Chakir and Military Rehabilitation and Compensation Commission (Veterans’ entitlements)
[2015] AATA 867
•11 November 2015
Chakir and Military Rehabilitation and Compensation Commission (Veterans’ entitlements) [2015] AATA 867 (11 November 2015)
Division
VETERANS’ APPEALS DIVISION
File Number
2014/3165
Re
Osman Chakir
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 11 November 2015 Place Melbourne The decision under review is affirmed.
...............................[sgd].........................................
Egon Fice, Senior Member
Catchwords
VETERANS – entitlements – particular injuries and diseases – claim for compensation for urothelial carcinoma (bladder cancer) –- subsequent diagnosis of ureteral cancer – ureteral cancer same injury as bladder cancer and therefore reviewable – liability to pay compensation – causation – consumption of Phenacetin through Bex Powders – insufficient evidence of consumption – smoking – smoking unrelated to defence service – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42D
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4AA, 5A – 5B, 14, 16, 19, 24, 27, 53 – 54, 60, 62, 64
Cases
Abrahams v Comcare (2006) 93 ALD 147
Canute v Comcare (2006) 226 CLR 535
Comcare v Lofts (2013) 217 FCR 220
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hawkins v Comcare (2001) 115 FCR 127
Lees v Comcare (1999) 56 ALD 84
Repatriation Commission v Tuite (1993) 39 FCR 540
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Secondary Materials
Fortuny, Joan, Manolis Kogevinas, Michael S Zens, Alan Schned, Angeline S Andrew, John Heaney, Karl T Kelsey and Margaret R Karagas, ‘Analgesic and Anti-inflammatory Drug Use and Risk of Bladder Cancer: A Population Based Case Control Study’ (2007) 7 BMC Urology 13
IARC Working Group, ‘Phenacetin’ (2012) Volume 100A, International Agency for Research on Cancer Monographs (World Health Organisation)
McCredie, Margaret, John Stewart, David Smith, Rajah Supramaniam and Sheila Williams, ‘Observations on the Effect of Abolishing Analgesic Abuse and Reducing Smoking on Cancers of the Kidney and Bladder in New South Wales, Australia, 1972-1995’ (1999) 10 Cancer Causes and Control 303
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Bladder, No. 97 of 2011, 19 August 2011
Stewart, John H, ‘Analgesic Abuse and Renal Failure in Australasia’ (1978) 13 Kidney International 72
Taylor (ed), Elizabeth J, Dorland’s Illustrated Medical Dictionary (W.B. Saunders Company, 27th ed, 1988)
UNSW School of Medical Sciences, Bex Powders (2012) <
REASONS FOR DECISION
Egon Fice, Senior Member
11 November 2015
Mr Osman Chakir was born on 24 November 1933. He was 82 years of age at the time of hearing this application.
Mr Chakir enlisted in the Royal Air Force (RAF) in about 1954/1955. He was about 21 years of age that time. He worked as a wireless operator with the RAF. He left the RAF in about 1961, taking up civil employment as a warehouse manager in London.
Mr Chakir, together with his wife, immigrated to Australia in 1966 after enlisting in the Royal Australian Air Force (RAAF) while in London. He was employed as an education assistant after spending the first 12 weeks at Edinburgh Air Force Base in South Australia at the Recruit Training Unit. After completing recruit training, Mr Chakir was posted to Victoria Barracks in Melbourne for nine months. He was then posted to Pearce in Western Australia and attached to the Air Training Corp (ATC) for the purpose of training school air cadets. The ATC was based in Claremont, a suburb of Perth. That is a substantial distance from RAAF Base Pearce which is located some 48 km to the north of Perth.
Mr Chakir was posted back to Victoria, being based at Victoria Barracks in Melbourne, in about 1970. He remained there until his discharge on 10 January 1972.
In 1977 Mr Chakir suffered a massive myocardial infarction. He ceased work at that time and has not returned to work since. Following his heart attack, he received the invalid pension as it then was and from age 65, the age pension.
In late 2012 Mr Chakir experienced blood in his urine and underwent extensive examination at Geelong Hospital. Although bladder biopsies were non-diagnostic in November 2012 he nevertheless had urine positive for urothelial malignancy on cytology and he was treated for that condition. In April 2013 he had a follow-up biopsy which demonstrated urothelial carcinoma (bladder cancer). The urothelium is the epithelium of the urinary bladder (Dorland’s Illustrated Medical Dictionary, 27th Edition, p. 1796). The epithelium is the covering of internal and external surfaces of the body including the lining of vessels and other small cavities (p. 571). Despite treatment, a follow-up biopsy in November 2013 again demonstrated carcinoma-in-situ (CIS). Following further treatment, subsequent biopsies taken in March 2014 revealed there was no evidence of CIS. As
Mr Gregory Neerhut, a urologist, said in his report dated 29 April 2014, biopsies at that time did not show any persisting cancer.
In his oral evidence-in-chief, Mr Neerhut testified that in November/December 2014
Mr Chakir was diagnosed with cancer of the ureter, one of two tubes which carry urine from the kidney to the bladder. Mr Neerhut explained that the ureter had the same lining and same cells as the lining of the bladder and that while cancer of the ureter was not caused by bladder cancer, it involved the same process and the same risk factors. It was not the result of metastases but rather it was a second new cancer. Mr Neerhut also confirmed that Mr Chakir now had no evidence of bladder cancer.
The oral evidence given by Mr Neerhut gives rise to a jurisdiction question. Mr R Seit of counsel, who appeared for the Military Rehabilitation and Compensation Commission (MRCC), submitted that the injury claimed by Mr Chakir was bladder cancer. That, according to Mr Seit, raised the question whether the Tribunal had jurisdiction to consider an injury which was different to the injury forming the subject matter of the original claim for compensation. Because the parties had not addressed this issue prior to the hearing, I asked them to provide me with written submissions regarding the Tribunal’s jurisdiction.
CLAIMED NEW INJURY – JURISDICTION
Section 53(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) relevantly provides:
This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury;…
There was no dispute that the urothelial carcinoma claimed by Mr Chakir fell within the definition of disease in s. 5B of the SRC Act in so far as it was an ailment suffered by him. For the purposes of the SRC Act, that disease is taken to be an injury by reason of s. 5A(1)(a).
Section 64 (1) of the SRC Act provides that an application may be made to the Tribunal for review of a reviewable decision. The expression reviewable decision is defined in
s. 60(1) of the SRC Act and it means a decision made under subsection 38(4) or
section 62. The relevant section in this matter is s. 62. It provides for reconsideration of determinations by the determining authority of its own motion or following a request made by the claimant. In other words, the Tribunal may only review a decision made by a determining authority following reconsideration of that determination.In his Claim for Rehabilitation and Compensation, Mr Chakir said that the injury, disease or illness for which he was claiming compensation was bladder cancer. It was that claimed medical condition which was reviewed by the review officer in her decision dated 2 June 2014.
