Eaton and Comcare - [2002] AATA 222

DECISION AND REASONS FOR DECISION [2002] AATA 222

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/158

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOANNE EATON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date5 April 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ................…(Sgd)...................
  I R Way
  Member

CATCHWORDS
COMPENSATION – whether an injury is an "unintended consequence of treatment" provided by the Commonwealth – meaning of phrase "unintended consequence of treatment" – whether injury was not a desired aim of treatment – whether injury is a likely consequence of treatment – whether scarring is an "injury"

Safety Rehabilitation and Compensation Act 1988 ss 4(1), 6A, 14

Theile v The Commonwealth (1990) 22 FCR 342
Vallance v R (1961) 108 CLR 56
Comcare v Mooi (1996) 137 ALR 690
Re Elliott and Comcare [2001] AATA 305
Coulton v Comcare [2001] FCA 1312
Cunliffe v Goodman (1950) 1 All ER 720

REASONS FOR DECISION

5 April 2002 Mr I R Way, Member

This is an application by Joanne Eaton ("the Applicant") for review of a decision of a Delegate of Comcare dated 21 December 2000, affirming a determination dated 31 August 2000 that the applicant had not suffered an injury that was an unintended consequence of medical treatment pursuant to section 6A of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-25) and the following documentary evidence:

Report of Dr A Guest dated 10 April 2001 Exhibit A1
Statement of JK Eaton dated 12 April 2001 (3 pages) Exhibit R1
Statement of JK Eaton dated 12 April 2001 (1 page) Exhibit R2
Report of Dr P Heath dated 2 July 2001 (with attached
case notes and copy of Comcare's letter of instruction
dated 6 June 2001) Exhibit R3
Report of Dr P Heath dated 23 July 2001 Exhibit R4
Extracts from Dorland's Illustrated Medical Dictionary
27th Edition Exhibit R5
Miller-Keane Encyclopedia & Dictionary of Medicine,
Nursing, & Allied Health 6th Edition Exhibit R5
Report of Dr LP Brunello dated 2 July 2001
(with attached copy of Comcare's letter of instruction
dated 6 June 2001) Exhibit R6

The applicant gave oral evidence. Dr Heath and Dr Guest gave evidence by telephone.
Background Facts
A number of background factual matters are not in dispute between the parties. In view of this and on the basis of the evidence the Tribunal makes findings of fact as follows:
(a)The applicant was born on 25 March 1975.
(b)She was a serving member of the Australian Army from 13 April 1996 to 4 March 2001.
(c)In November 1996 and in January 1997 abnormal cells were detected on a pap smear test undertaken by the applicant.
(d)In February 1997 the applicant underwent a colposcopy performed by Dr P Heath, with a finding that there was a wide eversion on the cervix and normal columnar epithelium with islands of metaplasia and aceto white areas.
(e)A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eaton and Comcare

Details

AGLC: Eaton and Comcare [2002] AATA 222
Case: [2002] AATA 222
Decision Date: 5 April 2002

CaseChat Overview and Summary

The case of Eaton and Comcare involved a dispute regarding whether the applicant, a former member of the Australian Defence Force, was entitled to compensation for an injury she sustained as an unintended consequence of medical treatment provided by the Commonwealth. The matter was heard and determined by the Administrative Appeals Tribunal of Australia. The primary issue before the Tribunal was whether the injury the applicant sustained was an unintended consequence of the medical treatment provided by the Commonwealth. To determine this, the Tribunal considered the definition of "injury" under section 4 of the Safety Rehabilitation and Compensation Act 1988 and the meaning of "unintended consequence of treatment" under section 6A of the same Act.

The Tribunal examined the evidence and legal precedents to determine whether the injury was not a desired aim of treatment, whether it was a likely consequence of the treatment, and whether scarring could be considered an injury. The Tribunal referred to previous cases such as Theile v The Commonwealth, Vallance v R, Comcare v Mooi, Re Elliott and Comcare, Coulton v Comcare, and Cunliffe v Goodman to aid in its analysis. The Tribunal concluded that while the applicant had suffered an injury in the ordinary sense of the word due to the removal of part of her cervix, this injury was not an unintended consequence of the medical treatment provided by the Commonwealth. Instead, the injury was a result of Dr Heath's intention to remove the pre-cancerous tissue, and therefore, it was not compensable under section 14 of the Act.

In its decision, the Tribunal held that the removal of part of the applicant's cervix was not an injury as defined in section 4 of the Act because it was not an unintended consequence of the treatment. The Tribunal found that Dr Heath had taken reasonable care and skill in the exercise of his skills and judgment in providing treatment to the applicant. As such, the Tribunal dismissed the applicant's claim for compensation.

