Read and Military Rehabilitation and Compensation Commission (Compensation)

[2015] AATA 930

Read and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 930 (2 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5441 & 2014/5613
Re	Barry Read
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	2 December 2015
Place	Perth

The Tribunal affirms the decisions under review.

....(Sgd) CR Walsh....................................................................

Senior Member CR Walsh

CATCHWORDS

COMPENSATION – liability for claimed asthma condition and type II diabetes condition – whether the claimed conditions injuries or diseases – whether applicant’s cigarette smoking contributed, in a “material degree”, to the onset or aggravation of either or both of the claimed conditions  - whether there is a connection between the applicant’s commencement and continuation of cigarette smoking and his army service - decisions under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – s 4 - s 5A(1) – s 5B(1) – s 7(4) – s 14 - s 14(1) – s 124

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 – Schedule 1

CASES

APC v Bessey [2001] FCA 266

Comcare v Sahu-Khan (2007) 156 FCR 436
Crathern v Military Rehabilitation and Compensation Commission [2006] AATA 1089

Military Rehabilitation and Compensation Commission v Wall [2005] 88 ALD 1

REASONS FOR DECISION

Senior Member CR Walsh

2 December 2015

INTRODUCTION

1. Mr Read seeks a review of the following two decisions of the Military Rehabilitation and Compensation Commission (MRCC), both dated 2 October 2014:

   (i)a decision that the MRCC is not liable to pay Mr Read compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of Mr Read’s claimed “asthma” condition as the MRCC was unable to establish a connection between Mr Read’s commencement and continuation of cigarette smoking and his Australian Army (Army) service; and

   (ii)a decision that the MRCC is not liable to pay Mr Read compensation under s 14 of the SRC Act in respect of Mr Read’s claimed “diabetes type II” condition as it was unable to establish a connection between Mr Read’s commencement and continuation of cigarette smoking and his Army service.

   FACTUAL & PROCEDURAL BACKGROUND

2. Mr Read is presently 64 years of age, having been born on 14 June 1951.

3. Mr Read was conscripted into the Army during the Vietnam War on 7 July 1971 (then aged 20) and was discharged on 6 January 1973, at the end of his prescribed period of service.

4. During his Army service, Mr Read was a recruit and undertook training for 5 months and then served with the “Administrative Unit” for one year and one month.

5. Mr Read served in the Army for a total of one year and 184 days, during which period he did not serve outside of Australia.

6. On 14 November 2013, Mr Read lodged a “Claim for Rehabilitation and Compensation”, dated 7 November 2013, with the Department of Veterans’ Affairs (DVA) in respect of an “asthma” condition (Asthma Claim).  The Asthma Claim states that Mr Read first noticed this condition in “about 1989” and that the asthma was caused by:

   Normal army duties - told being trained to go to SVN [South Vietnam] - commenced smoking - onset during civi street work.

7. Section 24 of Part 5 of the Asthma Claim provides the following “Disease or Illness Information Details”:

   I joined the Army as part of National Service at age 20. Was a non-smoker prior to joining. Began smoking due to the thoughts of training to be sent to SVN. I know about seven people who had gone to SVN and about 2 came back with injuries, one with serious mental condition. Also the SGT we had during training came back injured. It made SQ feel stressed, I was smoking about 35 cigarettes a day when I was released from the Army and kept smoking that quantity until 2003 when I stopped.

8. In the DVA “Injury or disease details sheet” attached to the Asthma Claim, Mr Read’s GP, Dr Faigenbaum, noted that his “Medical diagnosis” was of Mr Read’s condition was “Asthma”, that Mr Read first consulted him about the asthma condition on 24 July 1996 and that the date of onset of this condition was 1996.

9. Also on 14 November 2013, Mr Read lodged a ”Claim for Rehabilitation and Compensation”, dated 7 November 2013, with the DVA in respect of a “diabetes type II” condition (Diabetes Claim).  The Diabetes Claim states that Mr Read first noticed this condition in “about 2005” and that he:

   Completed Nat. [i.e. National] Service 1971/73, non smoker prior to service, began smoking up to about 2003.

