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 knapsack spray to distribute the herbicide.  The equipment was extremely inefficient and Mr. Vivian’s clothes would be drenched with herbicide during each spraying session.

(vi)Mr. Vivian was engaged in weed control as part of his duties from 1958 to 1964.

(vii)Mr. Vivian was posted interstate for 12 months in 1964/65, during which time he was not exposed to herbicides.

(viii)Mr. Vivian returned to Enoggera in 1965 and returned to butchering and spraying herbicide.  His spraying duties were reduced in 1965 and 1966 because the Unit was housed in a more modern area than before, with new hard standing areas and less bushy surrounds.

(ix)The spray used by Mr. Vivian was ACF SHIRWEED.

(x)Mr. Vivian was discharged from the Army in 1966 and followed a career as a butcher until retirement.  He was not exposed to herbicides after his Army career.

(xi)In or about February 2002 Mr. Vivian was diagnosed with prostate cancer confirmed by Dr. Anthony James, a consultant Urologist.

8.The Tribunal heard evidence about the nature of the chemicals used in Shirweed, the nature of the contaminants in Shirweed, the degree of exposure of Mr. Vivian to Shirweed and the result of blood tests done on Mr. Vivian.  The following matters are now common ground between the parties and the Tribunal finds that:

(i)Shirweed contained 2.4.5.T butyl ester as an active ingredient against woody plants.

(ii)During the manufacture of 2.4.5.T, a small amount of another chemical called 2.3.7.8 tetra chloro dibenzo dioxin (2378 TCDD) (dioxin), was also formed.

(iii)No batch of 2.4.5.T produced was ever free of dioxin.

(iv)The half life of dioxin is about 7.8 years.

(v)Improved detection methods can detect levels of dioxin in a person’s body at about 4 parts per trillion (4 ppt).

(vi)A detection test carried out on Mr. Vivian detected no dioxin in his body.  The test showed that he had a number of other foreign organic compounds in his body but none of the experts who gave evidence were able to assign any significance to them.

(vii)Mr. Vivian could have had a level as high as 200 ppt of dioxin in his body in the 1060s and still show no detectable dioxin in his body in 2005.

(viii)Mr. Vivian had extensive exposure to Shirweed in the 1960s and he may have absorbed as much as 200 ppt of dioxin between 1959 and 1966.

9.The sole question to be determined by the Tribunal comes down to whether or not dioxin causes prostate cancer.

10.The Tribunal heard evidence from experts on the links between chemicals and cancer.  The Tribunal also had before it a large amount of literature, research material and case studies on the subject.

11.Dr. David Douglas, a senior occupational physician gave evidence to the following effect:

·     Studies showed a link between dioxin and systemic disease and carcinoma in animals.

·     There could be a significant time lag between exposure to dioxin and the appearance of signs and symptoms of cancer.

·     A study in 1997 by the World Health Organisation, contained 300 pages of review, much of it devoted to data on the links between dioxin and cancer.  The data shows “evidence of an increase in cancers and some evidence of dose/response effect”.

·     Studies show that dioxin is an endocrine disrupter.  It has an effect on male hormones and it is plausible that it may affect the prostate.

·     An AIHW study Morbidity of SVN Veterans claimed that precise measurement of blood levels of dioxins against half-life had established a dose/response relationship.  There was an increase in prostate cancers in the higher exposure groups.

·     The so-called Akhtar study Cancer in US Air Force Veterans of the Vietnam War is presented as supporting the claim of increased incidence of prostate cancer in those exposed to dioxins.

·     It has consistently been shown that there has been a temporal relationship between exposure to dioxin and prostate cancer.

·     The literature reports are to the effect that there is no direct link between dioxin and prostate cancer but there is some evidence of increased prostate cancer and mortality with increased herbicide exposure.

12.The Tribunal received reports and heard evidence from two cancer experts, namely, Professor Graham Giles, Director, Cancer Epidemiology Centre, Victoria and Professor Richard Fox, Director, Department of Clinical Haematology and Medical Oncology, Royal Melbourne Hospital.  Professor Giles has a particular interest in prostate cancer and its aetiology.

13.Professors Giles and Fox covered similar ground in their written opinions and addressed the epidemiological short comings and statistical weaknesses in the papers cited by Dr. Douglas.  They also referred to some additional papers from the literature.  They said that a number of the papers are suggestive of an overall increase in the incidence of cancers generally caused by exposure to dioxins but the increases are small, not statistically significant and do not give any indication of an increase in prostate cancers.  Between them they made the following points:

·     The AKHTAR study, largely relied on by Dr. Douglas, might show on the surface that there looks to be a slight increase in prostate cancer in this study, but the application of “confidence intervals” shows that there is no difference between the “at risk” group and the “control” group for prostate cancer.

·     Biasing factors of prostate cancer studies include the pre-and-post Prostate Specific Antigen (PSA) incidence of prostate cancer and intensity of follow-up examinations.

