Barnes and Comcare (Compensation)

[2023] AATA 1304

Barnes and Comcare (Compensation) [2023] AATA 1304 (22 May 2023)

Division:General Division

File Number(s):      2022/1607

Re:Darren Barnes

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:22 May 2023

Place:Canberra 

The decision under review is set aside. The respondent is liable to pay compensation in relation to the applicant’s episode of unstable angina suffered on 15 December 2020.

…………………[sgd]……………….

Senior Member O'Donovan

CATCHWORDS

WORKERS COMPENSATION - where employee suffered a cardiac event in the course of employment - where employee suffered symptoms before attending work - whether employee suffered a frank injury - whether employee suffered a sudden and ascertainable or dramatic physiological change or disturbance - whether the symptoms suffered were separate events - employee entitled to compensation

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 37

Safety, Rehabilitation and Compensation Act 1988 ss 5A(1)(b), 6(1)(b), 14, 66, 67(8)

CASES

Abrahams v Comcare (2006) 93 ALD 147

Military Rehabilitation Compensation Commission v May [2016] HCA 19

REASONS FOR DECISION

Senior Member O'Donovan

22 May 2023

1. The applicant is employed by the Australian Federal Police.

2. He is seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to a health event that occurred at work on 15 December 2020. While at work, the applicant suffered serious cardiac symptoms which led to him being taken to hospital in an ambulance. The event however fell short of a heart attack. In broad terms, the incident was the result of the underlying heart disease which the applicant suffers from. The applicant was a long-term smoker, had high cholesterol and a family history of heart disease. Consequently, it would be difficult for him to claim that his underlying heart disease was substantially contributed to by his employment. He does not seek to do that. What he does claim is that the specific incident at work on 15 December 2020 involved him suffering a frank injury in the course of employment. I have used the phrase ‘frank injury’ to distinguish it from the broader statutory concept of ‘injury’ in the SRC Act which includes diseases.[1]

   [1] I note that others prefer to use the phrase ‘injury in the ordinary sense of that word’ which is the expression favoured by the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19.

3. In order to decide whether the applicant suffered a frank injury at work, it is necessary to undertake a fact-intensive inquiry as to what took place at a physiological level on the morning in question. The issue is complicated in this case because the applicant suffered similar symptoms the night before while he was at home. Accordingly, the application requires a high level of precision in the fact finding, as well as an acknowledgement that there are limits to what can be affirmatively established physiologically in a case such as this.

4. I have structured these reasons in the following way. First, I look at how the law has developed in relation to the compensability of what I will describe as internal injuries which result from underlying diseases. Second, I will set out the facts concerning the applicant’s underlying disease and his symptoms on the day in question, as well as the night before. Third, I will examine each of the medical opinions about what actually happened physiologically speaking while the applicant was at work between 7.30 am and 9.30 am on 15 December 2020, and then determine whether I can be satisfied that the applicant suffered a frank injury during in the course of his employment on the morning of 15 December 2020.

   Internal Injuries

5. Justice Gageler pointed out in Military Rehabilitation Compensation Commission v May (May), that more than a century of teasing out what constitutes a frank injury in the context of workers’ compensation legislation has shown that suffering an injury is not confined to “getting hurt”.[2] An injury can be constituted by something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel.

   [2] [2016] HCA 19 at [75].

6. The plurality in the same case made clear that the physiological changes that can constitute an injury ‘may be internal or external to the body of the employee. The change may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain’.[3] Each can be described as a frank injury.

   [3] Ibid at [46].

7. However, in May the High Court made it clear that not every physiological change that can be said to be an alteration from the functioning of a healthy body or mind, constitutes a frank injury.

8. As Justice Gageler points out:[4]

   Every ailment or worsening of an ailment can at some level be described as an alteration from the functioning of a healthy mind or body. Indeed, every manifestation of an ailment or of the worsening of an ailment might potentially be so described… At least in the case of physical injury, to suffer an injury is more than just to experience the onset of dysfunction.

   [4] Ibid at [77].

9. Consequently, in circumstances where there is a need to distinguish a physiological change which is occurring from the natural progress of an underlying disease from a frank injury, suddenness can be useful. But it is the physiological change and the nature and incidents of that change which remain central to identifying a frank injury.

10. The High Court has emphasised that consideration must be given to the precise evidence on a fact-by-fact basis concerning the nature and incidents of the physiological changed accepted at trial. If this evidence amounts to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physical state, it may qualify for characterisation as a frank injury. Generally speaking, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. What is required is more than an assertion by an employee is that he or she feels unwell.

