Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/249
GENERAL ADMINISTRATIVE DIVISION ) Re DONALD SYDNEY PRICE-BECK Applicant
And
DEPARTMENT OF VETERANS' AFFAIRS AS DELEGATE FOR COMCARE
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Date29 April 2003
PlaceCanberra
Decision The tribunal affirms the decision under review. ...................[Sgd]…................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Military Compensation Scheme – root canal treatment and crowning of tooth performed by RAN dentists – failure of root canal treatment – loss of tooth – whether loss of tooth is an unintended consequence of the medical treatment – whether loss of tooth an injury – “injury as an unintended consequence of medical treatment” - notice of injury as soon as practicable after occurrence or awareness
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“disease”; “impairment”; “injury”; “medical treatment”), 6A, 14(1), 124
Compensation (Commonwealth Government Employees) Act 1971 s 53
Comcare v Houghton [2003] FCA 332
Eaton and Comcare, Re (2002) 67 ALD 182
Elliott and Comcare, Re (2001) 64 ALD 423
Houghton and Comcare, Re [2002] AATA 927
Repatriation Commission v Brown (1990) 12 AAR 253
REASONS FOR DECISION
29 April 2003 Mr M J Sassella, Senior Member APPLICATION
1. This is an application to the Administrative Appeals Tribunal (‘the tribunal”) by Donald Sydney Price-Beck (“the applicant”). He seeks review of a decision of a delegate of the Department of Veterans’ Affairs as delegate for Comcare (“the respondent”) dated 23 April 2001. The delegate’s decision had been to affirm the original decision dated 30 November 2000 that the applicant had not suffered an injury that was an unintended consequence of medical treatment provided to the applicant during the course of his service in the Royal Australian Navy (“the RAN”).
2. The applicant claims compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for a “loss of tooth and subsequent replacement” (T4) as an injury that was an unintended consequence of dental surgery performed on him during service in the RAN.
3. The issues before the tribunal are:
a) whether the applicant’s loss of tooth was an unintended consequence of RAN dental treatment so as to fall within the scope of s 6A of the Act and be a compensable injury pursuant to s 14 of the Act;
b) whether the meaning of “injury” as used in s 6A of the Act was intended to be restricted in operation and not intended to include a “disease” as per the definition of “injury” in s 4 of the Act
c) whether the applicant’s loss of tooth could be characterised as an “injury” in any event; and
d) whether s 53 of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), as applied by s 124 of the Act, prevents an entitlement to any compensation due to delay on the applicant’s behalf in notifying the respondent of the occurrence of the injury or disease.
HEARING
4.
The tribunal convened a hearing in this matter in Canberra on 25 February 2003. The applicant represented himself with the assistance of a friend,
Ms S Oldham. Mr D Rangiah of counsel represented the respondent. The tribunal heard oral evidence from the applicant, Dr A Dawson, a specialist prosthodontist, and Dr R Butler, a former dentist with the RAN.
5. The tribunal received into evidence and marked as exhibits the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit A1 – Applicant’s statement of facts and contentions, 11 February 2003.
Exhibit A2 – Statement by Ms M Hodge with attached photograph of applicant and his brother, 11 February 2003.
Exhibit A3 – Statement by Mr E Watson in response to attached schedule of questions provided by the applicant, 10 February 2003.
Exhibit A4 – Statement by Dr C Tam, dental surgeon, in response to questions provided by applicant’s representatives, undated.
Exhibit A5 – Extracted tooth number 22, upper left lateral incisor.
Exhibit R1 – Respondent’s statement of facts and contentions, 26 August 2002.
Exhibit R2 – Letter from respondent’s representatives, Mr S Marris of Sparke Helmore, to applicant as an addendum to the respondent’s statement of facts and contentions, 23 August 2002.
Exhibit R3 – Report by Dr A Dawson, specialist prosthodontist, 12 September 2003.
Exhibit R4 – Report by Dr R Butler, 29 October 2002.
Exhibit R5 – Report by Dr C Tam, dental surgeon, 9 April 2002, with schedule of questions of the respondent, 27 March 2002.
