Carroll and Comcare (Compensation)

[2015] AATA 805

Carroll and Comcare (Compensation) [2015] AATA 805 (27 August 2015)

Division	GENERAL DIVISION
File Number	2014/4380
Re	George Carroll
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	27 August 2014
Date of written reasons	16 October 2015
Place	Sydney

The Tribunal affirms the decision under review.

.........................[sgd]..............................................

Deputy President J W Constance

CATCHWORDS

COMPENSATION – liability for compensation – claimed conditions – kidney stones, bowel cancer, prostate cancer and post traumatic stress disorder – applicant participated in nuclear test programs – whether definitions of ailment and disease satisfied – whether Commonwealth employment made significant contribution to the claimed conditions – decision affirmed 

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 5A, 5B, 7 and 14

CASES

Bird and The Commonwealth of Australia (1988) 165 CLR 1

WRITTEN REASONS FOR DECISION PREVIOUSLY GIVEN ORALLY

Deputy President J W Constance

16 October 2015

INTRODUCTION

1. Between 1954 and 1958 Mr Carroll worked as a driver at Maralinga, South Australia, during the atomic tests. He was employed by a private company. From 1958 to 1964 he worked at Woomera, South Australia, as a driver employed by the Department of Supply.

2. In 2013 Mr Carroll lodged a claim for workers’ compensation with Comcare[1].  He sought compensation for four medical conditions which he claimed he suffered as a result of exposure to ionising radiation during his employment by the Commonwealth.

   [1] Exhibit R1 p.5.

3. On 3 July 2014 Comcare affirmed an earlier decision refusing Mr Carroll’s claim. Mr Carroll then sought a review of Comcare’s decision by this Tribunal.

4. I heard Mr Carroll’s application on 27 August 2015. At the conclusion of the hearing I affirmed Comcare’s decision as I was satisfied that it was correct. I gave my reasons for this decision orally at the time.

5. My written reasons for the decision follow.

   EVIDENCE AND FINDINGS OF FACT

   Evidence of Mr Carroll

6. Unless stated otherwise, the following findings of fact are based on the evidence of Mr Carroll. I am satisfied that Mr Carroll was an honest witness who gave his evidence to the best of his recollection at all times.

7. During the time that Mr Carroll worked as a driver employed by the Department of Supply he was responsible for driving buses carrying Army personnel within the Woomera area, driving film crews to and from camera sites spread across the testing areas within the Woomera Rocket Range, Koolymilka and Woomera town area and driving a semi-trailer carrying fuel for the Black Knight rocket.

8. In his statement made 14 November 2014[2] Mr Carroll stated:

   I was required to transport and then back the fuel into specific sites to enable refuelling. Prior to moving this equipment I was given specific details of how to handle the substance due to its dangerous nature. On arrival at the launch site, scientist wearing full protective suits would arrive to refill the rocket, however, I was not issued or offered any protective clothing. As a result of the dummy run being completed I was exposed to the fumes of the rocket while waiting in the bunker.

   ……

   As there was no air-conditioning, windows were open and no protection from the dust was available. The dust was blown into the vehicles. The road from Woomera to Port Augusta was not sealed at the time and as a result the long haul travel between major centres could result in dust bowls forming which would envelop the vehicles and result in “blackout conditions” through which nothing could be seen. In addition, these dust bowls ensure a thick layer of dust covered all surfaces and everyone within the vehicles.

   [2] Exhibit A1.

9. When he gave evidence, Mr Carroll said that when he was working at Woomera, he was required to sign a document preventing him from discussing events which happened during his employment. Until about six years ago he believed that this document prevented his discussing his concerns with anyone.  He said that although he was not concerned about his safety when working at Woomera, he began to worry about his health approximately two years ago when he learned that he could put in a claim in respect of the various medical conditions from which he then suffered.

10. Mr Carroll described himself as being a “worrier” for almost all his life, going back to when he was evacuated from Darwin during the World War II bombing raids as a young child. What worries him most now is that information he has been gathering has caused him to believe that the authorities knew that everything was contaminated at Woomera and that he was not informed of the associated risks. However, his anxiety does not stop him undertaking any activity and he is able to look after himself.

11. I accept Mr Carroll’s evidence.

12. It is not in dispute that Mr Carroll has, in the past, suffered from a kidney stone, bowel cancer and prostate cancer. Mr Carroll also claims that he suffers from post-traumatic stress disorder arising from his employment. This is disputed by Comcare.

