PRYCE and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2011] AATA 505
•22 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2466 &
VETERANS' APPEALS DIVISION ) 2010/2453 Re CRAIG PRYCE Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Dr K S Levy RFD Date22 July 2011
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ................[Sgd]....................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Military Rehabilitation and Compensation Commission - member of RAAF – Claim for acceptance of liability for duodenal ulcer and chronic simple bronchitis – Duodenal ulcer attributed to diagnosis of helicobacter pylori infection prior to RAAF service – No substantial connection between chronic simple bronchitis and RAAF service – Decisions under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 6, 14
Australian Postal Commission v Burch (1998) 85 FCR 264
Comcare v Etheridge (2006) 149 FCR 522
Hawkins v Comcare (2001) 115 FCR 127; 34 AAR 383
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Military Rehabilitation and Compensation Commission v Wall (2005) FCAFC 127
Re Hill and Etheridge and Comcare (2005) 86 ALD 90;
Roncevich v Repatriation Commission (2005) 222 CLR 115
The Commonwealth v Wright (1956) 96 CLR 536
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
REASONS FOR DECISION
22 July 2011 Senior Member Dr K S Levy RFD INTRODUCTION
1. The applicant, Craig Pryce, was formerly a member of the Royal Australian Air Force (RAAF), where he served from 18 January 1982 until his discharge on 19 January 2002.
2. Mr Pryce applied for recognition for two conditions which he says are relevant to that service. Those claims and the respective outcomes to date are as follows:
Claim 1 – 2010/2466 – Duodenal Ulcer
Claim for compensation 23 November 2009
Denied liability 28 January 2010
Requested reconsideration 2 February 2010
Decision of 28 January 2010 affirmed 10 June 2010
Claim 2 – 2010/4653 – Chronic Simple Bronchitis
Claim for compensation 16 January 2010
Denied liability 9 March 2010
Requested reconsideration 23 March 2010
Decision of 9 March 2010 affirmed 10 June 2010
3. The applicant now applies to the Administrative Appeals Tribunal for a review of both of the above decisions dated 10 June 2010 (both being reviewable decisions).
ISSUES
4. The issues to be determined by the Tribunal are:
(1)Is the Commonwealth liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth), with respect to the applicant’s duodenal ulcer?
(2)Is the Commonwealth liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth), with respect to the applicant’s chronic simple bronchitis?
THE LAW
5. The parties submitted that s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) is relevant. Section 14(1) provides:
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
6. Central to this subsection are the requirements that the applicant must have an “injury”; and it must “result in” (relevantly in this case), “incapacity for work, or impairment”.
7. An “injury” is now dealt with in s 5A of the Act as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
8. Since 13 April 2007, the terms of s 5A are the same as the former definition but the exclusionary ambit is widened. The exclusionary scope also refers to “reasonable disciplinary action” or “reasonable administrative action”, which again is not of relevance to the facts of this case.
9. Section 5A(1)(a) includes a “disease” in the definition of “injury”. This is defined in s 5B(1), and means:
a) An ailment suffered by an employee, or
b) An aggravation of such an ailment,
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth…
10. Section 5B(2) provides factors to be taken into account with respect to “significant degree”. Section 5B(3) defines “significant degree” as being “substantially more than material”.
11. A “disease” is an “injury”. The meaning of these terms is important. An “injury” is physiological damage, for example, haemorrhage or a “rupture of blood vessels” (Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310); or a thrombosis to a cerebral artery which precipitated a stroke was also an “injury” (Australian Postal Commission v Burch (1998) 85 FCR 264). The mere fact of inhalation of asbestos in the workplace is not an “injury” per se, but if it develops into Mesothelioma, it would then become a “disease” (Re Hill and Etheridge and Comcare (2005) 86 ALD 90; Comcare v Etheridge (2006) 149 FCR 522).
12. In respect of the definitional requirements, an “injury” must “arise out of” or be sustained “in the course of” the employee’s employment (s 5A) and a “disease” must be “contributed to, to a significant degree” by the employee’s employment. An injury “arising out of or in the course of employment” is statutorily defined (inclusively, but not exhaustively) in s 6(1). This includes the period while at the employee’s place of work (including recesses and travelling) for the purposes of that employment; or while temporarily absent from that place of work but undertaking an activity “associated with” that employment or at the direction or request of the Commonwealth. However, s 6(3) provides that the Commonwealth will not be liable for the circumstances in s 6(1) if the employee “…voluntarily and unreasonably submitted to an abnormal risk of injury”.