Exhibit R6 – Report by Dr C Tam, 2 July 2002, with schedule of questions of the respondent, 26 June 2002.
Exhibit R7 – Affidavit of Mr S Marris, representative for the respondent, 20 February 2003.
Exhibit R8 – Clinical notes and records of Dr C Tam.
Exhibit R9 – Affidavit of Mr P Ontong, 23 February 2003.
LAW
6. Section 14 of the Act, as relevant, provides:
Compensation for injuries
14 (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
7. Section 4(1) of the Act defines “impairment” 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. That definition would appear to include the loss of a tooth and is not in dispute in this matter.
8. Section 6A extends the operation of the compensation scheme in the Act to certain employees (and ex-employees) who received medical treatment paid for by the Commonwealth. As relevant, s 6A provides:
Injury arising out of or in the course of employment—extended operation
6A (1) This section applies to the following employees:
(a) members of the Defence Force;
…
(2) If, at any time, whether before, on, or after, 1 December 1988:
(a) an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b) as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.
9. The expression “medical treatment” is defined in s 4(1) to include:
…
(c) dental treatment by, or under the supervision of, a legally qualified medical practitioner
…
10. As relevant, “injury” is defined in s 4(1) as:
(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;
…
11. “Disease” is also defined in s 4(1) as:
(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.
12. Subject to Part X of the Act, the Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day of the Act. However, s 124 in Part X of the Act provides, as relevant:
Application of Act to pre-existing injuries
124 (1) …
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
…
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
…
13. Section 53 of the 1971 Act, as relevant, provided:
Notice to Commonwealth of injury, disease or loss of or damage to property.
53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the occurrence of the injury;
(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
…
(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth-
(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
…
(4) Where-
(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;
(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause, the notice shall be deemed to have been served in accordance with that sub-section.
CHRONOLOGY OF EVENTS
14. The applicant was born on 21 June 1954 (T2/3).
15. In 1966 when the applicant was around 12 years of age he chipped his upper left incisor tooth (“tooth 22”) in an accident involving a lawn roller (ex A1).
16. In January 1970, at 15 years of age, the applicant joined the RAN (ex A1).
17. Between 1970 and the beginning of 1981, the applicant had a series of dental treatments performed by RAN dentists that must have included root canal treatment on tooth 22 (conclusions of Dr C Tam in T21/53 and Dr A Dawson in ex R3).
18. In April 1981 RAN dentists crowned tooth 22 (T5/14).
19. In August 1981 the applicant left the RAN (ex A1).
20.
The applicant claimed that in 1983 he received dental treatment from
Dr H Cullinan and Dr A Smith which included endodontic treatment and an apicectomy to remove an infection in tooth 22 (ex A1).
21. In 1995 Dr C Tam performed further treatment on tooth 22 (ex R8).
22.
On 8 August 2000, the applicant suffered a further infection in tooth 22 (T21/52). This resulted in an extraction of the tooth on 7 December 2000 by
Dr C Tam (T21/52).
23.
In 2002 an implant was fitted into the applicant’s mouth to replace tooth 22
(ex A1).
EVIDENCE
Mr Price Beck
24. In oral evidence before the tribunal, the applicant outlined his version of events, with reference to exhibit A1, which led to the eventual extraction of tooth 22. He stated that between 1970 and 1980 the RAN performed root canal treatment on tooth 22, a tooth that he had chipped as a child. After leaving the RAN the applicant suffered a series of infections in tooth 22. On advice from his dentist, Dr C Tam (T6), and a dental specialist, Dr A Viljoen (T7), the tooth was extracted in August 2000 and a prosthetic replacement was eventually fitted into the applicant’s mouth in 2002.
25. The applicant stated that the high costs associated with replacing the tooth prompted him to seek compensation. He was aware of the Military Compensation and Rehabilitation Scheme through discussions with a colleague. Consequently, he lodged a claim (T4) with the respondent on 30 October that resulted in the reviewable decision (T23) that is the subject of the current matter before the tribunal.