Orders

Orders of the court

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Background

Background to the litigation

The applicant gave oral evidence. Dr Heath and Dr Guest gave evidence by telephone.Background Facts A number of background factual matters are not in dispute between the parties. In view of this and on the basis of the evidence the Tribunal makes findings of fact as follows:(a)The applicant was born on 25 March 1975.(b)She was a serving member of the Australian Army from 13 April 1996 to 4 March 2001.(c)In November 1996 and in January 1997 abnormal cells were detected on a pap smear test undertaken by the applicant.(d)In February 1997 the applicant underwent a colposcopy performed by Dr P Heath, with a finding that there was a wide eversion on the cervix and normal columnar epithelium with islands of metaplasia and aceto white areas.(e)A colposcopy directed biopsy showed normal glandular epithelium but cytology suggested severe dysplasia.(f)On 17 February 1997 Dr Heath performed an electric loop excision of part of the applicant's cervix and endocervical curettage. Subsequent examination revealed squamous carcinoma and a small focus of adenocarcinoma. Squamous dysplasia extended to an excision margin and abnormal glandular epithelium extended to within 0.69mm of an excision margin. (g)Because of the extent of the dysplasia Dr Heath considered it appropriate to perform a cervical conisation and this he did in March 1997.(h)Histological examination of the cervical cone showed severe squamous dysplasia which was completely excised. Curettings, which were labelled an endo-cervical, were identified hystologically as showing an active endometrium. The principal issue is whether the applicant has, as an unintended consequence of the medical treatment she received, suffered or suffers, an injury pursuant to section 4(1) of the Act.Legislative Framework The Act relevantly provides as follows"4(1) In this Act, unless a contrary intention appears: …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;…medical treatment means:(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;…6A(1) This section applies to the following employees:(a)members of the Defence Force;(b) members of the Air Training Corps established under section 8 of the Air Force Act 1923;(c) members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;(d) members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;(e) persons declared by the Minister under subsection 5 (6A).(2) If, at any time, whether before, on, or after, 1 December 1988:(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and(b)as an unintended consequence of that treatment the person suffered or suffers an injury;the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For these reasons Mr Rangiah submitted that the respondent has no liability to pay compensation under section 14 of the Act. Consideration There is no dispute between the parties in this matter and the Tribunal is satisfied on the evidence before it that the applicant's pre-cancerous condition prior to surgery to remove part of her cervix was not contributed to in a material degree by her defence service and that the surgery resulting in the removal of part of her cervix is an injury within the ordinary meaning of that word. However, the Tribunal is satisfied that this resulting injury was not other than intended as it was clearly Dr Heath's intention to remove part of the applicant's cervix because of her pre-cancerous condition and the likelihood of invasive cancer developing if the operation was not conducted. As such the Tribunal is satisfied that this injury is not an "injury" pursuant to section 4 of the Act. Furthermore on the basis of the uncontroverted medical evidence before the Tribunal, the Tribunal is satisfied that the medical treatment provided by the Commonwealth in this case was not inappropriate and that Dr Heath took reasonable care and skill in the exercise of his skills and judgment and provision of advice and treatment to the applicant. This matter is contested on the ground that the non-compensible injury resulting from the removal of the applicant's cervix has caused the applicant to suffer further injury as an unintended consequence of the operation within the meaning of section 6A of the Act, thereby causing the applicant to suffer a compensible injury within the meaning of section 4 and section 14 of the Act. With respect to the relevant legislation, to be compensible pursuant to section 14 of the Act, the applicant must suffer an "injury" as that term is defined in section 4 of the Act. Where an applicant has received medical treatment provided at Commonwealth expense and suffers an injury within the ordinary sense of the word as an unintended consequence of that treatment, the injury to the applicant is taken to have arisen out of or in the course of the applicant's employment, regardless of whether there has been negligence and regardless of whether the original condition being treated was compensible. In consideration of this matter, the Tribunal must firstly determine what are the "claimed conditions". Secondly, does the evidence before the Tribunal support a finding that a particular "claimed condition" is an injury within the ordinary sense of that word; and thirdly, are any of these injuries unintended consequences of the medical treatment provided at the expense of the Commonwealth. In taking this approach the Tribunal has followed what was said in Re Elliott and Comcare [2001] AATA 305 with respect to the meaning of the word "injury" in sections 6A(2)(b) of the Act. In that matter the Tribunal (at para 76) while not making a finding commented as follows:"Section 6A(2) … refers to the link that must exist for an injury to be an 'injury' for which compensation is payable … The full definition of 'injury' is not applicable in section 6A(2). Instead it indicates an intention that the word 'injury' refers only to 'an injury (other than a disease)…being a physical or mental injury' of the type referred to in paragraph (b) of the definition of injury in section 4(1)."