Samarasekera and Military Rehabilitation and Compensation Commission
[2007] AATA 1726
•31 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1726
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600509
) Re CAROL SAMARASEKERA Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Senior Member Date31 August 2007
PlaceBrisbane (heard in Townsville)
Decision The Tribunal affirms the decision under review.
...................[Sgd].....................
Senior Member
CATCHWORDS
COMPENSATION – service in the Australian Army – smoking – cholesterol intake – management of cholesterol levels – stress – myocardial infarction while employed by Army - Ischaemic heart disease – applicant claimed heart disease related to employment – decision affirmed.
Safety Rehabilitation and Compensation Act 1988 - ss 4, 4(1), 14(1)
Veterans’ Entitlements Act 1986
Kennedy Cleaning Services Pty Ltd v Petrovska (2000) 200 CLR 286
Australian Postal Corporation v Burch (1998) 85 FCR 264
Wall and Comcare (Department of Defence) [2004] AATA 229
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Coward v Military Compensation and Rehabilitation Service (2006) 90 ALD 659
Repatriation Commission v Wellington (1999) 57 ALD 507
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
REASONS FOR DECISION
31 August 2007
Ms M J Carstairs, Senior Member 1. In January 1990 Mr Carol Samarasekera suffered a myocardial infarction (a heart attack) and was diagnosed with ischaemic heart disease. He seeks compensation for ischemic heart disease as being related to his employment in the Australian Army. Mr Samarasekera maintains that factors of stress, cigarette smoking and the Army’s failure to provide adequate medical management of his cholesterol condition (hypercholesterolaemia) have caused or aggravated the conditions.
2. The respondent readily concedes that there is a connection between smoking and heart disease, just as there is between raised cholesterol levels and heart disease, but nevertheless denies liability on the grounds that no employment factors relevantly caused or aggravated the condition.
ISSUES
3. The issue before the Tribunal is whether Mr Samarasekera’s ischaemic heart disease or injury is compensable under the Safety Rehabilitation and Compensation Act 1988.
4. Mr Samarasekera has claimed for ischaemic heart disease, a condition first diagnosed in 1990 when he suffered a myocardial infarction. For that claim he relies upon inadequate medical management after the condition was diagnosed, which brings the claim under the 1988 Act and not the previous legislation.
5. It is agreed between the parties that Mr Samarasekera’s myocardial infarction would be an injury within the terms of the 1988 Act, because is involves a sudden physiological change or disturbance to the normal physiological state.[1] His ischaemic heart disease is not an injury in that sense. It would fall, however, within the definition of ailment in the Act, and Mr Samarasekera asserts that his ailment of ischaemic heart disease comes within the definition of disease in s 4 of the Act. The Act treats diseases as injuries, but only by definitionally limiting disease to those ailments contributed to in a material degree by an employee’s employment by the Commonwealth.
[1] Kennedy Cleaning Services Pty Ltd v Petrovska (2000) 200 CLR 286; Australian Postal
Corporation v Burch (1998) 85 FCR 264.
BACKGROUND
6. Mr Samarasekera came to Australian at the age of 20 years and commenced his university studies at the University of New South Wales. In 1975 he obtained his B Engineering (Mechanical) and the following year, at the age of 25, he joined the Army. He served in the Army from 1976 until 2005, when he retired having achieved the rank of Lieutenant Colonel.
7. Mr Samarasekera had an active sporting life both before he joined the Army and subsequently. He played tennis, inter-service cricket and hockey. Later, he took up running marathons and it seems that it was in this context that he was experiencing some of the ill effects of smoking cigarettes. He decided to give up smoking, and did so in about 1989 according to a medical report dated later that year.[2] As noted however, he suffered a heart attack in 1990, at 40 years of age.
[2] Exhibit R5, report Dr P Horvath 25 October 1989; T46, p 77.
8. In 1990 Mr Samarasekera underwent coronary angiography for single vessel disease (right coronary artery). In July 2002, Dr P Habersberger, cardiologist, identified Mr Samarasekera as having triple vessel disease.[3] He undertook by-pass surgery to correct the condition – according to all reports, with good results.
[3] T36, p 56.
9. Shortly after taking his discharge from the Army at the compulsory retirement age of 55, Mr Samarasekera claimed compensation for his heart condition as being related to his employment in the Army, on the basis of smoking, work stress and inordinate postings throughout Australia.[4] In the case as presented to me, he also relied on what he referred to as the Army’s inadequate medical management of his known cholesterol problem following his heart attack in 1990.
