Lord and Comcare
[2003] AATA 1280
•16 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1280
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/436
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT LORD Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon CR Wright, QC (Deputy President) Date16 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................…(Sgd)..........................
The Hon CR Wright QC
Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – bronchial asthma and anxiety disorder – firefighting incident – merits of claim – whether caused by employment – decision affirmed
Safety Rehabilitation and Compensation Act 1988
Commonwealth Employees’ Compensation Act 1930, s 16 and s 124
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593
REASONS FOR DECISION
16 December 2003 The Hon CR Wright QC (Deputy President) 1. The applicant, now aged 51 years (DOB: 3 October 1952), enlisted in the Australian Regular Army on 5 November 1969. He was medically discharged with the rank of Private on 11 May 1970.
2. On 12 December 2000, over 30 years after his discharge, the applicant lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) alleging that he had suffered “bronchial asthma” and “anxiety disorder” arising out of a firefighting incident between Young and Wagga Wagga on 1 February 1970 during which he sustained “burnt lungs”.
3. By a determination dated 24 July 2001, the respondent disallowed the applicant’s claim on the grounds that:
(a)it was out of time pursuant to Section 16 of the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act); and
(b)there was no medical evidence in support of the applicant’s claim.
4. The applicant requested a review of this decision and, by a reviewable decision dated 22 August 2001, the original determination was affirmed.
5. On 11 June 2002 (with the consent of the respondent as the applicant was out of time for lodging an application for review with the Administrative Appeals Tribunal), the applicant lodged an application for review of the determination of 22 August 2001.
6. Pursuant to section 124 of the Act, compensation would only be payable to the applicant if it would have been payable under the 1930 Act, that being the legislation in force in 1970 relevant to the applicant’s claimed compensation.
7. Pursuant to section 16 of the 1930 Act a claim for compensation cannot succeed (subject to certain exceptions) unless notice of the injury or disease is given to the relevant authority and a claim is made in respect thereof within six months from the occurrence.
8. As this is essentially a preliminary issue raising what may be regarded as a jurisdictional point, directions were given on 28 February 2003 (with the consent of both parties) that the Tribunal should decide the section 16 issue on the information and materials then before the Tribunal.
9. The process was undertaken, by Dr EK Christie, Member (with difficulty I should think as he had no opportunity to see the applicant or hear viva voce evidence). On 20 May 2003, Dr Christie decided that “Mr Lord’s claim for compensation meets the requirements of section 16 of the Commonwealth Employees’ Act 1930 regarding the late claim and notice. This means the Tribunal has jurisdiction to hear Mr Lord’s claim for compensation”.. Whilst it may be argued that this determination could have been made in somewhat more explicit terms by incorporating a reference to the relevant legislative provisions, the effect of the Member’s decision is clear enough.
10. This issue having been decided in the applicant’s favour, the remaining issue as to the merits of the applicant’s claim now require determination. A hearing took place before me at Coolangatta on Tuesday, 25 November 2003. The applicant was unrepresented. The respondent was represented by Mr C Clark of Counsel. The respondent filed a Statement of Issues and a Statement of Facts and Contentions in 2002 relating to both the section 16 limitation issue and the merits of the applicant’s claim. These documents were both redrawn in appropriate terms after Dr Christie’s decision in May 2003. In the amended Statement of Facts and Contentions the respondent challenged the applicant’s claim to have suffered from bronchial asthma and anxiety disorder and raised the issue whether either such condition, if existing at any relevant time, was caused or contributed to by the applicant’s employment with the Commonwealth.
11. The applicant did not file a Statement of Issues or Facts and Contentions. As a consequence he was requested in writing, on 23 June 2003, by the respondent’s solicitors to provide them with “a detailed statement canvassing the following issues:
§ Details of the medical practitioners you have attended either prior to/concurrent or post service;
§ Circumstances of the fire fighting incident in 1970;
§ Circumstances of the incident in which you claim you were prescribed an overdose of medication;
§ How the condition affects your employment;
§ Details of your employment history;
§ Details of your medical treatment;
§ A description of the difficulties you claim you experience as a result of your claimed condition.”
