RAYMOND MOSS and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2012] AATA 301

[2012] AATA 301 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/1114
Re	RAYMOND MOSS
APPLICANT
And	MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT

DECISION

Tribunal	Senior Member Dr K S Levy, RFD and Dr G J Maynard, Brigadier (Rtd), Member
Date	18 May 2012
Place	Brisbane

The Tribunal affirms the decision under review

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Senior Member Dr K S Levy, RFD

CATCHWORDS

VETERANS AFFAIRS – Compensation – Exposure to benzene during RAAF service – Chronic lymphocytic leukaemia – Statutory presumption that disease service caused – Reverse onus of proof – No significant nexus of causation between chronic lymphocytic leukaemia  and benzene exposure – Decision under review affirmed   

LEGISLATION

Evidence Act 1995 (Cth) s 79

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 7, 14

Safety, Rehabilitation and Other Legislation Amendment Act 2007 (Cth) 

CASES

Australian Telecommunication Commission v Barker (1990) 12 AAR 490

Lees v Comcare (1999) 56 ALD 84
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

REASONS FOR DECISION

Senior Member Dr K S Levy, RFD and Dr G J Maynard, Brigadier (Rtd), Member

18 May 2012

INTRODUCTION

1. The applicant, Raymond Moss served in the Royal Australian Air Force (RAAF) for 12 years from 1950 to 1962. His duties required undertaking daily servicing and refuelling of aircrafts. After his discharge, he worked in other capacities until 1982 when he retired after suffering heart and back problems. He was diagnosed with chronic lymphocytic leukaemia (CLL) in 1998. He made application to the respondent for workers’ compensation on 20 February 2003 on the basis that his CLL was related to his RAAF service. The respondent determined, on 20 October 2003, that it was not liable for this condition. That decision was reviewed and the original decision was affirmed on 26 November 2003.

2. Over seven years later, Mr Moss made application for an extension of time to have the decision of 26 November 2003 reviewed by this Tribunal. Following a number of interlocutory matters, the matter commenced hearing on 25 January 2012. Early in that hearing, the parties informed the Tribunal that Mr Moss had more recent empirical medical evidence which the respondent and the Tribunal had not had the opportunity to see or consider. The respondent requested an adjournment so that its independent expert could provide an assessment of this new evidence. It was agreed that the matter should be adjourned and, following other negotiations, the parties agreed the matter could be heard on the papers taking account of all of the evidence lodged with the Tribunal, including the applicant’s fresh evidence as well as the further report by the respondent’s expert, when that was received.

   THE ISSUES

3. The respondent has submitted that the issues for determination are as follows:

   1.   Was the applicant exposed to chemicals, in particular benzene, at any time during his former military service during the period 1950 -1962?

   2.   If ‘yes’ to (1), can exposure to chemicals, in particular benzene, during the applicant’s former military employment result in CLL?

   3.   If ‘yes’ to (2), does the applicant suffer from CLL?

   4.   If ‘yes’ to (3), has the applicant’s CLL condition been materially contributed to by his former military service?

4. I will regard these as the issues for determination as no objection was made by the applicant and the parties subsequently agreed to have the matter determined on the basis of the written material lodged with the Tribunal.

   EVIDENCE

5. Mr Moss was born on 14 October 1931 and is now 80 years of age. He was accompanied by his daughter at the initial hearing and she has been a support person for him in the deliberations between the parties since the initial hearing. Mr Moss served with the RAAF from March 1950 to March 1962 and was discharged at his own request.

   Mr Moss’ Employment in the RAAF

6. Mr Moss did recruit training and initial employment training between 1950 and 1952. He was employed to do daily servicing of aircraft and to refuel aircraft before any flying tasks. This involved sitting on the wing of an aircraft for an hour or more to fill its fuel tanks.

