Seal and Military Rehabilitation and Compensation Commission [2011] AATA 139 (2 March 2011)

Last Updated: 2 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 139

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3325

GENERAL DIVISION		)
	Re		Roy Seal

Applicant

And

Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal

Senior Member A K Britton Dr M E C Thorpe, Member

Date 2 March 2011

Place Sydney

Decision

The decision under review is affirmed.

......................[sgd]........................
Senior Member

CATCHWORDS

COMPENSATION – military rehabilitation and compensation - whether employment in Navy materially contributed to claimed conditions – whether causal relationship between Naval service and smoking and alcohol consumption – development and maintenance of smoking and drinking habits

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5(2), 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) Item 42, Sch 1

Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711

Military Rehabilitation and Compensation Commission v Wall [2004] FCAFC 320; (2005) 86 ALD 1

REASONS FOR DECISION

2 March 2011

Senior Member A K Britton Dr M E C Thorpe, Member

1. Mr Roy Seal served in the Royal Australian Navy between April 1967 and March 1971. The Military Rehabilitation and Compensation Commission, the respondent in these proceedings, has accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for Mr Seal’s post traumatic stress disorder (PTSD). The Commission accepts that as claimed, Mr Seal suffers from a number of cardiac related conditions — hypertension, coronary artery disease, myocardial infarction, atrial fibrillation and left ventricular hypertrophy but has declined to accept liability, reasoning that none were “materially contributed to” by his employment in the Navy. Mr Seal has applied to the Administrative Appeals Tribunal for review of that decision.
2. Mr Seal asserts that each claimed condition was “materially contributed to” by his long history of smoking and/or alcohol use, which in turn, was the result of his employment in the Navy.

LEGISLATIVE SCHEME

3. The Commission will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Seal if it results in impairment or incapacity for work: s 14 of the Act.
4. As Mr Seal’s alleged “injury” occurred before 5 April 2007, the provisions of the Act concerning the definition of “injury” as it stood before amendments made in 2007 apply: Item 42, Schedule 1 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
5. The Act then defined injury to include a “disease suffered by an employee”. “Disease” was defined in s 4 of the Act to mean:

(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.

6. Section 4 defined “ailment” to mean:

... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

7. "Aggravation" was defined to include an “acceleration or recurrence”.
8. Section 5(2) of the Act defined an “employee” to mean a person who is employed by the Commonwealth and that a member of the Defence Force shall, for the purposes of this Act, be taken to be employed by the Commonwealth. It also provided that the person’s “employment” shall be taken to be constituted by ... the person’s performance of duties as a member of the Defence Force.
9. The phrase “performance of duties as a member of the Defence Force” encompasses a person’s formal duties as well as ancillary duties and matters incidental to their employment, and also includes “incidents of life in the military” Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 per Hely J at [37], [47], [48].

CAUSE OF CORONARY ARTERY DISEASE/MYOCARDIAL INFARCTION

10. There is no dispute that Mr Seal’s long history of smoking contributed to his development of coronary artery disease (CAD) and suffering several myocardial infarcts in the late 1990s. An acute myocardial infarct, commonly known as a heart attack, is — as explained by cardiologist Professor Michael O’Rourke — often the first presentation of coronary artery disease (CAD), the narrowing of the coronary arteries. While not technically correct, for convenience, in these Reasons, we will use the term CAD to refer also to myocardial infarction.
11. It is not suggested that the period he smoked while in the Navy caused Mr Seal to develop CAD. Rather, Mr Seal contends that his employment in the Navy contributed to the development and maintenance of his (almost) life-long smoking habit, which in turn contributed to his CAD.
12. In Military Rehabilitation & Compensation Commission v Wall [2004] FCAFC 320; (2005) 86 ALD 1, the Full Court upheld the judgement of Hely J in which his Honour considered the contribution of employment to the development of a smoking habit which in turn precipitated a disease. Wilcox and Downes JJ described (at 8) the nexus necessary to connect service and a smoking habit for the purposes of the Act:

In any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness. In a case where it is concluded that the accident or illness was caused by smoking after the period of military service, it will be necessary for the person to show that he or she became so habituated to smoking, during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease...

