Frost and Comcare
[2003] AATA 313
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 313
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1139
GENERAL ADMINISTRATIVE DIVISION
Re: MICHAEL FROST
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Dr P.D. Fricker, Member
Associate Professor J.H. Maynard, Member
Date: 4 April 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
COMPENSATION – hiatus hernia - gastrooesophageal reflux disease – oesophagitis – whether arose out of or in the course of employment – heavy lifting – carrying heavy pack – whether conditions attributable to repeated heavy lifting
Safety, Rehabilitation and Compensation Act1988
REASONS FOR DECISION
4 April 2003 Mr B.H. Pascoe, Senior Member
Dr P.D. Fricker, Member
Associate Professor J.H. Maynard, Member
This is an application to review a decision of the respondent dated 12 July 2001 which affirmed a determination of 18 September 2000, denying liability for compensation for hiatus hernia, oesophageal reflux and ulcerative oesophagitis. In his claim of 23 September 1998, the applicant described the claimed condition as hiatus hernia affecting the stomach and lower rib cage with it being first noticed in 1992 and first medically treated in 1994. He attributed the condition to carrying very heavy back pack and lifting very heavy boats and motors (SASR work).
At the hearing, the applicant, Mr M. Frost, was represented by Mr J. Ferwerda of counsel and the respondent by Mr J. Lenczner of counsel. Evidence was given by Mr Frost; his wife, Mrs C. Frost; an upper gastrointestinal and thoracic surgeon, Mr G. Wright; and a consultant physician, Dr P. Stephenson. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Report by Dr R. Herrmann, gastroenterologist,
dated 27 July 1999 Exhibit A1
Report by Dr Herrmann dated 16 May 2001 Exhibit A2
Report by Dr R. Duff, general practitioner, dated 25 May 1996 Exhibit A3
Endoscopy Report by Dr Herrmann dated 20 August 1998 Exhibit A4
Extract Journal of Clinical Gastroenterology of July 1997 Exhibit A5
Report by Dr G. Wright, surgeon, dated 30 January 2003 Exhibit A6
Report by Dr K. Ng, rheumatologist, dated 24 July 1995 Exhibit R1
Report by Dr Ng, dated 2 July 1996 Exhibit R2
Report by Dr R. Duff, general practitioner, dated 13 February 1996 Exhibit R3
Barium Meal Report, Rosebud Radiology, dated 2 October 2000 Exhibit R4
Applicant’s service medical records
dated 11 December 19990 to 26 June 1996 Exhibit R5
Letter Department of Defence to Department of Veterans' Affairs
dated 5 January 1998 Exhibit R6
Letter Department of Defence to applicant dated 30 January 1998 Exhibit R7
Permanent Impairment Calculation Sheet dated 5 January 1998 Exhibit R8
Permanent Impairment Calculation Sheet dated 13 October 1995 Exhibit R9
Report of Dr P. Stephenson dated 24 February 2003 Exhibit R10
Applicant’s credit card statement June 1005 Exhibit R11
Mr Frost was born on 9 November 1959. He joined the Royal Australian Navy (the navy) on 1 June 1975 and rose to the rank of Quartermaster Gunner with service on HMAS Melbourne.. He became a physical training instructor in the navy prior to transferring to the Australian Army (the army) on 6 December 1983 where he became a member of the Special Air Services Regiment (SASR). He left the army in 1988 but rejoined the SASR on 20 December 1990. He was discharged on 27 October 1995. After lodging a claim for compensation in March 1995, liability was accepted for the conditions of lumbar spondylosis, rotator cuff tendonitis in both shoulders, post traumatic stress disorder and, for a limited period of some two and a half years, rheumatoid arthritis. He had received a total of $81,653 under s.24 and s.27 of the Safety, Rehabilitation and Compensation Act1988 (the Act) for these conditions and receives a pension at the special rate under the Veterans' Entitlements Act 1986.. He has not been engaged in any remunerative work since his discharge from the army. He was diagnosed with hiatus hernia, gastrooesophageal reflux disease and moderately severe distal ulcerative oesophagitis in August 1998.
Mr Frost gave evidence of regularly carrying heavy packs for long periods during exercises. He said that it was common to carry up to 60 kgs. As a signalman, his pack included a radio and batteries in addition to weapons, rations etc. He said that, while a person can become accustomed to carrying such weight for long periods in difficult terrain, it was very stressful on the body. In water‑based operations using Zodiacs, he said that it was necessary to deflate and bury the Zodiac and carry water cans, fuel cans and the heavy motors. While it was normal for two people to carry a motor, frequently he was required to carry it alone. Other water‑based activities involved wearing heavy and awkward apparatus. Mr Frost said that the ethos within SASR was that you did not report medical or physical difficulties unless absolutely necessary as such reports could be seen as a sign of weakness and possible discharge from the regiment.
