Ramon Will and Repatriation Commission
[2012] AATA 710
•15 October 2012
[2012] AATA 710
Division VETERANS' APPEALS DIVISION File Number(s)
2010/1669
Re
Ramon Will
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 15 October 2012 Place Hobart The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member
VETERAN’S PENSION – AVM condition – whether war caused – whether failure of appropriate medical treatment materially contributed to or aggravated the disease – Tribunal found no evidence of inappropriate medical treatment – disease not contributed to in a material degree or aggravated by defence service – decision under review affirmed
Veterans' Entitlements Act 1986, ss 5(d), 9, 70 120(4)
Young and Repatriation Commission [1990] AATA 466
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
BACKGROUND
The applicant, Ramon Will seeks the review of a decision of the Veterans Review Board which confirmed a decision of a delegate of the Repatriation Commission (the Commission) that his claim for arteriovenous malformation of the brain (AVM) was not causally related to his service with the Royal Australian Navy (RAN).
Mr Will served as a marine engineer with the RAN between 29 May 1984 and 30 June 2004. His service included a period of operational service between 12 March 1991 and 3 May 1991. Mr Will is however relying on his eligible defence service as providing the causal basis for his claim.
Mr Will has a number of accepted conditions being sensorineural hearing loss, tinnitus, tinea of the skin and pomholys.
It is not in dispute that Mr Will suffers from an AVM which is a congenital malformation of the brain for which he underwent surgery on 19 June 2006. Following the surgery Mr Will suffered a postoperative haemorrhage which resulted in severe disability. His current symptoms include numbness, tingling and temperature variations in the right hand which significantly restrict the use of his hand. Mr Will has since learnt to write with his left hand.
THE ISSUE
It is contended by the applicant that due to inappropriate medical treatment and misdiagnosis, there was a permanent worsening of his existing AVM condition.
The issue for the Tribunal to determine is whether the applicant is entitled to have the condition of AVM accepted as defence caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the VE act).
THE LEGISLATION
Mr Will’s AVM condition is classified as a disease under the VE Act. A war caused disease is defined in section 9 of the VE Act which states that an injury or disease suffered by a veteran shall be taken to be war caused if it was contributed to in a material degree or was aggravated by any eligible war service rendered by the veteran.
The relevant standard of proof is that contained in section 120(4) of the VE Act which provides that the Tribunal should decide the matter to its reasonable satisfaction, that is, on the balance of probabilities.
The eligibility provisions for payment of a pension under the VE Act are found in section 70. As the applicant’s AVM disease was contracted prior to his period of service, subparagraph 5(d) relevantly provides that the Tribunal must be satisfied that the disease was contributed to in a material degree or was aggravated by the applicant’s defence service.
HEAD INJURY
The applicant’s evidence regarding the circumstances of his head injury sustained on board the HMAS Stalwart on 3 June 1986 does not appear to be in dispute. The incident occurred when the ship was at anchor in Honiara Harbour in the Solomon Islands. Mr Will described how he hit his head on the top of a hatchway whilst running through the ship following an announcement on the PA system ordering the men to urgently return to the ship. Mr Will said that his next memory was waking up on a stretcher on his way to the sick bay. The cuts to his head required the insertion of three or four stitches and he suffered headaches for about one week after the incident.
Mr Will said that he was placed under the supervision of an able seaman stoker for approximately 12 hours following the incident. Mr Will believed that he was unconscious following the incident for approximately 5 minutes which he estimated was the time taken to place him on a stretcher and strap him in. The only medication prescribed was panadol.
Mr Will did not dispute the contents of the Incident Report which was contained at page 159 of the T Documents. That document records Mr Will as hitting his head when coming through a hatch, sustaining a laceration to the top of his scalp which required four silk sutures and that he was excused from duty for one day.
Evidence was called from Dr James Marwood, the applicant’s father-in-law and a registered medical practitioner who worked in locum practices in Tasmania and on the mainland. It was Dr Marwood’s opinion that if a CT scan had been available, that is “within easy reach”, it would have been very desirable for Mr Will to have had a scan following his loss of consciousness as a result of his collision with the bulkhead. The reason being Dr Marwood said, was the risk of intracranial bleeding following a knock on the head of that severity.
