Gillian Dunn and Military Rehabilitation and Compensation Commission

[2012] AATA 672

[2012] AATA 672

Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/2502
Re	Gillian Dunn
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	4 October 2012
Place	Brisbane

The decision under review is set aside and substituted.

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Senior Member Bernard J McCabe

CATCHWORDS

COMPENSATION – causal connection between military service and depression – deseal reseal work – presumption of a causal link between workplace and certain health conditions – workplace made a material contribution to the onset of depression – decision set aside and substituted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 7(2).

REASONS FOR DECISION

Senior Member Bernard J McCabe

4 October 2012 

1. Gillian Dunn is the widow of Warren Campbell. Ms Dunn is seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 in connection with the death of Mr Campbell in February 2003. Mr Campbell suffered from depression at the time of his death and it is accepted his death was connected to depression. The question for the Tribunal is whether Mr Campbell’s depression can be connected with the circumstances of his service with the Royal Australian Air Force (“the RAAF”) between 1976 and 1981.

2. The analysis in this case is unusual because Mr Campbell worked on F-111 aircraft which were subject to what has become known as the “deseal/reseal” process. Ms Dunn says she is therefore entitled to benefit from the presumption contained in s7(2) of the Act which effectively makes it easier for some people to establish a causal link between their work and certain health conditions which are thought to have been associated with their work.

3. I am satisfied Ms Dunn is entitled to succeed in this case. I explain my reasons below.

   THE BACKGROUND

4. Mr Campbell served in the RAAF and was posted for a time to maintenance duties at 482 squadron. During that time, F-111 aircraft in 482 squadron were undergoing deseal-reseal work on their fuel tanks. It is widely accepted that workers involved in the program were exposed to noxious chemicals and fuel. Many of those workers subsequently contracted a range of health problems. When they initially claimed compensation in respect of those conditions, many of the former servicemen had difficulty establishing a causal link between the conditions and the circumstances of their service. It was widely accepted the veterans suffered from a number of conditions at a higher rate than civilians, but it was still difficult to establish a clear link between those conditions and the chemicals and fuel.

5. Section 7(2) provides a way around this impasse. It says:

   Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

6. In order to benefit from the presumption, employees may be classified into tiers. In the case of defence personnel involved in the deseal/reseal program, tier one covered those who were directly involved in the most dangerous work. Mr Campbell was classified as a tier three employee because he was involved in what was known as “pick and patch” work which resulted in less exposure to dangerous chemicals than tier one and tier two employees – although it must be said no one really knows exactly which chemicals he might have been exposed to during his work. Mr Dube, for the respondent, pointed out Mr Campbell probably was not exposed to some of the really dangerous chemicals that were identified in the literature, and he was certainly exposed to fewer chemicals than other employees.

   THE MEDICAL EVIDENCE

7. The applicant says Mr Campbell suffered from depression and that his co-workers suffered from a higher incidence of that condition than the general public. I do not understand there was any challenge to this aspect of her case. She says she is therefore entitled to presume there is a causal connection between the condition and Mr Campbell’s work at 482 squadron unless the contrary is established. It follows the resolution of this dispute really depends on the medical evidence.

8. The applicant’s medical expert, Dr Butler, suggested there was a clear connection between Mr Campbell’s depression condition that was diagnosed in 1999 and the circumstances of his work. The respondent’s medical expert, Dr Strauss, was more cautious.

9. Dr Strauss is a consultant psychiatrist. He conceded in his evidence that he is not a research scientist. Even so, he appeared to be well-versed in the literature, and he was a careful and thorough witness. He pointed out depressive conditions were often multi-factorial. He noted there were certainly aspects of Mr Campbell’s childhood history that were common in depression sufferers. He said he thought those factors were the likely explanation for the onset of the depression. But he pointedly did not rule out the possibility that exposure to chemicals may also have made a contribution. He said in his evidence at the hearing that it was “possible that the chemical contact that Mr Campbell had could be one of the factors that contributed to his depression”: transcript at p 20. I questioned Dr Strauss about what he meant when he said it was “possible”: specifically, I wanted to know whether he was merely acknowledging a theoretical possibility that chemical exposure was a contributor, but that it was unlikely to be an issue; or was he saying it was one of a number of factors in a mix that might have made a contribution in circumstances where it is difficult to be sure which factors were important? Dr Strauss said he thought Mr Campbell might have gone on to develop depression irrespective of chemical exposure in light of his childhood, but he said a contribution from chemical exposure could not be ruled out: transcript at p 23. He agreed that our understanding of the causes of depression was sufficiently limited that chemical exposure may have been an issue although he said it was unlikely to be the major contributor: transcript at p 29.

   DOES THE STATUTORY PRESUMPTION HELP THE APPLICANT?

10. I do not think the medical evidence – especially the evidence of the respondent’s expert, Dr Strauss – disentitles the applicant from relying on the presumption in s 7(2). That presumption says the applicant’s workplace is taken to have made a material contribution to the onset of the condition in question unless the contrary is established.  Dr Strauss acknowledges Mr Campbell’s childhood was likely to be the major contributor to the onset of his condition but he also acknowledged depression was usually multi-factorial and that chemical exposure may have been one of those other factors. His evidence did not establish the chemical exposure made only a de minimis contribution if it was a factor. A careful reading of the transcript of his oral evidence confirms the contrary to the proposition in s 7(2) has not been established.

    CONCLUSION

11. The applicant is entitled to the benefit of the presumption in s 7(2) of the Act. On that basis, the reviewable decision is set aside. I decide in substitution that Mr Campbell’s depression, and therefore the circumstances of his death, are connected with his employment with the RAAF.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated  4 October 2012

Date(s) of hearing	25 and 26 July 2012 8 August 2012
Counsel for the Applicant	Mr Dickson
Solicitors for the Applicant	Campbell Standish Partners
Counsel for the Respondent	Mr Dube
Solicitors for the Respondent	Sparke Helmore Lawyers