ROGER CHARD and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 460
•18 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 460
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos. N2006/1365 & 2009/1955
GENERAL ADMINISTRATIVE DIVISION ) Re ROGER CHARD Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms N. Bell, Senior Member Date18 June 2010
PlaceSydney
Decision The decisions under review are affirmed.
....................[sgd]...........................
Ms N Bell, Senior Member
CATCHWORDS - Compensation - injury - deep vein thrombosis – whether the Applicant suffered deep vein thrombosis in 1969 - material contribution
Commonwealth Employees’ Compensation Act 1930
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Ms N. Bell, SENIOR MEMBER 1. In 1969 Mr Roger Chard, then a part time member of the Active Citizens’ Military Force, was accidentally wounded by a shot from another serviceman’s rifle. The shot had entered his abdomen and exited through his buttock. He was hospitalised and underwent surgery.
2. Mr Chard made a claim for compensation for the injury and liability was accepted under the Commonwealth Employees’ Compensation Act 1930 for “gunshot wound to abdomen”. Mr Chard received compensation for incapacity and for permanent impairment of efficient use of his right leg above the knee.
3. In March 2006 extensive thromboses were found after an ultrasound of Mr Chard’s right calf and a few weeks later pulmonary emboli were found on a lung scan. Mr Chard claimed compensation for deep vein thrombosis and pulmonary emboli. Liability was not accepted.
4. In October 2008, Mr Chard claimed compensation for venous hypertensive disease, phlebitis and muscular deficiency of the right leg. Liability was not accepted by the Respondent.
5. There is agreement between the parties that these two claims, and the reviewable decisions they prompted, serve to bring before the Tribunal the issues of liability for both Mr Chard’s deep vein thrombosis and pulmonary embolism suffered in 2006. I accept that the venous hypertensive disease, phlebitis and muscular deficiency are consequences of the 2006 DVT and pulmonary embolism.
6. The essential question for me to consider is whether Mr Chard’s 2006 DVT and pulmonary emboli were materially contributed to by his 1969 gunshot wound. It is common ground, and supported by the expert medical evidence, that the risk of suffering a DVT is substantially increased following the incidence of an earlier DVT. I must therefore consider whether Mr Chard suffered a DVT in 1969 following his gunshot wound. Mr Chard also contends that even if he had not suffered a DVT in 1969, Mr Chard’s DVT and emboli in 2006 were still materially contributed to by his 1969 gunshot wound.
7. The issues for me to consider are therefore:
(a)whether Mr Chard suffered a DVT in 1969; and
(b)if not, whether his DVT and emboli in 2006 were nevertheless materially contributed to by his 1969 gunshot wound.
did mr chard suffer a dvt in 1969?
8. Mr Chard relied on his own recollection of events, including the symptoms he suffered and the treatment he received in and following 1969, and on the opinion of Dr Patrick to support his contention that he suffered a DVT in 1969.
9. Mr Chard’s evidence was that after the gunshot wound in 1969 he was first hospitalised at St George Hospital and then, after four weeks, transferred to Concord Hospital. In total, he was in hospital for seven weeks.
10. Mr Chard said he was unable to move his right leg and his thigh muscle wasted “down to almost the bone and skin” after three weeks. He also said that he noticed swelling in his ankle which progressed up to his calf as well as a “blue tinge” to the lower part of his leg. Mr Chard confirmed that he had told Dr Patrick and Professor Lord of these recollections during his consultations with them. He said he also recalled having an x-ray of his lungs while he was at Concord Hospital.
11. Mr Chard said he had prostate surgery in January 2006 – a transurethral needle ablation (TUNA) which is the less invasive type of prostate surgery. In March 2006, he found he “could not walk” and noticed his right calf had swollen to twice the size of his left calf. He said the swelling has remained and he still wears stockings to control it.
12. Mr Chard also said he has noticed continued discolouration – a brown tinge – on the inside of his right calf. He said his leg is weak, it aches and it gives way after a short walk.
13. Mr Chard used a great deal of medical terminology and had to be reminded to limit his answers to his own experience of events and not to express opinions about medical causes and conclusions. When this observation was put to him with a suggestion that he may, when speaking to doctors “feed in” some of this terminology, he denied it.
14. In cross examination, Mr Chard said that he first noticed the swelling in his right leg in the second week of his hospitalisation at Concord Hospital. He said that at that stage he was also having difficulty breathing and experienced pain on breathing.
15. Mr Chard agreed that while at Concord Hospital he was treated with sedatives for anxiety and hyperventilation as part of a psychological reaction to the gunshot injury. After his discharge from hospital, Mr Chard saw a psychiatrist, Dr Collison,
16.
In cross examination, counsel for the Respondent canvassed with Mr Chard a letter that he sent to his urologist Dr Aslan which asked whether it is probable that his right leg impairment contributed to his 2006 DVT. It was put to him that he was attempting to establish a link between his gunshot injury and his 2006 DVT.
