De Giorgio and Comcare
[2005] AATA 522
•3 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 522
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/186
GENERAL ADMINISTRATIVE DIVISION
Re: CHARLIE DE GIORGIO
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 3 June 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision dated 18 December 2003 and substitutes a decision that:
1.liability for the applicant’s myocardial infarction of 13 April 2000 continues as the cessation of liability declared by the respondent on 1 October 2000 is a nullity;
2.the respondent, having accepted liability for the myocardial infarction of 13 April 2000, pay the applicant the accepted loss of income for the period 13 April 2000 to 16 July 2000 immediately. Non-payment to date has been due to an oversight by the respondent;
3.the respondent is liable for the applicant’s continuing costs of coronary angiography and in particular the costs of the examination of 6 March 2001;
4.the respondent is liable (under s 16 of the Safety, Rehabilitation and Compensation Act 1988) for the ongoing costs of the applicant’s medication and the general practitioner consultations necessary to obtain such medications; and
5.the respondent shall pay the applicant’s legal costs on a party to party basis.
(sgd) E.A. Shanahan
Member
COMPENSATION – accepted liability for acute myocardial infarction – liability for the cost of ongoing life long medication – injury simpliciter – treatment of a more generalised coronary artery disease – impairment from myocardial infarction – ongoing liability for medication and some medical treatment – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss14, 16, 19
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
REASONS FOR DECISION
3 June 2005 Miss E.A. Shanahan, Member
1. This is an application by Charlie De Giorgio for review of a decision of the respondent dated 18 December 2003, which declared that its liability to pay the applicant compensation ceased on 1 October 2000 and in particular that there was no ongoing liability to pay for the provision of life long medication as prescribed by the applicant’s treating medical practitioners. Prior to the hearing the respondent had advised the Tribunal that it would withdraw the claimed cessation of liability on the basis of the Federal Court decision in Australian Postal Corporation v Oudyn (2003) 73 ALD 659. Thus, the only issue before the Tribunal is the respondent’s liability to pay the cost of ongoing medication and attendances on medical practitioners in order to obtain such medication.
2. The applicant was represented by Mr M. Carey of counsel, instructed by Slater & Gordon solicitors. The respondent was represented by Ms A. McMahon of counsel instructed by Phillips Fox solicitors. The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. In addition, the applicant tendered the following documents:
Report by Dr R. Warren dated 29 July 2004, and
accompanied clinical notes Exhibit A1
Report by Professor P. Nestel dated 17 September 2004
Exhibit A2
Supplementary report by Professor Nestel
dated 2 November 2004 Exhibit A3
The respondent tendered the following documents:
Report by Associate Professor R. Harper dated 25 May 2004 Exhibit R1
Supplementary report from Associate Professor Harper
dated 11 November 2004 Exhibit R2
The applicant Mr De Giorgio, Professor Nestel and Associate Professor Harper (by telephone) gave oral evidence before the Tribunal by telephone.
BACKGROUND TO THE APPLICATION
3. Mr De Giorgio has been employed by the National Rail Corporation since 1993 and his official designation is that of a terminal operator. On 13 April 2000, following three weeks of prodromal symptomatology, he suffered a myocardial infarction due to total occlusion of his right coronary artery. This occurred at work, while he was performing his duty of uncoupling large transport carriages. He subsequently underwent urgent coronary angiography and stenting of the right main coronary artery which restored blood flow to the myocardium. He did however suffer a myocardial infarction, i.e. necrosis of the muscle of the heart wall. He made an excellent recovery. Liability was accepted by the respondent and workers compensation payments were approved from the date of the infarct, 13 April 2000, until 16 July 2000.
4. Due to an oversight on the part of the respondent workers' compensation payments have not been made to the applicant and this is to be remedied forthwith.
5. Following the episode of total right coronary occlusion with myocardial infarction, Mr De Giorgio was commenced on a medication regime known as saab, which is regarded as being mandatory treatment in this situation. SAAB consists of the use of a statin to reduce cholesterol/lipid levels, aspirin to reduce the likelihood of platelet aggregation and clot formation, an Ace inhibitor to reduce blood pressure and improve myocardial infarction, presumably by decreasing after load, and a beta‑blocker to reduce the incidence of ventricular arrhythmia arising from the area of necrotic (infarcted) muscle. Mr De Giorgio resumed work at the beginning of August 2000, originally on light duties but thereafter made a graduated return to his normal duties. He subsequently experienced recurrent chest and neck pain of mild severity and was further investigated with a thallium exercise test and coronary angiogram. The thallium exercise test revealed an abnormality in the myocardium, which is debated by the experts, and the coronary angiogram showed no hemodynamically significant blockage. (The Tribunal notes that a hemodynamically significant blockage is one that is 70 per cent or more of the lumen of the coronary artery.) Mr De Giorgio continues to suffer from mild chest pain radiating to the neck and some loss of confidence in his abilities to perform his usual activities. He continues to take Astrix, Betaloc, Ezetrol and Coversyl. His application to Comcare for funding of his medication and the necessary general practitioner appointments in order to obtain this medication was denied by Comcare on 18 December 2003, and is the subject of this application.
