PILAN and MILITARY REHABILITATION & COMPENSATION COMMISSION

[2011] AATA 426

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 426

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5674

VETERANS'  APPEALS DIVISION		)
Re		ANDREW PILAN

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date22 June 2011

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

WORKERS COMPENSATION – employment with the Australian Regular Army – diagnosis of schizophrenia – medical evidence that no causal connection with Army service – employment found not to be a contributing factor – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988, s 124

Compensation (Commonwealth Government Employees) Act 1971, s 29

Administrative Appeals Tribunal Act 1975, s 34

Treloar v Australian Telecommunications Commission (1990) FCR 316

REASONS FOR DECISION

22 June 2011 Ms A F Cunningham (Senior Member)   

1.Andrew Pilan, the applicant, seeks the review of a decision made by the Military Rehabilitation and Compensation Commission (the respondent) which rejected his claim for compensation.  Mr Pilan contends that he sustained an illness which affected his head during the course of his employment with the Australian Army which occurred during his detention in army cells at Kapooka, that he was “left without proper medical attention …” and treated “… badly”. 

2.On the basis of medical reports, the claim was treated as a claim in respect of schizophrenia and was rejected by a delegate of the respondent.  This determination was affirmed on review on the basis of a lack of causal connection between the condition and Mr Pilan’s military service.  

3.Mr Pilan appeared on his own behalf before the Administrative Appeals Tribunal (the Tribunal) and gave oral evidence. The respondent tendered the T Documents pursuant to section 34 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and called Dr Ian Sale, consultant psychiatrist, to give evidence.  Dr Sale had also written two medical reports dated 10 March 2011 and 13 April 2011 which were included in the T Documents. 

4.Mr Pilan enlisted in the Australian Regular Army (ARA) on 21 October 1986.  He claims that he sustained “an illness” which affected his head whilst detained in the army cells at Kapooka.  The records indicate that Mr Pilan was detained overnight in the army cells on 28 October 1986 and then transferred to a military hospital for a period of two days.  On 30 October 1986 he was admitted to the Waratah House Psychiatric Unit of the Campbelltown Hospital and discharged on 14 November 1986.  Mr Pilan was discharged from the ARA as medically unfit on 11 November 1986 with a diagnosis of paranoid schizophrenia. 

5.Mr Pilan’s claim for compensation dated 10 March 2009 is made under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  As the claim relates to an injury allegedly sustained prior to the commencement of the SRC Act, the transitional provisions of the SRC Act are relevant and specifically section 124 which provides that a person is entitled to compensation under the Act if compensation would have been payable in respect of the injury under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act):

“29. (I) Where-

(a)       an employee contracts a disease or suffers an aggravation,

acceleration or recurrence of a disease; and

(b)        any employment of the employee by the Commonwealth was a

contributing factor to the contraction of the disease or to the

aggravation, acceleration or recurrence, as the case may be,

whether or not the disease was contracted or the aggravation,

acceleration or recurrence was suffered in the course of that

employment,

the succeeding provisions of this section have effect”.

ISSUES

6.The issues for the Tribunal to determine are:

1.Whether on or about 28 October 1986 the applicant contracted a disease or suffered an aggravation, acceleration or occurrence of a disease; and

2.Whether his army service was a contributing factor to the contraction of the disease or its aggravation, acceleration or occurrence and suffered in a course of his employment.

THE EVIDENCE

7.Mr Pilan stated that he had suffered no previous injury or experienced any related illness prior to his enlistment with the ARA on 21 October 1986.  Mr Pilan said that after leaving school he worked for Myer in Hobart and was a member of the Army Reserves for some five years.

8.It was Mr Pilan’s evidence that he first developed symptoms during exercise in the army gym.  He described a rope climbing exercise which he successfully achieved but on the way down he was instructed to “go behind the back wall” and told to lie down.  He said that “something happened there” and that “they attacked me”.  The instructor referred to a scar on his arm which he rubbed with sandpaper and then indicated that Mr Pilan was “suicidal”.  Mr Pilan maintained that nothing is wrong with his memory and that he was then “dragged off” and” thrown” into the back of an ambulance.  He was taken to a medical centre where he was checked by nurses at a “fast pace” and told by the instructor that “you’ve done it now”.  He was informed by a psychiatrist that he had thrown things across the room and he was then placed in “the cells” which he said were not attached to the hospital. 

