Kowalski v Military Rehabilitation and Compensation Commission
[2009] AATA 382
•27 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 382
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4618
VETERANS' APPEALS DIVISION ) Re KAZIMIR KOWALSKI Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell
Professor P L Reilly AO (Member)
Mr S J Ellis AM (Member)Date27 May 2009
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – accepted condition of duodenal ulcer – new claim for gastro oesophageal reflux disease – whether caused or contributed to by employment – whether condition caused by taking smooth muscle relaxants – date of onset many years after leaving service and other intervening health issues likely to be relevant to causation – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 7(4), 14(1),
Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
27 May 2009 Senior Member L Hastwell
Professor P L Reilly AO (Member)
Mr S J Ellis AM (Member)1. The applicant, Kazimir Kowalski, served with the Army between 1972 and 1973. He has a prior accepted claim for duodenal ulcer. He now asserts that the condition of gastro-oesophageal reflux disease (GORD), from which he suffers, was caused by, or contributed to, by his Australian Army service and that the liability of the respondent (the MRCC) should be extended to cover this condition.
2. His claim for compensation was received by the MRCC on 2 April 2007. On 2 July 2007, his claim was rejected. That decision was affirmed by a review officer on 11 September 2007. Mr Kowalski asks the Tribunal to review that decision.
3. It was accepted by both parties that Mr Kowalski was not treated for or diagnosed with GORD until after the date of the enactment of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
relevant legislation
4. The relevant legislation to apply in this case is the SRC Act. This comes about as a result of the effect of s 7(4) of the SRC Act which provides as follows:
“7 Provisions relating to diseases
…
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…”
5. Section 14(1) of that Act provides:
“14 Compensation for injuries
(1)Subject to this Part, Comcare 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.
…”
6. “Injury”, for the purposes of this claim, was defined in s 4(1) of the SRC Act (prior to subsequent amendments in 2007) in the following terms:
“injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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.”
7. “Disease” was also defined in s 4(1) of the SRC Act, as it then stood, in the following terms:
“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.”
issues before the tribunal
8. The following issues are to be determined by the Tribunal:
·whether Mr Kowalski suffers an injury or disease, namely “gastro-oesophageal reflux disease” as defined by the SRC Act;
·whether his employment materially contributed to the onset, aggravation or acceleration of that disease; and
·whether Mr Kowalski is entitled to compensation for that disease.
background facts
9. The Tribunal had a compendium of prior medical evidence available to it in the T documents and in exhibits tendered at the hearing, including folders of documents that were prepared for the consideration of the two expert medical witnesses (Exhibits R6 and R7).
10. The following matters are non-contentious and are set out by way of background.
11. Mr Kowalski was born on 7 August 1947.
12. At the age of 20 he was conscripted into National Service. He commenced service as a soldier on 20 April 1972. After undergoing his basic training for three months, he then served in the Australian Army as a regimental and mechanical draftsman. He did not serve outside Australia and he served until 19 October 1973 when he was discharged.
13. A Medical Examination Record at the time of his entry into the Army, dated 6 March 1972 (Exhibit R6/33), does not indicate that Mr Kowalski was suffering from any gastric problems at that time.
14. His Army medical records include an entry on 17 July 1973 referring to “Epigastric pain after food (1½ hours) - 4-5/52. Relieved by antacids”.
15. He was diagnosed as suffering from a duodenal ulcer, which was clinically confirmed after a Barium Meal on 31 July 1973.
16. Mr Kowalski lodged a claim for compensation on 3 August 1973 (T8/15-16) in which he sought compensation for incapacity arising from the duodenal ulcer which he attributed to “stresses at work”. He reported suffering from symptoms of this condition for the previous 11 months.
17. In a document titled “Statement of Claimant for Compensation” (T11) he refers to developing pain under the rib cage 8 to 10 weeks prior to 1 August 1973.
18. His Officer-in-Charge supported the claim for compensation at the time as being work related (T9/17).
19. His Discharge History Questionnaire dated 19 September 1973, records that he suffers from a duodenal ulcer as confirmed by an x-ray report of 31 August 1973. It states that he suffers from heart burn and epigastric pain and that he was taking antacids with relief (Exhibit R6/33).