The question therefore posed by Mr Seit was whether Mr Chakir’s claim for acceptance of liability under s. 14 of the SRC Act can be reformulated so as to include cancer located in the ureter. Mr Seit submitted that this was a different injury from that which formed the subject matter of Mr Chakir’s original claim, which was cancer located in his bladder.
While it is clear that the Tribunal may only review decisions in respect of which application is made to it under any enactment (s. 25(1), Administrative Appeals Tribunal Act 1975 (AAT Act)), and that the Tribunal has no general power of review and may only review those decisions in relation to which it has been given jurisdiction, the question in this case is whether the description bladder cancer encompasses or may be taken to encompass a cancer of the same nature (urothelial carcinoma) although situated higher in the urinary tract system.
Mr Seit referred to the Full Court of the Federal Court decision in Lees v Comcare (1999) 56 ALD 84. After setting out the relevant statutory provisions in the SRC Act and the AAT Act, the Court said, at 93:
The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
The first and obvious problem for Mr Chakir is that he lodged his claim for Rehabilitation and Compensation on 22 August 2013, at which time he either did not have cancer of the ureter or was not diagnosed with that condition. A cancer in that location was not reviewed at the second tier decision-making stage. In fact, the Review Officer would not have been aware of that condition. The only decision which was reviewed was his claim for cancer located in the bladder.
As I have already said above, Mr Neerhut explained that the lining of the bladder is identical to the lining of the ureters. The cells which comprise that lining (epithelial cells) are also identical as is the cancer which can develop in either organs. While a cancer in a ureter is not caused by a spreading (metastasis) of bladder cancer, it involves the same process and the same risk factors. It is, in effect, the same disease located slightly higher in the urinary tract. On his last examination, Mr Chakir had no evidence of cancer in his bladder.
Although Mr Seit also referred to the High Court of Australia case in Canute v Comcare (2006) 226 CLR 535 (Canute), with respect, it is not identical to the matter before me. In that case, Mr Canute received compensation under the SRC Act for a permanent impairment caused by a back injury sustained in the course of his employment. He was later diagnosed with an adjustment disorder and claimed further compensation on account of his mental condition. Both injuries arose out of, or in the course of, his employment. Comcare denied liability for the adjustment disorder on the basis that Mr Canute had not shown an increase in whole-person impairment of at least 10%. The Court pointed out,
at 540, that the SRC Act did not oblige Comcare to pay compensation in respect of an employee’s impairment but rather in respect of an injury. It also accepted that the Act assumed that an employee may sustain more than one injury. The Court said this about the concept of an injury at 540:
At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s. 24 (1) of the indefinite article in the expression “an injury” reinforces that conclusion.
Ms Z Maud of counsel, who appeared on behalf of Mr Chakir, submitted that the Federal Court of Australia (Madgwick J) case Abrahams v Comcare (2006) 93 ALD 147 (Abrahams) was on the point. That case involved a jurisdiction question, similar to that which arises in this matter. In 2001 Mr Abrahams experienced pain in his right arm which he associated with his keyboard duties at work. In his claim for compensation,
Mr Abrahams described his injury as: overuse injury affecting the right arm. Comcare accepted liability in respect of his right upper arm, shoulder, elbow and forearm as well as his neck. In February 2003, Comcare decided that Mr Abrahams no longer suffered from compensable effects of his accepted injury. In mid-2003 Mr Abrahams was diagnosed as having right carpal tunnel syndrome. This claim was rejected by Comcare. After lodging a claim with the Tribunal, as a result of further medical information, Mr Abrahams’ legal advisers formed the view that it was no longer possible to sustain a diagnosis of carpal tunnel syndrome (page 149). The problem was that the medical evidence available to Mr Abrahams indicated that he was genuinely suffering from pain in the right upper limb which included pain in the wrist and hand region. A range of diagnoses by different doctors was proffered. At the Tribunal hearing, Mr Abrahams’ counsel told the Tribunal that the case would not be pressed on the basis of carpal tunnel syndrome, but would be pressed on the basis that the applicant’s wrist complaints were but part of, and subsumed in, broader, ongoing and varying difficulties over virtually the entirety of his right upper limb, right shoulder and neck, including headaches (page 150). The Tribunal determined that to consider Mr Abrahams’ claim on that basis was outside of its jurisdiction.
Madgwick J was of the view that as a matter of generality, the principles stated by the Tribunal were correct but had been misapplied (page 152). His Honour found that the Tribunal’s decision to decline to accept to reconsider the matter entirely to have been over-technical and a legally impermissible mode of interpretation to hold Mr Abrahams irretrievably to the use of what was plainly the then medical diagnosis which he had received. His Honour went on to say, at 153:
The claim form indicates that the diagnosis was right carpal tunnel syndrome. In the “Report of injury or disease” (which apparently accompanied the claim for compensation), where the applicant answered the question: “What injury/disease did you sustain? (Nature of injury):”, were the words: “Right Carpal Tunnel Syndrome”. In the context, it is clear that he was simply adopting the then medical diagnosis of his injury. It was nevertheless entirely clear that he was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand.
Nothing is more common than that medical diagnoses change and evolve, or are or become various. In my opinion, to hold that the applicant was irretrievably asserting that he had a right carpal tunnel syndrome as the injury to his hand is to take an over-literal view of a document that, as I have indicated, should be beneficially, broadly and practically interpreted.
While I accept that this matter may be distinguished from Abrahams on the basis that at the time of the diagnosis of urothelial carcinoma, Mr Chakir did not have a diagnosis or evidence of cancer located in the ureter; it is, in all respects, the same disease simply located in a different part of his body. Practically, it makes no sense to treat this as a new injury given it is simply the manifestation of the same cancer previously detected in his bladder. Broadly understood, Mr Chakir’s claim is for cancer occurring in his urinary tract. As Mr Neerhut said, it involves the same risk factors as that for the cancer which occurred in his bladder.
I should also briefly mention the Full Court of the Federal Court (Heerey, Dowsett and Conti JJ) decision in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253. While the circumstances in that case are again slightly different to those in Mr Chakir’s case, the
Full Court stated some general principles which should be applied in compensation cases involving the SRC Act.