EVIDENCE BEFORE THE TRIBUNAL
6. In his evidence-in-chief Mr De Giorgio confirmed that he was 59 years old and had commenced working with National Railways on 15 May 1993. He was currently a terminal operator, which involves supervision of shunting of yard load containers which included unpinning the carriages from the train engine. Prior to his myocardial infarct, he had worked varying shifts between 5:00 a.m. and 10:00 p.m. and his job had involved the uncoupling of carriages. The carriage couplings frequently became stuck and required the exertion of considerable force to operate a lever to uncouple the carriages. These trains are between 800 and 1500 metres in length and at the time he suffered his myocardial infarction he was working on an 800 metre train. He said it took 25 to 60 minutes to uncouple the carriages and that the daily turn‑around in this area was 500 wagons per day.
7. Mr De Giorgio said that he had not had any heart problems until after 2000, he had never smoked, had indulged in squash and football when he was younger and that his weight had been steady for many years. He did not suffer from hypertension or diabetes and there was no family history of cardiac disease. He said that, in February 2000, he developed pain in the neck and shoulders radiating to his arms and chest which lasted up to one hour in duration. It occurred both at work and at home and, as a result, he consulted his general practitioner and was referred to a cardiologist who performed an exercise stress test which was said to be within normal limits. No treatment was advised. He continued to work after these investigations; but at 8:30 a.m. on 13 April 2000, while uncoupling train carriages, he developed more severe chest and neck pain. He stated he had completed one side of the train uncoupling and that every second wagon had been stuck requiring force to lever open the coupling. He managed to complete one side of the train uncoupling when he noted severe pain, dizziness and sweating. He subsequently went to a nearby workshop and sought help. He said he entered the first aid room following which an ambulance was called and he was transported to hospital. In transit he was, he said, given something to calm him down. On arrival at hospital he was transferred rapidly to the ward and underwent angiography and the placement of a stent in his right coronary artery. He described the effect of the stent as giving rise to a sudden resolution of the pain. Following the procedure, Dr Warren’s assistant spoke to him, explained what had occurred and apologised that his severe coronary artery disease had not been diagnosed in his tests in February. Mr De Giorgio spent one week in The Royal Melbourne Hospital and the Melbourne Private Hospital, returned home and rested, and was prescribed four medications which he was told that he would have to take for the rest of his life. From August 2000, he had returned to normal work and only had time off for check ups. His repeat angiogram in September 2000 had been performed on one of his days off.
8. As Mr De Giorgio had continued to experience chest and neck pain, his cardiologist recommended a Thallium exercise test which showed an area of abnormality, following which angiography was performed in March 2001. To Mr De Giorgio’s knowledge this showed no evidence of any blockage in his coronary artery system, much to his relief. He did admit that he had lost confidence in his own abilities and had difficulty handling any form of stress since the episode of myocardial infarction. Mr De Giorgio said that he continued to see his general practitioner every six months for blood test, such as, cholesterol levels and lipids, and for the purpose of prescribing his medications.
9. In answer to Ms McMahon’s questions Mr De Giorgio confirmed that he had chest and neck pain prior to the myocardial infarction on 13 April 2000, but as far as he knew his blood pressure had been normal and to his knowledge 120 systolic on 80 diastolic. He confirmed that, despite Associate Professor Harper’s report, he did suffer from chest pain when stressed and he indicated that this was in the left precordial area. Once he had been told his arteries were clear in March 2001, his pain was less and he felt much less anxious. Mr De Giorgio agreed that, at the time of his myocardial infarction, his serum cholesterol was 6.3 (slightly elevated) and was now less than 4, having changed his diet and taken the prescribed medication.