20. The ulcer was treated and in a report dated 26 February 1974, Dr Hugh Gilmore, a gastro-enterologist, who was a medical referee for the purposes of the compensation claim, reported that the effects of the ulcer were of a temporary nature and would have effectively ceased with treatment in mid 1973, but that the healing of the ulcer would have taken some months. He noted that Mr Kowalski was free of symptoms by the time of his discharge in 1973 and that healing “can reasonably be assumed” at that time. He recorded that the treatment had been with antacid and anti-cholinergic medication (T21/34-35).
21. On 4 April 1974, the Commonwealth accepted liability for the condition of duodenal ulcer (T23/37).
22. Mr Kowalski was prescribed medication known as Kolantyl and Merbentyl in 1973 for his symptoms. He was also prescribed the medication known as Librax which was an anti-anxiety medication. He took Librax for approximately 1½ years.
23. After completing his Army service, Mr Kowalski was employed by Mitsubishi Motors for a number of years.
24. In 1976, Mr Kowalski once more complained of ulcer like symptoms. Dr Gilmore saw him again and expressed the opinion that the recurrence of symptoms was related back to his Army service. Mr Kowalski continued to receive compensation from the MRCC for medical expenses he incurred with respect to treatment of his ulcer on the basis that it was related to his period of employment with the Army.
25. In 1979 and 1981, Mr Kowalski suffered a recurrence of ulcer symptoms and had several days away from his work at Mitsubishi Motors. The MRCC accepted liability for his periods of incapacity as is evidenced by determinations made by the MRCC in 1979 and in 1981 (T46 and T52). The MRCC also continued to compensate him for his associated medical expenses with the latest determination available to the Tribunal being in 1981 (T53).
26. Mr Kowalski suffered a back injury in 1989 while working at Mitsubishi Motors. He pursued a WorkCover Claim against his employer. At that time he used anti-inflammatory medication as part of the treatment for his back injury.
27. Mr Kowalski suffered what he refers to as a mental breakdown in 1991. He consulted Dr Karl Jagermann, a psychiatrist. He was prescribed a number of drugs by Dr Jagermann. Mr Kowalski’s cardiologist, Dr Peter Hetzel, wrote in a report dated 22 September 1998 (Exhibit A8) that at the time Mr Kowalski was seeing Dr Jagermann in 1991 he was prescribed a number of medications for his anxiety and depression and he refers to Pepcidine as being one of those medications. It is not clear how this information was obtained by Dr Hetzel.
28. Mr Kowalski did not return to employment after 1991. He spent many years involved in litigation with his former employer Mitsubishi Motors.
29. On 3 January 1995, the notes of Mr Kowalski’s general practitioner, Dr Cheung, recorded that he consulted her complaining of a burning sensation in his throat for a period of 2½ years, relieved by Quick-Eze.
30. Dr Cheung referred Mr Kowalski for a Barium Meal and Swallow and the result dated 5 January 1995 (Exhibit R6/19) reported no sign of an ulcer or of GORD. The result was reported as being “normal”.
31. Mr Kowalski suffered a heart attack in 1997 and he was admitted to the Flinders Medical Centre. He underwent a coronary bypass operation. He was required to take Aspirin regularly as part of his ongoing treatment for his ischaemic heart disease. It was also noted in the report of Dr Peter Hetzel (Exhibit A8) that when he was discharged from hospital in 1998, he was prescribed medication “for pain and for his digestion”.
32. In 1998, as a result of Mr Kowalski undergoing a scan of the upper abdomen which indicated abnormal liver function, Dr Cheung referred him to Dr David Hetzel, a gastro-enterologist. Dr Hetzel noted his complaint of heartburn and regurgitation. In his report to Dr Cheung dated 19 November 1998 (Exhibit R6/21), he commented on the importance of ensuring that he did not have the bacteria known as Helicobacter pylori (H pylori) or that it be eradicated if he did have it. He suggested that Mr Kowalski undergo another endoscopy.
33. Mr Kowalski underwent an upper endoscopy on 7 May 1999. The endoscopy report (Exhibit R6/22) indicated the presence of a small sliding hiatus hernia. He also tested positive to a test for the bacteria H pylori.
34. He was treated with the appropriate medication and a test carried out at the Royal Adelaide Hospital on 1 July 1999 indicated that the bacteria had been eradicated (Exhibit R6/24).
