Bourke and Comcare
[2003] AATA 1170
•20 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1998/138
GENERAL ADMINISTRATIVE DIVISION ) Re SIMON FRANCIS BOURKE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date20 November 2003
PlaceHobart
Decision The decision under review is affirmed.
[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Compensation – nature of “injury” – Meniere’s Disease – contribution by flight training with RAAF – nature of “trauma” – no ongoing symptoms.
Safety, Rehabilitation and Compensation Act 1988 – ss4, 14, 124
REASONS FOR DECISION
20 November 2003 Ms A F Cunningham (Part-time Member) 1. The applicant has sought the review of a decision made on 12 June 1996 which found that the respondent was not liable to pay compensation for the applicant’s claimed condition of tinnitus and ear imbalance. The decision was subsequently affirmed by a delegate of Comcare on 3 August 1998.
2. The applicant was represented by Mr Ross Hart and the respondent was represented by Mr Brian Morgan. The applicant gave oral evidence at the hearing. Oral evidence was also given by Dr Gavin K Earles and Dr Ashok Saha both Ear, Nose and Throat specialists, Dr Ian Charles Roddick, General Practitioner and Gil Moore, a semi-retired former Air Force pilot. Several medical reports prepared by the above-named doctors was received in evidence as well as a report from Michael M Paparella, Physician, dated 17 November 1998. The applicant’s flight logbook was tendered. The T documents were received pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
3. The applicant’s claim for tinnitus and ear imbalance was dated 19 July 1995 and received by the respondent on 20 September 1995. In the claim the applicant contended that his conditions were contributed to by “aerobatic manoeuvres during training with the RAAF”..
4. It was contended on behalf of Mr Bourke that he suffers Meniere’s disease which manifests itself as tinnitus and ear imbalance. His argument is that his Meniere’s disease is a result of a barotrauma suffered during the course of his flight training with RAAF in 1973.
5. The issues to be decided by the Tribunal are the following:
(i) Does the applicant suffer an injury within the meaning of the Act.
(ii)Did the applicant’s employment in the RAAF in 1973 contribute in a material degree to the contraction of the “injury”.
(iii)Alternatively, did the applicant’s employment in the RAAF in 1973 contribute in a material degree to the aggravation of that “injury”.
(iv)Is the applicant incapacitated for work as a result of the “injury”, and if so, what is his ability, if any, to earn an income.
Legislation
6. The claim is made pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), no claim having been lodged pursuant to the provisions of the 1971 Act. The provisions of s124 of the 1988 Act provide in sub-section (1):
“(1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.”
7. It was not argued that the applicant would not have been entitled to compensation had his claim been lodged pursuant to the provisions of the 1971 Act.
8. The applicant’s claim is made pursuant to the provisions of s14 of the Act which states:
“(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
9. The term “injury” is defined in s4 of the Act as:
“including a disease suffered by the employee”.
10. “Disease” is defined in s4 as:
“(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.”
11. “Ailment” is defined as meaning
“any physical or mental ailment, defect or morbid condition whether of sudden onset or gradual development.”
Nature of the Applicant’s “Injury”
12. It was Dr Earles evidence that Mr Bourke is suffering from Meniere’s disease. Dr Earles stated in evidence that he first examined Mr Bourke on 13 June 1996 and on the basis of the history provided, his examination, and his specialist investigation, he formed the view that Mr Bourke was then and is now suffering from Meniere’s disease. He did not believe however that a diagnosis of Meniere’s disease could have been made in 1973.
13. Dr Saha who was called as a witness for the respondent stated in a report dated 6 July 2001 as follows:
“I mentioned in my previous letters dated the 29th February, 1996 and the 18th February, 1996 that the most probable diagnosis of Mr Bourke’s present condition was Meniere’s Disease which was based on the history and clinical findings of his examination when he came to see me on the 29th February 1996. This diagnosis was based on the history given to me by the patient and on the findings in his notes when he was in the Defence Services, also on my present examination.”