10. Further, the Diabetes Claim states that the diabetes condition was caused by:

    Stress of going to SVN - non smoker, began smoking.

11. In the DVA “Injury or disease details sheet” attached to the Diabetes Claim, Mr Read’s GP, Dr Faigenbaum, noted that Mr Read first consulted him about the diabetes condition in April 2005 and that the date of onset of this condition was 9 April 2005.

12. On 11 July 2014, Mr Read completed a “Cigarette Smoking Questionnaire – SRCA” at the request of the DVA (Smoking Questionnaire). In the Smoking Questionnaire, Mr Read noted that he started smoking cigarettes on a regular basis on approximately 27 July 1971:

    Because of stress of training and stress for Vietnam posting - I had friends who previously got called up and went to Vietnam.

13. In the Smoking Questionnaire, Mr Read noted that he stopped smoking permanently in approximately January 2002.

14. By letter dated 18 August 2014, the DVA disallowed the Asthma Claim and the Diabetes Claim on the basis that the evidence failed to establish that there was liability for compensation (Determination).  The Determination states:

    For a claim to be successful under the Act, the evidence has to show that it is probable, and not merely possible, that your military service contributed to a material degree to the causation, aggravation, acceleration or recurrence of the disease.

    ……….

    In considering your claim, I have had regard to the Full Federal Court decision in Wall v MRCC [2005] FCAFC 127 [Wall].

    Given the findings of the Full Federal Court in the Wall decision, I must now have regard to the following:

    1.Whether military service contributed to you commencing smoking for the first time, eg, peer pressure, being away from home, providing something to do, and the availability of cheap cigarettes where smoking was the ‘norm’ rather than the exception;

    2.Whether you became so habituated to smoking during your service that smoking was a direct cause of the conditions you are now claiming; and

    3.The requirement to live on base such as might be the case during recruit and or initial employment training; and

    In your particular case I am mindful that the factual circumstances said to give rise to your claim are significantly different to those of Mr Wall’s claim, with the exception being point 1 above, regarding the availability of cheap cigarettes.  You have not cited peer pressure or being away from home as the reasons you commenced smoking.

    I believe you may satisfy Point 2 of the above, regarding becoming so habituated to smoking and continued to do after your discharge from the Australian Regular Army Supplement, but cannot be satisfied that smoking is the direct cause of your condition.

    I have no evidence that you were required to live on base or being confined in your place of work, such as being aboard a sea-going vessel.

    I acknowledge that you suffer Asthma and Type 2 Diabetes conditions, however, unfortunately, on this occasion I do not believe you have satisfied the Wall criteria for cigarette smoking being the cause of your conditions, and I am therefore not satisfied that your military service contributed in a material degree to the causation, aggravation, acceleration or recurrence of your Asthma and Type 2 Diabetes conditions.

15. On 22 August 2014, Mr Read requested a reconsideration of the Determination on the following grounds:

    1.    My smoking habit only started when I commenced my military service, until which time I had no history of smoking at all.  The habit resulted from peer pressure, where smoking was the norm, from being away from the support network that I had developed in the years before being called up and that smoking was a relatively inexpensive pastime in the military.

    2.    My smoking habit continued after discharge until I was forced to undergo vascular surgery to my legs and groin to repair damage that directly resulted from my smoking habit.

    3.    In the military I was required to live on base as my family (brothers and sisters, as my parents had passed away) lived in Western Australia and I was called up in NSW.

    4.    At the time of discharge I was not given a medical examination prior to discharge, a routine which I understand was normal, and so have no starting point to refer to as my medical condition from that time.

16. On 27 August 2014, the DVA wrote to Mr Read requesting that he:

    provide [a] medical opinion that indicates that smoking has caused your asthma and diabetes conditions.

