Vivian and Military Rehabilitation and Compensation Commission

[2005] AATA 875

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 875

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/65

VETERANS' APPEALS  DIVISION		)
Re		ALAN VIVIAN

Applicant

And MILITARY REHABILITATION AND  COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller
Dr. G. J. Maynard, Member

Date8 September 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision to reject the claim by Alan Vivian for compensation for prostate cancer.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

COMPENSATION – weight of medical evidence available to the Tribunal indicates applicant’s prostate cancer not caused by exposure to dioxin – decision affirmed

REASONS FOR DECISION

Deputy President Don Muller        

Dr. G.J. Maynard, Member

1.Alan Vivian was diagnosed with prostate cancer in or about February 2002.  He has claimed compensation from the Respondent on the basis that whilst he was serving in the Army he was heavily exposed to a weed killer which he claims caused his prostate cancer.

2.Mr. Vivian made his claim for compensation on 14 March 2002.  In that claim he said that his prostate cancer was “first noticed in 1998” and that it was caused by his “exposure to toxic chemicals”.  He identified the “toxic chemicals” as dieldrin and DDT.  His claim was rejected on 19 July 2002 on the basis that there was no available medical evidence linking dieldrin and DDT to prostate cancer.

3.Mr. Vivian requested a reconsideration of the determination of 19 July 2002.  He further requested that the re-consideration include an assessment of herbicide exposure and not just pesticide exposure.  The reviewable decision dated 9 December 2002 affirmed the determination dated 19 July 2002.

4.Mr. Vivian seeks a review of the decision to reject his claim for compensation in respect to his prostate cancer.

5.At the hearing Mr. Vivian was represented by Mr. R.W.G. Hume of counsel and the Respondent was represented by Mr. B. Dube of counsel.

6.At the Tribunal hearing the review was conducted solely in relation to the questions as to whether the herbicide used by the Army in the early 1960s contained dioxin, whether dioxin causes prostate cancer and whether Mr. Vivian had significant exposure to dioxin.

7.The following matters are not in dispute and the Tribunal finds that:

(i)Alan Vivian was born on 22 June 1939.  He is now 66 years of age.

(ii)Mr. Vivian enlisted in the Australian Regular Army in 1958 and was discharged in 1966.  He underwent initial training at Puckapunyal Army base.  Upon completion of his basic training he was posted to 101 Supply Depot at Gallipoli Barracks, Enoggera where he was employed as a butcher.

(iii)Mr. Vivian was underemployed as a butcher.  He was also required by the Army to engage in weed control within the barrack’s area and at the Unit’s Greenbank Camp.

(iv)Mr. Vivian spent a number of hours per week, each week, spraying herbicide around Enoggera Barracks.  He also did weed spraying at Greenbank for periods of two or three days at a time, three or four times per year.

(v)Mr. Vivian used a…