Rohov and Military, Rehabilitation and Compensation Commission
[2011] AATA 908
•16 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5154
VETERANS' APPEALS DIVISION ) Re MICHAEL ROHOV Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member
Dr M Denovan, MemberDate16 December 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.......................[sgd].......................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Service with Royal Australian Air Force – Claim for compensation for heart disease arising from smoking habit – Smoking not habituated due to military service – Disease not caused by military service – Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127
REASONS FOR DECISION
16 December 2011 Dr K S Levy RFD, Senior Member
Dr M Denovan, MemberINTRODUCTION
1. The applicant, Mr Michael Rohov, is 65 years old. He served in the Royal Australian Air Force (“RAAF”) from 11 May 1965 to 3 July 1985. Mr Rohov suffers from Ischemic Heart Disease (“IHD”). He contends that he contracted this condition because he became habituated to cigarette smoking as a result of his service.
2. Consultant physician Dr E Ringrose examined Mr Rohov and provided a report dated 10 March 2010. In that report Dr Ringrose opined that a major cause of Mr Rohov’s IHD was his smoking habit. Dr Ringrose estimated that Mr Rohov had consumed 30 pack years of cigarettes.[1]
[1] Dr Ringrose defines “30 pack years” as 25 – 30 cigarettes smoked per day: T-documents, Folio 193.
3. On 14 October 2009 Mr Rohov lodged a claim for compensation with the respondent to have influenza/pneumonia, obesity, atrial fibrillation, diabetes mellitus, renal failure and IHD accepted as being service caused.
4. A delegate of the respondent refused the claim on 12 April 2010. Mr Rohov asked for a review of that decision, and it was affirmed 12 November 2010.
5. On 26 November 2010 Mr Rohov applied to this Tribunal for review of that decision. Mr Rohov has elected to pursue only the claim for IHD.
ISSUES AND THE LEGISLATION
6. In his claim Mr Rohov stated that he first sought treatment for IHD on 10 November 2004. Accordingly, the assessment of liability is governed by the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRCA”).[2]
[2] The origin of this authority is from s 124(1A) and (2) of the Act, which are saving provisions for a claim that would have been authorised under the Compensation (Commonwealth Employees) Act 1971 (Cth).
7. The relevant statutory provisions are set out below:
Section 4 Interpretation
injury means:
(a)a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.[3]
[3] These definitions are those that appeared in the Act as it stood at the time Mr Rohov sought treatment in November 2004.
Section 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.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
8. There is evidence that Mr Rohov has a diagnosis of IHD. We accept that that condition is a “disease” as statutorily defined.
9. It is not in dispute that cigarette smoking made a material contribution to the development of Mr Rohov’s IHD. Mr Clark, for the respondent, contends that Mr Rohov’s service in the RAAF did not materially contribute to Mr Rohov developing a habituation to cigarette consumption.
10. The issue for determination in this matter is whether Mr Rohov’s smoking habit can be said to have been contributed to in a material degree by his RAAF service.
EVIDENCE
The Applicant
11. Mr Rohov told us that he voluntarily joined the RAAF when he was 18 years old. He was stationed at RAAF Technical School at Wagga, New South Wales, from September 1965 until 30 October 1968. Mr Rohov says that his classmates ostracised him for what he believes was his superior ability. Because he had learnt to play the piano prior to enlisting in the Air Force, he was able to complete the typing tasks much faster than everyone else. He said that on the first day of the course the Flight Sergeant in charge of the course sent him outside and ostracised him. He said that on the second day the same Flight Sergeant sent him outside again, but, this time, he came and spoke to him and reassured him that things would be okay. Mr Rohov says that the Sergeant handed him a packet of cigarettes and told him to ‘have one of these, it will relax you’. He said that that was when his smoking habit commenced. Under cross-examination Mr Rohov was unable to give any examples of what he was referring to by the word ostracised. In written submissions[4] Mr Rohov stated that he believes he commenced smoking at that time due to stress, peer pressure and boredom. He said he commenced smoking at a rate of five to ten cigarettes per day.
