Mitchell and Comcare
[2003] AATA 1271
•15 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1271
ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. N2001/1434 and
) N2001/1435
GENERAL ADMINISTRATIVE DIVISION )
Re ERNEST SUTHERLAND MITCHELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr J D Campbell, MemberDate 15 December 2003
Place Sydney
Decision
The decisions under review are affirmed.
(Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION - claim for permanent impairment for a Post-Traumatic Stress Disorder caused by an explosion aboard HMAS Tarakan in 1950 - when did condition become permanent - claim for smoking and alcohol related diseases rejected as not being diseases due to the nature of the employment pursuant to the 1930 Compensation Act.
Safety, Rehabilitation and Compensation Act 1988 - s24, s124
Compensation (Commonwealth Government Employees) Act 1971
Commonwealth Employees Compensation Act 1930 - s10
Re Wright and Commonwealth of Australia (1988) 14 ALD 567
The Commonwealth v Bourne (1960) 104 CLR 32
The Commonwealth v Thompson (1960) 104 CLR 48
Johnston v The Commonwealth (1982) 150 CLR 331
Brennan v Comcare (1994) 50 FCR 555
REASONS FOR DECISION
15 December 2003
Senior Member M D Allen;
Dr J D Campbell, Member1. At 0826 hours on the 25 January 1950, a violent explosion occurred on HMAS Tarakan, a Landing Ship Tank undergoing a re-fit at the naval dockyard Garden Island. As a result of that explosion, eight men were either killed or died of wounds and several seriously injured.
2. On 26 October 2000, the Respondent accepted liability to pay compensation to the Applicant for the disease of Post-Traumatic Stress Disorder (“PTSD”) with major depression as a result of the experiences he underwent as a crew member of HMAS Tarakan at the time of the explosion. Those experiences included not only the sight of dead and seriously injured crew members but also duties performed by him after the explosion, being duties which involved a very real risk to the Applicant of either injury or death.
3. Subsequent claims by the Applicant for an award for permanent impairment resulting from his PTSD and for compensation for the diseases described in the application as “carotid artery, circulation problems, diabetes mellitus, cataracts and respiratory problems” were rejected, both at first instance and by reviewable decisions pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).
4. At the hearing of this matter, the claim advanced for the Applicant was for permanent impairment resulting from his PTSD pursuant to section 24 SRC Act and for compensation for the diseases of emphysema, atherosclerosis and diabetes mellitus.
5. Section 24 SRC Act states inter alia:
“(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)…
(4)…(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)…
(7)…
(8)…”
6. Section 124 SRC Act reads inter alia:
“(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2)A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii)in any other case—under the 1971 Act as in force when the impairment or death occurred.
(4)The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:
(a)where the impairment or death occurred before the commencement of the 1930 Act—the 1912 Act;
(b)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force when the impairment or death occurred; or
(c)in any other case—the 1971 Act as in force when the impairment or death occurred.
…”
7. It is common ground between the parties that neither the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) which was in force at the time of the explosion aboard HMAS Tarakan nor the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) made any provision in the Table of Maims contained in those Acts for psychiatric injury.
8. Section 10 of the 1930 Act reads inter alia:
“(1) Where -
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.”
9. In Re Wright and Commonwealth of Australia (1988) 14 ALD 567, Senor Member McMahon (as he then was) said at page 568, referring to section 10 of the 1930 Act that as compensation was not payable in respect of a disease unless it was due to the nature of the employment, the only compensable diseases under the 1930 Act were of the nature of occupational diseases.
10. Section 10 of the 1930 Act was also considered by the High Court in The Commonwealth v Bourne (1960) 104 CLR 32, commencing at page 38, Dixon C J said:
“…I do not think the expression in s. 10 (1) ‘due to the nature of the employment in which the employee is engaged’ covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course.”
And continued at page 39:
“…It is essential to observe that the words are ‘due to the nature of’ the employment and that they are not ‘caused by the employment’ or ‘contracted during the employment’. The word ‘nature’ is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connexion between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics. The investigation of sales tax cases appears to me to have nothing in its nature to accelerate vascular and cardiac degeneration and if Bourne’s employment is defined in the wider terms of an officer of the Taxation Department I know of nothing in the nature of that employment to do so.”
