Jackson and Comcare

[2002] AATA 384

DECISION AND REASONS FOR DECISION [2002] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL      )           No Q2000/144
  )
GENERAL ADMINISTRATIVE DIVISION          )          
           Re      GEORGE NORMAN JACKSON  
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date24 May 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          
  ..............................................
  R G Kenny
  Member
CATCHWORDS
WORKER'S COMPENSATION – injury occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 –transitional provisions – injury or disease - whether compensation payable under Commonwealth Employees Compensation Act 1930

Safety, Rehabilitation and Compensation Act 1988 section 124
Commonwealth Employees Compensation Act 1930 sections 9, 10

REASONS FOR DECISION

24 May 2002 Mr R G Kenny, Member                

Background

1. On 29 April 1999, George Jackson (the applicant) completed a "Claim for Rehabilitation and Compensation" for an injury or illness which he described as "severe hypertension". He stated in that form that he first noticed the disease or illness in 1994 and he attributed it to "arduous physical training and field work, mainly bridge civil manual engineering" during army service in the years 1953 to 1958.

2. On 20 October 1999, a delegate with the Military Compensation and Rehabilitation Service determined that the claim should be disallowed and, on 14 December 1999, another delegate affirmed the initial decision.

3. On 14 February 2000, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975.

Appearances

1. The applicant attended the hearing but was not represented. Mr C Clarke of Counsel appeared on behalf of Comcare (the respondent).

2. The matter first came on for hearing on 13 August 2001 but was adjourned to enable the applicant to seek further evidence in support of his case. The following evidence was admitted on that occasion:

   Exhibit 1 - the T documents (T1-T19);
   Exhibit 2 – a statement of facts and contentions from the applicant; and
   Exhibit 3 – a statement of facts and contentions from the respondent.

3. In addition, evidence was given by Major T A Boyle, of the Australian Army, and a transcript of that evidence was before the Tribunal at the resumed hearing.
   Applicant's evidence

4. The applicant was born on 29 August 1934 and was drafted for three months national service with the Australian Army from 8 January 1953. He then served on a part-time basis with the Citizens' Military Forces until 7 January 1958 during which time he was involved in annual camps and parades and other activities on approximately a fortnightly basis.

5. He said that he underwent an entrance medical examination on 30 October 1952 and that this resulted in the completion of a "Record of Medical Examination". Therein, the following information appears, with the material in bold being part of the standard form and the other material being hand-written:

   Blood pressure        135     diastolic        80       systolic         (lying down)
   Pulse rate (standing)          75

1. The applicant said that, at the time of his 1952 examination, he had been required to have his blood pressure taken many times before the examiner was able to authorise that his readings were satisfactory. He said that readings were taken in various positions ie sitting, standing and lying down. He also said that blood pressure readings had to be taken at the same time as his pulse rate was measured and that, therefore, there was an inconsistency on the face the examination recorded because blood pressure was recorded as being taken lying down while pulse rate was measured in a standing position.

2. The applicant could not recall any other occasion when blood pressure readings were taken prior to 1994 when he experienced severe symptoms from the effects of hypertension necessitating coronary bypass surgery because of heart failure. He had been to receive casual treatment at army aid posts from time to time but could not recall that his blood pressure was taken. Also, in years after service, he had not had a family doctor because he moved from place to place. He said that he had also had a surgical procedure for an anal fistula in 1979 but could not recall any difficulties being raised at that time because of elevated blood pressure.

Respondent's evidence

1. Major Boyle stated that she was a legal officer with the Army and was posted to the Soldier Career Management Agency in Melbourne. She said that she had examined the T documents and army records and that there were no additional documents in those records that were not in the T documents.

2. The applicant was seen by Dr P Stevenson on 22 September 1999 at the request of the respondent. Dr Stevenson is a consultant physician with specialty in treating patients with hypertension. He said that he had also researched the relevant literature in relation to hypertension and, in particular, had done so in relation to the diagnosis and treatment of the condition in the 1950s and 1960s. He completed a report, dated 1 October 1999 (T15). In his evidence, he stated that there was no inconsistency in the 1952 medical examination record. He said that, when blood pressure was taken in accordance with procedures that applied in 1952, it was necessary to sense the blood pulse of the examinee but not for the purpose of measuring the pulse rate. Rather, this was for the purpose of testing the volume of blood flow. Therefore, it would not be the practice for pulse rate to be taken at the same time as blood pressure was read. This meant that, in his opinion, there was no inconsistency in the reference to "standing" when pulse rate was measured and "lying down" for blood pressure readings to be taken. He said that these processes were conducted sequentially and also that it was usual for pulse rate to be taken in a standing position.

3. Dr Stevenson confirmed the opinion that he gave in his written report that the applicant's blood pressure reading in 1952 was "within normal limits" at 135/80. He said that the current accepted threshold levels for determining whether a person is hypertensive are 140 (diastolic) and 90 (systolic). He also said that the accepted thinking in 1952 was that the relevant thresholds were higher than that at 165 and 95, respectively. His written report also included the following:

   "Mr Jackson's claim is … that, if his condition of hypertension had been identified in 1952, then regular follow-up and specific treatment would have prevented or reduced the severe complications which he suffered in 1994.

