Ian Gibson and Military Rehabilitation and Compensation Commission
[2014] AATA 135
[2014] AATA 135
Division Veterans' Appeals Division File Number
2013/1913
Re
Ian Gibson
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 13 March 2014 Place Perth The decision under review is affirmed.
..................[sgd].....................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – member of Defence Force – applicant served in Army from 1968 to 1971 – applicant smoked cigarettes during service – applicant continued to smoke cigarettes until 1993 – applicant contracted oral cancer in 2002 – applicant's oral cancer caused by cigarette smoking – applicant's cigarette smoking not causally related to service or performance of duties as member of Defence Force – applicant's oral cancer not contributed to in material degree by service or performance of duties as member of Defence Force – applicant’s oral cancer not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5, s 14(1) and s 147(1)
CASES
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Military Compensation and Rehabilitation Commission [sic] v Wall (2004) 40 AAR 298
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1
REASONS FOR DECISION
Deputy President S D Hotop
13 March 2014
Introduction
Ian Gibson (“the applicant”) served in the Australian Regular Army from 1 May 1968 to 30 April 1971. For the first two years of that period he rendered compulsory national service under the National Service Act 1951 (Cth) after which he voluntarily re-engaged for a further 12 months.
On 4 November 2011 the applicant made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) in respect of a condition described as “squamous cell carcinoma” affecting his jaw which he first noticed, and for which he first received medical treatment, in 2002, and which he attributed to his exposure to certain fuels, fluids, oils and chemicals in the performance of his military service duties.
On 24 October 2012 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination under the SRC Act disallowing the applicant’s claim.
Following a request by the applicant, dated 25 October 2012, for a reconsideration of the abovementioned determination, a Review Officer of the respondent, on 16 April 2013, made a “reviewable decision” under s 62 of the SRC Act affirming that determination.
On 23 April 2013 the applicant lodged with the Tribunal an application for review of the abovementioned reviewable decision.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T95, pp 1–173) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·supplementary documents (ST1–ST359, pp 1–933) filed on behalf of the respondent on 6 December 2013 (Exhibit R1);
·statement of the applicant, dated 11 September 2013 (Exhibit A1);
·report of Clinical Professor Guy van Hazel, dated 16 December 2013 (Exhibit R2);
·three published articles relating to oral cancer cited by Professor van Hazel (Exhibit R3); and
·the oral evidence of the applicant and of Professor van Hazel.
The Applicant’s Evidence
The applicant confirmed that he had signed a statement, dated 11 September 2013, prepared for the purpose of this proceeding, and that its contents are true and correct. That statement is as follows:
“1. I was born on … October 1947. My father was in the navy when I was born and my mother had served in the army.
2.My mother was unable to care for my sister and me and gave us to my father’s parents to look after.
3.My grandparents couldn’t afford to keep us and so when I was three years old, my sister Janice, who was five and I were sent to an orphanage ...
4.We stayed there until I was nine, when my mother remarried a farmer from Kondinin and took us back.
5.… was a bastard of a place. We would regularly get hidings and I remember being dunked in kerosene to get rid of headlice.
6.We were hungry all the time and would be punished for eating with our hands. The headmaster would belt our heels and sometimes our insteps.
7.When we left … we were taken to my stepfather’s farm in Kondinin.
8.When I was 15 we moved to South Perth to live and I went to Kent Street High School for a year.
9.I then commenced a carpenter’s apprenticeship with the Public Works Department which I continued until I was 19.
10.I didn’t finish the apprenticeship because I was called up on the 1st of May 1968 to do national service.
11.I was sent to Puckapunyal training centre for initial training and then to the Corps training centre in Singleton.
12.I was then sent to Canungra for the remainder of my national service.
13.I completed my two years of national service and signed up for a further year and was transferred to SAS Western Command at Swanbourne as a driver.
14.When I went into the army as a 19 year old I didn’t smoke and I didn’t drink. Although I was excited about being in the army and did not resent it, I was lonely and I missed my family.
15.I had been living in Dyson Street, South Perth with my stepfather and mother and my four half-brothers who were quite a bit younger than me.
16.I also missed my girlfriend and my job as a carpenter.
17.I do resent now that I wasn’t able to finish my apprenticeship.
18.I tried smoking for the first time about three weeks after I had arrived at Puckapunyal.
19.We were provided with cigarettes amongst our sundries in our ration packs.
20.The number of cigarettes in a ration pack varied from 3 to 9, which was the daily ration.
21.We received the ration packs during our recruit training.
22.We would also go to the wet mess about four nights a week.
23.The wet mess was full of smoke and most people would smoke.
24.At recruit training there were more West Australians than Victorians and I would socialise with the West Australians.
25.We didn’t get on very well with the Victorians.
26.Some of the people I remember socialising with were Mac Hunter, Tim Caine and Terry Healey.
27.I believe I took up smoking because of the way the army training regime was enforced, because of the environment that I was in, and the constant stress that I was under.
28.I have always had the view that there are two ways to do things – a pleasant way and unpleasant way and the army way was always the unpleasant way.
29.At Puckapunyal we were made to have cold showers. I arrived in May and it was cold in Victoria. The only time we had hot showers was in the 24 hours before our passing out parade, 3 months after arriving at the base.
30.I remember one incident during recruit training when it was a requirement that we would have to shave every morning.
31.I remember that I had shaved quickly one morning and I recall a sergeant asking whether I had shaved. I said that I had.
32.The sergeant made me waddle like a duck to get my razor and quack.
33.When I brought the razor back he scraped it on the ground and made me shave with it. My face bled profusely.
34.As a punishment the whole platoon got leaps.
35.Leaps are a punishment where the whole platoon had to get out of bed at night, get into a particular standard of dress and get out the front.
36.It was always a different set of clothes, such as one boot, hat etc, always different each time.
37.If the whole group didn’t come out dressed the way they had been ordered to be dressed then we would have to keep going until we got it right.
38.I recall we had to do leaps about a dozen times during the three months that I was at Puckapunyal.
39.You also felt that you let down the rest of the platoon if they were punished because of something that you had done.
40.I recall that a couple of days later because my face had been cut with the blunt razor I could not shave closely.
41.I got picked on again and asked why I hadn’t shaved properly.
42.When I explained it was because of the sores on my face I was told to go to the MO.
43.I said I wouldn’t go there because I’d just simply get laughed at. I was then threatened with a charge for insubordination.
44.Bastardisation was rife at Puckapunyal.
45.I remember that on ‘emu bobs’ we would have to pick up every foreign item that was on the ground.
46.We had to pick up cigarette butts, scrape up chewing gum, and pick up sputum where a soldier had spat on the ground.
47.On one occasions [sic] I refused to pick up a cigarette butt and went up on a charge.
48.I couldn’t understand how picking up cigarette butts would make me a better fighter or a better soldier.
49.We also used to do exercises up ‘Tit Hill’, which was a big hill. We had to run up and down, and if the officer didn’t like you, you were history.
50.On one occasion we were doing revision on SLRs, disassembling and reassembling our rifles.
51.After reassembling my SLR I picked it up and went ‘bang, bang, bang’ as a bit of a joke.
52.The corporal made me run up Tit Hill with my rifle at ‘high point’.
53.When I got back I had not run fast enough and had to run back holding the rifle at ‘high, high point’.
54.He called over the sergeant and I got charged.
55.During that time I went to the MO because I felt that I was having problems coping and dealing with things.
56.The way we were treated brought back recollections of how I was mistreated during my childhood at the orphanage. During my army service we were under constant pressure.
57.I remember one occasion where a corporal kicked over a rubbish bin that hadn’t been emptied and as result made the whole platoon do leaps.
58.To get through and get over the stress I would have a drink and have a few smokes.
59.Cigarettes were always available at the wet mess and were cheap. Often I would swap sweets from my ration packs for cigarettes from people who didn’t smoke.
60.Every time we were on training and would stop I would have a cigarette. I would recall that we would be told ‘those that smoke, have a smoke, others go through the motions’.
61.We were also taught that if a soldier was injured, or close to death we should make them as comfortable as possible and give them a cigarette to relax them until the medic could get there.
62.Smoking was pretty much standard.
63.By the time I went to corps training at Singleton I was smoking reasonably heavily – about 1/3 of a packet a day.
64.By the time I had finished corps training I was smoking about 2/3 of a packet a day.
65.We obviously didn’t smoke all day long, but only when we were given the opportunity to do so also at night in your own free time.
66.While I was at Canungra my smoking habit increased to approximately a packet a day.
67.There was an incident where a soldier drowned and I remember reacting badly, thinking that we were soldiers but we could be dying at home as easily as in Vietnam.
68.Comradeship was very important during my army service.
69.I recall when our friend Scotty who was from Scotland had an accident not far from the camp.
70.He was a passenger in a car which came over a bridge and hit the bridge rail which went through Scotty’s head.
71.That’s when I felt more depressed and stressed. I was smoking more heavily to relieve tension.
72.I enjoyed the army and what it stood for, but certain individuals made it hell.
73.The reason I had signed on to come back to WA was to try and get a tour to Vietnam.
74.As it became more obvious that I would not get to Vietnam I became more depressed.
75.Despite requesting that I go to Vietnam on a number of occasions I never got a clear answer.
76.That was one of the reasons I transferred to the SAS as I thought I would be more likely to go to Vietnam, but when I arrived two squads had already gone and there was clearly no chance of me being called up as a recruit.
77.That made me more depressed.
78.By the time I was at Canungra I was addicted to smoking.
79.At Canungra that [sic] I would wake up and have a cigarette in my bed first thing before having breakfast or anything.
80.I couldn’t go anywhere without having cigarettes with me and when we would stop on exercises I would smoke two or three at a time.
81.While in the SAS I was a driver in base squadron.
82.I lived out of the base and so there was no restriction on my smoking whenever I wanted to.
83.I would not smoke while I was driving the trucks but would when we stopped and were waiting, which was quite often.
84.I was smoking approximately a packet a day. I didn’t try to give up at any time while I was in army; I didn’t feel the need to.
85.The first time I tried to give it up was in mid 1971 when family and friends encouraged me to give up smoking because I was coughing.
86.I thought it would be no problem and tried to completely stop.
87.That lasted about two days and I became irritable and angry and I had to start smoking again.
88.Over the coming years I tried many years to give up smoking using various methods.
89.I tried to pace myself and reduce my smoking – that didn’t work and I would simply increase my smoking back to its normal rate.
90.I couldn’t do that for more than a couple of days at a time. I also tried to limit the number of cigarettes that I kept in a packet but I’d always find myself in a shop buying more.
91.I even tried putting cigarettes into my mouth but not lighting them, but it wouldn’t take long before I’d end up lighting the cigarette and smoking it.
92.It was not until I was able to use nicotine patches in the 1990s that I was able to give up smoking with the assistance of my doctors.
93.At times, particularly when I was truck driving, I would buy cigarettes by the carton to ensure that I wouldn’t run out.
94.When I was seeing Dr Prichard about my asthma and Dr Aunins, I was advised to give it away and got a prescription for nicotine patches.
95.I was on the patches for a number of months until I was able to give up. I firmly believe that I would not have taken up smoking had I not been exposed to it in the army and that I became addicted to smoking in the army.
96.Once I’d left the army there weren’t the same pressures, but I still couldn’t give up smoking despite trying.
97.I was no longer smoking to get over stress and tension, but simply smoking for the sake of it because I was addicted.” (Exhibit A1)
In his examination-in-chief the applicant also gave the following evidence:
·he commenced his national service training at Puckapunyal where he was based for three months;
·at the Puckapunyal base he lived in barracks on the base;
·during his three months at Puckapunyal he was allowed to leave the base only once when he went for “a little bit of R and R” and he returned later that day;
·he attended training courses from 7.00 am to 5.00 pm each day and the rest of the day was “down-time” during which he would perform duties such as cleaning his rifle, cleaning his boots, and washing his uniform, and he would go to the wet mess four night per week;
·although he had “down-time” each day, he was “on-call 24/7”;
·he was then transferred to Singleton for his corps training and he was there for three months;
·at the Singleton base he lived in barracks on the base;
·his situation at Singleton was “virtually the same” as at Puckapunyal, except that his training activities were more advanced, and he was no longer a recruit, but a Private;
·he was then transferred to Canungra where he spent the remaining 18 months of his national service working in “demo platoon” company in the Jungle Training Centre as a driver;
·at the Canungra base he lived in a tent/marquee on the base;
·as at Puckapunyal and Singleton, he was responsible for cleaning his rifle and boots and he would also “go out and play pool and have a few drinks and a few smokes” after working hours, but he remained “on-call all the time”.
