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VeRBosity Volume 21 No

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VeRBosity Volume 21 No ...

    VeRBosity Volume 22 No. 2

     April June 2006

    Contents Editors notes Defence service under the VEA 36 This issue marks a new era for VeRBosity now in its twenty-first year. We will now also

    Unintended consequence of include articles, and report on cases under the

    medical treatment (MRCA) 38 SRCA, that relate to issues relevant to matters under the MRCA. Administrative Appeals Tribunal By the end of the 2005-06 financial year, the Oxley (whether a member) 50 Board had been notified of 11 applications for review that had been lodged under s 352 of Robertson (experiencing stressor) 51 the Military Rehabilitation and Compensation Act 2004 (the MRCA). Only 2 applications had Green (war widow’s pension) 54 been made under the MRCA in the 2004-05 financial year. Streatfield (war widow’s pension) 56 These cases concern a variety of new and

    Parker [SRCA case] interesting issues for the VRB.

     (unintended consequence) 58 One of these new issues concerns claims for injury or disease said to be the result of an Federal Court of Australia unintended consequence of medical treatment Constable Full Federal Court obtained under the Defence Force Regulations (experiencing severe stressor) 60 or the MRCA. An article on that issue is included in this edition of VeRBosity. There is Butcher (special rate) 62 also a case note on Re Parker, in which this issue was raised in the context of the Military Paterson (reasonable hypothesis) 67 Compensation and Rehabilitation Scheme under the Safety, Rehabilitation and Leigh (temporary special rate) 69 Compensation Act 1988 (the SRCA).

    As always, comments, questions and Federal Magistrates Court of Australia

    feedback on any aspect of VeRBosity are most Richardson (reasonable hypothesis) 72 welcome.

    Repatriation Medical Authority Trina McConnell

    Editor Statements of Principles 74 Investigations 75 Index of AAT & Court cases 78

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    Defence service under the VEA

    Service on or after 7 December 1972

    Defence service is defined as continuous Defence

    full-time service rendered on or after

    7 December 1972 and before the service under 1 This ‘terminating date’ (7 April 1994).

    definition must be considered in light of the VEA further conditions relating to eligibility in

    sections 68 and 69.

    Background The terminating date does not bring

    Eligibility for ‘defence service’ was defence service to an end if the member

    introduced in Repatriation legislation in continued to render continuous full-time

    1973, and backdated to 7 December 1972, service from before the commencement

    2the date of the announcement by the of the VEA (22 May 1986). Whitlam government that: If there was a break in service between ? conscripted members who completed 22 May 1986 and 7 April 1994, service on or their term of National Service; and after 7 April 1994 is not ‘defence service’. ? full-time members of the ADF who If there is a break in service after 7 April

    had rendered 3 years effective full-1994, then any service rendered after that

    time service, break is not ‘defence service’. would be eligible for Repatriation Section 70A of the VEA effectively

    benefits. brought all ‘defence service’ to an end on

    30 June 2004. In 1986, the VEA continued eligibility for

    such defence service but provided that it 3 years effective full-time service

    would terminate upon the establishment Except for members completing their of a Military Compensation Scheme. 3term of National Service or rendering

    4That Scheme came into operation on hazardous service, a basic eligibility 7 April 1994 upon the commencement of requirement for ‘defence service’ is that the Military Compensation Act 1994. the person rendered 3 years effective full-

    5time service. Sections 68 and 69 of the VEA

    Effective full-time service is any period of Section 68 defines ‘defence service’ and

    continuous full-time service other than ‘effective full-time service’.

    Section 69 states that the VEA applies only to certain members who have rendered 1 Para (a), definition of ‘defence service’, s 68(1). defence service. Not everyone who has 2 Para (b), definition of ‘defence service’, s 68(1). rendered ‘defence service’ is eligible 3 The 3 years effective full-time service requirement does not apply if the member had been conscripted under the VEA. The only members and completed their term of National Service under eligible are those identified in s 69 as the National Service Act 1951: see s 69(1)(f). being members to which Part IV of the 4 Subsection 69A(1). VEA applies. 5 Subsection 69(1).

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    Defence service under the VEA

    any period of more than 21 consecutive from an earlier period must involve at

     6days in which the person was:least 3 years effective full-time service.