[4] T3.
10. It was determined, in a consent decision of this Tribunal in 2004, that Mr Samarasekera’s ischaemic heart disease was related to his Army service for purposes of a pension entitlement under the Veterans’ Entitlements Act 1986.[5] The provisions of that Act are rather different. I acknowledge that Mr Samarasekera firmly believes that the same result should follow in his compensation claim, but I can only apply the provisions of the legislation before me. For similar reasons I do not regard the Repatriation Commission’s Guidelines for assessing smoking claims under the Veterans’ Entitlements Act, to which Mr Samarasekera also referred me, as having any particular instructive value for deciding Mr Samarasekera’s compensation case.[6] They are useful general background but no more.
[5] Exhibit A3.
[6] Exhibit A11.
SMOKING
11. Mr Samarasekera stated that he did not smoke before he came to Australia because it was not a socially accepted practice in Sri Lanka. He commenced his university studies here and became involved in group sports. At that time in Australia more people were smoking so he simply joined in. As best one can ascertain, it seems Mr Samarasekera was smoking about 10 cigarettes per week between 1971 and 1975.
12. The parties disagreed about the levels of Mr Samarasekera’s smoking both at the time he joined the Army and later in his Army service. Mr Samarasekera wanted me to accept that he was a light smoker before his Army service and not habituated to cigarettes, but became habituated due to service conditions. Mr Clark, counsel for the respondent, contended that Mr Samarasekera had a smoking habit before service and if it increased it was not due to his Army service, but was, rather, a matter of personal choice.
13. Mr Samarasekera likened the circumstances of his smoking habit to those found by the Tribunal in the case of Wall and Comcare (Department of Defence) [2004] AATA 229, a case discussed further below. Mr Samarasekera stated that when he joined the Army he was required to attend a 9-day Young Officers’ course at Bandiana, Victoria. In May that year he attended an Introductory Officers’ course at Healesville and on both occasions he was required to live at the base. He said that he was under a great deal of stress. Not only was he from a different culture and felt he was not fitting in easily or being accepted by others, he had no Army experience. Unlike others attending the officers’ course who had backgrounds in military academies or other Army experience, Mr Samarasekera had none and consequently found the course work difficult. He said smoking was the norm in the Army at the time and by joining others who smoked he felt like he fitted in.[7] He said it also relieved his stress when he was obtaining poor grades.
[7] Exhibit A1.
14. Mr Samarasekera said he feared failure and had concerns about his suitability for the Army - particularly whether his language difficulties and his lack of experience of military procedure would make the job of commanding others too hard. When he was posted to his unit having passed the course, he had difficulty asserting command over his troops and he felt under-trained and inexperienced. I should observe that whatever his early concerns, his performance reports a few years further on are glowing; he was regarded as having superior officer qualities and was making his mark in the sporting arena as well as in his duties.[8] Nevertheless, Mr Samarasekera blames his smoking habit on a combination of stress to perform, boredom and informal social pressure to smoke.
[8] Exhibit A2.
15. Over the course of Mr Samarasekera’s Army service there were numerous medical reports in which doctors recorded Mr Samarasekera’s estimates of his smoking habit. The first record was on Mr Samarasekera’s Entry Medical Questionnaire dated 22 April 1975 which stated that he smoked: Cigs. 20 per week.[9] Mr Samarasekera now says that he must have exaggerated that estimate, as he hardly smoked at all at that time. A medical report in December 1975 noted that Mr Samarasekera Drinks & smokes occasionally.[10] A report in July 1976 recorded smokes 10 cigs/day.[11]
[9] Exhibit A2, E1.
[10] Exhibit A2, E2.
[11] Exhibit A2, E10.
16. I note that these figures recorded in medical examinations were rather less than amounts Mr Samarasekera estimated in 2004 on a form headed Claimant Report – Cigarette Smoking[12] with reference to his claim for a pension. Therein he stated that he commenced smoking on a regular basis after enlisting, at some time in 1976. In addition he provided the following details in relation to changes in his smoking habits over time:
[12] Exhibit R4.
