Ney and Military Rehabilitation and Compensation Commission

[2009] AATA 196

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 196

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0123

VETERANS’ APPEALS DIVISION  )

ReKELVIN NEY

Applicant

AndMILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

TribunalDr J Campbell, Member

Date23 March 2009

PlaceSydney

DecisionThe decision under review is affirmed.

..................[sgd]...............................

Dr J Campbell
  Member

CATCHWORDS

Compensation – military compensation – short-term memory loss – exposure to various chemicals – issue of disease – material contribution – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988: ss 4, 7

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Bird v The Commonwealth of Australia (1988) 165 CLR 1

Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289

REASONS FOR DECISION

23 March 2009	Dr John Campbell, Member
SUMMARY

1.      Mr Ney was born in 1952.  He enlisted in the RAAF on 20 April 1988 and served as a permanent reservist in Townsville until early 1998 during which time he worked as an engine technician until 1993, and thereafter as an engine airframe technician.  During this period he worked on Iroquois helicopters (one year) and thereafter on Caribou Aircraft, averaging 60 days work a year.

2.      In January 1998, Mr Ney was posted to Perth, where he worked on Macchi jet trainers.  In 1999, he transferred to Williamtown Airbase where he worked on Hornet jet aircraft for two years.  In January 2003, Mr Ney was transferred to Wagga Wagga, New South Wales, where he was instructing and in the trainee area as well, with his duties not involving him in exposure to fuels.  In 2006, Mr Ney transferred to the Navy, with the reason for so doing being reaching compulsory retiring age.

3.      Mr Ney detailed that he first noticed problems with his memory in 2000 when serving at Williamtown.  Mr Ney defined the problems as being the inability to retain new information as opposed to difficulties in understanding such new information.

4.      Mr Ney lodged a claim for compensation for short-term memory loss on 10 March 2005 in which he detailed that while performing aircraft familiarisation tasks in Perth (79 squadron) and at Williamtown (77 squadron), he “could not recall what I had just been shown”.

5.      On 13 April 2005 Dr McMahon, a senior medical officer from RAAF CSU Health Services at Wagga Wagga, provided a report (T23), in which he stated that Mr Ney:

(a)has a short-term memory loss, yet to be formally diagnosed;

(b)that it is a permanent condition; and

(c)that without a formal diagnosis he is unable to comment as to whether there was a probable causal connection between the nominated condition and his military employment.

6.      In a report dated 2 May 2005 (T24), Dr Jude, a consultant neurologist, reported that on the basis of tests performed in the Memory Assessment Clinic on 27 April 2005, Mr Ney has “mild short-term memory impairments present but no evidence of significant additional memory dysfunction, dementing syndromes or other major abnormalities.  These findings could be consistent with concentration deficits or other intercurrent health issues, stress and mood related problems that might affect concentration and short-term memory function.”

7.      Mr Ney’s claim was disallowed in a determination dated 1 June 2005.  Following a request for reconsideration, the Military Compensation and Rehabilitation Service’s reconsideration officer determined that the primary determination had been made before a full investigation had been made (T29).

8.      Further investigation involved Mr Ney being referred to Dr Scarrabelotti, a consultant neuropsychologist.  In a report dated 20 December 2005 (T34), Dr Scarrabelotti noted that Mr Ney had started to notice symptoms in 1999/2000 while in Perth and that he thought his difficulties were due to:

§constant exposure to aircraft fuel, gases, and chemicals;

§working in confined spaces, for example, fuel tank entry;

§exposure to excessive engine noise; and

§being doused in fuel on two or three occasions.

Mr Ney is also noted as stating that “his various symptoms have emerged and recessed at different times and that his cognitive symptoms are at their worst when he is under stress.”

