Riley and Military Rehabilitation and Compensation Commission (Compensation)

[2019] AATA 3501

Riley and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 3501 (6 September 2019)

Division:VETERANS' APPEALS DIVISION

File Number:           2016/2188

Re:Peter Riley

APPLICANT

Military Rehabilitation and Compensation CommissionAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:6 September 2019

Place:Sydney

The Tribunal decides that:

1.the reviewable decision, being the decision of a delegate of the Military Rehabilitation and Compensation Commission made 2 March 2016, affirming the determination made 25 March 2015 which denied liability to compensate Mr Riley, is set aside; and

2.in substitution, it is decided that:

a.the determination made 25 March 2015 is set aside; and

b.in substitution, it is decided that the Commission is liable to compensate Mr Riley in respect of the injury of bladder cancer suffered by him on 31 August 2007.

............................[sgd]............................................

Deputy President J W Constance

CATCHWORDS

WORKERS COMPENSATION - defence-related claim - whether Applicant entitled to compensation in respect of claimed injury of bladder cancer - whether Applicant's bladder cancer contributed, to a significant degree, by Applicant's military service - employment involving exposure to beryllium through use of jason pistol - whether bladder cancer is a disease caused by beryllium - Respondent did not establish that Applicant's exposure to beryllium did not contribute, to a significant degree, to his contraction of bladder cancer - decision under review set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1)

REASONS FOR DECISION

Deputy President J W Constance

6 September 2019

INTRODUCTION

1. Mr Riley joined the Royal Australian Navy as a 17-year-old in 1967. He was discharged in 1972 having attained the rank of Able Seaman.

2. In August 2007, Mr Riley was diagnosed as suffering from bladder cancer. In 2014, he made a claim for compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) in which he alleged that the cancer was caused by his exposure to chemicals during his service.

3. By a decision made 2 March 2016 (the reviewable decision),[1] a delegate of the Military Rehabilitation and Compensation Commission affirmed a determination made 25 March 2015 denying liability to compensate Mr Riley. He has applied to this Tribunal to review the reviewable decision.

   [1] Exhibit R1 at 151.

4. For the reasons which follow, the reviewable decision will be set aside and, in substitution, it will be decided that the Commission is liable to compensate Mr Riley in respect of the claimed condition.

   MR RILEY’S CLAIM

5. In his claim form, Mr Riley stated that he believes the cancer was caused by “working as a painter, consuming contaminated drinking water, smoke contaminated environment work/living quarters”.[2]

   [2] Exhibit R1 at 53.

6. It is not in dispute that Mr Riley was, at the relevant time, an employee within the meaning of the Act.

7. Unless stated otherwise, findings of fact in these reasons are based on the evidence of Mr Riley.

   FACTS RELATING TO EXPOSURE TO BERYLLIUM

8. Mr Riley enlisted on 8 April 1967.[3] After his initial training he was deployed on board HMAS Sydney from 14 July 1967 to 10 December 1967.[4] During this time he was engaged in ship maintenance five days per week, eight hours per day.

   [3] Exhibit R1 at 13.

   [4] Exhibit R1 at 19.

9. During most of Mr Riley's working days he was stripping paint, priming and painting. He worked stripping paint for 70-80% of his working day. To do this he used a “jason pistol”, a pneumatic tool designed to strip paint and rust without causing dangerous sparking. It was fitted with vibrating copper rods covered with an alloy containing the heavy metal beryllium. When the gun was in use the rods came into contact with the painted metal surface of the ship. During this process the rods wore down, creating beryllium dust.[5]

   [5] Exhibit R2.

10. Mr Riley operated the jason pistol in confined and poorly ventilated spaces as well as in the open air. As he worked he was covered in a combination of the dust created by the pistol’s rods and the paint being removed from the surface of the ship. He did not wear any breathing apparatus as none was supplied to him. In addition to the tool being operated by him, at the same time others were using jason pistols in his immediate vicinity which added to the dust around him.

11. Mr Riley was deployed on HMAS Vampire from 3 July 1972 until 4 October 1972.[6] He worked on the maintenance of the ship, again using a jason pistol on most working days.

    [6] Exhibit R1 at 19.

    LEGISLATION

    Safety, Rehabilitation and Safety (Defence-related Claims) Act 1988 (Cth)

12. Section 14(1) of the Act provides:

    Subject to this Part, the Commonwealth 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.

