RADOVAN PILJIC and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2012] AATA 794

[2012] AATA 794 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/2525
Re	RADOVAN PILJIC
APPLICANT
And	MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	14 November 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

COMPENSATION – Claim for compensation for hiatus hernia and gastro oesophageal reflux disease – Claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Relevance of the Commonwealth Employees Compensation Act 1930 (Cth) and the Compensation (Commonwealth Employees) Act 1971 (Cth) – No medical evidence in support of claim – Decision under review affirmed

LEGISLATION

Commonwealth Employees Compensation Act 1930 (Cth) ss 9, 10

Compensation (Commonwealth Employees) Act 1971 (Cth) ss 27, 29

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 124

REASONS FOR DECISION

Mr R G Kenny, Senior Member

14 November 2012

BACKGROUND

1. On 20 October 2010, a delegate of the Military Rehabilitation and Compensation Commission (“MRCC”) determined that Radovan Piljic’s hiatus hernia and gastro-oesophageal disease (“GORD”) were not related to his Commonwealth employment which comprised service with the Royal Australian Air Force (“RAAF”) from 21 March 1966 until 20 March 1978. In particular, it determined that the conditions were not causally related to that service by the following matters raised by Mr Piljic: an injury in a motor vehicle accident in 1974; an injury from assault; cigarette smoking; excessive alcohol consumption; and an injury from testing of an ejector-seat. Accordingly, the MRCC determined that there was no liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for those conditions. That decision was affirmed on 2 May 2011 by an MRCC delegate who considered Mr Piljic’ claims in respect of the matters listed above as well as a motor vehicle accident in 1966. Mr Piljic now seeks review of that decision.

   ISSUES AND LEGISLATION

2. The 1988 Act makes provision for compensation to be paid by the Commonwealth in relation to work-related injuries where the injury or disease occurred after 1 December 1988. This was the commencement date of the 1988 Act which contains transitional provisions pertaining to injuries or diseases that occurred prior to that date.[1] It is not in dispute that the legislation relevant to Mr Piljic’s claim is the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”) or the Compensation (Commonwealth Employees) Act 1971 (Cth) (“the 1971”). This is because he has claimed that his hiatus hernia and GORD were caused by service-related matters that occurred from 1966 onwards and before the commencement of the 1988 Act.

   [1] See s 124 of the 1988 Act.

3. Where a condition arose prior to the commencement of the 1988 Act, s 124 of that Act provides that compensation is not payable unless it would have been payable under the Act in force at the time of the injury or disease. That requires compliance with the notice requirements in the 1930 Act and the 1971 Act. Under the 1930 Act, liability for an injury requires that it arose out of or occurred in the course of Mr Piljic’s employment with the Commonwealth.[2] Under that Act, liability for a disease requires that it was due to the nature of the employment in which Mr Piljic was engaged by the Commonwealth.[3] Under the 1971 Act, liability for an injury requires that it arose out of or occurred in the course of Mr Piljic’s employment with the Commonwealth.[4] Under that Act, liability for a disease requires that Mr Piljic’s employment have contributed to it.[5]

   [2] See s 9(1) of the 1930 Act.

   [3] See s 10(1) of the 1930 Act.

   [4] See s 27(1) of the 1971 Act.

   [5] See s 29(1) of the 1971 Act.

4. Mr Charles Clark, for the respondent, conceded that the relevant notice requirements under the 1930 Act and the 1971 Act have been complied with. I am satisfied that his concession was properly made.

   SUBMISSIONS

5. Mr Piljic submitted that the trauma associated with motor vehicle accidents in 1966 and 1974, each of which occurred while he was returning to the RAAF station at which he was based, as well as that associated with his testing of an ejection seat mechanism and being physically assaulted were responsible for his hiatus hernia and GORD. He also submitted that he developed cigarette and alcohol consumption habits during and because of his service in the RAAF and that the effects of these contributed to the development of his hiatus hernia and his GORD. Further, he submitted that those traumas and consumption habits aggravated an underlying hiatus hernia and GORD. Mr Piljic was not able to present any evidence from a medical practitioner which supported his claims. However, he submitted that his on-line searches had identified supportive literature. These included articles in the Yale Journal of Biology and Medicine[6], the US Library of Medicine at the National Institute of Health[7] and in Alimentary Pharmacology and Therapeutics[8].