Associate Professor Brian Chambers, consultant neurologist, did not consider that Mr Will had sustained a significant head injury. He noted that the period of unconsciousness was no longer than 5 minutes and that when Mr Will was examined by the ship’s surgeon, there were no signs of significant head injury other than a 4 cm long scalp wound that required four stitches. He said that the records disclose that Mr Will was subsequently excused from duty for 24 hours and although he suffered headaches for approximately seven days afterwards, there were no other clinical symptoms indicating a significant head injury.
Associate Professor Chambers suggested that the circumstances in 1986 need to be taken into consideration and he very much doubted that there was a CT scan in Honiara at the time. Associate Professor Chambers had visited the Honiara Harbour hospital in 1979. He suggested that by the time HMAS Stalwart returned to Australia, Mr Will would most likely have fully recovered from his injuries and that it was very unlikely that a CT scan would have been performed at that late stage. He noted that CT was not available or accessible in the mid-1980’s, even in Melbourne and Sydney. Associate Professor Chambers said that he returned to Australia following overseas training in 1984 to the Austin and Heidelberg Repatriation Hospitals neither of which had a CT scan. He said that it was not until 1985 that the Heidelberg Repatriation Hospital obtained a CT and the Austin Hospital in around 1986. There was a long waiting list for CT scans at that time and a patient who had a minor injury such as Mr Will, would not have been sent for a CT scan. He suggested that people with minor injuries such as Mr Will would have been exposed to unnecessary radiation with a CT scan and that something important would have been revealed in only about 5% of patients.
In support of his opinion Associate Professor Chambers referred to a Canadian paper that had been published in The Lancet in 2001 which concerned the Canadian CT Head Rule for patients with minor head injury. It was Associate Professor Chambers’ opinion that Mr Will would not have satisfied any of the criteria listed in that study to warrant a CT scan.
It was Associate Professor Chambers’ evidence that even if a CT scan had been performed at the time, there was no guarantee that a non-contrast study would have demonstrated an AVM and an aneurysm would most likely have escaped undetected. He said that Mr Will’s present predicament did not result directly from the AVM or associated aneurysms, but from operative treatment which had been undertaken to prevent bleeding complications. He noted that Mr Will had undergone a very difficult operation in order to try and secure the AVM and that there was a very high risk of further bleeding.
It was Associate Professor Chambers’ opinion that the treatment could have been undertaken differently considering the high risk of complications from surgery, and suggested that "endovascular coiling” would have been a safer alternative to an open operation on the aneurysm. A further alternative would have been to treat Mr Will medically that is, with prescription medication. Associate Professor Chambers suggested that if Mr Will had not undergone the operation, he may not be in the predicament that he is in at present. In response to a question as to whether it is likely that the AVM had worsened as a result of service given that it was not diagnosed until 2004, Associate Professor Chambers responded that he would not have expected any significant growth between 1986 and 2004 but said that the outcome may have been different if the AVM had been operated on in 1986. Associate Professor Chambers went on to state however, that as the devastating cerebral haemorrhage occurred as a complication of surgery rather than spontaneous bleeding, if Mr Will had undergone surgery in 1986 it is possible that he could have suffered the devastating stroke 18 years earlier.
RIGHT-HAND NUMBNESS/PINS AND NEEDLES SENSATION
It was Mr Will’s evidence that he first experienced pins and needles sensation in his right hand in around 1999. Prior to that in around 1996, he felt numbness initially in his right thumb and by 1999 in his whole hand. Mr Will said that it was in 1999 when he consulted chief medic Dale regarding his cholesterol and also mentioned the numbness in his right hand which was then occurring more frequently. Mr Will stated that Mr Dale had suggested that the cause was either carpal tunnel syndrome or a pinched nerve but did not recommend any form of treatment.