12. The applicant complied with the respondent’s solicitor’s request on or about 3 September 2003 by providing a handwritten statement with several pages of annexures which became Exhibit 1 at the hearing.
13. The applicant gave sworn evidence at the hearing and deposed to the truth of the factual allegations made in the handwritten statement. It was plain from his evidence that he was seeking to establish that his claimed asthma condition originated during his time in the Army from sources and causes additional to the alleged fire fighting incident between Young and Wagga Wagga. He also claimed that the fire fighting incident occurred in December 1969 and not on 1 February 1970 as originally claimed by him.
14. His claim in respect of his alleged anxiety condition seemed to be based upon the proposition that it resulted from stress and anxiety caused to him by his asthma and its ineffective treatment by Army doctors. A good deal of medical material was referred to as the case proceeded but is soon became clear that the applicant lacked the essential medical evidence to sustain his claims.
15. His personal evidence, aided by a newspaper cutting, persuades me that in fact he attended with other Army personnel to assist in fighting bush fires in the Southern Riverina area on or about 20 December 1969. But his evidence did not establish that he suffered asthma or asthma-like symptoms at the time or immediately thereafter, either as the apparent consequence of smoke inhalation or at all.
16. Indeed the documentary evidence including Army medical records contained within Exhibit 2 [section 37 (“T”) documents] (T8, page 26) shows that he had in fact suffered asthmatic symptoms on 12 December 1969, some 8 days before the fire and, on 15 January 1970, nearly 4 weeks after the fire, there is an entry “no further problems with breathing”.
17. The next mention of chest problems is on 27 January 1970 when it was noted that he had a “cough with yellow sputum”. There is also a note “no true bronchospasm”. Not surprisingly after 30 years the author(s) of these entries were not called to give evidence so the full significance of these notes may not be entirely clear, but it does seem to me to be obvious:
(a)That the first onset of asthma cannot be sheeted home to the bushfire activities involving the applicant; and
(b)That the bushfire itself did not precipitate asthma or asthma-like symptoms in the applicant.
18. These conclusions are supported by the view of Dr William A Oliver, a thoracic physician, expressed in his report dated 4 November 2003 (Exhibit 4), where he reviewed most of the available medical history pertaining to the applicant. Dr Oliver did not physically examine the applicant but has proffered his opinion based upon his analysis of the medical records and his own expertise. His view is that the applicant’s asthma may be attributable to an allergic condition, which is apparently the most probable explanation for about 90% of all asthma cases. He also drew attention to the fact (confirmed by the applicant’s evidence) that the applicant’s brother was asthmatic and that such conditions tend to run in families.
19. The applicant downplayed his brother’s asthma problem saying it had only been manifest for a short time when his brother was about 12 years of age. He said his brother only had asthma “about twice” but I find it hard to accept this as he also admitted that his brother had used an inhaler for a period of “some months”..
20. Whilst in the Army the applicant was seen and treated by Dr B Hartnett, a thoracic physician who expressed the view that the applicant was “rather immature” and that it was possible that a functional factor was involved in a supposedly asthmatic episode on 1 March 1970 (T8, page 50). It should also be noted that nowhere in the medical notes has a treating doctor made any entry suggesting that the applicant has attributed his asthmatic condition to problems arising during the Army’s assistance in fighting the bushfires.
21. The Final Medical Board Report prepared on the applicant’s discharge on 4 May 1970 (T8, page 69) is a document of some interest in that it refers to a claim made by the applicant at the time of his discharge that he had developed bronchial asthma and a personality disorder while serving in the Army, the latter due to “mental stress”. The Board rejected the applicant’s claim as to the cause of his mental condition and recorded that it was part of his “inherent personality” and was present before service. I will come back to the claimed anxiety disorder later.
22. As to the bronchial asthma claim it was accepted by the Board that this was “aggravated” by conditions of service. Disabilities of 25% and 10% respectively were attributed by the Board to the asthmatic condition and the personality condition. At first sight these entries in the records may seem to support the applicant’s claimed disability due to asthma, but both conditions were rejected by the Board as “attributable to Army service on an occurrence during service”.