   [6] “The Role of Hiatus Hernia in GERD” by Mr P J Kahrilas in Yale Journal of Biology and Medicine, 72 (2-3) (1999) Mar-Jun, pp. 101-111; “Defining GERD” by Stephen J Sontag in Yale Journal of Biology and Medicine 72 (1999), pp. 69-80.

   [7] “Acid-induced esophageal shortening in humans: a cause of hiatus hernia?” by D P Dunne and W G Paterson in Canadian Journal of Gastroenterol, 2000 Nov, 14 (10): 847-50

   [8] “The Role of the hiatus hernia in gastro-oesophageal reflux disease” by C Gordon. J Y Kang, P J Neild and J D Maxwell, Alimentary Pharmacology & Therapeutics, vol. 20, issue 7, pp. 719-732, October 2004.

6. Mr Clark did not dispute the diagnoses of Mr Piljic’s hiatus hernia and GORD or that Mr Piljic was involved in motor vehicle accidents, assaults and ejection-seat testing. Neither did he dispute Mr Piljic’s consumption of cigarettes and alcohol. He submitted that there was no medical evidence to support any of Mr Piljic’s contentions about a relationship of his claimed conditions to his RAAF service and that the literature Mr Piljic referred to was speculative and unrelated to his personal circumstances. Mr Clark submitted that the specialist medical opinion of Dr Peter Whiting was that none of the factors described by Mr Piljic contributed to the development or aggravation of his claimed conditions. He submitted that the decision under review ought be affirmed.

   EVIDENCE AND CONSIDERATION

7. Mr Piljic’s service records confirm that he was involved in motor vehicle accidents in 1966 and 1974 and it is not in dispute that, at the relevant times, he was returning to his RAAF posting. A hospital record on 6 June 1966 identified a motor vehicle accident at that time and noted that Mr Piljic injured his ribs and suffered no loss of consciousness. A medical summary for 11 and 12 December 1974 confirmed that Mr Piljic was admitted to hospital for observation for one night after another motor vehicle accident when returning to his RAAF posting. A diagnosis of minor bruising to the right shoulder, abdomen and right shin were noted. There is no record of Mr Piljic’s involvement in the testing of ejection-seat mechanisms but he described a sudden acceleration as the seat projected him upwards and an associated feeling of trauma to his body. His evidence was that he did not report any injury associated with the ejection-seat procedures which occurred on two occasions.

8. Mr Piljic’s service documents provide no record of his being assaulted. His evidence was that he was teased and victimised by other airmen from time to time and that this resulted in his being pushed into walls and doors and from his bed. He referred to a culture in the RAAF whereby disclosure of assaults of those kinds was not made. His evidence was that he was given medical treatment on occasions where he described the incidents of assault in terms of accidental falls. A medical record in August 1966 reads: “slipped and fell struck face and nose; no LOC; some swelling around nasal bone”. On 19 December 1967, a record describes Mr Piljic, on the previous night, jumping off his bed and jamming his back between the shoulders, noting that it was “painful then – better now”. On 22 October 1971, a record described Mr Piljic as falling and hitting his back on a door with resultant tenderness in the 8^th rib and a provisional diagnosis of bruising. Mr Piljic’s evidence was that he developed patterns of alcohol consumption and cigarette smoking during his RAAF service in part because of peer pressure and the teasing that he underwent.

