Wieden and Military Rehabilitation and Compensation Commission
[2005] AATA 362
•22 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 362
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/618
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN EDWARD WIEDEN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller
Dr. G.J. Maynard, Member
Date22 April 2005
PlaceBrisbane
Decision The decision under review is set aside and in substitution the Tribunal decides that the skin cancers and myeloid dysplasia syndrome suffered by John Edward Wieden were caused by his exposure to radio-active dust due to the nature of his employment in which he was engaged by the Royal Australian Air Force. ................SIGNED........................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – skin cancer and myeloid dysplasia syndrome caused by exposure to radioactive dust whilst working on a RAAF plane which had taken part in the Monte Bello atomic tests in 1952 – decision set aside
REASONS FOR DECISION
Deputy President Don Muller Dr. G.J. Maynard, Member 1. John Edward Wieden, the Applicant, suffers from skin cancer and Myeloid Dysplasia Syndrome (MDS). He claims that both conditions were caused by his exposure to radioactive dust whilst he was cleaning the wing flaps of an RAAF plane which had flown through the cloud above the site of the atom bomb test on Monte Bello Island in 1952.
2. His claims were rejected on 6 January 2003 and again on reconsideration on 11 June 2003 on the basis that the RAAF records show that on the balance of probabilities Mr. Wieden did not do maintenance work on aeroplanes that were exposed to radioactive dust in 1952. The Reconsiderations Manager also found that Mr. Wieden had been exposed to radiation therapy for skin cancer in the mid-1960s and that this could have caused the MDS. (The Reconsiderations Manager was mistaken. Mr. Wieden did not undergo radiation therapy until 24 September 1992.)
3. Mr. Wieden seeks a review of the decision to reject his claims.
4. At the hearing Mr. Wieden represented himself. The Respondent was represented by Mr. Dube΄.
5. The Respondent accepts that Mr. Wieden suffers from skin cancer and MDS. MDS was described to the Tribunal by witness, Professor John Kearsley, as a pathological term indicating abnormal development in bone marrow resulting in poor function of red blood cells and platelets, which can be caused by radiation and other causes which prevent the stem cells from reproducing properly.
6. Mr. Wieden gave evidence to the following effect:
(a)He was born on 19 January 1933.
(b)He has lived in Kingaroy township all of his life, except for six months when he did National Service.
(c)He has never been a farmer. His working life has been mainly clerical, or in sales, indoors.
(d)He left school after completing grade 10 and got a job as a clerk in a garage.
(e)He did National Service in the RAAF, based at Amberley for six months from 9 June 1952 to 8 December 1952.
(f)After completing his National Service he was in the RAAF Reserve for 10 years, but he was never involved in any RAAF activity in that time.
(g)After National Service he went back to working in the spare parts division of the garage.
(h)In 1960 he developed skin cancers which eventually became “massive”.
(i)He became a car salesman; then sales manager (1969-1971).
(j)In 1971 he became the owner of a used car yard until 1982.
(k)His skin cancer problem became so severe and so disfiguring that he could not continue as a car salesman. He could not face the public.
(l)He took a job as a security officer/gate keeper at a coal mine.
(m)From 1986 to the present he has had numerous operations (some major) to rectify his appearance.
(n)On 28 January 1992 he was diagnosed (during one of his operations for cancer) as having MDS.
(o)He was started on a course of radiation therapy on 24 September 1992.
7. In a statement which accompanied his claim on 26 March 2002 Mr. Wieden said:
“Sign & Symptoms
In the early 1960’s I started suffering from Skin Cancers. Treatment started with Freeze treatment and excisions. Later came skin grafts during the 1970’s which then required major reconstruction surgery to the face arms and chest. I suffered bleeding problems with all surgery.
After a major haemorrhage following an operation on 29th January 1992 he was diagnosed as suffering from Myeloid Dysplasia, which is a white cell and platelet deformity caused by radiation exposure.
How I believe my disability is caused by my service;
I was called up for National Service in the RAAF on the 9th June 1952 and was discharged on the 8th December 1952. I served my full period of National Service at Amberley Air Base. After my initial recruit training I was employed as a Airframe Fitter.
From September, 1952 to December, 1952 I was assigned to 3AD Workshops at Amberley and was employed in doing modifications to Lincoln Reconnaissance Aircraft. This included (44) days doing modifications, (5) days working on Hangar Equipment and (10) days doing anti corrosive treatment to the aircraft.
