Davison and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 18
•6 January 2017
Davison and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 18 (6 January 2017)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/3232
Re
Raymond Davison
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 6 January 2017 Place Brisbane I affirm the decision under review.
...............................[sgd].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for disease – coronary heart disease - Compensation (Commonwealth Government Employees) Act1971 applicable - employment of the applicant by the Commonwealth not a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence of the disease – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 124(1A)
Compensation (Commonwealth Government Employees) Act1971 (Cth) ss 2, 5, 29CASES
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Crathern and Military Relation and Compensation Commission [2006] AATA 1089REASONS FOR DECISION
Deputy President Dr P McDermott RFD
6 January 2017
INTRODUCTION
Mr Raymond Davison (“the applicant”) seeks a review of the decision of the Military Rehabilitation and Compensation Commission (“the respondent”) dated 4 June 2015. On that date, the respondent affirmed its earlier decision dated 4 November 2014 to disallow the applicant’s claim for rehabilitation and compensation in respect of a coronary artery disease under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
BACKGROUND
The applicant is a 62 year old male. On 25 January 1977, he enlisted with the Army Reserves. On 30 November 1989, he was medically discharged.[1]
[1] Exhibit A, T-Documents, T2 and T34.
On 9 December 2013, the applicant lodged a claim for rehabilitation and compensation under the Act in respect of a coronary artery disease. In the claim form, the applicant stated that he first noticed the disease in 1989.[2] When asked how the injury occurred, the applicant stated in the claim form:[3]
SMOKING WHICH COMMENCED AND INCREASED DURING SERVICE
[2] Exhibit A, T-Documents, T13 at p. 46.
[3] Ibid at p. 47.
In a letter dated 24 March 2014, a delegate of the respondent advised the applicant that she would be unable to accept liability for coronary artery disease because his entry medical paperwork recorded that he was smoking 20 cigarettes per day prior to enlistment.[4]
[4] Exhibit A, T-Documents, T18.
In a letter dated 9 April 2014, the applicant stated that he wished to withdraw his claim for coronary heart disease due to smoking. In that letter he stated that:[5]
At no time did I assert to the RSL Advocate that my Coronary Heart Disease was due to smoking and I am bewildered as to how she lodged the claim asserting that smoking was the cause.
[5] Exhibit A, T-Documents, T19 at p. 57.
The applicant also stated in that letter:[6]
On your advice, I intend to submit a new claim, Coronary Heart Disease (Coronary Infarct with Ventricular Septal Defect) brought on as a result of stress, shock, physical injuries, pain and strain from being assaulted outside the Goodna RSL whilst on duty on 17 SEP (sic) 88. This event was the precursor to requiring open heart surgery and the subsequent second Coronary Infarct suffered also whilst on duty at Courses Camp with QUR on 04 JUL (sic) 89.
It appears that, in light of this statement, the applicant’s claim was considered in light of the new claimed cause.
[6] Ibid at p. 58.
On 4 November 2014, a delegate of the respondent disallowed the applicant’s claim. The basis for the decision was that the delegate was not satisfied that the applicant’s disease was caused by his military service.[7]
[7] Exhibit A, T-Documents, T31.
In a letter dated 21 January 2015, the applicant sought a reconsideration of the decision to disallow his claim.[8] That decision was affirmed by a delegate of the respondent on 4 June 2015.[9]
[8] Exhibit A, T-Documents, T32.
[9] Exhibit A, T-Documents, T33.
On 3 July 2015, the applicant lodged an application for a review of the decision of the delegate of the respondent dated 4 June 2015.[10]
[10] Exhibit A, T-Documents, T2.
FACTS
The applicant gave evidence about an incident which occurred on 17 September 1988. The applicant and two corporals were required as part of their duties to attend a meeting with the catering manager of the Goodna Returned and Services League (“the RSL”) to finalise the catering arrangements for a function to be held later that week.
A transport driver was assigned to take the applicant and the two corporals to the meeting held at the RSL. They were in “army greens” uniform at that time.[11] One of the corporals was dropped off at the Royal Mail Hotel and requested that the driver pick him up on the return trip.
[11] Exhibit A, T-Documents, T24 at p. 63.
The applicant and the remaining corporal attended the meeting. The applicant and the remaining corporal consumed three pots of XXXX Gold beer at the RSL.
When the applicant exited the RSL, a group of six men surrounded him. The applicant was “punched to the face and body a number of times by several members of this group”.[12] The applicant stated in cross-examination that he could not specifically recall being kicked and that he was not lying down at any point during the incident. The remaining corporal departed to get help.