Initially, Telstra accepted liability under s. 14 of the SRC Act for Mr Hannaford’s condition diagnosed as Ross River fever. It paid incapacity benefits and medical treatment costs under ss. 19 and 16 respectively. About 20 months after accepting liability, Telstra determined that Mr Hannaford was not entitled to payment under ss. 16 and 19 of the SRC Act. It also refused his claim for permanent impairment under ss. 24 and 27. On reconsideration of that decision, Telstra affirmed the original determination under s. 62 the SRC Act. It made its decision based on medical evidence that Mr Hannaford did not, at that time, suffer from the effects of Ross River fever. Mr Hannaford sought review by the Tribunal which remitted the matter to Telstra for further consideration under s. 42D of the AAT Act. Following remittal, Telstra determined that Mr Hannaford was not entitled to compensation pursuant to ss. 24 and 27 of the SRC Act. Mr Hannaford requested reconsideration of those determinations which were confirmed by Telstra. The decision was reviewed by the Tribunal which affirmed Telstra’s decision on the basis that it was not estopped from considering liability in terms of s. 14. On appeal to the Federal Court, Moore J held that it was not open to the Tribunal to make findings contrary to those which underpinned the original determination made by Telstra under s. 14 of the SRC Act. The matter then went on appeal to the Full Court. It should be noted that the s. 14 decision made by Telstra was never reconsidered under s. 62 and was therefore never previously reviewed by the Tribunal
Conti J gave the principal reasons for decision, Dowsett and Heerey JJ agreeing. Heerey J added some comments of his own. His Honour said, at 255 – 256:
One of the decisions the AAT, standing in the shoes of Telstra, was required to make was whether, within the meaning of s. 24(1), Mr Hannaford had an injury which resulted in a permanent impairment. The effect of s. 4 was that “injury” included a disease that was contributed to in a material degree by his employment. The disease in question was Ross River fever. It was squarely within the AAT’s jurisdiction to make a finding as to whether or not Mr Hannaford had that disease at the time of the hearing. It is difficult to see how the AAT, in making a finding that he did not suffer from the disease, must be excluded from relying on the (uncontradicted) expert evidence before the AAT that he had never had it.
…
A determination under s. 14 is subject to the SRC Act, and in particular to Pt II thereof, which provides for such benefits as medical expenses (s. 16) and weekly payments (s. 19). If an employee obtained a s. 14 determination for, say, disease X but later claimed increased medical expenses for disease Y, it would be a strange construction of beneficial legislation to conclude that the employee was “estopped” by the original determination from alleging that he really suffered from Y all along.
In concluding, Conti J said, at 273 – 274:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s. 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances.…
The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle.
Mortimer J in the Federal Court of Australia decision Comcare v Lofts (2013) 217 FCR 220, referred to the High Court decision in Canute and said, at 232:
The hierarchy of provisions in the SRC Act (see Canute at [37]) indicates that it is the occurrence of an injury which both “actuates and defines the ambit of Comcare’s duty” to pay compensation. In Canute, the Court used this description when speaking about Comcare’s duty under s. 24 of the SRC Act, but the description applies with equal force to Comcare’s duties under other provisions, including ss. 14 and 16.
In my opinion, despite the many and varied circumstances in which claims may arise under the SRC Act, it is the occurrence of an injury (as defined in s. 5A (1)) which is central to the decision which I am required to make. That is particularly so given that
Mr Chakir’s claim is purportedly made under s. 14 of the SRC Act. Section 14 is entitled: Compensation for injuries. It commences with the words: Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee…. In those circumstances, it is significant whether Mr Chakir has made a claim in respect of an injury or, if it be the case, multiple injuries, and whether Comcare’s decision regarding any such injury has been reviewed under s. 62. If those steps are satisfied, then the Tribunal has jurisdiction to review Comcare’s decision.
On his claim form, Mr Chakir described his injury as cancer. In answer to the question regarding which part of his body was affected, Mr Chakir wrote bladder. In lay-person’s terms, Mr Chakir was simply describing a cancer which at that time had been identified as present in his bladder. The outpatient report dictated by Dr Isaac Thyer referred to a biopsy which demonstrated urothelial carcinoma with evidence of stromal invasion and associated carcinoma in situ on the bladder biopsies that were taken. Dr Thyer also reported that further investigation regarding Mr Chakir’s upper tracts revealed no urothelial lesions within the urinary tract. However, in his evidence-in-chief, Mr Neerhut testified that Mr Chakir had developed ureteral cancer. Although Mr Seit submitted that this was a new injury, with respect, I disagree. It is a cancer of precisely the same nature as that which was found in his bladder. It is simply a recurrence of the same cancer in a different site, being the upper urinary tract. In terms of the SRC Act, it is a recurrence of the same ailment as that referred to in his claim for Rehabilitation and Compensation. The fact that it is located in a different part of the urinary tract does not, in my opinion, make it a new injury or new ailment.
While the Statement of Principles concerning Malignant Neoplasm of the Bladder which has been referred to by Mr Chakir does not apply to applications under the SRC Act, it is of some interest to note how that disease is defined. The Statement of Principles defines malignant neoplasm of the bladder as:
a primary malignancy arising from epithelial tissues of the urinary bladder, including malignant neoplasm of the ureteric orifice of the bladder. This definition includes transitional cell carcinomas of urothelial origin and carcinoma-in-situ, but excludes soft tissue sarcoma, non-Hodgkin’s lymphoma and Hodgkin’s lymphoma.
The injury, in the secondary sense referred to in s. 5A the SRC Act, is precisely the same injury as that reviewed by the Review Officer, Delegate of the Military Rehabilitation and Compensation Commission on 2 June 2014. Accordingly, I find that the presence of urothelial carcinoma in Mr Chakir’s ureter, being the same cancer which was referred to in his claim lodged with the Department of Veterans’ Affairs on 22 August 2013, has been the subject of reconsideration under s. 62 the SRC Act. Accordingly, that reconsidered decision is a reviewable decision which may be the subject of review by this Tribunal pursuant to s. 64 of the SRC Act.
LIABILITY TO PAY COMPENSATION
Mr Chakir’s claim for compensation is made under s. 14 of the SRC Act. Because his claim related back to his employment as a member of the RAAF, and it appears not to have been excluded by s. 4AA (2) of the SRC Act, it was dealt with by the Department of Veterans’ Affairs.
Regarding Mr Chakir’s claim, which is a claim for compensation in respect of an injury as that expression is defined in the SRC Act, the relevant legislative provision is s. 14 which, in part, provides:
(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.…
The definition of injury is set out in s. 5A of the SRC Act. Relevantly, it provides:
(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.
The definition of disease is set out in s. 5B of the SRC Act. Relevantly, it provides:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee;
(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.