17. On 3 September 2014, Mr Read’s treating endovascular surgeon, Dr Teasdale, provided a report to the Commission (Dr Teasdale’s Report).  Dr Teasdale’s Report noted that there was:

    no doubt the smoking that he commenced during his duties with the armed services contributed most significantly to his peripheral arterial disease.

18. Dr Teasdale’s Report did not comment on Mr Read’s claimed asthma or diabetes conditions.

19. In two separate decisions, both dated 2 October 2014, a review officer affirmed the Determination in relation to the Asthma Claim (Asthma Decision) and the Diabetes Claim (Diabetes Decision), respectively.

20. On 17 October 2014, Mr Read applied to the Tribunal for a review of the Asthma Decision and the Diabetes Decision.

    ISSUES

21. The central issue for determination by the Tribunal is whether the MRCC is liable to pay Mr Read compensation under s 14 of the SRC Act in respect of the claimed asthma and diabetes conditions.

22. This issue requires a consideration of the following questions:

    (i)        Does Mr Read suffer from asthma;

    (ii)       Does Mr Read suffer from type II diabetes;

    (iii)Are those conditions to be assessed as “injuries” or “diseases” for the purposes of the SRC Act;

    (iv)If yes, whether Mr Read’s cigarette smoking contributed, in a “material degree”, to the onset or aggravation of either or both of those conditions; and

    (v)Did Mr Read commence smoking as a result of his Army service and become so habituated to smoking during the period of his Army service that this habit was the effective cause of his continued ongoing smoking?

    ANALYSIS

23. Section 14(1) of the SRC Act states:

    Section 14      Compensation for injuries

    14. (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

24. Accordingly, it is necessary for Mr Read to have an “injury” which “results in” either “incapacity for work, or impairment” (death is not relevant to this case).

25. Whether Mr Read is entitled to compensation under s 14(1) of the SRC Act is to be determined by reference to when his “injury” is taken to have been sustained. Section 7(4) of the SRC Act relevantly provides:

    Section 7       Provisions relating to diseases

    ……..

    (4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

    (a)the employee first sought medical treatment for the disease, or aggravation; or

    (b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

    whichever happens first.

26. If the date the employee first sought medical treatment for a disease or aggravation of a disease for the purposes of s 7(4)(a) of the SRC Act, was after 1 December 1988, the SRC Act applies. If, however, the date the employee first sought medical treatment for a disease or aggravation of a disease for the purposes of s 7(4)(a) of the SRC Act before 1 December 1988, s 124 of the SRC Act provides that compensation continues to be payable to the extent it would have been payable under the Act in force at the relevant time.

27. The Asthma Claim records that Mr Read first sought medical treatment in respect of his claimed asthma condition on 24 July 1996. 

28. The Diabetes Claim records that Mr Read first sought medical treatment in respect of his claimed type II diabetes condition on or about 9 April 2005.

29. Accordingly, pursuant to s 7(4)(a) of the SRC Act, the provisions of the SRC Act apply to a review of the Asthma Decision and the Diabetes Decision.

30. “Injury” is defined in s 5A of the SRC Act as follows:

    5A       Definition of injury

    5A. (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.

31. Thus, “injury” is defined in s 5A(1)(a) of the SRC Act to include a “disease”. “Disease” is defined in s 5B of the SRC Act as follows:

    5B       Definition of disease

    5B. (1) In this Act:

    disease 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 or a licensee. [Emphasis added]

32. “Ailment”’ is defined in s 4 of the SRC Act, for the purposes of s 5B(1)(a) of the SRC Act, as follows:

    ailment means any physical or mental ailment, disorder, defect or morbid condition {whether of sudden onset or gradual development).

33. The “significant contribution” test as it applies to the current definition of “disease” in s 5B(1) of the SRC Act, was introduced into the SRC Act on 5 April 2007.[1] Until 13 April 2007, there was a requirement in the SRC Act that there be a contribution “in a material degree” by the employee’s employment to the disease suffered by the employee, referred to as the “material contribution” test.

    [1] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007: Schedule 1.

