Rounsevell and Comcare
[2004] AATA 918
•9 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1558
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK ROUNSEVELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date9 August 2004
PlaceSydney
Decision For the reasons given orally at the hearing in this matter, the decision under review is affirmed. ..............................................
Mr S. Webb Member
CATCHWORDS
COMPENSATION - liability accepted for aggravation of hypertension - claim for compensation in relation to glaucoma - no material contribution by employment - decision affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14
Commonwealth v Muratore (1978) 141 CLR 296
Australian Telecommunications Commission v Barker (1990) 12 AAR 490
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
9 August 2004 Mr S. Webb, Member 1. By this application Mr Rounsevell is seeking relief from a reviewable decision to affirm a primary determination to deny his claim for compensation in relation to glaucoma.
2. The matter came on for hearing on 9 August 2004. Mr Rounsevell represented himself and was assisted by Professor Biles. Mr B. Kelly, counsel, represented Comcare. Dr M. Delaney gave oral evidence.
3. My decision and the reasons for it were delivered orally at the hearing. Mr Rounsevell requested written reasons be provided. These written reasons are provided therefore and are consistent with the oral reasons already given.
4. The facts giving rise to Mr Rounsevell’s claim are not in dispute. Mr Rounsevell was born on 17 February 1930 and was previously employed as a Clerk Class 8 by the Department of Defence Support. He is now retired.
5. On 16 January 1986 Mr Rounsevell completed a compensation claim form for “hypertension (aggravation)” that he attributed to stress in the workplace since 1970, with an onset of symptoms in 1984. Liability for aggravation of hypertension was accepted on 18 February 1988.
6. Mr Rounsevell was diagnosed with Open Angle Glaucoma on or about 21 March 1991. He was approximately 61 years of age at that time. On 24 December 2001 he requested that liability be extended to include primary open angle glaucoma. Subsequently on 16 January 2002 Mr Rounsevell lodged a compensation claim in relation to glaucoma, alleging that his glaucoma was the result of his compensable labile hypertension. The claim was denied on 27 November 2002. The matter was reconsidered and the primary determination was affirmed on 18 August 2003. Mr Rounsevell made application for review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 1 October 2003.
7. Mr Rounsevells application rises under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). Liability to pay compensation arises in relation to an injury as defined at s.4. “Injury” is defined to include a disease, which by definition is an ailment that is materially contributed to by employment.
8. I note that there is no strict onus of proof in proceedings before the Tribunal. Nonetheless, it remains for the person who would disturb the existing state of affairs to satisfy the Tribunal of the facts (see Commonwealth v Muratore (1978) 141 CLR 296; Australian Telecommunications Commission v Barker (1990) 12 AAR 490).
9. The sole issue for determination by the Tribunal in this case is whether Mr Rounsevell is entitled to compensation in relation to primary bilateral open angle glaucoma. Specifically in this case, did Mr Rounsevell’s aggravation of hypertension materially contribute to the open angle glaucoma from which he suffers?
10. As will appear, applying the civil standard of proof I am satisfied, on the balance of probabilities as opposed to mere possibility, that Mr Rounsevell’s glaucoma was not materially contributed to by his employment.
11. The kernel of Mr Rounsevell’s case is the alleged connection between hypertension and open angle glaucoma. He relied on reports by Dr P. Larkin, Opthalmic Surgeon. On 21 January 2002 Dr Larkin reported that Mr Rounsevell’s glaucoma “is linked to the patient’s hypertension” (Exhibit A2) and on 30 January 2002 he reported that “Current medical opinion quotes hypertension as a risk factor for [glaucoma]” (T102). Mr Rounsevell also relied upon documents extracted from the Glaucoma Research Foundation of the United States of America internet site and other sources, such as the Merck Manual. In his submission, while glaucoma is multifactorial the only relevant risk factor in his case is hypertension. I do not agree.