9.      In her summary and assessment, Dr Scarrabelotti noted the following:

(a)that it was in the period 1999/2001 that Mr Ney “first started noticing difficulties with his concentration and short term memory” with the latter problem persisting and exacerbated by stress;

(b)that Mr Ney “suffered from depression in 2000 following traumatic separation from his second wife”.  His depression was treated for six to eight months with counselling and Zoloft, with full recovery;

(c)that Mr Ney did not believe he was “currently depressed, although he was prone to anxiety and prone to suffering adverse effects of stress”;

(d)that as a result of tests undertaken, Mr Ney’s “immediate memory span and working memory are within the average range.  However he demonstrated some subtle difficulties in learning new information particularly in retaining it after a 25 minute delay if the material was demanding”; and

(e)that Mr Ney “is not currently reporting depression, but is reporting some mild to moderate symptoms of anxiety.”

10.     In response to particular questions, Dr Scarrabelotti stated that:

(a)“Mr Ney suffers from short term memory difficulties when under stress”;

(b)that the condition is permanent;

(c)that the “short term memory problems may be related to chemical exposure during his period of employment ... In addition, his short term memory difficulties may also be exacerbated by stress. Accordingly, this would appear to fit the definition of another condition.”

(d)that “there is a probable causal relationship between the claimed condition of short term memory difficulty and [his] military employment”; and

(e)that his “military employment has caused the occurrence of the short term memory difficulties and the short term memory difficulties are exacerbated by stress.”

11.     In a further report dated 1 February 2006 (T36), Dr Scarrabelotti clarified her statement in the earlier report that “the short term memory problems may be related to chemical exposures …” in the following way:

In my opinion, on the balance of probabilities, it is possible that Mr Ney’s short-term memory problems are related to chemical exposure ….

12.     On 8 February 2006 Mr Ney’s claim was disallowed (T37).  Following further detailing of information concerning Mr Ney’s exposure to chemicals during service, the decision to affirm the memory deterioration was made on 11 July 2006 (T49).

13.     In a Department of Defence minute dated 13 July 2006 (T50a), Squadron Leader Phillips of the Directorate General Technical Airworthiness – Australian Defence Force noted that it was likely that Mr Ney had been exposed to the following chemicals during his service with the RAAF, namely:

a. AVTUR and AVGAS aviation fuels, engine exhaust fumes;

b. Methyl Ethyl Ketone, Freon and Polysulphide sealants, Naphtha;

c. aircraft hydraulic and engine oils; and

d. beryllium – copper dust.

ISSUES

14.     The relevant issues in this matter are:

(a)From what, if any, condition does Mr Ney suffer?;

(b)Does Mr Ney suffer from a disease as defined by s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)?; and

(c)Are the provisions relating to diseases defined within s 7 of the Act available to and of assistance to Mr Ney in his claim for compensation?

FURTHER EVIDENCE

15.     In response to questions asked in cross-examination, Mr Ney stated the following:

(a)that his onset of difficulties was first noted in 2000;

(b)that during 2000 he experienced a considerable amount of stress associated with marital difficulties.  That he underwent counselling over a period of four months and was treated with anti-depressant medication and sleeping tablets;

(c)that in March 2003 he presented to Dr McMahon in Wagga Wagga complaining of an inability to concentrate, failing exams and inability to sleep and irritability due to the stress arising from the difficulties surrounding his wife’s application to emigrate from Russia to Australia;

(d)that between 20 January 2003 and 4 April 2003 he was reviewed at Health Services Flight on three occasions with stress-related symptoms, nor did he disagree with Dr McMahon’s impression that his symptoms were a consequence of a significant emotional disturbance;

(e)that in March 2005, when referred to Dr Wadhwa, a respiratory physician, he had admitted to being under considerable stress;

(f)that in August 2006, he attended a Dr Dirkan, an ophthalmic surgeon,  complaining of spasms and palpitations behind both eyes for about three months.  During the consultation Mr Ney indicated the stress he had experienced coincided with his wife being overseas for three months and his relocation to Nowra and having to do a course at Wagga Wagga;

(g)that in December 2005, he had told Dr Scarrabelotti that the level of symptoms varies, and that the symptoms of memory loss were at their worst when he was under stress;

(h)that he told both Dr Mellick and Professor McLeod that he experienced some stress over financial matters and property issues;

(i)that he told Professor McLeod in 2007 that the problems with his memory were getting worse;

(j)that his exposure to chemicals largely ceased in January 2003;

