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Compensation (Commonwealth Government Employees) Act 1971 (repealed)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 matter (T5-56), Mr Millwood stated that initially he smoked 20-25 cigarettes a day and that this was due to “peer pressure and stress of service life”.

6.      In his statement dated 28 November 2002 (exhibit A2), a document to which Mr Johnson, counsel for Comcare, objected on the grounds of relevance, Mr Millwood said:

As far as I can recall we were never issues [sic] with free cigarettes in the RAAF.  When I first joined the RAAF we had a canteen on base where most items were available at a discount.  I was able to buy cigarettes at the canteen for much less than you would pay in a civilian shop.

…

I continued to smoke 20 cigarettes a day or more until the late 1970s.  At this time I started to smoke a pipe.  I still smoked cigarettes, although a lesser amount than previously.  I tended to smoke cigarettes in social situations as many people objected to the smell of the pipe tobacco.  I continued to smoke in this way till 1984 when I first tried to give up smoking.  I lapsed a number of times and eventually was able to give up smoking completely in 1986.

7.      Mr Millwood’s evidence at the hearing was that he began to smoke during his recruit training at the RAAF and the habit grew from that point.  He explained his decision to smoke as being a good thing to do at the time.  Most service personnel smoked.  He said he socialised more and had greater contact with his RAAF colleagues than he used to have with his workmates in civilian life.  His civilian jobs generally involved working with only a few others. In cross-examination he agreed that in the 1960s it was common for young men to get together for a drink and for them to smoke.  He also agreed that there was a lot of advertising in the 1960s that encouraged smoking.

8.      Dr Marlin, physician, saw Mr Millwood in 1981 when the applicant presented with atypical chest pain.  The history referred to Mr Millwood being a smoker for twenty years. The applicant’s mother was noted as suffering from hypertension and ischaemic heart disease (T6). In November 1982 he was seen by a cardiologist Dr B Lloyd who noted that the results of an exercise test were negative (T6-61). Dr Lloyd recommended coronary angiography but it did not detect any significant blockages apart from a minor irregularity in the left anterior descending coronary artery.  Dr Lloyd did not think the pain was angina but advised that Mr Millwood should be encouraged to lose weight, continue with an exercise program and cease smoking (T6-62).  In June 1984 Dr Marlin noted that Mr Millwood still suffered from chest pain yet he was not convinced it was angina. At this time Mr Millwood was recorded as smoking a packet of pipe tobacco a week.  Dr Marlin concluded in June 1984 that there was no evidence of coronary artery disease (T6-68).

9.      In cross-examination Mr Millwood agreed that while serving in the RAAF he had regular electrocardiograms and a number of stress tests.  He agreed that after the coronary angiography in 1982 he was advised to watch his diet and quit or cut down his smoking.

10.     Dr C Luke, a medical officer in the Department of Defence, examined Mr Millwood’s medical records and prepared a report dated 15 October 2002 (exhibit R1).  Dr Luke noted that the applicant did not report heart disease at the enlistment medical examination on 3 July 1968, which was understandable given his age. From discussions with a former Surgeon General of Defence Health about RAAF policy on smoking Dr Luke reported that, after World War II, smoking was discouraged and free or subsidised tobacco was not provided. 

11.     Mr Millwood suffered an anterior myocardial infarction in April 1997. He came under the treatment of Dr J Jagger, cardiologist.  Angiography showed triple vessel coronary disease associated with the moderate anterior infarction.  There was bypass surgery on 20 May 1997 but it was not completely successful.  In a letter dated 17 July 2000 (T15) Dr Jagger stated that Mr Millwood suffered from a significant degree of left ventricular dysfunction and hyperlipidaemia.  Dr Jagger observed:

I note that he has a history of chest pain back in 1982 while in Perth.  He went on to have an angiogram at that stage at Sir Charles Gardiner Hospital with evidence being found of irregularity in the left anterior descending system.  By definition, this would constitute coronary artery disease although not significantly obstructed. …

