Mitchell and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 1421
•4 September 2017
Mitchell and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1421 (4 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/2282
Re:Leslie Mitchell
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:4 September 2017
Place:Canberra
The Tribunal affirms the reviewable decision of 31 March 2015.
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Deputy President Gary Humphries
Catchwords
COMPENSATION – Military Compensation – smoking – disease – contributed to, to a material degree – whether Applicant a credible witness – evaluative threshold – reviewable decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 5A, 5B
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases
Arnold and MRCC [2010] AATA 660
Beezley v Repatriation Commission (2015) 68 AAR 23
Comcare v Sahu-Khan (2007) 156 FCR 536
Hawkins v Comcare (2001) 115 FCR 127
Repatriation Commission v Tuite [1993] 39 FCR 540
Wall and Comcare (Department of Defence) [2004] AATA 229
REASONS FOR DECISION
Deputy President Gary Humphries
4 September 2017
BACKGROUND
Mr Leslie Mitchell has given some 35 years of service as a member of the Royal Australian Air Force (the RAAF). He enlisted in November 1958 and, following his discharge in November 1979, served in the RAAF active reserve from February 1983 until his discharge in June 1997. He attained the rank of Warrant Officer.
During his service he was a heavy smoker. Indeed, he claimed to the Tribunal that his addiction to smoking was attributable to his RAAF service. His smoking, in turn, contributed to the onset of disease. On 7 May 2014 he claimed compensation for three conditions which he said arose from the heavy smoking habit attributable to his service with the RAAF. Those conditions were heart disease, gastro-oesophageal reflux disease and Barrett's Oesophagus.
In a determination dated 13 November 2014, the Military Rehabilitation and Compensation Commission (the Commission) denied liability to pay compensation for these conditions under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). After reconsideration the Commission affirmed its denial of liability for the claimed conditions in a reviewable decision dated 31 March 2015. Mr Mitchell sought merits review of that decision before the Tribunal. However, in the course of these proceedings he withdrew his application for review of decision in relation to the gastro-oesophageal reflux disease and Barrett's Oesophagus, leaving only the claim for heart disease (or ischaemic heart disease) before the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
A statement by Mr Mitchell dated 10 August 2015 was tendered. It outlined his smoking history before, during and after his military service. The Commission summarised the statement as follows[1]:
[1] Respondents Outline of Submissions, 20 September 2016, p 3.
(a)In or around 1966, while working in the clerical section of the NSW Government Railways, the applicant [Mr Mitchell] was offered a cigarette by a co-worker. The applicant accepted that cigarette. The applicant guessed that he would have had no more than 20 cigarettes before joining the RAAF. However, the NSW Railways workers were permitted to smoke in the office, and most staff seemed to smoke. At times, the air was thick with tobacco smoke. The applicant worked in the clerical section for around 18 months.
(b)The applicant started smoking about one week into his basic training with the RAAF. There appeared to be no restriction on smoking. Everyone appeared to smoke during breaks, which were called "smokos". If a person did not have cigarettes, there was no shortage of offers, often from instructors.
(c)The RAAF did not discourage smoking.
(d)The applicant was not discouraged from smoking.
(e)The applicant was not informed that smoking could be injurious to his health.
(f)At a social and professional level, smoking was the "right" thing to do.
(g)By the time he completed his 10-week recruit training, the applicant was regularly smoking the equivalent of 10 cigarettes per day.
(h)After completing his category training, the applicant's usage had grown to smoking the equivalent of 20 cigarettes per day.
(i)The applicant continued to smoke almost throughout his two periods of service, spanning some 35 years.
(j)The applicant smoked a combination of "tailor-made" cigarettes, pipes and cigars.
(k)Over the 40-year period that he smoked, the applicant estimated that he would have averaged about the equivalent of 40 cigarettes per day.
(l)In the late 1980s, the RAAF introduced instructions and other measures to regulate and discourage smoking.
(m)The applicant ceased smoking for about eight months in 1966. This occurred when he was admitted to hospital in Darwin for a tonsillectomy.
(n)The applicant ceased smoking again for a very short period in the 1990s, and finally managed to cease smoking altogether in 1997.
(o)The applicant was diagnosed with ischaemic heart disease in 1999.
Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist, gave evidence to the Tribunal. In a report dated 20 October 2015 he diagnosed Mr Mitchell as suffering a coronary artery disease requiring cardiac bypass, which first arose in 1999 when he had coronary artery bypass grafts. Based on the history he took from Mr Mitchell, Dr Gorman noted in the report that he may have smoked irregularly before joining the military but only smoked regularly after joining the Air Force at the age of 18. He recorded a smoking pattern of up to 60 cigarettes per day plus a pipe and cigar in the late 1970s, a habit which tapered off in the later 1990s and stopped in 1997.