9.Mr Pilan alleged that he was detained in the cells for a period of four days.  He claims to have been neglected in that he was not properly fed or provided with adequate bedding or bathing opportunities and further, that there was no lighting in the cell.  He also made reference to a four inch nail in the cells and that things “got a bit rough”.

10.Mr Pilan maintained that after four days he was taken to another medical facility and then to a psychiatric facility known as Waratah House where things “got nasty”.  He claims that there he was “whacked with a needle” on several occasions and it was alleged that he had heard voices which he disputed. 

11.Mr Pilan disputes that he suffers from schizophrenia and maintains that he has a stress disorder. 

12.Mr Pilan said that was initially unemployed after leaving the army but subsequently obtained employment at the Caltex service station as a driveway attendant from November 1986, as a printer assistant with Vizyboard between April 1988 and October 1989 and as a car cleaner for Performance Automobiles between October 1990 and November 1992.  He then worked as a clerical assistant with the Department of Community Services for a short period. 

13.In his report of 10 March 2011, prior to seeing Mr Pilan but on the basis of the documentary material provided by the respondent’s solicitor, Dr Sale considered the most likely diagnosis of Mr Pilan’s condition to be schizophrenia.  Dr Sale subsequently saw Mr Pilan on 12 April 2011 and in his evidence before the Tribunal, confirmed the diagnosis of schizophrenia.  Dr Sale pointed out that it would not have been appropriate to make a specific diagnosis of schizophrenia in the early stages of Mr Pilan’s psychotic episodes in that a person needs to be symptomatic for more than a month before schizophrenia can be properly diagnosed.

14.In his first report Dr Sale concluded that on or about 28 October 1986 Mr Pilan had contracted a mental disorder although he noted references to him waking recruits on a few nights beforehand which suggested that the onset of his symptoms may have been a little earlier.

15.Dr Sale agreed with Dr Weidmann’s statement that the aetiology of schizophrenia is essentially unknown.  He noted that there are some established risk factors including genetic risk, substance abuse or events causing some form of compromise to a developing central nervous system.  He said that there is evidence that adverse life events can have a role in the precipitation of schizophrenia and that they can bring forward in time the onset of schizophrenia. 

16.Dr Sale did not consider however that Mr Pilan’s enlistment in the regular army would constitute a major stressor in that he had chosen to enlist rather than being conscripted and had had prior experience in the army reserves. 

17.Dr Sale did not believe that Mr Pilan’s detention in the guardhouse overnight “had any material influence on the course of his condition”, but rather that he was in the guardhouse as a consequence of his condition.  Dr Sale considered that if entering the army was a precipitant for Mr Pilan’s schizophrenia, it was likely to have caused the earlier onset of the illness than would have otherwise occurred.  The records suggest that the occurrence on or about 28 October 1986 was the first acute psychotic episode which then went into partial remission only to resurface about three years later. 

18.Dr Sale went on to state that schizophrenia is not an uncommon illness and occurs in approximately one per cent of the population and must begin somewhere.  That does not mean, he said that the circumstances in which it occurs are in some way causal and it may be entirely coincidental that Mr Pilan became ill at that particular time. 

19.Dr Sale referred to the body of research regarding the impact of significant life events which found that whilst not causal of schizophrenia, might bring the onset of the condition forward in time.  The list of these life events were assigned numerical numbers in order of significance with the highest rating being given to the loss of a spouse, other significant events being a significant deterioration of health and less significant commencing a new job, moving house and so forth.  Dr Sale did not consider that the commencement of Mr Pilan’s army service would constitute a significant life event in that he had already been involved in the army reserves and had experienced life away from home and the training involved.  He considered that Mr Pilan was most likely already predisposed to schizophrenia which would have developed in any event.