34. Since the claimed dates of injury for both the asthma condition and the type II diabetes condition pre-date 5 April 2007, the “material contribution” test is the relevant test to be applied in Mr Read’s case.

35. In Comcare v Sahu-Khan (2007) 156 FCR 436 (Comcare v Sahu-Khan), Finn J commented (at 542-543) on how the expression “contributed to in a material degree” in the SRC Act should be interpreted, as follows:

    16.      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 that 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.

36. In Crathern v Military Rehabilitation and Compensation Commission [2006] AATA 1089 (Crathern v MRCC) (at [10]), the Tribunal said that in assessing whether the “material contribution” test is satisfied, the balance of probabilities requires more than “a mere possibility or conjecture”.

37. Following the decision of the Full Federal Court in Military Rehabilitation and Compensation Commission v Wall [2005] 88 ALD 1 (Wall), in order for Mr Read to establish the necessary connection between his smoking and his military service, it is necessary for him to show that his smoking habit arose out of or in the course of his service or that his service was a contributing factor to his smoking habit.  Specifically, in Wall, Wilcox and Downes JJ said (at 8):

    [31]The tribunal correctly described its legal function when it said that the ‘real question...is whether the applicant’s smoking habit can be said to have arisen out of or in the course of his employment...or whether his employment was a contributing factor’. The tribunal also said: “it must be proved that the disease was caused by the employment and not merely contracted during the said employmen”’. It concluded that: “In this case…..to adopt a smoking habit is a risk of that employment.”

38. In his dissent, Gyles J agreed with the majority’s approach to connecting the claimed condition with the claimant’s employment.  At 9, Gyles J said:

    [39]It is conceded for the purposes of this appeal that, if there is the relevant causal connection between the respondent’s employment and smoking, then there is the relevant link between employment and the complaints in question which exhibit themselves 33 and 35 years respectively after the respondent’s military service ceased. While that concession removes a large area of potential controversy, it does not mean that smoking is to be regarded as an injury or a disease in any sense in itself. Ischemic heart disease (IHD) and the cerebrovascular accident (CVA) constitute the compensable conditions. Neither occurred ‘in the course of employment’, no matter was view is taken of the content of that phrase. It is necessary to establish that the IHD was contributed to by the respondent’s employment and that the CVA arose out of the respondent’s employment. Thus, an actual causal connection is required between that employment and smoking.

39. The nexus necessary to connect service and a smoking habit for the purposes of the Act was described by Wilcox and Downes JJ in Wall (at 8) as follows:

    [35]……In any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness. In a case where it is concluded that the accident or illness was caused by smoking alter the period of military service, it will be during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease...

40. Further, relevant to the issues in dispute in this case are the following observations of Wilcox and Downes JJ in Wall (at 8):

    [35]It should not be assumed, from the result of this case, 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 any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident of 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. This is likely always to be a difficult case for an applicant to make good.

    (i)        Does Mr Read suffer from “asthma”?

1. On 20 May 2014, Dr Jack Faigenbaum, General Practitioner (at the Scarborough Beach Medical Centre), prepared a “Diabetes GP Management Plan Review” for Mr Read.  That management plan states that Mr Read has a past medical history of asthma and that Mr Read’s brother sister and father have or had asthma.  Similarly, a “Full Summary” of Mr Read’s clinical notes held by the Scarborough Medical Centre, as at 11 June 2014, states that Mr Read has a past medical history of asthma.

2. On 30 June 2015, Dr Richard Tarala, Respiratory Physician, provided a medical report “on the papers” in respect of Mr Read’s claimed asthma condition, at the request of the MRCC.[2]

   [2] Exhibit 13.

3. Dr Tarala’s report states:

   Comment

   Asthma is a (sic.) defined as reversible airflow limitation.

   The diagnosis of asthma is made on the basis of objective change in breathing tests – either spirometry, or by peak flow readings.  There was no objective breathing tests in the documentation which I have sighted.