26. In oral evidence the applicant attributed the loss of his tooth to either the crowning procedures that were performed by RAN dentists or to root canal treatment that he received at some stage between 1970, when he joined the RAN, and 1980. The applicant could not recall precisely when the root canal treatment was performed by the RAN but did recall a time when he was serving at HMAS Cerberus where the dental procedure was so severe that the applicant required an ambulance home from the surgery. He told the tribunal that he was unable to obtain RAN dental records in relation to this treatment and other procedures as such information had since been lost or destroyed.
27. In cross-examination, Mr Rangiah questioned Mr Price-Beck on the first incident that led to the chip in tooth 22. Mr Price-Beck stated that he broke the tooth by striking the handle on a lawn roller that he was pushing. He stated that it was sufficient to chip the enamel. He believed that his mother took him to a dentist at a stage soon after the event, but no major treatments were performed. The photograph attached to exhibit A2, which showed the applicant’s chipped tooth at 15 years of age when he entered the RAN, supported this.
28. Mr Rangiah referred to statements made by the applicant in support of his claim in 2000 (T9 and T12). Mr Rangiah noted that the applicant made no mention of the root canal treatment performed on him and highlighted that the claims were made in respect of the crowning of tooth 22. The applicant did not know why he had had root canal treatment. In making the claim, the applicant assumed that the cause of his problems with tooth 22 had been the crowning procedure. He stated that he had no idea that root canal treatment could be a cause. It was not until the reconsideration that the applicant suspected that root canal treatment performed on him by the RAN could have been a cause. In re-examination by Ms Oldham, the applicant recalled that he advised the respondent within days of the reconsideration of the original decision by the respondent that root canal therapy had been performed on him in his time with the RAN.
29. In relation to the crowning procedure, the applicant had assumed at the time that the treatment was for improving his appearance. He did not believe that the treatment was necessary for any other purpose other than cosmetic improvement. He admitted to being a person who was concerned about his appearance and that the eventual loss of his tooth in 2000 made him feel self-conscious and embarrassed. At the time of the treatment, he did not question whether he should have it performed. He took the advice of the dentist, who was a senior officer. He did not question that advice on the bases that he perceived the dentist to be an expert and that the dentist out-ranked him. The applicant emphatically told the tribunal that any treatment he allowed to occur was performed because he did not believe that he could question a superior officer and that he was obeying orders. Mr Rangiah suggested that the RAN dentist merely advised of the option to improve the applicant’s appearance. The applicant believed that, at the time, the RAN “engendered a culture of discipline” and that there was no choice in having tooth 22 crowned by the RAN dentist.
30. With regard to Mr Price-Beck’s delay in lodging a claim for compensation in respect of tooth 22, Mr Rangiah queried why there was such a significant delay given that Mr Price-Beck suffered from a series of infections in tooth 22 over nineteen years before lodging the claim in 2000 (T4). Mr Price-Beck stated that he was not aware of his right to claim compensation until some time in 2000 when he had a discussion with a work colleague. He also made no inquiries regarding any veterans’ entitlements that may have been available to him.
Dr Butler
31. Dr Butler, a witness for the respondent, was a former RAN dentist who performed some of the treatment that the applicant received on tooth 22 while the applicant was in the RAN. In a report before the tribunal (ex R4), Dr Butler noted that the applicant must have received a root filling prior to the crowning procedure in 1981 in relation to which Dr Butler was one of the dentists involved. He concluded this on the basis of the type of crown that had been supplied, being a “post and core”, which indicated the existence of a previous root filling. In exhibit R4, Dr Butler noted,
“Whilst I have no knowledge of the circumstances of the original endodontic treatment [the root canal treatment], it must be noted that it prevented the loss of this tooth [tooth 22] for a period of over twenty years and would have been undertaken in the patient’s interest.”
Dr Butler highlighted in exhibit R4 that any treatment performed on tooth 22 of the applicant was to strengthen and maintain the tooth and extend its life. He stated that had there been any reservation on the part of the applicant that would have been noted on the record.
32. In oral evidence, Dr Butler explained the procedures that were performed on the applicant in 1981 when tooth 22 was crowned. With reference to RAN dental records (T5), Dr Butler stated that the applicant had a gold post cemented to tooth 22, which, he described, is the type of crown that would only be done in a root filled tooth. He noted that, on the basis of those records, root canal treatment was not performed in April 1981 but at some earlier stage. This reconfirmed the findings stated in his report (ex R4).