    Report of Dr Reid, General Practitioner

13. Dr Reid provided a report dated 3 July 2013. [3]

    [3] Exhibit R1 p.34.

14. In her report Dr Reid confirmed that Mr Carroll had suffered from a kidney stone and bowel and prostate cancers.  She said that he had presented in October 2011 “concerned re PTSD”.  He was referred to Dr Altman from whom she had no documentation.

15. Dr Reid stated in the report that she was “unable to say whether there is a relationship between any of the claimed conditions and Mr Carroll’s Commonwealth employment.”

    Report of Dr Altman, Consultant Psychiatrist

16. Mr Carroll last consulted Dr Altman in early 2012.  He was referred by Dr Reid.

17. On 15 July 2013 Dr Altman reported that he had been unable to determine a stressor severe enough to cause a post-traumatic stress disorder and that he had found it difficult to obtain a clear history regarding stressors. As his psychiatric assessment of Mr Carroll was never fully completed, in his opinion it was best that he be referred to another psychiatrist, in fairness to Mr Carroll.

    The evidence of Dr Newnham, Psychiatrist

18. In early 2014, Mr Carroll was referred to Dr Newnham by his general practitioner, Dr Reid. Dr Newnham provided a report dated 6 March 2014[4] and gave evidence.

    [4] Exhibit R1 p.123.

19. Dr Newnham reported that for the past two years Mr Carroll had been suffering with: “significant problems with mood, anxiety and a number of re-experiencing phenomena. …. Since the knowledge that he had been exposed to the ionising radiation, George has been increasingly preoccupied with his time in service at Maralinga and Woomera and has been experiencing a number of flashbacks and traumatic dreams about incidents that occurred there, in particular, around times where he now knows he was placed directly in harm’s way. He has been sleeping very poorly, suffering with nocturnal panic attacks, where he will wake from sleep in the middle of a dream about his service time and be unable to return to sleep. His appetite has been poor, he is persistently anxious throughout the day, he lacks confidence and he has had frequent suicidal thoughts.”

20. At the time she wrote her report, Dr Newnham was of the opinion that Mr Carroll was suffering from a post traumatic stress disorder syndrome.  According to her report, she made this diagnosis on the basis that he had directly experienced traumatic events on an ongoing basis and as a result has had ongoing intrusive symptoms for the previous two years.

21. When she gave evidence Dr Newnham identified the traumatic event experienced by Mr Carroll as exposure to ionising radiation. She said that she made the diagnosis based on the assumption that Mr Carroll was aware of his exposure at the time he was working in the area and had worried about it for the past 50 years.

22. Dr Newnham was consulted by Mr Carroll on five occasions during 2014. During those consultations he expressed his concern as to his exposure to ionising radiation, but had not informed Dr Newnham of any concern arising from his possible exposure to jet fuel while working at Woomera.

    Report of Dr Percy, Colorectal and General Surgeon

23. In a report dated 10 July 2013 Dr Percy confirmed that Mr Carroll suffered bowel cancer and that he had undergone surgery in December 1990.  Further he reported:

    The known causation factors for carcinoma of the colon and rectum include a family history of this condition and in fact Mr Carroll’s father was thought to have had carcinoma of the rectum.

    ……

    Exposure to ionizing radiation is another risk factor for the development of colorectal cancers and there is known to be a higher incidence of this condition in survivors of atomic bomb explosions and also workers in the nuclear industry. Radiation therapy to treat various tumours in humans is known to increase the rate of colorectal cancer in those individuals. The development of these cancers can be delayed for at least 50 years after original exposure.

    Colorectal cancer is a common malignancy in our society and it is therefore impossible to know whether exposure to radiation played a part in Mr Carroll’s development of this condition.[5]

    [5] Exhibit R1 p.35.

    Report of Dr Lazzaro, Urologist

24. In his report dated 23 July 2013[6], Dr Lazzaro confirmed that Mr Carroll had been his patient since 2007 and that he had been diagnosed and treated for prostate cancer.

    [6] Exhibit R1 p.37.