11. In the present case the real question is whether what happened at work on 15 December 2020 was the product of the steady deterioration of the applicant’s underlying disease or a sufficiently dramatic physiological change to qualify for characterisation as an injury. To answer that question, it is necessary to consider both the progression of the disease and the observable deterioration which occurred in the 14 hours between the onset of symptoms and the applicant being taken to hospital.

    Facts

12. There was a range of useful material placed before the Tribunal in relation to this application. It consisted of:

    ·Documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (T-Docs)

    ·A statement of the applicant dated 3 November 2022 (Exhibit A1)

    ·A medical report from Associate Professor Haber dated 30 June 2022 (Exhibit A2)

    ·A medical report from Associate Professor Haber dated 8 July 2022 (Exhibit A3)

    ·A medical report from Associate Professor Haber dated 27 April 2023 (Exhibit A4)

    ·A bundle of documents tendered by the respondent (Exhibit R1)

13. In addition, the Tribunal had the benefit of seeing the applicant give some oral evidence in chief and answer questions in response to cross-examination by the respondent’s counsel. Three cardiologists provided reports and were questioned in the Tribunal. They were:

    (a)Dr Kashif Kalam;

    (b)Associate Professor David Colquhoun; and

    (c)Associate Professor Richard Haber.

14. Mr Barnes gave his evidence in a straight-forward manner. He came across as a man doing his best to tell the truth. However, the question of what his precise symptoms were at precise times, looms large in this matter. Given that it can be difficult for a person to remember precisely what was happening and at what time, I regard the contemporaneous descriptions of symptoms as recorded in hospital records and AFP incident reports as more reliable than the specific recollection of the applicant. I have based my factual conclusions on those.

15. In relation to the doctors who gave evidence, each did their best in relation to the difficult task of providing information about what was happening inside the applicant’s body at the points in time when the applicant was experiencing symptoms. Each of the doctors appreciated the difficulty of the task which they were being asked to engage in and did their best to assist the Tribunal. Ultimately, I found the evidence of the applicant’s treating cardiologist of most assistance. He had an accurate understanding of the applicant’s history of symptoms and the benefit of seeing the applicant on the day in question.

16. My findings of fact are set out below. To the extent that any of the findings are controversial I have referenced the evidence on which they are based. I note that the applicant also has a claim before the Tribunal for compensation in relation to a psychological injury. As far as possible I have avoided making any findings on questions relevant to the determination of that matter which is to be resolved separately.

17. The applicant has a history of heart disease.  He has smoked since he was a teenager and at times smoked up to 20 cigarettes a day. Over the years he attempted to give up smoking on numerous occasions but was unable to do so successfully until 2016.

18. In April 2016 the applicant underwent an AFP health assessment to determine his fitness to undertake a posting. Following the medical examination, he was noted to have high cholesterol and a 13% risk of cardio-vascular disease. He was determined to be not deployable until his cardio-vascular risk was under 10% and his family was not solely dependent on his income.  Following that medical review, the applicant visited his GP and appears to have undertaken a stress test which was at that stage normal.

19. On 9 June 2016 he experienced pain in his left shoulder while working. This lasted for about 20 minutes and then subsided. On 10 June 2016 the applicant woke up with severe chest pains. He went to work and mentioned the pain to a work colleague who advised him to go to the hospital immediately. He went to Calvary hospital where he was diagnosed with ‘an acute myocardial infarction with a markedly elevated troponin level’. In lay terms, a heart attack.

20. On further testing a 100% occlusion of his right coronary artery was identified. A device to open up the artery called a stent, was subsequently inserted into that artery.  At the time, the investigations undertaken discovered a 50% occlusion of the left circumflex artery, but it was not treated at the time. Comcare accepted liability for the heart attack.

21. Since this initial episode, the applicant has attended Emergency Departments on multiple occasions with recurring chest pain. The applicant had difficulty maintaining a good diet.[5] On 6 June 2017 the applicant underwent an elective coronary angiography in view of his recurring chest pain. Based on the results of the procedure, cardiologist Dr Chris Hii advised that the chest pain the applicant was experiencing was not cardiac in origin. Between 2017 and 2020 the applicant continued to present regularly to the emergency department with chest pain.

    [5] Respondent’s Tender Bundle, p 40.