33. He stated that it was accepted practice to crown a tooth to protect it from further fracture. Root filled teeth tend to be brittle and chip or break easily. He did not accept that a crowning procedure would cause the loss of tooth 22 as the procedure was for the purpose of strengthening the tooth. Dr Butler noted that the RAN dentists saw the applicant as “dentally fit” by the time the treatments in April 1981 were complete.
34. In response to a question from the tribunal regarding the cause of the infections in 1995 and 2000, Dr Butler stated that approximately 10 per cent of root canal treatments fail. In his view, the likely cause of any infection is where residual bacteria remains in the complex canal structure that is filled during the root canal work. Dr Butler believed that the cause of any later infections would have been from the “failure” of the root canal work. That failure would be that bacteria remained inside the complex root canal structure of the tooth.
35. In cross-examination, Dr Butler stated that it may be possible that a crowning procedure could allow bacteria in and cause an infection, but believed that that was a remote chance in this case. Dr Butler confirmed that not all root canal failures would lead to a loss of tooth. When asked whether he believed the loss of a tooth from failed root canal work was an unintended consequence, Dr Butler agreed that it would be from a lay perspective on the basis that such a procedure would have been intended to preserve the tooth.
Dr Dawson
36. Dr Dawson, a specialist prosthodontist, supported the findings of Dr Butler in relation to there having been root canal treatment prior to the crowning procedures undertaken in April 1981. Mr Rangiah took Dr Dawson through an explanation of root canal work. Dr Dawson explained to the tribunal that if root canal work is not performed when it is required, the patient would experience significant discomfort before the infection in the tooth spreads. However, it is possible for the tooth to be asymptomatic before a dentist could foresee a problem upon examination. He stated that an infected tooth would usually be lost within five years. Dr Dawson confirmed that root canal treatment would not be undertaken “for fun” and must have been required in the present case in order to preserve the tooth.
37. In relation to the cause of the infections suffered by the applicant in the period between 1981 and 2000, Dr Dawson outlined the possible sources of infection in both oral evidence and a written report (ex R3). On the basis of the evidence provided to Dr Dawson, he believed that the infections experienced over the years in tooth 22 were likely to have arisen as a result of the failure of the root canal therapy or apicectomy, or a root fracture or crack.. Dr Dawson did not personally examine the applicant or the tooth (ex A5) in question.
38. He highlighted that subsequent infection is one of the risks of root canal therapy and that it was not necessarily a consequence of the treatment performed but usually occurred in spite of it. Dr Dawson stated that root canal therapies have about a 90 per cent success rate, with the most common reason for failure being the re-infection of the root canal space by bacteria from inside the tooth. Dr Dawson clarified that a failed root canal treatment is usually as a result of one persisting problem, such as slow growing bacteria in the surrounding tips of roots that only emerge some years after any treatment has been performed on the tooth in the form of a further infection. It was possible for the infections to be independent of each other.
39. He noted that root canal therapy would not be performed by a dentist without reason. That reason would not necessarily be in preparation for a crowning procedure, but he conceded that it could be possible as a part of such a procedure if a foreseeable risk existed that a root infection might occur. However, Dr Dawson was of the view that the root canal therapy in this case was not likely to have been performed in preparation for the crowning in 1981. He believed that it was likely to have been as a result of the trauma suffered to the tooth. He noted, under cross-examination, that a firm conclusion on this issue would be difficult without documentary evidence that pointed to the real cause for root-filling the tooth.
40. In relation to crowning teeth, Dr Dawson explained that crowning root-filled teeth is intended to make them last longer. He noted that there was not much more that could be done to preserve a tooth after it had been root-filled and crowned.
41. Ms Oldham queried Dr Dawson on the likely purpose of the root canal therapy performed on the applicant’s tooth. Ms Oldham tried to suggest that a chipped tooth would not necessarily result in an infection. However, Dr Dawson stated that, “where a tooth has been fractured, that would normally mean a sufficiently forceful blow to cause sufficient movement in the tooth to disrupt the blood supply” (transcript at p 14). A subsequent infection was dependent on the size of the chip or fracture and the immune system of the applicant. Dr Dawson conceded that a blow to the tooth was a likely cause but there may have been others that he had not been made aware of.
