Bolton and Comcare
[2002] AATA 1264
•6 December 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1264
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1898
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN BOLTON
Applicant
And COMCARE
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date6 December 2002
PlaceSydney
Decision The Tribunal determines that the decision under review be affirmed.
.
.............................................
Dr J D Campbell Member
CATCHWORDS
Workers Compensation - liability for injuries accepted as a result of plane crash under 1930 Act. liability for coronary artery disease under 1971 Act not accepted - claim for permanent impairment for coronary heart disease under 1988 Act - issue of stress, hypertension and diabetes mellitus type II.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 62, 124
The Compensation (Commonwealth Government Employees) Act 1971 sections 29, 39, 49
Commonwealth Employee's' Compensation Act 1930
CASES
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Treloar v Australian Telecommunication Commission(1990) 97 ALR 321
Woodbridge v Comcare (1994) 20 AAR 196
De La Cruz v Australian Postal Corporation (1997) 143 ALR 193
REASONS FOR DECISION
6 December 2002 Dr Campbell, Member
1. In this application Mr John Bolton ("the Applicant") seeks a review of the reconsideration decision dated 7 November 2001 made by the manager, reconsideration of the Military, Compensation and Rehabilitation Service ("the Respondent"). In this decision, the manager revoked earlier determinations dated 18 July 2000 and 5 May 2001 made by officers of the Respondent and affirmed the determination dated 26 October 1981 in which the Applicant's claim for "coronary artery disease and arterial hypertension leading to ischaemic heart disease" was declined.
2. A hearing was held before the Tribunal in Sydney on 19 September 2002 at which the Applicant was represented by Mr Latimore, an advocate from the Returned Serviceman's League. The Respondent was represented by Mr Johnson of Counsel. The Applicant and Dr Slezak presented oral evidence, while Professor O'Rourke gave evidence by telephone.
3. The following material was placed into evidence before the Tribunal:
Exhibit Document Date
T1 - T61 Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
A1 Applicant's Statement of Facts and Contentions 17 September 2002
A2 Medical Report of Dr P Slezak 25 March 2002
A3 Employment history of Mr John Bolton
A4 Affidavit of Dr P Slezak 9 August 2002
R1 Respondent's Statement of Facts and Contentions 17 September 2002
R2 Medical Report of Professor M O'Rourke 24 April 2002
issues
4. The relevant issues in this mater are whether:
(a) the Applicant's coronary artery disease and arterial hypertension leading to ischaemic heart disease were caused, aggravated or materially contributed by his employment with the Department of Defence; and
(b) whether the Applicant is entitled to compensation for his condition pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (transitional provisions), the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"), and/or the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act").
legislation
5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") and in particular sections 24, 27, 124.
background
6. On 21 May 1953 the Applicant was involved in an accident while flying an aircraft on duty. He suffered extensive injuries and after treatment and rehabilitation was discharged from the Navy with a spastic paralysis left upper limb, spastic paralysis left leg, ununited fracture right carpal scaphoid and right ulnar styloid, crush fracture 2nd lumbar vertebrae, and injury to intervertebral disc L1 - L2 (T5). The Applicant was discharged from the Navy on 30 March 1954 with a composite assessment of his disabilities being determined at 100 per cent.
7. The Applicant suffered further sequelae arising out of his original injuries over time namely:
1961 - inversion deformity left foot
1964 - urinary difficulties following a fall onto his sacrum
1971 - fracture of left femur following a fall
1996 - injury to right shoulder following a fall
1999 - mild osteoarthritis of the Talo-navicular joint
8. In 1980 the Applicant submitted a claim under the 1971 Act, nominating that hypertension and heart attack arose as a result of stress caused by injuries in the aircraft accident (T18). In a medical report, dated 18 August 1980 Dr Slezak, a Consultant Physician, stated that the Applicant had first seen him in January 1979 and told him of an elevated blood pressure in 1976, together with a month's history of heaviness and tightness in the chest, which were considered typical of angina. Dr Slezak further described the Applicant suffering from an infarction in 1980 at a time shortly after undergoing a angiography which demonstrated severe coronary artery disease, for which he underwent coronary artery bypass on 24 April 1980. Dr Slezak also stated that the Applicant's recovery following surgery was uneventful and that at that time the Applicant was not receiving any antihypertensive therapy as his blood pressure was normal (T20).