[12] Ibid at p. 64.
The attackers ceased attacking the applicant when a person arrived and told them that they “had the wrong soldier” and that the person they were looking for was hiding in the bushes at the Royal Mail Hotel.
The driver collected the applicant and the corporal ten minutes after the attack. They were unable to locate the corporal who was dropped off at the Royal Mail Hotel. The applicant was later told by that corporal that he had been engaged in an altercation at the Hotel and the other party to the altercation had stated that “he was going to get his football mates and they would give him a hiding”.[13]
[13] Exhibit A, T-Documents, T16 at p. 53.
The applicant was sent to the RAP for treatment and then transferred to 1st Military Hospital Yeronga.[14] The service medical records refer to a head injury, a swollen nose and left eye.[15] They also record that the applicant had small superficial bruising on the right lateral chest.[16]
[14] Ibid at p. 53.
[15] Exhibit A, T-Documents, T35 at p. 110-113.
[16] Ibid at p. 111.
The applicant was discharged from hospital the following morning.
The applicant gave evidence that on 20 September 1988 he woke from his sleep with chest pain. The pain continued for at least 30 minutes and was treated with aspirin.
The inpatient progress notes recorded at the Toowoomba Hospital on 30 September 1988 record that the applicant stated that he had an episode of chest pain a week earlier and an episode of numbness in the left hand on the following day.[17]
[17] Exhibit E, Inpatient progress notes extract dated 30 September 1988.
On 30 September 1988, the applicant attended the Toowoomba Hospital where he was diagnosed with myocardial infraction and a loud heart murmur was heard.[18]
[18] Ibid.
On 5 October 1988, the applicant was transferred to the Prince Charles Hospital where the inferior myocardial infarction was diagnosed with this having led to rupture the interventricular septum and formation of a ventricular septal defect with a 3:1 shunt resulting.[19]
[19] Exhibit D, Prince Charles Hospital records; Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 2.
On 11 October 1988, the applicant underwent cardiac surgery and a reversed saphenous vein graft was implanted to the distal right coronary artery and the septal defect was closed.[20]
CONTENTIONS
[20] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 2.
Applicant’s contentions
The applicant contends that he is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of coronary artery disease. He contends that his myocardial infarction resulted from a combination of factors associated with the incident which occurred on 17 September 1988.
The applicant contends that the blunt trauma chest injury suffered combined with the stress, strain and shock of being assaulted was the precipitating event and catalyst that triggered the myocardial infarction suffered. He contends that the mechanism of single artery coronary heart disease was the result of forces associated with a blunt trauma to the chest rupturing atherosclerotic plaque causing the onset of an acute myocardial event in the following days. He contends that the stress, strain and shock experienced as a result of the assault had a contributory role as an additional catalyst to the mechanism of plaque rupture and coronary thrombosis following blunt chest trauma.
Respondent’s contentions
The respondent contends that the neither the onset, aggravation, exacerbation nor the acceleration of the applicant’s aggravation of his coronary condition was contributed to by his former employment. The respondent contends that the contention that the applicant’s condition is linked to the incident on 17 September 1988 is not raised above the realms of possibility. The respondent contends that weight should be given to the expert opinion of Professor Michael O’Rourke, who categorically rejects the applicant’s contentions.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act states that the respondent is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
Section 124(1A) of the SRC Act states that a person is entitled to compensation under the SRC Act in respect of an injury, loss or damage suffered before the commencing day of the SRC Act if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the Compensation (Commonwealth Government Employees) Act1971 (Cth) (“the 1971 Act”).
Section 5 of the 1971 Act provides the following definitions:
"disease" includes any physical or mental ailment, disorder, defect or
morbid condition, whether of sudden onset or gradual development;
…
"injury" means any physical or mental injury and includes the aggravation,
acceleration or recurrence of any physical or mental injury but, subject to
section 29, does not include a disease or the aggravation, acceleration or
recurrence of a disease;
Section 29 of the Act states:
(1) Where-
(a) an employee contracts a disease or suffers an aggravation,
acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a
contributing factor to the contraction of the disease or to the
aggravation, acceleration or recurrence, as the case may be, whether
or not the disease was contracted or the aggravation, acceleration or
recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If-
(a) the death of the employee;
(b) a loss to the employee of a kind referred to in section 39 or 40;
(c) facial disfigurement to the employee;
(d) a loss to the employee of the sense of taste or smell; or
(e) the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence
of the disease, or the employee obtained medical treatment in relation to the
disease, or the aggravation, acceleration or recurrence of the disease, as the
case may be, then, for the purposes of this Act, unless the contrary intention
appears-
(f) the contraction of the disease, or the aggravation, acceleration or
recurrence, as the case may be, shall be deemed to be a personal
injury to the employee arising out of the employment of the employee by
the Commonwealth; and
(g) the date of the death, the date of the loss, the date of the disfigurement,
the date of the commencement of the incapacity or the date on
which the medical treatment was first obtained, whichever is the earlier,
shall be deemed to be the date of the injury.