10. The Tribunal asked Mr De Giorgio how frequently his chest pain occurred to which he replied approximately once per month. He denied that there was any radiation to his arms since the myocardial infarction. Ms McMahon asked when these attacks of chest pain occurred to which Mr De Giorgio replied it was when he was under pressure or any form of stress and usually occurred at work.
Professor Paul Nestel
11. Professor Nestel had provided two reports (Exhibits A2 and A3). In his evidence-in-chief he adopted those reports as being true and correct in all their details. Professor Nestel was asked to describe the physiological events of a heart attack and its effects in relation to Mr De Giorgio. He said Mr De Giorgio had experienced three weeks of premonitory symptoms leading eventually to an acute coronary syndrome. The physical activity at work had led to the rupture of the right coronary artery plaque, following which a clot had formed in relation to the plaque, giving rise to right coronary artery obstruction and reduced blood supply to the myocardium with death of heart muscle. This obstruction had been quickly cleared by Dr Warren inserting a coronary artery stent, leaving only a modest amount of damage which would heal with scar tissue. Professor Nestel described such effects of myocardial necrosis and scarring which were dependent on size. If there was a large area of scarred myocardium this could lead to cardiac failure; but if the area was small in volume it could only occasionally lead to heart failure but left a focus of abnormal tissue that could result in rhythm abnormalities. In his opinion, the use of beta-blocker medication was mandatory to reduce the incidence of ventricular arrhythmias, the beta-blockers reducing the excitability of heart muscle. Such medication was indicated on a life long basis.
12. Professor Nestel was asked if there was an increased risk of further myocardial infarctions in someone who had experienced such an event. He replied that the risk was substantially higher and for this reason medication with Coversyl was indicated to reduce the chance of heart failure in the future. Likewise Ezetrol, a cholesterol lowering agent, had been shown to have been of benefit, although not to the same extent as the use of statins. Mr De Giorgio had been initially taking statins but had developed serious side effects necessitating their cessation. Statins are known to lower cholesterol and lipid levels and have been shown to reduce the risk of further heart attacks independent of their cholesterol lowering effect. They also have an anti-inflammatory action and improve perfusion of heart muscle. Trials in Australia and overseas have shown a reduction of 25 per cent in mortality compared to a placebo group; and Professor Nestel believed that ideally Mr De Giorgio should be taking a statin in a small dose as well as his well‑tolerated Ezetrol. In addition, Professor Nestel recommended that Mr De Giorgio continue follow up and monitoring but would only require repeat angiography if he had further chest pain and perhaps echocardiography and ECGs based on his clinical status. Professor Nestel essentially agreed with Associate Professor Harper’s reports; and also that Mr De Giorgio had serious coronary artery disease, that is more than one plaque although it could not always be detected on coronary angiography.
13. In cross-examination Professor Nestel agreed that Ace inhibiters reduced angiospasm, have been shown to reduce plaque size and also inflammatory activity within plaques. He also agreed that, if the cholesterol content of a plaque was reduced, rupture was less likely, although early trials have shown only a 1 per cent decrease in the size of plaques with statins. Professor Nestel also confirmed that beta-blockers were used to control ventricular arrhythmias, aspirin to reduce clotting and also had an anti-inflammatory effect which may reduce plaque rupture. Professor Nestel disagreed with Associate Professor Harper’s conclusion that the Thallium scan of 2001 was a false positive. Despite the right coronary artery stent being patent, Mr De Giorgio could be suffering from coronary artery spasm. In his opinion anxiety could give rise to coronary artery spasm.
14. The Tribunal asked Professor Nestel whether the coronary artery spasm was common and whether it could have occurred in Mr De Giorgio’s case. He replied that during angiography coronary artery spasm was frequently demonstrated.
Associate Professor Richard Harper (by telephone)
15. Associate Professor Harper essentially agreed with all the evidence of Professor Nestel. He believed that the institution of the SAAB regime of medication was mandatory in all persons who had suffered a myocardial infarction. He also agreed that Mr De Giorgio would have numerous coronary artery plaques rather than a simple plaque in his right coronary artery, and that his treatment with statins would reduce the cholesterol content of these plaques by replacing them with fibrous tissue making them more stable and less likely to rupture. Associate Professor Harper also agreed that there may be an element of coronary artery spasm in Mr De Giorgio’s case. While Dr Warren had cleared the right coronary artery by flushing with Reopro, this had dislodged a clot from the plaque leading to distal embolism and myocardial muscle damage. Associate Professor Harper said it was difficult to quantify the amount of muscle damage, although the angiogram showed normal heart function and the Thallium scan showed an ejection a fraction just below the lower level of normal. Associate Professor Harper agreed with Professor Nestel that Mr De Giorgio remained a person at risk and that the prescribed medication was mandatory. With respect to the Thallium scan in September 2000, Associate Professor Harper believed this was a false positive in terms of indicating myocardial ischaemia. He agreed that coronary artery ultrasound was a more reliable test but at this time it was too expensive to warrant its use.
