Ricketts and Military Rehabilitation and Compensation Commission (Compensation)
[2024] ARTA 666
•28 October 2024
Ricketts and Military Rehabilitation and Compensation Commission (Compensation) [2024] ARTA 666 (28 October 2024)
Applicant:Xavier Ricketts
Respondent: Military Rehabilitation and Compensation Commission
Tribunal Number: 2024/0182
Tribunal:Member A McLean Williams (second review)
Place:Brisbane
Date:28 October 2024
Decision:The Tribunal affirms the decision under review.
................[Sgnd]............................................
McLean Williams
Catchwords
VETERAN’S REVIEWS BOARD – Where an Applicant has sought review of a decision by the Veteran’s Review Board – Where Applicant engaged in several periods of various military deployments – where Applicant claims he was exposed to high levels of stress from sustained periods of work – whether the Applicant has rendered “eligible service” – Applicant lodged a claim for overactive bladder/sensory urgency and nocturia - whether there was aggravation to an underlying condition caused by military service – the Tribunal finds there is a lack of information before the Tribunal – decision affirmed.
Legislation
Administrative Review Tribunal Act 2024
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988Statement of Reasons
On 10 January 2024, the Administrative Review Tribunal received an Application for Review[1] from the Applicant, an Army Officer, Mr Xavier Patrick Ricketts, seeking review of a decision by the Veteran’s Review Board (‘the VRB’) made on 13 November 2023, that had affirmed a prior determination by a Delegate of the Respondent dated 12 August 2022 which had denied a claim by Mr Ricketts for a condition described as overactive bladder/sensory urgency and nocturia, pursuant to the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the MRC Act’).
[1] T1/3-11.
Background and Chronology
Mr Ricketts was born on 9 January 1992 and enlisted in the Australian Army on 21 January 2011,[2] and now remains as a serving member of the Australian Army.
[2] T4/27; 78/40.
Mr Ricketts has rendered several periods of both “warlike” and “non-warlike” service on various military deployments undertaken between October 2018 and November 2021.[3]
[3] T4/26-27.
On 16 May 2022, Mr Ricketts lodged an initial claim for overactive bladder/sensory urgency and nocturia, which he claimed had occurred on 1 February 2020:
“Whilst rendering warlike service in 2018 and 2019 I was exposed to high levels of stress from sustained periods of work (in excess of 14 hours a day) as well as numerous negative environmental factors. I believe there is a reasonable hypothesis that this warlike service made a material contribution to either the cause or the contribution to this condition. The urologist noted in my surgery report of a slightly enlarged prostate, trabeculated bladder and petechial haemorrhages. There are multipole causes for these issues which can be related to the nature of this warlike service, such as hormone imbalances arising from increased levels of stress leading to and [sic] enlarged prostate (one of the potential causes of this condition).”[4]
[4] T8/41.
On 12 August 2022, a Delegate of the Respondent decided to reject Mr Rickett’s initial claim, with the Delegate being reasonably satisfied that Mr Rickett’s condition was not related to either ‘warlike’ or ‘non-warlike’ service undertaken by Mr Ricketts.[5] In making that determination the Delegate primarily relied upon the evidence of Mr Rickett’s treating urologist – a Dr Peter Campbell - who had opined that Mr Rickett’s condition was ‘idiopathic’ (ie: of unknown origin).
[5] T7/37
On 23 August 2022, Mr Ricketts applied for a review of the Delegate’s decision to the VRB.[6]
[6] T5/30-32.
In a submission to the VRB Mr Rickett attributed his condition to the fact of his increased consumption of caffeine whilst on deployment:
“In my initial claim for this condition I stated that this was caused by “rendering warlike service in 2018 and 2019 I was exposed to high levels of stress from sustained periods of work (in excess of 14 hours a day)”. In order to cope with this vastly increased workload and very long work days I greatly increased my consumption of caffeine. Prior to deploying I was consuming 1-2 standard shot coffee’s per day (approximately 80mg of caffeine). However, by the mid-point of my trip I was consuming in excess of 4-5 coffee’s per day, as well as 2 high caffeine drinks supplied by the Messing and Dining Facilities known as “Ripits” with 140mg of caffeine in each. This resulted in me consuming between 440-480 mg of caffeine per day for the latter half of my deployment, approximately three months in duration. Upon returning to Australia, I was able to gradually reduce the amount of caffeine I consumed to my prior level over a period of approximately nine months (around the end of 2019). I increased my intake of caffeine over this deployment period in an attempt to remain alert and productive during extended working hours, which often were done at irregular hours overnight or early in the morning. I therefore believe this increased intake is directly linked to my service whilst on this warlike operation”.[7]
[7] T12/102.