The applicant was then asked about his seeing Dr Meyerkort and Professor van Hazel in 2012. His evidence was as follows:
“ Now, just a couple of things. Now, you saw Dr Meyerkort?---Yes, I did, yes.
And you saw Professor Van Hazel?---Van Hazel, yes.
Just with Dr Meyerkort, do you recall how long you spent with
Dr Meyerkort?---As in with the interview?As in the time of the appointment?---I stayed about an hour.
About an hour. All right. Now, because I understand – - -?---Because I had a vehicle waiting for me, yes.
Yes. As I understand it, that was in relation to your claim for – effectively for the benzene – - -?---Yes.
- – - petrol-related claim that you had made. Did you talk with Dr Meyerkort much about your smoking history?---He asked me if I smoked and I told him yes. And the times – well, when he said, ‘When did you start?’ I told him when I started. And, ‘When did you finish?’ Now, the time that I told him that I finished was obviously – was – when I told him I finished, I think it was – I’m not certain whether he got the right one or not, because I went through a bad period there for a while when I was under the psychiatrist of Tim Clarke.
Sure?---Because I had a bit of a melt-down there for a while. But in actual fact I did continue to smoke until the '90s.
Yes, but what I was asking is – I’m just wanting to explore a little bit the meeting, the appointment that you had with Dr Meyerkort, whether or not – - -?---Yes.
Well, did he simply ask you whether you were smoking or did he ask you – - -?---It wasn’t a big thing. The main thing was about the benzene – - –
Sure?--- that he spoke to me about. And then he asked me how did I get hold of these benzene things.
Yes?---And which gas which we used and all that. And I explained that to him, how we did that.
Yes?---Now, there was a mention of smoking but he didn’t elaborate on how long was it [sic].
Okay. So did you talk with Dr Meyerkort about your smoking history in the army?---I did.
All right?---I told him – like, well, back – it’s actually what I’ve got here written down, is that I started smoking about one-third of a packet when I was in the recruit training. And then when I went to core [sic] training that that is really to about two-thirds. And then when I went to Canungra it escalated to a packet plus, sometimes a bit less. About an average of a packet a week – a day, I should say.
All right. So similarly, when you went and saw Professor Van Hazel, how long would your appointment with Professor Van Hazel have been?---I saw him at the Mount Hospital. I wasn’t there all that long actually. I would say roughly about a half-hour.
And again that was – the focus of that was for the benzene-related – - -?
---Benzene and metal substance use for sprays and stuff you use, you know, all chemicals that we used.So did you spend any time with Professor Van Hazel talking about your smoking history in the army?---Yes, we spoke a bit about the smoking time in the army.
Did you speak – - -?---But he didn’t – I told him I stopped smoking earlier than what I did – - –
Sure?--- – - – because I was ashamed of what I had actually been doing.
All right. I’m just wondering did you talk [sic] Professor Van Hazel about, you know, any sort of differentiation between time in the army when you were on duty and off duty or – - -?---Yes, my word. Well, when I was on duty in the army, I mean, we didn’t just smoke after-hours, because when I was on duty you could go from here – well, you might do two hours walking for something. And then when you stop your time is yours. They tell you, ‘For those who smoke, go. And those who don’t smoke, go through the actions.’
Sure. But in your statement you say you did smoke in your recreation time?---Yes.
At the wet mess and that sort of thing?---Yes, all the time, yes.” (Transcript, pp 10–11)
[The relevant reports of Dr Meyerkort and Professor van Hazel are set out in paragraphs 33 and 22, respectively, below.]
In cross-examination the applicant was referred to a report of Dr James Fellows-Smith, Psychiatrist, dated 13 December 2012, in which the following paragraph appears:
“ Smoking history
In my first report dated 28.05.2009 page 3 paragraph 3 line 6 I stated that Mr Gibson’s history was that he had smoked during his army years 1968-1971 however he was successful in ceasing smoking. Mr Gibson stated that he was smoking twenty five x 18mg cigarettes per day during his army career army [sic] however he cut down to smoking between 10 and 15 x 18mg cigarettes per day on leaving and then ceased in 1996 when he moved to … Armadale where he lived with his defacto. I note that his defacto was a non-smoker and he ceased smoking by getting a prescription for cigarette patches from his general practitioner Dr Walter Aunins at the Hills Medical Centre, Armadale.” (T33, p 98)
The applicant acknowledged that he had told Dr Fellows-Smith that he was smoking 25 cigarettes per day during his army career but that he cut down to smoking between 10 and 15 cigarettes per day on leaving, and then ceased in 1996. Asked whether he stayed “cut down to 15 cigarettes per day until 1996”, he said:
“… no, I wouldn’t say that would be true.”
He added that “it could have been up to 15 to 25 a day” (Transcript, p 29).
The applicant also acknowledged that he was not smoking 25 cigarettes per day during his recruit training (at Puckapunyal) and his corps training (at Singleton), and he added that it was after he had completed his training when he was at Canungra that he was smoking 25 cigarettes per day. Asked whether he told Dr Fellows-Smith that he “started off initially smoking one-third of a pack, and then two-thirds of the [sic] pack”, the applicant’s evidence was as follows:
“ No, I – no. What I said was, I was smoking approximately one-third of a packet of cigarettes in core [sic] training – I mean recruit training. About two-thirds of a packet in core [sic] training. And then I went to about a packet and a half in Canungra because I was just getting more and more into it.
Yes, but did you tell him that because he didn’t record it?---Well, I presume I did, yes.
Yes?---Whether he asked me or not, I don’t know.
Yes. All right?---I do not recall that interview 100 per cent.
No. So it’s possible that you didn’t and he just – - -?---It’s possible I did too.” (Transcript, p 31)
The applicant was referred to a report of Dr Phillip Meyerkort, Occupational Physician, dated 10 September 2012, in which the following paragraph appears:
“ Personal/Social History:
…
Mr Gibson stated that he smoked occasionally during his Army service from 1968 to 1971. He stated to me that he had not smoked since, however correspondence from Dr Jaye Martin (Consultant Physician) from 19 March 2002 stated ‘He stopped smoking six years ago.’ – that is 1996.
…” (T23, p 67)
His evidence was as follows:
“ - – - and if you look at the second paragraph, he says – and this is a conversation in 2012, he says, ‘Mr Gibson stated he smoked occasionally during his army service from 1968 to 1971.’ Now, did you tell him that?---I did. And again when I said I smoked occasionally, which was to me occasionally was one-third of a packet, and then it went up bit by bit. And then, as I said, when I went to see the doctor, I was embarrassed about the fact that I had been smoking so much.
Yes. I mean, occasionally may mean that you just smoke on occasions, not regularly?---Well, 15 cigarettes a day is pretty occasional for what I would class as occasional.
…
All right. Well, you see, I suggest to you that you conveyed to him an impression that you smoked on occasions in the army, that you didn’t smoke every day in the army?---I did smoke every day in the army.
That’s the way Meyerkort recorded it?---I will put my hand on that bible again and I will say it again, ‘I smoked every day in the army’.
Now, the next sentence says, ‘He stated to me that he has not smoked since.’ Do you see that? If you look at the next – - -?---Yes, and I said that. And I told you that I said to him – sorry, I told you that I am ashamed. I was embarrassed to say that I was smoking because to my – when I was smoking, I wouldn’t smoke in front of my lady, I wouldn’t smoke – I would go outside. I used to hide around the corner and smoke.
So again, without being critical but just for the purposes of putting the matter before the tribunal, for whatever reason, that statement from what you say now, was not true, that you had not smoked since 1971?---Well, I didn’t write that statement so I don’t know.
No. But if the tribunal accepts that you said to Dr Meyerkort that you haven’t smoked since 1971, let’s assume it interprets it in that – that’s not right, is it?---No, that’s right. It is not right, no.” (Transcript, pp 32–33)
The applicant was referred to a report of Professor Guy van Hazel, Consultant Medical Oncologist, dated 10 October 2012, in which the following paragraph appears:
“ Personal/Social History:
…
He is an ex-smoker and apparently gave up in 1996. He told me he was only a light smoker but I suspect smoking was much heavier than he admitted to.” (T24, p 79)
His evidence was as follows:
“ And he recorded a history under ‘Personal social history’. He said, "He told me he was only a light smoker," and this is after you told him that you gave up in 1996. Now, did you tell him that, that you were only a light smoker?---Is that under ‘Personal social history’?
Yes, the second sentence?---Yes. Yes, I did.
And when you told him that, from what you say now, that wasn’t true?---That there is true, yes.
That you were only a light smoker?---I believe I was a light smoker, yes.
Okay. So you believe that – - -?---I can only say what I believe, you see, I can’t say anything else.
That’s okay. So you’re – as I understand your answer it is as far as you’re concerned you’ve always been a light smoker?---I wouldn’t say I was always a light smoker. I started off being a light smoker but I got heavier as I went on because I started smoking more cigarettes.
Well, prior to ceasing smoking in the 1990s would you have regarded yourself as a light smoker or a heavy smoker?---I would have been a pretty heavy smoker then.
…” (Transcript, p 34)
The applicant was next referred to a “Cigarette Smoking Questionnaire”, dated 21 October 2012 (T25). He said that he remembered completing that questionnaire and confirmed that he had signed it. The contents of that questionnaire may be described as follows:
·in answer to question 1, “Have you ever smoked cigarettes on a regular basis?”, the “No” box has been ticked;
·an arrow has been drawn from the response to question 1 to the words “casual basis” which have been written in the space provided for the answer to question 2, “When did you first start smoking cigarettes on a regular basis?”;
·in answer to question 3, “Why did you start to smoke cigarettes on a regular basis?”, the following has been written:
“ Bordem [sic] plus being one of the boys when I was in the army”;
·in answer to question 4, “Have you ever stopped smoking permanently?”, the “Yes” box has been ticked, and, in answer to the follow-up question, “When did you stop smoking permanently?”, the following has been written:
“ 1971–1972”;
·at the bottom of the form the following statement has been written:
“ I do not recall having told any GP that I was a permanent smoker, as I find that for a doctor to mention this, is to be untrue”.
followed by the applicant’s signature.
The applicant was cross-examined in relation to the abovementioned questionnaire as follows:
“ MR LENCZNER: … Now, you – the first question is, ‘Have you ever smoked cigarettes on a regular basis?' The tick is ‘No’. Do you see that?---Have I ever – - –
The first question. Read it at your leisure?---That was because – that was before I went in the army.
It says, ‘Have you ever smoked’ – you say that this is meant before the army; that’s the way you understood the question?---Yes.
All right. And then you say – there’s an arrow that says ‘casual basis’?
---Yes.So does that mean that you’re saying that you’re smoking on a casual basis before you went into the army?---No, no, not that.
So what does it mean?---That form there, I was led to believe that this is for while I was in the army.
Yes?---Have you ever smoked on a regular basis in the army? Well, yes, I did but before I was in the army, no, I didn’t. I came from a very, very strict family, a step-father who wouldn’t tolerate me even thinking about it.
And then you said – in question 3 it says, ‘Why did you start to smoke cigarettes on a regular basis?’ And you said, ‘Boredom, plus being one of the boys when I was in the army’?---That’s part of it.
Yes. Well, that’s all you put in there at the time?---That’s what was written there, yes.
Yes?---That’s only part of it though.
So but you said – why did you start smoking cigarettes on a regular basis?
---On my earlier answer I’ve got written down there that the reason why I started smoking was because of bastardisation and stress.Yes. Well, why didn’t you put it in there?---Because that was a different time.
No, no, no, it says, ‘Why did you start to smoke cigarettes on a regular basis?’ I’m assuming that from the answer that you’re saying you started to smoke on a regular basis in the army; is that right?---That’s true but at the time this was filled out was a different time to the one I mentioned now about the bastardisation and things that they had to have us do.