    ? on leave of absence without pay; Medical discharge exceptions ? absent without leave; If a member died or was discharged for a

    medical reason, the requirement to ? awaiting or undergoing trial in

    complete the term of national service does respect of an offence of which the 8not apply. Similarly, the requirement to member was later convicted;

    complete 3 years effective full-time ? undergoing detention or imprisonment; service does not apply if the person died or or was discharged for a ? an officer who was 9medical reason. Part-time service excluded engaged in study on

    If it can be shown that appointment and was As ‘defence service’ is defined in the real reason a not regarded by the terms of ‘continuous full-time person was service’, it means that it does not ADF as rendering

    discharged was a include part-time service. effective full-time

    medical condition, it service while engaged Peacekeeping service excluded does not matter that in that study.

    the formal reason was Defence service does not include The 3 year period of 10something else.any period of ‘peacekeeping effective full-time service service’, but such service counts Proviso to the could have commenced as ‘effective full-time service’. medical discharge before 7 December 1972. exception Hazardous service included For example, if a member

    If a member is served from 1968 to 1973, Defence service includes any discharged for a the member would have periods of ‘hazardous service’,

    medical reason within eligibility for the period whether before or after the

    12 months of ‘terminating date’. from 7 December 1972 to

    enlistment or the date of discharge in

    appointment, the medical 1973. The full-time service rendered

    discharge exception to the 3 year rule does before 7 December 1972 counts towards

    not apply if the discharge was caused or the 3 years effective full-time service, but

    substantially contributed to by a medical is not ‘defence service’.

    condition that existed when the person If a person had more than one period of commenced continuous full-time service defence service, each subsequent period and had not been aggravated by that must have satisfied the eligibility 11service. requirements if it did not immediately

    follow the earlier period.7 For example, each period that was separated in time 8 Sub-sub-para 69(1)(f)(ii)(B).

    9 Paras 69(1)(d), (e). 610 Definition of ‘effective full-time service’ in s 68(1). Whiteman v DVA (1996) 141 ALR 106, 12 VeRBosity 77

    711 Subsections 69(2), (3). Subsection 69(5).

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    Unintended consequence of medical treatment (MRCA)

    Unintended consequence of

    medical treatment (MRCA)

    Background provided wholly or partly by

    the Commonwealth; or The Military Rehabilitation and Compensation

    (ii) the person receives any Act 2004 (the MRCA) includes a concept of

    treatment under regulations acceptance of liability for an injury or

    made under the Defence Act disease that was the unintended 1903; and consequence of medical treatment obtained

    (b) as an unintended consequence of under the Defence Regulations or the that treatment, the person sustains MRCA. the injury or contracts the disease. This is an extension of a provision that Liability for injuries and diseases was first introduced in the Safety, aggravated by treatment Rehabilitation and Compensation Act 1988

    (2) For the purposes of this Act, an (the SRCA) in 1994. Section 6A of the injury sustained, or a disease SRCA deemed an injury that was the contracted, by a person is a service unintended consequence of medical injury or a service disease if: treatment obtained at Commonwealth (a) either: expense to have ‘arisen out of or in the (i) the person receives treatment course of employment’. under this Act for the service Section 29 of the MRCA provides: injury or disease and the

    treatment is paid for or 29 Definitions of service injury, provided wholly or partly by service disease and service death the Commonwealth; or arising from treatment provided by (ii) the person receives any the Commonwealth treatment under regulations

    Liability for injuries and diseases caused by made under the Defence Act

    treatment 1903; and

    (b) as an unintended consequence of (1)For the purposes of this Act, an that treatment, the injury or injury sustained, or a disease disease, or a sign or symptom of contracted, by a person is a service

    the injury or disease, is aggravated injury or a service disease if:

    by the treatment. (a) either:

    Liability for deaths caused by treatment (i) the person receives treatment

    under this Act for an earlier (3) For the purposes of this Act, the service injury or disease and death of a person is a service death if: the treatment is paid for or (a) either:

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    Unintended consequence of medical treatment (MRCA)

    (i) the person receives treatment for the purpose of discharging the

    under this Act for a service member’s duties. injury or disease and the (2) The Minister may determine, in treatment is paid for or writing, conditions on which the provided wholly or partly by

    treatment is to be provided to a the Commonwealth; or

    member, having regard to: (ii) the person receives any

    treatment under regulations (a) the treatment facilities

    made under the Defence Act available under the

    1903; and circumstances (including the

    place where the member is (b) as a consequence of that treatment,

    the person dies. serving); and

    (b) the duties of the member; and What treatment is covered? (c) the operational requirements

    of the Defence Force. The treatment that is covered by s 29 is:

    Section 29 of the MRCA potentially ? treatment for a service injury or

    applies in relation to any treatment disease under the MRCA; or

    obtained under r 58F. ? any treatment under the Defence

    Regulations. What is a consequence? Former members who have a Gold Card If X is a ‘consequence’ of Y, then X has

    12for treatment under the MRCA are been caused by Y. If an injury or a

    entitled to be treated for any injury or disease is a consequence of treatment, it disease, whether it is a service injury or must have been caused by the treatment, disease or not. However, s 29 will not and not merely be an injury or disease apply if the person is treated for a that arose during or in the course of the non-service injury or disease under the treatment. Causation must be established MRCA. on the balance of probabilities. Members of the ADF are entitled to The following cases provide examples of treatment for any injury or disease, what have been held not to be

    whether a service injury or disease or not, consequences of treatment: under Defence Force Regulations. 13? In Re King, the AAT found that the Regulation 58F of the Defence Force death of the tooth may have been Regulations 1952 provides: able to be prevented if those treating

    58F Provision of medical and the applicant using a banding

    dental treatment procedure had not overlooked the

    need for X-rays and, with the (1) Subject to subregulation (2), the

    Commonwealth must provide the

    medical and dental treatment

    required to keep a member healthy 12 American Home Assurance Co v Saunders (1987) 11 NSWLR 363

    13 Re King and MRCC (2005) 83 ALD 322

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    Unintended consequence of medical treatment (MRCA)

    introduction of that infectious agent assistance of appropriate X-rays, had into the right tibia was not designed found the fracture and referred Mr or aimed for. Nevertheless, the King for endodontic treatment. On likelihood of its occurrence was the evidence, that was no more than foreseen and preventative treatment a mere possibility. Similarly, there was administered. It was an was no evidence that the tooth occurrence despite the administration probably died in consequence of the of preventative treatment. It was an banding treatment. injury that was neither unavoidable 14 the AAT noted ? In Re Price-Beck,nor outside the realm of probability that a failed root canal treatment in the circumstances at the time. The caused by reinfection of the tooth infection happened despite treatment was not necessarily a consequence of rather than because of it. the treatment performed, but rather

    16? Re Elliottoccurred in spite of it. The AAT concerned alleged

    found that the infections experienced aggravation of a disease by treatment. over the years were as a consequence The applicant was treated with anti-of residual bacteria that remained in inflammatory drugs for psoriatic the tooth in spite of any treatment arthritis. The AAT found that even if aimed at removing it. The infection in treatment with other drugs may have the tooth was caused from the initial delayed the erosive effect of the blow to the tooth which disrupted psoriatic arthritis, the treatment the blood supply and allowed provided to the applicant did not bacteria to form. That bacteria contribute to the progression of the remained despite any efforts to disease. The results that flowed from remove it via root canal therapy. The that treatment, while they did not AAT found that the infection was a halt the progression of the disease, consequence of the bacteria that did not contribute to the progression remained in the tooth and could not of the disease. be said to be a consequence of any What is an unintended consequence? medical treatment performed.

    A number of cases have considered the 15? Similarly, in Re Penny, the meaning of unintended consequences treatment was designed to repair a under the SRCA. fractured tibia and to prevent

    17The leading case, Comcare v Houghton, infection even though there was a

    indicates that the process involves a high likelihood that the plating

    number of steps: procedure would result in

    osteomyelitic infection. The

    1416 Re Price-Beck and Comcare (2003) 74 ALD 187, Re Elliott and Comcare (2001) 64 ALD 423, [2001] [2003] AATA 386 AATA 305

    1517 Re Penny and MRCC [2004] AATA 1004 Comcare v Houghton [2003] FCA 332

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    Unintended consequence of medical treatment (MRCA)

    treatment process, then it cannot have 1. Identify the injury or disease that is said been unintended. to have resulted from the treatment;

    20In Re Eaton, the applicants cervix was 2. Decide whether that injury or disease partially removed in treating her for a was caused by the treatment and was pre-cancerous condition. The AAT held not merely associated with the the scarring of her cervix was not an treatment; unintended consequence of medical

