Davidson and Military Rehabilitation and Compensation Commission
[2006] AATA 451
•24 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 451
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/176
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN ROBERT DAVIDSON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date24 May 2006
PlaceBrisbane
Decision The decision under review is affirmed.
..........[Sgd]........
K S Levy
Member
CATCHWORDS
WORKERS COMPENSATION - claim of defence caused aggravation of pre-existing conditions of asthma and allergic rhinitis - exposure to solvents – no loss of income under s19 of Safety Rehabilitation and Compensation Act – decision affirmed
Safety Rehabilitation and Compensation Act 1988 ss 16, 19
REASONS FOR DECISION
24 May 2006 Dr KS Levy, Member
Introduction 1. Allan Davidson served in the Australian Regular Army from 28 March 1961 to 31 May 1974 (T3 folio 9). He claims that service in the Army subjected him to an environment of cold climates, solvents and pollens, which have resulted in his ongoing asthma and related complaints.
2. He made a claim on 4 July 1975 to the Commonwealth Employees Commission (T4). On 2 July 1976 the delegate of the Commissioner for Employees Compensation determined that he suffered “aggravation of a pre-existing condition of asthma and allergic rhinitis”. It was also determined that compensation for this condition continued until no later than 11 February 1976 and that there was no entitlement for that condition after that date (T13).
3. On 7 February 2002 the applicant asked that his claim be re-opened. On 11 February 2002, the respondent rejected his application as being well outside the prescribed time limits and that there were no extenuating circumstances in existence. Subsequently, the Administrative Appeals Tribunal set aside that decision and deemed it to be lodged within time and remitted it back to the Commission for further consideration.
4.On 25 February 2005, the Commission determined that:
(i)Liability is confirmed for aggravation of a pre-existing condition of asthma and allergic rhinitis;
(ii)From 11 February 1976 to the date of that decision, no entitlement existed under section 16 or section 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
Issues
5.The following issues are to be determined by the Tribunal:
(i)Did the Applicant’s military service aggravate a pre-existing condition of asthma and allergic rhinitis.
(ii)Was the military service a cause of his asthma condition (that is did military service cause his present conditions rather than aggravate a pre-existing condition)?
Legislation
6.The following statutory provisions are relevant:
“Compensation in respect of medical expenses etc
16 (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment
……
Compensation for injuries resulting in incapacity
19 (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation…”
Evidence
7.The following documentary evidence was admitted:
· Exhibit 1 – the Tribunal documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975;
· Exhibit 2 – Supplementary Tribunal documents;
· Exhibit 3 – Statement of the Applicant, Alan Davidson dated 19 May 2005;
· Exhibit 4 – Report of Dr Heiner dated 13 February 2006
· Exhibit 5 – Report of Dr Edwards dated 7 July 2005
· Exhibit 6 – Report of Dr Edwards dated 21 July 2005
· Exhibit 7 – Report of Dr Edwards dated 27 October 2005
· Exhibit 8 – Letter from Blake Dawson Waldron, Lawyers dated 3 June 2002 detailing qualifications of Dr Miles Murphy
· Exhibit 9 – Documents from Prince Charles Hospital (1978)
8. Oral evidence was also admitted from the Applicant, Dr Maurice Heiner, specialist in internal medicine and thoracic medicine, and from Dr Robert Edwards, Thoracic and Sleep Physician.
9. The Applicant is 62 years of age, having been born on 8 January 1944. He served for 13 years in the Army and was discharged at his own request, holding the rank of Corporal. He commenced an apprenticeship as a radio technician prior to joining the Army and did a further radio technician’s trade course whilst in the Army. He joined the Army at 17 years of age and completed recruit training at Kapooka. The applicant said there was not sufficient warm clothing during that course and he contracted bronchitis. He was hospitalised for three days as a recruit.
10. Subsequently, he was posted to the School of Signals at Balcombe for about a year to complete his radio technician’s course and was then posted to 6 Signal Regiment at Watsonia Barracks Melbourne. He remained there for four years, and was later posted as a Transport NCO to Cabarlah near Toowoomba. After a couple of years there, he was re-posted to Victoria and subsequently discharged on medical grounds.
11. In all of those postings he complained of chest infections, asthma and other conditions. There were also referrals for psychological and/or psychiatric conditions. However, there was an extensive record of asthma, rhinitis and nasal polyps. At one stage, he was posted to an area of Victoria that was a farming district and it was claimed that dust and pollens in that area caused asthma. He was also hospitalised again for a brief period as a result of that service.