   It is important to be aware that a response to salbutamol is not diagnostic of asthma.  Persons without asthma may respond to salbutamol.  For example, salbutamol was something previously used by athletes who were not asthmatic, until the use salbutamol in non-asthmatic athletes was banned by Sporting Regulatory Bodies. Some patients with Chronic Obstructive Lung Disease also use salbutamol.

   On the basis of the available information, which is incomplete, Mr Read may have asthma.  I consider that he has “possible” rather than “probable” asthma.

   Objective testing by breathing tests (which are widely available) is pivotal in the diagnosis and assessment of asthma.  No such breathing tests of Mr Read are in the records available to me.

   ………

   Smoking is not a cause of asthma. 

   Accordingly I do not consider that possible asthma in Mr Read is related to tobacco consumption.

   ……….

   If a patient has asthma, tobacco consumption can “aggravate” that condition.

   ………..

   There is evidence that in many people, asthma is a partially heritable condition.

   ………..

   I note that Mr Read has a history of type II diabetes.  People who are overweight can be short of breath as a result of their weight, and there is some suggestion in the medical literature that obesity predisposes to asthma.

   In summary, there is no objective confirmation of asthma in Mr Read. [Emphasis added]

4. In a report dated 20 August 2015, Dr Alan James, Respiratory Physician, states the following in relation to Mr Read’s claimed asthma condition:

   Summary

   The history of variable wheeze, chest tightness, cough and shortness of breath, triggered by exposure to cigarette smoke, viruses, cold air and exertion is entirely consistent with the diagnosis of asthma.  Cigarette smoke is a well recognised trigger for asthma symptoms.[3]

   [3] Exhibit 6.

5. Dr James did not provide oral evidence at the hearing of these applications.

6. In his oral evidence at the hearing, Dr Tarala confirmed that he had read the report of Dr James, Respiratory Physician, dated 20 August 2015, and the attachment to that report, being a Hollywood Private Hospital “Pulmonary Function Report”, relating to Mr Read, dated 4 August 2015. 

7. Dr Tarala stated that the pulmonary function report indicated that Mr Read had “mild air flow limitation” based on Mr Read’s “FEV1” results recorded on the report and that his opinion remained that it was “possible” and not “probable” that Mr Read has asthma.  That is, Dr Tarala said that he could not definitively diagnose Mr Read as having asthma. Dr Tarala described a person with asthma as a person with “twitchy” bronchial tubes.  He said that in a person with allergies, or an inherited pre-disposition to asthma, cigarette smoking could be a “trigger” for asthma (i.e. could aggravate asthma), but was not by itself a “cause” of asthma.  Dr Tarala confirmed that asthma was hereditary in “some people” and that the medical evidence provided to him suggests that Mr Read has an inherited pre-disposition to asthma.  When asked to elaborate on what he means by cigarette smoking triggering or aggravating asthma, Dr Tarala explained that cigarette smoking could cause an “acute short-term event” that is consistent with asthma but “not diagnostic of” asthma. Dr Tarala said that a diagnosis of asthma requires repeated pulmonary function (breathing) tests being conducted on a person over a period of time and that this had not been done in Mr Read’s case.

8. Based on Dr Tarala’s evidence and his interpretation of the pulmonary function report dated 4 August 2015, the Tribunal finds that there is no clinical medical evidence establishing that Mr Read has asthma.  Although Mr Read has been diagnosed with asthma by Dr Faigenbaum, general practitioner, that diagnosis has never been substantiated by repeated pulmonary function (breathing) tests which, according to Dr Tarala, a specialist respiratory physician, says is required before such a diagnosis can be made.  To the extent that there is a competition between the opinions of Dr Faigenbaum and Dr Tarala, the Tribunal prefers the opinion of Dr Tarala as he is a specialist physician in the relevant field of medicine and Dr Faigenbaum is not.