9. Dr Slezak in his report of 18 August 1980 summarised his findings as follows (T20):
" In summary there has been documented evidence of severe coronary artery disease. I certainly cannot support a claim that the 'blood pressure' and heart attack have arisen as a result of stress caused by injuries in the naval aircraft accident which occurred in 1954."
On 12 September 1980, Dr Veress, a General Practitioner, detailed in a report the Applicant's clinical history between July 1975 and September 1980 as documented in the practice records. The report included details of the Applicant's family history (father died of a stroke age 73, mother from emphysema, and a brother aged 42 from a coronary occlusion), a recording of raised blood pressures in 1975, 1976, 1977, 1978 and normotensive thereafter. Dr Veress stated (T22):
" After due consideration we formed the opinion that the above date do not lend sufficient support to Mr Bolton's claim that his high blood pressure and heart attack have arisen as a result of stress caused by injuries in naval aircraft accident in 1957."
11. On 2 July 1981, Dr Hall, a Consultant Cardiologist, detailed the following conclusion as a result of his examination of the Applicant (T24):
"Mr Bolton suffers from coronary artery disease as he had a myocardial infarct in March, 1980. He had apparently been having symptoms of angina since January, 1979 and had been treated for hypertension since 1976 Coronary angiograms revealed 90% stenosis of the proximal left anterior descending artery, 100% obstruction of a high diagonal branch and a 75% stenosis of a branch of this artery. Coronary artery by-pass grafting was carried out on 24th April, 1980. Since then Mr Bolton seems to have done reasonably well. There is no doubt that he has suffered a lot of emotional stress and strain following the aircraft accident in 1953. However, there is a history of coronary artery disease in the family and also a history of hypertension. These are well known factors in the aetiology of coronary artery disease, whereas the role of stress is a controversial one. It would appear, therefore that stress could not be regarded as a primary causative factor and it is difficult to relate it to his condition at all in view of the fact that his coronary symptoms began so many years after his accident and the psychic trauma associated with it."
12. On 26 October 1981, the Respondent issued a determination concluding that the conditions of coronary artery disease and arterial hypertension leading to ischaemic heart disease suffered by the Applicant are due to the natural progression of a pre-existing or underlying condition and are not the result of personal injury or the aggravation or recurrence of a pre-existing injury, arising out of or in the course of his employment, nor due to the nature of his employment, nor are they the result of personal injury arising out of or in the course of his employment, and nor are they the result of the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor (T25).
13. On 17 April 1982, the Applicant sought an extension of time to appeal the determination of 26 October 1981 to the Administrative Appeals Tribunal (T26). As part of the preparation for the appeal the Respondent sought further advice from Dr Hall, having provided him with a variety of reports received from the Defence Force Retirement Fund (presumably the reports contained within T61), and the report of Dr Veress.
14. As a consequence Dr Hall in a report dated 19 October 1983 (T28) concluded that:
(a) the Applicant would have experienced life stress to a higher degree than someone not so disabled;
(b) that such heightened life stress can cause, aggravate or accelerate hypertension;
(c) that the Applicant was not significantly hypertensive between 1953 and 1980;
(d) that the Applicant's life stress may have led to labile blood pressure;
(e) that hypertension did not cause or aggravate or accelerate his heart disease; and
(f) that the incapacitating heart disease suffered by the Applicant is not capable of being described as the sequelae to the physical injuries and disabilities suffered by the Applicant in 1953.
15. On 2 November 1983 the Administrative Appeals Tribunal determined that the Applicant's application be removed from the list of matters for hearing by the Tribunal (T29).
16. On 10 June 1999 the Applicant sought reassessment of his entitlements for disabilities incurred in an aircraft accident while serving with the Royal Australian Navy. Included in the request for the reassessment process was "treatment for a heart condition arising from hypertension aggravated by mental and physical stress arising from my disabilities…" (T35). In support of his claim in relation to the heart condition, the Applicant stated that in his opinion Dr Hall erred on a number of points. These included:
· that he stated that my father died from a stroke when he in fact died from angina;
· that he failed to mention that my father was a heavy smoker all his life;
· that his brother died from some coronary disease but he was a heavy smoker and drinker and was prone to obesity;
· to his knowledge none of my family were under treatment for hypertension as claimed by Dr Hall; and
· that the statement that there is a history of hypertension in my family cannot be sustained (PT35).
