Williams and Comcare [2003] AATA 1209 (2 December 2003)

Last Updated: 7 January 2004

DECISION AND REASONS FOR DECISION [2003] AATA 1209

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/162

GENERAL ADMINISTRATIVE DIVISION

Re: ROBERT DOUGLAS WILLIAMS

Applicant

And: COMCARE

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

Date: 2 December 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

COMPENSATION - remittal from Federal Court of Australia by consent - direction to determine date of injury - consideration of relevant compensation legislation - femoral atherosclerosis - chronic bronchitis - when injury taken to have been sustained - whether employment contributed in material degree

Safety, Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1930

REASONS FOR DECISION

2 December 2003 Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

1. This was previously the subject of a decision of this Tribunal of 2 February 2001 which affirmed a decision of the respondent denying liability for claim for compensation for a claimed condition of blocked blood vessels and breathing problems affecting chest, throat and legs said to have resulted from smoking during service with the Australian Army (the army) between 22 January 1952 and 22 January 1961.

2. The applicant lodged a notice of appeal against that decision with the Federal Court of Australia. On 8 February 2002, North J ordered, by consent, that:

1. The appeal be allowed.

2. The decision of the Tribunal be set aside.

3. The matter be remitted to the Tribunal to determine the date when the injuries in respect of which the applicant claimed compensation were suffered within s.124 of the Safety, Rehabilitation and Compensation Act 1988 ('the SRC Act').

4. The Tribunal is directed that:

(a) when the Tribunal has determined the date when the injury of 'femoral atherosclerosis' was suffered, the Tribunal is to determine whether compensation is payable to the applicant in respect of injury of 'femoral atherosclerosis' pursuant to the SRC Act;

(b) when the Tribunal has determined the date when the other injuries in respect of which the applicant claimed compensation were suffered, the Tribunal is to determine whether compensation is payable to the applicant in respect of those other injuries pursuant to the SRC Act.

3. At a hearing of this matter on remittal from the Federal Court the applicant, Mr R. Williams, was represented by Mr D. De Marchi, a solicitor, and the respondent by Mr J. Lenczner, of counsel. Mr De Marchi submitted that, the appeal having been allowed, this hearing should be regarded as a hearing de novo with all questions of fact to be re-heard and reconsidered by the Tribunal. This approach was disputed by Mr Lenczner who submitted that the role of the Tribunal was limited to a consideration of the questions stated by the Federal Court Order only and evidence directed at those questions only should be considered.

4. It is accepted that the Tribunal was in error in its earlier decision in determining the application under the Commonwealth Employees Compensation Act 1930 (the 1930 Act) without consideration of the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act). The evidence before the Tribunal was that Mr Williams suffered from femoral atherosclerosis and chronic bronchitis. Both of these conditions were seen as the result of tobacco smoking. Under s7(4) of the 1988 Act, an employee is taken to have sustained an injury, being a disease, on the day when the employee first sought medical treatment for the disease or the disease first resulted in the incapacity for work or impairment of the employee, whichever happens first. Mr Williams made his claim for compensation in May 1998 so that any entitlement arises from the 1988 Act. Under s124 of that Act a person is not entitled to compensation under that Act in respect of an injury suffered prior to 1 December 1988 if compensation was not payable in respect of that injury in the period in which either the 1930 Act or the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) applied. Consequently, it is necessary to determine the date of the injury and then to ascertain whether compensation is payable under the relevant Act applicable at that date.

5. Given the foregoing and the terms of the order from the Federal Court, it is clear that the Tribunal is to deal solely with that discrete issue of the date the injuries were suffered and whether the Act which applied at that date provides compensation on the facts already found by the Tribunal in its decision on the original application. It is not a hearing de novo, but solely a requirement to consider evidence relating to the dates of the injuries for which compensation was claimed and then to determine whether an Act, other than the 1930 Act, provides for compensation in the circumstances of this case.