(2)…
(3) In this Act:
significant degree means a degree that is substantially more than material.
There was no dispute between the parties that in 2012 Mr Chakir had been diagnosed with urothelial carcinoma or, as it was generally described, bladder cancer. In an attachment to his claim form (referred to as the Injury or Disease Details Sheet) lodged in accordance with s. 54 of the SRC Act, in answer to the question how he believed his service caused, contributed to or aggravated his injury or disease, Mr Chakir responded: poor diet & including ration packs. As will become apparent shortly, this subsequently changed. In any event, the primary decision maker, a delegate of the MRCC, rejected
Mr Chakir’s claim in a letter dated 3 January 2014 stating that she was not reasonably satisfied that Mr Chakir’s defence service contributed to a significant degree to the contraction of his cancer.
In a letter dated 19 March 2014 to the MRCC, Mr Chakir sought reconsideration of the primary decision made on 3 January 2014. However, Mr Chakir had changed the basis for the cause of his cancer stating:
I wish to appeal the decision of the 3rd January 2014, on the grounds of that I was consuming a total of at least 250 grams of phenacetin at least five years before the clinical onset 11/10/2012 of malignant neoplasm of the bladder due to chronic pain for my service related Lumbar Spondylitis clinical onset 24 August 1971.
Over the years the lumbar back pain progressively got worst [sic] and therefore I took a combination of pain killers to relieve the pain in a combination of Bex/Vincent powders including Empirin Codeine – anti – inflammatory medication.
In a letter dated 2 June 2014 a delegate of the MRCC decided to affirm the primary determination made on 3 January 2014. While the delegate took into account the new submissions made by Mr Chakir and on his behalf regarding the ingestion of phenacetin in the form of Bex/Vincent powders, she also had a report prepared for the MRCC by Professor Richard Fox, an oncologist. While Professor Fox made no reference to the consumption of Bex/Vincent powders (no doubt because his report preceded the change Mr Chakir made to his claimed causation), he did say that Mr Chakir’s claim regarding poor diet due to ration packs was not a causative factor. Professor Fox considered the most important factor contributing to the overall incidence of bladder cancer was cigarette smoking. He said there was an attenuated risk for former smokers, but the risk remained significantly elevated, up to two-fold. The MRCC delegate did consider Mr Chakir’s amended grounds of causation but nevertheless found that the significant contributor to the development of his bladder cancer condition was his cigarette smoking which commenced prior to Mr Chakir commencing his RAAF service.
The issue which I need to address in determining whether the MRCC has a liability to pay compensation to Mr Chakir is whether his cancer was causally connected to his RAAF service by reason of:
(i)the ingestion of Bex powders containing phenacetin to alleviate the symptoms of his lumbar spondylosis; or
(ii)cigarette smoking which was brought on by the stress of his military service.
The Bex powders link
The evidence which I had before me leaves little room for doubt about the increased risk of acquiring cancer as a consequence of the consumption of large doses of Bex/Vincent’s powders containing phenacetin by habitual users. Mr Neerhut, in his report dated
29 April 2014 said:Bex does contain Phenacetin which certainly increases the risk of both upper and lower tract urothelial cancer. It seems reasonable that his case should be reviewed as his bladder cancers may be at least in part related to his back problems during armed force service. I also note that he does have a past history of smoking but he hasn’t smoked for over 40 years now.
In his examination in chief, Mr Neerhut also mentioned age as a significant risk factor for the development of cancer in the ureter, kidneys, bladder and below (in other words, the upper and lower urinary tract).
The authors of a research article entitled Analgesic and anti-inflammatory drug use and risk of bladder cancer: a population-based case-control study, published in BMC Urology 2007, 7:13, refer to the fact that phenacetin, an analgesic drug, was classified by the International Agency for Research on Cancer (IARC) in 1987 as being probably carcinogenic to humans and analgesic mixtures containing phenacetin as being carcinogenic (page 2).
It is clear that Mr Chakir’s attention was drawn to the SOP dealing with Malignant Neoplasm of the Bladder by 19 March 2014 when seeking a reconsideration of the primary decision. In fact, the new grounds upon which he based his claim are identical to one of the factors in the SOP which must be present to establish a causative hypothesis. Factor 6 (j) in the SOP states:
consuming a total of at least 250 grams of phenacetin at least five years before the clinical onset of malignant neoplasm of the bladder;…
Phenacetin is defined in the SOP as:
“phenacetin” means an aniline derivative that has analgesic and antipyretic properties, that was formerly used as a constituent of several over-the-counter compound analgesic medications, including Bex or Vincent’s powder, Empirin Compound and Bromo seltzer.…
An extract from the University of New Wales (UNSW), School of Medical Sciences web page says this about Bex powders (emphasis in original):
Phenacetin – This chemical was widely used with aspirin and caffeine as a fever and pain reliever. It acts primarily on the nervous system, targeting the sensory tracts of the spinal cord, the brain and the heart. It was withdrawn from use in 1983 due to its damaging action on the kidneys and carcinogenic properties. Each Bex powder contained 420 mg of phenacetin.
If the UNSW statement about the content of phenacetin in a Bex powder is correct, using the threshold level in the SOP of 250 g at least five years before the clinical onset, that equates to some 595.24 powders (250,000÷420). In his witness statement dated
17 June 2014 Mr Chakir said he was posted back to Victoria in about 1970 when he was based at Victoria Barracks. He testified that when he first attended the medical centre at Victoria Barracks, he was given aspirin but found it did not alleviate his back pain which he was then experiencing. Subsequently, he was told (he does not indicate by whom) to obtain Bex which he took twice per day, in the morning and before retiring to bed. He said that he took Bex powders twice daily from that time until the 1980s. He said that Bex was at that time removed from the market. He was told that it was removed from the market because of the belief that it might contribute to illnesses such as cancer. He then ceased taking Bex and started taking Indocid (a non-steroidal anti-inflammatory).
I also had in evidence a research paper entitled Analgesic abuse and renal failure in Australasia by Dr John H Stewart, which was published in Kidney International, Vol. 13 (1978). Dr Stewart described the purpose of his paper as being to describe the extent and pattern of non-narcotic analgesic abuse in Australasia and the prevalence of end-stage renal disease due to papillary necrosis. The article is concerned with analgesic abuse which Dr Stewart described as: regular consumption, without the approval of a doctor, of powders or tablets for the sake of their psychotropic effects or else for complaints which either are caused by the analgesics themselves, or are trivial, so that the amount and type of drug taken are inappropriate (page 72).