7. In November 1952 he was posted to Japan and was there for the duration of 1953 also, with the exception of four months where he served in Korea. He was posted back to Australia in 1954 and stationed in Melbourne initially. He later served in Number 1 Bomber Squadron in Malaya and Singapore, also undertaking similar duties of servicing and refuelling aircraft. On return to Australia, he served at RAAF base Laverton and then at RAAF Fairbairn in Canberra.

8. I note Mr Moss subsequently left the RAAF in 1962, obtained a geology diploma from RMIT and worked for the Victorian Government until 1966. He was then employed by the National Museum of Victoria, CSIRO, and then with Associated Minerals Australia from 1967 until his retirement.

9. Mr Moss states that his condition of CLL is attributable to his service in the RAAF. He provided a statement, dated 16 October 2011, and refers there to a study by the petroleum industry, which he says reported a risk of CLL and other forms of leukaemia when there has been exposure to benzene for periods of 4.3 to 43 years.

10. In his statement of 8 February 2012, Mr Moss referred to (and attached to his statement), evidence reported in professional journals dealing with a link between exposure to benzene and leukaemia. A report by the applicant’s treating doctor, Dr Greg Seeley, Clinical Haematologist, was also enclosed.

    The Medical Evidence

11. In the original application lodged in 2003, there was a report by Dr Olsen, Mr Moss’s treating specialist at that time. Dr Olsen diagnosed Mr Moss with CLL in 1998. He provided a report to accompany Mr Moss’s application but that was not, ultimately, of great assistance to the outcome of the application. Dr Olsen’s report, dated 13 June 2003, stated, inter alia:

    … [my] understanding of it is that there has been no direct linkage between exposure to benzene and petroleum products and the development of chronic lymphatic leukaemia. Whilst there has been an increased number of patients with leukaemia diagnosed after exposure to these agents these cases have been myeloid with no clear increased risk of a lymphoid malignancy (T-document 9, folio 55).

12. The assessment of the application in 2003 also considered the report by Dr Carroll, whose opinion was sort from the respondent. Dr Carroll was described as a specialist in internal medicine and toxicology. His report, dated 15 October 2003, accepted Mr Moss had CLL and a number of other conditions, including hypertension, ischemic heart disease and peripheral-vascular disease. At that time, his opinion was that given the uncertain state of knowledge which could establish a link between benzene and CLL, it was unlikely that the condition could be attributable to the applicant’s RAAF service. Dr Carroll reported:

    ·Some studies found 20 years after exposure, the ongoing relationship between CLL and benzene exposure was “minimal” (T-document 11, folio 91); and

    ·The Health Watch Study identified a limit of 15 years in the “relationship between benzene exposure and CH cancer incidents” (T-document 11, folio 96).

13. On that basis the first application was rejected as the expert evidence did not accept that there was a link as claimed.

14. In relation to the review currently placed before this Tribunal, Mr Moss provided a report by Dr Greg Seeley dated 30 September 2011, where he says:

    The aetiology of chronic lymphocytic leukaemia is not known but given that Mr Moss was exposed to a leukaemogenic molecule it is possible that his benzene exposure was aetiologically involved in the development of his CLL despite the long latency period from 1962 to 1998.

15. Dr Carroll has recently provided comment on Dr Seeley’s report and the article based on a study submitted by Mr Moss which was reported in Epidemiology,[1] which discusses a number of confounding variables to these studies. However, the article concludes as follows:

    In summary, these data demonstrate a strong association between benzene exposure and the risk of acute and chronic leukaemia. No association was found between benzene and non-Hodgkin’s lymphoma or multiple myeloma, or between any of the cancers and tobacco for alcohol consumption. The excess risk of leukaemia was associated with lower cumulative exposures and lower exposure intensity than have been observed in other studies. We found no evidence of a threshold cumulative exposure below which there is no risk.

