Rodney Green and Repatriation Commission
[2012] AATA 619
•14 September 2012
[2012] AATA 619
Division VETERANS' APPEALS DIVISION File Numbers
2011/3544
Re
Rodney Green
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 14 September 2012 Place Taree, NSW The reviewable decision is affirmed.
.....................[sgd]...........................................
Mr S. Webb, Member
VETERANS’ ENTITLEMENTS – defence service – right eye – chorioretinal scar and visual field defects – probable viral placoid retinitis during service – cause of virus not known –viral retinitis and chorioretinal scarring not arising out of service – but for test not satisfied – no material contribution or aggravation – decision affirmed
Veterans’ Entitlements Act 1986 (CTH), ss 5D, 70, 119, 120, 196B
Holthouse v Repatriation Commission [1982] FCA 113
Johnston v Commonwealth (1982) 43 ALR 559
Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Law (1980) 31 ALR 140
Re Repatriation Commission and Wicking [1987] AATA 358
Roncevich v Repatriation Commission [2005] HCA 40
REASONS FOR DECISION
Mr S. Webb, Member
14 September 2012
Rodney Green served in the Australian Army. After discharge, he claimed a disability pension in respect of lower limb, hearing and right eye conditions. The lower limb claim has now been accepted as defence-caused and Mr Green has withdrawn his claim in respect of a hearing condition. The only matter remaining for determination on review is Mr Green’s claim in respect of a right eye condition.
During the period of his defence service, Mr Green experienced the sudden onset of right eye symptoms. He sought and obtained medical treatment, but sustained chorioretinal scarring and permanent visual field defects. Mr Green claims that the scarring and related vision-loss is defence-caused and he is seeking an increase in the rate of his disability pension.
The issues to be determined are whether the condition affecting Mr Green’s right eye, including chorioretinal scarring and visual field defects, are defence-caused for the purposes of the Veterans’ Entitlements Act 1986 (CTH) (the Act), and if so, whether Mr Green qualifies for an increase in the rate of disability pension.
Following the hearing, the parties provided written submissions addressing relevant matters arising under s 70 of the Act.
Onset
Mr Green asserts that he first sought treatment for symptoms in his right eye, including partial vision loss, irritation and a watery discharge on or about 19 January 1985[1]. He says that he did so at the 5/7 RAR Regimental Aid Post (RAP) during the Christmas stand-down period. He says that he was treated by a medical orderly with basic first aid training, who thought that he may have dust in his right eye. The treatment simply involved flushing his eye. He was given a device for this purpose and he was told to do this daily for the following week; and that is what he did. His right eye symptoms did not resolve: the discharge, irritation and vision loss persisted. Mr Green asserts that he consulted the RAP for his own regiment one week later, but again he was treated by a medical orderly, who simply flushed his eye and told him to continue to do this daily. Mr Green’s account is not supported by contemporaneous medical records. Mr Magnussen, a former medical orderly and health inspector in the Royal Australian Army Medical Corps, gave evidence that RAPs were operated by medical orderlies and assistants during a holiday stand-down period, and complaints of a minor nature were not always properly recorded[2].
[1] Exhibit A1.
[2] Exhibit A2.
These accounts can be accepted. They were not seriously challenged and they are not controverted by other evidence.
Mr Green says that he was concerned by the persistence of the symptoms in his right eye and thought that something was wrong, so he returned to the RAP a few days later, on 31 January 1985. He was assessed by a medical officer and was referred to an ophthalmologist, Dr Franks. On examination, Dr Franks made a provisional diagnosis of “viral placoid retinitis” and prescribed Prednisolone, a steroid preparation, at the rate of 50mg per day. A second opinion was sought from Dr Donaldson, another ophthalmologist. Even though Dr Donaldson’s assessment is not in evidence, the subsequent clinical records of Dr Franks do not reveal any division of opinion in respect of the diagnosis or treatment of Mr Green’s right eye condition.
These facts are supported by the contemporaneous medical records in Exhibit R2, and I so find.
On the evidence of Dr Lazarus[3], a consultant ophthalmologist, and Dr Franks, it is probable that Mr Green contracted a viral retinitis infection in his right eye on or about 19 January 1985. Dr Lazarus informed me that “placoid retinitis” or “chorioretinitis” is simply a description of localised inflammation of the retina and proximate structures.
[3] Exhibit R1.
An infection of this nature is within the meaning of a “disease” under s 5D(1).
