Deighton and Telstra Corporation Ltd [2002] AATA 53 (29 January 2002)

Last Updated: 31 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 53

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos W1998/439 & W1998/513

GENERAL ADMINISTRATIVE DIVISION )

Re Raymond Deighton

Applicant

And Telstra Corporation Ltd

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr P Staer, Member

Date 29 January 2002

Place Perth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

..........(sgd R D Fayle).........................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - whether applicant's prostate cancer caused by work related trauma or exposure to chemicals in the workplace - whether the applicant's current symptoms caused by Multiple Chemical Sensitivity - whether Multiple Chemical Sensitivity is a disease as defined by s4(1) of the Safety, Rehabilitation and Compensation Act 1988

Safety, Rehabilitation and Compensation Act 1988 - ss4(1), 14

McDonald v Director-General of Social Security (1984) 1 FCR 354, 6 ALD 6.

Ladic v Capital Territory Health Commission (1982) 5 ALN No.45

Australian Postal Commission v Burgazoff (1989) 10 AAR 296

REASONS FOR DECISION

29 January 2002 Mr R D Fayle, Senior Member & Dr P Staer, Member

1. Mr Raymond Deighton ("the applicant") lodged an application for a review by this Tribunal of a reconsideration decision made by Telstra Corportation Ltd ("the respondent") on 28 October 1998 and subsequently again reconsidered by the respondent's delegate on 10 December 1998. These decisions referred to this Tribunal for review affirmed the respondent's determination of 30 June 1998. That determination was that no benefit was payable to the applicant in relation to a list of 23 separate injuries/illnesses, the subject of the applicant's claim made by letter of 3 March 1998 from the applicant's then representative.

2. The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), numbered T1 to T40, comprising some 317 pages. The applicant was represented at the hearing by Mr Viji De Alwis, solicitor. Mr Mony de Kerloy, counsel represented the respondent. The following exhibits were taken into evidence:

A1 Statement by the applicant, 24 May 2001;

A2 Report by Dr Denis Cherry, 18 July 1994;

A3 Report by Dr Denis Cherry, 24 April 1999;

A4 Report by Dr Denis Cherry, 17 February 2000;

A5 Report by Dr Denis Cherry, 23 August 2001;

A6 Letter to Dr Cherry from Perth Radiation Oncology Centre, 21 June 1996;

A7 Report Dr David Collison, 8 January 1996;

A8 Report Dr David Collison, 8 November 1999;

A9 Report Dr David Collison, 10 January 2000 (with attachments);

A10 Letter from Dr Collison to Mr H Christie, 25 August 2001 (with attachments);

A11 X-ray of applicant's pelvis of 11 November 1964;

A12 Document entitled "National Code of Practice and Guidance notes for the Safe Handling of Timber Preservatives and Treated Timber;

R1 Respondent's statement of Facts and Contentions paragraphs 1 - 124;

R2 Report of Dr Brian Dare, 13 September 1991;

R3 Report of Dr Brian Dare, 30 August 2000;

R4 Report of Dr B Galton-Fenzi, 21 October 1992; and

R5 Report of Dr Andrew C Harper, 6 March 1996.

3. In addition the Tribunal received a bundle of photocopies of published articles provided under cover of a letter from Mony de Kerloy, Barristers and Solicitors, of 29 August 2001. These were marked for identification a "T1" as some of those publications were to be referred to by Dr Brian Dare in his oral evidence.

4. Dr Denis Cherry and Dr David Collison gave evidence on behalf of the applicant and Dr Brian Dare gave evidence on behalf of the respondent.

5. As mentioned, the original claim of 3 March 1998 (T3) listed 23 claimed injuries/disabilities, all of which were the subject of the respondent's review and reconsiderations mentioned. However, by letter of 19 May 1999 from Legal Aid it was stated:

"I confirm the advice given at that conference that the Applicant's above claim will be restricted to two diseases/medical conditions, namely prostate cancer and multiple chemical sensitivity."

6. As will be seen from the history of claims and appeals made by this applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 ("SRC Act"), documented below for convenience, that concession is justified in the light of previous events, decisions and a related agreement, namely the Deed of Settlement of 1992. For that reason the Tribunal confines these reasons to the two conditions - prostate cancer and multiple chemical sensitivity ("MCS"), despite the frequent references by the applicant's representative to other conditions.

7. The Tribunal notes that this is the 14^th application under the SRC Act, by the applicant to this Tribunal. Of those, the applicant has, as of right, taken three matters on appeal to the Federal Court and sought leave to appeal two of those to the High Court, neither of which were granted. The Tribunal is mindful of its duty to afford the applicant procedural fairness and a reasonable opportunity to be heard and present his evidence. That approach to this case has been the Tribunal's cornerstone and the Tribunal puts on record its appreciation of the assistance and fair handedness in this regard rendered by Mr de Kerloy for the respondent. Notwithstanding, sources quite independent of this Tribunal have intimated that the applicant's motives in regard to his compensation claims may be affecting his judgement as to the bona fides of his claims. The T documents include such comments, for example, Dr Lance Risbey, a psychiatrist, in a letter of 11 September 1992, to the applicant's then treating general practitioner, after having seen the applicant on two occasions, wrote:

"... [The applicant] has apparently been preoccupied for many years with the belief that most of his symptoms are caused by exposure to insecticide use when he worked with Telecom. ... The fact that his injuries were not all detected at the time has no doubt made him angry and he has displaced much of this anger into this fanatical belief that Dieldrin and other chemicals have caused many symptoms which sound more like those of stress. ...

When I last saw him on the 7^th of September I tried to encourage a more moderate approach for him in regard to attributing cause for his symptoms, and it emerged more clearly that he has been a victim of persuasion by an organisation which has an axe to grind about so called 'chemical victims'. He has thus become a victim of the victimisation syndrome."

In the attached report of the same date, Dr Risbey states:

"In summary, this man displays an ongoing anxiety state contributed to by suffering impotence, by a protracted legal battle, and by a sense of injustice arising from the conflict between his belief that Telecom is to blame, as his employer and the apparent difficulties in proving this. Whilst he suffers some more specific symptoms of trauma related anxiety, these are not sufficient to warrant a diagnosis of post traumatic stress disorder, although there are some indications that the fall would be a contributing factor to his overall anxiety state ...

8. As a matter of record the applicant's claim history, as set out in points 1-124 of the respondent's Statement of Facts and Contentions (Ex. R1) is documented below.

"1. The Applicant commenced employment with the Respondent in 1952, initially as a Linesman and later as a Lines Supervisor Grade 2.

2. The Applicant lodged with the Respondent a claim for compensation dated 26 October 1964 for an injury sustained on 30 September 1964 where a pole fell on his upper thighs causing bruises and abrasions to both thighs. The Respondent paid compensation to the Applicant in accordance with the provisions of paragraph (1)(b) of the First Schedule of the Commonwealth Employers Compensation Act 1930-1959 until the Applicant ceased to be incapacitated for work on 11 January 1965.

3. The Applicant reactivated this claim in July 1985 claiming for medical expenses associated with impotency as a result of the accident he sustained on 30 September 1964.

4. On 4 October 1988 a delegate of the Respondent made a determination that the Respondent was not liable to pay compensation to the Applicant in respect of this claim as he considered that no significant link existed between the injury of 30 September 1964 and the Applicant's impotence.

5. On 12 July 1989 the Applicant lodged with the Tribunal an application for review of the reviewable decision that the Respondent was not liable (Matter No.W89/152).

6. The matter was heard before the Administrative Appeals Tribunal (Senior Member Muller) on 20 August 1990 and the decision under review was affirmed.

7. On 3 August 1973 the Applicant lodged with the Respondent a claim for compensation for a strained back as a result of an accident which occurred on 16 March 1973.

8. On 6 September 1973 a delegate of the Respondent made a determination that the Respondent was liable to pay compensation to the Applicant in respect to this claim. Pursuant to Section 45(2) of the Compensation (Commonwealth Employees) Act 1971 the Applicant was paid compensation for this injury while he was incapacitated for work.

9. The Applicant lodged with the Respondent a claim for compensation dated 27 August 1975 in respect of an accident which occurred on 23 July 1975 in which the Applicant lacerated his forehead.

