McCorley and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 2425 (8 August 2023)

Last Updated: 9 August 2023

McCorley and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 2425 (8 August 2023)

Division: VETERANS' APPEALS DIVISION

File Number(s): 2022/1256

Re: Scott McCorley

APPLICANT

And Military Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal: Member McLean Williams

Date: 8 August 2023

Place: Brisbane

The decision under review is affirmed.

...................[SGD]...................

Member McLean Williams

CATCHWORDS

VETERANS’ AFFAIRS — Defence-related claims — whether the Applicant suffered an injury or disease — claim for Ménière’s disease — decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

CASES

Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80

Kaluza v Repatriation Commission [2011] FCAFC 97

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Millen v Repatriation Commission [2000] AATA 508

Repatriation Commission v Cornelius [2002] FCA 750

Robertson v Repatriation Commission [1998] AATA 127

Scown v Repatriation Commission [2011] AATA 53

Somerset v Repatriation Commission [2005] FCA 1399

REASONS FOR DECISION

Member McLean-Williams

8 August 2023

1. This is an Application for Review of a decision made on 29 November 2021 by the Veteran’s Review Board to deny liability under s.23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the MRCA’) for a claim by the Applicant for Ménière’s disease.
2. The Applicant is a 36-year old Private, who has rendered continuous full-time service in the Australian Army since 1 May 2006. All of the Applicant’s military service has been ‘peacetime service’, as defined in s.6(1)(c) of the MRCA.
3. Although an electrician by trade, the Applicant is employed ‘out of category’ as a multimedia technician in the Corps of Intelligence. This is because of medical employment category restrictions that arise in consequence of the Applicant’s diagnosis. Relevantly, Ménière’s disease causes symptoms of vertigo, thus creating risks for those who are required to work at heights.

Relevant Medical History and Claim Chronology

4. The Applicant’s claim arises out of a workplace accident. On 10 February 2014 the Applicant had been working as an army electrician installing electrical cabling in a building ceiling. The Applicant was required to access the ceiling void by means of a manhole, and had been working on a ladder, approximately 2.4 metres above floor height. The Applicant recalls having struck the edge of the manhole with his left knee, thus causing excruciating pain, as well as a momentary loss of consciousness. This caused the Applicant to fall from the ladder. Shortly afterwards the Applicant ‘came to’ on the floor, experiencing symptoms of acute left-sided chest pain. That same day the Applicant was admitted to the Liverpool Hospital, whereupon he was diagnosed as having sustained ‘trauma – left pneumothorax’, as well as left-sided rib fractures. The Applicant was discharged from the Liverpool hospital on 13 February 2014.
5. Nothing further of any relevance is recorded in the Applicant’s army medical records until 2 February 2016, when the Applicant presented to a medical officer at Holsworthy Barracks complaining of symptoms of intense vertigo. At that point the medical officer referred the Applicant to a Dr Ronald Joffe, neurologist, for specialist examination.
6. On 9 February 2016 the Applicant was seen by Dr Joffe. Dr Joffe noted that the Applicant had said that he had experienced symptoms of vertigo approximately
   4 weeks previously, and that he had also experienced similar vertiginous symptoms, albeit of far shorter duration, in about 2008 and then again in 2009 (T5).
7. After clinical examination, Dr Joffe reported that he suspected the Applicant had experienced episodes of labyrinthitis, yet stated that the Applicant really needed to have an MRI to confirm this. Doctor Joffe also reported that in the event that the MRI were found to be clear, then the Applicant needed to be on-referred, for further investigation, by an Ear Nose and Throat (‘ENT’) Surgeon.
8. On 9 February 2016 the Applicant underwent the MRI examination that had been recommended by Dr Joffe (T6). Dr Greg Markson, radiologist, reported ‘nil’ abnormality. The Applicant was not however referred to an ENT at that stage, a matter to which these reasons for decision will return subsequently.
9. On 24 November 2016 the Applicant reported on sick parade experiencing symptoms of acute vertigo with vomiting, which he told the medic had commenced a few hours previously (T3, p. 48). The Applicant was prescribed Stemetil (Prochlorperazine maleate 5mg), and by noon that day the Applicant was reported as stating that he was by now feeling much better.
10. On 4 May 2017 the Applicant again presented to his Regimental Aid Post (‘RAP’) complaining of symptoms of vertigo, dizziness, and nausea (T3, p.51). Once again, he was prescribed Stemetil (T3, p.53).
11. On 30 May 2017 the Applicant presented at the RAP – this time whilst on field deployment at ‘Camp Birt’ in Goondiwindi – again complaining of symptoms of nausea and dizziness. The outpatient clinical records from the Camp Birt RAP indicate the Applicant’s symptoms were reported as having started on Saturday, and that the Applicant had taken the ‘meds’ previously given to him, yet without any improvement in the symptoms.
12. On 21 June 2017 the Applicant presented to Defence medical officers, again complaining of symptoms of vertigo/labyrinthitis (T3, p. 49). The medical records from that date indicate that the Applicant had advised the doctors that:
    • he had a more severe episode in November 2016 which had lasted for three weeks;
    • he had no problems until early May 2017, when on deployment at Camp Birt;
    • since May 2017 he had four further bouts of vertigo, each lasting for up to one day; and
    • he had been using Stemetil early in the onset of symptoms in an effort to reduce the impact of the episodes.
13. In consequence of the medical presentation on 21 June 2017 the Applicant was finally referred by the army doctor to see an ENT surgeon.
14. On 6 July 2017, the Applicant was seen by Dr Raefe Gundelach, ENT surgeon (T7). In his report of that date Dr Gundelach noted that the Applicant’s symptoms of vertigo had initially started in 2009:

    ...after which time [the Applicant] did not have any major issues until 2015. [The Applicant] has been having more frequent attacks now. These consist of a blocked feeling in his left ear which then progresses to severe rotational vertigo which can last for a number of hours to days. There is usually an associated nausea and vomiting. [The Applicant] also has underlying leftsided deafness and tinnitus.

15. In light of the history given by the Applicant, and on the basis of his own clinical examination, Dr Gundelach opined that the Applicant was suffering from left-sided Ménière’s disease. Doctor Gundelach also referred the Applicant for an audiology assessment.
16. On 25 July 2017 the Applicant underwent the audiology assessment ordered by
    Dr Gundelach (T8). The audiologist reported that the Applicant:
    • had normal hearing in the right ear;
    • had sensorineural hearing loss in the left ear; and
    • was ‘grossly within the normal limits in the balance assessment’.
17. On 31 August 2017 Dr Gundelach reported that the Applicant’s balance testing
    (as had been conducted by the audiologist) was sufficient to confirm a diagnosis of left-sided Ménière’s disease (T9). Dr Gundelach then prescribed the Applicant the drug ‘Serc’ (Betahistine di-hydrochloride, 16mg).
18. On 30 May 2018, the Applicant was reviewed by Dr Gundelach. At that stage
    Dr Gundelach reported that the Applicant’s Ménière’s disease was only very mild, and not such as to be likely to create any problems in terms of the Applicant being able to be deployed militarily in the future (T11).
19. On 7 May 2019 the Applicant made a claim for military compensation for a range of injuries referable to the ladder accident on 10 February 2014. Included amongst these was a claim for Ménière’s disease (T12).
20. On 3 October 2019 a Delegate of the Respondent denied liability for Ménière’s disease (T15).
21. On 8 September 2020 the Applicant applied to the Veterans Review Board (‘VRB’) for a review of the determination on 3 October 2019, refusing to accept his claim for Ménière’s disease.
22. On 29 November 2021 the VRB affirmed the original determination made on
    3 October 2019 (T1.1) (‘the VRB determination’).
23. On 16 February 2022 the Applicant applied to this Tribunal for a further review of the VRB determination.

Liability for service injuries and service diseases:

24. Section 23 of the MRCA provides:

    When Commission must accept liability for service injuries and diseases

The Commission must accept liability for an injury sustained, or a disease contracted, by a person if:

(a) the person's injury or disease is a service injury or disease under section 27; and

(b) the Commission is not prevented from accepting liability for the injury or disease by Part 4; and

(c) a claim for acceptance of liability for the injury or disease has been made under section 319.

