Yanda and Military Rehabilitation and Compensation Commission (Compensation)

[2015] AATA 873

Yanda and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 873 (13 November 2015)

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2014/3860
Re	Alfred Yanda
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	13 November 2015
Place	Sydney

The Tribunal affirms the decision under review.

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Senior Member J F Toohey

CATCHWORDS – compensation – asthma – obstructive airways disease – whether respondent liable to compensate applicant – whether applicant’s conditions caused by his employment – exposure to cigarette smoke – decision under review affirmed

Legislation

Safety Rehabilitation and Compensation Act 1988 s 14

Compensation (Commonwealth Government Employees) Act 1971 s 27

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. Mr Alfred Yanda seeks review of a decision by the Military Rehabilitation and Compensation Commission (the Commission) denying liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to compensate him for “asthma and obstruction of airflow affecting lungs”.

2. Mr Yanda was born in Papua New Guinea where he served in the police force from 1974 until 1978.  He came to Australia in 1978 and joined the Royal Australian Air Force (RAAF) in 1980.  He served as a steward in messes throughout Australia from February 1980 until 2002, after which he served as a general hand until his discharge in April 2006.  He is now 64.   

3. Mr Yanda’s duties as a steward included serving food and drinks, preparing and clearing tables, cleaning officers’ quarters, and cleaning out bathrooms and toilets.  He was exposed to officers’ cigarette smoke in the mess while serving meals, and in the bar before and after meals.  One of his jobs was to empty ashtrays.  From time to time, he would light officers’ cigarettes.  Up until the early 1990s when smoking in mess rooms was banned, he would spend two to three hours each day in areas where he was exposed to cigarette smoke.  Even after that, he was exposed to cigarette smoke in areas where smoking was still permitted. 

4. In 1992 Mr Yanda was diagnosed with asthma which he says was caused by inhaling cigarette smoke in the course of his employment. 

5. The Commission accepts that Mr Yanda has asthma and obstructed airflow but denies that his employment caused or contributed to his condition.

   Relevant legislation

6. In his claim for compensation completed on 21 July 2013, Mr Yanda identified the date when he first noticed “the disease or illness” as 5 June 1984.  He stated that he first received medical treatment on 6 May 1992.

7. The relevant provisions of the Act commenced on 1 December 1988. Section 124 contains transitional provisions concerning the application of the Act to pre-existing injuries.  Section 124 relevantly provides that a person is entitled to compensation under the Act in respect of an injury suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury under the 1971 Act: subsection 124(1A).  A person is not entitled to compensation in respect of an injury suffered before the commencing day if compensation was not payable in respect of that injury under the 1971 act as in force when the injury was suffered: subsection 124(2).

8. Because Mr Yanda identified the date when he first noticed his disease or illness as 5 June 1984, the provisions of the Compensation (Commonwealth Government Employees) Act 1971 apply. Subsection 27(1) provides:

   If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

9. Where an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease, and his or her employment by the Commonwealth was a contributing factor to the contraction of the disease or its aggravation, acceleration or recurrence, subsection 29(2) applies.

10. Subsection 29(2) relevantly provides that if an employee’s death, or total or partial incapacity for work, results from that disease, or from its aggravation acceleration or recurrence, or if the employee obtained medical treatment in relation to it, the contraction of the disease, or its aggravation, acceleration or recurrence, shall be deemed to be a personal injury to the employee arising out of his or her employment by the Commonwealth.

    Information before the Tribunal

11. The Tribunal has before it documents submitted by Mr Yanda including medical reports and written submissions, and documents provided by the Commission in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”) which include medical reports and clinical records from his time in the RAAF. The documents are considered further below.

12. Mr Yanda gave evidence that he suffered no symptoms of asthma or respiratory disease before he worked in RAAF messes.  He acknowledged, however, that he had a lot of colds and flu as a child with shortness of breath, coughing and wheeziness, and he sometimes coughed up sputum.  He has never smoked cigarettes.

13. Mr Yanda says he first noticed symptoms of breathlessness after running in 1984.  He continued to experience symptoms from time to time but did not see a specialist until May 1992 when he saw Dr David McEvoy, thoracic physician, after being referred by a RAAF doctor.  Dr McEvoy performed lung function and other tests which showed mild airflow obstruction, “significant response to bronchodilator aerosol” and positive responses to prick tests for common allergies.  After further testing, Dr McEvoy concluded that Mr Yanda had bronchial asthma “of no known definite cause”.

14. From time to time up from 1992, Mr Yanda saw RAAF doctors with symptoms of breathlessness.  In November 2005, he lodged a claim for compensation for “obstruction of airflow (lung infection)” first noticed in August 1989.  Asked which aspects of his employment he thought contributed to his disease or illness, he stated “excessive military exercise daily [and] working in a smoke filled environment in the officers and sergeants messes”.  