Cf Windeyer J at page 46:
“…Counsel for the respondent sought to support it under s. 10 of the Act. That section provides for the payment of compensation in cases of incapacity or death from disease when ‘the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth’.. Its provisions, its place in the general scheme of the Act, and its history indicate that it is concerned with what are commonly called industrial diseases or occupational diseases. And arterio-sclerosis cannot possibly be regarded as an occupational disease of employees of the Taxation Department.”
11. The above interpretation of s10 of the 1930 Act was again upheld by the High Court in The Commonwealth v Thompson (1960) 104 CLR 48. At page 56, Windeyer J said:
“…For a disease to be due to the nature of the employment in which the employee was engaged, the employment must be such that it ordinarily tends to cause that disease. That is to say, it must be a property of that form of employment to produce that disease - so that contracting that disease can be said to be a natural result of being engaged in that employment.”
12. Somewhat surprisingly, given that it had accepted the Applicant’s claim for compensation for PTSD, the Respondent in these proceedings relied upon the report and evidence of Dr Lewin, Psychiatrist that the Applicant did not currently suffer from PTSD but did suffer from a Dysthymic Disorder originating in his childhood as a result of childhood (including teenage) experiences.
13. In evidence, Dr Lewin stated that when he examined the Applicant, he did not get a history of present symptoms to permit a diagnosis of PTSD to be made using the diagnostic criteria in Volume 4 of the Diagnostic and Statistical Manual of Mental Diseases (“DSM IV”).
14. Dr Lewin stated both in his report of 26 February 2003 (Exhibit R3) and in his evidence that the Applicant may have experienced a PTSD in the period of time immediately after the HMAS Tarakan incident, but that he was not given a history of clinical symptoms at the time he examined the Applicant to support a diagnosis of PTSD.
15. Questioned by the Tribunal regarding the Applicant’s alcohol addiction, Dr Lewin stated that he had left open the possibility of a PTSD at an earlier stage but when he had examined the Applicant, did not know the answer to the question as to whether or not that PTSD had contributed to alcohol dependence.
16. Originally, the Applicant had been referred by the Respondent to Dr Ackkerman, Psychiatrist. In his report of 13 October 2000 to the Respondent (T5), Dr Acckerman made a diagnosis of:
“1. Post-traumatic stress disorder.
2. Major Depression
3. Alcohol dependence (in remission).”
and opined:
“I think that the alcohol dependence is constitutional and is inherited from his parents. In my opinion, the post-traumatic stress disorder and the secondary major depression are very likely to be caused by the incident on HMAS Tarakan.. I do not believe that he would have developed post-traumatic stress disorder or major depression if it was not for his service.
The incident on the HMAS Tarakan was a direct cause of his condition…”
Dr Acckerman went on to note that the Applicant had not received any treatment for his PTSD and depression.
17. Dr Acckerman noted in his report that the Applicant showed poor memory and some problems with his concentration. This accords with the impression given to the Tribunal by the Applicant who demonstrated, quite possibly due to past alcohol abuse, a poor short term memory.
18. Dr Dinnen, Psychiatrist examined the Applicant at the request of his solicitors. He also made a diagnosis of PTSD as a result of the events following the explosion aboard HMAS Tarakan.
19. Although Dr Dinnen stated that the Applicant’s alcohol abuse was associated with his PTSD, he did state in his report (Exhibit A3) at page 6 thereof:
“The history of heavy alcohol and cigarette consumption dates back to his service in the Navy, and although he may well have established the habit prior to the events of the Tarakan, I am of the view that it is more likely than not that that incident led to life long abuse of these substances. Both alcohol and cigarettes provide tension relief, and there is no doubt that the post traumatic stress disorder from which he has suffered since the Tarakan involves considerable emotional distress which is eased by chronic use of these substances.”
