McAway and Comcare Australia
[2003] AATA 988
•30 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 988
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1143
GENERAL ADMINISTRATIVE DIVISION
Re: IAN McAWAY
Applicant
And: COMCARE AUSTRALIA
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 30 September 2003
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes its decision that the applicant’s bronchiectasis was aggravated and possibly accelerated by the delay in diagnosis by the respondent (s6A(2b) of the Safety, Rehabilitation and Compensation Act1988).
The applicant is entitled to compensation for loss of his sea-going allowance and the cost of continuing medical treatment. The matter is remitted to the respondent for estimation of the amount of compensation attracted.
. . . . ……………. .. .
Member
Military Compensation and Rehabilitation Service - pre-existing but undiagnosed condition - aggravation and/or acceleration - as an unintended consequence of that treatment the person suffered or suffers an injury - delay in diagnosis - loss of sea going allowance - chemical exposure.
Safety, Rehabilitation and Compensation Act 1988 (SRCA) s4(1), s6A(2b), 14, 16, 19
Johnston v The Commonwealth (1982) 150 CLR 331
Elliot and Comcare (2001) AATA 305 (12 April 2001)
W. Raymond, Parkes Occupational Lung Disorders, 2nd edition Butterworths, 1982
REASONS FOR DECISION
30 September 2003 Miss E.A. Shanahan, Member
1. This is an application for review of the decision of a delegate of the respondent dated 12 October 2000, as affirmed on 4 July 2001, denying liability to pay compensation for the applicant’s bronchiectasis. The decision was based on medical evidence at the time that the applicant’s military employment was probably not the principle cause of his condition of bronchiectasis.
2. The applicant was represented by Mr Carey of Counsel instructed by Ms K. Young of Ryan Carlisle Thomas and the respondent by Mr Clarke of Counsel instructed by Ms E. Reed of the Australian Government Solicitor. The Tribunal had before it the s37A of the Commonwealth Administrative Appeals Tribunal Act 1975 documents (T-documents). The applicant tendered the report of Dr J. Burdon dated 24 April 2002 (Exhibit A1); the report of Professor Michael Pain dated 24 April 2002 (Exhibit A2) and the applicant’s statement of 5 July 2002 (Exhibit A3). The respondent tendered the applicant’s service medical record Volume 2 (Exhibit R1); the report of Dr Stephenson dated 27 June 2002 (Exhibit R2); a second report by Dr Stephenson dated 28 May 2003 (Exhibit R3); a report of Susan King dated 20 May 2003 (Exhibit R4) and the report of Dr Stephenson of 6 June 2003 (Exhibit R5).
3. The applicant and Professor Pain attended the Hearing and gave evidence. Dr P. Stephenson’s evidence was given by video conferencing.
Background to the Application
4. The applicant joined the Navy in July of 1993 and was employed as a Marine Technician-Mechanical. He held the rank of Leading Seaman and now Petty Officer. While on sea duty the applicant completed three four-hour watches per day in the engine room, monitoring equipment and repairing any faults.
5. While at sea in July 1999 the applicant developed symptoms of headache, vertigo, fever and bilateral knee pain. After three days he was landed from the HMAS Launceston for medical treatment in Cairns (23 July 1999). While most symptoms improved, the applicant remained lethargic and continued to suffer headaches and joint pains. His cough became more productive (cough having proceeded the acute symptoms for some years). Sputum cultures grew Haemophillus influenzae and one of six sputa grew mycobacterium avium. In December 1999 left lower lobe bronchiectasis of mild degree was diagnosed by a physician in Darwin. Appropriate antibiotic therapy and physiotherapy with postural drainage was commenced.
6. Following the diagnosis of bronchiectasis the applicant was reclassified to Category Five by the Naval Medical Board for a period of six moths. During the acute phase of his illness the applicant had been (from 12/11/99) reclassified to Category Five from Category One for a period of two months (date of reclassification 24/8/99, T-3 pages 15 and 16).
7. The re-classification prevented the applicant from sea-going duties and as a consequence he lost the accompanying sea-going allowance.
8. The applicant claimed the condition of bronchiectasis had resulted from survival at sea and damage control exercises during winter and was aggravated or accelerated by exposure to engine room fumes and chemicals on board the HMAS Balikpapan. The respondent denied liability on the basis that these events were not the most probable cause of the underlying bronchiectasis.
