Stark and Military Rehabilitation and Compensation Commission (Compensation)
[2016] AATA 916
•17 November 2016
Stark and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 916 (17 November 2016)
Division
VETERANS’ APPEALS DIVISION
File Number
2015/0291
Re
Michael Stark
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 17 November 2016 Place Brisbane The Tribunal affirms the decision under review.
...................................[Sgd]...................................
Senior Member A C Cotter
CATCHWORDS
COMPENSATION - Military Rehabilitation and Compensation Act 2004 (MRC Act) – Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) – whether disease aggravated by treatment provided by Commonwealth – whether “service disease” -
whether liability exists under s 23(2) of the MRC Act – no liability found.
Inflammatory Bowel Disease (ulcerative colitis) – whether CIDP service disease - whether liability exists under s 23(1) of the MRC Act – whether material before Tribunal and Statements of Principles uphold connection with service – no liability found.
Decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Military Rehabilitation and Compensation Act 2004 (Cth) ss 23, 27, 29, 319, 335, 337, 339, 340
Safety, Rehabilitation and Compensation Act 1988 (Cth)CASES
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Doolan and Repatriation Commission [1995] AATA 616
Gorton v Repatriation Commission (2001) 65 ALD 609
Murray and Repatriation Commission [1997] AATA 117
Repatriation Commission v Smith [1987] FCA 260SECONDARY MATERIALS
Statement of Principles concerning Inflammatory Bowel Disease, No. 20 of 2012
Statement of Principles concerning Peripheral Neuropathy, No. 42 of 2005
Statement of Principles concerning Peripheral Neuropathy, No. 75 of 2014REASONS FOR DECISION
Senior Member A C Cotter
17 November 2016
BACKGROUND
Mr Michael Stark served with the Australian Army Reserve for almost 45 years, having enlisted in February 1969 and being medically discharged in August 2013 at the rank of Captain.[1] His relevant eligible defence service under the Military Rehabilitation and Compensation Act 2004 (Cth) (“MRC Act”) was peacetime service, from 1 July 2004 to 19 August 2013.[2]
[1] Exhibit 1, T Documents, T 22, page 144, Certificate of Service.
[2] Exhibit 1, T Documents, T 3, page 32, Section 37 Statement, [2].
In the late 1980s and early 1990s, Mr Stark experienced recurring lower gastrointestinal symptoms. That led him to claim compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). In January 1991, liability was accepted under that Act for “amoebic dysentery”. In March 2015, liability under the SRC Act was extended to include “ulcerative colitis (inactive) and mild, intermittent post-infective/inflammatory IBS (irritable bowel syndrome)”.[3]
[3] Exhibit 18, Cross-referenced material to Applicant’s submissions, A2, page 8, letter from Department of Veterans’ Affairs to Mr Stark dated 23 March 2015.
Separately, Mr Stark also had liability accepted under the MRC Act for osteoarthritis of the left knee with degenerative tear of the lateral meniscus.[4]
[4] Exhibit 1, T Documents, T 13, page 71, Determination of the Respondent’s delegate dated 23 April 2013.
On 19 January 2012, Mr Stark underwent an arthroscopy in respect of his knee condition.[5] That was at the Commonwealth’s expense.[6]
[5] Exhibit 1, T Documents, T 7, page 38, letter from Dr David Hayes to Dr Greg Sarson dated 19 January 2012.
[6] Exhibit 8, Respondent’s Amended Statement of Issues, Facts and Contentions dated 19 July 2016, [3.4] and [4.4].
On 26 June 2012, Mr Stark lodged a Claim for Liability and/or Reassessment of Compensation in respect of a condition, Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”), claiming that it rapidly developed following his knee surgery and that he suffered the first signs within a week of the surgery.[7]
[7] See Exhibit 1, T Documents, T 10, page 53, Injury or Disease Details Sheet dated 27 June 2012.
In April 2013, liability for CIDP was rejected under ss 23(1) and 23(2) of the MRC Act on the basis that there was insufficient evidence linking Mr Stark’s service and surgery with CIDP.[8] An application to the Veterans’ Review Board (“VRB”) was unsuccessful, with the VRB affirming the original decision.[9]
[8] Exhibit 1, T Documents, T 13, page 70, Determination of the Respondent’s delegate dated 23 April 2013.
[9] Exhibit 1, T Documents, T 34, pages 230-235, Veterans’ Review Board decision and reasons dated 29 October 2014.
Dissatisfied with the outcome, Mr Stark has sought a review of the VRB’s decision by this Tribunal.
Before I discuss the issues raised in this proceeding, it is opportune to reflect on the key legislative provisions.
THE LEGISLATIVE FRAMEWORK
Section 23(1) of the MRC Act provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person if: their injury or disease is a “service injury or disease under section 27”; the Commission is not prevented from accepting liability for the injury or disease by Part 4 of the Act; and a claim for acceptance of liability for the injury or disease has been made under s 319 of the Act. In the present case, there is no dispute that a claim has been made and that no grounds exist under Part 4 which would prevent the Commission from accepting liability.
Section 27 contains the main definitions of “service injury” and “service disease”. It provides that a person’s injury or disease is a “service injury” or “service disease” if one or more of a number of specified paragraphs apply. They relevantly include the following:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred ; or
(ii)the disease would not have been contracted;
but for:
(iii)the person having rendered defence service while a member; or
(iv)changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
(e)...
Relevantly for present purposes, the term “defence service” includes peacetime service.[10]
[10] See Military Rehabilitation and Compensation Act 2004 (Cth), s 6(1)(d).
Section 23(2) of the MRC Act provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person if their injury or disease is a “service injury or disease under section 29 (arising from treatment provided by the Commonwealth)”, and a claim for acceptance of liability has been made under s 319 of the Act.
Section 29 of the MRC Act contains the definitions of “service injury” and “service disease” arising from treatment provided by the Commonwealth. Subsection (1) deals with liability for injuries and diseases caused by treatment, while subs (2) concerns liability for injuries or diseases aggravated by treatment. The latter subsection relevantly states:
(2) For the purposes of this Act, an injury (the relevant injury) sustained, or a disease (the relevant disease) contracted, by a person is a service injury or a service disease if:
(a)all of the following apply:
(i) the person receives treatment for an earlier service injury or service disease;
(ii) the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii) as a consequence of that treatment, the relevant injury or relevant disease, or a sign or symptom of the relevant injury or relevant disease, is aggravated by the treatment;…
Subsection (1)(a) of s 29 is relevantly in the same terms as subs (2)(a), apart from paragraph (iii) which reads:
(iii) as a consequence of that treatment, the person sustains the relevant injury or contracts the relevant disease;…
Section 335 of the MRC Act sets out the standards of proof that apply in determining issues under that Act. Relevantly, subsection (3) deals with determinations or decisions other than those in respect of claims relating to warlike or non-warlike service. It provides that, in making any determination or decision under the MRC Act, the regulations or an instrument made under the Act or regulations, the Commission must decide the matter to its “reasonable satisfaction”.
