Bowman and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 3758 (10 September 2020)

Last Updated: 28 September 2020

Bowman and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 3758 (10 September 2020)

Division: VETERANS' APPEALS DIVISION

File Number(s): 2016/5980

Re: Patrick Bowman

APPLICANT

And Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal: Member A Ward

Date: 10 September 2020

Place: Adelaide

The Tribunal sets aside and substitutes the decision under review.

.....................[Sgnd].........................

Member A Ward

CATCHWORDS

MILITARY REHABILITATION AND COMPENSATION –liable for compensation – claimed condition of amputation of testicle – applicant now deceased – reliability of medical records – benefit of examining patient when history of alleged injury relevant – use of evidence of what would usually be expected - failure to challenge evidence of key witness observations – decision set aside and substituted.

LEGISLATION

Safety Rehabilitation and Compensation Act (Defence-Related Claims) 1988

CASES

Merck Sharp and Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 12

SGIC v Laube (1984) 37 SASR 31

Yun and Comcare [2009] AATA 126

REASONS FOR DECISION

Member A Ward

1. This matter is a claim for compensation initiated by Mr Patrick Bowman. It is an application for review of a decision by the Military Rehabilitation Compensation Commission to deny liability under section 14 of the Safety Rehabilitation and Compensation Act (Defence-Related Claims) 1988 (“the DRCA”) for compensation for the claimed condition of amputation of the left testicle (“the amputation”).
2. Put more broadly, the claim was that the then Corporal Bowman was struck on the right testicular area by a cricket ball in the course of playing sport as part of compulsory PT morning training. This trauma gave rise to pain which Mr Bowman said developed into epididymitis and hydrocele, eventually resulting in the amputation. The traumatic event occurred in 1989 and the condition developed up to the point where the amputation took place on 3 September 1991.
3. The claim was not pursued against the Respondent until 30 September 2015, some 25 years later. No issue was taken by the Respondent, either in the stage of the various determinations nor at the hearing, that there was any defect in the claim for want of notice.
4. At the material times regarding injury, Mr Bowman was a serving member of the RAAF. He enlisted in the RAAF in February of 1981 and was discharged on 30 January 2010. This was a medical discharge with respect to knee problems that he suffered in the course of his service.
5. As noted, the claim for this injury was made in September 2015. The reviewable decision was made on 2 September 2016.
6. Mr Bowman had other health issues and died on 20 January 2020. Pursuant to s.55(2) of the DRCA, this claim is not affected by the death of the claimant if the death occurs after the claim is served. This section does not apply in relation to a claim for compensation under s.27 of the DRCA, which determines compensation for non-economic loss. That section pertains to the additional amount the Commonwealth would pay if liability was established in respect of the injury for any non-economic loss suffered by the employee as a result of that injury or impairment. This mirrors the common law position that aspects of a claim will be extinguished with the death of a claimant.
7. The parties agreed that the issue to be determined was that of liability for the Respondent in the circumstances of this case. If found in Mr Bowman’s favour, any further liability of the Respondent pursuant to s.14 of DRCA and what compensation would flow as a consequence of the decision would be a matter for future consideration.
8. The other practical problem arises out of the delay between the injury and the assessment of the facts in the hearing. The Respondent and the Tribunal had the benefit of a number of statements in the form of declarations provided by Mr Bowman and his wife, Josephine Bowman. There were also contemporaneous notes of certain events (but not all) available from his Defence Force record.
9. In view of the length of time since the events occurred and the absence of notes or reports of the alleged events from the same day, or close to when they occurred, the evidence has to be analysed very carefully. Also, reliability of memory over such a long time must be carefully analysed.
10. For reasons set out below, the Tribunal finds that Mr Bowman was involved in a Defence-related activity, being mandatory exercise, and in the course of that he suffered an injury to his left testicle area which necessitated treatment. This treatment did not have the desired result, giving rise to the necessity for the amputation of his left testicle due to the pain he was suffering.