13. The term “arising out of” has been referred to by the High Court of Australia as being where “…the acts of the workman must be part of his service” (Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, cited in Roncevich v Repatriation Commission (2005) 222 CLR 115). It is intended to refer to a causal relationship or a consequential effect of the employment, which, for a senior non-commissioned officer like in Roncevich, was read widely as he was under a service obligation, albeit in a more social, diplomatic or courtesy role in a highly rank structured environment. The term “in the course of employment” refers to a temporal relationship.
14. The question will often be one of relativity, or how work related or how personally related the conduct in issue is to be able to determine whether the Commonwealth should incur liability for the compensation of a former employee’s medical condition.
EVIDENCE
15. There was considerable documentary evidence available to the Tribunal from the applicant and also from medical specialists in respect of the two claimed conditions. These are itemised below.
Applicant’s Statements
(1)Statement of 20 August 2010 (exhibit 5). This describes the applicant’s life on entry to the RAAF. It was a controlled environment in the service as a trainee. The applicant claims he was terrorised and subjected to “bastardisation”. He became a smoker two months after enlistment. He asked his father to seek his release, but his father said this training would be good for him. He noted most people around him in the RAAF smoked.
(2)Statement of 13 September 2010 (exhibit 6). This statement reiterates the content of exhibit 5 and amplifies his claim of bastardisation by air defence guards and that he smoked 40 cigarettes a day by the time he was discharged in 2002.
(3)Statement of 16 February 2011 (exhibit 7). This is the applicant’s summary of facts of chronic simple bronchitis and other comments in relation to Dr Thompson’s report. He submits that this shows a material degree of contribution by the RAAF because of peer pressure to smoke from a young age, and claims “…stress, anguish, boredom, bastardisation, abuse – both physical and mental…”. This statement reiterates the claims in exhibits 5 and 6.
(4)Statement of 16 February 2011 (exhibit 8). This is the applicant’s statement of facts about duodenal ulcer and refers to Dr Crimmins’ report. The applicant claims that cigarette smoking aggravates duodenal ulcers.
(5)Claim for depression dated 24 November 2009 (exhibit 9).
Medical Evidence
16. The following medical evidence was available:
· 1981 – exhibit 12. This notes the applicant was a non-smoker on entry to the RAAF.
· 1985 – exhibit 13. The applicant requests nicorettes as part of medical treatment.
· 1990 – exhibit 14. This notes the applicant is overweight and a smoker. His sporting pursuits include weights, touch football and swimming.
· 1991 – exhibit 15. The applicant smokes 20 cigarettes a day.
· 1992 – exhibit 16. The applicant smokes 25 cigarettes a day – nicorettes were advised.
· 1993 – exhibit 17. The applicant advised medical staff that he had stopped smoking six months earlier.
· 2001 – exhibit 11. The applicant was a non-smoker at this time.
· 2010 – exhibit 4. This is Dr Crimmins’ report. He noted anti-inflammatory drugs were used and that the applicant had also had duodenal ulcers. He stated in 1993 there were three days of significant upper abdomen pain experienced by Mr Pryce. Anti-inflammatory drugs were ceased. The applicant was then treated for helicobacter pylori. In the context of duodenal ulcer the medical records show the applicant had anti‑inflammatory drugs prescribed after 1993, perhaps for sporting injuries. The applicant was prescribed Voltaren in April 1993, but his ulcer (a three day history) was in July of that year. On page 3 of that report he is reported as having good health in the RAAF except for muscular skeletal injuries. There was no clear connection between the drugs prescribed and the applicant’s duodenal ulceration in 1993. Dr Crimmins stated that there is evidence of helicobacter infection. His opinion was that the applicant’s current upper gastro symptoms were more suggestive of gastro oesophageal reflux disease than of helicobacter pylori.