Mr Chard’s answers appeared evasive.
17. Various clinical notes and hospital records were produced concerning Mr Chard’s hospitalisation after the gunshot wound.. None made reference to swelling or to colour change in Mr Chard’s right leg. Nor did the report of surgeon Dr Hugh Barry in August 1972 mention any symptoms of swelling, discolouration or any other symptom in relation to Mr Chard’s right leg. A note of a referral for a lung x-ray (which was normal) appeared in the context of a high temperature, a suggestion of a chest infection and prescription of antibiotics. The x-ray was normal. There is, however, also a note of a “pleural rub” just preceding the x-ray.
18. Concord Hospital notes include a referral by Dr Grant to a consultant psychiatrist for “anxiety reaction with regressive features”. The notes refer further to:
“His weak stress tolerance has been highlighted by his psychological reaction to his alarming injury. This anxiety is being expressed mainly through somatic symptoms (many seem to be of hyperventilation type). …His anxiety is preventing him from re-adjusting after his accident and his symptoms are being utilised to minimise his participation in adult responsibilities.”
19. Dr David Collison, psychiatrist, reported on 6 April 1976, that after the gunshot incident Mr Chard had become more introverted and developed psychosomatic problems which seemed like hypochondriosis.
20. Dr John Ellard, psychiatrist, reported on 14 August 1972, that Mr Chard had developed a neurotic reaction after his accident comprising anxiety and a need to be dependent. This was reflected in lack of concentration, tension and a variety of physical symptoms observed by others.
21. Dr R Englund, consultant surgeon, in his report of 1 November 2006, said:
“We would expect that as a result of major abdominal surgery and trauma that there would be an incidence in the vicinity of 20-25% risk of having a DVT and post operatively at that time he did have swelling of his leg. His DVT at that time would almost certainly have been unrecognised and he would not have received any of the modern appropriate prophylaxis. These DVTs often resolve spontaneously but, as a result of this he would have been in the high risk group for recurrent DVT and pulmonary embolus, which is exactly what happened this year when he experienced a DVT and pulmonary embolus in relationship to his prostate operation.”
22.
Dr Patrick, surgeon, in his report of 2 April 2007, notes a history from
Mr Chard of swelling of the right lower limb post-operatively and of pain with breathing and a subsequent chest x-ray. Dr Patrick said:
“It would appear that, at Concord Hospital they were concerned about the possibility of pulmonary thrombo-embolic disease. This was treated with some medication (in 1969 it was probably with intravenous drip and Heparin infusion via an intravenous line).”
23. Dr Patrick said that “on the history as given and on the evidence available” he considers that Mr Chard’s current venous hypertension and thrombo-embolic conditions are consequent upon the gunshot wound in 1969. He considered that Mr Chard suffered a DVT in 1969 and may well have had some suspected pulmonary embolus at Concord Hospital in the weeks after his injury. Dr Patrick said that a DVT in 1969 would predispose Mr Chard to increased risk of recurrent venous thrombosis and thrombo-embolic problems associated with his prostate TUNA operation in 2006. In his oral evidence Dr Patrick put the likelihood of a connection between the gunshot wound and the 2006 DVT and embolism at 70%. He also concluded that if Mr Chard did not suffer from swelling in his leg or discolouration in 1969, then the likelihood of a connection between the gunshot wound and the 2006 DVT and embolism would be 60%. Notwithstanding these stated opinions, he later, somewhat surprisingly, stated a probability of connection, had there been no DVT in 1969, of 70%.
24. In later evidence when commenting on the opinion of Professor Sidney Lord, Dr Patrick initially attributed importance to the documented presence of a pleural rub in 1969. He said that the return of a normal lung x-ray did not necessarily indicate there was no lung embolism. He also said that Mr Chard’s young age of 20 years was irrelevant given the other major risk factors including a major traumatic incident, major surgical interventions, prolonged immobilisation and blood transfusion.
25. In cross examination, Dr Patrick conceded that DVT in a 20 year old man is uncommon. Dr Patrick also conceded that it was more likely that Mr Chard had had a chest infection in hospital in 1969 rather than a pulmonary embolism. Dr Patrick also said that genuine pleural rubs are rare and that he had only heard about 16 genuine pleural rubs in his professional lifetime.
26. The Respondent relied on the evidence of vascular surgeon Professor Lord. Professor Lord had originally reported that it was probable that Mr Chard had suffered a DVT in 1969. However, that opinion was based in part on a history of swelling and discolouration given by Mr Chard. He noted that in the 1960s, DVTs were often missed. In his later report of 13 November 2007, when asked to discount the history given to him by Mr Chard, Professor Lord said:
“If all three conditions applied, namely that Mr Chard did not receive treatment for a DVT in 1969, that he did not suffer swelling or colour changes following the 1969 admission and if doctors did not subsequently record any of these colour changes, then taken together these three sets of factors would strongly reduce the probability that Mr Chard suffered a DVT in 1969.”
