Parry and Military Rehabilitation and Compensation Commission (Compensation)
[2020] AATA 997
•30 April 2020
Parry and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 997 (30 April 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2019/2357
Re:Winston Parry
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:30 April 2020
Place:Brisbane
The decision under review is affirmed.
..................................[SGD]......................................
Senior Member Katter
CATCHWORDS
MILITARY COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – when conditions manifest – irritable bowel syndrome – applicable test for causation – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)Veterans’ Entitlements Act 1986 (Cth)
CASES
Comcare v Sahu-Khan [2007] FCA 15
Parry v Military Rehabilitation and Compensation Commission [2014] AATA 493
REASONS FOR DECISION
Senior Member Katter
30 April 2020
APPLICATION
This is an application to review the Respondent’s decision as to liability pursuant to s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) as to the Applicant’s irritable bowel syndrome.
BACKGROUND
The Applicant served in the Australian Regular Army between 13 March 1962[1] and 1986[2]. The Applicant rendered operational service in Malaya[3], Borneo[4] and Vietnam (19 May 1967 to 9 January 1968[5] and 17 November 1969 to 26 November 1970[6]).
[1] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 5; Transcript, 30 January 2020, P-13, line 45.
[2] Exhibit 1, T-Documents, T17.3; and Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 5.
[3] Transcript 30 January 2020, P-14, line 1.
[4] Transcript 30 January 2020, P-14, line 1.
[5] Transcript 30 January 2020, P-27, lines 35-36.
[6] Transcript 30 January 2020, P-27, lines 35-39.
From August 1986 to March 1988 the Applicant served in the Australian Army “emergency reserve”[7]. From March 1988 to August 1997 the Applicant served in the Australian Army “general reserve”[8].
[7] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
[8] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
The Applicant receives a disability pension at the special rate[9] further to s 24 of the Veterans’ Entitlements Act 1986 (Cth), with the Applicant’s chronic dysthymia and post-traumatic stress disorder being war-caused injuries or diseases under s 9 of the Veterans’ Entitlements Act 1986 (Cth)[10].
[9] Transcript 30 January 2020, P-27, line 41.
[10] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 7.
By a document dated 12 October 2018, the Applicant made a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the Act”), stating[11]:
[11] Exhibit 1, T-Documents, T13, pages 166-167.
“ … APPLICATION FOR STAND ALONE CONDITION (IRRITABLE BOWEL SYNDROME) …
I am enclosing a copy of the relevant form to apply for Military Compensation under the DRCA /SRCA.
Please find a letter from Dr Charles Steadman pertaining to this application.
I could not receive any confirmation about my problem of faecal incontinence and the swelling of my stomach, changes in bowel habits.
DVA sent me to a MICOA DR, a Dr O”ROURKE to give me an assessment for GORD. I told this Dr, my problems including the fact of the constant diarrhoea and the symptoms I have outlined.
This DVA Dr, told me that it was all the tablets I take every day! …
I WAS NOT SURE ABOUT THAT, I went to Dr Steadman to gain his opinion. His letter will explain his opinion.
I was to learn that GERD/GORD is not an associated disease with IBS, HOWEVER a person may suffer from both.
I rang DVA, was informed that IBS is a stand a lone condition and there for, I am entitled to lodge a claim for this condition under the DRCA. I WAS INFLICTED WITH THIS DISEASE FOR SERVICE IN AUSTRALIA. … ”
On 3 December 2018 a delegate of the Respondent stated that the delegate was “unable to accept your claim for … Diarrhoea predominant irritable bowel syndrome”[12]. The reasons for that decision state[13]:
[12] Exhibit 1, T-Documents, T16.1, page 199.
[13] Exhibit 1, T-Documents, T16.1, pages 201-202.
“I have considered the following Australian Defence Force service for the purposes of your claim:
· RESERVE service between 30/05/1969 and 03/08/1997.
Diarrhoea predominant irritable bowel syndrome
You have stated that your condition was caused by [sic] due to medication and GORD conditions.
The condition has been diagnosed as Diarrhoea predominant irritable bowel syndrome. This diagnosis is based on a review of evidence by the department Contracted Medical Advisor (CMA), ADF medical documents and specialist reports. I am satisfied that this is the appropriate diagnosis.