12.     The Department of Veterans’ Affairs sought an opinion from Professor M O’Rourke, Professor of Medicine and cardiologist, who provided a report dated 15 March 2001 (T16). Mr Millwood’s history referred to giving up smoking in 1984.  Professor O’Rourke diagnosed ischaemic heart disease that had its clinical onset in 1997 with the symptoms of acute myocardial infarction.  There was hypertension present before the clinical onset of ischaemic heart disease.   In his later report of 9 December 2002 (exhibit R2) Professor O’Rourke confirmed the diagnosis of ischaemic heart disease with myocardial infarction in 1997.  He elaborated “A mild degree of coronary artery disease was detected at coronary angiography in 1982 but this was hemodynamically insignificant; presence of this coronary disease (a constitutional problem) drew attention to the need for risk factor modification and Mr Millwood was strongly advised to stop smoking, have risk factors modified and hypertension treated.”  In his opinion the applicant’s employment at the RAAF did not contribute to the disease.

13.     Dr Jagger’s report to the applicant’s solicitors dated 11 November 2002 (exhibit A1) confirmed his view that the angiography findings of irregularities in the early 1980s established that Mr Millwood suffered from coronary artery disease at that time.  Dr Jagger wrote “Clearly his smoking would have contributed to this as would a high cholesterol … “.

consideration and findings

14. Relevantly, s.4 of the Safety, Rehabilitation and Compensation Act1988 (the 1988 Act) provides:

(1) In this Act, unless the contrary intention appears:

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

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; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

…

15.     In oral evidence Professor O’Rourke described Mr Millwood’s myocardial infarction as being due to an occlusion of the left anterior descending coronary artery caused by a clot forming in the diseased coronary artery leading to a lack of blood supply to the front wall of the heart.  This event, the occlusion and subsequent myocardial infarction, caused Mr Millwood pain and discomfort and has resulted in left ventricular scarring. I accept the submission by Mr Colborne that the anterior myocardial infarction and left ventricular scarring may be described “ … as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state …” (Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, per Gleeson CJ and Kirby J at 300). Accordingly I find that the applicant’s myocardial infarction is an ‘injury’ as defined in s.4 of the Safety, Rehabilitation and Compensation Act1988 (the 1988 Act) in the sense that it was a physical injury.  Comcare may be liable for compensation for a physical injury, as opposed to a disease, where the physical injury arises out of or in the course of RAAF service.  To arise in the course of service requires there to be a temporal connection between the event and service (Hatzimanolis v A.N.I. Corporation Ltd (1992)173 CLR 473).  I find that there is no liability on the basis of the injury being suffered in the course of service since the myocardial infarction occurred nine years after Mr Millwood had left the RAAF. 

16.      An alternative and additional basis for liability may be found where an applicant suffers from pathology that constitutes a ‘disease’ as defined, notwithstanding the underlying pathology may have directly or indirectly caused the sudden event or physical injury, in this case the myocardial infarction, to have occurred (Petkoska at 300). During cross-examination Professor O’Rourke accepted that the irregularities found in the coronary angiography carried out in 1982 showed that mild coronary artery disease was then present. This is consonant with Dr Jagger’s opinion. Professor O’Rourke also accepted that 14 years of smoking from 1968 to 1982 would have contributed to Mr Millwood’s atherosclerosis. Further, the effect of Mr Millwood’s smoking on the atherosclerosis would have remained, without progressing, through the years following his ceasing to smoke. On the basis of this evidence, I find that the mild coronary artery disease from which Mr Millwood suffered, was established by 1982 and his smoking contributed to this disease.

17.     In relation to compensation for an injury, loss or damage that was suffered before the 1988 Act commenced, which was on 1 December 1988, ss.124(1A) and (2) state:

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

(a) where the injury, loss or damage was suffered before the commencement of the 1930 Act—under the 1912 Act;

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.

Subsection 7(4) of the 1988 Act provides that an injury being a disease, or an aggravation of a disease, will be deemed to have been sustained on the day when the employee first sought medical treatment for the disease, or the disease resulted in incapacity for work or impairment, whichever occurred first.  The evidence concerning these events permits me to conclude only that Mr Millwood first sought medical treatment for his mild coronary artery disease when he was examined by Dr Marlin in 1981.  That being the case it is necessary to refer to the relevant legislation applying at that time, the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) to determine whether compensation would be payable in respect of an injury, loss or damage. Section 5 of the 1971 Act defines ‘disease’ as including any physical or mental ailment, disorder, defect, or morbid condition, whether of sudden onset or gradual development and thus covers the applicant’s mild coronary artery disease.  Subsection 29(1) of the 1971 Act reads:

(1) Where –

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence , as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,

the succeeding provisions of this section have effect.