The first Atomic Bomb was exploded at Monte Bello Islands on the 3rd November 1952 under codename ‘Operation Hurricane’. Lincoln Reconnaissance Aircraft were used to fly through the dust cloud to collect the samples used for dust fallout testing. Some of the contaminated aircraft used for dust sampling during ‘Hurricane’, returned to Amberley after dust collection.
I was employed under instructions on these aircraft after removing the motors for dismantling and inspection for Atomic Dust damage. I was employed on the same aircraft in the removal of the trailing edge from the ailerons on the wings. This required the drilling out of the rivets, cleaning the surface and fitting a new gasket between the two surfaces. The edge was then re-rivetted. All other parts of the planes were cleaned of dust and the surfaces all washed.
On the 27th November, 1952 prior to discharge, I and others who had worked on the aircraft spent some days in hospital suffering from an unidentified fever. Headaches, pains in the chest and dry cough. The condition was never diagnosed.”
8. He provided a further statement on 12 April 2002 in which he clarified some aspects of his first statement. He said:
“The first four paragraphs of Attachment ‘A’ are self explanatory, and substantiated by documents already in your possession. However, paragraph five has the date in error, the first Monte Bello test was carried out on the 3rd October, 1952, not November as written.
I will explain Paragraph six in my words, not a third person’s interpretation of my notes. Viz: A Lincoln aircraft, possibly No. A73/24, was brought to 3AD from 82 Wing. This Aircraft had been used to gather dust samples from the Monte Bello tests. It was required to have the engines removed and dismantled, for dust, damage to internal working parts. This was carried out by Engine Fitters. While this was being done, certain Airframe Services and modifications were carried out by Air Frame Fitters.
Under instructions from F. SGT, in charge of section, I was assigned the job of carrying out a modification procedure on the wings of the Aircraft. Due to the risk of electrolysis action between two unalike alloys, it was necessary to fit a gasket between the Trailing Edge and the wing and aileron surfaces. This Trailing Edge was a strip of laminated aluminium approx., 100mm wide fixed with rivets to the upper, rear surface of the wings, to reduce air turbulence between the upper and lower wing surfaces.
I was required to file down and drill out the rivets, which were set in rows about 25mm apart. After removal I had to clean off a build up of dust, etc., trapped between these two layers fit a gasket and re-rivet.
At no time was this exposed section tested for radio-activity, and no protective clothing was issued. My claim is that, in the balance of probabilities, the dust trapped between these two surfaces was radioactive, and hence the cause of my Psoriosis, Skin Cancers, and Myeloid Dysplastic, Disorders.”
9. The first question to be answered is whether Mr. Wieden was exposed to radioactive material during his six months of National Service at Amberley Air Base.
10. Mr. Wieden claims to have worked on the wing flaps of one of the Lincoln aircraft which were involved in the atomic tests on Monte Bello Island in October 1952. He has attempted to identify the specific aircraft without success. Every aircraft involved in the tests has a record of work done on it. The decision makers in Mr. Wieden’s claim have decided that the material does not reveal that any plane from the Monte Bello tests had work done on it at Amberley at the time Mr. Wieden was there.
11. The T-documents contain excerpts from the McClelland Royal Commission which was held in 1984-85 and was established to enquire into measures taken to protect people from exposure to ionising radiation (among other things) with special attention to the atomic bomb tests conducted in the Maralinga and Monte Bello areas in the 1950s. The excerpts contain the following passages:
“Notes: Decontamination of Aircraft
Operation Hurricane (detonation on 3 October 1952 at Monte Bello Island, W.A.):
·RAAF provided 7 Lincoln aircraft (82(B) Wing) at Broome for air sampling tasks, 2 Dakota aircraft at Onslow for aerial radiation surveys (86(T) Wing), 1 Dakota at Pearce for courier duties, and 5 Lincoln aircraft at Townsville for air sampling tasks. They also established a temporary RAAF station at Broome to service 86(T) and 82(B) wings (5.0.12). Aircraft crew did not wear film badges or dosimeters (5.0.20). No aircraft decontamination was undertaken. (11.1.3)
·…..RAAF air and ground crews were not included in the operational orders which required that radiological safety regulations set down for Hurricane be observed. Some contamination of aircraft and crew based at Broome did occur although probably well within the limits set down in the regulations. (5.0.22)
