Parker and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 456

Parker and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 456 (11 April 2017)

Division:GENERAL DIVISION

File Numbers:         2015/4626; 2015/4627; 2015/4628; 2016/0456

Re:John Parker

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:11 April 2017

Place:Brisbane

All of the decisions under review are affirmed.

.............................[sgd].......................................

Senior Member T. Tavoularis

COMPENSATION – claim for rehabilitation and compensation of injuries – deviated nasal septum – sleep apnoea – irritable bowel syndrome – hearing loss associated with bilateral tinnitus and otitis media – Commonwealth Employees’ Compensation Act 1930 applicable – whether Respondent suffered prejudice – yes, significant lapse of time – in any event injuries not related to military service – all decisions under review affirmed.

Legislation

Commonwealth Employees’ Compensation Act 1930 (Cth), s 16
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s 53

Safety Rehabilitation and Compensation Act 1988 (Cth), ss 14, 124

Cases

Blunden and Comcare [2003] AATA 957
Gates and Military Rehabilitation and Compensation Commission [2015] AATA 1018
Luck and Comcare [1998] AATA 125
Rose and Military Rehabilitation and Compensation Commission [2015] AATA 583
Siemsen and Comcare [1999] AATA 871
Telstra Corporation v Roycroft [1997] FCA 774

Tierney and Reserve Bank of Australia (1988) 15 ALD 534; [1988] AATA 507

REASONS FOR DECISION

Senior Member T. Tavoularis

11 April 2017

INTRODUCTION

1. It is accepted that Mr John Parker (the “Applicant”) served in the Royal Australian Air Force (“RAAF”) from 13 May 1964 until his discharge on 9 May 1970 (the “eligible service”).[1] He is thus eligible for coverage under section 124 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the “SRC Act”).

   [1] I note he then served as a reservist with the RAAF from 1970 to 1975.

2. There are four reviewable decisions before the Tribunal. 

3. The Applicant initially applied for review of three claims, for rehabilitation and compensation, which related to the following conditions:

   a.    deviated nasal septum;

   b.    sleep apnoea; and

   c.    irritable bowel syndrome.

   4.The fourth application claim was brought and added later. It related to rehabilitation and compensation for the Applicant’s hearing loss associated with “bilateral tinnitus” and “otitis media”.

   HISTORY OF CLAIMS

   5.Each of these conditions were the subject of claims that have been determined and reconsidered by the Respondent as follows:

   Application 2015/4626 (Deviated Nasal Septum)

   6.The Applicant lodged a claim for rehabilitation and compensation for the deviated nasal septum condition on 2 August 2013 and again on 3 July 2014.

   7.On 21 August 2014, by way of Determination the Respondent denied liability to pay compensation under the SRC Act for this condition.

8.On 19 November 2014 the Applicant wrote to the Department requesting reconsideration of the determinations made for his claims relating to his deviated nasal septum, sleep apnoea and irritable bowel syndrome conditions.

9.On 23 July 2015, the Respondent issued a Reconsideration of decision (“the reviewable decision”) affirming its Determination of no liability for this condition.

10.On 7 September 2015, the Applicant lodged an Application for Review with this Tribunal relating to that reviewable decision.

Application 2015/4627 (Sleep Apnoea)

11.The Applicant lodged a claim for rehabilitation and compensation for sleep apnoea on
2 August 2013 and again on 25 June 2014.

12.On 20 August 2014, by way of Determination the Respondent denied liability to pay compensation under the SRC Act for this condition.

13.On 23 July 2015, the Respondent issued a Reconsideration of decision (“the reviewable decision”) affirming its Determination of no liability for this condition.

14.On 7 September 2015, the Applicant lodged an Application for Review with this Tribunal relating to that reviewable decision.

Application 2015/4628 (Irritable Bowel Syndrome “IBS”)

15.The Applicant lodged a claim for rehabilitation and compensation for IBS on 2 August 2013 and again on 3 July 2014.

16.On 21 August 2014, by way of Determination the Respondent denied liability to pay compensation under the SRC Act for this condition.

1. On 27 July 2015, the Respondent issued a Reconsideration (“the reviewable decision”) affirming its Determination of no liability for this condition.

18.On 7 September 2015, the Applicant lodged an Application for Review with this Tribunal relating to that reviewable decision.

Application 2016/0456 (Hearing Loss associated with Otitis media and Bilateral Tinnitus)

19.On 16 February 2015, the Applicant lodged a further two claims for rehabilitation and compensation for “bilateral chronic otitis media – tympanic membrane” and “chronic bilateral tinnitus”.

