Geoffrey Bryant and Military Rehabilitation and Compensation Commission
[2012] AATA 186
•30 March 2012
[2012] AATA 186
Division VETERANS' APPEALS DIVISION File Number(s)
2010/0825
Re
Geoffrey Bryant
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 30 March 2012 Place Adelaide The decision under review is affirmed.
...........................[sgd].........................
Senior Member K Bean
CATCHWORDS
COMPENSATION - Commonwealth employee - Compensation claim by former member of the defence force in relation to respiratory conditions including emphysema and chronic bronchitis - Liability to be determined under Compensation (Commonwealth Government Employees' Act) 1971 - Whether applicant's smoking habit arose out of or was contributed to by his employment - Whether respiratory conditions contributed to by smoking or exposure to gas in confined spaces - Smoking habit arose out of employment but no contribution from smoking or gas exposure to any of claimed conditions - Compensation liability not established - Decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988, ss 7(4), 124
Compensation (Commonwealth Government Employees' Act) 1971 s29 (1) & (2)
CASES
Military Rehabilitation and Compensation Commission v Wall [2005] 88 ALD 1
REASONS FOR DECISION
Senior Member K Bean
30 March 2012
INTRODUCTION
The applicant, Mr Bryant, enlisted in the Australian Army on 26 April 1955 and was discharged on or about 25 April 1960. He under took national service until approximately 3 August 1955 and after that was a member of the Citizen Military Forces (CMF).
Mr Bryant took up smoking during his military service and he was also exposed to what he has described as “gas grenades” on a number of occasions during his service. Since the mid 1980’s, he has had significant breathing difficulties which have become more serious over time. In recent years, he has been hospitalised on a number of occasions and has been diagnosed with a number of respiratory conditions including chronic bronchitis and emphysema.
On 23 May 2008, Mr Bryant lodged a claim for compensation in respect of his respiratory conditions, claiming that these were related to the military service he had undertaken between 1955 and 1960. However his claim was rejected at the primary level[1] and also upon reconsideration[2].
[1] T19.
[2] T26.
On 2 March 2010, Mr Bryant applied to this Tribunal for review of the reconsideration decision, giving rise to these proceedings.
LEGISLATIVE SCHEME
Under the applicable legislative scheme, the specific provisions which are to be applied in determining whether Mr Bryant is entitled to compensation must be determined by reference to when his injury is taken to have been sustained. Sub section 7(4) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) relevantly provides as follows:
“7 Provisions relating to diseases
…
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…
Further, s 124 of the SRC Act effectively provides that, in respect of injuries suffered before the commencement of that Act, on 1 December 1988, compensation continues to be payable to the extent it would have been payable under the Act in force at the relevant time.
On the material before me, it appears that Mr Bryant’s respiratory conditions were first treated in approximately 1984[3] and it follows that the provisions of the Compensation (Commonwealth Government Employees’ Act) 1971 (the 1971 Act) (which was in force between 1971 and 1988) are applicable for the purpose of determining whether he is entitled to compensation in respect of the claimed conditions.
[3] Exhibit 7, p 1.
As to when compensation liability in respect of a disease was taken to be established under the terms of the 1971 Act, s 29 of that Act relevantly provided as follows:
“ 29. (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
………………………………………………..”
THE ISSUES
As I have indicated above, on the material available to me it appears that Mr Bryant first reported respiratory problems and was treated for these in approximately 1984 so that, for the purposes of s 7(4) of the SRC Act, that is taken to be the date when his injury was sustained. Therefore the provisions of the 1971 Act are applicable to determining whether liability is established.
In broad terms, the other issues which arise in relation to his claim are as follows:
(a)What are the exact conditions for which Mr Bryant is seeking compensation; and
(b)Is compensation liability established in respect of any of those conditions?
I propose to address each of these issues in turn, having regard to the material before me and the arguments of the parties.
WHAT ARE THE CONDITIONS FOR WHICH MR BRYANT SEEKS COMPENSATION?