9. Following his complaint of pain and nausea in early 1975, Mr Piljic underwent a barium meal on 18 February 1975 which revealed a “reducible hiatus hernia”. Gastroscopies on 27 July 1999 and 12 June 2001 again recorded the hiatus hernia. The presence of reflux in January 2002 led to Mr Piljic being considered as suitable for a fundoplication procedure. His general practitioner, Dr Prit Sandhu, referred him to Dr David Gotley, gastrointestinal and soft tissue surgeon, who noted a 10 year history of reflux. Dr Gotley performed the fundoplication for Mr Piljic’s reflux on 15 April 2002 and reported a good post-operative recovery. In May 2002, Dr Gotley reported that Mr Piljic’s reflux was very much eased at that stage. In September 2002, Dr Gotley noted that Mr Piljic had a persistent cough but he considered that this was not entirely due to reflux. Mr Piljic saw Dr David Careless, physician, on 13 August 2003 in relation to his cough and Dr Careless reported on 15 August 2003 that his cough may still reflect low volume gastric reflux or perhaps post-nasal drip.

10. No reports relating to the causation of Mr Piljic’s claimed conditions by the means outlined above by him were provided by Dr Sandhu, Dr Gotley or Dr Careless. A report was completed by Dr Derwin Williams, gastroenterologist, on 18 January 2012. His opinion was that it was “very unlikely” that Mr Piljic’s hiatus hernia was related to any event during Mr Piljic’s service but that his smoking and drinking could have contributed in some degree to his GORD. Dr Williams made it clear that his report was not a formal assessment of any of Mr Piljic’s claims.

11. Dr Peter Whiting, gastroenterologist, prepared three reports in relation to Mr Piljic and his claimed conditions and also gave evidence. In his first report, dated 14 September 2009, he set out the history of symptoms and treatment of Mr Piljic for his hiatus hernia and reflux, noting that he had commenced on Mylanta in 1975 and then, from 1992, was on Losec for 10 years. In his oral evidence, he said that the treatment given to Mr Piljic for his hiatus hernia and GORD while in the RAAF was appropriate at that time. Dr Whiting considered that there was no relationship between Mr Piljic’s service and his hiatus hernia or GORD. In his second report, dated 5 October 2010, he concluded that the primary aetiology of hiatus hernia was thought to be degeneration of the phrenoesophageal ligament. His opinion was that there was little supporting evidence to support a relationship between cigarette smoking, alcohol consumption, ejection-seat testing or injury in a motor vehicle accident and the development of hiatus hernia. In his final report, dated 18 November 2011, Dr Whiting reviewed each of the causal associations claimed by Mr Piljic and confirmed his opinion that they neither caused nor aggravated his hiatus hernia. He also opined that Mr Piljic’s history of symptoms of GORD was such that it was consistent with being due to his hiatus hernia. Dr Whiting’s final report referred to the on-line material provided by Mr Piljic. He confirmed that his opinions were based on his reading of the relevant medical literature, his training in the diagnosis and treatment of gastroenterological diseases and his professional expertise in the specialty.

12. In his evidence, Dr Whiting confirmed his opinions and noted that, for trauma to cause an hiatus hernia, it would have to be very severe with major consequences to the person such as a ruptured spleen and probable damage to the diaphragm at the time. He said that it would be trauma of a kind that would see the person placed in intensive care. He described such a level of trauma as having been evidenced by him only once in his 12 years of specialty practice.

13. I have noted the evidence of Dr Williams who considered that it was unlikely that hiatus hernia was related to Mr Piljic’s service. I see his statement that GORD could be contributed to service through smoking and alcohol consumption. However, that is clearly a speculative opinion and I note that he was reluctant to make a formal assessment of any of Mr Piljic’s claims. Of particular significance in this matter is the evidence of Dr Whiting. His opinions were unequivocal and leave me reasonably satisfied that Mr Piljic’s claimed conditions are unrelated to his service in the RAAF.

    DECISION

14. The Tribunal affirms the decision under review.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

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Associate

Dated 14 November 2012

Date of hearing	6 November 2012
Applicant	In person
Counsel for the Respondent	Mr Charlie Clark
Solicitors for the Respondent	Dibbs Barker