10. On 24 September 1975 a delegate of the Respondent made a determination that the Respondent was liable to pay compensation to the Applicant under the provisions of Section 45(2B) of the Compensation (Commonwealth Employees) Act 1971 while he was incapacitated for work.

11. On 1 October 1979 the Applicant lodged with the Respondent a claim for compensation for a strained neck as a result of an accident which occurred on 28 September 1979. Liability was accepted by the delegate on 29 November 1979.

12. The Applicant retired from the employment of the Respondent on 7 October 1987[aged 55 years] on the grounds of invalidity as a result of this neck injury.

13. On 11 June 1991 a delegate of the Respondent denied liability in relation to ongoing problems with the Applicant's neck and compensation payments ceased as of 4 June 1991.

14. On 16 April 1992 following a reconsideration of the abovementioned determination, a delegate of the Respondent made a reviewable decision affirming that determination.

15. On 2 June 1992 the Applicant lodged with the Tribunal an application for review of this reviewable decision (Matter No.W92/138).

16. A Deed of Settlement was signed by the parties on 17 December 1992 and the abovementioned matter was dismissed by the Administrative Appeals Tribunal on 17 December 1993 by consent.

17. On 25 June 1984 the Applicant lodged with the Respondent a claim for compensation in respect to strained back muscles which the Applicant sustained on 14 June 1984. The Respondent accepted liability in relation to this claim and compensation was paid while the Applicant was incapacitated for work.

18. On 30 May 1985 the Applicant lodged with the Respondent a claim for compensation in respect of cracked ribs due to an accident on 19 March 1985 where the Applicant slipped off a ladder. Liability was accepted by the Respondent and compensation was paid to the Applicant while he was incapacitated for work.

19. The Applicant lodged with the Respondent a claim for compensation dated 7 May 1985 in respect of skin cancer which he claimed had been caused by exposure to the sun during his working years.

20. On 19 March 1987 a delegate of the Respondent made a determination that the Respondent was not liable to pay compensation to the Applicant in respect of this claim. There were no medical reports to support the Applicant's suggestions and the medical practitioners said that the Applicant's condition was in fact not skin cancer. There were no appeals lodged in regard to this matter.

21. On 21 May 1987 the Applicant lodged with the Respondent a claim for compensation in respect of industrial deafness which he claimed had been caused from working with bulldozers, chainsaws and diggers over a period of years and also from travelling in aeroplanes.

22. On 12 February 1988 a delegate of the Respondent made a determination that the Respondent was liable to pay compensation to the Applicant on the basis that the employment was a contributing factor to the condition of the effects of noise trauma.

23. The Respondent on 2 March 1988 paid to the Applicant the sum of $8,374.59 for the permanent impairment he sustained in relation to his loss of hearing.

24. In or around August 1988 a series of accounts were submitted to the Respondent by the Applicant for reimbursement in relation to the surgical repair of an injury to the right ear following an air trip to the United States of America.

25. On 11 October 1988 a delegate of the Respondent made a determination that the Respondent was not liable to pay any further compensation to the Applicant in respect of this claim.

26. On 24 January 1989 the Applicant requested that this determination be reconsidered.

27. On 23 August 1990 a delegate of the Respondent reconsidered this determination and affirmed it.

28. The Applicant lodged with the Tribunal an application for review of this reviewable decision (Matter No.W90/240).

29. On 19 November 1990 this application was dismissed by the Administrative Appeals Tribunal by consent of the parties.

30. On 15 November 1990 the Applicant lodged with the Respondent a claim for compensation in respect of chronic sinusitis and chronic bronchitis as a result of smoke inhalation.

31. On 24 July 1991 a delegate of the Respondent made a determination that the Respondent was not liable to pay compensation to the Applicant in respect of this claim.

32. The Applicant by letter (undated), received by the Respondent on 31 July 1991, requested that this determination be reconsidered.

33. On 7 October 1991 a delegate of the Respondent, following a reconsideration of the abovementioned determination, affirmed it.

34. On 10 March 1992 the Applicant lodged with the Tribunal an application for review of the reviewable decision (Matter No.W92/72). This application was filed out of time and the Administrative Appeals Tribunal refused the Applicant's application for an extension of time on 6 April 1992. The matter was, therefore, dismissed.

35. On 1 October 1992 the Applicant lodged with the Respondent a claim for compensation in respect of stress. Before making a decision in relation to this claim the Respondent requested from the Applicant medical certificates to support the claim. The Applicant failed to provide the requested information and the matter has not been taken any further.

36. On 5 February 1990 the Applicant lodged with the Respondent a claim for compensation in respect of various ailments or conditions described as "hypertension, vision, nose, throat, lungs, liver, stomach, skin, bowels which he claimed had been caused by exposure to dieldrin and creosote while laying cables and treatment telephone poles... from 1972 to 1986".

37. On 11 September 1990 a delegate of the Respondent made a determination that the Respondent was not liable to pay compensation to the Applicant in respect of this claim.

38. On 10 December 1990 another delegate of the Respondent, following a reconsideration of this determination, affirmed it.

39. On 10 January 1991 the Applicant lodged with the Tribunal an application for review of this reviewable decision (Matter No.W91/14).

40. On 17 December 1992 the Tribunal, pursuant to Section 42A(1) of the AAT Act with the consent of the parties dismissed this application for review without proceeding to review the reviewable decision. A Deed of Settlement ("the Deed") was entered into on this day between the Applicant and the Respondent whereby the Respondent agreed to pay the sum of $28,000 to the Applicant "in full and final satisfaction of all and any compensation to which the Applicant is entitled in respect to" a series of some eleven claims made by the Applicant during the period from 30 September 1964 to 1 October 1992. This settlement included all then outstanding claims including the claim referred to in paragraphs 13, 14, 15 and 16.

41. In the Deed the Applicant warranted that he had no further claims against the Respondent and that all claims against the Respondent had been disclosed to the Respondent and that there were no further accidents or injuries which had not been disclosed to the Respondent and he warranted further that in the event of default of any of the warranties he would repay to Telstra the sum of $28,000.

42. In the Deed the Applicant also covenanted that he had "had the benefit of competent legal and medical advice" and that "in the full knowledge of that advice he had nonetheless chosen to settle" all the abovementioned claims by the Deed.

43. The Applicant was subsequently to claim that the Deed entered into by him upon the advice of his solicitors was null and void as the settlement monies ($28,000) were not paid within the specified period of 21 days. These monies had in fact been paid to the Applicant's solicitors within the prescribed time. However, although declaring that the Deed was null and void, the Applicant did not return the $28,000 to the Respondent.

44. On 4 May 1993 and 15 May 1993 the Applicant wrote to the Respondent requesting that the Respondent reconsider the decision that formed the subject matter of W91/14. The Respondent advised the Applicant that the matter was closed by virtue of the Deed entered into by the parties.

45. On 5 May 1993 the Applicant wrote to the Respondent's solicitors, requesting that the subject matter of W91/14 be reconsidered.

46. On 1 June 1993 the Applicant wrote to the Administrative Appeals Tribunal looking to re-open matter W91/14.

47. On 9 June 1993 the Administrative Appeals Tribunal wrote to the Applicant advising that as the matter had been dismissed by the Tribunal pursuant to Section 42A(1) of the Act that the Tribunal had no further power to re-open or consider the matter.

48. On 26 October 1993 the Applicant wrote to the Respondent requesting that they give consideration to a claim for bladder and prostate cancer.

49. By letter dated 28 October 1993, the Respondent advised the Applicant that, having entered into a negotiated settlement, the matters raised in the Applicant's letter of 26 October 1993 were closed and that no further action would be considered by the Respondent.

50. On 14 November 1993 the Applicant sought review by the Administrative Appeals Tribunal of the "decision" contained in the Respondent's letter of 28 October 1993 (W93/929).

51. By letter dated 28 January 1994, the Applicant's new solicitors, McMullin Coate & Co, on behalf of the Applicant, withdrew matter W93/295.