In his claim for compensation, Mr Bryant stated that he was seeking compensation for “asthma-lung-bronchial”.[4]
[4] PT6/326.
On 13 January 2011, he was examined at the request of the respondent by Dr Antic, Respiratory and Sleep Physician who subsequently provided a report dated 13 January 2011[5]. In giving his opinion as to what injuries or conditions Mr Bryant currently suffered from, Dr Antic stated in his report as follows:
[5] Exhibit 7.
“3.1.1 Chronic multi-factorial generalised and local limitation to airflow from a range of airway disorders and from loss of lung substance surface area caused by:
·Tracheo-malacia
·Asthma
·Bronchiectasis
·Mucus plugging, possibly chronic low grade infection or inflammation
·Bronchitis and bronchiolitis
·Emphysema
·Right lung upper zone small scar.”[6]
[6] Exhibit 7, p3.
I consider that each of these conditions is fairly encompassed within the injury described by Mr Bryant on his claim form, namely “asthma-lung-bronchial” and accordingly he is to be taken as having sought compensation in respect of each of the conditions identified by Dr Antic.
IS COMPENSATION LIABILITY ESTABLISHED IN RESPECT OF ANY OF THE CONDITIONS CLAIMED BY MR BRYANT?
As I have outlined above, in order to establish compensation liability, Mr Bryant must establish that one or more of his claimed conditions was contributed to by his service. In seeking to establish that his service had been a contributing factor to his claimed conditions, Mr Bryant relied upon two discrete aspects of his service which he said had contributed to his conditions, namely:
(a)the fact that during his service he was exposed to smoke or gas whilst in a confined space on a number of occasions; and
(b)the fact that he took up smoking as a result of his service.
I propose to first the address the issue of Mr Bryant’s exposure to smoke or gas, before returning to the question of his smoking.
Mr Bryant’s exposure to smoke or gas during his service
In his statement which was tendered in to evidence[7], Mr Bryant stated as follows in relation to his military training, which took place at Woodside Army Barracks:
“Field training consisted of being sent into underground rooms carrying gas masks. Rooms would then be filled with gas then ordered to remove mask so we could experience the real thing. After a short period mask back on and marched outside for cigarette break…”
[7] Exhibit 2.
Similar statements were made by former national servicemen Mr Philip Nolan and Mr Albert Trewren, who also underwent training at Woodside Barracks, and were called to give evidence on Mr Bryant’s behalf. They each said in separate statements;
“During our service we were subjected to smoke gas training by way of being assembled in a hut for this type of training. The procedure was that we went in with gas masks on. The smoke grenades were activated, we were then required to remove gas masks while the room was full of smoke gas.
The purpose of that exercise, was to see how long you stay in the room while being exposed to the smoke gas without the protection of the gas mask.”[8]
[8] Exhibit 5 & 6.
In his oral evidence, Mr Bryant claimed that he was subjected to this experience approximately four times during his national service and that on each occasion he was exposed to the “smoke grenade” for between one and one and a half minutes without his gas mask on. He said that the exposure within confined spaces was to gas rather than smoke. However he did not know what the gas was and neither Mr Nolan nor Mr Trewren were able to assist in this regard. Accordingly there is no evidence before me as to what form of gas or smoke Mr Bryant was exposed to.
Dr Antic was nevertheless asked to comment on any possible connection between Mr Bryant’s conditions and his exposure to smoke or gas “grenades” during his service. As to a possible causal connection he stated in his report as follows:
“Single or repeated exposures to certain inhaled pollutants such as chemicals can cause bronchial disease. It is not likely to occur from exposure to particulate matter smoke as might have occurred when he was in a smoke filled room. It is not clear what are the chemicals, gases, vapours or particulate matter that involved in these deliberate exposures… It is also not clear whether there were exposures in other workplaces that might have contributed.
The main observation re the nexus between the exposure to gases and fumes and the development of lung disease is that it would be expected that symptoms of disease would develop early, within hours or days and not for the first time years later. It would not be expected to cause asthma, emphysema, trachea-malacia or bronchiectasis[9].