17. The Applicant, in support of his request for reassessment of his heart condition included a report from Dr Slezak dated 10 June 1983, in which he stated (PT35):
"…2. I do not consider the hypertension to have been caused by the physical and or emotional stress arising from the aircraft accident in 1953. Hypertension was mentioned for the first time some 20 years after the above accident and was attributed at that time to stress at work.
3. I would accept that the hypertension might have been aggravated by physical or emotional stress arising as a result of that accident.
4. I do not consider the coronary artery disease which resulted in coronary bypass surgery in April 1980 to have been as a direct result of the hypertension suffered earlier.
…
6. There can be little doubt that emotional and or physical stress occurred in the aftermath of the aircraft accident in 1953.
7….As mentioned above the cause or causes of hypertension in this instances may be multi- factorial not only due to 'stress' of the previous accident but have also been attributed to stress at work. At no time however has there been evidence of poorly controlled blood pressure with medication."
18. In a report dated 21 June 1983 Dr McLachlan, a General Practitioner, noted amongst other pertinent comments that weight control is an increased problem in patient's with hemiplegia. He concluded (PT35):
" In these circumstance it seems that Mr Bolton has had a considerable greater burden physically and emotionally than most people on that he would have had to carry had he not had the accident which produced his hemiplegia."
19. On 7 February 2000 the Applicant, while forwarding his election under section 45 of the 1988 Act in relation to various physical sequelae, reminded the Respondent that the issue of his heart condition had yet to be subject of a review (T48).
20. On 18 July 2000 the Respondent wrote to the Applicant determining that the Applicant's coronary artery disease had been aggravated, with his military service being a contributing factor. The Respondent also advised that while liability for the condition has been accepted, payment of money is not automatic (T50).
21. As part of the assessment process the Respondent requested a further report from Dr Slezak (T53). In his report dated 13 February 2001 Dr Slezak made the following opinions (T54):
· the appropriate diagnosis is coronary artery disease/ischaemic cardiomyopathy;
· type II diabetes mellitus diagnosed February 2000; and
· that coronary artery disease is a progressive condition and that he did not consider the Applicant's impairment in relation to the cardiac condition to be permanent.
22. In further correspondence dated 17 April 2001, Dr Slezak stated that "…it would be reasonable to conclude that Mr Bolton suffered a degree of impairment to his heart prior to 1 December 1988" (T57).
23. On 5 May 2001 the Respondent determined that no lump sum payment was payable to the Applicant, because his heart condition had become permanent prior to 1 December 1988 and pursuant to the transitional provision of the 1988 Act, a lump sum could only be paid if such a payment were available under section 39 of the 1971 Act (T58).
24. On 10 May 2001, the Applicant requested consideration of his heart condition pursuant to sections 29 and 49 of the 1971 Act, which continues in the 1988 Act (make up pay if a disease, aggravated by compensable injuries, leads to total or partial incapacity (T59).
25. On 7 November 2001 the Respondent, having decided to undertake a reconsideration of own motion pursuant to section 62(1) of the 1988 Act of the decision dated 18 July 2000, made the following determinations (T60):
· revoked the determinations dated 5 May 2001 and 18 July 2000 on the basis that the earlier determination of 26 October 1981 still stands;
· affirmed the determination of 26 October 1981 declining the claim for "coronary artery disease and arterial hypertension leading to ischaemic heart disease".
applicant's evidence
26. The Applicant told the Tribunal of his aircraft accident in 1953 with resultant left-sided paralysis and a lack of full movement in his right wrist. The Applicant stated that he had difficulty in concentration and found it difficult to study after the accident and that he received no formal program of rehabilitation from the Navy.
27. The Applicant stated that as a result of his injuries he has suffered physical and emotional stress in his endeavour to cope with the normal activities of living and working as a disabled person. The Applicant spoke of his wife and four children and his inability to participate fully in the up bringing of his children, and that this caused him great stress. The Applicant stated that he walks with difficulty, has suffered numerous falls in the past, some of, which have been associated with serious injury, such as fractured femur, torn rotator cuff and fractured fingers. The Applicant detailed that his balance is not so good these days and that he now uses a stick. In the past the Applicant indicated that he use to play a game of social tennis with emphasis on returning the ball when in reach.