Mr Will said that the symptoms continued and intensified but were not painful. He relied on chief medic Dale who was the medic responsible for some 300 men and believed that his condition could not be treated. It was in 2006 after Mr Will left the Navy, that he first sought medical treatment for the tingling in his hand and his headaches. His wife became concerned about his headaches and the tingling in his hand and contacted her father, Dr James Marwood, who suggested that Mr Will consult a physician at Calvary Hospital. The physician was more concerned about the tingling in his hands than the headaches and ordered a CT scan which subsequently revealed an AVM. Dr Marwood arranged for Mr Will to have surgery performed by Dr Morgan in Sydney. Initially following the surgery during which both aneurysms were clipped, Mr Will did not experience any problems. However further surgery was required when his dilated left pupil signified a brain haemorrhage. A third operation was necessary when Mr Will’s brain swelled following which he was put into an induced coma for 10 days. When Mr Will awoke after surgery, the whole of the right side of his body was numb. He said that he is still left with right-hand numbness.
It was put to Mr Will during the course of cross-examination that none of his service medical records refer to any problems with right hand numbness or tingling sensations. His upper extremities which would include his hands and arms, were recorded as normal. Mr Will agreed that the problem with his hand was minor and not particularly troubling. He said that the problems were experienced every now and then and that he did not think there was much point "in bringing it up". Mr Will confirmed that in 1999 he underwent a number of tests which included pathology, blood and liver function tests as well as routine sight and hearing tests. He understood that the blood tests were with respect to his high cholesterol readings. He agreed that none of the medical records refer to problems with his hand and nor is there any mention in Dr Dale's medical notes of any problems with his hand.
Mr Dale described his role of chief medic as treating any medical condition that presented by a sailor for a period of up to 72 hours at which time a medical practitioner would be consulted if the condition persisted. His qualifications at the relevant time included a Diploma in Remote Locality Health and an Advanced Diploma of Paramedical Science from Monash School in ambulance study. He agreed that his role on HMAS Hobart was similar to that of an ambulance officer. Mr Dale said that doctors were not generally present on any of the ships on which he had served during his naval career including HMAS Hobart.
Mr Dale recalled treating Mr Will but was unsure of the date. He remembered that he presented with an altered sensation, pins and needles associated with his right lower arm including his wrist. He said that Mr Will had asked him whether he thought he had carpal tunnel syndrome. Mr Dale said that he would not have made a diagnosis of carpal tunnel syndrome which can only be diagnosed by a doctor. Mr Dale said that he would have recorded the condition as pins and needles or altered sensation. He did not recall whether he had prescribed any treatment or had referred Mr Will to any doctors or specialists.
In response to a question as to what procedure he would have followed when confronted with a condition with which he was not familiar, Mr Dale said that he would usually suggest that the sailor report back to him in three or four days and if the condition had not resolved the protocol was to automatically have the member assessed by a doctor. Mr Dale did agree when the suggestion was put to him under cross-examination, that there was a possibility that he had not followed "proper procedure" on this occasion. He had little recollection of the consultation other than Mr Will had presented with pins and needles sensation principally associated with the right wrist or the upper part of the hand.
Mr Dale described the procedure for the recording of medical appointments and the keeping of records but was unable to explain why there was no available record of this particular appointment with Mr Will. Mr Dale said that he did not record every discussion but would have made a record if he had prescribed any medication. It was his recollection that there was only one occasion when Mr Will consulted him regarding tingling in his hand. He did not specifically recall Mr Will’s consultations regarding cholesterol issues. Mr Dale believed that the symptoms described by Mr Will related to a pinched nerve but he really had little recollection of the consultation except that he recalled Mr Will asking whether it could be carpal tunnel. Mr Dale agreed under cross-examination that it was not "within his realm to diagnose carpal tunnel syndrome" and that he would have referred Mr Will to a doctor if he had returned to see him. This was the protocol that he had followed many times in the past. If a doctor was not readily available he would "do a ring around to other navy depots" to find a doctor. If the condition was serious, he would have taken the member to St Vincent Outpatients. Mr Dale said that at that stage in Hobart he knew very little about carpal tunnel syndrome and would have had to use a reference book for information regarding its symptoms. He had no recollection of having referred to a reference book on this occasion.