Nothing in s 335 or in any other provision of the Act imposes on the claimant or the Commission any onus of proving any matter that is, or might be, relevant to the determination of the claim.[11]
[11] Ibid, s 337.
Section 335 of the MRC Act is in turn affected by s 339. Subsection 339(3) provides:
(3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act; and
(c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
That subsection does not apply in relation to a claim for acceptance of liability where the Repatriation Medical Authority has neither determined an applicable Statement of Principles, nor declared that it does not propose to make such a statement in respect of, among other things, the kind of disease contracted by the person. [12]
[12] Ibid, s 339(4).
ISSUES FOR THE TRIBUNAL
Broadly speaking, there are two major questions that fall for my determination in this proceeding:
a)whether liability exists under s 23(2) of the MRC Act for the claimed CIDP; and
b)in the alternative, whether liability exists under s 23(1) of the MRC Act for the claimed CIDP.
Each of those questions raises a number of sub-issues, on which I will elaborate in the course of considering the principal issues.
Before I turn to those main issues, there is a preliminary question raised by Mr Stark concerning the validity of the original decision made by the Commission’s delegate and the process which followed it. I also deal with that issue below.
CONSIDERATION
Preliminary issue: was the original decision “invalid”?
Mr Stark submitted that the original decision of the delegate was flawed because “it was made in writing under the wrong legislation”.[13] He pointed out that, in her reasons, the delegate incorrectly referred to s 27 of the MRC Act, rather than s 29.[14] That error was, Mr Stark argued, further compounded by the delegate’s reference to “defence service” (which is a defined term used in s 27 but not in s 29), and to Statements of Principle (which have no relevance to the application of s 29).[15] In short, he said that the delegate was pursuing a line of inquiry, not under s 29, but rather, incorrectly, under s 27. Because, according to him, the delegate utilised the wrong test and asked the wrong question, Mr Stark contended that the decision was infected by jurisdictional error or error of law, rendering it invalid; it was not a lawful decision.[16] As a consequence, he said that “everything that followed is also invalid.”[17]
[13] Exhibit 14, Applicant’s submissions, undated, page 7.
[14] See Exhibit 1, T Documents, T 13, page 72, Determination by Respondent’s delegate dated 23 April 2013.
[15] See ibid, page 70
[16] Exhibit 14, Applicant’s submissions, undated, page 8.
[17] Ibid, page 7.
Regardless of whether Mr Stark is correct as to the invalidity of the delegate’s decision, I do not think it necessarily follows that it infects or taints the remainder of the review process. I say that for two reasons.
First, the reviewable decision with which I am concerned is that of the VRB, not the delegate’s decision. The VRB decision affirmed the determination under review by it, namely the Commission’s determination of 23 April 2013 refusing liability for CIDP.[18]
[18] Exhibit 1, T Documents, T 34, page 230, Veterans’ Review Board’s decision and reasons dated 29 October 2014.
Second, and importantly, my review is de novo; I am not bound by the findings or reasoning of the original decision maker, nor those of the VRB. Under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal may exercise all the powers and discretions conferred by any enactment on the decision maker and may affirm that decision, vary it, or set it aside and either substitute a new decision or remit the matter for reconsideration. Even if the delegate was in error and the decision was invalid, it does not affect my ability to review that decision. It has long been established that an applicant to the Tribunal has standing, and the Tribunal has jurisdiction, “provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.” [19]
[19] Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 346 (Bowen CJ). See also at 370 (Smithers J).
For those reasons, I do not accept Mr Stark’s submission as to the purported invalidity of the original decision infecting or tainting the review process.
Does liability exist under s 23(2) of the MRC Act for the claimed CIDP?
It is uncontroversial that Mr Stark received treatment (the arthroscopy) for his previously accepted left knee condition, and that the treatment was paid for by the Commonwealth.[20]
[20] Exhibit 8, Respondent’s Amended Statement of Issues, Facts and Contentions dated 19 July 2016, [3.4] and [4.4].
Based on the reports of the parties’ respective neurological experts, Dr Nicole Limberg (for Mr Stark) and Dr John Cameron (for the Commission), there was consensus that Mr Stark suffers from CIDP.[21] Both doctors agreed that it was more than likely that Mr Stark’s CIDP was in evidence prior to his surgery.[22] They further agreed that his CIDP was not caused by or sustained as a result of the arthroscopy on 19 January 2012.[23] At the commencement of the hearing, Mr Stark conceded that his CIDP was not caused or sustained by the surgery.[24] Having regard to the experts’ opinions, I believe that concession was appropriate.
[21] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (a).
[22] Ibid, paragraph (b).
[23] Ibid, paragraph (c).
[24] Transcript of proceedings (28 September 2016), page 6 (lines 27-28).
Mr Stark did, however, contend that his CIDP was aggravated by the surgery and that therefore, the aggravated disease was a “service disease” under s 29(2) of the MRC Act, for which the Commission was liable under s 23(2) of that Act. At the heart of that issue was the competing opinions of Dr Limberg and Dr Cameron. I deal with that evidence in some detail below, as well as the evidence of some other doctors and a health professional who were involved in the treatment of Mr Stark.
The physiotherapist’s observations
Before I discuss the evidence of the neurologists, it is convenient to first recount the observations of the physiotherapist, Mr Alex Clarke, who treated Mr Stark both prior to, and after, the surgery.
Mr Stark’s initial assessment was on 6 January 2012. His goal of treatment at that stage was to develop an exercise programme to help him prepare his knee and lower limb for the upcoming surgery and rehabilitation. Mr Clarke noted that Mr Stark’s gait was normal and that there was good passive range of knee movement.[25]
[25] Exhibit 7(b), report of Mr Alex Clarke dated 20 June 2016.
When he reviewed Mr Stark the day prior to the surgery, Mr Clarke found reduced light touch over the great left toe (6/10, with 10/10 being perfect sensation); the right leg sensation was normal.[26]
[26] Ibid.
Mr Clarke again saw Mr Stark on 31 January 2012. At that time, Mr Stark noted 5-6/10 intensity pins and needles in the left ankle and foot with sustained walking; he described the sensation as “like wearing a tight sock”. Great toe sensation had reduced to 4-5/10.[27]
[27] Ibid.
Between late January and 29 February 2012 when he next saw Mr Stark, Mr Clarke said that there was a steady increase in the range of movement at the knee, quads strength and single leg balance time.[28] However, he observed that Mr Stark presented with a high -stepping gait, weakness and wasting in the anterior compartment of the lower leg bilaterally, and bilateral decreasing light touch sensation which was worse on the left side (3-4/10 in the left great toe and 7/10 in the right great toe; 7/10 in the left anterior ankle compared with 9/10 in the right anterior ankle). Mr Clarke noted that movement of the left leg that placed the sciatic nerve on stretch aggravated the left leg symptoms, followed a few seconds later by the right leg. However, movement of the right leg did not cause left or right leg symptoms.[29] He thought that those findings were consistent with a lower motor neuron disease and referred Mr Stark back to his general practitioner for further investigation.[30]
[28] Ibid.
[29] Exhibit 1, T Documents, T 10, page 54, letter from Mr Alex Clarke to unnamed doctor dated 29 February 2012.