20.On 7 May 2015, by way of Determination the Respondent denied liability to pay compensation under the SRC Act for both “bilateral otitis media/tympanic membrane” and “chronic bilateral tinnitus”.

21.On 18 November 2015, the Respondent issued a Reconsideration (“the reviewable decision”) affirming its Determination of no liability for both “bilateral otitis media of the tympanic membrane” and “chronic bilateral tinnitus”.

22.On 28 January 2016, the Applicant lodged an Application for Review with this Tribunal relating to that reviewable decision.

23.On 2 February 2016, the Applicant applied for an Extension of Time to lodge the above application as it was out of time. The extension of time was granted by the Tribunal on 16 February 2016 with the consent of the Respondent.

ISSUES

1. The issues are best identified with reference to the claimed conditions. 

1. With reference to the deviated nasal septum, sleep apnoea and IBS conditions, the issues may be stated in the form of questions as follows:

   a)has the Respondent been prejudiced as a result of the Applicant’s failure to lodge his claim for compensation within the time prescribed by section 16 of the Commonwealth Employees’ Compensation Act 1930 (the “1930 Act”)?

   b)if the answer to this question is “no”, the next question is: does the Applicant suffer from the claimed condition?

   c)if the answer to the immediately preceding question is “yes”, the next question is: were each of the Applicant’s claimed conditions due to the nature of his military service such that liability ought be accepted by the Respondent to pay compensation to the Applicant pursuant to the SRC Act?[2]

   26.With reference to the hearing loss associated with otitis media and bilateral tinnitus, there are fewer issues because the Applicant reported these symptoms to his employer during his actual period of service with the RAAF.[3] Based on the reporting of these ear conditions contemporaneous with his military employment, there can be no issue as to the exclusion of these ear conditions as being out of time due to any lack of compliance with the notice requirements of the 1930 Act.   

2. There are only two issues for the ear condition claims which can also be stated in the form of questions as follows:

   a)does the Applicant suffer from the claimed condition(s)?

   b)if the answer to the immediately preceding question is “yes”, is this condition(s) due to the Applicant’s military service such that liability ought be accepted to pay compensation under the SRC Act?[4]

   [2] Namely, section 14 having regard to the transitional provisions of section 124 of the SRC Act.

   [3] Strictly speaking, it was only for the otitis media for which the Applicant was diagnosed with and treated for during his Military Service.

   [4] Namely, section 14 having regard to the transitional provisions of section 124 of the SRC Act.

3. If the Applicant can safely negotiate the issue relating to section 16 of the 1930 Act for the earlier three conditions, then the remaining questions involve whether the evidence sufficiently substantiates (1) a diagnosis of the claimed condition, and (2) a connection between the claimed condition(s) and his former military employment.

   FIRST CONSIDERATION: HAS THE RESPONDENT SUFFERED PREJUDICE FROM THE DELAY?

   29.This question involves a determination of whether the Respondent has suffered prejudice as a result of the Applicant’s failure to give notice of the accident giving rise to the injury as soon as reasonably practicable consistent with the requirements of section 16 of the 1930 Act.

   30.Subsection 16(1) of the 1930 Act stipulates the following:

   a.    that notice of an accident be given “as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the  Commonwealth”; and

   b.    that such a claim for compensation must be made “within six months from the occurrence of the accident”.

   31.Subsection 16(2) of the 1930 Act sets out the requirements of the necessary notice. Those requirements include noting the name and address of the person; and, in ordinary language, the cause of the injury and the date at which the accident happened.

   32.Subsection 16(3) of the 1930 Act stipulates the requirements for valid service of that notice.

   33.It is contended on behalf of the Applicant that although not in the conventional form, timely notice was nevertheless served on the Respondent because the Applicant sought medical treatment for the claimed conditions during his military service which is recorded in his medical records. The difficulty with that contention is that the only ailments revealed in his medical record upon discharge were some ear infections and abdominal complaints about diarrhoea, but little or nothing else.[5]

   [5] See Exhibit 5: T documents for 2016/0456, T26, p 29.

34.The Applicant’s medical records talk about some history of treatment and presentation of symptoms but there is no reference to any incidents during his service which may have resulted in or caused any of the conditions he now propounds. Mere entry or entries in an Applicant’s military history records do not constitute notice for the purpose of section 16 of the 1930 Act.[6] There must be a reference, at the very least, to a statement about the cause of the injury and the date which the accident happened, to properly meet the requirements of notice for this section.

[6] See Blunden and Comcare [2003] AATA 957 per Member Kenny at [65].