28. The Applicant expanded on his employment history detailed in Exhibit A3 and told the Tribunal of his early post accident employment history, where he worked as a clerk both in England and Australia, and later in a clerical role as an O &M officer until 1965. In 1965 the Applicant stated he worked briefly helping to install a computer system prior to becoming an administration and depot manager at various places until 1979. Further employment in administrative and managerial activities occurred until 1984 when on account of his disabilities, he became self employed in clerical consulting two days a week until 1998, at which time he ceased. The Applicant also detailed that between 1955 and 1974 he was absent from work for 50.5 weeks on account of his disabilities and that throughout his post service career he has been unemployed for 26.5 months between 1954 and 1980 (Exh.A3).
29. The Applicant stated that he was told his blood pressure was higher than normal in the mid seventies. The Applicant also informed the Tribunal that his father died at age 72 of angina, having been a heavy smoker and having had stomach troubles all his life (peptic ulcer); that his mother died at age 73 with emphysema, having been a heavy smoker; and that his brother died aged 42, being a heavy smoker, a drinker and overweight.
30. In response to question from Counsel for the Respondent, the Applicant stated that hypertension was first recorded in 1973; that all absences up to 1974 were prior to symptoms arising from his heart condition; that he had no cardiac symptoms during his period of working as a general manager for a transport company, after his return to work from bypass surgery in May 1980; and that he was using a stick all the time during the seventies.
evidence of dr p slezak
31. Dr Slezak, a Consultant Physician, told the Tribunal that his work was that of a general physician with a third of his practice centred around haematology, a third around cardiology and third around general medicine, with his post graduate training, which he finished in 1972, being focused on haematology and cardiology. Dr Slezak stated that he first examined the Applicant in January 1979 and has further consultations some two to three times a year since that time.
32. During his presentation of his oral evidence, Dr Slezak stated that the Applicant suffered from symptomatic coronary artery disease, hypertension and type II diabetes. Dr Slezak stated that he had observed that the Applicant had a tendency to labile hypertension, and that uncontrolled hypertension, while having no observable effect in the short to medium term, in the longer term increased the risk of heart attack, stroke and renal disease.
33. In a report dated 25 March 2002 Dr Slezak noted that the Applicant had a documented weight of 64.1 kg on 15 December 1953 and 85.5 kg on 22 October 1973, together with a blood pressure of 150/95 on the later date. In January 1979, Dr Slezak stated that the Applicant's weight was 77.3 kg and his blood pressure was 140/90. Dr Slezak opined in his report of 25 March 2002 (Exhibit A2):
"I would agree however that it is more likely than not that his reduced level of exercise and the weight gain following the service-caused accident may have been a causative factor in the development (or aggravation) of his hypertension and coronary artery disease."
34. In further oral evidence Dr Slezak stated that regular exercise is beneficial as an adjunct to weight control, and that exercise has a beneficial effect on opening up microcirculation
35. In response to questions during cross examination; Dr Slezak made the following comments:
· Confirmed his opinions expressed in his report of 10 June 1983 (T35):
(i) that the hypertension was not caused by the physical and emotional stress arising from the aircraft accident in 1953;
(ii) that the hypertension may have been aggravated by physical or emotional stress arising as a consequence of that accident, and in so stating indicated that the word 'might' in his report equates to 'may';
(iii) that the coronary artery disease was not a direct result of the hypertension suffered earlier and that there was no evidence of poorly controlled blood pressure with medication up to that time (June 1983); and
(iv) that the effect on any stress is temporary, and that the family history may be a relevant factor in causation of hypertension and coronary artery disease.
· Summarised his opinions expressed in his report of 18 August 1980 (T20) in the following manner:
(i) the blood pressure was controlled and normalised with medication and hence not a factor in 1980 in the development of his coronary artery disease at that time;
(ii) stress was not contributing significantly to either the hypertension or the coronary artery disease; and
(iii) hypertension was not contributing to the heart disease.
