Provost and Repatriation Commission

[2011] AATA 153

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2010/1812

VETERANS’ APPEALS DIVISION		)
Re		RENATE PROVOST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member, Associate Professor JB Morley RFD, Member

Date24 February 2011

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s condition of nephrosclerosis is defence caused with effect from 26 February 2008. The Tribunal remits assessment.

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – defence service – nephrosclerosis –

member served in Dental Corp – exposure to mercury as a dental assistant – relationship to service established – decision set aside

Veterans’ Entitlements Act 1986 (Cth), s 70(5)

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

8 March 2011 M J Carstairs, Senior Member

1.      Renate Provost seeks review of a decision rejecting her claim for “kidney problems”, which she believed to be related to her service in the Australian Army and in particular to her work as a dental assistant in the Army Dental Corps.

2. The possible causal connections with defence service allowed for under the legislation are found at s 70(5) of the Veterans’ Entitlements Act 1986 (Cth). Mr A Harding of counsel who appeared for the applicant, confined his submissions to the particular ground to be found at s 70(5)(a) of the Act, namely that the injury (or disease) “arose out of or was attributable to” defence service.

3.      We reached the conclusion on the day of the hearing that Ms Provost’s condition, which we accept is correctly identified as nephrosclerosis, indeed was attributable to her defence service.  We now provide our reasons for so doing.

BACKGROUND

4.      Ms Provost said that during the 1970’s her work as a dental assistant in the Army exposed her on a daily basis to mercury as a component of amalgam then commonly used for filling teeth, the amalgam being mercury mixed with an alloy.   The mercury, which came in a capsule, had to be mixed by the dental assistant.  This task involved tipping the mercury from the capsule onto a chamois then squeezing the chamois to remove excess moisture.  Ms Provost said that quite apart from getting mercury on her hands in the squeezing process, not infrequently the mercury would spill and she would simply pick it up in her hands. She said it was also impossible to avoid touching mercury when packing the amalgam into the plunger used to fill the tooth, as fingers were used to tamp down. 

5.      Ms Provost said that in the dental unit they were seeing patients hourly every day, and many required fillings.  No personal protective equipment was provided by the Army at that time, dental assistants not being issued with gloves, face masks, or protective safety glasses until about 1986 or 1987.  In summary, Ms Provost said that she was exposed to mercury on a daily basis for a period of some ten years in the Dental Corp. 

6.      Ms Provost however was not aware of any problems, nor did she recall having any troubling symptoms, until a short time after she took part in a training course as part of her studies for promotion to the rank of sergeant.   The episode of severe ill health that she suffered after this exercise we refer to in these reasons as “the acute episode”. 

7.      The training course involved an exercise in which participants were exposed to tear gas in a confined space in a hut.  The participants entered the hut kitted up in a gas mask and were then required to take the gas mask off, state their name and regimental number, and run straight out of the hut.  Once out of the hut they were then to run with extended arms to disperse the gas from their clothes.  Ms Provost said she could not fully recall the time involved in this exercise; it may have been seconds or minutes. 

8.      Once outside the hut, Ms Provost said her eyes were stinging and mucus was streaming from her nose.  But she recovered quite quickly from the initial reaction.  One to two weeks later, however, she began to feel unwell and very lethargic. 

9.      Ms Provost attended an Army doctor and was found to have very high blood pressure.  After an episode of dizziness she was referred to the military hospital where she was found to have protein in her urine and was suffering serious renal disease.  The specialist who treated her at this time was Dr Graham Row, a consultant nephrologist in practice since 1977. 

10.     Over the years since, Ms Provost’s condition has slowly progressed, and in 2008 she underwent a renal transplant of a kidney donated by her husband.  She had left the Army because of her kidney complaint in 1991, but continued dental laboratory work.  She remained in the Army Reserve until discharge in January 2010.

DIAGNOSIS

11.     The question of diagnosis here was a matter of some importance, and we accepted the evidence of Dr Row, who had the benefit of having treated Ms Provost at the time of the acute episode some 20 years ago, and since that time.

12.     Dr Row in his oral evidence made plain that questions of diagnosis had puzzled all who were treating her at the time.  Ms Provost had some unusual symptoms that made it hard to categorise exactly what nephritic condition she had.   Dr Row was able to clarify, however, that the respondent had incorrectly identified the condition as being IgA glomerulonephritis.  Dr Row said that was what he first thought when he began her treatment – he called it his “working diagnosis” – but the biopsy in May 1990 ruled out IgA glomerulonephritis. 