I am satisfied that the condition had its onset on 31 July 2018. This is the date that you first sought medical treatment. This condition is considered a disease under the DRCA.
Based on the evidence provided I requested a review by the department CMA on the causation of this condition as per your contention. The CMA opined your diagnosed Post-traumatic Stress Disorder (PTSD) could be considered a contributory factor in the development of your diagnosed condition. However, as IBS was a diagnosis of exclusion there was no evidence to associate this condition with your DRCA period of service.
Under Section 5(10) of the DRCA, compensation because of an injury/disease is not payable if the injured person has received, or is entitled to receive, a pension under the Veterans’ Entitlements Act (except under Part IV of that Act).
Having considered all of the available evidence, I am not reasonably satisfied that your DRCA period of service contributed in a significant degree to your condition. Your claim in respect of this condition is therefore unsuccessful.
As per your request I have transferred your claim to a VEA delegate for investigation. This delegate will … contact … you shortly.”
On 11 February 2019 the Applicant stated that he wished to have the application sent to the re-consideration board for further assessment[14], with a further email requesting the reconsideration be sent on behalf of the Applicant on 12 February 2019[15].
[14] Exhibit 1, T-Documents, T22, page 248.
[15] Exhibit 1, T-Documents, T22, page 248.
On 15 April 2019 a delegate of the Respondent affirmed the determination dated 3 December 2018[16].
[16] Exhibit 1, T-Documents, T29.1, pages 270-272.
On 16 April 2019 the Applicant communicated to the Respondent stating[17]:
“I have received your letter of rejection pertaining to the above case.
I HAVE [A] FEW QUESTIONS AND POINTS?
1. YOU STATED THAT YOU HAVE THOROUGHLY INVESTIGATED MY CASE.
This appears [to] not be the case at all. [It was] quoted that I spent 6 years in the Regular Army and the remainder of 35 years in the Reserve! I sent … my SERVICE RECORD to prove that I spent 24 years in the Regular Army and 11 years in the Reserve, [I was] told … by e-mail she had amended that.
This throws another light on the matter.
2. I have seen a highly qualified PYCH who has advised me that the cause of IBS is NOT KNOWN! … Yes there is a[n] association of emotions, however not proven.
There are other holes in your SUBJECTIVE decision which I will define when I write a full comprehensive report for the AAT. I HAVE ALREADY SENT A LETTER OF REQUEST TO THEM. … ”
[17] Exhibit 1, T-Documents, T30, page 275.
On 24 April 2019 the Applicant further stated to the Respondent[18]:
“I do want the changes of my service noted by you! I have had a second thought about this. You are very presumptive in your statement? I think my 19 years peace time regular service does have a very important part in my application under the DRCA.
I also would like to draw your eager eyes to the point, that the link, re PTSD and IBS is not PROVEN. It can be or could! Of course the DELEGATES pounce on the link … yes we WILL USE THAT! …
In fact I did include a MEDICAL REPORT re IBS in 1994 … where is it?
I would also like to inform you that IBS is not a broken arm … it is a disease that comes on very slowly. … ”
[18] Exhibit 1, T-Documents, T31, page 277.
On 29 April 2019 the Respondent provided an amended decision to the Applicant affirming the determination dated 3 December 2018[19].
[19] Exhibit 1, T-Documents, T31.1, pages 281-284.
On 16 April 2019 the Applicant filed an application for review to this Tribunal, stating[20]:
“I am AMAZED that … after informing me of the thorough investigation of my second claim, could once again be confused with my dates of service in the Regular Army (24yrs) and my service in the Reserve of 11 years. My previous delegate assured me that she had changed the dates of claim from 6 years Regular and 29 years in the Reserve.
I proved this with my Record of Service.
The two major points in my denial of compensation are:
1. The available medical evidence does not support your DRCA period of service contributing to the requisite degree of to the development of this condition.
2. Medical evidence indicates that IBS can be caused by emotional conditions.
ANSWER TO Q1 … I Served 5 years Active Service, the remainder of the 19 years service in Australia, which is accountable as DRCA service. (the 11 years in Reserve seem not matter in the least) all up 35 years in Infantry.