DISCUSSION AND FINDINGS
I accept Mr Dale’s evidence regarding his role and duties as chief medic and that his qualifications did not enable him to diagnose medical conditions such as carpal tunnel syndrome. I accept that Mr Will consulted Mr Dale in 1999 regarding cholesterol issues and mentioned the tingling and numbness in his right hand.
There are a number of records of medical consultations during 1999 but none of the records contain a reference to numbness or pins and needles in Mr Will’s right hand. It was suggested on behalf of the applicant that the consultation regarding the right hand symptoms was either not recorded or the medical record has been misplaced. Both Mr Will and Mr Dale recall a discussion regarding pins and needles in the right hand and a suggestion that it could be carpal tunnel syndrome. Although there is no conclusive explanation of the absence of a record regarding this discussion, I except Mr Dale’s evidence that he would have kept a record if he had prescribed medication.
Mr Will agrees that Mr Dale did not suggest any treatment for his hand nor did he recall that Mr Dale recommended that he return to see him if the problems persisted. It was Mr Will’s evidence that he did not believe that the condition could be treated. He agrees that he did not follow up the appointment with Mr Dale or any other medical officer during his service.
There are a number of pathology test results for 1999 as well as routine eye sight and hearing tests. Mr Dale’s name appears on some of these records contained in the T Documents as the CPI medic.
Mr Will was asked about the routine medical examinations that were performed each year once a member attained 40 years of age. There is a record at page 56 in the T Documents of a medical examination dated 26 August 1997. The upper extremities are recorded as normal. It was Mr Wills evidence that although he was experiencing some numbness in his thumb he did not feel it was worth reporting at the time. There is a further record of a medical examination dated 29 June 2000 at page 34 in the T Documents. The upper extremities are again recorded as normal. Mr Will agreed under cross-examination that the problem with his hand was minor and not troubling him at that time. The report dated 11 June 2004 was undertaken at the time of Mr Will’s discharge and again does not record any muscular pain or weakness or any joint pain. Although Mr Will said that he experienced weakness in the right hand “every now and again”, he said that he "didn't think that there was much point in bringing it up".
It is accepted that Mr Will suffered from the congenital AVM condition prior to joining the Navy and that he is now incapacitated following surgical procedure which was undertaken after he left the Navy. The issue to be determined is whether the AVM condition was contributed to in a material degree or aggravated by his defence service within the meaning of section 70(5)(d). The alleged contributing factor is the absence of appropriate medical treatment and failure to diagnose the AVM condition. It is contended that there were two opportunities during Mr Will’s period of service when the condition could have been diagnosed had appropriate medical treatment been undertaken. They were firstly, when he sustained an injury to his head in 1986 when on board HMAS Stalwart and secondly, in 1999 when he reported numbness and pins and needles sensations to chief medic Dale.
Mr Wills AVM condition was first diagnosed in 2006 following a CT scan and he underwent an operation to secure the AVM on 19 June 2006. It was contended on behalf of the applicant that if a CT scan had been performed following his head injury in 1986, his AVM would have been discovered at that time and could have been treated at a much earlier stage.
It was Associate Professor Chambers’ evidence however, that even if a CT scan had been performed in 1986, the AVM may not have been detected. It was his opinion that the medical records do not suggest that Mr Will sustained a serious injury and that it is unlikely that a CT scan would have been recommended even if one was available.
The applicant relied on the evidence of Dr Marwood, a general practitioner who suggested that given Mr Will’s loss of consciousness, a CT scan would have been desirable if one was available.
The Tribunal however prefers the evidence of consultant neurologist Associate Professor Chambers who considered that Mr Will’s five minute loss of consciousness was not significant and the nature of the injury did not warrant a CT scan. It was his evidence that it is doubtful that a CT scan would have been available in Honiara at that time.