[Emphasis not in the original, yet included here by the Tribunal].

25. Section 27 of the MRCA defines ‘service injury’ and ‘service disease’ as follows:

    For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:

(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;

(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;

(c) in the opinion of the Commission:

(i) the injury was sustained due to an accident that would not have occurred; or

(ii) the disease would not have been contracted;

but for:

(iii) the person having rendered defence service while a member; or

(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;

(d) the injury or disease:

(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;

Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.

(e) the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:

(i) to a place for the purpose of performing duty; or

(ii) away from a place of duty upon having ceased to perform duty.

[Emphasis in original]

26. Section 5(1) of the MRCA defines ‘injury’ as:

    injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a) a disease; or

(b) the aggravation of a physical or mental injury.

[Emphasis in original]

27. Section 5(1) of the MRCA defines ‘disease’ as:

    disease means:

(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b) the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c) the aggravation of such an ailment, disorder, defect or morbid condition; or

(d) a temporary departure from:

(i) the normal physiological state; or

(ii) the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).

[Emphasis in original]

28. Section 335(3) of the MRCA provides that the standard of proof upon which the Tribunal must determine the matter to be is the Tribunal’s ‘reasonable satisfaction’. This is effectively the same as ‘on the balance of probabilities’.
29. Section 339(3) of the MRCA requires that the Tribunal apply Statements of Principles (‘SOPs’) when determining the Applicant’s claim.

Statement of Principles for Ménière’s disease:

30. The relevant SOP for Ménière’s disease is Instrument No. 109 of 2015, dated
    21 August 2015, (‘the SOP’).
31. Ménière’s disease is defined under section 7(2) of the SOP:
    • (2) for the purposes of this Statement of Principles, Ménière’s disease:

      (a) means a clinical condition characterised by recurrent attacks of episodic vertigo often associated with the accepted ranges of physiological or biochemical measures;

      (i) nausea and vomiting;

      (ii) fluctuating sensorineural hearing loss;

      (iii) tinnitus; and

      (iv) sense of fullness of the involved ear; and

      (b) includes labyrinthitis, vertigo of central origin and other unspecified vertiginous syndromes.

32. In order for a claim for Ménière’s disease to be considered compensable, the circumstances of a diagnosis of that condition must also fit within section 9 of the SOP. Section 9 provides:

Factors that must exist

At least one of the following factors must exist before it can be said that, on the balance of probabilities, Ménière’s disease or death from Ménière’s disease is connected with the circumstances of a person’s relevant service:

• (1) having a moderate to severe traumatic brain injury within the six months before the clinical onset of Ménière’s disease;
• (2) having otosyphilis of the affected ear before the clinical onset of Ménière’s disease;
• (3) inability to obtain appropriate clinical management for Ménière’s disease.

33. Section 30 of the MRCA provides that the Respondent is only liable for aggravations of signs and symptoms of injuries and diseases in limited circumstances, because s.30 provides:

    Definitions of service injury and service disease for aggravations etc. of signs and symptoms

    For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:

(a) the injury or disease:

(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or

(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and

(b) in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.

[Emphasis in original]

34. Section 10 of the SOP provides:

    Relationship to Service

• (1) The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
• (2) The factor set out in subsection 9(2) applies only to material contribution to, or aggravation of, moderate to severe traumatic brain injury where the person’s moderate to severe traumatic brain injury was suffered or contracted before or during (but did not arise out of) the person’s relevant service.