Dr Stewart examined the composition of analgesics taken by habitues. He said, at 73 (emphasis added):
Two brands, Bex and Vincent’s, have been taken by more than two-thirds of analgesic habitues in this country [19, 21, 24, 27]. These are the only two Australian proprietary brands which contain caffeine, are available as powders, and are retailed chiefly through outlets other than pharmacies [19]. Both comprised aspirin, phenacetin, and caffeine (A.P.C.) prior to 1967 when Vincent’s replaced phenacetin with salicylamide. Bex substituted paracetamol in 1975. Bex powders each contained twice as much phenacetin (350 mg), but rather less caffeine (68 to 75 mg) than Vincent’s (85 to 91 mg per powder).
Dr Stewart’s statement that Bex substituted paracetamol for phenacetin in 1975 is repeated in a reported study entitled Observations on the effect of abolishing analgesic abuse and reducing smoking on cancers of the kidney and bladder in New South Wales, Australia, 1972 – 1995. That article was published in the journal Cancer Causes and Control, Vol. 10, 1999. Its authors are listed as Margaret McCreadie, John Stewart, David Smith, Rajah Supramaniam and Sheila Williams. The authors state, at 304:
In fact, because of a sustained campaign by nephrologists starting in 1962 when analgesic nephropathy was first described in Australia, phenacetin had been replaced by paracetamol or salicylamide in virtually all analgesic powders and tablets by 1975.
It is apparent from the literature that the amount of phenacetin contained in Bex powders varied and has variously been stated as 420 mg and 350 mg. Given that the two papers either authored or co-authored by Dr Stewart refer specifically to Bex powders in Australia and that his first paper, which was published in 1978, is very close to the period with which we are concerned, it would not be unreasonable to accept that Bex powders produced in Australia in the 1970s each contained 350 mg of phenacetin. Therefore, performing the same calculation as I have above on the assumption that each powder contained 350 mg rather than 420 mg, to reach the threshold level of 250 g referred to in the SOP, Mr Chakir would have had to have consumed some 715 Bex powders between 1971 and 1975. That amounts to 178.75 powders in each year or about one powder every second day during that four year period.
Having read all of the literature which was in evidence dealing with bladder or urinary tract cancers and the impact of phenacetin on that disease, it is clear that analgesic mixtures containing phenacetin can vary considerably in respect of the amount of phenacetin contained in a product. An IARC Monograph – 100A (page 378) refers to analgesic mixtures containing phenacetin marketed as tablets or capsules contained between
150 and 300 mg of phenacetin. The authors state that common combinations were:
150 mg phenacetin, 230 mg aspirin, and 15 or 30 mg caffeine. It seems clear from that article that depending upon the country of origin, the amount of phenacetin contained in analgesic mixtures varied significantly. I have therefore preferred the values accorded by Dr Stewart because his study concerned Bex and Vincent’s powders marketed in Australia. Furthermore, the study was conducted shortly after 1975 when the manufacturers ceased to use phenacetin in those analgesics.
I also had in evidence a statement made by Professor Richard Fox dated
2 November 2014 in which he referred to Dr Stewart’s publication dated 1978 and particularly the fact that Bex substituted paracetamol for phenacetin in 1975. However, the figures Professor Fox refers to in that statement regarding the content of phenacetin in each powder are plainly incorrect. He has also misstated the threshold amount of phenacetin stated in the SOP dealing with bladder cancer. Nevertheless, Professor Fox in his examination-in-chief testified that there was a statistically significant lower risk of contracting bladder cancer with lower indigestion concentration and the increase in time during which the ingestion took place.
I should also mention that in the only study where tumours of the ureter were analysed separately (McCreadie & Stewart, 1988), the use of phenacetin was not associated with an increase in the incidence of tumours of the ureter (IARC Monographs – 100A,
page 387). However the Working Group noted that the statistical power of the study was limited.
Given the above expert evidence and studies which were in evidence, I find that the consumption of analgesics containing phenacetin results in an increase of the risk of acquiring a urothelial malignancy. However that risk varies with the dose rate consumed and the period of time during which consumption takes place. There was little or no evidence of a maximum latency period following the cessation of consumption.
Mr Neerhut was of the view that a latency period of 37 years, which appears to be the relevant period in Mr Chakir’s case, is possible.
One issue which arises out of the expert evidence and literature which was in evidence regarding the association between urothelial malignancy and the ingestion of analgesics containing phenacetin is the dosage consumed by Mr Chakir prior to being diagnosed with bladder cancer.
In a statement of evidence made on 17 June 2014 which was admitted into evidence,
Mr Chakir testified that he first injured his back in about 1967 while on posting to Perth. He said he did not report the pain at that stage and put up with it hoping that it would spontaneously improve. He then said that he first sought treatment for the back pain before he was posted to Victoria Barracks in Melbourne. Further, he explained:
When I initially attended the medical centre at Victoria Barracks I was given aspirin. I found that aspirin did not alleviate my symptoms and I was subsequently told to obtain Bex (which was an over-the-counter medication). I thereafter took Bex twice per day (in the morning and before retiring to bed). The Bex was dissolved in water. I took Bex twice-daily from about the time that I was transferred to Victoria Barracks until the 1980s. At that stage Bex was removed from the market. I was told that it was removed from the market because of the belief that it might contribute to illnesses such as cancer. From the time I ceased taking Bex I started taking Indocid (which was prescribed by my then family doctor).
There are a number of significant problems with this evidence.
I had in evidence Mr Chakir’s outpatient clinical records between April 1966 and
August 1971. Those records have stamped on them dates of various postings. He was posted out from Edinburgh RAAF Base in April 1966 and posted into H.Q. Support Command which is located at Victoria Barracks in Melbourne. Although the date is indistinct, he appears to have been posted to Pearce RAAF Base, which is north of Perth, in 1967. The next entry in his medical record is dated 16 October 1968 which records him being posted in to H.Q. Support Command. There is no record of Mr Chakir having attended for any medical treatment while on his posting to Perth. It appears Mr Chakir first sought medical attention for lower back pain on 20 February 1969. As best I can make out from a fairly indistinct photocopy, the entry states: Lower-back pain – 2 years – every few weeks, worse and constant for 10 days. Also prescribed on that occasion was treatment with a lamp, Indocid and Dencorub.
Plainly, Mr Chakir’s memory of when he first sought treatment for his back pain and what was prescribed is, understandably, faulty. There is no evidence that he first sought treatment for his back pain before being posted back to Victoria Barracks. Also, there is no evidence that when he attended the medical centre at Victoria Barracks, he was given aspirin. While he was prescribed treatment with, presumably, a heat lamp, he was obviously given a prescription for Indocid and he was also either given or told to use Dencorub, an over the counter cream frequently used at that time for muscle soreness.
