Wayne Fisher and Military Rehabilitation and Compensation Commission
[2014] AATA 530
•1 August 2014
[2014] AATA 530
Division VETERANS' APPEALS DIVISION File Number
2013/0534
Re
Wayne Fisher
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 1 August 2014 Place Brisbane The Tribunal affirms the decision under review.
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Deputy President I R Molloy
CATCHWORDS
WORKERS’ COMPENSATION – Service in the Australian Regular Army – Claim for emphysema/chronic obstructive pulmonary disease due to cigarette smoking – No evidence that employment contributed to a significant degree to applicant’s disease – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B
REASONS FOR DECISION
Deputy President I R Molloy
1 August 2014
Wayne Fisher enlisted in the Australian Defence Force (“ADF”) on 18 November 1981. He was discharged from the Army after approximately eight and a half years on or about 13 March 1990.
In 2011 Mr Fisher was diagnosed with emphysema/chronic obstructive pulmonary disease (“COPD”). There is no dispute that his condition was caused by cigarette smoking.
Mr Fisher applies for a review of a decision that the Military Rehabilitation and Compensation Commission (“the Commission”) is not liable to pay compensation to him under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of his condition.
This is a rehearing, following an appeal to the Federal Court. It is based on the evidence adduced at the original hearing, including oral evidence.
The issue is whether Mr Fisher’s emphysema/COPD was contributed to, to a significant degree, by his employment with the Army such that there is an “injury” (which relevantly includes a “disease”) within the meaning of ss 5A and 5B of the SRC Act.
On behalf of Mr Fisher it was submitted that the issue came down to whether there was a causal link between his employment in the Army and his habit of cigarette smoking. “Employment”, it was submitted, is not a narrow concept, particularly when a soldier lives on-base.
For the Commission it was submitted that the issue is whether there is a necessary link between Mr Fisher’s military service/employment and the smoking habit that caused his current disease. “Military service” in this context, it was acknowledged, extended to matters ancillary or incidental to performance of duties as a member of the ADF.
Mr Fisher was born on 14 September 1964. He was therefore aged seventeen years and two months when he joined the Army in 1981. He said he did not smoke before enlisting. He was cross-examined on this at the original hearing.
In particular, Mr Fisher was referred to a report by Dr Edwards, thoracic physician, which included:
He said that he started smoking before he entered the Army but this increased rapidly to 30-40 per day during his first year of being in the Army.
Mr Fisher denied telling Dr Edwards that his smoking started before joining the Army. He maintained that his experience with tobacco at that time was limited to some childhood experimentation.
I did not see or hear Mr Fisher give this evidence. Nonetheless each party submitted that I should make findings on the issue.
In a Medical History Questionnaire, dated 21 October 1981, shortly prior to his enlistment, Mr Fisher is recorded as answering “No” to whether he smoked tobacco. There does not appear to be any reason why he would have failed to answer that question truthfully.
I also note that to the preceding question, “Do you drink alcohol?”, Mr Fisher is recorded as answering “Yes”. It does not seem to make sense that he would admit to consuming alcohol – at seventeen years of age – but at the same time falsely deny that he smoked cigarettes.
I cannot say what Mr Fisher told Dr Edwards. However, I think that what is recorded in the 1981 Questionnaire is more likely to reflect the true situation, at that time, than what he may or may not have told Dr Edwards some thirty years later.
I accept that Mr Fisher was not a regular smoker prior to entering the Army.
On enlistment, Mr Fisher undertook a period of about twelve weeks recruitment training at Kapooka. During this time he was required to live and remain on base, aside from short periods of leave during the second half of the training.
He said he was allocated to a section made up of fifteen recruits, and shared a room with three recruits with whom he was required to live and work. He said his three roommates were regular smokers. He said about twelve of the fifteen recruits in his section were smokers.
He said smoking was permitted anywhere, except for the parade ground. There were no rules against smoking in buildings. He could not recall any policies or instructions against smoking. He said he was never discouraged from smoking.
Mr Fisher said that during downtime, other recruits constantly smoked and offered him cigarettes. He said that initially he tried to turn down offers of cigarettes. However, considering that he was in the minority, he eventually accepted.
He said “once I started smoking with the other recruits, I felt much more accepted and involved in all activities, whether it was service related or during down time.”
He said that it was because of the “significant pressure” from the other recruits, and drill instructors, that he accepted the cigarettes offered to him.
He said that after a couple of weeks he started buying cigarettes himself. He said that by the time he left Kapooka, he was smoking 25-30 cigarettes each day.
Subsequent to his recruitment training Mr Fisher was transferred to the School of Artillery in Manly, New South Wales, for three months, where again he lived on base.