14. It was Dr Saha’s opinion that Mr Bourke was not suffering from Meniere’s disease on his discharge from the Air Force. In his report of 6 July 2001 he commented:
“In Meniere’s disease, even when all the symptoms subside, it leaves behind a mild to moderate degree of hearing loss either in one ear or in both ears. This patient did not have any residual hearing loss when he [sic] symptoms subsided during 1973 when he was in the Air Force. On his discharge there was no evidence that this man was suffering from Meniere’s disease as usually with this disease there is episodic vertigo usually associated with nausea and vomiting and a fluctuating sensori-neural hearing loss in one or both ears. During his Defence Force training in 1973 the history and findings given are more suggestive of Eustachian tube dysfunction associated with barotrauma. All the symptoms mentioned by Mr Bourke and the findings in his notes during his service are adequately explained by the diagnosis of respiratory tract infection and eustachian tube dysfunction associated with barotrauma. The findings, the examination and hearing test during those periods are not suggestive of any underlying Meniere’s disease and therefore to diagnose that the Meniere’s disease started during the training period is highly speculative.”
15. Dr Saha stated in evidence before the Tribunal that Meniere’s disease is associated with nerve or conductive deafness. As Mr Bourke’s medical discharge report stated that he suffered no hearing loss, in Dr Saha’s opinion this confirmed that he was not at that time suffering from Meniere’s disease.
16. Dr Ian Roddick stated that he first became aware of Mr Bourke’s problem when he consulted him on 22 August 1995 complaining of dizziness and tinnitus. He then diagnosed Meniere’s disease and referred Mr Bourke to Dr Earles who confirmed the diagnosis.
17. Dr Saha conceded that the applicant currently suffers from tinnitus and ear imbalance. On the basis of his examination which did not show a permanent sensori-neural hearing loss, he could not confirm a diagnosis of Meniere’s disease.
18. There is no evidence to support a finding that at the time of Mr Bourke’s discharge from the RAAF in 1974 he was suffering from Meniere’s disease. It was submitted by Mr Morgan that it is not necessary for the Tribunal to make a specific finding as to whether or not the applicant is currently suffering from Meniere’s Disease.
19. As Burchett J said in the decision of Australian Postal Corporation v Lucas (1991) 33 FCR 101 of the Federal Court decision Re Musumeci and Department of Health (1990)) 19 ALD 797:
“Re Musumeci was a rare case, and the point made in it was a very special one. I do not wish to cast any doubt upon the conclusion that, given an incapacitating condition is satisfactorily shown, the mere fact that the diagnosis of its medical nature may not be able to be made precisely, though obviously a factor which might militate against a finding of a causal link with employment, will not necessarily present an insuperable obstacle to such a finding. It must depend on the evidence. Nor is it to be doubted that proof of incapacitating pain may be relevant to show an aggravation: cf Commonwealth v Beattie (1981) 53 FLR 191 @ 201 per Evatt and Sheppard JJ.”
20. However Mr Bourke’s claim of a causal link between his employment with the Commonwealth and his current condition would seem to depend upon the Tribunal finding a link between his claimed barotrauma suffered as a result of flight training and the subsequent onset of his Meniere’s Disease. Whilst it was the evidence of Drs Earle and Roddick that Mr Bourke is currently suffering Meniere’s Disease, Dr Saha said in evidence that he could not confirm a diagnosis of Meniere’s Disease. It is noted that Dr Saha had said in his written report that “the most probable diagnosis of Mr Bourke’s present condition was Meniere’s Disease”. The Tribunal accepts that Mr Bourke is currently suffering Meniere’s Disease.
Contribution by Employment
21. The next issue is whether the applicant’s condition was “contributed to in a material degree by the employee’s employment by the Commonwealth”.
