Robinson and Military Rehabilitation and Compensation Commission

[2006] AATA 506

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 506

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/470

VETERAN’S APPEALS DIVISION		)
Re		JASON ROBINSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date9 June 2006

PlaceBrisbane

Decision The decision under review is set aside. The Tribunal decides in substitution that the respondent is not liable under the Safety Rehabilitation and Compensation Act 1988 in respect of the applicant’s irritable bowel syndrome.

...........[Sgd]..................................

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – applicant suffers from irritable bowel syndrome – applicant claims condition was caused by army service overseas – date of onset of the condition – aggravation of the condition during service – medical evidence establishes the applicant suffered condition prior to service and therefore condition not attributable to employment

Safety Rehabilitation and Compensation Act 1988 s 4, 14

REASONS FOR DECISION

9 June 2006	Senior Member B J McCabe
introduction

1.      Mr Jason Robinson suffers from irritable bowel condition. He says the condition emerged during the course of his service with the Army in East Timor in 1999-2000. He has made a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRCA). The reviewable decision dated 17 March 2004 said the applicant already suffered from irritable bowel syndrome when he travelled to East Timor. The respondent accepted the condition was temporarily aggravated in East Timor but determined the effects of the aggravation ceased by 30 April 2000. Mr Robinson has now asked the Tribunal to reconsider the matter.

2.      I do not accept the applicant’s employment contributed to the development or aggravation of irritable bowel syndrome. It follows I have decided to set aside the decision under review. My reasons are set out below.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant and respondent both tendered medical reports from experts at the hearing. The applicant tendered a written statement and gave evidence, as did:

·Dr Croese; and

·Dr Whiting.

4.      The applicant was represented by Mr Elliott of counsel. Mr Clark of counsel appeared on behalf of the Military Rehabilitation and Compensation Commission.

the factual background to the dispute

5.      The applicant was born on 1 October 1975. He enlisted in the regular Army in April 1995. He underwent basic training at Kapooka. He served in a variety of roles before being assigned to Ten Field Support Battalion as a deck hand on an Army vessel. His unit was despatched to serve in East Timor in December 1999. The applicant remained there until May 2000. He continued serving with the unit until the following year when he was posted to the Army Logistics Training Centre. He remained in that role until he was discharged in 2003.

6.      The applicant acknowledged his last year or so in the Army was stressful. He was injured in a motorbike accident. The injury to his leg meant he would not be able to work on a boat and might be confined to carrying out clerical duties. There was also a dispute with his superiors over the possibility of a transfer to Darwin. Mr Robinson said he decided to leave the Army in October 2003 in order to develop his career. He denied that he left because of his bowel condition.

7.      The applicant said he noticed his bowel motions increasing to two or three times a day while he was in East Timor. The motions in each case were watery and loose. He cannot remember a specific time or date when the symptoms commenced. He said the condition appeared to take hold over a period of time. He told the Tribunal he did not experience any stomach pain. He self-medicated with immodium. He did not tell anyone about his medical condition while he was in East Timor or immediately upon his return. He says disclosures of that nature were inadvisable because they might have an adverse effect on one’s career. He says that in any event he did not think he was suffering from a disease. He assumed he just needed more fibre in his diet.

8.      Mr Robinson says the condition worsened throughout 2001-2002. In his statement, he said he was experiencing bowel motions up to six or eight times a day. In his oral testimony, he said he had good days and bad days but he insists the condition has persisted to the present day.

the medical evidence

9.      The medical experts agree the applicant suffers from irritable bowel syndrome (IBS). The dispute in this case is over the date of onset, and the connection (if any) with the applicant’s work in the Army.

10.     The applicant agreed he had experienced diarrhoea on a number of occasions prior to his service in East Timor. Medical records show he reported diarrhoea in 1996, 1997 and 2000. Mr Robinson pointed out he had a number of other visits to the doctor during that period that did not record any mention of diarrhoea. He insists the condition took hold during his service in East Timor.

11.     It is difficult to corroborate the applicant’s claim that the condition had its onset during his time in East Timor. He did not mention the condition to anyone while he was there, or immediately upon his return to Australia. The applicant says he mentioned diarrhoea during the course of a medical examination in November 2000, and again in August 2001. He did not receive any treatment at the time from Army doctors; he continued to self-medicate with immodium.

12.     The applicant was finally referred to a gastroenterologist in 2001. Dr McDonald observed in the referral document (exhibit one, p 29) that the applicant had experienced “four years intermittent diarrhoea”. Mr Robinson denies that he ever suggested that to Dr McDonald; he says he does not know why she wrote it. In any event, he visited Dr Croese, the specialist on 9 October 2001 for the first time. Dr Croese transcribed his written notes of that consultation in a letter to the applicant’s solicitor dated 15 November 2005. Dr Croese said the applicant had told him the symptoms had begun four or five years earlier but they were intermittent.

13.     Interestingly, the applicant agreed he did not mention East Timor to Dr Croese at those initial consultations. Dr Croese also noted in a subsequent report (exhibit one, p 46) that the applicant was making a compensation claim in respect of his condition. In the same paragraph of the report, Dr Croese noted that Mr Robinson disputed the condition had been present for four or five years.