APPLICANT’S SUBMISSIONS
42. Ms Oldham, for the applicant, asserted that regardless of whether it was the crowning procedure or the root canal therapy, both were the result of Commonwealth funded medical treatment of the applicant while he served in the RAN.
43. In relation to the crown, Ms Oldham suggested that some of the medical experts had seen the crown as deficient and a possible source of infection. She relied on the reports of Dr Tam on 19 February 2001 (T21), exhibit A4 and Dr Dawson’s report of 12 September 2002 (ex R3). The tribunal notes that those sources expressed the possibility of infection due to a crack in the crown or the crowning procedure itself, but also suggested that it was not likely to be the reason for the infection in tooth 22 (particularly noting T21/53).
44. Ms Oldham submitted that the root canal work had an “explicit connection to the loss of the tooth”.. She submitted that this was extensively supported in the medical evidence, particularly in the reports of Dr Dawson. She emphasised that Dr Dawson saw that there was little chance of any post-navy dental work as a cause of the loss of the tooth. She relied on Dr Dawson’s statements in exhibit R3 in support of this.
45. Ms Oldham submitted that the applicant’s claim was in respect of the loss of tooth 22 and not in relation to any infections which may have caused that loss. In her submission, the loss of a tooth was clearly an injury and could not be considered, on a plain interpretation, to be a “disease”.
46. In relation to whether the loss of the tooth is an “unintended consequence” of the medical treatment, Ms Oldham referred to the tribunal’s decision in Re Eaton and Comcare[1] (2002) 67 ALD 182. The tribunal in Eaton (above) held that an “unintended consequence” was one that both “is not desired or aimed for or designed by the provider of the medical treatment and is not a likely consequence of the medical treatment” (at paragraph 58, page 194). Ms Oldham submitted that the loss of tooth 22 was not an integral and inevitable part of root canal therapy. It was submitted that a 10 per cent failure rate of root canal therapy was not a “likely” consequence. By inference, Ms Oldham appeared to submit that a 90 per cent success rate indicated that root canal therapy as a medical treatment did not aim for the loss of a tooth but was intended as a measure of preservation.
[1] relation to the applicant’s delay in notifying the respondent of the occurrence of the injury, it was submitted that the applicant notified as soon as practicable after he became aware that he would lose his tooth. Ms Oldham also submitted that the applicant was unaware of the possibility of receiving compensation before making the claim.
RESPONDENT’S SUBMISSIONS
48. In oral submissions, Mr Rangiah asserted that regardless of whether the injury suffered by the applicant was the infection in 2000 or the subsequent loss of tooth 22, the likely underlying cause of those problems was the original trauma suffered by the applicant in 1966. Mr Rangiah submitted that, on the basis of the available medical evidence, the chip to tooth 22 probably resulted in a dead nerve root which led to the course of treatments endured by the applicant over a substantial period of time.
49. Mr Rangiah submitted that the infection in tooth 22 or its eventual loss could not be held to be a consequence of root canal treatment or any crowning procedure. In written submissions, Mr Rangiah highlighted that the crowning of the applicant’s tooth 22 was done in order to preserve and protect it. He noted a similar purpose in relation to any endodontic or root canal treatment. He submitted that any infection occurred in spite of the treatments performed rather than as a consequence of them.
50. Mr Rangiah also noted the tribunal’s finding in Eaton (above) in relation to the meaning of the term “unintended consequences” (as above). Mr Rangiah respectfully submitted that the tribunal’s decision in Re Houghton and Comcare[2] [2002] AATA 927 wrongly took the approach of construing s 6A of the Act in light of its beneficial purpose, rather than resorting to that principle if the section could not otherwise be construed. The tribunal put the parties on notice at the hearing that this decision would depend on the outcome of an appeal to the Federal Court in Houghton (above).