23. There is nothing in the evidence to suggest that any aggravation of the asthma resulted in lost earning capacity or produced permanent incapacity or compensable sequelae. It is inherent in the report of Dr Oliver that asthma is a condition which can be symptomatically induced or aggravated from time to time without the patient enduring permanent consequences. A disability of 25% from asthma at the time of discharge does not translate to an enduring disability for a week, a month or a year thereafter. Without a much more structured and reasoned medical opinion that the conditions of service created a chronic asthmatic disability in the applicant over and above disability inherent in or attributable to his pre-existing asthmatic condition, I would be hard pressed to find that the evidence establishes any compensable claim based on “bronchial asthma”. I refer to Ballard and Sutherland’s treatise on the Safety Rehabilitation and Compensation Act 1988 and the cases referred to therein at para 4.02 and 4.03. I will return to this issue again later.
24. The applicant said that he was physically fit and healthy when he joined the Army and that he had never previously had an asthma attack. On the other hand he says he started smoking up to 15 cigarettes per day while he was in the Army. Dr Oliver attributes his recurrent bronchitis during his time in the Army to his “smoking and underlying allergic condition”. Assuming the truth of the applicant’s claim to have had no attacks prior to enlistment it does not follow that the onset of such attacks was caused or that his asthmatic condition was caused by Army service.
25. Under the present Act a compensable “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….”
Under the 1930 Act the test was “due to the nature of the employment”. As Windeyer J said in Ogden Industries Pth Ltd v Lucas (1967) 116 CLR 593:
“’Aggravation’ means I think that an existing disease has been made worse, not that it has simply become worse.”
It is appropriate to point out that for a disease to be compensable it is not necessary to put a particular name to the incapacitating condition being experienced by the claimant, so the lack of specificity in naming the mental condition of the claimant, is not of itself a disentitling factor.
26. It is clear enough from the applicant’s Benefit Election Record (T19, page 88) that he seeks compensation for weekly incapacity payments, permanent impairment medical costs and house hold service, yet there has been no evidence addressed as to the quantum or nature of any of these claims or the existence of material to support any such entitlements.
27. Returning to the issue of whether or not the notation on the applicant’s Final Medical Board Report of 18 March 1970 (T8, page 69) supports a claim that the applicant’s asthmatic condition, if not caused by Army service, was at least “aggravated” thereby, the following points need to be made.
§ The basis of the diagnosis that bronchial asthma was aggravated by conditions of service appears to be that the “condition is claimed [by the applicant] to have arisen during service owing to mental stress”;
§ Having regard to the probable functional element noted to be present during asthma attacks in other medical notations and the Board’s own rejection of the personality disorder as being in any way attributable to Army service, I find the asthma aggravation diagnosis to be supported by nothing more than the applicant’s claim or assertion to that effect – clearly an insubstantial and unacceptable basis for such a diagnosis, particularly when it is used to found a disability assessment of 25% “for General Labour Market”. I note that the Medical Board appears to have been constituted by one member only whose qualifications are not stated.
28. I regret to say that in these circumstances I find the Board’s assessment that the applicant’s asthma was “aggravated” by conditions of service is totally unpersuasive and, in the absence of any more reliable medical appraisal, it is material which fails to persuade me on the balance of probabilities that the applicant’s Army service contributed to an aggravation of his asthmatic condition but, in any event, as already pointed out a mere temporary or transitory aggravation of asthmatic symptoms in 1970 does nothing to substantiate a claim for compensation made in 2000 where the components of the claim are neither specified nor related to any such aggravation.
29. On the whole of the evidence, which regrettably is somewhat fragmentary and vague and perhaps ambiguous in some respects, I am unable to find that on the balance of probabilities the applicant’s asthmatic condition was caused or aggravated in a relevant sense by his Army service.
