1

2001 flew Newcastle to Canberra in PC-9AF

The High Court has agreed (May 2016) that injured workers are NOT required to prove
(i) a causal connection with employment (at [44])
(ii) their injures occurred suddenly (at [47]);  or
(iii) their evidence is from a medical specialist (at [62]), i.e. courts can make common sense inferences from a sequence of events.
That should be good for injured workers who are entitled to compensation, since the Australian Government has denied compensation to thousands by demanding proof of causality, suddenness, etc. even though they are not required by law.

In 2015 the Full Court (five justices) of the Australian Federal Court agreed that these demands (and a list of others) are not required by law.

The Federal Court said the Tribunal erred in law by demanding such things. The High Court disagreed.

CAUSALITY: The High Court found that the Tribunal did NOT require a causal connection, which is surprising considering that the Tribunal wrote, ‘[i]t 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’ (at [49]). The Tribunal considered evidence, such as TGA saying ‘Causality: Certain’ and royal australian air force (RAAF) doctors reporting ‘reaction to Vaccine’ (at [42]). However, Veterans’ Affairs convinced the Tribunal that neither TGA nor the RAAF are objective: ‘there is no objective evidence to connect the condition with the vaccinations’ (at [65]). What makes Government departments not objective?

The Tribunal denied vaccine causality (of which there are many types) because the Department of Veterans’ Affairs’ witness Dr R. Loblay rejected one type of vaccine reaction – immunologically mediated reactions. His reason was that ‘there is no biological mechanism consistent with a vaccine generating an immune response’ (at [35]). Let’s be clear: Loblay required biological mechanism (aka mechanistic; aka plausibility) evidence, as detailed in his report to the Tribunal (discussed at [33]-[35]). Loblay wrote, “… epidemiological evidence… cannot establish a cause-and-effect relationship… mechanistic evidence is required’ and ‘…May fails to meet the necessary criteria for mechanistic plausibility… used by the IOM…’ Loblay (pp 8-10) alleged these demands were founded on the research of ‘Sir Austin Bradford Hill’ (Hill, 1965) and the ‘Institute of Medicine (IOM, 2011)’. However, when we check Loblay’s ‘scientific criteria’ we find Hill actually wrote that this “is a feature I am convinced we cannot demand. What is biologically plausible depends upon the biological knowledge of the day” (p 298, my emphasis). Likewise, the IOM accepted probable causality on epidemiologic evidence without biological / mechanistic evidence: ‘A conclusion of “favors acceptance of a causal relationship” must be supported by either epidemiologic evidence of moderate certainty of an increased risk or by mechanistic evidence of intermediate weight’ (my emphasis; p 8, see also pp 2, 10, 11, 43). I showed the Tribunal this. The Tribunal wrote, ‘Mr May was critical of Dr Loblay’s reports… also that he had misconstrued some of the material which he took into consideration in formulating his opinion’ (at [47); and ‘Despite the reservations about Dr Loblay’s evidence expressed by Mr May, the Tribunal found his evidence convincing…’ (at [56]). Further, the argument the Tribunal disproved was a specific type of reaction known as an ‘immunologically mediated reaction to vaccines’ (at [32], [38], [56]), which was nothing to do any of the causality arguments I ran! In sum: no compo, since no causality, since I failed to meet a requirement the (misrepresented and misquoted) science says must not be demanded.

PHYSIOLOGICAL CHANGE: I was a ‘healthy and very fit’ qualified aerobatics pilot (at [53]). Later the air force medically discharged me for ‘debilitating’, ‘incapacitating’ vertigo.[1] The Tribunal accepted specialist medical evidence that I became ‘disabled’ (at [48]), and found that physiology means functioning.[2] Therefore, becoming disabled is physiological change. Yet, the Tribunal denied compensable injury as it was ‘not satisfied… that Mr May suffered a physical injury… amounting to a… physiological change in the normal functioning of the body…’ (at [63]). Why? ‘The Tribunal accepts that objective evidence … would be evidence of physiological change… However, there is no objective evidence…’ (at [59]). What makes Government departments and medical specialists not objective?

SWELLING: The Tribunal explained ‘objective evidence of a swollen tongue… would be evidence of physiological change’ (at [59]). I submitted to the Tribunal evidence from many doctors; including Dr S.C. Babu, Commanding Officer (CO) of the RAAF Institute of Aviation Medicine (AVMED) and Dr J. Newlands, Medical Officer (MO) AVMED, who confirmed ‘Tongue and palate swelling… May remains symptomatic’. The Tribunal accepted evidence from other air force doctors who reported: ‘tongue swelling, pushing forward on teeth… tongue … fissured…’ (at [21]). I also submitted photographs. However, after Veterans Affairs denied ‘any objective evidence’ (at [36]), the Tribunal found, ‘there is no objective evidence of Mr May’s swollen tongue…’ (at [59]). What makes photographs and force doctors not objective?

VERTIGO: A St Vincent’s Hospital computer called the ‘Balance Master’ measured an ‘abnormal’ result.[3] This computer and its apparatus measure effects of dizziness and vertigo – such as how much a patient sways when trying to stand still or otherwise controlling movement.