Date of Change New amount smoked per day Reason for change
1976 10-15 (writing indecipherable)
1980 20-25 Pressure and intensity
of work
1985 30 Stress and work related
1989 40 - - -
1990 Ceased smoking
17. Mr Samarasekera says that when he provided that information to the Department of Veterans’ Affairs he believed his answers were correct. The medical records presented to me, however, showed the following:
1981 10 cigarettes per day[13]
1981 15 cigarettes per day[14]
1988 smokes 7/d[15]
1989 smokes: not for 7/12, 5 to 7 per day prior to that[16]
[13] Exhibit R5, p 6: report dated 29 June 1981.
[14] Exhibit R5, p 8: clinical notes dated 2 July 1981.
[15] Exhibit R5, p 9: clinical notes dated 14 September 1988.
[16] Exhibit R5, p 11: Inpatient Summary, 25 October 1989.
18. When questioned about these inconsistencies – particularly what I regard as the major inconsistency between the 7 per day reported to a doctor in 1989 and the claimed 40 per day for 1989 cited by Mr Samarasekera in his pension claim – Mr Samarasekera denied exaggerating his smoking levels for the purposes of his Veterans’ claim. He said he put what he believed to be true and observed that in doing so he was recalling events in the past as best he could.
19. Unquestionably, it does become more difficult to recall things that happen in the past, but it does not sufficiently explain this level of discrepancy, nor the suggestions apparent in the Claimant Report – Cigarette Smoking that he had not smoked before 1976 (the year he joined the Army). It seems to me preferable, in the face of such discrepancies, to rely on what Mr Samarasekera told doctors at the time, when his memory was fresh. I do not accept that his smoking levels ever reached those set out in his claim to the Department of Veterans’ Affairs.
20. Based on this the evidence I was satisfied that Mr Samarasekera’s smoking on enlistment was sufficiently regular for him to report it to the doctor examining him as being 20 cigarettes per week. I prefer that evidence to Mr Samarasekera’s assertions now that this figure was exaggerated or that he did not really smoke before he joined up. The evidence of Mr Samarasekera’s brother, Mr Rohana Samarasekera, about Mr Samarasekera’s smoking before service was of little assistance. He indicated in his oral evidence that he was relying on what Mr Samarasekera told him, namely that he started smoking in 1976. I do not accept that as correct. I was satisfied that Mr Samarasekera was already smoking when he joined the Army, albeit at a moderate level.
21. Dr Habersberger was asked for his views about the factors in Mr Samarasekera’s case. In a report dated 12 May 2004,[17] Dr Habersberger said that coronary artery disease is endemic in the community and risk increases with age, with known contributory factors being, amongst other things, cigarette smoking and hypercholesterolaemia, both of these being implicated in Mr Samarasekera’s case. Dr Habersberger stated that employment in the Army was definitely not the cause of Mr Samarasekera’s condition and he thought that employment would contribute negligibly to any aggravation acceleration or recurrence of the condition.
[17] T42, p 66.
22. I have already noted that Mr Samarasekera stated that his consumption moved upwards from some 20 cigarettes per week on enlistment to his reporting somewhere between 5 and 10 per day fairly consistently throughout the 1980’s. The evidence indicates that his smoking levels increased over time, as would be expected with an addictive substance. However, the nub of the issue, regardless of the precise amounts or increases, is that Mr Samarasekera must show a connection between smoking and his employment in the Army. In that regard I return to the provisions of the Act.
23. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that:
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.
Injury is defined in s 4(1) of the Act as:
(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;
Thus injury is defined as including a disease, which in turn in s 4 is defined as:
(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.
Ailment, I should note, means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
24. Returning now to the case of Wall where the Tribunal decided that Mr Wall’s smoking was related to his defence service, at paragraph [28] Senior Member Allen said:
In this case and with hindsight, to take a young man of 19 years away from his normal life and place him in an environment where smoking is common among his peers, is encouraged by the provision of cheap cigarettes together with the strains and tensions of army life, particularly in recruit training, then it is clear that to adopt a smoking habit is a risk of that employment.
25. Wall’s case was upheld by the majority of the Full Federal Court;[18] while noting that the case was confined to its own facts. The Court said at para [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.
[18] Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1.
26. I was satisfied that the facts in Mr Samarasekera’s case were very different from those in Wall. Mr Wall was considerably younger than Mr Samarasekera at the time of joining up. Mr Wall was 19, whereas Mr Samarasekera was almost 26 years of age and Mr Wall was not a smoker, whereas Mr Samarasekera was. One would reasonably expect a 19 year old to be more impressionable. Mr Wall was placed in rather different circumstances in the 1950s as a young National Serviceman taken away from his normal life – all matters to which Senior Member Allen specifically referred.