·     PSA is a test which measures a specific antigen which increases in the blood when a prostate cancer is present.  It is an easily performed test and is used as a screening test for prostate cancer in asymptomatic men.  It is not a good indicator of the malignancy of the cancer.  PSA results seem to be indicating an increase in the incidence of prostate cancer but there is little if any increase in the mortality from prostate cancer.  Post-mortem studies have indicated that over the age of seventy years many men will die with prostate cancer but not because of it.  These “insignificant” prostate cancers may have been present all along but remained undetectable because of lack of symptoms and failure to detect by normal clinical examination in the past.

·     The incidence of prostate cancer in Australia has increased by 70% since PSA screening was introduced, but there has been no change in the death rate from prostate cancer.

·     Patients in the “at risk” groups are very aware of their situation and are much more frequently and intensely examined than other males in the general population.

·     Males generally have a reluctance to visit medical practitioners.  The “at risk” groups will have their prostate cancers detected sooner and more readily than the general male population thus making direct comparisons of prostate cancer incidence difficult.

·     The only proven causes of prostate cancer are being male and old and having a family history of prostate cancer.  If a male lives long enough he will eventually get prostate cancer but only a small number of males will die from it.

·     Many studies into possible risk factors generate “one-off” risk factors which are not later replicated.

·     There is no study of prostate cancer which is equivalent to the studies of risk factors in lung cancer where there is a strong measure of the effect of smoking.

·     There are studies which show that dioxin might be a risk factor but, so far, the studies have been deficient.

·     The current state of medical knowledge is that dioxin is not a risk factor for prostate cancer.

14.Mr. Hume, on behalf of Mr. Vivian, referred the Tribunal to the Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA) concerning “Malignant Neoplasm of the Prostate” number 85 of 1999.  The relevant part of the SoP is Factor 5(a) which contains the following statement:

“The factors that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the prostate or death from malignant neoplasm of the prostate is connected with the circumstances of a person’s relevant service are:

(a)spraying or decanting a herbicide containing 2,4-dichloro-phenoxyacetic acid (2,4-D) or 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) on at least 100 days, in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of malignant neoplasm of the prostate”

15.Mr. Hume submitted that if Mr. Vivian had been able to make his claim under the provisions of the Veterans’ Entitlements Act 1986 (the VEA) he would have satisfied Factor 5(a) and succeeded in his claim.  Mr. Hume submitted further that the Respondent is estopped from denying Mr. Vivian’s claim for compensation in relation to his prostate cancer because one of the arms of military compensation accepts that a certain level of exposure to 2.4 D or 2.4.5 T is a risk factor in the development of prostate cancer.

16.Professors Giles and Fox were both asked about SoP number 85 of 1999.  Professor Giles said, “I totally disagree with the Statement of Principles”.  Professor Fox said that he believed the SoP was based on the Akhtar studies which he believes were not accurate.

17.The Tribunal accepts that Mr. Vivian would have satisfied Factor 5(a) of the SoP for prostate cancer but the Tribunal does not agree with Mr. Hume’s submission that the Respondent is thereby estopped from denying Mr. Vivian’s claim.  The RMA is charged with the responsibility of producing SoPs to solve the previous problems associated with bodies such as the Repatriation Commission, Veterans’ Review Board and AAT trying to digest a large amount of conflicting medical opinion about various causes of illnesses, diseases and disabilities, in cases where claims had been made under the VEA.  The SoP has the effect of providing a consistent line of evidence on specific illnesses or diseases.

18.This current claim of Mr. Vivian’s is not brought under the VEA.  The evidentiary effect of the SoP does not apply to this review.

19.Dr. Douglas has presented evidence from published papers which suggest a possible causal link between exposure to dioxins and prostate cancer and he has applied some sound epidemiological principles in his arguments.  He is of the firm view that exposure to dioxin is a probable cause of prostate cancer.

20.Professor Giles and Fox take a contrary view and point out some of the epidemiological and statistical weakness in the papers quoted by Dr. Douglas and in some additional papers.  While some of the papers suggest a slight increase in cancers overall, none highlight prostate cancer as a specific effect with any statistical rigour.  The epidemiology of prostate cancer is at present difficult to determine because of the effect of the PSA test on detection and the difficulty of comparing “normal” population incidence with intensely followed-up “at risk” population incidence.

21.The Tribunal takes the view that Professor Giles and Fox have been very persuasive in their evidence relating to the weaknesses in the studies relied upon by Dr. Douglas, and in their evidence of their own observations relating to prostate cancer, in which they have had a specific interest at close quarters, over many years.

22.The Tribunal finds that the weight of the medical evidence placed before the Tribunal, based on current knowledge, is that dioxin is not a risk factor for prostate cancer.

23.The Tribunal affirms the decision to refuse Mr. Vivian’s claim for compensation in respect of prostate cancer.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           B. Hitchcock, Personal Assistant

Date/s of Hearing  17.11.04, 19, 20.5.05
Date of Decision  8 September 2005
Counsel for the Applicant         Mr. R.W.G. Hume
Solicitor for the Applicant          Terry O'Connor Solicitor
Counsel for the Respondent     Mr. B. Dube
Solicitor for the Respondent     Dibbs Barker Gosling