Applicant’s Contentions before the Tribunal

35. In his Statement of Issues, Facts and Contentions dated 9 March 2023, the Applicant submits that, in addition to SOP No. 109 of 2015, SOP No. 95 of 2018 Factor 9(1) ‘Moderate to Severe Brain Damage’ is also relevant, such that it should also be considered by the Tribunal.
36. There is no evidence before the Tribunal to suggest that the Applicant suffered any kind of traumatic brain injury in consequence of the ladder fall, such that the Tribunal determines that SOP No. 95 of 2018 is not applicable. Towards that conclusion, the Tribunal notes in particular the contemporaneous medical records produced by the Liverpool Hospital (T3, pp.40-41) which indicate that the Applicant had been examined when admitted in order to ascertain whether he might have sustained a traumatic brain injury, and the possibility of that had been excluded. Thereafter, there is no other evidence in any of the Applicant’s medical records to suggest any kind of acquired brain injury. Accordingly, on the evidence before the Tribunal, the only applicable SOP becomes No. 109 of 2015, being that for Ménière’s disease.
37. The Applicant contends that the fall from the ladder on 10 February 2014 caused the onset of his Ménière’s disease, in 2015.
38. The Applicant also contends that, in accordance with clause 9(3) of the SOP, his Ménière’s disease is ‘connected with’ the circumstances of his military service, because it arose because of his ‘inability to obtain appropriate clinical management’, given that his condition was not diagnosed until 6 July 2017 by Dr Gundelach, as subsequently confirmed for Dr Gundelach by the audiology assessment conducted on 25 July 2017.
39. In now advancing his claim, the Applicant relies on the following authorities:
    • Scown v Repatriation Commission (2011) AATA 53, paragraphs [21] and [33] (‘Scown’);
    • Somerset v Repatriation Commission (2005) FCA 1399 (‘Somerset’).
40. Scown was a case involving a naval veteran seeking to attribute dental caries, periodontal disease, and a loss of teeth to military service (including war service). SOP No. 72 of 2007 (for dental caries) – as was applicable at the time of the claim in Scown – referred to ‘an inability to obtain appropriate clinical management’ for dental conditions. In the decision of the Tribunal, at [33], Senior Member Dr K. S Levy RFD (dec’d) had recorded:

    As the evidence unfolded it was clear that the dental specialists agreed that it pointed to Mr Scown being unable to obtain appropriate clinical management for his dental conditions.

41. In Somerset – another claim involving Ménière’s disease albeit one arising under an earlier SOP (No. 78 of 2001) – Greenwood J had noted in dicta (at [36]), that an inability to obtain appropriate clinical management for Ménière’s disease was raised in section 4 of SOP No. 78 of 2001, and that this could be a function of a failure to diagnose the existence of the condition. Yet, in Somerset, the evidence had suggested that the claimed causal event had not caused Ménière’s disease, and there were no symptoms manifesting any basis for a hypothesis that the claimant had suffered from Ménière’s disease during the relevant period of military service.
42. Ultimately, the Tribunal concludes that the cited authorities of Scown and Somerset do no more than reflect that an inability to obtain appropriate clinical management for Ménière’s disease might afford one basis on which Ménière’s disease could be determined to be connected with the circumstances of a person’s military service. However, whether that conclusion can in fact be drawn will still depend on (i), the available evidence; and (ii), the legal authorities that amplify the meaning to be attributed to ‘an inability to obtain appropriate medical treatment’.

TRIBUNAL CONSIDERATION

Does the Applicant suffer from an injury or disease for purposes of s.5(1) of the MRCA?

43. As the first threshold, the Applicant must suffer from either an ‘injury’ or a ‘disease’ for purposes of s.5(1) of the MRCA. For that purpose, Ménière’s disease qualifies as an ailment/disorder satisfying the definition of ‘disease’ under s.5(1) of the MRCA. The Applicant has been diagnosed as suffering from left-sided Ménière’s disease by
    Dr Gundelach on 31 August 2017. This diagnosis was recently confirmed by
    Dr Sharon Kelly ENT surgeon, in her report prepared for the Respondent dated
    15 August 2022 (at paragraph [21]).
44. Accordingly, the Tribunal is satisfied that the Applicant’s Ménière’s disease does qualify as a ‘disease’ as defined in s.5(1).

When was the clinical onset of the Applicant’s Ménière’s disease?