On 11 August 2023, in response to a request from the VRB, Dr Campbell prepared an independent medical report (‘IMR’) about Mr Rickett’s condition. Dr Campbell advised that Mr Rickett’s nocturnal bladder symptoms were best described as “idiopathic sensory urgency”, noting that:
“On the balance of probabilities it is unlikely that the bladder condition is related to the Applicant’s medical service. Certainly stress, anxiety, and caffeine consumption can aggravate this condition, but the aggravation usually settles once these aggravators have been removed. This condition is poorly understood and is uncommon. Unusual bladder symptoms can have a psychosocial overlay and could form a component of posttraumatic stress disorder, but if occurring in isolation are unlikely to suggest this diagnosis.
However, despite this lack of knowledge on the condition, it is my opinion is that the Applicant’s service did not cause the condition.
I am happy to concede there is a correlation in the timeline with the reporting of the condition and the Applicant’s service. However, I believe that this is related to the stressors that were present, aggravating the condition rather than causing the condition.”[8]
[8] T14/112.
On 13 November 2023, the VRB affirmed the Delegate’s original decision, finding that the available material did not raise a reasonable hypothesis connecting Mr Rickett’s condition with his warlike or non-warlike service.[9] In making that determination, the VRB placed weight on the opinion expressed by Dr Campbell that this is an idiopathic condition, such as to find that there was no medical evidence to establish the necessary causal connection between the claimed condition and Mr Rickett’s military service.
[9] T2/17-22.
On 10 January 2024, Mr Ricketts made this Application for Review to the Administrative Appeals Tribunal (as it was then known), thereby seeking a further review of the VRB decision.[10]
[10] T1/3-11.
On 11 June 2024, Dr Campbell provided a supplementary IMR. In that report, Dr Campbell did the following:
-Raised a measure of uncertainty regarding Mr Rickett’s current clinical presentation and the correct diagnosis for the condition; given that Dr Campbell had not seen or examined Mr Ricketts since 17 August 2022, and noting that his diagnosis at that time of idiopathic sensory urgency was a label that had been applied by Dr Campbell as a “working diagnosis”, only. In this context, Dr Campbell commented that “it would be reasonable to undertake a fresh review of his medical condition to see whether this diagnosis is still accurate” as he was “uncertain” regarding Mr Ricketts’ current clinical presentation;[11]
-Rejected Mr Rickett’s hypothesis that his warlike service had been the cause for the onset of the condition, noting that “stressors suffered during deployment have not caused a bladder pathology”.[12] Dr Campbell was also unwilling to accept that Mr Rickett’s non-warlike service may have caused any worsening of the underlying condition, yet conceded that the stressors of his deployment (which were noted to include sleep deprivation, anxiety and high caffeine consumption) may have temporarily caused some aggravation of Mr Ricketts’ symptoms, which improved once those stressors were eliminated.[13]
[11] ST3/45.
[12] ST3/425.
[13] ST3/424-425.
On 8 July 2024, the Respondent proposed that Mr Ricketts be re-examined by Dr Campbell, in order for Dr Campbell to be put in a position to be able to prepare an updated IMR. On the same date Mr Ricketts refused to be re-examined, and has since confirmed to the Tribunal that this remains his position.
ISSUES FOR THE TRIBUNAL
As a preliminary matter, the Tribunal needs to consider whether Mr Ricketts has rendered “eligible service” covered by the MRCA, as well as the correct diagnosis and date of clinical onset for his claimed condition.
Mr Ricketts has rendered both ‘warlike’ and ‘non-warlike’ service, such that the Tribunal must determine that his claimed condition qualifies as a ‘service injury or disease’, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination: MRCA s.335(1). This requires the Tribunal to engage in the steps identified by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
-whether the material before the Tribunal points to a hypothesis connecting Mr Ricketts claimed condition with the circumstances of his warlike or non-warlike service;
-whether a Statement of Principles (‘SOP’) is in force in relation to the claimed condition;
-if an SOP is in force, whether the hypothesis raised by the material meets one (or more) of the SOP factors; and
-whether the raised hypothesis is reasonable, having regard to all of the material before the Tribunal. If it is not a reasonable hypothesis, the Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Ricketts claimed condition was war-caused (‘the Deledio Steps’).
Has Mr Ricketts rendered eligible service covered by the MRCA?
The MRCA covers current and former Australian Defence Force members who have rendered service after 30 June 2004. Mr Ricketts has been a member of the Australian regular Army since 21 January 2011, including his rendering periods of both warlike and non-warlike service between October 2018 and November 2021. As such, Mr Ricketts has rendered ‘eligible service’, as now covered by the MRCA.