15. Mr Yanda’s claim for compensation is the first time he is recorded in the documents before the Tribunal as referring to cigarette smoke causing his respiratory problems.  Giving evidence before the Tribunal, Mr Yanda said he could not be sure, but he does not recall mentioning working in a smoky environment to his doctors or anyone else before making his claim for compensation. 

16. In August 2006, Mr Yanda saw Dr Gregory Kaufman, respiratory physician and allergist, for assessment.  Dr Kaufmann diagnosed asthma.  His is the first medical report to refer to cigarette smoke as a possible cause.  His opinion as to the cause is discussed below.

17. In July 2013, Mr Yanda made his present claim.

18. Mr Yanda gave evidence before the Tribunal.  I accept without hesitation that he was a truthful witness.  However, it is 36 years since he joined the RAAF and more than 30 years since he first noticed symptoms of breathlessness.  Not surprisingly, he cannot recall every detail of his symptoms, their onset and treatment, and there are some inconsistencies in the documents before the Tribunal as to when he first noticed the onset of symptoms of asthma.  In these circumstances, the contemporary records become particularly important.

    Clinical records

19. Extracts from Mr Yanda’s clinical records while in the RAAF show the following:

    (a)on 22 September 1980, he saw a doctor for “cough – sputum [indecipherable] dyspnea, wheezing in afternoon”; he was prescribed Bricanyl;

    (b)on 2 October 1980, he was seen for “[shortness of breath with] productive cough for [one week]”; he was prescribed Brondicon;

    (c)on 4 May 1982, he was seen for “productive cough”; he was diagnosed with mild asthma and prescribed Brondicon and a Ventolin inhaler;

    (d)on 11 October 1983, he reported “difficulty breathing thru nose”, having difficulty breathing particularly in the afternoon and reduced tolerance to exercise; he had a productive cough and was prescribed Ventolin and Nuelin;

    (e)on 24 October 1983, he was still getting shortness of breath and “still very wheezy”; he was referred to Dr Jackson;

    (f)on 27 January 1984, he was seen for bronchitis;

    (g)on 1 February 1984 he “still [has] bronchitis” and was advised to continue with Nuelin;

    (h)on 6 June 1984, he was “chesty” and “wheezy” and was to be admitted to hospital; Ventolin and Nuelin were noted;

    (i)on 30 September 1984, he was seen for flu and bronchitis;

    (j)on 12 February 1985, he had “widespread coarse wheeze”; nebulised Ventolin was prescribed

    (k)on 12 June 1985, he had “wheezy cough again” and “sputum – yellowish”;

    (l)on 13 November 1985, he had “cough, yellow sputum” and was prescribed a Ventolin inhaler;

    (m)on 21 August 1989, he was wheezing and was prescribed Ventolin;

    (n)on 23 May 1990, he presented with shortness of breath, wheezing and coughing, and was prescribed Ventolin and Beclaforte;

    (o)on 17 June 1991, he presented with shortness of breath, wheeze and coughing; it was noted he had had a similar episode in May 1990 and was “given ventolin via nebuliser” and Beclaforte;

    (p)on 18 June 1991, he returned with similar symptoms.

    Other RAAF documents

20. In 1991, Mr Yanda’s fitness for continued engagement was assessed.  A medical examination record on 3 October 1991 refers to “several episodes of asthma since Aug 1989” and notes he had used a Ventolin intermittently since at least 1982, and that his asthma was confirmed by his lung function tests.  According to a Minute concerning the review, Mr Yanda acknowledged that he was once diagnosed as having asthma but did not believe that he suffered from the disease.

21. In a response dated 23 October 1991, Mr Yanda wrote that he could not recall any serious asthma attacks or any other illness that required hospitalisation during his 11 years of service.  He stated that one event came to mind, in mid-1990 when he had shortness of breath following a 14 kilometre run; it was accompanied by an irritating cough for which he sought medical attention.  He stated he had not suffered any similar occurrences since that time except for bouts of cold or flu which he felt were brought on by changes of climate.

    Dr McEvoy’s reports

22. On 6 May 1992, Dr McEvoy reviewed Mr Yanda and reported that he could not recall any history of respiratory illness or allergy before joining the police force in Papua New Guinea; he “was quite well until, in 1991, he developed symptoms suggestive of exercise induced asthma”.  Dr McEvoy found he had mild airflow obstruction and “a significant response to bronchodilator aerosol, consistent with bronchial asthma”.  His report makes no mention of Mr Yanda being exposed to cigarette smoke.  Asked about this at the hearing, Mr Yanda said he probably did not tell Dr McEvoy about the smoke because he could not tell the difference himself between a cold and asthma.

