Advisory from Disability Compensation Branch

No 7/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

INABILITY TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT

The Repatriation Medical Authority (RMA) issues Statements of Principles (SoPs) to take account of the requirements of the Veterans' Entitlements Act 1986.  In doing so the RMA SoPs address causation, which may be direct or indirect, including factors that may make a significant contribution to the progress of the disease its earlier onset. For an  aggravation such to be acceptable in the Veterans' Entitlements Act 1986 it must be a factor that it makes the condition not only worse but also permanently worse. The inability to obtain appropriate clinical management relates only to aggravation.

Causation, contribution and aggravation have been the subject a many decisions in the Tribunals and Courts and in the context of the Veterans' Entitlements Act 1986.  Some decisions have no general applicability because they reflects only a particular a particular set of circumstances. However there are others that bind other decision-makers by being precedent cases.  For example the Full Federal Court in Shelton says that diagnosis is a question decided on the balance.  This takes precedence over the earlier decision in Preston that decided the diagnosis question on the beyond reasonable doubt standard.

In the context of a Statement of Principles there are two ways that “aggravation” may create a liability for the Department of Veterans' Affairs.

What is aggravation?

Aggravation means simply that an external factor A, not related to the disease or injury in question condition B, reacts with condition B in such a way that condition B is made permanently worse.

The most common expression of this is contained in factors that refer to the “clinical worsening” of a disease or medical condition.  This seems to have been readily understood by all decision- makers.

The other expression is the “inability to obtain appropriate clinical management”.  This appears to have been commonly misunderstood by claims assessors and ex service organisation advocates and welfare officers alike.

Temporal relationship required

Both methods of aggravation require the disease or medical condition to be present before the military service that is claimed to have aggravated it.  This temporal relationship is essential.  This requires a decision that the condition was actually present at the time that some incident on service, or during a period of service, aggravated it.

This is not a situation where the precursor to a disease may be present on service but not the disease itself.  This is more likely to be a causation issue but sometimes has been used to claim that the precursor aggravated a condition that developed after service and that was not service related.  Where the disease occurs after the aggravator the temporal relationship is not present and aggravation is not appropriate for investigative purposes.

A temporal relationship must exist before service can be said to have aggravated the condition.

The existence of the medical condition

This is a matter for the decision-maker.  It is a question that is based on the evidence available including the statement of the claimant as to the presence or otherwise of particular symptoms.  It is from the whole of the available evidence that the question of diagnosis of the condition is settled.  The standard of proof to be applied to the question of diagnosis is “reasonable satisfaction” in all cases.  The authority for this is in the Federal Court decision of Repatriation Commission v Cooke (1998) 160 ALR at 20 - 22.

A medical opinion on the meaning of any symptoms that occurred before service or during service is required.  This is certainly required if the claimant puts a case that states that the condition occurred during his service but went unnoticed and untreated.

In answering the question of the existence of the condition at a particular time it will be important to have some medical opinion on the usual course of the condition.  It is also important to have opinion, especially from the treating specialist, on the particular course of the disease or condition in the patient who is the claimant.

Inability to obtain .....

The Full Federal Court in Brew v Repatriation Commission (10 September 1999) (see the judgement of Merkel J) enlarges on the meaning to be given to “inability” as the lack of the ability to get the treatment in both an objective and subjective sense.  Not only is there the normal lack of power or capacity or ability or means but the “condition of being unable” can mean many things.  Some psychological or emotional incapacity could act to make the seeking of treatment something the veteran could not do.  Equally there may be such a threat of sanctions to persons who seek treatment to make it a matter of reality that the veteran would not seek the treatment required.

The determinations of the facts concerning any claimed “inability to obtain” are a matter for the decision-maker.

...appropriate clinical management

“Clinical management “ is more than simply treatment.  It requires more than merely treating the symptoms.  It requires that some attention is paid to the management of the underlying disease and addressing the cause or suspected cause of the disease, injury or medical condition.