27. For Mr Samarasekera to succeed he needed to show that his ischaemic heart disease was contributed to by the performance of his duties in the Army. In Comcare v Sahu-Khan (2007) 156 FCR 536 Finn J, adopting the conclusions reached by French and Stone JJ in Comcare v Canute (2005) 148 FCR 232, said that the question of material contribution, as is required for liability to arise in respect of an ailment in the 1988 Act, imposes an evaluative threshold below which a causal connection may be disregarded.[19] It requires an evaluation of all relevant contributing factors for the purpose of asking whether the employment did or did not contribute to the necessary threshold level to the ailment.
[19] At para 13.
28. I agree with Dr Habersberger that there was no connection between Mr Samarasekera’s service in the Army and smoking. Dr Habersberger pointed out that the incidence of smoking in the Army was much the same as in the general population and it is relevant, as he observed, that the Army was not providing cigarettes to servicemen.
29. I was satisfied on the facts here that Mr Samarasekera’s Army service provided only the setting in which he increased his smoking levels. This was a matter of personal choice and there was no characteristic or feature of his employment in the Army or the duties (ancillary or otherwise) required of him, nor anything in the circumstances in which Mr Samarasekera was undertaking those duties[20] that contributed to his smoking.
[20] Coward v Military Compensation and Rehabilitation Service (2006) 90 ALD 659.
CHOLESTEROL
30. In respect of cholesterol Mr Samarasekera said that the Army failed to treat his hypercholesterolaemia, and as a result caused an aggravation and acceleration of his heart disease.[21] Mr Samarasekera claimed that the Army did not test his cholesterol levels before his heart attack in 1990. He maintains that after his heart attack he was not monitored regularly to ensure that his cholesterol levels were sufficiently reduced – or, if his cholesterol was being measured he was not told that his levels were too high. He maintains that if he were a civilian he would have adopted the National Heart Foundation guidelines.[22]
[21] Exhibit A1 p 11.
[22] Exhibit A1.
31. The medical reports at the time of Mr Samarasekera’s myocardial infarction comment upon the contributory factors. Dr David Richards, cardiologist, noted that Mr Samarasekera was an ex-smoker and had hypercholesterolaemia, but was not hypertensive.[23] Dr Richards observed that Mr Samarasekera was placed on a low fat diet to reduce his cholesterol and would not smoke again.[24] When he reviewed Mr Samarasekera two months later, Dr Richards said that Mr Samarasekera had reduced his saturated fat intake and he thought his prognosis was excellent. He declared Mr Samarasekera fit without reservation.[25]
[23] T7, p 22: report of 31 January 1990.
[24] T7.
[25] T45, p 76, report of 22 March 1990.
32. Mr Samarasekera relied upon a report by Dr R Dupuche, consultant physician, dated 15 January 2006.[26] Dr Dupuche stated in his report that there were a number of risk factors for coronary artery disease. The ones relevant for Mr Samarasekera were smoking, cholesterol and ethnicity (with reference to the last, he noted a high incidence of coronary disease amongst Sri Lankans). Dr Dupuche also referred to stress, but observed that its role was a matter of contention medically - although he said that there was evidence it might have a heightened role in the presence of other risk factors.
[26] Exhibit A8.
33. The difficulty that I had with Dr Dupuche’s report was that it was pitched at a rather general level and necessarily relied on what Mr Samarasekera told him. In his report Dr Dupuche expressly limits himself to Mr Samarasekera’s beliefs about the three factors that contributed to his coronary artery disease.[27] There was every appearance from Dr Dupuche’s report that Mr Samarasekera gave a selective history, highlighting only those aspects that supported his case. Mr Samarasekera assured Dr Dupuche that he was only an occasional smoker before joining the Army; he told the doctor that as far as his cholesterol levels were concerned, he was given no regular checks within the Army, was unable to obtain treatment and had no access to private doctors. Faced with Mr Samarasekera’s presentation of his strongly held conclusions that the Army had mishandled his treatment, Dr Dupuche gave a somewhat conditional endorsement of that conclusion. Dr Dupuche also appears to have accepted at face value what Mr Samarasekera told him was undue stress that he suffered in the Army.
