Catanzariti and Comcare

[2004] AATA 1006

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2003/124

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ROSS CATANZARITI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member

Date24 September 2004

PlaceCanberra

Decision The decision of the respondent made on 21 March 2004 is affirmed.

..............................................

Senior Member

CATCHWORDS

COMPENSATION – whether ectopic heartbeat an “ailment” – whether employment materially contributed to ectopic heartbeat –  whether employment materially contributed to underlying condition of atrial fibrillation – whether ectopic heartbeat and hypertension  caused by accepted injury of aggravation of a pre-existing chronic anxiety state – decision affirmed

Safety Rehabilitation and Compensation Act 1998 (Cth) – s4

Comcare v Mooi (1996) 137 ALR 690

Casarotto v Australia Postal Commission (1989) 86 ALR 399

REASONS FOR DECISION

24 September 2004	Mr J.W. Constance, Senior Member
Dr M.D. Miller, Member

1.      On 18 November 1983, Comcare determined that Mr Catanzariti had suffered an aggravation of a pre-existing chronic anxiety state to which his employment by the Australian Government Publishing Service was a contributing factor.  On 20 May 2002 Mr Catanzariti requested an extension of the accepted condition to include heart palpitations and hypertension.

2.      By decision of 21 March 2003 Comcare denied liability for these conditions.  Mr Catanzariti has applied to the Tribunal to review  this decision.

3.      The Tribunal has decided to affirm Comcare's decision of 21 March 2003.

FINDINGS OF FACT:

4.      In the following paragraphs, we set out our findings of material questions of fact and the evidence or other material on which those findings are based.  Where the findings are based on a document before the Tribunal, we note that document.

5.      Mr Catanzariti is 58 years old.  He commenced work as a bookbinder with the Australian Government Publishing Service on 29 April 1974 (documents T1, T2 and T12).

6.      On 5 July 1983, Mr Catanzariti reported to his employer that he suffered from an anxiety state, which was  brought about by many incidents at work over a period of approximately nine and a half years (T5).  On 18  November 1983, it was determined that Mr Catanzariti had contracted a disease, namely aggravation of a pre-existing chronic anxiety state, to which his employment was a contributing factor (T15). 

7.      Mr Catanzariti continues to suffer long term anxiety, contributed to by his employment, and the probability is that this situation will continue (report of Dr Knox 5/6/03,exhibit A3).

8.      Mr Catanzariti suffered four episodes of atrial fibrillation between 1978 and 1996.  There was no physical cause identified for the first episode.  There were further incidents of atrial fibrillation in 1981 and 1982, both of which occurred after Mr Catanzariti consumed some alcohol.  The last episode of atrial fibrillation occurred in 1996.  Mr Catanzariti gave evidence of these incidents and they were confirmed by the evidence of Mr Catanzariti's cardiologist, Dr Peak, and cardiologist, Dr French, who examined Mr Catanzariti on behalf of Comcare.

9.      Mr Catanzariti suffers from an underlying condition of a propensity to suffer atrial fibrillation which was not contributed to by his employment.  This condition can be triggered by one or more of a number of known factors, one of which is the consumption of alcohol (evidence of Dr Peak and Dr French).

10.     Mr Catanzariti also experiences a condition known as ectopic heartbeats.  This condition has existed at least since 1989 (report of Dr Dawson, 25 May 1989, T35) and Mr Catanzariti experiences these ectopic heartbeats several times every day (Mr Catanzariti’s evidence, confirmed by Dr Peak in his report of 28 March 2003, exhibit A1).

11.     When the underlying condition of atrial fibrillation is triggered, and also when he becomes aware of ectopic heartbeats, Mr Catanzariti experiences the symptom which he describes as “heart palpitations”.  “Palpitations” is a term referring to an awareness of the heartbeat and is a symptom rather than a diagnosis (Dr Peak’s evidence).

12.     At this point it should be noted that the decision under review was made in response to Mr Catanzariti’s request for an extension of the “accepted condition” to include “heart palpitations”, ie. a symptom rather than a disease.  However both parties presented their cases on the basis that the issue to be decided was whether the condition giving rise to the palpitations was a compensable condition.

13.     Mr Catanzariti also suffers from hypertension which commenced around 1990.  Dr Peak gave evidence of various measurements of Mr Catanzariti's blood pressure from 1979 onwards and said that in 1990 the level of Mr Catanzariti's blood pressure was "quietly building up".  We accept Dr Peak's evidence that, at this time, Mr Catanzariti was not put on any specific medication for hypertension as he was already on a beta blocker for the atrial fibrillation and that the beta blocker was also effective in controlling hypertension.

14.     As a result of his compensable condition Mr Catanzariti has been unable to work since 1984 and has been paid compensation for loss of earnings continuously since that time.