20030918 Balance 1

Medical specialists and Air Force officers and doctors reported that I suffer vertigo.[4] The Tribunal said that ‘objective evidence of … dizziness would be evidence of physiological change. … However, there is no objective evidence of Mr May’s …dizziness…’ (at [59]). What makes a computer not objective? A computer!

The Federal Court correctly found that the Tribunal made a number of errors of law.

Are the High Court and the Tribunal puppets for the Government?

In sum: there have been two investigations in my case: (1) the air force one where they refused to interview my witnesses and said they would not accept evidence from me that supported my case as it was ‘self-serving’ (and the RAAF threatened to imprison me if I spoke about any of this); and (2) the Tribunal where no evidence was “objective”. Oh, and there a number of other investigations, which were required to be conducted, but the air force admitted they never conducted those investigations.

[1]Squadron Leader (SQNLDR) Dr C. Watson, Senior Medical Officer (SMO) wrote, ‘May became unwell soon after joining the RAAF in 1998. … Long history of debilitating symptoms…’ (15 Sep 02)

Specialist Dr P. Barrie, ENT Surgeon wrote, ‘…Pilot who has had imbalance since he was given immunisation injections in 1998… Clearly the effects of this imbalance are potentially going to be very severe on this young man’s career…’ (18 Dec 02)

Wing Commander (WGCDR) T. McDonald, Deputy Director Personnel Support, AFHQ wrote, ‘you are Medically Unfit for Further Service (MUFS).’ (31 Mar 03)

Squadron Leader (SQNLDR) Dr G. Wilson, Senior Medical Officer (SMO) wrote, ‘May continues to suffer from Vertigo and the symptoms are moderately disabling. He is unfit for the duties which he enlisted for (Pilot training).’ (2 Apr 03)

Specialist Dr, Professor P. Fagan, Otology, Neurotology wrote, ‘…he would appear to be genuinely handicapped… almost certainly there is nothing that can be done for him…’ (13 Jan 04; 1061)

Wing Commander (WGCDR) Dr M. O’Donoghue, Commanding Officer (CO) 2ATHS (hospital at RAAF Base Williamtown) wrote, ‘May continues to suffer with chronic persisting symptoms’ (25 Feb 04)

Specialist Dr R. Loblay, allergist wrote, ‘[May] is significantly disabled” (26 Oct 10)

Specialist Dr A. Dowe, Consultant Ear Nose Throat (ENT) Surgeon wrote, ‘Prescribed impairment: Persisting vertigo’ (2756) ‘overall assessment of incapacity overall for civilian employment would be large (60% to 100%). … I cannot see that there is going to be any significant improvement … in Mr May’s retiring impairment or incapacity for civilian employment.’ (11 Jun 11)

[2] ‘…‘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” (at [51]).

[3]  Balance Master: (i.e. a computer at St Vincent’s Hospital). … Comparison to Clinically Normal Scores. 50% represents an average score. 5% or less… represents a clinically abnormal score. 4.4% Percentile Rank Relative to Normal Population … 4.3% Eyes closed – Average Position (18 Sep 03)

St Vincents Hospital Physiotherapist K. De Lapp wrote, ‘…test has excessive sway and the score is abnormal.’ (8 Oct 03)

[4]
‘experiencing Dizzyness [sic] and fatigue [..] glands palpable… viral illness’ Dr Wride, 6Hosp MO wrote, ‘History as above. …Not fit for operational deployment’ (22 Nov 98; 0085)

Squadron Leader (SQNLDR) Dr C. Watson, SMO: This situation has been ongoing since 1998 and remains unresolved.’ (15 Sep 02)

Specialist Dr. J. Tonkin, ENT wrote, ‘…more or less a continuous feeling of vertigo since the second day of entering the air force in November 1998. tinnitus in his left ear… he has tinnitus.’ (1 Jul 03)

Wing Commander (WGCDR) Dr. V. Duffy, MO wrote, ‘Longstanding vertigo’ (19 Nov 03)

Colonel J. Brock, Defence Health Services (DHS) wrote, ‘vestibular disturbance including episodic rotational vertigo, remain unchanged and have now persisted for a period in excess of 4 years.’ (1 Jun 04)

WGCDR Dr. M O’Donoghue Commanding Officer 2ATHS wrote, ‘Recurrent Vertigo…’ (24 Jun 04)             Wing Commander (WGCDR) Dr. Vince Duffy, MO wrote, ‘a history of disequilibrium’ (25 Jun 04)

Specialist Dr T. Kertesz, ENT surgeon wrote, ‘Dizziness… history of dysequilibrium. It seems to have started after air force vaccinations in 1998. Since then he has had positional imbalance, worse with changes in pressure whilst swimming or in an aeroplane. …constant disequilibrium and imbalance.’ (6 May 08; 1849)

Specialist Dr. D. Pohl, ENT wrote, ‘chronic recurrent vertigo requiring medication.’ (17 Dec 08)

***

Someone, not me, deleted my old site.

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© Benjamin May  1997 – 2014 All rights reserved.

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