ANSWER TO Q 2.
From a qualified opinion … CAUSE OF IBS IS NOT KNOWN. (EMOTIONS are only an association with PTSD) … ”
[20] Exhibit 1, T-Documents, T1, pages 1-3.
EVIDENCE
The Applicant gave oral evidence at the hearing on 30 January 2020[21].
[21] Transcript 30 January 2020, P-13.
The Applicant stated that when he was in the Australian Army “emergency reserve” from August 1986 to March 1988[22] he went to Kapooka and “ran a corporals’ course”[23], with that period being continuous service as a reservist[24].
[22] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
[23] Transcript 30 January 2020, P-15, line 17.
[24] Transcript 30 January 2020, P-17, line 26.
In the Australian Army “general reserve” from March 1988 to August 1997[25], the Applicant stated that he worked at the Queensland University Regiment, also running corporals’ courses and officers’ courses at Wacol and at 25 Royal Queensland Regiment in Toowoomba[26]. The Applicant stated that he also worked as a safety officer with 49 Royal Queensland Regiment[27]. The Applicant stated that during that period of “general reserve” service from March 1988 to August 1997 he was serving in Greater South East Queensland[28]. The service was not continuous full-time service, but for periods of days, nights and weekends during the year, with block periods of time occurring at times[29]. The Applicant stated that he did a one-year period[30] of continuous reserve service commencing in 1989 or 1990[31]. During the period of reserve service from 1988 to 1997, the Applicant worked in non-military work with Armaguard, “but not much”[32].
[25] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
[26] Transcript 30 January 2020, P-16, lines 11-16 and 20-23.
[27] Transcript 30 January 2020, P-16, lines 23-24.
[28] Transcript 30 January 2020, P-16, lines 26-33.
[29] Transcript 30 January 2020, P-16, lines 38-47.
[30] Transcript 30 January 2020, P-18, line 6.
[31] Transcript 30 January 2020, P-17, lines 27-28 and P-18, line 1.
[32] Transcript 30 January 2020, P-19, line 20.
The Applicant stated that when he was instructing at Kapooka (August 1986 to March 1988[33]), that was the first time he had irritable bowel syndrome[34]. The Applicant stated that he did not have any more trouble until the 1990’s, when he was having problems with diarrhoea, at Enoggera, from 1990[35]. The Applicant stated that the diarrhoea got “slowly badly” around 1994[36]. The Applicant stated that what happened at Kapooka “might not be any relation” to what happened from 1990, when he started getting diarrhoea all the time[37]. The Applicant stated that there was a “progression” in about 1994[38].
[33] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6.
[34] Transcript 30 January 2020, P-19, line 41.
[35] Transcript 30 January 2020, P-20.
[36] Transcript 30 January 2020, P-21, line 20.
[37] Transcript 30 January 2020, P-21, line 36.
[38] Transcript 30 January 2020, P-22, lines 6 and 16.
The Applicant stated that the irritable bowel syndrome, as described by him, continued to the day of the hearing[39]. The Applicant stated that the first time that he articulated the issue to a medical practitioner was when he raised the issue with Professor O’Rourke[40], with that being in 2018[41].
[39] Transcript 30 January 2020, P-22, line 36 and P-24, line 45.
[40] Transcript 30 January 2020, P-23.
[41] Transcript 30 January 2020, P-24, line 11.
The Applicant did not refer to there being a “linkage” between his service in Malaya, Borneo and Vietnam and the condition[42]. The Applicant was taken to the claim form as to irritable bowel syndrome, where the Applicant referred to the operational service overseas[43] and the years in training in Australia “drinking sometimes swamp water”[44]. The Applicant summarised that the operational service played a role but also his many years training in Australia[45], but he ‘did not really believe that and he was wrong’[46].
[42] Transcript 30 January 2020, P-25, lines 23-29.
[43] Transcript 30 January 2020, P-28, lines 41-42.
[44] Exhibit 1, T-Documents, T13.1, page 179.