He went on to state later in his report that:
“The lag in time between the exposure to gas/smoke and the development of the respiratory symptoms makes it quite unlikely that there is a causal link.”[10]
[9] Exhibit 7, p4.
[10] Exhibit 7, p5.
In response to the question “assuming the applicant was exposed to gas/smoke grenades during his service, in your opinion had such exposure contributed to the later claimed condition?” Dr Antic responded:
“No. The latency between the dates of exposure and development of respiratory symptoms of at least 25 years makes it difficult to establish a causative link between the exposure and the respiratory disorders and that this occurred seems unlikely.”[11]
[11] Exhibit 7, p5.
Dr Antic’s oral evidence at the hearing was consistent with the statements in his report.
There was no other medical evidence directed to this issue adduced by either party and I accept Dr Antic’s evidence as to the likelihood of a causal connection between Mr Bryant’s exposure during his service to gas/smoke grenades and the subsequent development of the conditions Dr Antic identified.
It follows that I am not satisfied that Mr Bryant’s exposure to smoke/gas grenades during his service contributed to the development of any of those conditions.
Mr Bryant’s smoking
As to a possible causal connection between Mr Bryant’s smoking and any of his claimed conditions, Dr Antic stated in his report as follows:
“Chronic bronchitis and emphysema are conditions that can be causally linked to past or current cigarette smoking or can occur spontaneously. The other listed conditions are not causally linked.”[12]
He also confirmed that opinion in his oral evidence.
[12] Exhibit 7, p4.
The only other medical evidence before me directed to this issue consists of a report of Mr Bryant’s general practitioner, Dr Carey, dated 7 June 2010 in which he states that Mr Bryant “now suffers chronic lung disease and the smoking will have contributed significantly to his lung disability.”[13]
[13] Exhibit 3.
Having regard to this evidence, I accept that it is possible there could be a causal relationship between Mr Bryant’s service and his conditions of chronic bronchitis and emphysema, subject to the exact amount of his smoking. However I also accept Dr Antic’s opinion that there is no causal connection between Mr Bryant’s other respiratory conditions and his smoking, a view which appears to be quite consistent with Dr Carey’s opinion.
As Mr Bryant has not put forward any other potential causal link between those conditions and his service, it therefore also follows that I am not satisfied that any of his other conditions, apart from chronic bronchitis and emphysema, were contributed to by his service. It follow that I am not satisfied that compensation liability in respect of any of those conditions has been established.
However, that leaves the question of whether there is a sufficient causal connection between Mr Bryant’s service and his conditions of chronic bronchitis and emphysema. That question involves consideration of two further and separate questions, namely:
(a) Whether there is a sufficient connection between Mr Bryant’s service and his smoking; and
(b) If so, whether his smoking contributed to his chronic bronchitis and/or emphysema.
I propose to address each of these further issues in turn.
Is there a sufficient connection between Mr Bryant’s smoking and his service?
In this context, in order for Mr Bryant to establish the necessary connection between his smoking and his service, it is necessary for him to show that his smoking habit arose out of or in the course of his service or that his service was a contributing factor to his smoking habit.[14] Factors which have been found to be relevant in this context are the stresses of military life, living on base in close proximity to other service persons, military discipline, peer group pressure and the availability of cheap cigarettes.
[14] Military Rehabilitation and Compensation Commission v Wall [2005] 88 ALD 1.
In his evidence, Mr Bryant stated that he did not smoke or drink prior to commencing his national service at 17 years old. He said that the practice at the time when he joined up was for the soldiers to have regular “smoko” breaks and when it was time for a break, he would be given cigarettes and encouraged to smoke them. I accept his evidence in this regard and also the evidence given in his statement that, as a result of being given cigarettes and encouraged to smoke them he “soon became addicted to smoking.”[15]
[15] Exhibit 2.
