Buttigieg and Military, Rehabilitation and Compensation Commission [2009] AATA 289; (2009) 108 ALD 222 (28 April 2009)

Last Updated: 15 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 289

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0210

VETERANS' APPEALS DIVISION		)
	Re		DARRELL BUTTIGIEG

Applicant

And

MILITARY, REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Dr K S Levy RFD, Senior Member

Date 28 April 2009

Place Brisbane

Decision

The decision under review is affirmed.

..................[Sgd]..................
Senior Member

CATCHWORDS

MILITARY COMPENSATION – Vasectomy resulted in injury in the course of employment – Epididymitis and chronic orchialgia not an unintended consequence of vasectomy – Decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth), s 34J

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 6A, 14(1)

Australian Postal Corporation v Burch (1998) 85 FCR 264

Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 25 ALD 266

Comcare v Etheridge [2006] FCAFC 27; (2006) 90 ALD 31

Comcare v Houghton [2003] FCA 332; (2003) 73 ALD 676

Re Eaton and Comcare [2002] AATA 222; (2002) 67 ALD 182

Re Freak and Comcare [1997] AATA 12491

Re Mackie and Australian Telecommunications Corporation [1991] AATA 6804

Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797

Re Parker and Military, Rehabilitation and Compensation Commission [2006] AATA 440; (2006) 92 ALD 654

Re Wood and Military, Rehabilitation and Compensation Commission [2007] AATA 2097; (2007) 99 ALD 406

Repatriation Commission v Brown [1990] FCA 315; (1990) 21 ALD 290

Shoobert and Military Rehabilitation and Compensation Commission [2004] AATA 1087

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

28 April 2009

Dr K S Levy RFD, Senior Member

INTRODUCTION

1. The applicant, Darrell Buttigieg, was a member of the Australian Army in 1995 when he had two vasectomies. The applicant claims that he has an injury as a result of these medical procedures paid for by the Commonwealth. He made a claim for compensation dated 28 September 2005. That application was rejected on 13 October 2006. Following a request for review, the original decision was affirmed on 10 January 2008.
2. Mr Buttigieg now seeks a review of that decision by this Tribunal.

DETERMINATION ON THE PAPERS

3. This application was the subject of a telephone directions hearing on 28 January 2009. The applicant’s solicitor, Mr Jeffery Mills, and the respondent’s solicitor, Mr Peter Crethary, agreed that it was a matter that might be dealt with “on the papers”. While there was still a period of time for them to submit a statement of facts and contentions and responses, I agreed to those submissions subject to a review of the evidence and subject to being satisfied that oral expert evidence might not be required.
4. On receiving the required submissions by each of the parties and reviewing the evidence, I was satisfied that it was an appropriate case to be dealt with under s 34J of the Administrative Appeals Tribunal Act 1975. That section allows for the Tribunal to dispense with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties and also where the parties consent to such a process. Both those requirements were satisfied. This matter has therefore been dealt with “on the papers”.

ISSUES

5. The issues for determination are as follows:

(i) Was the applicant supplied with “medical treatment” by the Commonwealth?;

(ii) Did he suffer an “injury” or “disease”?;

(iii) If the answer to (ii) is that he suffered an “injury”, was the “injury” an unintended consequential suffering of the “medical treatment”?; and

(iv) If the answer to (iii) above is yes, is there an impairment which entitles the applicant to compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

EVIDENCE

6. Mr Buttigieg had a vasectomy paid for by the Commonwealth on 7 February 1995. His evidence is that that procedure was a failure, his wife subsequently became pregnant and she then had an abortion. He had a second vasectomy on 20 July 1995. Clinically, that surgery was shown to be successful by post-operative tests of sperm count. However, he said he now has testicular pain and groin pain as a result of the procedures.
7. This claim is one of a number of conditions claimed by the applicant. His original claim has five separate claims related to one or more orthopaedic complaints, failed vasectomy and a claim for malaria (as well as related chronic fatigue syndrome and headaches). This application is for review of the decision to reject recognition for compensation of the failed vasectomy.
8. By way of brief background, Mr Buttigieg enlisted in the Australian Army on 28 November 1984 and was discharged as a Corporal on 5 December 2005. Prior to that time, he had undertaken an apprenticeship as a motor mechanic.
9. In relation to his vasectomy claim, he was unable to work for some months and had pain, swelling and discomfort in the region of the left testis. This condition persisted from 1995 until discharge from the Army in 2005.
10. Over the years he had reviews by a number of doctors and has undergone ultrasounds. He has also been treated with pain-killers and anti-inflammatory medication as well as antibiotics. He has reported lumps and swelling from time to time in the testis and has not been willing to have any further surgery on it – nor has surgery been suggested.
11. The chronology of the medical evidence presented to the Tribunal is:

(i) On 20 July 1995 an ultrasound report showed that the testis was normal with no evidence of abnormal blood flow: T8, Folio 76;

(ii) Seven years later a report was prepared, dated 22 April 2002, by Dr Dan Campbell, a specialist surgeon. At that time, Dr D Campbell reported that Mr Buttigieg complained of “...left testicle pains on and off and lasting 3 to 4 days every 2 or 3 months”. He examined the applicant who at that time “...had a swollen left epididymis and it was tender. This is consistent with the epididymitis. It sounds like it might be purely an infective problem...”: T10, Folios 78. He referred the applicant for an ultrasound and saw him again. As a result, he reported on 13 May 2002 that:

“His scrotal ultrasound has shown no abnormalities except for a few small epididymal cysts. He has probably two episodes of pain in the scrotum per year. These pains only last for about 3 days. He seems to be able to tolerate it.
I think they are probably related to an epididymitis and maybe if he got onto the symptoms early enough and start antibiotics he would be less uncomfortable during his episodes. I do not see any surgical options here”: T11, Folio 79;

(iii) Three years later, Mr Buttigieg saw Dr James Rowe, a specialist occupational physician. Dr Rowe reported on all areas of alleged impairment in the applicant’s claim for compensation. In respect of the “failed vasectomy”, Dr Rowe reported in 2005 that the condition had improved over time but “he still has a dull ache [at] present. He has difficulty with intercourse and ejaculation, that is, on occasions it is painful and not pleasant, and that has resulted in the past in some considerable marital difficulty and problems”. He has intermittent pain which is more severe and at those times “he desists from intercourse and ejaculation”: T12, Folio 81. Dr Rowe regarded the condition as having stabilised and as now being permanent. His view was that Mr Buttigieg had a 10% whole person impairment under Table 11.1 of Comcare’s Guide to the assessment of the degree of permanent impairment. Dr Rowe stated that the surgery was an “unintended consequence of the treatment provided by the Commonwealth”: T12, Folio 86;

(iv) In 2006 the matter was referred for a report and opinion by Dr Peter Campbell, a neurologist. He provided a report dated 6 September 2006 based on a file review; he did not see the patient. That is not a criticism as that is the basis upon which the matter was referred to him and in any event, his review reveals a comprehensive analysis. He examined the medical tests over the life of this condition and confirmed the first vasectomy was not successful, based on a semen analysis. In 1995, post-operatively, an ultrasound discovered a right hydrocele and “a small epididymal cyst that settled with conservative treatment”. The applicant also “developed scrotal pain initially right then left-sided”: T13, Folio 89. He noted the applicant had reported pain in 1998 after intercourse or exercise and this pain would last four days a week and then diminish over time: T13, Folio 89. Dr P Campbell also observed Mr Buttigieg had a tender cyst and there was “exploration of the left scrotum and excision of the cyst granuloma”. He noted that an ultrasound carried out on 10 November 1995 revealed “some oedema in the tissue and fat around the epididymis. There was also dilation within the epididymitis which is commonly seen following vasectomy”: T13, Folio 90. In all other respects the results showed no abnormality.

Dr P Campbell had copies of the reports of Dr Rowe and Dr D Campbell, and provided an overarching analysis and some epidemiological insight into the applicant’s condition. Extracts of Dr P Campbell’s report are as follows:

“In my opinion, Mr Buttigieg is suffering from chronic orchalgia [sic] ...The exact aetiology of chronic testicular pain and groin pain following vasectomy is unclear. It is theorised that it could be as a result of scar tissue from the operation or that a build up of sperm in the proximal epididymis can spill over and cause a sperm granuloma with resultant inflammation in surrounding tissues leading to pain which becomes chronic in nature. Also, the proximal epididymis can become tortuous and thickened due to the inflammation caused by a build up in the blocked ductus deferens and epididymis.
...
It is very unlikely that this man suffered an infective epididymitis following his vasectomy in my opinion. It is a common finding following vasectomy that the epididymis becomes tortuous and thickened. Whether the vasectomy predisposes a patient to epididymal cysts is unknown. However, epididymal cysts are a common finding in the general population and are usually of no clinical significance, but can be the cause of chronic testicular pain.
...
There are a number of causes of chronic testicular pain apart from vasectomy. Ureteral calculus can cause testicular pain and an investigation such as an IVP would be recommended to exclude ureteral calculus. The varicocele and epididymal cyst and intermittent portion of the testicle can also cause chronic testicular pain and as such, a full examination needs to be performed in looking for any focal areas of tenderness or any of these abnormalities.
...
In general, in 30% of chronic testicular pain cases, regardless of whether there has been a vasectomy performed or not, no cause can be found.
...
In this particular case, it would be advisable in my opinion that Mr Buttigieg have an IVP performed to exclude a ureteral calculus. In my opinion he should also have a repeat testicular ultrasound performed to exclude a varicocele and epididymal cyst...”: T13, Folios 91-92;

(v) A report by the senior medical officer of the Department of Veterans’ Affairs, Dr Peter Grant, dated 14 November 2006, was also provided. He reported that chronic orchialgia is a description of painful testes. He noted that pain was experienced after both of the procedures but that complications appeared to resolve in November 1995, despite the fact that Mr Buttigieg did not take prescribed antibiotics at that time (apparently because of risk of sun exposure while taking those antibiotics): T15, Folio 99.

An article was also provided (which seems to have been suggested earlier by Dr P Campbell) titled “Chronic testicular pain following vasectomy”, by McMahon AJ, Buckley J, Taylor A, Lloyd SN, Deane RF, Kirk D in the British Journal of Urology (1992) 69(2):188-191. That article reports on a study of 172 patients who had undertaken a vasectomy four years earlier designed to assess the incidence of chronic testicular pain. It was reported that chronic testicular discomfort was present in 33% of patients; and

(vi) A supplementary report dated 10 December 2008 was provided by Dr P Campbell. He confirmed that testicular pain can be due to many sources. He said:

“Chronic testicular pain or chronic orchalgia [sic] is by definition a waxing and waning testicular discomfort which is present for greater than 12 months. In 30% of cases no discernable cause can be identified. Post vasectomy orchalgia [sic] occurs in 30% of men who have a vasectomy ... The exact aetiology is unknown.

...

To summarise, regardless of the exact aetiology of his orchalgia [sic], it would appear to be related to his vasectomy operation in my opinion ... It is not necessarily a result of the complicated post-operative course that Mr Buttigieg sustained and by itself does not represent incompetency or neglect on the part of the surgeon, rather it is a recognizable undesirable side-effect that could not be predicted or always avoided”.

CONSIDERATION

12. In determining the issues in this case, the relevant provisions of the Act are:

“6A Injury arising out of or in the course of employment—extended operation
(1) This section applies to the following employees:
(a) members of the Defence Force;
...
(2) If, at any time, whether before, on, or after, 1 December 1988:
(a) an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b) as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person’s employment, whether or not the person has remained an employee to whom this section applies”.

13. An “injury” is defined in s 5A of the Act to mean:

“5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; ...”

14. I make the following findings of fact:

(i) The applicant has had two vasectomies in 1995, which are “medical treatment” provided by and paid for by the Commonwealth;

(ii) The applicant suffers from chronic orchialgia (chronic testicular pain) as a result of the vasectomy;

(iii) There was swelling and other physiological consequences which resulted in pain to the applicant’s testes;

(iv) The applicant suffered epididymitis; and

(v) There are deleterious effects of having a vasectomy. These are “unavoidable direct consequences” of surgery.

15. The respondent accepts the facts as found. The applicant, however, says there is an injury, albeit an undefined injury. The respondent disagrees.

Issue 1 – “Medical treatment”

16. There is no contest between the parties in respect of this issue. It is agreed that the “medical treatment“ in question was paid for by the Commonwealth.

Issue 2 – Did the applicant suffer an “injury” or a “disease”?