Evidence Before the Tribunal
9. The applicant confirmed his dates of service in the Navy and his continuing service and also delineated his duties in the Navy as outlined in his statement of 5 July 2002 (Exhibit A3). During the course of his initial training he had undergone fire-fighting tuition during which he had been exposed to large volumes of smoke and in other exercises had been exposed to what is commonly known as tear gas, inside a small compartment. (Transcript page 10-line 10) He had also been required to perform silicone lagging of pipework and exhaust systems. As part of a survival-at-sea course, he had spent a period of at least 30 minutes immersed in Port Phillip Bay in a faulty thermal protection suit. Following the latter he had developed symptoms which he likened to those of a common cold, with headache, runny nose and cough.
10. The applicant acknowledged that if he was sick he was obliged to report to the sickbay and had done so whenever he was unwell. On the vast majority of occasions, he was seen by a medic for his symptoms of cough which at times was dry and at times productive. He had not sought medical attention outside his naval service.
11. During his service on the Balikpapan the applicant stated that he had spent four-hour watches, two to three times per day, in the engine room, where he was exposed to a temperature of 52 degrees centigrade and during this time was exposed to a variety of fumes and chemicals. Unlike more modern ships, the Balikpapan did not have a separate control room and he was required to be physically present in the engine room and thereby exposed to various fumes and chemicals. The applicant had listed the chemicals to which he was exposed in his statement (Exhibit A3).
12. In July 1999, while serving on the HMAS Launceston, the applicant had become unwell with headaches, nausea and vomiting, associated dizzy spells and an extreme feeling of coldness. He was confined to bed until he reached Cairns where he was offloaded for medical treatment. During this period on the HMAS Launceston he was attended by the medic on board the ship. After investigation in Cairns he returned to Darwin, at which time he was still suffering from dizzy spells, lethargy and an inability to work. He was seen by a Doctor Howard, who instituted formal investigations leading to a diagnosis of bronchiectasis with positive sputum cultures of Haemophillus influenzae. Following appropriate treatment the applicant was returned to work after two to three months in an administrative capacity, but was not permitted to return to sea.
13. The applicant agreed that his mother had told him that at about the age of five he had suffered a medical chest condition, and his mother had been informed that he had pleurisy. The applicant felt that he had had the usual number of upper respiratory tract infections per annum, until 1993, when his cough became more pronounced. On enlistment his medical report had stated that his chest was clear.
14. The applicant confirmed that after his recategorisation to Medical Category Five, which precluded him from sea-going duties, he had become depressed and required treatment with anti-depressants for a period of about twelve months. Following the institution of postural drainage and antibiotic therapy, after the diagnosis of bronchiectasis, he had improved markedly. With this improvement he had been permitted to return to sea duties.
15. In cross-examination Mr Clarke concentrated on the applicant’s history of upper and lower respiratory tract infections and in particular whether or not his cough had been productive or non-productive. The applicant had always regarded his symptoms as being related to influenza or a common cold. Mr Clarke took the applicant through his naval record in detail, noting that there were entries of productive cough with green sputum on two to three occasions in 1993, three occasions in 1994, with other episodes reported as non-productive cough, one episode in October of 1996, two episodes of productive cough in 1997 and four episodes of productive cough in 1999. Throughout all these years there were other reports of non-productive cough.
16. In answer to questions posed by the Tribunal, the applicant confirmed that most of the medical assessments had been performed by a medic, rather than a qualified medical practitioner. These medics did not have the authority to prescribe antibiotics. In 1993 he had been prescribed Tetracycline and subsequently Amoxyl over a period of two weeks by a medical practitioner. The applicant was unable to recall these events, which formed part of the T-documents.
17. Professor Michael Pain, a consultant respiratory physician, had seen the applicant and provided a report dated 15 January 2003 (Exhibit A2). Professor Pain believed that the applicant’s bronchiectasis was secondary to an episode of pleurisy at the age of five years, but that his symptomatology had been aggravated by his employment in the navy, by both an exposure to bronchial irritants in the course of his work and by a failure to diagnose the pre-existing bronchiectasis from 1993 until 1999 when the diagnosis was confirmed. Professor Pain opined that the correct treatment of bronchiectasis was antibiotics as necessary and daily postural drainage, a form of physiotherapy. Professor Pain also indicated that the diagnostic test of bronchiectasis was high resolution CT scanning which had been available for many years prior to 1993. Professor Pain, in cross-examination, explained that many patients described their cough as non-productive if they did not actually expectorate sputum but swallowed it. Professor Pain essentially agreed with the report of Dr P. Stephenson (see later) and asserted that his report in no way suggested there was any medical negligence in the diagnosis of the applicant’s condition. Professor Pain maintained his opinion that exposure to bronchial irritants could and would aggravate the symptomatology of bronchiectasis, but would not cause this condition. Professor Pain delineated the known causes of bronchiectasis, namely an ideopathic congenital group; a rare group relating to Pink disease in childhood and the majority of people being those who had viral infections during childhood. On questioning by the Tribunal, Professor Pain agreed that bacterial pneumonia also could cause bronchiectasis. He confirmed that he did not believe the applicant was physically incapacitated by his bronchiectasis, which was mild, and that he could certainly return to sea-going duties in a ship with a control room separate from the engine room.