20.Dr Sale was asked whether he was able to opine as to the cause of Mr Pilan’s schizophrenia and he replied no, as there are no known risk factors such as known family history or substance abuse.  Nor did Dr Sale consider that there was evidence of any obvious stressful events that could have contributed to the onset of schizophrenia.  The mere fact that it occurs in a particular environment does not mean that the factors of that environment either caused or contributed to the onset of schizophrenia.  Instead they may merely be the setting for the development of the condition.  Dr Sale pointed out that the research studies have shown that even the occurrence of significant social events such as those referred to above, were not considered to be causal of the disease but merely brought forward its onset. 

21.Dr Sale’s opinions are consistent with the opinions of other medical experts whose reports are contained in the T Documents.  Major C Castles (for Director General Army Health Services) in a letter dated 30 January 1987 stated that “… it is probably reasonable to assume that the predisposition to schizophrenia was present on entry to the army.  This condition was not materially aggravated by his defence force service”.  In Dr Dick’s report of 8 May 1987 he states that the “the potential for developing a psychotic illness undoubtedly existed before (the applicant’s) entry to the army” and said that it was a possibility that “his defence force service may have been a factor which exposed the underlying threshold for the development of a psychotic illness”.

DISCUSSION

22.I was referred to a decision of the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission (1990) FCR 316 which determined an appeal involving the construction of the terms of section 29 of the 1971 Act. The Court looked at the extent of the causal connection between the claimed condition and a claimant’s employment conditions and specifically how a person’s employment can be a “contributing factor” to the contraction of the disease within the meaning of section 29 of the 1971 Act. The current definition of “disease” requires that it be contributed to “a significant degree by the employee’s employment” (section 5B of the SRC Act).   The Full Court decided that despite the absence of the word “material” in the 1971 provision, what is required to establish the causal link is an exposure to a state of affairs to which an employee would not otherwise have been exposed and that such exposure was a contributing factor to the condition.  Further, that it did not matter whether the contribution was of any particular size or degree.  The Court went on to state that the causal connection needed to “be established on the probabilities and not left in the area of possibility or conjecture“ (page 323).  As stated earlier, the necessary causal link is to be established on the basis of the expert evidence. 

23.In the present case there is an absence of expert evidence to satisfy the Tribunal on the balance of probabilities that any of the circumstances of Mr Pilan’s employment and in particular, the circumstances of his detention in the guardhouse and or admission to the medical facilities, contributed to the onset or development of his schizophrenia.  There is no expert evidence or any other persuasive evidence which satisfies the Tribunal that there was some characteristic or condition of his employment and specifically his detention in the guardhouse and subsequent medical treatment that contributed to the onset of the condition.  The expert medical opinion was that Mr Pilan had already exhibited symptoms of schizophrenia prior to the incident in the gym and his subsequent detention.  As Dr Sale said he was most likely already “teetering on the edge” of developing the condition and the incidents as described, simply brought the onset of the condition forward in time. 

24.The Tribunal does not accept Mr Pilan’s contention that he was badly treated whilst detained in the army cells.  Mr Pilan was confused as to the length of time that he spent in the cells which the documentary evidence indicates was only overnight rather than the four days that Mr Pilan claimed.  The documentary evidence also suggests that Mr Pilan was confused and quite unwell during this period of time and despite his contention that he had no problems with his memory, his evidence with respect to these events was confusing and unclear.  There was no persuasive evidence that any of his treatment during this period was unsatisfactory or inappropriate. 

25.For the above reasons the Tribunal is satisfied that Mr Pilan’s brief army service was not a contributing factor within the meaning of section 29 of the 1971 Act but merely provided the setting in which the condition manifested itself.  The Tribunal accordingly affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:      R Hunt  Associate

Date/s of Hearing  25 May 2011
Date of Decision  22 June 2011
Solicitor for the Applicant          Applicant on his own behalf
Counsel for the Respondent     Ms C Dowsett
Solicitor for the Respondent     Mr D Wilson, Australian Government Solicitor