Scanes and Comcare (Compensation) - [2023] AATA 3537

Scanes and Comcare (Compensation) [2023] AATA 3537 (31 October 2023)
Division:GENERAL DIVISION
File Number(s): 2021/5381
Re:Noelene Scanes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:31 October 2023
Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
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Member W Frost
Catchwords
WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – historical compensable condition – aggravation of ischaemic heart disease – resultant myocardial infarction in 1993 – whether the 1993 incident resulted in death in 2020 – claim pursuant to sections 17 and 18 – payment of death benefit to spouse – payment of funeral expenses to spouse – where there are risk factors – high cholesterol – increased stress – smoking – collateral supply – where the Tribunal is not satisfied that the 1993 incident resulted in death in 2020 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 13AA, 14, 17, 18
Cases
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Secondary Materials
Comcare, Statutory rates for compensation (Web Page, 17 August 2023) < accessed on 25 July 2023
REASONS FOR DECISION
Member W Frost
31 October 2023
INTRODUCTION

Mr Warren Scanes was employed the Australian Federal Police (AFP) and its predecessors from 1971 to 1995. In 1993, he suffered a ‘myocardial infarction’, commonly known as a heart attack, which was accepted by Comcare to be a compensable condition under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). This injury was described by Comcare in 1993 as an aggravation of ‘coronary artery disease and resultant myocardial infarction’.[1] In 2020, some 27 years later, Mr Scanes suffered a cardiac arrest and ischaemic heart disease and died aged 71.
[1] Exhibit 1, page 17.
Ms Noelene Scanes is the widow of Mr Scanes. As the accepted ‘dependent’ of Mr Scanes under the SRC Act, Ms Scanes made a claim to Comcare for compensation for an injury resulting in the death of her husband pursuant to section 17 of the SRC Act. This claim was declined by Comcare and that determination was subsequently reconsidered and affirmed by Comcare. As a result, Ms Scanes applied to the Administrative Appeals Tribunal (Tribunal) for review of Comcare’s decision refusing liability to pay compensation under the SRC Act for Mr Scanes’ death.
PROCEDURAL ISSUE
By way of background, the Tribunal sets out below the reason for the regrettable delay between its initial hearing date of 23 November 2022, the resumed hearing on 28 July 2023 and the subsequent provision of a decision and written reasons in this proceeding on 31 October 2023, almost one year after the Tribunal’s first hearing date.
On 23 November 2022, the Tribunal commenced the hearing of Ms Scanes’ application.…

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 Scanes and Comcare (Compensation)

Details

AGLC: Scanes and Comcare (Compensation) [2023] AATA 3537
Case: [2023] AATA 3537
Decision Date: 31 October 2023

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal concerning a claim for workers' compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The appellant, Ms Scanes, sought death benefits and funeral expenses for her late husband, Mr Scanes, who died on 12 October 2020. The claim was based on the assertion that Mr Scanes' myocardial infarction in 1993, which was accepted as a compensable condition, was an effective or operative causal factor in his death 27 years later. Comcare had denied the claim, and the Tribunal was required to review this decision.

The primary legal issue before the Tribunal was whether Mr Scanes' 1993 myocardial infarction, a condition accepted as compensable under the SRC Act, was an effective or operative causal factor in his death in 2020, either alone or in combination with other identified causes. This required the Tribunal to consider the long-term prognosis following a myocardial infarction and the potential impact of pre-existing risk factors, such as hypertension, smoking, and stress, on the progression of coronary artery disease and subsequent mortality. The Tribunal also had to determine if the evidence satisfied the requirements for payment of death benefits to a spouse and for funeral expenses under sections 17 and 18 of the SRC Act, respectively.