ISSUES FOR DETERMINATION:

15.     The facts, as found in the preceding paragraphs, do not appear to have been in issue between the parties.  The issues arising from these facts and requiring determination are:

(1) is the condition of a daily occurrence of ectopic heartbeat an “ailment” within the meaning set out in section 4 of the Safety, Rehabilitation and Compensation Act 1988;

(2)if so, was the ailment “contributed to in a material degree” by Mr Catanzariti’s employment and therefore an injury for which compensation is payable;

(3)was the underlying condition of atrial fibrillation (which caused the symptom of heart palpitations) an ailment “contributed to in a material degree” by Mr Catanzariti’s employment, and therefore an injury for which compensation is payable;

(4)      if not, is the triggering of episodes of atrial fibrillation (which cause the symptom of heart palpitations) an aggravation of an ailment “contributed to in a material degree” by Mr Catanzariti’s employment, and therefore an injury for which compensation is payable;

(5)      was the ailment of hypertension "contributed to in a material degree" by Mr Catanzariti's employment, and therefore an injury for which compensation is payable.

16. The relevant definitions in section 4 of the Act provide:

injury means (inter alia) ”a disease suffered by an employee”;

disease  means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any  such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

17. It is our view that the existence of ectopic heartbeats is not an ailment within the meaning of the definition in section 4. We make this finding on the basis of the evidence of Dr French that it is an “exceedingly” common condition and it is, in fact, Mr Catanzariti's chronic anxiety state which causes him to be unduly aware of these. We do not have sufficient evidence before us to decide that the occurrence of the episodes experienced by Mr Catanzariti (as distinct from his awareness of them) amounted to “a disturbance of the normal functions of body or mind” (Comcare v Mooi (1996) 137 ALR 690 at 696) so as to fall within the definition of “ailment” and thus “disease”.

18. Even if the condition of ectopic heartbeats suffered by Mr Catanzariti is correctly characterised as a "disease" within section 4 of the Act, there is no evidence which enables us to make a finding that either the ailment itself, or an aggravation of it, was contributed to in a material degree by Mr Catanzariti's employment.

19.     The obligation on the applicant to put evidence before the Tribunal was stated by Hill J. in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 413:

“Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim to a right for compensation………and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law.  Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision.”

20.     Whilst it is necessary that we consider the questions raised in paragraphs 16 and 17, Counsel for Mr Catanzariti did not address these issues.

21.     The issues which were in dispute, and which remain for determination, are whether:

(a)      the aggravation of the underlying atrial fibrillation condition, to the extent that it manifests itself in the symptom of heart palpitations; and

(b)      the condition of hypertension

were caused by Mr Catanzariti's condition of chronic anxiety.

22. We are of the view that both an underlying propensity to suffer atrial fibrillation and the condition of hypertension are ailments within the meaning of section 4, as both are “disorders” within the definition of “ailment”. The Oxford English Dictionary defines ”disorder” as “a disturbance of the bodily functions”. Counsel for Comcare did not contest either of these propositions.

23.     The applicant called his cardiologist, Dr Peak, and his general practitioner, Dr Bobba, who were both firmly of the view that Mr Catanzariti's anxiety state was a triggering factor in Mr Catanzariti's intermittent atrial fibrillation.  We took into account the witnesses’ oral evidence and their reports which were tendered.

24.     When asked as to his view as to the relationship (if any) between atrial fibrillation and anxiety state, Dr Peak expressed the opinion that when a person is incredibly anxious (as is Mr Catanzariti), he will be extremely aware of his heartbeat and much more likely to notice it.  On becoming more aware, more adrenalin will be produced and this, in turn, will increase the strength of the heartbeat.  Dr Peak said that adrenalin was part of the sympathetic drive and a stimulant to atrial fibrillation.

25.     Dr Peak’s view that the additional production of adrenalin could trigger atrial fibrillation was said by him to be based on his own experience, rather than on any reported studies.

26.     Dr Bobba gave evidence that Mr Catanzariti had been his patient for nearly seven years and that he sees him on an average of once every three months, although recently "quite often".  In his report of 20 March 2002 (T70), Dr Bobba expressed the opinion that Mr Catanzariti's heart problems were “absolutely” related to anxiety.

27.     The respondent called Dr French, a cardiologist who had examined Mr Catanzariti on behalf of Comcare for the purpose of these proceedings.  Dr French described atrial fibrillation as "an exceedingly common electrical disturbance of the heart", which increases with age.  It was Dr French's view that "it is highly unlikely, based upon firm scientific evidence, rather than anecdotal reports from doctors, that there is any relationship between his [Mr Catanzariti's] paroxysmal atrial fibrillation and work related problems" (report of Dr French 25/9/03, exhibit R14).