Analysis and Findings

11. After thorough analysis of the statutory declarations, the oral evidence of the witnesses called and the notes and reports provided, the Tribunal finds the following facts:
12. Mr Bowman joined the RAAF on 9 February 1981.
13. In 1982, he was hit in the right testicle by a cricket ball and had pain and swelling for a short time thereafter.
14. Mr Bowman underwent a vasectomy in 1985. This had no relationship to any trauma other than a desire not to have any further children.
15. The vasectomy procedure on 27 November 1985 was completed without any complications. That is the effect of the medical evidence and his wife’s evidence. There were no problems in his groin are following recovery of the acute effects of the surgery.
16. On 20 August 1987, there is a record of Mr Bowman having been headbutted in the groin area by his son on 18 August 1987. There was no ongoing effect from this once the immediate pain passed.
17. Mr Bowman was playing cricket as part of compulsory physical training in April/May 1989. He was struck by a cricket ball in the area of his left testicle. This caused pain and swelling.
18. Mrs Bowman said that her husband told her about the incident with the cricket ball. She noted that he was limping, and she asked why that was the case and he said he had been hit by a cricket ball. She did not think much of that as a serious problem, stating words to the effect – ‘Is that all?’ In cross-examination, she confirmed that on the evening of the incident, he showed her the swelling in his groin area and her declaration was ‘I said, “Oh my God”, it was bigger than a grapefruit’.
19. It will be noted that when Mr Bowman had previous issues with his testicles, he did seek medical treatment contemporaneously.
20. Mrs Bowman’s evidence is that she asked whether he had seen the doctor when he told her of the injury. Mr Bowman said he had not because the doctor at RAAF Base Tindal was female. Mrs Bowman said in her evidence that he was a very shy, quiet man and not a complainer. She said he would not go to a female doctor.
21. Her statutory declaration (Exhibit 5) states that she challenged him on this view. She said, ‘So what, she would have seen testicles before’ with regards to the female doctor. He said that he did not think it would continue to hurt after he was hit. This, coupled with the lack of male medical personnel, led to a delay in a contemporaneous recording of this incident at the cricket match.
22. It is important to note here that Mrs Bowman’s evidence in the statutory declarations that she had executed and the brief evidence she gave was not subject to any challenge at all. She was not challenged on the basis that it seemed incredulous that somebody would have three months of pain without seeking medical treatment. She was not challenged about her husband not seeking out a male doctor in Katherine (which was and remains quite handy to RAAF Tindal) if he had conceptual problems seeing a female doctor.
23. Her view on that was that he was stupid to not do so. In her unchallenged statutory declaration, she stated that he did not want to see a female doctor despite Mrs Bowman calling him a ‘bloody idiot’ for not so doing.
24. Her unchallenged evidence was that prior to the cricket ball incident, they had an active sex life, having met in 1988. She was not mindful of any problems following the vasectomy in respect of their intimate relationship. There is no note, other than the incident with the headbutting child, of any impairment of the testicles, sexual function or groin area in general following the vasectomy and leading up to his first attendance at the Regimental Aid Post following the cricket incident.
25. Thus, the Tribunal has unchallenged evidence of a direct observation of swelling in the area of the left testicle on the day it was injured, his limping as a result, as well as contemporaneous complaint of pain.
26. Mrs Bowman’s evidence, again unchallenged, was that sexual relations (which she had difficulty talking about) were affected following the incident. This contrasted with their sexual relationship before the incident.
27. Mrs Bowman said her husband did not take any time off work as a result of the injury. She pointed out he worked in a clerical capacity.
