Sowerby and Military Rehabilitation and Compensation Commission

[2005] AATA 557

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 557

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/562

VETERANS’ APPEALS DIVISION		)
Re		DANNIELLE SOWERBY

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr G Maynard, Member

Date10 June 2005

PlaceBrisbane

Decision The decision under review is affirmed.

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

SENIOR MEMBER

CATCHWORDS

WORKERS’ COMPENSATION – pensions and benefits – applicant employed by Commonwealth – manifestation of lung condition in army - injury did not arise out of or occur in the course of employment – decision affirmed. 

Safety, Compensation and Rehabilitation Act 1988 ss 6, 14

REASONS FOR DECISION

10 June 2005  Senior Member B J McCabe

Dr G Maynard, Member

introdcuction

1.      Ms Dannielle Sowerby is the applicant in these proceedings. She is suffering from a serious lung condition that manifested itself while she was in the Army. She was ultimately discharged from the Army because the condition rendered her unfit to serve. She says the respondent should meet her ongoing medical expenses now that she has left the Army.

2.      The reviewable decision (document T 32) says the Military Rehabilitation and Compensation Commission is not liable under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for the applicant’s condition. The respondent says the medical evidence suggests the applicant’s condition is congenital.

3.      We agree with the respondent. The decision under review must therefore be affirmed. Our reasons are set out below.

the material before the tribunal

4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Medical reports from Dr Edwards and Dr Masel were also tendered in evidence. (A referral letter from Dr Masel was also provided to the Tribunal after the hearing, but it does not add anything to the material referred to in the hearing.)

5.      The applicant gave evidence in person. She was unrepresented. Mr Clark represented the respondent.

the facts

6.      Ms Sowerby was born on 26 December 1967. She enlisted in the regular Army on 9 January 1991. She served until 26 March 1993. She subsequently served in the Army reserve between 24 August 1993 and 20 November 1996. She re‑enlisted in the regular Army on 21 November 1996 and was medically discharged on 30 March 2004.

7.      The applicant was - and remains - a smoker.

8.      Ms Sowerby referred to a number of occasions on which she contracted colds and viral infections that she says were not adequately treated while she was in the Army. She referred to training exercises in which she was exposed to CS gas. She referred in particular to being confined in the cells at Singleton Army barracks even though she was clearly ill following a clash with a member of the directing staff of a promotions course.

the medical evidence

9.      Drs Edwards and McEvoy suggest the applicant suffers from a bronchiectasis of the right middle lobe. Cysts on the lungs are a feature of this condition. The x-rays taken at the time of the applicant’s enlistment in 1991 suggest there were cysts present in the lung but they were not regarded as an obstacle to her enlistment. The fluid in the cysts acts as a focus for infection, and chronic infections led to the bronchiectasis – which rendered her incapable of serving.

10.     The applicant says she did not have any problems before she enlisted, and insists the respondent must take ongoing responsibility for the condition that emerged while she served.

11.     Dr Edwards concludes in his report of 11 November 2004:

In my opinion Mrs Sowerby suffers from a congenital cystic lesion in the middle lobe of the right lung. This has an air fluid level in it. It is likely that she is developing regular infection in this cyst which is contributing to the flare-ups of infection. It is also possible that this cystic lesion is causing her chronic cough and sputum although it is noted that she has been a smoker for at least seventeen years and this could equally be contributing to the chronic productive cough.

12.     Dr McEvoy concluded in his report of 15 April 2003 (document T 20) that the condition was congenital.

13.     We note Dr McKenzie opined that the condition is a consequence of a previous pneumonia complicated by abscess. He suggested that the training and living standards at Singleton in particular might have predisposed her to pneumonia. However his opinion assumes there is no radiological evidence of cysts that predate the development of the pneumonia. That is not the case: the x-rays taken at the time of enlistment confirm the existence of the cysts as early as 1991. We also note that Dr Naughton says (document T 21 p 74) there is no record of a severe lower respiratory tract infection in 2001. In those circumstances, we prefer the diagnosis of Drs McEvoy and Edwards.

14.     That diagnosis is consistent with the remarks of Dr Masel contained in his report of 9 November 2004.

liability

15.     The respondent is liable to pay compensation to the applicant in respect of an injury (which may include a disease) suffered by an employee if the injury results in death, incapacity for work, or impairment: s 14(1) SRC Act. However not every injury or condition that an employee suffers will be compensable. The injury must arise out of, or in the course of, his or her employment: s 6. In other words, there must be a causal connection between the injury and the employment.

16.     In this case, the medical evidence suggests the applicant’s condition is congenital. The cysts were already present in her lung when she joined the Army. There is some evidence the circumstances of the applicant’s service may have temporarily aggravated the condition, but the symptoms were treated in each instance and had no effect on the progress of the underlying condition. It seems likely she would have developed bronchiectasis even if she had never served in the Army.

conclusion

17.     There is no basis for concluding the applicant’s condition arose out of, or in the course of, her employment. The respondent cannot be held liable for her existing condition. Ms Sowerby’s application must therefore be rejected, and the decision under review affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G Maynard, Member.

Signed:         .....................................................................................
  Associate:  Sam J Appleton

Date of Hearing  3 June 2005
Date of Decision  10 June 2005

The applicant appeared in person.

The responded was represented by Mr Clark.