(k)that his first complaint of memory difficulties was during a study of health outcomes in air maintenance personnel on 28 February 2003;

(l)that a complaint of frontal headaches had existed prior to the onset of memory difficulties in 2000;

(m)that in April 2005, he underwent a medical cognitive impairment assessment conducted by Dr McMahon.  Mr Ney agreed that he told Dr McMahon that:

(i)he could learn, but at a slower rate;

(ii)the impairment has little impact on everyday activity, because of reliance on notes, schedules, checklists and his spouse;

(iii)he had moderate impairment of memory;

(iv)he had frequent difficulty in recalling details of recent experiences;

(v)he frequently misplaced objects and failed to follow through with intentions and obligations;

(vi)that there was negligible impact on his reasoning; and

(vii)he had difficulty with retention of new information, such as computer training being forgotten by the next day.

(n)That in June 2005 he underwent psychological assessment by Dr Harris, during which Dr Harris commented that because he had completed the ATEC training course, he demonstrated good training potential for any continued training associated with his transfer to the navy.

MEDICAL EVIDENCE

16.     In a report dated 24 May 2007 (Exhibit A2) , Professor McLeod, a consultant neurologist, detailed the following:

(a)Mr Ney “suffers from mild memory impairment and anxiety, but there is no evidence on clinical examination or on neuropsychological tests of widespread cognitive impairment.”

(b)“Mr Ney first became aware of his condition in 2000.  I do not consider that there has been any aggravations of the condition.”

(c)“Mr Ney has been exposed to a wide range of chemicals in the course of his employment with the RAAF.  He has had no exposure to chemical compounds since 2003.”

(d)“[P]rolonged exposure or repeated inhalations of high concentrations of petroleum products … can cause cerebral damage …  [E]xposure to methylethylketone (MEK) can cause central nervous system depression, and long-term exposure to solvents, including MEK, may have central nervous system effects.  Exposure to isopropyl alcohol … may cause similar long-term effects”;

(e)“Mr Ney has mild memory impairment but no evidence of widespread cognitive impairment.  Mild memory impairment is not an uncommon complaint and may be associated with anxiety, stress and other psychological conditions.  He has stated that his condition is getting worse but exposure to chemicals would not cause progression of the cerebral condition after cessation of exposure in 2003.  Therefore any progression is unlikely to be caused by chemical exposure due to his employment.  It is difficult to determine whether his present mild memory impairment is related to chemical exposure;  I would estimate a probability of 10-20%”;

(f)“I do not think that he is incapacitated for work.”

17.     In a further report dated 24 August 2007 (Exhibit A3), Professor McLeod confirmed his earlier opinion.  Professor McLeod also noted that MEK “causes damage to peripheral nerves” and that isopropyl alcohol may have caused depression and cerebral damage in Mr Ney’s case.

18.     In a further report dated 5 December 2007 (Exhibit A4), Professor McLeod disagreed with Dr Mellick’s statement that “All of the features referred to are entirely in keeping with abnormalities of mood, resulting in an impaired capacity to focus and sustain attention and therefore produce the lapses of memory referred to”, as the neuropsychological tests undertaken by Dr Scarrabelotti did not support such a statement.

DR MELLICK – CONSULTANT NEUROLOGIST

19.     In a report dated 16 February 2007 (Exhibit R2) Dr Mellick stated at page 4:

The history given to me by Mr Ney today did not include any description of memory disorder or impaired cognitive functioning alerting one to the probability of cognitive abnormalities.  The neurological examination also did not reveal any neurological abnormalities pointing to the presence of an underlying organically-based neurological disorder such as might cause cognitive abnormalities.

…

The evidence of cognitive impairment is minimal and the features which are present fall far short of establishing cognitive abnormalities of significance to be present as a result of any acquired brain disorder.  The features described by Mr Ney are commonplace complaints in individuals in this age group who have no cognitive disorder and are in keeping with anxiety, or as a result of a combination of the ageing process together with anxiety…

20.     In a further report dated 23 February 2007 (Exhibit R3), Dr Mellick, after reviewing Dr Scarrabelotti’s report, comments that “it is … probable that the mild changes to which she refers may be stress-related”.  In summary, Dr Mellick states “the neurological assessment which I have made does not establish the presence of any indicator of an organic abnormality of brain function, neither is there indication of disturbance of cognitive functioning such as might occur with cerebral dysfunction consequential upon toxic causes”.

