Hourigan and Comcare

[2004] AATA 913

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 913

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/635

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHRISTINE HOURIGAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date27 August 2004

PlaceSydney

Decision The decision under review is affirmed.

.........................................

Ms N Bell   Senior Member

COMPENSATION –Department of Defence - Multiple Myeloma and Renal Carcinoma – Whether Conditions Arose Out Of or In The Course of Deceased’s Employment.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

27 August 2004   Ms N Bell, Senior Member  

1.Mr Gary Hourigan, born on 12 October, 1951 enlisted in the Australian Regular Army Supplement (National Service) in April, 1972 and served until January 1973. He subsequently enlisted in the Citizens Military Forces in October, 1976 and served on a part-time basis until October, 1992.  During his national Service he was a gun number and artillery signaller.  During his period with the Citizen Military Forces he was employed as a rifleman.  During these periods he was involved in the handling of equipment including artillery pieces; motor vehicles; other weaponry and ammunition requiring degreasing; cleaning; restoring and repairing.

2.In 1998, Mr Hourigan was diagnosed with multiple myeloma. He received chemotherapy and later Melphalan therapy and had an autologous stem cell transplant in March 1999. He remained in good partial remission until early 2001, when evidence of disease progression was noted. He went on to receive radiotherapy to the sternum and further chemotherapy but after early response his disease continued to progress and he died of progressive multiple myeloma with associated renal failure on 21 March, 2002.

3.In 1998, Mr Hourigan had claimed for rehabilitation in respect of his multiple myeloma and carcinoma in his left kidney.  He attributed these conditions to contact with petroleum based cleaning materials he used when cleaning guns and artillery, carrying herbicides and pesticides, returned from Vietnam.  Comcare, on behalf of the Department of Veterans’ Affairs, denied liability in 2001 and, in March 2002, after internal review, affirmed the decision.  Comcare considered that the exact cause of Mr Hourigan’s conditions had not been identified and that it was not probable that the conditions had been caused by exposure to herbicides, pesticides or petroleum based cleaning products

4.      Mrs Christine Hourigan is Mr Hourigan’s widow.

5.      At the hearing before the Tribunal, Mrs Hourigan withdrew the contention concerning herbicides and pesticides.  The issue was therefore whether Mr Hourigan’s conditions were caused, or were materially contributed to, by exposure to chemical products used by him in Australia to clean military equipment. Comcare contended at the hearing that there was no direct evidence before the Tribunal of what Mr Hourigan had been exposed to and no evidence of composition of those substances, the intensity of exposure or the length of exposure.

Mrs Hourigan’s evidence

6.      Mrs Hourigan said that Mr Hourigan would bring his laundry home including his jungle greens and overalls. She said his clothes were very dirty and wet and had a pungent, kerosene like, smell that was so strong she had to keep the windows in the laundry open and rinse the washing machine out twice at the end of the washing cycle.  She said she also had to remove sludge from the front of the machine.  On one occasion, when she sprayed starch onto the overalls, the area she sprayed foamed up, produced a white cloud and began to dissolve the overalls, the ironing board cover and the paint on the ironing board.

7.      Mrs Hourigan said that when Mr Hourigan’s overalls were particularly dirty, she would put a cap full of kerosene (about 30ml) in the water then rinse them out and add ordinary detergent.

8.      Mrs Hourigan said that prior to his illness, Mr Hourigan had played Rugby Union, Rugby League and had been involved with a Surf Club.  She said that he was very fit and would often run distances of between 10 and 15 km and did weight training.  He had no difficulty at work, as a postal clerk, until 1996 when he was retrenched because his illness prevented him from doing that work.

9.      Mrs Hourigan said that she and her husband had been “fanatical” about the use of sprays and chemicals in their household generally because they had a child who was allergic to food colourings and was hyperactive.

10.     Mrs Hourigan was shown a document, headed “Statement of attributability”, which she said had been prepared by an advocate with the Returned Serviceman’s League (T35).  Her attention was directed in particular to paragraph 11 of that document which noted the benzene content of products used by Mr Hourigan.  She said that that paragraph was not based on her own knowledge and that she signed the document on her husband’s behalf, as his agent, because he was having treatment at the time and had drips in each hand.