Well, you said in the statement that – and I will go back to it in due course, but there were lots of things that happened to you in Puckapunyal, you know. They made you go and pick up things off the ground and do things with rifles and whatever. And that’s why in the statement that you’ve provided this morning you talk about these sort of activities and you smoking, and you feeling stressed by these activities. You remember that, don’t you?---Very clearly.
Well, the way I understand your statement is that’s what you’re blaming the smoking for. But when you’re asking [sic] in the questionnaire in October 2012 why did you start to smoke cigarettes on a regular basis – which I assume relates to the army, doesn’t it?---Well – - –
Why do you say, ‘Boredom plus being one of the boys’?---Well, that was part of it. As I said to you, there was – that was part of what my statement said. Now, there is no way I need to put it in there because of what I’ve written in my statement, those paragraphs. So I just put down the basics in there. And I said to my advocate, ‘Would that be okay?’ And he said, ‘It should be’.
You understand that there is a big difference between what you’re saying here and – - -?---I do understand that now you put it that way.
- – - what you’re saying in your statement?---You see – - –
Do you accept that?---At no time have I said I smoked before I went in the army, ever.
Yes, that – I will get to that in a minute but – - -?---And also there’s two items there, which is boredom and being one of the boys.
Yes. There is a big difference between saying that, and what you’re saying in your statement which talks about bastardisation?---They’re both true. They’re both true in the way I see it, because that was part of it, what’s on the form in front of you now. And the other statement I made is true as well, which is the two separate issues.
Do you accept that there is a difference between saying that the cause of your starting to smoke was boredom plus being one of the boys when you were in the army and – - -?---Not solely – - –
DEPUTY PRESIDENT: Wait for the question?---I thought he had finished.
MR LENCZNER: – - – and the allegation of bastardisation. Do you accept that, that there’s a difference?
DEPUTY PRESIDENT: Ask the question again, Mr Lenczner.
MR LENCZNER: Yes. Do you accept that there’s a difference between answering to the question, ‘Why did you start to smoke?’ saying ‘Boredom and being one of the boys,’ and the answer, ‘because of bastardisation’ – do you accept that there’s a difference between the two?---I hear what you’re saying. There is a difference between the two but at the same token, I still believed that that part there and the paragraph which is in the other statement I made are read together, because they all mean the same – to me, they all mean the same, if that makes sense. I don’t know.
No, it doesn’t?---It does to me. I mean – - –
I don’t see that?--- – - – if I had have written those few words on the other statement I made, which is different to that, if I had written it, we wouldn’t be discussing it. The fact that I’ve missed putting all that down there on the other statement down with this – so I believe that that statement there and the other statement, are both true in the way I see it.
And then as you go to the next question, ‘Have you ever stopped smoking permanently?’ And you said, ‘Yes. 1971 to 1972.’ Do you see that?---Well, see, again that – this is where this is not right because, you see, at the beginning it says, ‘No.’ I thought this was before I went in the army, and from, you know, what I’ve done now. Yes, I have stopped smoking permanently.
But it says 1971 – it says, ‘When did you stop smoking permanently?’ And you must have read that because you actually put some dates in there, ’71 to ’72?---I put dates in there but I – well, it was probably me. But I thought this was prior – sorry – after the army.
No, look, I don’t understand the answer?---I’m getting mixed up myself here because the first question, ‘Have you ever smoked on a regular basis?’ To me, I put ‘No,’ is because I thought that was before I went in the army. The bottom one where it says, ‘Have you ever stopped smoking permanently?’ Well, I have now and that was some time ago. But, as I said, that date is not right because again that there relates to me not telling the truth about smoking from the time I got discharged to the time I did stop smoking.
Do you agree that that answer – the answer you were saying that you stopped smoking permanently, that means forever, in ’71 and ’72 – for whatever reason you said that, do you agree that that’s what that answer meant to you?---There?
Yes?---At the time of me saying that, it was me hiding the fact that I was smoking for the time, yes.
All right. And then you said in the – that’s your handwriting at the bottom of the page, ‘I do not recall having told any GP that I was a permanent smoker as I find that for a doctor to mention this is to be untrue.’ Is that your handwriting?---That is, yes. Now, do you want me to elaborate on that?
Yes, of course?---Now, when I was going – I put a claim in for chemicals we used in the military for benzene and gas and quite a few other items I can mention, I was dealing with a chap called C… from DVA …. Now, he said to me at the time, he said, ‘If you had have put in for smoking,’ he said, ‘we would have paid it and we would have covered you.’
Sorry, I can’t – - -?---He said to me, ‘If you had have put it down for smoking, we would have covered it.’ I said, ‘All right.’ I said, ‘I put in for the damn smoking,’ I said. Something has caused this, you know. Anyway, so that’s what I did. And I have been led by DVA and I have been following their lead from C… from the DVA.
So you’re saying that you put all this down knowing it was false because of something that DVA told you?---Not knowing it was false. I didn’t put it down knowing it was false. I put it down because I was ashamed of what I had done. Because I had told two doctors that I didn’t smoke. So I can’t – I mean, I’m still ashamed from that day to this about it.
Yes. But you see, you saw Dr James Fellows-Smith for the report in December, around I think December, and this is in October. So you must have suddenly changed your shame into – - -?---In the meantime I had done a lot of homework and found out why, you know – sorry, not why; when. When I did stop smoking. As I said, it took me ages to rally up a few guys from the army. And I had to go around and get proof of a doctor, Michael Prichard, the specialist in Mount Hospital. And also from the oncologist at Fremantle. So between those two chaps, they’re the reason why I don’t smoke today.
So does that mean that by December of 2012, having chatted to your friends, when you saw Dr Fellows-Smith, you worked out that it was in your interest to say that you smoked a lot in your army career and that started you off on your career of smoking? Is that the reason for the change from the way you felt when you did the questionnaire to when you saw Dr Fellows-Smith, what, a couple of months later?---When I found out the actual true [sic] about – as I said, when I had that bad time, I lost reality with lots of things. And then I realised that there had been a mistake made on my behalf and I had to rectify that mistake. And to the best of my ability I think I’ve done that, and I hope – well, I hope I have.
But, as I understand what you’re saying is that in the two months between filling out this questionnaire on 21 October and seeing Dr Fellows-Smith whose report is 13 December of the same year, you spoke to people, worked out how to get rid of your concerns and put the history you did to Dr Fellows-Smith; is that – - -?---That’s not really true, no. What it was, when I went to see Dr Fellows-Smith, I was a very, very sick man, laying it on the line. If I don’t tell him the utmost truth, bang, bang, bang, he can’t do anything for me. We sat down and we talked about this. We had spoken about lots of things. And the bottom line was if I tell him something that is not true and he gives me some medication for it or something, it’s not going to do me any good. So I had to be upfront and hide all my fears. Because, you see, this stems not just from one meeting. This stemmed from quite a few meetings. I had been seeing James for a fair while, and this stemmed over a period of time of getting things sorted out with me before I sorted anything else out.
I still don’t understand and I’m – what is it that the DVA did which made you complete that statement the way that this statement is completed?---Well, what I was told, you know, like, not pointing fingers or anything, I don’t like doing that. But being, you know, like, green at it, you see, I don’t have anyone to give me a hand to do things, I do it myself the best way I can, apart from I get an advocate now and then. And the advocate I had, he shows you what you can do, and you’ve got to go and do it yourself, basically. And you do that. But when you do three years research and something, which I did, and get told that, no, that’s no damn good, that was really a bit of a kick in the backside.
I’m sorry, I think I understand. The three years research which you were told was not good, was in relation to that other claim, the benzene claim?---Yes.
I see. So when the benzene claim fell over and it was suggested that this is all due to smoking – this is your mouth cancer – - -?---No, that’s not really fair because I did mention that before and he said to me – a lady who used to be in ANZAC House, but she’s not with ANZAC anymore, she printed out in the letter that smoking – if you get cancer while you’re smoking – if you get cancer through smoking don’t even bother putting a claim in because you won’t get it.
Right?---Right. And that was going back some time ago.
Yes?---And all of a sudden – I didn’t know about, like, which chaps I speak to, you know, like you do with the ranks and that, and also your doctors and things like that, they said to me, ‘Why don’t you put in for smoking?’ And then I ring up C… and I spoke to C…, and he said to me, ‘Mate if you had have put that in the first time, you would have been on your way with it.’
I see. So the way it works is that you spoke to some friends and then someone told you, from DVA, that if you could show that you were smoking because of the military you could get up in your compensation claim; that’s what you mean?---That was part of it.
Yes, I follow?---It wouldn’t have been the complete lot of it; that was part of it.
…” (Transcript, pp 37–42)
The applicant was later cross-examined further in relation to the abovementioned questionnaire and, on that occasion, he denied drawing the arrow which appears on the form leading from the response to question 1 (see the second dot point in paragraph 14 above).
The applicant confirmed that about 10 years after his discharge from the Army he had the genuine belief that he had served in Vietnam in 1970-1971 and that he was a Vietnam veteran. His evidence continued:
“ Yes, and then on the basis of that you made a claim to the Department of Veterans' Affairs, which claim was refused when they said well you had never been to Vietnam, is that correct?---Exactly, yes. See, that's why I started seeing a psychiatrist and paid out of my own money to try and get help to sort me out.
When is it the first time, approximately, when you decided that you hadn't been to Vietnam?---Well, it was during – probably about half way through the time I was seeing Tim Clarke [Psychiatrist], I suppose, that – so I wrote to a few mates I knew around Australia and we spoke about different things and they said ‘Well, you couldn't have gone there, Gibbo’ – because my nickname was Gibbo – he said ‘You couldn't have gone there.’ And I started realising – you know after I got a few mates talking to me that maybe this didn't happen.
So when would that have been – the 1990s?---Honestly, I couldn't say. …”
(Transcript, p 45)
The applicant was referred to a report of Dr Brendan Jansen, Psychiatrist, dated 31 December 2001, regarding his examination of the applicant at the request of the Department of Veterans’ Affairs in respect of the applicant’s claim for compensation for post traumatic stress disorder (Exhibit R1, ST23). It was put to the applicant that, in the sections of Dr Jansen’s report dealing with the applicant’s “Service History” and “Details of Traumatic Incidents”, there is no reference to “bastardization”. The applicant’s evidence was as follows:
“ ---Well, I didn't class bastardization as a traumatic experience.
Okay?---As in a death. A death to me is traumatic, that's the way I interpreted it. Bastardization was just from one person to another which was – it's almost like a self-satisfaction thing.
Well, is it also because at the time you just didn't regard those events of bastardization as being particularly significant?---No, it's not. No, definitely not. Most of their bastardization is a very, very personal issue on the people who were doing it. It wasn't everyone though, just a certain few.
…
… But you didn't say anything about people being particularly unpleasant to you when you were at Puckapunyal?---The reason why that wasn't brought out in the open a lot is because – and you definitely won't see it in my record – is because if someone's created a bastardization act on somebody, which happened quite – not just to me, to other people – that would not be in your records because if it is you're putting yourself then into trouble straightaway. In those days you can get – they could do that and get away it; today you can't.
So you're saying that when these doctors basically say to you ‘Tell me about your life in the military and what issues may have troubled you’ you, for some reason to do with maybe getting into trouble, omit the reference to bastardization but talk about deaths and such like. Is that what you're saying?---No, that's not how it is. How it was is that, as I said, from any incident – like, bastardization I'll get over that but traumatic experience to me, like, my mother and father died, that's a traumatic experience to me, that's something I'll never forget. It's the same when these people got killed; that's very traumatic to me and I mean to say that we – as I said, to work together, you know, you're very close knit when you're in the Army; you're [sic] rely on each other for everything and when one of them goes down that's when it's very traumatic, it's very – it is; and I mean I was only 19 at the time and not knowing what I know now and I took – you take it on board very, very strong.
So in the category of things that may trouble you bastardization is somewhere lower down than these sorts of incidents?---I wouldn't say it doesn't trouble me. Everything troubles – if it's a problem – you know, we are all individuals and we're all different, things will trouble you in any way but a death to me is a – the highest level of traumatic you can get. That's in my – with my experience. I've seen mates on the road get killed that have been driving trucks, and that's the same thing.