20. The history taken by Dr Dinnen regarding the alcohol and smoking history is as follows:
“He recalls his first leave at 17 ½ when he was drinking at a hotel. He would drink to get drunk. He would go to sleep in the park. After he left the Navy his drinking became worse…
He said he was already a heavy drinker at the time of the incident on the Tarakan. He was not sure whether his consumption of alcohol had increased afterwards. In any event he was drinking up to his capacity. He would always drink very heavily on leave.
With regard to smoking, they were given an issue of tobacco and cigarettes. He started in around 1948. There had been rationing in place before, subsequent to the War. He would get two ounces of tobacco and forty cigarettes per week.”
21. In evidence, Dr Dinnen stated that the Applicant’s alcoholism could only be explained as a reaction to events aboard HMAS Tarakan, although he conceded in cross-examination that both genetic factors and early life experiences play a part in addiction.
22. Exhibit A4 is a report by Associate Professor de L. Horne, Psychologist dated 13 December 2000. In that report, Professor de L. Horne opines that the Applicant suffered a PTSD since the explosion aboard HMAS Tarakan and that his abuse of alcohol also started from that time.
23. Professor de L. Horne stated that the Applicant participated well in completing psychological tests and at interview. Dr Lewin also stated that the Applicant had no impairment with regard to concentration and memory state. This is contrary to the Tribunal’s experience of the Applicant in evidence and Dr Hall, Specialist Physician, noted when he examined the Applicant that it was difficult to obtain a consistent history. The Tribunal also notes that “memory problems” were noted upon admission to hospital in Brisbane in 1992.
24. The Applicant in evidence admitted that his memory is bad and that it “fluctuates”.. Questioned by Tribunal Member Dr Campbell, it became apparent that the Applicant does suffer a memory loss.
25. Dr Hall stated that the Applicant suffered from a PTSD. In a report to the Respondent dated 30 January 2003 (Exhibit R5), Dr Hall refers to an apparent difference between his opinion and that of Dr Lewin, and states:
“…Dr Lewin and I are not at loggerheads. Dr Lewin is undoubtedly correct in suggesting that the long-term effects of Mr Mitchell’s life problems has resulted in a low grade depression which continues to the present time. This does not exclude Post Traumatic Stress Disorder which punctuated the course of his depression. A horrifying incident on HMAS Tarakan on 26.12.1950 provides a classical background for the disorder of Post Traumatic Stress Disorder. It is clear that at that time Mr Mitchell had this condition. With time the nature of the condition changes and between 1950 and 2002 the Post Traumatic Stress symptoms have given way to a low grade depression.
The diagnosis of Post Traumatic Stress Disorder does not need to be altered; it provides a convenient, if not entirely specific description of a well known disorder and is sufficiently non committal to be useful in designating the symptoms that followed the incident.
Among the various medical complaints listed for Mr Mitchell, chronic cirrhosis and fatty liver are the only ones directly and clearly attributable to high alcohol intake.”
26. To our minds, it probably does not matter what nomenclature is applied to the Applicant’s psychiatric illness. Dr Lewin states that the Applicant’s dysthymic disorder was made worse by the experience of the Applicant following the explosion so that the Respondent is liable to pay compensation in any event: cf Johnston v The Commonwealth (1982) 150 CLR 331.
27. Dr Acckerman in a report dated 21 February 2001 (T11) stated that the Applicant’s PTSD and secondary major depression became permanent before 1 December 1988. In evidence, Dr Dinnen stated unequivocally that the Applicant’s PTSD was established from the time of the Tarakan (explosion) and it was likely that the Applicant’s impairment from PTSD was worse in the first few years thereafter.
28. Dr Lewin’s evidence was that the HMAS Tarakan incident led to a worsening of a condition that had already been established, whereas Associate Professor de L. Horne opined that the Applicant had suffered from PTSD since 1950.
29. “Permanent” is defined in section 4 SRC Act in the following terms:
“permanent means likely to continue indefinitely.”
We find as a fact on the basis of the above evidence that the Applicant’s PTSD had become permanent prior to 1 December 1988, namely in the year 1950.
