probably advanced presbyacusis”.
He added that in his opinion Mr Davie’s hearing loss and tinnitus were unrelated to his employment with the Department of Veterans’ Affairs.
In his written report of 22 March 2013 (R3), after considering the various documents provided by Mr Davie, Mr Matison stated (at page 2):
“This further information provided by Mr Davie does not change my opinion that his hearing loss, on balance, is not caused by the medication he has been prescribed in relation to his back condition. However I do not rule out the possibility that the medication may have been at least partly responsible”.
Mr Matison also said in relation to the Statement of Principles concerning “Sensorineural Hearing Loss” No 6 of 2011:
“Given that Mr Davie is deaf and that he was taking analgesics more than twice a week for at least the two years before clinical onset of sensorineural hearing loss, in following the rules set out in the above paper, his deafness must be ascribed to his analgesics, namely in this case, Paracetamol. I presume this would apply to him if he was a member of the armed forces or a veteran”.
The Tribunal has already explained the limited purpose of the SOP system and that it has no legislated relevance to claims under the Safety Rehabilitation and Compensation Act.
In oral evidence Mr Matison acknowledged that some medications can be ototoxic “but at higher levels than Mr Davie was taking”. He confirmed his view that it was “highly unlikely” that the medications taken by Mr Davie had caused or contributed to his hearing loss.
The Tribunal found Mr Matison, an experienced Ear Nose and Throat Specialist, to be a persuasive expert witness and accepts his opinion that the medications taken by Mr Davie were not a “probable” cause of his hearing loss and tinnitus but were merely a “possible” causative factor.
CONCLUSION
In a case of this kind the Tribunal, in effect, “stands in the shoes” of the original administrative decision-maker. There is no formal onus or standard of proof unless the specific legislation so provides. In this application the relevant legislation is silent on the issue. The question of any onus of proof applying in Administrative Appeals Tribunal applications was discussed in Re Holbrook and Australian Postal Commission (1993) 5 ALN N46, where it was suggested as a matter of common sense “that he who asserts, or he who seeks a result, must prove.” That accorded with the view earlier expressed by Fox J in Ladic and Capital Territory Health Commission (1982) 5 ALN N60.
Bearing in mind the administrative nature of the Tribunal’s proceedings, facts relevant to a decision are to be established to the Tribunal’s “reasonable satisfaction” (See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J (as he then was) and also Re Kirby and Collector of Customs (1989) 20 ALD 369). In the absence of a legislated standard the Tribunal has consistently held that relevant facts are to be determined on the “balance of probabilities” (see, for example, Field v Australian Postal Corporation [2003] AATA 1036, Robertson v Comcare [2002] AATA 1259 and Roe v Comcare [2003] AATA 126).
The fundamental problem for the applicant in this case is the complete lack of any direct supporting evidence from a medical expert. The applicant relies on reasonably authoritive but quite inconclusive studies and reports of general application as well as the expressions of opinion contained in the SOP. Mr Skinner has acknowledged that SOPs “are not law in relation to claims under the Act” (see the “Statement of Agreed Facts” (R2)).
Had Mr Davie’s claim been supported by direct evidence from a medical expert who, after considering Mr Davie’s medical conditions and his long term use of prescribed medications, was able to express the opinion that there was a probable causative link between the taking of the medications and his hearing problems then his case may then have been more persuasive.
In contrast the respondent’s case is supported by the focused and specific expert evidence of Mr Matison. He interviewed Mr Davie and after considering the relevant history expressed the view that the cause of Mr Davie’s hearing loss was “probably advanced presbyacusis” (T7 page 5) or deafness that occurs as part of the ageing process. Although doubtful that the various prescribed medications were a causative factor he was prepared to acknowledge that it was “possible” that the long term use of the prescribed medication may have had some effect on Mr Davie’s hearing. Mr Matison put it no higher than that. It is noted that the RMA report itself highlighted the prevalence of hearing impairment in older people and the many factors which can contribute to hearing loss (see eg page 14 of that report). Mere possibilities are not sufficient to establish an entitlement to compensation under the Act.
After considering all of the material before it the Tribunal is not satisfied to the standard required that the various medications taken by Mr Davie for his compensable back injury contributed in a material degree to the sensorineural hearing loss and tinnitus from which he suffers.
IS THE RESPONDENT LIABLE TO PAY COMPENSATION TO THE APPLICANT PURSUANT TO SECTION 14 OF THE ACT?
As the Tribunal finds it is not satisfied to the standard required that there is a causative link between the long term use of the medications and Mr Davie’s hearing problems it follows that the respondent is not liable to pay compensation.
Had the Tribunal found that the necessary causative link was established a question would nevertheless remain as to whether the respondent would, in the particular circumstances of this case, be liable to pay compensation for the diseases suffered by Mr Davie.
This is because the alleged cause of Mr Davie’s hearing loss and tinnitus was not his work at the Repatriation Commission but medication prescribed by medical practitioners to ease the pain of the back injury he suffered at work.
Section 6A of the Act was enacted in 1994. It extends the meaning of “… arising out of or in the course of employment” in the definition of “injury”. However it applies to Defence personnel only and not to Commonwealth employees generally. The section therefore does not apply to Mr Davie. As was suggested in Re Elliott and Comcare (2001) 64 ALD 423 it is also possible that the provision is limited to an “injury” simpliciter and not to diseases. If the legislature has limited this extension to Defence personnel only it is certainly arguable that it was therefore not intended that other categories of Commonwealth employees should have the benefit of a generous interpretation of the meaning of “employment” in the definition of disease to the extent that it included the unintended consequences of medical treatment provided for a compensable disease. In Re Winter and Commonwealth of Australia (1989) 18 ALD 264 the Tribunal did decide that employment included all things incidental to the employee’s work including the aggravation of a condition by surgery. That decision, of course, predated the enactment of section 6A.
It is however not necessary to proceed to determine that issue as the applicant was not successful in establishing to the Tribunal’s satisfaction the abovementioned essential causative link.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President) [Sgd]
Administrative Assistant
Dated: 16 January 2014
Date(s) of hearing 18 November 2013 Advocate for the Applicant Mr D Skinner, Returned Services League Counsel for the Respondent Ms C Currie Solicitors for the Respondent Ms N Richards, Australian Government Solicitor
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