OSBORNE And COMCARE
[2003] AATA 465
•23 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 465
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/653
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN JAMES OSBORNE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr B J McCabe, Member Date23 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) B J McCabe
Member
CATCHWORDS
WORKERS’ COMPENSATION – entitlement – Meniere’s disease – liability - whether applicant’s disease caused by his employment - whether applicant suffering from a temporary aggravation of an existing condition – whether aggravation of condition ceased after applicant removed from normal duties - meaning of aggravation – factors causing aggravation - whether applicant’s disease aggravated by workplace stress - whether applicant entitled to an allowance which would otherwise have been payable to him if his condition had not caused him to cease his normal duties
Safety Rehabilitation and Compensation Act 1988
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Johnston v Commonwealth of Australia (1982) 43 ALR 559
Re Davies and Comcare (AAT 9637, 1 August 1994)REASONS FOR DECISION
23 May 2003 Mr B J McCabe, Member Introduction
1. Stephen Osborne is the applicant in these proceedings. Mr Osborne was a soldier posted to the School of Army Aviation at Oakey. He worked on the Army’s fleet of Blackhawk helicopters. He developed Meniere’s disease and was subsequently grounded. He has since been discharged from the Army.
2. The applicant says Meniere’s disease, or the attacks that are symptomatic of the condition, was either caused or aggravated by his military service. The respondent says Meniere’s disease is a pre-existing condition but has accepted liability for the temporary aggravation of the condition that occurred as a result of his aircrew service. The applicant says the contribution of the applicant’s employer to the aggravation of the applicant’s condition ceased once he was grounded. The respondent says the applicant is entitled to receive flight allowance after the date he was grounded. The dispute over the entitlement to flight pay lies at the heart of these proceedings.
The Material Before the Tribunal
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant also provided a statement and a series of reports from Professor Gibson (dated 3 May 2001, 31 July 2001, 28 November 1998, 15 December 1998, 26 February 1999, 9 March 1999, 8 April 1999, 2 August 1999 and 8 August 2000), two pay records and the applicant’s record of service. The applicant and his wife, Mrs Wendy-Leigh Osborne gave evidence, as did Professor Gibson and Dr Stuart Whitehead.
4. The applicant was represented by Mr Clutterbuck of counsel. Mr Clark appeared for the respondent.
The Facts
5. Stephen James Osborne was born on 20 April 1968. He enlisted in the Army on 18 March 1986 and transferred into the aviation corps in 1990. He was an aircrewman on Blackhawk helicopters and was initially based in Townsville. Each Blackhawk carried a crew of four and was engaged in a wide range of tasks, including carrying troops and cargo. Mr Osborne explained in his evidence that the Blackhawks and their crews trained intensively, and practised low and high level flying and emergency drills on a regular basis.
6. Blackhawks are large helicopters. They are very noisy. The helicopter has two large jet engines overhead and the applicant said in his evidence that he sometimes travelled with his head less than six to eight inches from the main transmission. Aircrew wore helmets and – following acoustic reports that showed dangerous levels of noise – they were provided with earplugs worn under the helmet. The applicant said the plugs were uncomfortable and they often fell out. If they dislodged, it was difficult to remove the helmet and the radio headset to replace them. It was also difficult to keep the earplugs in place during some manoeuvres in particular, like being winched into water.
7. Aircrewmen received a supplement to their regular pay called flying allowance in recognition of the special nature of their duties and the need to attract and retain the best candidates for the work. Instruction 0106, an internal Department of Defence procedure document, was provided to the Tribunal to assist me in understanding the military pay system. The Instruction explained that flying allowance was comprised of two parts. One amount in respect of Qualification and Skill was paid when the soldier qualified as an aircrewman in recognition of acquiring the skills required of military aviation. A second amount was paid in respect of Disability to compensate for the added disabilities and stresses inherent in military aviation. Mr Osborne was in receipt of both components of flight allowance.
8. The applicant was posted to the School of Army Aviation in Oakey in 1993. He became a Blackhawk Battlefield Helicopter instructor. In addition to his aircrew duties, Mr Osborne instructed other soldiers participating in aircrew flying courses.