52. Matter W93/295 was dismissed by the Administrative Appeals Tribunal on 31 January 1994.

53. On 19 May 1994 the Applicant's solicitors wrote to the Respondent's solicitors advising that they had written to the Commonwealth Ombudsman as a precursor to making an application to the Federal Court seeking an order compelling the Respondent to deal with the Applicant's application that was the subject of matter W93/295. The Applicant's complaint to the Commonwealth Ombudsman was dismissed and he was told in a letter dated 26 May 1995 that his complaint had in effect no merit.

54. On 7 February 1995, the Applicant lodged an application for a review of decisions made by the Respondent on 29 April 1988, 23 July 1990, 11 September 1990 and 14 December 1990. At the same time as lodging this application for review, the Applicant lodged an application for extension of time in relation to a decision relating to medical expenses arising out of the accident in 1964 and a decision relating to exposure to dieldrin and creosote (W95/42).

55. Due to the number of issues raised by the Applicant's application for review and application for an extension of time, the Respondent's solicitors wrote to the Administrative Appeals Tribunal on 15 February 1995 requesting that the Applicant be required to identify the decision that he sought to be reviewed and to identify exactly what orders he was seeking.

56. On 10 March 1995, the Administrative Appeals Tribunal issued a direction requiring the Applicant to identify the decision which he sought reviewed.

57. On 12 April 1995, the Applicant's solicitors, McMullin Coate & Co, wrote to the Administrative Appeals Tribunal seeking to re-open all of the Applicant's previous claims, with the exception of matter W93/295. In regard to these claims, two had been dismissed by the Administrative Appeals Tribunal and two had been dismissed by consent.

58. The letter referred to in paragraph 57 above was not within the time prescribed by the Administrative Appeals Tribunal and, as such, on 12 April 1995 the Tribunal dismissed matter W95/42.

59. On 23 May 1995 the Applicant lodged another application for review seeking review of a decision made on 19 March 1987. This application related to skin cancer caused by sunlight and became matter W95/198.

60. On 24 May 1995 the Administrative Appeals Tribunal wrote to the Respondent, inviting the Respondent to provide submissions in opposition to the application for extension of time.

61. On 26 May 1995 the Respondent provided submissions in opposition to the application for extension of time.

62. On 29 May 1995 the Respondent's solicitors wrote to the Applicant putting him on notice that they would seek to have an order made pursuant to Section 42B(1)(b) of the Administrative Appeals Tribunal Act. (At this stage it appeared that the Applicant was unrepresented).

63. On 7 June 1995 the Applicant's solicitors withdrew matter W95/198 and in doing so apologised for the Applicant's conduct in relation to the same.

64. On 7 June 1995 the Administrative Appeals Tribunal dismissed matter W95/198.

65. On 12 September 1995 the Applicant lodged with the Tribunal an application for review (Matter No.W95/349). In the application the Applicant did not precisely identify the decision to be reviewed but he stated that he had cancer and that he was appealing against the Respondent's use of "banned chemicals". He further explained that he did not have the cancer when he signed the Deed and that his solicitor had made him sign the Deed against his will.

66. On 15 April 1996 the Applicant lodged an amended application for review and an application for extension of time for lodging the amended application for review with the Tribunal (Matter No.W96/108) as the application was lodged four years and seven months after the expiration of the prescribed period.

67. Associate Professor Hotop [Senior Member, AAT] on 23 May 1996 refused the application for an extension of time and dismissed the application for review.

68. On 20 June 1996 the Applicant lodged a notice of appeal to the Federal Court (WAG79 of 1996).

69. On 13 February 1997 Justice Carr of the Federal Court dismissed the Applicant's application on the basis that he did not consider that any error of law on the Tribunal's part had been demonstrated.

70. On 21 April 1997 the Applicant lodged an application for special leave to appeal in the High Court of Australia.

71. On 23 April 1997 the High Court Registry advised the Applicant that an appeal can not be brought to the High Court from a judgment of a single Judge of the Federal Court.

72. On 6 May 1997 the Applicant lodged an application for an extension of time to appeal Justice Carr's decision (WAG52 of 1997).

73. On 22 May 1997 Justice French dismissed this application. In doing so His Honour commented "In my opinion this case has gone as far as it should go".

74. On 11 June 1997 the Applicant lodged with the High Court another application for special leave to appeal.

75. On 24 June 1997 the Respondent's solicitors received notification from the High Court that the Applicant did not have jurisdiction to apply for special leave to appeal to the High Court.

76. On 8 July 1997 the Appellant filed an application in the Federal Court (WAG74 of 1997) which appears to be an application for an extension of time to seek leave to appeal and for leave to appeal the decision of Justice French, as the time for seeking leave to appeal from the decision of Justice French expired on 29 May 1997.

77. On 17 October 1997 the Full Court of the Federal Court dismissed the application. No written reasons were given.

78. On 3 March 1998 Mr Phillip Semini on behalf of the Applicant wrote to the Respondent requesting that it make a determination in respect of the following claims:

(a) Heart disease - vasculitis;

(b) Prostate cancer;

(c) Deafness (an increase in);

(d) Depression;

(e) Generalised arterial atherosclerosis;

(f) Damaged sinus - chronic sinusitis;

(g) Chromosomal damage;

(h) Secondary premature onset of blood pressure;

(i) Corticalatrophy;

(j) Multiple chemical sensitivity;

(k) Blood poisoning;

(l) Blood disorder - coagulation related;

(m) Whiplash (19/3/1985 - unclaimed);

(n) Chest scarring;

(o) Urinary tract damage;

(p) Kidney injury;

(q) Thyroid damage;

(r) Excessive fatigue;

(s) Insomnia;

(t) Peripheral neuropathy (arsenic related);

(u) Onset of cognitive difficulties;

(v) Cadmium related poisoning;

(w) Long term gastric reflux and/or generalised digestive tract damage.

79. The Respondent's insurers, GIO Insurance, responded to this letter by letter dated 24 March 1998. The Respondent's letter sets out that no medical evidence to substantiate the claims nor any evidence to show that the claims are work related has been provided in relation to the twenty three separate injuries and on this basis the Respondent is unable to make any sort of decision.

80. By letter dated 16 April 1998 the Applicant himself wrote to the Respondent requesting a reconsideration of a reviewable decision, enclosed with this letter were the following:

(a) The Deed of Settlement;

(b) An article on law and negligence;

(c) The statutory declarations of Karen Collins and Ben Boliver;

(d) The report of Dr Cordova dated 3 December 1992;

(e) The report of Dr Dobie dated 21 May 1992;

(f) Genetics report of Dr Ford dated 11 December 1996; and

(g) The report of Dr Cherry dated 21 January 1997.

81. The Respondent by letter dated 13 May 1998 responded to this letter. Annexed hereto and marked "G" is a copy of this letter. In this letter the Respondent states that a reviewable decision has not been made and further that no or insufficient medical evidence has been provided to substantiate the new claims made by the Applicant nor any evidence to suggest that they are work related.

82. By Facsimile dated 14 May 1998 the Applicant forwarded a copy of the thirty eight pages of the Employees' Comcare Guide of June 1997 to the Respondent.

83. The Respondent received a letter dated 15 May 1998 from Alan Smith, Senior Investigation Officer, Commonwealth Ombudsman, in relation to a complaint received by the Applicant. The Respondent responded to the complaint by letter dated 24 June 1998. The Commonwealth Ombudsman dismissed the complaint.

84. On 20 May 1998 the Applicant lodged an application for review of a reviewable decision dated 24 March 1998, clearly out of time (W98/199).

85. By letter dated 27 May 1998 the Respondent's solicitors requested further information from the Applicant in relation to his claim for compensation for the twenty three separate injuries.

86. On 28 May 1998 the Applicant forwarded to the Respondent's solicitors a letter and a photograph of himself "a day after the operation".

87. The Applicant by letter dated 3 June 1998, forwarded to the Respondent's solicitors, requested that the delegate of Telstra be asked "where my superannuation invalidity benefit in Section 21 is". With the letter he enclosed:

(a) Eight pages from the Annotated Safety, Rehabilitation and Compensation Act 1988 written by John Ballard relating to Sections 20 to 24 of the Act.

