Flanagan and Repatriation Commission

[2011] AATA 425

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 425

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5810

Veterans' Appeals DIVISION		)
Re		Brian Flanagan

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey and Dr Tony Austin, Member

Date of Decision                 17 June 2011

Date of written reasons    21 June 2011

Place  Sydney

Decision

1. The Tribunal sets aside the decision under review in relation to the applicant’s chronic bronchitis and remits the matter to the Commission for assessment.

2. The Tribunal affirms the decision under review in relation to the applicant’s emphysema.

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

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – exposure on service to wood dust - chronic bronchitis and emphysema – whether wood dust a respiratory tract irritant – meaning of “another respirable agent which causes comparable tissue damage” – decision under review concerning chronic bronchitis set aside – decision concerning emphysema affirmed

Veterans Entitlements Act 1986 s 120   

REASONS FOR DECISION

21 June 2011 Senior Member Jill Toohey and
Dr Tony Austin, Member    

1.      These written reasons reflect reasons delivered orally at the conclusion of the hearing on 17 June 2011. 

Background

2.      Mr Brian Flanagan served in the Royal Australian Air Force from August 1981 to January 1996.  His service is eligible defence service for the purposes of the Veterans Entitlements Act 1986 (the Act).

3.      Mr Flanagan suffers from chronic bronchitis and emphysema which he says are related to his service because of his exposure to wood dust throughout his service.

4.      The Repatriation Commission (the Commission) accepts that Mr Flanagan suffers from chronic bronchitis and emphysema but disputes that his conditions are related to his service.  The Veterans Review Board has affirmed that decision.

Exposure to wood dust

5.      Mr Flanagan is a carpenter by trade.  He undertook his apprenticeship between 1963 and 1968.  He says that, during this period, he had some exposure to wood dust but it was not intense or for prolonged periods. 

6.      Between 1969 and 1981, Mr Flanagan worked as a carpenter for employers all around Australia.  He worked outdoors, doing mostly residential building work.  He had some exposure to wood dust but, because he was mostly outdoors, it was not for prolonged periods. 

7.      During his service from 1981 to 1996, Mr Flanagan worked as a carpenter.  Other than the first three months of his service, when he was on training, he says he was exposed to wood dust every day during his service at RAAF bases at Amberley in Queensland, Regents Park in New South Wales, Tindal at Katherine in the Northern Territory, and Williamtown in New South Wales.

Medical history

8.      During a routine medical examination in 1988, Mr Flanagan learned that he had abnormal lung function and reduced lung capacity.  In about 1990, he found he was experiencing shortness of breath and a cough.  In about 1992, he was told he may have emphysema and chronic bronchitis.  Over the years, his shortness of breath has become worse and is now severe.

9.      Mr Flanagan has been a heavy smoker for many years.  There is clear medical evidence linking his emphysema to his smoking.  It is not contended that his smoking is related to his service.  His counsel concedes there is insufficient evidence to support a finding that his emphysema is related to his service.  We agree and affirm the decision under review insofar as it concerns Mr Flanagan’s emphysema.

The issues

10.     We have to decide whether Mr Flanagan’s chronic bronchitis is related to his service.   

11.     The standard of proof is that of reasonable satisfaction: s 120 (4) of the Act.

Statement of Principles

12.     The relevant Statement of Principles (SOP) is No 31 of 2004: Chronic Bronchitis and Emphysema. 

13.     Clause 2 (b) of the SOP defines chronic bronchitis as:

a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.

14.     It is not in dispute that Mr Flanagan has chronic bronchitis as defined in the SOP. 

15.     For Mr Flanagan’s claim to succeed, at least one of the factors in clause 5 of the SOP must be related to his service.  He relies on factor 5 (b):

being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious insult to the lower respiratory tract, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema;

16.     It is not in dispute that Mr Flanagan has signs and symptoms of acute and serious insult to the lower respiratory tract.  It is not in dispute that he was exposed to wood dust while working as a RAAF carpenter within the ten years immediately prior to the clinical onset of his chronic bronchitis in the early 1990s.  His application turns on the meaning of a respiratory tract irritant in factor 5 (b).  Clause 8 defines a respiratory tract irritant as:

(a)       mustard gas; or

(b)       Lewisite; or

(c)       chlorine gas; or

(d)       phosgene; or

(e)       phthalic anhydride; or

(f)        anhydrous ammonia gas; or

(g)       another respirable agent which causes comparable tissue damage;

Consideration

17.     Whether or not dust is a respiratory tract irritant turns on the meaning of another respirable agent which causes comparable tissue damage in Clause 8 (g).  The question raised is: “comparable to what”? 

18.     The SOP itself offers no guidance on the construction of the definition and there are not, to our knowledge, any authorities or other Tribunal decisions on point. 

19.     One interpretation is that the phrase “another respirable agent which causes comparable tissue damage” requires the respirable agent to cause tissue damage comparable to all of the agents listed in the definition.  That interpretation would require there to be a form of tissue damage common to all the agents listed.

20.     An alternative interpretation is that it is sufficient to meet the definition if an agent causes tissue damage comparable to one or more of those listed. 

