Brown and Military Rehabilitation and Compensation Commission (Compensation)

Brown and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 864 (14 April 2021)
Division:VETERANS' APPEALS DIVISION

File Number(s): 2020/1042
Re:Rainer Jurgen Brown
APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:14 April 2021
Place:Canberra

The Reviewable Decision dated 5 December 2019 is affirmed.
................................[sgd]........................................
Senior Member Linda Kirk
Catchwords
COMPENSATION – claim for compensation of an injury – Parkinson’s disease diagnosed after Applicant served in Australian Defence Force – whether liability exists under section 14 of the Safety, Rehabilitation and Compensation Act in respect of Parkinson’s disease diagnosed on 29 July 2013 – whether Applicant’s claimed condition was contributed to ‘to a significant degree’ by the Applicant’s service – whether smoking is a causal factor for the development of Parkinson’s disease – no evidence that cessation of smoking contributes to Parkinson’s disease – decision under review affirmed.
Legislation
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Comcare v Power (2015) 238 FCR 187
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429
Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127
Secondary Materials
REASONS FOR DECISION
Senior Member Linda Kirk
14 April 2021

Rainer Jurgen Brown (‘the Applicant) was born in 1946. He served in the Australian Defence Force on a full-time basis from 5 April 1963 until 5 April 1993 and in the Reserves from 6 April 1993 until 3 September 1997 having attained the ranking of Warrant Officer Class 1.[1]
[1] Exhibit R2, T3, folio 9; T4, folio 12-14.
On 17 September 2018 the Applicant made a claim for compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (the Act) in respect of Parkinson’s disease (‘claimed condition’) which was diagnosed on 29 July 2013 (‘compensation claim’).[2]
[2] Exhibit R2, T13, folio 27-38.
On 14 January 2019 a delegate of the Military Rehabilitation and Compensation Commission (‘the Respondent’) made a determination denying liability in respect of Parkinson’s disease (‘delegate’s decision’). On the basis of the medical evidence, the delegate accepted that the claimed condition had been diagnosed as Parkinson’s disease with a date of onset of 29 July 2013, but was not satisfied that the Applicant’s military service had contributed to the claimed condition to a significant degree.[3]
[3] Exhibit R2, T20, folio 65-69.
On 19 June 2019 the Applicant requested a reconsideration of the delegate’s decision dated 14 January 2019.[4]
[4] Exhibit R2, T23, folio 80.
On 2 October 2019, in an email to the Applicant’s representative, the review officer indicated her intention, based on the material then before her, to affirm the determination, but gave the Applicant an opportunity to provide additional medical evidence in support of his request for a reconsideration.[5]
[5] Exhibit R2, T24, folio 81-82.
On 26 October 2019 the Applicant’s representative advised that the Applicant had no further medical evidence to support his request for a reconsideration. He said that the Applicant relied on ‘medical and scientific evidence provided by the RMA which proves the connection between long term smoking and Parkinson’s disease’ but did not provide that evidence.[6]
[6] Exhibit R2, T25, folio 83-85.
In a decision dated 5 December 2019 the Respondent affirmed the delegate’s decision (‘Reviewable Decision’).[7]
[7] Exhibit R2, T28, folio 89-93.
By an application for review dated 25 February 2020 the Applicant applied to the Tribunal for review of the Reviewable Decision.[8] On 11 March 2020 the Tribunal extended the time for the making of an application for review of the Reviewable Decision to 1 March 2020.[9]
[8] Exhibit R2, T1, folio 1-7.
[9] Exhibit R2, T2, folio 8.
The review application was heard by the Tribunal at a hearing in Canberra on 14 December 2020. The Applicant was represented by his advocate, Mr James Wain. Associate Professor Arman Sabet, Consultant Neurologist, gave oral evidence by phone at the hearing.
The following documents were before the Tribunal:
·Statement of the Applicant dated 21 January 2020;[10]
·Further statement of the Applicant dated 15 May 2020;[11]
·Department of Veteran’s Affairs advice on ‘Significant Contribution’ dated 25 November 2020;[12]
·Statement of Principles concerning Parkinson’s Disease and Secondary Parkinsonism dated 22 April 2016;[13]