[30] Exhibit 7(b), report of Mr Alex Clarke dated 20 June 2016.
Mr Stark’s general practitioner, Dr Greg Sarson, in turn referred Mr Stark to Dr Cameron, who diagnosed CIPD.[31]
[31] See Exhibit 1, T Documents, reports of Dr John Cameron dated 11 May 2012 (T 10, pages 56-57) and 9 August 2012 (T 12, pages 67-69).
The neurologists’ evidence
Dr Limberg provided a report dated 20 April 2015. While she acknowledged that the exact cause of CIDP is unknown, she noted that 30 percent of patients do report an antecedent event, such as viral infection, immunisation or surgery.[32] Considering Mr Clarke’s evidence and the history of a mild, existing, undiagnosed, potentially sensory neuropathy, she stated that “the antecedent event of surgery, can more likely than not, be implicated in the aggravation of the possible existing neuropathy.”[33] She went on to say that, “considering the probability calculation, it is more probable than not, that the antecedent event, in this case arthroscopic knee surgery under general anaesthetic, can be implicated in the development of the postoperative neuropathy.”[34]
[32] Exhibit 3, report of Dr Nicole Limberg dated 20 April 2015, [2].
[33] Ibid, [4].
[34] Ibid, [5].
Dr Cameron provided several reports, the most recent being in August 2015.[35] He confirmed that Mr Stark appeared to have a progressive severe autoimmune sensory motor polyneuropathy (most likely CIDP).[36] Dr Cameron went on to describe the history recounted by Mr Stark. In particular, Mr Stark recalled having been aware of weakness in his feet and a tendency to foot slapping when walking on the beach, predating the arthroscopy by some several years. From the history obtained from him, Dr Cameron noted that Mr Stark was aware of a prominent development of sensory symptoms and weakness in his lower limbs, perhaps even predating his arthroscopy.[37] He concluded:
…it would appear [Mr Stark’s] sensory motor neuropathy was pre-existing to his knee arthroscopy in January 2012. It would appear his condition was exacerbating around the time of the arthroscopy and before the actual procedure.[38]
[35] Exhibit 4, report of Dr John Cameron dated 6 August 2015.
[36] Ibid, page 1.
[37] Ibid, page 2.
[38] Ibid.
Dr Cameron rejected any suggestion that the arthroscopic procedure had anything to do with Mr Stark’s underlying condition. Nor did he believe it caused any exacerbation of his underlying condition of neuropathy. He continued:
…There is no evidence in the literature to suggest that this type of neuropathy can be caused or exacerbated by a minor surgical procedure nor by any anaesthetic agent used. Any exacerbation of his underlying condition of sensory motor neuropathy around the time of surgery is purely coincidental.
There are no mechanisms by which an arthroscopic procedure can in any way exacerbate an underlying inflammatory type sensory motor neuropathy such as CIDP.[39]
…The reality of the situation is that in the world, at any one time, an exorbitant number of arthroscopic procedures are performed. If such procedures had the ability to lead to “precipitation of suspected immuno mediated factors causing an exacerbation of CIDP”, the neurological literature would contain many references to such association. The literature however is void of such reports.[40]
[39] Ibid.
[40] Ibid, page 4.
He did note, however, that it was well documented that immunological conditions such as viral illness infections and immunisation, could cause exacerbation of the underlying condition.[41] While acknowledging that relapses are usually preceded by another antecedent infection and that recovery is often less complete than after the first illness, Dr Cameron said that there was, as far as he was aware, no evidence that Mr Stark suffered an acute viral illness at the time of the arthroscopy, so as to cause exacerbation of his underlying pre-existing neuropathy. In his opinion, that underlying neurological disturbance was exacerbating at the time of the arthroscopy; the arthroscopic procedure had nothing to do with the exacerbation.[42]
[41] Ibid, page 2.
[42] Ibid, page 5.
When the matter originally came on for hearing in February 2016, it had to be adjourned due to the unavailability of both Dr Limberg and Dr Cameron. Given the divergence in their views and the central importance of their evidence, I directed that the two neurologists confer with a view to preparing a joint report, identifying the areas on which there was agreement and those where there was not. In the case of the latter, the doctors were requested to say why they disagreed with the other’s relevant opinion. The conference was facilitated by a member of the Tribunal, Dr Marian Sullivan, a psychiatrist.
As already mentioned, the report of the experts’ conference identifies a number of areas of agreement between Dr Limberg and Dr Cameron. They agreed that Mr Stark suffers from CIDP and that it was more likely than not that the CIDP was in evidence prior to the surgery.[43] Nor did they think that Mr Stark’s CIDP was caused by, or sustained as a result of, the arthroscopy.[44] The doctors also agreed that the current medical view is that the cause of CIDP is unknown and that aggravating factors are unclear.[45]
[43] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraphs (a) and (b).
[44] Ibid, paragraph (c).
[45] Ibid, paragraph (e).
There was, however, a difference in opinion as to whether Mr Stark’s CIDP was exacerbated or aggravated by the experience of anaesthetic and/or surgery in January 2012. Dr Cameron reiterated that there is no known mechanism for CIDP to occur as a result of arthroscopic procedure and that there was an absence of supporting literature. He added that if surgery had been an aggravating factor, Mr Stark’s CIDP should have settled after the procedure and not continued to progress, as it did, which is consistent with the natural history of the disease.[46] Dr Limberg responded that she had tried to see if there was any literature about precipitating factors for CIDP; her research identified a couple of articles and a chapter in a textbook that might be relevant.[47]
[46] Ibid, paragraph (d).
[47] Ibid.
Discussing the textbook chapter entitled Peripheral Demyelinating and Axonal Disorders,[48] Dr Cameron was not convinced that it was of relevance to Mr Stark, since the authors were neuro-opthalmologists and not neurologists, and in any event, the cases referred to Acute Inflammatory Demyelinating Polyneuropathy (“AIDP”), which is different to CIDP. Dr Limberg agreed with that critique.[49]
[48] By David I Kaufman, Chapter 61 in Walsh and Hoyts, Clinical Neuro-Opthalmology (6th edition)
[49] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (d)(1).
Both doctors agreed that the first of the articles referred to by Dr Limberg, Post Surgical Inflammatory Neuropathy,[50] did not specifically refer to CIDP. Dr Limberg also agreed with Dr Cameron’s critique, that the article mostly discussed neuronal changes which were vascular problems and not demyelination.[51]
[50] By Nathan Staff et al, Post Surgical Inflammatory Neuropathy, (2010) 133 Brain- A Journal of Neurology, 2866, 2866-2880.
[51] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (d)(2).
The second article concerned a single case report of a man with multiple medical problems, including CIDP, and detailed anaesthetic considerations.[52] It suggested that that any anaesthetic and surgical procedure could trigger an exacerbation in any neurological disease, such as CIDP.[53] Dr Cameron commented that the authors of the article “struggled” to find evidence in the literature about CIDP and anaesthesia in surgery. Further, it was limited by the fact that it did not have any long term follow-up. Dr Limberg’s position was that, as the cause of CIDP is unknown and there has been speculation that an immunological response was involved, then anaesthesia and surgery as triggering or exacerbating events was possible.[54]
[52] Rivas BH, Romero RP, Sanchez JLA, Anaesthetic Options in Chronic Inflammatory Demyelinating Polyneuropathy, (2014) 4(11) Journal of Clinical Case Reports, 1000457.