30. The question of when a condition becomes permanent for the purposes of the SRC Act was discussed by the Full Court of the Federal Court in Brennan v Comcare (1994) 50 FCR 555. At pages 569-570, Gummow J with whom Ryan J agreed, said:
“…Further, that impairment must have been permanent, that is to say likely to continue indefinitely. That state of affairs must have been reached before the commencement date.
However, s24 and supporting provisions are drawn in such a way as to distinguish the existence of a permanent impairment and the degree of permanent impairment resulting from the injury. Thus, s24 (2) indicates matters to which Comcare is to have regard in determining whether an impairment is permanent and the succeeding provisions of the section deal with the assessment of the amount of compensation…
Thus, there is force in the submissions for Comcare that before 1 December 1988 an injury to an employee may have resulted in a permanent impairment, even though Comcare cannot yet quantify the degree of that impairment, or the degree of impairment may increase.”
And continued at page 571:
“As I have indicated, the AAT accepted the submission that ‘compensation for loss’ is assessed at the time when the injury or condition has stabilised to such an extent that it can be classified and quantified with reasonable accuracy. That submission was better understood as directed to the assessment to the degree of permanent impairment as an element in the determination of the amount of compensation payable. The primary judge pointed out that the proposition did not supply a proper criterion for the determination of the anterior issues as to whether there had been an injury within the meaning of s4, whether that injury resulted in an impairment, and whether that impairment was permanent in the sense of being likely to continue indefinitely.”
31. The Applicant’s Counsel submitted that the Applicant’s PTSD did not become permanent until the provisions of subsection 24 (2) SRC Act had been met. In particular, whether the conditions had been diagnosed and treatment undertaken. We do not accept this submission. Subsection 24 (2) is concerned with Comcare as the rehabilitation authority ascertaining whether an assessment of the degree of impairment can properly be made but cannot determine the factual issue as to whether, in the sense discussed in Brennan supra, a condition is permanent as opposed to the degree of impairment occasioned by the said condition.
32. As the Applicant’s PTSD became permanent before 1 December 1988, he is not entitled to any lump sum payment for permanent impairment occasioned by that disease.
33. Even if we were wrong in this regard, the decision under review regarding permanent impairment has to be affirmed, having regard to the criteria for assessing permanent impairment set forth in subsection 24(2) SRC Act as the Applicant has not yet had any treatment for his PTSD and depression. No calculation can presently be made as to the degree of impairment.
34. Dr Clahane is the Applicant’s general practitioner. In a report dated 18 December 2001 (Exhibit A2), he states that the Applicant suffers from the following diseases:
“1. Chronic airways disease and emphysema secondary to heavy smoking…
2. Advanced arterio-sclerosis precipitated and accentuated by heavy smoking.
3. Chronic alcoholism and substance abuse as a consequence of traumatic stress and ongoing post-traumatic stress…;
4. Chronic cirrhosis and fatty liver as a result of substance abuse.
5. Diabetes mellitus non-insulin dependent as a result of chronic pancreatitis also as a result of the above.
6. …”
The real question therefore before the Tribunal is whether the Applicant’s smoking habit and alcohol dependence are compensable conditions. Section 124 makes it clear those conditions are only compensable under the SRC Act if they are also compensable under the 1930 Act. We do not see the 1971 Act as having any reference to this Applicant.
35. As pointed out above, the test under the 1930 Act (section 10) is whether the diseases were due to the nature of the employment in which the employee was engaged by the Commonwealth.
36. The Applicant’s evidence to the Tribunal was that he did not smoke tobacco before joining the Navy. Upon joining the Navy, he was given a ration of 2 ounces of tobacco a week and that during his period of naval service, his in-take increased so by the time he left the Navy, he was smoking 4 ounces of tobacco a week.
37. The Applicant also stated that he did not drink alcohol before he joined the Navy. Even when he initially joined, he was not permitted an alcohol ration but was allowed to drink alcohol once he turned 18. In cross-examination, he conceded that he had drunk heavily at times stating “every sailor on leave drinks heavily”.