· that diabetes type II was diagnosed in March 2000.
· that exercise was a variable issue.
36. In response to further questioning during re examination, Dr Slezak, stated that while the Applicant was unable to do more vigorous exercise, the Applicant was not overweight and that the lack of exercise had a minimal effect in relation to the elevation of blood pressure; to the causation of hypertension and does not contribute to the development of occlusive coronary artery disease.
professor O'ROURKE
37. In a report dated 24 April 2002 (Exhibit R2), Professor O'Rourke, a Consultant Cardiologist, detailed his opinions to specific questions raised following his examination of the Applicant on 19 April 2002:
"a) From what conditions does Mr.Bolton presently suffer? When do you consider that these conditions first occurred?
Ans. Mr.Bolton suffers from left hemiplegia caused by an aircraft accident in 1953. Subsequent to this he has suffered multiple falls and other injuries which have further disabled him. Nonetheless he has accomplished a lot through his own determination and his family's support. Mr.Bolton has hypertension, presently imperfectly controlled. Mr.Bolton's elevated blood pressure was first noted in the early 1970s and has continued despite control of weight and introduction of medical therapy. Mr.Bolton's blood pressure was adequately controlled in 1979 when he first saw Dr.Peter Slezak but while he was receiving minimal treatment and after weight loss of some 8kg in the previous six years. Hypertension has progressed as a problem since 1979. Mr.Bolton also suffers from ischaemic heart disease, with first symptoms apparent in 1979. He has required two coronary artery bypass surgical procedures for this and one angioplasty procedure. Mr.Bolton has evidence of hypertensive cardiac disease with an episode of atrial fibrillation in 1998 probably attributable to this.
b) On the balance of probabilities, has there been any material contribution to or aggravation of any of these conditions by the injuries (and consequences of those injuries) sustained in 1953?
Ans. I believe that there has been no material contribution to or aggravation of any of the above conditions by the injuries and consequences of injuries sustained in 1953. Mr.Bolton did have minor increase in arterial pressure in the early 1970s and was treated for this, but treatment continued to be necessary despite reduction in weight to ideal. Hypertension has progressed since 1978 despite maintenance of weight around 76-77kg. (Mr.Bolton is approximately 5'10" in height).
c) Do you consider that any heart condition is permanent (ie likely to continue indefinitely)? If so, would it have been permanent by 1 December 1988?
Ans. Yes I do believe that the heart condition is permanent and manifest as hypertensive left ventricular hypertrophy with diastolic left ventricular dysfunction and coronary atherosclerosis. The coronary atherosclerosis first became evident in 1978 and required surgical treatment in 1980, with further surgical and medical treatment required subsequently.
38. In oral evidence, Professor O'Rourke expressed the following opinions:
that the Applicant's plane crash and injuries arising out of that accident made no significant contribution to the development of the Applicant's ischaemic heart disease;
that on the balance of probabilities there was no material contribution by injuries or sequelae of such injuries arising out of the 1953 accident in the development of hypertension and hypertensive heart disease;
that the development of hypertension and the continuance of his hypertension was not connected to his weight;
that the Applicant's ischaemic heart disease was not connected to his weight;
that there is no convincing scientific evidence which indicates that long term stress is related to the development of hypertension; and
that in his opinion, as a consequence of his examination of 19 April 2002, the Applicant was in need of more treatment to adequately control his blood pressure.
submissions
39. Mr Latimore submitted that the Applicant's conditions of hypertension, coronary artery disease and ischaemic heart condition were causally linked to injuries or their sequelae arising out of his aircraft accident in 1953. In this regard Mr Latimore contended that the Applicant's injuries prevented him from undertaking strenuous exercise which led to a 30 per cent increase in weight which in turn either caused and/or aggravated the nominated conditions. Further it was contended that the stress, experienced by the Applicant and upon which all the medical evidence in this matter points to as having arisen primarily from the Applicant coping with his disabilities and for coping with his work, caused or materially contributed to causation or aggravation of the nominated conditions.