13.     In his written report dated 28 July 2010[1], Dr Row had been inclined to agree with the diagnosis substituted by the Veterans’ Review Board, which was “nephritis (non-specified)”, simply because he said that it was impossible to be completely definitive about Ms Provost's kidney disease.  However, in his oral evidence, Dr Row said that the question of diagnosis was the subject matter of comprehensive discussion with the pathologists who had examined the biopsy's microscopic slides in May 1990.  Dr Row’s preferred diagnosis was "benign nephrosclerosis” because Ms Provost’s particular symptoms did not fit comfortably into other recognisable forms of nephritis.

[1]        Exhibit A5

14.     We accept and adopt Dr Row’s diagnosis.

EVIDENCE OF CAUSATION

dr row

15.     Dr Row stated that Ms Provost had initially presented on 19 March 1990 requiring hospitalisation with symptoms including dramatic onset of headache, severe hypertension, oedema, proteinuria (the presence of excess serum proteins in the urine) and haematuria (the appearance of blood in the urine), all apparently provoked by tear gas exposure in the acute episode.  He said that these features were consistent with "Acute Nephritic Syndrome”, although, atypically, her kidney filtration function was not seriously impaired[2]. The biopsy in May 1990 revealed a cluster of five or six glomeruli which were completely obsolescent with marked atrophy of surrounding tubules and lymphocytic infiltration.  She had lost about one third of her nephrons[3].

[2]        Exhibit A5

[3]        Exhibit A5, p 2

16.     Dr Row made the point in oral evidence that when he was treating Ms Provost his main task was to identify her condition in order to provide optimal treatment.  He was not primarily concerned with questions of causation, referring to that as being rather the ‘horse that had bolted’.  However he was now persuaded to the view, in the light of the research discussed by consultant occupational physician, Dr David Douglas, that Ms Provost’s exposure to mercury explained the onset of her disease. 

17.     Dr Row’s report dated 12 October 2010[4] was written after he was provided with Dr Douglas' report containing commentary on the research findings in the World Health Organisation report “Principles and Methods for the Assessment of Nephrotoxicity Associated with Exposure to Chemicals.”  So while it was true that Dr Row once had thought that mercury was unlikely to be implicated his opinion had changed. Dr Row said he had been influenced by the WHO report studies that concluded that “occupational exposure to mercury vapour can lead to subclinical renal disturbances”[5].

[4]        Exhibit A2

[5]        Exhibit R1, p 56

18.     The WHO report specifically referred to the problems in working out a cause for end-stage renal disease because of the long latency and slow development of chronic renal failure.   Dr Row cited the WHO report:

It has been known for a long time that patients treated with mercurial compounds can develop a glomerulonephritis that is usually of the immune complex type .... Patients with mercurial nephropathy usually present with a proteinuria and occasionally a nephrotic syndrome, but no renal insufficiency [6].

[6]        Exhibit R1, p 56

19.     In his report, Dr Row referred to the May 1990 renal biopsy as showing a prominent cluster of obsolescent glomeruli – an unexpected finding. There was also proportionate tubulo-interstitial fibrosis and tubular atrophy.   However Dr Row said the period of time over which this damage occurred could not be determined from the renal histology.  In his oral evidence he said that Ms Provost's pre-1990 lack of signs and symptoms were typical of "chronic renal disease.”  He agreed with Dr Douglas that Ms Provost had significant but clinically silent renal damage, progressing over a prolonged period prior to the acute episode provoked by exposure to tear gas.

20.     As to other relevant background, Dr Row noted that Ms Provost had had an uninvestigated instance of proteinuria in 1981, and that for some months before the acute episode in 1990 she was experiencing headaches provoked by jogging.  Our examination of Ms Provost's service medical records, made available to us on the day of the hearing, showed that in fact she had four recordings of proteinuria:

• proteinuria (albumin) was detected twice on 9 February 1981 and 10 February 1981[7] immediately before and after she had an operation to her right knee;

§proteinuria was found again on 19 January 1987 and 10 November 1987[8] after tests were requested during routine gynaecological consultation.

[7]        Exhibit R3 pp 18, 19, 593, 598, 599, 602

[8]        Exhibit R3, pp 481, 482

21.     Dr Row on the other hand noted that Ms Provost had no past history of hypertension during oral contraceptive use, or during pregnancy.  When asked about the effect of Ms Provost's pregnancy on her suspected asymptomatic chronic renal disease, he remarked that pregnancy normally challenges pre-existing kidney disease, but the disease has to be "fairly significant" for it to produce the symptoms. 