[53] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (d)(3).
[54] Ibid.
By way of summary about aggravation of CIDP, Dr Cameron said that he had never seen CIDP worsened by surgery. Given the high incidence of arthroscopies in the community, he would have expected some awareness in the medical literature of a link between arthroscopies or surgery in general in the development of CIDP. Dr Limberg agreed that, currently, no body of literature existed to support the hypothesis of such a link. She explained that she was “scientifically speculating about possible causes of precipitation or exacerbation of a pathological immunological response.”[55]
[55] Ibid, paragraph (d), Summary.
In conclusion, Dr Cameron remained strongly of the opinion that there was no relationship between the arthroscopy and Mr Stark’s condition. He pointed to the absence of substantial literature drawing a link between the two, as well as the lack of anecdotal medical experience of surgery exacerbating CIDP. Dr Limberg agreed with Dr Cameron that “there was no substantial literature proving a link between surgery and anaesthesia and CIDP and certainly it was not current medical opinion that there was a link between these two.” She added that “because of an interest in C.I.D.P., she was open to speculating about some previously unthought of possibilities as to the cause of this condition.”[56]
[56] Ibid, Summary.
Dr Cameron gave evidence at the hearing by telephone. He confirmed that the contents of his report of 6 August 2015 were true and correct. He also confirmed that he attended the joint experts’ conference with Dr Limberg and that the contents of the joint report of
12 May 2016 were true and correct.
Under cross-examination by Mr Stark, Dr Cameron reiterated that the CIDP condition was present far before the surgery. He stated that at the time, it was still evolving and gradually getting worse, which he said was “classical” of CIDP.[57] Dr Cameron observed that CIDP can fluctuate: it could exacerbate and then get better fairly quickly, before exacerbating again. That was, he said, “par for the course.”[58] He repeated that it was coincidental that the CIDP exacerbated at the time of the surgery.[59] Just because Mr Stark had knee surgery and started to become aware of numbness in the foot did not mean that the surgery was the cause, or an “exacerbant” or an “aggravant” of an underlying previous condition.[60]
[57] Transcript of proceedings (28 September 2016), page 56, lines 30-38.
[58] Ibid, lines 40-45.
[59] Ibid, page 57, lines 1-7.
[60] Ibid, page 44, 28-37.
Asked about Mr Clarke’s observation at the time, Dr Cameron thought that the pre-surgery examination was incomplete, in that no physical examination (such as involving strength, coordination, and reflexes) was apparently undertaken; only a sensory examination seems to have been performed.[61] In response to Mr Stark’s question as to the post-surgery symptoms involving the left leg, Dr Cameron replied that it is very typical for CIDP to be asymmetrical in its presentation, both in motor and sensory presentation.[62]
[61] Ibid, page 42, lines 1-11.
[62] Ibid, page 44, lines 18-23.
Mr Stark questioned Dr Cameron as to his statements that there was nothing in the literature that suggested a connection between the surgery and exacerbation of CIDP, and that any association was “coincidental”. In response, Dr Cameron acknowledged that there could be inflammatory responses following surgery, but they would be localised (such as soft tissue reactions at the surgical site).[63] Taken by Mr Stark to a selection of articles, Dr Cameron expressed the need for caution. In particular, he stressed that CIDP was a completely different illness to AIDP; they have completely different pathologies and treatments.[64]
[63] Ibid, page 45, lines 5-9.
[64] Ibid, pages 45 (lines 45-47) and 46 (lines 1-12).
Dr Cameron agreed that Inflammatory Bowel Disease (“IBD”) could be a factor in causing polyneuropathy, but stressed that one had to be careful as to how the literature was read. He also agreed that ulcerative colitis or IBD has an immune mediated response. However, he disagreed that surgery could also have an immune mediated response. While there might be some local tissue reaction at the site of the surgery, he denied that there was evidence that in undertaking the procedure, one would set up a more generalised systemic response “which gets out of hand and causes havoc.”[65]
[65] Ibid, page 47, lines 32-43.
Taken by Mr Stark to a recent article that concluded that there was “strong evidence of an inflammatory component in some cases of neuropathy after orthopaedic procedures in the lower limb”,[66] Dr Cameron indicated that he was fully aware of that article. However, he said that it was referring to mono-neurosis, which involves isolated total nerve disturbances, rather than a generalised neuropathy. He said that they are completely different conditions; the pathology in mono-neurosis is different to demyelinating, which is seen in CIDP.[67]
[66] Ibid, page 51, lines 42-44 (quoted extract from Giesling et al, Inflammatory Neuropathy of the Lumbosacral Plexus Following Surgery, Case Report of Orthopaedics, May 2016).
[67] Transcript of proceedings (28 September 2016), page 52, lines 1-9.
Apart from testifying himself, Mr Stark did not call any witnesses at the hearing. In particular, he did not call any expert witnesses, such as Dr Limberg or his orthopaedic surgeon, Dr David Hayes. Rather, he was content to rely on their respective reports.
Mr Stark’s submissions
Mr Stark’s primary contention was that his CIDP condition was aggravated by the arthroscopy on 12 January 2012, and that liability should therefore be accepted under
s 23(2) of the MRC Act. That contention was founded on the observations of Mr Clarke as to the onset of the condition, and the views of Dr Hayes and Dr Limberg that the surgery did result in the aggravation of the neuropathy. Further, Mr Stark submitted that it is “reasonably clear” that IBD was involved as a factor, with Dr Limberg identifying “potential precipitation of suspected immune mediated factors”. That, he said, was supported in the published literature.[68]
[68] Exhibit 14, Applicant’s submissions, page 17.
Throughout the course of the proceeding and in his submissions, Mr Stark was critical of the views expressed by Dr Cameron. He claimed that there was a contradiction in
Dr Cameron’s reports, in that while the doctor maintained that nobody knew the cause of CIDP, he nevertheless considered that the treatment and the condition were not related in this instance. Rather, Dr Cameron maintained that the treatment and the aggravation of the CIDP were “coincidental”. Mr Stark was also critical of that conclusion, referring to statistical analysis undertaken for him which put the odds of such events being coincidental at one trillion to one, at the least.[69]
[69] Ibid, pages 17, 18 and 31.
Mr Stark also referred me to the Commission’s Policy Manual concerning the application of the “reasonable satisfaction” test when determining a claim:
Although the MRCA is regarded as ‘beneficial legislation’, this does not mean a departure from the normal rules of administrative decision making in the weighing of evidence. Generally speaking, wherever there is more than one interpretation of the facts or legislation, the interpretation adopted should favour the claimant. A beneficial interpretation of the material does not mean that decision makers are free to depart from the law or to behave capriciously or arbitrarily. The concept is not concerned with remedying substantive deficiencies in the evidence or the applicant’s case [Bey v Repatriation Commission [1997] FCA 452].
