May and Military Rehabilitation and Compensation Commission [2011] AATA 886 (14 December 2011)

May and Military Rehabilitation and Compensation Commission [2011] AATA 886 (14 December 2011) - AATA 2011 case summary — Zoe

[22]

Mr May told the Tribunal that his father was a pilot and aircraft maker. Mr May was involved with riding motorbikes, driving cars and flying aircraft from an early age. Inevitably, as a result, he suffered various minor injuries. He contracted pneumonia in 1990 and was sick for about two weeks. In 1992, he injured his back in an accident in a 'war bird'. He has been advised that neither of these incidents have had any long lasting effect on his health. In 1996, he had health problems that appear to have been associated with him contracting glandular fever. At that time, Mr May was in his third year of a degree in aviation at the University of Newcastle and engaging in a wide range of extracurricular activities such as cycling, water skiing and surfing, as well as flying a variety of aircraft. In July 1996, he undertook work experience and by the end of the month was feeling less energetic than usual. He consulted his general practitioner on 25 August 1996. In September 1996, Mr May hosted his 21st birthday party. In October 1996, he started shedding activities to concentrate on studying for his exams. In November 1996, after his exams, he took a break of three weeks to relax and then underwent his medical examination for entry into the RAAF which, he said, he "duxed".
Mr May said that while he experienced fatigue in 1996, it was quite different to the fatigue and vertigo he experienced after receiving vaccinations in the RAAF. The doctor who examined Mr May for his RAAF medical on 26 November 1996, recorded that Mr May suffered from dizziness. Mr May said this was an inaccurate description - what he described was light headedness as a result of feeling fatigued, which was quite different from the chronic dizziness or vertigo he later suffered and still suffers which involves a disequilibrium. In February 1997 and October 1997, Mr May had further RAAF tests to check that his back injury and glandular fever had resolved, after which he was found to be A1 fit and healthy. Early in 1998, he had a flight test after which he was accepted for entry into the RAAF. The RAAF agreed to defer his entry for 12 months and he went to Germany to undertake a kung fu course. However, later in 1998, the RAAF was pressing for him to join earlier and he therefore returned to Australia via the United States, arriving home in November 1998.
Mr May said he underwent a "barrage" of medical tests and was found fit to fly. This was notwithstanding that, at the time of the tests, he was tired from travelling back to Australia and his return home, having the medical tests in Sydney and then travelling to Melbourne for entry into the RAAF, all of which involved a lot of driving. After arrival at RAAF Laverton on 6 November 1998, he was informed that he was required to have various vaccinations. He had already had a Twinrix vaccination in January 1998 and questioned why he had to have a further Twinrix vaccination. Despite a blood sample being taken to ascertain whether he had Hepatitis A and B immunity, and before his pathology test results were available, he was told to have a further Twinrix anyway and he had this and the ADT(B) vaccinations on 10 November 1998. Mr May said that the pathology test results subsequently showed that he had the necessary Hepatitis A and B immunity and did not need the further Twinrix vaccination. He claims that the medical staff ignored safety procedures and there was a culture of ignoring safety concerns.
Mr May said that about 30 to 60 minutes after receiving the Twinrix vaccination, the roof of his mouth and his tongue began to feel strange and his tongue felt bigger and swollen. When eating lunch, this affected the feeling he had in his mouth. Over the next few days, he felt nausea and stomach discomfort and within a week he was struggling to keep attending work even though he was still passing the fitness tests because, he said, of his being very fit on entry. On 24 November 1998, he reported sick. Notwithstanding this, he went with other new cadets on a training exercise to the Grampians. While there, he found it was very difficult to deal with the diarrhoea he was experiencing and reported to the Emergency Room where he was put on a saline drip.
Mr May said that over the next few months, his fitness began to decline. His teeth became sore, his glands were swollen, he had headaches, and he experienced a feeling of disequilibrium, which he described as an incorrect perception of the spatial environment. Thus, Mr May dates his vestibular problems from this time. As he feels less well, he feels dizzier. He also contracted an upper respiratory tract infection. Mr May said he does not attribute all his symptoms to the vaccinations on 10 November 1998.
Mr May said he also suffered adverse drug reactions to later vaccinations although these might have been an aggravation of the initial reaction to the first vaccinations. Each further vaccination gave rise to a "constellation of symptoms" and his fitness decreased rapidly on each occasion. In May 1999, he was hospitalised in Newcastle and after this, he was transferred to Perth. There he suffered continuing upper respiratory tract infections and, at one stage, he was again hospitalised and was near to dying. He was diagnosed with mycoplasmal pneumonia.
Mr May said the RAAF doctors initially refused to send him to see an Immunologist, but eventually he was referred to Dr Martin Stuckey, a Clinical Immunologist in Perth, who decided to try him on gammaglobulin therapy and put him on Intragam infusions which had worked for several other pilots Dr Stuckey had treated. Such treatment required that he was "grounded" for 48 hours after each infusion and not permitted to fly. However, his symptoms improved significantly and when, ultimately, he was taken off Intragam after further immunological investigations and an assessment by another Clinical Immunologist, Dr David Sutherland in Newcastle, his symptoms increased. For example, Mr May described experiencing vertigo after aerobatic manoeuvres and the difficulty he experienced in landing an aircraft.
Mr May said he had not made a claim for workers compensation before 29 November 2002 because he had been frightened of losing his job. However, by that time it was clear to him that he was not going to get the treatment he needed. Mr May expressed some bitterness about his treatment in the RAAF, both by his senior officers and some medical officers.

