Matthews and Military Rehabilitation and Compensation Commission

[2008] AATA 427

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/717

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARY MATTHEWS

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member

Date26 May 2008

PlaceSydney

Decision The Tribunal affirms the decision under review.

..........................(Sgd).................

Ms G Ettinger     
  Senior Member

CATCHWORDS

NAVY SERVICE  - Applicant served on various ships in the Australian Navy - claims to have been exposed to beryllium, and claims compensation for injury - blood tests have indicated sensitisation as a result of exposure to beryllium - Applicant has been advised to monitor the situation with X-rays and clinical examinations every two years - liability not accepted - decision under review affirmed.

Safety Rehabilitation and Compensation Act 1988   ss 4, 14

Comcare v Sahu-Khan (2007) 156 FCR 536

REASONS FOR DECISION

26 May 2008

 Ms G Ettinger, Senior Member

  Dr M E C Thorpe, Member  

1.      Mr Gary Matthews is a teacher. He served in the Australian Navy from 9 April 1979 to 11 April 1999 where he claims to have been exposed to beryllium dust through the use of Jason Pistols which were used to perform maintenance on board ship. Mr Matthews claims that he has suffered injury as a result and gave evidence of coughs, night sweats and dermatitis. His claim in 2005 to the Respondent with regard to compensation for injury as a result of exposure to beryllium was denied by a Reconsideration Officer on 31 May 2005.  Mr Matthews appealed to this Tribunal.

2.      Mr Matthews had been unable to obtain permission for tests to be carried out with regard to the exposure to beryllium he claims occurred on board Navy ships, and after an initial hearing at the Tribunal, we arranged for that to occur. Unfortunately the test was initially not available in Australia, and it has taken over two years for the tests to be carried out and results to be obtained. These indicated that Mr Matthews has beryllium sensitisation. However, we were not able to find that he has suffered an injury or disease pursuant to the Safety Rehabilitation and Compensation Act 1988 (the Act), and accordingly we affirmed the decision under review. Our reasons follow.

ISSUE TO BE DECIDED

3.      The issue before the Tribunal was whether we could, pursuant to the legislation, accept Mr Matthews’ claim that he has suffered a compensable injury arising out of exposure to beryllium in the Navy.

THE LEGISLATION

4.      The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act), in particular section 14 which states that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Injury is defined in section 4 of the Act.

“4.  (1)  In this Act, unless the contrary intention appears:

...

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.

...

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.

...”

5.          Sections 14(1) provides for liability for compensation for injured workers,

“14      Compensation for injuries

14(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.

…”

CONSIDERATION

6.      The Tribunal stands in the shoes of the decision maker, and must consider Mr Matthews’ whole claim afresh. In that regard we were mindful of the decision of the Reconsiderations Manager of the Military Compensation Service of the Department of Veterans’ Affairs made on 31 May 2005 which affirmed the decision made on 21 April 2005 denying liability for the effects of exposure to beryllium by Mr Matthews. 

7.      We considered Mr Matthews’ claim at T5, made on 14 February 2005, in which he stated he had been exposed to beryllium dust on board a Navy ship, and stated that he first noticed illness, and was first treated in 1983 or 1984. 

8.      A summary of his evidence indicates that he developed a cough, had dermatitis and suffered night sweats. He also told us that he suffers anxiety as a result of worry about his condition.

9.      In March 2005, Mr Matthews underwent a Beryllium Lymphocyte Activation Test by Dr Lee, a thoracic physician, (T14/243). Dr Lee concluded that: “There is no clinical evidence of chronic lung disease but further evaluation by chest CT scan is recommended.”

10.     On 18 March 2005, Mr Matthews underwent a high resolution CT of his chest. The conclusion was that: “No lung parenchymal abnormality is seen. No evidence of beryllium disease. No mediastinal or hilar mass is detected.”

11.     On the basis of those tests, Mr Matthews’ claim was refused by a Delegate of the Military Rehabilitation and Compensation Commission. At the request of Mr Matthews, the matter was reconsidered on 31 May 2005, and Mr Matthews exercised his right to appeal to this Tribunal. 