14.     Dr Croese spoke at some length about IBS. He said it was usually diagnosed after other possible explanations were investigated and dismissed. He agreed the condition was poorly understood. It could be brought on by a variety of factors, including infection, stress, or a change of diet. He suggested it was, in many cases, the product of life circumstances. He added that no one really knew what the cause might be. He agreed the applicant’s history was not consistent with him having experienced an infection in East Timor, although Dr Croese maintained it was a possibility.

15.     Dr Croese’s thesis appears to be as follows: we cannot be sure what caused the condition, but it was probably aggravated if not caused by the circumstances of the applicant’s life – and his military service was a prominent feature of his life at the time of onset. The stress associated with the applicant’s job was likely to be a particularly significant factor.

16.     Dr Whiting agreed that IBS was poorly understood, and that its ultimate cause was unknown. He said it was not caused by stress, although stress might aggravate the symptoms.

17.     Dr Whiting went on to note the case had a number of unusual features. He was sceptical about the possibility of an infection while the applicant was in East Timor: Dr Whiting said one would normally know if one had infectious gastro-enteritis. He said a gradual onset of symptoms was unusual following an infection, but not completely unknown. In his report dated 17 June 2005, Dr Whiting conceded (exhibit one at p 68) that if the applicant’s story were true, his irritable bowel syndrome

…was likely to be caused by his military employment in that it is possible that he contracted an infective gastroenteritis while serving on the barge [in East Timor] that has left him with post-infectious irritable bowel syndrome.

18.     Dr Whiting also accepted that reports of diarrhoea back to 1997 suggest IBS probably pre-dated the applicant’s service in East Timor: exhibit one, p 70. In those circumstances an infection might have aggravated a pre-existing condition. He went on to say (ibid) that the aggravation would have ceased and the infective component of the condition would be gone.

19.     Mr Clark clarified this view in his examination in chief. He asked Dr Whiting how long one would expect the symptoms to persist if the applicant had in fact experienced an infection in East Timor. Dr Whiting said the symptoms would not ordinarily persist beyond 24 months, although he conceded that was not always the case. In a small number of cases, the symptoms might persist for longer.

the law and its application

20.     Section 14 of the SRCA says the respondent is liable for injuries suffered by an employee. Section 4 says a disease may amount to an injury for the purposes of s 14 if it is an ailment or an aggravation of an ailment “that was contributed to in a material degree by the employee’s employment by the Commonwealth…”.

21.     Mr Robinson gave inconsistent histories to the various doctors he consulted. I think that the balance of the evidence – the medical records and the accounts given (although later disputed) to Dr McDonald and Dr Croese – favour a finding that the applicant was suffering from IBS prior to his service in East Timor. I do not accept that the original onset of the condition was attributable to his employment. The next question is whether the applicant’s condition was aggravated as a result of his service in East Timor.

22.     I do not accept the applicant’s claim that he experienced a significant worsening of the symptoms in East Timor. He may well have experienced diarrhoea during that period. That is unsurprising, given my finding that he was experiencing symptoms for some time before he left for East Timor. But he did not tell anyone that his condition had worsened, and there was no corroborating evidence that suggested he was experiencing increased difficulty. He told no one about his condition upon his return to Australia despite having ample opportunities to do so. While I accept he may have been embarrassed and fearful for the impact the condition might have on his career, I am nonetheless surprised that he did not seek help if the condition was as bad as he claimed. It may be that he did not seek treatment at that time because he had lived with the condition for several years and thought he knew how to manage it. When he did see a specialist for treatment some time later, he did not mention his service in East Timor.

23.     I note the respondent accepted in its reviewable decision that there was an aggravation of a (pre-existing, unrelated) condition as a result of an infection. But a close reading of Dr Whiting’s report (which forms the basis of the determination) makes it clear that his conclusions about aggravation are based on the history provided by the applicant. As I have already pointed out, I do not accept Mr Robinson experienced a worsening of his symptoms during his service in East Timor.

24.     I accept the applicant’s condition worsened some time after he returned from East Timor. That is why he finally decided to seek medical assistance from Dr Croese. But apart from the applicant’s account (which has been inconsistent) and the knowledge that defence personnel deployed to East Timor faced a greater risk of exposure to infectious gastroenteritis (amongst other things), the evidence does not support the applicant’s claim that his condition was aggravated by his service.

25.     For the sake of completeness, I note the applicant also argued his condition might have been aggravated by stress. While the medical experts did agree that stress might be a factor in the aggravation of the symptoms of the condition, there is not enough evidence to support a finding that stress was a factor in Mr Robinson’s case.

conclusion

26.     The Tribunal accepts the applicant suffers from irritable bowel syndrome, and that the condition had its onset while he was a member of the defence forces. It is possible the applicant’s symptoms were aggravated by the conditions of his service. But that is not enough. This condition is poorly understood by the medical profession. Noone really knows what causes it, and the doctors have a poor understanding of what might aggravate the symptoms. While stress or an infection might have played a part, the doctors are ultimately speculating. I do not think there is enough evidence to satisfy the Tribunal that the respondent should be liable for the onset of irritable bowel syndrome or for any aggravation of that condition. The reviewable decision is therefore set aside.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  22 March 2006
Date of Decision  9 June 2006
The applicant was represented by Mr Elliott, of Counsel.
The respondent was represented by Mr Clark, of Counsel.