22. In August 2020 the applicant underwent a stress test under the supervision of cardiologist Charles Itty. The stress test was equivocal, and the applicant was advised to undergo coronary angiography to investigate further.

23. On 14 December 2020 the applicant was sitting at home watching television when he had an episode of chest pain. He described it the following day as ‘central and crushing in nature’.[6] He treated it with a Glyceryl Trinitrate Spray which works by expanding the blood vessels in the body. This was said to have ‘some effect overnight’.

    [6] T23.1, p 131.

24. The next day the applicant attended work from 7.30 am. Upon arrival the applicant looked unwell and two colleagues inquired after his health. He reported to his colleagues that he had had a ‘rough night’ and was not good at all.[7] At 9.30 when the applicant told a colleague that he didn’t feel very good, his supervisor decided to ring an ambulance. At that stage the applicant had changed colour, was hot to touch and was sweating.

    [7] T13, p 29.

25. When the ambulance arrived the applicant is recorded as giving the following history (which I am satisfied is accurate):

    Pt was at work this morning when he had onset of central chest pain described as something sitting on his chest, radiating to his left arm, rated at 6/10. Pt self administered 2xspray of anginine which reduced pain from 6/10-4/10. Pt complained of nausea, disphoretic prior to [ACT Ambulance Service] arrival. Pt states had similar episode of chest pain last night that resolved post anginine. Pt has [history] of [ischemic heart disease] with stent placed in 2016. Pt states chest pain today feels similar to when he had his [Acute Myocardial Infarction].

26. The ambulance officers did an ECG with slight changes evident, but not quite meeting criteria for transmission to hospital. The ambulance officers sent the results to a cardiologist. The cardiologist called and said he would see the applicant in the emergency department.

27. When the applicant arrived at the hospital, notes were taken which recorded the following history given by the applicant (which I am satisfied is accurate):

    54 year old gentleman presents with 2 episodes of chest pain. Chest pain came on last night when sitting watching TV. Was central and crushing in nature. Took GTN spray was relieved by this.

    This morning at approximately 8.45 was sitting checking emails – central [cardiac pain] nausea, light headedness, diaphoretic pain radiated to shoulder, was relieved by GTN.

28. A coronary angiogram was organised and significant blockage in the circumflex artery was identified. The blockage was in the order of 80%. This was treated with a drug-eluting stent to improve blood flow to the heart. There was no evidence of any other flow-limiting coronary artery disease. His troponin levels were in the normal range.[8] This means that the blood flow restriction did not cause damage to the tissue in the heart. The applicant was discharged soon after.

    [8] T15, p 33.

29. On 6 April 2021 the applicant made a claim for workers’ compensation. The claim was for a ‘minor heart attack’ resulting in surgery to have a stent inserted.

30. On 11 June 2021 the respondent declined liability on the basis that the applicant did not suffer a heart attack on 15 December 2020. That conclusion was affirmed on review.

    Consideration

31. By the time this matter was heard by the Tribunal, it was common ground that the applicant did not suffer a heart attack on 15 December 2020. However, the applicant contended that he still suffered a frank injury which can best be described as ‘unstable angina’. The fact that the claim form may not have described accurately the medical condition which he did suffer on 15 December 2020 was, it was submitted, no barrier to the Tribunal finding the respondent liable under section 14 of the SRC Act. I accept that submission. Abrahams v Comcare makes clear that as far as precise medical diagnosis is concerned, claim forms should not be read strictly.[9]

    [9] (2006) 93 ALD 147.

32. The medical consensus at hearing was that the applicant suffered from one or more episodes of unstable angina on 14 and 15 December 2020. Unstable angina is a cardiac event that is short of a heart attack. Angina occurs when blood flow to the heart is temporarily decreased. By contrast, during a heart attack, blood flow is severely reduced or blocked altogether. If heart tissue is damaged as a result of the reduced blood flow or blockage, Troponin levels in the blood stream will increase. The levels of Troponin in the applicant’s bloodstream were not elevated which indicates that no permanent damage was done to the heart as a result of events on 14 and 15 December 2020.

33. The issue at the hearing boiled down to this – what physiological change occurred between 7.30 am when the applicant arrived at work and around 9.30 am when the ambulance was called. If I am satisfied that the applicant suffered a sudden and ascertainable or dramatic physiological change or disturbance, then he suffered an injury in the course of employment.