See I suggest to you that the issue of the various incidents you pointed out in the military – you know, being made to pick up things off the ground, you know, some phlegm, taught to shave with a blunt razor and that sort of stuff – - -?---Yes.
It's just the expected stuff – - -?---No
- – - trivial stuff I suggest to you?---No, sir.” (Transcript, pp 48–49)
The applicant was referred to a report of Dr Stephen Proud, Consultant Psychiatrist, dated 19 October 2009, regarding his examination of the applicant at the request of the Department of Veterans’ Affairs in respect of the applicant’s claim for compensation for aggravation of pre-existing depression (Exhibit R1, ST118). His evidence was as follows:
“ Now I suggest to you the doctor would have asked you what had troubled you in respect of the military service. Do you agree with that?---Yes, I do, yes.
You didn't mention anything about the bastardization issue?---The reason I didn't mention it – didn't and haven't until this came up here is because who's going to believe you for a start unless you were there? And it was a well-known fact that it happened, and not just saying in one camp, in many camps. But it was to a degree where it wasn't like ‘You should go to your Sergeant and say, look, Sergeant … has asked me to go and pick up phlegm’, blah, blah, blah; and you'd just get snubbed off. And, as I said, there was only a very minority of people who did it and if they targeted you're history. I got targeted. I had – you know, I used to say my piece because – and the reason why I'd say my piece, as I said, I grew up in an orphanage where I had to fend for myself and my sister, we got adopted, taken up to the country and our time up there wasn't very nice for us at all, not very nice one little bit. So we had to bring ourselves up and you voiced your opinion.
Is it possible that when you were seeing Dr Proud it just wasn't a matter or a particular concern to you at that time?---No, I wouldn't say that.” (Transcript, pp 53–54)
In re-examination the applicant gave evidence to the following effect:
·his feeling stressed as a result of acts of bastardization at Puckapunyal was not the only reason he started to smoke – cigarettes were cheap and were readily available at the wet mess, he was feeling lonely being away from home, and he was stuck at the base without any leave;
·when he completed the Cigarette Smoking Questionnaire, dated 21 October 2012, he was assisted by his (then) advocate;
·he wrote the sentence at the bottom of the form but he does not know how he came to write that;
·when he got to Canungra he was able to “handle things a lot better” because he was a trained soldier and he was “accustomed to what was going on”;
·his family was “dead-set” against smoking and he was too embarrassed to tell anyone who was very close to him, “apart from the military guys”, that he was smoking at the time.
The Evidence of Professor Guy van Hazel
Professor van Hazel, Consultant Medical Oncologist, confirmed that he had prepared three reports regarding the applicant, namely, a report dated 19 September 2008 (T4), a report dated 10 October 2012 (T24), and a report dated 16 December 2013 (Exhibit R2).
Professor van Hazel’s report of 10 October 2012, which is addressed to the Department of Veterans’ Affairs, states as follows:
“ …
HISTORY:
...
Occupation/Work Duties:
Mr Gibson enlisted in the Australian Army on Wednesday 1 May 1968 and was discharged on Friday 30 April 1971. His duties while in the service were transport and this apparently included cleaning metal parts and weapons and carting Avgas to various locations. He was required to syphon fluids from drums and occasionally would get a mouthful of the fluids. He also handled oils and metal degreasers. The main fluids that he would use were Avtur and Avgas.
After he left the Army he worked for approximately 18 months as a carpenter with AV Jennings building homes in Karratha. He then drove trucks for Brambles for 20 years and then drove trucks for a private company for another 12 months. He then developed his bad back and retired on a Veterans’ Affairs pension.
Onset of Symptoms/Sequence of Events:
Mr Gibson claims that his exposure to the chemicals increased his risk of cancer thereby leading to his locally advanced squamous cell cancer of the right retromolar trigone with which he presented in March 2002.
Treatment:
He was treated with induction chemotherapy followed by combined chemotherapy and radiotherapy completing this treatment on 25 July 2002.
He was then followed up regularly by the ENT Unit and the Medical Oncology Department and the Radiation Oncology Department at Fremantle Hospital.
On approximately 17 July he had a small procedure to repair a residual ulcer at the site of his tumour. No residual cancer was present on histopathology.
In April 2007 a routine CT scan detected abnormal lymph nodes which were found to be due to a Stage III low grade B cell lymphoma which was subsequently treated with chemotherapy and went into complete remission.
Current Status:
Currently Mr Gibson is free of either cancer with no evidence of recurrence of his squamous cell cancer of the floor of the mouth or of his low grade B cell lymphoma; however, he is disabled by chronic back pain and has functional problems with his throat following his radiotherapy. This includes xerostomia due to the damage to his salivary glands from the radiotherapy; he has difficulty with swallowing and because of his dry mouth he has to drink large amounts of water and his speech is slightly affected.
Current Work Status:
He is currently unemployed and is on a Veterans’ Affairs pension.
Present Activities:
His activities are severely limited and he does not venture far from home and he has to have a personal carer who lives close by him.
Present Treatment:
He requires no treatment for his cancers which are both in remission; however, he requires treatment for his swallowing difficulties – he can only eat puréed food, he needs to use a Biotene Oral Balance Gel and drink large amounts of water, he cannot tolerate soft drinks because of the acids contained in those drinks.
Past Medical History:
· Previous lymphoma diagnosed in 2007 (as above)
· Degenerative spinal disease
· Chronic Airways Disease
· Gastro-oesophageal reflux (GORD).
Personal/Social History:
He is divorced and has 3 children but has no contact with them at all. He lives in a Homes West house.
He is an ex-smoker and apparently gave up in 1996. He told me he was only a light smoker but I suspect smoking was much heavier than he admitted to.
PHYSICAL EXAMINATION:
Physical examination was basically normal.
Head and Neck:
Mr Gibson had a dry mouth and had some difficulty with speech because of this. He was edentulous.
The rest of the examination was unremarkable.
…”
Professor van Hazel then addressed the issue of causation of the applicant’s “squamous cell cancer” and expressed the following opinions:
·the extent to which the applicant’s army service contributed to the causation of that condition was in the range of 1–9%;
·he would describe the extent of that contribution as “moderate”.
He added:
“ I believe the contribution to this man’s cancer was his smoking during his service years. Although he minimised his smoking history when talking to me, Dr Michael Pritchard [sic] documents that Mr Gibson gave up smoking six years before 2002 so presumably he smoked during his service years right up to 1996. Therefore, only three years of his smoking history was during army service and I would estimate therefore that the contribution of his smoking to his head and neck cancer was only 1-9% and a larger contribution came from his subsequent smoking. I do not consider that exposure to Avgas or Avtur contributed at all to his cancer. There is no evidence firstly that Avtur has any components that are carcinogenic. Avgas has benzene derivatives in it and could be carcinogenic but has not been implicated in the cause of squamous cell cancer.”
He also opined that the applicant’s smoking after his army service contributed more than 50% to the causation of the condition, which he described as a “very significant” contribution.
In his report of 16 December 2013, which is addressed to the respondent’s solicitors, Professor van Hazel acknowledged that, in his report of 10 October 2012, he had mistakenly described the extent of the contribution of the applicant’s army service to the causation of his squamous cell cancer as “moderate” and he altered that description to “minor”.
In his examination-in-chief Professor van Hazel was asked to elaborate on the reference in his report of 10 October 2012 to the applicant’s telling him that he was “only a light smoker”. Having consulted his clinical notes, Professor van Hazel confirmed that the applicant had himself said that he was “only a light smoker” and had told him that he would have smoked only about 3 cartons of cigarettes during his 3 years of army service and that he had smoked his “last cigarette” in the “mid 1970s”.
In cross-examination Professor van Hazel gave the following evidence:
·he had found references in previous medical reports that the applicant had told other doctors that he stopped smoking in 1996;
·his opinion is that the applicant’s oral cancer was probably caused by his smoking;
·his opinion that the applicant’s smoking during his army service (1968–1971) made a “minor” contribution to the causation of his oral cancer was based on the assumption that the applicant had a 28-year smoking history from 1968 to 1996;
·if the applicant had smoked only during his 3 years of army service and had smoked only 3 cartons of cigarettes during that period, it is unlikely that that amount of smoking would have contributed to his oral cancer which did not develop until 2002;
·in his opinion it is likely that the applicant had a long history of smoking which probably caused his oral cancer;
·in estimating the extent to which the applicant’s smoking during his army service contributed to his oral cancer, he did not have regard to the applicant’s becoming addicted to smoking during his army service because he did not think that was relevant;
·he did not make any assumption as to what caused the applicant to continue smoking after his army service.
Additional Relevant Medical Evidence
Service medical records
The applicant’s service medical records include references to the applicant’s suffering from “sore and bloodshot” eyes and “tired watering eyes” in 1969 and (inter alia) the following annotations:
“ 22 Aug 69 … suggest cutting down alcohol”;
“ 4 Sep 69 cut down smoking and cut out alcohol …” (Exhibit R1, ST62, p 257)
Dr Brendan Jansen
A report of Dr Brendan Jansen, Psychiatrist, dated 31 December 2001, which was provided to the Department of Veterans’ Affairs in relation to the applicant’s claim for compensation for post traumatic stress disorder, states as follows;
“ I have been requested to provide a report on Mr Henderer [the applicant’s former surname – see Exhibit R1, ST36] in respect of his application for a Department of Veterans Affairs pension. I believe that this has been organised with the assistance of his advocate, …, and I would appreciate it if a copy of my report may be forwarded to him.
Mr Henderer attended two interviews with myself, each lasting approximately an hour and a quarter. He understood the nature and purpose of the interviews.
I am aware that Mr Henderer has a regular psychiatrist, Dr Tim Clark, and that he has also been assessed by Dr Oleh Kay in the past. Although I have had telephone contact with Dr Tim Clark about Mr Henderer I have not read any of his reports on Mr Henderer, nor have I had access to the reports of Dr Oleh Kay. My report will follow the diagnostic guidelines for psychiatric assessment and reports for the Department of Veterans Affairs.
Part I – Psychiatric History
Demographics
Mr Henderer presented as a 54 year old gentleman who is living alone. He derived his income from disability benefits from Social Security.
Presenting Problems
Mr Henderer presented with symptoms consistent with an anxiety disorder. This disorder was of some longstanding and involved the following symptoms: a tendency towards social isolation, for example, a tendency to stay home on most days, increased irritability and heightened levels of tension as evidenced by an increased startle response, difficulty with sleep due to self-reported nightmares, a tendency to avoid discussions with others particularly as they pertain to his military experience. He also avoids watching movies with a war theme. He stated that he had a ‘problem living in society’ because he was too ‘regimental’. He described the onset of the symptoms approximately ten years after he left the Army.
There was no history of significant alcohol use or dependence.
He admitted that approximately 20 years ago he ‘thought I’d been to Vietnam’. He admits to purchasing medals and to having conversations with others about his tour of Vietnam which he believed had occurred between 1970 and 1971. He described having nightmares about incidents in Vietnam but these were clearly not pertaining to actual incidents. He also described, for example, when he left the Army and was driving trucks, having ‘flashbacks’ as he was driving at night to scenes that he had thought were in Vietnam.
It is difficult to accurately characterise these phenomena. It could be an example of a false memory syndrome or the result of an active imagination fuelled by his own fantasy of having been to Vietnam. It was also probably contributed by his training in Kanungra, particularly during the battle inoculation events. His memory appeared to be for a conglomeration of what he experienced in Kanungra in training, stories he has heard about Vietnam and what he imagined would have been the case were he to have gone to Vietnam. His anxiety levels are to the extent that he sleeps with a knife under his pillow and a bayonet beside his bed. He was keen to highlight his current level of distress but was also keen to explain that he did not mean to mislead others when he spoke of his imagined trip to Vietnam.
When he was made aware by a close friend that he indeed had not been to Vietnam but had ‘made up the stories surrounding his trip’ he demonstrated some integrity by confessing this to others including his treating psychiatrist. He burnt his uniforms and a plaque that he made up with Vietnam paraphernalia and his SAS badges he destroyed. He returned medals that he had obtained by what he now sees as false pretences.