The next entry which refers to back pain is found in his outpatient clinical record on
19 March 1970. The entry states: back pain – caps Doloxene. Doloxene is an analgesic used for mild to moderate pain. The only other entry referring to his back pain was made on 4 August 1971, which was a few months prior to his discharge from the RAAF. The entry simply states low back pain for some weeks. Indocid was again prescribed and so was Dencorub. An x-ray of his lower back was also ordered. That x-ray was conducted on 24 August 1971 and it disclosed barely perceptible spondylitic lipping at the anterior margins of the bodies of the 3rd, 4th and 5th lumbar vertebrae. No other abnormality was demonstrated in the lumbar spine. The x-ray also recorded possibly slight narrowing of the intervertebral disc space between the fourth and fifth lumbar vertebrae. It did not disclose significant lumbar spine abnormalities.
Significantly, there is no entry in any of his medical records that were in evidence which so much as suggests that he should use any other analgesic substances. There is no mention of Bex or Vincent’s powders. Also significant is Mr Chakir’s medical examination on discharge which was done on 27 September 1971. There is no mention whatsoever of any back-spinal column problems where Mr Chakir was required to list diseases and injuries which he suffered during his service and from which he was then suffering. In fact he has written the word nil in the space provided for those entries. That document was signed by Mr Chakir on 27 September 1971.
There is one further element of evidence which strongly points to Mr Chakir not having consumed Bex powders to relieve any back pain which he did experience in the course of his RAAF service. As I have already stated above, in his claim for compensation,
Mr Chakir said that he believed poor diet including ration packs were the cause of his bladder cancer. That was in July 2013. Mr Chakir was subsequently examined by Professor Fox on 29 November 2013. In taking a history from Mr Chakir, Professor Fox noted that he was told that while Mr Chakir was in the RAAF, his diet was poor and he often had to eat what he described as ration packs. However, in his report, Professor Fox said that he did not consider Mr Chakir’s claim of poor diet due to ration packs as a causative factor in his bladder cancer. He also said that cigarette smoking did significantly increase the risk of bladder cancer.
Mr Chakir’s claim was rejected by the Department of Veterans’ Affairs and in its reasons for decision, the delegate referred to Professor Fox’s opinion that poor diet due to ration packs was not a causative factor in his bladder cancer. That decision was posted to
Mr Chakir under the cover of a letter dated 3 January 2014.
Mr Chakir wrote to the Department of Veterans’ Affairs on 19 March 2014 seeking a reconsideration of the decision made on 3 January 2014. It was only at this time that
Mr Chakir mentioned that due to his lumbar back pain, he sought relief from a combination of Bex/Vincent’s powders. In fact, the words he used in his letter are, almost word for word, from the SOP dealing with Malignant Neoplasm of the Bladder. At about that time, Mr Chakir had taken advice from Mr Richard Embleton, a voluntary advocate with the Geelong RSL. I say that because in cross-examination, Mr Chakir was asked whether he prepared the letter of 19 March 2014 to which he responded: no – somebody helped me. Mr Chakir was also asked whether he took Vincent’s powders as well as Bex and he said he could not recall taking Vincent’s. Mr Chakir also said that he stopped taking Bex because he found out, from newspapers, that it may have been responsible for cancer. When asked why he did not mention Bex as a possible cause for his cancer when he first lodged his claim, particularly as, on his own evidence, he was aware of possible problems with that medication, he responded by saying that somebody else had completed the form for him and he simply signed it. When asked who that person was, he described them as being from vets, which I understood to be a reference to a voluntary advocate with the Geelong RSL.
Mr Chakir was also asked in cross-examination why he said in his claim form that poor diet and ration packs were responsible for his bladder cancer. Mr Chakir’s response was simply that it was all wrong. When asked if it was his handwriting on the form he said it was not, but that he did see that listed as the possible cause of his bladder cancer and simply accepted it.
Assuming that Mr Chakir did take Bex powders between 1971 and 1975, there is a further issue about just how much Bex he consumed in that time. In cross-examination Mr Chakir confirmed that he was taking Bex for pain relief but when he was asked if he continued taking Bex when he had no pain, his response was no, why should I. Mr Seit then put to Mr Chakir that if he had intermittent pain, he was probably not taking Bex on a daily basis. Mr Chakir’s response was that if his doctor told him not to do so, of course he would not. When referred to the entry in his outpatient clinical record of 20 February 1969, and in particular to the fact that he had lower back pain for a period of two years, he described it as continuous. However he agreed that the entry also stated every few weeks. When it was suggested to Mr Chakir that the entry in his medical records suggested his pain was probably intermittent, he simply said he could not recall. Mr Seit also referred Mr Chakir to Dr Sleigh’s report of 14 January 2014 where he recorded the history of pain given to him in the following way: He said he was treated with anti-inflammatory tablets and painkillers but the back pain persisted intermittently. When asked if that was correct,
Mr Chakir responded that: early on, it was intermittent.
With respect to Mr Chakir, the evidence regarding the link between his urolethial malignancies and the consumption of Bex powders is tenuous at best. In fact it appears to have been constructed following his examination by Professor Fox and his finding that poor diet and the consumption of ration packs was not associated with his malignancy. Even the fact that Mr Chakir at first accepted that basis as being the possible cause of his cancer without further questioning raises serious doubts about Mr Chakir’s willingness to give a truthful account, to the best of his recollection, of matters which might be connected with his disease. I say that because after completing his recruit training at Edinburgh,
Mr Chakir had postings to either Melbourne or Perth. Having served in the RAAF between 1967 and 1980, I am aware that Mr Chakir would not have been so much as even exposed to a ration pack during his period of service in either of those cities. His diet would have been no different to any civilian living in those cities at that time. Despite that, Mr Chakir accepted what had been entered on his claim form at the time although when confronted with the issue in the course of cross-examination, he simply said that he accepted it was wrong. He gave no explanation for signing the claim form despite the fact that he must have been aware at the time that he signed it, that it was plainly nonsense.
Rather remarkably, when his attention was drawn to the SOP dealing with Malignant Neoplasm of the Bladder, Mr Chakir was able to give evidence that he consumed a total of at least 250 grams of phenacetin at least five years before the clinical onset of his malignancy. This is despite the fact that he also said in evidence he was aware that Bex powders ceased to be available in Australia in about 1980 due to their link with cancer. If he was in fact aware of the link with cancer in 1980, and that he took Bex powders in the morning and at night consistently between 1971 and 1975, I have no doubt that having been diagnosed with bladder cancer, he would have immediately recalled the reason why Bex powders had been taken off the market. He obviously did not. The only logical explanation is that he did not consume Bex powders, at least to the extent he claimed.