28. Mr Bowman waited until an exercise was going to occur at the Base later that year. He told Mrs Bowman he would wait until then because he knew there would be a male doctor at the exercise as his embarrassment continued.
29. There is a medical note of 25 July 1989 referring to pain in the left testicle for the past three months and swelling. It was aggravated by sexual intercourse and walking. That part of the note is consistent with Mrs Bowman’s unchallenged evidence. It does not, however, refer to the pain arising as a result of an injury at a cricket match; but the timing, the swelling and the problem with sexual intercourse over a three-month period was consistent. The medical note refers to there being no urinary symptoms. It makes reference to the vasectomy having been performed in November 1985. Interestingly, it says that he had been hit by a cricket ball ‘eight years ago’, which is the injury to the right testicle referred to above. This note was entered, on the face of it, by WGCDR Nicholson.^[1]
30. There is then a referral, which appears also to be written by WGCDR Nicholson on 25^th July 1989. This referral notes Mr Bowman having a three-month history of increasing discomfort in the right testicle. The referral says that the symptoms were aggravated by walking and intercourse. There is reference to the testicle being intermittently swollen. There is reference to the vasectomy and also the cricket incident eight years ago to the right testicle.
31. It is difficult to see why there was such an obvious error made by the Surgeon Officer. Clearly the reference was to pain in the left testicle in the consultation but then to the right in the referral. Thus, there is difficulty with accepting these notes as unassailably accurate. Whilst the Surgeon Officer did not record the alleged 1989 cricket injury, there is a glaring error in what he did record.
32. As referred to above, the difficulty is that there is no actual reference to the pain arising from the trauma that was observed and described by Mrs Bowman, but the timing of the problem and the nature of it was accurate as to the onset of symptoms.
33. There is no suggestion that there were symptoms from the time of the vasectomy up to the consultation with WGCDR Nicholson. This was consistent with Mrs Bowman’s evidence.
34. Another difficulty that arises is that there are different versions of how the cricket injury occurred. It is referred in some instances quite specifically, that is, he was batting without a groin guard when struck. Elsewhere, it is reported that he was fielding when struck.
35. Whilst that inconsistency is of some concern, again, the uncontested evidence of Mrs Bowman is that on the day the incident occurred he told her he was injured playing cricket when struck and she saw the swelling. The cricket was part of his service, not something he was undertaking privately or as pure recreation.
36. Mrs Bowman’s evidence is that Mr Bowman’s symptoms after sexual intercourse became worse and worse over time and this is referred to in the notes and referrals to other clinicians.
37. On 5 April 1990, there was a reference to pain the left testicle. Mr Bowman was referred to a Urologist, Dr Harbison. Dr Harbison did not record the history of the injury in a cricket match in early 1989. His consideration was that the only relevant issue was the vasectomy, having not been directed to any other possible cause. The other point to regard is that these treating surgeons were not undertaking a forensic exercise into the cause, they were simply treating what was being presented.
38. The Tribunal finds that there was a consistent injury from the time of the cricket match in April 1989 which continued to affect him during 1989 and into 1990.
39. Further treatment confirmed that Mr Bowman had an inflamed left epididymis. It was removed in a surgical procedure on 22 May 1990 by Dr Harbison. The hope was that the surgery should ease the troubles. It did not, and Dr Harbison noted Mr Bowman had a large hydrocoele. This was treated by aspiration. The hydrocoele was excised on 25 September 1990.
40. Unfortunately, problems continued with the left testicle and it was removed by way of left radical orchiectomy, which was performed by the Surgeon, Dr Webb.