On Dr Lazarus’ uncontroverted evidence, it is probable that the infection in Mr Green’s right eye caused a sudden physiological change[4] over the course of one or two days in the form of chorioretinal scarring. A change of this nature may be within the meaning of an “injury” under s 5D(1).
[4] See Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45, for example.
Even if it is, it does not assist Mr Green. A temporal connexion, alone, between an injury and the particular service is not sufficient to render the injury defence-caused. The injury must have arisen out or, or be attributable to the defence service, or it must satisfy one of the other causal tests set out in s 70(5).
Furthermore, under s 70(1)(b), a disability pension is payable by way of compensation for incapacity from a defence-caused injury or from a defence-caused disease. The phrases “incapacity from a defence-caused injury” and “incapacity from a defence-caused disease” are given meaning by s 5D(2). As can be seen, these phrases refer to the effects of the injury or the effects of the disease. As a matter of construction, if the chorioretinal scarring is the effect of a disease or an aggravation of a disease, as it plainly is, a disability pension is only payable if the disease, or an aggravation of the disease, is defence-caused.
Defence causation
In Mr Green’s submission the viral retinitis infection is a disease that arose out of, or was attributable to his defence service. He asserts that he was required to live on-base and it was in this context that he contracted the infection. The difficulty identifying the specific vector causing or introducing the infection does not negate his claim – he maintains that his defence service was full time and he awoke with right eye symptoms on or about 19 January 1985. That circumstance, he argues, is sufficient to establish a causal connexion between the infection and his service, whereby it can properly be said that the infection arose out of, or was attributable to his service – it is not necessary to prove that the infection was caused by an incident of his service or his duties.
Additionally, Mr Green asserts that the infection caused chorioretinal scarring and vision-loss in his right eye and the scarring is an injury that arose out of, or was attributable to the service he rendered. Mr Green, correctly, does not dispute that Dr Franks’ diagnosis and the treatment he prescribed on and after 31 January 1985 were appropriate and consistent with the optimal contemporary standards of treatment then available in civilian life. He says that the course of the infection would have been different if his right eye condition had been correctly diagnosed and he had been provided with optimal treatment when he first attended the RAP on 19 January 1985. In his submission, if that had occurred, the damaging effect of the infection would have been better managed and the extent of the scarring and vision-loss would have been lessened or prevented.
In Mr Green’s submission, he would not have suffered a scarring injury of this kind but for the Army’s failure to provide him with optimal clinical treatment and management. That failure, he asserts, is an “accident” for the purposes of s 70(7), whereby the injury is deemed to be defence-caused.
Finally, Mr Green says that the Army’s failure to diagnose and to provide appropriate treatment of his right eye condition materially contributed to aggravate or worsen the degree of chorioretinal scarring and medial field vision-loss. In his submission, each of these factors should be resolved in his favour and the decision under review should be set aside.
Unfortunately for Mr Green, his case is not made out.
Mr Green has defence service and his claim is to be determined by application of s 70. Under s 120(4), these matters are to be determined on the reasonable satisfaction standard of proof. There is no applicable Statement of Principles – the Repatriation Medical Authority has not determined a Statement of Principles under s 196B concerning chorioretinitis, viral retinitis or chorioretinal scarring.
Under s 70, pension by way of compensation may be payable to Mr Green if he is incapacitated from a defence-caused injury or a defence-caused disease. While the Act does not set out a definition of either of these terms, the words “injury” and “disease” are defined under s 5D. An “injury” or a “disease” is to be taken to be defence-caused if it is within the provisions of s 70(5), relevantly:
(a)if injury or the disease arose out of or is attributable to any defence service;
(b)if the accident causing injury would not have occurred, or the disease would not have been contracted, but for the defence service; or
(c)if the injury or the disease was suffered or contracted during any defence service, but did not arise out of the service and it was contributed to in a material degree by, or was aggravated by, any subsequent defence service.
Arise out of, or attributable to
In order to establish that the viral retinitis infection or the chorioretinal scarring on Mr Green’s right eye arose out of, or was attributable to his defence service, a causal connexion is required[5].
[5] Roncevich v Repatriation Commission [2005] HCA 40, per McHugh, Gummow, Callinan and Heydon JJ at [27] and per Kirby J at [55].
On the evidence of Dr Lazarus, the specific cause of viral retinitis in Mr Green’s right eye, and the particular virus involved, is not known and cannot presently be determined; nor is the vector by which the virus came to be present in his eye able to be determined. The evidence of Dr George[6] and Dr Davies[7], ophthalmologists, is consistent with this assessment.