(b) The report of Dr Cherry dated 21 January 1997;

(c) The reports of Dr Brian Gobble dated 16 January 1996 and 3 January 1997;

(d) A Statutory Declaration of Karen Collins dated 3 October 1997 and 1 October 1997;

(e) A statutory declaration of Ben Boliver dated 13 October 1997;

(f) The Comcare Guide;

(g) Genetics report dated 11 December 1996;

(h) Report of Gunnar Heuser dated 23 August 1996 and 29 October 1996;

(i) A "Chemical Injury, CFIDS and Chemical Sensitivity Article" from Informed Consent Nov/Dec 1993.

88. Neither of the Applicant's letters dated 28 May 1998 nor 3 June 1998 answer the queries raised in the Respondent's solicitors letter of 27 May 1998.

89. By letter dated 10 June 1998 the Applicant again requested a reconsideration of the determination dated 24 March 1998. He also requested an extension of time. He also stated that in response to the Respondent's solicitor's letter of 27 May 1998 he encloses a photograph of himself after the operation on his sinuses in 1990. He also enclosed:

(i) A report of Stan Wisniewski dated 7 September 1987;

(ii) The report of Brian Gobble dated 27 December 1996; and

(iii) Organaphosphate Exposure Notes No.41 June 1998.

90. By letter dated 30 June 1998 the Respondent wrote to the Applicant pointing out that without further information they are not in a position to be able to make any decision in relation to the Applicant's claim nor a reconsideration.

91. By Facsimile dated 7 July 1998 the Applicant forwarded to the Respondent again:

(a) The report of Dr Cherry dated 21 January 1997;

(b) A report concerning the link between the Applicant's exposure to a number of substances and his health problems;

(c) An article in relation to the Australian Chemical Trauma Alliance;

(d) A copy of a letter to the Applicant from the Minister for Work Place Relations and Small Business dated 12 June 1998.

92. By letter dated 4 July 1998 to the Respondent, the Applicant enclosed:

(a) An article on Multiple Chemical Sensitivity - ACTA;

(b) "Multiple Chemical Sensitivity - A Medical Perspective" by Mark Donohoe;

(c) The charter on industrial hazards and human rights;

(d) Malathion Medical Research Information from website;

(e) Copy of correspondence from Diana Phillips; and

(f) Information from Human Rights and Equal Opportunity Commission to the Applicant.

93. On 7 July 1998 the Applicant lodged an application for review of a reviewable decision dated 30 June 1998 (W98/258).

94. By facsimile dated 12 August 1998 the Applicant forwarded to the Respondent's solicitors the Commonwealth of Australia Gazette No.S385 of Wednesday, 30 November 1997.

95. By letter dated 13 August 1998 the Respondent's solicitors advised the Applicant that it is necessary for him to contact Comsuper to ascertain any entitlements he may have to superannuation payments.

96. The parties appeared before Senior Member Associate Professor Hotop on 21 August 1998 who dismissed matters W98/258 and W98/199 for want of jurisdiction.

97. By letter dated 26 August 1998 the Respondent's solicitors again requested that the Applicant provide as much detail and evidence in relation to his claims as possible to enable the Respondent to properly consider them.

98. By letter dated 27 August 1998, the Applicant requested three (3) claim forms, one for Anxiety, one for Impotence and one for the use of Banned Chemicals. Enclosed with the letter were the following documents:

(a) Copy of a letter forwarded to the Applicant from Telstra in relation to a Medicare account;

(b) A Medicare statement;

(c) A copy of a First Medical Certificate dated 16 November 1992 from Dr John Hearne;

(d) A copy of the Respondent's solicitor's letter dated 26 August 1998.

99. By letter dated 9 September 1998 the Respondent's solicitors forwarded to the Applicant the three (3) claims forms requested, and requested clarification of his claim.

100. By letter dated 8 September 1998 the Applicant requested that the Respondent make a reviewable decision in relation to the Banned Chemicals. Enclosed with the letter was a copy of a letter he had forwarded to Telstra on 1 September 1998 in relation to his superannuation enquiry and a copy of a letter from Telstra to the Applicant dated 1 September 1998.

101. By letter dated 29 September 1998 the Applicant requested that a reconsideration be carried out in relation to the Impotence claim. Enclosed with this letter were the following:

(a) A statutory declaration of Karen Collins dated 1 October 1997;

(b) An Accident Report in relation to 30 September 1964 and 5 October 1992;

(c) A compensation form for Anxiety dated 1 October 1992;

(d) A medical certificate from Dr Hearne dated 16 November 1992;

(e) A medical report from Dr Hearne dated 10 December 1992;

(f) A report of Alistair Tulloch dated 16 September 1998;

(g) A report from OB King dated 23 November 1998 and;

(h) A claim for compensation benefits for Cancer dated 29 September 1998.

102. By letter dated 6 October 1998 the Applicant enclosed a claim for compensation benefits for Exposure to Creosote on 2 June 1952 and Cancer on 6 October 1998. Also enclosed were the following:

(a) A letter from Legal Aid to the Applicant dated 25 September 1998;

(b) An internet article on Malathion;

(c) An article from the West Australian on 28 September 1998 "Campaigner Takes On Our World";

(d) Letter from Dr Cherry dated 25 February 1997;

(e) Letter from Minister for Labour Relations dated 5 June 1997 and;

(f) A report of Dr Dingle dated 9 April 1996.

103. By letter dated 9 October 1998 the Applicant forwarded to the Respondent a medical certificate from Dr Cherry dated 27 June 1995 and requested payment of an account from Western Neurology for $40 dated 5 October 1998.

104. By letter dated 12 October 1998 the Respondent advised the Applicant that a decision was being carried out in relation to his claim for compensation in respect of Cancer, Exposure to Chemical Creosote and Stress.

105. By letter dated 13 October 1998 to the Respondent the Applicant advised that he was waiting for a reconsideration of the Banned Chemicals and enclosed a letter from Legal Aid dated 6 October 1998.

106. A reconsideration of determination was carried out by the Respondent on 28 October 1998.

107. By letter dated 29 October 1998 the Applicant advised the Respondent that he was making an application to the Tribunal for review. Enclosed with this letter were the following:

(a) A First Medical Certificate of Dr Cherry dated 23 October 1998;

(b) A report of Dr Patrick Hanrahan dated 14 October 1998;

(c) Report of Stan Wiesniewski dated 5 October 1998.

108. On 11 November 1998 the following documents were facsimiled to the Respondent with no covering letter:

(a) Letter from Gunnar Heuser dated 29 October 1996 and an attached report of same date;

(b) Report of Dr LC Risbey dated 11 September 1992;

(c) Report of Dr LC Risbey dated 17 December 1992;

(d) A diagram sketch of accident claimant had in 1964;

(e) Report of Dr R Byron Collins dated 31 January 1992;

(f) Report of Andrew C Harper dated 6 March 1996;

(g) Letter of Alistair Tulloch dated 16 September 1998;

(h) Report of Dr Peter Dingle dated 9 April 1996, letter of Dr David Collison dated 8 January 1996 with enclosed report;

(i) Photocopy of cover page of book "Why Do I Feel So Awful" by Dr David Collison;

(j) A health appraisal questionnaire dated 5 November 1995;

(k) Photocopy of three pages from the book "The Chemical Burden";

(l) A chemical questionnaire dated 5 November 1995.

109. By letter dated 20 November 1998 the Respondent's solicitors advised the Applicant that they would do a supplementary reconsideration to consider the information forwarded by him since the date of the reconsideration.

110. The supplementary reconsideration was dated 10 December 1998.

111. On 21 December 1998 the Applicant filed at the Administrative Appeals Tribunal an application for review W98/513 [part of the current review].

112. The Applicant's solicitor advised at a conference held at the AAT on 19 May 1999 that the Applicant's claim had been reduced to Prostate Cancer and Multiple Chemical Sensitivity. This was confirmed by letter from the Applicant's solicitor to the Respondent's solicitor dated 19 May 1999. Also enclosed with this letter was a report from Dr Cherry dated 20 April 1999. The Applicant's solicitor also advised that further evidence to support the claim for Multiple Chemical sensitivity was being obtained.

113. By letter dated 3 June 1999 the Respondent's solicitors wrote to the Applicant's solicitor seeking advice as to what evidence the Applicant intended to rely on to support the two claims.