Dr Gorman stated that he believed Mr Mitchell had had an addiction to smoking. He expressed this opinion:
The sedentary nature of the work, the commonness of smoking within the Military and the fact that even during training they would have time off to smoke, contributed to the development of his addiction to smoking. The smoking then was a major factor in his development of cardiac disease.
He opined further:
I do not believe that stopping smoking only two years before the development of the heart disease would have reduced his chance of any heart disease significantly.
He reached this conclusion with respect to Mr Mitchell’s heart disease:
I believe the Military service factors caused his condition.
Dr Gorman recorded that Mr Mitchell’s mother died at age 63 but that Mr Mitchell is not sure of the medical issues. Similarly he is not sure of the cause of his father’s death at age 86. He further records that one brother “dropped dead” of an unknown cause.
ISSUES BEFORE THE TRIBUNAL
Section 14 of the Act provides the basis on which an employee may obtain compensation for a work-based injury:
(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.
Section 5A defines injury to include a disease suffered by an employee. The term disease is, in turn, defined in s 5B as follows:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
However, the Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (the 2007 Act) to establish that the threshold contribution by employment needs to be to a significant degree, whereas hitherto the threshold had been a material degree. The 2007 Act made it clear that the new definition of disease applied only to an ailment suffered on or after the day on which the bill received Royal Assent (which was 13 April 2007). Based on Dr Gorman’s evidence that Mr Mitchell suffered his heart disease in 1999, the earlier, lower test of work contribution – to a material degree – applies when assessing Mr Mitchell’s claim for compensation.
It was not contested before the Tribunal that Mr Mitchell suffers heart disease. This condition meets the definition of a disease under s 5B. It thus falls to the Tribunal to determine whether his heart disease was materially contributed to by his military service. To make that determination, two questions must be answered:
(a)Did Mr Mitchell’s military service cause him to become addicted to smoking?
(b)If so, did his smoking history contribute materially to the development of his heart disease?
In answering the first of these questions, both parties attributed some importance to the issue of whether Mr Mitchell was a regular smoker before enlistment in November 1958. This is understandable. As a matter of logic, it is more difficult to sheet home blame for a smoking habit to the military if the habit predates his joining the military. Mr Mitchell’s evidence was that his smoking prior to the RAAF was opportunistic, experimental and designed only to seek acceptance from my older workers colleagues. His estimated consumption over this 18 month period before enlistment was of no more than 20 cigarettes. The turning point, which led to addiction, was the set of pressures and inducements to smoke which accompanied his joining the RAAF, the Tribunal was told.
The Commission, in response, submitted that Mr Mitchell could not be believed on the question of whether he was a regular smoker prior to military service. It pointed to inconsistencies in Mr Mitchell’s evidence to suggest that he ought not to be found to be a credible witness.
The Tribunal accepts that, in these proceedings, much turns on the degree to which Mr Mitchell’s evidence about only taking up smoking seriously after joining the RAAF is believable. If he was inured to smoking before this point, the causal link between military service and addiction clearly becomes attenuated.
MR MITCHELL’S CREDIT AS A WITNESS
As already indicated, the Commission contended that Mr Mitchell could not be regarded as a credible witness. Two matters were proffered as support for this contention.
According to Dr Gorman’s report of 20 October 2015, Mr Mitchell told Dr Gorman, in the examination conducted for the purpose of assessing his claim for workers compensation, that he was not sure of the cause of death of either of his parents, and that one of his brothers had “dropped dead” of an unknown cause. He reiterated this evidence when he appeared before the Tribunal.
The Commission produced summonsed medical records of the Gundagai Medical Centre, where Mr Mitchell had been a patient. The records show that both his mother and his eldest brother had died of an acute myocardial infarction (i.e. a heart attack). Mr Mitchell conceded in cross-examination that neither his mother nor his brother had been patients at the Gundagai Medical Centre. The Commission submitted that the information about his relatives’ cause of death could only have been provided to the medical centre by Mr Mitchell. In the witness box Mr Mitchell was unable to explain how this information came to be in the medical centre’s records.
A patient health summary from the National Health Co-op in Canberra, where he was a patient, also records that Mr Mitchell’s mother died of heart failure. Mr Mitchell repeated in his evidence that he was unaware of the cause of his mother’s death.
The second attack on Mr Mitchell’s credit as a witness concerned when he ceased to smoke. In his statement of 10 August 2015 he said that he ceased smoking for about eight months in 1966 when admitted to hospital for a tonsillectomy, and again for a very short period in the 1990s. He finally ceased smoking in 1997. In his evidence before the Tribunal the date of his tonsillectomy was given as 1965.