16. In answer to Mr Carey’s questions Associate Professor Harper stated that Mr De Giorgio definitely required ongoing management as he had a greater risk of a further infarct and, statistically, an increased risk of death. The management included the SAAB medication and diet and lifestyle measures, such as ceasing cigarette smoking. The Tribunal notes that Mr De Giorgio has never smoked. In addition, Associate Professor Harper said that the presence of any myocardial scar tissue rendered the individual susceptible to arrhythmias and sudden death, hence the need for beta-blockers. Associate Professor Harper agreed with Professor Nestel’s recommendation that Mr De Giorgio also take a small dose of statins, as well as Esotrol, provided he could tolerate this small dose. He said that anxiety was common after myocardial infarct and the fact that Mr De Giorgio still has chest pain when anxious could be explained by the anxiety giving rise to an increase in blood pressure and heart rate causing the heart to work harder. Beta‑blockers would reduce heart rate.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Report of Dr Dewani, treating general practitioner, dated 7 july 2003 (T11)
17. Dr Dewani confirmed in his letter that Mr De Giorgio had suffered an acute myocardial infarction in mid April 2000 and had been treated by stenting and related medical management. After two weeks of convalescence and a rehabilitation program at The Royal Melbourne Hospital, he was declared fit to resume work on a graduated basis from July 2000 onwards. Prior to the episode of myocardial infarction, Mr De Giorgio had presented to Dr Dewani’s clinic with what was described as musculo‑ligamentous cervical and scapular pains requiring physiotherapy. These pains in February and March 2000 were deemed to be musculo‑ligamentous on the basis of a normal treadmill exercise test (T17).
18. In a further report dated 18 August 2003, Dr Dewani had expanded on the pre‑infarction symptoms of cervical, shoulder and chest pain and the negative investigations at that time of myocardial ischaemia. Physiotherapy and dorsal spine manipulation had been ordered for these symptoms. Dr Dewani had attributed the occurrence of chest, neck and shoulder pain, albeit of musculo‑ligamentous origin, to Mr De Giorgio’s long, stressful and strenuous working hours.
Dr Roderick Warren, cardiologist (Exhibits A1 and R3)
19. Dr Warren confirmed that he had treated Mr De Giorgio in an emergency situation with angioplasty in April 2000 and had not seen him since early 2001. He agreed that Mr De Giorgio required continued risk control and medication with Aspirin, lipid lowering agents and blood pressure control. He was of the opinion that Mr De Giorgio’s coronary artery disease was permanent and there may be some degree of disability as it advanced. Dr Warren was not aware of Mr De Giorgio’s risk factor profile having only treated him in an emergency situation.
20. Dr Warren’s clinical notes were provided (Exhibit R3, T17). These reports consist mainly of letters to Dr Dewani the applicant's treating general practitioner. In his letter dated 18 September 2000, Dr Warren reported that Mr De Giorgio had suffered an acute myocardial infarct in April 2000 which had been treated by stenting of the right coronary artery. He described the left coronary artery as being free of significant disease. As Mr De Giorgio had experienced some vague recurrence of symptoms and a recent stress echo suggested the possibility of inferior ischaemia, coronary angiography was undertaken at Melbourne Private Hospital on 15 September 2000. Coronary angiography revealed that Mr De Giorgio’s left system showed no new disease, with minor narrowing at the origin of the left main coronary artery but normal left anterior descending and circumflex branches. The right coronary artery was widely patent at the stented segment. Ventricular function was described as normal with an end diastolic pressure of 12. Dr Warren included the result of a Thallium exercise scan test performed on 6 September 2000, which is reported as positive in that it showed inferior infarction and a significant reversible area of inferior ischaemia similar to that displayed earlier in the year. The left ventricular ejection fraction was estimated at 47 per cent.