25. Dr Lazzaro went on to say:

    I understand that Mr Carroll worked as a Driver at Maralinga and Woomera for a period of 10 years between 1954 and 1964. He may have been exposed to radiation. Whilst both of his cancers are cancers that commonly occur in our Community, particularly in a man of his age group, and are mostly idiopathic, it is certainly possible that his radiation exposure may have increased his risk. I am however, unable to quantify this increased risk.

    RELEVANT LEGISLATION

26. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

    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.

27. Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:

    injury means:

    (a) a disease suffered by an employee …

28. Disease is defined in subsection 5B(1) to mean:

    (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.

29. Subsection  5B(3) provides that:

    significant degree means a degree that is substantially more than material.

30. In subsection 4(1) ailment is defined:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

31. During the hearing Counsel for Comcare raised the possibility that subsection 7(1) of the Act may apply to benefit Mr Carroll.  That subsection reads:

    Where:

    (a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

    (b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and

    (c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licence Corporation in employment of that kind;

    the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

    ISSUES FOR DETERMINATION

32. The following issues arise for determination:

    (1) What are the relevant medical conditions from which Mr Carroll suffers, or has suffered?

    (2)  Is any one or more of those conditions an injury within the meaning of the Act?

    CONSIDERATION

    Issue 1:  What are the relevant medical conditions from which Mr Carroll suffers, or has suffered?

33. On the basis of the medical evidence and the evidence of Mr Carroll, I am satisfied that he has suffered from a kidney stone, bowel cancer and prostate cancer. Comcare does not dispute this.  I am satisfied that each of these conditions is an ailment as defined in subsection 4(1) of the Act.

34. Based on the evidence of Dr Newnham, I am not satisfied that Mr Carroll suffers from post-traumatic stress disorder. Although Dr Newnham originally diagnosed Mr Carroll as suffering from this condition, she did so on the basis of her understanding that he had experienced a traumatic event, namely exposure to ionizing radiation, and that he had continued to worry about this exposure for many years prior to the development of symptoms in early 2012.

35. However, the basis for Dr Newnham’s professional opinion was not established by the evidence before me. Mr Carroll said that he was not concerned about possible exposure when he was working at Maralinga or Woomera and that it was only in the last two to three years that he began to worry about this.

36. I have also taken into account the opinion of Dr Altman, expressed in his report dated 15 July 2013, that he was unable to determine a stressor which would form the basis of a diagnosis of post-traumatic stress disorder.

37. I have given consideration to the alternative diagnosis proposed by Dr Newnham, that being generalised anxiety disorder. However Dr Newnham gave evidence that Mr Carroll’s ongoing worry was about his general health and that later he began to worry about what may have caused his problems. Further, she said that Mr Carroll had not raised with her any concerns arising from his time spent driving fuel tankers at Woomera.

    Issue 2:  Is any one, or more, of the ailments suffered by Mr Carroll, an injury within the meaning of the Act?

38. For an ailment to be a disease as defined in section 5B of the Act, it must be an ailment “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth”.

39. Mr Carroll’s only employment by the Commonwealth was at Woomera between 1958 and 1964.  It is this period of employment which must be shown to have contributed to his various ailments, or at least one of them, for liability of Comcare to be established.

40. Whilst Mr Carroll gave evidence that he was exposed to the fumes of rocket fuel when he worked at Woomera there is no evidence to suggest that this exposure caused the development of his later medical conditions. He argues further that the dust at Woomera was contaminated by the fallout from the atomic testing at Maralinga. I am not satisfied on the evidence that the environment at Woomera in which Mr Carroll worked was in fact contaminated, or alternatively, contaminated to an extent necessary to cause Mr Carroll’s conditions.

41. Even if I was satisfied that Mr Carroll was exposed to ionising radiation at Woomera, I am not satisfied that such exposure contributed to a significant degree to any of his ailments. As Counsel for Comcare pointed out, it is necessary for Mr Carroll to show that his ailment or ailments are injuries within the meaning of the Act.  Possible exposure to radiation is not itself an injury.

42. Dr Reid was unable to say whether there was a relationship between any of the clinical conditions and Mr Carroll’s employment. Even had I been satisfied that Mr Carroll suffers from post-traumatic stress disorder, neither Dr Altman nor Dr Newnham gave evidence which supported such a relationship. In this regard I note that Dr Newnham’s initial view to the contrary was not supported by the evidence.