12.     During the initial hearing of the matter, the Tribunal was concerned that Mr Matthews had not been afforded the opportunity of being having a Beryllium Lymphocyte Proliferation Test (BeLPT), which at the time was available only overseas, and was being developed in Australia. We adjourned the hearing for Mr Matthews to make inquiries. He eventually underwent, and paid for the test, and the Intermediate Lymphocyte Transformation Test Result was dated 27 September 2006. It stated:

“Stimulation index is measured as the response in counts per minute (cpm) divided by the response for unstimulated cells. The PHA stimulation index is the positive control used for this assay and should be positive. A BORDERLINE lymphocyte response to Beryllium was detected by H3-thymidine uptake studies. This assay should be interpreted in the context of clinical, imaging and spirometric studies.”  (Exhibit A4)

13.     Dr Glenn Reeves hand wrote to Dr Schultz on a copy of the report as follows:

“I regret that current scientific testing methods are unable to definitely clarify your problems. I support another clinical assessment through a specialist such as Janet Rimmer, Sydney immunologist.”

14.     After a further test, Dr Reeves reported on the BeLPT, dated 17 October 2006, and stated as follows:

“The proliferation index was borderline on repeated testing. We need to treat this result with caution – the assay displays some unpredictable variation, but the lack of significant elevation of your test result argues against a major component of beryllium-related immune pathology.

Given the imperfect nature of this and other tests, we are left with the need for thorough review by an excellent practitioner who can synthesise your history, examination and test results. No test result in isolation is diagnostic in itself.” (Exhibit A5)

15.     We also had before us the reports of Dr J Rimmer, a thoracic physician and allergist, (Exhibit A6), and Professor A Breslin, (Exhibit R4), who is a thoracic physician. Both gave evidence before the Tribunal. Dr Breslin who did not examine the Applicant, but gave a report on reviewing the material about Mr Matthews which he was sent by the Respondent, was also given a further opportunity of commenting after he was sent Mr Matthews’ tests results (Exhibit R5).

16.     Dr Rimmer stated in her report in 2007, that on examination Mr Matthews coughed intermittently, and attributed that to anti-hypertensive medication and a post nasal drip.  She referred to previous examinations such as X-rays and a CT scan which had been normal, but also commented on a long latency from exposure to development of malignancy. Dr Rimmer concluded:

“Previous and current assessment suggests that Mr Matthews does not have clinical evidence of berylliosis but may have beryllium sensitisation. However it is possible that this condition could develop and he should have long term monitoring available including a chest x-ray, repeat lung function tests and repeat lymphocyte transformation testing every 2 years. The most important aspect of management is cessation of exposure which I understand has occurred.”

17.     Professor Breslin was not asked to examine Mr Matthews, and prepared his report from material supplied to him by the Respondent.  In his report at Exhibit R4, Professor Breslin concluded that Mr Matthews “has no evidence of acute or chronic beryllium disease.” He also concluded that the exposure took place some 20 years ago, and that the chances of Mr Matthews developing clinically manifest disease were remote.

18.     Professor Breslin also made statements in his report which are reproduced below, and were put to Dr Rimmer. She agreed with the following, in relation to the Beryllium Lymphocyte Proliferation Test:

“The test is performed in vitro (that is on the patient’s blood rather than on the patient’s complete body) and indicates that the patient has been exposed to beryllium and become sensitised to it. However it may exist without any evidence of disease clinically with no symptoms, no abnormal function and no abnormal radiology or clinical findings. There are no symptoms. Disease may never develop in the individual.

…

… the mere existence of the sensitisation cannot be considered a condition or an ailment.

… I do not believe that conventional medical thinking would describe beryllium sensitisation as an ailment and certainly no impairment exists as defined in the SRC Act in the presence of beryllium sensitisation without the presence of any disease. ..”