The Tribunal considered expert medical evidence regarding the causal link between the 1993 myocardial infarction and Mr Scanes' death. Associate Professor Gutman opined that the 1993 infarction was an effective causal factor in Mr Scanes' death, noting that cardiogenic shock, a leading cause of death in acute myocardial infarction, is significantly predisposed to by previous infarction. Conversely, Associate Professor Colquhoun stated that while the 1993 infarction increased Mr Scanes' risk of death, he also noted that Mr Scanes had not sought medical opinion for his condition after April 1997 and that perceived stress, while a factor, had limited evidence regarding its effect on the prognosis of coronary heart disease. Ultimately, the Tribunal was not satisfied, on the balance of probabilities, that the 1993 incident resulted in Mr Scanes' death in 2020.

Consequently, the Tribunal affirmed the decision under review. Ms Scanes' claim for death benefits and funeral expenses was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

There was no dispute that Ms Scanes was a ‘dependent’ of her late husband, as defined under section 4 of the SRC Act, and for the purpose of the aforementioned compensation provisions for injuries resulting in death in the SRC Act. For the avoidance of doubt, the Tribunal is satisfied that Ms Scanes was a dependent of Mr Scanes at the time of his death in 2020. BACKGROUND Mr Scanes was born on 1 January 1949.[2] [2] Ibid., page 13. In 1971, Mr Scanes commenced employment with the then ACT Police in Canberra. He subsequently became an employee of the AFP when it assumed responsibility for ACT policing.[3] [3] Ibid., page 52. In July 1985, Mr Scanes was admitted to Woden Valley Hospital.[4] Dr David Craigie, General Practitioner, referred Mr Scanes for cardiac review following ‘two episodes of chest pain and breathlessness’ in December 1984 and July 1985, respectively.[5] [4] Ibid., page 279. [5] Exhibit 4. On 22 July 1985, J. D. Wilson, a Senior Specialist in the Department of Endocrinology at the then Woden Valley Hospital in the ACT, reported to Dr Craigie that Mr Scanes:[6]was admitted to hospital on the 14th July with a history of retrosternal chest pain which was associated with shortness of breath. Investigations did not show any evidence of myocardial damage. However, it is noted that he is over-weight and that he smokes 40 cigarettes a day. He has had blood pressures recorded as high as 210/110 mm Hg in the past. He was discharged on the 15th July. He has been advised to lose weight and to stop smoking…He should also have an exercise ECG done in the near future. [6] Ibid. On 29 July 1985, Dr Peter French, Cardiologist, relevantly reported to Dr Craigie following an exercise test performed on Mr Scanes that:[7]He was exercised on a Treadmill using the Bruce Protocol and completed 30 seconds of Stage IV before he was stopped by shortness of breath. He did not develop chest pain.He had normal heart rate response to exertion, pre-existing hyper-tension which rose to significant levels on exertion, and the ECG was negative for ischaemia at peak exercise. Consequently, although he is unlikely to have significant coronary artery disease, the blood pressures recorded are quite significant and I feel that if these pressures are representative of the types of pressures he’d run, then he does have established hypertension and should be treated. [7] Ibid. On 6 March 1993, Mr Scanes made a claim for workers’ compensation due to a ‘heart attack’ and ‘work related stress’.[8] Mr Scanes stated that he was a ‘Sergeant Patrol Supervisor’ and that his injury happened, or he first noticed the disease or illness, on 2 March 1993.[9] He further stated that the injury occurred while working at his usual workplace and there had been ‘a build up of police pressures over a 22 year period’.[10] More particularly, in response to requests for details about ‘all the events which led to the injury’ and their contribution, Mr Scanes stated:[11]A build up of stress & police pressures over a 22 yr period accompanied by drastic budgetary restraints resulting in minimum patrols being available to perform duties to an acceptable level adding further stress to supervisors. …Policing is a very stressful occupation & over the years many frightening incidents are attended to that surely effects the health. [8] Exhibit 1, pages 13-15. [9] Ibid, page 13. [10] Ibid.[11] Ibid., page 14.