[4] See Exhibit 2, D, “Claimant Report – Cigarette Smoking”.
12. Mr Rohov was posted to No 5 Airfield Construction Squadron RAAF Base Tindal Northern Territory (NT) on 30 October 1968. Mr Rohov said that he worked “24/7’ and that the locality was remote. He was given the local purchase run to Darwin, which he said he did alone, twice a week. Mr Rohov says that due to the boredom from the isolation he increased his smoking to 40 or more cigarettes a day.
13. On 15 September 1969 Mr Rohov’s unit was relocated to Amberley in Queensland at very short notice. Mr Rohov stated that he was posted to clean up all of the tools and spare parts of the unit. He said he was by himself until January 1970. Mr Rohov said that this was a very stressful time for him: he had been put in a position above his rank and he was expected to find all of the tools. Due to stress, isolation and boredom he increased his smoking habit to 50 cigarettes a day.
14. On 24 May 1974, Mr Rohov was hospitalised for 12 days due to a chest infection He says he ceased smoking for about two weeks because smoking made his symptoms worse.
15. Mr Rohov was next posted to the RAAF Support Unit Mascot Airport, in Canberra. Here, he says, he had to put up with extremely long hours. He said that, due to boredom and peer pressure, he continued to smoke 50 to 60 cigarettes a day. Mr Rohov said he was stressed because of his role in handling explosive ordinances.
16. In January 1981, Mr Rohov was posted to Headquarters Support Command in Melbourne. He said that at this time he realised that smoking was not good for his health, so he gave up cigarettes and commenced smoking cigars, although he had some short relapses here and there.
17. While posted at Headquarters Support Command, Mr Rohov was given the secondary duty of procurement of all tobacco products for 1800 personnel. He says that he was also responsible for running the social club, which paid for organised activities, including the Christmas party, from tobacco profits. By 1983, the number of personnel had increased to 2500, which he says increased his stress levels. At this time cigarettes were available very cheaply because no Commonwealth tax was payable. He says that he was now smoking at least 60 cigarettes a day.
18. Mr Rohov said that he was then posted to No 1 Central Ammunition Depot at Kingswood in New South Wales. He says that was smoking at least two or three large cigars or as many mini cigars he could get time for. He was appointed deputy chairman of the Sergeants’ Mess. He says he attended many compulsory dining nights in which cigar smoking was free.
19. Mr Rohov said that, in November 1988, he had a mental breakdown following the deaths of his foster mother, wife and foster brother. All of these relatives died within a six-week period. As a result of the death of his wife, he was now also enduring the stress of being a single father with five children to care for. Mr Rohov said he found himself unable to cope with his predicament; he became a ‘no hoper’. He says that he stopped smoking for six weeks, only to recommence smoking an even higher number of cigarettes. He said he recommenced smoking at that time as the result of attending a family Christmas dinner. He partook in the family tradition of having a cigar after the cake was eaten and continued to smoke from that time until 1994, when he met his current partner.
20. In 2004 Mr Rohov suffered his first heart attack. He says that he ceased smoking for six weeks.
21. Mr Rohov is also an advocate for veterans. He has completed a three-day advocacy course, a three-day pension course and a ten-day senior advocacy course.
Dr Peel
22. The Tribunal had the assistance of evidence from Dr G Peel, Director of Military Medicine, Joint Health Command. He provided a report, dated 23 August 2011, and gave evidence at the hearing. Dr Peel commenced full-time service in the RAAF in 1978. In addition to his medical degree, Dr Peel completed a Masters of Public Health treatise, which analysed the prevalence of smoking and other occupational issues amongst RAAF personnel. Dr Peel has a detailed understanding of smoking in the RAAF, particularly from the mid 1970’s.
23. Dr Peel also made reference to the Cancer Council publication ‘Tobacco in Australia’, from which a table is reproduced below.[5] It details the percentage of persons previously smoking in Australia.