13. Mr Seal argues that the following features or characteristics of his naval service led to the development of, and/or maintenance of, his smoking habit:
    • The ready availability of cheap cigarettes
    • Living in a closed environment where smoking was the norm
    • Undertaking duties for an extended period where he had little to do and used smoking as a distraction
      
14. In addition, he contends that there was a clear link between his PTSD — for which, as noted, the Commission has accepted liability — and his smoking habit, pointing to, among other things, the alleged increase in the amount he smoked following the collision between the HMAS Melbourne and USS Frank E Evans in June 1969 (“the collision”).
15. The Commission disagrees, and points to Mr Seal’s admission that he had developed an addiction to nicotine by the time he had enlisted. It further contends that Mr Seal’s claim of increasing the amount he smoked while in service — particularly after the collision — is unreliable.
16. To put these submissions in context, it is necessary to examine in some detail the evidence given by Mr Seal regarding his smoking history.
17. Smoking and drinking history: Since making his claim for compensation, Mr Seal has provided the Commission with a number of statements about his smoking and drinking history. He also gave oral evidence on this issue in these proceedings. He has consistently admitted to smoking about 10 cigarettes per day before enlisting in the Navy in April 1967.
18. Mr Seal stated in oral evidence that he began to smoke while working in a menswear store when he was about 16 and a half years of age. He recounted that he did not smoke at home at this stage because his mother, with whom he lived at the time, disapproved. In cross-examination, he agreed with the proposition that he had already developed a smoking habit by the time he joined the Navy and was probably addicted to nicotine. He said he was smoking a pack a day by the time he was posted to HMAS Vendetta (June 1967), and that this continued when he first joined HMAS Melbourne. He attributed the increase in consumption after enlistment to the availability of cheap cigarettes costing between one-third and half of the purchase price in civilian stores, and living in an environment where smoking was the norm. He testified that when the HMAS Melbourne returned to Singapore following the collision, he and his colleagues were in a state of shock and “chain smoked”. He estimated that he was smoking between 30 and 40 cigarettes per day by the time the HMAS Melbourne returned to Sydney for further repairs. He claimed that this increased to around 60 cigarettes per day by the time he was discharged.
19. In an undated statement Mr Seal gave an account of the collision and its effect on him (s 37 documents [Administrative Appeals Tribunal Act 1975], T4). He stated that he started smoking 50 to 60 cigarettes per day around this time and drank until “I was drunk enough to pass out”.
20. In correspondence to (then) Senator Natasha Stott Despoja and others dated 26 February 2008, Mr Seal recounted being a “very light smoker” (around 10 cigarettes per day) when he started recruit training at HMAS Cerberus in March 1967. He said that his smoking increased due to the availability of cheap cigarettes. He also referred to enduring passive smoking while in confined spaces on naval vessels. He made no mention of increasing his amount of consumption following the Melbourne-Evans collision.
21. In a letter to the Commission dated 1 December 2008, Mr Seal stated that his habit became chronic after the collision and that he was smoking 60 cigarettes per day on discharge. He continued at this level until successive heart attacks in 1997/1998. He claimed he continued to drink until placed on Warfarin medication in 2005.
22. In a further undated statement provided to the Commission, Mr Seal referred to smoking 50 to 60 cigarettes per day, getting “blind drunk ... chasing bar girls and chain smoking” after sailing to Singapore for repairs after the collision (s 37 documents [Administrative Appeals Tribunal Act 1975], T 25).
23. In a document entitled “Claimant Report – smoking” prepared on 5 July 2009 for the purposes of claiming compensation, Mr Seal stated that he began smoking in November 1966 — three months prior to joining the Navy. He claimed that this increased to 20 cigarettes per day in June 1967 when he first joined a ship, and 50 to 60 per day in June 1969 following the collision.
24. Throughout the 1990s, Mr Seal was hospitalised on a number of occasions for various cardiac conditions. The hospital records concerning those admissions were tendered by the Commission. All but two record Mr Seal claiming to have smoked about 30 cigarettes per day. In cross-examination Mr Seal proffered two explanations for the discrepancy between those records and the claim made in these proceedings of smoking 60 cigarettes per day since leaving the Navy. He claimed that he told the health professionals that he had smoked 30 cigarettes a day because he understood them to be asking about his daily average “over a lifetime”. He also claimed that after telling health professionals that he had been smoking 50 to 60 cigarettes per day, he revised that figure after being told that it was “ridiculous” because it was impossible to smoke that amount.
25. In an alcohol questionnaire completed by Mr Seal in July 2009 at the request of the Commission, he identified the following changes of pattern in his alcohol consumption:
    • January 1968 – Started drinking one large can of beer on board ship when he turned 18. Rarely drank while on shore leave.
    • June 1969 – Commenced binge drinking. Between 6-10 middies per day.
    • Early 1971 – Stopped drinking while in military prison.
    • March 1971 – Drank 10 middies of beer per day. Wine with meals while out, and a couple of nips of spirits.
    • Until 1980 – Pattern of drinking varied with employment and family commitments, but drank most Sunday afternoons, Wednesday nights and Saturday afternoons.
    • October 1982 – Six middies of beer after work (six days per week). Often went out to clubs and consumed more.
    • 1984 – Four stubbies and four schooners per day. Consumed an additional half a bottle of liqueur on weekends.
      