CONCURRENT EVIDENCE

21.     In concurrent evidence Professor McLeod stated that Mr Ney demonstrated some memory disturbance, neuro-behavioural problems, which are not uncommon in the community and particularly in older people and for which there are a variety of causes.  The Professor believed that some of the chemicals to which Mr Ney was exposed can cause these cognitive changes.  In such circumstances Professor McLeod concluded that “it is possible that they can have caused some of his changes with cognitive function.”  Professor McLeod suspected that there is some other factor than anxiety (espoused by Dr Mellick) that has caused the memory disturbance and he thinks “that a possible cause is exposure to chemicals.”

22.     While both doctors agreed that at examination there was no evidence of neurological deficit, Professor McLeod considered that in the light of the history given by Mr Ney there was evidence of cognitive function impairment, while Dr Mellick did not.  Further, both doctors did agree that exposure to the particular chemicals nominated in this matter can be toxic and lead to changes in cognitive function.

23.     Dr Mellick’s conclusion in this matter is that there is no adequate evidence that such chemical exposures have led to cognitive impairment in Mr Ney’s case, with Dr Scarrabelotti having provided evidence of a “significant psychologically-based disorder”.  Dr Mellick, in pointing to the fact that both he and Professor McLeod are in agreement that stress, anxiety and other psychological disorders can impair or reduce optimal cognitive performance under certain circumstances, accepts that anxiety and depression are in evidence in the history of the matter, and that such “factors would amply explain any less than optimal cognitive impairment”.

24.     Further, Dr Mellick reinforced his opinion, when after noting that Mr Ney was complaining of increasing memory difficulties over time, he concluded that such a complaint is indicative that something else is causing the symptom of memory impairment, as exposure to toxins at a distant time would not be producing a progressive extant cognitive impairment (an issue with which Professor McLeod concurs in his written report of 24 May 2007).

CONSIDERATION AND FINDINGS

25.     In this matter I have been particular in stating the detail of Mr Ney’s service history, his employment and medical history.  Further, I have detailed the various medical, including psychological, assessments made over time.  While I note some minor variations as to detail as to events and clinical history, I am satisfied that Mr Ney has detailed his circumstances and clinical history to the best of his endeavours, with frankness and without embellishment.

26.     I further note that there has been agreement between the parties that Mr Ney has been exposed to particular chemicals during the course of his employment with the RAAF, namely:

(a)Avgas containing lead;

(b)Methyl ethyl ketone; and

(c)Isopropyl alcohol.

I note and so find that such exposure commenced in 1988 and ceased in January 2003.

27.     I acknowledge that both Professor McLeod and Dr Mellick are of like view in relation to the following matters:

(a)that at clinical examination there was no evidence of neurological deficit;

(b)that exposure to chemicals nominated in this matter could give rise to changes in cognitive function;

(c)that some memory disturbances are not uncommon in the community, particularly in older people and for which there are a variety of causes, including stress, anxiety, depression and other psychological conditions;

(d)that increasing symptoms of memory disturbance after exposure ceases, indicative of the progression of the cerebral condition, is not consistent with the ceased chemicals being the cause of such progression, with any such progression being unlikely to be caused by chemical exposure during his employment.

I accept such evidence and so find.

28.     In addressing the issue of what, if any, condition Mr Ney suffers, I note the opinion of Dr Jude, neurologist, dated 2 May 2005 that Mr Ney suffers from mild short-term memory impairment, “but no evidence of significant additional memory dysfunction, dementing syndromes or other major abnormalities were defined”.  I note that Dr Scarrabelotti (clinical neuropsychologist) concludes that Mr Ney suffers from short-term memory difficulties, particularly when under stress.  I acknowledge the opinion of Professor McLeod who concludes that Mr Ney suffers from mild memory impairment and anxiety, but that there was no evidence of widespread cognitive impairment.  I note Dr Mellick's opinion as to diagnosis, namely “[t]he features described by Mr Ney are commonplace complaints in individuals in this age group who have no cognitive disorder and are in keeping with anxiety, or as a result of a combination of the ageing process together with anxiety”.  I also acknowledge that since 2000, Mr Ney’s clinical history includes episodes of depression, anxiety and stress as recorded earlier in this decision.

