ARNOLD and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 660

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 660

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2091

VETERANS' APPEALS  DIVISION		)
Re		JOHN ARNOLD

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Date1 September 2010

PlaceBrisbane

Decision The decision under review is set aside and the matter is remitted to the respondent with the direction that the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) for his colorectal cancer condition. The respondent is to pay the reasonable costs of the applicant as agreed; failing agreement the costs are to be taxed by the District Registrar.

.................[Sgd].............................

Senior Member

CATCHWORDS

COMPENSATION – Injury – Whether applicant suffered an injury in the nature of a “disease” – Whether employment contributed to “disease” in a material degree – Decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14

Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth)

Comcare v Sahu-Khan (2007) 156 FCR 536

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

REASONS FOR DECISION

1 September 2010 Dr P McDermott, RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member           

INTRODUCTION

1.      In 2008, Mr John Arnold (“the applicant”) lodged a claim for compensation for colorectal cancer condition which, in his application form, he described as a “malignant neoplasm” which affected the bowel.  The applicant has to wear a colostomy bag and requires continual treatment for this colorectal cancer condition.  The applicant claimed that the cause of his injury was smoking cigarettes which began after his enlistment with the Australian Regular Army (“ARA”).  We have to consider whether this colorectal cancer condition is contributed to in a material degree by his employment with the Australian Army.

RELEVANT LEGISLATION

2.      The legislation that we have to administer is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

3. As the claimed condition of the applicant arose in 2006, there is no issue that the claim of the applicant has to be determined by the regime applicable prior to the amendments to the Act which were made by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth).

4. Comcare is liable under s 14 of the Act to pay compensation to an employee for an “injury” suffered by an employee if the injury results in incapacity for work or impairment.

5. The expression “injury” is defined in s 4(1) of the Act to include “a disease suffered by an employee”.

6. Section 4 of the Act defines a disease to mean an ailment or aggravation of any such ailment that was contributed to in a material degree by the employee’s employment with the Commonwealth.

BACKGROUND

7.      There is no dispute about certain facts which relate to this application. 

8.      The applicant was a member of the ARA from 13 November 1963 until 2 July 1987 when he was discharged with the rank of Warrant Officer, Class 2.  He had undertaken National Service for a three month period which commenced on 9 January 1959.  He joined the CMF on 1 May 1960 and spent about 12 months on full-time service.  

9.      On 21 May 2008, the applicant lodged a claim for rehabilitation and compensation for “malignant neoplasm” of the bowel.  In the claim form, the applicant stated that he first sought treatment for the condition in 2006.  He further stated in his claim form, that he believed that the cause of his condition was smoking cigarettes which began after his enlistment.

ISSUE FOR CONSIDERATION

10.     We have to consider whether the condition of carcinoma of the rectum was contributed to in a material degree by his employment in the Army.

DIAGNOSIS OF MEDICAL CONDITION OF APPLICANT    

11.     There is no issue that the applicant suffers from carcinoma of the rectum.

12.     Professor Richard Fox has reviewed all of the medical evidence and is of the opinion that the applicant suffers from this condition.  Professor Fox makes the observation that because of the absence of lymph nodes the carcinoma is considered to be a stage B.

13.     Dr David Clark FRACS and FRCS Ed is a specialist in the field of general and colorectal cancer.  On 10 October 2006 he reported to the Department of Veterans’ Affairs that “There can be no doubt that this is a primary rectal carcinoma”.

14.     In his report of 14 January 2010 Dr Clark reported that the applicant “has a permanent end colostomy as a result of [the] low rectal carcinoma”.  Dr Clark also mentioned that “without the use of a colostomy bag, [the applicant] would have uncontrollable faecal incontinence, thus he requires continual treatment”.

EXTENT OF SMOKING

15.     On 6 August 2009 the applicant signed a statement which outlined his smoking history.

16.     In his statement the applicant remarked that he had not smoked prior to his enlistment with the ARA. The applicant had also not smoked during his National Service or his service with the CMF.  He had also not smoked when he was undertaking his apprenticeship as a carpenter.

