Rose and Repatriation Commission

[2003] AATA 833

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2002/974

VETERANS' APPEALS  DIVISION		)
Re		LEONARD ANTHONY WILLEN ROSE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member

Date27 August 2003

PlaceSydney

Decision The decision under review is affirmed.

........(Sgd) M D Allen..........

Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS - Meniere's disease - whether inability to obtain appropriate clinical management due to misdiagnosis - requirement of symptoms of disease to conform to definition of said disease in relevant Statement of Principle (SoP).

Veterans’ Entitlements Act 1986 - ss 6C, 120(4), s120(6), s120B

Instrument no. 78 of 2001 – Meniere’s disease

Repatriation Commission v Smith (1987)15 FCR 327

Repatriation Commission v Gorton 110 FCR 321

Benjamin v Repatriation Commission (2001) 70 ALD 622

Brew v Repatriation Commission (1999) 94 FCR 80

Repatriation Commission v Wedekind [2000] FCA 649

Johnston v Commonwealth (1982) 150 CLR 331

Lees v Repatriation Commission (2002) 36 AAR 484 

REASONS FOR DECISION

27 August 2003

  Senior Member M D Allen

Dr M E C Thorpe, Member           

1.      By application made 10 July 2002, the Applicant sought review of a decision by the Respondent as affirmed by the Veterans’ Review Board that his diagnosed condition of Meniere's disease was not related to his Defence Service.

2. We note that the Applicant also had operational service as that term is defined in section 6C of the Veterans' Entitlements Act1986 (“the VEA”), however no submissions were made that operational service per se caused or contributed to the Applicant's Meniere's disease.

3.      The application for review came on for hearing before this Tribunal at Sydney on 11 July 2003. At that hearing, the following documents were taken in as exhibits and marked as follows, namely:

Exhibit	Document	Date
T1-T22	The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement of Facts and Contentions
A2	Statement by the Applicant	8/01/2003
A3	Report of Dr J Scoppa	20/06/2003
R1	Respondent's Statement of Facts and Contentions
R2	Applicant's Service Medical Records
R3	Report of Dr Howison	17/01/2003
R4	Report of Dr Howison	13/06/2003

4. Subsection 120(4) of the VEA provides that where an Applicant seeks to attribute the cause of a disease to his Defence Service, the Tribunal is to determine the matter to its "reasonable satisfaction". In Repatriation Commission v Smith (1987) 15 FCR 327, the Full Court of the Federal Court equated the term reasonable satisfaction to the civil standard of proof, namely that of proof on the balance of probabilities. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.

5. As the Applicant's claim was lodged post 1 June 1994, section 120B of the VEA provides that the Tribunal can only be reasonably satisfied that any disease suffered by the Applicant was connected to his Defence Service, if the material before the Tribunal relied upon to support the said connection, conformed to a so called Statement of Principle (SoP).

6.      In this matter, there is in existence a SoP relating to Meniere's disease. The current SoP is Instrument no. 78 of 2001. It was agreed by both parties that this current instrument is more favourable to the Applicant than the Instrument in force at the time the Respondent made its initial decision in this matter. Consequently, if the Applicant cannot succeed pursuant to instrument no. 78 of 2001, there is no necessity to go on and consider this matter applying the now repealed SoP in force at the time of the original decision: see Repatriation Commission v Gorton 110 FCR 321.

7.      Notwithstanding the SoP regime, the first task of the Tribunal is to ascertain the disease or diseases in fact suffered by the Applicant. In making that finding, which is to be made on the balance of probabilities, the SoPs have no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 632.

8.      There is no dispute the Applicant was diagnosed as suffering from Meniere's disease by Dr Croxson, Ear Nose and Throat (ENT) surgeon in 1988. As was stated in a Naval Medical Board Report in 1989 (see T11 p109):

"At his first consultation on 31 MAY 88 Dr Croxon (sic) supported the diagnosis of Meniere's disease. The doctor organised electrocochleography studies and the findings of these investigations left no doubt."

9.      Instrument no. 78 of 2001 states only one factor that can, on the balance of probabilities, “cause, materially contribute to, or aggravate” Meniere's disease, namely, "the inability to obtain appropriate clinical management for Meniere's disease".

10.     The inability to obtain clinical management for a disease was discussed by the majority of the Full Court of the Federal Court in Brew v Repatriation Commission (1999) 94 FCR 80. At page 87, Merkel J with whom Mansfield J agreed, said at paragraph 26:

"In my view Sundberg J was quite correct in treating the meaning of 'inability' in cl 1(e) as ‘lack of ability; lack of power, capacity, means'  (the Macquarie Dictionary) or 'the condition of being unable; lack of ability, power or means' (the New Shorter Oxford Dictionary. The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the 'condition of being unable'. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case."