Further I am also satisfied that this evidence establishes a causal connection between the circumstances of Mr Bryant’s service and the establishment of his smoking habit sufficient to satisfy the applicable test, namely that his smoking habit arose out of or was contributed to by his service.
However that leaves the question of whether Mr Bryant’s smoking habit in fact contributed to the development of either his chronic bronchitis or his emphysema, or both.
Did Mr Bryant’s smoking contribute to his chronic bronchitis, his emphysema or to both?
It is clear from Dr Antic’s evidence that the answer to this question depends in part on the level and duration of Mr Bryant’s smoking and I therefore propose to address the evidence directed to that question first, before proceeding to the question of a likely causal relationship between the conditions and Mr Bryant’s smoking.
The task of determining the level and duration of Mr Bryant’s smoking is not made easier by the fact that, over time, Mr Bryant appears to have given different accounts of his smoking history. Certainly, there are significant differences between the histories which have been recorded by various medical practitioners.
On 14 September 2004, Mr Bryant is recorded as having reported to a doctor at the Flinders Medical Centre that he had not smoked for more than thirty years and the relevant note also states “3-4 per day.”[16] Consistently with those records, records relating to an earlier admission to the Flinders Medical Centre in May 2004 also record a history that Mr Bryant “smoked between 16-26 one packet/fortnight.”[17] Similarly, on 14 August 2007 Mr Bryant is recorded as having given a history to a doctor at the Flinders Medical Centre that he had smoked for less than five years, a “few cigarettes/cigars a day.”[18]
[16] PT4/234.
[17] PT4/277.
[18] PT4/198.
Also consistently with these accounts in a “Cigarette Smoking Questionnaire” completed by Mr Bryant on 24 June 2008 he stated that he had stopped smoking permanently in 1964 and added “please note I was not a heavy smoker.”[19]
[19] PT10/336.
However when Mr Bryant saw Dr Antic a couple of years later on 13 October 2010, he told Dr Antic that he had smoked from 1951 to 1958 and for about twelve months thereafter and reported that he had smoked up to fifty cigarettes per day for about eight years[20].
[20] Exhibit 7, p3.
In his oral evidence at the hearing, Mr Bryant said that after he took up smoking, the amount that he smoked gradually increased rising to two packets per day or more, and that he smoked for about ten years. Asked as to how quickly his smoking increased, he indicated that he estimated that within three months of commencing smoking, he would have been smoking fifty cigarettes per day, plus some cigars.
When asked about the various versions of his smoking history referred to above, he indicated that he considered that some of these histories were inaccurately recorded. For example he said the reference to smoking “3-4 per day” was probably a reference to his smoking of cigars. At another point in his evidence he also suggested that the reference to “3-4” probably referred to packets rather than individual cigarettes and in relation to the note of him smoking “a few cigarettes/cigars a day” he suggested that this was not inconsistent with him smoking fifty cigarettes per day as a “few” could mean fifty. When it was put to him that he had sought to exaggerate the amount of his smoking in recent years in order to support his claim for compensation, he denied this.
In light of these starkly differing accounts, it is very difficult to now establish the precise level of Mr Bryant’s smoking during the late 1950’s and early 1960’s. Further, in his differing accounts, Mr Bryant is attempting to recall what he did at a time that is now over fifty years ago and I am not satisfied in the light of his evidence that he has a good recollection of the level at which he smoked during the relevant period.
However I also accept the submission made by Mr Dubé, who appeared as counsel for the respondent, that the stark inconsistencies in the various accounts of Mr Bryant’s level of smoking are unlikely to be entirely explained by inaccurate recording. This may account for one or two inconsistent histories, but it would not explain the numerous starkly inconsistent accounts which appear in the medical records. Nor would it explain the fact that over time, Mr Bryant’s estimates of the amount which he smoked have increased, and increased more markedly since he lodged his claim for compensation in May 2008. Rather those inconsistencies and the fact he has reported higher amounts of past smoking as time has gone on raise the clear possibility that, deliberately or otherwise, Mr Bryant’s recent accounts have been influenced by the context in which those accounts have been given. In other words, they raise the clear possibility that Mr Bryant’s evidence of his smoking history has been influenced by an understanding by him that the more he smoked during the relevant period, the more likely he is to be able to establish a connection between his smoking and his respiratory conditions such as to entitle him to compensation.
