Parker and Military Rehabilitation and Compensatin Commission
[2006] AATA 440
•23 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 440
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/313, Q2005/572
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD PARKER Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member B J McCabe Date23 May 2006
PlaceBrisbane
Decision The decisions under review are set aside. The Tribunal decides in substitution that:
(a) subject to other provisions of the Act, the respondent is liable under s 14 to pay compensation for the applicant’s right eye injury by reason of the operation of s 6A of the Safety Rehabilitation and Compensation Act 1988; and
(b) the respondent is not liable to pay compensation in respect of a permanent impairment pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988.
..........[Sgd]............
BJ McCabe
SENIOR MEMBER
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/313, Q2005/572
GENERAL ADMINISTRATIVE DIVISION )
Re RICHARD PARKER Applicant And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
CORRIGENDUM [2006] AATA 440
Tribunal
Senior Member B J McCabe
Date
5 June 2006
PlaceBrisbane
The Tribunal, acting pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, amends it decision dated 23 May 2006 to read as follows:
The Tribunal sets aside the decision in Q2004/313. In substitution the Tribunal decides that, subject to other provisions of the Act, the respondent is liable under s 14 to pay compensation for the applicant’s right eye injury by reason of the operation of s 6A of the Safety Rehabilitation and Compensation Act 1988;
The decision in Q2005/572 that the respondent is not liable to pay compensation in respect of a permanent impairment pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 is affirmed.
SENIOR MEMBER
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – applicant underwent laser shunting procedure – applicant suffered complications – blindness in right eye – applicant suffered an injury under s 6A SRC Act – condition was an unintended consequence of procedure – permanent impairment – consequence of procedure would have occurred as a natural progression of the applicant’s condition – applicant not entitled to be paid compensation in respect of permanent impairment
Safety Compensation and Rehabilitation Act 1988 s 4, 6A, 14, 24
Comcare v Houghton (2003) 73 ALD 676
Eaton and Comcare (2002) 67 ALD 182
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Shoobert and Military Rehabilitation and Compensation Commission [2004] AATA 1087
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
23 May 2006 Senior Member B J McCabe introduction
1.Mr Richard Parker is a soldier with an eye condition. He claims the condition arose out of his employment, or was an unintended consequence of medical treatment paid for by the Commonwealth which is therefore deemed to arise out of employment. He has sought compensation under the Safety Compensation and Rehabilitation Act 1988 (the SRCA). The respondent says it is not liable because the condition did not arise out the applicant’s work. It also denies the condition is an unintended consequence of the medical treatment.
2.There are two reviewable decisions. The first decision, dated 8 March 2004, affirms a determination denying liability for a right eye injury where the claim was a deemed injury pursuant to s 6A of the SRCA. The second decision is dated 16 August 2005. That decision affirms a determination denying liability for an injury that arose out of the applicant’s employment. The decision also declined compensation for permanent impairment. Mr Parker has asked the Tribunal to reconsider both decisions.
the material before the tribunal
3.The Tribunal was provided with the material required under s 37 of the Administrative Appeals Tribunal Act 1975. A number of medical reports and other documents were also admitted into evidence. The following medical experts were also called to give evidence:
·Dr Talbot;
·Dr Ambler;
·Dr Delaney;
·Dr Dunlop.
4.Mr King-Scott of counsel represented the applicant at the hearing. Mr Rangiah of counsel represented the respondent.
the factual background and the medical evidence
5.The applicant was born on 10 May 1965. He enlisted in the Army in 1984. He has enjoyed a distinguished career and now holds the rank of Lieutenant Colonel. To their credit, Mr Parker and the Army have managed to make adjustments so that the applicant’s condition has not brought a premature to his career.
6.The applicant first noticed problems with the vision in his right eye during a physical training session while based in Townsville in January 2001. The physical training session was part of his work. It was the first intensive exercise he had undertaken for a period as he had only recently returned to Townsville from a posting in Victoria. He says he experienced a partial loss of vision in the right eye on that occasion. The problem did not last long: he said his vision returned to normal after a few hours. It happened again about a week later while he was attending a lecture at work. The problem lasted a few hours before his vision returned to normal. Thereafter the events occurred with increasing frequency, and for longer periods on each occasion.
7.Mr Parker said he visited the Regimental Aid Post after the second event. The medical records confirm the visit occurred on 30 January 2001. The applicant was subsequently referred to an opthalmologist, Dr Talbot, who saw the applicant on 13 February 2001. Dr Talbot diagnosed a right central retinal vein occlusion: document T6. He added:
“Clinically on balance he has the non-ischaemic form so final prognosis is optimistic, although the presence of occasional cotton wool spots is a concern.”