43. In relation to the condition of bowel cancer, Dr Percy acknowledged that exposure to ionising radiation was a risk factor but indicated that there are other known causation factors, such as family history. As colorectal cancer is a common malignancy in our society he was unable to say whether exposure to radiation played a part in Mr Carroll’s development of this condition.

44. Dr Lazzaro expressed a similar opinion in relation to the condition of prostate cancer. Whilst he said that it was possible that radiation exposure may have increased the risk that Mr Carroll contracted this ailment, he was unable to quantify any increased risk. I must be satisfied on the balance of probabilities that the exposure contributed to the condition –  evidence that it was “possible” is insufficient for this purpose.

45. None of this evidence goes so far as to establish a contribution by Mr Carroll’s employment, let alone a contribution “to a significant degree”.

46. In fairness to Mr Carroll, Counsel for Comcare referred me to the provisions of subsection 7(1) of the Act which I have set out earlier in these reasons.

47. The Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1) took effect from 1 July 2007.  It was made by the Minister for Employment and Workplace Relations under subsection 7(1) of the Act.

48. Paragraph 3 of the Notice states:

    For subsection 7(1) of the Safety, Rehabilitation and Compensation Act 1988, I specify that the disease is in Column 2 and the employment in Column 3 of the Schedule are the specified diseases and the specified employments related to those diseases.

49. Item 24 of the Schedule specifies the diseases as “Diseases caused by ionising radiation.”  The employment specified is “Employment involving exposure to the action of ionising radiation.”

50. The provisions of subsection 7(1) do not assist Mr Carroll. Counsel referred me to what the High Court of Australia said in Bird and The Commonwealth of Australia[7].  In their judgement Mason CJ, and Brennan and Toohey JJ considered section 30 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which was in the same terms as subsection 7(1):

    “The words “disease of a kind” in par.(b) of s. 30 allow a description in terms more general than those which would identify a particular disease. The kind of disease specified in item 4 is not a discrete pathological condition. It is any pathological condition which is in fact caused by one or other of the nominated substances; but it does not comprehend all pathological conditions which could be caused by the nominated substances. Unless it is found that the pathological condition was in fact caused by one or other of the nominated substances, condition (b) is not satisfied and s. 30 does not operate upon the facts of the particular case.

    ……

    And so, while it was not incumbent on the appellant to show that his exposure to radioactive substances some thirty years earlier was the actual cause of his condition, it was incumbent on him to show that in fact he had a pathological condition caused by radium or another radioactive substance or by x-rays. Condition (b) is not satisfied in the present case unless it be found that the appellant’s pathological condition was caused by “another radioactive substance”.[8]

    [7] (1988) 165 CLR 1

    [8] Ibid 6-7.

51. In this case, as I cannot be satisfied that any of the pathological conditions suffered by Mr Carroll is in fact caused by ionizing radiation, subsection 7(1) does not apply.

    COMMENT

52. In reaching my decision I have applied the law as set out in the Safety, Rehabilitation and Compensation Act 1988 (Cth), as this is the Act under which Mr Carroll has made his claim for compensation. Despite Mr Carroll’s submissions otherwise, I cannot apply recommendations of a Royal Commission nor can I simply say, “well, I think it is fair that Mr Carroll be granted compensation”.

53. There are government schemes which may be of assistance to Mr Carroll.  I note that some time ago Comcare referred Mr Carroll’s claim for consideration under one such scheme.  At the time I made my decision Mr Carroll had not pursued this. I hope that Mr Carroll does not go away thinking that this Tribunal is just another part of what he has described as the “big boys in Canberra”.  This is an independent Tribunal established under a Commonwealth Act and its decisions must be made according to law. 

1. There is no doubt that Mr Carroll participated in the British nuclear test programs, as evidenced in the letter dated 15 March 2013 from the Department of Veterans’ Affairs awarding Mr Carroll a Commemorative Medallion recognising Australian participation in the British Nuclear Test Program in Australia.[9]

   [9] Exhibit A4.

   CONCLUSION

2. For these reasons the decision under review was affirmed.  This means that Mr Carroll’s application for compensation for the conditions which he suffers, or has suffered, was not successful. 

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.........................[sgd]..............................................

Associate

Dated 16 October 2015

Date of hearing	27 August 2015
Advocate for the Applicant	Mr M Carroll
Counsel for the Respondent	Mr A Dillon
Solicitors for the Respondent	Australian Government Solicitor