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

The applicant is employed by the Australian Federal Police.
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.
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.
I have structured these reasons in the following way. First, I look at how the law has developed in relation to the…

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 Barnes and Comcare (Compensation)

Details

AGLC: Barnes and Comcare (Compensation) [2023] AATA 1304
Case: [2023] AATA 1304
Decision Date: 22 May 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Barnes against a decision by Comcare to decline liability for compensation. The dispute centred on whether the applicant suffered a compensable "injury" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) when he experienced a cardiac event on 15 December 2020, while at his place of work. While it was accepted that the applicant did not suffer a heart attack, he contended that he experienced unstable angina, which he argued constituted a frank injury.

The court was required to determine whether the physiological changes experienced by the applicant between his arrival at work and the time an ambulance was called constituted a "sudden and ascertainable or dramatic physiological change or disturbance," thereby qualifying as an injury under the Act. The applicant relied on sections 5A(1)(b) and 6(1)(b) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), arguing that the event arose out of or in the course of his employment.

The court accepted the applicant's submission that claim forms should not be read strictly regarding precise medical diagnoses, referencing *Abrahams v Comcare*. The medical consensus was that the applicant suffered from unstable angina, a condition short of a heart attack, evidenced by the absence of elevated Troponin levels. The critical question was whether the deterioration in the applicant's condition between 7:30 am and 9:30 am on 15 December 2020 amounted to a sudden and ascertainable or dramatic physiological change. The court found the contemporaneous descriptions of symptoms in hospital and incident reports to be more reliable than the applicant's specific recollection.

The court found that the applicant did suffer a frank injury in the nature of unstable angina, which qualified as an injury under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Accordingly, the applicant was entitled to compensation.

Orders

Orders of the court

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Background

Background to the litigation

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 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) 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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. Three cardiologists expressed views about that cardiac event.Dr Kalam 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. 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.