Scrutiny of his claim is made difficult by the fact that there appear to have been very few occasions between 1952 and 1994 when his blood pressure was checked. The only occasion would appear to have been around 1979 (unless there is some discharge medical data on file in army records), however if at that time he had had significant hypertension this would have been commented on by the anaesthetist. If the hypertension had been severe then his surgery probably would have been deferred until he had seen a physician and his blood pressure was brought under control.
I did not find particularly likely the proposition that Mr Jackson had substantial high blood pressure in 1952 which did not become symptomatic until 1994.If his blood pressure had been substantially elevated then it would almost certainly have progressed to a symptomatic level long before then. Moreover, in the 1950s and 1960s it was very unclear whether in fact there were benefits to be obtainable in the treatment of anything other than severe hypertension. Medical modalities for the treatment of hypertension in the 1950s were much more limited and toxic, and unless Mr Jackson had suffered from severe and sustained hypertension of a degree which would almost certainly have disqualified him from military service, he probably would not have been offered any treatment.
The situation may have been to some degree altered if his blood pressure had been altered 24 years later."

1. Dr Stevenson also noted the initial claim of the applicant that hypertension, if it was present in 1952, was aggravated by the nature of the physical activities he was required to undertake as part of his military training. Dr Stevenson was of the opinion that the applicant was not hypertensive in 1952 but stated that, even if he were, the physical activities of the applicant would be more likely to improve the situation rather than aggravate or worsen it. The conclusion of Dr Stevenson was that the applicant's period of service in the army did not contribute to the development or aggravation of hypertension.

Applicant's case

1. It was the applicant's submission that there was failure by examining doctors in 1952 to properly record that he was suffering from hypertension at that time. He said that the medical record was wrong. He said that he had completed a full working life in the building industry in various capacities after the completion of his army service but conceded that he had experienced no difficulties associated with hypertension prior to 1994.

2. The applicant was also concerned that there were so few documents in his service file but conceded that he had asked Major Boyle about this and had been advised that he had all of the documents in the army file.

3. The submission to the Tribunal was that, if the correct diagnosis of hypertension had been made in 1952, he would not have experienced the health problems that he has had since 1994. He said that, in addition to the heart problems, this included two cerebral haemorrhages.
   Respondent's case

4. Mr Clarke submitted that the evidence did not support a diagnosis of hypertension in 1952. In that sense, there could have been no failure to make a diagnosis of that condition at that time. Further, he submitted that, even if there had been a pre-service degree of hypertension, there was no evidence that this had been aggravated by any aspect of the applicant's service.

Legislative Framework and Issue for Determination

1. The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries or diseases to be paid to nominated classes of Commonwealth employees, including those serving in the Australian Army, where the injury occurred after the commencement date of the SRC Act. This was on 1 December 1988. The Act also contains transitional provisions which pertain to injuries that occurred prior to that date. In that regard, section 124 of the SRC Act reads:

   "124  Application of Act to pre-existing injuries

   (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

   (1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

   (2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

   (a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;

   (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

   (c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered."

2. The applicant has alleged that his hypertension developed or was aggravated during his service in the 1950s and that time-frame is embraced by the Commonwealth Employees' Compensation Act 1930 (the 1930 Act). Accordingly, reference must be made to the provisions of the 1930 Act to determine whether or not the Commonwealth is liable to pay compensation to the applicant. The provision which set out the causal criteria in the 1930 Act was section 9 in relation to an injury. In 1948, that provision was amended and another provision was added in relation to causation of a disease. This was section 10 and those amended provisions were in operation during the applicant's army service.

3. Under section 9 of the 1930 Act (as amended), the injury must have arisen out of or occurred in the course of employment with the Commonwealth. Under section 10 of that Act, the disease must be due to the nature of the employment with the Commonwealth.

4. The issue for the Tribunal is whether the circumstances of the applicant meet the terms of either of those provisions.

Consideration

1. I find that the applicant served in the Australian Army for three months on national service from 8 January 1953 and that he then served on a part-time basis with the Citizens' Military Forces until 7 January 1958. I also find that he underwent a pre-draft medical examination on 30 October 1952 at which time his blood pressure was recorded, lying down, at 135 (diastolic) and 80 (systolic).

2. There is no evidence that the applicant suffered from hypertension at any time prior to 1994. Dr Stevenson's evidence was not challenged by any contrary medical evidence. On the basis of that evidence and in reliance on the only blood pressure reading recorded before 1994, which was in 1952, of 135 (diastolic) and 80 (systolic), I find that the applicant was not suffering from that condition at that time or at any time while he was serving with the Australian Army. Also, I find that the condition in the applicant is not causally associated with his service in the Australian Army.

Decision

1. The Tribunal affirms the decision under review.

   I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

   Signed:         .....................................................................................
     Associate

   Date of Decision  24 May 2002
   Date of Hearing  8 May 2002
   Applicant  Appeared in Person
   Counsel for Respondent         Mr C J Clarke
   Solicitor for Respondent          Blake Dawson Waldron