Diehm and TNT Australia Pty Ltd (Compensation)
[2018] AATA 2670
•8 August 2018
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 310REASONS 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 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.
Section 6(1) of the Act provides, without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, that an injury will be treated as such if it was sustained:
…
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c) while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i) associated with the employee’s employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
(d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, French CJ, Kiefel, Nettle and Gordon JJ considered the meaning of the word ‘injury’ for the purposes of the Act at [41]-[56]. The following explanation by Gleeson CJ and Kirby J in Kennedy Cleaning Services Ply Ltd v Petkoska (2000) 200 CLR 286 was cited with approval at [44]:
“…if "something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word"…”
The majority also stated:
“That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery… Each would be described as an "injury" in the primary sense…
“Suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease… but it is the physiological change… that remains central…”
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.”
EVIDENCE
The applicant
The applicant provided a statement in support of his compensation claim, in which he outlined the events leading up to, on, and after the day he experienced a myocardial infarction.[2]
[2] Exhibit B, Applicant’s statement dated 30 November 2016.
In his statement the applicant admitted that he had felt some pain in his chest around mid to late August 2015 while he was working. He stated that he kept working as he thought he may have just pulled a muscle. The next day the pain had subsided.
On Saturday 12 September 2015, the applicant was staying away from home for his grandson’s birthday. He slept on the floor, and woke up during the night with a pain in his shoulder and elbow. He assumed the pain was from sleeping on a hard surface. He went back to sleep but woke up again a couple of times. Eventually he was able to go back to sleep on the couch.
On Sunday 13 September 2015 the applicant experienced no pain during the day, and he felt good. His shoulder and elbow then became sore again on Sunday night.
The applicant stated that he did not experience any chest pain or flu-like symptoms over the weekend.
When the applicant woke up at around 4:30am on Monday 14 September 2015 he “felt good”. He had no pain or other symptoms at 6:00am when he started work.
“About an hour or two into work”, the applicant started to feel like he was coming down with the flu. At this stage he thought he could continue working.
When the applicant “got about half way through the job”, he started to feel much worse. He advised the depot that he was sick, and the depot instructed him to drive his truck back to the depot. The applicant did so.
The applicant attended Queen Elizabeth II Jubilee Hospital (“QEII Hospital”) at around 12:30pm. After an ECG was performed the applicant was informed that he was having a heart attack. He was then taken to the Princess Alexandra Hospital (“PA Hospital”) to have surgery. The surgery involved two stents being placed into his heart.
The applicant was discharged from the hospital on 18 September 2015.
On 14 January 2016 the applicant had several heart procedures performed by Dr Richard Lim at the PA Hospital.
Around late January or early February 2016 the applicant states that he attempted to go back to work. However, he was not able to because the work doctor, Dr Cunneen, revealed that one of his arteries was not performing at 40%.
Approximately three months later the applicant was tested again and the test confirmed that his arteries were performing over 40%. The applicant was told he could go back to work, pending the report from the doctor confirming this. In September 2016 the respondent advised that the applicant could return to work, and he did so.
In his statement the applicant stated that he had no previous heart problems prior to 14 September 2015. He referred to the two prior instances of pain as “simply muscular pains”, as the pain went away and he did not have the flu-like symptoms which he experienced on 14 September 2015.
The applicant stated that prior to 14 September 2015 he smoked approximately 15 cigarettes a day and his only medical problems had been colds and flus over the years.
The applicant also gave evidence at the hearing. Under cross-examination he quite properly accepted that, given the passage of time, his memory of the heart attack would not have been completely clear at the time of writing his statement and giving evidence. He accepted that the doctors’ notes would be more reliable than his memory. Notwithstanding this, the applicant stated that he does not recall experiencing any chest pain or saying that he was experiencing “crushing chest pain”.[3] He also did not recall telling the triage nurse at the QEII Hospital that he had experienced pain at 4:30am when he woke up.
[3] A quote referred to in Exhibit E, PA Hospital Emergency Department Clinical Summary dated 14 September 2015.
At the hearing the applicant advised that he had been smoking continuously for over 40 years when he had the heart attack in September 2015. He accepted that he had advised Dr Lim that he smoked about 20 cigarettes a day, but qualified that he smoked less when he was working as he was not allowed to smoke on the job. He admitted that he was still smoking as at the time of the hearing, but stated that he was not smoking as much.