Having regard to all of these matters, I am not satisfied that the accounts which have been given recently by Mr Bryant, or the account given during his oral evidence, that he was smoking fifty cigarettes per day, are accurate. The inaccuracy of those accounts may be the result of Mr Bryant’s fading recollection of events of over fifty years ago. However regardless of the explanation, I consider that the accounts which Mr Bryant gave earlier in time and in a medical rather than a compensation context are more likely to be accurate. Doing the best I can on the material therefore, I consider that the likely duration of the period during which Mr Bryant smoked was approximately nine years, between about 1955 and 1964. I also consider on the basis of the material, in particular the earlier evidence given by Mr Bryant as referred to above together with his statement that he was “not a heavy smoker,” that during that nine year period he is likely to have smoked approximately a packet of cigarettes each fortnight and certainly no more than three or four cigarettes per day.
In my view, the question of causation must accordingly be considered against that factual background.
As I have indicated above, Dr Antic is the only doctor who has provided a considered opinion on the question of whether Mr Bryant’s smoking contributed to his chronic bronchitis and/or emphysema. Dr Carey has stated that Mr Bryant’s smoking “would have contributed significantly to his lung disability”.[21] However he is a general practitioner rather than a specialist, he was not called to give evidence and it is unclear from his report what conditions he is referring to or what he has assumed Mr Bryant’s level of smoking to be. In the circumstances, in my view his opinion carries little weight when compared with the considered opinion of Dr Antic, a specialist respiratory physician.
[21] Exhibit 3.
As I have commented above, in his report Dr Antic acknowledged that chronic bronchitis and emphysema are both conditions that “can be causally linked to past or current cigarette smoking or can occur spontaneously”. He also went on to state in his report that if the smoking history given by Mr Bryant “is accepted as twenty pack/years (i.e. 50/day for 8 years) then some damage might have developed from this”.[22]
[22] Exhibit 7.
In the course of his oral evidence however, Dr Antic was asked whether, if the level of Mr Bryant’s smoking was lower than that and in the order of three to four cigarettes per day, this was likely to have made any contribution to his emphysema or chronic bronchitis. Dr Antic stated in response:
“I think that that level of smoking would not cause the sort of damages that we’ve been talking about recently. It would not have caused emphysema. It would not have caused chronic bronchitis”.[23]
He went on to indicate that smoking of 15 to 20 “pack years” would be required to cause some clinical impact. Asked whether smoking at the level of 3 to 4 cigarettes per day could have made any contribution to Mr Bryant’s emphysema or chronic bronchitis, he stated:
“I think it would not have.”[24]
[23] Transcript 2 February 2012, p10.
[24] Transcript 2 February 2012, p10.
It accordingly follows that on the basis of what I consider the evidence shows to be Mr Bryant’s actual smoking history of no more than three to four cigarettes per day over nine years (equating to approximately two pack years), Dr Antic’s clear opinion was that Mr Bryant’s smoking was not likely to have contributed to his conditions of chronic bronchitis and emphysema. As I accept that evidence, it follows that I am not satisfied that Mr Bryant’s smoking made a contribution to either of his claimed conditions of emphysema or chronic bronchitis such as to give rise to compensation liability.
As I am not satisfied that Mr Bryant’s service made a contribution to any of his claimed conditions, it follows that I am not satisfied that compensation liability has been established in respect of any of those conditions. I have therefore decided to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 51 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean.
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J Scobie, Administrative Assistant
Dated 30 March 2012
Date(s) of hearing 1 and 2 February 2012 Advocate for the Applicant Mr Ray Duthie Counsel for the Respondent Mr Ben Dubé Advocate for the Respondent Mr A D MacGregor Solicitors for the Respondent Sparke Helmore
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