22. It was Mr Bourke’s evidence that he first commenced flying as a private pilot in February 1971 at the Cambridge Aerodrome in Hobart and had achieved approximately 300 flying hours prior to joining the RAAF. As a prerequisite to his acceptance into the RAAF he underwent a medical examination in Hobart on 25 September 1972 and as a result was declared medically fit. Further, more specific medical examinations were carried out in Melbourne including ear, nose and throat consultations on 8 March 1973. As a result of those examinations Mr Bourke was declared fit for flying duties. Mr Bourke’s first flight in a Winjeel aircraft took place on 7 September 1973. None of the above evidence given by Mr Bourke appeared to be in contention and the Tribunal finds accordingly.
23. It was Mr Bourke’s evidence that during flight training without an instructor on 24 September 1973, he felt nauseated and suffered dizziness and that he had never before experienced such symptoms. Mr Bourke said that he subsequently underwent a medical examination and was given Dramanine sickness tablets. He was then sent to a desensitisation area where he was made to sit in a rotating chair to see if he would vomit. He did not vomit, but was grounded from flying until 1 October 1973.
24. Mr Bourke said that thereafter he continued to fly up until 9 October, but never felt the same. He had several bouts of vertigo and suffered pressure in his ears and nausea. On 9 October 1973 he suffered a pressure build up and pain in his ears and was unable to valsalva. He said that on 9 October 1973 he was undertaking a series of manoeuvres which included some aerobatic manoeuvres. He recalled that the flight was cut short after about 30-minutes because of the pressure build-up in his ears. Mr Bourke’s evidence was that on 10 October 1973 he was again grounded and on 11 October 1973 he again experienced fluid build-up in both ears. His ears were subsequently syringed.
25. Mr Bourke’s outpatient’s clinical records (T3 pages 16 and 17) confirm that wax was found in both ears which were subsequently syringed. A diagnosis of bilateral serous otitis media was made and an ENT referral to Mr Stubbings. There is a further notation “?Metallic foreign object ® drum”.. Senior Medical Officer Nowotny in his referral to Mr Stubbings stated: “This is the cadet about whom we spoke on the telephone. Difficulty clearing ears 3/7 ago while flying – now has bilateral fluid levels, and also an unusual (?metallic) object apparently on his ® drum. Could you see him and advise please”.
26. The notes reveal that Mr Bourke continued to have difficulty with his right ear, although the left ear had cleared completely by 23 October 1973.
27. On 8 October 1973 the outpatient consultation records reveal that it was recommended that Mr Bourke be restricted from flying in non-pressurised aircraft for the remainder of year.
28. Mr Bourke said that he was medically examined by Flt Lt Nowotny on 13 November 1973 to determine if he would be fit for commercial flying. Flt Lt Nowotny’s conclusion was that in his opinion Mr Bourke’s status as regards the medical standard for a commercial licence was “doubtful”.
29. In a report Flt Lt Nowotny noted that Mr Bourke “still valsava’s only with difficulty on the ®”.. He stated his reasons for the doubtful status as (1) eustachian tube dysfunction (2) mildly elevated systolic BP (for his age) (3) colour perception.
30. It was Mr Bourke’s evidence that he was discharged from the RAAF on 30 November 1973 “on request” due to his incapacity to perform duties in pilot training. Mr Bourke’s own notes dated 13 November 1973 at (T3 page 29) state however:
“Since October I have been unable to continue my training as a pilot here at Point Cook. At present I am processing my resignation from the Royal Australian Air Force due to private company wishing to employ me as a Commercial Pilot early next year.
I have been advised by an ENT specialist not to fly until next year, thus holding me back from up grading my present private licence to a commercial licence.”
31. The evidence given by Gil Moore was that there would have been several options open to Mr Bourke following his grounding. He said that he could have been retrained into another area or following the settling of his eustachian tube infection, he could have been “back coursed” for 2 months or so.
32. It was the respondent’s case that Mr Bourke had completely recovered from any disabling condition suffered by him during his flight training by the date of his resignation from the RAAF. It was contended that apart from Mr Bourke’s assertions that he continued to suffer ongoing symptoms of giddiness and nausea from time to time, there is no medical evidence confirming this and the fact that Mr Bourke continued to fly on a fairly regular basis up until at least February 1991 without any recorded problems did not support Mr Bourke’s evidence to the Tribunal that he suffered ongoing symptoms.