Furthermore, the medical records which I had in evidence do not support Mr Chakir’s claimed consumption of Bex powders. He first sought medical assistance in February 1969 at which time he was prescribed Indocid and told to use Dencorub. The fact that he was taking a non-steroidal anti-inflammatory at that time strongly suggests he was not told by his doctor to also take analgesics. The only analgesic prescribed for him by the medical officer at Victoria Barracks was Doloxene. There is no logical reason why the medical officer would also have told him to take Bex powders. There was no evidence other than Mr Chakir’s evidence that he took Bex powders at all. While I have not disregarded Mr Chakir’s evidence, because it is in the nature of a self-serving statement made in the circumstances I have described above, very little weight can be given to it. Finally, in his discharge medical report, there is no mention of any back-spinal column problems which occurred in the course of his service and from which he continued to suffer. That tends to suggest he did not consider it to be a serious injury or impairment at that time.
Even if I am wrong in my analysis of the evidence regarding Bex powders, Mr Chakir did not argue with the fact that he had back pain intermittently. The medical records indicate he may have experienced some back pain every few weeks. If that were the case, and he took Bex powders when he experienced that pain, he is highly unlikely to have consumed 250 grams of phenacetin in the four-year period 1971-1975.
In conclusion, I find, on the balance of probabilities, that the claimed consumption of Bex powders between 1971 and 1975 was not a causative factor in Mr Chakir acquiring his urolethial malignancies.
Cigarette smoking
In his claim for Rehabilitation and Compensation, Mr Chakir made no mention of cigarette smoking as a possible cause of his bladder cancer. Nor was any mention made of cigarette smoking in the letter dated 19 March 2014 when Mr Chakir sought reconsideration of the primary decision-maker’s decision. This issue appears to have arisen following Mr Chakir’s examination by Professor Fox on 29 November 2013. Professor Fox recorded that Mr Chakir commenced smoking in 1956 at the age of 22 when he joined the RAF in the United Kingdom. Professor Fox then said Mr Chakir continued smoking some 25 to 30 cigarettes a day until 1977. He calculated Mr Chakir had some 21 years of cigarette smoking at 25 to 30 per day. That was equivalent to a 28 year pack history of cigarette smoking. He had, at the time of examination, not smoked for some 36 years. In his brief report dated 29 April 2014, Mr Neerhut simply mentioned that Mr Chakir had a past history of smoking but that he had not smoked for over 40 years at that time.
Dr Sleigh, who examined Mr Chakir on 13 January 2014, recorded the social history given to him by Mr Chakir. Included in that history was that Mr Chakir was an ex-smoker, giving up smoking on the day he suffered a myocardial infarct on 6 April 1977. Dr Sleigh also reported:
He said he began smoking during his service in the RAF because of the shift work required. He smoked at least a packet of cigarettes a day from 1956 to 1977, giving a lifetime tobacco consumption of about 21 pack years.
In his witness statement made on 17 June 2014 which was taken into evidence, Mr Chakir significantly expanded his evidence regarding cigarette smoking. He said that prior to joining the RAAF, he smoked on average approximately 1 to 2 cigarettes per day. He said his cigarette smoking increased in the course of his service with the RAAF reaching about 25 cigarettes per day before he ceased smoking. Mr Chakir testified that in part, it was due to a dispute regarding rental assistance when he was first posted to Pearce in Western Australia. He said that dispute took about 12 months to resolve and it put him under great financial pressure. The result was that he increased his smoking to approximately 10 to 12 cigarettes per day. He further increased his cigarette smoking after being posted back to Victoria Barracks in Melbourne. He said he was responsible for a significant budget regarding the evaluation, purchase and distribution of educational equipment for the RAAF. He said he found those duties stressful and that he worked long hours. He smoked more, increasing his smoking to around 25 cigarettes per day because he found it helped to sooth his anxious state.
In the course of Mr Chakir’s oral evidence, he produced a different history regarding his cigarette smoking. In his evidence-in-chief Mr Chakir was asked how old he was when he joined the RAF and he said 21 ½ years. He agreed that he started smoking before joining the RAF, at a time when he was employed as a shipping clerk. His evidence was that he smoked 1 to 2 cigarettes at that time. He was then asked when he began smoking at a higher rate and he responded that occurred when he joined the RAAF. He said it was caused by work pressure.
In cross-examination Mr Chakir said that he was discharged from the RAF in 1961 and after that he commenced an office job, as an invoicing clerk. When Dr Sleigh’s evidence about smoking at least a packet of cigarettes a day between 1956 and 1977 was put to him, Mr Chakir simply said that was not correct. He said he could not afford to buy a packet of cigarettes when he started smoking and that he was careful with his money. That was before he joined the RAF. When he was referred to Professor Fox’s report regarding smoking 25 to 30 cigarettes a day, Mr Chakir simply said he did not argue with that.
In his report dated 12 December 2013, Professor Fox said that cigarette smoking does significantly increase the risk of bladder cancer. He referred to a medical text which noted that cigarette smoking is the most important factor contributing to the overall incidence of bladder cancer. Professor Fox also referred to studies carried out in the United States of America for current smokers, which indicated a significant increase in the risk of bladder cancer in the order of four-fold. He reported that there was an attenuated risk for former smokers, but the risk remained significantly elevated to two-fold. Professor Fox also referred to the SOP which he was apparently given by Mr Chakir. According to the SOP, smoking at least five pack-years of cigarettes or the equivalent in other tobacco products before the clinical onset of malignant neoplasm of the bladder, where smoking commenced at least 10 years before the clinical onset of the malignancy, is a relevant factor for determining the causal connection on the balance of probabilities.
Professor Fox noted that Mr Chakir’s smoking began long before his entry into service with the RAAF. In a supplementary report dated 29 December 2014, Professor Fox said:
However, given his smoking history, I think this would have been the predominant factor in terms of causation. There is much stronger literature in this regard.
In his oral evidence-in-chief, Mr Neerhut agreed that although Mr Chakir had ceased smoking for at least 35 years before the onset of his malignancy, and that the risk for ex-smokers diminished with time, it remained at 1 ½ to 2 times the risk for non-smokers. He said the risk did not vary whether the cancer was located in the bladder or ureter.
Mr Neerhut also said that as far as bladder cancer was concerned, the risk factor was similar to that for the significant ingestion of phenacetin while for cancer in the ureter, phenacetin was more significant. Mr Neerhut also agreed, in cross-examination, that the disease is age-related.
