Easton and Comcare (Compensation)
[2016] AATA 69
•11 February 2016
Easton and Comcare (Compensation) [2016] AATA 69 (11 February 2016)
Division
GENERAL DIVISION
File Number
2014/3523
Re
John Easton
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 11 February 2016 Place Adelaide The decision under review is affirmed.
............. [Sgd] ......................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Commonwealth employees – Whether applicant's skin cancers caused by exposure to ionising radiation at Maralinga – No known association between melanoma and ionising radiation – Conditions not compensable – Decision under review affirmed.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971, ss 29 and 30
Safety, Rehabilitation and Compensation Act 1988, ss 7(4) and 124
Compensation (Commonwealth Government Employees) Regulations, Schedule 1
REASONS FOR DECISION
Deputy President K Bean
11 February 2016
The applicant, Mr Easton, is currently 71 years old. For the bulk of his working life, he was employed by the Australian Postal Corporation (formerly Postmaster-General’s Department (PMG)), and from October 1965 until June 1967 he was stationed as a postal clerk at the Maralinga Post Office in South Australia. This was not long after the major British atomic tests were conducted at Maralinga, and was effectively during the ‘clean up’ phase following the tests.
On 25 June 2012, Mr Easton lodged a claim for compensation with respect to three skin cancers of different types—a malignant melanoma of the skin on his left thigh, solar keratosis of the skin on his left hand and a basal cell carcinoma on the left-hand side of his neck.[1] As the lesion excised from his neck had characteristics of squamous cell carcinoma as well as basal cell carcinoma[2], I regard his claim as also embracing that additional form of skin cancer.
[1] Exhibit 1, T20/29. The reference in the claim form to the ‘right hand side’ of his neck was erroneous.
[2] Exhibit 1, T12/18.
In his claim for compensation, Mr Easton attributed each of his skin cancers to his exposure to radiation whilst stationed at Maralinga, in particular through driving vehicles shortly after they had been used in contaminated areas.
In a determination dated 9 December 2013, a delegate of the respondent determined that Mr Easton was not entitled to compensation with respect to the claimed conditions, as the delegate was not satisfied that any of the three conditions was contributed to, to the requisite degree, by Mr Easton’s employment with the PMG. Mr Easton subsequently sought reconsideration of that determination, however, the determination was affirmed in a reconsideration decision dated 9 May 2014.[3]
[3] Exhibit 1, T47/131.
On 9 July 2014, Mr Easton applied to this Tribunal for review of that decision, giving rise to these proceedings.
ISSUES
Strictly speaking, the issues before me include whether Mr Easton is entitled to compensation with respect to any of the skin cancers for which he has sought compensation. However, during the hearing before me, Mr Easton very clearly indicated that he no longer pressed for compensation with respect to his solar keratosis, basal cell carcinoma or squamous cell carcinoma, as he was of the view that these were related to sun exposure, and not related to his employment. As Mr Easton’s position in this regard is consistent with the evidence before me, I consider his concession to the effect that these conditions are not compensable to be correct. For that reason, I will not proceed to consider the compensability of those conditions further.
It follows that the remaining issue for my determination is whether Mr Easton’s malignant melanoma condition is compensable.
DATE OF INJURY AND RELEVANT LEGISLATION
On the evidence before me, Mr Easton first sought treatment with respect to the malignant melanoma on his left thigh in or around August 1988, during the currency of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).[4] It follows that the provisions of that Act are applicable to determining compensation liability.[5]
[4] Exhibit 1, T20/29 and T42/116.
[5] See sections 7(4) and 124 of the SRC Act.
The 1971 Act relevantly provided that a disease suffered by an employee was compensable if the employee’s employment was a contributing factor to the disease.[6] Section 30 of that Act also had the effect of deeming certain diseases to have been contributed to by an employee’s employment, if they were engaged in employment of a specified kind.[7] The relevant diseases included “pathological condition caused by—(a) radium or another radioactive substance; or (b) x-rays” where the relevant employment involved “exposure to or contact with radium, other radioactive substances or x-rays.”[8]
[6] Section 29.
[7] Section 30.
[8] Compensation (Commonwealth Government Employees)Regulations, Schedule 1.
It follows that Mr Easton’s melanoma will be compensable if it is established that:
(a)his employment involved exposure to radioactive substances and melanoma is a condition caused by radioactive substances; or
(b)it was contributed to by his employment.
As Mr Easton’s claim is limited to his melanoma condition, it follows that the first issue which arises is whether melanoma is known to be associated with exposure to ionising radiation.