Service History
At this point it is pertinent to describe Mr Henderer’s service history. In 1968 he was called up for National Service at the age of 20. He signed on after National Service, he states, with the intention of going to Vietnam. He underwent his basic military training at Puckapunyal and core [sic] training at Singleton, after which he was transferred to Kanungra. In Kanungra he was in the demonstration platoon and this platoon was involved in helping to train new recruits before they were sent to Vietnam. So keen was he to go to Vietnam that he applied for entrance into the reinforcement unit but did not end up being sent to Vietnam. He then put in for a transfer to SAS and to his dismay he was trained as a driver for the SAS. Strictly speaking, he was not part of the SAS regiment, although he stresses that he was involved in numerous training exercises during which he completed the same tasks as the members of the SAS regiment. He left the Army in 1971, he says, for two reasons. The first was that Australia was in the process of pulling out of Vietnam, and the second, he states, was because the Australian government were cutting back on items which soldiers were allowed to have. He felt that these cutbacks were unwarranted.
Details of Traumatic Incidents
Mr Henderer was keen to highlight for me several incidents which he underwent during his military tenure. He described the news of a close friend of his, Ricky, whom he had known prior to the Army, being shot whist in Vietnam, and hearing the news of his friend’s brother, Ian, being killed. On another occasion, a colleague of his fell off a truck while it was stopped (Mr Henderer and his colleague were both packing parachutes) and his colleague suffered significant head and neck injuries. On another occasion, a comrade of his was killed in Kanungra as a truck that he was in swerved too wide and hit a bridge railing which resulted in head injury and death of his friend. He was a pall bearer for him but freely admits that he did not witness the accident, nor was he involved in the cleanup. On yet another occasion, while training in river crossing, he was aware that two soldiers had been killed. He witnessed one of these in that he saw a trainee recruit lose his grip on the rope and float down the river.
Past Medical History
Back surgery, asthma, hypercholesterolemia, hypertension and fractured arm.
Medications
Clonazepam 6 mg per day, Venlafaxine 450 mg per day, Lithium 1000 mg per day, Atrovent and Pulmicort puffers, Lipitor, Netazadone 100 mg daily, Asasantin 400 mg daily, Acimax 20 mg daily and Panadeine Forte when required.
Personal and Social History
Mr Henderer’s personal and social history is somewhat complex However, several aspects should be highlighted. Firstly, he came from what can best be described as a military family. His maternal great grandfather was a veteran of the First World War, his biological father had been in the Navy and his biological mother was involved in World War 2 in Darwin. His stepfather was also a World War 2 veteran and his uncles had been involved in the World War 2 conflict.
When he was young, his mother and father were divorced and he was placed in a home from the age of 3 to 7½. When his mother remarried, they [sic] were taken out of the home, back into her care. Although her [sic] mother visited frequently, she could not manage the care of Ian or his elder sister financially. Mr Henderer describes the condition of the home as strict but fair. Thus, there were influences of institutionalisation even at this early age. His stepfather, Ernie, was also strict and hard, but fair. He moved to the family farm at the age of 7 and completed his primary schooling there. He attended high school at Kemp [sic] Street and left at the age of 14. After this, he completed a carpentry apprenticeship and worked up north as a roustabout . He was called up for National Service at the age of 20 with his mate, Ricky, whom he was working with and who was later shot whilst in Vietnam.
On leaving the Army in 1971, the [sic] drove trucks for a period of 25 years. He states that he never took any drugs associated with the truck driving. During this time he was married three times and had several other relationships. In all, he had four children, and this was to his second wife. Their relationship was characterised by infidelity on her part.
He developed an anxiety disorder between 8 and 10 years ago. He was required to stop work due to a back injury which he obtained compensation for and the case, I understand, has been settled. He has been seeing Dr Tim Clark for approximately 8 years due to his anxiety disorder.
Part II – Clinical Examination
Mental Status Examination
Mr Henderer presented as an overweight man who walked with two elbow crutches. His self care was reasonable and he was calm and cooperative during the interview. Indeed he was keen to relate his predicament which he did in an Australian drawl with occasional use of expletives. His mood was best described as euthymic with a reactive affect. Thought content did not reveal any suicidal or psychotic features. There was evidence of remorse over his previous beliefs that he had been to Vietnam. Exploration revealed these beliefs to have once been firmly held and did not appear to be a conscious attempt to mislead others. His insight was partially preserved. Although his cognitive status was not formally tested, there was no evidence of clouding of consciousness or impairment of short or long term memory.
Physical Examination
Physical examination was not performed.
Part III – Supplementary Clinical Information
No specific laboratory investigations were ordered and no instruments were applied. As mentioned, I had the opportunity to speak to his treating psychiatrist, Dr Tim Clark, about the case.
Part IV – Assessment of Disability
…
Part V – Final Diagnostic Assessment and Report Summary
The final diagnosis is in keeping with an Anxiety Disorder not otherwise specified. Although there are features of Generalised Anxiety Disorder there are also atypical features in keeping with a Post Traumatic Stress Disorder. However, he does not meet the criteria for Category A of Post Traumatic Stress Disorder, namely, ‘the person has been exposed to a traumatic event in which he experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or threat to the physical integrity of self or others and his response involved intense fear, helplessness or horror’. He was certainly exposed to difficult situations, particularly the news of the demise of his friends and comrades. He did witness the accident during the river crossing but it was not accompanied by intense fear and horror. Thus, although he describes many of the core symptoms of Post Traumatic Stress Disorder, it would be erroneous to label him with this diagnosis.
In relation to the possible causal relationship between his psychiatric disorder and his war service, I would make the point that there is a probable relationship but it is more because Mr Henderer did NOT go to Vietnam rather than because he did. I have stressed that he had come from a family with a military background. He himself saw himself as well trained and attempted several times to obtain transfers in order to effect his posting to Vietnam. That he did not go was unfortunate and perhaps even shameful for him. He is a man whose identity was intimately linked with the military. He had been exposed to institutional care and a regimented upbringing making him an ideal candidate to do well in the Army. He is overwhelmed by a sense of unfulfilled potential. The Army provided a situation of belonging and acceptance.
That his Anxiety Disorder did not commence until after his departure from the Army and as 10 years or more had lapsed, makes it difficult to fit his case neatly into the Statement of Principles of the Veterans Entitlement Act for an Anxiety Disorder.
In respect to prognosis and disability, it is likely that his Anxiety Disorder will continue. Mr Henderer has limited social supports and has already received expert psychiatric intervention. It is difficult to see how his condition could improve significantly from where it is now and he is likely to be left with a significant level of psychiatric disability.
I trust the above is of assistance. Thank you for asking me to see this difficult but intriguing case.” (Exhibit R1, ST23)
Dr James Fellows-Smith
Three reports of Dr James Fellows-Smith, who is presently the applicant’s treating psychiatrist, are in evidence. Each report is addressed to the Department of Veterans’ Affairs.
Dr Fellows-Smith’s first report, dated 28 May 2009, states as follows:
“ I saw the abovenamed on the 15.05.2009, 22.05.2009 and again today accompanied by his carer … for the purpose of this report. He is a sixty one year old qualified carpenter/ truck driver on a disability pension since 1989 when he seriously injured his lumbar spine leading to spinal fusion in 1992. I understand that he was compensated for the injury at the time and has not worked since. He has been married three times and has six children from the second marriage. His third marriage ended in 1999. He was adopted at the age of three with his sister when his parents who were both service personnel split up and placed in the … Orphanage …. He is estranged from his family however he keeps close contact with his sister. He lives alone.
Opinion of Psychiatrist Dr Clarke, depression 1990
Mr Gibson stated that he was diagnosed with depression following his back injury by psychiatrist Dr Tim Clarke and was treated for seven years. He stated that he had difficulties with the medicolegal process in particular being under surveillance. He denied any past history of psychiatric disorder or family history of psychiatric disorder. He continues to take efexor 150 mg per day and lithium carbonate 500 mg nocte.
Back pain since accident 1989
In 1989 he was loading the load train when he injured his back moving purlins on the tray. Since then he had had [sic] three operations to repair his back. Mr Gibson presented carrying a walking stick in some discomfort from his back injury. He complains of variable back pain managed with ms contin slow release 100 mg tds varying between 3-4 out of 10 and increasing to 8 out of 10 during acute exacerbations brought on by over exertions. His standing intolerance is thirty minutes and seating intolerance is up to one hour . He has observed that if he misses his night time medication he can wake in pain otherwise he is able to sleep through the night.
Carcinoma right mandible 2004
Mr Gibson stated that he has been regularly attending his general practitioner Dr Walter Aunins in Armadale. In 2004 [sic] Dr Aunins investigated a lump on his right mandible and carcinoma was diagnosed leading to resection at Fremantle Hospital leaving him with difficulties salivating and masticating. He eats blended food. He stated he was in complete remission.
Lymphoma 2007
In 2007 Mr Gibson was diagnosed with lymphoma when Dr Aunins investigated a right sided abdominal rash. I understand that this has been accepted by the Department as service related. He undergoes regular chemotherapy and radiotherapy. Mr Gibson stated that he had been systemically unwell following treatment for the lymphoma and that as the condition was not in full remission he felt that he was sitting on a time bomb that could cause him to die prematurely.
Anxiety regarding prognosis for lymphomatosis
In addition to depression from chronic pain that includes his back condition and right shoulder joint possibly related to his use of a stick particularly over the past six months Mr Gibson also describes the onset of anxiety related to the guarded prognosis of his lymphoma over the past eighteen months leading to increased difficulty with sleep and deterioration of his mood.
Hypothyroidism 2007
A further complication is the diagnosis of hypothyroidism two years ago by his general practitioner Dr Aunins. He is currently prescribed thyroxine which he takes 150 mcg per day.
Exposure to toxic smoke 1969
With regard to the onset of re-experiencing dreams within the past eighteen months Mr Gibson stated that a recurring nightmare is of being in the fog machine in 1969 at Canungra. He stated that as no gloves or masks were used he was exposed to DDT which was pumped around the camp to eradicate mosquitos. He stated that he was in the demolitions company training soldiers in 1989 [sic] and 1990 [sic] undergoing their basic training. He describes the recurrent thought of self doubt questioning why he is participating in training exercises particularly the battle inoculation course. He stated that he witnessed the drowning of two soldiers crossing the Canungra River. His reaction at the time was acute distress, horror and anxiety. In his own words ‘I feared for the soldier’s [sic] lives. I immediately started to question why we were losing our mates over a stupid exercise like crossing a river. I questioned the value of doing dangerous training exercises and felt angry that our mates had died in this way.’
Training accidents SASR 1970
Mr Gibson stated that while serving at SASR in 1970 he witnessed a training accident at Pearse Air Base when … from the back of a truck causing him a serious head injury and impairment from brain injury. Mr Gibson stated that at the time he was sickened by the thud of hearing his skull hit the gravel. He recalls the trooper being put into the ambulance and medivaced to hospital. In his own words ‘It took me back visiting him at Shenton Park Rehab as he was struggling to hold a pencil to write and was otherwise unable to communicate and paralysed. I was horrified that the injury had occurred outside of operations and felt angry that this had occurred.’ Although these conditions are traumatic they do not fulfil Criteria A for Post Traumatic Stress Disorder in particularly [sic] Mr Gibson tended to downplay re-experiencing of the injuries to his mates. It is likely that he has an element of survivor guilt that leads him to be guarded about his feelings regarding these issues. In contrast however since being diagnosed with lymphoma he describes the onset of re-experiencing dreams particularly regarding waking up in a fog or the smoke of simulated battle questioning the futility of his exposure to toxic chemicals that might have led to the onset of lymphoma endangering his life. He describes waking up in a cold sweat and fearing for his life. He confided that his closest friend is his red heeler Pricilla and should he die he is anxious that he will abandon his dog.
Abandonment issues, placed in … Orphanage age 3 years
I note that Mr Gibson has abandonment issues related to being placed in an orphanage at the age of three years. He stated that he had a difficult relationship to the monks who were looking after him and that he was exposed to corporal punishment. I note that Mr Gibson was put on charges in 1968 when the company sergeant major used a stick to rouse him in his bed one morning leading to Mr Gibson hitting him in retaliation. It is likely that Mr Gibson has traumatic stress issues related to his early life experiences which were acted out when exposed to the cue of being prodded with a stick by an authority figure in the army. He stated that the monks used to beat him on the soles of his feet with a round cane. The CSM used a baton to wake him up on the occasion of the assault.