    3. Decide whether the injury or disease treatment. It was inevitable that because

    was unintended. part of the cervix was removed, the

    remaining cervix would be scarred. Being unintended requires more than

    that it was undesired. A result is not What is a likely consequence? unintended if it was, and was always

    The SRCA cases provide examples of known to be, an unavoidable direct what is meant by a likely consequence consequence of the medical treatment, (and so would not give rise to liability): albeit one which those administering the

    treatment did not positively desire, seek ? gastric erosions caused by ingestion or aim to produce. of non-steroidal anti-inflammatory

    18tablets were found to be highly that an The Court agreed with Re Eaton21likely’—Re Glendenning;unintended consequence is one that: ? is not desired, or aimed for, or ? total hearing loss from an operation

    designed by the provider of the that would probably result in total

    medical treatment; and hearing loss, but by which there was

    a slim chance of preservation of ? is not a likely consequence of the 22hearingHoughton; medical treatment.

    ? damage to the facial nerve and that This definition was used in the Explanatory numbness and paresthesia to areas of 19Memorandum to the MRC Bill. the face and ear following What is not desired, or aimed for, or parotidectomy were common known designed by the provider? consequences of this surgeryRe

    23Schoobert. The first leg of the meaning of

    unintended consequence is that it not be The following SRCA case provides an desired, or aimed for, or designed by the example of what is not a likely provider of the treatment. If a particular

    consequence was meant to be part of the

    20 Re Eaton and Comcare (2002) 67 ALD 182, [2002] AATA 222

    21 Re Glendenning and Comcare (2004) 78 ALD 723, 18 Re Eaton and Comcare (2002) 67 ALD 182, [2002] [2004] AATA 6 AATA 222

    22 Comcare v Houghton [2003] FCA 332 19 The text of the Explanatory Memorandum for this 23clause is set out at page 49, below. Re Schoobert and MRCC [2004] AATA 1087

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    Unintended consequence of medical treatment (MRCA)

    An injury or disease accepted on this consequence of treatment (and so might basis becomes a ‘service injury or give rise to liability): disease’, but compensation for

    ? blindness following a surgical permanent impairment or incapacity for

    procedure. In this case, blindness service or work may only be payable to

    would likely have occurred whether the extent and duration of the

    the operation happened or not; the 25aggravation.

    success rate for the operation was Rehabilitation may be provided for the low; but the risk of adverse results entire injury or disease once liability has caused by the operation itself were 26been accepted, and compensation for rated at between 5% and 10%. the cost of treatment may be paid while Blindness caused by the operation 27the effects of the aggravation persist. was considered not to be likely

    where the risk of such a consequence Treatment under the MRCA was between 5% and 10%: Re Parker.

    There is a restriction on the particular (It should be noted that while the

    injury or disease to which subsection 29(2) Tribunal accepted liability for the

    applies if the treatment was under the blindness, it found that there was no

    MRCA rather than the under Defence permanent impairment resulting

    Force Regulations. from the injury because Mr Parker

    would have been blind in any event Subparagraph 29(2)(a)(i) indicates that due to the disease for which he was the injury or disease that is aggravated being treated, and so no permanent must be the injury or disease that was impairment compensation was being treated. This is indicated by the 24 payable.)phrase, the service injury or disease.

    The definite article, the, refers back to Aggravation of an injury or disease, or

    sign or symptom, as an unintended the injury or disease that is the subject of consequence of treatment the claim. If that were not so, the

    indefinite article, an would have been Subsection 29(2) provides that an injury

    used. or disease is a service injury or disease if,

    as an unintended consequence of This means that if the relevant treatment treatment, the injury or disease, or a sign is treatment under the MRCA, the or symptom of the injury or disease, was claimed injury or disease must be one for aggravated by that treatment. which liability has already been accepted

    under the MRCA. Presumably the only Instead of the unintended consequence

    reason why a new claim for acceptance of being a new injury or disease, it is,

    liability would be made in relation to that instead an aggravation of an injury or

    injury or disease is because it was disease or an aggravation of a sign or

    symptom of an injury or disease.

    25 For example, see s 70 and 72 of the MRCA.

    26 See s 43 of the MRCA. 24 Re Parker and MRCC [2006] AATA 440. See the 27case note at page 58, below. See s 283 of the MRCA.