However, if, when weighing up the material and asking whether or not contention X (due to peacetime service) caused or aggravated condition Y (injury, disease or death), a decision maker is genuinely unable to decide, the claimant should be given the benefit of any doubt.[70]
[70] Passage from Commission’s Policy Manual, 3.5.4, as quoted by Mr Stark (incorporating his emphasis): Exhibit 14, Applicant’s submissions, page 14.
Mr Stark therefore contended that it was more likely than not that the surgery aggravated the CIDP, having regard to the temporal association and the distinctive pattern of onset.[71] To the extent that the Tribunal is unable to decide, it was said that the Commission’s policy effectively requires me to give Mr Stark the benefit of the doubt.
The Commission’s submissions
[71] Ibid, page 34.
The Commission contended that the available evidence did not support a finding that
Mr Stark’s CIDP was sustained or aggravated as a consequence of his surgery. It was said that Mr Stark and Dr Limberg essentially commented on the possibility that the two events could be related. The Commission submitted that the available evidence did not take Mr Stark’s hypothesis into the realms of probability as opposed to possibility. Nor was there definitive evidence that surgery could increase the risk of aggravating CIDP.[72]
[72] Exhibit 8, Respondent’s Amended Statement of Issues, Facts and Contentions dated 19 July 2016, [4.14].
Even if there was evidence which pointed to the possibility of increased risk of CIDP following surgery, the Commission contended that would not be enough for liability to exist for the condition. It was said there remained insufficient evidence for the Tribunal to make a finding to the required standard of proof that the two events were causally linked.[73]
What is meant by “reasonable satisfaction”?
[73] Ibid, [4.15] and [4.16].
What is meant by deciding something to the decision maker’s “reasonable satisfaction” has been considered by the court and this Tribunal on a number of occasions. In Repatriation Commission v Smith[74] (in the context of the Veterans’ Entitlements Act 1986 (Cth)), Beaumont J (with whom Northrop and Spender agreed) said:
By contrast, s 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Briginshaw v Briginshaw … (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at p 362):
“…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[75]
[74] [1987] FCA 260
[75] Ibid, [20].
In Murray and Repatriation Commission, this Tribunal expanded on Beaumont J’s words, noting that s 120(4) was “intended to introduce the standard of proof required in civil litigation”:
The Tribunal, therefore, is bound to apply the civil standard of proof and will only be satisfied by a probability not a mere possibility.[76]
Mr Stark’s hypothesis
[76] [1997] AATA 117, [53].
The hypothesis advanced by Mr Stark was effectively built on four “planks”: the neurological evidence of Dr Limberg; the evidence of the treating orthopaedic surgeon, Dr Hayes; the observations recorded by Mr Clarke, highlighting the temporal association between the surgery and the aggravation of the CIDP; and the distinctive pattern of onset of the condition, as observed by Mr Clarke. It is convenient to consider what Mr Stark describes as the “yes” case, by reference to each of those planks.
Dr Limberg’s evidence
The neurological evidence lies at the heart of the determination of the issue of whether Mr Stark’s CIDP condition was aggravated by the arthroscopic procedure.
While there was initially a significant disagreement between Dr Limberg and Dr Cameron, that dissipated considerably following the experts’ conference. Indeed, by the time of the hearing, there was broad consensus on a number of matters, namely that Mr Stark suffers from CIDP; that it was more likely than not that his CIDP was in evidence prior to the surgery; that Mr Stark’s CIDP was not caused by, or sustained as a result of, the arthroscopy; and that the current medical view is that the cause of CIDP is unknown and that aggravating factors are unclear.
There remained, however, a “slight divergence of opinion” about whether the anaesthetic and surgical intervention in January 2012 exacerbated Mr Stark’s CIDP. Dr Cameron “strongly” maintained his position that there was no relationship between the surgical procedure and the exacerbation of Mr Stark’s CIDP. Dr Limberg was more tentative in her opinion and certainly, was less emphatic in her conclusions, compared with her original report. She agreed that there was no substantial literature proving a link between surgery and anaesthesia and CIDP and that “certainly” it was not current medical opinion that there was a link between the two. Dr Limberg explained that while the cause of CIDP was unknown and there had been speculation that an immunological response was involved, she believed that anaesthesia and surgery as triggering or exacerbating events was “possible”. She was “open to speculating about some previously unthought of possibilities as to the cause of this condition.”
As I mentioned earlier, Dr Cameron also gave oral evidence at the hearing. I was impressed by him as a witness. He was forthright, and demonstrated his knowledge and experience, both in responding to several journal articles (including recently published papers) put to him by Mr Stark, and explaining his reasoning in response to a number of propositions and hypotheses posed by Mr Stark (on which I will comment further later). Throughout the cross-examination, he maintained the position he had adopted from the outset, that he was strongly of the opinion that there was no relationship between the surgical procedure and the exacerbation of the CIDP.
During the course of the proceeding and at the hearing, Mr Stark asserted on various occasions that Dr Cameron was an unreliable witness, claiming that he had deliberately or inadvertently made statements about the possible involvement of paraprotein,[77] a factor that had later been excluded by the haematologist, Dr Terence Frost. Dr Cameron’s statements, Mr Stark said, had in turn been perpetuated through other doctors, distracting the VRB and leading to its incorrect decision. By the time of the hearing before me, however, the potential involvement of paraprotein had been put to rest, with there being agreement at the experts’ conference that Mr Stark’s haematological condition had not caused his CIDP.[78] Notwithstanding that consensus, Mr Stark continued to cast aspersions about Dr Cameron’s reliability, saying that he “still ‘owns’ paraprotein”.[79] Given the experts’ concurrence that paraprotein was not a factor in Mr Stark’s CIDP, it is unnecessary for me to consider the substance of that matter in any detail. To the extent that Mr Stark contends that the issue is relevant to my assessment of Dr Cameron’s credit and reliability, there is insufficient material before me to form a view which would affect the assessment I have otherwise made. In that regard, it is significant that, despite having the opportunity to require Dr Cameron to explain his position, Mr Stark did not put the “paraprotein matters” to him during cross-examination.
[77] Exhibit 14, Applicant’s submissions, page 8.
[78] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (e), summary.
[79] Exhibit 14, Applicant’s submissions, page 9.
Unfortunately, Dr Limberg was not called as a witness and was therefore unavailable to explain, or expand upon, her reasoning in the joint experts’ report. Mr Stark said that the experts’ conference would have been “a most uncomfortable and counter-productive encounter”, given what he described as Dr Cameron’s “clearly expressed attitude and what appears to be a failing memory”.[80] Therefore, his “instructions” to Dr Limberg were not to argue with Dr Cameron because he “wouldn’t come over.”[81] The experts’ conference was convened by a medical member of the Tribunal after both experts had been given the opportunity to comment on the questions to be considered. Both were reminded of their roles as expert witnesses, including their duties to the Tribunal. Following the conference, a draft report was prepared for the experts’ consideration. Over a fortnight after the conference, each of them signed the joint report, indicating that it set out an accurate record of their opinion.[82] In those circumstances and in the absence of any evidence to the contrary by Dr Limberg, I can only assume that she stands by her views recorded in the joint report, and that her earlier report is to be read in that context.
