Shoobert and Military Rehabilitation and Compensation Commission

[2004] AATA 1087

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/251

GENERAL AMINISTRATIVE DIVISION		)
Re		PETER SHOOBERT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date19 October 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgd)..................

M J Carstairs
  Member          

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No Q2003/412

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER SHOOBERT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

CORRIGENDUM [2004] AATA 1087

Tribunal Ms MJ Carstairs, Member

Date19 October 2004

PlaceBrisbane

I DIRECT that in the Reasons for Decision handed down on 19 October 2004 the file number shown on the Decision be amended to Q2003/412.

Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – applicant underwent parotidectomy – applicant claims to be suffering a range of conditions as a result of the surgery, including facial drop, increased sweating, numbness to face, vertigo, and restricted neck movements - whether these conditions are an unintended consequence of the medical treatment/surgery – meaning of “unintended consequence” – vertigo and restricted neck movements not caused by surgery – other conditions are known risks related to the surgery – applicant advised of these risks – conditions are not the unintended consequence of surgery – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 6A and 14

Comcare v Houghton (2003) 128 FCR 485
Elliott and Comcare (2001) 64 ALD 423
Eaton and Comcare (2002) 67 ALD 182
Re Price-Beck and Department of Veterans Affairs [2002] AATA 386

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

19 October 2004 Ms M J Carstairs, Member            

1.      This is an application by Peter Shoobert (the applicant) for review of a decision made by a delegate of the Military Rehabilitation and Compensation Commission (the respondent) on 13 March 2003, which affirmed a decision dated 3 September 2002 denying compensation to the applicant in regard to surgery to his parotid gland undertaken in October 2001.

2.      At the hearing the applicant represented himself. The respondent was represented by Mr D Rangiah of counsel instructed by the Australian Government Solicitor.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1–T19, as well as exhibits A1–A4 for the applicant and R1-R5 for the respondent.

BACKGROUND

4.      The applicant is aged forty five. He joined the Royal Australian Air Force (the RAAF) on 12 February 1992 and was discharged medically unfit for further service on 10 August 2002, having achieved the rank of corporal.

5.      In 2001 while serving with the RAAF at Butterworth, Malaysia, the applicant commenced having problems with his parotid gland (a salivary gland situated in front of the ear).  He experienced symptoms of a painful and swollen right jaw which persisted despite treatment. Dr R Black, ear nose and throat surgeon recommended a parotidectomy to remove the parotid gland.  The surgery was performed in October 2001. 

6.      On 13 May 2002 the applicant lodged a claim for compensation in relation to the surgery.

EVIDENCE

7.      The applicant acknowledged in oral and written evidence that Dr Black had told him prior to the surgery that there was a small chance of damage to the facial nerve but he maintained that he was not warned by Dr Black about other possible consequences of the surgery. The applicant stated (T11, exhibits A1-A3) that he now experiences:

§  numbness/loss of sensation of his right ear;

§  numbness/loss of sensation in the right side of his face;

§  sensitivity to heat, cold and light touch in the area of the surgery;

§  restriction of neck movement;

§  tightening of skin caused by a scar of greater length than expected;

§  heat or sweating in the cheek area when eating;

§  interruption to his sleep due to discomfort from pressure on the pillow;

§  slight facial drop, more noticeable when tired or after alcohol consumption; and

§  vertigo.

8.      When questioned about his restriction of neck movement, the applicant acknowledged that he had pain in his spinal area but said that his neck restrictions were unrelated to any spinal problems that he has.

9.      The applicant referred to experiencing vertigo, stating that the symptoms were evident from 2002 (exhibit A1) and he attached a note of consultation with his general practitioner Dr Saba  dated 5 July 2003 which stated complaining of vertigo 12 months.

10.     The applicant described the facial drop as not significant or of major concern to him. He agreed under cross-examination that he had not mentioned symptoms of facial drop to any medical practitioners.

11.     In a written statement dated 16 December 2002 (T16), the applicant stated that he had not suffered any symptoms until eating at the mess at Butterworth.  He attributed his condition to unhygienic conditions for cooking and food preparation in the tropics. In oral evidence the applicant said that he did not know whether food consumed at Butterworth was a cause of his parotid problem.

12.     In a report dated 13 September 2001 (T8), Dr Black said that the only option for the treatment of the applicant’s troublesome right parotid gland was for him to undergo a right superficial parotidectomy. He stated:

I’ve discussed in detail the rationale and implications of such surgery. Specifically I’ve made mention of the facial nerve and the inherent risks of damage.