Mr Frost said that he had problems with his back from the 1980s resulting from heavy lifting and parachuting. He had treatment for his right shoulder in 1992 and problems from arthritic pain in his joints from late 1993. Medication for his back, shoulders and arthritis was provided by the army. An outpatient clinical record of 16 September 1994 states:
…
Epigastric pain, on standing cramping worse.
Hot/cold flushes.
…
Head starting to feel "full" feeling lethargic, nausea, mouth is dry.
Sudden onset of severe cramp‑like epigastric pain – commenced 1 hr ago … Feels nauseated. Some dysuria this a.m. Pain is relieved by lying down + drawing his knees up. …
Mr Frost said that he had completed digging trenches when he felt a severe stomach pain, which he had not experienced previously. He had been a victim of food poisoning some time earlier and the pain on this occasion was different, leading him to believe that food was not the cause. He said that, prior to this event and since the 1980s, he regularly experienced an uncomfortable cramping pain in the lower left abdomen. Another outpatient clinical record of 19 October 1994 states:
…
Mbr feeling unwell - bloated feeling stomach, pain in the chest (like heart burn), feeling hot. Had nothing eat. Woke up this morning feeling unwell and has just steadily got worse through the day. Wife + children been ill for last couple of weeks.
…
? Viral illness.
Mr Frost had only a vague recollection of his wife and children being sick. However, he was aware that some of his colleagues had the same problem.
In late 1992, Mr Frost was in charge of a boat during diving exercises in Bass Strait. A close friend suffered serious head injuries from the propeller of the boat and died shortly after. Mr Frost suffered psychiatric problems from this incident and, in 1994, was referred to Dr T. Gidley, psychiatrist. Ultimately, it was recommended that he should be discharged from the service as the combination of arthritis and post traumatic stress disorder made it difficult for him to cope.
Mr Frost said that, over time, his heartburn became worse. However, he had regarded it as related and subsidiary to his other physical problems, particularly the arthritis. After his discharge, he gained weight and, from 1997, the gastric pain became very severe. Initially, his general practitioner, Dr Duff, did not believe that there was any particular problem. However, Mr Frost's wife, a nurse, eventually insisted that he be referred to Dr Herrmann who diagnosed the hiatus hernia, gastrooesophageal reflux disease and oesophagitis after an endoscopy in August 1998. Mr Frost said that he is now careful with his diet. He avoids spicy foods, drinks very little alcohol and uses a water dissolved protein powder regularly for both weight control and to minimise gastric problems. He started to regain his fitness in 1997 and purchased some gymnasium equipment for his home. He exercises regularly but maintains that, compared with his former condition, he is not now as fit as he should be.
In his report of 16 May 2001, Dr Herrmann said that:
…Reflux disease is a very common condition in our general population and it is therefore difficult to attribute symptoms directly to a specific activity or employment, however there is no doubt that once reflux disease is present, heavy physical activity will aggravate the condition.
In his earlier report of 27 July 1999, Dr Herrmann noted that …Hiatus hernia is a frequently encountered condition in the general population and it would be very difficult to attribute its development on his service history.
Dr Wright examined Mr Frost on 29 January 2003 and provided a report dated 30 January 2003. He took a history from Mr Frost of several years of left costal margin pain while in the SASR and the development of gastrooesophageal reflux disease pain after his discharge in 1995. He confirmed Dr Herrmann's diagnosis. In his report, Dr Wright said that hiatus hernia was thought to be a degenerative process. He stated that, while acute elevations of intra‑abdominal pressure as such do not cause reflux, extreme and repeated elevations of such pressure can so cause. He cited pregnant women as an example. Dr Wright concluded that Mr Frost's activities in the SASR resulted in repeated extreme elevations of intra‑abdominal pressure and that the early onset of hiatus hernia and subsequent reflux and oesophagitis after discharge was materially related to that service. He cited a recent study of power lifters, which demonstrated a high rate of hiatus hernia in support of his view. Dr Wright did not consider it material whether Mr Frost had reflux symptoms or not during his service. In his oral evidence, Dr Wright estimated that no more than 5 per cent of the population aged in their early 40s would expect to have hiatus hernia. He considered that the three most likely causes would be congenital, a genetic predisposition or external causes such as lifting or bending, usually with multiple episodes, or obesity. He accepted that, other than the study of power lifters, there was no formal support for his view on heavy lifting as a causation factor in published papers. Dr Wright agreed that there was a generally accepted view that hiatus hernia was idiopathic. He accepted also that the clinical records of 16 September and 19 October 1994 would not necessarily be viewed as symptoms of gastrooesophageal reflux disease. In his written report, Dr Wright assessed Mr Frost as having a permanent impairment from the condition at 45 per cent. He said that this rate was selected as being midway between 40 and 50 per cent. When it was pointed out that the Guide to the Assessment of the Degree of Permanent Impairment listed 45 per cent as complete faecal incontinence, he said that his assessment should be 40 per cent. This level includes disturbed bowel habit as a sign of the disease and Dr Wright said that he interpreted "bowel" to include the whole digestive tract from mouth to anus.