33. It was contended on behalf of the respondent that the cause of the bilateral tinnitus media suffered by Mr Bourke during his flight training in October 1973 had been the result of a eustachian tube dysfunction as result of a cold. Dr Earles conceded during the course of cross-examination that the documented history in relation to the October flying incident was consistent with the symptoms that one would suffer from a respiratory tract infection.
34. On 5 December 1997, Dr Earles responded to a request from Mr Bourke’s solicitors advising that:
“I must conclude that it is not at all probable that Mr Bourke’s Meniere’s Disease is related either directly to otitic barotrauma that he experienced during his flying career in the Air Force or that such barotrauma exacerbated a pre-existing condition.
There is nothing in the articles (obtained from the World Wide Web) which could link otitic barotrauma and the development of Meniere’s Disease.”
35. Dr Earles subsequently reviewed his opinion following receipt of a publication that had been brought to his attention which indicated that physical trauma to the head may result in the development of Meniere’s Disease up to 20 years later. Whilst a direct causal relationship has not been proven, he said that nevertheless the evidence is highly indicative. Dr Earles referred to the opinion of Dr Earles Michael Paparella who had seen patients where physical trauma has preceded the development of Meniere’s Disease. As a result, Dr Earles opined that there is some evidence that Meniere’s Disease may be caused by otitic barotrauma.
36. Dr Earles subsequently advised:
“It is my opinion that it is more likely than not that pressure change experienced by Mr Bourke whilst flying have led either to the development of his Meniere’s Disease or the aggravation of Nascent Meniere’s Disease.”
37. The Tribunal received into evidence a letter written by Dr Michael Paparella, dated 17 November 1998 following an examination of Mr Bourke’s medical notes. Dr Paparella was asked whether barotrauma or other trauma could be a contributing factor to the subsequent development of Meniere’s Disease. Dr Paparella referred to a review published in December 1997 by DiBiase, and Arriaga who described physical trauma and post-infectious hydrops as being causes of Meniere’s syndrome. Dr Paparella further stated:
“Certainly barotrauma that would have occurred in Mr Bourke’s case could result in significant damage to the membranous labyrinth. This may have occurred secondary to middle ear/inner ear interaction as a result of the otitis media that was described. As well, the acceleration and deceleration experienced as an Air Force pilot could also result in significant disturbance of the membranous labyrinth. As well, there are certainly significant acceleration and deceleration forces which he would have been experiencing which can also, as described in the above papers, cause haemorrhage and subsequent dysfunction of the membranous labyrinth.”
38. It was contended on behalf of the respondent that Mr Bourke had not in fact suffered a barotrauma as a result of his flight training in 1973. Further that there was no link with the symptoms that he suffered and the consequent diagnosis of Meniere’s Disease made by Dr Earles . When Dr Earles was asked why he had opined that Mr Bourke had suffered a barotrauma, he referred to the increased fluid levels in the left middle ear as a result of pressure changes. He stated that one of the signs of increased fluid levels was that it presented as a gun metal colour as a result of bleeding as distinct from the usual straw coloured fluid present in the ear.
39. Dr Earles went on to state that a connection between the barotrauma and Meniere’s disease was more likely where the symptoms presented close to the event. He said that if Mr Bourke had not complained of any symptoms prior to his diagnosis of Meniere’s Disease in 1976 then it was likely that he did not have the disease prior to that date. Dr Earles said that his diagnosis of barotrauma was based on Mr Bourke’s description of the flying that he undertook prior to his grounding which included aerobatic manoeuvres with rapid changes in altitude.
40. Under cross-examination Dr Earles conceded that he must have been mistaken in his report to the insurance company where he stated that Mr Bourke had been flying mirage jets. Mr Bourke contended that he had never informed Dr Earles that he had been training in mirage jets.
41. Mr Bourke claimed that he had been doing aerobatic manoeuvres during flight training on 9 October when he experienced a painful right ear. An examination of his flight logbook however, did not support aerobatic training on that occasion and indicated that Mr Bourke was only in the air for .25 hours.