[27] Exhibit A8, p3
34. Dr Dupuche stated in his report that Mr Samarasekera’s dislipidaemia was not directly caused by his Army service (except to the extent that the Army had a high cholesterol diet including bully beef). Mr Samarasekera observed in his written statement, that officers’ messes frequently served meals that were high in saturated fat and cholesterol.[28] However a report dated 2 May 1991 indicted that Mr Samarasekera’s diet was low both in saturated fat and cholesterol.[29] Dr Habersberger, who has been a consultant cardiologist to the Defence Force for 20 years, observed that bully beef no longer had high saturated fats and that the Defence Force has put considerable effort into ensuring proper diet for the military. He further observed that lipid levels are largely genetically determined rather than related to diet.
[28] Exhibit A1, p11.
[29] Exhibit R6.
35. Mr Samarasekera provided a thorough analysis of his cholesterol readings as recorded in medical reports after 1990.[30] He submitted that these indicated that regular recommended checks were not implemented and his cholesterol levels were allowed to rise uncontrolled.
[30] Exhibit A7.
36. The following extracts from medical reports after Mr Samarasekera had his heart attack in 1990 are instructive. There were a series of letters from Dr D Richards, cardiologist, to the Army’s Director of Medical Services in relation to Mr Samarasekera’s progress following his heart attack. On 31 January 1990, Dr Richards wrote: He is now on a low fat diet to reduce his cholesterol.[31] On 22 March 1990 Dr Richards wrote: he no longer smokes cigarettes and has reduced his saturated fat intake.[32] A further letter dated 24 October 1990, which Dr Richards addressed to the Director of Medical Services at Victoria Barracks, (copied to Mr Samarasekera’s general practitioner) stated:…he had been well, although his cholesterol had been up to 8mmol/l when he had not maintained dietary restriction of saturated fat…The cholesterol should be checked 3-4 times each year and if it remains persistently over 6.5-7.0mmol/l then he should consider using Cholestyramine 9g tds.[33]
[31] T7.
[32] T9.
[33] T10.
37. On 2 May 1991 Mr Samarasekera was referred to Dr Moore for advice and information, and the following was noted on the report: a dietary history indicates that his usual diet is both low in saturated fat and cholesterol. I recommend that he continue his present diet.[34] An entry dated 12 January 1993 recorded that Mr Samarasekera attended Dr Ham, stating wants cholesterol check, last in Aug’ 92.[35]
[34] Exhibit R6.
[35] Exhibit R6.
38. On 1 March 1994, Dr D Hunt, cardiologist, wrote to Dr Fried, medical practitioner at Victoria Barracks (who had asked him to examine Mr Samarasekera who was complaining of chest tightness when undertaking exercise).[36] Dr Hunt made the observation that Mr Samarasekera’s cholesterol had stayed between 6 and 7 with a HDL of 1.3. Mr Samarasekera had an angiogram at that time.
[36] T11, p 26.
39. On 30 December 1997[37] Dr Hunt, observed that it was four years since Mr Samarasekera’s last angiogram and recommended one, but Dr Hunt commented that from a functional point of view Mr Samarasekera heart was very good indeed. On 16 August 1999, Dr Hunt wrote to Dr Corbett at the Army Medical Centre that Mr Samarasekera believed his recent cholesterol result was 5.5 which is of course alarming and his cholesterol should be kept much lower than that. I am not sure whether this recommendation has to be authorised by the ARAP as in your note however I shall leave it to you to continue with standard practice and ensure his cholesterol is well under 5.0 and preferably under 4.0.[38]
[37] T22.
[38] T28.
40. On 18 April 2002, Dr V Grove medical practitioner at Victoria Barracks, recorded that Mr Samarasekera’s cholesterol levels were raised and referred him to Dr Habersberger[39] for the first time in May 2002. Dr Habersberger conducted coronary bypass surgery in July 2004, the results of which have been, according to the doctor, very satisfactory.[40]
[39] Exhibit A2, E 165.
[40] T65.
41. Dr Habersberger addressed the question of the adequacy of medical treatment of Mr Samarasekera’s hypercholesterolaemia in the following way. Dr Habersberger reviewed the treatment records for Mr Samarasekera’s admission to Wangaratta and Westmead Hospitals in 1990 and said that the records showed that he was given appropriate treatment. He said that Mr Samarasekera was commenced on Zocor (or simvastatin), a drug used in the treatment of hypercholesterolaemia that only became available in 1992. This was commenced on Dr Hunt’s recommendation in 1994. In his oral evidence Dr Habersberger agreed that if he had been treating Mr Samarasekera in 1992 he would have commenced him on Zocor at that time. Even so Dr Habersberger concluded that Mr Samarasekera received appropriate treatment and management of his condition.