·Undated document titled ‘The Proper Functions of Delegates of the Repatriation Commission and the Department of Veteran's Affairs';[14]
·Tender bundle of the Respondent;[15] and
·Section 37 T-Documents.[16]
[10] Exhibit A1.
[11] Exhibit A2.
[12] Exhibit A3.
[13] Exhibit A4.
[14] Exhibit A5.
[15] Exhibit R1.
[16] Exhibit R2.
LEGISLATION
Section 14 of the Act provides for compensation for injuries:
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.
Section 5A of the Act provides a definition of an ‘injury’
(1) In this Act
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is defined in section 5B as follows:
1)In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(3) In this Act:
significant degree means a degree that is substantially more than material.
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal are:
(a)Whether liability exists under s 14 of the Act in respect of the claimed condition which was diagnosed on 29 July 2013.
(b)Whether or not the Applicant’s claimed condition was contributed to, ‘to a significant degree’ by the Applicant’s service.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant first presented to his GP for treatment for the claimed condition on 13 July 2013 and was referred to Dr Colin Andrews, Consultant Neurologist.[17] Dr Andrews saw the Applicant on 29 July 2013 and diagnosed him with Parkinson’s disease.[18] In a letter dated 6 August 2013, Dr Andrews advised the Applicant’s GP that the Applicant had ‘just started on Sinemet for his Parkinson’s disease’.[19]
[17] Exhibit R2, T14, folio 40.
[18] Exhibit R2, T6; T10, folio 23.
[19] Exhibit R2, T6, folio 19.
In a statement dated 12 September 2018 submitted with his compensation claim, the Applicant wrote that he believed his diagnosis of Parkinson’s Disease had been caused through his military service with the Australian Army and a direct result of his smoking for 37 years. He stated:
I joined the Army at age 17 in 1963 and began smoking until I quit in 2000. I found that smoking was almost mandatory in the Army and I believe that peer pressure, the need to feel included and the general comradery obtained through smoking was essential to Army life. It was common practice to smoke between 25-30 cigarettes per day, even more when out for a drink and general social activities.[20]
[20] Exhibit R2, T11, folio 24.
The Applicant also included a ‘Smoking Questionnaire’ dated 12 September 2018 in which the Applicant stated that he first started smoking on a regular basis on 1 June 1963 and he stopped smoking in June 2000.[21]
[21] Exhibit R2, T12, folio 25-26.
In a statement dated 21 January 2020 provided in support of his review application, the Applicant outlined his concerns with the delegate’s decision:
I was also not satisfied that the DVA delegate had totally ignored the research, medical and scientific advice provided by the Repatriation Medical Authority (RMA) that proves a clear link between Parkinson's Disease and smoking (The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that Parkinson's disease can be related to relevant service rendered by veterans in a person with a history of a regular smoking habit as specified, having not smoked for at least the five years before the clinical onset of Parkinson's disease), and
[I] was also not satisfied that there is a basis for the statement by the DVA delegate that my condition (Parkinson's) must have been significantly (>21%) caused by servicerelated factors without explanation.[22]
[22] Exhibit A1.
Medical Evidence
In an ‘Injury or Disease Details Sheet’ dated 14 September 2018, Dr Anil Goel provided a medical diagnosis of the Applicant of ‘Parkinsonism’, based on a diagnosis by a consultant neurologist in 2013. Dr Goel said that the Applicant had first been seen in the Kambah Medical Centre for the claimed condition on 13 July 2013 when he was referred to the neurologist.[23]
[23] Exhibit R2, T14, folio 39-40.
On 10 October 2018, Dr Andrews answered ‘no’ to a question which asked whether, in his professional opinion, he considered that there had been ‘a significant (over 21%) contribution from [the applicant’s] smoking towards the development of his Parkinson’s disease’.[24]
[24] Exhibit R2, T17, folio 49.
On 28 November 2019 Dr Rosemary Meyerowitz, a Departmental Medical Adviser, referred to the information from Dr Andrews, listed the causes of Parkinson’s disease, and advised that:
·The diagnosis is Parkinson’s Disease
·The date of onset is July 2013, when confirmed by the specialist
·DRCA service is unlikely to have contributed either materially or significantly to the Applicant’s diagnosed condition of Parkinson’s disease.[25]
Associate Professor Arman Sabet
[25] Exhibit R2, T27, folio 87-88.
On 8 September 2020 the Respondent wrote to Associate Professor Arman Sabet Consultant Neurologist, requesting a File Review of the Applicant. No examination of the Applicant was conducted by Associate Professor Sabet. His report dated 5 October 2020 is based on his review of the Applicant’s medical records that were provided to him and independent research and review of scientific papers regarding the link between Parkinson’s disease and smoking.
In his report, Associate Professor Sabet wrote that ‘smoking is not a causal factor for the development of Parkinson’s disease’ and ‘there is no scientific data that shows increased risk of developing Parkinson’s disease in those who smoke.’[26] Rather, ‘there are various reports indicating that the rate of developing Parkinson’s disease is significantly lower in those who smoke.’[27] He reported that based on the findings of a scientific research paper to which he referred, ‘overall, risk of developing Parkinson’s disease in those who smoke is about 50% of those who have never smoked.’[28] He concluded:
there is likely an inverse association between Parkinson’s disease and smoking. Many studies have found that the rate of developing Parkinson’s disease is lower in those who have a history of smoking. The attached article entitled “Exploring causality of the association between smoking and Parkinson’s disease” reports that former smokers had a 20% decreased risk and current smokers a halved risk of developing Parkinson’s disease compared with never smokers.[29]
SUBMISSIONS
[26] Exhibit R1, folio 38.
[27] Exhibit R1, folio 39.
[28] Exhibit R1, folio 39.
[29] Exhibit R1, folio 37.
Applicant
The Australian Government Repatriation Medical Authority (RMA) Statement of Principles concerning Parkinson’s Disease and Secondary Parkinsonism (Reasonable Hypothesis) (No 55 of 2016) provides:[30]
9. Factors that must exist
(1) At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Parkinson's disease or secondary parkinsonism or death from Parkinson's disease or secondary parkinsonism with the circumstances of a person’s relevant service:
…
(h) in a person with a history of a regular smoking habit as specified, having not smoked for at least the five years before the clinical onset of Parkinson's disease;
[30] Exhibit A4, folio 5.
‘Regular smoking habit as specified’ is defined in Schedule 1 as follows:[31]
regular smoking habit as specified means having smoked at least three pack-years of cigarettes or the equivalent thereof in other tobacco products.
[31] Exhibit A4, folio 14.
The Statement of Principles concerning Parkinson's Disease and Secondary Parkinsonism (Balance of Probabilities) (No. 56 of 2016) contains the same provision in Clause 9(1).[32]
[32] Exhibit A4, folio 5.
The Applicant contends:[33]
·he ‘met all the factors in … both the RH and the BOP SOP for PD.’
·there is no mention in s 5B(3) of the Act of a requirement that a ‘significant degree means a degree that is substantially more than material’ is to be >21%.
·The question to Dr Andrews (referred to in paragraph [20] above) was incorrect and misleading.
·37 pack years of smoking is more than 12 times the required amount of 3 pack years, so it is ‘substantially more than material’.
·he stopped smoking in 2000 and was diagnosed with Parkinson’s Disease in 2013, so he had ceased smoking for at least the five years before the clinical onset.
·the guidance in CM5030 DVA smoking guideline, applies to the Applicant given his enlistment was in 1963.
·the decisions in Military Rehabilitation Compensation Commission v Wall[34] and Cooper and Military Rehabilitation and Compensation Commission[35] have relevant similarities to the Applicant’s circumstances.
[33] Applicant’s Statement of Facts, Issues and Contentions, at 3.
[34] [2005] FCAFC 127.
[35] [2017] AATA 429.
The Applicant contends that a ‘reasonable hypothesis’ is that he meets factor 9(1) in the Statement of Principles (‘SOP’) for Parkinson’s Disease. The SOP was determined by five members eminent in their fields of medical science, including one epidemiologist.[36] DVA policy recognises that while SOPs have no legal standing under the ‘SRCA, delegates are advised that they can provide useful information about the aetiology (causation) of various medical conditions.’[37]