42. Mr Bourke was unable to correlate the sequence numbers recorded in the logbook with his flying activities. It was Mr Moore’s evidence that reference to sequences 12 and 13 referred to circuit training undertaken prior to solo flights and that sequence 18 would have referred to more advanced activities including aerobatics. On the basis of this evidence, it would appear that the last occasion when Mr Bourke was involved in aerobatics manoeuvrers was on 5 October when he flew for 1.1 hours.
43. It was also Mr Moore’s evidence that Mr Bourke’s flying sequences were at a fairly sedate level in that they would not have involved high G loads. A high G load is considered at level 4 or above.
44. It appears from Dr Earles evidence that the basis for him concluding a potential causal link between Mr Bourke’s Meniere’s Disease and his flight training was the high G forces and pressure changes that Mr Bourke had been subjected to during the course of his flight training. In Dr Earles opinion, Mr Bourke could have suffered a barotrauma as a result of his flight training. When Dr Earles was asked why he had concluded that Mr Bourke had suffered a barotrauma, he mentioned to the reference in Mr Bourke’s medical records to a metallic foreign object being seen in his right eardrum. He said that this could equate bleeding within the middle ear canal.
45. There is considerable doubt however as to whether this reference indicates that there was bleeding in the right drum. When Mr Bourke was examined later that day by a specialist, Mr Stubbings, he reported:
“I cannot see any foreign body in the right ear.”
46. Dr Earles agreed that studies indicated that it can take decades, in some cases up to 30 years before an episode of barotrauma would manifest itself as Meniere’s Disease. The connection becomes more tenuous the less severe the barotrauma and the longer the period of time between the onset of Meniere’s Disease, especially when there is no report of ongoing symptoms in the interim.
47. Dr Earles did agree under cross-examination by Mr Morgan, that Mr Bourke’s Meniere’s disease may well have been due to his own physiological structure rather than the barotrauma that he suspected Mr Bourke had suffered as a result of his flight training.
48. It was Dr Saha’s evidence that he doubted that Mr Bourke had suffered a barotrauma as a result of his flight training. It was Dr Saha’s opinion, that if Mr Bourke had suffered a rupture of a round window or perilymph fistula as suggested in Dr Paparella’s report of 17 November 1998, these conditions would have required surgery or otherwise meningitis could have resulted. Dr Saha went on to state that any leakage of fluid in the middle ear would continue to the inner ear and was a very serious condition. He noted that in 1996 Dr Earles had arranged for an MRI scan to be conducted which revealed a normal skull and showed no fractures.
49. It was Dr Saha’s opinion that if there were no demonstrated symptoms until 1994, it could not be concluded that Mr Bourke’s Meniere’s Disease was in anyway related to his flight training.
Ongoing Symptoms
50. Whilst it was the applicant’s evidence to the Tribunal that he continued to suffer ongoing symptoms of giddiness and nausea following his discharge from the RAAF, as previously stated, there is no documented medical evidence in support.
51. The Tribunal does not accept that if the applicant continued to suffer symptoms of giddiness and nausea when flying, albeit to a fairly minor degree, that he would have continued to fly and not disclose these symptoms in the course of his medical examinations undertaken for the purposes of renewing his pilot’s licence.
52. Mr Bourke had flown on a regular basis between 1971 and 1973 in a private capacity totalling 150 hours of flying time prior to joining the RAAF. The Tribunal cannot accept that he would have been so irresponsible to have continued to fly and in particular carry passengers when he was still experiencing symptoms of giddiness and nausea, whilst not on a regular basis, even from time to time. Mr Bourke was required to apply for his pilot licence on a bi-annual basis and was passed medically fit each time he applied until February 1991. On that occasion the reason for rejection appear to be problems with his eyesight. The 1991 application is the only one that refers to any problems that Mr Bourke has experienced with his ears.