17. At the outset it is clear that the applicant satisfies s 6A(2)(a) of the Act. The central question, which is not intuitably clear, is whether he satisfies s 6A(2)(b) of the Act.
18. In Comcare v Houghton [2003] FCA 332; (2003) 73 ALD 676, Lindgren J said s 6A(2) of the Act must be read precisely. The words “unintended consequence” must be read in an integrated way with the words “that treatment” and “injury”. His Honour said one must look to the context of the Act: an “injury” in s 6A(2) must be considered as distinct from “impairment” mentioned in s 14(1), which flows from the injury. A “disease” means an “ailment”, which itself is defined to mean a physical or mental ailment, disorder, defect or morbid condition. “Injury” is also defined and includes a “disease” as defined. The inclusion of “disease” in that definition is to make compensation available to a qualified person who meets that definition. However, “injury” is also defined separately by the Act in s 5A(1)(b) (see above). There, it is made clear that the terms “disease” and “injury” are mutually exclusive.
19. By way of practical illustration, a disease is a development by gradual process, such as the inhalation of asbestos fibres: Comcare v Etheridge [2006] FCAFC 27; (2006) 90 ALD 31. But the sudden rupture of a blood vessel or artery, or a thrombosis of a cerebral artery, could be regarded as an injury: Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Australian Postal Corporation v Burch (1998) 85 FCR 264.
20. In Comcare v Houghton [2003] FCA 332; (2003) 73 ALD 676 at 683 [35], Lindgren J referred to the suffering of an injury as discussed in Repatriation Commission v Brown [1990] FCA 315; (1990) 21 ALD 290 and found that “it signified the suffering of some harm”. Furthermore, although there are cases where a surgical procedure might be viewed as harmful, it might more properly be seen as “beneficial” when having regard to its ultimate purpose.
21. There has been a suggestion by Dr D Campbell that there may have been “an infective problem”. An infection, if that occurred, was not an injury; the swelling or other physiological consequences which resulted in pain could be an injury. Dr Rowe did not provide reasons for his opinion to help the Tribunal understand his evidence in that regard. He merely said the condition had stabilised, was an unintended consequence of surgery and that the applicant now has a 10% whole person impairment. That does not enlighten the Tribunal about the injury and is therefore of reduced weight.
22. Dr P Campbell diagnosed chronic orchialgia and said that the cause of the testicular pain had not been identified and that a number of causes were possible, some of which had not been investigated. Dr Grant opines that Mr Buttigieg has chronic orchialgia and that he did not take prescribed antibiotics after the second vasectomy. Subsequent bouts of pain have occurred over the years and Dr Grant believes that Mr Buttigieg has left epididymitis.
23. Does this evidence reveal an injury? There is no dispute that Mr Buttigieg has experienced intermittent pain since the vasectomies in 1995. On the face of it, there may be some logic in the argument that he has experienced an injury, or as described in Comcare v Houghton [2003] FCA 332; (2003) 73 ALD 676 at 683 [37], “the inference is irresistible”. But the question must be answered according to the definition of injury in s 5A of the Act. The ordinary concept of injury relates to “harm” or “damage”: The Concise Oxford Dictionary. I think Mr Buttigieg’s medical treatment has resulted in pain and therefore he has experienced harm or damage. In my opinion, he has therefore experienced an “injury” under s 6A of the Act.

Issue 3 – Was the “injury” an unintended consequential suffering of the “medical treatment”?

24. This question relates to whether the injury is a “consequence” of the “medical treatment”. In Re Eaton and Comcare [2002] AATA 222; (2002) 67 ALD 182 at 194 [58], it was held that “unintended consequences” must be those which are both:

“(a) ... not desired or aimed for or designed by the provider of the medical treatment ; and
(b) ... not a likely consequence of the medical treatment”.

This test was followed in Shoobert and Military Rehabilitation and Compensation Commission [2004] AATA 1087. The approach taken in Comcare v Houghton [2003] FCA 332; (2003) 73 ALD 676 at 684 [41] is that, in respect in s 6A(2) of the Act, an “injury” is not covered if it “was, and was always known to be, an unavoidable direct consequence of the medical treatment”.