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    Unintended consequence of medical treatment (MRCA)

    Section 30 of the MRCA concerns signs or previously accepted on the basis of symptoms that have been aggravated or aggravation or material contribution, and contributed to in a material degree. If a so compensation would have been person had a pre-existing lumbar payable only in relation to the effects of spondylosis that caused a loss of normal that earlier aggravation or material range of movement, and due to an event contribution and not for the effects of the on service the persons range of aggravation caused by the treatment. movement was limited even further but

    only for a temporary period (and there Treatment under the Defence Force

    Regulations was no aggravation of the underlying

    disease), then the further limitation of the There is no similar restriction in s 29(2) if range of movement would be regarded the relevant treatment was under the as an aggravation of a symptom of the Defence Force Regulations. The disease, and the lumbar spondylosis aggravation caused by treatment of an would be accepted as a service disease injury or disease can be to any injury or on that basis. disease, not necessarily the one being

    If, instead, the person developed treated.

    temporary sciatic pain from lumbar Aggravation by treatment is spondylosis as a result of an event on compensable but not material service (and there was no aggravation of contribution by treatment the underlying disease), it could not be

    said that sciatic pain was aggravated by On most occasions in the MRCA when

    service because it did not exist before the the term aggravated is used, it is used in

    event. Instead, the sciatic pain would be conjunction with contributed to in a 28 Subsection 29(2) does regarded as a symptom that was material degree.

    not do so. This would appear to indicate contributed to in a material degree by

    that s 29(2) applies only to the aggravation service, and the lumbar spondylosis of an injury or disease or a sign or would be accepted as a service disease

    symptom by treatment, and not to the on that basis. material contribution to an injury or The non-mention of material disease or a sign or symptom by contribution in s 29(2) would appear to treatment. preclude an injury or disease being

    accepted as due to an unintended What is the difference between

    consequence of treatment if the aggravation and material contribution?

    unintended consequence of treatment is a The difference between aggravation and new sign or symptom rather than an material contribution is best explained by aggravation of an existing sign or an example. symptom or an aggravation of the

    underlying injury or disease.

28 For example, s 27(d), s 28(1)(d), s 28(2), and s 30.

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    Unintended consequence of medical treatment (MRCA)

    Do Statements of Principles apply? treatment need not have been for a

    service injury or disease)? In cases to which section 29 applies, it is

    not necessary to meet a factor in a 4. Was the treatment obtained under Statement of Principles (SoPs). the MRCA for a service injury or

    disease? Sections 338 and 339 of the MRCA, which

    provide for the application of SoPs, state 5. What was the treatment what did it

    that they apply only to the acceptance of involve, and how was it liability under s 23(1) or s 24(1) of the administered or performed? MRCA. Subsection 23(1) of the MRCA 6. Was the claimed injury or disease relates to the liability connections in s 27. caused or aggravated by that Subsection 24(1) relates to the liability treatment? It will not have been connections in s 28. caused or aggravated by the The omission of a reference to s 29 in treatment if the claimed injury or s 23(1) and s 24(1) means that the SoPs do disease or its worsening: not apply to any connections alleged ? was merely coincidental with the under s 29. treatment; or Standard of proof ? occurred despite the treatment. The standard of proof that applies in all 7. Was the injury or disease (or its cases concerning s 29 is the reasonable aggravation) unintended in the satisfaction (balance of probabilities) sense that it was neither: standard.

     desired nor aimed for nor This is indicated in the Notes to s 23(2) designed by the provider of the and s 24(2), which refer to the standard medical treatment; nor of proof in s 335(3) applying to all claims

     a likely consequence of the relating to s 29.

    medical treatment? Questions the decision-maker should

    ask in an injury or disease case Death as a consequence of treatment When considering a claim alleging that Section 29 not only applies to injury or an injury or disease was the unintended disease that was an unintended consequence of medical treatment, it is consequence of treatment, but also to necessary to ask the following questions: death that was a consequence of

    treatment. 1. Is the alleged consequence of medical

    treatment an injury or disease (as The word unintended is not used in s 29

    defined in s 5), and, if so, what is it? in relation to the death of a person for the

    obvious reason that death is unlikely to 2. What was the injury or disease that be the desired or likely consequence of was being treated? treatment, and so it is unnecessary to add 3. Was the treatment obtained under the word unintended. Therefore, the

    the Defence Force Regulations (the

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