29.     After consideration of the various opinions, I find that Mr Ney suffers from a mild memory impairment with minimal, if any, cognitive impairment.

30. I note that s 4(1) of the Act defines the following terms:

4.      Interpretation

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

…

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

…

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)     …

…

31.     From the material I have outlined I am satisfied that Mr Ney suffers from an ailment.  I note that Professor McLeod stated that there has been no material indicating an aggravation of that ailment, with the ailment symptomatology tending to be more in evidence in times of stress and anxiety.  Such an opinion as to association of increased symptomatology with stress, anxiety and other psychological conditions is also to be found in the opinions of Dr Scarrabelotti, Dr Mellick and Dr Jude.

32.     As to whether Mr Ney’s employment with the RAAF has contributed in a material degree to the ailment from which he suffers, I note that the evidence of Professor McLeod and Dr Scarrabelotti takes the matter no further than his employment (by way of exposure to toxic chemicals) may or is a possible cause and/or contributor to the condition claimed (memory disturbance).  I would further note that the remainder of the medical evidence traversed in this matter is less than supportive of such a proposition.  In this regard I refer to the opinions of Dr Jude and Dr Mellick.

33. I find that the evidence before me defines, at best, a possibility that factors in the employment may in fact have contributed to Mr Ney’s condition. In the absence of a finding that the causal connection is established on the probabilities, consideration of Mr Ney’s claim within the context of s 4(1) alone of the Act must fail (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 considered and applied).

34. However the matter does not end at this juncture for s 7 of the Act details the following:

7  Provisions relating to diseases

(1)     Where:

(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

(b)the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and

(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.

…

35. I note that Exhibit A9, namely, a notice dated 21 June 2007 issued pursuant to s 7(1) of the Act nominates at column two the following specified diseases at:

(a)Item 13: Diseases caused by lead or its toxic compounds;

(b)Item 20: Diseases caused by alcohols, glycols or ketones.

36. I note the contention made on Mr Ney’s behalf that because his employment exposed him to such chemicals, the employment in which he was so engaged shall, for the purposes of the Act, be taken to have contributed in a material degree to the contraction of the disease.

37.     In addressing this argument I am mindful that I must be satisfied on the balance of probabilities that Mr Ney’s ailment is a disease caused by lead or its toxic components or is a disease caused by alcohols, glycols or ketones (Bird v The Commonwealth of Australia (1988) 165 CLR 1; Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289 considered and applied).

38.     In earlier parts of this decision I laid the foundation from the clinical material before me in this matter for a finding that at best a possibility that factors in Mr Ney’s employment may have contributed to Mr Ney’s condition.  In such circumstances, at best, I could only conclude that there was a possibility that Mr Ney’s ailment is a disease nominated as a specified disease.

39.     I would observe that there is significant clinical material before me that is indicative of Mr Ney’s ailment and its causation being associated with anxiety, stress, depression and other psychological conditions.  In the absence of definitive psychiatric opinion, I take such analysis no further.

40. In the absence of finding that Mr Ney suffers from a specified disease as defined in Items 13 and 20 of the notice dated 21 June 2007 issued pursuant to s 7(1) of the Act, Mr Ney’s claim for compensation must fail and the decision under review be affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member

Signed:   ........[sgd]....................................................................
               Associate

Dates of Hearing:  8 December 2008
Date of Decision:  23 March 2009
Solicitor for the Applicant:         Mr A Kemp, Kemp & Co Lawyers
Counsel for the Applicant:        Mr M Vincent
Solicitor for the Respondent:     Ms S Pham, Dibbs Abbott Stillman
Counsel for the Respondent:   Mr B Kelly