Biographical information
Mr Gibson was born in Fremantle with normal birth and development. Despite the difficulties he experienced with adoption and the hardship of his childhood he stated that he coped well and mixed well with his peers. He participated in sports and started his carpenter’s apprenticeship when aged fourteen years. He was conscripted at the age of nineteen years. He describes difficulties with intimacy due to sensitivity regarding rejection and a tendency to react in an angry way. He stated that he smoked during the army years between 1968 and 1971 however he was successful in ceasing smoking. He stated he has never been a heavy drinker due to hangovers. Due to his adoptive status there is no history regarding his family psychiatric history. His past psychiatric history is described above. His past medical history includes allergy to bees for which he carries an epipen and medication for his physical conditions that include asasantin SR one per day, lipitor 20 mg per day, omeprazole 20 mg bd, spiriva 18 mcg per day, symbiocort two puffs bd in addition to the medication described above. I note that he was prescribed alprazolam 0.25 mg bd prn approximately five years ago for anxiety attacks. Significantly he stated that he would use xanax one day per week prior to the diagnosis of lymphoma and that this is now increased to four days per week due to an increased frequency of anxiety attacks.
Mental State Examination
On mental state examination Mr Gibson was a casually dressed bearded man wearing SASR regalia and carrying a stick. He cooperated at interview and answered questions to the point. He appeared to be mildly depressed and reactive at interview to the contents of discussion particularly regarding training however his affect based on the prosody of his speech was grossly restricted. There was no evidence of any paranoid tendency or psychotic phenomena. Cognitively he was grossly unimpaired. His insight into his condition was good. On haematological investigation his thyroid had normalised and his ALP was 192 (35-110).
Collateral history from his carer …
Ms … stated that she has been caring for Mr Gibson for the past seven years. She provides assistance with activities of daily living that include shopping, domestic duties and attending medical appointments. She stated that there has been a deterioration in his mental state since the diagnosis of lymphoma in 2007. Prior to then he was reasonably even tempered and coping with his situation due to chronic back pain and depression in partial remission. She has noticed however that he is fatigued and often tearful when she attends him on a daily basis. There has been a marked increase in emotional outbursts in her own words ‘ten fold’ since he became fearful of his prognosis for lymphoma since 2007. She stated that she leaves his residence when he is in this state and that he has arguments with the neighbours. I note that there has been increased difficulty with sleep related to the need for drinking water throughout the night following resection of salivary glands in 2004. Mr Gibson however is not somebody who accepts defeat lightly and he stated that since he was told that the lymphoma cannot be treated he has had difficult [sic] accepting that he has to live with cancer.
Opinion
Mr Gibson has a complicated medical and psychiatric history that includes chronic pain leading to depression previously treated by psychiatrist Dr Clarke in 1990 with mood stabilizers and antidepressants. He also has difficulties from his early life related to being placed in the … orphanage at the age of three years. Mr Gibson describes a deterioration supported by collateral history from his carer since exacerbation of sleep disturbance caused by treatment of carcinoma of the right mandible and more recently inoperable lymphoma in 2007 leading to a marked deterioration particularly in his affect regulation and interpersonal relationships. It is however a difficult task to tease out the contribution of pre-existing depression related to a non-accepted back injury and the anxiety related to inoperable carcinomatosis that Mr Gibson links to exposure to toxic smoke in Canungra in 1970. In support of this however is the observation that Mr Gibson tends to form very strong attachments to friends and indeed his dog Pricilla. In recent years he has witnessed the death of close friends from smoking related lung cancer and has had at least one near death experience from overdose of morphine whilst at Fremantle Hospital for the treatment [sic] mandibular carcinomatosis in 2004.
In attempting to assign a proportion to the contribution of pre-existing depression, sleep disturbance from mandibular carcinomatosis and its sequelae and the psychological consequences of inoperable lymphoma since 2007 based on collateral history from his carer … and Mr Gibson’s subjective account half of his impairment is attributable to his service accepted lymphoma and the psychological sequale [sic] linked to exposure to toxic smoke at Canungra in 1969.
…” (Exhibit R1, ST101)
Dr Fellows-Smith’s second report, dated 1 February 2012, which was provided in relation to the applicant’s claim for compensation for squamous cell carcinoma, states as follows:
“ Preamble
I saw the abovenamed on the 25.01.2012 for the purpose of this report. Mr Gibson is a sixty four year old qualified carpenter/truck driver on a disability pension since 1989 when he seriously injured his lumbar spine leading to spinal fusion in 1992.
Chronic pain leading to depression
In my report dated 28.05.2009 I diagnosed major depression secondary to chronic pain from orthopaedic injuries complicated by lymphoma 2007.
Jaw cancer
Mr Gibson has made a claim for squamous cell carcinoma of the right side of his jaw diagnosed on or around 2003 at the oncology department at Fremantle Hospital for which he receives radiotherapy and chemotherapy following surgical resection. He stated that he has been in remission for approximately five years. He stated that he has impaired mastication and requires his food to be liquidised. He also has difficulty swallowing medication due to radiation affecting his pharynx. He stated that he uses a combination of biotene oral balance gel and sips of water as he has had resection of his salivary gland.
Benzene derivative exposure
Mr Gibson stated that the fuel used in Landrovers and helicopters contained benzene derivatives which were carcinogenic. It is likely that he came into direct contact with these carcinogens as siphoning fuel from canisters was part of his routine duties working in transport for SASR. I understand that Mr Gibson claims specifically for a degreasing agent gamelan as a cause of his cancer however this was rejected by the department three years ago on the basis of there being not enough evidence of causation. He has now made a new claim that contact with benzene derivatives was the likely cause.
Medical management of psychiatric condition
I understand that depression was accepted on or around 2009 as related to hazardous service by the Department. Mr Gibson was [sic] been attending regularly for outpatient supportive therapy and he takes efexor 450 mg per day for his condition. He is also prescribed thyroxine 150 mcg per day since 2007 as hypothyroidism was diagnosed as a likely complication of radiation of his neck.
Progress
In my earlier [sic] I identified difficulties with Mr Gibson’s original family leading to rejection sensitivity. It is understandable therefore that rejection of his claim for cancer has had an adverse effect on Mr Gibson’s peace of mind. Furthermore he has had difficulty with being defamed via internet bullying regarding his role in the army. Mr Gibson’s reaction to these events which he considers to be personal attacks is understandable outraged [sic] and fantasies of retribution to his defamers [sic]. Fortunately his better judgement has resulted in dealing appropriately with these matters. He has done research into the carcinogens that cause oral cavity, larynx and oesophageal neoplasia and he has received support from his colleagues in the Regiment who have reassured him.
…” (T11)
Dr Fellows-Smith’s third report, dated 13 December 2012, states as follows:
“ Preamble
Further to my reports dated 28.05.2009 and the [sic] 01.02.2012 Mr Gibson has represented having been assessed by occupation physicians [sic] Dr Phillip Meyerkort and Professor Guy Van Hazel for his claim that exposure to benzene derivatives led to squamous cell carcinomatosis of the oral cavity. At issue is whether or not excessive smoking may have been a contributing factor as opined by my respected colleague.
Smoking history
In my first report dated 28.05.2009 page 3 paragraph 3 line 6 I stated that Mr Gibson’s history was that he had smoked during his army years 1968-1971 however he was successful in ceasing smoking. Mr Gibson sated that he was smoking twenty five x 18 mg cigarettes per day during his army career army [sic] however he cut down to smoking between 10 and 15 x 18 mg cigarettes per day on leaving and then ceased in 1996 when he moved to … Armadale where he lived with his defacto. I note that his defacto was a non-smoker and he ceased smoking by getting a prescription for cigarette patches from his general practitioner Dr Walter Aunins at the Hills Medical Centre, Armadale.
Bastardisation at Puckapunyal
Mr Gibson stated that he was a non-smoker prior to joining up at aged nineteen years. During basic training at Puckapunyal he stated that he was singled out as he was one of the Western Australian recruits by the mainly Victorian hierarchy. Due to his earlier experience in the orphanages he was resistant to being told to do what he considered to be unnecessary tasks. These included picking up phlegm from the parade ground, shaving with a blunt razor blades [sic] that had been scraped on the parade ground and using his hand to retrieve articles from the toilets. He was put on extra duties and instructed to do additional exercises for his attitude.
Obsessional traits
Mr Gibson stated that he tends to isolate his feelings and bottle things up. He stated that he has become a loner and chooses to spend time with his dog rather than socialise with people in his neighbourhood. He describes several confrontations that he had had in the recent past related to feeling picked on over issues such as his use of sprinklers and an incident when a neighbours’ [sic] vehicle was tampered with by a third party and Mr Gibson felt unfairly blamed for this. He has high standards of personal behaviour for domestic chores and keeps his unit looking spick and span. He tends to be inflexible and intolerant of other people’s transgressions on his property. He stated that he had developed this attitude over a long period in particular following what he described as ‘bastardisation’ during his military training.
OPINION
Based on Mr Gibson’s subjective account of his smoking history it is likely that he consumed greater than twenty pack years since commencing military service at the age of nineteen years. He stated that he was a non-smoker prior to joining up. It is likely that his use of tobacco was related to difficulties experienced during his military career in particular during basic training at Puckapunyal leading to the development of entrenched obsessional traits that may have led to tobacco smoking as a way of dealing with his issues with affect regulation. Since ceasing smoking he has continued to demonstrate difficulties with affect regulation and at times has had altercations with people living in his neighbourhood. Consistent with a tendency to not confide his difficulties is his reluctance to discuss issues regarding his smoking history with his physician. This may have led to misunderstanding regarding the extent of his smoking history reported by my colleague. On the other hand I have found Mr Gibson to be consistent in his history and not misleading and therefore I am supportive of his claim regarding the extent of his smoking. I would advocate that further medical evidence be gathered from his general practitioner on or around the time of him ceasing smoking in 1996 to verify his claim.” (T33, pp 98–99)
Dr Walter Aunins
Dr Aunins has been the applicant’s treating general practitioner since 1993. In response to a request by a delegate of the respondent, by letter dated 12 February 2013 (T34), for “details of the smoking history you have recorded since you began treating Mr Gibson”, Dr Aunins provided a medical certificate as follows:
“MEDICAL CERTIFICATE
25/02/2013
THIS IS TO CERTIFY THAT
Ian Leslie Gibson claims to have commenced smoking in 1968 soon after he was drafted into the army as part of his national service. Smoking was as a form of stress relief. He remained in service for 3 years & by discharge was smoking approximately 20 cigarettes daily. He continued to be a heavy smoker until 1993 when he was able to quit smoking with the aid of nicotine patches.” (T36)
Dr Phillip Meyerkort
A report of Dr Phillip Meyerkort, Consultant Occupational Physician, dated 10 September 2012, which was addressed to the Department of Veterans’ Affairs, relevantly states as follows:
“ …
HISTORY:
Occupation/Work Duties:
Mr Gibson was born in Western Australia. Mr Gibson attended high school up to the age of 14 when he left to pursue an apprenticeship in carpentry. In 1968 Mr Gibson joined the Department of Defence in the Army as a recruit. He participated in recruit training in Singleton until he was posted to Western Australia in 1970. He stated he spent the majority of his time in Canungra. Mr Gibson left the Defence Force in 1971 as this was the end of his required service. Mr Gibson stated that from 1971 to 1972 he worked for AV Jennings as a carpenter. Mr Gibson stated he then commenced variable positions from 1972 to 1973, all in carpentry throughout the northwest of Western Australia. From 1973 to 1983 Mr Gibson worked as a truck driver for Brambles throughout the northwest of Western Australia. Then from 1983 to 1984 he worked for Bellway as a heavy haulage driver before returning to Brambles in 1984. He remained at Brambles until 1990. He then purchased his own truck and continued as an independent truck driver until 1992. Mr Gibson stated he then ceased truck driving due to a back condition.
Mr Gibson reported that he is concerned that his time in the Army has resulted in him developing squamous cell carcinoma of his oral cavity. Mr Gibson stated that he performed training duties and transport yard duties for approximately 2½ years whilst in the Army. He stated that as part of this he would siphon fuel via a hose to other containers. Mr Gibson stated that he commenced siphoning by suctioning with his mouth. He reported he often had small amounts of fuel in his mouth which he consequently spat out.