CONSIDERATION
The 1971 Act is applicable because the applicant suffered an injury, loss or damage before the commencing day of the SRC Act. Professor O’Rourke considered that the onset of coronary occlusion by thrombus of the right coronary artery occurred around 23 September 1988 when the applicant first observed pain in the chest.[21] The commencement date of s 14 of the SRC Act is 1 December 1988.[22]
[21] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 5.
[22] See Safety, Rehabilitation and Compensation Act 1988 (Cth) s 2; Gazette 1988, No. S196.
The applicant “suffers from coronary atherosclerosis causing ischemic heart disease, myocardial infarction and ventricular septal defect in 1988”.[23] I am satisfied that the applicant’s condition is a “disease” within the meaning of s 5 of the 1971 as it is a physical ailment, disorder, defect or morbid condition.
[23] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 4.
I am required to determine whether the employment of the applicant by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence.
Unlike the SRC Act, the 1971 Act does not specify the degree to which the contraction or aggravation of a disease must have been contributed to by the claimant’s employment for the disease to be compensable. Sweeney ACJ, Sheppard and Foster JJ observed in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 that:
The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the [1971 Act], where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
I am not satisfied on the balance of probabilities that there is a causal connection between the applicant’s military employment and the onset, aggravation, exacerbation or acceleration of the applicant’s aggravation of his coronary condition. In coming to this conclusion I have had regard to the expert opinion of the cardiologist, Professor Michael O’Rourke, who completed a report on 7 December 2015 and a supplementary report on 14 July 2016. Professor O’Rourke also gave oral evidence at the hearing.
Professor O’Rourke gave the opinion that the applicant’s “coronary atherosclerotic heart disease had been developing throughout his adult life, and largely as a consequence of his heaving smoking habit, estimated by Dr. Ayers as up to 50 pack-years at age 35. This was also predisposed to by familial factors (judged by family history), hypertension, mild hypercholesterolemia, currently on treatment with a statin drug, and by obesity”.[24]
[24] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 4.
It was not in dispute that the applicant had smoked cigarettes prior to 17 September 1988. The applicant gave evidence that he ceased smoking after that date. He also stated that he smoked somewhere between 15 to 20 cigarettes per day prior to that date. This is consistent with some medical reports and in conflict with others. For example, Dr Peter Cain, cardiology registrar, recorded that the applicant smoked 40 cigarettes a day for 20 years until 1989.[25] The applicant put to Professor O’Rourke in cross-examination that Dr Ayers’ estimate that he smoked up to 50 pack-years was incorrect. It was also put to Professor O’Rourke that the applicant had ceased smoking after 17 September 1988, to which he responded:[26]
Well, it’s not clear then as to whether he did smoke or not after the assault but I don’t think that changes the substance of my answer to this. The effect of cigarette smoking seemed to persist over a longer period of time and certainly over weeks and then they do wear off as time goes on, particularly with respect to coronary disease.
[25] Exhibit M, Medical report prepared by Dr Cain dated 8 February 2001.
[26] Transcript of proceedings at p. 38.
Professor O’Rourke considered that insipient diabetes mellitus may also have contributed to the applicant’s coronary atherotic disease.[27] It was brought to his attention in cross-examination that the applicant was not diagnosed with diabetes until 2011, to which he responded by conceding that the diabetes condition “possibly” contributed (as opposed to “probably”) and added:[28]
… I was thinking of the conditions which (precede) diabetes mellitus which are sometimes referred to as carbohydrate intolerance.
[27] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 4.
[28] Transcript of proceedings at p. 7.
There is no expert medical opinion which considers that the onset, aggravation, exacerbation or acceleration of the applicant’s aggravation of his coronary condition was, on the balance of probabilities, contributed to by his military employment.