9. In his report dated 20 June 2015, Dr James stated that Mr Read’s reported symptoms are “entirely consistent with the diagnosis of asthma”:  see paragraph 44 above.  Dr Tarala’s evidence is consistent with Dr James’ statement but Dr Tarala maintains that a diagnosis of asthma cannot be given until further pulmonary function tests are undertaken.  In his report, Dr James does not comment on the pulmonary function test, dated 4 August 2015.  Further, in his report, Dr James does not expressly state that Mr Read suffers from asthma. In such circumstances, the Tribunal finds that Dr James is also unable to confirm a diagnosis of asthma, in Mr Read’s case, without further investigation.

10. For the above reasons, the Tribunal finds that the MRCC is not liable to compensate Mr Read under s 14 of the SRC in respect of the claimed asthma condition. Having made this finding, it is unnecessary for the Tribunal to proceed to consider the additional questions set out in paragraph 22 above in relation to the claimed asthma condition. However, for completeness, the Tribunal has briefly considered these issues below, under the relevant heading.

    (ii)       Does Mr Read suffer from type II diabetes?

11. It is not in dispute that:

    ·     Mr Read suffers from (has been diagnosed with) type Il diabetes; and

    · the date of injury for Mr Read’s type II diabetes condition was on or about 9 April 2005, for the purposes of s 7(4) of the SRC Act: refer to paragraphs 25, 26 and 28 above.

12. Mr Read’s type II diabetes is a condition of gradual onset such that the Tribunal finds that it constitutes an “ailment” for the purposes of the SRC Act and should be assessed as a “disease” rather than an “injury” for the purposes of the SRC Act: refer to paragraphs 30, 31 and 31 above.

    (iii)Did Mr Read’s cigarette smoking contribute, “in a material degree”, to his asthma condition and his type II diabetes condition?

    Asthma

13. As stated above, the Tribunal finds that there is insufficient evidence for it to be satisfied that Mr Read suffers from asthma: see paragraphs 48 and 49 above.  However, even if Mr Read did suffer from asthma, as claimed, the specialist medical evidence indicates that Mr Read’s asthma condition was not caused or materially contributed to by cigarette smoking. That contention is supported by the report and oral evidence of Dr Tarala, Respiratory Physician: see paragraphs 43, 46 and 47  above.  It is also supported by the report of Dr James, Respiratory Physician, dated 20 August 2015, which report does not support a finding that Mr Read’s asthma condition was caused or materially contributed to by cigarette smoking:  see paragraph 44 above.

14. Both Dr Tarala and Dr James evidence was that smoking can “trigger” or “aggravate” signs and symptoms of asthma. However, their opinions do not result in a finding that cigarette smoking “aggravated” Mr Read’s claimed asthma condition in a way that results in liability being found to exist.  Where an aggravation is temporary, so that after a time it ceases to have any effect and leave the underlying condition no worse, then there is no continuing aggravation or liability to pay compensation:  Comcare v Sahu-Khan and Crathern v MRCC.[4] 

    [4] APC v Bessey [2001] FCA 266.

15. In any event, the evidence before the Tribunal is that Mr Read ceased smoking sometime between 1999 and 2003.  Accordingly, he has not smoked for at least 12 years.  As Mr Read no longer smokes, he is no longer engaging in the activity that is capable of temporarily aggravating his claimed asthma condition. That is, whilst smoking may aggravate asthma, as Mr Read no longer smokes, smoking cannot be aggravating his claimed asthma condition.

16. Consequently, the Tribunal finds that cigarette smoking did not contribute, to a material degree, to the onset of or aggravation of Mr Read’s claimed asthma condition:  Comcare v Sahu-Khan and Crathern v MRCC,

    Type II diabetes

17. On 25 June 2015, Professor John Carter, Endocrinologist, provided a report “on the papers” in respect of Mr Read’s claimed type II diabetes condition, at the request of the MRCC.[5] In his report, Dr Carter states that Mr Read has type II diabetes and that the “onset of the diabetes was between 1 December 1988 and 13 April 2007”.

    [5] Exhibit 15.

18. In his report, Dr Carter also states:

    4.If you consider that the onset of the diabetes was between 1 December 1988 and 13 April 2007, has the Applicant’s cigarette smoking contributed to, to a material degree, to the onset or aggravation of the diabetes?