In his live evidence he agreed that he had told Dr Gorman he ceased smoking in 1997. He said he had reduced his level of smoking in 1978/1979, but had not ceased it at that time. Medical records were tendered by the Commission. A letter dated 5 September 2012 from Dr Chris Hii, Mr Mitchell’s cardiologist, states He stopped smoking in 1979… Dr Hii reiterates this position in a letter dated 27 July 2015 where he says He was previously a smoker until he reformed in 1979. Gastroenterologist Dr Vincent Fernon, in a letter dated 4 July 2001, records Mr Mitchell hasn’t smoked for 20 years…
His patient health summary from the National Health Co-op notes Ex heavy smoker until 1978. A surgery consultation from the Co-Op’s records, noted by Ms Lily Campbell on 13 May 2013, records a history of heavy smoking prior to 1978. Finally, an RAAF outpatient consultation record dated 25 July 1978 refers to ectopic heartbeats and then notes They do not interfere with his quality of life and have not diminished since he stopped smoking.
Mr Mitchell explained in the witness box that he attempted to stop smoking in the late 1970s. He later clarified his evidence to say that he stopped smoking temporarily in 1978 or 1979.
The Tribunal finds some difficulty in reconciling this evidence with Mr Mitchell’s truthfulness. It seems quite improbable that the medical records of two geographically distant clinics would record his mother as having died of a heart attack unless Mr Mitchell, a patient at those clinics, had provided that information himself. Yet he professed to Dr Gorman (and to the Tribunal) not to know the cause of her death. Similarly, Mr Mitchell’s statement to both the Tribunal and Dr Gorman that he ceased smoking in 1997 is hard to reconcile with medical records showing that he ceased the habit some 18 years earlier. The information in the medical records about his smoking history could only plausibly have derived from statements made by Mr Mitchell himself. It is difficult to believe that he would have told various doctors in the period 2001-2015 that he had stopped smoking in 1978/79 if all he had done then was to pause his smoking.
The Tribunal observes that the information disclosed in his medical records would have seemed unhelpful when Mr Mitchell came to claim that his smoking, as opposed to congenital factors, caused his heart condition. Dr Gorman, in his evidence, confirmed that the length of time a person smokes and any family history of heart disease are both important considerations in determining that person’s level of risk. On this basis the Tribunal entertains some doubt as to whether the apparent inconsistencies in Mr Mitchell’s evidence can be innocently explained.
No independent evidence was provided to support Mr Mitchell’s account of how he began to smoke. This is not surprising, given the personal nature of the history and the long period of time since it occurred. Of course, no general onus of proof lies on an applicant for review in Tribunal proceedings to establish the foundation of his or her case, but the Federal Court has clarified the nature of the obligation on an applicant to articulate a case upon which a claim might proceed. In Beezley v Repatriation Commission (2015) 68 AAR 23 at [68] the Full Court said:
If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.
The only basis on which the Tribunal, in the present circumstances, could reach the level of satisfaction described by the Federal Court is Mr Mitchell’s own evidence. However, the Tribunal lacks confidence in that evidence, for the reasons already stated.
Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 considered the question of what would satisfy a decision-maker that employment had contributed in a material degree to a claimant’s condition. He observed (at [13]):
The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.
Clearly, evidence which is unreliable or unpersuasive is evidence which must be considered incapable of meeting the evaluative threshold of which his Honour spoke. Such is the case here.
Accordingly, the Tribunal is not persuaded that Mr Mitchell was not a smoker prior to the commencement of his service in the RAAF, nor is it persuaded that that service caused him to become addicted to smoking.
Mr Mitchell’s representative put a considerable body of evidence before the Tribunal to support the general hypothesis that the unique nature of military service is capable of causing a person to take up smoking. The Federal Court’s decision in Repatriation Commission v Tuite [1993] 39 FCR 540 (at [9]) is one example:
But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v. Law) of camp life is a consequence of war service. In this case, the Tribunal has done so.
Tuite, however, concerned a recruit who had not smoked before joining the Army. The decisions on service-related smoking seem generally to conform to this pattern of smoking commencing with the onset of military service (see, for example, Hawkins v Comcare (2001) 115 FCR 127, Wall and Comcare (Department of Defence) [2004] AATA 229, Arnold and MRCC [2010] AATA 660). Had the Tribunal been confident in the evidence that Mr Mitchell did not smoke, or merely smoked spasmodically, prior to joining the Air Force it would have been likely to follow these precedents and determine that his service contributed to his later addiction. But it lacks confidence in this premise, and so cannot apply those precedents in the present case.
Having been unable to find that Mr Mitchell’s military service caused him to become addicted to smoking, it is unnecessary to consider the question of whether his smoking history contributed materially to the development of heart disease. The Tribunal would have been persuaded – as was Dr Gorman – that his smoking contributed materially to the onset of heart disease if that smoking had continued until 1997. The medical evidence is more ambiguous on the question of whether a smoking history which ended in 1978/79 would have contributed materially to this condition. In any case, the question is academic.
The Tribunal affirms the reviewable decision of the Commission dated 31 March 2015.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
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Associate
Dated: 4 September 2017
Date(s) of hearing: 19 & 20 September 2016; and 9 February 2017 Date final submissions received: 9 February 2017 Advocate for the Applicant: Mr James Wain, Veterans Support Centre Belconnen ACT
Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: Australian Government Solicitor
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