[5] Scollo, MM and Winstanley, MH [editors], Tobacco in Australia: Facts and Issues, Cancer Council Victoria, 3rd edition, 2008.
Table 1.1 – percentage of persons currently smoking in Australia 1945-1986 [sic]
Year
Male
Female
1945
72
26
1964
58
28
1969
45
28
1974
45
30
1986 [sic][6]
43
33
[6] We note that in Table 1.1 in the report it states the year as 1976 and not 1986 as quoted by Dr Peel in his reproduction of the Table in exhibit 7. In any event the error has no effect on the outcome of the decision.
24. Dr Peel stated that, based on his knowledge and research, the incidence of smoking amongst RAAF personnel was similar to that described in the Table, with the exception of pilots and navigators. For this reason, Dr Peel concluded that if there was peer pressure to smoke within the RAAF, it was no greater than in comparable civilian populations.
25. Dr Peel said that the RAAF commenced a Health Promotion Program in 1978. It was fully implemented by the early 1980’s. The program actively discouraged risk factors, including smoking. Dr Peel acknowledged that there was no evidence that Mr Rohov had attended one of the five yearly assessments associated with that program. Even so, Dr Peel said that he would have been exposed to the health promotion through brochures that were on show at medical centres, articles in RAAF News and by his commanding officers, who were trained to introduce their members to health promotion and awareness.
26. The era where free tobacco was available to RAAF personnel ceased in the 1950’s, prior to the commencement of Mr Rohov’s service. Dr Peel stated that the availability of goods that were free of state excise and state taxes, including cigarettes, ceased by the 1980’s. Dr Peel acknowledged that personnel could smoke as many cigarettes and cigars as they desired at formal dinners because the price of alcohol, cigarettes and cigars was included in the price of attendance.
27. Dr Peel said that what causes stress varies from one person to another. He also said that part of his job was to be aware of the activities performed by each mustering. He explained that Mr Rohov’s mustering of ‘Clerk – Supply’ could be likened to the civilian position of warehouse assistant. According to Dr Peel, from the period of the end of the Vietnam War in 1971-1972 until the Gulf War in 1990, this mustering was one of low occupational pressure. He said that, even during deployments, Mr Rohov’s mustering was not one which was likely to have involved high work pressures. Dr Peel concluded that if Mr Rohov found performing the requirements demanding in his military service, then it is likely he would have found civilian employment of a similar type stressful.
28. According to Dr Peel, people often use the same response to stress throughout their life. Hence, once Mr Rohov had established a habit of smoking when he felt stressed, he would likely continue to smoke at the same or increased consumption whenever he felt stressed.
29. Dr Peel stated that all RAAF personnel have daily jobs such as aircraft maintenance, refuelling or administration. Dr Peel opined that it is not appropriate to say that RAAF personnel would smoke out of ‘boredom’. Dr Peel was emphatic that it is an individual choice to smoke and, whether a person does or does not smoke, is determined by constitutional factors. He said that there is considerable psychiatric evidence which suggests that addictive traits are related to a person’s makeup.
30. Dr Peel said that it takes very little time for a person to become addicted to nicotine. He said that, once addicted, a person would likely have cravings for cigarettes if they were to stop smoking. He also said that those cravings would likely continue for many weeks, making a person susceptible to relapse for many weeks after the last cigarette smoked.
CONSIDERATION
Is Mr Rohov entitled to claim under the 1988 Act?
31. The applicant’s claim is prima facie enlivened by virtue of s 124 of the Act. This is a saving provision for those who would have been entitled to compensation under the 1912, 1930 or 1971 Acts. Mr Rohov served in the RAAF when the 1971 Act was in force. He would have been entitled to claim under the 1971 Act if there was evidence of IHD which could be said to have arisen out of Mr Rohov’s RAAF service. The claim under the 1988 Act is therefore conditional upon having an entitlement to claim under the 1971 Act.