6. The original claim by Mr Williams was for blocked blood vessels and breathing problems affecting chest, throat and legs. As indicated previously, the two medical conditions identified were femoral atherosclerosis and chronic bronchitis. Dr P. Blombery, a consultant physician specialising in vascular disease, had examined Mr Williams and provided an original report dated 28 January 2000. He was requested by the respondent to provide a further report addressing the relevant issues to assist in determining the date on which Mr Williams could be said to have sustained the injury of femoral atherosclerosis. In that report dated 26 April 2002, Dr Blombery noted that Mr Williams first sought medical treatment in 1998, that any impairment from the condition would have commenced in the early 1990s and it resulted in an incapacity for work in approximately 1995. He said that, while Mr Williams had told him of discomfort in the legs in approximately 1956, he considered it unlikely that this discomfort was caused by femoral atherosclerosis. He noted that the condition is a gradual process over 10 to 20 years before a patient will become aware of the symptoms. We accept the opinion of Dr Blombery that the date on which Mr Williams could be taken to have sustained the injury of femoral atherosclerosis was after 1 December 1988 so that the provisions of the 1988 Act apply.

7. In relation to his condition of chronic bronchitis, Mr Williams was examined by Dr J. Streeton, a consulting respiratory physician, who provided a report dated 3 July 2002. His diagnosis confirmed the condition of chronic bronchitis. Dr Streeton was unable to provide much assistance to the Tribunal in establishing a date on which the injury could be said to have been sustained. He noted a history given by Mr Williams of a pattern of recurrent bronchitis from the age of 54 or thereabouts which would have been 1990 approximately. He was of the opinion that  the condition develops as a slow process over some 15 to 20 years and well-established changes usually take 20 to 30 years. He said that it normally took many decades to cause any significant impairment or incapacity. He noted that, at the date of his examination, Mr Williams had some disability as a result of the chronic bronchitis, although there would appear to be a discrepancy between the subject of description and objective assessment. The clinical notes of Dr Woo were of little assistance to the Tribunal in that he noted irritation in throat in February 1988, sore throat in October 1988 and sore throat, cough in May 1990.

8. Based on the evidence that the fact that Mr Williams does not appear to have sought any medical treatment for chronic bronchitis, it would appear that any impairment or incapacity from that condition was unlikely to have occurred prior to 1 December 1988 so that, again, the provisions of the 1988 Act apply.

9. Under s4 of the 1988 Act, an injury includes a disease suffered by an employee. Disease is defined to mean any ailment suffered by an employee being an ailment that was contributed to in a material degree by the employee's employment by the Commonwealth. This definition differs from that contained in the 1930 Act which required a disease to be due to the nature of the employment. In the earlier decision, there was acceptance that Mr Williams's smoking habit, which commenced after his first employment in the army, resulted in the two conditions claimed.. The question is, however, whether his employment in the army materially contributed to that smoking habit and ultimately the condition.

10. In paragraph 14 of the previous decision, it was said:

...we find that smoking and subsequent atherosclerosis did not arise out of or in the course of employment. It was a matter of personal choice by Mr Williams, albeit encouraged by peer pressure and the availability of cigarettes and tobacco. We are not satisfied that the evidence showed any specific discrimination against non-smokers by those in charge other than accepting that they may well have been in the minority. There was no requirement to smoke as an incident of the employment itself, none of the duties of employment involved smoking or the need to smoke and there was nothing particular to the form of employment which could be said to necessarily result in smoking. ...

Based on the evidence at the previous hearing and the limited further evidence at this hearing, we remain of that view. We are satisfied and so find that Mr Williams's employment by the army between 1952 and 1961 did not in itself contribute in a material degree to his smoking habit and subsequent conditions. The employment was simply the setting in which he commenced smoking as a matter of personal choice. Consequently, compensation is not payable under the 1988 Act for the claimed disease or injuries.

11. It follows that the decision under review denying liability for the claimed conditions should be affirmed.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Associate Professor J.H. Maynard, Member

(sgd) Olympia Sarrinikolaou

Clerk

Dates of Hearing: 17 - 18 February 2003; 25 June 2003; &

2 October 2003

Date of Decision: 2 December 2003

Counsel for the applicant: Mr D. DeMarchi

Solicitor for the applicant: DeMarchi & Associates

Counsel for the respondent: Mr J. Lenczner

Solicitor for the respondent: Phillips Fox Lawyers