53. Nor is the Tribunal satisfied that the reason why Mr Bourke left the RAAF was because he was experiencing ongoing problems with his ears. In his own words he was offered a position as a commercial pilot and this was the reason he left. The evidence was that had he chosen to remain with RAAF. He could have taken up an offer to back course, transferred to an air navigation or similar section or a ground position, for instance as an airforce traffic controller.
54. There is evidence that Mr Bourke continued to fly as a pilot in his logbook. Although he would have the Tribunal believe that he was not in control of the aircraft, but flying as a flight crew member between 1976 and 1979. The Tribunal cannot accept his evidence which is entirely inconsistent with the documented evidence in his logbook. These entries refer to significant flight times and one of the obvious purposes for recording the flight times was to maintain his licence. In 1991 Mr Bourke declared a total flying time of 1,400 hours.
55. In support of his contention that he continued to suffer the effects of vertigo, Mr Bourke referred to an incident which occurred in February 1976 whilst flying a private aircraft. In his proof of evidence, Mr Bourke states:
“February 1976 experienced bad attack of vertigo whilst flying a private aircraft which caused a Department of Civil Aviation, Air Safety Incident.
Ceased to pilot aircraft in command from that time.”
56. The applicant’s oral evidence to the Tribunal was that in the course of a flight from Wynyard to Hobart and his concerns about a weather build-up, he radioed Hobart Airport. As a result decided to continue with his flight destination. He said that it was whilst flying over Colebrook that he felt giddy and encountered symptoms of vertigo and dizziness whilst flying towards Eaglehawk Neck. He sought clearance from Hobart to climb on several occasions because of low cloud level and flew to Tasman Island because of the cloud build-up over Hobart. Mr Bourke conceded that he did not disclose his concerns about his health in the incident report which followed. His licence was suspended as a result of the incident.
57. Whilst Mr Bourke stated in his proof of evidence that he ceased to pilot aircraft in command from that time, the evidence in his logbook indicates that he flew again some 12 days later in a Cessna 206.
58. It is the Tribunal’s conclusion that if the incident had really been caused by an attack of vertigo, Mr Bourke would have and should have disclosed this in the course of the incident report. The fact that he did not seek any medical treatment and flew again some 12 days later, suggests that his claimed attack of dizziness either did not occur or was not of much significance. The more likely explanation is that Mr Bourke found himself in difficulty when flying through cloud and perhaps descended too quickly causing problems with nausea and giddiness which were temporary in nature..
59. It was Dr Roddick’s evidence to the Tribunal that he first examined Mr Bourke in 1987 in relation to Class 1 medical certificate for a commercial pilot’s licence. He was informed by Mr Bourke that he had flown 1300 hours as a flight crew member. In response to a question as to whether he had lost any time from work for giddiness etc., he responded “No”.. Dr Roddick said that Mr Bourke’s audiogram test was normal and his hearing was very good. Mr Bourke informed him that he had last flown an aircraft some 10 weeks previously.
60. Again in 1991 Dr Roddick had no concerns about the applicant’s balance or ability to fly an aircraft. Mr Bourke did not report any problems with giddiness and could not recall suffering such symptoms. He said in cross-examination that he understood his obligation to report any such symptoms Dr Roddick. Dr Roddick recommended renewal of the licence.
61. It was Dr Roddick’s evidence that it was not until 3 March 1995 that Mr Bourke first complained to him of any dizziness or vertigo. Although he had been Mr Bourke’s general practitioner since 24 January 1987, it was not until 22 August 1995 that Dr Roddick referred Mr Bourke to Dr Gavin Earles when he complained of dizziness and tinnitus.
62. Dr Roddick’s statement in his letter to Mr Hart of 24 October 2002 that Mr Bourke had to give up flying as a pilot because of his condition is not consistent with the other evidence presented to the Tribunal.
63. In the same letter Dr Roddick also made a statement that Mr Bourke had had to give up his career as a real estate agent “because the sudden onset of the dizziness would severely interfere with his ability to drive a car safely in spite of regular Sera and occasional Stemetil suppositories.”