17.     The applicant remarked that he first commenced smoking in 1963 when he was training for the ARA and was half-way through his training course.  He was then 23 years of age.  The evidence of the applicant was that the nature of Army training teaches small groups of men to work closely together and as a result he formed a tight-knit group with the other members of his section and the platoon.  During rest periods it was common for there to be rest breaks which were referred to as “cigarette breaks”.

18.     Sometimes these “cigarette breaks” turned into long periods of inactivity which the applicant remarked as being typical of the Army.  The applicant remarked in his statement that during the cigarette breaks his friends would offer him cigarettes and eventually “under quite significant peer pressure” he accepted, and that is when his smoking habit began.  The evidence of the applicant is that he was smoking 6-7 cigarettes a day when he completed his ARA training.

19.     The tenor of the evidence of the applicant was that his cigarette consumption increased during his ARA service.  After the completion of his ARA training he was posted to the School of Transport where he was smoking 10 cigarettes a day.  His cigarette consumption increased when he was posted to a transport platoon as a driver.

20.     In 1966 the applicant was posted to Darwin as a driver and transport NCO.  He estimates that he was then smoking on average 20 cigarettes a day. The evidence of the applicant is that during his career with the ARA his cigarette consumption increased from 20 to 40 cigarettes a day over a 10 year period.

21.     The applicant remarked that on 2 July 1987 when he discharged from the ARA, he was smoking on average 2 packets of cigarettes a day.  Since his discharge his consumption of cigarettes in more recent times has been 25-30 cigarettes a day.

22.     The applicant stated in a cigarette smoking questionnaire of 24 July 2008 that he took up smoking because of the “change of environment – stress of my service (especially promotion courses) boredom”.  He also remarked that cigarettes were cheaper from the Australian Services Canteen Organisation (“ASCO”) than at civilian outlets.  We accept that passing the examinations for the promotion courses would have been stressful.  We observe that the applicant progressed through the ranks and attained the rank of Warrant Officer, Grade 2.

23.       The applicant was subject to cross-examination about his smoking history. He was referred to certain annual medical questionaries in the service medical records which then listed the applicant’s estimate of his cigarette consumption.  A medical report of 29 October 1984 refers to his consumption as being “cigs 25/day”.  Another medical report of 24 June 1987 refers to his consumption as being “cigs 25-30/day”.

24.     While giving evidence at the hearing of the application, Dr Clark remarked that during a medical examination a patient would underestimate his consumption of cigarettes.  We consider that this has occurred in this instance.  What, however, is significant is that within the space of three years the applicant has reported an increase in his consumption of cigarettes.

25.     We appreciate that it is difficult for the applicant to give a precise estimate of his cigarette consumption.  His cigarette consumption increased after he commenced smoking in 1963.  By 1966 his cigarette consumption increased to 20 cigarettes a day or the equivalent of 1 packet a day.  By 1984 the applicant was, on the basis of his service medical records, consuming at least 25 cigarettes a day and by 1987 he was consuming up to 30 cigarettes a day. 

26.     We consider that the submission of Mr Harding, that at his annual medical examinations, the applicant underestimated his consumption of cigarettes, does have some weight.  As the applicant was smoking at least 20 cigarettes a day from 1966 until 2006 when the carcinoma was diagnosed, Mr Harding stated that his consumption at a base level was 40 pack years (which is 40 years of smoking at a pack a day).  We consider that Mr Harding has quite properly made a conservative estimate of the base level cigarette consumption of the applicant. 

27.     We think that it is more probable than not that the cigarette consumption of the applicant would be about two packets of cigarettes a day.  This accords with the entry in his GP records which mentions that on 20 July 1996 he “smokes 35/day”[1].  In our view the applicant was a heavy smoker.

[1] Exhibit F.