41. The referral to Dr Webb dated 11 July 1991 was also incorrect. It states that Mr Bowman had problems with painful epididymal cysts since his vasectomy in 1985. There was no evidence of this.
42. Dr Webb (who undertook the removal of the testicle) referred to Mr Bowman as having ‘a most unusual history of problems since the vasectomy and now has a recurrent tender cystic lump adjacent to the left testes on the base of the penis’. Insofar as this might be taken to read that he had ongoing problems since the vasectomy and as a consequence of it, the Tribunal does not accept that. There is no evidence of problems up until the cricket incident, with the exception of the minor problem following the head butt.
43. Two specialists assisted the Tribunal with respect to the medical issues. Mr Bowman relied on medical reports provided by Dr David Cullum, an occupational physician. He also gave evidence in the hearing. The Respondent relied on Dr Heathcote, a urologist.
44. Dr Cullum had the benefit of actually discussing the history of events with Mr Bowman and it was his view that the injury from the cricket ball caused symptoms in the left teste area which worsened over time notwithstanding the treatment provided, culminating in the removal of the left testicle.
45. Dr Heathcote was sent a series of documents, including the T documents and asked to make an assessment of them. He has undertaken a very detailed analysis of the notes and commented upon them. In particular, he was focused on the note from Dr Webb which stated that Mr Bowman ‘has a most unusual history of problems since the vasectomy’.
46. For the purpose of providing his first detailed report dated 8 June 2017,^[2] Dr Heathcote was directed to the incident of the cricket ball by the Respondent’s solicitor, who commissioned the report by letter dated 15 May 2017. He was also referred to a statutory declaration prepared by Mr Bowman dated 20 October 2016, which referred to the injury that he suffered in April 1989, being a blunt force trauma to the left testicle. Thus, that alleged cause of injury had been presented to Dr Heathcote.
47. In his report, Dr Heathcote says that ‘I can find no evidence of any military service factors which have led Mr Bowman’s left testicle condition’. However, he provides no analysis as to the relationship of the cricket match during which the left testicle was injured and the ongoing condition. He simply ignores it in the report, referring to the absence of references to an event in the recorded histories. Whilst he accepts there is some ambiguity as to whether it was the left or right testicle, as has been discussed above, he said ‘I do not believe there is any evidence to support sufficient trauma to the testicle, either on history or on the final histopathology of the excised testicle’. He considered there was strong evidence from Dr Harbison’s notes that the condition arose from post-vasectomy epididymal inflammation.
48. The problem with that is that it ignores the lack of symptoms following the vasectomy and the uncontested evidence of Mrs Bowman about the swelling she saw on the day of the injury and the problems with it continuing.
49. Much of Dr Heathcote’s oral evidence was based on what he would expect to occur in the usual circumstances, or in his experience. One instance of this was that if Mr Bowman suffered such an injury in a cricket match, he would have sought medical treatment for it immediately and would have been hospitalised.
50. That expectation is not really evidence upon which to make a forensic decision as the Tribunal must. The behaviour of Mr Bowman, as described in his statutory declarations and by his wife, might have been unusual. He might have been ‘an idiot’ to not seek treatment and wait for a male doctor, but it does not mean the events did not occur, and we have the evidence of an eyewitness that there was swelling. Dr Heathcote accepted that swelling would be associated with trauma.
51. In this regard, it does not really matter so much what other people would do in these circumstances. What matters is what Mr Bowman did.
52. In a different context, Chief Justice King of the South Australian Supreme Court referred in the case of SGIC v Laube to the limitations of evidence of statistical probabilities as a means of proof. He stated:

I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof, on the balance of probabilities, that the proposition is true of any given individual. The fact that most people with a blood content of 0.15% are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable.^[3]

53. As with many of Chief Justice King’s pronouncements on legal principle, that case has been used across all jurisdictions,^[4] including the AAT, as the need for caution when applying rules of thumb or propositions of general application. It does not matter what people might do in general, what matters is the evidence that proves what happened with regards to the individual in question.
54. Dr Heathcote said in oral evidence that the situation of inflammation caused by a vasectomy can arise at any time. He said that after the initial effects of the operation had dissipated, such problems could arise six months or six years or even ten years following a vasectomy.
55. In cross-examination he expressed a view that this is what had occurred in Mr Bowman’s case. The problems arising from the cricket ball incident (if one accepts they occurred) happened to be a coincidence. He said they did not cause the problems that led to the orchidectomy, which he said was always going to happen in this case as a result of the vasectomy. This coincidence is difficult to accept, given the consistent complaint of injury in the same area over months and months, getting worse and resisting treatment. There was no break in the chain of trauma, deterioration and finally excision.
56. Dr Heathcote accepted as a possibility that Mr Bowman could have been injured in a cricket match and it could have caused trauma and it could have given rise to swelling. He was reluctant to accept this as the likely cause of Mr Bowman’s problems and regarded the chance as being small or even minute. However, if the Tribunal accepts the evidence of Mrs Bowman, there is an irresistible continuity of problems following on from her observation of the injury on the day it occurred and continuing on to affect him afterwards. The notes from the surgery refer to ‘normal testes encased in dense scarring which had adhered to other parts.’
57. This is supported by the evidence of Dr Cullum, who had the benefit of interviewing Mr Bowman. Dr Heathcote had the notes. They are not helpful to Mr Bowman in that they do not refer to the actual trauma to the left testicular area from a cricket match. They do refer to problems over the last ‘three months’. They also have the misleading reference to ‘a most unusual history of problems since the vasectomy’ and this was relied upon by Dr Heathcote to form his primary views. The problems in the testicular area did not arise until after a significant problem free time following the vasectomy, and that was immediately after the cricket incident in April 1989.
58. As an instance of his reliance on the notes and lack of record of the trauma of the cricket incident, Dr Heathcote said when asked if the claimant could have coped by using icepacks and analgesics words to the effect that: ‘I am not aware of that information, unless he's been reviewed by a Medical Officer - I do not know what strength to place on that.’^[5]
59. Medical notes are not the only source of material to which a Tribunal can have regard. Dr Heathcote was very reluctant to accept any alternative proposition that was not covered in the medical notes, and repeatedly relied upon them to support his firmly held views. As it happened, the Tribunal had an unchallenged eyewitness account to the contrary.
60. It is of no great moment if the injury to the damaged area was to the epididymis and not the actual testicle which appeared normal following its removal – if one accepts the operation note of the orchidectomy. The specific location of the injury would not be known to Mr Bowman – the general area would be. Dr Heathcote dwelt on this in his second report^[6] but again focused on their being ‘no evidence of testicular injury from the clinical notes’ as well as the operation notes. The fact remains that there was evidence of significant ongoing injury observed on the day of the trauma and continuing thereafter.
61. The Respondent made a forensic decision not to have their expert consider the history from Mr Bowman in a face to face examination, but to rely only on the notes and what he would usually expect to happen. It made another decision not to challenge Mrs Bowman’s evidence on any level at all. Thus, the gap in the notes and early medical evidence has been filled. A lack of reference to an event in the notes, which was so important to Dr Heathcote, has been repaired. The Tribunal must take that into account.
62. The finding is that Mr Bowman suffered injuries that eventually led to the removal of his left testicle as a result of his employment.

Decision

63. The Tribunal:

(a) sets aside the decision under review and in place of that decision decides that the Respondent is liable for compensation pursuant to the Safety Rehabilitation and Compensation Act (Defence-Related Claims) 1988 in respect of the injuries sustained in the month of April 1989;

(b) reserves the liberty to apply within 14 days in relation to the costs of the proceedings; and

(c) orders that in the absence of such an application within that period the Respondent pay the costs of the proceedings to be adjudicated by the Tribunal if not agreed.

I certify that the preceding sixty-three [63] paragraphs are a true copy of the reasons for the decision herein of Member A Ward.

[Sgnd]
................................................
Administrative Assistant Legal

Dated 10 September 2020

Dates of hearing: 24 and 25 August 2020

Applicant’s Representative: Mr A Wright, Boylan Lawyers

Respondent’s Representative: Mr W Evans, AGS

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^[1] T26, p 6.

^[2] Exhibit 9, Medical report of Dr Heathcote dated 8 Jun 2017.

^[3] SGIC v Laube (1984) 37 SASR 31.

^[4] See for example, Merck Sharp and Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 12; and Yun and Comcare [2009] AATA 126.

^[5] Tribunal’s note of oral evidence.

^[6] Exhibit 10, Supplementary report of Dr Heathcote dated 22 October 2018.