35.In Siemsen and Comcare [1999] AATA 871, the Tribunal held that an entry in service medical records could constitute notice of an injury under the 1930 Act.[7]  But that case is distinguishable from those presently under consideration because in Siemsen the Tribunal found that the records disclosed the information required by subsections 16(2) and (3) of the 1930 Act. That is clearly not the situation with the Applicant’s records in this case because there was no reference to any ‘accident’ or ‘cause of injury’, nor is there any evidence of adequate service of the notice.

[7] See Siemsen and Comcare [1999] AATA 871 per Senior Member Dwyer at [39] and [40].

36.As I understood the evidence (and submissions), there is no dispute that any other form of notice was provided until these various claims for rehabilitation and compensation were lodged. I am therefore satisfied that the Applicant did not provide sufficient notice to the Respondent about the claimed conditions of (1) deviated nasal septum, (2) sleep apnoea, and (3) irritable bowel syndrome for the purpose of section 16 of the 1930 Act.

37.This finding, however, is not immediately fatal to the Applicant.  There is still scope for the consideration of a given claim under subsection 16(1) of the 1930 Act if it can be demonstrated that the Applicant falls within what is known as the proviso to subsection 16(1) of the 1930 Act (“the proviso”). The proviso stipulates that absence of timely notice does not prejudice the Respondent if the failure to make a claim within the relevant period was due to mistake, absence from Australia or other reasonable cause.

38.The question now becomes whether this Applicant falls within the proviso. Two issues arise from that question.  Firstly, can the Applicant demonstrate that his delay in providing notice was occasioned by a “mistake” or “other reasonable cause”, and secondly, can he point to a lack of prejudice as a result of that delay?

39.It was contended on behalf of the Applicant that any deficiency in the provision and nature of the notice could be remedied by reference to the decision of Senior Member Hotop in Luck and Comcare [1998] AATA 125. In that case, the proviso to
subsection 16(1) was successfully activated by the Applicant. In my view, the factual matrix of that case can be starkly distinguished from the present facts in a number of particulars. In Luck, the proviso was successfully activated because the Tribunal found that the Applicant’s failure to serve notice and make a claim within the required time was occasioned by reasonable cause. That reasonable cause derived from circumstances where: [8]

·     When the applicant suffered the injury, the costs of his medical and hospital treatment were fully met by the Commonwealth and his wages continued to be paid by the Commonwealth (while he was recovering), as a condition of his service with the RAAF.

·     Accordingly, there was no need for the applicant to claim compensation in respect of that injury or serve notice of the accidents.

·     The applicant had reasonable cause to believe the RAAF was on notice of his accidents because the RAAF arranged medical treatment for his injury when those accidents occurred.

·     Additionally, the applicant’s commanding officer was aware of the incident and as a result he allocated ‘light duties’ to the applicant.

[8] See Luck and Comcare [1998] AATA 125 at [58] for finding of application of proviso ‘reasonable cause’.

40.As mentioned earlier the first ‘notice’ the Applicant in this case has provided to the Respondent for these three claimed conditions was some four decades after the end of his services with the RAAF. This is well beyond the stipulated six months required by section 16 of the 1930 Act. I cannot locate any or sufficient evidence pointing to an assertion that the RAAF could conceivably be deemed to be on notice about any of these three claimed conditions, within that time frame. They did not pay for any of the Applicant’s treatments (aside from those associated with his ear condition and diarrhoea). There is no evidence the Applicant suffered from or was treated for these three claimed conditions during or immediately after his period of military service.

41.The Applicant’s further evidence at the hearing was clearly to the effect that he was, at the relevant time, ignorant of his rights to make a claim. Counsel for the Respondent pointed out that under the Compensation (Commonwealth Government Employees) Act 1971 (the “1971 Act”),[9] ignorance of one’s rights to make a claim was regarded as tantamount to a reasonable excuse for the purposes of activating the operation of the proviso.  However, this Applicant clearly falls within the provisions of the 1930 Act which does not afford an Applicant any opportunity to engage the proviso on the basis that ignorance of a claimant’s rights constituted any type of reasonable excuse for failing to bring a claim in time.

[9] See subsection 53(4)(c) of the 1971 Act.

42.Contrastingly, the Applicant may have been in a position to obtain relief for a delay arising ‘from ignorance’ if these claims fell under either the 1971 Act or the SRC Act (1988). These two later pieces of legislation contemplate that prejudice from a delay could be waived on the basis that an applicant was ignorant of his rights to make a claim. However, the circumstances of these claims squarely fall under the provisions of the 1930 Act because: (1) this Applicant served in the RAAF between 1964 and 1970 (before the 1971 Act commenced); and (2) therefore the ‘accidents’ giving rise to the claimed ‘injury(s)’ must have occurred during this time.