12. I accept that open angle glaucoma is multifactorial. Dr Delaney’s evidence, which I accept, confirms that to be the case. On 20 January 2004 Dr Delaney, Opthalmic Surgeon, reported that (Exhibit R1, pp 2-3):
“Hypertension is a risk factor for open angle glaucoma but it is only a low grade risk factor and a very general one and it can only be stated that on the balance of probabilities is it [sic] possible that [Mr Rounsevell’s] hypertension caused or exacerbated his glaucoma. It cannot be stated on the balance of probabilities that the hypertension is the cause of his open angle glaucoma. Glaucoma is a multi factorial disease of which hypertension is one of many factors associated with the development of open angle glaucoma and it is a relatively minor risk factor in that it is not one of the more important and directly associated risk factors.
…
3.1 There is no pre existing or non-work related medical condition which has affected Mr Rounsevell’s vision except for his glaucoma and his cataract development which was age related.
…
3.4 …there is only a possible relationship between his hypertension and the development of the glaucoma.”
13. The Merck Manual (17th edition) lists the following risk factors in relation to open angle glaucoma (T89 folio 147):
“Table 100-2. Risk factors for Primary Open-Angle Glaucoma
Elevated intraocular pressure
Older age
Family history
Black race
Diabetes
Hypertension
Myopia
Use of cortico-steroids”
14. I understand that Mr Rounsevell, in consideration of that and other similar lists, excludes all but hypertension as relevant in his case. However, such an approach, while perhaps understandable from a layman’s perspective, has no medical basis. Plainly, on the evidence hypertension is but one of a number of possible risk factors that may be operative in the causation of open angle glaucoma. However, Dr Delaney’s evidence is compelling. His evidence was that other factors than those listed above, such as genetic or anatomic factors, may play a role in the causation of open angle glaucoma. He stated that 2 percent of the population over 60 years of age suffer from glaucoma, many of whom do not exhibit any of the known risk factors. The question of causation of glaucoma remains open and is an inquiry for medical science. As Dr Delaney observed, there are many people with hypertension that do not suffer from glaucoma and there are others who suffer from glaucoma without apparent cause. His evidence was that there is no specific test to ascertain whether hypertension is the operative factor in any case.
15. It follows that relying on lists of risk factors that are published in documents such as those in evidence before me is an exercise of possibilities that is fraught with risk and should not be relied upon.
16. Dr Delaney gave evidence that age was likely to be an operative factor in Mr Rounsevell’s case. I note that he was first diagnosed with open angle glaucoma at the age of 61, which is well past the notional 50 year risk threshold for glaucoma that is listed in the “WebMd Medical Reference” (Exhibit A1, Attachment 6). Plainly, Dr Delaney’s evidence does not exclude hypertension as a possible factor in the causation of Mr Rounsevell’s glaucoma. Nor does the likelihood that age is an operative factor extinguish Mr Rounsevell’s claim. In the case of Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, the Full Federal Court said at 323:
“…the section [s.4 definition of “disease”] is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
17. Unfortunately for Mr Rounsevell there is insufficient evidence before me on which to conclude, on the balance of probabilities, that his primary open angle glaucoma was materially contributed to by the aggravation of his hypertension as a result of his employment more than 16 years ago. The evidence of Dr Larkin suggests the possibility of a causal connection. That is consistent with the research material in evidence. It is possible that such a link exists in Mr Rounsevell’s case. However, there is nothing in Dr Larkin’s reports or in the other evidence before me that elevates his claim from the realm of possibility into the more focussed light of probability. Nor is there evidence indicating that it is more probable or more likely than not that Mr Rounsevell’s hypertension materially contributed to his glaucoma. It is possible, yes, but weighing the evidence before me it is not probable.
18. That being so I am not able to conclude that Mr Rounsevell’s previous employment materially contributed to his open angle glaucoma. It follows that Mr Rounsevell’s application is not successful and the decision under review is affirmed.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 9 August 2004
Date of Decision 9 August 2004
Counsel for the Applicant
Solicitor for the Applicant
Counsel for the Respondent Mr B. Kelly
Solicitor for the Respondent
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