    …………

    ……no study has established a definitive causal relationship between smoking and the development of diabetes.  Examples of non causal explanations for this association includes the fact that smoking is often associated with other unhealthy behaviours that favour weight gain and/or diabetes, such as lack of physical activity, poor fruit and vegetable intake and high alcohol intake.

    You have indicated to me that “material degree” requires me to be satisfied on the balance of probabilities, as opposed to possibilities, that the Applicant’s employment contributed to the diabetes.  That is, the Applicant’s employment must be more than a mere contributing factor in the contraction or aggravation of his diabetes condition.  As such, it is clear from the literature summarised above that smoking is definitively a possible contributing factor to the development of diabetes but I am not satisfied on the balance of probabilities that the smoking contributed to the development of the diabetes.  Therefore, I would conclude that Mr Read’s cigarette smoking did not contribute to a material degree to the onset or aggravation of the diabetes.

    ………….

    Since “significant degree” means a degree substantially more than material, I do not believe that the Applicant’s smoking during service contributed to a material/significant degree to the onset or aggravation of the diabetes.

    6.Do you consider that the Applicant’s smoking after service contributed to, to a material/significant degree, the onset or aggravation of the diabetes?

    No.

    7.Are there any non-work related factors which have caused or contributed to the Applicant’s condition?  If so, please indicate what these factors are.

    The most relevant factor is genetic.  Type 2 Diabetes Mellitus is a genetic condition and, irrespective of any relevant family history, Mr Read must have had a genetic predisposition for the condition.  Factors that may be relevant in this case in addition to genetics include increasing age, overweight/obesity, reduced physical fitness and increased alcohol intake.

    8.Do you consider that the Applicant’s condition would be the same today, regardless of any aspect or incident of his employment?

    There has been no information provided to me that would suggest that Mr Read’s diabetes has been aggravated by any aspect or incident of his employment. [Emphasis added]

19. Dr Carter’s oral evidence before the Tribunal confirmed the content of his report dated 25 June 2015.

20. Mr Read has not provided any evidence to counter Dr Carter's opinion.  In the absence of such evidence, the Tribunal finds that Dr Carter’s opinion should be accepted.  Based on the report and oral evidence of Dr Carter, Endocrinologist, the Tribunal finds that smoking did not contribute, in a material degree, to Mr Read’s claimed type II diabetes condition:  Comcare v Sahu-Khan and Crathern v MRCC.

21. As there is no evidence to establish that cigarette smoking contributed, to a material degree, to the claimed type ll diabetes condition, it is unnecessary for the Tribunal to proceed to consider the remaining question in paragraph 22 above.  However, for completeness, it has addressed this issue briefly below.

    (iv)Did Mr Read commence smoking as a result of his Army service and become so habituated to smoking during the period of his Army service that this habit was the effective cause of his continued ongoing smoking?

22. Based on the evidence, the Tribunal finds that Mr Read did not commence smoking as a result of his Army service and become so habituated to smoking during the period of his Army service that it was the effective cause of his continued ongoing smoking.

23. In short, Mr Read claims that he did not smoke prior to joining the Army and that it was the stress of his Army training and the stress of potentially being sent off to fight in the Vietnam War which drove him to smoke, in an environment where there was no other outlet for his stress, he encountered peer pressure and smoking was the cultural “norm”.

24. A “Full Summary” of Mr Read’s clinical notes held by the Scarborough Medical Centre, as at 11 June 2014, records the year that Mr Read started smoking as “1970”, being one year before he joined the Army.  Mr Read later asked Dr Faigenbaum General Practitioner (at the Scarborough Beach Medical Centre) to clarify this notation and, by record dated 14 October 2014, Dr Faigenbaum noted:

    This is to certify that though the year of starting cigarettes was recorded as being 1970 there is no record of when this was recorded.

25. This subsequent note of Dr Faigenbaum does not state that his earlier entry, which records that Mr Read commenced smoking in 1970, was incorrect. 