18.     Mr Colborne submitted that the conditions of the applicant’s service or the nature of the work force influenced the applicant’s decision to start smoking.  He cited Repatriation Commission v Tuite (1993) 39 FCR 540 the facts of which he said bore some resemblance to Mr Millwood’s situation. Mr Johnson argued that Tuite was irrelevant, having been decided under the Veterans’ Entitlements Act 1986, and instead submitted that the applicable test is found in Hawkins v Comcare (2001) 115 FCR 127 a case that examined the provisions in the 1971 Act.

19.     In Hawkins v Comcare it was concluded that, to establish whether a person’s employment was a contributing factor to the contraction of a disease, it is not sufficient to find merely that the disease was contracted at the time a person was working in particular employment. Von Doussa J quoted from the High Court judgment in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 which dealt with provisions in another statute but for practical purposes were considered identical to s.29 of the 1971 Act. Windeyer J there held that

When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.  The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. (at 641)

20.     Mr Millwood’s period of service saw him perform his stores duties, drive trucks and do those tasks required for supplying equipment to specialists in aircraft trades. The RAAF did not encourage smoking, directly or indirectly. Quite the reverse, the uncontradicted evidence of Dr Luke is that the RAAF discouraged smoking. Mr Millwood was advised more than once by medical officers that he should quit or reduce his smoking.  It was the socialising with RAAF personnel that he emphasised as a reason for smoking, rather than the employment itself. Mr Millwood’s evidence was that his decision to smoke was a matter of personal choice. Consequently, there is no evidence that some characteristic or feature of the work he performed “involved a tendency to bring about the contraction of the disease” (Hawkins v Comcare at 139) and I so find.

21.     In Mr Colborne’s submission the applicant’s employment placed in him in a milieu where smoking was the done thing and that led him to develop his smoking habit.  It was submitted that the milieu brought about Mr Millwood’s choice.

22.     I do not accept the submission. I am satisfied that Mr Millwood’s situation - the milieu to which Mr Colborne referred - is far removed from that of Mr Tuite who lived in a military camp.  Mr Tuite began smoking as a way of dealing with the boredom of and confinement to camp life, and a certain misapprehension about his future military service.  At any rate under the legislation with which I am concerned, I am not satisfied on balance that any characteristic or feature of Mr Millwood’s service, which I find was of a routine nature, contributed to his decision to smoke, rather service was the setting for his decision to smoke.

23.     I find therefore that Mr Millwood’s employment in the RAAF was not a contributing factor to his contracting coronary artery disease. 

24.     I have already dealt with the myocardial infarction in 1997, a personal injury, and find that it did not occur in the course of service.  I turn now to consider whether that injury arose out of employment in the RAAF, which is an element of the definition of ‘injury’ in the 1988 Act.  For the injury to arise out of employment it is necessary that there be a causal connection between the injury and the employment (Kavanagh v The Commonwealth (1959-1960) 103 CLR 547). Professor O’Rourke did not agree with Dr Jagger’s opinion that the irregularities detected in 1982 put Mr Millwood at a greater risk of myocardial infarction. Even if I were to prefer Dr Jagger’s opinion, which I do not, it would still be necessary to establish Mr Millwood’s smoking, which contributed to his coronary artery disease, was causally connected with his employment in the RAAF. For the reasons set out above, I am not so satisfied.

25.     Accordingly the reviewable decision dated 2 May 2002 should be affirmed.  The respondent is not liable to compensate Mr Millwood for heart disease and heart attack as claimed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed:         .......................................................................................
  Associate

Date of Hearing  4 November 2003

Date of Decision  6 February 2004
Counsel for the applicant  Mr C Colborne

Counsel for the respondent  Mr G Johnson