13. Injury is defined in subsection 5A(1)(a) to include a disease suffered by an employee.

14. Subsection 5B(1) defines disease:

    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.

15. In subsection 4(1) ailment is defined to mean:

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

16. Section 7 makes specific provisions relating to diseases. Subsection 7(1) provides:

    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, is 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 employment of that kind;

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

    Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1)

17. This Notice specified that “the diseases in Column 2 and the employment in Column 3 of the Schedule are the specified diseases and the specified employments related to those diseases”.[7] The Notice took effect from 1 July 2007.[8]

    [7] Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1), section 3.

    [8] Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007(1), section 2.

18. The Schedule provided, in part:

Item	Specified Diseases	Specified Employment
…	…	…
6	Diseases caused by beryllium or its toxic compounds.	Employment involving exposure to beryllium or its toxic compounds.

ISSUES ARISING IN RESPECT OF THE CLAIM BASED ON THE EXPOSURE TO BERYLLIUM

1. The following issues arise for consideration:

   (1)   Has Mr Riley suffered from a disease within the meaning of subsection 7(1)(a)?

   (2)   If so, is the disease of a kind specified by the Minister as a disease related to employment of a kind specified?

   (3)   If so, was Mr Riley engaged in employment of that kind at any time before symptoms of the disease first became apparent?

   (4)   If so, is it established that the employment did not contribute, to a significant degree, to the contraction of the disease?

   ISSUE 1:        HAS MR RILEY SUFFERED FROM A DISEASE WITHIN THE MEANING OF SUBSECTION 7(1)(a)?

2. It is not in dispute that Mr Riley previously suffered from bladder cancer and that this condition is a disease within the meaning of subsection 7(1)(a).[9] On the evidence before me, I am satisfied that these are appropriate concessions by the Commission.[10]

   ISSUE 2:        IS THE DISEASE OF A KIND SPECIFIED BY THE MINISTER AS A DISEASE RELATED TO EMPLOYMENT OF A KIND SPECIFIED?

   [9] Respondent’s Statement of Issues, Facts and Contentions dated 30 May 2018 at [4.1] and [4.3].

   [10] Exhibit R1 at 38.

3. In the Notice, the Minister specified “[d]iseases caused by beryllium or its toxic compounds”.

4. The Commission argues that there is no evidence to support a finding that beryllium causes bladder cancer and therefore the provisions of the Notice do not apply. In my view, this argument is based on an unduly narrow classification of the disease suffered by Mr Riley.

5. In considering the application of the Notice, the disease suffered by Mr Riley can be described with varying levels of specificity. One description is that proposed by the Commission. On the other hand, it could be described simply as “cancer” or more specifically “malignant tumours”.

6. The Notice is to be read in conjunction with the Act, which is beneficial legislation and should be interpreted accordingly. While the word “cancer” encompasses several conditions, not all of which involve the formation of malignant tumours,[11] many cancers do involve the growth of such tumours. To interpret the word “disease” in this context as limited to a tumour at a specific site (e.g. bladder cancer or lung cancer) is an unwarranted limitation on the application of the beneficial provisions of the Act and, therefore, the Notice. In this regard, I note that Professor Fox refers to “bladder carcinoma” as an example of “solid tumours”.[12] I will refer to his evidence in more detail later in these reasons.

   [11] For example, certain cancers of the blood.

   [12] Exhibit R3 at 3.

7. Based on the evidence of Professor Fox, I am satisfied on the balance of probabilities that exposure to beryllium causes malignant tumours.[13]

   [13] Exhibit R3 at 5.

8. I am satisfied that in Mr Riley's case the development of a malignant tumour is a disease within the meaning of Item 6 of the Notice and is therefore a disease “of a kind specified by the Minister” within subsection 7(1) of the Act.

9. On the basis of the evidence of Mr Riley, I am satisfied that his employment as a member of the Royal Australian Navy by the Commonwealth involved “exposure to beryllium or its toxic compounds”.

   ISSUE 3:        WAS MR RILEY ENGAGED IN EMPLOYMENT OF THAT KIND AT ANY TIME BEFORE SYMPTOMS OF THE DISEASE FIRST BECAME APPARENT?

10. Mr Riley first became aware of a symptom of the disease (frank haematuria) in July 2007.[14] His employment during which he was exposed to beryllium was in 1967 and 1972.