114. A telephone conference occurred on 29 July 1999 whereby the Applicant's solicitor requested that the Respondent pay for the Applicant to undergo further testing in New South Wales in relation to Multiple Chemical Sensitivity.

115. By letter dated 5 August 1999 the Respondent's solicitors advised the Applicant's solicitor that the Respondent would not meet the costs of the Applicant undergoing testing in New South Wales.

116. A telephone conference occurred on 13 October 1999 whereby the Applicant's solicitor advised the parties that the Applicant was to undergo testing in New South Wales on 1 November 1999 and that they were awaiting a further report from Dr Cherry.

117. A hearing was held at the Administrative Appeals Tribunal before Senior Member Hotop on 27 October 1999 and Directions were made in relation to the filing of documents. At this hearing the Respondent's solicitors requested that the Applicant provide further medical evidence together with particulars as to when the diseases he is claiming for manifested themselves, how they are work related and how they differ from the injuries he has already been compensated for.

118. By letter dated 10 December 1999 the Applicant's solicitors forwarded to the Respondent's solicitors a report from Dr David Collison dated 8 November 1999.

119. By letter dated 14 January 2000 the Applicant's solicitors advised the Respondent's solicitors that they had still not received a report from Dr Cherry and consequently they requested that the abovementioned timetable be amended. This was agreed.

120. By letter dated 27 January 2000 the Applicant's solicitor forwarded to the Respondent's solicitors a supplementary report from Dr Collison dated 10 January 2000. Also enclosed with this letter were the enclosures Dr Collison referred to in his report of 8 November 1999 being:

(a) Letter from Dr David Collison to the Applicant's solicitor dated 10 January 2000;

(b) Letter from the Applicant to Dr Collison dated 12 December 1999;

(c) Statutory declaration of Benjamin Alan Boliver dated 13 October 1997;

(d) Chapter 18 "Sensitivity of Chemicals in Our Environment";

(e) Report of Dr John Glancy dated 26 September 1996;

(f) Chemical questionnaire of the Applicant dated 1 November 1999;

(g) Health appraisal completed by the Applicant 19 October 1999;

(h) Report of Dr P Dobie dated 31 January 1992;

(i) Genetics report of Dr Judith Ford dated 11 December 1996;

(j) Further health appraisal questionnaire 19 October 1999.

121. By letter dated 21 February 2000 the Applicant wrote to the Respondent requesting payment of an outstanding account with Australian Hearing Service for maintenance of hearing aids. Enclosed was a copy of a letter from Telecom Australia to the Applicant dated 22 November 1990.

122. By letter dated 28 February 2000 the Respondent's solicitors wrote to the Applicant's solicitor enclosing a copy of the aforementioned letter requesting them to clarify the Applicant's claim.

123. By letter dated 29 February 2000 the Applicant's solicitor forwarded to the Respondent's solicitors a copy of the Applicant's Statement of Facts and Contentions together with a copy of Dr Cherry's report dated 17 February 2000.

124. To date [that is, by 18 January 2001 when the document was filed with the Tribunal] neither the Respondent nor the Respondent's solicitors have received particulars of when the diseases the Applicant is claiming manifested themselves, how they are worked related and how they differ from the injuries he has already been compensated for."

9. As mentioned, this application is limited to the conditions of prostate cancer and multiple chemical sensitivity (MCS), which, although they have some commonality, are, in the main, quite different. They are therefore each considered separately in these reasons.

10. This matter is of relative narrow legal compass. The relevant provisions of the SRC Act are cited below for convenience:

4. (1) In this Act, unless the contrary intention appears:

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a

material degree by the employee's employment by the Commonwealth or

a licensed corporation;

impairment means the loss, the loss of the use, or the damage or

malfunction, of any part of the body or of any bodily system or

function or part of such system or function;

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course

of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a

disease) suffered by an employee (whether or not that injury arose

out of, or in the course of, the employee's employment), being an

aggravation that arose out of, or in the course of, that

employment;

but does not include any such disease, injury or aggravation

suffered by an employee as a result of reasonable disciplinary

action taken against the employee or failure by the employee to

obtain a promotion, transfer or benefit in connection with his or

her employment;

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay

compensation in accordance with this Act in respect of an injury

suffered by an employee if the injury results in death, incapacity

for work, or impairment.

(2) Compensation is not payable in respect of an injury that is

intentionally self-inflicted.

(3) Compensation is not payable in respect of an injury that is

caused by the serious and wilful misconduct of the employee but is

not intentionally self-inflicted, unless the injury results in

death, or serious and permanent impairment.

Applicant's history

11. At the date of the hearing the applicant was almost 70 years of age. In addition to his prepared statement, exhibit A1, he gave oral evidence. The Tribunal merely observes that there were occasions when his oral evidence was not clear, as he sometimes appeared confused about the chronology of relevant events or indeed the actual events themselves. Nevertheless, in the Tribunal's opinion the applicant's evidence about his current circumstances and life style is reliable. The applicant began work with the PMG (a predecessor of the respondent) in 1952 and left some 35 years later in 1987. His principal occupation was as a linesman in various capacities, including that of supervisor. He ordinarily worked in the open and much of the time in the country. He lived in country towns or when working in remote areas, lived in tents and caravans on location. He states that when he was away from home, which was often, he cooked for himself and ate well.

12. The Tribunal accepts that in his early life the applicant was very fit and before joining the respondent he had some thoughts of being a jockey. He played football until he suffered an injury to a shoulder. He then umpired for some years.

13. He gave a history of the use of chemicals, particularly for treating telephone poles and also for spraying weeds and suckers. The principal chemicals that were used were creosote and dieldrin. In relation to the use of the herbicides, 245-T and 24-D, it became apparent that he used these only on few occasions, to poison suckers around telegraph poles. The herbicide was used for no more than two weeks in two succeeding years. Apparently the respondent then ceased using that particular herbicide. In the early years of the applicant's work for the respondent (which was then the PMG) no protective clothing or masks were provided or used. The applicant said that the chemicals splashed and soaked his clothing and his exposed areas of skin or he inhaled the vapours. However, on cross-examination by Mr de Kerloy, the applicant admitted that he was careful when he poured the chemicals (creosote and dieldrin) around the poles and that they were always used in the open and never confined spaces. Despite that admission, the applicant maintained that his clothing, which he wore until he reached camp after work, was often saturated with the chemicals. The applicant's evidence was that because the trucks were parked close to the caravans in which the workers lived, they experienced the smell of the chemicals at the camp. The applicant said that it was not until late in his term of employment that the respondent provided protective clothing to workers.

14. The applicant gave evidence of an accident in 1964 when up a ladder at the top of a telegraph pole, to which apparently was attached his safety harness, the pole fell and he suffered extensive bruising to the thighs and, he said, a fractured pelvis. It was this fracture which the applicant claimed has been a cause of his subsequent impotence and his prostate cancer. Whilst there is some material in the T documents relating to this incident, there was no supporting evidence, either medical or otherwise, confirming the applicant's assertion that he suffered a fracture to his pelvis. Upon inquiry by the Tribunal the applicant said that he still had the x-ray taken at the time in 1964. In response to a request by the Tribunal the applicant presented this the following day (Ex. A11). Dr Staer, in his capacity as the medical member of the Tribunal, examined the x-ray apparently taken some three to four weeks after the incident. The x-ray shows a fracture of both pubic ramii although there was no evidence of displacement and at the time of the x-ray, there was already evidence of callus formation. Dr Staer suggested to the parties that without displacement in the fracture there was unlikely to have been any damage to the nervous system of the pelvis. Neither party challenged this opinion. In the Tribunal's opinion the available evidence supports a conclusion that there was no displacement of the pelvis as a result of the fracture and there was no damage to the pelvic nerves. For that reason it is not probable that the pelvic fracture is a possible cause of the applicant's subsequent impotence or prostate cancer.

15. The applicant described his relevant symptoms as watering eyes, runny nose, shortness of breath, nausea after eating (some foods), arthritis (particularly of his knees), headaches and generally feeling unwell. All these, he believed were triggered by his claimed MCS.