[6] T6 folio 60.
[7] T16 folio 117.
Mr Green did not recall any event or circumstance on or before 19 January 1985 that can now be determined as causally related to the onset of the viral infection, and none was identified at the time. Thus, I am compelled to conclude that the cause of the viral retinitis infection cannot presently be determined.
I accept Dr Lazarus’ evidence that the infection caused localised inflammation, retinal cell damage and placoid scarring of the choroid, behind the retina. On his evidence, these effects were likely to have occurred within one or two days of Mr Green contracting the infection, and the damage then caused would have been permanent – this assessment is consistent with subsequent medical records.
Dr Lazarus acknowledged that there are inevitable elements of conjecture when interpreting old medical records without the benefit of making a contemporaneous examination in a case of this kind. Nonetheless, in Dr Lazarus’ opinion the course of the viral retinitis would have been unaffected by steroidal treatment with Prednisolone; at best this may have reduced inflammation, but the commencing dose prescribed by Dr Franks, 50mg per day, would not have been sufficient to effect any change to the rear of the eye or the retina – a daily dose of at least 200mg would be required. His evidence is that the treatment prescribed by Dr Franks, albeit optimal at the time, would not and could not have affected the course of the virus. It follows, on his evidence, that earlier treatment of this kind, in all likelihood, would not have altered the course of the virus, or the extent or degree of cellular damage and scarring that resulted. The contemporaneous records do not point to or establish any different conclusion.
The clinical records from 31 January, 14 February, 18 February, 19 February and 28 February 1985 clearly reveal that there was no deterioration in Mr Green’s right eye despite the gradual reduction of Prednisolone treatment from 50mg per day to 20mg per day, and despite his reported perception that his eye was becoming worse. The vision loss in his right eye was noted to be “6/4 slow/ 6/4” on 31 January 1985. Consistent results are noted on 7 February, 14 February, 18 February and 28 February 1985.
I note in passing that there are two conflicting records of vision loss on 18 February 1985. In a referral note to Dr Franks the right eye vision is noted to be “LV 6/6 RV 6/6” with a query concerning “?Deterioration in R eye over weekend”[8], whereas in Dr Franks’ note on that day the right eye vision loss is noted to be “LV 6/4.1 RV 6/4.1”[9] and a clinical note from the following day records “no apparent deterioration”[10]. I accept Dr Franks’ assessment over that of the medical officer who prepared the referral.
[8] Exhibit R2, page 194.
[9] Ibid, page 245.
[10] Ibid, page 192.
It should also be noted that a number of the contemporaneous records are dated 4 January 1985. The content of the notes reveal that this is clearly in error (see Exhibit R2, page 196 for example).
A clinical note dated 28 March 1985 suggests some deterioration in Mr Green’s right eye vision “6/12 6/6… vision has deteriorated plus field vision decreased R” and he was referred to Dr Donaldson for assessment. While Dr Donaldson’s report does not appear in the materials before me, reference to it appears in Dr Franks’ clinical note dated 11 June 1985 – “V/A: R 6/6 L 6/4.5 Vision has improved centrally. Lesion R now becoming chronic… Off steroids now…”[11]. A further clinical note of Dr Franks on 22 August 1985 records “6/6 6/4 R Quiescent retinal scarring. Macula not affected”[12].
[11] Ibid, page 170
[12] Ibid, page 143.
As can be seen, these records do not reveal deterioration in Mr Green’s right eye vision from 31 January to 28 August 1985. This is consistent with Dr Lazarus’ assessment that the chorioretinal scarring and vision loss occurred within one or two days of onset with a permanent effect, and it was not affected by steroidal treatment.
Weighing the evidence, it appears to me that the cause of the right eye infection Mr Green contracted on or about 19 January 1985 and the mechanism of its onset are simply not known. There is no evidence to suggest that any of the circumstances of Mr Green’s service gave rise to the infection in his right eye. It appears that Mr Green simply awoke with right eye symptoms on or about 19 January 1985. The medical evidence, particularly that given by Dr Lazarus, does not establish any causal link between the perianal abscess Mr Green coincidentally suffered at the time, or the treatment he obtained for this condition, and the onset of the viral retinitis in his right eye. There is no evidence of any trauma or other actual or potential vector for infection.