43.The concept of a mistake for the purposes of the proviso requires a decision maker to distinguish between ignorance and mistake with only the latter being of relevance under the 1930 Act. The distinction between these two concepts was explained by Justice North  in Telstra Corporation v Roycroft [1997] FCA 774 with reference to previous authorities:

“1.     A person who is not aware of a right to claim compensation at all is not mistaken about the right, but ignorant of it: Roles v Pascall & Sons [1911] 1 KB 982.

2.A person who knows that he has a right to claim compensation for one sort of injury, but no idea whether or not he has a right to claim for another, is not mistaken as to his right to claim for the second type of injury, but is ignorant of it:  Commonwealth of Australia v Connors (1989) 86 ALR 247.

3.A person who knows he has a right to claim compensation for one sort of injury, and wrongly believes that he has no right to claim for another type of injury, is mistaken as to the right to claim for the second type of injury: Stevenson v Metropolitan Meat Industry Commission (1936) 37 SR (NSW) 109.

4.It follows from these authorities that a person who knows he has a right to claim compensation for the particular injury and knows that the time for making the claim is limited, but wrongly believes he has more time to make a claim than the Act allows, is mistaken as to the time for making the claim.”

44.Later in the decision, His Honour spoke about the thin line between mistake and ignorance:

“If a person acts on the basis of knowledge of the Act and that knowledge is wrong, or the facts upon which the person relies are wrong, then the person has made a mistake.  If a person acts without any knowledge about the Act or an aspect of it, and consequently does not know whether or not it applies, then the person is ignorant. The distinction between ignorance and mistake requires very careful attention to the evidence.”

45.I therefore find, as per the Applicant’s own admission, that he has “acted” (ie. brought these three claims) without any knowledge of how the legislation regulated such applications. As a consequence, it is clear the Applicant has proceeded on the basis of ignorance, which, as outlined by Justice North in Roycroft, is a distinguishable concept to that of mistake. Only mistake is of relevance to the activation of the proviso in 1930 Act.

46.Additionally, with respect to the second question relating to the proviso: can the Applicant point to a lack of prejudice as a result of the delay?  The seminal authority on the issue of prejudice is Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534.[10] That claim was brought pursuant to section 53(1) of the 1971 Act which is not otherwise materially different to section 16 of the 1930 Act. The Tribunal succinctly outlined circumstances which starkly demonstrate the genuine unfairness and difficulty, perhaps even impossibility, confronting a Respondent compelled to properly investigate and address any claim which is brought significantly after a claimant’s term of service or the emergence of symptomatology resulting in the claimed condition:

“Section 53 is clearly intended to protect the Commonwealth and its instrumentalities from being placed in a situation where they are unable to disprove an employee’s assertion of an injury alleged to have occurred on some specific occasion in the course of the employee’s work or of a disease contracted because of some brief and transient situation. Some such provision is clearly needed to prevent abuse of the Act.” [11]

[10] Also cited as Tierney and Reserve Bank of Australia [1988] AATA 507.

[11] Tierney and Reserve Bank of Australia [1988] AATA 507 at [6].

47.This Applicant left the RAAF in 1970.[12] The first occasion any claim is purportedly made is in 2013, some 43 years after the end of his service. It was contended on behalf of the Respondent that virtually anything health-wise can happen to a person over a 43 year period and that this significant gulf in time makes it nearly impossible to properly investigate any claim relating to symptomatology that this Applicant says occurred during his period with the RAAF from 1964 to 1970.  I agree with that contention.  I also agree with the Respondent’s further contention that in those circumstances, the prejudice is indeed obvious and cannot be remedied in any meaningful way.

[12] I note he served as a reservist for the RAAF from 1970 to 1975.

48.I repeat the comments of Member Kenny in Blunden and Comcare which have direct application to the present case:  

“The Respondent was not given the opportunity to investigate the matter in a timely manner and I am satisfied that it would be prejudiced if it were required to do so more than 32 [in this case 43] years after the incidents of causation are alleged to have occurred.” [13]

[13] [2003] AATA 957 at [75].

49.For present purposes, I am similarly satisfied of the prejudice that would be occasioned to the Respondent.  

50.To complete my consideration of the proviso in section 16 of the 1930 Act, I find that:

a.there was no ‘mistake’ relating to the bringing of these claims; 

b.no issue relating to any ‘absence from Australia’ by this Applicant arises in this case;

c.there is no ‘other reasonable cause’ for the Applicant’s delay in giving notice or bringing a claim for his asserted conditions. There must be a nexus between the “reasonable cause” and the delay.[14] Also, there must be evidence of something more than mere ignorance before reasonable cause will arise.[15] Such evidence is not apparent in this case.

d.the Applicant derives no relief from the proviso for his ignorance of his right to claim for these three conditions.