[45] Transcript 30 January 2020, P-29, line 15.
[46] Transcript 30 January 2020, P-29, lines 15-16.
The Applicant stated that he would go to the Philippines and come back during the period 1988 to 1997[47] and stated that he thought it was the “San Miguel Beer” in the Philippines that was relevant to the diarrhoea[48].
[47] Transcript 30 January 2020, P-22, lines 30-32.
[48] Transcript 30 January 2020, P-22, lines 14-21.
The Applicant does not recall taking any medication in or about 1990[49]. The Applicant stated that there was no change in his medication in the period 1990 to 1994[50]. In about 1994, the Applicant stated that he was taking medication for cholesterol, with Warfarin being taken from about 1997[51].
[49] Transcript 30 January 2020, P-30, lines 20-23.
[50] Transcript 30 January 2020, P-29, lines 43-45.
[51] Transcript 30 January 2020, P-30, lines 30-37.
The Applicant stated that after concluding his service in 1997, he worked for about ten years in security as an armed guard[52].
[52] Transcript 30 January 2020, P-17, line 9.
Dr Norrie
Dr Mark Norrie, a fellow of the Royal Australasian College of Physicians[53], gave oral evidence on 30 January 2020.
[53] Transcript 30 January 2020, P-42, lines 24-25.
Dr Norrie assessed the Applicant on 7 December 2018[54], completing written reports in February and September 2019[55]. Dr Norrie was taken to the report of Dr Bruce Lawford dated 25 June 2019, where Dr Lawford provided an opinion that the Applicant’s irritable bowel syndrome is not due entirely to post-traumatic stress disorder[56]. Dr Norrie stated that post-traumatic stress disorder may be an aggravating component to irritable bowel syndrome, as opposed to a direct cause and effect[57]. Dr Norrie stated that there are many things that can contribute to irritable bowel syndrome, including diet and other things, as well as psychiatric illnesses[58]. Dr Norrie described irritable bowel syndrome as a multi-factorial thing, stating that something such as post-traumatic stress disorder could be an aggravating feature[59].
[54] Transcript 30 January 2020, P-42, line 26.
[55] Transcript 30 January 2020, P-42, lines 26-30.
[56] Transcript 30 January 2020, P-43, lines 10-11.
[57] Transcript 30 January 2020, P-43, lines 14-15.
[58] Transcript 30 January 2020, P-43, lines 15-19.
[59] Transcript 30 January 2020, P-44, lines 45-46 and P-45, lines 1-2.
ISSUE
The issue, which is not in contention[60], is whether the Act applies and, if so, is the claimed condition an ailment that was contributed to, to a significant degree, by the Applicant’s relevant period of service[61]. The Respondent submitted that if there is satisfaction that the Applicant had the condition before 13 April 2007 and that the Act applies, then the “material contribution test” would then be applied[62]. The Applicant submitted that having regard to the evidence, the Respondent’s position was that the material contribution test probably applied, “rather than the significant contribution one”[63].
[60] Transcript 30 January 2020, P-10, line 1.
[61] Transcript 30 January 2020, P-9, lines 25-31.
[62] Transcript 30 January 2020, P-10, line 31.
[63] Transcript 30 January 2020, P-10, lines 32-33.
CONSIDERATION
Section 14 of the Act states that the Commonwealth is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee, if the injury results in death, incapacity for work, or impairment. Section 14 of the Act further states that compensation is not payable in respect of an injury that is intentionally self‑inflicted or that is caused by the serious and wilful misconduct of the employee where it is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment. It is not contended by the Respondent that sub-ss 14(2) or (3) of the Act are in issue.
Section 4AA(2) of the Act relevantly states:
“(2)This Act applies (subject to Part X) in relation to an ailment, or an aggravation of an ailment, suffered by an employee if:
(a) the ailment or aggravation is contributed to, to a significant degree, by the employee’s employment as a member of the Defence Force; and
(b) the employment occurred:
(i) on or after the commencement of section 3 of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (which was 1 December 1988); and
(ii) before the MRCA commencement date (which was 1 July 2004), but not before and on or after, the MRCA commencement date.
