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No.2 February 2008

Re Wood and Military Rehabilitation and Compensation Commission

TRIBUNAL   AAT, Brisbane
MEMBERS Mr R G Kenny, Member
DATE OF DECISION 21 December 2007
DECISION Post procedural disorder of the nervous system sustained in a surgical procedure is a service injury or disease.
ISSUES Whether Mr Wood’s neurological defect was a service injury or disease arising from treatment provided by the Commonwealth as provided by section 29 of the MRCA?

Facts

Mr Wood lodged a claim under the Military  Rehabilitation and Compensation Act 2004 (MRCA) with the  Military  Rehabilitation and Compensation Commission (MRCC) for the effects of the surgical procedure.

A delegate of the MRCC rejected liability for post procedural disorder of the nervous system sustained in the surgical procedure.

The decision was affirmed by the Veterans’ Review Board and Mr Wood  sought  further review by the Administrative Appeals Tribunal (the Tribunal).

The Law

Section 29 of the MRCA defines a ‘service injury or disease’ to include an injury sustained or disease contracted or an aggravation of an injury or disease that was an unintended consequence of treatment provided under the MRCA or paid for (wholly or partly) by the Commonwealth.

Section 29  of the MRCA is similar to section 6A of the Safety, Rehabilitation and Compensation Act 1988 (SRCA)The Tribunal noted a number of cases decided under s 6A of SRCA and was satisfied that they assisted with the interpretation of s 29 of the MRCA. These authorities required that:

The Medical Evidence

The medical evidence in this case included several reports from Professor Morgan. He reported:

[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.

He completed a further report following the surgery in response to specific questions concerning the probabilities of consequences following from the surgical procedure. Professor Morgan 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%.

The MRCC’s position

Counsel for the MRCC submitted that the analysis of whether the condition was “likely” in the context of s 29 of the MRCA 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”.

Mr Wood’s position

For Mr Wood, it was submitted that the 20% level of risk described by Professor Morgan was in the order of that which arose in Re Parker and that the same outcome should prevail.

The Tribunal’s reasoning

In assessing the likelihood of the consequence of Mr Wood ’s surgical procedure, the Tribunal accepted the MRCC’s contention that regard must be had to the delicate nature of the surgical procedure and location of the arteriovenous malformation. However, the Tribunal noted that Professor Morgan had completed more than 500 such procedures and was able to provide the estimate of a 20% risk level.  The Tribunal considered it significant that in his written report, Professor Morgan confirmed the 20% estimate, in response to specific questions about the level of risk associated with the surgical procedure.

The Tribunal further accepted the MRCC’s submission that the matter should not be concluded on the balance of probabilities. Member Kenny said:

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.

Formal decision

The Tribunal set aside the decision under review and substituted its decision that post-procedural disorder of the nervous system sustained in a surgical procedure was a service injury or a service disease as provided for in s 29 of the MRCA.

Editorial Note

In Comcare v Houghton the Court set outthe process to be followed when considering “unintended consequences of medical treatment”:

Step 1 Identify the injury or disease that is said to have resulted from the treatment.
Step 2 Decide whether the injury or disease was caused by the treatment and not merely associated with the treatment.
Step 3 Decide whether the injury or disease was ‘unintended’.

In the Wood case, the main issue in dispute before the Tribunal concerned step 3 of the process identified by the Federal Court in Houghton – deciding whether the injury or disease was unintended. Specifically, whether Mr Wood’s neurological disorder was not a likely consequence of the medical treatment.

In resolving the issue in dispute, the Tribunal placed significant weight on the evidence concerning the nature of the risk of neurological complications the surgical procedure posed.  However,  some other relevant considerations for the decision maker in this type of case may include:

It should be noted that while there are similarities there are also significant differences between section 6A of the SRCA and section 29 of the MRCA, and the case law needs to be treated with some caution. For example, section 6A applies only to an ‘injury’, and not to a ‘disease’, whereas section 29 of the MRCA applies to both. Whether or not the claimed condition is an injury or  a disease has been a contentious issue in a number of SRCA cases and may have been determinative in some: see for example Re Price-Beck and Comcare [2003] AATA 386; Re Elliott and Comcare [2001] AATA 305; and Re Penny and MRCC [2004] AATA 1004.

 Further reading: Please see detailed article “Unintended consequences of medical treatment” in (2006) 22 VeRBosity at pages 38-49.

All Practice Notes