64. It was Mr Bourke’s evidence that he began employment with the real estate industry in 1983. He said that it was in 1994 that the symptoms that he had been experiencing previously, began to affect his capacity to undertake the normal duties of a real estate agent. Even if the Tribunal accepts Mr Bourke’s evidence that he experienced symptoms in 1994, this is some 20 years from his discharge from the RAAF. As Dr Earles agreed under cross-examination if Mr Bourke had not suffered any symptoms of vertigo, nausea or imbalance from December 1973 until late 1994 this would reduced the likelihood of a causal connection between his pilot training and his current condition.
65. Despite Dr Roddick’s statement in his letter to Mr Hart concerning Mr Bourke’s ability to drive a car safely, the evidence was that Mr Bourke had in fact renewed his driver’s licence which again demonstrates an inconsistency between his claimed symptoms and the responsible behaviour of a road user. Had Mr Bourke disclosed his symptoms when applying for the renewal of his licence, it would most likely not have been granted. When asked whether Mr Bourke would qualify for a driver’s licence, Dr Earles Earles responded “No”. He seemed surprised to learn that Mr Bourke had in fact renewed his driver’s licence so recently.
Determination
66. There was no evidence, and indeed the evidence was to the contrary, that Mr Bourke had Meniere’s disease when he retired from the RAAF. Nor is there any evidence upon which the Tribunal could conclude that he was then suffering from tinnitus. The medical report consequent upon his discharge showed no abnormalities with his hearing and there is no other medical reference in medical notes to Mr Bourke complaining of problems with his ears until he complained to Dr Roddick in March 1995.
67. In Dr Saha’s opinion the symptoms outlined by Mr Bourke and his medical notes during service are adequately explained by a diagnosis of respiratory tract infection and eustachian tube dysfunction. While Dr Saha went on to say that it was associated with barotrauma, this was not his oral evidence to the Tribunal. Given the information regarding Mr Bourke’s flying activities, it was his opinion that Mr Bourke had not sustained the type of physical trauma referred to in Dr Paparella’s report which could be a contributing factor to the development of Meniere’s Disease.
68. Dr Earles conclusion of a possible link between Mr Bourke’s Meniere’s Disease and flying is dependent upon a finding that he suffered a physical trauma, that is, an otitis barotrauma in the course of his flight training. He relied on Mr Bourke’s history as to the pressure changes encountered with his flying activities and the metallic object referred to in the medical notes.
69. The Tribunal however accepts Mr Moore’s evidence that Mr Bourke would not have encountered any significant pressure changes and certainly was not involved in any high G load forces in the course of his flight training. The Tribunal also accepts the explanation of Dr Saha that general practitioners would not always be familiar with the workings of the inner ear and could have been mistaken as to the reported “metallic object”. It is noted that Mr Stubbings an ENT specialist reported on the same day: “I cannot see any foreign body in the right ear.”
70. There is otherwise no evidence before the Tribunal upon which it could conclude that Mr Bourke suffered a physical trauma, which on the basis of Dr Paparella’s report, could be the only factor linking his service with the onset of his Meniere’s Disease.
71. Even if the Tribunal accepted that the applicant had suffered a barotrauma, the Tribunal is not satisfied that Mr Bourke continued to suffer ongoing symptoms in the interim period leading up to the diagnosis of Meniere’s Disease some 20 years later. In the absence of ongoing symptoms, the medical evidence is that any connection between Mr Bourke’s flying and his Meniere’s Disease is much too tenuous.
72. The Tribunal having concluded that there is no connection between Mr Bourke’s flight training with the RAAF in 1973 and the later onset of his Meniere’s Disease, he has failed to satisfy the legislative definition of “disease” as defined in the Act and establish the necessary connection between his disease and his employment with the Commonwealth.
73. The decision of the Tribunal is that the applicant’s appeal be dismissed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 12, 13, 14 August 2003
Date of Decision 20 November 2003
Counsel for the Applicant Mr Ross Hart
Solicitor for the Applicant Rae and Partners
Counsel for the Respondent Mr Brian Morgan
Solicitor for the Respondent Australian Government Solicitor
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