26. Contemporary records about Mr Seal’s alcohol consumption are inconsistent with the above. In a questionnaire completed at the request of Westmead Hospital in May 1995, Mr Seal responded to a question about alcohol consumption by writing that he “never drank”. A clinical note made four months later recorded that Mr Seal drank a glass of wine a week. A further clinical note from Auburn Hospital in February 1998 noted “ETOH [alcohol consumption] rarely”. A later note made while an inpatient at Auburn in May 1998 recorded that Mr Seal last drank alcohol six years ago.
27. After making his claim for compensation, Mr Seal was assessed by a number of experts. Most took a history of his smoking and drinking habits. In a report dated 11 April 2008, thoracic specialist, Dr Anthony Breslin recorded that Mr Seal commenced smoking before enlistment and smoked up to 60 cigarettes a day for up to 28 years. In a report dated 11 August 2008, cardiologist Professor Michael O’Rourke recorded that Mr Seal smoked up to 60 cigarettes a day from the time of service up until 1994 and that drank heavily up to 1994 and stopped completely in 2005. Psychologist, Dr Susan Ballinger recorded in a report dated 2 July 2008 that Mr Seal began drinking alcohol and smoking heavily when he joined the Navy and continued to “binge drink” until 1994, when he reduced his consumption to several drinks per week. In a report dated 13 July 2009, Mr Seal’s GP of two and a half years, Dr John Thompson, recommended that a psychiatric opinion be obtained to determine whether his PTSD had contributed to an increase in his smoking and drinking. In the context of providing an opinion as to whether Mr Seal satisfied the Statement of Principles issued by the Repatriation Medical Authority (a tool used to assess eligibility for benefits under the Veterans' Entitlements Act 1986), Dr  Thompson referred to Mr Seal drinking “from 1969, after the Melbourne incident till 1994”. Cardiologist Dr Mark Herman recorded in a report dated 6 June 2010 that after the collision and subsequent events, Mr Seal’s smoking increased to 50 to 60 per day. In a report dated 28 May 2010, Respiratory physician, Dr Peter Gianoutos recorded that it increased from 20 to 50 to 60 per day following the collision and continued at this level until 1994.
28. In cross-examination, Mr Seal claimed that he did not tell Professor O’Rourke or Dr Breslin that his smoking had increased after the collision because he was not asked. He insisted that despite the absence of any reference to his post-collision increase in drinking and smoking in her first report, he had told Dr Ballinger about that increase.
29. Findings and conclusions: As is apparent from the above, while some common threads appear in Mr Seal’s accounts of his smoking and drinking history, there are also a number of material inconsistencies. He has given varying estimates of the amount he smoked during and after his naval service and often not mentioned the claim made in these proceedings, of the dramatic increase after the collision.
30. Mr Seal’s explanation for telling health professionals in the 1990s that he smoked only half the amount he now claims to have smoked — because he felt obliged to understate the figure because they considered a figure of 60 to be unbelievable and that the 30 per day figure was “a lifetime average” — is not only internally inconsistent, but simply implausible. While as pointed out by Counsel for Mr Seal, a long history of heavy smoking would be established even on the lesser figure of 30 per day, the discrepancy together with the explanation proffered by Mr Seal raises concerns about the reliability of the evidence given.
31. In addition, there are also a number of material inconsistencies in the account given by Mr Seal about his drinking history. As discussed above there are a number of material inconsistencies Mr Seal’s 1990s medical records. Those records also conflict with the history given to the experts who assessed Mr Seal in the context of his claim. Professor O’Rourke for example recorded that Mr Seal drank heavily to 1994 and stopped altogether in 2005. Dr Herman recorded that he drank between 60 to 100 grams per day from 1969 until 2005. Dr Ballinger recorded that he was a binge drinker until 1994, when he cut back to several drinks per week. None of these histories correspond with the detailed account of his alcohol use provided by Mr Seal to the Commission in July 2007.
32. The account given by Mr Seal of his smoking and drinking history in these proceedings is uncorroborated. It is not possible to say whether, as the Commission suggests, the identified inconsistencies are the product of Mr Seal’s alleged attempts to embellish his claim, or are due to faulty recollection, reconstructed memory or some other factor. Whatever the cause, we conclude that absent independent corroboration, a cautious approach must be adopted in assessing Mr Seal‘s testimony, especially where contradicted by other evidence.
33. While possible, we could not be satisfied on the evidence before us that Mr Seal either increased the amount he smoked while in the Navy, or dramatically increased the amount he smoked after the collision. The addictive qualities of tobacco are a matter of common knowledge. While notoriously difficult to identify at what point a person develops an addiction to tobacco it seems to us more likely than not Mr Seal had developed an addiction prior to enlisting. That conclusion is based on his history of smoking prior to service and is consistent with his own belief. While plainly a temporal connection between his smoking and service, we are not persuaded that his smoking habit — which continued for close to three decades after discharge — was developed, or maintained by, Mr Seal’s “performance of duties” as a member of the Navy. While uncontroversial that his long history of smoking materially contributed to his CAD, we are not satisfied that his employment materially contributed to the development and maintenance of that habit.
34. Accordingly, the claim made in relation to CAD must be refused.