Evidence

Evidence Before The Court

Finally, section 18 of the SRC Act provides for compensation in respect of funeral expenses, as follows:(1) Where an injury to an employee results in death, Comcare is liable to pay compensation in respect of the cost of the employee’s funeral to the person who paid the cost of the funeral or, if that cost has not been paid, to the person who carried out the funeral.(2) The amount of compensation is the amount, not exceeding the amount determined in accordance with subsection (4), that Comcare considers reasonable, having regard to:(a) the charges ordinarily made for funerals in the place where the funeral was carried out; and(b) any amount paid or payable in respect of the cost of the funeral under any other law of the Commonwealth.(3) Where a person is liable to pay the cost of the funeral of an employee, any amount paid under this section to the person who carried out the funeral is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.(4) The maximum amount of compensation under subsection (2) is:(a) $9,000; or(b) if the regulations prescribe a higher amount—that amount.Note: The amount of $9,000 is indexed under section 13.[38]EVIDENCE [38] Pursuant to section 13 of the SRC Act, this compensation amount is indexed by reference to the Consumer Price Index. At the time of Mr Scanes’ death on 12 October 2020, this amount was $12,491.46. See accessed on 25 July 2023. Dr David Coles – Cardiologist On 9 March 1993, Dr Coles wrote to the Medical Officer of the AFP relevantly as follows in relation to Mr Scanes:[39]We thought that his inferior infarct probably started about three days ago. Accordingly I took the opportunity to study him fairly soon after his admission. His problem is coming from a totally occluded right coronary artery. This seemed to be full of fresh clot but there was good retrograde filling in the left system. This latter implied that the narrowing that precipitated the total occlusion had been present for some time. He had well preserved left ventricular function and so his outlook should be reasonable. [39] Exhibit 1, pages 201 and 927. On 13 April 1993, Dr Coles wrote to Mr Scanes’ general practitioner, Dr David Craigie, relevantly as follows:[40]It is now about a month since his acute inferior infarct and he reports to be feeling very well. He is exercising regularly and has had no further chest pain.…There was no sign of cardiac failure or cardiomegaly.…The ECG showed sinus rhythm with the older inferior infarct. I was pleased with his progress and the fact that he has remained off cigarettes…I have no worries about his cardiac health, but would be concerned if he went back to a smoking environment too quickly. I would be grateful if you could check his fasting cholesterol and triglyceride levels in another month or so, and if appropriate use lipid lowering agents.[40] Ibid., pages 924-925. On 20 April 1993, Dr Coles provided a report to Comcare which stated that:[41]Mr Warren Scanes was admitted to Woden Valley Hospital with chest pain earlier this year. He had had a history of pain for several days before presenting. He had an acute inferior infarct and subsequent coronary arteriography showed a total occlusion of his right coronary artery. He claims that this was due to stress. In discussing this, it seems as though the stress may be working through his cigarette smoking. He says that when he is at work he smokes up to 60 cigarettes a day, but when he is at home he smokes only about 15 cigarettes in a day.This seems to cover all the questions in paragraphs 1, 2 and 3. In regard to paragraph 4, he is now recovering from his infarct and gradually returning to normal physical activities. He is taking a small dose of beta blocker and half an Aspirin a day. He has mild residual mitral incompetence due to papillary muscle dysfunction, but no evidence of cardiac failure. His blood pressure is satisfactory. He thus has evidence of the infarct affecting his heart and this will probably continue indefinitely. In summary, this man’s chest pain presented at work where he claims he is under stress. He supports this claim by giving evidence of his cigarette consumption when at work compared to home. While this connection is valid, I do not think stress has definitely been shown to play any part in the development of coronary artery disease. [41] Ibid., page 27.