Dr Stephenson examined Mr Frost on 9 April 2001 and provided a report dated 23 April 2001 (T28). He was unable to identify any probable contribution to Mr Frost's condition of hiatus hernia, reflux and oesophagitis from service‑related employment. He noted that hiatus hernia was a common condition with no recognised association to physical strain. He stated further that there was no evidence that intensive heavy lifting is a cause of reflux oesophagitis. He considered that, if Mr Frost had been symptomatic from his reflux when lifting or carrying heavy loads in service, there might have been a reasonable hypothesis that such activities were causing intermittent exacerbations of his reflux. However, there was no such history of symptoms occurring at that time. In a further report of 24 February 2003, Dr Stephenson commented on the views expressed by Dr Wright in his written report. Dr Stephenson considered that the absence of symptoms during service was material. He also quoted the example of pregnant women suffering reflux as a result of raised intra‑abdominal pressure but noted that the incidence of reflux resolves in the post partum period. Dr Stephenson said that an extensive search of medical literature had failed to identify any study linking the causation of hiatus hernia or reflux with heavy manual occupations. Both Dr Wright and Dr Stephenson were in agreement that the left costal pain, reported by Mr Frost, was not related to hiatus hernia, reflux or oesophagitis and was more likely related to an earlier rib injury from a bicycle accident.
It was submitted by Mr Ferwerda that the Tribunal should prefer and rely on the opinion of Dr Wright. It was said that Dr Wright had greater clinical experience in the condition suffered by Mr Frost and that, having been an army medical officer with experience of SASR operations, his views should be accepted. For the respondent, it was said that Dr Wright's opinion was no more than a hypothesis relying on an unproven assumption. It was contended that there were no epidemiological studies linking heavy lifting with hiatus hernia or reflux. It was submitted that the study of power lifters was inapplicable to this case as it involved professional weight lifters lifting three times their bodyweight and using abdominal belts, who reported some reflux symptoms. The activities of Mr Frost in SASR bore little or no relationship to such activity and he reported no clear symptoms until well after his physical activities had ceased. It was noted that Dr Wright could not say that reports of 1994 represented a likely complaint of reflux.
It is clear that both hiatus hernia and reflux are common in the community. All medical evidence was that they are idiopathic. While it is accepted that intra‑abdominal pressure can produce symptoms of reflux, such as in pregnancy, such symptoms occur at the time of the pressure and abate when the pressure abates. We do not accept that the clinical notes of September and October 1994 indicate symptoms of Mr Frost's claimed conditions at that time. It is clear from both Dr Wright and Dr Stephenson that the pain reported by Mr Frost, over many years in the left costal regional, is unrelated to these conditions. Consequently, we are unable to be satisfied that any material symptoms occurred until after his discharge in 1995. It should be said that Dr Wright's evidence was more in an advocacy role than of an independent expert. While he has had undoubted experience in surgery on patients with reflux and hiatus hernia, it must be recognised that he predominantly sees patients who have been referred to him with existing and severe symptoms who may benefit from such surgery. It is recognised also that his own military service could lead him to provide support for applicants such as Mr Frost. We prefer the evidence of Dr Stephenson who had made an extensive search of the literature, regularly treats, as a physician, patients with such conditions and provided a dispassionate and reasoned opinion. Dr Herrmann could not attribute the development of the conditions to service, although believed that heavy physical activity could aggravate the reflux condition. There is simply no evidence that it did.
It follows that we cannot be satisfied on the balance of probabilities that Mr Frost's claimed conditions or any aggravation of such conditions arose out of or in the course of his employment in the defence forces or were contributed to in a material degree by such employment. At best, Dr Wright has raised a hypothesis based on guesswork.
It follows that the decision under review should be affirmed.
I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Dr P.D. Fricker, Member
Associate Professor J.H. Maynard, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 27‑28 February 2003
Date of Decision: 4 April 2003
Counsel for the applicant: Mr J. Ferwerda
Solicitor for the applicant: KCICounsel for the respondent: Mr J. Lenczner
Solicitor for the respondent: Phillips Fox
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