[2] Rangiah also submitted that the infection of the area around tooth 22 was a “disease” not an “injury” within the ordinary meaning of that expression. It was suggested that it was the infection, being a disease, that caused the eventual loss of tooth 22. Mr Rangiah relied on the tribunal’s decision in Re Elliott and Comcare (2001) 64 ALD 423[3] and submitted that the expression “injury” in s 6A(2) must be with reference to the ordinary meaning of the word rather than to the definition of “injury” in s 4 of the Act. In Elliot the tribunal stated at 441:
“(77) Returning to s 6A(2)(b), there is an initial question whether the word ‘injury’ bears its meaning as defined in s 4(1). If that is so, it includes both an injury and a disease but not any injury or any disease. The injury must be one that arises out of, or in the course of, the employee’s employment. The disease must be an ailment, or an aggravation of an ailment, that was contributed to in a material degree by the employee’s employment by the Commonwealth. Section 6A(2), however, only refers to the injury’s being taken to have arisen out of, or in the course of, the person’s employment. It makes no reference to an ailment’s or an aggravation of an ailment’s being taken to have been contributed to in a material degree by the employee’s employment with the Commonwealth. That is to say, it refers to the link that must exist for an injury to be an ‘injury’ for which compensation is payable under the Act but makes no reference to the link that must exist if a disease is to be regarded as such an ‘injury’ for which compensation is payable. The reference to a link is consistent with only one limb of the definition of ‘injury’ in s 4(1) and not with the other, indicates an intention that the full definition of ‘injury’ is not applicable in s 6A(2). Instead, it indicates an intention that the word ‘injury’ refers only to ‘an injury (other than a disease) . . . being a physical or mental injury . . .’ of the type referred to in para (b) of the definition of ‘injury’ in s 4(1). We have not taken this matter any further for, in our view on the facts of this case, it is not necessary to decide whether the word ‘injury’ used in s 6A(2) does or does not include both an injury and a disease.”
[3] Rangiah submitted that the applicant’s infection, or series of infections, was plainly a “disease”.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
52. At the hearing, the tribunal indicated to the parties that a decision in this matter would await the Federal Court’s decision in an appeal from the tribunal’s decision in Houghton.. The Federal Court has since handed down its judgment in Comcare v Houghton[4] [2003] FCA 332.
[4] Comcare v Houghton, Lindgren J could not make a final determination as to whether the “injury” suffered by the applicant was an unintended consequence of the medical treatment paid for by the Commonwealth. Lindgren J found that the tribunal had failed to appropriately make factual findings as to whether the applicant’s loss of hearing resulted from an “injury” which he “suffered” as a “consequence” of his “medical treatment”.. In that sense, the decision was instructive as to the proper application of s 6A. Lindgren J (at p 9) particularly highlighted that,
“the scheme expressed in the Act can be illustrated as follows:
1. medical treatment paid for by the Commonwealth (par 6A(2)(a));
2. with the unintended consequential suffering of an injury (par 6A(2)(b))
3. resulting in, relevantly, impairment (subs 14(1)).”
54. The tribunal finds that the applicant was a member of the Defence Force, being an officer in the RAN. While he served in the RAN he received dental treatment, including a crowning procedure and root canal therapy, which satisfies the definition of “medical treatment” in s 4(1). The finding that the root canal therapy occurred when the applicant was in the RAN involves acceptance of the evidence of the evidence (ex A2) of the applicant’s mother that this work was not done before Mr Price-Beck enlisted. In that way, the applicant satisfies the tribunal that he was an employee to whom s 6A applies and that he received medical treatment that was paid for by the Commonwealth.
55. In relation to whether the applicant suffered an injury that was the unintended consequence of medical treatment, the Federal Court noted that the decision-maker must bear in mind the distinction, recognised in s 14(1), between an injury and the impairment which results from it. As mentioned in paragraph 7 of this decision, it is not in dispute that the loss of a tooth, being the loss of a body part, is an “impairment” within the meaning of s 14(1). However, the tribunal is not convinced by the applicant’s submissions that the loss of tooth 22 is also an “injury” within the meaning of s 6A(2).