25. The evidence of Dr D Campbell suggests the existence of epididymitis, which could be dealt with by antibiotics. I note again that the applicant did not adhere to the prescribed Bactrim antibiotics at the time of onset and treatment in 1995. Dr P Campbell diagnosed chronic orchialgia and says the cause cannot be determined without further tests. He says that what is known about Mr Buttigieg’s condition is that there was evidence of epididymal cysts and these “are a common finding in the general population and are usually of no clinical significance, but can be the cause of chronic testicular pain”. He refers to the chance of overcoming such pain being about 50% if it is truly localised to the epididymis. He further states that “in 30% of chronic testicular pain cases, regardless of whether there has been a vasectomy performed or not, no cause can be found”: T13, Folio 91.
26. Dr Grant inclines to the view that the condition suffered is epididymitis. Dr Grant also refers to the medical article by McMahon et al (see above) initially highlighted by Dr P Campbell. That article reported on a study in Glasgow, which revealed that in a sample size of 172 patients surveyed four years after having a vasectomy, 33% of the patients had chronic testicular discomfort. Of this sample, nine sought medical assistance and of these only two had further surgery (one opted for an epididymectomy and the other for an excision of a hydrocele). The article also reports that on “ultrasound examination, epididymal cysts were a common finding on both asymptomatic and symptomatic patients following vasectomy”: T19 Folio 105.
27. The medical evidence may be competent expert evidence, but that of itself is not always of sufficient weight to allow a finding on the balance of probabilities. However, expert evidence may be put in perspective by intuitive assessment of a sequence of events which confirm (or deny) the probability of a causal connection proposed by the expert evidence: Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 per Mason J (as he then was) at 311-312.
28. There is evidence that further tests should be conducted for the aetiology of the pain to become more definitive: Dr P Campbell, T13, Folio 92. This was supported by Dr Grant: T15, Folio 99. There is also epidemiological evidence that the incidence of testicular pain following vasectomy is of some significance: T19, Folio 105. The evidence of Dr P Campbell also provides comparable statistics for men with testicular pain, whether they have had a vasectomy or not. He also noted that no cause can be found in 30% of such cases. On the basis of the expert evidence provided in this case, I am satisfied that the statistical and epidemiological evidence shows there is a known but not predictable relationship between testicular pain and vasectomy surgery. Mr Buttigieg’s condition was an “unavoidable direct consequence of the medical treatment” and therefore does not fall within the meaning of an “injury” in s 6A(2) of the Act: Comcare and Houghton [2003] FCA 332; (2003) 73 ALD 676 at 684 [41].
29. In this respect, the applicant asserts that an inability to identify a precise injury is no barrier to his claim: applicant’s submission p 9. The respondent submits this inability means that s 6A of the Act can not be satisfied in relation to an injury. Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797 was a very unusual case, which held that pain may be sufficient to show a causal link with employment even though a compensable disease or diagnosis cannot be named specifically. This was followed wholly or partially in Re Mackie and Australian Telecommunications Corporation [1991] AATA 6804; Re Freak and Comcare [1997] AATA 12491; and Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 25 ALD 266.
30. In Mr Buttigieg’s cae, there is a diagnosis of chronic orchialgia, but that is not precise. Based on the above authorities, this diagnosis is a reason why the applicant might be regarded as having an injury. The main barrier to such a finding, however, is an inability to identify a cause of the pain or condition.
31. While such a cause is not always to be decided on the balance of probabilities (see Re Wood and Military, Rehabilitation and Compensation Commission [2007] AATA 2097; (2007) 99 ALD 406), the acceptable level of risk of a medical procedure depends on the facts of the case: see Re Parker and Military, Rehabilitation and Compensation Commission [2006] AATA 440; (2006) 92 ALD 654. Here, the procedure involved is not uncommon and the likelihood or probability of deleterious effects which might occur are known and were ascertainable in advance. These are either inexplicable (from a medical viewpoint) or explicable in terms other than the competence of the surgeon.
32. The applicant’s condition is therefore not an unintended consequential suffering of his medical treatment under s 6A(2)(b) of the Act.

Issue 4 – If the answer to issue 3 is yes, is there an impairment which entitles the applicant to compensation under s 14(1) of the Act?

33. As issue 3 has been answered in the negative, Mr Buttigieg has not had an injury arising out of or in the course of employment in accordance with s 6A(2) of the Act. As he does not have such an injury, any impairment resulting from the circumstances detailed by the applicant are not compensable under s 14(1) of the Act.
34. In the circumstances, the application must fail. I therefore affirm the decision under review.
    

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ..............................[Sgd]............................................

Mátyás Kochárdy, Research Associate

Hearing on the Papers

Date of Decision 28 April 2009

Solicitor for the Applicant Slater & Gordon

Solicitor for the Respondent Dibbs Barker