MATERIAL CONTRIBUTION

28. We have earlier mentioned that this application has to be determined by the legislative regime that was in existence prior to the amendments to the Act which were made by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth).  We therefore have to decide whether the ailment of the applicant was contributed to in a material degree by his employment with the Commonwealth. In coming to a conclusion on this issue, we have been guided by the decision in Comcare v Sahu-Khan (2007) 156 FCR 536 at 543 where Finn J remarked: “’in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question”. Finn J referred to this as “the threshold evaluation”. The question of whether the employee’s employment did or did not contribute to the ailment is as His Honour remarked “a matter of fact and degree”.

29.     We consider that the condition of service of the applicant in the Army required the applicant to work closely with a tight knit group of men in his platoon.  During training there were rest periods commonly known as cigarette breaks and we accept that the applicant then came under severe peer pressure to participate in cigarette smoking.  We accept that the applicant commenced smoking about half way through his 3 month ARA training at Kapooka.  By the end of his entry training in the ARA, the applicant was a regular smoker.  We also note that cheaper cigarettes were available to the applicant in the military environment.

30.     The respondent pointed out that the statement of the applicant dated 6 August 2009 did not refer to the stressful nature of the ARA training.  However, the applicant in other documentation referred to the stressful nature of his service.  In his smoking questionnaire of 24 July 2008 the applicant stated that he took up smoking because of the “stress of my service (especially promotion courses) and boredom”.  

31.     We consider that the applicant’s service caused him to become a regular cigarette smoker at about 23 years of age. In coming to this conclusion we comment that the applicant did not smoke cigarettes earlier than that even though his father and mother had been smokers.  On our view of the evidence the wife of the applicant had taken up smoking after the applicant commenced smoking.  The fact that there was peer group pressure to take up smoking during “cigarette breaks” was in our view the probable cause of the applicant taking up smoking.

32.     We regard Dr David Clark as a credible witness.  An examination of his earlier report of 7 September 2008 reveals that he would not give an opinion about causation without satisfying himself of the requisite assumptions.  In that report Dr Clark remarked: “it would have to be proved that his service in the Defence Forces led to him smoking before the next assumption regarding smoking and colorectal cancer could be considered”.

33.     It was only after Dr Clark read the statement of the applicant that he provided his report of 14 January 2010.  In that report Dr Clark opined that having regard to the level of the applicant’s smoking, it may have contributed to the development of colorectal cancer.  Under cross-examination Dr Clark stated that he formed his opinion based on literature from the Cancer Council although he admitted that he had not personally consulted the literature.

34.     There is no evidence before us that the applicant has any genetic predisposition to colorectal cancer.  This was the conclusion of Dr Clark who, in his report of 14 January 2010 has stated, “There is no definite family history of colorectal cancer”.  On the first day of the hearing of this application, the applicant was closely examined by the respondent about whether the cause of death of his father was colorectal cancer.  This was presumably because Dr Clark in his report of 21 August 2006 had raised “the possibility of colorectal cancer in his father”.

35.     After an adjournment the applicant produced his father’s death certificate which was admitted in evidence[2].  That certificate records that the cause of death of the applicant’s father was prostate cancer and not colorectal cancer.  This confirms the opinion of Dr Clark that there are no genetic factors which caused the condition of the applicant.  No other risk factors, such as obesity, have been identified in this case.

[2] Exhibit G.

36.     Dr Clark in his report of 21 August 2006 had recorded: “He is a smoker of 10-15 cigarettes/day”.  Dr Clark was closely questioned about whether this statement reflected the previous history of cigarette consumption of the applicant.  Dr Clark stated that his comments reflected the cigarette consumption of the applicant at the time of the making of the report which was dictated on 9 August 2006.  Dr Clark remarked that he was not investigating any past cigarette consumption.  The report was dictated before a colostomy operation was performed on the applicant.  Dr Clark stated that the information about the then current cigarette consumption of the applicant would have been for the information of an anaesthetist.

