Johnston and Military Rehabilitation and Compensation Commission

[2008] AATA 404

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 404

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0639, 2007/2003 and

VETERANS’ APPEALS DIVISION		)         2007/5467
Re		JEFFREY JOHNSTON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Assoc Prof J B Morley RFD, Member

Date19 May 2008

PlaceBrisbane (heard in Toowoomba)

Decision The Tribunal affirms the decisions under review insofar as they conclude there is no link between the applicant’s kidney condition and his exposure to fuel in the workplace. Pursuant to s 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits to the respondent the question of whether or not there is a link between the applicant’s kidney condition and exposure to any other chemicals, including solvents, in the course of his work.

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DISTRICT REGISTRAR

CATCHWORDS

Workers’ Compensation – Injury – applicant suffers from kidney damage – applicant exposed to jet fuel during employment – whether there is a link between exposure to jet fuel additives and kidney damage – no link between exposure to jet fuel additives and kidney damage – decisions affirmed – whether there is a link between exposure to other chemicals and kidney damage – remitted question of whether there is link between exposure to other chemicals and kidney damage

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

Administrative Appeals Tribunal Act 1975 (Cth), s 42D

REASONS FOR DECISION

19 May 2008	Senior Member Bernard J McCabe
Assoc Prof J B Morley RFD, Member

1.      Mr Jeffrey Johnston, the applicant, has been diagnosed with end-stage renal failure. He says his condition is linked to his employment in the Navy where he was exposed to a number of chemicals in jet fuel. He relies on a number of studies that suggest a link between some of the additives in the fuel and kidney and liver damage. He has asked the Military Rehabilitation and Compensation Commission (“the MRCC”), the respondent,  to accept liability and pay compensation under the provisions of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).

2.      The MRCC accepts Mr Johnston was exposed to the fuel additives, although it says the extent of the exposure is uncertain. Nevertheless, it argues:

·There is no scientific consensus in favour of a link between exposure to the fuel additives and kidney conditions. The MRCC called its own experts who questioned the validity of the conclusions in the studies relied on by the applicant.

·Even if the chemicals in question were capable of damaging the kidneys of a person who was exposed to the fuel, there is no evidence that the applicant sustained any damage at the time of exposure. His kidney complaints did not become apparent until nearly 15 years after he left the Navy. The expert medical witnesses called by the respondent said any damage done to the kidneys should have shown up at the time of exposure, even if the applicant did not become symptomatic until some time later.

·The damage done to the applicant’s kidneys is different to the damage one would expect from exposure to the dangerous chemicals in question. The respondent says there are other explanations for the damage that has occurred.

3.      In those circumstances, the MRCC says the applicant cannot establish that the MRCC is liable for his injuries. It says all of the decisions under review (the decision to refuse liability for end-stage renal failure and the decisions to refuse to pay compensation in respect of incapacity and permanent impairment) should be affirmed.

4. We are not satisfied there is a link between the applicant’s exposure to fuel additives and his current condition. We have not dealt with the wider issue of whether there is a link between the kidney condition and exposure to other chemicals. We propose to remit that question to the respondent pursuant to s 42D of the Administrative Appeals Tribunal Act 1975. Our reasons are set out below.

Establishing a link between exposure to fuel additives and kidney damage: the state of the science

5.      The applicant referred us to a number of studies that purport to show a link between kidney damage and exposure to a range of chemicals found in the type of jet fuel he handled in the Navy. The principal study was conducted by a Dr Brautbar. That study and several others are included in Exhibit One. Dr Brautbar has also written a brief comment on Mr Johnston’s case dated 20 September 2006. He expresses a preliminary opinion that:

his exposure, while during the service, specifically to jet fuels, without appropriate protection was a substantial factor in causation, among others, of his chronic kidney disease…

6.      Dr Driscoll gave evidence at the request of the respondent. Dr Driscoll is a specialist in occupational medicine. His PhD thesis was in the field of epidemiology.  It follows his specialist qualifications are directly relevant to the question before the Tribunal. He was asked to analyse the studies that Mr Johnston says establish a link between kidney damage and exposure to jet fuel.

7.      Dr Driscoll said there were significant flaws in the methodology of the studies in question. He conducted his own literature search and concluded the evidence in support of a link was weak. He pointed out that the literature referring to jet fuel additives was sparse compared to the literature relating to organic solvents.  He acknowledged he had not been provided with a comprehensive list of all the additives to which the applicant may have been exposed, but he did not think that made a difference to his conclusions. He said his task was to review and analyse the literature, and in his view the literature did not support the link contended for by Mr Johnston.

8.      Dr King is a physician specialising in nephrology. He said he had never seen a case of end-stage renal failure that was the result of being exposed to chemicals in fuel like those which Mr Johnston had handled. His evidence was consistent with that of Dr Driscoll.