The proposition that the course of the viral retinitis in Mr Green’s right eye, or the extent of the chorioretinal scarring it caused, were accelerated or worsened by a delay in diagnosis or treatment is not made out. There is no support for Mr Green’s assertion that “on advice from Dr Donaldson (specialist) had there been earlier intervention his sight may not have been so impaired”[13]. Mr Green gave no oral evidence on this point and Dr Donaldson was not called to give evidence, so the veracity of this statement could not be tested. The uncontroverted evidence of Dr Lazarus is that the chorioretinal scarring would have occurred with permanent effect within one or two days, and this would not have been halted or lessened by earlier diagnosis and treatment with a steroidal preparation such as Prednisolone at the time. I accept Dr Lazarus’ uncontroverted evidence on this point and so find.
[13] T14 folio 105.
Mr Green relies on legal principles discussed in Langley v Repatriation Commission[14] and Johnston v Commonwealth[15]. But the binding principles set out in those cases do not assist his case. The present evidence does not establish to the reasonable satisfaction standard that the course of the viral infection or the extent of the chorioretinal scarring was accelerated or worsened by any delay in correctly diagnosing his right eye condition or by delay in the provision of appropriate ophthalmic or steroidal treatment. I am not satisfied that the course of the infection would have been different if Mr Green’s right eye condition had been correctly diagnosed or if he had been provided with ophthalmic and steroidal treatment on 19 January 1985, when he first complained of right eye symptoms. The present evidence weighs heavily against both propositions.
[14] (1993) 43 FCR 194.
[15] (1982) 43 ALR 559.
I do not accept the proposition that the fact of Mr Green being quartered on base when the symptoms of viral retinitis commenced is sufficient to make out the requisite causal connexion between the infection and his defence service. On its facts, this case is distinguished from that of Re Repatriation Commission and Wicking[16], in which Mr Wicking was required to live on base and slipped and fell in a shower, injuring his left shoulder and arm. In that case the mechanism of injury and the connexion with Mr Wicking’s defence service were very clear, even though Mr Wicking was off-duty. In this case they are not. While it can be accepted that Mr Green was required to live on base, it is not established that the onset of viral retinitis in his right eye was in any way connected with that circumstance or with any other circumstance, feature or incident of his defence service – the cause of the retinitis is simply not known or able to be determined.
[16] [1987] AATA 358.
It is not established that the viral retinitis infection and the resulting chorioretinal scarring and partial vision-loss Mr Green suffered arose out of or were attributable to his defence service. It follows that s 70(5)(a) is not satisfied.
The ‘but for’ test
For the purposes of s 70(5)(c) an injury may be deemed to be a defence-caused injury or a disease may be deemed to be a defence-caused disease if the member’s incapacity “was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service…, or but for changes in the member’s environment consequent upon his or her having rendered any such service” within the terms of s 70(7). Clearly, a causal relationship must be established between the claimed incapacity and the defence service[17].
[17] Holthouse v Repatriation Commission [1982] FCA 113; Repatriation Commission v Law (1980) 31 ALR 140 at 151.
The proposition that Mr Green would not have contracted the viral retinitis in his right eye, or that he would not have sustained chorioretinal scarring to the same degree, but for his rendering of defence service lacks any sound basis. The cause of the viral infection is simply not known and the only connection with his defence service is a temporal one.
In Dr Lazarus’ opinion the course of the viral retinitis would have been unaffected by steroidal treatment with Prednisolone; at best this may have reduced inflammation, but the commencing dose prescribed by Dr Franks, 50mg per day, would not have been sufficient to effect any change to the rear of the eye or the retina. In other words, he thought that the treatment would not and could not have affected the course of the virus. It follows, on his evidence, that earlier treatment of this kind, in all likelihood, would not have altered the course of the virus, or the extent or degree of cellular damage and scarring that resulted.
Dr Lazarus’ evidence on this point stands without contradiction or contra-indication by any other evidence, and I accept it.
I do not accept the submission put for Mr Green that the chorioretinal scarring was attributable, at least in part, to an aggravation of the infection as a result of an “accident” in the form of misdiagnosis and a delay in obtaining appropriate treatment. Even if there was an “accident” of that kind, the evidence of Dr Lazarus establishes that it would not have made any difference to the course of the infection or to the extent of the chorioretinal scarring and related partial vision loss. That being so, s 70(7)(a) does not apply.