Mr Gibson stated he also performed driver duties and that this was the main aspect of his job and he also performed maintenance on vehicles. Mr Gibson attended for breakdowns with the assistance of mechanics. Mr Gibson stated that during his time in the Army he was required to use degreasers, petrol, diesel and kerosene. Mr Gibson stated that he is concerned that the benzene contained in these is the cause of his oral cancer. Mr Gibson stated that throughout his other positions he did not have any significant exposures. He stated that he did not recall any particular incidents or being exposed to excessive amounts of fumes despite being involved as a truck driver for many years. Mr Gibson stated that as a truck driver he also hauled dangerous goods but he was not exposed to the chemicals that he carried.
Mr Gibson stated that throughout his [sic] time he has not worn any personal protective equipment and in particular did not wear any masks or gloves.
Mr Gibson did not have any exposure data that clearly indicated if he was exposed to particular chemicals and the level that he was exposed to throughout the armed services or throughout any of his other positions.
Mechanism of Alleged Injury/Sequence of Events:
Mr Gibson stated that in 2003 he developed an irritation in his mouth. He attended his general practitioner for review and was subsequently referred to an oncologist.
Initial/Early Treatment Received:
Mr Gibson then underwent biopsy by the oncologist and was subsequently diagnosed with squamous cell carcinoma Stage IV of the oral cavity. Mr Gibson stated that he was referred to Fremantle Hospital for ongoing care.
…
Past Medical History:
Mr Gibson stated that he was diagnosed with asthma in the mid-1980s. Mr Gibson reported that he is well controlled with Symbicort and Spiriva. Mr Gibson reported that he does develop shortness of breath on exertion.
Mr Gibson stated that he sustained a back injury in 1992. He stated that he underwent an L4/5 and 6 (Mr Gibson has an L6 vertebra) fusion. Mr Gibson stated that since his fusion he has decreased mobility and has been required to mobilise with a crutch. Mr Gibson stated that he was attending physiotherapy weekly for this condition and has ongoing review with his general practitioner.
Mr Gibson stated he was diagnosed with Non-Hodgkins lymphoma in 2005. He reported that he was concerned this was a result of DDT use in Canungra during his Army service, however he underwent independent medical review which discounted this. Mr Gibson stated he continues under the care of Fremantle Hospital for his condition.
Mr Gibson stated that he underwent umbilical hernia repair approximately 12 months ago.
Mr Gibson was wearing a medical alert bracelet today. In addition to the above diagnoses, this also stated that he has been diagnosed with emphysema.
Family History:
Mr Gibson stated that he was orphaned at the age of 3 years. He stated that his father had asbestosis attributed to his Navy involvement and his mother died from a heart attack. Mr Gibson then continued under the care of an adoptive family.
Personal/Social History:
Mr Gibson stated he lives alone. He lives in a single storey unit. Mr Gibson stated that he is estranged from his five children who are now adults. Mr Gibson stated that he has a dog who provides assistance around the house. Mr Gibson stated his hobbies include building model trucks. He stated he participates in an annual show to raise funds for the children’s hospital. Mr Gibson stated he has decreasing participation in this as a result of his speech difficulty. Mr Gibson previously enjoyed fishing and gardening however is unable to continue with these.
Mr Gibson stated that he smoked occasionally during his Army service from 1968 to 1971. He stated to me that he had not smoked since, however correspondence from Dr Jaye Martin (Consultant Physician) from 19 March 2002 stated ‘He stopped smoking six years ago.’ – that is 1996.
Mr Gibson stated that he does not drink alcohol. He stated he was exposed to a family history of alcohol abuse and stated he was a non-drinker as a result. Mr Gibson stated he did not take any other drugs.
Mr Gibson stated that he is reclusive and does not openly participate in social activities or relationships. Mr Gibson stated he is coping financially at this stage.
…
SUMMARY AND ASSESSMENT:
Mr Gibson was a 64 year old man who was diagnosed with oral squamous cell carcinoma in 2003. Mr Gibson was an Army officer from 1968 to 1971. Mr Gibson has alleged that his time in the Army has resulted in the development of oral cancer. Mr Gibson reported that he was exposed to benzene and would be required to siphon this fuel, using his mouth, into smaller containers. There were no independent documents regarding his chemical exposure and his level of exposure. Mr Gibson stated he did not wear any personal protective equipment during this time.
Mr Gibson reported a limited smoking history, however documentation from his treating physician stated that he had a prolonged smoking history. The correspondence from Dr Martin (Consultant Physician) from March 2002 indicated he ceased smoking approximately six years prior, being approximately 1996. Mr Gibson stated that he did commence smoking in 1968 and as such would have had a 28 year smoking history. I am concerned that Mr Gibson did not completely disclose his smoking history to me. The 28 year duration of smoking was inferred from correspondence from his treating physicians.
Mr Gibson’s general condition is deteriorating as a consequence of his oral squamous cell carcinoma. He has difficulty with feeding and speech and he reported that his condition is limiting his ability to participate in social activity.
Mr Gibson has no documented exposure to benzene and it is all based on his report.
In assessing the work relatedness of Mr Gibson’s condition, I have considered the following criteria:
·Do the clinical symptoms fit those known to be associated with the chemical.
·Is there documented relevant or sufficient exposure to the chemical.
·Is there an appropriate time interval between exposure and the development of symptoms.
·Have other plausible causes for the symptoms been duly considered.
Mr Gibson does not have evidence of exposure to chemicals as he stated. This is all based on his report. There is limited evidence regarding the clinical effects known to be associated with the chemical with the only reports of benzene causing oral squamous cell carcinoma to be confirmed in rats. No human studies have confirmed this. As there are no human studies it is difficult to say whether or not the interval time for the effect is appropriate. Mr Gibson does have other exposures that are more likely to have caused his oral cancer, in particular his previous smoking history.
As a result I am not of the opinion that Mr Gibson’s time with the armed forces has resulted in his oral squamous cell carcinoma.
Diagnosis:
Mr Gibson has oral squamous cell carcinoma which he has alleged developed following exposure to benzene during employment with the armed forces from 1968 to 1971.
Assessment:
There were inconsistencies in Mr Gibson’s reported smoking history. In determining this from the correspondence from his treating medical practitioners, I have inferred that Mr Gibson had a smoking history of at least 28 years. Mr Gibson reported his smoking history to be only three years. Mr Gibson’s prolonged smoking history is the most probable cause for his development of his oral squamous cell carcinoma.
…” (T23, pp 64–70)
Dr Meyerkort then addressed the issue of causation of the applicant’s “oral squamous cell carcinoma” and expressed the following opinions:
·the extent to which the applicant’s army service contributed to the causation of that condition, by reason of his having commenced and continued smoking during his service, was in the range of “1–9%”, which he described as “very minor”;
·the applicant’s “prolonged smoking history” after his army service contributed more than 50% to the causation of that condition, which he described as a “very significant” contribution. (T23, pp 73–74)
The Relevant Legislation
The SRC Act, as in force at all material times, relevantly provided as follows:
“ …
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
5 Employees
(1) In this Act, unless the contrary intention appears:
…
employee means:
(a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)a person who is employed by a licensed corporation.
…
(2) Without limiting the generality of subsection (1):
…
(b)a member of the Defence Force; …
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes, be taken to be constituted …, by the person’s performance of duties as such a member of the Defence Force …
…”
Pursuant to ss 14(1) and 147(1) of the SRC Act the respondent is “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
The Issue
It is common ground that the applicant was diagnosed with squamous cell carcinoma of the mandible (“the condition”) in or about March 2002. The critical issue for the Tribunal’s determination is whether the condition is a “disease” as defined in s 4(1) of the SRC Act – that is, “an ailment … that was contributed to in a material degree by [the applicant’s] employment by the Commonwealth …”. If that issue is determined in the affirmative, the condition will be an “injury”, as defined in s 4(1) of the SRC Act, and compensation will be payable, pursuant to ss 14(1) and 147(1) of the SRC Act, to the applicant in respect of the condition.
Analysis
The parties presented their respective cases on the basis that the only possible relevant cause of the applicant’s contracting the condition in or about March 2002 was his history of cigarette smoking. In the Tribunal’s opinion, having regard to the evidence of Professor van Hazel and the report of Dr Meyerkort to the effect that the applicant’s contracting the condition was probably caused by a prolonged history of cigarette smoking, it was appropriate for the parties to proceed in that way. Accordingly, critical questions of fact presented for the Tribunal's determination are:
·what was the history of cigarette smoking by the applicant? and
·was the applicant’s cigarette smoking causally related to his employment by the Commonwealth constituted by his “performance of duties as … a member of the Defence Force” (see s 5(2) of the SRC Act)?
The applicant’s history of cigarette smoking
The evidence before the Tribunal regarding the applicant’s history of cigarette smoking is far from consistent. That evidence may be summarised as follows:
·Dr Fellows-Smith, in his report of 28 May 2009, stated that the applicant told him that he “smoked during the army years between 1968 and 1971” but he was “successful in ceasing smoking”;
·Dr Meyerkort, in his report of 10 September 2012, stated that the applicant told him that he “smoked occasionally during his Army service from 1968 to 1971” and that he “had not smoked since”;
·Professor van Hazel, in his oral evidence, said that the applicant told him that he was “only a light smoker” and would have smoked only about 3 cartons of cigarettes during his 3 years of army service, and that he had smoked his “last cigarette” in the “mid 1970s”;
·in the Cigarette Smoking Questionnaire completed by the applicant on 21 October 2012, the applicant indicated that he had never “smoked cigarettes on a regular basis” but that he had smoked cigarettes on a “casual basis”, and that he had “stop[ped] smoking permanently” in “1971–1972”;
·Dr Fellows-Smith, in his report of 13 December 2012, stated that the applicant said that he was smoking 25 cigarettes per day “during his army career” but that he “cut down” to smoking 10–15 cigarettes per day “on leaving” and then “ceased in 1996” having obtained a prescription for “cigarette patches” from his general practitioner, Dr Aunins;
·a medical certificate, dated 25 February 2013, from Dr Aunins certifies that the applicant “claims to have commenced smoking in 1968 soon after he was drafted into the army” and “by discharge was smoking approximately 20 cigarettes daily”, and that he “continued to be a heavy smoker until 1993 when he was able to quit smoking with the aid of nicotine patches”;
·in his statement dated 11 September 2013, whose contents he confirmed were true and correct in his oral evidence, the applicant stated that:
- he commenced smoking during his recruit training at Puckapunyal (May–July 1968);
- by the time he went to corps training at Singleton he was smoking about ⅓ of a packet (about 8 cigarettes) a day;
- by the time he had finished corps training (September 1968) he was smoking about ⅔ of a packet (about 16–17 cigarettes) a day;
- while he was at Canungra (September 1968–April 1970) his smoking increased to one packet (25 cigarettes) a day;
- he gave up smoking in the 1990s after using nicotine patches “for a number of months”;
·in his oral evidence the applicant said that he had told Dr Fellows-Smith that he was smoking approximately ⅓ of a packet of cigarettes during his recruit training, about ⅔ of a packet during his corps training, and he then “went to about a packet and a half in Canungra …”.
The Tribunal notes that up until 21 October 2012 (when the applicant completed the Department of Veterans’ Affairs Cigarette Smoking Questionnaire referred to in paragraph 14 above) the account of his smoking history which the applicant gave to examining medical specialists, and to the Department of Veterans’ Affairs in that questionnaire, was relatively consistent, namely, that he was a “light” smoker, or that he smoked “occasionally” or on a “casual basis”, during his Army service from 1968 to 1971 but that he had not smoked cigarettes since he was discharged from the Army or at least since the “mid 1970s”. The Tribunal notes, however, that after October 2012 the applicant’s account of his smoking history, as given to Dr Fellows-Smith and to the Tribunal in his evidence in this proceeding, was very different from the abovementioned account which he had previously given. That more recent account, while not entirely internally consistent, generally refers to a smoking history which commenced during his Army service and became progressively heavier increasing to about 25 cigarettes per day during his period at Canungra (September 1968–April 1970) and continued thereafter until the early 1990s when he permanently quit smoking. The Tribunal notes, furthermore, that the abovementioned change in the applicant’s account of his smoking history occurred shortly after the respondent’s determination of 24 October 2012 which disallowed his claim for compensation for squamous cell carcinoma (which up until that time had been based on exposure to benzene and other chemicals), and in which reference was made to the opinions of Dr Meyerkort and Professor van Hazel to the effect that the applicant’s squamous cell carcinoma was probably caused by a prolonged smoking history after his Army service.