28.     Dr French referred to a position paper from the Australian Division of the National Heart Foundation in relation to "non-valvular atrial fibrillation and stroke prevention" and a consensus document released in 2001 and prepared by the American College of Cardiology, the American Heart Association and the European Society for Cardiology.  This document was entitled "Guidelines for the Management of Patients with Atrial Fibrillation".  According to Dr French, these two documents summarise the science underlying what is known about the disorder of atrial fibrillation.  It was Dr French's evidence that the state of scientific knowledge at present, supported by these documents, does not indicate any relationship between anxiety and paroxysmal atrial fibrillation.

29.     In Dr French's opinion, Mr Catanzariti will continue to have paroxysmal atrial fibrillation at irregular and unpredictable times (report 25/9/03, exhibit R14).

30.     Mr Catanzariti was examined by Dr Simon O'Connor, consultant cardiologist, on 5 September 2004.  This examination was arranged by Mr Catanzariti’s solicitors.  Dr O’Connor had also seen Mr Catanzariti in company with Dr Peak in April 1984, following Mr Catanzariti’s first attack of atrial fibrillation.  Dr O'Connor confirmed that Mr Catanzariti does have problems with heart palpitations and that atrial fibrillation had been recorded in the past.  Dr O'Connor's view is that Mr Catanzariti's atrial fibrillation is not related to his anxiety state (report 5/3/04, exhibit R19).  Although Dr O'Connor examined Mr Catanzariti and reported to his solicitors, Dr O'Connor's report was tendered by the respondent.  Mr Catanzariti's counsel did not seek to cross-examine Dr O'Connor on this report.  In these circumstances, Dr Connor's views provide some additional weight to those expressed by Dr French.

31.     Having considered all of the evidence before us, we are not satisfied on the balance of probabilities that Mr Catanzariti's underlying condition of a propensity to atrial fibrillation, or the instances when it has manifested itself in "attacks", have been caused or contributed to by Mr Catanzariti's anxiety state.  It follows that we are not satisfied that Mr Catanzariti's employment contributed to either a propensity to suffer from atrial fibrillation or to any of the attacks which Mr Catanzariti suffered as a result of that underlying propensity.

32.     We prefer the evidence of Dr French in this regard to that of Dr Peak and Dr Bobba.  Dr French was able to provide support for his views from the medical literature, whereas Dr Peak's views and those of Dr Bobba appear to be based only on their own experiences.  There was some further support for Dr French's views from Dr O'Connor.  Further, Dr Peak conceded in cross-examination that the views expressed in the papers referred to by Dr French represented "mainstream cardiology thinking on issues of causation".  He did not agree that Dr French's views were consistent with mainstream thinking.

33.     On the question of whether there was any relationship between Mr Catanzariti's hypertension and his anxiety state, Dr Peak was of the view that if a person does not relax, blood pressure will "creep up" and that he thought that this was the most likely explanation of Mr Catanzariti's condition.  Dr Peak was unable to refer to any research to prove a direct relationship, but said that as a relationship was difficult to measure, it is necessary to rely upon experience.  His evidence in relation to Mr Catanzariti was that "it is probable, over the years, that chronic anxiety led to the establishment of hypertension which needed to be treated".

34.     Dr Bobba gave evidence that, in his opinion, anxiety disorder can cause heightened blood pressure.

35.     Dr French was of the view that there is no scientific evidence to support a link between anxiety and hypertension.  In his report of 1 April 2004 (exhibit R16), Dr French stated that the "most up-to-date information available in Australia is through the National Heart Foundation document entitled, 'Hypertension and Management Guide for Doctors, 2004' and also an American publication, 'The Seventh Report of the Joint National Committee on Prevention, Detection, Evaluation and Treatment of High Blood Pressure, the JNC7 Report".  Dr French's evidence was that the second document lists nine identifiable causes of hypertension, none of which include chronic anxiety or chronic psychiatric conditions.  His evidence was that the Australian document also deals with hypertension in much the same way as the American document and no mention is made of chronic anxiety states or chronic psychiatric conditions as identifiable cause of hypertension.

36.     For the same reasons as stated in relation to atrial fibrillation (see paragraph 26), we prefer the evidence of Dr French and are not satisfied that, on the balance of probabilities, Mr Catanzariti's condition of hypertension was caused or contributed to, by his anxiety state and therefore we are not satisfied that it was contributed to by his employment.

DECISION:

37.     The decision of the respondent made on 21 March 2004 is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member and Dr M.D. Miller AO, Member

Signed:         .....................................................................................
  Chelsey Bell, Associate

Dates of Hearing   23 - 24 August 2004
Date of Decision    24 September 2004
Counsel for the Applicant           Mr W. Sharwood
Solicitor for the Applicant            Pamela Coward & Associates, Lawyers
Counsel for the Respondent       Mr D. O’Donovan
Solicitor for the Respondent       Dibbs Barker Gosling, Lawyers