·Extrapolation from limited available data suggests it was ‘likely that the surface contamination on the <Broome> Lincolns gave very low dose rates and that the maximum dose to the aircrew was well below the normal working dose specified in the Hurricane Radiological Safety Orders. The contamination levels were such that ground crew working in the aircraft after their return would only have received radiation exposures that were well within the approved lowest radiation dosage level for Hurricane participants, called ‘the Normal Working Rate’. (5.5.47)
·Air and ground crew of Lincoln aircraft used for Hurricane suffered exposure to radiation but the dose which they received is now impossible to determine accurately. It is unlikely that the dose exceeded the level of dose which others involved in the program were authorised to receive. (5.5.57)
·The 82(B) Wing Lincolns that flew from/to Broome were (5.5.53):
A73-55 Sqd Ldr WM Dixon
A73-54 Sqd Ldr D A Glenn
A73-52 Gp Capt G C Hartnell
A73-41 FO E D McHardie
A73-53 Flt Lt S W Trewin
A73-61 Flt Lt E B Goldner
A73-51 Flt Lt H R Winchcombe
·5 Lincolns flew through the mushroom cloud to perform samples: A73-41, A73-51, A73-53, A73-54 and A73-61. (11.1.1)
·In addition to the 5 Lincolns that flew from Broome through the cloud approx 16.5 hours after the explosion, the remaining 2 Broome Lincolns flew approx 44 hours after the explosion 1300 nautical miles west-north-west of Broome, and experienced far less radiation (5.3.5). A final sampling flight flew from Broome 70 hours post explosion and went over the Monte Bellos and collected far less radioactivity (5.3.5).
·‘The first interception of the cloud by the Lincoln aircraft was estimated to have occurred about sixteen and a half hours after the explosion. The aircraft were in the vicinity of the cloud for about five and a half hours. About two days after the explosion three aircraft were sent to search an area north-west of the Broome at 500 feet. Finally, one aircraft was dispatched at about three and a half days to take samples about 9000 feet between Onslow and Broome after the coastal monitoring Dakota aircraft had detected activity at that level.’ (5.5.43)”
12. Mr. Wieden has now concentrated his attention on Lincoln aircraft A73-53. It was mentioned in the Royal Commission report as one of the planes which flew through the mushroom cloud to collect samples. The plane’s captain was Flt Lt S.W. Trewin. The T-documents contain the following information from official reports and records about A73-53 (among the other planes that flew to Broome):
·Folio 331 (Re: A73-53)
8.9.52 “Issued ex 3 A.D. to 82 wing for U.E. 2.9.52”
11.9.52 “Received do do”
19.9.52 “Held serv at 82 Wing”
20.9.52 “ “ “ “ “ “ ”
·Folio 296
“Maintenance: Because of the difficult lines of communication to BROOME it was considered advisable to limit the type of engines to be operated. These arrangement were made therefore, on return to AMBERLEY, for 8 (eight) aircraft with Herlin 102 engines to be prepared for the Operation. This involved making arrangements for No. 3 Aircraft Depot to have their priorities changed to ensure that 3 (three) Lincoln aircraft in the Depot were given priority so as to be ready in time. Flying roles for those aircraft were adjusted to ensure that each had at least 70 hours flying before the next 100 hourly inspection, when they departed for BROOME.”
·Folio 298
“The seven Lincolns each with a crew of seven and five passengers commenced moving to Broome on the night of 19/20 September. The move was completed when the last aircraft arrived at Broome on the morning of the 22nd September 1952.”
·Folio 302
“Early on the morning of Friday the 3rd October, 1952 advice to stand by for operations was received. Soon afterwards the ABC news confirmed that the experiment had commenced at 0415 hours.”
·Folio 303
“requested the search to begin at 2000 hours”
‘Every aircraft was airborne within a minute or so of the required time’
“On return the ground organisation worked equally well and the canisters were in Mr. GALES laboratory with minutes of the aircraft touching down. He confirmed immediately that the cloud had been found. Subsequently it was found that samples of almost the same intensity had been collected by each and every aircraft and the smile on Mr. GALES face was worth a nights hard work. Further searches were obviously unnecessary, in fact Mr. GALES expressed the view that he was embarrassed by the amount of the material he had. Crews were, therefore, sent to bed.”
·Folio 319
On 4 October A73-53 flew from Broome to Darwin to deliver the canisters (samples) with orders to hand the samples over to “the United Kingdom representative” on the following day and then return to Amberley.
·Folio 226
5.10.42“Flt. Lt S.W. Trewin (Captain) and his Broome crew returned at nightfall in weather, so dirty that folks were attributing same to the Big Bang at Monte Bello last Friday.”