Having regard to the substantial abovementioned inconsistencies in the evidence before the Tribunal regarding the applicant’s smoking history, the Tribunal is not prepared to make precise findings regarding the time of commencement of the applicant’s cigarette smoking and the frequency, quantity and duration of his cigarette smoking. On the basis of the applicant’s service medical record referred to in paragraph 26 above, however, the Tribunal accepts that, as at September 1969 (when the applicant was at Canungra), he was smoking cigarettes to such an extent that the phrase “cut down smoking” was recorded. The Tribunal, furthermore, is satisfied, on the basis of Dr Aunins’ medical certificate of 25 February 2013 set out in paragraph 32 above, that, as at 1993, the applicant was a “heavy smoker” and in that year quit smoking with the aid of nicotine patches. More generally, the Tribunal is satisfied that the applicant smoked cigarettes in the period of his Army service and in the period after his Army service up until 1993.
Was the applicant’s cigarette smoking causally related to his performance of duties as a member of the Defence Force?
The “performance of duties as … a member of the Defence Force”, within the meaning of s 5(2) of the SRC Act, includes not only the actual performance of such duties but also that which is ancillary or incidental to the performance of such duties, and may be described generally by the phrase “military service”: Military Compensation and Rehabilitation Commission [sic] v Wall (2004) 40 AAR 298 at 306; Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1 at 5–6, 7.
The applicant, in his Statement of Facts, Issues and Contentions filed on 27 September 2013, contended that his smoking history was causally related to his performance of duties or his service as a member of the Defence Force in the following respects:
“ 1. On enlistment the Applicant was a non-smoker.
2.The Applicant commenced smoking during his defence service due to a number of factors that include:
(i) availability of cheap cigarettes
(ii) pressures of training and coping with tragic experiences
(iii) peer pressure
(iv) boredom and homesickness
(v) depressed mood
(vi) stress caused by victimisation and perceived ‘bastardisation’.
3.During his three years of defence service the Applicant developed an entrenched smoking habit that continued until 1993.”
Those contentions were reiterated in oral submissions made on behalf of the applicant at the hearing.
Whether the Tribunal accepts the abovementioned contentions depends largely, if not entirely, on whether it accepts the truth and accuracy of the applicant’s oral evidence regarding the extent of his cigarette smoking history and the causes thereof. The respondent put the credibility of the applicant’s evidence squarely in issue and submitted that his evidence regarding his cigarette smoking and the causes thereof should not be accepted by the Tribunal in the absence of objective corroboration.
The Tribunal has serious reservations regarding the reliability of the applicant’s evidence regarding his cigarette smoking history and the causes of his cigarette smoking. Significant inconsistencies in the applicant’s account of his smoking history which he gave to various doctors, which he gave to the Department of Veterans’ Affairs in a Cigarette Smoking Questionnaire, and which he gave to the Tribunal in his evidence in this proceeding, have been referred to in paragraphs 37 and 38 above.
As regards the Cigarette Smoking Questionnaire dated 21 October 2012 (see paragraph 14 above), the Tribunal does not accept the applicant’s evidence that he understood question 1, “Have you ever smoked cigarettes on a regular basis?”, to which he answered “No”, to refer only to the period before his Army service. Nor does the Tribunal accept the applicant’s evidence that he did not draw the arrow which extends from the response to question 1 and points to the words “casual basis”. In the Tribunal’s opinion the applicant was thereby conveying the information that he had never smoked cigarettes on a “regular basis” but that he had smoked cigarettes on a “casual basis”. The Tribunal, furthermore, does not accept the applicant’s evidence that, when in answer to question 4 he indicated that he “stopped smoking permanently” in “1971-1972”, he thought that he was referring to the period after his Army service and was thereby “hiding the fact that [he] was smoking for the time”. The Tribunal regards the applicant’s response to question 4 as an unequivocal statement that he stopped smoking permanently in 1971–1972. In the Tribunal’s opinion, it is reasonable to infer that the applicant’s responses in the Cigarette Smoking Questionnaire, which he provided to the Department of Veterans’ Affairs at a time when the basis of his claim for compensation was his claimed exposure to benzene and other chemicals in the performance of his Army duties, were provided by him for the purpose of minimising his smoking history so that it did not militate against his claim based on exposure to benzene and other chemicals.
Likewise, it may reasonably be inferred that, when the applicant told Dr Meyerkort, at his examination on 23 August 2012, that he smoked occasionally during his Army service from 1968 to 1971 and that he had not smoked since, and when he told Professor van Hazel, at his examination on 6 September 2012, that he had only been a light smoker, having smoked only about 3 cartons of cigarettes during his 3 years of Army service, and that he had smoked his last cigarette in the mid 1970s, he was falsely minimising his smoking history in order that those doctors not be distracted from considering the effect of the chemical exposure on which his claim for compensation was then based. The Tribunal does not accept the applicant’s evidence that he had been too “embarrassed” and “ashamed” of his smoking to tell the doctors about it. That explanation is, in the Tribunal’s opinion, utterly unconvincing and, furthermore, is apparently inconsistent with other evidence given by the applicant to the effect that he was too embarrassed to tell anyone who was “very close” to him about his smoking. Furthermore, the lastmentioned evidence is itself inconsistent with para 85 of the applicant’s statement of evidence (Exhibit A1) in which he stated that in mid 1971 “family and friends” encouraged him to give up smoking.
As regards the applicant’s evidence that he commenced and continued smoking cigarettes during his recruit training at Puckapunyal in the period May–July 1968 primarily because of the stress he experienced by reason of the Army “training regime” and various acts of “bastardization”, the Tribunal notes that, in the evidence before it, the earliest document in which reference is made to those matters, together with more detailed information about the applicant’s smoking history, is the report of Dr Fellows-Smith, Psychiatrist, dated 13 December 2012 (set out in paragraph 31 above), which, the Tribunal notes, was provided to the respondent in January 2013 by the applicant in support of his request for a reconsideration of the respondent’s determination of 24 October 2012 disallowing his claim for compensation (see T26, T27, T33). It is significant, in the Tribunal’s opinion, that Dr Fellows-Smith, in his earlier report of 28 May 2009 (set out in paragraph 28 above), comprehensively described the applicant’s Army service history and personal history but made no mention of the applicant’s having been subjected to the kinds of victimization or bastardization referred to in his statement of evidence (Exhibit A1).
Although the applicant had previously been examined by other psychiatrists, there is no reference in any of the earlier psychiatric reports which are in evidence to the applicant’s having experienced victimization or bastardization during his Army service. In particular, Dr Jansen’s comprehensive report, dated 31 December 2001 (set out in paragraph 27 above), in which he opined that the applicant was suffering from an anxiety disorder, contains a description of the applicant’s service history but makes no reference to the applicant’s having been subjected to victimization, bastardization or similar abusive behaviour. The Tribunal notes, furthermore, that Dr Jansen refers to his having discussed the applicant’s case with Dr Tim Clarke, a psychiatrist whom the applicant had been seeing for 8 years for his anxiety disorder. Had Dr Jansen received any information from Dr Clarke about the applicant’s having experienced victimisation or bastardization during his Army service, it is very likely, in the Tribunal’s opinion, that he would have referred to it in his report. The Tribunal understands that Dr Clarke did not prepare any reports regarding the applicant’s psychiatric status and has since retired. Accordingly, no reports or other relevant material prepared by Dr Clarke are in evidence.
Having regard to the considerations referred to in paragraphs 43–47 above, the Tribunal regards the applicant’s self-serving evidence regarding the events in the course of his Army service, to which he attributes his commencing and continuing to smoke cigarettes, as unreliable and it attaches no weight to that evidence. Although the Tribunal (as mentioned in paragraph 39 above) is satisfied that the applicant smoked cigarettes in the period of his Army service, it is not satisfied that he did so for any reason other than his personal choice.
Accordingly, the Tribunal is not satisfied that the applicant’s cigarette smoking in the period of his Army service was causally related to that service – more specifically, to his performance of duties as a member of the Defence force.
Although the applicant asserted that he was “addicted to smoking” by the time he was at Canungra (from late September 1968), there is no medical evidence, or other authoritative objective evidence, before the Tribunal which supports that assertion. In the absence of such corroborative evidence, the Tribunal is not satisfied that the applicant developed an addiction to nicotine or a habituation to smoking cigarettes in the period of his Army service.
As regards the period after the applicant’s Army service, the Tribunal is satisfied, on the basis of Dr Aunins’ medical certificate of 25 February 2013 (set out in paragraph 32 above), that the applicant smoked cigarettes in that period and had become addicted to nicotine or habituated to smoking cigarettes by 1993. The Tribunal, however, is not satisfied that either the applicant’s post-service cigarette smoking, or his addiction to nicotine or habituation to cigarette smoking, was causally related to his Army service – more specifically, to his performance of duties as a member of the Defence Force.
Conclusion
The applicant’s squamous cell carcinoma of the mandible is not a compensable injury
Because the Tribunal is not satisfied that the applicant’s history of cigarette smoking – both during his Army service and after his Army service – is causally related to that service or, more specifically, his performance of duties as a member of the Defence Force, and because no cause of the applicant’s contracting squamous cell carcinoma of the mandible other than his history of cigarette smoking was raised in this proceeding, the Tribunal concludes that that condition was not causally related to, and, therefore, was not “contributed to in a material degree by”, his “employment by the Commonwealth” constituted by his “performance of duties as … a member of the Defence Force” (see s 5(2) of the SRC Act).
The Tribunal notes that, even if it were satisfied that the applicant’s cigarette smoking during the period of his Army service was causally related to that service or, more specifically, his performance of duties as a member of the Defence Force, it would nevertheless have concluded that his condition of squamous cell carcinoma of the mandible was not “contributed to in a material degree by [his] employment by the Commonwealth” constituted by his “performance of duties as … a member of the Defence Force”. The Tribunal would have so concluded by reason that (as stated in paragraph 39 above) it was not prepared to make precise findings regarding the time of commencement, and the frequency and quantity, of the applicant’s cigarette smoking during the period of his Army service. Because the Tribunal has not made such findings, it cannot be satisfied that the amount of the applicant’s cigarette smoking during the period of his Army service is sufficient to enable it to conclude that the squamous cell carcinoma of the mandible, which he did not contract until 2002, was “contributed to in a material degree by [his] employment by the Commonwealth” constituted by his “performance of duties as … a member of the Defence Force”. The Tribunal notes the opinions of Dr Meyerkort and Professor van Hazel to the effect that the applicant’s smoking during his Army service made a “very minor” or “minor” (respectively) contribution to his contracting squamous cell carcinoma in 2002 but, in the Tribunal’s opinion, that level of contribution would not suffice to meet the “evaluative threshold” imported by the phrase “in a material degree” in the definition of “disease” in s 4(1) of the SRC Act: see Comcare v Canute (2005) 148 FCR 232 at 249–250; Comcare v Sahu-Khan (2007) 156 FCR 536 at 542–543.
The Tribunal concludes, therefore, that the applicant’s squamous cell carcinoma of the mandible is not a “disease” as defined in s 4(1) of the SRC Act. That being the case, and given that there is no basis on which that condition might otherwise fall within the definition of “injury” in s 4(1) of the SRC Act, the Tribunal also concludes that that condition is not an “injury”, as defined in s 4(1) of the SRC Act, within the meaning of s 14(1) of that Act.
Accordingly, the respondent is not liable, pursuant to ss 14(1) and 147(1) of the SRC Act, to pay compensation to the applicant in respect of squamous cell carcinoma of the mandible.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ...............[sgd D Brodie]..........................................
Administrative Assistant
Dated 13 March 2014
Dates of hearing 24, 28 January 2014 Representative of the Applicant Mr R Grayden Solicitors for the Applicant Hammond Legal Counsel for the Respondent Mr J Lenczner Solicitors for the Respondent Australian Government Solicitor
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