17. In paragraph 3.3 of Dr Crimmins’ report, he discusses the applicant’s duodenal ulcer and said the cause is helicobacter pylori infection. Dr Crimmins states this infection accounts for about 90% of all duodenal ulcers. His opinion refers to earlier medical literature which linked duodenal ulcers to smoking, but says this is not regarded as the current perceived wisdom. He regarded the applicant’s present condition as gastro oesophageal reflux disease. As for the duodenal ulcer which Mr Pryce had experienced previously, he stated the cause of that was from helicobacter pylori infection which Mr Pryce would have contracted as a child. Dr Crimmins also noted the applicant admitted to having depression. In the course of cross-examination, Dr Crimmins said that even if the applicant had temporal use of anti-inflammatory drugs when he also had a duodenal ulcer, it might cause exacerbation of that condition but it would disappear when he stopped taking the drugs as noted in his medical records.
18. In relation to chronic mild bronchitis, a report was provided by Dr Thompson on 16 December 2009. That report is contained in exhibit 1 (T document 5, folios 54 – 55.) The report notes a smoking history of 25 – 30 cigarettes per day and bilateral knee surgery which occurred three times. On examination, the applicant had no difficulty in breathing and no difficulty with other essential medical functions (blood pressure etc) and had a normal chest x-ray. He also noted the claim of a chronic cough must relate to chronic simple bronchitis.
19. Dr Thompson provided a second report dated 13 January 2011. He said the chronic simple bronchitis was attributable to the applicant’s smoking history.
20. There is also psychiatric evidence that he now suffers from dysthymia, a depressive condition.
CONSIDERATION
21. The applicant’s case reveals a service history of recruit training, attending apprentices school and being employed in his trade in various postings within Australia. He had no operational service overseas. He experienced stressors of interacting with others, as might be expected in the RAAF or other occupations, both as a junior airman and also as a senior non-commissioned officer. His career in the RAAF included being an active sportsman, from which he had surgery for sports injuries.
22. The applicant has made two claims, one for duodenal ulcer and the other for chronic simple bronchitis. More recently he has had prostate cancer and there is evidence that he has been depressed since leaving the RAAF. He experienced a marriage breakup which coincided with his post-RAAF life. There is psychiatric evidence that he now suffers from dysthymia. The applicant’s claim of bastardisation within the RAAF is, according to the applicant’s claims, linked to his smoking pattern and that pattern, he says, is linked directly to his duodenal ulcer and also chronic simple bronchitis.
23. The two claims made by the applicant place on him an onus of proof. That onus is accompanied by the standard of proof, which is on the balance of probabilities. Under s 14 of the Act, it must be shown that there is a liability on the Commonwealth, and to do so, the applicant must show that he has an “injury” and an “incapacity for work” or an “impairment”.
24. In relation to duodenal ulcer, Dr Crimmins’ evidence is comprehensive and striking. He concludes categorically that the applicant’s duodenal ulcer can be attributed to a helicobacter pylori infection which the applicant would have contracted as a child. The expert evidence does not regard a link to smoking as being the true cause. Dr Crimmins also did not attribute duodenal ulcer to the use of anti‑inflammatory drugs. Therefore, the medical evidence is that the etiology of duodenal ulcer results from the helicobacter pylori infection which dates back to the applicant’s childhood and has not originated during the course of service in the RAAF. Its origin clearly precedes RAAF service. Therefore, it is not an “injury” or “disease” attributable to service. Therefore the Commonwealth is not liable for this condition.
25. In relation to chronic simple bronchitis, this is a “disease” based on the Full Federal Court’s decision in Comcare v Etheridge. It is also now an “injury” as defined in s 5A(1)(a). It is attributable to the applicant’s smoking. The central question is whether that smoking is related to RAAF service. Dr Thompson found the applicant’s pulse, blood pressure and other indicia to be normal when he examined Mr Pryce in December 2009. His claim of smoking history has previously been rejected as not being attributable to stress and bastardisation during his RAAF service.
26. I have considered all of the statements and claims made by the applicant. I accept that there were, as in any occupation, stresses and influences from interpersonal interactions in the RAAF as well as other influences, particularly in his youthful and adolescent years. However, the applicant’s claims, both in his statements and in oral evidence, are particularly emotive. That of itself is not a negative factor. But the applicant’s evidence, both in his original evidence as well as in cross-examination, lacked some degree of credibility. His evidence seemed to be overly sensitive about what experience he may have had 30 years ago and its likely impact upon him. Considered objectively, the weight that should be given to the claims of bastardisation are to be reduced from an evidentiary legal perspective.