[36] Exhibit A5, at 3.
[37] Exhibit A5, at 3.
Respondent
The Respondent accepts that the Applicant suffers from the claimed condition as diagnosed by Dr Andrews with a date of injury of 29 July 2013. It contends that there is no evidence which could satisfy the Tribunal on the balance of probabilities that the Applicant’s service contributed to the development of his Parkinson’s disease ‘to a significant degree’ or to any degree at all.[38]
[38] Respondent’s Statement of Facts, Issues and Contentions at SFIC at [20].
The Respondent relies on the findings of the Applicant’s neurologist, Dr Andrews, that there was not a significant contribution from the Applicant’s smoking towards the development of his condition.[39] These findings are supported by the opinion of Associate Professor Sabet that ‘smoking is not a causal factor for the development of Parkinson’s disease.’[40] The investigations into whether there is an association between cigarette smoking and Parkinson’s disease which are summarised in the RMA briefing paper titled ‘Investigation into Parkinson’s Disease and Parkinsonism’ reach the same conclusion.[41]
[39] Respondent’s Statement of Facts, Issues and Contentions at [21.2].
[40] Respondent’s Statement of Facts, Issues and Contentions at [21.3].
[41] Respondent’s Statement of Facts, Issues and Contentions at [21.4]
Statements of Principles are instruments made by the Repatriation Medical Authority (RMA) under the Veterans’ Entitlements Act 1986 (Cth) (VEA) for the purposes of that Act and the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA) (see s 196B of the VEA). They do not have any status and do not apply to claims made under the Act.[42]
[42] Respondent’s Statement of Facts, Issues and Contentions at [23].
Chapter 13 of the Australian Government Department of Veteran’s Affairs Liability Handbook is titled ‘Status of RMA SOPs for SRCA Purposes’ and provides as follows:[43]
[43] Exhibit R1, folio 97-98.
13.1.3 Limitations of SOPs for SRCA purposes
However, SRCA cases can seldom be accepted on the strength of an RMA SOP alone. To accept liability for a particular medical condition requires more than confirmation that the disease may be caused by the factors cited in the relevant SOP. A medical examination and opinion confirming or discounting employment factors as 'probably' causing the particular condition will generally be required. All of the available evidence must be considered. RMA SOPs can be an effective tool for quickly eliminating fanciful contentions or for elucidating other likely causes of the particular condition claimed. They can also provide a useful check on the credibility or otherwise of a specialist report. Where there is a clear conflict between the two, the doctor should be invited to comment in the light of the relevant SOP. The decision should reflect the delegate's judgement on the response provided.
The evidence of Associate Professor Sabet is consistent with the information before the RMA, namely that there is not a causal relationship between smoking (or the cessation of smoking) and the development of Parkinson’s Disease.[44]
CONSIDERATION AND REASONS
[44] Respondent’s Statement of Facts, Issues and Contentions at [21.4]; [24.3.2].
Does the Applicant suffer from Parkinson’s disease?
It is not in dispute that the Applicant suffers from Parkinson’s disease and that he was diagnosed with this condition by Dr Andrews in July 2013.
What degree of contribution from service is required?
As the Applicant’s condition was diagnosed in July 2013, for liability to exist under the Act the requisite degree of contribution from service is ‘to a significant degree’ (s 5B(1) of the Act). The requirement for that degree of contribution was inserted in the Act with effect from 13 April 2007, replacing the previous requirement that the contribution be ‘to a material degree’.
In Comcare v Power (2015) 238 FCR 187, Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’ at [78], and further at [82] that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.
Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in s 5B of the SRC Act which requires the employment to have contributed ‘to a significant degree’ was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93]:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.

