Stark and Military Rehabilitation and Compensation Commission (Compensation)

This matter concerned an appeal by Mr Stark against a decision of the Military Rehabilitation and Compensation Commission (Commission) which denied his claim for compensation for Chronic Inflammatory Demyelinating Polyneuropathy (CIDP). Mr Stark contended that his CIDP was either a "service disease" or had been aggravated by treatment provided by the Commonwealth, specifically an arthroscopic knee surgery he underwent in January 2012. The Commission had previously rejected his claim, and this decision was affirmed by the Veterans’ Review Board. The Administrative Appeals Tribunal was required to determine whether liability existed under the *Military Rehabilitation and Compensation Act 2004* (Cth) for Mr Stark's CIDP.

The primary legal issues before the Tribunal were whether Mr Stark's CIDP constituted a "service disease" under section 23(1) of the *Military Rehabilitation and Compensation Act 2004* (MRC Act), or whether it was aggravated by treatment provided by the Commonwealth under section 23(2) of the MRC Act. Mr Stark argued that the surgery was the antecedent event that aggravated a pre-existing neuropathy, and that the Commission's policy required the benefit of doubt to be given if the decision-maker was unable to decide. The Commission contended that the evidence did not establish a causal link between the surgery and the CIDP, and that mere possibility was insufficient to establish liability. The Tribunal also considered a preliminary issue raised by Mr Stark regarding the validity of the original delegate's decision, which he argued was made under the wrong legislative provisions.

The Tribunal found that the preliminary issue regarding the validity of the original delegate's decision did not affect its jurisdiction, as the Tribunal's review was de novo and it was not bound by previous findings. Regarding the substantive claim, the Tribunal considered the medical evidence, including reports from neurologists. Dr Limberg suggested that surgery could implicate aggravation of a possible existing neuropathy, stating it was more probable than not that the surgery could be implicated in the development of postoperative neuropathy. However, Dr Cameron, who diagnosed Mr Stark with CIDP, concluded that the condition was pre-existing and that the arthroscopic procedure had no connection to it, nor did it cause any exacerbation. Dr Cameron noted a lack of scientific literature supporting such a link. The Tribunal applied the standard of "reasonable satisfaction" as interpreted in *Repatriation Commission v Smith*, which requires more than inexact proofs or indefinite testimony. The Tribunal was not reasonably satisfied that the surgery aggravated Mr Stark's CIDP, nor that CIDP was a service disease under section 27 of the MRC Act.

Consequently, the Tribunal affirmed the decision under review. It found no liability under section 23(2) of the MRC Act because the arthroscopic procedure was not considered to have aggravated Mr Stark's CIDP. Furthermore, no liability was found under section 23(1) as the Tribunal was not reasonably satisfied that CIDP was a service disease. The Tribunal also declined to make an order under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) in relation to an accepted Inflammatory Bowel Disease condition, deeming it outside the scope of the review.