What is the correct diagnosis and date of clinical onset for Mr Ricketts claimed condition?
On the basis of an expert urological opinion expressed by Dr Campbell in a DVA diagnostic assessment form dated 21 July 2022,[14] Mr Ricketts has a condition best described at that stage as one of “idiopathic sensory urgency”. Significantly Dr Campbell is the only medical expert to have provided any opinion or treatment for Mr Ricketts for this condition.
[14] T11/88.
In a report dated 11 June 2024, Dr Campbell described the diagnosis of idiopathic sensory urgency as a “diagnosis of exclusion”, and indicated that further medical investigations were warranted as part of efforts to better understand the causes for Mr Ricketts’ symptomatology.
In terms of date of onset, the available medical evidence suggests that Mr Ricketts first became aware of his symptoms around February 2020.[15]
[15] T11/80; T11/88; T11/95.
The Deledio Steps:
There is not any SOP which is in force in relation to Mr Ricketts’ claimed condition. In these circumstances the Tribunal must independently assess whether Mr Ricketts’ raised hypothesis (or any hypothesis) is reasonable.
A reasonable hypothesis will be established if the hypothesis is:
-More than a possibility,[16] not fanciful or unreal, and is consistent with known facts;
-Pointed to by those facts, even though not proved on the balance of probabilities;
-Not contrary to any proved or known scientific facts; and
-Not obviously fanciful, impossible, incredible, absurd, ridiculous, untenable, too remote, or too tenuous.
[16] Repatriation Commission v Bey [1997] FCA 1347
Mr Ricketts posits that whilst rendering warlike and/or non-warlike service during 2018 and 2019, he was exposed to high levels of stress and was required to undertake very long hours of work (in excess of 14 hours per day), and was exposed to various environmental factors that caused him to significantly increase his caffeine consumption as a ‘coping mechanism’, such as to now hypothesise that his increased caffeine consumption was directly linked to his service in both ‘warlike’ and ‘non-warlike’ operations. Here, Mr Ricketts relies upon the “Initial Liability – CMA opinion” dated 7 June 2022 that acknowledges that caffeine intake can be a relevant factor for a syndrome characterised by urinary urgency,[17] and seeks to rely upon the IMR by Dr Campbell dated 11 August 2023 in which Dr Campbell had acknowledged that stress and caffeine consumption may be aggravating factors for symptoms of urinary urgency.
[17] T9/52.
Ultimately however, Mr Rickett’s posited hypothesis is no more than a possible connection, and is not supported by any medical opinion or evidence, and is therefore insufficient in achieving the status of a reasonable hypothesis. To this end, the Tribunal notes that Dr Campbell has stated “….despite the lack of knowledge of this condition, it is my opinion that the applicant’s service did not cause the condition.[18] To the Tribunal’s way of thinking that becomes fatal to Mr Rickett’s posited hypothesis qualifying as a reasonable hypothesis.
[18] T14/112.
Furthermore, the Tribunal concludes that the posited hypothesis cannot attain the requirement that it be classified as a reasonable hypothesis also because of the following:
-It is not consistent with the available contemporaneous evidence regarding Mr Ricketts’ military deployments which were described by him in a RtAPS Questionnaire Form dated 7 May 2019 as a ‘positive’ experience’,[19] a ‘very good’ experience,[20] and as having caused mostly ‘no stress’.[21] Mr Ricketts also indicated that he had virtually no issues in responding to stress,[22] and that his overall experience of deployment was ‘really good’.[23] In a mental health file note completed on 7 May 2019 no issues of concern were identified regarding Mr Ricketts’ ability to deal with workplace or personal stressors whilst deployed, despite these being recorded as having given rise to an extremely busy work tempo usually working 14 plus hours per day with some periods of 16-18 hour working days.[24]
-In a post-deployment health screen dated 7 May 2019 Mr Ricketts only reported medical symptoms were those of a sore right knee from him using a treadmill, and a persistent cough attributed to poor air quality whilst on deployment.[25]
-In an outpatient clinical record dated 7 May 2019, Mr Ricketts only reported ‘knee pain’, a ‘persistent cough’, and ‘pinguecula of the right eye’;[26]
-In a mental health file note dated 15 October 2019 Mr Ricketts described his deployment experience as “positive overall”, despite the high tempo and workload, and that he was “always feeling tired”;[27]
-In a Notification of Completion of Psychological Screen form dated 15 October 2019 the only outcome was recorded as “no follow up required”,[28] Mr Ricketts completed a K10 psychological assessment and reported therein only a ‘low’ level of psychological distress;[29] and
-In a Post Deployment Health Assessment dated 15 October 2019 Mr Ricketts ticked ‘no’ to having any current injuries or illnesses, and confirmed that his lifestyle “seldom” placed him under too much pressure.[30]
[19] T15/166.