8.In his testimony before the Tribunal, Dr Talbot explained that a central retinal vein occlusion was like a small stroke. The blood flow to retinal cells was interrupted. The blood was prevented from draining away.
9.Dr Talbot referred the applicant to Dr Ambler, an ophthalmic surgeon in Brisbane. Dr Ambler recommended that the applicant undergo a chorioretinal laser shunting procedure. The procedure involves the use of a laser to create a bypass around the blocked vein to improve the blood supply to the retina and permit the blood trapped by the occlusion to drain away. The applicant said he recalled being told he was a good candidate for the procedure given the nature of the condition, his age and physical health. In his report to Dr Talbot of 3 April 2001, Dr Ambler noted the procedure was only successful in 30-40% of cases and there was risk of significant complications. In his testimony at the hearing, he explained he was hopeful the procedure would save what vision the applicant had left, or perhaps even result in an improvement. He said there was no alternative if the eye was to be saved. Dr Talbot took a similar view. In his evidence before the Tribunal he referred to the success rate of 30-40% but went on to say that most of the people who were not assisted by the procedure would not in any event be hurt by it. He suggested the prospect of serious complications was as low as 5-10%.
10.Mr Parker said there was no discussion of percentage chances of success when he discussed the procedure with Dr Ambler. He said in his evidence that if he had been aware the chances of success were so low he would not have agreed to go ahead with the procedure. As it happened, he agreed to go ahead with the procedure after consulting his wife.
11.Dr Ambler performed the procedure on 2 March 2001. He conducted a review on 23 March 2001 and observed a major vitreous haemorrhage. (A major vitreous haemorrhage must be distinguished from the minor haemorrhage inevitably caused by the shunt procedure.) He reported fibrovascular proliferation (growth of new blood vessels) at the shunt sites. He suggested this was a product of a normal reaction of the body: it responds to difficulties in circulation by creating new blood vessels. The blood vessels fan out from a central site. They are encased in a fibrous or scar tissue. The scar tissue can pull the retina from the wall of the eye. The blood vessels are apt to haemorrhage – which is what occurred here, he said. He proceeded with a vitrectomy (removal of the jelly inside the eyeball) and laser photocoagulation to remove the new blood vessels. It did not work. The applicant continued to experience intraocular bleeding with hyphema and vitreous haemorrhage. There was also some traction detachment: document T12 at p 43.
12.Mr Rangiah asked Dr Ambler about the cause of the fibrovascular proliferation. He explained it was caused by a combination of factors: the ischaemia and the shunting procedure. He said the shunt appeared to provide a focus for the growth of the fibrovascular material.
13.In any event, the right eye was effectively dead. The applicant has lost all vision and does not even perceive light in that eye. The eyeball itself has shrunken and may need to be removed in due course.
14.The chorioretinal laser shunting procedure is no longer widely performed. Dr Ambler said he stopped performing the procedure because of the high rate of complications. He has sent two other patients to Perth for the procedure where it is still performed, but they also experienced complications.
15.The other doctors who were asked to comment on the procedure and the applicant’s condition have never performed the procedure themselves. Even so, their comments must be taken into account. I note Drs Delaney and Dunlop opined that the vitreous haemorrhage was caused by the shunting procedure. Dr Delaney said the haemorrhage (and the vitrectomy and photocoagulation required to treat it) led to the fibrovascular proliferation and the tractional retinal elevation: exhibit two, page 55. (Dr Talbot appeared to agree in the course of his evidence that a haemorrhage could lead to fibrovascular proliferation.) Dr Dunlop agreed the haemorrhage increased the chances of a vitreous retinal traction: exhibit two, page 50. All of the doctors agreed that fibrovascular proliferation and blindness was a risk even if the procedure was not performed.
16.I prefer the evidence of Dr Ambler to the extent of any inconsistency. Dr Ambler has experience in dealing with this procedure. He has performed it on a number of occasions, and has referred his own patients to other surgeons for the procedure to be performed. I think he is in the best position to know of and describe its effects. It follows I accept the vitreous haemorrhage and the tractional detachment that followed were a consequence of vascular proliferation. The vascular proliferation was a product of the ischaemia, although the shunting procedure may also have played a role in at least providing a focus for the growth.
the legislation
17.The respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment: s 14, SRCA. In this case, the claim is in respect of impairment, which is defined in s 4 as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.” There is no question the applicant was (and remains) an employee. There is a question as to whether he has suffered an injury within the meaning of s 4. That expression is defined to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
18.Section 4 also offers a definition of disease. It means:
(a) any aliment 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.