35. Mr Kowalski’s weight fluctuated and increased over the years. When he first saw Dr David Hetzel in 1998, it was noted that one of his priorities was to lose 10 to 15 kg over the next 12 to 18 months. Dr Hetzel noted that Mr Kowalski’s weight had been 73 kg until 1994 when it gradually increased to approximately 97 kg at the time of his heart attack. He weighed 93 kg when naked when he saw Dr Hetzel in November 1998. Dr Hetzel recorded his weight in January 2000 as being 91.2 kg and in April 2002 as being 100 kg. He had reduced his weight to 94 kg in July 2002.
36. In 2002 Dr Cheung referred Mr Kowalski back to Dr Hetzel for further assessment.
37. In a report of 9 April 2002 (Exhibit R6/27), Dr Hetzel writes that Mr Kowalski had reported increasing heartburn and regurgitation over the prior year such that “he almost choked when lying down at night”. He suggested that he lose weight and change to taking an enteric coated Astrix each day because of the irritating effect of Aspirin on reflux.
38. In a report of 16 February 2006 (wrongly dated 2005) (Exhibit R6/31), Dr David Hetzel expressed the opinion that Mr Kowalski was suffering from reflux oesophagitis for which he would require ongoing treatment.
39. Mr Kowalski lodged his claim for compensation for GORD in April 2007, claiming that his ongoing gastric symptoms had been caused by his Army service.
mr kowalski’s evidence as to his illness and ongoing symptoms
40. Mr Kowalski represented himself at the hearing.
41. Mr Kowalski told the Tribunal that his GORD related to the stressful time that he had experienced while working as a national serviceman, but also that it was directly related to the prescription of smooth muscle relaxants for treatment of his duodenal ulcer in the 1970s. In particular, the drugs Librax and Merbentyl which had been prescribed to him to assist him with the symptoms of his ulcer and anxiety in the 1970s.
42. He strongly asserted that the medication that he was given for his ulcer condition had an adverse impact on his oesophageal function.
43. He also claimed that once his ulcer was diagnosed in the 1970s, he was put on a high fat, high cholesterol diet by the doctor that was a further contributor to the condition of GORD in that it caused a significant weight increase.
44. In his oral evidence to the Tribunal he also claimed that during his Army service he was drinking alcohol to excess and this could have been a contributor to the condition.
45. He was convinced that the report in his Army medical records that he was suffering heartburn in 1973 was proof that he was suffering GORD at the time. He considered that the terms were effectively interchangeable.
46. His condition of GORD is ongoing and causes him discomfort and distress. He continues to suffer the condition at varying levels of intensity and he needs ongoing medication to manage the condition.
47. Mr Kowalski said that the notation in Dr Cheung’s notes that he had been complaining of a burning sensation in his throat for 2½ years was incorrect as he had been suffering from those symptoms for many years prior to the early 1990s.
48. He relied on the fact that when he saw Dr Jagermann in 1991 he was, amongst other things, taking Pepcidine as proof that he had reflux symptoms in 1991. He said that he took boxes of Quick-Eze over the years for his heartburn and that when he was having the heart attack in 1997 he thought it was his condition of reflux and delayed going to hospital.
49. His evidence with respect to his weight was that he weighed around 72 kg when he enlisted in the Army. He said that he weighed 79 kg upon discharge. He described himself as being “a big fellow” by the 1980s. He was 108 kg at the date of the hearing. He thought he was about 90 kg when he first saw Dr David Hetzel in 1998. He agreed that his symptoms of GORD had worsened with weight gain.
50. The history of his weight as given by him to Dr Hetzel and recorded in Dr Hetzel’s report of 19 November 1998 was put to him. This was a history of weighing around 73 kg until around 1994. Mr Kowalski said this history was incorrect. He said that around the time of his breakdown in 1991 he lost a lot of weight but then he put it back on again.
51. He claimed that the medication that he was given for his ulcer condition had an impact on his oesophageal function and was directly related to the onset of GORD.
52. He asked the Tribunal to accept that he had been suffering from both an ulcer and GORD during his Army service and that the GORD has continued since that time.
the medical evidence
53. Dr David Hetzel gave evidence. He is a gastro-enterologist. He saw Mr Kowalski for the first time in 1998. At that time he noted that Mr Kowalski was overweight and he was complaining of heartburn and regurgitation. He noted that he had a history of duodenal ulcer disease from 1974. Dr Hetzel has treated Mr Kowalski on and off since that time and has written a number of medical report which were in evidence before the Tribunal.