16. The applicant said that in April 2001, he and his wife had moved to a new residence located on a busy highway and across the road from a service station. This situation exposed him to diesel and petrol fumes, he said. The applicant also told the Tribunal that his wife brought new furniture. He said that it smelt of formaldehyde from the glues used in its manufacture and from the new plastics and vinyl. He believed that these exacerbated him symptoms. He also stated that he ate all meals prepared by his wife even when he thought that some of the food would make him nauseated. In this regard, when specifically asked why he did not avoid that which he claimed were irritants, he said that he liked lifestyle and food and he did not want to change the way he lived. He said this despite his admission that he believed his residential situation and his eating habits affected him adversely, which he attributes to MCS. The applicant also said that when the current (litigation) case was concluded, he would be moving to Lancelin, alone and therefore improving his situation viz a viz his claimed MCS.

17. As well as medication for his heart condition (he had open heart bypass surgery in December 1991) and arthritis, he was also occasionally using drops which he placed under his tongue which, he claimed, relieved the symptoms that were due to his MCS. He was unaware as to what these drops contained. The were supplied by Dr Collison. Dr Collison later told the Tribunal that these drops were homeopathic.

18. As mentioned, the application involves two conditions, prostate cancer and multiple chemical sensitivity, which are dealt with separately below.

PROSTATE CANCER

19. The applicant was diagnosed as having cancer of the prostate in 1993 which was treated by radiotherapy. Only one witness, Dr Denis Cherry, gave evidence of any significance in relation to his prostatic cancer. Dr Cherry is a specialist in sexual problems and Medical Director of the Perth Human Sexuality Centre. He has prepared 5 reports in relation to the applicant. These are the reports of 18 July 1994 (Exhibit A2); 21 January 1997 (T6, p45); 20 April 1999 (Exhibit A3); 17 February 2000 (Exhibit A4); and 23 August 2001 (Exhibit A5). Dr Cherry had been treating the applicant for impotence from 1987. It was Dr Cherry who made the diagnosis of prostatic cancer in 1993 and referred the applicant for treatment. The radiotherapy treatment has put his prostatic cancer into remission. Dr Cherry stated that the applicant was fortunate in that he had very few residual effects from the prostatic cancer. Dr Cherry noted the multiple symptoms of which the applicant now complained. Dr Cherry expressed the view that as a specialist he would limit his comments to the prostatic cancer. In this regard he was asked about the effects of trauma and particularly the fractured pelvis. Dr Cherry ventured that the fractured pelvis could possibly have damaged the pelvic nervous system and been partly responsible for his impotence. He also stated quite clearly that there is no evidence of a linkage or association of trauma and prostatic cancer. In his report of 18 July 1994 he stated:

"Prior to preparing this report I was unaware of any link between either of these factors and prostatic cancer. Nevertheless, although sceptical of an association between trauma and prostatic cancer I recognised the possibility that chemicals may be implicated and I also recognise the need and right of Mr Deighton to be heard and listened to with respect for his ideas.

In neither Mr Deighton's literature (a reference to material provided by the applicant), nor any reference that I obtained from Medline and Toxline search was there any linkage, or association of trauma and prostate cancer.

In relation to the possible chemical exposure linkage to prostatic cancer he concluded:

"In summary then, Mr Deighton has been associated with chemicals in the workplace which at best can be described as having a weak association with prostatic cancer and with which a direct causation of prostatic cancer has not been proved."

Dr Cherry subsequently considered the Repatriation Medical Authority's Statement of Principles in relation to prostatic cancer where it is stated that there is a reasonable hypothesis linking the use of chemicals and prostatic cancer, particularly pentachlorophenol ("PCP"), which can be contaminated by dioxins. It is noted that this is a reasonable hypothesis situation, peculiar to the Veterans' Entitlements Act 1986. That statute's relevant standard of proof is not as stringent as that required under the SRC Act, ordinarily expressed as reasonable satisfaction on the balance of probabilities. In his report of 21 January 1997 Dr Cherry stated:

"... I reviewed the most recent literature that I could find available on chemicals and prostatic cancer, did not reveal a conclusive causative link."

And later in that report, citing the articles in relation to Vietnam veterans and Agent Orange, he states:

"They found that it was 'more probable than not that there was limited evidence of an association (ie, a causal (sic) link) between prostate cancer and herbicides."

After more extensive investigation into carcinogenesis, with particular emphasis on Agent Orange, Dr Cherry states in his report of 17 February 2000:

"Overall, the evidence of all these studies and those specific to Vietnam veterans is that of an association between exposed to herbicides and the development of prostatic cancer."

In that report Dr Cherry also states:

"... the strong probability that pesticides as well as herbicides (to which Mr Deighton also had exposure) may cause prostate cancer."

And further:

"... I consider it more probable than not that his exposure has caused or contributed to his prostate cancer."

20. When cross-examination, Dr Cherry agreed that his use of the word "probable" was meant "possible" or a "small association". Further, he agreed that the dieldrin and creosote to which the applicant was primarily exposed were not carcinogenic of themselves and neither is the PCP in creosote carcinogenic. However, if creosote was contaminated by dioxins then to that extent they are carcinogenic. He agreed that there was no evidence that creosote with PCP used in Australia contained dioxins. He said that the herbicide containing 245-T and 24-D may have a carcinogenic effect on the prostate. However, in the applicant's case, as he now understood that his exposure was limited and there was no saturation as with creosote, then, in his opinion, there was an unlikely linkage to that use and the development of prostate cancer.

21. When asked about the risk factors for the development of prostatic cancer, Dr Cherry said that age was by far the most significant. Thirty percent of males between the age of 60 and 70 have evidence of prostatic cancer. The second factor is a family history of which there is no record as far as the applicant is concerned. The third factor is living in a "western" country and having a "western" lifestyle (as in Australia). The fourth factor is a high intake of dietary fat, protein and energy (calories). Others include a history of venereal disease, being a farmer or farm worker or a member of the armed forces, being overweight or obese and lastly, with only a minor cause, being exposed to potential carcinogenic chemicals. He agreed that in the applicant's case the factors of age, western lifestyle, dietary intake and obesity were pertinent. And Dr Cherry conceded that the possible causal factor of chemical carcinogens was, at best, remote.

22. Dr Cherry was also questioned about the likelihood of the applicant experiencing a recurrence of the prostatic cancer. He said that on the basis of seven years remission that recurrence was unlikely. He further opined that in the applicant's case, even if it did recur, considering his age and his other medical problems, that he would more likely die with prostatic cancer than from it. He also stated that if it did recur after seven years it would be of low grade and further treatment would most likely keep it under control.

23. The Tribunal concludes from the evidence that on the balance of probabilities, there is no sufficient causal link between the applicant's carcinoma of the prostate and his pelvic fracture or his exposure to chemicals while in the employ of the respondent. In reaching this conclusion the Tribunal is mindful of the evidence that the chemicals which may possibly involve a causal link are dioxins and herbicides containing 245-T and 24-D, however, in the scheme of things, the applicant's use and exposure to those was very limited.

MULTIPLE CHEMICAL SENSITIVITY (MCS)

24. By way of introduction to this aspect of the claim under review, the Tribunal quotes from two articles from the bundle of additional documents, identified as T1. Firstly, a Position Statement by the American College of Occupation and Environmental Medicine , 8^th June 1999 under the heading "Multiple Chemical Sensitivities - Idiopathic Environmental Intolerance":

"The diagnosis, treatment and aetiological assessment of MCS has remained a troublesome medical and social concern for individuals, physicians, governments and organisations...

...

The American College of Environmental Medicine continues to support the position that the relationship of MCS to environmental contaminants remains unproved. No scientific basis currently exists for investigating, regulating or managing the environment with the goal of minimising the incidence or severity of MCS."

Another report in evidence is a review of MCS by R A Graveling et al in "Occupational and Environmental Medicine" 1999, 56: 73-85. The authors conclude:

"There is evidence to suggest that in some people exposure to chemicals can initiate a clinical response to subsequent exposures to very low doses of that chemical and structurally unrelated compounds. It is likely however that this accounts for only a small percentage of people labelled as having MCS...

...

At present this remains a theory with no direct experimental evidence."