21. Dr Warren had reviewed Mr De Giorgio on 17 October 2000 and was pleased with his progress. Mr De Giorgio was free of chest pain, shortness of breath, and palpitations and physical examination was normal. His previously slightly elevated serum cholesterol level was now normal and he was to continue with his medication of Aspirin, Lipex 40, Betaloc 25 mgs twice daily, Coversyl 2mgs and Losec 20 mgs. Mr De Giorgio was reviewed again on 1 March 2001, having experienced some pain in the neck and shoulders with radiation down the arm. Physical examination was once more normal but in view of the recurrent pain, Dr Warren recommended repeat coronary angiography. Angiography was performed on 6 March 2001 revealing minor disease in the circumflex coronary artery, left anterior descending artery being free of disease and the stented segment of the right coronary artery being widely patent. Mr De Giorgio’s left ventricular function was described as being near normal. Dr Warren has not seen Mr De Giorgio since.
RELEVANT LEGISLATION
22. The Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that compensation is payable in accordance with s 14, s 16, and s 19 of the Act.
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
…
16(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a)to, or in accordance with the directions of, the employee;
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i)making a necessary journey for the purpose of obtaining that medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey—of an amount worked out using the formula:
where: specified rate per kilometre means such rate per kilometre as the Minister specifies by notice under this subsection in respect of journeys to which this subsection applies. numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).
(d)in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7) Comcare is not liable to pay compensation under subsection (6) unless:
(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b)if the journey made by the employee involved the use of public transport or ambulance services—the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a)the place or places where appropriate medical treatment was available to the employee;
(b)the means of transport available to the employee for the journey;
(c)the route or routes by which the employee could have travelled; and
(d)the accommodation available to the employee.
(9) Where:
(a)an employee suffers an injury;
(b)a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c)the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
…
19(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
(2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if:
(a)it is a week during which the employee's incapacity prevents the employee working the employee's normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and
(b)the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee's normal weekly hours.
(2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then:
(a)subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and
(b)subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D).
(2C) For the purposes of paragraph (2B)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
where:
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee's normal weekly earnings.
NWH means the number of normal weekly hours worked by the employee before his or her injury.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:
where:
NWH means the number of normal weekly hours worked by the employee before his or her incapacity.
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week.
X is the total of the hours in that particular week:
(a)that would have counted towards the employee's normal weekly hours (whether those hours are worked or not); and
(b)that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee's normal weekly hours.
(3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
where:
adjustment percentage is a percentage equal to:
(a)if the employee is not employed during that week—75%; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c)if the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week—100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
NWE is the amount of the employee's normal weekly earnings.
(3A) If, as a result of the incapacity:
(a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and
(b)a pension under a superannuation scheme is payable to the employee;
subsection (3) applies in relation to the employee in relation to a week during which the employee is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the employee in respect of that week.
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
(5) Where an amount of compensation calculated under subsection (3) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full-time Adults, as published from time to time by the Australian Statistician, the amount so calculated shall be reduced by an amount equal to the excess.
(6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings.
(7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be:
(a)$202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or
(b)an amount equal to 90% of the employee's normal weekly earnings;
whichever is less.
(8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50.
(9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child.
(10) If a prescribed child is:
(a)a prescribed person in relation to the employee; and
(b)the only prescribed person who is wholly or mainly dependent on the employee;
subsection (9) does not apply in relation to that child.
(11) If 2 or more prescribed children are each:
(a)a prescribed person in relation to the employee; and
(b)wholly or mainly dependent on the employee;
subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children.
(12) In this section, prescribed person, in relation to an employee, means:
(a)the spouse of the employee; or
(b)any of the following persons, being a person who is 16 or more:
(i)the father, mother, step-father, step-mother, father-in-law, mother-in-law, grandfather, grandmother, son, daughter, step-son, step-daughter, grandson, granddaughter, brother, sister, half-brother or half-sister of the employee;
(ii)a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee;
(iii)a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee.
(13) For the purposes of the definition of prescribed person in subsection (12), relationships referred to in that definition shall be taken to include illegitimate relationships and relationships by adoption and relationships that are traced through illegitimate relationships or relationships by adoption.
(14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.
SUBMISSIONS
Ms McMahon on behalf of the respondent
23. The respondent submitted that on 13 April 2000, Mr De Giorgio suffered an acute myocardial infarct due to plaque rupture and subsequent clot formation. The obstruction was stented as an emergency and blood flow re-established. It was contended that there were no ongoing effects from this episode. The respondent submitted that ongoing treatment was now aimed at preventing further plaque rupture and thrombosis. The SAAB regime of medication was directed at the treatment of plaques other than the one leading to the right coronary artery occlusion on 13 April 2000. The respondent contended that it was agreed by all parties that Mr De Giorgio would have more diffuse although not hemodynamically significant coronary artery disease. Despite the evidence regarding beta-blockers used to control possible arrhythmias from the area of myocardial infarction, the respondent submitted that all further treatment was cardio protective and not related to the events of 13 April 2000, which could be classified as an injury simpliciter.