9. The episodes associated with Meniere’s disease began sometime before Christmas 1993. Mr Osborne said there was a loud squealing in his ears while he was flying that would continue after he landed. He would feel pressure build up in his ears that would become quite intense and he would become dizzy and feel light-headed. He described the course of an attack in his testimony:
“Usually I started to feel that I wasn’t getting – I wasn’t well and that I would – the tinnitus in my ears would become very loud and I would feel a pressure or a fullness in my ears that I couldn’t equalise or anything like that. I found that I became very vague and then I would – with my head movements, I would start to get how I can only describe as phase lag. If I moved my head from one point to another, it’s like the world was a little bit slower in catching up and then usually within several hours I would then feel the effects of a full on vertigo attack where I can only describe it of having the centre vision rotating one way very quickly and the peripheral vision rotating the opposite direction and it was very incapacitating.”
10. The attacks happened in the aircraft while flying, and on the ground within two hours or so of landing. The applicant used the expression “vertigo” to describe the attacks. He said he had to grab something to hold during an attack, and would strap himself in when the attack happened on-board an aircraft.
11. When the attacks began, the applicant visited a civilian doctor. He was in no hurry to tell the military authorities about his complaint, as he was concerned about what effect it might have on his career. His evidence suggested that soldiers on flight duty were often grounded because of illness or injury. He related a story of being hit on the head by a falling block of wood in Nowra while on a training exercise. The blow to his head required stitches and he was grounded for a week.
12. The applicant’s general practitioner, Dr Newlands, suspected Meniere’s disease. Mr Osborne was sent off for an audiogram and other diagnostic tests. They were inconclusive. Dr Newlands referred the applicant to Dr Ross Harrington, an ear, nose and throat specialist in Toowoomba. Dr Harrington confirmed in his report of 29 October 1996 (found at T14) that he suspected Meniere’s disease after an examination on 18 March 1994. The applicant explained his doctors did not tell the Army about his condition in the meantime because they said they did not think he was a danger, given he was not flying the aircraft. The applicant was able to continue flying.
13. The attacks got worse and more frequent. The applicant said he could feel them coming on. If they occurred while he was at the office, he would lie down. If they occurred while he was in the car, he would pull to the side of the road and rest. He also said his hearing began to deteriorate.
14. The Army learned of Mr Osborne’s condition in 1996. The applicant said in his evidence that he made the disclosure before he was formally diagnosed. A copy of a clinical report recording details of the symptoms is included in the T documents at T12. Dr Harrington confirmed the diagnosis of Meniere’s disease in his report of 29 October 1996 (T14), and the applicant participated in a medical board examination conducted by Dr Newlands and another doctor on 5 November 1996. The record of the board’s examination is found at T15. The medical board recommended the applicant be listed as unfit for aircrew, and that he be restricted from operating machinery or military vehicles. That decision was confirmed on 13 November 1996.
15. The record of the medical board examination at T15 refers to the episodes of vertigo, the hearing loss and other symptoms of the disease, but it does not necessarily follow that the applicant was grounded because of the symptoms. He was grounded because he was afflicted with an underlying condition that would manifest itself in symptoms that made it impossible for him to continue to fly.
16. Throughout this period the applicant claims he was harassed by other military personnel who apparently doubted the diagnosis of Meniere’s disease. He says his commanding officer ordered him to attend a training course on Iroquois helicopters. When he declined to do so because of his condition, he was told he should resign by a senior non-commissioned officer. Mr Osborne also claims his supervisors told him they would not support his desire to remain in the Army in any other role. He spoke of his disappointment at his supervisors’ assessments of his performance and the decision to withdraw a recommendation for promotion to sergeant.
17. Mr Osborne’s account of his harassment was corroborated to a limited extent by Dr Whitehead, a general practitioner involved in his treatment. Dr Whitehead said he had been told that Mr Osborne’s supervisors regarded him as a malingerer, and that he was manipulating the system. When pressed as to the source of this information, Dr Whitehead said he had been told as much by Dr Newlands and the applicant. It is difficult to lend much weight to this evidence in those circumstances. The applicant’s wife confirmed that the attacks appeared to get worse when he was under stress, but she did not identify sources of stress in her evidence. He also commenced a grievance procedure during this period.