[80] Ibid, page 31.
[81] Transcript of proceedings (28 September 2016), page 89, lines 28-33.
[82] Exhibit 6, Report of Experts’ Conference dated 12 May 2016.
Dr Limberg’s original report talked in terms of probabilities. However, by the time of the experts’ conference, it appears that her views had altered significantly. She conceded that the current medical view is that aggravating factors of CIDP are unclear. There was, she agreed, no substantial literature proving a link between surgery and anaesthesia and CIDP; “certainly” it was not current medical opinion that there was a link between the two. However, she thought the link was possible, and was open to speculating about some previously unthought of possibilities as to the cause of CIDP.
As mentioned earlier, I am required to apply the civil standard of proof, and to be satisfied by a probability, not a mere possibility. Dr Limberg’s evidence falls far short of the standard I would expect in order to be reasonably satisfied that there was a link between the surgery and the aggravation of the condition. Her evidence was, at best, tenuous: that, in the absence of contemporary medical opinion on the question, it is open to speculation that the two are possibly linked. In short, I am not persuaded by Dr Limberg’s evidence.
Before I leave the neurologists’ evidence, there are two additional matters on which I wish to comment, for completeness: the possible involvement of IBD and the weight which should be attached to the literature identified and presented by Mr Stark.
During cross-examination, Dr Cameron was asked by Mr Stark about the possibility of immune responses from surgery and from something like the peripheral neuropathy underlying it (such as that associated with IBD or ulcerative colitis) combining to result in a further significant neurological response. Dr Cameron responded there was no evidence which would suggest that would occur.[83] Dr Limberg explained at the Experts’ Conference that she was “scientifically speculating” about possible causes of precipitation or aggravation of a pathological immune response, but agreed with Dr Cameron that there was no current body of literature to support that hypothesis.[84]
[83] Transcript of proceedings (28 September 2016), pages 47 (lines 45-48) and 48 (lines 1-6).
[84] Exhibit 6, Report of Experts’ Conference dated 12 May 2016, paragraph (d), summary.
From his submissions and the material he lodged with the Tribunal, it is obvious that
Mr Stark has undertaken a considerable amount of research of medical and scientific journals. Notwithstanding the large body of material he has produced, it is important to sound a note of caution as to the weight which should be attached to that material, by itself. By his own admission, the research is far from complete.[85] He did not have access to “resources like University research gateway online databases with journal subscriptions. A number of apparently useful and supportive references needed to be bypassed as the full text was not available and the abstract was either absent or lacked necessary detail”.[86] Further, Mr Stark is not appropriately qualified as an expert. He is not independent. He lacks the professional training and experience necessary to critically analyse, assess and evaluate the sources of information on which he is drawing, and their reliability and relevance. Although he had his material reviewed by an unidentified “publishing expert”[87] and unnamed health professionals[88], that is not a substitute for briefing an independent expert, such as Dr Limberg. As mentioned already, she concluded that there was no substantial literature proving a link between surgery and anaesthesia and CIDP. Nor was she called as a witness at the hearing to explain, or expand on, her views, or to comment on any literature that Mr Stark produced.
Dr Hayes’ opinion
[85] Transcript of proceedings (28 September 2016), page 73 (lines 1-29).
[86] Exhibit 1, T Documents, T 15, page 68, Mr Stark’s Veterans’ Review Board Brief dated 29 November 2013.
[87] Transcript of proceedings (28 September 2016) page 72 (lines 19-22).
[88] Exhibit 1, T Documents, T 15, page 68, Mr Stark’s Veterans’ Review Board Brief dated 29 November 2013.
In support of his hypothesis, Mr Stark relied on the comments made by his treating orthopaedic surgeon, Dr Hayes, to his general practitioner, Dr Sarson, in August 2012.
In that letter, Dr Hayes noted that the onset of Mr Stark’s condition was after his arthroscopy and “was possibly triggered by the trauma of his surgery”. He added that if Mr Stark required further surgery, “we may need to consider whether this would be a trigger for a further exacerbation of his neurological condition and research it prior to further surgical attempts”.[89]
[89] Exhibit 17, letter from Dr David Hayes to Dr Greg Sarson dated 14 August 2012.
Those remarks need to be viewed in the context of Dr Hayes’ broader correspondence on the topic. Mr Stark wrote to Dr Hayes some 10 months later, requesting a report to confirm whether there was a link between the surgery and the condition.[90] Dr Hayes told Mr Stark that he could not answer “off the top of (his) head”, as he had never seen the set of circumstances before; he said that he was writing to Dr Cameron to ask his opinion.[91] Finally, on 8 July 2013, Dr Hayes prepared a report saying that he believed that post-operatively, Mr Stark had developed an “unusual neuropathy” and had consulted
Dr Cameron about it. He noted that Dr Cameron had stated to him that there was no association between the surgery and the neuropathy. Dr Hayes added that he “did not advise Mr Stark of any neuropathy such as that which he has as being a potential consequence of his surgery”.[92]
[90] Ibid, letter from Dr David Hayes to Dr John Cameron dated 12 June 2013.
[91] Ibid, letter from Dr David Hayes to Mr Stark dated 11 June 2013.
[92] Ibid, letter from Dr David Hayes to Mr Stark dated 8 July 2013.
In the context of that correspondence, Dr Hayes’ opinion was non-committal at best. Having not experienced the set of circumstances before and not being a neurologist, he deferred to Dr Cameron. Dr Hayes was not called to give evidence at the hearing. Therefore, all that one can rely on is the course of correspondence outlined above. Based on that, I am not reasonably satisfied that Dr Hayes’ evidence would support the hypothesis advanced by Mr Stark.
The temporal association
The third “plank” of Mr Stark’s hypothesis is the temporal connection between the surgery and the rapid onset of the symptoms of CIDP within a fortnight. However, that approach is to ignore the key consideration that I have to address under s 29(2)(a)(iii) of the MRC Act, namely whether, as a consequence of the treatment, the relevant disease, or a sign or symptom of the relevant disease, was aggravated by the treatment. That question, however, has already been addressed by the neurologists.
Simply because the events happened within a relatively short timeframe does not mean that they were causally connected. As Dr Cameron explained during cross-examination, the fact that Mr Stark had surgery and that his condition was evolving does not mean that the two events were related. He said that the condition was present before the surgery and was evolving and getting worse at the time; it did not necessarily equate with ”cause and effect”. Dr Cameron concluded that it just happened to be coincidental that the condition exacerbated around the time of the surgery.
Mr Stark was disparaging of Dr Cameron’s conclusion of coincidence, pointing to a statistical analysis that he commissioned, which put the prospect of such a coincidence occurring at one trillion to one, at the least.[93] However, that approach ignores the task which the Tribunal has, of coming to the “persuasion of the mind” on the balance of probabilities and taking into account all of the evidence.[94] As the Tribunal has said previously, that is not a mathematical exercise:
The Tribunal interprets its task, based on these precedents, as having to be reasonably satisfied on each of the facts, and in so doing we must consider the seriousness or gravity of the matter in reaching the ‘persuasion of mind’ on the facts. However, being reasonably satisfied on each of the dependent facts is not an exercise which can be approached by way of statistical probability theory unless there is a clear independence of the facts involved; nor is it appropriate or necessary to identify the precise degree of certainty in respect of each of the facts and then calculate a cumulative probability score for all of the facts taken together. It is not possible to treat the evidence before the Tribunal with quantitative precision. [95]
[93] Exhibit 14, Applicant’s submissions, page 31.
