Berry and Comcare (Compensation) - [2019] AATA 4978

Berry and Comcare (Compensation) [2019] AATA 4978 (28 November 2019)
Division:GENERAL DIVISION
File Number: 2017/3061
Re:Brian Berry
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:28 November 2019
Place:Brisbane

The decision under review is affirmed.
...............................[Sgd]......................................
Member R Maguire
Catchwords
WORKERS COMPENSATION – coronary artery disease – ischaemic heart disease – aggravation/acceleration of coronary artery disease – passage of time – whether the Respondent remained liable for medical expenses – whether the Respondent remained liable for incapacity payments – decision under review affirmed.
Legislation
Commonwealth Employee’s Rehabilitation and Compensation Act (1988) (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Colombo and Australian Postal Corporation [2015] AATA 10
REASONS FOR DECISION
Member R Maguire
28 November 2019
INTRODUCTION

This is an application for the review of a decision made on 16 May 2017 to affirm a determination dated 27 March 2017[1] to cease the liability of Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) as and from 5 April 2017 for a claim for medical expenses under s. 16, and a claim for incapacity payments under s. 21A in respect of the applicants accepted condition of aggravation/acceleration of coronary artery disease (“the compensable condition”) sustained on 1 November 1991 (“the relevant date”).[2] Section 16 is referred to as it stood at the relevant date. Section 21A (which deals with post-retirement entitlements) is as it stood as at the date of the applicant’s retirement, 21 June 2011.
[1] Exhibit 1, T Documents, T21, pages 166 – 168, Determination of no present liability, dated 27 March 2017.
[2] Exhibit 1, T Documents, T24, pages 175 – 178, Reconsideration of Determination, dated 16 May 2017.
As at the relevant date the Act was known as Commonwealth Employee’s Rehabilitation and Compensation Act (1988) (Cth).
The determination of 27 March 2017 was made by a Comcare delegate who found that there was no evidence that the applicant continued to suffer from the compensable condition.[3] The Review Officer who made the decision of 16 May 2017 (“the decision under review”) found that the applicant no longer experienced the effects of the compensable condition.[4]
[3] Exhibit 1, T Documents, T21, page 167, Determination of no present liability, dated 27 March 2017.
[4] Exhibit 1, T Documents, T24, page 176, Reconsideration of Determination, dated 16 May 2017.
The determination of 27 March 2017 had effect as and from 5 April 2017.
ISSUE FOR DETERMINATION
The issue for the Tribunal is whether there is evidence sufficient to support a finding that the applicant continued to suffer the compensable condition beyond 5 April 2017, and if so, whether he continues to suffer it as at the date of this decision.
For the reasons below, the Tribunal finds that the applicant has not continued to suffer the compensable condition beyond 5 April 2017, and the decision…

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 Berry and Comcare (Compensation)

Details

AGLC: Berry and Comcare (Compensation) [2019] AATA 4978
Case: [2019] AATA 4978
Decision Date: 28 November 2019

CaseChat Overview and Summary

This matter concerned an application for review by an applicant who had lodged a claim for compensation for a "heart condition" in 1992, which was diagnosed as ischaemic heart disease. The applicant had undergone coronary artery bypass surgery in April 1992. The dispute centred on whether Comcare remained liable for the applicant's ongoing medical expenses and incapacity payments, given the passage of time since the initial diagnosis and surgery. The decision was made by R Maguire M.

The court was required to determine whether Comcare's liability for the applicant's coronary artery disease, which was accepted as an aggravation or acceleration of a pre-existing condition due to his employment, had ceased. Specifically, the court needed to ascertain if the applicant's compensable condition had recurred, worsened, accelerated, exacerbated, or intensified since his post-operative recovery, and consequently, whether he was still entitled to compensation for medical expenses and incapacity.

The court reasoned that Comcare's liability was limited to the aggravation or acceleration of the applicant's coronary artery disease, not the underlying condition itself. Medical evidence indicated that the applicant had made a commendable recovery following surgery, remained largely symptom-free, and had adopted a healthy lifestyle. Reports from treating and independent medical professionals suggested that the applicant's condition was stable and that his ongoing exercise regime was a preventative measure rather than treatment for a current aggravation. The court found that the aggravation of the applicant's compensable condition had ceased following his post-operative recovery, and there was no evidence of any recurrence or worsening of that aggravation since that time.