Dr Jason Denman, staff specialist physician, opined in an undated report that the applicant had pre-existing coronary atherosclerosis. He also noted that there is a temporal relationship between the assault, the onset of the applicant’s chest pain and the myocardial infarction. He states that it is “plausible” but “cannot be proven” that the incident which occurred on 17 September 1988 and the associated stress rendered the coronary plaque unstable, which the contributed to the myocardial infarction and its complications.[29]
[29] Exhibit A, T-Documents, T11.
Dr Anil Prabhu, cardiothoracic surgical registrar, in a report dated 19 August 2014 gave the opinion that it is “possible” that physical and emotional trauma arising from the incident which occurred on 17 September 1988 could have precipitated the myocardial infarction in the setting of a pre-existing coronary artery disease.[30]
[30] Exhibit A, T-Documents, T27.
In Crathern and Military Relation and Compensation Commission [2006] AATA 1089, Member Webb explained at [10] that the balance of probabilities requires more than “a mere possibility or conjecture”. I do not consider that the causal link identified in the opinions of Dr Denman or Dr Prabhu exceeds that of a mere possibility or conjecture.
I have given great weight to the opinion of Professor O’Rourke who gave the opinion that there was no causal relationship between the incident on 17 September 1988 and any subsequent onset or aggravation of the applicant’s coronary disease.[31] He commented that:[32]
In the reports on file, myocardial and coronary artery rupture are associated with death from high speed accidents. Such is not an etiological factor in this man, and the ventricular septal defect complication was clearly caused by myocardial infarction.
[31] Exhibit J, Medical report prepared by Professor O’Rourke dated 7 December 2015 at p. 6.
[32] Ibid at p. 6.
Professor O’Rourke considered the period of time between the incident and the onset of chest pain was too large to indicate a relationship between the incident and the applicant’s myocardial infarction. He stated that:[33]
Unaccustomed exertion, or unaccustomed stress can precipitate onset of myocardial infarction, but this occurs almost always at the time of the stress or exertion, or within the first hour after. In this case, there was no chest pain or discomfort to suggest myocardial ischemia or infarction until 6 days after the episode of stress.
[33] Ibid at pp. 5-6.
Professor O’Rourke considered that the temporal relationship between the incident which occurred on 17 September 1988 and the onset of chest pain was a “coincidence”.[34] Professor O’Rourke stated that:[35]
A finite time must be accepted for an event to be associated with another event if a causal relationship is to be credibly argued. Some might accept one hour for the relationship between trauma and infarction. The Gulder literature review excluded any patient when there was a latent period (i.e. pain-free) between trauma and myocardial infarction). For the relationship between unaccustomed exercise and infarction, the time limit is just one hour. For the Gulder paper, account was taken only of young persons without risk factors of coronary disease and in whom there had been no latent period effects of the two.
[34] Ibid at p. 6.
[35] Exhibit K, Supplementary medical report prepared by Professor O’Rourke dated 14 July 2016 at p. 2.
In cross-examination, Professor O’Rourke was referred to an event on 20 September 1988 where the applicant was woken from his sleep and consequently had chest pain for at least 30 minutes which was treated with aspirin. It was then put to Professor O’Rourke that this event may have been related to a cardiac event arising from the incident on 17 September 1988. Professor O’Rourke responded:[36]
…I am uncomfortable with the cardiac event. I think the chest pain as described was thought to be due to the chest injury or costochondritis and the aspirin was used as an analgesic to relieve the pain. And chest pain from an injury or from ribs or broken ribs or costochondritis is very likely to continue on for quite some time and to cause pains which are affected by movement and are readily relieved by aspirin.
[36] Transcript of proceedings at p. 8.
CONCLUSION
I am not satisfied that the incident which occurred on 17 September 1988 or any other aspect of the applicant’s employment with the Commonwealth was a contributing factor to the contraction of coronary heart disease or to the aggravation, acceleration or recurrence of that disease. The expert opinion of Professor O’Rourke rejects that such a connection exists. Moreover, there is no cogent evidence before the Tribunal that it is more likely than not that the applicant’s employment with the Commonwealth was a contributing factor to the contraction of coronary heart disease or to the aggravation, acceleration or recurrence of that disease.
DECISION
I affirm the decision under review.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
..................................[sgd]......................................
Associate
Dated: 6 January 2017
Date(s) of hearing: 21 and 22 July 2016 Date final submissions received: 19 September 2016 Advocate for the Applicant: Mr P Ruge Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Causation
-
Procedural Fairness
-
Statutory Construction
-
Appeal
0
2
2