[94] See Doolan and Repatriation Commission [1995] AATA 616, [8]. (Senior Member Lewis and Member Campbell; Member Coffey, dissenting).
[95] Ibid.
Indeed, Mr Stark previously conceded as much, deferring to the medical experts:
The statistics do not prove that the treatment and the condition are related as that is a medical discussion. This proposal looks at the possibility that they are NOT related and what can be inferred from that analysis.[96]
[96] Exhibit 1, T Documents, T 15, page 53, Mr Stark’s Veterans’ Review Board Brief dated 29 November 2013.
It follows from what I have said that I am not persuaded by Mr Stark’s submissions in relation to this “plank”.
The onset of the condition
The final “plank” on which Mr Stark’s hypothesis was constructed was what he described as Mr Clarke’s detailed evidence of onset. That factor, too, relied on the temporal connection between the surgery and the emerging symptoms.
Dr Cameron discounted Mr Clarke’s pre-surgery observations, noting that the latter’s examination was incomplete. It appeared that Mr Clarke did not undertake a physical examination, only a sensory one, and therefore did not measure such factors as strength, coordination and reflexes. Dr Cameron believed that Mr Stark’s condition existed long before the surgery and in “classical” CIDP style, was gradually evolving and getting worse. In re-examination, Dr Cameron was taken to a letter from Mr Stark’s general practitioner, Dr Sarson, dated 12 March 2012, in which he noted:
There is also a recent history of stocking paraesthesia in both legs. The [sic] have been intermittent foot paraesthesia for 6 months.[97]
Dr Cameron agreed that those remarks were relevant to the question of the evolving nature of CIDP prior to surgery. He said that Dr Sarson had documented a prior history of lower limb neuropathy prior to the surgery, which lent totally to what Dr Cameron had been saying, that the condition was exacerbating prior to the knee surgery. It showed the level of neurological deficit identified by a medical practitioner prior to the surgery.[98] Mr Stark disputed that, saying that the information would have been supplied by Mr Clarke.[99] That is curious, since Mr Clarke’s reports in the proceeding were silent as to those earlier observations. Indeed, his reports suggest that the first occasion on which he relevantly saw Mr Stark was 6 January 2012.[100] Mr Clarke was not called as a witness, so no clarification could be provided by him. Whatever the case, it appears that there were indications of exacerbation of the condition some five months before the surgery.
[97] Exhibit 17, letter from Dr Greg Sarson to Dr John Cameron dated 12 March 2012.
[98] Transcript of proceedings (28 September 2016), page 57 (lines 40-46).
[99] Ibid, page 58 (lines 16-26).
[100] See Exhibit 1, T Documents, T 21, page 142, report of Mr Alex Clarke dated 31 January 2014.
Dr Cameron also addressed Mr Clarke’s post-surgery observations of claimed onset. He was not surprised by Mr Clarke’s account of symptoms first being observed in the surgery leg but not the other, and later appearing in the other leg. He said that it was very typical for CIDP to be asymmetrical in its presentation, both in motor and sensory presentation. Dr Cameron explained that CIDP has a fluctuating course; it can be one of relapse and remission and can also be one of aggressive chronic deterioration. In Mr Stark’s case,
Dr Cameron said that his CIDP had been progressively evolving at the time of the surgery.
Dr Cameron’s evidence therefore calls into question the adequacy of at least Mr Clarke’s initial observations and the conclusions which can be drawn from them. His comments regarding the temporal connection between the events are equally apposite in this context. Having regard to Dr Cameron’s evidence, I am unconvinced by Mr Stark’s contentions on this “plank”.
Mr Stark’s hypothesis - overview
It follows from what I have said that I have significant doubts and reservations about the key planks on which Mr Stark’s hypothesis is based. As such, I am not reasonably satisfied by that hypothesis and am unpersuaded by it.
In contrast, I am reasonably satisfied by the alternative hypothesis, that there was no link between the surgery and the aggravation of the condition, and that the timing of the events was coincidental. Dr Cameron’s evidence was both forthright and consistent. He also offered an alternative and logical explanation to the “planks” on which Mr Stark’s hypothesis was built.
In the circumstances, there is no need for me to resort to the Commission’s Policy Manual, where the decision maker is encouraged to give the claimant the benefit of any doubt where the former is genuinely unable to decide between competing hypotheses.
Conclusion – s 23(2) of the MRC Act
For the reasons outlined above, I do not consider that liability for the claimed CIDP exists under s 23(2) of the MRC Act.
Does liability exist under s 23(1) of the MRC Act?
Mr Stark’s contentions
In the alternative, Mr Stark contended that liability should be found under s 23(1) of the MRC Act. His contention was based on the scenario that the surgery, in association with an underlying neuropathy directly related to IBD (an accepted condition under the SRC Act, namely ulcerative colitis (inactive)) resulted in the CIDP condition.[101] In those circumstances, it was said by Mr Stark that the CIDP was “related to defence service linked to a condition that would not have happened except for ‘rendered defence service while a member’”.[102] In support of that contention, Mr Stark relied on a Statement of Principles (“SoP”) determined by the Repatriation Medical Authority, relating to peripheral neuropathy (No. 75 of 2014) (“the PN SoP”).
The Commission’s contentions
[101] Exhibit 7, Applicant’s submissions dated 28 June 2016, pages 10-11.
[102] Exhibit 14, Applicant’s submissions, page 34.
For the Commission, it was first said that the IBD condition was long standing and that there was no evidence to suggest that it was aggravated post 1 July 2004 (being the date of the commencement of the MRC Act). It was therefore not, in the Commission’s submission, a MRC condition.[103]
[103] Exhibit 8, Respondent’s Amended Statement of Issues, Facts and Contentions dated 19 July 2016, [4.24].
Second, the Commission contended that the relevant factors outlined in the relevant SoP were not satisfied.
The operation of s 339(3) of the MRC Act
As mentioned earlier, s 339(3) of the MRC Act relevantly provides that, in applying
s 335(3) of that Act, the Commission (or Tribunal, as in this case) is to be reasonably satisfied that a disease contracted by a person is a service disease only if :
a)the material before the Commission (or Tribunal) raises a connection between the disease and some particular defence service rendered by the person while a member; and
b)the material and the SoP upholds the contention that the disease is, on the balance of probabilities, connected with that service.
Having regard to the material before me, I accept that it raises a connection between the disease and service.
The question is therefore whether, on the balance of probabilities, the material and the SoP uphold that contention. I deal with those questions below.