    [1] Glass, D. C., Gray, C. N., Jolly, D. J., Gibbons, C., Sim, M. R., Fritschi, L., Adams, G. G., Bisby, J. A. and Manuell, R. (2003), “Leukemia [sic] risk associated with low-level benzene exposure”, Epidemiology, vol. 14(5), September 2003, pp. 569-577.  

16. Dr Carroll’s latest report of 12 March 2012 comments on that article and the other material submitted recently by Mr Moss. The respondent submits that the relevant extracts of Dr Carroll’s report are as follows:[2]

    Review of the literature since my report in 2003 does not permit any change in my assertion that there is minimal evidence of any relationship between Mr Moss’ military service and his development of CLL. If anything, the evidence is more definitive suggesting that there is no association. The earlier suggestion from studies of Australian Petroleum workers that there was an association has subsequently been shown to be due to “ascertainment bias”, a recognised hazard of intensive studies of elite groups (para 3.1 of Dr Carroll’s report); and

    It should be remembered that the adult lifetime probability of developing any leukaemia in a white male aged between 20 and 95+ is 1.51%, and the probability of developing CLL is .56%. CLL is predominantly an illness of white males, and is relatively common, with more than 1 in 200 white males contracting the disease. There have been no proven, associations, and in particular, intensive evaluations of benzene exposed workers in Australia or elsewhere, has not shown evidence of a causal relationship (para 3.2 of Dr Carroll’s report); and

    As mentioned above, CLL is very different to the acute leukaemias and specifically very different to the acute non-lymphocytic leukaemias, which have been unquestionably related to benzene exposure, albeit at levels higher than encountered by Mr Moss or by the Health Watch workforce profile. This was discussed at a public meeting held by CDC to review whether CLL was caused by radiation, in July 2004 and this was published on line and the whole report is attached. As part of this presentation, the association with benzene discussed (page 7). “Little evidence has supported a relationship between CLL and benzene exposure. A few studies have described excesses of lymphocytic leukaemia or CLL among petroleum industry workers (see appendix B, part V., CLL and Solvent Exposure), but no excess was found in other studies or in a leukaemia subtype-specific analysis of 208,000 workers with potential exposure to benzene (Wong and Raabe 1995)” (para 2.8 of Dr Carroll’s report).     

    [2] Respondent’s Amended Statement of Facts, Issues and Contentions, dated 20 March 2012.

    CONSIDERATION

17. The relevant statutory provisions to answer the issues raised are:

    Safety Rehabilitation and Compensation Act 1988 (the Act)

    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.

    …

    7  Provisions relating to diseases

    (1)Where:

    (a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

    (b) the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and

    (c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

    the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

    (2) Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

    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.

    (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a) a reasonable appraisal of the employee’s performance;

    (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

    (c) a reasonable suspension action in respect of the employee’s employment;

    (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

    (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f)  anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

18. It is noted that the definition of injury, before the amendment effective from 13 April 2007,[3] included a disease as part of that definition in s 4(1) of the Act. It is to be noted also that s 14 of the Act is “the central provision” (Lees v Comcare (1999) 56 ALD 84 at [27]). That section shows that liability will be incurred by Comcare (on behalf of the Commonwealth) where there is an injury which “results in”, relevantly in this case, “impairment”. That is, merely because there is an injury, there is no entitlement to compensation unless there is “impairment” (or other consequence mentioned in the statute).

    [3] Safety, Rehabilitation and Other Legislation Amendment Act 2007 (Cth)

19. To determine whether there is a consequential effect, there must be an “injury” for the purposes of the Act and it must be evaluated similar to assessing causation in negligence cases: that is the causal links will be assessed using a “common sense” approach, subject to any statutory prescription (March v E & MH Stramare Pty Ltd (1991) 171 CLR 506).