18. After being grounded, the applicant remained at Oakey although he worked in the Army Aviation Flying Training Centre and Defence Corporate Support. He fulfilled a variety of administrative tasks and prepared and delivered training courses. He acted as a liaison officer between the Army and local landowners, wrote manuals and oversaw the implementation of the MAP Information Software Program for military use. His work did not generally take him near the noise and vibration of the helicopters and other aircraft that might have been a factor in the aggravation of his condition. His supervisors at the Defence Corporate Support office spoke highly of his work.
19. The applicant says he continued to suffer attacks during this period. Dr Harrington referred him to Professor Gibson, an expert on conditions of this kind. Professor Gibson said in his evidence that Meniere’s disease was not caused by the applicant’s military service, but factors associated with that service may have aggravated the condition. He referred in particular to aggravation being caused by blows to the head, loud and persistent noise and stress.
20. The applicant gave evidence about two blows to the head – one when the block of wood fell on his head in Nowra in 1994, and a further trauma arising out of an accident in a military vehicle in 1987. Professor Gibson said under cross-examination that neither of those incidents is likely to be a factor in the applicant’s condition, although his report dated 26 February 1999 (at T33) says:
“I believe on the balance of probabilities that his Meniere’s disease has been aggravated by stress, blows to the head and acoustic trauma which he encountered during his military service.”
21. Professor Gibson also conceded in his oral evidence that acoustic trauma was only an issue while Mr Osborne was flying and exposed to the noisy aircraft. Once he started working in an office environment away from the noise, acoustic trauma would not account for the aggravation.
22. Stress might have been an issue in this case, Professor Gibson suggested. He spoke of the applicant’s claims that he was being subjected to pressure at work from his supervisors. The applicant told Professor Gibson he was being “got at” by his superiors who were annoyed he was not willing or able to fly. Professor Gibson said stress could continue to aggravate the condition once the applicant had been removed from exposure to loud and persistent noises after he was grounded. Professor Gibson said during cross-examination that the applicant had not mentioned any fears that his career would be affected by being grounded, and there was no suggestion he was stressed by the development of Meniere’s disease.
23. The applicant was discharged from the Army on 12 March 1999. Mr Osborne was unemployed, and he has not worked since. His wife cares for him at home. He has been involved in extensive correspondence with Comcare over his entitlement to compensation. In particular, he has sought payment of the flying allowance after the date he was grounded. Comcare’s reasons for refusing to pay are summed up in its letter to the applicant dated 10 February 2000. That letter explained that Comcare accepted liability for the temporary aggravation of Mr Osborne’s condition, but said he was ultimately grounded because of the onset of Meniere’s disease that is not caused by this military service.
24. The applicant’s pay records show he received flight allowance continuously between 7 June 1991 and 11 November 1997 even though he was grounded nearly twelve months before the date on which the payments ceased. The respondent’s explanation for the delay is found in Instruction 0106. Clause 25 says a person in Mr Osborne’s position who has been certified medically unfit to fly is nonetheless entitled to be paid the allowance until he is terminated or he is transferred from flying duties - whichever is earlier. Clause 26 says a member who is transferred less than a year after becoming permanently unfit (which presumably means the date on which the member is certified as being unfit) is entitled to continue to receive flying allowance “for one year from the date on which the members’ illness commenced”.. Mr Clark for the respondent said the applicant may not have been entitled to the payments for the full year given that his illness clearly commenced some time before he was diagnosed and certified as being medically unfit.
25. Mr Clutterbuck for the applicant noted in his oral submissions that the applicant was still posted to the Aviation Regiment and listed as being aircrew up until the day he was discharged, notwithstanding that he did not fly and was performing other duties at Oakey. If that contention is right, then Mr Osborne was certainly entitled to flying allowance until his services were terminated on 12 March 1999.
26. The applicant’s record of service was tendered in evidence. I note the record says Corporal Osborne received a compassionate posting on 11 December 1996 to “Manpower not related to establishment (Administered by School of Army Aviation)”.. The entries on the document suggest that while the applicant remained with his unit until the time of his discharge, he was transferred from flying duties as of 11 December 1996.
Did the Applicant Suffer from Work-Related Stress that Aggravated his Condition?