There is no compelling evidence that Mr Green would not have contracted viral retinitis but for his rendering of defence service or changes in his environment while rendering such service. The present evidence is not sufficient to support the drawing of an inference of this kind. The simple fact is that the cause of the viral infection is not known and it cannot presently be determined. It follows that a causal link between Mr Green’s right eye incapacity and his service is not made out and s 70(7)(b) does not apply.
The present evidence does not establish, and I am cannot be satisfied, that Mr Green would not have contracted the virus or sustained all or part of the scarring but for his defence service. It follows that s 70(5)(c) is not satisfied.
Material contribution and aggravation
Under s 70(5)(d), if the injury or the disease was suffered or contracted during a period of defence service, but it did not arise out of that service the injury or the disease will be taken to be defence-caused if it was “contributed to in a material degree by, or was aggravated by, any defence service… rendered by the member, being service rendered after the member suffered that injury or contracted that disease”.
Dr Lazarus’ evidence is that the specific virus was not and could not have been identified at the time, as the best medical science in 1985 did not extend to include DNA testing of viral entities. Dr Lazarus informed me that treating an infection of the kind Mr Green suffered is extremely difficult now, with the benefit of advanced medical knowledge and technology, and it would have been more difficult in 1985. Even if a diagnosis of viral retinitis has been made on 19 January 1985 and optimal ophthalmological treatment had been provided, the treatment would have been no different than that Mr Green obtained on and after 31 January 1985.
On Dr Lazarus’ evidence, treatment of this kind would not have made any difference to the course of the infection or to the extent of chorioretinal scarring. For this reason, I am reasonably satisfied that the delay in diagnosis and optimal treatment did not aggravate the infection and it did not materially contribute to its progress or to the chorioretinal scarring that it caused.
Much was said about Johnston v Commonwealth, but this does not assist Mr Green’s case. The test the High Court applied in Johnston’s case requires evidence that the course of the disease, in that case bowel cancer, would have been different if a correct diagnosis had been made and optimal treatment had been provided. In that case the evidence established that the course of the disease may have been slowed, and Mr Johnston’s life may have been prolonged had a correct diagnosis been made and optimal treatment provided. But in Mr Green’s case there is no such evidence. The contrary holds – the present evidence establishes that no amount of treatment of the kind then viewed as optimal was likely to have altered the course of the viral retinitis infection Mr Green contracted or the extent of chorioretinal scarring it caused.
Mr Green asserts that the medical records “indicate that a visual field loss was not recorded until 23 March 1985”[18]. This is simply incorrect. The medical notes dated 31 January 1985 record the following history “2 weeks ago sudden onset R eye medial field vision loss awoke in morning to find he had problem”[19] – “2 weeks ago, awoke to find he had R medial field vision loss, thought ‘it would go away’”[20]. The notes record the extent of his vision loss on and after 31 January 1985.
[18] Applicant’s submission, 22 August 2012 at [51].
[19] Exhibit R2, page 198.
[20] Ibid, page 251.
Mr Green asserts that Dr Donaldson told him that if treatment had been provided sooner, then the extent of damage may have been reduced. But this assertion stands alone, without corroboration or support, and it is not presently made out on the balance of probabilities. Resort to s 119 does not assist, as that provision cannot be used to fill gaps in the evidence of the present kind. Mr Green notes that “no other specialist was prepared to comment on when the damage to the applicant’s eye first occurred”[21]. I simply observe that Dr Donaldson and Dr Franks were not called to give evidence, and Dr Lazarus gave cogent, relevant and compelling evidence on this point.
[21] Applicant’s submission, 22 August 2012 at [51].
In sum on this point, I am not reasonably satisfied that Mr Green’s defence service materially contributed to, or aggravated, the viral retinitis he contracted in January 1985 or the chorioretinal scarring that resulted.
Conclusion and decision
On balance, having carefully considered the present evidence, and without being confined to the case put forward on Mr Green’s behalf, I am reasonably satisfied that the viral retinitis and the resulting chorioretinal scarring in Mr Green’s right eye is not a defence-caused injury or a defence-caused disease for the purposes of s 70. He is not entitled to compensation by way of a disability pension for these conditions and, in the result, no increase to the rate of his pension is justified.
The decision under review is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of ...........................[sgd]......................................
Associate
Dated 14 September 2012
Dates of hearing 16 August 2012 Date final submissions received 6 September 2012 Advocate for the Applicant Ms Valerie Doran, Taree Vietnam Veterans Association
Advocate for the Respondent Mr Ken Rudge, Department of Veterans’ Affairs Advocacy Section
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