20. This involves consideration of s 7 of the Act, and in particular s 7(1). The respondent argues s 7(2) of the Act is not relevant, although I am not entirely convinced of that proposition as no substantive submission was made in regard to the contents of that subsection. Both those subsections are similar in context to the assessment in the present case, that is, the degree of continuity of linkages between the applicant’s service and his CLL. Those subsections also deem there to be a link “to a significant degree”, unless the contrary is proved. While the applicant would ordinarily be expected to prove his claim to the required standard of proof, this statutory deeming of a significant link implies a shifting of the onus of proof to the respondent to prove that the CLL does not have a ”significant” nexus with Mr Moss’s military service between 1950 and 1962.

    The Applicant’s Submission

21. The applicant emphasised his duties refuelling aircrafts and other exposures in his daily life in the RAAF. He also points to studies reported in professional medical journals of epidemiology, other reports and the opinion of Dr Greg Seeley.

    The Respondent’s Submission

22. The respondent submitted that the opinions of Dr Olsen and Dr Carroll should be preferred to that of Dr Seeley. The respondent also submits that the evidence provided by the applicant, in fact now points more strongly to latency arguments denying a causal link “between the applicant’s leukaemia and exposure to benzene even as late as 1962”.

    Assessment of the Evidence

23. We accept that all of the doctors satisfy the requirements to be accepted as “experts” for the purposes of s 79 of the Evidence Act 1995 (Cth). To be admissible, experts must be able to inform the Tribunal as to the reasons they hold a particular opinion so that the Tribunal can apportion weight properly to the various opinions.

24. Dr Carroll addressed the points made by Dr Seeley. He agreed that Mr Moss was exposed to benzene in the Defence Force. He agreed that benzene is a leukaemogenic compound. He agreed with Dr Seeley that the aetiology of chronic lymphocytic leukaemia is unknown. He could not agree with Dr Seeley’s link between Mr Moss’s exposure to benzene and the emergence of CLL despite the long latency period.  Dr Seeley provided no evidence to support this view.

25. The body of Dr Carroll’s written report involved a review of two published papers.  These were the latest update of the Monash University Health Watch report (2007)[4] on behalf of the Australian Institute of Petroleum and the Centers for Disease Control and Prevention (CDC) report (2004)[5] of the “Public Meeting to Seek Input on Gaps in Chronic Lymphocytic Leukaemia (CLL) Radiogenicity Research”.

    [4] Monash University, “The Australian Institute of Petroleum Health Surveillance Program”, Health Watch, 13^th report, November 2007.

    [5] Department of Health and Human Services, Report of public meeting to seek input on gaps in chronic lymphocytic leukemia [sic] (CLL) Radiogenicity research, held 21 July 2004.

26. Dr Carroll, in his evidence, addressed the major issues relating to benzene exposure and the health of long term petroleum workers. He described the study done independently by Monash University as superb with a very high participation rate of 95%. The main output of the study was an analysis of mortality and cancer incidence.

27. A statement from another Health Watch article,[6] which refers to the study, is as follows:

    Leukaemia has been a cancer of special concern in this industry because of its association with benzene exposure. Earlier Health Watch reports indicated a higher than expected number of leukaemia cases. However, the latest report shows the risk of leukaemia –of all types-is no greater than in the general population and has fallen compared to previous reports. This is true even of acute non-lymphatic leukaemia, which has been associated with exposure to benzene.

    [6] Australian Institute of Petroleum, “Occupational health in the oil industry”, Health Watch, Monash University, at <

28. Using data from the 13th Health Watch report (2007) Dr Carroll explained that the mortality for petroleum workers with CLL was half that of the normal population. Dr Carroll stated that there was no difference in previous studies and mortality was also unaffected by duration of employment.

29. Dr Carroll quoted from three reports published online,[7] which support the view that the cause of CLL is unknown with one saying that there was no link to cancer causing chemicals.