37.     A report of Professor Richard Fox FRACP dated 5 February 2010 together with a commissioning letter of 14 January 2010 was admitted into evidence[3].  The report of Professor Fox consists of an analysis of the literature concerning whether cigarette smoking causes colorectal cancer.  His report is a comprehensive review of the literature concerning the cancer epidemical studies.  Professor Fox has stated that the literature, which is consistent, reveals a statistically significant connection between colorectal cancer and cigarette smoking.

[3] Exhibit D.

38.     In his report Professor Fox expresses the conclusion that in the case of the applicant, there was a relative risk of the order of 1.3 to 1.4 in the case of the applicant (para 3.10).  In cross-examination, Professor Fox stated that this opinion was based upon his assumption that the applicant had for 40 years smoked 10-15 cigarettes a day.  This assumption may have been made because Dr Clark, in his report of 21 August 2006, lists this level of consumption.  We have earlier mentioned that this report referred to the then prevailing rate of cigarette consumption and not to the historical cigarette consumption.  We also mention that the service medical documents that the commissioning letter states were briefed to Professor Fox reveal a higher level of consumption.

39.     In cross-examination, Professor Fox agreed that the more cigarettes you smoke the greater the risk.  Professor Fox agreed with the proposition that if the applicant had been smoking 40 cigarettes a day (instead of 10-15 cigarettes) then the studies would suggest a relative risk of 1.65.

40.     The respondent submitted that in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ analysed the United States case law "which requires a relative risk of 2.0 in order to satisfy a balance of probabilities test"[4].  In Seltsam Spigelman CJ remarked, at 285, "In Australian law, the test of actual persuasion does not require epidemiological studies to reach the level of a Relative Risk of 2.0, even where that is the only evidence available to a court. Nevertheless, the closer the ratio approaches 2.0, the greater the significance that can be attached to the studies for the purpose of drawing an inference of causation in an individual case".

[4] Respondent's Statement of Facts, Issues and Contentions, 27 April 2010, para 5.26.

41.     In Seltsam ,Spigelman CJ quoted from the Federal Judicial Centre's, Reference Manual on Scientific Evidence where it was recognised that in the United States a plaintiff may satisfy an evidentiary burden if a relative risk of less than 2.0 emerges from the epidemiological evidence.  In that Reference Manual on Scientific Evidence the following passage appears: "If genetics can be ruled out in an individual's case, then a relative risk of greater than 1.5 might be sufficient to support an inference that the agent was more likely than not responsible for the plaintiff's disease"[5].  In this case where genetics has indeed been ruled out as a cause of colorectal cancer, and there is evidence of a relative risk factor of greater than 1.5, we make the inference that the cigarette smoking of the applicant "did contribute materially to the suffering" (to respectfully adopt the words of Finn J in Sahu-Kahn) of the applicant in his colorectal cancer condition.

[5] (2000) 49 NSWLR 262at 281.

42.     Having regard to the relevant evidence before us we find that the applicant’s employment did contribute materially to the colorectal cancer of the applicant.  We base our decision on the medical evidence before us which is the opinion of Dr Clark that was informed by the literature as well as the evidence from Professor Fox that there is a greatly increased risk to the applicant by a long-term cigarette consumption of 40 cigarettes a day.

43.     The decision under review is set aside and the matter is remitted to the respondent with the direction that the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) for his colorectal cancer condition. The respondent is to pay the reasonable costs of the applicant as agreed; failing agreement the costs are to be taxed by the District Registrar.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member.

Signed: .......................[Sgd]......................................................
  Kate Slack, Research Associate

Date/s of Hearing  18 June and 1 July 2010
Date of Decision  1 September 2010
Counsel for the Applicant         Anthony Harding
Solicitor for the Applicant          Terence O'Connor
Counsel for the Respondent     Charles Clark
Solicitor for the Respondent     Phil Nolan, Sparke Helmore