54. He expressed the view that Mr Kowalski’s duodenal ulcer had been resolved in the late 1990s once the H pylori bacteria was detected and eradicated. He was of the view that Mr Kowalski’s condition of GORD was not related to his Army service or to the fact that he had previously had a duodenal ulcer. He considered that Mr Kowalski’s weight gain in the 1990s was, in his words, a “very significant factor” in contributing to GORD.
55. Dr Hetzel said that a diet high in fat and high in cholesterol was not an accepted treatment for ulcers in the 1970s. He commented that diets were meant to neutralise gastric acid and so small regular meals were recommended for a person suffering from the symptoms of an ulcer. He described as intriguing Mr Kowalski’s assertion that he had been prescribed such a diet in the 1970s as a treatment for his ulcer.
56. He did not accept that there was a link between the fact that Mr Kowalski had used the medications Librax and Merbentyl in the 1970s and Pepcidine in 1991 and the GORD from which Mr Kowalski now suffers.
57. Dr Hetzel was asked for his interpretation of the complaints that were reported in Mr Kowalski’s service medical records during the period that he was suffering from an ulcer. The complaints included epigastric pain. Dr Hetzel was of the view that when heartburn referred to in those notes it was “by the doctor” and he noted that this would indicate that these were the words that were used by Mr Kowalski at the time. He considered that the symptoms referred to in the medical records of 1973 were what he referred to as the “classic side effects of a duodenal ulcer … pain under the breast bone and pain in epigastrium are pretty classic duodenal ulcer symptoms”.
58. Dr Hetzel was asked to comment on the possible connection between smooth muscle relaxants that had been prescribed to Mr Kowalski in 1973 and the onset of GORD.
59. Dr Hetzel expressed the view that there was evidence that taking smooth muscle relaxants could have a short-term effect. However, when a person stops taking the drug, oesophageal function returns to normal. He was emphatic that Mr Kowalski taking Librax and Merbentyl between 1973 and 1975 would not have caused the long-term chronic condition of GORD.
60. He was asked about a possible link between consumption of alcohol and GORD. Mr Kowalski put to him that if he had been consuming an average of 500 grams of alcohol per week during his Army service could have caused GORD. Dr Hetzel’s response was that he did not think that would be a sufficient factor on its own. Dr Hetzel commented that when he first saw Mr Kowalski in 1998, Mr Kowalski had described himself as an occasional drinker and they actually discussed alcohol at some length because the reason for the referral was Mr Kowalski’s abnormal liver function at the time. He said that Mr Kowalski had maintained to him that he had never been a heavy drinker.
61. Dr Hetzel reiterated that he did not believe that the symptoms that Mr Kowalski suffered from in the 1970s were due to GORD, but were due to the duodenal ulcer. He also commented that in 1973 the bacteria H pylori was not known and given subsequent medical research he believed that the most likely cause of the duodenal ulcer that Mr Kowalski suffered in the 1970s was this bacteria. In response to a question from Mr Kowalski he commented as follows:
“… You almost certainly carried this little bug helicobacter pylori at the time which we subsequently showed and then subsequently eradicated and that it was my view that the army service might or might not have been a contributory factor to the causation of the ulcer. The primary cause was likely to be that little bug and whether the army service was an important contributory factor was hard to say. …”
[Transcript, 28 November 2008, page 14]
62. Dr Donald Reid, who is a physician, also gave evidence. He had examined Mr Kowalski for the MRCC on one occasion in 2006. He had also been provided with a folder of documents which comprised all of Mr Kowalski’s medical history and prior medical reports including his Army medical records. The Tribunal received this folder as Exhibit R6.
63. As a result of his examination of Mr Kowalski and the consideration of the history, Dr Reid prepared reports. The first report was dated 20 March 2006 (T124/186-194) and the second report was dated 27 February 2008 (Exhibit R10). In his report of 2006, he expressed the opinion that Mr Kowalski suffered from GORD, but that the condition was not materially contributed to by his employment with the Army. He expressed the view that there was no good evidence to prove that stress causes duodenal ulcers and he also did not consider that the duodenal ulcer of 1973 was materially contributed to by Mr Kowalski’s employment (T124/190).