11.     It will be noted that his Honour referred to subjective (Tribunal’s emphasis) barriers to obtaining treatment. His Honour then went on at page 88, paragraph 30 to say:

"In my view it would be erroneous to limit 'inability' to 'some overwhelming psychological or emotional incapacity'. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a 'condition of being unable' to obtain treatment."

12.     Following Brew’s case supra, Kenny J in Repatriation Commission v Wedekind [2000] FCA 649 stated at paragraph 12 of her judgment, that in regard to an inability to obtain appropriate clinical management, the Administrative Appeals Tribunal needed to identify:

(i)the approximate date the disease or condition was contracted;

(ii)the appropriate form of clinical management;

(iii)whether the veteran was unable to obtain that form of clinical management; and

(iv)whether inability was related to his service.

13.     We are satisfied however, that if on the material before it, the Tribunal is reasonably satisfied that a condition or disease has been misdiagnosed so that the appropriate treatment is not made available to the veteran, then there has been an inability to obtain appropriate clinical management.

14.     An example of such a case is Johnston v. the Commonwealth (1982) 150 CLR 331. Although that case was a claim for workers compensation by the next of kin of a deceased serviceman, the facts demonstrate the point. In Johnston’s case supra, a serviceman’s carcinoma of the bowel was misdiagnosed by Service Medical Authorities. As a result of the misdiagnosis, he did not receive appropriate treatment and a condition which in all probability would have been successfully treated at the time proved fatal. As stated above, in these circumstances it would seem clear that misdiagnosis led to an inability to obtain appropriate clinical management.

15.     Here, as in Johnston’s case supra, the issue is not one of proving medical negligence but is based on the fact of misdiagnosis.

16.     That having been said, it is also clear that in order to succeed, the Tribunal must be reasonably satisfied on the material before it that the Applicant’s Meniere's  disease was present before 1988 and misdiagnosed.

17.     The Applicant contends that his Meniere's disease was first present and misdiagnosed in 1967. This is of course prior to his period of Defence Service commencing. His evidence was, however, that this initial misdiagnosis and the statement at the time that his condition was alcohol induced and that he was malingering led him to misunderstand the symptoms and to avoid seeking further clinical management of symptoms when they arose because of the censurable manner in which his original complaints had been treated.

18.      In his Statement of Evidence (Exhibit A2), the Applicant said:

“1. At age 21 I commenced this remote and isolated posting (namely Manus island) where within a couple of days I was struck down with an attack of rotary vertigo and vomiting while drinking in the Mess. About six 'attacks’ like this happened in the space of a few days, at least two of which were in the Mess and two in my workplace.

2. I was advised that I had a drinking problem. The sickbay considered  it was additives in the local bear to which I was not accustomed. My superiors considered I had a drinking problem and I was put on notice with an informal warning.

3. Total abstinence followed, although I consumed salt tablets during the posting.

4.Less severe symptoms such as a ‘fuzzy’ sensation in the head, lassitude and nausea occurred very soon after. I was considered lazy by others as a result. I was sent to the sickbay on one occasion saying that I did not feel well. The sickbay examination found no evidence or problem and I was not referred to the Doctor, but it was suggested that I was ‘malingering’.”

19.     The Applicant expanded upon this in his oral evidence. He said that initially, by abstaining from alcohol, the problem went away. Later, he saw the chief sick berth attendant, who gave him a basic examination and accused him of malingering. He was sent away without being referred to the “ship’s” medical officer.

20.     In later postings, problems continued. He suffered from headaches and what he thought was seasickness. In 1975, he had a severe bout of sea sickness during a yacht race. The next day, a Sunday, he was still unwell and so attended the Naval Hospital at Balmoral in Sydney. He was investigated and a diagnosis of Tachycardia was made.

21.     At this time, the Applicant was referred to Dr Brodziak, Cardiologist. There is no doubt that a diagnosis of Tachycardia was made but the Applicant gave evidence that after complaining to Dr Brodziak of some continuing symptoms of giddiness and nausea, he was accused by that doctor of “trying something on”.  

22.     Later in 1977, the Applicant found that Phenergan was an effective antidote to sea sickness (as he thought he was suffering from) and he continued to take this drug to counter nausea which as stated, he put down to sea sickness, although he also observed that he had symptoms in calm seas and at other times in rough seas when others were sick, he was not. Because of Dr Brodziak’s remarks about “trying something on”, he remained reluctant to report his symptoms.