    Dr May’s report

23. In May 1997, Mr Yanda was referred to Dr Stewart May, thoracic physician.  In a report dated 6 May 1997, Dr May noted that “he has a long history of chronic airflow obstruction which while of ‘unknown cause’ seems very likely to be due to mild asthma”.  Dr May set out Mr Yanda’s history and symptoms in some detail.  There is no mention of cigarette smoke as a possible cause of his breathlessness.  Asked about this at the hearing, Mr Yanda conceded he may not have mentioned it to Dr May but “everyone would have known” he worked in the mess.

    Dr Kaufmann’s report

24. In August 2006, Mr Yanda saw Dr Kaufmann for assessment in connection with his first claim for compensation.  In a report dated 21 August 2006, Dr Kaufmann stated that Mr Yanda reported that “in the course of [his duties] he was exposed to tobacco smoke created by officers and on some occasions their partners”.  This is the first occasion on which a report to a doctor concerning cigarette smoke is recorded.

25. Dr Kaufmann took a history that Mr Yanda first developed respiratory symptoms between 1984 and 1985 when running; he recalled seeing a doctor in about 1985 and being treated with Ventolin.  Dr Kaufmann noted that RAAF records showed recurrent bouts of cough and wheezing since 1981, and abnormal lung function in 1981 with a “previous diagnosis of asthma and prescription of appropriate treatments including Ventolin, Becotide and Beclaforte”. He concluded that Mr Yanda had asthma, features of which were clear as early as 1980.  He thought Mr Yanda had a genetic predisposition to develop asthma, and his atopy increased the likelihood for developing the condition. 

26. Dr Kaufmann stated there is debate as to whether exposure to tobacco smoke may be a cause for the development of asthma.  He said there was no consensus at the present time although “there is some epidemiological evidence that this may be so”.  Nonetheless, he said, “even that evidence suggests that prolonged exposure to tobacco smoke was required for the initiation of asthma (if this does indeed occur at all)”.  In his opinion, the degree of tobacco exposure Mr Yanda may have had up to 2006, in the course of his work, “would have been small and insufficient to act as a causal agent”.  He acknowledged that, because tobacco smoke acts as an irritant, it can aggravate symptoms of underlying or pre-existing asthma.

27. Dr Kaufmann concluded that Mr Yanda’s symptoms over the years were the result of insufficient treatment.  The physical exertion he was required to undertake in the course of his work and recreational activities would have made him breathless because of the underlying asthma but it was not the cause of his asthma.

    Dr Cassim’s report

28. On 26 June 2013, Mr Yanda saw Dr Khalil Cassim, specialist physician and respiratory physician, for the purposes of a separate matter.  Dr Cassim noted he had had “significant smoke exposure in his workplace”.  He diagnosed Mr Yanda as suffering from chronic obstructive airways disease.  He did not comment on the cause and, in particular, drew no connection between smoke exposure in the workplace and his disease.

    Consideration

29. In circumstances where the history spans more than 30 years, and where an applicant’s recollection is not always clear, the Commission says, and I agree, that the most reliable information before the Tribunal about the development and treatment of a condition is to be found in contemporaneous clinical records.

30. I accept that Mr Yanda was exposed to cigarette smoke while employed in the RAAF. 

31. Mr Yanda maintains that he never had asthma before joining the RAAF.  However, while he may not have been formally diagnosed, by his own account, he had experienced colds and flu, and wheeziness, from an early age.  The clinical records show that, within several months of joining the RAAF, he reported similar symptoms and he continued to report them with some regularity, up until he first saw a specialist in 1992.  Throughout that time he was treated with Ventolin, Becotide and Beclaforte which Dr Kaufmann notes are appropriate treatments of asthma.

32. The fact that Mr Yanda did not mention cigarette smoke as a possible cause of his symptoms to any doctor until 2006 strongly suggests that he did not, in his own mind, link his symptoms to exposure to cigarette smoke.  Asked at the hearing what led him to make the link, Mr Yanda said he had thought about it and he could not see any other explanation.  Merely because he did not make the link in his own mind does not exclude the possibility that exposure to cigarette smoke caused or contributed to his asthma.  However, the medical evidence does not support that conclusion.

33. Dr McEvoy thought Mr Yanda’s asthma was exercise-induced.  The only doctor to consider a link to exposure to cigarette smoke is Dr Kaufmann.  His report is clear that any exposure in the course of Mr Yanda’s employment would have been insufficient to cause his asthma.  I have no reason to doubt Dr Kaufmann’s opinion.

    Conclusion

34. I accept that Mr Yanda genuinely believes that exposure to cigarette smoke in the course of his employment caused his asthma.  However, for these reasons I am not satisfied on the information before me that his employment with the Commonwealth caused or contributed to his asthma. 

35. I affirm the decision under review.

36.     I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 13 November 2015

Date(s) of hearing		6 November 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Mr Andrew Dillon, Counsel