19.An ailment is defined in s 4 to include “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
20.I note s 6(1)(b)(i) says an injury will be taken to have arisen out of employment if the injury was sustained while the employee was at his place of work for work purposes. Section 6A extends the reach of the SRCA still further by creating a special rule for employees who are members of a class which includes members of the defence force. If that employee receives medical treatment paid for by the Commonwealth and suffers an injury as an unintended consequence of that treatment, he or she is deemed to have been injured in the course of his or her employment. The expression unintended consequence is not defined in the Act.
did the applicant suffer an injury within the meaning of s 4?
21.It is necessary to determine firstly whether the applicant’s condition should be characterised as an injury simplicter or an injury that is a disease.
22.Dr Talbot described the occlusion as being similar to a stroke. That explanation was consistent with the evidence of Dr Ambler. The occlusion is an interruption of the circulation of blood in the eye. That led in due course to the emergence of symptoms as the damage to the retina occurred. The doctors suggested there was no way of knowing precisely when the blockage occurred. It could have occurred some time before the symptoms emerged for the first time in January 2001. Could the applicant be said to have sustained an injury simpliciter (as opposed to being affected a by a disease) when the symptoms emerged?
23.The High Court grappled with this issue in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. The case was brought under similarly worded workers’ compensation legislation in the Australian Capital Territory. The applicant suffered a stroke while she was at work. The stroke was ultimately caused by a heart condition that led to the release of clots into the bloodstream. The embolism or clot led to a lesion in the brain, which resulted in the stroke. The heart condition had been present for some time but the incident in the workplace was the first time it had seriously manifested itself. Gleeson CJ and Kirby J described an injury as “a sudden or identifiable physiological change”: at 298. Their Honours went on (at 299) to point out:
…the mere fact that a sudden physiological change is in some way connected with an underlying "disease" process does not, of itself, prevent the classification of such a change as an "injury" within the primary statutory provisions that apply to such a case.
24.After referring to the High Court’s earlier decision in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and other authorities, Gleeson CJ and Kirby J explained (at 300):
All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker's employment. If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
25.In this case, Dr Talbot agreed the applicant’s condition was the product of a sudden physiological change – an ischaemic change that was similar to a stroke in the brain. While the onset of symptoms (eg, the affect on the applicant’s vision) was attributable to an underlying disease, the applicant argued the manifestation of the condition at work amounted to an injury simpliciter. Dr Talbot went on to suggest the condition might have been brought on by work-related factors, including exertion in the heat and stress. Dr Ambler would not offer an opinion as to the cause of the underlying condition.
26.I think Dr Talbot was speculating about the possible causes of the ischaemia. As I have already indicated, I prefer the evidence of Dr Ambler to the extent of any inconsistency, and I note Dr Ambler refrained from expressing any opinion as to the cause of the occlusion. I am therefore unable to be satisfied the circumstances of the applicant’s work contributed to the development of the occlusion. But the fact remains the condition first manifested itself while the applicant was at his workplace. If that manifestation was properly characterised as an injury simpliciter, that would be enough to fall within s 6(1)(b)(i).
27.I do not think the onset of the symptoms at work can be considered an injury simpliciter. The sudden physiological change Dr Talbot was referring to was the occlusion. No one is able to say when that occurred. The symptoms were a consequence of that physiological change, rather than physiological changes in and of themselves.
28.Is the applicant’s condition an injury because it is a disease? The respondent says it is not. Subject to what follows, I agree. While the condition is undoubtedly a disease in the sense that it is an “ailment, disorder, defect or morbid condition”, I am not satisfied it “was contributed to in a material degree by the employee’s employment by the Commonwealth…”. I have already explained my reasons for that conclusion: while Dr Talbot was prepared to speculate about the causes of the ischaemia, Dr Ambler was not prepared to ascribe a cause. Given my preference for Dr Ambler’s evidence in light of his superior expertise in this particular area, I am unable to accept the applicant was suffering from a disease – and hence an injury – within the meaning of ss 4 and 14. It follows the applicant is unable to succeed unless he is able to take advantage of s 6A.
the operation of s 6A
29.Section 6A does not require that the disease being treated at the Commonwealth’s expense be work-related: Comcare v Houghton (2003) 73 ALD 676 at 680-681 per Lindgren J.
30.In Houghton, the applicant suffered from an ear condition that was unrelated to his employment. He underwent a surgical procedure at the Commonwealth’s expense. He subsequently experienced a loss of hearing which clearly amounted to an impairment for the purposes of s 14. His Honour cautioned (at 683) that one must distinguish between the impairment (deafness in Houghton, or blindness in this case) and the injury. He went on to point out s 14 “calls for identification of the injury which caused [the impairment], and s 6A(2) calls for identification of the medical treatment of which that same injury was a consequence”.