IS MELANOMA KNOWN TO BE ASSOCIATED WITH IONISING RADIATION?
The evidence
The evidence before me directed to this question includes a report of Mr Ian Fletcher, Surgeon, dated 7 January 2014[9], and a report of Dr Peter Stevenson, Consultant Physician, dated 20 October 2014[10], together with the oral evidence of Dr Stevenson.
[9] Exhibit 1, T42/116.
[10] Exhibit 7.
In his report of 7 January 2014, Mr Fletcher stated:
In relation to the relatively early age of onset of the development of the melanoma and the site being significantly less sun exposed, the atomic radiation exposure at Marilinga (sic) is a much more likely initiating event in the case of this more aggressive skin cancer.[11]
However, that opinion is at odds with the opinion of Dr Stevenson.
[11] Exhibit 1, T42/117.
In his report of 20 October 2014, Dr Stevenson stated, by reference to the scientific literature that:
It can be stated with high (sic) degree of confidence that even if there were higher work exposure to radiation which seems unlikely, his melanoma was unlikely to be caused by occupational exposure. This is because while high dose atomic radiation is a known risk factor for non-melanoma skin cancer, that is to say squamous cell carcinoma and basal cell carcinoma, nuclear radiation even in high dose is not an established risk factor for malignant melanoma. No increase was found in survivors after the atom bomb explosions in Hiroshima and Nagasaki. …
He also stated later in his report:
Malignant melanoma can be discounted with a high degree of confidence because there is little or no compelling evidence that skin melanoma is caused by ionizng radiation.[12]
[12] Exhibit 7, pp 4 and 5.
Dr Stevenson adhered to that opinion in his oral evidence, adding that, assuming part of Mr Easton’s exposure to ionising radiation was through the inhalation of contaminated dust, this did not affect the likelihood of his melanoma being related to his radiation exposure. He also indicated that, on the evidence available to him, he considered Mr Easton’s thigh melanoma was likely to be attributable to sun exposure in childhood. He also added that many melanomas are not related to sun exposure or radiation.
For completeness, I note that after the hearing, Mr Easton also provided an extract from the United States Department of Veterans Affairs website relating to diseases associated with ionising radiation exposure. This indicates that the Department accepts that certain cancers are likely to be related to radiation exposure. However, the cancers in this category do not include melanoma. The extract also indicates that the Department recognises some diseases as “possibly” caused by exposure to ionising radiation, including “all cancers”, but melanoma is not specifically addressed.
Consideration
Having considered the medical evidence before me directed to this question, I have concluded that I accept the evidence of Dr Stevenson to the effect that there is no known association between ionising radiation and melanoma. As it was clear from his report and oral evidence that Dr Stevenson had specifically researched this question and he made reference to the relevant scientific literature, I am persuaded that his opinion is more soundly based than that of Mr Fletcher, and I am satisfied that I should accept his opinion on this question in preference to that of Mr Fletcher.
It follows that I am satisfied on the basis of this evidence that there is no known association between ionising radiation and melanoma. It therefore also follows that the deeming provision in the 1971 Act, s 30, is not invoked, and I am also not satisfied that Mr Easton’s employment with the PMG at Maralinga made any contribution to his melanoma condition.
In these circumstances, it is unnecessary for me to consider the specific details of Mr Easton’s exposure to radiation whilst he was at Maralinga, or the exact degree of that exposure. That is because, regardless of his degree of exposure to radiation at Maralinga, I am satisfied on the evidence that melanoma is not related to radiation exposure, Mr Easton’s exposure made no contribution to his melanoma condition, and the condition is therefore not compensable.
OTHER MATTERS
For completeness, I note that Comcare did not press the issue of whether adequate notice of his ‘injuries’ was given by Mr Easton within the periods required by the applicable legislative provisions. Ms Walker, who appeared as counsel for Comcare at the hearing, confirmed that it was not necessary from the respondent’s point of view for the Tribunal to decide this issue. Accordingly, as I have concluded that the relevant conditions are not compensable in any event, I do not propose to consider this question.
CONCLUSION
As I have concluded that Mr Easton’s melanoma condition is not compensable, and I consider that Mr Easton has correctly conceded that his other skin cancers are also not compensable, I have decided that I should affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........ [Sgd] ....................................
Associate
Dated 11 February 2016
Date of hearing 27 August 2015 Date final submissions received 28 August 2015 Applicant In person Counsel for the Respondent Ms G Walker Solicitors for the Respondent Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Remedies
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Standing
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Statutory Construction
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