40. In making such contentions Mr Latimore relied upon the facts of a 35 per cent increase in the Applicant's weight between 1953 and 1976, and the evidence of the Applicant in which he details stress being experienced in situations where he was having difficulty in coping with the activities of a growing family, with particular physical endeavours; with emotional and financial situations - the stress arising from the limitation of his physical abilities as a consequence of his work related accident. Mr Latimore also relied on the letter of Dr McLachlan of 21 June 1983, and the report of Dr Slezak of 10 June 1983, to support the contention that the Applicant experienced considerably more stress as a consequence of his accident, other then he would have experienced if he did not have the accident. Mr Latimore also relied upon the report of Dr Slezak of 10 June 1983 to support the contention that stress and weight gain did aggravate the nominated conditions.
41. Mr Latimore also contended that the decision under review was the consequence of the Respondent's own motion to reconsider the determination dated 18 July 2000 pursuant to section 62(1) of the 1988 Act. Further Mr Latimore contended that the evidence demonstrates that there had not been any change in the Applicant's circumstances at the time the Respondent undertook an own motion review. In this regard Mr Latimore relied upon the decision in ReQuinn and Australian Postal Corporation (1992) 15 AAR 519 to suggest there had been no change in circumstances and hence the Respondent had no authority to conduct an 'own motion reconsideration'.
respondent
42. Counsel for the Respondent, in noting that the diseases nominated in this matter arose during the currency of the 1971 Act contended that the requirements nominated within the 1971 Act require the Applicant to demonstrate that the Applicant's employment made a contribution to the contraction, aggravation, acceleration or recurrence of the disease. The Respondent relied upon the matter of Treloar v Australian Telecommunication Commission (1990) 97 ALR 321 to explain the words "contributing factor " and "material".
43. Counsel, in noting that the contributing factors in this matter were chronic stress and the sequelae of a lack of exercise, contended that Drs Slezak, Hall and O'Rourke all concluded that the Applicant's hypertension, coronary artery disease and ischaemic heart disease were not materially contributed to by his employment. Further the report of Dr McLachlan did not carry the matter any further.
44. In particular the Respondent pointed to the medical evidence as detailed by the following doctors:
(1) Dr Slezak - weight, exercise level and hypertension were not contributing factors to his heart condition
·that his weight was within acceptable limits for his height and that neither weight and/or lack of exercise made a material contribution to his hypertension.
·that stress may have aggravated his hypertension.
·that at the relevant time the Applicant's hypertension was controlled and hypertension did not contribute in a material way to his heart condition.
·that the Applicant's heart condition was not related either directly or indirectly to sequelae of the 1953 accident.
(2) Professor O'Rourke
·employment made no material contribution to the Applicant's hypertension or heart condition.
·that hypertension, if uncontrolled for a long time, would be a contributing factor to the coronary artery disease.
·the heart condition was constitutional, with evidence that other family members had died from stroke, and heart conditions.
·the Applicant's hypertension was not related to either his weight or lack of exercise.
·that there is speculation as to whether exercise undertaken by the Applicant was more or less.
·
(3) Dr Hall
·the Applicant's conditions of coronary artery disease, hypertension and ischaemic heart conditions were not due to the accident of 1953, nor were they an aggravation of a pre existing condition, nor were they caused by or aggravated, accelerated or a recurrence of disease due to the nature of employment.
·the Applicant's conditions were the natural progression of some pre existing or underlying condition.
·the Applicant would have experienced life stress to a higher degree than someone not so disabled.
·that heightened life stress can cause or aggravate or accelerate hypertension, but in the Applicant's circumstances, in which he was not significantly hypertensive between 1953 and 1980, it may have led to labile blood pressure.
·the Applicant's hypertension did not cause aggravate or accelerate his heart disease.
·the Applicant's heart condition cannot be described as the sequelae of the physical injuries and disabilities suffered in 1953 (T27, and T28).
consideration and finding
45. In addressing the issues raised in this matter, the Tribunal notes the evidence as given by the Applicant in relation to the circumstances of the injury, the nature of the injuries received, the subsequent injuries arising as sequelae to the original injuries, the circumstances of his employment over time, including difficulties experienced in employment, personal and domestic activities as a consequence of his work caused disabilities. These included spastic paralysis left upper limb and left leg, ununited fracture right carpal scaphoid and right ulnar styloid, crush fracture 2nd lumbar vertebral and injury to L1 - L2 intervertebral disc, inversion deformity left foot, urinary difficulties, fracture of left femur, injury to right shoulder and mild osteoarthritis of the Talo -navicular joint.