[24]

The first medical record for Mr May in the period after the vaccination on 10 November 1998 is on 22 November 1998 when, possibly, a nurse recorded that Mr May had reported sick with a three day history of nausea and loose bowel motions, stating that he had a hepatitis injection a week ago and also had a spongy soft palate. The doctor who examined him diagnosed a viral illness. Mr May was reviewed by Chief Medical Officer Dr Vicky Grove on 23 November 1998 who recorded that Mr May was feeling better but had a "cough - yellow phlegm, sore abdo, diarrhoea settled". On 26 November 1998, she again reviewed Mr May noting that he had been sent on an exercise, had been "OK 1st day ... unwell later" and had been treated at Horsham Hospital. (A letter from Wimmera Health Care Group noted that on 24 November 1998 Mr May was treated in the Emergency Department for viral gastroenteritis.) His nausea had settled, but he still had "some recurrence of diarrhoea/loose motions", headache, no energy and some abdominal discomfort. In her notes on 26 November 1998, Dr Grove diagnosed an ongoing viral illness and "??bact gastro" (bacterial gastroenteritis). Dr Grove reviewed Mr May again on 1 December 1998 and 4 December 1998, by which time he was improving.
On 18 December 1998, there is a note (author unknown) of a phone call received from Dr Grove that Mr May was "not to have Twinrix today as unwell after last Twinrix". (Mr May received the oral polio vaccine, Sabin, that day and a MMR injection. He received the Typhim injection on 21 January 1999.) The next relevant record is on 8 February 1999 when Mr May is reported to be suffering from nausea and diarrhoea, which is recorded as having settled by 9 February 1999 but by which time he had a sore throat. (On 10 February 1999, Mr May received a BCG injection and a second dose of Sabin.) A record made on 15 February 1999, records that Mr May's diarrhoea and nausea had settled, he was feeling better and was fit for full duties. On 25 February 1999, an unidentified doctor found Mr May was fit for a combat survival course. There is a note that Mr May had reacted to the Hepatitis vaccine and a blood sample had been taken for testing of his immunity to Hepatitis A. If this showed a level of immunity that was "OK", there was no need for a third Hepatitis A injection.
There follow clinical notes for 5 May 1999 (nausea, headache, sore throat, cramping abdominal pain, diarrhoea), 10 May 1999 (improving slowly), 6 July 1999 (sore throat, dry cough, sore glands, congestion, headaches, hay fever), 15 July 1999 (well on Rhinocort, sore throat), 3 August 1999 (nausea, headaches vomiting/diarrhoea, abdominal cramps and lethargic, as well as left ear ache), 24 August 1999 (sore throat, productive cough, left faucal ulcers), 25 August 1999 (tongue swelling, pushing forward on teeth, difficulty talking with sore throat - very likely viral illness), 27 August 1999 (has lost voice, tongue less swollen but still fissured, ulcers less deep), and thereafter continuing notes on Mr May's throat infection, with admission to Hollywood Private Hospital on 23 September 1999 and discharge on 29 September 1999 with a diagnosis of bacterial pharyngitis. There are further notes on his condition which had significantly improved by mid-October 1999. On 8 November 1999, Mr May was recorded as fit to return to full flying duties. On 7 December 1999, Mr May is recorded as having experienced sinus pain on descending from 12,000 feet to 2,000 feet in four seconds, which continued for some days, and following which he had a sore throat and then headaches, diarrhoea, nausea and abdominal discomfort. There follow other similar records.
Mr May was first examined by Dr Martin Stuckey, Clinical Immunologist, in March 2000 on a referral from Flight Lieutenant Dr Glenn Pascoe, medical officer. In a report to Dr Pascoe dated 30 May 2000, Dr Stuckey noted persistent lymphopenia (low lymphocytes count). Investigations had revealed normal serum immunoglobulin concentrations but low IgG1 level. Dr Stuckey then stated that "Ben does need gammaglobulin treatment especially in view of his recent recurrence of infection". He recommended a six month trial of intravenous gammaglobulin treatment. This commenced with three weekly intravenous infusions of immunoglobulin (Intragam) in June 2000. In a letter to RAAF Dr Michael Seah dated 15 September 2000, Dr Stuckey said that Mr May had been in good health and had not had an infection since 10 July 2000, by which time he had had two doses. Dr Stuckey said:

[32]

On 27 October 2003, Mr May's general practitioner, Dr Catherine Girdler, notified the New South Wales Public Health Unit, Newcastle, of Mr May suffering "immunisation adverse reactions" which were "most likely related to vaccinations given in the course of his enrolment as a pilot in the RAAF". The NSW Public Health Unit appears to have in turn notified the Adverse Drugs Reaction Unit at the Therapeutic Goods Administration (TGA) of this. Mr May had prior email correspondence with Dr Barry Thompson of the Adverse Drug Reactions Unit who, having received a description of symptoms from Mr May following his vaccinations, said in an email dated 11 July 2003, that having assumed that "the reactions recorded occurred with the onset of each respective drug", Mr May appeared to have answers to the likely causes of his symptoms. In a later email dated 11 November 2003, sent prior to a short meeting with Mr May, Dr Thompson stated: "Please remember, I am not able to give medical or treatment advice. If you are enquiring about Vestibulopathy, please remember I am not an ENT Specialist or Neurologist."
Dr Girdler also referred Mr May for assessment by an ENT Specialist, Dr John Tonkin. In a report dated 1 July 2003, Dr Tonkin said that Mr May had told him of a history of vertigo starting on the day after being vaccinated on 10 November 1998 and associated with vomiting and diarrhoea. This was diagnosed by RAAF doctors as being due to a "viral invasion". Dr Tonkin's clinical findings were mild imbalance, and inconsistent both with Mr May's symptoms and with Eustachian tube dysfunction. He ordered additional tests including "a test of the organ of balance" at the Prince of Wales Hospital. In a letter to Dr Girdler dated 9 September 2003, Dr Tonkin reported that the test results were all negative, including the balance test result which was normal. Dr Tonkin then referred Mr May to a Neuro-Physiotherapist, Kathee De Lapp at St Vincent's Hearing and Balance Centre, for an intensive course of vestibular rehabilitation.
In January 2004, Mr May was reviewed by Professor Paul Fagan, an ENT Surgeon, who in a letter dated 13 January 2004, said:

[34]

In 2008, Mr May was assessed by Dr Thomas R Kertesz, ENT Surgeon, at the request of Mr May's then general practitioner, Dr Roslyn Doyle (letters to Dr Doyle dated 6 May 2008 and 27 May 2008). The results of the tests organised by Dr Kertesz were within normal limits although the vestibular function test showed the vents were increased in size, while in the past they had been reduced. He noted no diagnosis and recommended a trial of medication (Serc) to see if this led to a reduction in symptoms.
In 2008, Dr Doyle also referred Mr May to Dr David V Pohl, ENT Surgeon, for assessment. In a letter to Dr Doyle dated 2 June 2008, Dr Pohl noted Mr May's "long history of imbalance and short episodes of rotational vertigo associated with nausea" and the extensive investigations of his condition. Dr Pohl described his examination findings as unremarkable, but arranged an MRA scan. In a further letter dated 10 June 2008, he said this scan had proved normal and concluded that he was "unable to find a cause for his imbalance and dizziness".
Mr May had further assessments in 2011. Dr Anthony Lowy, Occupational Physician, in a report dated 6 May 2011, noted a normal physical examination with "no validation of vestibular disease". He said he was "of the firm opinion that Mr May's constellation of symptoms described at this assessment is not consistent with substantial pathology within his vestibular system." Dr Andrew Charles Dowe, ENT Surgeon, in a report dated 11 June 2011, agreed with Dr Lowy. Mr May was also assessed by a psychiatrist as suggested by Dr Lowy. In a report dated 7 June 2011, Dr Marilyn Moore concluded that Mr May "does not suffer from a diagnosable psychiatric disorder" and "There is no psychiatric disturbance which ... could better account for his symptoms".
At the request of the MRCC, Mr May was assessed by Dr Robert Loblay, Physician, Director of the Allergy Unit at the Royal Prince Alfred Hospital in Sydney. In a report dated 26 October 2010, Dr Loblay said that Mr May's symptoms "could be categorized as a 'functional somatic disorder'". Noting that Mr May had a prior history of 'probable glandular fever' followed by a period of post-infectious chronic fatigue in 1996, Dr Loblay said:

[39]

The MRCC does not concede that the symptoms complained of by Mr May were consequent upon him receiving vaccinations during his RAAF service. Despite Mr May having been assessed by a significant number of specialists, there is no clear diagnosis for his illness and no sufficient causal link with his RAAF service. Nevertheless, the MRCC accepts that Mr May suffers from a chronic condition which it says can probably be best described as a 'functional somatic disorder' as suggested by Dr Loblay.
The MRCC contends that in the absence of any objective evidence to establish a sudden and ascertainable or dramatic disturbance of Mr May's normal physiological state, his condition cannot be characterised as an injury in the ordinary sense. Rather, it should be characterised as an 'ailment' as defined in s 4(1) of the SRC Act. Thus, liability for Mr May's condition must be considered by reference to the definition of 'disease', thereby requiring a material contribution by Mr May's RAAF service to his condition.
The MRCC contends that none of the medical specialists who have examined Mr May have identified a relevant causal connection between My May's symptoms and the vaccinations he received during service. Most recently, Dr Loblay considered it "very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given". Thus, in the absence of evidence supporting a finding of a material contribution by Mr May's service to his condition, he has not suffered a 'disease' as defined in s 4(1) of the Act and nor, thereby, an 'injury' establishing liability for the payment of compensation under s 14 of the SRC Act.
Mr Clark, for the MRCC, referred to the Full Federal Court decision in McDonald v Director-General of Social Security (1984) FCR 354, where the Court recognised that although there is no legal onus of proof on the applicant in such Tribunal proceedings, statutes will commonly require that the decision-maker (and therefore the Tribunal standing in that person's shoes) be satisfied of certain facts. In Re Montesalvo and Australian Postal Corporation [2011] AATA 319, at [14], the Tribunal said "there must be credible evidence upon which the Tribunal can form a view that there is a [causal] connection". Mr Clark submitted that Mr May needs to identify relevant medical evidence to satisfy the Tribunal of a causal connection and Mr May's own evidence of his symptoms is not sufficient for this purpose.
Mr Clark noted the clinical notes from November and December 1998 relied on by Mr May merely record the history given by Mr May and do not express any medical opinion and, in particular, as to any connection between the vaccinations and Mr May's reaction. With regard to Dr Thompson, it is clear that the TGA is not in the business of providing clinical advice, as an examination of the relevant documents reveals.
Mr May said that he had no pre-existing medical condition prior to receiving vaccinations during the course of his RAAF service. He "went from healthy to handicapped, from pilot to disabled" after being vaccinated. The probable cause, he contends, is an unintended Adverse Drug Reaction (ADR) to medical treatment he received while in the RAAF. He claims that his health deteriorated after each occasion on which he was vaccinated. Mr May said his initial reactions were temporarily close to the vaccines being administered. He noted that nobody has come up with a rational alternative explanation.
Mr May referred to three references to his suffering an adverse reaction to a vaccination. On 18 December 1998, in Mr May's clinical notes, Chief Medical Officer Dr Vicky Grove noted that Mr May was "unwell after last Twinrix", and in a note dated 25 February 1999, an unidentified doctor noted "reaction to Vaccine". Mr May's file was reviewed by Dr Paul McCarthy on 6 July 2001. In a summary of clinical details, Dr McCarthy referred to "adverse reactions to vaccinations". On 27 October 2003, Mr May's general practitioner, Dr Catherine Girdler, notified the NSW Public Health Unit, of Mr May suffering "immunisation adverse reactions" which were "most likely related to vaccinations given in the course of his enrolment as a pilot in the RAAF". Dr Barry Thompson of the TGA gave this a "Causality certain" rating on the Australian Adverse Drug Reactions Advisory Committee data base. A review of the TGA's 'Public Case Details' indicates that the 'Causality certain' rating is in respect of the BCG vaccination in February 1999. With regard to the other vaccinations, the rating attributed to the listed reactions is 'Causality possible'. Mr May also stated that two other doctors he consulted while confirming his ADR to him orally, refused to document this.
At the hearing, Mr May contended that as a result of the vaccinations, he suffered an 'injury' (rather than a 'disease') arising in the course of his employment. He referred to the High Court decision in Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286 (Kennedy Cleaning Services) (for example, Gleeson CJ and Kirby J at [35]), where the Court referred to the long line of decisions in which it has been recognised that an injury involves "a sudden or identifiable physiological change". Mr May contended that he had provided evidence of clinical features occurring within 30 to 60 minutes of the vaccination on 10 November 1998. As was recognised by the High Court (as above at [39]):