Accordingly, the court affirmed the decision under review, finding that the applicant had no compensable condition on or after 5 April 2017 and was therefore not entitled to compensation under sections 16 and 21A of the relevant Act.

Orders

Orders of the court

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Background

Background to the litigation

On 24 May 2017, the applicant filed the present application for review, asserting that the reviewable decision was wrong, and that relevant medical information had not been taken into account.[10] [10] Exhibit 1, T Documents, T2, pages 3 – 8, Application for Review of Decision, dated 24 May 2017.BACKGROUND The applicant commenced working with the Australian Taxation Office (ATO) in October 1984 and began auditing duties in July 1985, and was working in that role in 1991 – 1992. On 20 May 1992, the applicant lodged a claim for compensation for a “heart condition”.[11] The applicant had first noted symptoms on an unspecified date in November 1991 at [11] Exhibit 2, Supplementary T Documents, ST1, Claim for Compensation, dated 20 May 1992.5:20 PM, and first received treatment on 26 February 1992. On 9 June 1992, Dr B McCall, Commonwealth Medical Officer, having examined the applicant on 4 June 1992, reported that the applicant had developed symptoms of ischaemic heart disease in February 1992, and had undergone CABG on 6 April 1992.[12] Dr McCall reported that the applicant currently had no symptoms of ischaemic heart disease but did complain of some shortness of breath and fatigue on exertion, and that this was consistent with his recovery from his operation. Dr McCall considered that the applicant should be granted further sick leave until 26 June 1992 at which time it was likely that he would be fit to return to work on a part-time basis to do light sedentary non-stressful duties. Dr McCall recorded that there was no evidence that the incapacity was due to the wilful action on the part of the applicant for the purposes of obtaining an invalidity benefit. Dr McCall commented that he was awaiting a report from a psychiatrist, Dr B Klug.[12] Exhibit 2, Supplementary T Documents, ST2, Report of Dr B McCall, dated 9 June 1992, In a further report dated 7 August 1992,[13] Dr McCall recorded that the cardiologists opinion was that “although there has been no causal relationship conclusively demonstrated between stress and the aetiology of coronary artery disease it would not be conducive to his overall well being, and his continued recovery, for him to be placed in the same work situation” as an auditor. The applicant’s prognosis for health was good, provided that these “stress” factors in his workplace were avoided.[13] Exhibit 2, Supplementary T Documents, ST3, page 6, Report of Dr B McCall, dated 7 August 1992. Dr McCall further reported that the consultant psychiatrist’s opinion was that the applicant was a Type A personality and that he should not return to his previous stressful duties, but should be employed in a considerably less stressful role, and that he should undergo a program of modification of his Type A behaviour. In a report dated 12 November 1992, Commonwealth Medical Officer Dr M Hayman who had examined the applicant on 10 November 1992 for the purpose of assessing his fitness for full-time work, reported that the applicant remained “largely symptom free following his coronary artery bypass surgery.”[14] Dr Hayman also reported that the applicant suffered “an occasional non specific sharp mandatory chest pain from time to time and had on occasions felt fatigued after a full day’s work”, but was coping with his current duties. Dr Hayman reported that the applicant was fit to perform his current duties until his review by Dr Kewal, and suggested his hours remained at six per day. The doctor recorded that the applicant was coping well with his six hour working day followed by his one hour exercise prior to his family evening meal together.[14] Exhibit 2, Supplementary T Documents, ST5, pages 20 – 21, Report of Dr M Hayman, dated 12 November 1992.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In considering the above passage, it must be remembered that Senior Member Taylor SC and Member Webb were dealing with the current legislation which provides a “significantly contributed” test rather than a “materially contributed” test which applies in the present circumstance. REVIEW OF DECISION RECORD A synopsis of the decision record of the review officer is as follows. The applicant’s treating cardiologist, Dr Narendra Kewal, gave a report dated 23 April 2014 that the applicant underwent a coronary artery bypass grafting (“CABG”) in April 1992 and since then has remained well with no angina or dyspnoea and his exercise tolerance is excellent.[7][7] Exhibit 1, T Documents, T11, page 37, Report of Dr N Kewal, dated 23 April 2014. Dr Kewal further stated, in a report dated 11 August 2016, that the applicant had undergone yearly stress tests which have been negative for myocardial ischaemia supporting the clinical impression of a good ongoing surgical result.[8][8] Exhibit 1, T Documents, T13, Report of Dr N Kewal, dated 11 August 2016. Dr Kewal also stated that the applicants bypass grafts are now over 24 years old and the attrition rate of the vein grafts which were utilised in his case increased dramatically with age, particularly after 10 years. An exercise electrocardiogram performed on 6 April 2014 showed no evidence of myocardial ischaemia 24 years post the applicants CABG. At Comcare’s request, the applicant attended an independent medical examination on[9] Exhibit 1, T Documents, T18, Independent Medical Examination Report of Dr K Hossack, dated 7 February 2017 with consultant cardiologist, Dr Kenneth Hossack, who opined that the applicant has a genetic pre-disposition to the development of coronary artery disease.[9] Dr Hossack further opined that the applicant’s genetic pre-disposition to coronary artery disease was possibly aggravated by work stress and dyslipidaemia. He further reported that the applicant had elevated cholesterol which is a reflection of his body’s inability to metabolise cholesterol adequately and thereby contributing to the development of coronary artery disease. Dr Hossack also opined that as a result of an adjustment in work tasks, the applicant was no longer exposed to stressful situations and as time progressed, it became more apparent that his elevated cholesterol was a potential contributing factor. The Comcare delegate acknowledged that Dr Kewal was supportive of the applicant’s ongoing exercise regime and had stated that this was a risk management modality, suggesting that it is required as a preventative measure rather than treating the effect of his aggravation/ acceleration of coronary artery disease sustained in 1991. The Review Officer concluded that the applicant no longer experiences the effects of his compensable condition, and was not presently entitled to compensation under ss. 16 and 21A of the Act in respect of his accepted aggravation/acceleration of coronary artery disease sustained on 1 November 1991.