The Tribunal understands from the evidence that current scientific evidence does not establish beyond reasonable doubt a generalised diagnosis of a condition of MCS. It further understands from the evidence that mainstream medicine recognises the possibility of a diagnosed condition of MCS, which warrants further investigation.

25. Two medical witnesses gave evidence - Dr David Collison and Dr Brian Dare. Also, a considerable amount of material was in evidence. Dr David Collison appeared by video link from Sydney. He holds degrees of MBBS (Syd) in 1960 and has a PhD from Pacific Western University in California. He has taken a specific interest in clinical ecology and has written a number of articles and books, including a book entitled "Why Do I Feel So Awful?". Dr Collison's report of 8 January 1996 is Exhibit A7, his report of 8 November 1999 is Exhibit A8 and his report of 10 January 2000 is Exhibit A9. A letter from Dr Collison with attachments is Exhibit A10.

26. Dr Collison is a firm supporter of the notion that MCS is a diagnosable disorder, the treatment of which apparently makes up the bulk of his practice. He firmly believes that MCS is caused by exposure to chemicals. In the applicant's case he attributes his current symptoms to exposure to dieldrin, creosote and other chemicals. He believes that these symptoms have caused the applicant's depression and a loss of quality lifestyle. This in turn, he opined, can lead to grief and anger. Dr Collison attributes this mental state to the applicant's over-eating and consequent obesity. He further believed that the applicant's chronic illness arising from MCS, has let to a loss of self esteem which exacerbates his depression.

27. Dr Collison's argument seems to the Tribunal to be that the applicant, who once was a very fit and healthy person, has suffered a considerable reduction in life-style due to chemical exposure which has caused his current symptoms, including his being overweight, which in turn have cause his depression and low self-esteem.

28. Under cross-examination by the respondent, Dr Collison admitted that MCS is not recognised as a diagnosis in mainstream medicine. He agreed that, as opposed to allergic responses and chronic fatigue syndrome, there are no specific investigations at present that can point specifically to a diagnosis of MCS. He admitted there could be some psychological elements but he was reluctant to admit to the existence generally of significant psychological overlays. He stated that his diagnosis was based primarily on history and that he had not carried out a specific examination of the applicant apart from measuring his blood pressure. Dr Collison said he had reports before him from doctors who had done specific examinations.

29. Dr Collison wrote "To whom it may concern" on 8 January 1996 (A7), after having received the reports referred to immediately above. In that report he states:

"My contact with Mr Deighton has been only by telephone. I have not met Mr Deighton, nor of course, have I examined him.

...

there is nothing significant that I can add to the collective expert opinion set out in the reports in particular with respect to the actual topics that the various authors of those reports have addressed.

However, I believe there is an aspect of Mr Deighton's case which has not been addressed in any of the above.

At my request, (in an attempt to gain some degree of history from a symptomatological point of view) Mr Deighton completed a Health Appraisal Questionnaire, and a photocopy of that is attached hereto. You will note that there is a significant spectrum of symptoms which Mr Deighton has indicated are moderate to severe. These indeed are what he complains of, at least at the date of the completion of the questionnaire, namely 05/11/1995. He also completed a Chemical Questionnaire and again it will be noted that there are a significant number of chemicals that he either 'dislikes' or is 'made sick from' when exposed to the particular chemicals.

The wide spectrum of symptoms involving multiple organs and the positive results of the questionnaire would suggest the presence of Multiple Chemical Sensitivities.

...

From the history supplied as I have indicated I believe that Mr Deighton suffers from Multiple Chemical Sensitivities. This can be confirmed by appropriate chemical testing...

If he does have Multiple Chemical Sensitivities, it is essential that he is not exposed to chemicals that were the likely cause of the Multiple Chemical Sensitivities. I have referred above mainly to creosote. In my experience, dieldrin and similar pesticide exposure and likewise epoxy resins cause Multiple Chemical Sensitivities and exposure to these or use of them should be totally avoided by Mr Deighton."

30. The applicant was seen by Dr Collision three times, on 1^st, 2^nd and 3^rd of November 1999. The applicant provided more material at that time and again completed two separate Health Appraisal Questionnaires and a "chemical questionnaire" (A8). Dr Collison reported on these consultations and the testing which he then carried out, in his letter to Legal Aid on 8 November 1999 (A8). As a result Dr Collison concludes:

"With respect to the points raised in your letter, I have the following comments;

1. Mr Deighton suffers from Multiple Chemical Sensivity.

2. Mr Deighton suffers from Multiple Chemical Sensivity in relation to Creosote, Dieldren and Epoxy-resins, substances to which he has been exposed in the course of his employment. Specific testing was not carried out for Cadmium, Lead or Arsenic.

3. Mr Deighton suffers from Multiple Chemical Sensitivity. The petrochemical spectrum, aldehydes and in particular formaldehyde, tobacco, chlorine and chemicals not necessarily directly related to work. These are chemicals routinely found in our environment, and inevitably exposure has taken place to these. In the development of Multiple Chemical Sensitivity, it is common to have what is referred to as a Ripple Effect, namely a flow-on effect of sensitivity to chemicals not necessarily those primarily involved in the onset of the condition.

4. It is my opinion that, on the balance of probabilities, it is likely that Mr Deighton's exposure to the chemicals Creosote, Dieldren and Epoxy-resins, as part of his employment, is the likely cause of Multiple Chemical Sensivity.

...

7. ... The ideal management is to avoid exposure if at all possible, and where it is not possible to do so, to aim to keep the level of chemicals in the environment as low as possible....

..."

31. Dr Collison's evidence is that his testing involved ingesting of drops containing small amounts of chemicals that may be causing the symptoms. Dr Collison agrees that his treatment is best described as homeopathic. During cross-examination he told the Tribunal that he had no follow-up consultations or contact with the applicant since he saw him in Sydney in November 1999. He was surprised that the applicant had not taken notice of his recommendations as far as changing his lifestyle was concerned and minimising his possible exposure to identified offending chemicals. He was also surprised that the applicant's use of the prescribed drops intended to relieve symptoms was much less that he would have expected in the circumstances.

32. Upon questioning by the Tribunal Dr Collison stated that he was not a specialist and in fact appeared to be unclear as to the significance of specialist recognition as far as Medicare Australia was concerned.

33. Dr Collison did not bring to the hearing his written notes on the applicant. He was not aware of the previous long history of claims by the applicant against the respondent.

34. The other medical witness was Dr Brian Dare who graduated from Adelaide Medical School in 1977. He has a Masters Degree in Occupational Health and specialist recognition in the area of Occupations Health. He is currently at Royal Perth Hospital working in Health and Safety, particularly in relation to workers' compensation cases. He also conducts private consulting for medico-legal opinions and has extensive experience in medical administration. Dr Dare provided two reports; the first, dated 13 September 1991 is Exhibit R2, and the second, dated 30 August 2000, is Exhibit R3.

35. In his first report Dr Dare was critical of the apparent poor work practices of the respondent (until recent times) particularly in relation to apparent significant exposure to dieldrin and creosote that the applicant had claimed. However his conclusions include:

"The long term health effects of Deldrin (sic) are mainly neurological due to the fat solubility of the chemical. Mr Deighton does not have any chronic neurological symptoms consistent with exposure to Deldrin. ...

With respect to creosote exposure, long term health effects relate to the skin and mucos membranes. He has no skin problems and I consider it unlikely his chest symptoms are related to past creosote exposure. ...

Mr Deighton is certainly anxious about his past chemical exposure and the possible long term health effects. This anxiety is certainly causing him significant distress and contributing a lot of his physical symptoms.

I consider Mr Deighton will continue to be anxious about his past chemical exposures due to the uncertainties about long term effects. This obviously has a detrimental affect on his health."

At that time (R2, 13 September 1991) there had been no mention of a diagnosis of MCS. The second report (R3, 30 August 2000) was more extensive and in summary Dr Dare said:

"Exposure to the herbicides 2, 4, 5 T and 2, 4 D occurred over an extremely limited time, a total of 14 days over a 15 month period.