[14] See Blunden and Comcare [2003] AATA 957 at [80] and also: Re Willis and Australian Telecommunications Commission (1989) 19 ALD 665. See also Re Harbutt and Department of Defence (1988) 51 ALD 159.

[15] See Blunden and Comcare [2003] AATA 957 at [80] and also: Commonwealth of Australia v Connors (1989) 86 ALR 247. See also Re Harbutt and Department of Defence (1988) 51 ALD 159.

51.This Tribunal has recently held that applicants have not fallen within the proviso in factual circumstances very similar or parallel to the present facts.  In Rose and Military Rehabilitation and Compensation Commission [2015] AATA 583, the Applicant’s evidence regarding the delay in lodgement of a claim was based on:

“… a belief that I could do nothing about bringing my claim once I had left military employment… I only learn [sic] about being able to claim and the provision of lump sum payments in 2011 via my ex National Service friends who went to Vietnam and received those benefits around 2010.”[16]

[16] [2015] AATA 583 at [66].

The Tribunal was not satisfied that the failure to notify the Respondent Commission of any condition fell within the proviso. Accordingly, the Tribunal found that the Respondent Commission was consequently denied the opportunity to obtain timely specialist medical evidence and was similarly denied the opportunity to determine the veracity of the subject claims in order to properly meet those claims.

52.In Gates and Military Rehabilitation and Compensation Commission [2015] AATA 1018, the Applicant sought to explain the delay in the provision of notice because of his ignorance of his legal right to pursue compensation. The Tribunal accepted the contention put on behalf of the Respondent Commission relating to (1) significant prejudice occasioned by the lost opportunity to undertake a contemporaneous factual investigation, and (2) to arrange for contemporaneous medical examinations. Senior Member Cotter said at paragraphs [44], [45] and [47]:

“[44] Given the length of time that has elapsed since the Incident, the complete lack of contemporaneous records and the inability to identify  any independent witnesses, there is no doubt the  [Respondent Commission]  has been prejudiced by the failure to provide timely notifications.

[45] I do not accept the submission on behalf of [the Applicant] that his ignorance of his legal rights resulted in his failure to comply with the Act’s notice requirements.   The clear operative factor was not ignorance, but rather, on [the Applicant’s] evidence, his literal following of instructions issued by Sergeant Simpson and then by Captain Wyatt.  As I have already concluded, I am not persuaded by that explanation and therefore, do not consider [the Applicant’s] actions to have been reasonable.  I therefore do not consider that the failure to comply with the notice provisions resulted from any other reasonable cause.

[47] It follows from what I have said that [the Applicant] failed to comply with the requisite notice provisions under the relevant legislation. Compensation is therefore not payable to him on that basis.”

53.I am therefore satisfied that the notice and claim requirements pursuant to section 16 of the 1930 Act have not been met by the Applicant. Consequently, the specific claims in relation to the conditions of: (1) deviated nasal septum, (2) sleep apnoea, and (3) irritable bowel syndrome, are out of time and are not to be considered by the Respondent.[17]

[17] Pursuant to section 16 of the 1930 Act: “The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served…”

54.On the basis of this finding, there is no requirement to further consider the conditions described as: (1) deviated nasal septum, (2) sleep apnoea, and (3) irritable bowel syndrome.  Be that as it may and out of an abundance of caution, some mention should be made of the medical evidence (if any) to support a finding that he suffered from any of these three conditions. 

SECOND CONSIDERATION: DOES THE APPLICANT SUFFER FROM THE CLAIMED CONDITIONS AND IF SO, IS IT RELATED TO HIS MILITARY SERVICE?

55.There is, to my mind, no other way to describe the medical evidence other than  to say it is either completely or severely lacking in terms of establishing any connection between what the Applicant says happened during his period of service with the RAAF and what the state of his health is now. The Applicant may genuinely hold a view that there may or must be a connection between the two but that is not sufficient to create liability under the applicable statutory scheme. Any reasonable analysis of the medical opinion, in my respectful view, only leads a decision maker to one conclusion.

Application 2015/4626 (Deviated Nasal Septum)

56.I agree with the Respondent’s contention that the circumstances of this condition are indeed clouded in all sorts of evidentiary problems for the Applicant.  There is no record of any injury of this type in his medical records other than a bare mention of someone noticing a deviation in his septum to the left.[18] In addition, I have significant misgivings about the Applicant’s account as to how he apparently suffered the injury to his nose. 

[18] See Exhibit 5: T doc’s for 2016/0456: T6, p 65.