23.     During 1981, while on a posting to the UK, he experienced two bouts of rotary vertigo with vomiting while travelling in Europe. During later sea postings, he again experienced attacks of vertigo and nausea but was able to control them with Phenergan. It was not until he had a severe attack whilst aboard HMAS Stuart, including attacks while the vessel was moored in Jervis Bay, that he was sufficiently motivated to overcome his reluctance to being regarded as a malingerer and attended the sick bay. This time however, the sick berth attendant was better trained and motivated and referred him for further investigation and the diagnosis of Meniere's disease was eventually made.

24.     In order to ascertain whether the Applicant’s Meniere's disease was misdiagnosed, it is necessary to attempt to ascertain when the said disease had its clinical onset. In Lees v Repatriation Commission (2002) 36 AAR 484, the Full Court of the Federal Court reiterated that the clinical onset of a disease is when there exists those symptoms (or features) which if observed by a clinician, would warrant a conclusion that the patient suffered from the said disease.

25.     Furthermore, in the same passage viz at paragraph 16 of the Court’s joint judgment, it said:

“In relation to SoP1, the definition of ‘generalised anxiety disorder’ does not suggest that the disease exists if only some but not all of the symptoms (or features) are manifest.”

26.     Instrument no. 78 of 2001 defines Meniere's disease in the following terms namely:

… “Meniere’s disease means a clinical condition characterised by recurrent
attacks of episodic vertigo, fluctuating sensorineural hearing loss and tinnitus, often associated with nausea and vomiting and a sense of fullness in the involved ear, attracting ICD-10-AM code H81.0….”

The prior SoP Instrument no. 28 of 1997 defined Meniere's disease as:

… “Meniere's disease means a clinical condition characterised by fluctuating hearing loss, tinnitus, a sense of fullness in the involved ear associated with
recurring attacks of rotational vertigo of sudden onset, often associated
with nausea and vomiting, attracting ICD code 386.0.”

These two definitions have minor distinctions but significantly both refer to “fluctuating sensory neural hearing loss and tinnitus”. The 2001 Instrument seems to vary the definition favourably in that it makes it clear that the tinnitus, like the hearing loss, can be fluctuating which we take to mean not constant or continuous.

27.     Dr Croxson was the specialist who diagnosed the Applicant as suffering from Meniere's disease. In a report prepared for the Veterans’ Review Board dated 29 November 2001 (T18 p155). In that report, Dr Croxson states inter alia:

“… It is more probable than possible that some of the symptoms he reported between 1967 and 1987 were related to Meniere's disease”.

28.     At page 4 of his report, Dr Croxson states:

“At the time of presentation in 1988, Mr Rose had recorded 5 major episodes of Meniere's like symptoms occurring in 1981, 1983, 1984 and 2 episodes in 1987. It is more probable than possible that the episodes that Mr Rose described were caused by Meniere's disease.”

Later at page 10 of his report, Dr Croxson noted,

“A hearing loss has been documented in 1987. The hearing loss is sensorineural and mild.”

29.     Dr Croxson’s report as to the existence of symptoms of Meniere's disease is confirmed by the Applicant’s Service Medical Records. At document T11 p109 the report of a Naval Medical Board dated 28 March 1989 notes:

“This 43 year old Engineering Officer firsxt (sic) noticed his symptoms in 1981”..

30.     The paragraph in which the above is quoted reads in its entirety:

“This 43 year old engineering officer firsxt (sic) noticed his symptoms in 1981. He initially complained of ‘light headedness’ followed by a progressive onset of vertigo, occipital and bi-temporal headaches associated with nausea and tinnitus. He was seen by Dr. Havas (Consultant Otolaryngologist) who investigated and examined the Officer. A cerebral CT-scan exclded (sic) an angular neuroma and caloric testing supported the diagnosis of Meniere's Syndrome.”

It is unclear whether the Naval Medical Board is stating that the Applicant experienced tinnitus in 1981 or at the later date when he was seen by Dr Havas. The Applicant in his statement says that in 1981, he had attacks of vertigo and nausea but does not refer to tinnitus.

31.     Dr Scoppa, ENT surgeon in his report of 20 June 2003 states in answer to the specific question: “What is the first point in time do you consider a proper diagnosis would have been reasonable?” –

“It is difficult to answer this question, but the history of recurrent vertigo is characteristic of Meniere's disease and it is this symptom that should have alerted to the correct  diagnosis, especially if it was associated with increased salt intake. I feel  that the condition should at least have been considered as a possible diagnosis in 1967, and certainly should have been diagnosed on the second occasion when Mr Rose complained of recurrent episodic vertigo.” 