22.     The service medical records showed that Ms Provost had no protein recorded as present in her urine on three examinations between her enlistment in 1975 and September 1979.[9]  She had two Medical Board Examinations on 2 and 31 March 1981, at both of which her urine (and blood pressure) were found to be normal. Between January 1982 and September 1984 she had four more normal urinary findings.[10] Her urine again was recorded as normal for her Medical Board dated 14 January 1988.[11] 

[9]        Exhibit R3, pp 620, 625, 627

[10]       Exhibit R3 pp 557, 539, 520, 515

[11]       Exhibit R3 p 472

23.     Dr Row emphasised to us that the kidney has a very limited range of responses to a wide range of injuries.  He explained that if a kidney suffers more than 50% nephron loss, the surviving nephrons adapt by a damaging maladaptation of "hyperfiltration", which further contributes to the proteinuria.  Heavy proteinuria indicates ongoing damage and poor prognosis.  He had noted this on his observations of Ms Provost from 26 March 1990 to 27 February 2001. 

24.     Regarding Ms Provost's tear gas exposure, Dr Douglas in his report stated that he assumed that the agent used was o-Chlorobenzylidene Malononitrile (known as CS).  Dr Row said he had been unable to find reports in medical literature of kidney damage resulting from tear gas exposure.  

25.     In summary, Dr Row thought that the most plausible explanation of Ms Provost’s condition was that she had developed chronic renal disease from her repeated low grade exposure to mercury, particularly as a dental assistant.  Its presence had been revealed by her exposure to the tear gas. 

dr douglas

26.     In his report dated 26 August 2010[12] Dr Douglas made mention of Ms Provost's unremarkable medical history prior to the acute episode.  He took into account her uncomplicated, normal, pregnancy in 1986.

[12]       Exhibit A1

27.     Dr Douglas’s opinion was that in the period from 1976 to 1987, Ms Provost had been exposed to two known nephrotoxic agents, namely mercury and chloroform.  He opined that, on balance of probabilities, she had suffered subclinical renal damage from her exposures, followed by acute nephritis triggered by the incident of tear gas in 1990.

28.     With regard to mercury, Dr Douglas noted that studies carried out between 1979 and 1984 provided further evidence that occupational exposure to mercury vapour can lead to subclinical renal disturbances, including increased urinary excretion of proteins[13].  The WHO report specifically mentioned

... chronic low-dose exposure to mercuric salts or even elemental mercury vapour may induce an immunological glomerular disease.  This form of mercury injury to the kidney is clinically the most common form of mercury-induced nephropathy.  Exposed workers may develop a proteinuria that is reversible after they are removed from exposure (emphasis added)[14].

[13]       Exhibit R1, p 56

[14]       Exhibit R1, p 56

29.     Dr Douglas said in his oral evidence that the toxic effects of mercury, which vaporises at room temperature, had been known to science since about 1973.[15]  Dr Douglas observed that Ms Provost was exposed to mercury vapour on a daily basis particularly between 1976 and 1981, and it was in about 1980 or 1981 that she was found to have proteinuria, without this being further investigated.  

[15]       Exhibit A1, p 7

30.     Dr Douglas referred to two medical scientific publications supporting these views:

§Bababunmi E A et al, Principles and Methods for the Assessment of Nephrotoxicity Associated with Exposure to Chemicals (International Programme on Chemical Safety, Environmental Health Criteria 119, World Health Organisation, Geneva, 1991, a major review, where the authors stated:

... most chemically associated renal disease is only identified as an acute renal failure or chronic renal failure at a very late stage when therapeutic intervention is impossible...  There are already several examples of this type of chemically associated disease that went unrecognised for some time.  These include those nephropathies caused by cadmium, other environmental heavy metals and more recently the organometallic compounds used as therapeutic agents (emphasis added).

§Ballantyne B, Callaway S, "Inhalation Toxicology and Pathology of Animals Exposed to o-Chlorobenzylidene Malononitrile (CS)" (1972) 12 Medicine, Science and Law 43.

31.     In summary, Dr Douglas considered that Ms Provost had been exposed to known nephrotoxic substances during her Army service, particularly from 1976 to 1987, with what he knew to be at least one episode of proteinuria indicative of likely mercuric kidney damage. The sequence, as Dr Douglas saw it, was her subsequent tear gas exposure induced acute symptoms of a severe nephritis, leading progressively to chronic nephritis and end-stage renal disease requiring a renal transparent in 2008.  In other words, his views accorded with those of Dr Row.