26. Cross-examination of Mr Read, and the various documents that were tended following that cross-examination, demonstrate that Mr Read is a poor historian and his evidence, when it comes to dates, at least, is inherently unreliable. Accordingly, the date of 1970 could, at least, be as equally as accurate as the date Mr Read alleges he commenced smoking, namely 1971.

27. There is evidence that Mr Read attempted to voluntarily enlist in the Army some 5 years prior to being conscripted.  This was at an early and more active stage of Australia’s military involvement in the Vietnam War. This evidence casts doubt on Mr Read’s contention that he was “stressed” about going to fight in Vietnam and resorted to smoking as a coping mechanism.

28. When Mr Read was conscripted into the Army, he was 20 years of age. On his own evidence, Mr Read had at this time been out of high school for five years and had been employed throughout that period. He had already left home and had travelled from Western Australia to Queensland, on his own, for work. It can be inferred from this that Mr Read was an independent and mature 20 year old by the time he was conscripted into the Army. Therefore, as submitted by the MRCC, it is reasonable to infer from this that Mr Read would have been less impressionable, and susceptible to commence smoking as a result of peer pressure, than someone like Mr Wall in Wall:  refer to paragraphs 37 – 40 above.

29. Despite claiming to have experienced stress during his employment in the Army, there is no evidence that Mr Read’s performance as an Army employee was inhibited in any way, that he received medical treatment for his claimed conditions or that he reported his stressed condition to his superiors while he was in the Army.  The only evidence the Tribunal has to rely on with respect to what aspect of Mr Read’s Army employment caused him to smoke is his own self-reporting which, for the above reasons, the Tribunal finds unreliable.

30. The evidence before the Tribunal establishes that Mr Read’s smoking habit materially increased after he left the Army.  On his own evidence, Mr Read smoked about 6 cigarettes a day whilst employed in the Army and approximately a packet a day after leaving the Army, until he eventually quit (at about the age of 40).  The increase in the amount Mr Read smoked after leaving the Army occurred despite the fact once outside the Army he was away from the alleged stressors that he claimed to seek relief from through smoking.  This casts doubt on Mr Read’s contentions.   

31. According to Mr Read, the Army provided him with “no assistance whatsoever” following his discharge from the Army and that there was a complete “lack of due care” from the Army following his discharge.  Mr Read said that immediately following his discharge from the Army he had nowhere to live in Sydney (no support network or family to care for him) so he slept on the streets of Sydney for a short time.  Mr Read explained that following his discharge he sought help from his Army unit in Sydney and he was told they could not help him as he was no longer in the Army.  Mr Read said that he experienced feelings of abandonment and depression after leaving the Army.  Mr Read also said that he found it extremely difficult to obtain employment after leaving the Army because whilst the Army provided him with a “Certificate of Discharge”, dated 9 January 1973, the Army never provided him with a medical discharge certificate which was necessary to gain employment at that time  All of these factors appear to have occurred at the same time as the material increase in Mr Read’s smoking habit after leaving the Army.  It can be inferred from this evidence that it was not the stress of his employment in the Army (i.e. the training and the thought of being sent off to fight in the Vietnam War) which caused Mr Read to become a habitual smoker but, rather, the stressors that came after Mr Read’s discharge from the Army:  Wall.  Mr Read’s contentions concerning the Army’s lack of due care following his discharge from the Army are irrelevant to the Tribunal’s task here, being to determine whether the Asthma Decision and the Diabetes Decision are the correct and preferable decisions.  The Tribunal is not the appropriate forum for these complaints.

    DECISION

32. For the above reasons, the Tribunal affirms the Asthma Decision and the Diabetes Decision.

I certify that the preceding 72 (seventy two) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

.....(Sgd) A Tran...................................................................

Administrative Assistant

Dated 2 December 2015

Date(s) of hearing

25 November 2015

Applicant

In person

Counsel for the Respondent

Solicitors for the Respondent

Ms K Blackford Slack

Sparke Helmore Lawyers