Scanes and Comcare (Compensation) - [2019] AATA 5542

Scanes and Comcare (Compensation) [2019] AATA 5542 (23 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6932
Re:Warren Scanes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:23 December 2019
Place:Canberra

The decision under review is affirmed.
........................................................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – compensation claimed in respect of injury – emphysema – ailment of gradual onset – ‘disease’ – applicable causal test - onset of ailment not established by evidence – construction of transitional provisions – present legislation applies – evaluation of contributory causes – smoking – issues of credit and reliability – employment contribution to smoking habit not established – plausible theory not sufficient – decision affirmed
Acts Interpretation Act 1901 s 7
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 14, 67
Safety, Rehabilitation and Other Legislation Amendment Act 2007
Esber v Commonwealth [1992] HCA 20
Fox v Percy [2003] HCA 22
Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560
Mathieson v Burton [1971] HCA 4
Maxwell v Murphy [1957] HCA 7
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127
Smith v Comcare [2013] FCAFC 65
Wright v Hale (1860) 6 H & N 227; [1860] EngR 1191
REASONS FOR DECISION
Mr S. Webb, Member
23 December 2019

For many years, Warren Scanes was employed as a police officer. He smoked cigarettes. He suffered a myocardial infarction, stopped smoking and retired from police work. Some years later, he was diagnosed with emphysema and claimed compensation. Comcare determined to reject the claim by primary determination and on reconsideration. Mr Scanes applied to the Tribunal for review.
FACTS
The following facts include uncontroversial matters set out in Mr Scanes’ statements which appear in Tribunal Documents filed by Comcare at T5 and Exhibit 1.
Mr Scanes was born in January 1949.
In 1964, after leaving the Belmore Boys High School at the age of 16, Mr Scanes worked for the National Bank of Australasia (the National Bank).
At school, Mr Scanes undertook athletics and he played rugby league and cricket. He represented his school at State level in athletics and played rugby league at the district level, coached by Warren Ryan. He continued to play rugby league and cricket during his employment by the National Bank.
In 1970, he left the National Bank and applied for a position with the ACT Police. While awaiting the outcome of that application, he worked in a hotel in Sydney as a cellarman.
On 10 May 1971, Mr Scanes commenced employment with the ACT Police. He underwent a 20-week recruitment training program at the Woden Police Station. On completion of this program, he was seconded to the City Police Station for on the job training. On graduating, he remained at this Police Station. Subsequently, when the Australian Federal Police (AFP) assumed responsibility for ACT policing, Mr Scanes became an employee of…

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) [2019] AATA 5542
Case: [2019] AATA 5542
Decision Date: 23 December 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Warren Scanes for review of a decision by Comcare to reject his claim for compensation. Mr Scanes, a former police officer, had a long history of smoking and had experienced cardiac events in 1984 and 1985. He subsequently retired from police work and, some years later, was diagnosed with emphysema, leading him to claim compensation. Comcare had initially rejected his claim and affirmed that decision upon reconsideration. The review was heard by Mr S. Webb, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Mr Scanes' diagnosis of emphysema constituted an "injury" for which Comcare was liable to pay compensation under section 14 of the relevant Act. This required the Tribunal to consider the nature of emphysema and its relationship to Mr Scanes' employment and other factors.

The Tribunal Member, Mr S. Webb, affirmed Comcare's decision to reject the claim. The reasoning, though not fully elaborated in the provided text, indicates that the Member concluded that Mr Scanes' emphysema was not an "injury" for which Comcare was liable under section 14 of the Act. Consequently, there was no necessity to consider any orders for costs under section 67 of the Act. The decision under review was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

For many years, Warren Scanes was employed as a police officer. He smoked cigarettes. He suffered a myocardial infarction, stopped smoking and retired from police work. Some years later, he was diagnosed with emphysema and claimed compensation. Comcare determined to reject the claim by primary determination and on reconsideration. Mr Scanes applied to the Tribunal for review.FACTS The following facts include uncontroversial matters set out in Mr Scanes’ statements which appear in Tribunal Documents filed by Comcare at T5 and Exhibit 1. Mr Scanes was born in January 1949. In 1964, after leaving the Belmore Boys High School at the age of 16, Mr Scanes worked for the National Bank of Australasia (the National Bank). At school, Mr Scanes undertook athletics and he played rugby league and cricket. He represented his school at State level in athletics and played rugby league at the district level, coached by Warren Ryan. He continued to play rugby league and cricket during his employment by the National Bank. In 1970, he left the National Bank and applied for a position with the ACT Police. While awaiting the outcome of that application, he worked in a hotel in Sydney as a cellarman. On 10 May 1971, Mr Scanes commenced employment with the ACT Police. He underwent a 20-week recruitment training program at the Woden Police Station. On completion of this program, he was seconded to the City Police Station for on the job training. On graduating, he remained at this Police Station. Subsequently, when the Australian Federal Police (AFP) assumed responsibility for ACT policing, Mr Scanes became an employee of the AFP. In December 1984, Mr Scanes experienced chest pain and breathlessness while sitting at his desk.[1][1] Exhibit 5. On 14 July 1985, Mr Scanes experienced further chest pain and breathless while driving.[2] He was admitted to the Woden Valley Hospital. A registered nurse, M Smith, recorded in a Woden Valley Hospital admission note that Mr Scanes experienced dyspnoea (difficulty breathing) when walking up stairs and smokers cough –RESPIRATORY FUNCTIONS (describe smoking habits, use of O2 or modi-halers, shortness of breath):40-50 cigarettes/day (has smoked since age 13)…[3][2] Ibid.[3] Exhibit 4. In a letter of referral to Dr French at the Cardiac Diagnostic Centre on 19 July 1985, Dr Craigie, Mr Scanes’ treating general practitioner at that time, reported that he was not willing to label Mr Scanes’ ‘chest pain and breathlessness’ in 1984 and 1985 as ‘Tietze syndrome or whatever.’[4][4] Exhibit 5. On 22 July 1985, Dr Wilson, an endocrinologist, reported a history of ‘retrosternal chest pain which was associated with shortness of breath’ and high blood pressure. The doctor found no evidence of myocardial damage and noted that Mr Scanes was ‘over-weight and that he smokes 40 cigarettes a day’.[5][5] Exhibit 6. On 4 March 1993, Mr Scanes was admitted to the Woden Valley Hospital complaining of symptoms including chest pain and shortness of breath.[6][6] Exhibit 8.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

From this it follows that the reconsideration decision will be affirmed – Mr Scanes’ emphysema is not an ‘injury’ for which Comcare is liable to pay compensation under s 14 of the Act. That being so, there is no cause to consider orders for costs under s 67 of the Act.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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