Wood and Military Rehabilitation and Compensation Commission

[2007] AATA 2097

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2097

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/2157

VETERANS’ APPEALS DIVISION                  )

Re MATHEW JON WOOD

Applicant

And MILITARY REHABILITATION and COMPENSATION COMMISSION 

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date21 December 2007

PlaceBrisbane (Heard in Townsville)

Decision The The Tribunal sets aside the decision under review and substitutes its decision that post-procedural disorder of the nervous system sustained in the surgical procedure on 22 October 2004 is a service injury or a service disease as provided for in s 29 of the Military Rehabilitation and Compensation Act 2004.

...............Signed...............

RG Kenny
  Member

CATCHWORDS

COMPENSATION – applicant underwent surgery for resection of the arteriovenous malformation – applicant suffered post procedural disorder of the nervous system as a result of the surgery – medical opinion that outcome represented a 20% risk – outcome not a likely consequence of treatment and an unintended consequence of treatment – post procedural disorder of the nervous system a service injury or disease – decision under review set aside

Military Rehabilitation and Compensation Act 2004 (Cth) ss 23, 29
Defence Force Regulations 1952 (Cth) r 58F
Defence Act 1903 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 6A

Comcare v Houghton (2003) 128 FCR 485
Glendenning and Comcare (2004) 78 ALD 723
Dodd and Military Rehabilitation and Compensation Commission [2007] AATA 1399
Parker and Military Rehabilitation and Compensation Commission (2006) 92 ALD 654

REASONS FOR DECISION

21 December 2007    Mr RG Kenny, Member

Background

1.      Mathew Wood was serving in the Australian Regular Army when, in 2004, he experienced symptoms of right hemi-sensory loss and underwent investigation for hemiparaesthesia.  CT scans in August 2004 revealed a vascular lesion centred in the left side of his midbrain.  On 22 October 2004, Professor Michael Morgan performed a craniotomy under general anaesthetic.  This resulted in a complete resection of the arteriovenous malformation (AVM).  As a result of the procedure, Mr Wood now suffers left ptosis and right hemianesthesia and weakness and incoordination of the right upper and lower limb.  He also has difficulty with walking due to sensory loss and lack of coordination of his right lower limb.  While cognitive function is intact, his left eye function was impaired with complete third cranial nerve palsy.

2.      On 2 February 2005, Mr Wood lodged a claim under the Military Rehabilitation and Compensation Act 2004 (the MRC Act) with the Military Rehabilitation and Compensation Commission (MRCC) for the effects upon him of the surgical procedure on the basis that they resulted from the operation. On 27 July 2005, a delegate of the MRCC rejected liability for post procedural disorder of the nervous system sustained in the surgical procedure on 22 October 2004. On 5 April 2007, the decision was affirmed by the Veterans’ Review Board and Mr Wood now seeks further review by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

3. It is not in dispute that Mr Wood was a member the Australian Defence Force with relevant peacetime service who was entitled to medical treatment for an injury or disease: see r 58F of the Defence Force Regulations 1952 made under the Defence Act 1903. Under s 23(2) of the MRC Act, where, as in this case, an appropriate claim has been made, the MRCC must accept liability for certain injuries sustained or diseases contracted by a member. Under s 29 of the MRC Act, this extends to an injury or disease which was an unintended consequence of medical treatment provided by the Commonwealth.

4.      The issue for determination is whether or not Mr Wood’s neurological deficit which resulted from the surgical procedure was an unintended consequence of that procedure.   

Medical Evidence

5.      The medical evidence in this case included several reports from Professor Morgan.  On 29 September 2004, he wrote that he had discussed with Mr Wood the risks, expectations and management alternatives available in relation to the AVM.  He described a 90% chance of a significant haemorrhage later in Mr Wood’s life with a 50% chance that such haemorrhage would lead to death or significant disablement.  He advised that the most appropriate treatment was microsurgery and wrote:

There is a 20% chance of some very bad thing happening to Mathew at surgery and we discussed this including the risk of paralysis, loss of vision, loss of memory, loss of speech, loss of sensation and death.

6.      After the surgery was completed, Professor Morgan completed a report on 28 October 2004 where he noted that the surgery had proceeded well but that he was concerned that the AVM was being removed from a critical location in the midbrain and thalamus.  On 11 April 2005, Professor Morgan expressed the opinion that the post-operative neurological deficit suffered by Mr Wood was “undoubtedly related to the eloquence of the [AVM] resection site”.  He completed a further report on 11 December 2006 in response to specific questions concerning the probabilities of consequences following from the surgical procedure.  He wrote:

My estimate of the degree of chance, was related to my past experience of arteriovenous malformation surgery having operated on over 500 cases.  He had a Spetzler Martin Grade IV arteriovenous malformation. Grade I being the simplest and most straightforward and Grade V being the most complex.  Although Grade IV arteriovenous malformations are associated with a risk such as I described, the small size of Mr Wood’s arteriovenous malformation made me believe that the risks associated with resecting this were approximately 20%.