11.     Mrs Hourigan said she was unaware what material was referred to Dr McCullagh, whose opinion was sought for the purposes of this application, and does not recall ever speaking to him (Exhibit A2).

medical evidence

12.     Dr Peter McCullagh is a member of the Royal College of Physicians in London and has a PhD from Oxford.  He began research in 1963 at Oxford concerning white blood cells.  Dr McCullagh does not practice as a clinician and is not involved in the management of cancer patients or in clinical cancer research.  He described himself as an expert on the biology of cells but not as an expert on the causation of myeloma or renal carcinoma.

13.     Dr McCullagh readily conceded that he had never seen Mr Hourigan and relied, rather, on a letter from Mr Tilbrook of Write Way Research which was not in evidence before the Tribunal.

14.     Dr McCullagh’s report of 6 May 2003 (Exhibit A2), canvasses various (conflicting) studies concerning the relationship between multiple myeloma and benzene.  He concluded that there is controversy over the causal associations between benzene and multiple myeloma but considers it more likely than not that exposure to benzene has contributed to the development of the condition in some individuals.  Dr McCullagh referred to the concentrations of benzene that Mr Hourigan was likely to have been exposed to, the likelihood that the exposure was through contact with the skin and the young age at which Mr Hourigan developed the disease. He concluded, on the basis of these matters, that the likelihood of a benzene contribution to multiple myeloma in Mr Hourigan was greater than that reflected in the surveys reviewed in his report.

15.     In oral evidence to the Tribunal, Dr McCullagh commented that all of the reports against the proposition that benzene contributed to the development of myeloma, were written by people employed or funded by the petrochemical industry.

16.     In cross examination Dr McCullagh conceded that he was unaware of the extent to which Mr Hourigan was exposed to AVGAS and conceded that his knowledge of any such exposure at all was based purely on Mr Tilbrook’s paper (which was not in evidence before the Tribunal).  He conceded his report was written on the assumption that Mr Hourigan had been exposed to benzene and that he has no evidence as to the concentration or intensity or length of exposure.  Dr McCullagh also conceded that he proceeded on the assumption that Mr Hourigan’s clothing was contaminated with AVGAS and agreed that his report was entirely speculative once that assumption was put aside.

17.     Dr McCullagh was shown a copy of a facsimile message from a Warrant Officer to Tony Kennedy, dated 9 July 2002, which lists a number of items that appear in the servicing manual for the gun equipment dealt with by Mr Hourigan (Exhibit R3).  Dr McCullagh agreed that the list of substances did not include petroleum based products.

18.     Dr John Levi is the Director of the Department of Medical Oncology at the Royal North Shore Hospital and a Member of the Australasian College of Physicians. He has been in clinical practice for 34 years and has been an administrator and researcher.  Dr Levi is involved in the management of a wide range of cancers including multiple myeloma and renal cell carcinoma.

In his report, dated 17 July 2003 Dr Levi noted that there remains uncertainty as to the actual agents to which Mr Hourigan was exposed and the period and intensity of that exposure.

19.     Dr Levi discussed, with approval, the review by Dr McCullagh of the available literature currently published in relation to the potential association between exposure to benzene and the development of multiple myeloma.  He also noted, as did Dr McCullagh, that the data available from this literature is contradictory. Dr Levi concluded that the question remains moot and said he is not in a position to state that is more likely than not that Mr Hourigan’s exposure to benzene was responsible for the development of his subsequent multiple myeloma.  He also noted that there is well documented evidence that individuals in the 5^th decade of life have an incidence of multiple myeloma.

20.     In oral evidence to the Tribunal Dr Levi noted the mention of myeloid leukaemia in some of the studies and noted that it is different to lymphoid malignancies.  He said that Mr Hourigan had plasma cell dysplasia which is a lymphoid malignancy. He said there is strong evidence that carcinogenic agents affect particular cell strains and noted that benzene has been associated with the myeloid cell line and not the lymphoid cell line.