He then went to Holsworthy as a Gun Member.
In all he lived on base for about the first eight or nine months of his Army service.
In July 1982 he was married and after that lived off base with his wife.
He said that within his first year in the Army he could have been smoking as many as thirty to forty cigarettes per day. He continued to smoke throughout his Army service.
In Mr Fisher’s Discharge Medical Questionnaire, dated 13 March 1990, he is recorded as answering “Yes” both to consumption of alcohol and tobacco. The word “social” was entered as a description of the nature of that consumption.
Cross-examined about this, Mr Fisher agreed that his cigarette consumption at the time of his discharge could be described as “social smoking”. He agreed that this included a “social setting”, such as over a drink, and “sitting at home with [his] wife of an evening” and “over a drink and over a meal”. He said that his consumption was around
25-30 cigarettes per day.
After Mr Fisher left the Army he worked as a truck driver. In this occupation, he said, he could generally smoke whenever he liked. He agreed that his smoking increased because of his occupation as a truck driver. It reached as high as sixty per day, depending on his workload.
He gave evidence that, in civilian life, he asked his doctor about giving up smoking.
He tried patches and other methods, but with negative side-effects.
His medical records during this time disclose worsening symptoms including coughing and shortness of breath. He eventually stopped smoking in 2011.
Dr Edwards attributes Mr Fisher’s condition, to a significant degree, to his “long history of heavy cigarette smoking” meaning the totality of his smoking history from start to finish.
On behalf of Mr Fisher, emphasis was placed on what were described as the circumstances of his employment, causing him to take up smoking at Kapooka.
These were said to include peer pressure from fellow recruits; the live-in nature of the base; regular periods of down time; “smoko” breaks during which recruits and instructors would smoke; significant opportunities to engage in smoking; and the absence of virtually any restriction on where people could smoke. Reliance was also placed on the fact that cigarettes (in common with other items) were less expensive to purchase on-base than elsewhere.
It was also pointed out that the early years of Mr Fisher’s service pre-dated the introduction of anti-smoking campaigns, the progressive introduction of restrictions on smoking in the workplace, and the introduction of Army policies or instructions against smoking.
On the other hand, by the time of Mr Fisher’s enlistment, the health effects of smoking were well known and public anti-smoking campaigns were in practice. Mr Fisher acknowledged that he knew that smoking was a health risk. He also agreed that he was at an age when people were likely to experiment with cigarettes.
I accept that Mr Fisher would have experienced pressure to smoke. However I doubt that that pressure was markedly different from or greater than he would have experienced if he had not enlisted. Most of what he described was basically a reflection of the prevalence of smoking, and the freedom to smoke, in the community in general at that time.
I do not think that the price of cigarettes on base, being less than elsewhere, would have much influence on someone such as Mr Fisher who was not already a smoker. It is not as if cigarettes were being distributed as an aspect of military service, or that they were being sold so cheaply that a person could be considered a fool not to buy them.
Mr Fisher described, after shifting off-base, the social nature of his smoking. In particular he referred to smoking at home in the evening. The matters that he said had influenced his decision to take up smoking during his training period had diminished. However he continued to smoke in circumstances acknowledged as a social setting.
In my view Mr Fisher’s time in the Army provided the occasion for him to take up smoking which he continued throughout his Army career. There was that temporal connection. However I am not satisfied that he can attribute the commencement or continuation of his smoking to his employment or service in the Army. I do not think there was the necessary causal connection. In saying that, I accept that “employment” and “service” should be given wide meanings.
The other significant matter is Mr Fisher’s history of smoking after his discharge from the ADF. At the time of his discharge he agreed his consumption of cigarettes amounted to “social smoking”. That was in March 1990.
In his occupation as a truck driver there were greater opportunities to smoke and his consumption increased. He smoked at work, seemingly all day at work. He agreed he was consuming perhaps in excess of sixty cigarettes a day.
More than twenty years elapsed between Mr Fisher leaving the Army and being diagnosed in 2011 with emphysema/COPD. It was during this long period of civilian life that he tried, but failed, to stop smoking. In contrast I am not satisfied as to how habituated to smoking Mr Fisher became during his period of military service.
With this history I would not be satisfied, even if Mr Fisher’s smoking during his time in the ADF were a result of his military service/employment, that such employment contributed to a significant degree to the development of his current disease.
The decision under review is affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ...........................[Sgd].......................................
Associate
Dated 1 August 2014
Date of hearing 18 July 2014 Counsel for the Applicant Mr Matt Black Solicitors for the Applicant Ms Laine Behan, Maurice Blackburn Lawyers Counsel for the Respondent Mr Charles Clark Solicitors for the Respondent Ms Suzy Dole, Sparke Helmore
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