Millwood and Comcare - [2004] AATA 116

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 116
ADMINISTRATIVE APPEALS TRIBUNAL N2002/706

GENERAL ADMINISTRATIVE DIVISION
Re: John Ralph MILLWOOD
Applicant

And: COMCARE
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member
Date:             6 February 2004
Place:            Sydney
Decision:Decision under review affirmed

(sgd) P. J. Lindsay, Senior Member

© Commonwealth of Australia (2004)

CATCHWORDS
COMPENSATION – myocardial infarction – physical injury not suffered in course of employment – applicant smoked during service – smoking contributed to his coronary artery disease – applicant’s service not a contributing factor to his smoking - decision affirmed.
Compensation (Commonwealth Government Employees) Act 1971 (repealed)
Safety, Rehabilitation and Compensation Act 1988 ss.4, 7(4), 124
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473
Repatriation Commission v Tuite (1993) 39 FCR 540
Hawkins v Comcare (2001) 115 FCR 127
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kavanagh v The Commonwealth (1959-1960) 103 CLR 547
REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      The application made to the tribunal by John Ralph Millwood is for a review of a decision by Comcare that denied liability for Mr Millwood’s ischaemic heart disease.
2. In April 2000 Mr Millwood lodged a claim for compensation for heart disease and the heart attack he suffered on 17 April 1997 (T3 in the documents lodged with the tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975). Mr Millwood’s claim form noted that he first noticed his heart disease in 1982 when he had an angiogram. By a reviewable decision on 2 May 2002 a Comcare delegate denied liability on the basis that Mr Millwood’s service in the Royal Australian Air Force had not contributed in a material degree to his condition. The delegate was not satisfied on the available evidence that there was any relevant failure to diagnose, or that inappropriate treatment had been provided at any stage during Mr Millwood’s period of service 1968 to 1988.
3.      The hearing proceeded on a narrower basis. In opening Mr Colborne, counsel for the applicant, stated that the case was that as a result of the conditions and circumstances of Mr Millwood’s service in the RAAF, the applicant began to smoke. His smoking led to coronary disease and to the injury that he suffered when he had the heart attack in April 1997.
evidence
4.      Mr Millwood joined the RAAF in July 1968 at age 22. He had left school at 13 to become an apprentice bricklayer. After about three years he started to do delivery work, then labouring and, immediately prior to enlistment, had been working as a storeman/driver. He served in the RAAF for twenty years, being discharged in September 1988. He worked in supplies, which involved storeman duties and driving.
5.      The T documents include material relating to Mr Millwood’s claim under the Veterans’ Entitlements Act 1986 for medical treatment and pension for incapacity from heart disease. In a smoking questionnaire relating to that…

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 Millwood and Comcare

Details

AGLC: Millwood and Comcare [2004] AATA 116
Case: [2004] AATA 116
Decision Date: 6 February 2004

CaseChat Overview and Summary

The case of Millwood and Comcare arose before the Federal Court of Australia and involved a claim for compensation related to a myocardial infarction that the applicant, Millwood, alleged was caused by his employment. The primary issue before the court was whether the applicant's myocardial infarction, which was attributed in part to his smoking habit, constituted a physical injury suffered in the course of his employment with the Commonwealth. The applicant argued that his employment conditions did not contribute to his smoking, thus the injury should be compensated under the relevant legislation.

The court was required to determine the applicability of the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988 in light of the applicant's smoking habit and its contribution to his coronary artery disease. The key legal question was whether the smoking-related injury could be considered an injury arising out of and in the course of employment. The court had to consider precedents such as Kennedy Cleaning Services Pty Limited v Petkoska and Hatzimanolis v A.N.I. Corporation Ltd, which highlighted the necessity of a causal link between the employment and the injury. Additionally, the court examined the significance of contributory factors such as the applicant's smoking habit.

The Federal Court affirmed the decision that the applicant's myocardial infarction was not an injury suffered in the course of employment because his service did not contribute to his smoking habit. The court reasoned that while smoking did contribute to the coronary artery disease, there was no causal link between the employment and the smoking habit. The court relied on the principle that the injury must arise out of the employment, and since the applicant's smoking was not attributable to his employment conditions, the injury did not qualify for compensation. The final orders confirmed the decision that the applicant's claim for compensation was denied.

Orders