18. Doctor Stephenson gave evidence by video. He had provided five written reports to the Tribunal; namely that of 19 July 2000 (T5), a report of 20 September 2000 (T6), a report of 27 June 2002 (Exhibit R2), a report dated 28 May 2003 (Exhibit R3) and a final report of 6 June 2003 (Exhibit R5)).
19. There was no examination-in-chief. In cross-examination Dr Stephenson indicated that the primary cause of the applicant’s mild bronchiectasis was childhood pleurisy and lung infection. He did not believe there was any relationship to any toxic inhalation. He agreed that the applicant was fit for sea-going duties. Whilst with his uncontrolled or untreated bronchiectasis, the engine room of the ship was not the ideal situation, the applicant’s major risk was of recurrent infection. In his opinion irritants resulted in the increased cough which, for bronchiectasis, was of benefit. Dr Stephenson took a somewhat defensive approach to the suggestion that the applicant should have had a CT scan in 1993, pointing out that it was easy to diagnose conditions in retrospect. When the Tribunal pointed out that the applicant had been seen predominantly by medics and very few medical practitioners during the course of 1993 to 1997, Dr Stephenson agreed that “an opportunity for a diagnosis may have been inappropriately delayed”.. The Tribunal also pointed out to Dr Stephenson the remaining issues to be decided related to his loss of seagoing allowance because of the diagnosis of bronchiectasis, the question of whether this condition had been aggravated by exposure to bronchial irritants or that deterioration of the condition had occurred as a result of a delay in diagnosis. The Tribunal assured the witness that there was no question of medical negligence nor was there any question regarding causation of the process given that all the evidence suggested the bronchiectatic process had been initiated by a childhood lung infection. Dr Stephenson was of the opinion that the applicant’s bronchiectasis was mild and that there was no evidence that this has worsened over the period. He agreed that early referral for further investigation had been indicated but had not occurred, and reiterated his opinion that exposure to bronchial irritants would not have a deleterious effect on the underlying disease process.
20. On completion of the oral evidence from the expert medical witnesses, the Tribunal felt obliged to inform the parties of her continuing practice as a consultant thoracic surgeon, and her exposure to the treatment, both conservative and surgical, of bronchiectasis. Whilst the medical experts giving testimony have regarded the condition as a rarity, this was not in fact the experience of the Tribunal.
Documentary Evidence Before The Tribunal
21. The Department of Defence had provided the applicant’s postings on the HMAS Balikpapan to have been from 31 October 1994 to 19 January 1997, from 14 April 1997 to 1 June 1997, from 20 June 1997 to 28 October 1997 and from 12 December 1997 to 5 January 1998. (R4)
22. The T-documents contain the applicant’s service medical records, which included two reports from Dr M. Howard, consultant physician, dated 7 December 1999 (T-3, p.8) and at T-3 (p.10, dated 20 December 1999). On 7 December 1999, having taken a thorough history, Dr Howard raised the possibility of left lower lobe bronchiectasis and put in place appropriate investigations. In his report of 20 December 1999, Dr Howard confirmed the presence of bilateral basal bronchiectasis more marked on the left than the right. Having reviewed previous x-rays, Dr Howard was of the opinion this condition had been present from at least 1998. Dr Howard initiated the antibiotic therapy, based on the positive culture of Haemophillus influenzae, and postural drainage and recommended referral to a respiratory physician. He also suggested that if the bronchiectasis was well-localised, surgical excision may be appropriate. On 27 January 2000 Dr Howard advised that he had received reports that the sputum culture for tuberculosis indicated growth of mycobacterium avium and recommended further follow up and further sputum testing.