    ISSUE 4:        IS IT ESTABLISHED THAT THE EMPLOYMENT DID NOT CONTRIBUTE, TO A SIGNIFICANT DEGREE, TO THE CONTRACTION OF THE DISEASE?

    [14] Exhibit R3 at 1.

11. As the previous three issues have been resolved in the affirmative, for the purposes of the Act Mr Riley's employment by the Commonwealth is taken to have contributed to a significant degree to the contraction of the malignant tumour in his bladder “unless the contrary is established”. It is this question which remains to be considered.

    The Commission’s argument

12. The Commission relies upon the evidence of Professor Fox, Honorary Consultant, Clinical Haematology and Medical Oncology, in contending that “there is no evidence that exposure to beryllium is linked to causation of bladder cancer”.[15]

    [15] Respondent’s Statement of Issues, Facts and Contentions dated 30 May 2018 at [4.5].

    Discussion

13. Subsection 7(1) operates to deem the necessary contribution of Mr Riley's employment to the contraction of his disease unless the contrary is “established”. As is the usual position with the establishment of facts in determining claims under the Act, this requires evidence to establish the contrary on the balance of probabilities.

    Evidence of Professor Fox

14. Professor Fox provided reports dated 15 July 2017[16] and 31 December 2018[17]. He gave evidence at the hearing.

    [16] Exhibit R3.

    [17] Exhibit R4.

15. In relation to Mr Riley's claim based on his exposure to beryllium, Professor Fox stated:

    I note he claims exposure to beryllium. It notes that in an article from the National Cancer Institute of the United States that an increased risk of lung cancer has been observed in workers exposed to beryllium or beryllium compounds.

    This is where the particles are inhaled into the lungs an [sic] upper respiratory tract. Hand to mouth exposure and skin contacts with ultra fine particles can occur. There does not appear to be evidence of any association with bladder cancer.[18]

    [18] Exhibit R3 at 5.

16. When he gave evidence, Professor Fox referred to American data recording the risks of chronic lung disease associated with exposure to beryllium. He noted that there was no reference to other cancers.

17. I accept without reservation that Professor Fox is extremely well qualified to give evidence in this matter and I accept his evidence. However, his evidence goes no further than establishing that he is not aware of any evidence to support the proposition that there is a causative link between exposure to beryllium and the development of bladder cancer.

18. For the Commission to avoid the application of the deeming provision in subsection 7(1) I must be satisfied, on the balance of probabilities, that Mr Riley's exposure to beryllium has not contributed, to a significant degree, to the contraction of the disease he has suffered.

19. Taking into account the evidence of Dr Fox, I am not satisfied on the balance of probabilities that Mr Riley’s exposure to beryllium has not contributed to a significant degree to his contraction of bladder cancer. It seems that medical science has not reached the point of being able to provide evidence one way or the other. Understandably, all Professor Fox is able to say is that “[t]here does not appear to be evidence of any association with bladder cancer”.

20. The Commission has failed to establish that Mr Riley’s employment did not contribute, to a significant degree, to the contraction of the disease he suffered.

    CONCLUSION

21. Having reached the conclusion I have in relation to Mr Riley's exposure to beryllium, it is not necessary to consider the other chemicals to which he claims he was exposed. For the information of Mr Riley, subsection 7(1) does not assist him in relation to the chemicals other than arsenic.

22. In accordance with subsection 7(4) of the Act, Mr Riley is taken to have sustained the injury on the day he first sought treatment for the disease. As the evidence before me does not establish the date of Mr Riley’s first consultation with his general practitioner, I determinate that the date of injury is 31 August 2007, being the date he underwent a bladder tumour biopsy.[19]

    [19] Exhibit R1 at 38.

23. The reviewable decision, being the decision of a delegate of the Military Rehabilitation and Compensation Commission made 2 March 2016, affirming the determination made 25 March 2015 which denied liability to compensate Mr Riley, will be set aside.

24. In substitution, it will be decided that the determination made 25 March 2015 is set aside and, in substitution, it is decided that the Commission is liable to compensate Mr Riley in respect of the injury of bladder cancer suffered by him on 31 August 2007.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

........................................................................

Associate

Dated: 6 September 2019

Dates of hearing:	20 and 21 February 2019
Applicant:	In person
Solicitors for the Respondent:	Ms A Bortone, Sparke Helmore Lawyers