Thomson and Military Rehabilitation and Compensation Commission

[2011] AATA 258

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5094

VETERANS' ENTITLEMENTS DIVISION		)
Re		NOEL THOMSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date19 April 2011

PlaceBrisbane

Decision The decision under review is affirmed.

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

Deputy President

COMPENSATION – Injury – Claim for compensation for conditions claimed to arise out of exposure to white phosphorous – no evidence of causal relationship – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 124

Commonwealth Employees’ Compensation Act 1930 (Cth) s 30

REASONS FOR DECISION

19 April 2011 Deputy President P E Hack SC    

Introduction

1. Mr Noel Thomson served in the Australian Army between 1956 and 1960. In March 1958 Mr Thomson was injured by a white phosphorous hand grenade in the course of a training exercise at Canungra.

2. In 2008 Mr Thomson claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) arising from that incident. The respondent, the Military, Rehabilitation and Compensation Commission, accepted liability to pay compensation for the burn and scarring caused by the white phosphorous. The Commission subsequently refused to pay compensation for the conditions of erectile dysfunction and post traumatic stress disorder (or depression).

3. Mr Thomson seeks the review of the refusal decisions.

   Background

4. There is no doubt that Mr Thomson was burnt by white phosphorous in 1958. He suffered third degree burns to the left forearm and the dorsum of the left hand and less severe burns to the neck and chest. He was a hospital inpatient for approximately 2 months. He continued his service for a further two years after discharge from hospital. On his discharge from the army in 1960 on the completion of his service he returned to civilian employment and pursued the occupation of fishermen for the major part of his life.

5. Mr Thomson made a claim for compensation for white phosphorous burns in 2008. He was seen by a consultant dermatologist, Dr Greg Siller, in November 2008. On 8 December 2008 the Commission accepted liability for a condition described as “third degree burn and scar of the skin causing damage to the left forearm and left hand, neck and chest”. Subsequently the Commission determined that Mr Thomson was not entitled to compensation for permanent impairment in respect of that injury.

6. In October 2009 Mr Thomson wrote to the Commission raising the complaint that the white phosphorous had done damage to his sexual organ. The Commission arranged for Mr Thomson to be seen by Dr Stephen Stening, a consultant urologist.

7. On 14 January 2010 the Commission determined, relying on the report of Dr Stening, that there was no liability to pay compensation for erectile dysfunction as there was no evidence of any connection between that condition and Mr Thomson’s military service.

8. Subsequently in February 2010 Mr Thomson wrote to the Commission to claim that a condition that he described as “depression” was caused by the incident in 1958. The Commission referred Mr Thomson to Dr Anthony Cook, a consultant psychiatrist, on 19 February 2010. By letter of April 2010, and on the basis of the report by Dr Cook, the Commission denied liability for a condition it described as “post traumatic stress disorder”[1].

   [1]    Given that Mr Thompson’s claim was for depression it is unclear where the notion of post traumatic stress disorder came from. In any event it does not matter given that I am satisfied that neither condition arose from service.

9. The two decisions were reconsidered and affirmed by the Commission on 4 June 2010.

10. It is unnecessary for present purposes to do more than note briefly the statutory scheme. By virtue of s 124 of the SRC Act, that Act applies in relation to injuries suffered by an employee before the commencement of that Act and a person is entitled to compensation under the SRC Act if there was an entitlement to compensation under the act in force at the time of the injury. In the case of an injury in 1958 the Commonwealth Employees’ Compensation Act 1930 (Cth) is the relevant statute. By virtue of that Act the connection required was a “personal injury by accident arising out of and in the course of his employment…”[2]

    [2] Section 9(1) Commonwealth Employees’ Compensation Act 1930 (Cth).

    The medical evidence

11. I had the benefit of evidence and reports of Dr Cook and Dr Stening. That evidence leaves me in no doubt that there is simply no connection between Mr Thomson’s present conditions and his military service.

12. Dr Stening is a well qualified urologist. He said, relevantly,

    “There is no evidence to invoke the phosphorous burns to the left forearm as the cause for erectile dysfunction”.

    Dr Stening thought that Mr Thomson’s history of alcohol and cigarette consumption suggested that vasculogenic and metabolic causes were more likely. In his supplementary report he remained of the view that Mr Thompson’s intake of alcohol and smoking was substantial and that these were factors commonly regarded as contributing to erectile dysfunction. Additionally, he said that he had undertaken research of the relevant scientific and medical literature and could find no evidence of any association between phosphorous burns and erectile dysfunction.

13. In the absence of any other evidence I am led to conclude that there is simply no evidence to connect the erectile dysfunction condition with Mr Thomson’s military service and that that decision must be affirmed.

14. The condition which Mr Thomson considers that he suffers from is one he describes as depression. Dr Cook’s opinion was that he did not suffer from depression and that his condition was another psychiatric condition. It is unnecessary for present purposes to describe the condition; it will suffice to say that Dr Cook’s opinion is that there is simply no evidence that Mr Thomson suffers from depression and that there is no evidence to suggest any connection between Mr Thomson’s condition and his army service. The only support in the material for a diagnosis for depression is the opinion of Dr See, Mr Thomson’s general practitioner, who expressed the view that Mr Thomson suffers from endogenous depression. For self evident reasons I prefer the opinion of the consultant psychiatrist to that of a general practitioner but, even if the general practitioner is correct, the condition’s description as endogenous depression negates any connection between that condition and Mr Thomson’s army service.

15. Accordingly, I would affirm that decision as well.

    I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

    Signed: .................[Sgd]...................................................
      Alex Segar, Associate

    Date of Hearing  11 April 2011
    Date of Decision   19 April 2011
    The applicant was self represented
    Counsel for the Respondent             Ms H Blattman
    Solicitors for the Respondent            DLA Phillips Fox