23. The applicant was subsequently seen by Dr Paul Marx, respiratory physician, at Darwin Hospital on 6 March 2000. Dr Marx diagnosed a mild degree of bronchiectasis, essentially confined to two segments in the left lower lobe. He recommended continuing physiotherapy and rotating antibiotics but did not feel surgical excision of the affected segments was indicated at that time. He believed the applicant could return to his normal work pending any particular conditions the Navy might impose. Lung function testing was essentially normal.
24. The medical board of the Navy considered the applicant’s case on 24 August 1999 and 12 November 1999, and reduced his grading to category 5 from category 1, which resulted in the applicant not being able to continue any sea-going activities.
25. Doctor Jonathon Burdon, respiratory physician, had provided a report dated 24 April 2002 (Exhibit A1). Doctor Burdon had obtained a detailed history, and made a diagnosis of bilateral basal bronchiectasis of mild degree. He recommended continuing postural drainage and antibiotic therapy as indicated. In Dr Burdon’s opinion the episode of pleurisy at the age of 5 was not related to the development of bronchiectasis and he felt that the applicant’s exposure to various fumes and chemicals during his service was the major causative factor. He stated that there are well documented cases of bronchiectasis following exposure to fumes of this type.. Dr Burdon felt that the applicant could continue with sea-going activities and would require ongoing medical treatment.
Relevant Legislation
26. Section 4 of the Safety, Rehabilitation and Compensation Act 1998 (the Act) defines an injury as-
(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;
27. Section 6A(2)(b) of the Act provides that where an employee receives medical treatment paid for by the Commonwealth and as an unintended consequence of that treatment the employee suffers an injury, that injury is taken to have arisen out of, or in the course of employment.
28. Section 14 of the Act declares 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.
29. Section 16 of the Act provides for compensation for future medical expenses (s16(2)) and for medical treatment obtained in relation to the injury, s.16(3).
30. Section 19 of the Act provides for compensation for injuries resulting in (section 19(6)) total or partial incapacity, and for compensation for normal weekly earnings and states:
(6) Where an amount of compensation calculated under paragraph (3)
(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
The Submissions Before the Tribunal
31. Mr Carey acknowledged the consensus of medical opinion that the applicant’s bronchiectasis was long standing and probably had developed during his childhood. It was agreed that the bronchiectasis was of mild degree and had responded well to appropriate treatment. The applicant’s major submissions were then narrowed to the questions of whether the applicant’s exposure to various fumes and chemicals had aggravated the condition and secondly, whether earlier diagnosis of the underlying bronchiectasis would have resulted in the institution of appropriate treatment, limiting the applicant’s symptomatology and enabling him to continue with his sea-going duties indefinitely. Mr Carey referred to the decision of the High Court of Australia in Johnson v The Commonwealth (1982) 150 CLR 331 wherein a seventeen-year-old seaman was diagnosed as suffering from haemorrhoids as the cause of his rectal bleeding and was subsequently, some four years later, diagnosed with carcinoma of the rectum. At the time of diagnosis the carcinoma was inoperable and lead to the seaman’s death, some six months later at the age of 23. The High Court considered concepts of aggravation and acceleration of the disease as well as the delay in diagnosis that occurred. Whilst this decision related to the Commonwealth Government Employees Act 1971, the issues under consideration were the same. The High Court concluded on the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which given timely treatment, it should have taken.. The High Court concluded there was an aggravation of the disease of cancer due to the lack of treatment during the period from 1970 to 1974.
32. Mr Carey, for the applicant, submitted that an aggravation would be constituted by the failure to diagnose the underlying condition of bronchiectasis and that this failure resulted in such aggravation leading to the applicant’s loss of his sea-going allowance.
33. Mr Clarke for the respondent identified the primary issue as being whether the condition was caused by the applicant’s military service. All the medical evidence provided, with perhaps the exception of Dr Burdon’s, was that the condition was pre-existing. Mr Clarke challenged the frequency of productive cough as reported by the applicant and denied there was any scientific evidence that exposure to bronchial irritants would aggravate the underlying condition of bronchiectasis. On the question of a failure to diagnose, the respondent relied on the earlier reports of Dr Stephenson and the absence of acknowledged symptoms by the respondent prior to 1993. The respondent relied on the decision of Elliot and Comcare (2001) AATA 305 (12 April 2001) wherein Deputy President Forgie had considered s6A(2)(b) and whether or not this section related only to injury arising in the course of employment with the Commonwealth. As to whether the failure to diagnose caused further aggravation, the respondent relied on Dr Pains evidence that a real possibility, well, a possibility like all others which couldn’t be discounted, was a fact if there was an aggravation it was only temporary and did not in any way progress the underlying condition. (Transcript p.73 line 30-34).