Mr Carey for the applicant
24. The applicant contended that the respondent had provided only a very limited view of the injury that occurred on 13 April 2000, by confining it to a ruptured plaque and clot formation. In fact the injury had been an acute inferior myocardial infarct. This had led to muscle necrosis healed by fibrosis, which is an irreversible change with permanent consequences. The applicant contended that damage to the heart is the main feature and all treatment should be directed to this occurrence. In addition, the applicant contended that, as a result of the myocardial infarct of April 2000, the applicant had developed a moderate degree of anxiety, which in turn affected cardiac function and may have produced his episodes of chest pain resembling ischaemia and certainly increased his risk of arrhythmia and sudden death. The medical witnesses were unanimous in their opinion that treatment with the medication described as SAAB was standard and mandatory following an acute myocardial infarction and that this medication should be life long.
TRIBUNAL’S DELIBERATIONS
25. The respondent has accepted liability for the myocardial infarction due to acute right coronary artery occlusion on 13 April 2000. It is clear from the evidence that this event caused some degree, albeit a small degree, of cardiac muscle necrosis which can only heal by fibrosis. Medical evidence is also clear that such an area of fibrosis provides site for the initiation of arrhythmias, ventricular in origin. Professor Nestel and Associate Professor Harper agreed that following an acute myocardial infarction treatment with statins or other cholesterol lowering medication, Aspirin, beta-blockers and anti-hypertensives were, in their opinion, mandatory and by general acceptance within the cardiology community, always prescribed on a life long basis.
26. The medical evidence indicates that the effects of an acute right coronary artery occlusion with subsequent clot embolism during angioplasty will result in myocardial infarction which may be difficult to demonstrate with the current sophistication of tests available to the medical profession. There is, however, evidence in the form of Thallium scans and Mr De Giorgio’s reduced ejection fraction which is just below the lower limit of normal, that myocardial muscle damage has occurred. The Tribunal notes that Professor Nestel and Associate Professor Harper disagreed on the interpretation of the latest Thallium cardiac scan which Professor Nestel felt was positive in terms of myocardial ischaemia and Associate Professor Harper felt was a false positive. Despite their different interpretations of this scan, they both agree that there has been myocardial muscle damage. Thus, the effects of the acute right coronary artery occlusion on 13 April 2000 have not totally resolved and the injury is therefore not what one could term an injury simpliciter.
27. On this basis the Tribunal finds that the respondent is liable for the ongoing provision of Mr De Giorgio’s medication (SAAB regime) and his necessary appointments with his general practitioner in order to obtain prescriptions for these drugs. The Tribunal has noted, but not considered in its decision, the need for some of these medications to prevent recurrence or enlargement of the plaque initiating the attack or the need for some form of anti-coagulant and anti-inflammatory treatment to prevent clotting of the stent.
28. For the reasons given above, the Tribunal determines that the respondent is liable for the provision of ongoing medication and the necessary general practitioner appointments to effect this medication.
DECISION
29. The Tribunal sets aside the decision dated 18 December 2003 and substitutes a decision that:
1.liability for the applicant’s myocardial infarction of 13 April 2000 continues as the cessation of liability declared by the respondent on 1 October 2000 is a nullity;
2.the respondent, having accepted liability for the myocardial infarction of 13 April 2000, pay the applicant the accepted loss of income for the period 13 April 2000 to 16 July 2000 immediately. Non-payment to date has been due to an oversight by the respondent;
3.the respondent is liable for the applicant’s continuing costs of coronary angiography and in particular the costs of the examination of 6 March 2001;
4.the respondent is liable (under s 16 of the Safety, Rehabilitation and Compensation Act 1988) for the ongoing costs of the applicant’s medication and the general practitioner consultations necessary to obtain such medications; and
5.the respondent shall pay the applicant’s legal costs on a party to party basis.
I certify that the twenty‑nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 10 March 2005
Date of Decision: 03 June 2005
Counsel for the applicant: Mr M. Carey
Solicitor for the applicant: Messrs Slater & Gordon
Counsel for the respondent: Ms A. McMahonSolicitor for the respondent: Messrs Phillips Fox
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