34. The applicant contends that based on the ordinary rules of statutory construction he suffered an injury in the course of employment, thus meeting the definition of an ‘injury’ under section 5A(1)(b) of the SRC Act. The applicant also relies upon section 6(1)(b) of the SRC Act which deems an injury to have arisen out of, or in the course of, employment if it was sustained while the employee was at his place of work, for the purposes of that employment.

35. In other words, the only question which I need to determine is whether the applicant suffered a frank injury while he was at work at around 9.30 am.

36. Three cardiologists expressed views about that cardiac event.

    Dr Kalam

37. Dr Kalam was the cardiologist who treated the applicant when he arrived at the emergency department on 15 December 2020. He expressed the view that the applicant at the time he was seen in December he 2020 suffered from unstable angina.[10]

    [10] T16, p 34.

38. He explained that when a person has heart disease, there is plaque build-up on the artery which starts to block the blood flow through the artery. At a certain point, angina symptoms can emerge or a heart attack can take place. The symptoms experienced can be caused by a number of things including:

    (a)The artery going into very severe spasm;

    (b)The soft surface of the plaque erupting, causing bleeding and clotting within the artery creating a partial occlusion; or

    (c)the plaque being disrupted in some way – either mechanical or by inflammation - causing the artery to partially occlude.

39. He accepted that given that there were two separate incidents involving the sudden onset of chest pain, there was physiological change of one of the kinds described, both the night before and the following day. He considered the third cause most likely.

    Associate Professor Colquhoun

40. Associate Professor Colquhoun also gave evidence. In the report that he prepared on 24 June 2021 he was asked the following question and gave the following answer:

    QUESTION

    b) In your opinion, what time and date did the sudden physiological change occur to Mr Barnes’ heart? Does the physiological change correlate with the onset of symptoms, or were there any relevant physiological changes that occurred before or after the onset of symptoms? Please provide your clinical justification to support your opinion.

    ANSWER

    Sudden physiological change occurred first the night before work and it was clearly severe at work, which led to him going to hospital.

    QUESTION

    c) Did the physiological change occur suddenly, or over a period of time? If the latter, when did that period begin and end?

    ANSWER

    There were symptoms the night before he went to work on 15.12.2020, which led to him being admitted to Canberra Hospital via ambulance.

41. In his oral evidence A/Professor Colquhoun agreed that the applicant suffered from unstable angina on the days in question. He was, however, less willing to accept than Dr Kalam, that the pain on 14 December 2020 was separable from the pain on 15 December 2020. He was strongly of the view that the soft cap on the plaque build-up in the applicant’s artery had ruptured. As a result, there was clotting which caused occlusion of the artery. He indicated that the pain ‘comes and goes’ because the plaque is irritable, and this takes a number of weeks to settle down. A/Professor Colquhoun was confident that what the applicant experienced at work was the same syndrome that had begun the night before.

    Associate Professor Richard Haber

1. A/Professor Haber prepared three reports. Only the last of these addressed the matters which were relevant to resolving the application before the Tribunal. That report however was served on the respondent only a matter of days before the hearing was scheduled to commence. The respondent sought an adjournment of the proceedings on that basis. At the Tribunal’s instigation, the question of whether the applicant should be given leave to rely on the report pursuant to section 66 of the SRC Act was dealt with first. The applicant conceded that the report did contain new information and that leave was required. The failure to obtain the report earlier was explained on that basis that the issues in the proceedings had not been clearly identified until late in the Tribunal process resulting in the urgent need for a fresh report addressing the ‘in the course of employment’ threshold.

2. While the applicant should have obtained evidence on that issue sooner, leave was granted on the basis that the report was centrally relevant to the issue that the Tribunal had to determine.

3. The Tribunal rejected the respondent’s application for an adjournment, on the basis that any prejudice caused by the late service of the report would be able to be addressed by eliciting further evidence from the respondent’s cardiologist. In the event that this did not remedy any prejudice, I indicated to the respondent that I was open to considering a further application for an adjournment at a later time. The respondent also indicated that because A/Professor Haber’s report was the first time there was evidence to support a sudden physiological change in the course of employment, the respondent had been deprived of an opportunity to resolve proceedings. The respondent was given an adjournment to determine whether the matter should be resolved in light of the report, but ultimately the respondent elected to proceed. The respondent did however signal that it may have submissions to make in relation to the question of how the Tribunal’s costs discretion should be exercised.