57.Despite the absence of any safety expert’s report as to the veracity of how the Applicant may have suffered such an injury, the Applicant’s version simply does not square with how one might reasonably expect that type of injury to have occurred.  In a similar vein, the Applicant’s purported explanation of a failure to report the apparent injury lacks credibility. I have difficulty in accepting his assertion that he refused to report the incident and simply reached for a handkerchief to wipe away any bleeding and to get straight back to work so as not to be seen as a “malingerer”.  

58.The medical evidence similarly fails to support any finding that the Applicant suffered a deviated nasal septum as a result of his military service.[19] The report of Dr John  Elphinstone (Otolaryngologist, Head and Neck Surgeon, Senior Lecturer in Surgery, University of Queensland) dated 9 February 2012 submitted by the Applicant thought the Applicant had a “good looking nose”.  His examination findings can be stated thus:

[19] See Applicant’s Medical Examination Record upon discharge at Exhibit 5, T6, p 29.

“Examination findings:
Anterior Rhinoscopy:   good looking nose
Oral Cavity/Oropharynx:   grade 1 tonsils, grade 3 oral cavity;
……
Post Nasal Space:   clear
Base of tongue:  clear and palpably normal
Larynx – True Vocal Cords:  normal and mobile
-severe posterior laryngitis with mucosal redundancy
Provisional Diagnosis:
Reflux Laryngopharyngitis; at high risk for OSAS.” [20]

[20] T Docs for 2015/4626:  T10, pp 134 -135.

59.The medical imaging report (by Dr Holger Bourquain, Radiologist) of the Applicant’s facial bones and sinuses found “Normal pneumatisation of frontal sinuses, ethmoidal air cells and sphenoid sinuses”.  More tellingly Dr Bourquain opined that “No deviation of the nasal septum is noted.” [21] [my underlining]

[21] T Docs for 2015/4626: T15, p 143.

60.The apparent disarray in the medical evidence is perhaps brought into clearer focus by the report of Dr Matthew Broadhurst (Otorhinolaryngologist, Head and Neck Surgeon and Laryngeal Surgeon) dated 12 January 2015.[22]  He opined that “Rigid nasendoscopy showed a deviated septum to the right which was significant. There was also a very large left inferior turbinate.”   

[22] T Docs for 2015/4626: T17, p 147.

61.I am therefore of the view that the state of the medical evidence in relation to this condition is such that there can be no safe conclusions drawn as to the establishment of liability for this condition. Even if the Applicant were to be found to have suffered a deviated nasal septum, there is a complete dearth of contemporaneous medical or other evidence supporting the existence of a causal relationship with his former military employment. 

Application 2015/4627 (Sleep Apnoea)

62.The Respondent accepts that medical evidence supports the Applicant’s claim in terms of his suffering from sleep apnoea. I understand that the Applicant contends his sleep apnoea condition arose as a result of his claimed deviated nasal septum, the alleged failure to treat his deviated nasal septum and/or his exposure to fuel and other toxins during military employment.

63.I do not consider there is any compelling medical or other evidence to demonstrate any causal relationship between the sleep apnoea condition and his former military employment, including any of the additional factors concerning exposure to toxic substances. This contention is readily supported by Dr Broadhurst’s evidence at the hearing when he spoke of his finding that “On close inspection of the oral cavity with rigid telescope, there was significant oropharyngeal crowding.”    

64.In his oral evidence, Dr Broadhurst described this concept and how it is more than likely the major contributing factor to the Applicant’s sleep apnoea. Dr Broadhurst told the hearing that oropharyngeal crowding in this Applicant (as in most, if not all patients) was purely hereditary and congenital and should be regarded as nothing more than the naturally occurring constitution or construction of that area of one’s mouth or breathing apparatus. Any variation in severity or level of the crowding, said Dr Broadhurst, can in no way be attributable to any work-related factor or incident.  It is simply a representation of how we develop through time in that area of our physiology.  

65.It is therefore unlikely and improbable for this Applicant to establish any connection of his claimed deviated nasal septum condition as a consequence of his military service let alone establish that it contributes to his sleep apnoea now. The evidence of
Dr Broadhurst is, to my mind, particularly instructive because it forms the basis of a scientific and rational explanation of the causative features in respect of this Applicant’s oropharyngeal crowding.    

66.Turning to the Applicant’s contention of a failure (by his then military employer) to treat his claimed deviated nasal septum, I agree with the Respondent’s submission that the weight of the evidence, including the Applicant’s own written evidence, does not support any alleged failure to treat.  I also agree with the submission of the Respondent that this contention by the Applicant contradicts his own written evidence in which, by his own admission, he confirms not to have sought treatment or to have reported the injury to his nose at the relevant time in 1966 – 1967 so as not to be regarded as a “malingerer”.   