The applicable SoP
The relevant SoP concerning peripheral neuropathy which was in force at the time of the delegate’s decision was No. 42 of 2005. However, it, unlike the PN SoP, did not contain a factor relating to IBD. In those circumstances, it is appropriate to have reference to the PN SoP, which is both the current relevant SoP and also more beneficial to Mr Stark.[104]
[104] See Gorton v Repatriation Commission (2001) 65 ALD 609.
The PN SoP took effect from 22 September 2014. Clause 5 provides that at least one of the factors set out in cl 6 “must be related to the relevant service rendered by the person.” “Relevant service” is relevantly defined in cl 9 as “peacetime service under the (MRC Act).”
Clause 6 sets out a list of factors, one of which must exist before it can be said that, on the balance of probabilities, peripheral neuropathy is connected with the circumstances of the person’s relevant service. Paragraph (a) of cl 6 lists the factor, “having a systemic disease from the specified list at the time of the clinical onset of peripheral neuropathy.” The expression, “a systemic disease from the specified list”, is defined in cl 9 as including IBD (see paragraph (k) of the definition).
Clause 8 of the PN SoP provides:
In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
In other words, where there is a chain of injuries or diseases, it is necessary to consider each link in the chain. If a SoP exists for any of those injuries or diseases, it must be satisfied.
In the present case, there is a relevant SoP for IBD (which term includes ulcerative colitis), being SoP No. 20 of 2012 (“the IBD SoP”).[105] It likewise sets out the list of factors, one of which must exist before it can be said that IBD is connected with the circumstances of the person’s relevant service.[106] Considering that Mr Stark is not, and never has been, a smoker[107] (thereby excluding factor (a) in cl 6), the potential factors appear to be the following:
a)being treated with a drug or a drug from a class of drugs in the specified list, for at least the seven days before the clinical onset of, or the clinical worsening of, IBD (factors (d) and (g)); or
b)undergoing solid organ, bone marrow or stem cell transplantation before the clinical onset of, or the clinical worsening of, IBD (factors (e) and (h)); or
c)having clinical or laboratory evidence of a bowel infection in the one month before the clinical worsening of IBD (factor (i)); or
d)inability to obtain appropriate clinical management for IBD (factor (j)).
[105] See Statement of Principles concerning Inflammatory Bowel Disease, No. 20 of 2012, cl 3(b).
[106] Ibid, cl 6.
[107] Exhibit 1, T Documents, T 40, page 253, Annual Health Assessment dated 10 March 2011.
Not unlike the PN SoP, cl 5 of the IBD SoP stipulates that at least one of the factors in cl 6 must be related to the person’s “relevant service”, which is relevantly defined as “peacetime service under the (MRC Act)”.[108]
Does Mr Stark satisfy the SoP?
[108] Statement of Principles concerning Inflammatory Bowel Disease, No. 20 of 2012, cl 9.
It is not disputed that in January 1991, liability was accepted under the SRC Act for amoebic dysentery. Liability under the SRC Act was subsequently extended on 23 March 2015 to include “ulcerative colitis (inactive) and mild, intermittent post-infective/inflammatory IBS (irritable bowel syndrome).”[109] Mr Stark explained that the ulcerative colitis went into apparent remission subsequent to late 1993. As the condition is never “cured”, it was treated as being in remission, hence the reference to it being “inactive”.[110]
[109] Exhibit 18, Attachment A 2, pages 8-9, letter from Department of Veterans’ Affairs to Mr Stark dated 23 March 2015.
[110] Exhibit 1, T Documents, T 2, page 23, Application for Review of Decision dated 17 January 2015.
What remains uncertain, however, is the date of clinical onset of the ulcerative colitis, or its clinical worsening, for the purposes of the IBD SoP. In particular, it is not known whether either occurred before, on or after 1 July 2004, being the date on which the MRC Act, and peacetime service under it, commenced. While one may speculate as to whether such events occurred before, on or after that date, there is no evidence before the Tribunal that would establish those matters to my reasonable satisfaction.
Equally problematic is that there is no evidence before me that would satisfy the factual scenarios on which the relevant factors are premised. Even if the issues of timing and of clinical onset or clinical worsening could be satisfactorily addressed, there is simply no evidence to suggest that: Mr Stark was treated with a drug or a drug from a class of drugs in the specified list; Mr Stark underwent solid organ, bone marrow or stem cell transplantation; there was clinical or laboratory evidence of bowel infection; or there was an inability to obtain appropriate clinical management for IBD.
For those reasons, I am not satisfied that the IBD SoP is satisfied and that it upholds
Mr Stark’s contention.
The consideration of the PN SoP likewise encounters a similar issue relating to the date of clinical onset of peripheral neuropathy. Factor (a) of cl 6 requires the person to have a systemic disease from the specified list (being IBD) “at the time of the clinical onset of peripheral neuropathy” before it can be said that the peripheral neuropathy “is connected with the circumstances of (their) relevant service”. Again, there is no evidence before me that establishes the date of clinical onset. For that reason, and given the views I have expressed in relation to the IBD SoP, I am not satisfied that the PN SoP is met and upholds Mr Stark’s contention.
Mr Stark referred me to the provisions of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth). However, I do not consider that provides assistance in the absence of the necessary evidence to satisfy the SoPs.
Is there a liability under s 23(1)?
As well as not being satisfied that the relevant SoPs uphold the contention, I am also not satisfied that the contention is otherwise upheld by the material before the Tribunal.
The possibility of the immune responses from the surgery and from an underlying peripheral neuropathy associated with the IBD combining to result in a further significant response, was dismissed by Dr Cameron on the basis that there was no evidence to suggest that would occur. Similarly, it appears that Dr Limberg agreed that there was no current body of literature to support that hypothesis, although she was open to speculating about it. In the absence of supporting medical evidence, I am not reasonably satisfied that the contention is upheld by the material before me.
In summary, I consider that neither the material before me nor the SoPs uphold Mr Stark’s contention. Consequently, I do not consider there is a liability under s 23(1) of the MRC Act.
A final matter
Before concluding, I should mention one other matter raised by Mr Stark in his submissions. He suggested that because IBD was an accepted condition under the SRC Act, it was open to me to find under the SRC Act that CIDP resulted due to defence service through the previously accepted SRC Act condition.[111] I disagree. In addition to the matters outlined in detail already, I consider that such an order would be outside the scope of the review of the decision under review, and therefore, beyond my jurisdiction.
[111] Exhibit 7, Applicant’s submissions dated 28 June 2016, pages 4 and 11.
CONCLUSION
For the reasons I have outlined earlier, I do not consider that the arthroscopic procedure Mr Stark underwent in January 2012 aggravated his CIDP condition. There is therefore no liability in respect of the claimed CIDP under s 23(2) of the MRC Act.
Nor do I consider that liability exists under s 23(1) of the MRC Act, in that I am not reasonably satisfied that the claimed CIDP was a service disease within s 27 of the MRC Act.
Accordingly, the decision under review is affirmed.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member
A C Cotter................................[Sgd]......................................
Associate
Dated 17 November 2016
Date of hearing 28 September 2016 Applicant In person Advocate for the Respondent Mr Ben Dube Solicitors for the Respondent Mr Matthew Hawker, Sparke Helmore Lawyers
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