27. The respondent says if the Department of Defence caused an aggravation to an underlying condition, that aggravation was temporary and subsided as soon as the cause of the aggravation was removed. The respondent says the only cause of the aggravation in this case is prolonged exposure to loud noise, and that the noise problem was addressed when the applicant stopped flying. Comcare denies work-related stress made any contribution to the aggravation of the condition after the applicant was grounded. The respondent goes on to say the applicant was grounded because he suffered from the underlying condition of Meniere’s disease which was unrelated to his service in the Army. The applicant says he was harassed by his superiors, and that the conduct of those supervisors has aggravated his condition within the meaning of the Act.
28. I have no difficulty in accepting that Mr Osborne’s superiors were frustrated by the loss of an apparently skilful and diligent soldier, but I am unable to be satisfied from all the evidence that Mr Osborne was harassed in the way he described. The tone of the reports prepared by his commanding officer and his supervisors (put to the applicant during cross-examination) was not negative, although they did note the applicant’s performance was degraded as he came to terms with his condition and became more withdrawn. But that is to be expected. In any event, the formal records are not consistent with accounts of treatment that would induce stress.
29. I think there are other causes of the stress that aggravated his condition after he ceased flying. Being diagnosed with a condition that would cause considerable physical discomfort and long term damage to his hearing must have been a source of stress. The knowledge that his career with the Army was likely to be prejudiced or ended must also have been a serious source of concern to a clever and diligent member of the armed forces like the applicant. Becoming ineligible for promotion when he thought it was within his grasp and the negotiations over a transfer to accommodate his wife’s academic career might also have been a source of worry – but these matters are expressly excluded from consideration by reason of the definition of “injury” in s 4. I am also certain the applicant’s negotiations with the authorities over his entitlements and the subsequent proceedings have also been a major source of worry.
Is there an Entitlement to Flying Allowance?
30. An eligible person’s entitlements to compensation for injury are calculated under s 19 of the Act. The meaning of “injury” is explained in s 4:
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. “
31. Meniere’s disease is clearly a “disease” within the meaning of that definition. “Disease” is also defined in s 4:
“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.”
32. I have already concluded that work-related stress did not contribute to the aggravation of the disease, and that the noise ceased being a contributor once the applicant was grounded and commenced work away from the flight line. But is the respondent liable to pay under s 19 if the noise caused the applicant’s symptoms to be temporarily worse?
33. The concept of aggravation was discussed in Casarotto v Australian Postal Commission (1989) 17 ALD 321. Hill J analysed decisions of the High Court in cases like Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 and Johnston v Commonwealth of Australia (1982) 43 ALR 559. His Honour concluded (at 327) “aggravation connotes the disease becoming more severe…”.
34. I do not accept the applicant’s work environment made his disease more severe. The applicant may have temporarily manifested more severe symptoms of the disease in response to persistent loud noise, but Professor Gibson said those symptoms would settle down once the source of the irritation was removed. The underlying disease continues to progress, and there was no evidence it was made worse or more severe as a result of persistent loud noise, stress or blows to the head connected with his work.
35. If the applicant were correct in his contention that the aggravation gave rise to a compensable injury under s 19, it would be necessary to calculate that entitlement with reference to the applicant’s normal weekly earnings. He says that figure should include the flight allowance. The meaning of the expression “normal weekly earnings” is explained in s 8.
36. I am satisfied the applicant’s normal weekly earnings would include the amount he was being paid, and would have continued to receive, had he not been incapacitated by a work related injury. If the Meniere’s symptoms were a work-related injury that gave rise to incapacity, the applicant would be entitled to receive all of the amounts to which he was entitled but for that injury – including flying allowance: see Re Davies and Comcare (AAT 9637, 1 August 1994). However I have already expressed the view that the injury in question was not work-related. The applicant was grounded by reason of Meniere’s disease, and someone with Meniere’s disease cannot continue flying because of the impact the disease has on the sufferer’s capacity to work in aircraft. Comcare has properly compensated the applicant for the short-term aggravation of the symptoms caused by noise, but I am not satisfied the disease was made worse or more severe by the noise or work-related stress.
37. The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: .......................................................................................
AssociateDate of Hearing 12 and 13 June 2002 (at Toowoomba)
11 October 2002 (at Brisbane)
Date of Decision 23 May 2003Counsel for the Applicant Mr Clutterbuck
Solicitor for the Applicant Clearly and Lee
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Sparke Helmore
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