42. Dr Habesberger said that treatments now are rather different from what was available at the time that Mr Samarasekera suffered his heart attack. He noted, for instance, that the drug cholestyramine that was suggested by Dr Richards in 1990 had proved to be ineffective and difficult to take.
43. The respondent submits that Mr Samarasekera’s health was being closely monitored within the Army, including his cholesterol levels following his heart attack. I accept the evidence that his results were being checked and monitored. I took into account that Mr Samarasekera believes that his variable results from a number of tests performed between 1990 until 1999 measuring cholesterol levels (which he summarised in his written submission to the Tribunal)[41] should have led to different treatment. However I accept the evidence of Dr Habersberger that there was no failure to provide adequate treatment in this case. The test must be the appropriateness of clinical treatments available at the time,[42]and not current medical standards, a point underlined by Dr Habersberger in his evidence. Dr Habersberger had the opportunity to look at all the medical evidence, and he has been involved in Mr Samarasekera’s treatment since 2002. He is in a good position to comment due to his involvement with this case, and I prefer his views to those of Dr Dupuche, who in any event offered only qualified support for the position that Mr Samarasekera maintains.
[41] Exhibit A11.
[42] Repatriation Commission v Wellington (1999) 57 ALD 507.
44. Returning to the provisions of the Act, it is not sufficient that a condition simply becomes worse; it must be made worse by employment factors.[43] Thus while I am satisfied that the evidence shows that Mr Samarasekera’s ischaemic heart disease did worsen, as was evidenced by the need for further surgical intervention, I was not satisfied that his condition was made worse by his Army employment, through failures of, or inadequacy of, medical treatment.
[43] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537.
45. Even if some contribution were shown to be made in the way submitted (a matter of which I am not satisfied) this would be one only amongst a number of factors, as explained in Dr Habersberger’s evidence, contributing to Mr Samarasekera’s condition. The legislation 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.[44] The evidence here, in my view, does not reach the evaluative threshold for a causal connection, as set out in Sahu- Kahn, the legislation requiring that a factor contributes to an ailment in a material degree.
[44] Sahu-Kahn, above.
STRESS
46. In a number of documents[45] Mr Samarasekera set out sources of stress during his Army service. On the one hand he posed stress as leading to his cigarette smoking. I have dealt the submissions on cigarette smoking sufficiently above.
[45] T49; T57; Exhibit A10.
47. In his report dated 20 June 2005, Dr Habersberger dealt as follows with the other position for which Mr Samarasekera contended in regard to stress – namely that there is a connection between stress and the incidence of heart disease:
I note that LTCOL Samarasekera has written extensively regarding the stresses to which he was placed during his service in the Army, and I have no doubt that this was so. However there is no good evidence to support the claims that are frequently made, that various stresses cause cardiovascular disease. All of us are subjected to stressors, both with employment and with our daily living, and similar stressors apply to the majority of officers in the ADF, both past and present, and yet there is no evidence to indicate that the ADF has a higher incidence of coronary artery disease than any occupational group in our community.[46]
[46] T65, p 114, report of 20 June 2005.
48. Dr Habersberger reiterated that in Mr Samarasekera’s case the predisposing factors included smoking, hypercholesterolaemia, age, sex, and racial predisposition. I accept Dr Habersberger’s evidence that there is no strong evidence of a connection between stress and the development of heart disease. Even Dr Dupuche observed that the role of stress is a mater of contention and made no direct observations about it in Mr Samarasekera case.
49. Importantly, Mr Samarasekera did not report any stress to doctors until 2002, and the stress at that time appears to have been explained by investigations that Mr Samarasekera was involved with. A reading of Mr Samarasekera’s personnel records over his years in the Army[47] indicates that he had a fulfilling career and was highly regarded. Those records, including as they do his own comments made at the time of annual reviews, do not reflect the evidence now given that his service was unduly stressful or was causing him real concern.
[47] Exhibit A2.
50. I was satisfied that there was no connection between stress and the development of or worsening of Mr Samarasekera’s ischemic heart disease.
DECISION
51. The Tribunal affirms the decision under review
I certify that the preceding 51 paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed: M J Brazier
AssociateDates of Hearing 23 March and 21 June 2007
Date of Decision 31 August 2007
The applicant was self-represented
Counsel for the respondent Mr C Clarke
Solicitor for the respondent Dibbs Abbott Stillman
4
11
0