64. In his evidence to the Tribunal, he did not resile from that position. He had also read a recent report of Dr David Hetzel dated 13 November 2008 (Exhibit R8). He agreed with the conclusions reached by Dr Hetzel in that report which was that it was highly improbable that Mr Kowalski’s condition of GORD was related to his Army service or to the treatment with smooth muscle relaxants at the time.
65. He was asked to comment specifically on the link between smooth muscle relaxant type drugs and GORD. He told the Tribunal that he had spent some time reviewing the most current literature because he was aware that this was an issue in this case. He had researched the most recent electronic resource available for physicians in America and in Australia which is a Harvard backed resource. He had considered both Kolantyl and Merbentyl and GORD was not listed as an adverse effect of either of these drugs.
66. Dr Reid was asked to comment on the fact that in 1991 it appears that Mr Kowalski was also taking a drug known as Pepcidine. Dr Reid said that the drug Pepcidine could be prescribed for either peptic ulcer, which would include a duodenal ulcer or GORD. He said that he did not think that it became available on the Pharmaceutical Benefit Scheme for GORD until 1994 and therefore he thought it most likely that it was prescribed for symptoms of duodenal ulcer in 1991. He accepted the proposition that Mr Kowalski could have purchased that drug directly from a chemist in 1991, but at significant cost to himself because it was not a subsidised prescription at that point in time.
67. When pushed by Mr Kowalski, Dr Reid expressed the view that:
“… I don’t think smooth muscle drugs are at all likely to be the cause … for a person getting GORD. It would be a different question as to whether they could make a particular episode of GORD more severe, or make GORD episodes more frequent. That is medically debateable. In my own clinical practice and in my view of those issues this morning, my conclusion was that it is unproven that anticholinergics have a significant effect on GORD, either to cause it or either to aggravate it or exacerbate it or whatever.” [Transcript, 27 November 2008, page 93]
68. In his report of 2006, Dr Reid expressed the view that he suspected that the condition of GORD first developed in Mr Kowalski in the early 1990s following weight gain after his development of severe lumbar back pain with disc disease. He noted that after this he gained weight and used anti-inflammatory medication.
69. The Tribunal had regard to all the other medical evidence available in reaching its decision.
consideration of the evidence
70. The Tribunal finds that Mr Kowalski was not at all times reliable in his evidence. Aspects of his evidence appeared to be constructed to fit the medical opinion as to the causation of GORD.
71. For example, his allegation of being told to go on a high fat and high cholesterol diet when in the Army was simply not believable and appears to have been constructed on the spot to fit with the medical opinion that his weight was a major contributor to his GORD.
72. The Tribunal notes that this assertion was not previously put in any of Mr Kowalski’s many statements of facts, issues and contentions and suddenly popped up at the hearing. The Tribunal accepts that this was not a diet that would have been recommended in the 1970s.
73. Mr Kowalski’s evidence as to the timing of his weight gain is not consistent with previous statements made by him to doctors. The Tribunal does not accept Mr Kowalski’s evidence as to the timing of his weight gain. The Tribunal finds that his weight gain is more probable than not to have occurred in line with the information he gave to Dr David Hetzel in 1998.
74. The Tribunal refers to the history of weight gain referred to in paragraph 35 (supra) and finds that, on the balance of probabilities, Mr Kowalski’s significant weight gain did not occur until the mid 1990s and many years after he ceased his Army service. There is no link between his weight gain and Army service.
75. At the hearing, Mr Kowalski claimed to have consumed large amounts of alcohol after work during his years in the Army. Again, this is not sustainable on the evidence, including Mr Kowalski’s own history of his prior alcohol consumption given to Dr David Hetzel when he saw him in 1998 and which Dr Hetzel recorded at the time.
76. The Tribunal does not accept that Mr Kowalski consumed alcohol to excess during his time in the Army.
77. Both the medical witnesses are reputable medical specialists who gave precise and clear evidence of their opinions to the Tribunal. The Tribunal has no hesitation in accepting their evidence as to the causal factors with respect to duodenal ulcer and GORD and as to whether there is any connection between the two conditions.
application of the law
78. For Mr Kowalski to succeed in establishing that his GORD is a compensable condition arising out of his Army service, he must establish that the Commonwealth is liable under s 14 of the SRC Act to pay compensation with respect to that injury, in this case a disease.