38. The above passage from cross-examination was elicited when the Applicant was being questioned about two entries in his service medical records. Those entries show that whilst on leave in Cairns in November 1949, he was twice hospitalised apparently on successive days as a result of incidences arising out of heavy drinking. The Applicant also stated in regard to these incidents, “I certainly would have been drinking, I had been in the Navy 18 months and I had learnt very well”.
39. Dr Lewin referred to those incidents as an example of the Applicant as a young man abusing alcohol in contra distinction to a dependence upon alcohol. What they do show however is that the Applicant, even before the explosion aboard HMAS Tarakan, was a person who at times drank alcohol to an excessive degree.
40. Exhibit R7 is a copy of clinical notes of the Princess Alexandra Hospital in Brisbane. In a referral letter dated 5.12.1991, the Applicant’s treating physician, Dr Senewiratne, refers to a history of smoking since age 12. The Applicant denied this history to the Tribunal and suggested that he would have said that to the medical practitioner out of bravado. Given the Applicant’s current loss of memory, it is difficult to decide what weight to place upon the purported history except that we draw the inference that the Applicant may have intended to state that he had had his first cigarette at age 12 as part of school boy experimentation. We do not therefore reject his evidence that he started to smoke upon joining the Navy.
41. What is clear from the evidence before us, is that prior to the explosion aboard HMAS Tarakan, the Applicant was both a smoker and partook of alcohol at times to excess. It is further apparent that he engaged in these activities voluntarily. Whereas the Navy may have provided a ration of tobacco, there is no suggestion that it was compulsory to either receive the ration or having received it to smoke it. We know from other matters before this Tribunal that non-smokers would receive a ration of tobacco and then trade in it. Similarly, although there may have been and probably still is a culture for sailors on shore leave to drink heavily, that is still a matter of personal choice.
42. We are satisfied that the diseases presently claimed by the Applicant have their aetiology in his smoking and alcohol habituation and neither those diseases nor more particularly the smoking and alcohol habits of the Applicant were a natural result of being engaged as a member of the Royal Australian Navy.
43. Nor can it be said that the employment in any way contributed to the habituation. As Dr Lewin stated in his evidence, he would not attribute alcohol addiction to any single experience. He expanded upon that statement by saying that individual life experiences have a transient impact upon drinking, that people often drink more heavily in response to particular life events but our lives are full of life events and the immediate impact of each life event is transient. More importantly, Dr Lewin pointed out that alcohol addiction takes time to evolve, at least five years, commonly ten and sometimes a lot more. The Applicant had been abusing alcohol prior to the explosion aboard HMAS Tarakan but he did not know when the Applicant changed from abusing alcohol to being addicted. He just knew on general principles that it must have been at least five or probably ten years of alcohol abuse before addiction might have become evident.
44. The above opinions of Dr Lewin can be compared to the opinion of Dr Acckerman, who whilst accepting that the Applicant did have PTSD implicated constitutional factors in his alcoholism. As the Applicant was clearly abusing alcohol early in his naval career, we find that the opinion of Dr Acckerman is more persuasive on this point and that the Applicant’s alcohol dependence had nothing to do with his naval service, in particular, the events following the explosion aboard HMAS Tarakan.
45. This finding is strengthened by Dr Lewin’s evidence that whereas people often drink more heavily in response to a particular life event, this is transient, together with the evidence of Dr Dinnen that the Applicant was already a heavy drinker at the time of the incident aboard HMAS Tarakan.
46. We are therefore satisfied that the diseases of chronic airways disease and emphysema, arteriosclerosis, chronic alcoholism and substance abuse, chronic cirrhosis and fatty liver and diabetes mellitus are not due to the nature of the Applicant’s employment in the Royal Australian Navy.
47. There is nothing in the material before us which in any way would found claim for compensation pursuant to the 1971 Act.
48. The decisions under review are therefore affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen;
Dr J D Campbell, Member
Signed: (K. Wong) .......................................................................................
AssociateDate/s of Hearing 10 and 11 November 2003
Date of Decision 15 December 2003
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Mr B Winship, Rockliffs Solicitors
Counsel for the Respondent Mr G Johnson
Solicitor for the Respondent Ms J Selth, Australian Government Solicitor
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