The process of investigating and determining a liability claim requires knowledge about the clinical onset and/or worsening of the claimed condition. Clinical onset refers to the time where relevant symptoms, signs or other evidence of a condition were first present, thus enabling an appropriate medical practitioner to say that the condition first manifested at that time. The date of clinical onset must be supported by medical evidence.
Clinical onset is not necessarily the date the condition was diagnosed.
Clinical onset and diagnosis are two different concepts, however in some cases it may be that these dates coincide or are close together. For example, dates may coincide when there are criteria or thresholds to be met, but can also happen with an acute injury (such as a fracture) or acute event (such as a stroke or a heart attack). Each case and each disease or injury needs to be considered on its merits.
In Re Robertson v Repatriation Commission [1998] AATA 127, the time of clinical onset is said to be when:
A finding is made on investigation which is indicative to a doctor of the disease being present at that time.
Ideally, the medical records and/or reports that form part of the evidence should contain this information. However, some conditions may be claimed many years after service and/or the contended causal or aggravating factor. In some cases, due to an absence of contemporaneous evidence, a retrospective diagnosis may be sought.
Case study – retrospective diagnosis
A diagnosis for a specified condition is confirmed by a test result. However, symptoms consistent with the diagnosis have been present in the claimant in the three months prior to the test. Based on this information, the date of clinical onset would be three months prior to the test.
In some circumstances, backdating the date of clinical onset before the time of confirmation of the diagnosis may not always be possible. The presence of symptoms/signs does not necessarily allow a diagnosis to be made at that time. However, once a diagnosis is made, they may allow the onset to be dated from that time symptoms/signs were present. There may be situations where the symptoms or signs are not sufficiently specific to the disease or injury in question to allow the onset to be backdated to when the symptoms/signs began.
A retrospective diagnosis requires consideration of the history of the injury or disease and when it was manifested and/or was aggravated in order to establish the clinical onset and/or worsening of the relevant condition. The Federal Court decision in Repatriation Commission v Cornelius [2002] FCA 750 established the need for material pointing to signs and symptoms of the injury or disease such that enables a medical practitioner to say the condition was present at a particular time. This principle was endorsed by the Full Federal Court decision in Lees v Repatriation Commission [2002] FCAFC 398.
SoPs
Certain SoPs have diagnostic thresholds or criteria that need to be met before the SoP can be applied. Where this is the case, in applying any SoP factors, clinical onset will be when there was first evidence that those thresholds had been reached, or the criteria were satisfied. This may be some time after the first symptoms were experienced.
Case study – diabetes mellitus
Clinical onset of diabetes mellitus can be said to have occurred when the required plasma glucose concentration levels were first demonstrated. If earlier testing has indicated elevated levels, but not to the required level for diagnosis, then the date of clinical onset cannot be retrospectively ascribed to that time. The onset date in such a case would be the date when a medical practitioner is able to say that diabetes was present at that time.
Clinical worsening
Clinical worsening is the time when a disease itself has worsened and is more than just a temporary change or natural progression of the injury or disease. Clinical worsening SoP factors apply only in relation to aggravation of, or material contribution to an injury or disease that was suffered or contracted before or during (but not arising out of) the person’s relevant service. In applying the SoPs, clinical worsening means aggravation of the underlying pathology of the injury or disease. This requires an increase in the gravity of the disease beyond its natural progression as endorsed by the High Court in Johnston v Commonwealth [1982] HCA 54. It excludes aggravations of signs or symptoms which relate to decisions made under sections 29 [2] or 30 [2] of the MRCA and any deterioration that is part of the normal course of the disease. Unless the SoP specifically requires permanent aggravation, it may be permanent or temporary, in accordance with the Federal Court findings in Repatriation Commission v Yates [1995] FCA 1234.
A businessline dated 7 October 2021 provides an approach for claims assessors when the date of diagnosis of a condition is clearly within the relevant SOP onset timeframe. This approach allows a simplified assessment of onset that, in these circumstances, allows the assessor to use the date of diagnosis in ISH and decision letters, provided there is a clarification that onset occurred ‘prior to’ the date of diagnosis.
When taking this approach, delegates should record in file notes and in decision letters, that “The date of diagnosis is #### and therefore clinical onset is prior to this date. I am satisfied that clinical onset would have occurred [within the SOP timeframe or within a defined period as supported by the evidence]”.
This approach should not be used when:
These situations may require further investigation to clarify date of onset.
Onset, put simply, is when the disease or injury was first present or first manifested. Onset can be imagined as a point along a spectrum. Onset will never be the date of claim or the date a claim is accepted. It will, however, occur at some point between an exposure or injury and the claim occurring.
The evidence will need to show when the condition first was present. Case law indicates that this can be the earlier of the date of diagnosis or the first date where signs and symptoms of the condition are present such that a medical professional can say that the condition was present.
When considering the evidence, consider whether the evidence shows the earliest point at which it could be said the disease was present. This may be the date of diagnosis (and for some conditions, which require diagnostic tests to confirm the presence of a disease, this will be the date of onset). For other conditions, a medical professional examining the patient may note onset was prior to treating the patient (which makes sense because people generally only go to a doctor after they feel unwell). In this case the onset will be earlier than the date of diagnosis, but it will be an earlier date of onset as defined by the treating doctor.
However, when relying on a history from the patient, a doctor may make assumptions about onset that may not accord with other evidence available to the Department. In this case, it may be appropriate to seek clarification from the treating doctor or advice from a MAC. Generally, however a treating doctor defining earlier onset prior to diagnosis can be accepted.
A third possibility for the date of onset may arise when there is a suggestion that earlier treatment for the condition was made, or the condition emerged many years ago but was never treated. In these cases the veteran may be insistent that the condition emerged a long period prior to the date of diagnosis or at an earlier date than the treating doctor has described. These suggested dates of onset are more complex, but can potentially be accepted if the medical evidence supports the earlier onset of the condition. This can be tricky – for instance a sore back does not necessarily indicate the presence of lumbar spondylosis – and generally a clarifying medical view, either from medical evidence on file, the treating doctor, a MAC, or an independent medical examiner may be required. However, these earlier dates of onset can and should be considered when the evidence suggests they are credible and can be confirmed.
Finally, there is the date of initial exposure or injury. This will not be the date of onset for degenerative diseases, or diseases where there is a latency period after the exposure or injury for the condition to emerge. However, for acute injuries and for diseases that emerge from exposure at the time of or immediately after that injury or exposure, this date of onset of the condition should be considered. Usually this will be mentioned in the medical evidence in relation to the condition, but can be considered where this is a plausible date for onset to have occurred.
Where dates provided by doctors or veterans are vague and unclear (eg. “in 2006”) the veteran should be contacted to establish to the best of their recollection when the condition emerged (eg. before or after your birthday, in summer or winter, towards the end of the year, which month, at the beginning or end of the month etc.) in order to establish the most likely date. If unable to be more specific than a broad date range, the middle of the date range should be considered as the median likely point.
Onset should therefore be considered along a spectrum, and the earliest date of onset supported by the evidence should be considered by the delegate.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18982%23comment-form
[2] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-mrca