·Folio 84
“b. TOWNSVILLE – NO 10 SQUADRON:
Five Lincolns (A73-5, A73-6, A73-10, A73-26 and A73-27) were allotted for cloud tracking/sampling. However due to the accuracy of weather forecasts the full strength was not needed for this task. The North Eastern Area report states that 3 Lincolns contacted the cloud. Two of the aircraft were airborne at 050801Z and 050756Z respectively but due to bad weather and navigational problems one aircraft was diverted to Mackay and one aircraft to Amberley. Both aircraft were returned to Amberley the following day and their filters were found to be radio active. A third Lincoln flew to Coolangatta at a height of 10,000 ft in the time scale 060136Z to 060823Z and its filters were also found to be radio active. Mr Crooks the British Scientist said that the samples obtained were up to the best standard.”
·Folio 236
13.11.52“W.O. Evans with Flt. Lt. Leibke (who is the Squadron’s new Engineering Officer) air tested 53 for 1 Hr. 15 Mins.”
13.11.52“P.O. RIDGWAY of the Canberra Flight and F. Sgt. READ air tested 53’s flaps – 45 mins.”
13. There is an apparent conflict between the squadron report which shows that A73-53 was tested twice on 13.11.52 and the plane’s individual record (the E88) which does not show that any work was done on the plane in November 1952. The fact that the E88 shows no work was done on A73-53 when Mr. Wieden was at Amberley, has been held to be evidence against his claim. However, the E88 for A73-53 has no entries for a five month period from 19.9.52, when it was serviced at 82 Wing, until 26.2.53 when it was noted to be “Held unserv. At 82 Wing”. There is no mention in the E88 that A73-53 ever went to Broome or Darwin.
14. The Tribunal heard evidence from James Brennan, a retired RAAF officer of 39 years experience. He was at 3AD Amberley during the 1980s. He said that although Operation Hurricane was a classified operation at the time, the E88 should have had recordings made on it in the normal way. He could not explain the gap of five months. He also said that air tests were usually associated with maintenance. That is, the air tests on the flaps of A73-53 for 45 minutes on 13 November 1952 would ordinarily have been associated with maintenance having been done on the plane’s flaps.
15. The Tribunal also received a statement by Ronald Aubrey Coleman into evidence. Mr. Coleman’s statement was:
“Between the 15th September, 1952 and 9th March, 1953, I was called up for National Service. My number was A112265, and I did my training with the 5th Intake, at 10 Squadron, R.A.A.F. Base TOWNSVILLE, my mustering was a Trainee Engine Fitter. I recall Lincoln Aircraft returning from Dust Sampling after Monte Bello Atomic Test. Cleaning of these Aircraft was carried out by other Personel, and at least one of these Aircraft, were parked for some months in an OUT OF BOUNDS AREA of the base.”
16. Mr. Wieden gave evidence to the Tribunal that when he worked on planes at Amberley he wore overalls with the sleeves rolled up and the front open to the waist. He was provided with no safety equipment, no face mask and no goggles.
17. The Tribunal accepts the evidence set out above as reliable. In particular, the Tribunal accepts:
(a)The findings of the McClelland Royal Commission;
(b)The official squadron reports in relation to Lincoln aircraft A73-53;
(c)The official squadron reports in relation to Lincoln aircraft based in Townsville during the Monte Bello tests;
(d)The evidence of Mr. Wieden;
(e)The evidence of Ronald Coleman; and
(f)The evidence of James Brennan.
18. Consequently, the Tribunal makes the following findings:
(a)In October 1952, the government of the United Kingdom, with the co-operation of the Australian government, detonated an atomic bomb over the Monte Bello Islands.
(b)Following upon the explosion on 3 October 1952, a cloud of radio-active dust formed over the site of the explosion.
(c)Lincoln aircraft were despatched by the RAAF from bases in Broome and in Townsville to monitor the cloud. Planes from both bases collected samples of dust which proved to contain radio-active particles. The radio-active cloud was blown from the Monte Bello Islands off the west coast of Australia, across Australia, towards Townsville on the east coast of Australia.
(d)Lincoln aircraft A73-53 flew through the atomic cloud on 3 October 1952, and collected radio-active dust.
(e)On 4 October 1952, Lincoln aircraft A73-53 flew north east from Broome to Darwin. It must have passed through the radio-active cloud which was being blown from west to east.