Other medical evidence

9.      Dr Adam gave evidence at the hearing at the request of the MRCC. He is an occupational physician. He conducted his own literature search. He said he was aware of cases in which high levels of exposure to solvents and some other chemicals have resulted in kidney and liver damage. He cited the example of glue-sniffers. He said the levels of exposure described by Mr Johnston should not have caused any damage to the kidneys. Dr Adam added he would have expected evidence of any damage to show up in the medical tests performed on the applicant at the time. He said only one urine test taken during this period showed an abnormal result, and that was probably due to a viral infection.

10.     The MRCC also called Dr Rigby to give evidence. Dr Rigby is a consultant renal physician. He acknowledged there is some evidence that prolonged exposure to hydrocarbons could result in kidney damage. He said it was unlikely that damage to Mr Johnston’s kidneys occurred as a result of the applicant’s employment because the tests taken shortly after exposure did not show any signs of damage. He said the damage should have shown up at about the time of the exposure. There was no reason to expect the chemicals in the fuel would have remained in the applicant’s system for a long period before doing damage.

11.     Dr Rigby also commented on the damage that had been done to the applicant’s kidneys. He said it was not the sort of damage that one would expect to find as a result of exposure to hydrocarbons.

12.     Mr Johnston contracted Hepatitis B shortly after he was discharged from the armed Navy in 1983. Dr Rigby doubted that Hepatitis B explained the development of the kidney condition. He said it was not clear why the condition took hold in some patients. It just happened. Dr King took a different view of the role of Hepatitis B in Mr Johnston’s case. He thought it might have contributed to the development of the kidney condition.

Our conclusions

13.     We were particularly impressed by the evidence of Dr Driscoll. He is well-qualified to offer an opinion, and he gave his evidence in a measured and precise way. He raised serious questions over the methodology of the studies that tended to show a link between exposure to jet fuel and kidney problems. We are satisfied on the basis of his evidence that there is no consensus in the scientific and medical communities that exposure to chemical additives in jet fuel is linked to end-stage renal failure. We note Dr Driscoll did not say there was no link; he simply said the evidence in support of a link was not strong. No doubt there will be further study of the question.

14.     Even if we accepted there was some evidence that justified drawing a connection between exposure to jet fuel and kidney damage, the uncontradicted evidence that the applicant’s kidneys were not damaged at the time he was exposed to the jet fuel militates against a finding that there is a link in this case. Mr Johnston raised an intriguing hypothesis that he might have accumulated chemicals in his system over time, and that the damage occurred some time after exposure. There is no evidence that this is what occurred, and the expert medical evidence we heard does not lend any support to the claim. The evidence suggesting the applicant’s kidney damage is not the kind that would be expected if hydrocarbons were a factor supports our view that the applicant’s condition is not related in any way to his employment.

15.     It is difficult to be certain what brought about the applicant’s condition. The obvious answer is hepatitis B, although there is some dispute about that. It might also be constitutional in origin. But there is no real reason to suppose the applicant’s condition is the product of his exposure to fuel additives.

The legislation

16.     The MRCC pointed out s 7 of the Act creates a scheme under which the Minister may declare that a particular disease is related to a particular kind of employment. If a person who did that sort of work contracts the specified disease, the employment is deemed to have made a substantial contribution to the contraction of the disease “unless the contrary is established”.  We note the Minister has made a declaration in relation to toxic homologues, aromatic hydrocarbons and glycol. We accept the applicant was exposed to hydrocarbons in particular during the course of his work. However, as will be apparent from our discussion of the supposed link between the fuel additives and Mr Johnston’s kidney disease should demonstrate, we are satisfied the scientific evidence and the medical opinions offered in relation to Mr Johnston’s case in particular suggest there is no link between his exposure to fuel additives and his kidney condition. It follows we do not accept s 7 assists the applicant in relation to fuel additives.

Establishing a link between exposure to other chemicals and kidney damage

17.     Mr Johnston indicated at the outset of the hearing that he was also claiming his kidney condition may be linked to his exposure to solvents and other chemicals apart from those in the fuel. He sought to rely on reports and papers that dealt with claims by personnel who worked on the de-seal/re-seal programs on F111 aircraft. While the reviewable decisions did refer to some other chemicals (eg, toluene and glycol), the thrust of the case was directed at fuel additives. We formed the view that it was appropriate to deal with the purported connection between fuel additives and the kidney condition because the wider question would require the parties to obtain further evidence. Whether or not the applicant can establish a link between his exposure to other chemicals or compounds (eg, glycol) and his kidney condition remains an open question.

Conclusion

18. We propose to affirm the decisions under review insofar as they conclude there is no link between the applicant’s exposure to fuel additives and his kidney condition. We propose to use the power in s 42D of the Administrative Appeals Tribunal Act 1975 to remit to the respondent the question of whether or not the applicant was exposed to other chemicals or compounds (eg, glycol, toluene or other solvents) that might be linked to his condition.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Assoc Prof J B Morley RDF, Member

Signed: ..............................[Sgd]...............................................
  Elizabeth Young, Research Associate

Dates of Hearing  21 and 22 April 2008
Date of Decision  19 May 2008
Solicitor for the applicant          Unrepresented
Counsel for the respondent      Mr C Clark
Solicitors for the respondent     Sparke Helmore Lawyers