Diehm and TNT Australia Pty Ltd (Compensation) - [2018] AATA 2670

Diehm and TNT Australia Pty Ltd (Compensation) [2018] AATA 2670 (8 August 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4712
Re:Howard Diehm
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:8 August 2018
Place:Brisbane

The decision under review is affirmed.
.................................[Sgd].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Claim for workers’ compensation for myocardial infarction – whether condition can be classified as an injury – whether condition can be classified as a disease – when myocardial infarction occurred – evidence suggests myocardial infarction started when the applicant was not at work – condition not classified as an injury or a disease – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998 (Cth)
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Kennedy Cleaning Services Ply Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Szajna v Australia Postal Corporation (2014) 226 FCR 1
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
8 August 2018
INTRODUCTION

The applicant, Mr Howard Diehm, is a 59-year-old male who worked as a full-time truck driver with TNT Australia Pty Ltd, the respondent, from around February 2006 to 14 September 2015. The applicant was unable to work during the period of 14 September 2015 to 14 September 2016 due to his heart condition. He resumed working with the respondent again from 15 September 2016 and is presently still employed with them.
The applicant is seeking compensation for his myocardial infarction which he claims he suffered on 14 September 2015.
BACKGROUND
On 3 May 2016 the applicant submitted his workers compensation claim for ‘coronary artery disease’ to the respondent.[1] The applicant has since clarified that this claim was in fact for his heart attack or ‘myocardial infarction’.
[1] Exhibit A, T-Documents, T8, at p. 28.
On 12 May 2016 the respondent determined that they were not liable for the applicant’s claimed condition under s 14 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (“the Act”).
The applicant then requested a reconsideration of this decision. On 4 July 2016 the respondent affirmed the determination dated 12 May 2016.
On 6 September 2016 the applicant applied to this Tribunal for a review of the determination.
ISSUES
The primary issue to be determined is whether the respondent is liable to pay compensation to the applicant for his claimed condition of ‘myocardial infarction’ pursuant to s 14 of the Act. In this respect I must determine whether the claimed condition can be defined as:
a)an ‘injury (other than disease)’ for the purposes of s 5A of the Act; or
b)a ‘disease’ for the purposes of s 5B of the Act.
LEGISLATIVE FRAMEWORK
Section 14 of the Act prescribes the circumstances where Comcare is liable to pay compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2670
Decision Date: 8 August 2018

CaseChat Overview and Summary

The applicant sought workers' compensation for a myocardial infarction, claiming it occurred on 14 September 2015. The respondent initially determined they were not liable under section 14 of the *Safety, Rehabilitation and Compensation Act 1998* (Cth), a decision that was subsequently affirmed upon reconsideration. The applicant then applied to the Tribunal for a review of this determination.

The primary legal issue before the Tribunal was whether the respondent was liable to compensate the applicant for his myocardial infarction. This required the Tribunal to determine if the condition could be classified as an 'injury (other than a disease)' under section 5A of the Act, or as a 'disease' under section 5B of the Act.

The Tribunal considered the definitions of 'injury' and 'disease' within the Act. It noted that a 'disease' requires a significant contribution from employment, whereas an 'injury (other than a disease)' must arise out of, or in the course of, employment. The Tribunal found no evidence that the applicant's coronary heart disease condition, which led to the myocardial infarction, was contributed to to a significant degree by his employment. While acknowledging the applicant's risk factors, including a family history and long-term smoking, the medical evidence indicated the condition would have progressed to a myocardial infarction regardless of employment. Therefore, the condition did not meet the criteria for a 'disease' under the Act. Furthermore, the evidence suggested the myocardial infarction commenced when the applicant was not at work, thus not satisfying the requirement for an 'injury (other than a disease)' to arise out of, or in the course of, employment.