When determining whether there is a causal connection between an applicant’s military service and his or her claimed disease, it is not sufficient to find that the commencement of smoking or the continuation of smoking simply had a temporal connection with service (Repatriation Commission v Tuite (1993) 39 FCR 540 at 544 – 545). His Honour von Doussa J made that abundantly clear in Hawkins v Comcare (2001) 115 FCR 127 where he said, at 137 – 138:
To succeed under the 1971 Act, it would be necessary for the applicant to satisfy the Tribunal that Mr Hawkins’ employment was a contributing factor either to the contraction of the disease or to the aggravation, acceleration or recurrence of the disease. On the evidence, the disease of atherosclerosis would have been an established condition by 1971, and the continual ingestion of cigarette smoke by Mr Hawkins would have aggravated and accelerated that condition. The question is whether in those circumstances it can be said that Mr Hawkins’ employment was a contributing factor to the aggravation and acceleration of his disease.
After examining the High Court of Australia decisions in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and the application of the reasons in that case by the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, his Honour said, at 139:
In my opinion it follows from these authorities that it is not sufficient that the circumstance that aggravates or accelerates a disease merely arises in the course of the employment.… The characteristic or feature of the employment said to constitute the contributing circumstance must involve a tendency to bring about the contraction of the disease or the aggravation, acceleration or occurrence of it. It is for this reason that Kitto J in explaining the concept of employment as a contributing factor added the qualification that an incident or state of affairs to which a worker is exposed in the performance of his duties must be one to which he would not otherwise have been exposed.
The above comment obviously applies equally to causation.
The first problem with Mr Chakir’s claim that smoking was a causal factor in his acquiring urothelial malignancies is that he was already a smoker prior to enlisting in the RAAF. The second problem is that Mr Chakir appears to have changed his evidence regarding the extent of his smoking between the time of his first claim for compensation and after receiving Professor Fox’s report. He appears to have given a consistent history to Professor Fox in November 2013 and to Dr Sleigh in January 2014. That is, he smoked some 25 to 30 cigarettes a day or at least a packet of cigarettes a day between 1956 and 1977 when he gave up smoking. In the course of the first review process Mr Chakir significantly altered his evidence relating to the ingestion of phenacetin. His evidence about smoking follows the same pattern.
In the submissions made on 19 March 2014 by Mr Chakir on his own behalf, and the submissions made on Mr Chakir’s behalf by Mr Embleton in a document dated
14 May 2014, despite what Professor Fox said about smoking, both submissions are silent on this question. As for Mr Neerhut, he did not give a detailed account of
Mr Chakir’s past history of smoking, simply mentioning it and indicating Mr Chakir has not smoked for over 40 years.
However, by the time Mr Chakir’s legal representatives drafted a Statement of Facts and Contentions on his behalf, Mr Chakir had obviously briefed them that he was smoking 1 to 2 cigarettes per day at the time of his enlistment in the RAAF and that this increased due to the stress of the work he was doing when engaged by the RAAF. No attempt was made to address the fact that independently and at different points in time, Mr Chakir told Professor Fox and Dr Sleigh that he was smoking in excess of a pack (at that time usually 20 cigarettes) or in excess of a pack of cigarettes per day since 1956. Regrettably, the pattern of changing evidence is similar to that when dealing with the ingestion of phenacetin. Furthermore, Mr Chakir gave no explanation for that change.
Perhaps even more significantly in light of the cases which have dealt with service life and the causal link to smoking, the commencement of the smoking habit or a significant increase in the amount of tobacco smoked must be linked to employment activities to which Mr Chakir would not ordinarily have been exposed had he not been in the service. His explanations regarding the rental allowance dispute at Pearce and the budgetary responsibilities he carried when stationed at Victoria Barracks are, in my opinion, an inadequate explanation. Financial constraints either personal or in the work environment cannot be regarded as duties to which Mr Chakir would not otherwise have been exposed. He was already a smoker prior to enlisting in the RAAF and there can be little or no doubt about the fact that smoking is strongly addictive. I find there was nothing in his described service duties to which he would not otherwise have been exposed had he not been a member of the RAAF. His already established smoking habit did not alter significantly as a consequence of his service with the RAAF.
CONCLUSION
I have found that Mr Chakir’s recent claim as a result of urothelial carcinoma located in his ureter is, for the purposes of s. 5A of the SRC Act, the same injury as that reviewed by the Review Officer under the primary decision. It was a recurrence of the same disease located in the upper urinary tract rather than in the bladder. Accordingly, I have found that the reconsidered decision regarding the presence of urothelial malignancy in Mr Chakir’s ureter is a reviewable decision and subject to review by the Tribunal pursuant to s. 64 of the SRC Act.
Mr Chakir submitted that his urolethial malignancies were connected to his RAAF service either by reason of consumption of Bex powders to relieve lower back pain which was an accepted service condition; or resulted from his cigarette smoking which he claimed increased significantly due to the stress he experienced after enlisting in the RAAF.
I have found that Mr Chakir’s evidence relating to the consumption or ingestion of Bex powders was wholly unreliable. Other than Mr Chakir’s belated self-serving statements about the use of Bex powders, there was no objective evidence that between 1971 and 1975, at the time Bex powders contained phenacetin, a known carcinogenic, he consumed any Bex powders. Even if I am wrong about that, I have found that if Mr Chakir did ingest Bex powders during that period of time, because on his own evidence his back pain was intermittent, he is unlikely to have consumed 250 g of phenacetin in that period.
Mr Chakir’s evidence about cigarette smoking was, similarly, unreliable. There was no question that he had already acquired the smoking habit prior to enlisting in the RAAF. Prior to being made aware that smoking cigarettes was a significant risk factor for the acquisition of urothelial malignancy, Mr Chakir gave a history to two medical practitioners at different times that from 1956 to 1977 he smoked at least one packet (20 cigarettes) per day. Upon becoming aware of the significance of smoking and its relationship to his malignancies, his evidence about cigarette smoking changed significantly. In any event, the reasons given by Mr Chakir for his increase in smoking after joining the RAAF are not such that they are matters to which he was exposed in the performance of his service duties and which he would not have experienced had he not been a member of the service. In other words, there is no obvious connection to his service duties and an increase in the level of cigarette smoking, if that is what happened.
Accordingly, I find that the decision made by the Review Officer as delegate of the MRCC on 2 June 2014 denying Mr Chakir compensation under the SRC Act was correct. I affirm that decision.
I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ..............................[sgd]..........................................
Associate
Dated 11 November 2015
Dates of hearing 5 - 7 August 2015 Date final submissions received 18 September 2015 Counsel for the Applicant Ms Z Maud Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr R Seit Solicitors for the Respondent Sparke Helmore
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