46. The Tribunal further observes that all the doctors when reporting in this matter conclude that the Applicant would have experienced life stress to a higher degree than someone not so disabled, and that this higher degree of life stress was attributable to injuries and/or their sequelae, that were caused by and/or arose out of the work related accident in 1953. The Tribunal concurs in such a conclusion and so finds.
47. Prior to further consideration of the factual issues in this matter, the Tribunal would seek to address the procedural submission of the Applicant - namely that pursuant to section 62(1) of the 1988 Act, the Respondent's own motion reconsideration was deficient in that there was an absence of new material necessary to initiate such an action(Re Quinn (supra). The Tribunal observes that "the own motion" reconsideration by the Respondent of 7 November 2001 affirmed the earlier determination of 26 October 1981 which declined the Applicant's claim for coronary artery disease and arterial hypertension leading to ischaemic heart disease. In so doing the Respondent revoked the determinations dated 5 May 2001 and 18 July 2000.
48. The Tribunal notes that the Manager Reconsideration, in so finding on 7 November 2001 considered the following matters to be relevant to his decision:
the determination of 26 October 1981 still stands, as nothing had been, in effect, done to disturb that determination, as the Appeal to the Administrative Appeals Tribunal in 1983 had been discontinued and no new application had been lodged. At best such a determination could be considered a reviewable decision on own motion;
that the determination of 18 July 2000 is invalid. Further the delegate who made that determination did not have the power to make that reviewable decision and therefore the determination cannot be treated as a reviewable decision;
that where liability has previously been declined pursuant to section 14 of the 1988 Act for the same injury an employer is not entitled to compensation for permanent impairment.
49. The Tribunal notes the following:
in Woodbridge v Comcare (1994) 20 AAR 196 Hill J held that the power nominated in section 62 of the 1988 Act permits the review of a reconsideration decision irrespective of whether or not it was made within the power delegated to the decision maker involved;
in De La Cruz v Australian Postal Corporation (1997) 143 ALR 193, the Court held that the determining authority had the power to reconsider on its own motion an earlier determination, and in so doing revoke determinations made under an earlier reconsideration, and restoring determinations made within the earlier determination.
50. In the light of the stated authorities the Tribunal concludes that the reconsideration determination made by the Respondent on 7 November 2001 is an exercise of power by the Respondent pursuant to section 62(1)(a) of the 1988 Act; that such a reconsideration on its own motion was a valid exercise of the power in that there were matters which had not been appropriately considered by the decision maker on 18 July 2000, namely the prior history of the application and the absence of the necessary delegation of power to the delegate who made the determination on 18July 2000.
51. Further the Tribunal concludes that the decision under review, namely the reconsideration decision of 7 November 2001, being a decision that reviewed the determination of 26 October 1981, is a decision properly before the Tribunal, and as such will proceed to deal with the matter on its merits.
52. In moving to a consideration of the further issues which require determination in this matter the Tribunal having already concluded that the Applicant had experienced a higher degree of life stress which was attributable to injuries and/or their sequelae caused by or arose out of his work related accident in 1953, observes the following:
that particular to the Applicant's claim are the concepts that stress and/or lack of exercise leading to weight gain arising from work related injuries and/or their sequelae as a consequence of his work related accident in 1953;
that such circumstances of stress, lack of exercise and weight gain have contributed to the development of the Applicant's hypertension, coronary artery disease and ischaemic heart disease; and
that such circumstances of stress, lack of exercise and weight gain have contributed to the aggravation, acceleration or recurrence of the Applicant's hypertension, coronary artery disease and ischaemic heart disease.
53. The Tribunal observes that all the clinicians in their various reports nominate the Applicant as suffering from amongst other injuries and disabilities, hypertension, coronary artery disease and ischaemic heart disease. The Tribunal concurs and finds that the Applicant suffers such diseases. The Tribunal, by way of noting, observes that Professor O'Rourke considers that the Applicant's hypertension at the time of his report in 2002 was not well controlled.