12. In a subsequent posting as a Transport NCO, he did driving tasks but also came into contact with solvents. The applicant mentioned that he had frequent contact for some time with carbon tetrachloride, which was used in fire extinguishers. When he was in that posting, he also came into contact with range fuel, fertilizers and other fuels.
13. The applicant contends that his contact with these substances have caused and/or aggravated his asthmatic condition and that as a result, he has an extensive medical record within the Army. Exhibit 2 is ample evidence of that. Dr Maurice Heiner provided a report dated 13 February 2006. In his opinion, ‘’high humidity, dust, pollen, various fumes, vapours and deep breathing precipitate symptoms. This is consistent with a history of asthma. …..In my opinion his Army service did contribute materially to the development of asthma”(Exhibit 4, page 3). In oral evidence, Dr Heiner said that asthma would not necessarily cease once exposure to the fumes ceased. In particular, he stated that solder could trigger asthma which otherwise would have remained dormant. In cross-examination, Dr Heiner indicated that he was aware that the applicant had smoked a pipe for five years. He thought pipe smoking was a significant factor in asthma. However, he was not aware of the records of the Prince Charles Hospital where, in 1978, the applicant indicated that his mother had asthma, one daughter was said to be asthmatic and that he was reported to have smoked a pipe even as far back as 1978. Dr Heiner agreed this was important history. Dr Heiner also was unaware of a report by Dr Miles Murphy in 1976 where there appeared to be no history provided of asthma.
14. Dr Heiner thought that soldering fumes was an important factor and the history of contact with those fumes might indicate how severe the asthmatic condition might develop. In discussing whether the development of the condition was a possibility or a probability by having contact with solder fumes, Dr Heiner said that it was difficult to paint a clear picture for any person. He said it was “between a possibility and a probability”. He had seen some people affected by soldering who had been exposed to it for some years, whereas others were not so affected. He concluded that it depends on a number of factors - the person; how unstable the asthma is; whether the person worked in a ventilated area; and whether the person wore a mask. In relation to the affect of the emotional stress in bringing on an asthma attack, Dr Heiner said it was possible although, if the person had stable asthma, it was unlikely to be brought on by emotional stress. If the person had unstable asthma, then even deep breathing or quick breathing might accelerate it.
15. The applicant also submitted that the report by Dr Miles Murphy dated 12 February 1976 highlighted the history of asthma conditions during his military service. However, that report concluded: “It is quite likely that damp climatic conditions aggravate the condition and tend to precipitate attacks but could not be regarded as a cause of the disease.”
16. The records of the Prince Charles Hospital from 1978 show the applicant’s family history, previous illnesses, use of alcohol and drugs and a history of present illnesses. In that history, it showed that the applicant has three children, of which one was asthmatic. It also showed the applicant smoked a pipe at that time and that the patient stated that he had been asthmatic since the age of two years. The applicant disputed some of this information. He said that he was unconscious at the time and the information must have been provided by his ex-wife.
17. Evidence from Dr Robert Edwards included reports dated 7 July 2005, 21 July 2005 and 27 October 2005. Dr Edwards stated that his reports were made on the basis there was no previous history of asthma. He said it was routine to collect past history of asthma, but the applicant did not provide such information. Dr Edwards concluded that it was coincidental that the applicant had a severe respiratory infection which precipitated his asthma early in his Army service. He thought that could have occurred whether he was in the Army or not. However, having developed asthma, Dr Edwards stated that
“…..it is possible that some of the soldering fumes that he was exposed to whilst working in the signal core, could have contributed to exacerbations of asthma but they did not appear to aggravate the overall severity of the asthma. He was treated for a long time with medication relief only and claims he did not start regular preventative therapy until about five years ago. It is also noted that he has been a smoker and this may have contributed to some degree of chronic bronchitis.
In summary Mr Davidson suffers from asthma, which I believe occurred when he was serving in the Army following a respiratory infection but is not directly related to Army service. The asthma should be reasonably controlled, if he were to continue to use regular preventative therapy in the form of Seretide.” (Exhibit 5, page 5)
18. In Dr Edwards’ final report of 27 October 2005, he refers to his second report and the fact that the applicant smoked pipe tobacco. He concluded: “the amount of piped tobacco that he smoked is equivalent to 27 pack years of tobacco smoking which equates to heavy tobacco consumption.” (Exhibit 7, page 2)
19. There is some evidence of a family history of asthma and of Mr Davidson having asthma as a child. It appears that there was no declaration of any past history of asthma at the time of the applicant’s enlistment medical examination (Exhibit 2 – ST1, page 1). However, there is contradictory evidence which seems to have been provided to the Prince Charles Hospital. The respondent suggests the applicant is not a credible witness. The applicant’s response is that at times he has a poor memory and that some of the inconsistent evidence was provided by his wife to the Prince Charles Hospital in 1978. There are also some suggestions in the applicant’s Army medical records of a mild personality disorder (ST1, folio 97 and psychological problems. Whether these conditions contribute to the consistency of evidence is not clear. However, the inconsistency does create some disadvantage for Mr Davidson in this respect.