13.     In a medical report dated 19 October 2001 (T9), Dr Black confirmed that the parotidectomy was uneventful and the applicant was progressing satisfactorily. In a report dated 21 November 2001 (exhibit R4), he noted the recovery and said there are a few little numb areas which will persist to some extent and that was … something he was well aware of.  After a follow-up consultation on 23 May 2002 (T3), Dr Black wrote that the applicant still had numbness over the face, which should improve over time, though not fully and he said that the applicant would have permanent numbness over the ear, which he was told about before the surgery. Dr Black recorded that the applicant was having no glandular problems, or problems with sweating when eating.

14.     In his oral evidence Dr Black explained that, when he saw the applicant prior to the surgery he did not observe any major problems however tests had shown that there was an obstruction in the duct that was causing the gland to swell.  He said that the problem became more noticeable when food was ingested as eating stimulates saliva, and the swelling occurs because of the blockage in the duct.

15.     In a report dated 13 October 2003 (exhibit R1), Dr Black referred to notes of consultations with the applicant and said that he had discussed the relationship of the parotid gland to the facial nerve and what might happen in the surgery, scarring, and other possible consequences such as sweating, and disordered sensation. Dr Black said that while the applicant could be expected to experience some difficulty with lateral movement of the neck soon after the surgery, this would not continue in the long term as no muscle is removed in the procedure and no motor nerves are damaged. Scarring, which he said is unavoidable with surgery, would settle with time.  Dr Black said that increased sensitivity to the face was a likely consequence and had been discussed prior to the surgery, along with the possibility of increased sweating.  However Dr Black noted that the applicant had denied symptoms of sweating when Dr Black saw him on 23 May 2002.

16.     In oral evidence Dr Black said that it was unlikely that the applicant would develop symptoms of sweating after May 2002. Dr Black said that there was no possible medical or physiological connection between the surgery and symptoms of vertigo. He confirmed that the applicant had not mentioned facial drop in consultations with him. He said that face drop occurs as a result of damage to the facial nerve and, if present, is experienced continuously, not as a fluctuating or sporadic symptom. 

17.     In a report dated 28 August 2002 (T13), Dr Black stated that the applicant’s recurrent parotid swelling was not related to his employment. In oral evidence he said that he mentioned in his report that dehydration can be a cause, but agreed that there was no evidence of dehydration in the applicant’s case.

18.     In a medical report dated 8 March 2004 (exhibit A4), Dr R Wilson, ear, nose and throat surgeon recounted the applicant’s history of pain and swelling prior to the surgery and the symptoms of which the applicant complains after the surgery. Dr Wilson noted that CT scans showed that the applicant has bulging and degeneration of the discs in his neck and Dr Wilson said that he raised with the applicant that this was a more likely cause of perceived restriction in neck movements. Dr Wilson noted the other symptoms and said that Frey’s syndrome (painful sweating around the ear while eating), numbness of the ear and nerve injury would be the three most important possible complications of the surgery which are routinely discussed with patients before the surgery.  Dr Wilson stated that the applicant’s scar was typical for the procedure undertaken, and was of a satisfactory cosmetic appearance.  Dr Wilson concluded that the symptoms suffered by the applicant, apart from the restriction of movement in relation to the neck and face, were a probable consequence of the operation.  

CONSIDERATION OF THE ISSUES

19. The relevant provisions are to be found at ss4 and 6A and s14 of the Safety Rehabilitation and Compensation Act 1988 (the Act).

20. Section 14(1) of the Act provides that :

….Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

21.     The term injury is defined in s4 of the Act:

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

22.     Disease is also defined:

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment

…

23.     Both the term injury and the term disease require a connection with employment for compensation to be payable.  The Tribunal was satisfied that there was no connection between the symptoms of swelling of the parotid gland experienced on service and the applicant’s employment as there is no medical evidence to support such a connection.   The applicant did not press the connection between the swelling of the gland that led to the surgery and the circumstances of his service, and his assertion about the possibility of lowered hygiene standards is merely conjecture: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.

24. A further provision in s6A of the Act extends the coverage of the Act in relation to certain employees, of whom the applicant is one, by providing that medical treatment undertaken at the Commonwealth’s expense may give rise to circumstances to which the coverage of the Act is extended:

(2) If, …:

(a) an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and

(b) as an unintended consequence of that treatment the person suffered or suffers an injury;

the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.

(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.

25.     It was not in dispute that the surgery was medical treatment within the meaning of that term in s4 of the Act. The question for the Tribunal is whether the applicant come within s6A(2)(b).

26.     The applicant said that he lodged his compensation claim to ensure continuity of his medical treatment after his discharge from the RAAF, as he understood it was advisable to submit any claims as soon after discharge as possible. The applicant’s submissions were comprehensively set out in exhibits A1, A3 and A5 and the Tribunal takes these into account.  He submitted that he was not told about all the possible outcomes or symptoms that might arise as a result of the surgery, though he could recall being told by Dr Black about the possibility (said to be unlikely) of nerve damage resulting in facial drop. The applicant said that the symptoms he now suffers are the unintended consequences of the surgery as Dr Black would not have wanted residual problems to arise.