    [7] MedlinePlus, Chronic Lymphocytic leukemia (CLL) at < Mayo Clinic, Chronic Lymphocytic Leukemia, at < and American Cancer Society, What is Chronic Lymphocytic Leukemia, at <

1. In the second major paper discussed, that being the CDC report of 2004, it was stated that there is little evidence to support a relationship between CLL and benzene exposure. Some small studies showed an excess in cases of CLL in petroleum workers but no excess was found in other studies. More recent studies tend to be unable to replicate the results of smaller previous studies.

2. Dr Carroll’s summing up of the literature since his initial report in 2003 does not permit any change of his view that there is minimal evidence of any relationship between Mr Moss’s military service and his development of CLL. If anything, he believes the evidence is more definitive suggesting that there is no association.

3. His final paragraph states that the adult lifetime probability of developing any leukaemia in a white male aged between 20 and 95+ years is 1.51% and the probability of developing CLL is 0.56%. CLL is predominantly an illness of white males and is relatively common, with more than 1 in 200 white males contracting the disease.  There have been no proven associations and, in particular, intensive evaluations of benzene exposed workers in Australia or elsewhere has not shown evidence for a causal relationship.

4. We make a finding that Dr Seeley’s report is an opinion not supported by data or reference to published literature. On the other hand, Dr Carroll’s evidence is to be preferred because of his expertise in the field and his clear explanation of what the results from the studies reviewed mean in epidemiological terms, having taken account of the published professional articles referred to by the applicant.

   Has the Standard of Proof been Satisfied?

5. An onus of proof does not apply in the strict sense in this Tribunal as it usually applies in legal proceedings in a court (Australian Telecommunication Commission v Barker (1990) 12 AAR 490). But as stated earlier, there is an indication in ss 7(1) and 7(2) of the Act that, subject to the applicant establishing the facts of his Commonwealth service and of the medical condition which he claims is linked to that service, then, provided there is an apparent logical link which is not absurd, a presumption then arises in s 7(1) that there is a contribution of employment to a significant degree in relation to the contraction of the disease, unless the contrary is proved. Likewise, in s 7(2) a similar presumption can be raised if there is evidence that the incidence of the disease is shown to be significantly greater among people who have been in that employment compared to people who have been engaged in other employment in the same place in which the claimant was employed. The standard of proof required by either party is the civil standard of proof, or “on the balance of probabilities”.

6. Considering the medical evidence provided, we make findings of fact as follows:

   1)   Mr Moss was exposed to benzene and other chemical agents while employed in the RAAF; and

   2)   Mr Moss has chronic lymphocytic leukaemia.

7. We also make a finding as a matter of law that the expert evidence supports a conclusion that, on the balance of probabilities, Mr Moss’ CLL was not materially contributed to by his employment in the RAAF from 1950 to 1962. That finding is based on the empirical evidence provided, at least the more recent and robust empirical studies which differentiate some aspects of the earlier studies and point to convoluting factors. In particular, the latency period between 1962 and Mr Moss’s diagnosis in 1998, a period of 36 years, is, on the balance of probabilities, too remote from the original exposure.

1. We therefore answer the questions for determination as follows:

   1.   Mr Moss was exposed to chemicals, particularly benzene, during his service in the RAAF from 1950 to 1962;

   2.   Based on the expert medical evidence which relies on empirical studies and documentary evidence only, the association of exposure to chemicals, particularly benzene is not statistically significant with the type of leukaemia for which Mr Moss has been diagnosed;

   3.   Mr Moss does suffer from CLL and has done so since 1998;

   4. There is no material contribution by Mr Moss’ RAAF service in the development of CLL, as is required to be established by s 7 of the Act.

2. Therefore the application fails to satisfy the requirements of s 7 of the Act. Consequently, there is no liability to pay compensation under s 14 of the Act.

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD and Dr G J Maynard, Brigadier (Rtd), Member.

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Associate

Dated  18 May 2012

Date(s) of hearing	25 January 2012
Date final submissions received	26 March 2012
Applicant	In person
Counsel for the Respondent	Rachel Blake
Solicitors for the Respondent	Charles Clarke