(f)On 5 October 1952, Lincoln aircraft A73-53 flew south-east from Darwin to Brisbane. It must have again flown through the radio-active cloud which was by this time being sampled by planes from Townsville. The filters in the Townsville based planes were found to be radio active.
(g)On or about 13 November 1952 Lincoln aircraft A73-53 had maintenance work done on the wing flaps at Amberley Air Base. (No other plane is mentioned in the squadron report as having had work done on wing flaps or as having flaps air tested.)
(h)Mr. Wieden worked on the wing flaps of a Lincoln plane at some time after the Monte Bello atomic bomb tests (that is, at a time after some of the contaminated aircraft had had their engines removed for dismantling and inspection), and before he was discharged in early December 1952.
(i)The Lincoln plane he worked on must have been A73-53 which had flap maintenance done on it on or about 13 November 1952.
(j)The said Lincoln A73-53 was contaminated with radio-active dust having flown through the radio-active cloud on at least three occasions. The degree of contamination was not measured in 1952, and no one knows the degree of contamination.
(k)There is a high degree of certainty that the dust which Mr. Wieden removed from the flaps of Lincoln A73-53 was caught by and deposited in the flaps as it flew through the radio-active cloud in October 1952. That is, the dust was radio-active.
(l)Whilst Mr. Wieden was cleaning the dust from the flaps, his face, chest and arms were exposed to the dust. He would probably also have inhaled some of the dust.
(m)Mr. Wieden was exposed to ionizing radiation during his National Service in the RAAF in November 1952.
19. The next question to be answered is whether Mr. Wieden’s exposure to ionizing radiation caused his skin cancers and his MDS.
20. The Respondent has suggested that Mr. Wieden’s skin cancer problems stem from his exposure to sunlight – possibly as a result of sunburn in his youth.
21. The Respondent has resisted the claim in relation to MDS on the basis that ionizing radiation is not a causal factor in the development of MDS.
22. The Tribunal was fortunate to have available to it a large volume of literature about the possible links between ionizing radiation and skin cancer and MDS. It had been collated by Dr. Ian Smith, Senior Compensation Medical Adviser to the Military, Compensation and Rehabilitation Service (MCRS).
23. The Tribunal also had the advantage of receiving written reports and oral evidence from three eminent experts in the area of cancer and MDS. The experts were:
Dr. Terence Frost, Clinical Haematologist, who provided written reports.
Dr Mark Bentley, Clinical Haematologist and Haemato-oncologist, who provided a written report and also gave oral evidence by telephone.
Professor John Kearsley, Director, Division of Cancer Services, St. George Hospital, Professor at the University of New South Wales, who gave oral evidence by telephone.
24. Dr. Bentley believes that the extent and severity of Mr. Wieden’s skin cancers appear excessive for solar exposure alone. He said that there is an association between development of skin cancer and far more aggressive behaviour of skin cancer, in patients exposed to ionizing radiation as a result of therapeutic or diagnostic procedures. In summary he said:
“In my opinion, Mr. Wieden’s skin cancers could have been caused by exposure to ionising radiation. It is relatively uncommon to experience such an aggressive course in the absence of immunosuppression or radiation exposure.”
25. Dr. Bentley went on to report on Mr. Wieden’s MDS. He said (among other things):
“The median age of presentation in MDS is 65-75 years with a clear age-related incidence. Younger patients who develop MDS have usually had exposure to chemotherapy or radiation therapy. There is a slight male preponderance (1.3.1.0).
The aetiology of MDS, in most cases, is unknown. Exposure to ionising radiation, organic chemicals, heavy metals, herbicides, pesticides, fertilisers, petroleum and diesel derivatives, benzene, chloramphenicol and chemotherapeutic agents may increase the risk of developing MDS. Patients with clear exposure to these agents are often referred to as having secondary MDS, or treatment-related MDS. The increasing cure rates for cancer and the widespread application of adjuvant therapy for breast and bowel cancer, is increasing the proportion of patients with secondary MDS.
Alkylating agents and ionising radiation are associated with the highest risk of development of MDS. The effects are often synergistic in patients receiving both modalities of therapy for malignant disorders. There is no known association with viral or other infections and familial cases of MDS are rare in the literature.
There is ample evidence to suggest a link between exposure to ionising radiation and the development of secondary MDS. There is no literature to determine the ‘lag-time’ between exposure and the development of MDS. MDS may often be present for many years prior to becoming clinically apparent.