32. The facts appear to show that Mr Rohov first became aware of his IHD on 10 November 2004. Therefore, the onset of IHD did not occur during the currency of the 1971 Act. He would therefore only have an entitlement under the 1988 Act if it can be shown that his IHD is a disease which arose out of his RAAF service.
When did Mr Rohov become habituated to smoking?
33. There are two smoking reports prepared by Mr Rohov in the evidence before the Tribunal; the first is dated 9 February 2005[7] and the second is dated 25 February 2011[8]. In both of these reports Mr Rohov stated that he commenced smoking in September 1965 whilst on a clerk equipment course. In both of the questionnaires, Mr Rohov contends that he commenced smoking at the rate of 30 cigarettes a day. At the hearing Mr Rohov said that he did not commence smoking at a rate of 30 cigarettes per day as he had stated in both of the smoking questionnaires. He said that, upon reflection, it is likely that his habit would likely have developed more gradually.
[7] T-Document 33.
[8] Exhibit 2.
34. Mr Clark referred us to the report of vascular surgeon Dr J Sing[9] and contended that Mr Rohov likely commenced smoking prior to enlisting in the RAAF. In that report, dated 1 December 2006, Dr Sing stated that Mr Rohov had smoked 35 cigarettes a day for approximately 35 years. Dr Sing noted Mr Rohov had not smoked for 20 years. From reading the history that Dr Sing has reported, the conclusion to be drawn is that Mr Rohov commenced smoking in 1961, some four years prior to his enlistment in the RAAF. It was Mr Clark’s submission that Mr Rohov was 20 when he enlisted and was old enough to have an established smoking habit prior to his enlistment. Dr Clark contended that Mr Rohov changed the smoking history he gave after he became more aware, through the advocacy course he was partaking in, of the requirements of a successful claim. Mr Rohov told us that Dr Sing must have made a mistake, or that perhaps he had not understood the question Dr Sing had asked him.
[9] Exhibit 8.
35. Mr Clark also contended that the evidence was that Mr Rohov was not a smoker in 1974. Mr Rohov was admitted to military hospital on 24 May 1974 with what was diagnosed as pneumonia. The medical notes[10] record Mr Rohov as saying he was a non-smoker. Mr Rohov told us that he reported being a non-smoker because he had ceased smoking a day or two prior to his admission. He said that was because smoking made the symptoms due to his illness worse. Mr Clark contended that two inferences could be drawn from that evidence; either Mr Rohov had quit smoking prior to 1974 or, alternatively, he did not commence smoking until after 1974.
[10] T-Document 4, especially Folios 39 – 40.
36. The report of Dr Sing did not specifically identify the year Mr Rohov commenced smoking. A conclusion that Mr Rohov commenced smoking prior to commencing his military work would be at odds with the other evidence before us.[11] It is possible that Dr Sing did not place a lot of significance on the exact year Mr Rohov commenced smoking and simply rounded up the information given to him by Mr Rohov. Dr Sing was not made available for cross-examination, so we are unable to make either of the conclusions Mr Clark suggested.
[11] Report of Dr Ringrose and two smoking reports of Mr Rohov.
37. We find that Mr Rohov commenced smoking in September 1965 soon after he joined the RAAF. Given Dr Peel’s evidence of the speed at which addiction develops and the length of time that addiction remains after the last cigarette, we conclude that Mr Rohov became habituated sometime during the two-month course in 1965. We also find it unlikely that Mr Rohov ceased smoking for any significant time in 1974, 1981 or 1986. At those times, based on the evidence of Dr Peel, we conclude Mr Rohov did not stop long enough to break his addiction to the nicotine responsible for his habitual smoking.
Why did Mr Rohov become habituated to smoking?
38. In the earlier smoking questionnaire completed by Mr Rohov he stated that he commenced smoking due to stress, peer pressure, availability and as a way to accelerate promotion chances. In the later report Mr Rohov stated that the reason he commenced smoking was due to: peer pressure: because everyone else around him was smoking at the time; because his superior officers were heavy smokers; because cigarettes were supplied at the end of compulsory dining in nights with port; and because cigars and cigarettes were heavily discounted through the Australian Service Canteen Organisation and Sergeants’ Mess.