67.I therefore find there is insufficient evidence to support an acceptance of liability to pay compensation to the Applicant for his claimed sleep apnoea condition.

Application 2015/4628 (Irritable Bowel Syndrome “IBS”)

68.Again, the Respondent accepts that medical evidence supports this claim. I understand that the Applicant contends his IBS condition arose as a result of medication (namely prescription antibiotics) to treat his ear conditions, his exposure to stressors during the course of his former military employment and/or his exposure to fuel and other toxins during the course of his former military employment.

69.The gastroenterologist, Dr Mark Norrie, examined the Applicant and reviewed the medical evidence subsequent to the Applicant’s lodgement of his Applications for Review.  He provided reports respectively dated 3 December 2015 and 15 December 2015. He also gave evidence at the hearing. In his report of 3 December 2015, Dr Norrie confirmed a diagnosis of IBS for this Applicant.  He also confirmed this diagnosis during his oral evidence.  What he also confirmed in both his written report of 3 December 2015 and his oral evidence was his opinion that the Applicant’s IBS arose subsequent to the Applicant’s military employment.  

70.Dr Norrie conceded that the ingestion of antibiotics during the course of the Applicant’s military employment may have an association with a diarrhoeal like illness. He did not consider that any such illness would be expected to result in any adverse long term effect on bowel function or to otherwise culminate in persisting symptoms to date.

71.Dr Norrie confirmed that stress can be excluded as a causative factor of the claimed IBS condition. With reference to stress as a factor in the IBS, he notes in his report of
3 December 2015:

“… I feel that in Mr Parker’s case there is no such diagnosis of anxiety or post-traumatic stress disorder or a significant contributing event that would explain his symptoms to date.  Furthermore, by his own admission, he states that he manages stress well and that it does not impact on his daily life.”[23]

[23] Exhibit 8, Report of Dr Mark Norrie dated 3 December 2015, p 5, answer to Q 5a.

72.Conversely, Dr Norrie thought the Applicant’s “diabetic autonomic neuropathy now may be contributing to his diarrhoea, although this would not explain the long duration of his symptoms. This is not related to his military history.”[24]

[24] Ibid, p 3.

73.Although I accept the Applicant now suffers from IBS, I find that there is no compelling medical or other evidence supporting the existence of a causal relationship between the IBS condition and his former military employment including any of the additional factors concerning exposure to toxic substances (or oversubscription to antibiotics).

74.I therefore find that there is insufficient evidence to support an acceptance of liability to pay compensation to the Applicant for his claimed IBS condition.

Application 2016/0456 (Hearing Loss associated with Otitis media and Bilateral Tinnitus)

75.The Respondent accepts that medical evidence supports the Applicant’s claimed bilateral otitis media and tinnitus.

76.I understand that the Applicant contends his claimed ear conditions are causally related to his former military employment and that his tinnitus developed as a consequence of the alleged failure to receive appropriate medical treatment for his other ear problems (namely the otitis media and bullous myringitis) during his former employment. 

77.I agree with the contention from the Respondent that the weight of medical evidence, particularly the evidence of Dr Sharon Kelly, fails to support the Applicant’s claim. 
Dr Kelly examined the Applicant on 27 October 2015 and produced a report dated 9 November 2015.[25]   

[25] Exhibit 5, T Documents for 2016/0456: T50, Report of Dr Kelly, pp 320 – 328.

78.Consistent with the opinion of Dr Kelly, I find that the Applicant suffered from otitis media during his military service which did not settle with standard antibiotic treatment, but was resolved by a myringotomy (incision of the ear drum to drain pus from the middle ear). The Applicant asserts he has had episodes of tinnitus since his episode of otitis media in 1967.[26] I accept the Applicant suffered from these conditions during his period of employment with the RAAF but that those conditions can in no way be causally connected to that work.

[26] Ibid: T50, p 321.

79.In her report Dr Kelly made the following findings: [27]

[27] Ibid, T50, pp 320 – 328.

“CONCLUSION
It is my opinion that:

·    Mr Parker did suffer a complicated episode of otitis media during his service with the Australian Air Force affecting the left ear. This required surgical treatment and was infected for some time.

·    Otitis media is a common condition affecting up to 70 percent of children at some time before the age of six years and approximately five percent of teenagers and young adults. In this latter group it is most commonly triggered by a viral upper respiratory tract infection.  It is not a workplace related condition.

·    Mr Parker did suffer an episode of bullous myringitis affecting the right ear shortly before his discharge from the Air Force. This condition is believed to be viral in origin although bacteria have been isolated in some studies.  It is not workplace related.