[20] T15/167
[21] T15/168
[22] T15/170.
[23] T15/171
[24] T15/191.
[25] T11/73
[26] T11/72.
[27] T15/193.
[28] T15/158.
[29] T15/160-161
[30] T15/235.
In light of the foregoing, the Tribunal determines that Mr Rickett’s raised hypothesis is not able to be categorised as a reasonable hypothesis.
For completeness there are however also potentially two alternate hypotheses that should also now be considered:
-Mr Rickett’s condition (with a clinical onset in 2020), was aggravated (rather than caused) by stressors resulting from his non-warlike service (particularly that between 23 June 2021 and 17 November 2021), such that s.27(d) of the MRCA is applicable; or
-The signs or symptoms of Mr Rickett’s claimed condition (with a clinical onset in 2020) rather than the condition itself were aggravated by stressors resulting from his non-warlike service between 23 June 2021 and 17 November 2021, such that s.30 of the MRCA becomes applicable, instead.
Aggravation to injury or disease – s.27(d):
In order to be an aggravation for the purpose of section 27(d) of the MRCA, the aggravation must be of an injury or disease, and must be more than only a temporary worsening of symptoms.[31] Whilst the degree of aggravation need not be severe, it still must be more than minimal,[32] with a duration that is more than occasional or transient.[33] In the Tribunal’s view, Mr Ricketts’ condition could not be said to have been aggravated by his non-warlike service in 2021 such that the requirements of section 27(d) of the MRCA are not satisfied. As basis for this conclusion, the Tribunal notes the following:
-there is an absence of medical evidence before the Tribunal to show Mr Ricketts’ current clinical diagnosis, including the nature and extent of any aggravation to the underlying condition was caused by any military service;
-In his supplementary report dated 11 June 2024, Dr Campbell notes that it is unclear whether the stressors of Mr Ricketts’ relevant military service had caused any worsening of the underlying condition, but “certainly the worsening of symptoms appears to be temporary”;[34]
-In the IMR by Dr Campbell dated 11 August 2023, Dr Campbell opined that anxiety and caffeine consumption can aggravate idiopathic sensory urgency, yet the “… aggravation usually settles once these aggravators have been removed”;[35]
-In his report dated 7 February 2022, Dr Campbell indicated that Mr Ricketts symptoms whilst on deployment in 2021 had “improved substantially” upon his return to Australia and his regaining a normal sleep pattern;[36] and
-A report by Dr Campbell dated 28 January 2021, which indicates that the symptoms from Mr Ricketts claimed condition have abated.[37]
[31] Repatriation Commission v Yates (1995) ALD 80.
[32] Nowlan v Repatriation Commission (1991) 30 FCR 369.
[33] Re Conway and Repatriation Commission (1988) 14 ALD 673.
[34] ST3/424.
[35] T14/112.
[36] T11/85.
[37] T11/84.
Aggravation to signs or symptoms: s.30:
Section 30 of the MRCA is applicable in circumstances in which signs or symptoms of an injury or disease are aggravated by relevant military service, without there being any aggravation of the underlying condition. An aggravation of signs or symptoms of an injury or disease arises if the pain or restrictions associated with the condition increase or intensify because of a person’s relevant military service.[38]
[38] Larter and Military Rehabilitation and Compensation Commission [2017] AATA 67; Porter and Military Rehabilitation and Compensation Commission [2010] AATA 968
In this case, Dr Campbell has conceded in his supplementary report dated 11 June 2024 that Mr Ricketts’ stressors from deployment (noted as comprising sleep deprivation, anxiety and increased caffeine consumption) had been reported to him by Mr Ricketts as having temporarily caused some aggravation of Mr Ricketts’ symptoms, which then subsequently improved, once these stressors had been removed,[39] such as to be ‘temporary’ in nature. Dr Campbell also indicated that he had not seen Mr Ricketts for approximately two years, such that he was uncertain as to Mr Ricketts current symptomatology, nor even as to the accuracy of his prior working diagnosis.[40]
[39] ST3/424-425.
[40] ST3/425.
In all the circumstances, the Tribunal does not have enough information before it to be able to determine the existence, nature, or extent of any putative aggravation of the symptoms of Mr Ricketts condition now claimed to arise in consequence of any relevant military service.
DISPOSITION
In light of the foregoing, the reviewable decision dated 13 November 2023 must be affirmed by the Tribunal.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent on 11 January 2023.
Date of hearing: 30 April 2024 Solicitors for the Applicant: Self-represented litigant Solicitors for the Respondent: Ms Emma Hunt (Senior Lawyer)
Australian Government Solicitor
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