HYPERTENSION

35. It is not in issue that Mr Seal suffers from hypertension. What is disputed is whether his history of alcohol use materially contributed to the development of that condition, and, if so, whether, his employment in the Navy contributed to the development and maintenance of that “habit”.
36. Relationship between alcohol use and hypertension: In a report dated 14 April 2008, Professor O’Rourke wrote that he believed Mr Seal’s hypertension to be “essential” and that it was a constitutional issue and age-related. Dr Herman endorsed that opinion, and thought it to be “almost certainly predominantly constitutional in nature”. However, he was of the opinion that Mr Seal’s drinking had probably exacerbated his hypertension.
37. In oral evidence, Professor O’Rourke said while difficult to pinpoint the date of onset of hypertension, it probably occurred in the early 1990s, most likely when Mr Seal first sought treatment in about 1994. According to Professor O’Rourke, hypertension generally develops with age and usually presents on or after age 50. He thought that onset in his mid-40s did not indicate that Mr Seal was “ahead of the curve”, because he was overweight and had a history of drinking. On questioning Professor O’Rourke could not recall what material he relied on to conclude that Mr Seal had been overweight at that time. We have been unable to identify any material in the evidence before us to support that assumption.
38. The opinions given by Dr Herman and Professor O’Rourke support a finding that Mr Seal’s alcohol use materially contributed to the aggravation or acceleration of his hypertension. However, their respective opinions rest on the assumption that the history given to them of Mr Seal’s drinking history is reliable. For the reasons discussed above, we have concluded otherwise. It follows that we could not be satisfied that the necessary causal nexus between alcohol consumption and the aggravation or acceleration of hypertension has been established. Nonetheless, in the interests of completeness we will proceed to consider whether Mr Seal’s employment materially contributed to his alleged alcohol use.
39. Relationship between alcohol use and employment: The assertion that Mr Seal’s employment materially contributed to his long history of alcohol use rests on three main contentions. First, that Mr Seal’s drinking habit commenced and was maintained throughout his period of service by the ready accessibility of cheap alcohol and by the Navy’s drinking culture. Second, that Mr Seal’s drinking dramatically increased after he witnessed the collision and experienced the traumatic events of its aftermath. Third, that Mr Seal’s alcohol use was caused, at least in part, by his PTSD, for which the Commission has accepted liability.
40. To establish the necessary causal link between drinking and employment, it is not enough to establish that Mr Seal started to drink alcohol while in the Navy, and nor is this suggested. The majority in Wall (Wilcox, Downes JJ) commented at [35]:

[I] it will be necessary for the person to show that he or she became so habituated to smoking, during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease.

This observation is also applicable to the causal connection between service and other addictive behaviours such as alcohol consumption.

41. Even if accepted that Mr Seal commenced drinking alcohol after joining the Navy and drank heavily throughout service, this would not establish that his “employment” was the “effective cause” of his long history of drinking after discharge. As acknowledged by Counsel for Mr Seal, the addictive qualities of alcohol and tobacco are not the same and it is generally recognised that the former is less addictive than the latter. None of the many medical practitioners who have assessed Mr Seal whose reports are before us have suggested that he had developed an addiction to alcohol by the time he left the Navy or subsequently went on to develop an addiction. Mr Seal is of the opinion that he was always able to control his use of alcohol.
42. Second, from the evidence before us, we could not be satisfied that Mr Seal’s PTSD materially contributed to the alleged history of heavy drinking. As discussed we are not persuaded that that the evidence supports a finding of a spike in Mr Seal’s alcohol consumption after the collision. While his treating psychologist, Dr Ballinger, believes that Mr Seal was dependent on a “high alcohol intake for many years”, a fair reading of her reports does not indicate that she held a definitive opinion about the link between the condition and Mr Seal’s alcohol use. The following extract, from her letter to Mr Seal of 7 August 2009, indicates that while she believed that to be a possibility, she put it no higher than that:

It is common for heavy drinking and smoking to be an attempt to “self-medicate” away the symptoms of PTSD. Thus, the increase in your drinking and smoking during your naval service may be linked to your trauma.

43. As we are not satisfied that the necessary link between Mr Seal’s history of alcohol use and employment with the Navy is established we must affirm the decision not to accept liability for Mr Seal’s CAD.

ATRIAL FIBRILLATION AND LEFT VENTRICULAR HYPERTROPHY

44. Even if it is accepted that Mr Seal’s alcohol use materially contributed to each of these conditions, given our findings about the relationship between his employment and alcohol use, the claim in respect of each must fail.

EMPHYSEMA

45. There is no issue that Mr Seal suffers from emphysema and that smoking materially contributed to that condition. However the Commission has questioned whether the Tribunal has jurisdiction to determine liability in respect of that condition because while addressed in the reconsideration decision made under s 62 of the Act it was neither the subject of either a claim for compensation or the Commission’s original determination.
46. No useful purpose in our view is served in resolving this issue as even if we were to conclude that we had jurisdiction to determine whether the Commission is liable for Mr Seal’s emphysema, given our finding about the relationship between his employment and smoking history, it would not be open to us to find that the Commission was liable for this condition.

CONCLUSION

47. Given the foregoing conclusions, we must affirm the decision under review.
    

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member

Signed: ........................[sgd]........................................................

Associate

Date/s of Hearing 15 December 2010

Date of Decision 2 March 2011

Counsel for the Applicant Mr M. Vincent

Solicitor for the Applicant Ms E. Duncan, Kemp & Co. Lawyers

Counsel for the Respondent Mr B. Kelly

Solicitor for the Respondent Ms S. Johnson, Dibbs Barker