Note: Compensation for members of the Defence Force is provided under the MRCA (instead of this Act) for an ailment or aggravation that relates to employment that occurred after the MRCA commencement date.”
Section 5A of the Act defines the word “injury” as a disease suffered by an employee, or a physical or mental injury arising out of, or in the course of, the employee’s employment or 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), that is an aggravation that arose out of, or in the course of, that employment.
That the Applicant has irritable bowel syndrome is not in contention[64].
[64] Exhibit 14, Respondent’s closing submissions, paragraph 6, page 2.
The Respondent submits that section 5 of the Act prevents compensation under the Act[65]:
[65] Transcript 30 January 2020, P-33, lines 9-10.
“(6)Subject to subsections (7) and (8), this Act does not apply in relation to service of a member of the Defence Force in respect to which provision for the payment of pension is made by:
(a)The Veterans’ Entitlements Act 1986; …
Note:Compensation and other benefits might also be available for a member of the Defence force under the MRCA. Generally, an injury, disease or death that is covered by that Act would not be covered by this Act (see section 4AA and subsection 6A(2A) of this Act).
(7)Subsection (6) does not apply in relation to a veteran:
(a)who has rendered operational service on or after the day on which the MilitaryCompensation Act 1994 commences; and
(b)for whom provision for the payment of pension in respect of service rendered by the person is made by Part II of the Veterans’ Entitlements Act 1986.
(8)Subsection (6) does not apply in relation to a member of the Defence Force who has rendered service in respect of which provision for the payment of pension is made by Part IV of the Veterans’ Entitlements Act 1986.”
The Respondent submits that sub-s 5(6), when read with sub-s 5(8), prevents compensation under the Act, where the service of the member is the subject of the Veterans’ Entitlements Act 1986 (Cth), that is that there is a pension for operational service[66]. The Respondent refers to Dr Norrie’s opinion that the Applicant’s condition of irritable bowel syndrome is likely to be related to his post-traumatic disorder to a material degree and submits that therefore there cannot be a connection to the Applicant’s relevant service under the Act[67].
[66] Transcript 30 January 2020, P-33, lines 22-36.
[67] Exhibit 14, Respondent’s closing submissions, page 2, paragraph 10.
The Respondent submits that, by reason of the Applicant’s operational service, the Respondent determined that the Applicant’s post-traumatic stress disorder was a war-caused injury or disease as defined in section 9 of the Veterans’ Entitlements Act1986 (Cth) and that the post-traumatic stress disorder exacerbated the irritable bowel syndrome, as stated by Dr Norrie[68]. However, the Respondent referred to Parry v Military Rehabilitation and Compensation Commission [2014] AATA 493 at [13] per Senior Member McCabe (as the Deputy President then was) and Member Maynard, where it was stated that: “The cognitive impairment is clearly connected one way or another with Mr Parry’s war-related conditions, and those conditions and the consequences which flow from them are compensable under the VE Act. The outcome might be different if it were possible to identify another work-related factor that contributed to Mr Parry’s cognitive impairment, but the medical experts have excluded other causes”. In this matter, the medical experts have not excluded other causes, but state that the irritable bowel syndrome has been exacerbated (“did not alone cause”[69]) by the post-traumatic stress disorder, which is the subject of the Veterans’ Entitlements Act 1986 (Cth) entitlements. The Applicant submitted that the irritable bowel syndrome was not “all caused by one factor … PTSD”[70]. The Applicant submits that as a reservist “eating hard rations, drinking creek water in Shoal water Bay Training Area is harder than in war”[71]. The Applicant submits that he experienced irritable bowel syndrome in 1990 before being diagnosed with post-traumatic stress disorder[72]. The Applicant submits that the stressors of peacetime soldiering were relevant to the post-traumatic stress disorder, which was associated with the irritable bowel syndrome[73]. The Applicant submits that the irritable bowel syndrome is not caused by post-traumatic stress disorder[74]. Where there is evidence as to another work-related factor, as referred to above, then the Respondent submits in that conclusion that there is a requirement to consider whether the Applicant’s irritable bowel syndrome is an ailment that is compensable under the Act[75].
[68] Transcript 30 January 2020, P-43-45.
