Vonda Goddard and Military Rehabilitation and Compensation Commission
[2012] AATA 506
•2 August 2012
[2012] AATA 506
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3790
Re
Vonda Goddard
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan
Date 2 August 2012 Place Melbourne The Tribunal affirms the decision under review.
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Miss E A Shanahan
CATCHWORDS
Compensation – widow’s claim – service in the Royal Australian Navy – carcinoma of the colon –smoking – alcohol intake – Statement of Principles – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5B, 14
Military, Rehabilitation and Compensation Act 2004
CASES
Comcare v Canute (2005) 148 FCR 232
MRCC v Wall [2004] FCA 1711
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Miss E A Shanahan
1.Several applications for compensation arising from the illness and death of Mr Douglas Anderson have been lodged over the past 18 years. The most recent of these, a death claim, has been abandoned. The only matter before the Tribunal is Mrs Goddard’s claim for compensation for Mr Anderson’s carcinoma of the lower colon and carcinoma of the left lung, which was lodged on 3 November 2010.
2.Mr Anderson served in the Royal Australian Navy (RAN) from 21 March 1949 until 20 March 1961. Mr Anderson died in 1994 from an unrelated carcinoma of the thymus gland that had metastasised widely.
3.Mrs Goddard was represented by her son, Michael Anderson. Mr John Wallace of counsel, instructed by Mr Andrew Blunt of the Australian Government Solicitor, appeared for the Respondent. The Tribunal had before it the documents filed by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents, Exhibit R1). The Respondent tendered the following:
·report of Professor Fox dated 6 November 2011 – Exhibit R2
·report of Professor Fox dated 24 April 2012 – Exhibit R3
·summary and records from St Vincent’s Hospital dated 27 August 1992 – Exhibit R4
·summary and records of Peter MacCallum Cancer Centre – Exhibit R5
Professor Fox gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Douglas Anderson enlisted in the RAN in 1949. Before that he was a boilermaker. He served for 12 years and was discharged on 26 March 1961. He started smoking soon after enlistment and continued smoking throughout his service. Mrs Goddard claimed that Mr Anderson drank regularly and to excess during service and thereafter. She contended that the cigarette smoking and alcohol intake were factors contributing to the development of carcinoma of the colon. The Department of Veterans’ Affairs (the DVA) had previously accepted that Mr Anderson became a habitual smoker as a result of his navy service in accordance of the principle in MRCC v Wall [2004] FCA 1711.
Mr Anderson’s medical records from St Vincent’s Hospital and the Peter MacCallum clinic indicate that he ceased smoking in 1976. However, Mr Michael Anderson has stated his father was still smoking, at least occasionally, in 1990 (T‑documents 30, p126).
In 1973 Mr Anderson was diagnosed with carcinoma of the sigmoid colon, 21cm from the anus. Mr Peter Ryan performed an anterior resection with a de-functioning transverse colostomy on 8 October 1973. The colostomy was closed in December 1973. The carcinoma was graded as C with one of three resected lymph nodes being involved with cancer cells. Mr Ryan performed regular follow up visits and check colonoscopies until October 1992. In his report of 15 September 1992, Mr Ryan quoted the findings of Professor Kune in The Melbourne Colorectal Cancer Study (Kune GA, Kune S. The Melbourne Colorectal Cancer Study. A Description of the Investigation. Melbourne, Australia: University of Melbourne, Department of Surgery Publication; 1986. p. 1-31) which strongly suggested that the consumption of beer and beef is important in the causation of bowel cancer. Mr Ryan was of the opinion that the amount beer consumed by Mr Anderson during his naval service caused or contributed to the bowel cancer. (T-documents 9, p67).
In 1977 a routine chest x-ray revealed an opacity in the lingular segment of Mr Anderson’s left upper lobe of the lung. This was resected by Mr John Clarebrough on 14 July 1977, the surgery undertaken being a lingulectomy which amounts to 1/10th of the volume of the left lung. (T-documents 4). Histopathological examination of the resected specimen confirmed it to be a secondary deposit of bowel cancer. While Mr Anderson’s recovery from surgery was uneventful, he ceased work in 1979 and thereafter received an invalid pension.
A routine follow-up chest x-ray performed in mid-1992 revealed a mass in the chest and a CT scan confirmed this as being in the mediastinum and upper anterior left hemithorax. A percutaneous biopsy of the mass under x-ray control yielded a diagnosis of poorly differentiated squamous cell carcinoma which was subsequently shown at thoracotomy to have arisen in the thymus (Exhibit R4). The thymus and carcinoma were resected on 1 September 1992 and post-operative radiation of the mediastinum was undertaken.
Repeat CT scanning revealed secondary deposits of tumour in the liver. (the liver had been clear prior to surgery), and eventually chemotherapy was administered. Mr Anderson died on 14 April 1994 from disseminated carcinoma of the thymus. The terminal event was pneumonia leading to respiratory failure. The cause of death was totally unrelated to his earlier malignancy, which is the subject of this claim.
Mrs Goddard claims that Mr Anderson’s cigarette smoking and alcohol intake during service in the RAN became habitual and contributed to the development of carcinoma of the colon, which subsequently metastasised to the left lung. This necessitated surgical resection of both lesions and Mr Anderson ceased employment in 1979 as a result.