45. The clinical onset of a disease occurs either:
    • when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time; or
    • when a finding is made upon medical investigation which is indicative to a doctor of the disease being present at that time (consider: Robertson v Repatriation Commission [1998] AATA 127 at [23]; Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; Repatriation Commission v Cornelius [2002] FCA 750 at [26]; Kaluza v Repatriation Commission [2011] FCAFC 97 at [51] and [66]).
46. In her report dated 15 August 2022, Dr Sharon Kelly, ENT Surgeon, specified
    (at page 5) that the clinical onset of the Applicant’s Ménière’s disease was in late 2015, stating that:

    Mr McCorley first satisfied the requirements for the stated definition of Ménière’s disease in late 2015 at which stage he had a number of episodes of vertigo with fluctuating hearing loss.

    Mr McCorley gives a very clear description of his episodes which includes a noticeable drop in hearing and a noticeable increase in tinnitus, often several hours before the onset of intense vertigo associated with nausea and vomiting. The subsequent course of Mr McCorley’s condition with hearing worsening over time and tinnitus becoming persistent is typical of Ménière’s disease. His would be described as a classic case of the condition.

47. On the basis of this medical evidence, the Tribunal finds that the Applicant’s condition of Ménière’s disease onset in late 2015.

Does the Applicant satisfy any of the requirements in s.9 of the SOP on Ménière’s disease?

48. Having satisfied itself that the Applicant suffers from a ‘disease’ for purposes of s.5(1)(a) of the MRCA; and having also determined the date of clinical onset for that condition, the next question becomes whether this disease qualifies as a ‘service disease’ for the purposes of s.27 of the MRCA?
49. Though the Applicant was rendering relevant military service at the time of onset of Ménière’s disease in late 2015, that disease only becomes compensable as a ‘service disease’ under s.23 of the MRCA in the event that it is within at least one of the factors in s.9 of the relevant SOP, or, amounts to an aggravation as described in s.30(b) of the MRCA.
50. There is no evidence before the Tribunal of the Applicant ‘having suffered from a moderate to severe traumatic brain injury within the six months before the clinical onset of Ménière’s disease’. In these circumstances, section 9(1) of the SOP is not applicable in this instance.
51. Similarly, there is no suggestion of the Applicant having ‘otosyphilis of the affected ear before the clinical onset of Ménière’s disease’. In these circumstances, section 9(2) of the SOP does not apply.
52. The Applicant specifically relies on section 9(3), and claims that there was an inability in his case to be able to obtain appropriate clinical management for his Ménière’s disease: given that this was not even diagnosed until he saw Dr Gundelach in late August 2017, approximately two years after the onset of that condition, and in circumstances in which Dr Joffe had recommended – as early as 9 February 2016 – that the Applicant should be on-referred to an ENT Surgeon in the event that an MRI revealed no other abnormality.
53. In effect therefore, the Applicant submits that there has been ‘a failure to diagnose’ his condition in a timely manner because somebody in the Army medical administration did not appreciate the implications of Dr Joffe’s 9 February 2016 report. It thus becomes axiomatic that the Applicant submits that this gave rise to an ‘inability’ to obtain appropriate clinical management, on the basis that he did not even know that he suffered from Ménière’s disease until he was advised of this, in late August 2017. In the Tribunal’s opinion it does seem likely that the necessary implications arising from Dr Joffe’s report were not properly considered by the army medical unit when it received Dr Joffe’s report.
54. However, the Respondent contends that the Applicant does not satisfy clause 9(3) of the SOP because he did not have ‘an inability’ to obtain appropriate clinical management for Ménière’s disease. In making that submission, the Respondent relies on precedential authorities that afford scope and meaning to the phrase [an] ‘inability to obtain appropriate clinical management’, as used in section 9(3) of the SOP.
55. The expression was considered in Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80 (‘Brew’). Ms Brew had enlisted in the Australian Army Women’s Medical Service in 1944, as a ward orderly. Long hours of constant standing had caused Ms Brew to suffer from varicose veins, which were then to go on to cause her significant difficulties much later in life. The evidence was that effective treatments for varicose veins had been available since the 1930s. The evidence was also that
    Ms Brew had been aware of the fact of her suffering from varicose veins during her period of war service, yet had not sought available and suitable treatment at the time, because of a fear of either being ridiculed by colleagues, or of her being rebuked and reduced to tears (as had others), by the ward sister. The evidence was also that the medical officer in charge (a Colonel Wonderly) was a ‘fatherly gentleman’, who had personally taken control of running the staff clinic, due to a concern that the harshness of the nursing sister was acting as an impediment for junior staff seeking necessary medical treatments. Yet, despite the presence of Colonel Wonderly, the Applicant had agreed that she had still chosen not to report her leg pains, or to obtain any treatment. The Repatriation Commission declined to accept Ms Brew’s varicose veins as ‘war-caused’, and that was affirmed by both the VRB, and the AAT. On appeal to the Federal Court, the appeal was dismissed by the primary judge (Sundberg J), resulting in a further appeal to the Full Federal Court. In dismissing the appeal, Merkel J (with whom Mansfield J agreed) stated:

[26] In my view Sundberg J was quite correct in treating the meaning of “inability” in cl.(1)(e) as “lack of ability; lack of power, capacity, means” (Macquarie Dictionary (2nd ed 1991)) or “the condition of being unable; lack of ability, power or means” (New Shorter Oxford Dictionary (1993)). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the “condition of being unable”. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.

[27] Thus, if Sundberg J was saying that cl.1(e) is confined to an inability that is an “objective barrier to obtaining treatment”, I would respectfully not agree with his Honour. However, I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise, that result in a claimant for a pension being in a “condition of being unable” to obtain treatment.

[28] In my view, in context, Sundberg J was referring to circumstances the effect of which result in a claimant being unable to obtain treatment in the sense of any of the dictionary meanings of “inability” referred to by his Honour. Thus, as his Honour noted, the absence of medical officers would constitute a barrier in that sense but not a mere “lack of willingness to obtain treatment”. His Honour ought not to be taken as having concluded that external factors, such as a threat of sanctions by superior officers if treatment is sought, cannot constitute or result in an inability to obtain treatment within the meaning cl 1(e) where, by reason of such factors, the claimant understandably concludes that she is unable to obtain appropriate treatment.

[Emphasis not in the original, yet included here by the Tribunal].

56. In Brew the Applicant had been broadly aware of her condition at the time of onset, yet nonetheless had chosen – for subjective reasons – not to seek appropriate treatment. In relation to this specific aspect of the evidence, Merkel J then said:

[30] ... If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a “condition of being unable” to obtain treatment.

...

[33] In my view, the reasons for decision of the AATR when read as a whole reveal that the conclusion reached by it, although not expressed in these terms, was that the appellant was inhibited from seeking, rather than unable to seek appropriate clinical management for her varicose veins. The AAT referred to the culture of the appellant’s workplace, which plainly sought to deter the appellant and other persons in her position from obtaining clinical management for any condition that was not thought to be serious at thew time. However, the AAT also referred to three other factors which suggested that, notwithstanding that culture, it was open to the appellant to obtain appropriate clinical management, but she elected not to do so.

[Emphasis not in the original, yet included here by the Tribunal].

57. At least arguably, the position pertaining in Brew might be distinguishable from that arising in the current matter, by reason that Brew had been aware of her condition, yet had elected not to seek treatment, on the basis of a feeling of inhibition, rather than of her being unable to obtain appropriate treatment. In contrast, in the present matter, the Applicant was not to even know that he had Ménière’s disease until 2017, because of the failure to diagnose it, in 2015. The question then becomes: whether that failure equates with ‘an inability to obtain appropriate clinical management’ for purposes of section 9(3) of the SOP? This question was considered in Millen v Repatriation Commission [2000] AATA 508 (‘Millen’) in relation to a claim for asthma.
58. In Millen, the Applicant had served in the Royal Australian Navy from
    21 September 1967 until 20 September 1979. From 1971, until the end of his naval service, Millen had been a medic specialising in underwater medicine, working in support of clearance diving teams. Millen was also required to himself partake in regular diving. In 1974, Millen was diagnosed with bronchitis, and was treated at HMAS Penguin by a Doctor Edmonds, and by a Professor Colebatch each of whom were noted as ‘world authorities’ on underwater medicine. Neither of them diagnosed Millen as having suffered from asthma, although each of them had considered that as a possibility. It was not until approximately 1990 that Millen was diagnosed by his general practitioner as suffering from asthma and, in the absence of any childhood or family history of asthma, it was posited that navy diving (specifically via the inhalation of aerosolysed seawater) had acted as a bronchial irritant; thus inducing asthma. If that theory were correct (and ultimately it was not accepted, in light of contrary medical evidence), the implication was that all of the diagnoses and treatment for bronchitis as had been received by Millen when still serving in the navy had been wrong treatments. Millen sought acceptance of a condition of asthma on the basis of clause 5(c) of the applicable SOP (No. 60 of 1996) on the basis of ‘an inability to obtain appropriate clinical management for asthma’. In rejecting that submission, Deputy President McMahon and Member Thorpe stated:

[22] Some attempt was made to demonstrate compliance with the Statement of Principles with reference to paragraph 5(c). Whether or not the early diagnoses and treatments were correct for Mr Millen’s condition at the time is, in our opinion, irrelevant. The paragraph does not invite an enquiry as to the appropriateness of a claimant’s clinical management. It requires a claimant to show an inability to obtain that management. This would commonly arise in conditions of active service. Mr Millen has had a demonstrated ability to obtain clinical management from medical practitioners of the highest reputation who undertook examination for serious and focused reasons to determine his continuing ability to dive. Whether they misdiagnosed his condition is irrelevant. Mr Millen was not deprived of the opportunity to obtain appropriate clinical management.

[Emphasis not in the original, yet included here by the Tribunal].

59. In light of same, the Respondent contends that the Applicant was not ‘deprived of an opportunity’ to obtain appropriate clinical management for his Ménière’s disease and, in the event that the Tribunal were to seek to depart from the approach previously adopted by the Tribunal in Millen, then the treatment received by the Applicant was, in all events, still appropriate. To this end the Respondent notes that when asked to prepare her report, Dr Kelly had been asked whether the clinical management of the Applicant’s Ménière’s disease between February 2016 and August 2017 had been appropriate? In her report dated 15 August 2022, Dr Kelly opined (at p.6), that the Applicant’s clinical diagnosis could have been made sooner had there been an earlier review by an ENT surgeon, yet in all other respects the medical treatment of the Applicant had been appropriate.
60. Dr Kelly’s response to that effect caused for the Respondent to seek a further report from her, now dated 2 September 2022. The Respondent submits that any delay in diagnosing and treating the Applicant’s Ménière’s disease (by means of the drug Serc), as had been commented upon by Dr Kelly in her report dated 15 August 2022 does not constitute an ‘aggravation’ for purposes of either section 10(2) of the SOP, or s.27 of the MRCA. This is because the delay was not causative of any increase in the severity of the Applicant’s Ménière’s disease. As the basis for that submission, the Respondent submits that Dr Kelly had explained, by way of her supplementary report (at p.3), that:

    ... the natural history of Ménière’s disease is that it causes persistent moderate to severe hearing loss with tinnitus over time, irrespective of treatment. The frequency and intensity of the vertiginous episodes also tends to decrease over time while treatment can speed up that process of resolution and reduce the overall number of distressing vertiginous attacks in the history of the disorder. As such, delay in treatment prolonged the period of severe vertiginous symptoms which was physically and psychologically distressing to Mr McCorley. It did not alter the outcome regarding tinnitus or hearing loss.

61. There is no evidence to contradict the opinion expressed by Dr Kelly in her supplementary report, such that it is now accepted by the Tribunal.
62. Ultimately, the Tribunal determines that the Applicant’s Ménière’s disease is not a ‘service disease’ for purposes of s.27 of the MRCA because it is not connected with the circumstances of the Applicant’s relevant peacetime service in the manner required by s.27; and is not a disease that has been contributed to in a material degree or aggravated by the Applicant’s defence service after he had contracted Ménière’s disease.

DECISION

63. The decision under review is affirmed by the Tribunal.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

...........................[SGD]...........................

Associate

Dated: 8 August 2023

Dates of hearing:	16 March 2023
Applicant:	By Video
Applicant’s representative:	Mr K Cullen (lay advocate, Gaythorne RSL)
Solicitors for the Respondent:	Mr J Watts The Australian Government Solicitor