79. There appeared to be some confusion in Mr Kowalski’s mind as to what was the relevant legislation. The Tribunal is satisfied that he was not treated for the disease of GORD prior to the 1990s and therefore s 7(4) of the SRC Act is the applicable legislation. He is taken to have sustained the injury (being a disease) on the day when he first sought medical treatment for the disease. Mr Kowalski did not allege any incapacity for work from the disease prior to that date.
80. The Tribunal is satisfied and finds as a fact, that Mr Kowalski first sought treatment for GORD at the earliest in the mid 1990s.
81. For the Tribunal to be satisfied that Mr Kowalski’s condition arises from his Army service, the Tribunal must be satisfied, on the balance of probabilities, that his employment materially contributed to the onset, aggravation or acceleration of that disease.
82. It is now established authority that the inclusion of the word “material” in s 4 of the SRC Act requires more than a minor or incidental connection between the injury and the employment that it is alleged has contributed to the injury or disease.
83. In Comcare v Sahu-Khan [2007] FCA 15, the Federal Court considered the interpretation of the phrase “in a material degree” and the definition of “disease” in the SRC Act. The test is whether the condition was contributed to or aggravated in a material degree by his employment. Finn J commented as follows when considering the s 4 definition:
“16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.”
84. Mr Kowalski’s case can be summarised as follows:
·he developed GORD during his years in the Army and has suffered from it since;
·he developed GORD after leaving the Army as a result of taking anticholinergic drugs and in particular, Librax and Merbentyl;
·alternatively, that his GORD came about because he was put on a high fat diet by an Army doctor and gained weight; and
·that excessive consumption of alcohol during his Army service contributed in material degree to his GORD.
85. With respect to the first proposition, each doctor was questioned at length as to whether his condition of GORD was symptomatic during his Army years. Both Dr Reid and Dr Hetzel rejected that proposition. They both expressed the view that Mr Kowalski’s GORD had developed much later and was possibly due to the combination of his obesity, his ingestion of anti-inflammatory medication for his back problem and his ingestion of Aspirin for his heart problem. Both doctors had viewed his Army medical records and subsequent medical records.
86. The commentary in the Army medical records was suggestive of the effects of an ulcer. Where the word “heartburn” is referred to, it is referred to in inverted commas as being Mr Kowalski’s words that were used in describing his symptoms. Both doctors were of the view that the Army medical records indicated that he had an ulcer at the time, but not that he had GORD.
87. The Tribunal accepts the medical evidence that Mr Kowalski was not suffering from GORD during his Army service but was suffering the effects of a duodenal ulcer.
88. With respect to the smooth muscle relaxants, namely Merbentyl and Librax, both Dr Reid and Dr Hetzel said that there is no established link between taking these drugs and GORD. They commented that the taking of these drugs may cause some regurgitation on a short-term basis, but when one ceases taking the drugs the reflux would cease fairly quickly.
89. The Tribunal finds, on the balance of probabilities, that there is no link between Mr Kowalski’s GORD and the medication that he was prescribed for treatment of anxiety or ulcer during his Army service.
90. With respect to the third proposition, the Tribunal refers to its finding that Mr Kowalski was not put on a high fat, high cholesterol diet as a treatment for an ulcer while in the Army.
91. With respect to the fourth proposition, the Tribunal refers to its findings in paragraph 75 (supra).
92. The Tribunal is satisfied that Dr Cheung’s notes which indicate him reporting the onset of symptoms some 2½ years earlier support the thesis that he developed GORD in the 1990s and very possibly as a result of the medication he had been taking for his back, for his heart problems and also as a result of the excessive amount of weight that he had gained in the 1990s.
93. In the circumstances, the Tribunal cannot be satisfied, on the balance of probabilities, that there is the required strong causal link between Mr Kowalski’s Army service and the onset of the condition of GORD.
94. In the circumstances, the Tribunal affirms the decision under review.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell, Professor P L Reilly AO (Member) and Mr S J Ellis AM (Member)
Signed: ..........J Coulthard....................................
AssociateDates of Hearing 1 September 2008, 26-28 November 2008
Date of Decision 27 May 2009
Advocate for the Applicant Self-represented
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Sparke Helmore
5