[69] Transcript 30 January 2020, P-36, lines 24-27.
[70] Exhibit 15, Applicant’s closing submission in reply, page 2.
[71] Exhibit 15, Applicant’s closing submission in reply, page 2.
[72] Exhibit 15, Applicant’s closing submission in reply, page 2.
[73] Exhibit 15, Applicant’s closing submission in reply, page 2.
[74] Exhibit 15, Applicant’s closing submission in reply, page 2.
[75] Transcript 30 January 2020, P-37, lines 25-30.
The Respondent submits that the diagnosis of irritable bowel syndrome was before 13 April 2007[76] and that therefore the definition of disease in the then Safety, Rehabilitation and Compensation Act 1988 (Cth) is applicable[77]:
“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.”
[76] Section 2 and Clause 41(1) of Schedule 1 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) state that the definition of disease applies in relation to an ailment or an aggravation of that ailment that an employee suffers on or after the day that that Act received Royal Assent (12 April 2007): “2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
[77] Transcript 30 January 2020, P-39, lines 9-14.
As referred to above, it is not in contention that the Applicant has an ailment, irritable bowel syndrome[78]. The Respondent submits that the irritable bowel syndrome was not contributed to in a material degree by the relevant reserve service, as referred to above, of the Applicant.
[78] Exhibit 14, Respondent’s closing submissions, paragraph 6, page 2.
In Comcare v Sahu-Khan [2007] FCA 15 at [14]-[16] per Finn J, it was relevantly stated:
“It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as “material”: see eg Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase “in a material degree” is used in the SRC Act. The legislative history of this definition makes this plain.
There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’.
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.”
As to whether the irritable bowel syndrome or the aggravation of the irritable bowel syndrome was contributed to in a material degree by the Applicant’s relevant service, the Respondent submits that the medical evidence is that the post-traumatic stress disorder was a cause but not the alone cause of the irritable bowel syndrome. The Applicant stated, as referred to above, that the irritable bowel syndrome was related to stress[79], service food[80], water consumed in service[81] and beer consumed in the Philippines[82]. The Respondent submits that the medical evidence is that the post-traumatic stress disorder exacerbated, “not alone”[83], the irritable bowel syndrome. The Applicant submits that from 1970 to 1990 he was free of irritable bowel syndrome symptoms, where the post-traumatic stress disorder is related to his operational service before that period[84]. The Applicant is referring to matters which are “pertinent” or “likely to influence” the irritable bowel syndrome[85]. There is not the “stronger causal relationship” between the employment and the ailment, where the relevant service was of ‘substantial import or much consequence’[86]. As referred to above, further, the medical evidence, which is not contradicted medically, is that the “stronger causal relationship” exists between the irritable bowel syndrome and the post-traumatic stress disorder[87]. Therefore, the ailment of irritable bowel syndrome, or the aggravation of irritable bowel syndrome, was not contributed to in a material degree by the Applicant’s relevant service.
[79] Exhibit 15, Applicant’s closing submission in reply, page 2.
[80] Exhibit 15, Applicant’s closing submission in reply, page 2.
[81] Exhibit 15, Applicant’s closing submission in reply, page 2.
[82] Transcript 30 January 2020, P-22, lines 16-21.
[83] Transcript 30 January 2020, P-36, lines 24-27.
[84] Exhibit 15, Applicant’s closing submission in reply, page 2.
[85] Comcare v Sahu-Khan [2007] FCA 15 at [15] per Finn J.
[86] Comcare v Sahu-Khan [2007] FCA 15 at [16] per Finn J.
[87] Comcare v Sahu-Khan [2007] FCA 15 at [14]-[16] per Finn J.
DECISION
The decision under review is affirmed.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
...................................[SGD].....................................
Associate
Dated: 30 April 2020
Date of hearing: 16 March 2020 Date final submissions received: 30 January 2020 Applicant: In person Solicitors for the Respondent: Mr J. Watts
Australian Government Solicitor
Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 12 April 2007
41 Application of amendment of the definition of disease (section 5B)
(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment; that the employee suffers on or after the day after this Act receives the Royal Assent.
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3
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