INJURY OR DISEASE ATTRIBUTABLE TO DEFENCE SERVICE

32.     It was common ground that there is no Statement of Principles with respect to nephrosclerosis.  To succeed in her claim, in the absence of a Statement of Principles, Ms Provost needed to show, to a level of reasonable satisfaction, that her diagnosed condition “arose out of or was attributable to” her service. 

33.     These words in the Act have been interpreted as requiring that a causal connection exist between service and the relevant medical condition.  The leading case is Repatriation Commission v Law where at both first instance and before the Full Federal Court[16] the requirement that there be a causal connection was confirmed, a point upheld by the High Court.[17]

[16]Respectively, Law v Repatriation Commission (1980) 29 ALR 64; Repatriation Commission v Law (1980) 31 ALR 140

[17]       Repatriation Commission v Law (1981) 147 CLR 635

34. In the Full Federal Court it was said of the similarly worded provision then at s 101 of the Repatriation Act 1920 (Cth):

In s.101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.

The Act does not say death which is "caused by" or "results from" his war service - phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of". …..

It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is … a contributing cause. …

35.     The correctness of this approach was more recently confirmed by the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115. A causal relationship was to be distinguished from one that was merely temporal; in other words, service in truth must be a cause, as distinct from being part of the circumstances in which a cause operates.

36.     We would observe at the outset that the respondent did not call any medical evidence that might suggest that Ms Provost’s nephrosclerosis was unrelated to her defence service, or evidence that undermined Drs Row and Douglas’ conclusions. Bearing in mind that the doctors were in solid agreement on the points as we have outlined above, we are satisfied that the necessary connection between Ms Provost’s condition and her work as a dental assistant is made out.

37.     The facts of which we are satisfied are as follows.  On enlistment, Ms Provost had no abnormal findings in relation to her kidneys or blood pressure, so we can accept that she was in a healthy state at that time. We accept the evidence of both doctors that chemically-caused renal disease typically produces no signs and symptoms until late in its course, unless provoked by an acute event.  We are very much persuaded by the congruence of the doctors’ opinions that tear gas exposure in this instance acted in that way, the doctors agreeing that although there is no evidence that tear gas is itself nephrotoxic to humans, its nonspecific chemical assault on the body would have been sufficient to produce acute signs and symptoms of Ms Provost's chronic renal failure. 

38.     We accept the doctors’ evidence that between 1975 and 1990, Ms Provost’s lack of signs of renal disease was consistent with progression of the disease.  Occasional proteinuria should be understood, with the benefit of hindsight, as flagging the presence of an underlying disease.  We accept the agreed evidence that intervening normal urine tests do not refute the continued progress of the disease, and that the disappearance of proteinuria does not of itself indicate that a patient's kidneys have recovered.   

39.     The respondent implied that the evidence here remained speculative, a matter of mere conjecture on the part of Drs Row and Douglas.  That suggestion is without foundation.  The doctors re-examined the facts of the case and postulated a probable explanation consistent with scientific research in the field. Hindsight enabled them to bring an understanding to disparate facts, some of which were not given proper significance at the time they occurred.

40.     In the end it is our task to decide matters of fact and causation.  It is as well in cases such as this to recall the words of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538:

I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common sense person uninstructed in pathology.

41.     The same we think is true of the inference which ought to be drawn here.  It would be a rare case, in our view, where we would reject the opinion of two doctors, qualified in their fields.  This is more clearly the case when the respondent led no medical evidence at all. 

42.     Mr B Williams who appeared for the respondent appeared to be levelling at the doctors the criticism that what they said amounted to no more than an hypothesis, implying by the use of that word a degree of unreliability.  That approach is not right.  An hypothesis is a tentative explanation for a phenomenon, used as a basis for further exploration.  Here, both doctors considered the sequence of events; they did so carefully and with reference to research findings, which lent support to the hypothesis.   As Glass JA held in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, the evidence of a possibility can be sufficient if the materials justify an inference of probable connection. We see the connection as probable.

43.     For these reasons we set aside the decision under review and substitute the decision that Ms Provost’s condition of nephrosclerosis is defence caused, arising out of or being attributable to her exposure to mercury in the Army Dental Corp.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member and Associate Professor JB Morley RFD, Member

Signed:              ..................[sgd].................

Dominique Mayo, Associate

Date of Hearing  24 February 2011
Date of Decision  24 February 2011
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Terence O'Connor Solicitor
Advocate for the Respondent   Mr B Williams