Compensation claims for defence service personnel under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) are subject to the application of Statements of Principles (SoP) determined by the Repatriation Medical Authority. The relevant SoP has been identified as Instrument Number 2 of 2004, concerning Malignant Neoplasm of the Colorectum. In particular, Factors 5(b) and 5(c) of Instrument Number 2, relating to cigarette and alcohol consumption respectively, apply.
The contemporaneous medical records (Exhibits R4 and R5) state that Mr Anderson ceased smoking in 1976 (having smoked one pack per day) and that he drank alcohol socially. As previously mentioned, Mr Peter Ryan commented on the association between alcohol intake and carcinoma of the colon and was of the opinion that Mr Anderson’s alcohol consumption was a contributing factor to his bowel cancer.
The Department of Defence provided its policy entitled Management Policy of Alcohol Abuse in the RAN and the information alcohol was strictly controlled both in sea and shore messes. Smoking was said to be neither encouraged nor discouraged. (T‑documents 17).
The Respondent had sought Professor Richard Fox’s opinion about Mr Anderson’s carcinoma of the thymus and its cause (T-documents 42) when the Applicant’s death claim was still afoot. Professor Fox found no causal connection between Mr Anderson’s carcinoma of the thymus and his RAN service, there being no known cause of the very rare squamous cell carcinoma of the thymus.
In relation to the current claim, Professor Fox provided two reports (Exhibits R2 and R3), in which he analysed the current state of scientific knowledge in relation to causation of carcinoma of the colon and the contribution from cigarettes and alcohol abuse. On the medical reports and data available, Professor Fox concluded that Mr Anderson did not meet the criteria for any significant contribution of cigarette and alcohol use to his underlying risk of developing carcinoma of the colon. A 50 per cent increase in risk occurred only after 60 pack years of smoking and according to the medical records Mr Anderson had at the most 27 pack years of cigarette use.
Scientific data cited by Professor Fox indicated that consumption of 4 alcoholic drinks per day increased the risk of carcinoma of the colon from 1 to 1.43. On the most generous estimate, Mr Anderson consumed less than 4 drinks per day.. Therefore, he found no material contribution. Professor Fox wrote that to have a contribution requires a doubling of risk, that is from 1 to 2.
EVIDENCE BEFORE THE TRIBUNAL
Professor Fox gave evidence confirming his written opinions. It became evident to the Tribunal that Mr Michael Anderson had equated the statistical calculation of the percentage of increased risk with the incidence of carcinoma of the colon in persons who smoked and/or drank alcohol. The Tribunal asked Professor Fox to explain the concepts of risks and incidence in plain English, which he did.
Following Professor Fox’s explanation, Mr Michael Anderson apologised for wasting the Tribunal’s time and expressed his concern that he had not been made aware of this information earlier in the processing of Mrs Goddard’s claim. The Tribunal gave him the option of withdrawing the application or the Tribunal providing a written decision with reasons. Mr Michael Anderson elected to receive a written decision to provide his mother with closure.
LEGISLATION
The relevant sections of the SRC Act are s 5B and s 14. With respect to s 5B the contribution made to the development of the disease must be of a material (now significant) degree.
The relevant sections of the SoP concerning Malignant Neoplasm of the Colorectum, Instrument No 2 of 2004, are Factors 5(b) and 5(c):
(b)smoking at least 25 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum, and
(i)smoking commenced at least 35 years before the clinical onset of malignant neoplasm of the colorectum, and
(ii)where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
(c)drinking at least 500 kilograms of alcohol within a 25 year period within the 30 years immediately before the clinical onset of malignant neoplasm of the colorectum; or ...
THE TRIBUNAL’S DELIBERATIONS AND DECISION
The contemporaneous medical records of 1992 to 1994 indicate that Mr Anderson was a social drinker and a smoker of 20 cigarettes per day. He ceased smoking in 1976, that is, before his resection of the secondary cancer deposit in the upper lobe of his left lung. Mr Anderson meets the requirement of smoking 25 pack years of cigarettes but does not meet Factor 5(b)(i), which requires that the smoking commenced 35 years before the onset of his sigmoid colon malignancy in 1973.
From Professor Fox’s analysis of the medical literature, which the Tribunal accepts, it is clear that even if Mr Anderson had continued to smoke until 1990, as suggested by Michael Anderson he would not have reached the risk level statistically required to attain the legal level of probability - a doubling of the risk level from 1 to 2.
Mr Anderson’s exact alcohol intake is unknown. However, based on the RAN issue of two beers per day when not engaged in exercises, his intake does not meet the Factor 5(c) requirement of 500 kilograms of alcohol in a 25 year period within the 30 years immediately before the onset on malignancy.
The contribution of the alcohol or tobacco consumption to the development of the relevant condition must be of a material degree. Material degree is based on probability not possibility (Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 as approved by the Full Federal Court in Comcare v Canute (2005) 148 FCR 232). The Tribunal finds that neither Mr Anderson’s cigarette smoking nor his alcohol consumption contributed to a material degree to the development of his carcinoma of the colon and the subsequent solitary pulmonary metastases.
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan
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Associate
Dated
Date(s) of hearing 2 July 2012 Advocate for the Applicant Mr Michael Anderson Counsel for the Respondent Mr John Wallace Solicitors for the Respondent Mr Andrew Blunt, Australian Government Solicitor
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