Section 70 subsection 5(d) requires either a material contribution or aggravation. The meaning of this term was discussed by the Tribunal in its decision Young and Repatriation Commission [1990] AATA 466. The Tribunal referred to a number of previous decisions and stated at paragraph 31:
“In each case the reference to materiality serves to make it clear that the contribution is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. Davies J. said that:- "The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie dictionary namely, 'of substantial import or much consequence' but rather in its legal since of 'pertinent' or 'likely to influence'."
It is also clear from the authorities that the term “aggravation” means that the disease must have been made worse and not simply become worse during service.
There is no evidence to suggest that there was anything about the medical treatment received by Mr Will following his head injury that either materially contributed to or aggravated his AVM condition. The Tribunal accepts the evidence of Associate Professor Chambers that the treatment delivered was appropriate in the circumstances and accordingly finds that there was no connection between the AVM and the head injury sustained on this occasion.
The consultations with chief medic Dale in 1999 were in relation to Mr Will’s cholesterol readings and for routine eyesight and hearing tests. The evidence was, which the Tribunal accepts, that during one of those consultations Mr Will informed chief medic Dale that he was experiencing numbness and/or pins and needles sensations in his right hand. The issue for the Tribunal to determine is whether Mr Dale failed to appropriately respond to the symptoms reported by Mr Will by not referring him to a medical specialist who could have diagnosed his AVM. It is contended that Mr Dale’s failure to refer Mr Will constituted inappropriate medical treatment which either materially contributed to or aggravated his AVM. It is alleged that the AVM could have been diagnosed and treated in 1999.
The Tribunal accepts that the possibility of carpal tunnel syndrome was discussed during the subject consultation with chief medic Dale however does not accept Mr Will’s evidence that it was Mr Dale who suggested this diagnosis. The Tribunal accepts Mr Dale's evidence that he did not possess the qualifications to make such a diagnosis. It was Mr Dale’s recollection that he considered that the symptoms could be related to a pinched nerve and would have suggested that Mr Will return to see him if the symptoms persisted. It was Mr Will’s evidence that he did not consider following his consultation with Mr Dale, that the symptoms that he was experiencing in his right hand could be treated. This is not the case for carpal tunnel syndrome which can be successfully treated by surgery. This inconsistency leads the Tribunal to conclude that it was Mr Will who raised the possibility of carpal tunnel syndrome and that the condition was not seriously considered by Mr Dale.
It was Associate Professor Chambers’ evidence that there are a number of causes for sensory symptoms in the hand and that the suggestion that Mr Will return if symptoms persisted was perfectly reasonable in the circumstances. Although under cross-examination Mr Dale agreed that there was a possibility that he did not follow his usual procedure on this occasion, there is no basis upon which the Tribunal should conclude that this was the case.
In subsequent consultations Mr Will did not refer to the sensory symptoms in his hand and agreed that they were either not troubling him at the time or were minor. Given Mr Will’s evidence regarding the nature of the sensory symptoms in his hand during this period of service, the Tribunal does not find that Mr Dale’s treatment was inappropriate in the circumstances. There is no basis for a conclusion that the treatment materially contributed to or aggravated the AVM condition or that the condition was made worse as a result of such treatment. There was no persuasive medical evidence that the AVM condition was aggravated or made worse because of a failure to diagnose the disease during Mr Will’s period of service with the Navy. Associate Professor Chambers said there is no evidence that there is any connection between early treatment of an AVM and complications resulting from surgery. He did not consider that even if the same surgery had been undertaken in 1986 that the outcome for Mr Will would have been any better.
For these reasons the Tribunal finds that there is no connection between Mr Will’s AVM condition and his service and affirms the decision under review.
I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
[Sgd]
Administrative AssistantDated 15 October 2012
Date(s) of hearing 4, 6 June and 8 August 2012 Counsel for the Applicant Mr Jonathon McCarthy Solicitors for the Applicant Mackie Crompton Counsel for the Respondent Mr Ken Rudge Solicitors for the Respondent Repatriation Commission
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