7.      Professor Morgan also said that it was not possible to allocate a percentage point for every particular adverse consequence of the surgical procedure but that the sum total of potential complications was approximately 20%.

Consideration

8. Other cases referred to in submissions in this matter were decided under s 6A of the Safety, Rehabilitation and Compensation Act 1988 which is in terms similar to s 29 of the MRC Act. I am satisfied that those authorities assist with the interpretation of s 29 of the MRC Act. These require that the relevant condition must have been caused by the treatment and must be conceptually distinct from the treatment itself: see Comcare v Houghton (2003) 128 FCR 485 at 492. Also, an unintended consequence is one that is not desired, aimed for or designed by the provider of the medical treatment and which is not a likely consequence of the medical treatment: see Glendenning and Comcare (2004) 78 ALD 723 at 732.

9.      On the evidence of Professor Morgan, I am satisfied that the first of those requirements is met.  I am also satisfied that the deficit experienced by Mr Wood is of the kind included by Professor Morgan in his 20% risk estimate.

10.     In Glendenning and in Dodd and Military Rehabilitation and Compensation Commission [2007] AATA 1399, there was no evidence of an estimate, expressed in percentage terms, of the level of risk of the adverse outcome occurring. In Glendenning, the Tribunal found that there was a “high degree” of likelihood that gastric erosions would result from treatment with nonsteroidal anti-inflammatory drugs and this meant that they were not an unintended consequence of the treatment.  In Dodd, the “inevitability” of the failure of temporary cement used to attach crowns to Mr Dodd’s teeth meant that this outcome was not an unintended consequence of his dental treatment.  In Parker and Military Rehabilitation and Compensation Commission (2006) 92 ALD 654, the adverse outcome was loss of vision as a result of laser surgery. The medical evidence was that there had been a 5–10% prospect of serious complications as a result of that procedure. The Tribunal determined that a risk of 5-10% that an event would occur did not mean that the event was likely to occur and that the loss of vision was an unintended consequence of the treatment.

11. Mr Dube submitted that the analysis of whether the condition was “likely” in the context of s 29 of the MRC Act was not one which was to be determined on the balance of probabilities. He also submitted that consideration needed to be given to the delicate nature of the procedure in Mr Wood’s case in that it involved brain surgery. He also submitted that regard should be had to Professor Morgan’s evidence that the arteriovenous malformation was “critically located”. For Mr Wood, Mr MacDonald submitted that the 20% level of risk described by Professor Morgan was in the order of that which arose in Parker and that the same outcome should prevail. 

12.     In assessing the likelihood of the consequence of Mr Wood’s surgical procedure, I accept the contention that regard must be had to the delicate nature of the surgical procedure and location of the arteriovenous malformation.  However, Professor Morgan has completed more than 500 such procedures and it was he, mindful of the delicate nature of that surgery and the site and size of the particular arteriovenous malformation in Mr Wood’s case, who was, nevertheless, able to provide the estimate of a 20% risk level.  Further, he was able to do this both before and after the procedure was carried out.  I am satisfied that the matters, properly referred to by Mr Dube, were structured into Professor Morgan’s assessment of the risk.  I also consider it significant that his report of 11 December 2006, where he confirmed the 20% estimate, was completed in response to specific questions directed to him about the level of risk associated with the surgical procedure. 

13.     I also accept Mr Dube’s submission that the matter should not be concluded on the balance of probabilities.  The nature of the assessment undertaken by the Tribunal in Parker is not clear but it was not determined on the balance of probabilities.  In that case, the risk was at the lower end of a risk scale and below Professor Morgan’s estimate in Mr Wood’s case.  Nevertheless, I am satisfied that a 20% risk does not represent a likely outcome.  It follows, therefore, that the consequences experienced by Mr Wood from the surgical procedure were unintended and that the Commonwealth is liable to compensate him.

Decision

14. The Tribunal sets aside the decision under review and substitutes its decision that post-procedural disorder of the nervous system sustained in the surgical procedure on 22 October 2004 is a service injury or a service disease as provided for in s 29 of the MRC Act.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .................Signed.....................................................
  Legal Research Officer

Dates of Hearing  15 November 2007
Date of Decision  21 December 2007
Representative for the Applicant    Mr A MacDonald
Counsel for the Respondent          Mr B Dube
Solicitor for the Respondent          Australian Government Solicitor