The Respondent contends and the Tribunal agrees that there is no statutory warrant for describing the threshold for a significant contribution by reference to a particular percentage contribution. The Tribunal has however recognised that in some circumstances a specific percentage contribution will not meet the required threshold. In Re Pellow and Military Rehabilitation and Compensation Commission [2017] AATA 1011 at [39] Deputy President Humphries observed:
Previously-decided cases in which the significant contribution threshold in s 5B has been in issue are not helpful in calibrating that statutory threshold against particular percentage contributions found in the case of individual applicants. Nonetheless, it seems clear that a six percent contribution from employment to an ailment cannot be regarded as a contribution to a significant degree. Indeed, even if the hypothesis put to the Tribunal by Mr Pellow were accepted, and Dr Gorman’s consequent estimate of a 12 percent contribution was adopted by the Tribunal, it is doubtful that even this contribution would reach the required threshold.
The Tribunal must assess the evidence before it, particularly the expert medical evidence, to determine whether the service contribution satisfies the statutory test, rather than assessing whether the contribution meets a specified percentage threshold.
Did the applicant’s service contribute ‘to a significant degree’?
The test the Applicant contends should be applied to his circumstances is derived from the SOPs which are instruments made by the Repatriation Medical Authority (RMA) under the VEA for the purposes of that Act and the MRCA, specifically the factors in clause 9(1) of the Statements of Principles concerning Parkinson’s Disease and Secondary Parkinsonism referred to in paragraphs 24 and 26 above.
As the Respondent claims, these list the matters which the RMA considers could, if related to a person’s service, connect the circumstances of a person’s service with the particular condition to which the SOP relates. They do not apply to claims made under the Act. They are not recognised by the Act and have no status in relation to claims under the Act. The Tribunal is required to make a decision on the balance of probabilities based on the evidence before it.[45]
[45] Respondent’s Statement of Facts, Issues and Contentions at [23].
The Applicant’s contention that ‘37 pack years of smoking is more than 12 times the required amount of 3 pack years, so it is ‘substantially more than material’’ is not the relevant statutory test that the Tribunal must consider. The Act requires that the Applicant’s military service contributed to his Parkinson’s disease ‘to a significant degree’.
On the basis of the evidence before it, and for the reasons that follow, the Tribunal cannot be satisfied on the balance of probabilities that the Applicant’s service contributed to the development of his Parkinson’s disease ‘to a significant degree’.
The evidence before the Tribunal from three medical specialists, Dr Andrews, Dr Dr Meyerowitz and Associate Professor Sabet is that the Applicant’s Parkinson’s Disease was not contributed to, ‘to a significant degree’ by his 37 years of smoking.
The Tribunal is not persuaded that Dr Andrews’ opinion was ‘incorrect and misleading’. There is no evidence before the Tribunal to support a finding that the Applicant’s smoking made a contribution to his Parkinson’s disease ‘to a significant degree’, whether that is understood as a contribution in excess of 21%, or some lesser percentage contribution.
The evidence before the Tribunal, particularly the medical evidence provided by the Associate Professor Sabet and contained in scientific research papers, supports a finding that there is no relevant causal link between smoking and the development of Parkinson’s Disease. In so far as there is a connection between the two, the evidence indicates that smoking has a protective effect on the development of the disease.
Investigations as to the association between cigarette smoking and Parkinson’s disease are summarised in the RMA paper titled ‘Investigation into Parkinson’s disease and Parkinsonism’ (‘RMA briefing paper’).[46] It concludes that the ‘epidemiological evidence showing an   inverse association between cigarette smoking and PD is very strong and consistent’[47] and refers to ‘the consistency of the epidemiologic observations and      the biologic plausibility of a protective effect of cigarette smoking on the development of PD’.[48]   While acknowledging that ‘a cause-and-effect relationship is    not universally accepted’[49] after a review of the literature the ‘Summary and Conclusions’ section states:
A large body of evidence shows that smoking decreases the risk of PD by about 50%. Many case-control and cohort studies confirm that cigarette smoking protects against PD. Virtually all studies report a point estimate of risk of PD in individuals who smoked cigarettes below unity. Overall relative risk for smokers to   develop PD, compared to non-smokers, is ~ 0.6. Most studies show a dosage effect, whereby people with more pack-years of smoking have a lower risk of PD than those with fewer pack-years.[50]
…
… The finding of a relationship between PD risk and time-since cessation and additional analyses of smoking behavior [sic] in the aggregate are supportive of a   true causal protective effect of smoking that diminishes after quitting smoking.[51]
…
It is concluded that there is convincing evidence of a causal association between smoking (protective effect) and the onset of PD (Grade 1).[52]
[46] Exhibit R1, folio 8-34: Repatriation Medical Authority Investigation into Parkinson's disease and Parkinsonism, April 2016.
[47] Exhibit R1, folio 11.