27. Professor Lord said, in oral evidence, that about 60% of DVTs are asymptomatic. He placed the probability of Mr Chard having suffered a DVT in 1969 at 10%. He identified Mr Chard’s age as a strong indicator against having suffered a DVT and said that age, from 40 years onwards, exerts an effect equivalent to about 5% per year. He also noted there is no evidence to indicate that Mr Chard is thrombophilic, a condition that predisposes to DVT.
28. Professor Lord said that if the major symptoms of DVT (colour change and swelling) had been present, they would have been observed by hospital staff and doctors. He said he saw no record of such observations in the hospital notes. He also considered that it is likely there was no pleural rub or suspicion of pulmonary embolus. He said pleural rubs are very rare and there was no evidence that Mr Chard’s cardiothoracic surgeon at the time was concerned to defer the further surgery that was undertaken a few days later. Professor Lord considered it was more likely that Mr Chard had simply had a chest infection.
29. Professor Lord said there was no record of Mr Chard having been given a heparin drip. He noted that heparin drips usually involved a lot of paperwork. Heparin, he said, is an anti-coagulant that has been in use since the 1930s.
30. Professor Lord confirmed that he had changed his opinion on the basis that Mr Chard had no swelling or colour change and that he had not been treated with heparin.
31.
On balance, I prefer the opinion of Professor Lord. He was able to dissect and change his initial opinion after reconsideration of the history given to him by
Mr Chard on which he relied when forming his initial opinion. His approach was measured and objective.
32.
Given the absence of any documentary record of symptoms of swelling, discolouration or treatment for DVT, and given Mr Chard’s documented psychiatric reaction to the accident including somatic symptoms, I cannot be satisfied that
Mr Chard suffered symptoms of swelling and discolouration in 1969. Nor can I be satisfied that he was treated with Heparin or received any other treatment for DVT.
33. Given these conclusions as well as the factor of Mr Chard’s young age in 1969 and the uncommonness of DVTs in young persons, I am more persuaded by the view of Professor Lord that while a DVT in 1969 was a possibility it was unlikely that Mr Chard suffered a DVT in 1969.
were mr chard’s 2006 dvt and emboli materially contributed to by his 1969 gunshot wound?
34. Both Professor Lord and Dr Patrick agree that if Mr Chard suffered a DVT in 1969 then that DVT would have significantly predisposed him to the DVT he suffered in 2006. It would serve to connect Mr Chard’s 2006 DVT with his 1969 gunshot wound.
35. I have concluded that Mr Chard did not suffer a DVT in 1969. The question remains whether there is more likely than not, notwithstanding the absence of a 1969 DVT, a causative link between the gunshot wound and the 2006 DVT and pulmonary embolism.
36. Dr Patrick said in oral evidence that there is such a causative link and even placed it at the same level of probability as if there had been a DVT in 1969. However, in cross examination, it became increasingly difficult to understand the basis on which he made this assessment of probability. In his report of 2 April 2007, he referred to damage to Mr Chard’s femoral vein or external iliac vein and posited that this would have resulted in a less effective muscle pump and less than optimal venous flow, thereby predisposing Mr Chard to venous thrombo-embolic disease. This was not mentioned or elaborated on in his oral evidence and was not raised as a reason why, even in the absence of a 1969 DVT, there was a causal relationship between the gunshot wound and the 2006 DVT. It is difficult to judge, from reading Dr Patrick’s report, whether that was the thrust of his comment about damage to the femoral vein (that it alone could predispose to a DVT almost 40 years later) or whether the comment was made in the context of likelihood of a 1969 DVT.
37. On the question of femoral vein damage, Professor Lord in his initial report of 19 June 2007 said that likely damage to the vein was a factor in favour of a diagnosis of DVT in 1969. His report was silent and he gave no oral evidence on whether such damage would have predisposed Mr Chard to the 2006 DVT. There is no other evidence that establishes a causal connection between the gunshot wound and the 2006 DVT.
38. On balance, I am not satisfied that, in the absence of a DVT in 1969, the gunshot materially contributed to the DVT suffered by Mr Chard in 2006, by way of predisposition or otherwise.
decision
39. The decisions under review are affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: .............................[sgd].................................................
Associate: Lloyd DohertyDate/s of Hearing 7 & 8 September 2009, 19 April 2010
Date of Decision 18 June 2010
Counsel for the Applicant Mr M. Vincent
Solicitor for the Applicant Mr M. Kemp, Kemp & Co Lawyers
Counsel for the Respondent Mr G. JohnsonSolicitor for the Respondent Mr. C. Hutchins, Australian Government Solicitor
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