Ratio Decidendi

Legal Principle Established

The applicant later sent an email to the Tribunal on 23 July 2019 advising of the death of his mother at the age of 91.CONSIDERATION The applicant in this case suffers from coronary artery disease, and acknowledges that this probably commenced when he was in his late teens, built up over many years, and did not manifest itself until he was 39 years of age, by which time he was an employee of the ATO working in a high stress environment. The applicant suffered symptoms in 1991, and was diagnosed with ischaemic heart disease in February 1992, resulting in his undergoing a Coronary Artery Bypass Graft on 6 April 1992. Subsequent to his surgery, the applicant has lost considerable weight, and adhered to an admirable dietary and exercise programme. He has closely monitored his health under regular specialist supervision, and has achieved a commendable level of physical fitness, and has not suffered any symptoms of angina or myocardial ischaemia since his surgery during the 27 years which have passed since his surgery. Comcare only ever accepted liability in respect of the aggravation (as that term is used in the Act) of the applicant’s coronary artery disease. The applicant’s coronary artery disease, once diagnosed, was always going to require management, even if the admitted episode of aggravation had never occurred. Comcare never accepted liability for the coronary artery disease as such, and therefore could not be liable for its ongoing management. Comcare’s liability was limited to the aggravation /acceleration of that condition. If the aggravation ceased, so too did Comcare’s liability. There is no evidence before the Tribunal so as to admit of a finding that the applicant’s compensable condition has recurred, worsened, accelerated, exacerbated or intensified during the period since his post-operative recovery. There is, therefore, no evidence before this Tribunal so as to admit of a finding that the applicant has suffered any episode which might be described as an aggravation of his condition since completing post-operative recovery. In all the circumstances, it appears that the applicant’s recovery has been as good as could be hoped for, and he and his medical advisors should be proud of that. Dr Kewal put it in a nutshell when he said: “Clinically this patient remains very stable from a cardiac perspective.”[63] [63] Exhibit 9, Bundle of medical tests and reports relating to the Applicant’s stress tests, page 39, Report of In the absence of any episode of aggravation since the applicant’s post-operative recovery, it is unnecessary to consider whether the applicant’s employment contributed to it in a material degree. The Tribunal is satisfied, and finds as a fact, that the aggravation of the applicant’s compensable condition ceased following his post-operative recovery. It follows that the applicant has had no compensable condition on or after 5 April 2017.DECISION Accordingly, the decision under review is affirmed.