27. I was also referred to the case of Military Rehabilitation and Compensation Commission v Wall (2005) FCAFC 127 (“Wall”). In Wall the Full Court of the Federal Court was dealing with an applicant who had been a National Serviceman in the 1950s, a period which should be regarded as being quite different to the era in which the applicant served in the RAAF. At paragraph 35 the Court said that:
It should not be assumed… that compensation will be available to every former member of the Defence Force who can establish that he or she took up smoking during the military service and subsequently suffered a smoking-related accident or illness… In a case where it is concluded that the accident or illness was caused by smoking after the period of military service, it will be necessary for the person to show that he or she became so habituated to smoking, during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease. That is likely always to be a difficult case for an applicant to make good…
28. I also take account of the decision of Hawkins v Comcare (2001) 115 FCR 127; 34 AAR 383. In that case, the Federal Court stated[1]:
…that for the employment to be a contributing factor… the characteristic or feature of the employment said to constitute the contributing circumstance must involve a tendency to bring about the contraction of the disease or the aggravation, acceleration or occurrence of it. It is for this reason that Kitto J in explaining the concept of employment as a contributing factor added the qualification that an incident or state of affairs to which a worker is exposed in the performance of his duties must be one to which he would not otherwise have been exposed.
[1] At paragraph 45.
29. In considering the contributory nature of service in the applicant’s case, it is noted he enlisted in 1982. I was referred also by the Respondent’s Counsel to Defence Instruction (General) PERS 39-1 issued on 14 October 1988, where the Defence Policy was to achieve a smoke-free working environment and noted the service should educate personnel to minimise the use of tobacco. It prohibited smoking in certain areas within the service. That Defence Instruction (General) was amended in November 1989 and proposed that the scope of work areas which were to be smoke free were to be extended by 1 July 1990. That Defence Instruction (General) was re-issued yet again on 30 June 1995 which was more positively worded in its expectation of reduction and inhibition of smoking in its employees. I note that in the Instruction in 1988, the Defence Policy was, even at that stage, that the RAAF was to achieve a smoke-free working environment in areas which would endanger health or safety of personnel, including areas pertaining to “service aircraft” (see paragraph 5(f)). When the Instruction was re-issued in 1995, those Instructions were also influenced by the statutory pronouncements contained in the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth); in the Defence Instructions (General), there was a total ban on smoking near “areas containing flammable or explosive material” (paragraph 7i); “Service aircraft” (paragraph 7j); and “Defence workplaces… with recirculating air-conditioning systems” (paragraph 7l). I note also in the 1995 Defence Instruction (General), smoking was permitted in outdoor environments only where there was a substantial concentration of fresh air and, in particular, where “there are no flammable or other hazardous substances present” (paragraph 8c).
30. It would be surprising that smoking might have been acceptable in the workplace if personnel were working around aircraft fuel and aircraft more generally... Even if permitted, then there would have been some serious restrictions on smoking in those working environments. One would also expect that there might be serious restrictions in work practices well before the introduction of the Defence Instruction (General). Also, as a Non-Commissioned Officer, and later as a Senior Non-Commissioned Officer, one might expect that not only might there have been some educational material available, but that the workplace procedures would have demanded some minimisation of smoking in such workplaces and would have required supervisors such as Senior Non-Commissioned Officers to enforce such practises in subordinates. For those reasons the applicant’s evidence must be regarded with some scepticism, although that does not negate the likelihood of heavy smoking behaviour in the applicant’s non-work hours.