30. As to the claimed anxiety disorder, some assistance is to be derived from the report of Dr Maxwell Katz a consultant psychiatrist whose report dated 9 February 2000, became Exhibit 3. Although not purporting to diagnose any particular psychiatric disorder from which the applicant suffers or has been suffering, Dr Katz discusses the symptoms of stress and depression which appear to underlie the applicant’s claim. Dr Katz’ report does not specifically attribute the applicant’s unhappy condition to a particular cause or causes. However the report does deal extensively with the applicant’s family and marital problems, especially the emotional and physical abuse he suffered at the hands of his elder brother when they were children and numerous ongoing “life stresses” after he left the Army.
31. I see nothing in Dr Katz’ report which would support the view that the applicant has or has had a compensable mental disorder or that any such disorder or condition is attributable to his Army service. It seems to me that the tenor of Dr Katz’ report is to support the respondent’s contention that the applicant’s mental condition was caused by familial and relationship problems antedating his enlistment in the Army.
32. The applicant himself was keen to attribute his mental problems, at least substantially, to a claimed drug overdose administered whilst he was receiving treatment by Army hospital staff but there is not a scintilla of evidence to support this. However there are several references in the records to his having “personality disorder” or “immature personality” (see for example T8, pages 67 and 69) and it seems to me that these entries also tend to support the respondent’s contentions that whatever mental health problems the applicant had were in existence before he enlisted.
33. The applicant was seen by a Dr Colin Degotardi in July 1974 and December 1988. In his report of 31 July 1974, Dr Degotardi says:
“This boy has a severe personality disorder of dependent/immature type, which has totally disorganised his function. He is now completely dependent upon friends, family, the community and the government for support. This personality disorder, I would assume, predates his enlistment, but a crisis of dependency occurred during this period which was exhibited by pyschosomatic symptoms that is bronchial asthma which still persists, and a deterioration in the personality disorder …”
Whilst Dr Degotardi, in this report, only assumes that the personality disorder predates his enlistment, the report does nothing to sustain the applicant’s claim that his personality/anxiety disorder was caused by Army service. Dr Degotardi’s later report in December 1988 does not advance the issue.
34. This is an unfortunate case in some respects as I am sure that the applicant genuinely believes that his asthmatic/bronchial problems and his personality disorder are due to his Army service. However for the reasons given above I am unable to agree with him on the basis of the currently available evidence. Indeed the weight of evidence seems to me to point to the conclusion that both diseases may be and probably are due to heredity and relationship factors both of which predated his enlistment.
35. A report by Dr Fabian Bryant, a Toowoomba psychiatrist, dated 27 June 1990 which forms part of Exhibit 1, deals broadly with the applicant’s health issues but principally with the psychiatric aspects of his condition. This report, now over 13 years old, was provided by the applicant to the respondent’s solicitors pursuant to their request for details on 23 June 2003 referred to in para 11 of these reasons. The report is addressed to the Director of Australian Government Health Services in Brisbane but for what purpose the report was made is unclear. It may have had something to do with superannuation or other entitlements. At all events the report contains some useful material germane to the present claim and even more importantly it expresses an opinion which tends to confirm:
(a)that the applicant was suffering mental problems before his enlistment; and
(b)that his asthmatic symptoms were in part at least caused by functional factors. At page 2 of the report the following passage appears:
“My impression is that Mr Lord probably suffered from a childhood Post Traumatic Stress Disorder at the hands of his elder brother and that he became shy, withdrawn and dependent with nocturnal restlessness and some preoccupation with possible imminent death. The shortness of breath from which he suffers would appear to be a combination of bronchial asthma and hyperventilation. Some of the symptoms of disorganization from which he complained, appeared and resolved during the examination as his breathing rate was either stimulated or relaxed…”
36. A consideration of the issues and evidence discussed above has led me to the conclusion that the decision under review should be affirmed. I so determine.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon CR Wright QC (Deputy President)
Signed: Sarah Oliver
AssociateDate of Hearing 25 November 2003
Date of Decision 16 December 2003The Applicant appeared in person
For the Respondent Mr C Clark of Counsel
Solicitor for the Respondent Sparke Helmore
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