31.The impairment or incapacity in this case is the blindness in the applicant’s right eye. There is evidence it probably would have occurred in any event if the applicant had not undergone the treatment. But whether or not it would have occurred in due course without the procedure, that is not what happened. The fact is the blindness occurred as a result of damage to the retina that was evident following the surgical procedure. I think that damage - specifically, the tractional detachment or tractional retinal elevation– is the injury for the purposes of s 6A. Dr Ambler said that injury occurred as a result of the fibrovascular proliferation, which also caused the vitreous haemorrhage. I have already noted Dr Ambler says fibrovascular proliferation is part of the body’s natural reaction to ischaemia but he told Mr Rangiah during his evidence that the shunting procedure was also part of the explanation for what occurred in that the shunt sites provided a focus for the development of the fibrous material that ultimately did the damage.
32.Dr Ambler clearly did not intend there to be fibrovascular proliferation leading to tractional detachment or tractional retinal elevation. But as Lindgren J suggested in Houghton (at 684), the doctor’s intentions were not determinative of the outcome. His Honour pointed out a doctor may not intend to produce an outcome which was nonetheless an “unavoidable direct consequence” of a procedure. His Honour said an unavoidable direct consequence could not be an unintended consequence within the meaning of s 6A.
33.The Tribunal has previously expressed the view that one must look to the intentions or objectives of the doctor and ask whether the injury in question was a likely consequence of that treatment: see Eaton and Comcare (2002) 67 ALD 182 at 194; see also Shoobert and Military Rehabilitation and Compensation Commission [2004] AATA 1087 at [30]. I agree that is the correct approach.
34.The respondent conceded in its submissions that Dr Ambler did not aim for or design the fibrovascular proliferation that focused on the shunt site. He certainly did not intend there to be damage to the retina. But was any of this a likely result of the procedure?
35.It may be that fibrovascular proliferation was an unavoidable consequence of the procedure. Dr Ambler in particular says it is a natural reaction to ischaemic change. But whether or not fibrovascular proliferation could be characterised as an injury for the purposes of s 6A, it is not the injury in question here. Dr Ambler clearly did not think it was likely that the retinal damage following the fibrovascular proliferation would occur. While he agreed the success rate of the procedure was not high, he said he believed the damage Mr Parker suffered occurred in a much smaller number of cases. All of the medical experts agreed damage to the retina was a known complication, but the consensus appeared to be that it occurred in only 5-10% of cases.
36.The word “likely” is used in a number of statutes, and its use in those contexts has been considered in a number of cases. Mr Rangiah referred me to some of them in his outline of argument. I think one should treat those cases with caution because I am not interpreting the word “likely” in the context of a statute. Suffice to say I am satisfied a risk that something might occur in 5-10% of cases does not mean the event is likely to occur.
37.I accept there is a causal connection between the procedure and the injury I have identified. I acknowledge the applicant may have gone blind even if he did not have the procedure. I do not think that matters. The requirements of s 6A are satisfied.
permanent impairment
38.Once liability has been accepted under s 14, it remains to be seen what (if any) compensation must be paid. The applicant has asked for compensation in respect of permanent impairment pursuant to s 24. It is clear the applicant has experienced a permanent impairment, ie blindness in the right eye.
39.The respondent is required to assess the amount of the impairment according to Comcare’s Guide to the Assessment of the Degree of Permanent Impairment: s 28(4). Mr Rangiah referred in his written submissions to the discussion of the concept of aggravation (at 6). The discussion suggested that where the impairment would have resulted from the natural progression of the condition that was unrelated to employment, the assessment of the degree of permanent impairment should be nil. Mr Rangiah’s argument amounts to this: if the blindness was bound to occur in any case, the failure of the surgery attempted in a last-ditch attempt to stave off those consequences should not make the Commonwealth liable for blindness.
40.I think Mr Rangiah is right. Here, the evidence from Dr Ambler in particular suggests the only hope of saving the applicant’s eye-sight was the surgical procedure. The procedure did not work. Complications associated with the procedure resulted in damage to the retina that led to blindness. That explains why the applicant went blind when he did. But given the applicant was likely to go blind in any case at some point in the future because of his underlying condition, the applicant has not suffered any permanent impairment as a result of the surgery. The same can be said of a claim that the applicant has suffered a permanent impairment in the form of a facial disfigurement. He was likely to suffer from such a condition in any event.
conclusion
41.The decisions under review are set aside. I decide in substitution that:
(a) subject to other provisions of the Act, the respondent is liable under s 14 to pay compensation for the applicant’s right eye injury by reason of the operation of s 6A of the Safety Rehabilitation and Compensation Act 1988; and
(b) the respondent is not liable to pay compensation in respect of a permanent impairment pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe
Signed: .....................................................................................
Associate Adam RyanDates of Hearing 1 & 2 March 2006
Date of Decision 23 May 2006
The applicant was represented by Mr King-Scott of counsel.The respondent was represented by Mr Rangiah of counsel.
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