56. In the tribunal’s view, the cause of the loss of the tooth suffered by the applicant was an infection in tooth 22 that led to the ultimate impairment – the loss of the tooth. The tribunal bases this finding on the medical evidence of Doctors Clare, Dawson and Butler which conclusively stated that the likely cause of the loss of the tooth was a recurring infection as a result of the failure of the root canal therapy or apicectomy, or a root fracture or crack. On the medical evidence, it was clear that the tooth would not have been lost if it had not become infected.
57. However, while the infection may have been a “cause” of the impairment, whether it is an “injury” is another matter. As noted by Lindgren J in Comcare v Houghton (above) (at p 10), the word “injury” has a wide meaning. Lindgren J cited Hill J in Repatriation Commission v Brown (1990) 12 AAR 253 at 257-259, where it was concluded that, for the purposes of the Veteran’s Entitlements Act 1986, an “injury” signified the suffering of some harm, but not where that harm was ultimately for a beneficial purpose. Taking the approach that the term “injury” has such a broad meaning, in the tribunal’s view the harm suffered by the applicant was the infection. In Brown, the harm suffered, on a cursory view was the grinding down of teeth. However, it was held that that could not be an “injury” as, when properly viewed, the grinding down of the teeth was performed for the beneficial purpose of creating a bridge. Unlike the “injury” in Brown, an infection is not a therapeutic or beneficial result. Here the tribunal makes a distinction between “medical treatment” and “injury”.. The tribunal takes the view that medical treatment has the intention of being beneficial in the majority of cases. In this case, it would seem that the medical treatment performed was either the crowning procedure or the root canal therapy. While the treatment performed on the applicant was intended to preserve and protect the tooth – and thus be beneficial – the ultimate “injury” (the tribunal uses the term here loosely) – an infection - was “harmful” to the applicant.
58. Having made that distinction, the tribunal does not find that the infection suffered by the applicant was an “injury” for the purposes of s 6A(2). Noting the respondent’s submissions in respect of characterising the infection as a “disease”, the tribunal considers that the use of the term “injury” in s 6A(2) was intended to have restricted application. As was noted by a differently constituted tribunal in Elliott (above), s 6A(2) only refers to the injury as being taken to have arisen out of, or in the course of, the person’s employment. The definition of “injury” in s 4(1) of the Act is much broader. In s 4(1), the term “injury” also includes a “disease suffered by an employee”. “Disease” is defined as in paragraph 11 above. There is no reference in s 6A(2) to the “injury” being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth. As was noted by the tribunal in Elliott, “injury” as expressed in s 6A(2) is only linked with the expression of “injury” in s 4(1)(b) of the definition and not with the term “disease” as defined in s 4(1). Therefore, in the tribunal’s view, if the applicant’s infection is a disease, it would not be an “injury” for the purposes of s 6A(2).
59. The tribunal finds that the infection was a disease that was caused by residual bacteria that remained inside the tooth dating from when it was chipped. The tribunal takes into account the evidence of both Doctors Butler and Dawson in coming to this conclusion. Dr Dawson’s evidence supported the contention that the subsequent infections experienced in the applicant’s tooth were as a result of bacteria forming after the initial disruption to the blood supply. Such a condition is indicative of an ailment or morbid condition. Therefore, the tribunal finds that the applicant did not suffer an “injury” for the purposes of s 6A(2).
60. Even if the tribunal’s interpretation of the infection as a disease is incorrect and it is, in fact, an “injury” the issue to be considered is whether it is an “injury” that is a “consequence” of “medical treatment”.. The tribunal notes that the doctors concluded that the infection was either most likely as a result of the root canal therapy or a root fracture or crack. The tribunal therefore rejects the submission that the infection was caused by the crowning procedure, although notes that it was seen as a minor possibility. If it was the result of a root fracture or crack the tribunal does not see, on the evidence before it, that that was consequentially caused by any medical treatment performed. It would seem that a root fracture or crack would occur regardless of any dental therapy. The evidence of Doctors Clare, Dawson and Butler all state that while it might be possible that a root fracture occurred, the most likely cause, in their collective views, was the failure of the root canal therapy.