27.     Mr Rangiah referred to the relevant case law, including Comcare v Houghton (2003) 128 FCR 485, Re Elliott and Comcare (2001) 64 ALD 423, Re Eaton and Comcare (2002) 67 ALD 182 and Re Price-Beck and Department of Veterans’ Affairs [2002] AATA 386. He submitted that the case law shows that injury as referred to in s6A of the Act bears its ordinary meaning, not the meaning given to the term by s4(1) of the Act. He said that injury in its ordinary meaning requires that some harm is suffered and does not apply to a process which properly understood is beneficial rather than harmful.

28.     Mr Rangiah submitted that the case law also shows that the term unintended used in s6A does not mean simply undesired or not aimed for: Houghton. He said that s6A(2) does not encompass an injury which was always known to be an unavoidable consequence of medical treatment. He said that to come within the expression unintended consequence a consequence must be both not desired or aimed for by the medical practitioner, and not a likely consequence of the medical treatment: Eaton.

29.     The Tribunal accepts Mr Rangiah’s submission that the word injury as used in s6A(2) does not have the meaning as defined in s4(1) of the Act, which requires some connection with employment. The Federal Court in Houghton’s case pointed out that s6A(2) is a deeming provision, creating an entitlement to compensation which does not depend on the medical treatment being an injury that arises in the course of employment.

30.     Mr Rangiah is correct to say that in order to come within the expression unintended consequence the consequence must be both not desired and aimed for by the medical practitioner and not a likely consequence of the treatment.

31.     The Tribunal accepts Dr Black’s evidence that there was some risk of damage to the facial nerve and that numbness and paresthesia to areas of the face and ear were common known consequences of this surgery.  The Tribunal is satisfied that Dr Black told the applicant about this prior to the surgery. Dr Wilson’s evidence confirms that it is usual for practitioners to discuss with patients the possibility of Frey’s syndrome (which is painful sweating around the ear while eating), numbness of the ear and nerve damage arising from the surgery.  The conditions are consequences of the surgery but not unintended consequences. 

32.     The Tribunal is satisfied that the applicant experiences numbness and loss of sensation to parts of the right side of his face and ear, increased sensitivity to changes in temperature and touch and that this may give rise to the problems that the applicant refers to when he sleeps on the right side of his face.  However the Tribunal accepts the respondent’s submission that these are a likely consequence of the medical treatment. This being so, and applying the two-stage test as set out in Re Eaton, these are not unintended consequences within the meaning of s6A(2) of the Act.

33.     The Tribunal accepts the evidence of Dr Black and Dr Wilson that any restriction of neck movement is more likely as a result of the applicant degenerative disc problems in his cervical spine and not the result of the surgery, which might have caused some restriction soon after the surgery, but would not do so now. Therefore any restriction of neck movement is not a consequence of the medical treatment, but is a consequence of the applicant’s degenerative changes in his cervical spine.

34.     The Tribunal did not accept the applicant’s evidence that he suffers from facial drop intermittently. The Tribunal preferred Dr Black’s evidence that facial drop does not occur on an intermittent basis because it results from permanent damage to the facial nerve. The Tribunal takes into account that the applicant did not report symptoms of facial drop to medical practitioners when he had the opportunity to do so. The Tribunal is not satisfied, accepting Dr Black’s evidence, and in the absence of any other medical evidence, that the applicant suffers from facial drop.   Therefore he does not suffer from the injury of facial drop for purposes of s6A(2)(b).

35.     With reference to vertigo, the Tribunal accepted Dr Black’s evidence that there is no physiological basis to connect symptoms of vertigo with the surgery. Therefore vertigo is not a consequence within the meaning of s6A(2)(b) of the Act.

36.     In regard to scarring, this is an inevitable part of the procedure of surgery.  As the Federal Court pointed out in Houghton’s case, it is necessary to consider whether the necessary element of harm is present, so as to satisfy the requirement of the section that there be an injury.  Furthermore, for something to be an injury in the circumstances of surgery it necessary for it to be separate from the surgery, conceptually distinct, and not part and parcel of the operation: Houghton at para 38. The Tribunal was satisfied that scarring is a necessary part of a surgical procedure and it is neither an injury for the purposes of s6A, nor a consequence of the surgery, being an integral part of the surgical procedure of cutting the skin to access the parotid gland

37.     For these reasons the applicant’s claim does not succeed.

DECISION

38.     The Tribunal affirms the decision under review.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  23 July 2004 (at Coolangatta)
Date of Decision  19 October 2004

The Applicant appeared in person
Counsel for the Respondent     Mr D Rangiah
Solicitor for the Respondent     Australian Government Solicitor