39. Mr Rohov was adamant in the hearing that he had been ostracised by his superiors and that he commenced smoking as a way to cope. He claimed he was also ostracised by the other members of the RAAF who were jealous of his typing efficiency. Mr Rohov made no reference to being ostracised in either of the two smoking questionnaires. Mr Rohov produced no evidence that supported his claim that he was ostracised. Under cross-examination, Mr Rohov was unable to give any examples of what he was referring to by the word ostracised. Even if Mr Rohov did find some of his supervisor’s comments demoralising, it was his evidence that within 24 hours the same officer was sympathetic and behaved kindly towards him. According to Mr Rohov, he smoked his first cigarette not after he was ostracised but, rather, after he was offered a cigarette by his supervisor as a gesture of kindness. We do not accept that ostracism during his military employment had any causal connection with Mr Rohov’s commencement of smoking.
40. We consider it very unlikely that Mr Rohov decided, at that earlier stage of his career, that smoking would enhance his promotion opportunities. This was a contention Mr Rohov did not pursue at the hearing. Mr Rohov’s attendance at formal dinners would not have occurred until he was a Sergeant.
41. When Mr Rohov commenced smoking on the second day of his training in September 1965. We find that Mr Rohov had established a habit of smoking prior to attending any compulsory dining nights. Mr Rohov’s subsequent attendance at formal dinners was likely to have been very minimal and certainly not frequent enough to contribute to his habituation of smoking. On the basis of Dr Peel’s evidence, we conclude that by the time Mr Rohov attended compulsory dining nights he already was a habitualised smoker.
42. Dr Peel’s evidence was inconsistent was Mr Rohov’s claim that in 1981 the discounted cost of cigarettes contributed to his increasing the number of cigarettes he smoked. We find that availability of discounted cigarettes did not play a part in Mr Rohov’s smoking habituation. Dr Peel also discounted boredom as a cause of Mr Rohov’s smoking habitualisation, and we accept that evidence.
43. Mr Clark referred us to the Full Federal Court’s decision in Military Rehabilitation and Compensation Commission v Wall.[12] In that matter Wilcox and Downes JJ affirmed the earlier decision of this Tribunal which found that the causal connection was established with Mr Wall’s smoking habit and his military employment. In that case their Honours found that Mr Wall, who was conscripted to National Service, had become habitualised to smoking during military service. Their Honours said at [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 or 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. That is likely always to be a difficult case for an applicant to make good. However, it is implicit in the Tribunal’s finding that the respondent succeeded in persuading it that this was the situation in the present case.
[12] [2005] FCAFC 127.
44. We accept the evidence of Dr Peel and find that Mr Rohov’s decision to commence smoking and to continue smoking were personal decisions that he would likely have made irrespective of whether or not he had enlisted in the RAAF.
45. Even if his smoking habit had a temporal association with his military service, it cannot be said that he was habitualised to smoking because of his military employment. We find that Mr Rohov was not significantly affected by the fact of, or culture of, smoking in association with dining in nights. We find that he became habitualised to smoking predominantly due to his personal choices. The cause of his smoking that resulted in IHD was therefore not contributed to in a material degree by his service in the RAAF.
46. We are satisfied that Mr Rohov could not establish a claim under the 1971 Act. Therefore, he is not eligible to claim under the 1988 Act. Even if he was, for the reasons set out above, that application must also fail.
47.The decision under review is affirmed.
I certify that the above 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr M Denovan, Member
Signed: ..............................[sgd]............................................
Research AssociateDate/s of Hearing 19 October 2011
Date of Decision 16 December 2011The applicant was represented by Tony Hornby, advocate
Counsel for the respondent Charles Clark
Solicitor for the Respondent James McIntyre
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