54. In addressing the issues of lack of exercise and weight gain, there is much evidence to suggest that the Applicant was restricted in the range of physical activities that he could undertake as a result of his work related disabilities. Nevertheless it was also noted that the Applicant was able to move with some difficulty in the normal course of daily living, while requiring some assistance in performing particular tasks and to playa relatively stationary game of social terms.
55. The Tribunal further notes the documentary evidence that the Applicant's weight gradually increased from 141lbs in 1953 to 190 lbs. in June 1976 and that thereafter the Applicant's weight profile was managed as part of the therapy for raised blood pressure first documented in October 1973 (DFRBF Records) in 1975,1976, 1977 and 1978 (Dr Veress' records), with blood pressure controlled thereafter (Dr Slezak, Dr Veress, Dr Hall) until 2002 when Professor O'Rourke reported an elevated blood pressure. The Tribunal notes that a coronary artery bypass was first undertaken in April 1980.
56. The Tribunal, in addressing the issue of whether the Applicant's work related injuries and/or their sequelae contributed to either the causation of, the aggravation or acceleration of the diseases of hypertension, coronary artery disease and ischaemic heart disease suffered by the Applicant at the relevant time in 1980, notes the comments in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 where at p328 the Full Court stated:
" The use of the word 'material' in conjunction with the words 'contributing factor' in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
57. In reviewing the medical evidence detailed earlier in this decision, the Tribunal makes the following observations:
(a) while all the doctors agree that the Applicant suffered extra stress as a consequence of his work related difficulties, only Dr Slezak is of the opinion that stress, while not causing hypertension may (a possibility) have aggravated the hypertension. Dr Hall considered that the Applicant was not significantly hypertensive between 1953 and 1980 and that stress may have led to labile blood pressure. Professor O'Rourke, in stating that there is no convincing scientific evidence which indicates that long term stress is related to the development of hypertension, concluded that on the balance of probabilities, that there has been no material contribution to or aggravation of hypertension by the injuries and consequences of injuries sustained in 1953.
(b) In relation to the issue of inability to fully exercise and weight gain, Dr Slezak, in oral evidence stated that while there was weight gain by the Applicant , the Applicant was not overweight and that the lack of exercise may have a minimal effect in relation to causation and elevation of blood pressure and does not contribute to causation and or aggravation of coronary artery disease. Dr Hall considered that the Applicant's condition of coronary artery disease, hypertension and ischaemic heart disease were not due to the accident of 1953, nor were they caused by or aggravated, accelerated or a recurrence of disease due to the nature of his employment. Professor O'Rourke was more specific when he stated that the Applicant's hypertension was neither related to his lack of exercise or his weight either by way of causation and/or aggravation.
(c) In relation to the inter relationships, if any, between the three diseases, Dr Slezak concluded that the coronary artery disease and the ischaemic heart disease were neither caused or aggravated by the Applicant's hypertension at the relevant time. Dr Hall considered that the Applicant's hypertension did not cause, aggravate or accelerate his heart disease. Professor O'Rourke concluded that there has been no material contribution to or aggravation of any of the nominated diseases, namely hypertension, coronary artery disease and ischaemic heart disease by the injuries and consequences of injuries sustained in the work related accident in 1953.
58. The Tribunal has been particular in assessing the evidence and opinions of the three consultants. The Tribunal while noting that Dr Slezak opines that stress, lack of exercise and weight gain may have made a contribution to the aggravation of the three nominated diseases concludes that such an opinion raises the issue of possibility. The other two clinicians Dr O'Rourke and Dr Hall are clearly of the view that the Applicant's injuries and consequence of those injuries arising out of his work related accident in 1953 made no material contribution to or aggravation of the nominated diseases in question in this matter.
59. As a consequence of this analysis, the Tribunal finds that on the balance of probabilities that there has been no material contribution to the causation or aggravation of any of the nominated conditions, namely hypertension, coronary artery disease and ischaemic heart disease by the injuries and consequences of injuries sustained by the Applicant as a result of a work related accident in 1953.
determination
60. The Tribunal determines that the decision under review be affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: .....................................................................................
AssociateDate/s of Hearing 19 September 2002
Date of Decision 6 December 2002
Counsel for the Applicant
Solicitor for the Applicant Tony Latimore
Counsel for the Respondent Geoffrey Johnson
Solicitor for the Respondent Glen Granwell
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