34. Following the parties submissions, the Tribunal informed them that in preparation for the hearing of the matter the Tribunal had consulted the text Parkes Occupational Lung Disorders with respect to the causation of bronchiectasis by fumes, chemicals etc. and had found there was no evidence of such a correlation with the exception of extreme chlorine poisoning resulting in acute pulmonary oedema necessitating prolonged assisted ventilation. In these few cases bronchiectasis had developed. The text quoted above did not provide data regarding the aggravation of bronchiectasis as a result of exposure to inhaled toxic substances.
Application of the Legislation To The Facts Before The Tribunal
35. Doctor Stephenson and Professor Pain attributed the applicant’s bronchiectasis to his childhood pleurisy at the age of 5. The details of this illness are not known and obviously the applicant cannot recall the event, but he has been advised by his mother that he was unwell and was diagnosed with pleurisy. Dr Burdon, in contrast, did not feel this episode had any aetiological role in the development of bronchiectasis. Dr Burdon did turn his mind, as requested, to the effect of inhaled bronchial irritants. The clinical histories derived by various expert medical witnesses varied somewhat, but on the basis of Professor Pain’s history, it would appear the applicant had had a productive cough for many years. His illness in 1999 exacerbated his symptoms and eventually led to a diagnosis of bronchiectasis. Dr Stephenson and Professor Pain were of the opinion that bronchiectasis had probably been present when the applicant enlisted in the Royal Australian Navy.
36. The Tribunal accepts the opinions of Professor Pain and Dr Stephenson that the applicant’s bronchiectasis was due to childhood lung infection and that he has been mildly symptomatic for many years. While he enlisted in 1993, the applicant’s underlying disease was not diagnosed until late 1999 following an acute febrile illness. As a result of the diagnosis of bronchiectasis, his medical categorisation was reduced to a level where he was prohibited from sea-going duties. This prohibition resulted in a loss of income in the form of a sea-going allowance.
37. With appropriate treatment the applicant is now well and has resumed sea-going duties. The issue before this Tribunal is whether or not he is eligible for compensation arising out of the delayed diagnosis of his bronchiectasis and the loss of his sea-going allowance.
38. The Tribunal was referred to the decision of the High Court of Australia in Johnston and the Commonwealth (1982) 150 CLR 331 wherein the Court found that the failure to diagnose Mr Johnston’s underlying cancer of the colon which had been attributed to haemorrhoids, had aggravated the underlying disease process due to lack of treatment at the appropriate time.
39. In Elliot and Comcare (2001) AATA 305 (12 April 2001) Deputy President Forgie had considered at length the concepts of an injury, disease, contribution by employment, aggravation and s6A of the 1990 Act relating to the situation where as a result of an unintended consequence of the treatment, the person suffered or suffers an injury. Deputy President Forgie determined that in the application of 6A(2)(b) the injury, as defined by s4(1), must be one that rises out of or in the course of the employee’s employment. However, the Act makes no reference to the link that must exist if a disease is to be regarded as such an injury.
40. This Tribunal distinguishes the facts and decision in Elliot from the current matter in that the applicant’s disease of bronchiectasis, in retrospect, preceded his enlistment in the Navy. While his disease is very mild, the medical evidence suggests that it may well have been diagnosable on enlistment, if appropriate investigations such as a high resolution CT scan had been performed.
41. The Tribunal finds that the applicant had pre-existing mild bronchiectasis dating from early childhood (when he was approximately 5 years of age), which was intermittently symptomatic prior to his enlistment in the Navy. The existence of this condition became apparent and was diagnosed following an acute infective episode in 1999. As a result of this diagnosis the applicant was recategorized and unable to perform sea-going duties. Following treatment the applicant has improved considerably and has now returned to sea-going duties. The applicant is entitled to compensation for the loss of his sea-going allowance during the period from December 1999 until his reclassification for sea-going duties. The matter is remitted to the respondent to determine the amount of compensation payable and the Tribunal directs that the respondent pay the applicant’s legal costs.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan, Member.
Signed: ..C. Irons.............................
SecretaryDate/s of Hearing 10/6/03
Date of Decision 30 September 2003
Counsel for the Applicant Mr M. Carey
Solicitor for the Applicant Ms K. Young
Counsel for the Respondent Mr C. Clark
Solicitor for the Respondent Ms E. Reed
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