It also requires that there actually exist some prudent medical treatment for the disease, injury or condition.

There are a number of distinct requirements that need to be satisfied before it can be said that clinical management was inappropriate.

• Did military medical staff know the condition?

If it was not and could not reasonably have been expected to be then there is no case for “inappropriate” clinical management.

• Is it reasonable that the military medical staff could know of the condition on the basis of any symptoms that occurred at that time?

If it was not, and could not reasonably have been expected to be, then there is no case for “inappropriate clinical management”.

• Was any clinical management provided?

If some clinical management was provided then a second question needs to be asked.

• Was that clinical management appropriate for the disease or condition for the standards and knowledge of the time? And was the clinical management appropriate for the standards of service available for that particular service situation?

If the answers are affirmative then no claim for “inappropriate clinical management” arises.  The authority for this position is contained in the Federal Court decision of Repatriation Commission v Wellington V90 of 1999 Marshall J Melbourne 11 November 1999.

If no clinical management was provided then it may have been because the condition or disease was unknown to the military medical staff or it was felt that its clinical management was a lesser priority than other considerations or it was not present at that time.  In such a circumstance there may be an instance of “inappropriate clinical management”.

• Did an appropriate form of clinical management exist for the disease, injury or medical condition?

One of the questions for the decision maker to be satisfied about is whether there was any treatment actually available for the condition that is being claimed.  There are many genetic conditions for which there is no remedy and no treatment.  This may need to be the subject of a medical opinion or advice from an appropriate text or reference source.

If however it has been decided that the condition could reasonably have been expected to be known to the military medical staff and the standard treatments not provided then liability may arise if aggravation has occurred.

These are not the final questions.

Did aggravation occur?

Having answered the questions concerning the presence of the condition and the fact or not of treatment there is still a final question for any decision-maker to decide.

• Did the “aggravation” permanently worsen the disease or condition.

For aggravation to have contributed to the disease or condition it must have resulted in the permanent worsening of the disease or condition.

A temporary heightening of the symptoms with no worsening of the disease after the symptoms return to normal does not constitute an aggravation.

This question of worsening is one that requires medical advice or opinion.  If a decision-maker is to be satisfied then the contention should be supported by a personal case history of the claimant taken by the treating doctor or specialist.

Any decision made in this regard must have some medical opinion to support the contention.  There are some disease or conditions that cannot be made worse or aggravated despite the lack of treatment.  Infections cannot normally be aggravated as they run their course.  However the effect of malnutrition may be an exception.  There may be others so any contention in this regard needs medical advice.

Summary

Appropriate clinical management is a term which, within the VEA and veterans' jurisdictions, can only be considered in terms of whether the inability to obtain, the failure to seek or the failure to provide treatment led to the aggravation of a disease, injury or medical condition.  The aggravation must result in the disease, injury or medical condition worsening and that effect must be permanent.

“Inability to obtain appropriate clinical management” can apply to almost any disease, injury or medical condition that is the subject of a Statement of Principles.  The provision of experimental treatment or clinical management, which might be available in the USA or a private Sydney hospital, to someone in a war zone is not “appropriate”.  In each circumstance the question of whether a particular clinical management approach was appropriate is dependent on the circumstances of the condition under consideration and the medical knowledge and skill available to an ordinary Australian citizen.

Comments on aggravation in decisions

Various Tribunals and Courts have commented on the meaning of aggravation as it relates to the duty of care of the Defence Forces.

The Defence service authorities are under a duty to provide medical treatment for service personnel.  If they fail to do so and as a result of that failure, the course of the disease progresses faster or the condition becomes permanently worsened then the disease or condition has been made worse by service.  In such cases the veteran or member of the ADF would be entitled to have the condition accepted as related to service.

John R Douglas

Director

Policy Eligibility and Research

Disability Compensation Branch

   December 1999