31. The reference by the applicant to the availability and encouragement of smoking in the RAAF must be seen in the context of cheap cigarettes often being characteristic of those earlier periods. The availability of cheap cigarettes ceased sometime after 1972 when the Whitlam Government introduced the concept of military salary and servicemen’s remuneration was aligned to that of persons in the workforce. This was in the era of the new Defence Force Retirement and Death Benefit legislation which commenced on 1 October 1972[2]. I can find no recent or relevant epidemiological evidence which points to or assists with the question of smoking amongst members of the RAAF generally or specifically for those in Mr Pryce’s employment grouping in the RAAF.[3] There is some evidence of a decline in the incidence of smoking in the civilian population and similar trends in the military population, although there is evidence of a higher proportion of ex-veterans smoking than in the civilian population[4]. None of that assists the applicant’s case. The respondent submitted that in the 1980s and beyond, there was a different environment entirely to earlier periods where service personnel were regarded as being affected by smoking, particularly in former periods of World War II and the Vietnam War. I accept that submission.
[2] The Report of the Review into Military Superannuation Arrangements presented to the Minister Assisting the Minister for Defence dated 31 July 2007 accessed at Barton, C.A et al, “Smoking Prevalence, Its Determinants and Short Term Health Implications in the Australian Defence Force” Military Medicine, 2010, 4:267 – 272.
[4] Klevens RM, Giovino GA, Peddicord JP. (1995). The association between veteran
status and cigarette-smoking behaviors. Am J Prev Med Vol 11 pp 245 – 50; Kroutil LA, Bray RM and Marsden ME (1994). Cigarette smoking in the U.S. Military: findings from the 1992 worldwide survey. Preventive Medicine, Vol 23 pp 521 – 528. Cited in Final Report of the Expert Panel to Review SAS Veterans’ Health Concerns, December 2003.
32. Complementing those factors is the fact the applicant in this case was a tradesman working in a fixed establishment environment for the whole of his career and did not serve in any operational area where increased stress and potential life-threatening circumstances arose. Therefore, his service history is to be differentiated from earlier times and cases where the stressors and consequential effects of smoking can be more directly linked to employment, as referred to in Hawkins and Comcare (supra). It can be seen that some of the applicant’s smoking occurred at work. He had a long period of service with the RAAF. That provides a temporal relationship. Compensation is not payable where a Commonwealth employee (in the Civil Service or Defence Service) claims he is always in employment or service: see Commonwealth v Wright (supra at 551). A claim for injury which is said to have “arisen out of” employment must look at the pragmatic requirements of a person’s job, not merely what is formally required in a duty or role statement [see Roncevich at [18] referring to Heerey J in Roncevich v Repatriation Commission (2003) 37 AAR 396 at 406 – 407]. The applicant’s duty (broadly as conceptualised in Roncevich) does not point to any aspect of his defence service which might, according to the required standard of proof, point to initiating smoking or his chronic simple bronchitis.
33. For the condition of chronic simple bronchitis to be “in the course of” employment, the applicant must satisfy the test of whether he “was doing something he was reasonably required, expected or authorized to do in order to carry out his duties” (Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133). The era in which the smoking occurred and the work environment as submitted does not reveal any sufficient connection with any role that Mr Pryce was “reasonably required, expected or authorized to do” officially.
34. I have considered also whether the workplace factors could be seen to have caused chronic simple bronchitis or contributed to it “to a significant degree”. The applicant points to social and psychological factors during his service which he says caused stress leading to this condition. I have rejected this relationship on the basis of the legal requirements and that the applicant’s credibility has reduced the weight of evidence. I cannot find a contribution of the workplace “to a significant degree” in the development of this condition.
35. As there was no real “connection” with the applicant’s official duties or substantive connection between his workplace and the conditions he now suffers from, a link to employment and therefore liability of the Commonwealth cannot be established (The Commonwealth v Wright (supra)). I find that the onus of proof of establishing stress in the workplace has not been corroborated in any respect.
36. I therefore find that both of the conditions claimed did not “arise out of” or “in the course of” employment, nor can they be regarded as being directly attributable to the applicant’s service in the RAAF. Also, any connection could not be regarded as one of “significant degree or being substantially more than material”. Therefore, in the circumstances these claims must fail.
DECISION
37.The decisions under review are affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD
Signed: ............[Sgd]...........................................................
AssociateDate/s of Hearing 26 & 27 May 2011
Date of Decision 22 July 2011
The Applicant was self represented
Counsel for the Respondent Charles Clark
Solicitor for the Respondent Matthew Hawker, Sparke Helmore Lawyers
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