21.     Dr Levi agreed that Mr Hourigan was at a relatively young age to contract two separate and unrelated malignancies and said that over 80 per cent occur in persons over 60 years.  However, he said that 30 to 35 per cent of renal cell carcinoma occurs in people under the age of 60.

22.     Dr Levi said that where there are two separate and unrelated malignancies, in such an instance, one does not immediately look to the genetic background of an individual but is mindful that a person who has an inborn susceptibility to one cancer would be likely to have a susceptibility to another.

23.     Addressing the issue of the objectivity of the studies canvassed by Dr McCullagh, Dr Levi said that the appropriate thing to concentrate on is the methodology of the study rather than any financial support provided.

24.     Dr Levi also said that the method of a person’s exposure to a carcinogen is not important but rather the quantity of that exposure should be given primary consideration. He said that a person is not necessarily likely to take in more of a substance through the skin than by inhalation.

25.     A report, dated 7 January 2002, from Dr Ian Prosser, Clinical Haematologist, who treated Mr Hourigan, noted that he was advised by Mr Hourigan that he was exposed to “significant levels of pesticide and herbicide residues, as well as petroleum-based cleaning solvents”. Dr Prosser noted Mr Hourigan’s relative youth at diagnosis and noted that there is evidence that exposure to toxic chemicals and petroleum derivatives increases the risk of cancer.  He recommended on “both scientific and compassionate grounds” that Mr Hourigan’s diseases be regarded as being “probably related to exposures during his military service”.

26.     Dr William Coupland, Consultant Physician, in his report dated 19 May 1998 (T9), noted that multiple myeloma has been found to have an increased incidence in Vietnam veterans and that while the exact cause for the increased incidence is uncertain, it is thought to be related to chemicals to which veterans were exposed when serving in Vietnam.

27.     A letter dated 21 January 1993, from Air Commodore G D Moller, to Commanding Officer Bysouth, and tendered as evidence in another unrelated application to the Veterans’ Review Board was tendered in evidence in this hearing (Exhibit A3).  The letter refers to a request for information relating to the toxicity of active components found in various fuels, oils and lubricants used in the operation and planned servicing schedule of both Nomad and Porter aircraft.  The letter states that the refining process generally rules out any significant amounts of benzene and oils and greases but, in the case of fuels, the following benzene contents were noted:

“

a.        Aviation Gasoline – 1- 4% ;

b.        Jet Fuel – 0.5% ;

c.        Diesel Fuel – 0.02%.” [at page 3]

consideration

28.     The evidence before the Tribunal does not allow me to be satisfied that Mr Hourigan was exposed to benzene.  Even if I could be so satisfied, I could not, on the basis of the evidence before me, be satisfied as to the intensity or length of any such exposure.  That alone, is sufficient to dispose of the matter.

29.     However, in the event that the intensity or length of exposure was found to be at a level of some significance, then there is insufficient evidence for me to be satisfied that exposure to benzene, even in significant amounts, materially contributed to the development of Mr Hourigan’s conditions.

30.     The survey of publications on the relationship between benzene and multiple myeloma, undertaken by Dr McCullagh, is inconclusive.  The contention of a causative relationship between benzene and myeloma is agreed by Dr McCullagh and Dr Levi to be controversial.  While Dr McCullagh considers that “it is more likely than not that exposure to benzene has contributed to the subsequent development of multiple myeloma in some individuals”, I am more persuaded by the view of Dr Levi that the position remains moot.  I note, in this respect, the experience and qualifications of Dr Levi, and his particular familiarity with the causative factors relevant to different types of malignancies and different cell strains.

31.     The evidence of Drs Prosser and Coupland does not advance the issue.

32.For these reasons, I affirm the decision under review.

decision

33.The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:          Linda Blue....................................................

Associate

Date of Hearing  19 July 2004
Date of Decision  27 August 2004
Advocate for the Applicant       Mr Tony Latimore
Counsel for the Respondent     Mr Geoffrey Johnson
Solicitor for the Respondent     Ms Marie Mittiga