Experimental studies examining the dose-response relationships for leukaemia and a variety of solid cancers generally support a linear-quadratic model. The risk at low doses is linearly related to dose, whereas at higher doses, the risk increases more rapidly as a function of dose. Regardless, any dose of radiation received has a probability of inducing chromosomal damage that may give rise to cancer development. Analysis of the epidemiologic studies of the atomic bomb survivors, supports the linear-quadratic model. There is not, therefore, a threshold dose of exposure below which it could be conclusively predicted that MDS could not have resulted.
In conclusion, Mr Wieden has suffered from unusually aggressive, early-onset skin cancers, together with a myelodysplastic syndrome characterised by an acquired chromosomal abnormality. The concomitant development of these conditions, both of which have strong evidenciary links with radiation exposure, tends to support Mr Wieden’s claims.”
26. Dr. Frost reported as follows:
“This letter is to confirm our conversation concerning your haematological disorder of Myeloid Dysplasia Syndrome. Radiation exposure is recognised as one of the possible causes of this disorder. If indeed there was radiation exposure from Lincoln bomber aircraft which were used to collect atmospheric dust samples from the Montebello test sites, then this would have to be considered quite seriously as a causative agent for the disorder. The lead time would possibly be consistent as well
Diagnosis: Myeloid Dysplasia Syndrome
I have been asked to provide further information for this man concerning his haematological status. With respect to the specific questions, a final diagnosis of myeloid dysplasia syndrome was made in February 1992. This disorder has been associated with profound haematological disturbances, particularly in the coagulation mechanism, and his serious, and at times life-threatening infections related to granulocyte dysfunction.
With respect to the question on aetiology, I am happy to opine that, should he be proven to have been exposed to significant radiation source, the likelihood of this contributing to the genesis of the disorder would be, in my opinion, of the order of 90%.”
27. Dr. Smith’s research led him to make the following conclusion:
“It is my impression that there is some acceptance within contemporary literature that ionising radiation exposure is aetiologically linked to the development of myelodysplasia. An entity known as treatment related myelodysplastic syndrome (t-MDS) is recognised and is associated with chemoradiotherapy, particularly for the lymphomas. The abstracts accessed do not give sufficient detail to determine the individual relative risks associated with therapeutic radiation, nor to a radiation dose threshold. The other relevant area of study is into atomic bomb survivors. At high exposures (again without absolute dosage estimates) there appears to be an association with the development of leukaemias and myelodysplasia.
Various chromosomal defects have been linked to radiation exposure (and chemotherapeutic exposures) within the abstracts sourced.
In short, there is likely to be sufficient evidence, in my opinion, of a causal association between high dose radiation and the later development of myelodysplasia.”
28. Professor Kearsley presented an opinion that was at odds with the other medical opinions on the role of ionizing radiation in the aetiology of MDS. He stated that there was a failure of the literature to tease out information on leukaemaia and MDS. MDS was a preleukaemic condition but not all MDS patients developed leukaemia. He did not accept that ionizing radiation is a probable cause of skin cancer or MDS.
29. The Tribunal is faced with the not uncommon dilemma of having to choose between the opinions of experts. In Mr. Wieden’s case however, he has developed two completely unrelated conditions, each of which, on the view of two clinicians and a doctor who researched the material for the MCRS, are associated with exposure to ionizing radiation. When that fact is taken with the Tribunal’s finding that Mr. Wieden was exposed to ionizing radiation in 1952, the conclusion is almost irresistible that Mr. Wieden’s skin cancers and MDS were both caused by his exposure to ionizing radiation at Amberley while he was doing his National Service. In the circumstances the Tribunal accepts the opinions of Drs. Bentley, Frost and Smith in preference to the opinion of Professor Kearsley.
30. The Tribunal finds that John Edward Wieden is suffering from skin cancers and myeloid dysplasia syndrome, both of which were caused by his exposure to ionizing radiation as a result of his work as a National Serviceman at Amberley Air Base in November 1952, when he was required to clean radio-active dust from the wing flaps of a Lincoln aircraft which had been used to collect samples from the cloud generated by the atomic blast set off over the Monte Bello Islands on 3 October 1952. Mr. Wieden’s two diseases are both due to the nature of his employment in which he was engaged by the RAAF.
31. The decision under review is set aside.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 2 December 2004
Date of Decision 22 April 2004
Applicant Mr. Wieden acting for himself
Solicitor for the Respondent Australian Government Solicitor
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