61. If the infection was as a result of a failure of root canal therapy, the infection could be said to be a consequence of medical treatment, in that root canal therapy forms a part of dental treatment.. However, the tribunal notes the evidence of Dr Dawson where he concluded that a failed root canal treatment caused by reinfection of the tooth was not necessarily a consequence of the treatment performed, but rather occurred in spite of it. The tribunal finds that in the applicant’s case, the infections experienced over the years were as a consequence of residual bacteria that remained in the tooth in spite of any treatment aimed at removing it. In the tribunal’s view, the infection in tooth 22 was caused from the initial blow to the tooth which disrupted the blood supply and allowed bacteria to form. That bacteria remained despite any efforts to remove it via root canal therapy. The initial blow was the chipping of the tooth on the lawn roller in 1966. Therefore, the tribunal finds that the infection was a consequence of the bacteria that remained in the tooth and could not be said to be a consequence of any medical treatment performed.
62. In the tribunal’s view, it is not necessary to further consider whether the infections suffered by the applicant are an “unintended” consequence as they are not an “injury” for the purposes of s 6A(2), or if they are, are not a consequence of the medical treatment. Further, it is not necessary to consider whether the applicant’s claim fails due to the operation of s 58 of the 1971 Act regarding any delay on behalf of the applicant in notifying the respondent of the injury suffered.
CONCLUSION
63. The tribunal finds that the applicant’s infection in tooth 22 was a disease. A “disease” is not an “injury” for the purposes of s 6A(2). Even if that interpretation is incorrect, the tribunal finds that the infection (or series of infections) was as a consequence of bacteria remaining in the tooth, despite any medical treatment, following an incident where it was chipped. Since the infection was not a consequence of any medical treatment performed, it is not necessary to consider whether it was an “unintended” consequence of such treatment. The applicant’s claim fails as the tribunal is not satisfied that the infection suffered by the applicant was a compensable “injury” or that the medical treatment performed had the consequence of causing, creating or contributing to an infection.
DECISION
64. The tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Signed: .................................[Sgd]...........................................
D Reed AssociateDate of hearing 25 February 2003
Date of decision 29 April 2003
Advocate for the applicant Ms Susan Oldham
Solicitor for the applicant N/a
Counsel for the respondent Mr Darryl Rangiah
Solicitor for the respondent Mr Stuart MarrisDetails
- AGLC
- Price-Beck and Department of Veteran's Affairs as Delegate for Co Mcare [2003] AATA 386
- Case
- [2003] AATA 386
- Decision Date
CaseChat Overview and Summary
The applicant, Price-Beck, sought compensation from the Department of Veteran's Affairs, acting as the Delegate for Comcare, following the loss of a tooth after a root canal treatment and crowning performed by Royal Australian Navy (RAN) dentists. The applicant argued that the loss of the tooth was an unintended consequence of the medical treatment and therefore constituted an injury under the Safety, Rehabilitation and Compensation Act 1988. The dispute centred on whether the loss of the tooth was an injury as an unintended consequence of medical treatment and whether Price-Beck had given notice of the injury as soon as practicable after occurrence or awareness. The matter was heard by the Administrative Appeals Tribunal (AAT).
The legal issues before the tribunal were whether the loss of the tooth was an injury under the Act and whether Price-Beck had provided notice of the injury as soon as practicable after occurrence or awareness. The tribunal considered the definition of "injury" under s 4(1) of the Act, which includes an injury as an unintended consequence of medical treatment. The tribunal also examined the requirement in s 14(1) of the Act for notice of injury to be given as soon as practicable after occurrence or awareness.
The tribunal found that the loss of the tooth was not an unintended consequence of the medical treatment, as the possibility of tooth loss was a known risk inherent in the procedure. The tribunal noted that the risk of tooth loss was not an unintended consequence of the medical treatment, but rather a known risk that the applicant was aware of before the treatment. The tribunal also found that Price-Beck had not provided notice of the injury as soon as practicable after occurrence or awareness, as required by s 14(1) of the Act. The tribunal concluded that the decision to refuse compensation was correct and affirmed the decision under review.
No further orders were sought or made.Orders
Orders of the court
The tribunal affirms the decision under review.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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