The Administrative Appeals Tribunal recently affirmed a deemed determination under the Seafarers Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) which disallowed the Applicant Seafarer’s claim for compensation in respect of aggravation of chronic obstructive pulmonary disease (COPD).
The Seafarer alleged that exposure to environmental tobacco smoke (ETS) had aggravated his COPD.
After considering contemporaneous medical records showing a significant smoking history and expert evidence, the Tribunal found that the Seafarer’s prior smoking history, rather than ETS, was the cause of his COPD.
The 81 year old Seafarer was employed by the respondent between January 2008 and February 2017 as a catering assistant on its vessel ‘NW Sanderling’.
The respondent allowed smoking on board the vessel. Initially, smoking in cabins was permitted, then confined to several areas and banned in cabins. However, secondary smoke entered the air-conditioning system and was recycled throughout the ship.
The Seafarer’s respiratory symptoms deteriorated in early 2014 and he left the ship for the last time in August 2016.
The Seafarer argued that the medical evidence supported his contention that ETS contributed to an aggravation of his COPD.
The Tribunal accepted that the Seafarer was exposed to ETS for the entire period of his employment.
However, there was significant controversy with regard to the Seafarer’s smoking history.
The Seafarer reported that he had commenced smoking in around 1975 (at age 35) and stopped smoking in 1989 after smoking a pack (20 cigarettes) a week for about 14 years.
The Seafarer was extensively cross-examined with regard to the smoking history given to his treating general practitioner (Dr Russell) and his respiratory physician Dr Claxton.
Dr Claxton had prepared a report dated 10 November 2016 which noted that the applicant reported smoking about 20 cigarettes a day for 40 years. Similarly, a spirometry scientist had noted on 7 December 2016 that the applicant had reported smoking approximately one pack a day for 30 years.
The Seafarer relied on evidence from Professor Young, respiratory physician, that on the Seafarer’s smoking history, the Seafarer’s exposure to ETS could have significantly and permanently exacerbated his COPD condition. However, Professor Young conceded that he would expect a heavier active cigarette smoking history than that reported by the Seafarer to cause the degree of emphysema demonstrated on his radiology and spirometry.
The Tribunal accepted the smoking history noted in Dr Claxton’s report dated 10 November 2016 (20 cigarettes per day for four years) in preference to the history reported by the Seafarer. This decision was based on the following relevant matters:
- The history was given at a time when the Seafarer did not have a clear interest in understating his smoking history;
- There was a clear change in the smoking history provided by the Seafarer after he lodged his claim for compensation in March 2017; and
- The 30-40 pack year smoking history was more consistent with the expert medical evidence in relation to the Seafarer’s condition, namely that the severity of his COPD was due to his 30-40 pack year smoking history rather than ETS exposure in the course of his employment.
The Tribunal noted that while the Seafarer’s employment may have affected his breathing, this did not equate to an aggravation of his COPD. Accordingly, the Tribunal was not satisfied that the Seafarer’s COPD and emphysema were contributed to, or aggravated, to a material degree by exposure to ETS in the course of his employment with the respondent.
Accordingly, the Tribunal affirmed the determination under review disallowing the Seafarer’s claim.
The decision illustrates the importance of thoroughly investigating an employee’s medical history, particularly in regard to conditions (such as smoking related conditions) where an employee’s medical history may be critical to the determination of liability issues.
Contemporaneous records (created before an employee has an interest in emphasising or minimising matters relevant to liability issues) can be critical to the successful defence of compensation claims.
Although, the decision turned on the Seafarer’s smoking history, the Tribunal also noted (at paragraph 63) that merely experiencing adverse effects from ETS does not equate to an ‘aggravation of an underlying respiratory condition related to employment for the purposes of the SRC Act’.
This article was written by Anthony Highfield, Partner and James McIntyre, Special Counsel.