[48] Exhibit R1, folio 11.
[49] Exhibit R1, folio 11.
[50] Exhibit R1, folio 20.
[51] Exhibit R1, folio 21.
[52] Exhibit R1, folio 21.
On the basis of this evidence, the Tribunal is not satisfied on the balance of probabilities that the Applicant’s service contributed ‘to a significant degree’ to the development of his Parkinson’s disease.
The Tribunal has considered the Applicant’s claim that ‘he stopped smoking in 2000 and was diagnosed with Parkinson’s Disease in 2013, so he had ceased smoking for at least the five years before the clinical onset.’ The basis of this contention is that it was his ceasing to smoke in 2000 which contributed to the development of his Parkinson’s disease.
There is no evidence before the Tribunal to support a finding that ceasing to smoke contributes ‘to a significant degree’ to the development of Parkinson’s disease. In his report, Associate Professor Sabet opined that ‘cessation of smoking by itself is not known to be a cause for development of Parkinson’s disease’.[53] He stated that in his opinion there was not ‘any scientific data to suggest that [the Applicant’s] cessation of smoking in 2000 contributed to a significant degree to the development of his Parkinson’s disease in 2013.’[54]
[53] Exhibit R1, folio 38.
[54] Exhibit R1, folio 39.
The medical evidence before the Tribunal is that compared to someone who has never smoked, a former smoker who has ceased to smoke has a lower risk of developing Parkinson’s disease. In his report Associate Professor Sabet opined that while it ‘is thought that once an individual stops smoking, the potential protective effects against developing Parkinson’s disease is gradually diminished over time’[55] there was evidence that ‘former smokers had 20% of risk of developing Parkinson’s disease compared to those who never smoked.’[56]
[55] Exhibit R1, folio 38.
[56] Exhibit R1, folio 39.
The investigations reviewed in the RMA briefing paper are consistent with Associate Professor Sabet’s evidence. Relevant to the diminishing of the protective effect after     ceasing smoking, it refers to:
·‘five large cohort studies’ which found that ‘RRs for PD in current smokers versus never smokers ranged between 0.27 and 0.56; and in past smokers versus never smokers, between 0.50 and 0.78.’[57]
·a ‘systematic review and meta-analysis of risk factors of PD by Noyce et al (2012)’ which found that the ‘overall risk of PD in current smokers vs never smokers was 0.44, 95CI 0.39-0.50 (n = 33 studies). For smoking, the effect was strongest in current smokers and weakest in past smokers (56% for current smokers and 22% for past smokers), but the association remains significant in all. The risk   for PD in ever vs never smokers was 0.64, 95CI 0.60-0.69, and the   risk in past smokers was 0.78, 95CI 0.71-0.85.’[58]
·a ‘Dutch case-control study (van der Mark et al 2014)’ which ‘found an inverse association of cigarette smoking with PD risk, in which total smoking and time-since-smoking cessation appear to drive PD   risk.’[59]
[57] Exhibit R1, folio 13.
[58] Exhibit R1, folio 20.
[59] Exhibit R1, folio 21.
The evidence before the Tribunal includes expert opinion that the cessation of smoking may be an early sign of the development by an individual of Parkinson’s disease. Associate Professor Sabet stated in his report, and told the Tribunal during his oral evidence at the hearing, that ‘some researchers argue that the ability to quit smoking is an early pre-clinical sign of developing Parkinson’s disease.’[60] In his oral evidence, Associate Professor Sabet told the Tribunal that it is the same mechanism in the brain that allows a person to quit smoking and which leads them on the pathway to the development of Parkinson’s disease. Associate Professor Sabet included with his report an article titled ‘Quitting smoking: An early non-motor feature of Parkinson’s disease’ by Marcello Moccia et al in which the authors conclude that their research:
showed that smoking cessation is a frequent behavior in preclinical PD and may represent an early non-motor condition occurring in PD and preceding PD diagnosis up to 10 years.[61]
[60] Exhibit R1, folio 38.
[61] Exhibit R1, folio 85-89: Marcella Moccia et al ‘Quitting smoking: An early non-motor feature of Parkinson's disease?’ Parkinsonism and Related Disorders 21, 2015, 219.
Further support for this hypothesis is found in another article by Beate Ritz et al, ‘Parkinson disease and smoking revisited: Ease of quitting is an early sign of the disease’. The authors conclude:
Our analyses support the hypothesis that ease of smoking cessation is an early manifestation of premotor PD related to the loss of nicotinic rewards.[62]
[62] Exhibit R1, folio 95: Beate Ritz et al. ‘Parkinson disease and smoking revisited: ease of quitting is an early sign of the disease’ Neurology 83 (2014) 1396-1402.
On the basis of the medical evidence before it, and for the reasons stated, the Tribunal is not satisfied that the Applicant’s military service contributed ‘to a significant degree’ to the development of his Parkinson’s disease.
DECISION
The Reviewable Decision is affirmed.

1. I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

................................[sgd]........................................
Associate
Dated: 14 April 2021

Date(s) of hearing: 14 December 2020

Date final submissions received: 25 November 2020

Applicant’s Advocate: Veterans’ Support Centre Belconnen ACT

Solicitors for Respondent: Australian Government Solicitor

[2021] AATA 864

14 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	14 December 2020
Date final submissions received:	25 November 2020
Applicant’s Advocate:	Veterans’ Support Centre Belconnen ACT
Solicitors for Respondent:	Australian Government Solicitor