19.     The results of Mr Matthews’ Beryllium Lymphocyte Proliferation Test were referred to Professor Breslin who wrote a supplementary report on 10 April 2008 (Exhibit R5). He opined that the tests were borderline and stated: The evidence would suggest that Mr Gary Matthews does not have sensitisation to Beryllium and in all other ways my earlier reports remain unchanged.”

20.     Professor Breslin agreed that Mr Matthews could be monitored every two years even though he maintained that the chances of Mr Matthews developing clinically manifest disease were remote.  He did not consider the BeLPT particularly accurate.

21.     We noted that in the Online Medical Dictionary, sensitisation is defined as exposure to allergen that results in the development of hypersensitivity.

22.     In Black’s Medical Dictionary, 40^th Edition, a search for “sensitisation” leads one to the term “allergy” which the dictionary states is “a term generally used to describe an adverse reaction by the body to any substance the affected individual ingests. Strictly, allergy refers to any reactions incited by an abnormal immunological response to an allergen …”

23.     In coming to a decision regarding whether Mr Matthews suffers injury or a disease pursuant to the Act, we relied on the evidence before us. Mr Matthews told us that he worked in confined spaces and that working with Jason Pistols exposed him to beryllium in Navy ships. He says that he has coughs, night sweats and dermatitis.  We also had quite an amount of literature on beryllium which was made available to us, indicating there can be an acute or chronic condition which arises out of beryllium exposure.

24.     We were also mindful of the reports of Dr Lee, a thoracic physician, and Dr Martin, a general practitioner who both reported in 2005.  Dr Lee, who found no clinical evidence of chronic lung disease, ordered a CT scan of Mr Matthews’ chest, (T18), which showed no evidence of beryllium disease. Dr Martin asked that Mr Matthews be tested further, noting he had a history of exposure to beryllium, and “symptoms that could be consistent with ‘Chronic Beryllium Lung Disease’ in its early phase.”

25.     We are satisfied with the medical evidence which informed us that Mr Matthews’ cough is likely to be due to hypertensive medication he takes, and that he has a post nasal drip which may contribute.

26.     The further medical evidence upon which we rely are the X-rays which were normal, the CT scan which was normal, and the BeLPT tests which showed sensitisation to beryllium. Both Dr Rimmer who is a thoracic physician and allergist, and Professor Breslin who is a thoracic physician, produced reports and gave oral evidence before the Tribunal. They agreed that the mere existence of sensitisation to beryllium cannot be considered a condition or an ailment, and, that the likelihood of Mr Matthews developing beryllium related disease is remote. We accepted those opinions, noting that the exposure to beryllium, if any, ceased some 20 years ago, and that he does not, and has not an injury or disease or incapacity as a result of beryllium exposure.

27.     We noted Mr Dube’s submissions regarding section 7(1) of the Act, and the cases of Comcare v Sahu-Khan (2007) 156 FCR 536.

28.     However we were not satisfied that Mr Matthews suffers an injury or ailment or identifiable medical condition which causes incapacity within the terms of the legislation. Accordingly contribution of the workplace, material or otherwise does not arise, and therefore liability cannot be accepted pursuant to section 14 of the Act.

CONCLUSION

29.     We are satisfied that there is no evidence that the Applicant suffers from an identifiable beryllium related injury or disease within the meaning of section 4(1) of the Act.  Accordingly there can be no liability accepted pursuant to section 14 of the Act.

30.     We have noted the views of Drs Breslin and Rimmer that it would be prudent for Mr Matthews to be re-assessed at approximately two year intervals. He is free to do that of course, and should he be found to be suffering injury or disease in relation to any beryllium exposure, then he is free to make another claim.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member.

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

Dates of Hearing  29 September 2005, 14 February 2008 & 14 April 2008

Date of Decision  26 May 2008

ApplicantSelf represented, appearing with Mr G Van Baast of the RSL

Respondent’s Counsel             Mr B Dube

Respondent’s Solicitor              Ms S Johnson, Ms K Miller and Mr P Nolan, Sparke Helmore