20. The Tribunal finds, as a matter of fact, that the applicant did have some history of asthma prior to his enlistment. The Tribunal accepts Dr Edwards view that a respiratory infection initiated asthma during recruit training. That earlier history is now subject to more recent medical reports as well as patterns of symptoms or behaviour by the applicant which were not then present.
Is the applicant’s symptomatology ongoing and is it related to his military service?
21. There is clear evidence of Mr Davidson having asthma and bronchial conditions in his military service. Since he was discharged from the Army, he has worked continuously as a bus driver or for various government departments and his asthma has not prevented him from working. The record shows that the reason for him not working at present is the fact that he receives a pension in order that he can look after his wife, who has been disabled by a stroke. Previously, the department had accepted liability for asthma and allergic rhinitis and in the light of the history and nature of Mr Davidson’s condition, the Tribunal accepts that diagnosis and that appropriate recognition has been accorded by the department. The Tribunal finds that the applicant is not presently incapacitated for work because of military service and is not therefore eligible for compensation under section 19.
22. The other relevant question here is whether the applicant has a continuing problem of asthma or allergic rhinitis which is attributable to his military service. Dr Miles Murphy was a specialist in internal medicine and neurology and he found in 1976, that the damp conditions in which Mr Davidson worked in the 1960s, whilst in the Army, were likely to have aggravated his condition, but it could not be regarded as a cause of the disease. He further stated that it could not be regarded as creating any permanent impairment.
23. The assessment of whether he has a continuing problem at the current time and whether it is related to military service must be assessed against the conflicting evidence of Dr Heiner and Dr Edwards. Dr Heiner, in his report, attributed the asthma condition to military service. However, in oral evidence, he stated he was unaware of the pipe smoking history of the applicant and said that this was a significant factor in asthma. However, he also said that whether solder fumes and other environmental factors from military service affected the applicant currently would probably depend on whether Mr Davidson’s asthma was stable or unstable. If he had stable asthma, then it was unlikely it might be affected by other factors such as emotional stress. If it was unstable asthma, then it would more likely be affected by those factors. Dr Heiner said that solder was a ‘sensitiser’ not an ‘irritant’.
24. Dr Edwards had the opposite view. He said that soldering is an ‘irritant’ and not a ‘sensitiser’. Based on this definition, he would expect the asthma to get better after the fumes stopped unless the person who had been subjected to years of heavy exposure. However, he thought that solder certainly could cause a person’s asthma to become unstable, but once the subject was removed from that environment he would expect that the asthma would settle down. He said it was possible that it could continue throughout a person’s life but only if the asthma was unstable. In his opinion, the asthma would stablise once the “irritant” was removed
25. Taking account of all the evidence, the Tribunal has determined that the applicant has a continuing problem of asthma, but that it is not related to his military service. The applicant’s work history since leaving the Army has been noted. The Tribunal also noted Dr Edwards’ opinion that the applicant’s pipe smoking would be more likely to have caused his present condition than any previous affected solvents or other irritants. In brief, Dr Edwards said that the applicant had now smoked the equivalent of 27 packet years’ of tobacco, which he said was heavy tobacco consumption. I accept Dr Edwards’ opinion in this case as being preferable to that of Dr Heiner and that the factors which aggravated the applicant’s asthma during military service had subsided, but that it is currently aggravated by his pipe smoking, a pattern which is unrelated to military service.
26. The applicant’s case in these proceedings can only succeed if he can attribute the origin of his ongoing asthma (any ongoing medical condition or incapacity) to his military service.
27. I am satisfied that these claims cannot reasonably be attributed to his military service, given the evidence of Dr Edwards and the other variables affecting h is condition, such as his pipe smoking habit. There is not at this time therefore, evidence to justify a need for medical treatment and no evidence of incapacity, which can be directly related to his military service.
28. This means that liability is accepted for aggravation of a pre-existing condition of asthma and allergic rhinitis but that since 11 February 1976, there is no reasonable need for medical treatment which is related to the exigencies of his military service. Consequently, there is no present entitlement to compensation under section 16 or under section 19 of the Act.
29. The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member.
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 4 April 2006
Date of Decision 24 May 2006
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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