2, 4, 5 T and 2, 4 D are not animal or human carcinogens (IARC), and the evidence linking prostate cancer with herbicide exposure presently is not conclusive or convincing. I consider that, based on the limited exposure Mr Deighton had to herbicides, and the lack of evidence of any carcinogenic potential of these chemicals, that any relationship between his herbicide exposure and his prostate cancer is not supported.

In relation to multiple chemical sensitivity, I consider Mr Deighton's non-specific symptoms can be explained by his ongoing chest problems and heart disease, and that lumping these symptoms together to make a diagnosis of multiple chemical sensitivity, is not valid. The issue regarding the diagnosis of multiple chemical sensitivity and the type of test used by Dr Collison is controversial and not accepted by mainstream medical specialists and journals. I do not accept that Mr Deighton has multiple chemical sensitivity."

36. Under examination, Dr Dare confirmed that he does not accept a diagnosis of MCS and his opinion that it was not part of mainstream medicine. Dr Dare said that in the late 1980s and early 1990s he took an interest in the condition referred to as MCS. He then reviewed patients said to be suffering from MCS and searched the literature. He said that as a result of this research, in 1991 he gave a talk to the Royal Australasian College of Physicians on the subject. Whilst recognising that there are variable reports in the literature he noted that the College of Occupational Health disputes the condition of MCS as a diagnosis and its relationship to chemical exposure.

37. Under cross-examination by the applicant's solicitor, Dr Dare admitted that he did not have great experience in treating "MCS type patients" whom he referred to other specialists. He also said that he had little experience in treating patients with a significant psychiatric disability, but he did treat cases of mild depression or anxiety. Dr Dare said that he was not involved in the applicant's treatment as his brief was limited to his medico-legal opinion. Dr Dare acknowledged that much had been published about MCS and that some of the mainstream medical community believed that it was arguable that exposure to some chemicals may caused such a condition.

38. Having regard to the evidence of doctors Collison and Dare, the Tribunal is able to draw the following conclusions of fact:

* Dr Collison is committed to a practical patient based study of MCS and the treatments of persons whom he believes have the condition. That commitment is not without merit, notwithstanding Dr Collison's lack of mainstream specialist recognition, which is probably a function of the lack of recognition by mainstream medicine, at this time, of a diagnosis of MCS.

* Dr Dare has researched in the area of MCS, albeit not extensively and at best his patient based experience in this regard is quite limited. Whilst he is not committed to MCS as a diagnosis, he accepts that it has neither been totally rejected nor accepted as a possible diagnosis by mainstream medicine generally.

* Dr Collison did not examine the applicant (except for a blood pressure measure), nor in the Tribunal's opinion did he have a reliable history of the applicant's exposure to chemicals. Therefore, to that extent, his diagnosis may be unfounded.

* The applicant has all but ignored the advice given him by Dr Collison to minimise the effect of his MCS. Indeed, the applicant has made conscious decisions concerning his life style and residential location to be exposed to chemicals/substances/vapours that he believes cause him the symptoms on which he has founded the claim, the subject of this application. That fact raises the possibility of scepticism about the applicant's veracity in relation to his symptomology.

39. As these findings are not sufficient of themselves to found the required reasonable satisfaction, the Tribunal sought further assistance from other material before it. Dr Andrew Harper, a specialist physician in Occupational and Public Health, provided a report of 6 March 1996 (R5). In it he states inter alia:

"Mr Deighton has apparently been seen by a number of doctors and he brought with him two bags containing medical reports. ...

...

Mr Deighton presents a difficult problem with regard to his attributing current symptoms and disease to his past chemical exposures. His exposure to multiple chemicals does not appear to be in any doubt. However his exposure to harmful substances is not limited to work exposures and specifically he reports a significant alcohol consumption over a long period of time. Regarding his memory loss and cognitive changes, it is possible that these symptoms have resulted from alcohol consumption and there is no way in which the contribution from occupational exposure and alcohol can be separated. Regarding his prostate cancer, there is no specific link between this type of malignancy and his exposures in general, and prostate cancer being such a prevalent condition makes it impossible to say any more than it is a possibility that some of his chemical exposures may have contributed to some degree to the development of his prostate cancer. On balance however the probability is that the aetiology is unknown as with the bulk of the population's prostate cancer. I see no relation at all between his cardio-respiratory symptoms and his work. ...

In summary it is a possibility that his workplace exposures have made a contribution to his memory loss and possibly to his constitutional symptoms. I cannot disprove this connection but I do not feel that one could establish a causative link with any significant degree of confidence."

The Tribunal also took note of a report by Dr F Cordova of 3 December 1992 (T6, pp.37-40), at the time the applicant's a general practitioner. After an extensive discussion of all the then symptoms complained of by the applicant, Dr Cordova concludes:

"Obviously Mr Deighton has more than an obsession as regards his ailments being related to workers compensable causes. He always brings a large dossier of literature and notes. He has corresponded with many people, has seen many specialists and doctors and has inter-reacted with lawyers. It is hard to disprove that his ailments are not related in some degree to his past work with Telecom. The problem he faces, together with his legal advisers, is proving beyond reasonable doubt that his pathology is directly related to his employment with Telecom, especially as most of the conditions fall into the realm of degenerative pathology seen with increasing chronological age."

The Tribunal also took account of a report of 21 October 1992, written to the applicant by Dr B Galton-Fenzi (R4), in which he states inter alia:

"REVIEW OF SUPPLIED INFORMATION:

1. Dr L Risbey, Psychiatrist, 11/9/92. In summary he suggests that you have been preoccupied for many years in the belief that most of your symptoms are caused by exposure to chemicals while working with Telecom. It appears that he believes that your problems are more to do with psychological stress. However, he queries the possibility of atypical post trauma reaction in the wake of your fall strapped to the pole [in 1964].

...

5. Laboratory report dated 26/10/92. This appears to reveal that you had several residues of pesticides in you blood. My interpretation of the report suggests that one in two people in the population have traces of dieldren and hexoclorobenzins in the blood and four in five people have DDT's in the blood.

Therefore, the results neither prove nor disprove that what was found in the blood, is related to past or recent exposure.

Dr Garry Gaside, Occupational Physician, 8/8/91. ...[states] whilst [dieldrin or creosote] can have serious short term effects, with exposure to high concentrations, there is little evidence to support the fact that long term problems, s described by Mr Deighton, have occurred from chronic exposure.

...

In summary it appears that the evidence linking dieldrin and creosote to your numerous medical problems is tenuous and this link will prove extremely resistant to any scrutiny.

I am not sure that this report will be of any assistance to you but it appears that the overwhelming weight of evidence does not support your case regarding your past exposure to these chemicals. The main feature is that most of your medical problems are found frequently in the normal population, many of course not being exposed to these same chemicals that cause you some concern."

Conclusion on the evidence

40. On the basis of all the evidence before it, the Tribunal is not reasonably satisfied that the applicant's current symptoms (supra), the basis of this claim for workers' compensation, (being a "disease") are an ailment or ailments, or an aggravation that was contributed to in a material degree by the applicant's employment with the respondent.

41. Even should the Tribunal have accepted MCS is a "disease" for the purpose of the definition of that term in s4(1) of the SRC Act, on the evidence before it, the Tribunal is reasonably satisfied that the symptoms from which the applicant suffers are materially related to his chest and heart ailments, his obesity and his age, rather than in any material or significant way to MCS. In the opinion of the Tribunal, based on the evidence before it, on the balance of probabilities the applicant's claimed symptomatology of chemical sensitivity is neither materially caused by nor aggravated by the applicant's exposure to the specific chemicals of creosote and dieldrin and herbicides during his employment with the respondent.

42. Finally, to the extent that the applicant is suffering depression, stress or anxiety, the evidence indicates, that on the balance of probabilities, the cause is the applicant's ongoing dispute with the respondent in relation to his claims for workers' compensation. The cause of depression/stress/anxiety has arisen well after the cessation of the applicant's employment and is remote from it. To that extent it cannot found a claim pursuant to the SRC Act.

Decision

43. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member & Dr P Staer, Member

Signed: .............(sgd V Wong)..................................

Associate

Date/s of Hearing 19, 20 & 21 September 2001

Date of Decision 29 January 2002

Counsel for the Applicant Mr V De Alwis

Counsel for the Respondent Mr Mony de Kerloy