Decision

Reasons for decision

Associate Professor Gutman made a further supplementary report dated 23 May 2022, which responded to questions from Ms Scanes’ solicitor as follows:[52][52] Ibid., pages 325-326. In your opinion, on the balance of probabilities, was Mr Scanes’ myocardial infarction in 1993 an effective or operative causal factor in his death on 12 October 2020, whether alone or in combination with other identified causes?On the balance of probabilities, Mr Scanes’ myocardial infarction in 1993 was an effective or operative causal factor in his death on 12 October 2020.2. If your answer to Q1 is “yes”, please explain the reasons for your conclusion.When Mr Scanes was assessed by the ambulance crew on the day of his death, it was noted that he had a very low blood pressure. This is considered to be consistent with cardiogenic shock. The leading cause of cardiogenic shock is acute myocardial infarction due to left ventricular dysfunction. One of the significant predisposing factors for cardiogenic shock is previous infarction (A review of cardiogenic shock in acute myocardial infarction, L Khalid and SH Dhakam. Curr Cardiol Rev. 2008 February; 4(1):34-40).Mr Scanes had a previous history of myocardial infarction in 1993 which contributed significantly to his episode of cardiogenic shock which caused his death in 2020. Cardiogenic shock continues to be the most common cause of death in patients hospitalised with acute myocardial infarction. (L Khalid and SH Dhakam, reference above). [emphasis in original] Associate Professor Gutman gave concurrent evidence at the hearing of this proceeding, which is discussed further below in these reasons.Associate Professor Colquhoun – Cardiologist On 3 June 2021, Associate Professor Colquhoun provided a report to Comcare for the purpose of its assessment of Ms Scanes’ compensation claim, which ultimately became the subject of this proceeding, which report relevantly stated that:[53][53] Exhibit 1, pages 137-140. The specific question you ask is: "In your opinion, was Mr Scanes' death on 12 October 2020, the result of his compensable myocardial infarction of June 1993? Please provide reasons for your opinion, noting Mr Scanes did not seek medical opinion for his condition after April 1997".ANSWERThe short answer is "Yes". It has been clear in the medical literature for more than 50 years that if a patient survives a myocardial infarction (approximately 30% die from the initial event) they have an increased risk of suffering CHD death, an increased risk compared to age-matched control. Of patients who survive their myocardial infarction and are discharged, risk varies considerably from about 2% per year over the next 5 years of having a major coronary event or death, up to more than 25%. This was seen in our Australian LIPID Trial of which I was an investigator and I was one of the authors who published on prognosis post-infarction. This risk can be decreased considerably by lowering LDL cholesterol with modern therapy.The LIPID Trial of which I was an investigator, 9,400 patients who survived an acute coronary syndrome were followed-up for 6.1 years, half on Pravastatin 40 mg and half on placebo. This 1 mmol/L reduction of LDL was associated with a relative reduction of coronary heart disease events of 24%.Mr Warren Scanes suffered from stress (perceived stress) at work and this stress continued after his heart attack.Psychosocial risk factors and heart disease were reviewed by the Heart Foundation (I was a member of the committee) approximately 20 years ago. We published in the Medical Journal of Australia "Stress and Cardiovascular Disease". In 2013, we published an update and I was Chair of the Expert Working Group. The title was "Psychosocial Risk Factors for a Coronary Heart Disease". Our group concluded "perceived chronic job strain and shift work are associated with a small absolute increase in the risk of developing coronary heart disease. But there is limited evidence regarding their effect on prognosis of CHD". Further evidence of long terms prognosis was obtained from the abovementioned Australian and New Zealand LIPID Trial. Professor Ralph Stewart was the lead author and our long-term data showed that perceived persistent stress over time after a myocardial infarction was associated with greater than 200% increase in sudden cardiac death. This was independent of any other risk factors, including vigorous lipid lowering. Important: it was perceived moderate to severe ongoing stress. Perceived stress was measured frequently during the 6-year period and then death rates were followed-up for more than a decade. These 3 papers are specifically relevant to the question you have asked me.To answer your question again, perceived stress as well as measurable depression independent of classic risk factors, increases risk of first and recurrent cardiovascular events - unstable angina, myocardial infarction and sudden cardiac death. Vigorous lowering of LDL cholesterol decreases risk but does not abolish the risk.The myocardial infarction back in 1993, increased Mr Scanes' risk of sudden cardiac death, which finally did occur on 12 October 2020. [emphasis in original, footnotes omitted]

Ratio Decidendi

Legal Principle Established

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