32.     The second occasion referred to by Dr Scoppa is the incident in 1975 when the Applicant reported sick with vertigo associated with heart palpitations. This incident is noted in the Applicant’s service medical documents. At page 279 of Exhibit R2, a Daily Medical Record dated 15 September 1975 records a history of:

“3 days ago fell terrible. Nausea + vomiting. Yesterday Tachycardia + ? arrhythmia …” 

33.     On 28 January 1976, Dr Brodziak, Cardiologist reported:

“History noted. Has gained a little weight.
Occasionally he notices episodes of palpitation where the pulse is rapid but not regularly so and he thinks he has missed beats. These attacks may last for a few seconds only and nothing particular seems to precipitate an attack. He is urregularly short winded and complains of indigestion.

O/E

–   no clinical abnormality found.
B.P. 120/60

R/x- Tab. Quinidex  1 to  2 b.d.
Sounds more like series of  irregular extra systoles.”

34.     In evidence, the Applicant, whilst complaining of Dr Brodziak accusing him of “trying something on" did state that after a Naval Medical Officer had explained Tachycardia to him, he cut down on his consumption of tea and coffee and his symptoms went away.

35.     Given this history, we cannot find that the diagnosis of Meniere's disease should have suggested itself to Naval Medical Officers at that time. Nor is it possible to be satisfied on the balance of probabilities that the symptoms experienced by the Applicant constituted the clinical onset of Meniere's disease.

36.     That the Applicant was suffering from Tachycardia is confirmed by later medical reports. At page 259 of Exhibit R2, an undated Medical Report states inter alia:

“…3/52 history or retrosternal chest pain often at night, not related to exercise. Noted to be carrying excess weight.
Radiation, nausea/vomiting.
ECG Normal SR 70/min.                   Stress ++ work related.

UXR FESBT NAD…”

and at page 249, the Applicant was asked in a Medical examination questionaire if he had “any nausea and sick feeling”  and replied in the negative.

37.     Dr Howison, ENT surgeon, prepared two reports for the Respondent. In his report of 13 June 2003, he states:

“Symptoms that suggest the possibility of Meniere's disease are progressive  deafness, tinnitus and fluctuating vertigo. Classically, the loss of hearing, tinnitus and vertigo occur together and in most cases the loss of hearing progresses as does the tinnitus. On occasions the vertigo can settle.

…

On the list of symptoms, with the benefit of hindsight, I would not consider that until 2 November 1987 when vertigo was first described that one would have any reason to have considered the diagnosis of Meniere's disease. There is certainly no mention of tinnitus or deafness and these are part of the triad one needs to consider a diagnosis of Meniere's disease."

38.     At page 179 of Exhibit R2, the notes of a medical examination of the Applicant read inter alia:

“…1/52 Headache-constant and exacerbations

Nausea

Dizzy

Constipated.  No deafness, no tinnitus.” 

39.     As pointed out above, both SoPs for Meniere's disease require the intermittent presence of tinnitus and fluctuating hearing loss before the disease can be said to exist. Furthermore, as pointed out by Dr Howison, deafness and tinnitus are part of the triad of symptoms that one needs to consider clinically in order to consider a diagnosis of Meniere's disease.

40.     This Tribunal is bound by the definition of Meniere's disease as stated in the relevant SoP. Without the presence of tinnitus or sensorineural hearing loss, the Tribunal cannot be reasonably satisfied that the said disease had its clinical onset at any particular time. Given Dr Howison’s opinion, this is also the case on clinical grounds as well.

41.     As we cannot be reasonably satisfied as to when the disease had its clinical onset, we cannot be satisfied to the appropriate standard of proof that the Applicant’s disease was misdiagnosed so as to result in an inability to obtain appropriate clinical management.

42.     As the contention that the Applicant’s Meniere's disease is causally related to his Defence Service is not upheld by the applicable SoP, then the Tribunal, pursuant to subsection 120B(3) of the VEA is deemed not to be reasonably satisfied that the said disease is defence caused. The decision under review is therefore AFFIRMED.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen
Dr M E C Thorpe, Member

Signed:         (Sgd)   K. Wong            .......................................................................................
  Associate

Date of Hearing  11 July 2003
Date of Decision  27 August 2003       
Counsel for the Applicant              Mr Mark Vincent
Representative for the Applicant    Legal Aid Commission

Advocate for the

RespondentMr Jim Marsh, Department of Veterans’ Affairs