[46]

There appears to be no dispute that Mr May is significantly disabled by his condition. This was confirmed by Dr Loblay in giving evidence at the hearing, and the Tribunal notes a Centrelink 'Job Capacity Assessment Report' dated 28 October 2011 provided by Mr May which indicates that he is qualified for a disability support pension. That report states that the medical condition from which Mr May suffers is vertigo. The evidence before us indicates that it is this condition that Mr May currently finds most disabling. Yet, in the Tribunal's view, there is no medical evidence to establish a connection between Mr May's vertigo and the vaccinations he received while in the RAAF.
It is the causal connection between the vaccinations Mr May received and the reaction Mr May claims to have suffered following the vaccinations which is the critical issue in this case. Mr May does not contend that he suffered a 'disease'. If, as he contends, he suffered an injury other than a disease, the Tribunal needs to be satisfied that this injury arose out of or in the course of his employment. For liability to be established under s 14 of the SRC Act, the Tribunal must also be satisfied that the injury resulted in incapacity for work or impairment.
For the sake of completeness, the Tribunal decided it should also consider whether Mr May suffered a 'disease', in particular, whether the vertigo which Mr May suffers was contributed to in a material degree by his employment. A 'disease' can be more difficult to establish than an injury simpliciter because such an ailment, or the aggravation of such an ailment, must have been contributed to in a material degree by his employment.
However, even to establish an injury simpliciter requires, as the High Court stated in its decision in Kennedy Cleaning Services, that there has been "some sudden or identifiable physiological change". The question in Mr May's case is whether there is sufficient evidence to establish this. The Tribunal notes that 'physiological' is defined in the Macquarie Dictionary (Revised 3rd edition) as meaning "consistent with the normal functioning of an organism" and 'physiology' as "the science dealing with the functioning of living organisms of their parts".

[48]

We have found the issue of what constitutes an injury simpliciter to be a difficult one to determine in this case. In our view, it is worth stating the questions that we consider Mr May's case poses. First, in order to establish an injury simpliciter, is it sufficient to find that a person suffers symptoms in the course of his or her employment and that the person is not a malingerer, in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms, or a psychiatric disorder to account for them? Second, in this situation, is subjective evidence of symptoms - in this case Mr May's personal evidence - sufficient to establish a non-disease injury? The Tribunal's understanding of the current state of the law, discussed above, is that the answers to both questions is 'No'.
Mr May has described the symptoms he experienced following the vaccinations he received on 10 November 1998. It is clear from the medical tests that Mr May underwent before he was accepted for entry into the RAAF as an officer cadet, that he was healthy and very fit. Mr May states that within 30 to 60 minutes of receiving the vaccinations, he began to experience symptoms and that these increased over the next few days. He says his tongue felt swollen, he felt dizzy and experienced nausea and diarrhoea. There are clinical notes on his reporting sick from 22 November 1998 and these notes appear to record the symptoms as described by Mr May at the time. The medical opinions recorded in the notes (see above at [19]) indicate that Mr May's treating doctors thought that he was probably suffering from a viral illness and possibly bacterial gastroenteritis. Thereafter, he had a history of infections, particularly of the upper respiratory tract, which, on some occasions required hospital treatment.
Mr May was first examined by an Immunologist, Dr Stuckey, in March 2000. While tests appear to have proved inconclusive, Dr Stuckey commenced Mr May on a six month trial of intravenous gammaglobulin treatment. Mr May's health improved during this period although Dr Sutherland, who reviewed Mr May in 2001, was obviously sceptical about whether Mr May had in fact benefitted from the treatment, expressing the view that Mr May's immune function was normal. Following Dr Sutherland's report, the treatment was not resumed, although Mr May clearly considers that it was of significant benefit to his functioning.
Since 2002, Mr May has been examined and assessed by a large number of specialists, in particular in relation to his vertigo. However, none of the investigations undertaken have proved definitive and none of the specialist reports have attributed any pathological cause to his vertigo. The Tribunal notes, in particular, Dr Halmagyi's comment (letter dated 12 March 2003) that he had never personally seen someone in whom he attributed their vestibular problems to an immunisation.
The Tribunal also had particular regard to the evidence of Dr Loblay, who, as stated above, is the Director of the Allergy Unit at the Royal Prince Alfred Hospital in Sydney. Dr Loblay has many years' experience in the investigation and treatment of immune reactions, both to drugs and to vaccines. Despite the reservations about Dr Loblay's evidence expressed by Mr May, the Tribunal found his evidence convincing and noted his opinion (report dated 26 October 2010) that it is "very unlikely that Mr May has suffered from an immunologically mediated adverse reaction to the vaccinations he was given."
However, Dr Loblay added (report dated 1 September 2011):