The management of both conditions was appropriate both 50 years ago and in the present day. It is my opinion that the stated ear conditions did contribute to tinnitus and the hearing loss but they are not directly attributable to Mr Parker’s military service.  Young adults in any occupational or environmental circumstance can contract these conditions.
……..
Mr Parker’s tinnitus was caused by an illness that he suffered during his military employment but was not as a consequence of said employment…
…….
The treatment provided for the ear infection in 1967 improved the condition.  It is possible that without the treatment there may have been more substantial hearing loss.”[28]
 [my underlining]

[28] Ibid, pp 323, 326 & 327. 

80.The Applicant propounds a failure on the part of his then military employer to provide adequate treatment for his otitis condition. That contention, to my mind, goes nowhere because of the following factors. First, his medical records clearly establish that the Applicant received some measure of treatment for his otitis media and there was no evidence from the Applicant about any inadequacy of that treatment. Second, there is the compelling evidence of Dr Kelly that the treatment he received in 1967 actually improved the condition. Thirdly, there is an absence of medical evidence from the Applicant to support the existence of any causal relationship between his claimed ear conditions and of his former military employment. There was no assertion by the Applicant of other causes of his ear conditions, such as, for example, constant exposure to loud noise.

81.I therefore agree with the Respondent’s contention that there is insufficient evidence to support an acceptance of liability to pay compensation for the Applicant’s claimed ear conditions.

SUMMARY OF FINDINGS

82.I make the following findings in respect of each condition.

Application 2015/4626 (Deviated Nasal Septum)

1. In respect of the Applicant’s claim for compensation of a deviated nasal septum, I find that:

   (a)The notice and claim requirements under section 16 of the 1930 Act have not been met nor does the Applicant fall within the proviso to that section. Therefore, this claim is not to be considered by the Respondent.

   (b)There is no reliable evidence of a diagnosis that the Applicant suffers or suffered from a deviated nasal septum.

   (c)Even if the Applicant were found to have suffered a deviated nasal septum, there is no contemporaneous medical or other evidence supporting the existence of a causal relationship between that condition and his former military employment.

   84.Consequently, I find there is insufficient evidence to support any liability on behalf of the Respondent to pay the Applicant compensation for the claimed deviated nasal septum condition.

   Application 2015/4627 (Sleep Apnoea)  

2. In respect of the Applicant’s claim for compensation for sleep apnoea, I find that:

   (a)The notice and claim requirements under section 16 of the 1930 Act have not been met nor does the Applicant fall within the proviso to that section. Therefore, this claim is not to be considered by the Respondent.

   (b)I accept the Applicant currently suffers from sleep apnoea.

   (c)However, there is no compelling medical or other evidence supporting the existence of a causal relationship between this condition and his former military employment.

   86.Consequently, I find there is insufficient evidence to support any liability on behalf of the Respondent to pay the Applicant compensation for the claimed sleep apnoea condition.

   Application 2015/4628 (Irritable Bowel Syndrome “IBS”)

3. In respect of the Applicant’s claim for compensation of IBS, I find that:

   (a)The notice and claim requirements under section 16 of the 1930 Act have not been met nor does the Applicant fall within the proviso to that section. Therefore, this claim is not to be considered by the Respondent.

   (b)I accept the Applicant has a current diagnosis of IBS.

   (c)However, there is no compelling medical or other evidence supporting the existence of a causal relationship between this condition and his former military employment.

   88.Consequently, I find there is insufficient evidence to support any liability on behalf of the Respondent to pay the Applicant compensation for the claimed IBS condition.

   Application 2016/0456 (Hearing Loss associated with Otitis media and Bilateral Tinnitus)

4. In respect of the Applicant’s claims for compensation of his ear conditions, including otitis media and bilateral tinnitus, I find that:

   (a)The Applicant still suffers from mild hearing loss and tinnitus and that he previously had a diagnosis of otitis media during his military service.

   (b)However, there is no compelling medical or other evidence supporting the existence of a causal relationship between these conditions and his former military employment.

   90.Consequently, I find there is insufficient evidence to support any liability on behalf of the Respondent to pay the Applicant compensation for the claimed ear conditions.

   DECISION

5. For the reasons stated above, I find that the Respondent has no liability for any of the claimed conditions.

1. I affirm all of the decisions under review. 

I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.........................[sgd]......................................

Associate

Dated: 11 April 2017

Dates of hearing:	18 and 19 October 2016
Advocates for the Applicant:	Terry Meehan OAM & Brenda Gordon
Counsel for the Respondent:	Charles Clark
Solicitors for the Respondent:	Moray Agnew