Consequently, the Tribunal affirmed the respondent's decision, finding that the applicant's myocardial infarction did not qualify as an injury or disease under the relevant provisions of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The applicant is seeking compensation for his myocardial infarction which he claims he suffered on 14 September 2015.BACKGROUND On 3 May 2016 the applicant submitted his workers compensation claim for ‘coronary artery disease’ to the respondent.[1] The applicant has since clarified that this claim was in fact for his heart attack or ‘myocardial infarction’.[1] Exhibit A, T-Documents, T8, at p. 28. On 12 May 2016 the respondent determined that they were not liable for the applicant’s claimed condition under s 14 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (“the Act”). The applicant then requested a reconsideration of this decision. On 4 July 2016 the respondent affirmed the determination dated 12 May 2016. On 6 September 2016 the applicant applied to this Tribunal for a review of the determination. ISSUES The primary issue to be determined is whether the respondent is liable to pay compensation to the applicant for his claimed condition of ‘myocardial infarction’ pursuant to s 14 of the Act. In this respect I must determine whether the claimed condition can be defined as: a)an ‘injury (other than disease)’ for the purposes of s 5A of the Act; orb)a ‘disease’ for the purposes of s 5B of the Act.LEGISLATIVE FRAMEWORK Section 14 of the Act prescribes the circumstances where Comcare is liable to pay compensation to an applicant. 14 Compensation for injuries(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.… Section 4(9) of the Act provides that ‘incapacity for work’ refers to an incapacity suffered by an employee as a result of an ‘injury’, being:a)an incapacity to engage in any work; or b)an incapacity to engage in work at the same level at which he or she was engaged … or any other work immediately before the injury happened Section 5A of the Act contains the definition of ‘injury’, while section 5B contains the definition of ‘disease’. 5A Definition of injury(1) In this Act:injury means:(a) a disease suffered by an employee; or(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.5B Definition of disease(1) In this Act:disease means:(a) an ailment suffered by an employee; or(b) an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a) the duration of the employment;(b) the nature of, and particular tasks involved in, the employment;(c) any predisposition of the employee to the ailment or aggravation;(d) any activities of the employee not related to the employment;(e) any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material.

Evidence

Evidence Before The Court

The process for determining whether an employee is suffering from a ‘disease’ or an ‘injury (other than a disease)’ was outlined as follows:“First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?If the answer to both those questions is "Yes", there is a "disease" within par (a) of the definition of "injury"… If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)"…If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury…It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of "ailment" (and therefore result in a positive answer to the first question) but the second question is answered "No". But if that is the position on the evidence, there will not be any relevant overlap between a "disease" and an "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act. It reflects the fact that there are marked differences between arising "out of" or "in the course of" (in par (b)) and "contributed to in a material degree" (for par (a)) in the definition of "injury". And it simply means that the employee was unable to satisfy the different level of employment connection required under par (a) of the definition of "injury" under the Act.This construction of the definition of "injury" in s 4(1) of the Act does not "rob" the "disease" limb of utility. The "disease" limb of the definition remains an additional basis of liability.The proper construction of the Act reflects the importance of the distinction drawn by the Act between "disease" and "injury (other than a disease)" in the definition of "injury" in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme.”EVIDENCEThe applicant

Decision

Reasons for decision

In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [55], their Honours explained that the ‘disease’ limb of the definition of injury in s 4(1) of the Act (which is now in s 5A of the Act) remains an additional basis of liability. While the applicant did not contend that there was liability under this limb, as a matter of completeness I should state my conclusions on this issue. There is no evidence that the applicant has a disease that was contributed to in a substantial degree by his employment (s 5B of the Act). There is certainly no issue that the applicant was subject to risk factors. He has a coronary heart disease condition and there is a family history of that condition. He also continues to smoke, having been a smoker for more than 40 years. Both medical specialists, Professor O’Rourke and Dr Lim, have confirmed that the coronary heart condition would have resulted in a myocardial infarction without medical intervention. There is no evidence that the employment has any contribution to the coronary heart disease condition or the myocardial infarction. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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