[50]

Having reviewed the medical evidence, the Tribunal is satisfied that there is a temporal relationship between the vaccinations and the symptoms described by Mr May, some of which were recorded in the clinical notes during the periods after the vaccinations. Despite Mr May having been assessed by a significant number of specialists, there is, however, no medical explanation for Mr May's 'illness' in the period following the vaccinations, the 'illness' being what Dr Loblay described as a subjective description of a collection of symptoms. The question is whether that illness amounts to a sudden or identifiable physiological change in the normal functioning of the body or its organs such that the illness can be said to be an injury simpliciter for the purposes of the SRC Act.
The Tribunal accepts that objective evidence of a swollen tongue or dizziness would be evidence of physiological change. Similarly, objective evidence of diarrhoea and upper respiratory infections would be evidence of physiological change, albeit that these conditions would ordinarily be considered 'ailments' in the context of the SRC Act. However, there is no objective evidence of Mr May's swollen tongue or dizziness, or pathology to support his account of his symptoms. The only contemporary evidence is his description of a swollen tongue and dizziness to the doctors who subsequently examined him and recorded his description in their clinical notes. The Tribunal accepts that there is objective evidence of Mr May suffering from diarrhoea and upper respiratory infections. Diagnoses were made in respect of these ailments which were treated and subsequently resolved. Nevertheless, even if we were to accept, which we do not, that these ailments should be treated as the product of an injury simpliciter, there appears to be no objective evidence connecting these conditions with the vaccinations. More particularly, as is discussed below, there is insufficient evidence to establish that the ailments were contributed to in a material way by Mr May's employment.
We note, in particular, Dr Loblay's oral evidence that, in Mr May's case, there is no biological mechanism consistent with a vaccine generating an immune response. The doctors who examined Mr May from late November 1998 onwards diagnosed him at various times as suffering from gastroenteritis, and viral and bacterial infections including pneumonia, and there is no objective evidence to connect these conditions with the vaccinations Mr May received. Moreover, it is not these 'ailments' that appear to be the current cause of his incapacity.
With regard to what we have loosely described as Mr May's vertigo, which is the condition which is the principal cause of Mr May's current disability, once again there is no objective evidence of him suffering from this condition in the period following his vaccinations and there is no substantial pathology to explain the symptoms which he now experiences, as discussed above.
The Tribunal does not accept, as Mr May contended, that the fact that there is no plausible alternative explanation is sufficient to establish, on the balance of probabilities, that he suffered a physical injury as a result of the vaccinations. The medical evidence, for example of Dr Halmagyi and Dr Loblay, discounts the possibility of such a connection. Moreover, while the Tribunal accepts that Mr May is significantly disabled by vertigo, we note the medical evidence, for example of Dr Kertesz and Dr Pohl in 2008 and Dr Lowy and Dr Dowe in 2011, indicating a lack of any pathology consistent with Mr May's symptoms, resulting in their inability to make a diagnosis.
In conclusion, we are not satisfied on the balance of probabilities that Mr May suffered a physical injury - an injury simpliciter - amounting to a sudden or identifiable physiological change in the normal functioning of the body or its organs that can be attributed to the vaccinations he received while serving in the RAAF. There is insufficient evidence to establish that he suffered such an injury in the course of his employment.

At a glance

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Judgment (59 paragraphs)

May and Military Rehabilitation and Compensation Commission [2011] AATA 886 (14 December 2011)

Legislation Cited (2)

Cases Cited (3)