21.     In our view, the language of the definition and the medical evidence favours the latter interpretation.

22.     The definition itself comprises a number of alternatives.  There is no obvious connection other than, by implication, that they all cause tissue damage.  However, nothing in 8 (g) requires a form of tissue damage comparable to all agents listed.  Significantly, in our view, the medical evidence indicates that there is no tissue damage common to all.  It would seem to follow that there can be no tissue damage comparable to all.

23.     There is limited medical evidence before the Tribunal but there are four reports from Professor David Bryant, Associate Professor of Medicine at St Vincent’s Clinic, and two reports from Professor David Barnes, Clinical Associate Professor at the University of Sydney and consultant respiratory and sleep physician.  Neither was called to give evidence and we have had to rely on their written reports.

24.     Professor Barnes’ report of 2 September 2010 shows that he was specifically asked whether, in his opinion, wood dust fits in the definition of respiratory tract infection in the SOP.  He responded:

In my opinion wood dust does fit in with the definition of respiratory tract irritant in that it causes not only symptoms of each condition (ie. cough, wheeze and dyspnoea) but also objective evidence of bronchial inflammation (on histopathology) and objective evidence if airflow limitation (based on measurements of lung function).  There is clear evidence that wood dust can cause both asthma and chronic bronchitis by being a respiratory tract irritant.  

25.     The fact that wood dust may be a respiratory tract irritant does not answer whether it is of the kind required by the SOP.  However, in a further report, dated 16 December 2010, Professor Barnes summarises the pulmonary effects of each agent listed in the definition as follows: 

Mustard gas: apart from the severe skin trauma that this agent causes, the pulmonary effects include both bleeding and blistering of the respiratory tract mucosa, as well as pulmonary oedema. In the longer term this agent significantly increases risk of cancer.

Lewisite: this organoarsenic compound is both a blisteragent and lung irritant. The lung effects mainly relate to pulmonary oedema.

Chlorine gas: the pulmonary effects of exposure to this agent are mostly pulmonary oedema, and to a lesser extent obstruction of small blood vessels by thrombi.

Phosgene: this poison gas used in WWI caused both pulmonary oedema and sloughing of the bronchiolar mucosa.

Phthalic anhydride: this is a product of epoxy and alkyd resins. It mainly causes a form of occupational asthma with inflammatory changes in the bronchiolar mucosa. Rarely it can cause pulmonary haemorrhage.

Anhydrous ammonia gas: this is mainly found in fertilisers. It can cause chemical burn of the upper respiratory tract, laryngeal oedema, pulmonary oedema and pulmonary haemorrhage. If the person exposed survices the exposure then long term effects can occur including bronchiectasis and bronchiolitis. 

26.     Professor Barnes notes that:

There is a problem with the definition of “respiratory tract irritants” in the SOP …. If the definition implies permanent pathology and ongoing symptoms the wood dust could be included.  The only agent listed in the SOP that fits this definition would seem to be phthalic anhydride.  All other agents predominantly cause pulmonary oedema which is a completely different pathology.

27.     Professor Barnes’ opinion is not challenged and we accept it.  What it underlines is that there is no common mechanism of tissue damage linking each of the agents listed in (a) to (f) of the definition.  In our view, this favours an interpretation that it is sufficient, to satisfy the definition, that an agent cause tissue damage comparable to one of those listed.

28.     We should add that Professor Bryant’s report goes more to Mr Flanagan’s emphysema than to his chronic bronchitis and does not assist us in interpreting the definition itself. 

Link to service

29.     We have already referred to Professor Barnes’ report of 2 September 2010 in which he states there is clear evidence that wood dust case can cause chronic bronchitis by being a respiratory tract irritant.

30.     In his report of 11 August 2010, Professor Bryant notes that Mr Flanagan had chronic bronchitis and emphysema.  He cites a number of studies linking exposure to dusts to the development of chronic airflow limitation.  He thinks it “more probable than not that the wood dust exposure experienced by Mr Flanagan during the time he worked as a carpenter for the Royal Australian Air Force [was] likely to have made a material contribution to his development of chronic airflow limitation”.

31.     We note that, on the medical evidence, Mr Flanagan’s cigarette smoking over many years appears to have been the major factor contributing to his chronic airflow limitation.  However, the contribution of smoking to his condition is not a matter that the SOP requires us to determine in his case.

Conclusion

32.     We are satisfied that Mr Flanagan’s chronic bronchitis is related to his service.  We set aside the decision under review in relation to that condition and remit the matter to the Commission for assessment.

33.     We are not satisfied, on the evidence before us, that Mr Flanagan’s emphysema is related to his service and we affirm the decision under review in relation to that condition.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr Tony Austin

Signed:         ..........[sgd]......................................................................
           Diana Weston, Associate

Date of Hearing  17 June 2011
Date of Decision  17 June 2011
Date of written reasons             21 June 2011
Counsel for the Applicant         Mr A Guirtalis
Solicitor for the Applicant          Mr J Calabrese, Calabrese Lawyers  
Solicitor for the Respondent     Mr N Bunn, Department of Veterans' Affiars