4. In relation to the report that A/Professor Haber prepared dated 27 April 2023, it is almost certain that he had an incomplete history concerning Mr Barnes. It became clear in cross-examination that there were many relevant details concerning the applicant’s condition on the evening of 14 December 2020 that he simply did not know about when he prepared his report. He also appeared to have a history that involved the applicant lifting chairs on 15 December 2020 – an element of the history which the applicant explicitly denied in the witness box.

5. In his report A/Professor Haber expressed the following view:

   Almost certainly at that time he had a significant blockage of either the same or a different coronary artery. Either by slight exertion of lifting the chairs, the actual flow of the blood through the coronary artery became inadequate (this may have occurred as the result of increased demand for a greater blood supply to the heart as a result of the minor exertion) Or due to a spontaneous increase in the size of the blockage of the affected artery say by spasm) This resulted in what is referred to as acute coronary syndrome. This is therefore due to a temporary decrease of adequate blood supply to the heart but if it was more prolonged there would be actual cardiac muscle damage which would be diagnosed by an increase of troponin level.

6. As this part of the report is not congruent with the history given by the applicant, I am not prepared to give it any weight.

7. A/Professor Haber gave more focussed evidence orally. It seems he had been updated in relation to the history at some point, although by what means A/Professor Haber seemed reluctant to say. He offered two possible causes for the applicant’s symptoms on 15 December 2020. Either the plaque ruptured a little bit causing a blockage or the plaque caused the artery to spasm reducing the diameter of the artery.

8. In cross examination A/Professor Haber posited the view that there was a minor rupture the night before and then a more significant rupture the next day. His conclusion was that something must have happened to cause the applicant’s pain on 15 December 2020. To use his words ‘Something happened one day. Something else happened the next day’. In his view a more significant and prolonged blockage occurred on 15 December 2020.

9. The question that the Tribunal has to resolve in these proceedings is whether the applicant suffered a sudden and ascertainable or dramatic physiological change or disturbance on 15 December 2020 while at work.

10. Dr Kalam and A/Professor Haber are of the view that there were two separate incidents on consecutive days each involving a physiological change. Neither can be precise about what the change was on 15 December 2020, but both appeared confident that the event in question involved either the artery going into spasm or something akin to a rupture in the plaque causing clotting or mechanical blockage of some kind in the artery. In either case, a sudden physiological change occurred.

11. Only A/Professor Colquhoun was of the view that the two incidents were not separable and that the symptoms the applicant suffered on 15 December 2015 were just a continuation of the syndrome which had developed on 14 December 2020. A/Professor Colquhoun seemed extremely combative when questioned about the possibility that the incident on 15 December 2015 might have been a separate incident involving separate physiological change. In my assessment he was dismissive of the possibility that a separate physiological event had occurred on 15 December 2015 without a clear justification for being so adamant on the question.

12. In reaching my decision I have preferred the views expressed by Dr Kalam and A/Professor Haber.

13. I am satisfied that the applicant did suffer a frank injury on 15 December 2020 in the course of his employment. The sudden onset of pain which he experienced was a reflection of sudden physiological change taking place inside his left circumflex artery. The fact that the precise mechanism cannot be determined is not fatal to the claim. The likely change is that the affected artery went into spasm, or plaque which had built up in that artery ruptured causing clotting or a mechanical blockage to the artery. Events of this nature are properly regarded as frank injuries and given the timing of the symptoms, I am satisfied the change occurred in the course of employment.

14. The applicant is therefore entitled to compensation in relation to the incident of 15 December 2020. This is not a finding that the applicant’s underlying heart disease is compensable which was not a question argued before me. The amount of any compensation payable is also not a matter which I have jurisdiction to determine.

15. The reviewable decision is therefore set aside. Comcare is liable to pay compensation in accordance with the SRC Act in respect of the applicant’s episode of unstable angina suffered on 15 December 2020.

16. I have a discretion to award costs in relation to this matter under section 67(8). I have not heard the parties in relation to that question and so will make no order at this stage. Any application for costs must be made within 14 days of the date of this decision, otherwise I will make an order that no costs are payable by Comcare.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of

...................................[sgd]....................................

Associate

Dated:   22 May 2023

Date(s) of hearing:	1, 2 May 2023
Date final submissions received:	28 April 2023
Counsel for the Applicant:	Allan Anforth AM
Solicitors for the Applicant:	David Healey Solicitors
Counsel for the Respondent:	Ben Julienne
Solicitors for the Respondent:	McInnes Wilson Lawyers