Dr Richard Lim, interventional cardiologist
Dr Lim has been the applicant’s treating cardiologist since he experienced the myocardial infarction on 14 September 2015.
In his report dated 7 May 2017, Dr Lim noted that emergency department doctors at the QEII Hospital quickly diagnosed the applicant with acute anterior ST elevation myocardial infarction (“STEMI”). He noted that bloods collected from the applicant at 12:40pm on 14 September 2015 were slightly elevated, which is “consistent with the pathophysiological process of acute STEMI beginning 6-12 hours earlier”.[4]
[4] Exhibit G, Report of Dr Richard Lim dated 7 May 2017, at p. 2.
Dr Lim reports that upon the applicant’s transfer to the PA Hospital, Dr Zafar Smith noted that there had been 36 hours of “crushing chest pain” radiating through to the back. This was confirmed by emergency physician Dr Michael Sinnott. Dr Lim notes that this is at odds with the applicant’s ascription of his symptoms to “flu”, with no reference to chest pain itself. Dr Lim opined that the applicant may have been feeling generally “rotten”, so that any chest pain seemed to merely be part of his symptomology.
Dr Lim referred to the cardiac biomarker time courses, which he opined suggest several possibilities:[5]
a)“Anterior MI due to complete LAD occlusion” occurred around 7:00am on 14 September 2015, the time of the acute exacerbation of the applicant’s chest pain. The intermittent chest pain since 12 September 2015 might reflect “intermittent self-resolving episodes of LAD occlusion”. This is a possible but unproven sequence of events which does not exclude an associated flu-like illness.
b)“Both LAD and circumflex marginal arteries” were threatening to occlude from 12 September 2015 but only the LAD progressed to a total occlusion on 14 September 2015. An associated flu-like illness could have contributed to the destabilisation of pre-existing vulnerable coronary stenosis. Likewise, any strenuous physical activity or emotional stress could have triggered the acute myocardial infarction.
c)Both LAD and circumflex marginal arteries totally occluded so as to cause the acute exacerbation of chest pain at about 7:00am on 14 September 2015, but by the time the applicant presented to hospital the “circumflex marginal vessel had spontaneously re-canalised or reperfused”.
d)The STEMI was considered a relatively late presentation because nearly 7+ hours would have elapsed since the putative time of “acute occlusion”. This had prognostic implications in terms of the resultant left ventricular impairment impacting on short- and long-term outcomes.
[5] Exhibit G, Report of Dr Richard Lim dated 7 May 2017, at p. 3.
Dr Lim placed the following caveats on the above possibilities:
a)Identification of the actual time of total persistent vessel occlusion is usually imprecise. Symptoms can also be subjective and imprecise both in timing and pattern.
b)Acute myocardial infarction is never a pre-existing condition, but coronary atheroma (or coronary artery disease) is.
c)Acute myocardial infarction often occurs spontaneously, but there can also be triggers or corresponding events.
d)Just because acute myocardial infarction occurred at work or in the course of employment does not mean work or the employment caused the condition.
e)Investigation of the events on the morning of 14 September 2015, the nature and content of the interaction between the applicant and the TNT depot, and his actual workload that morning may help to provide further insights, e.g. into the delay in presenting to hospital.
Attached to his report of 7 May 2017 were two letters to the applicant’s general practitioner, Dr Chea Kwok, dated 14 October 2015 and 30 November 2015.[6] In the letter dated 14 October 2015 Dr Lim stated, “the pain first started two days before presenting to QEII Hospital. It recurred the following day and really those two days were the worst”. In the letter dated 30 November 2015 Dr Lim mentioned that the applicant was reportedly unable to go back to his job on light duties, and was instead expected to return to usual duties. On that basis Dr Lim noted his intention to undergo several further procedures on the applicant in January 2016.
[6] Exhibit G, Report of Dr Richard Lim dated 7 May 2017, at pp. 7 and 12.
On 14 January 2016 Dr Lim performed a coronary angiography, a left ventriculogram, and a left heart catheterisation.[7]
[7] Exhibit A, T-Documents, T4, at p. 12.
Dr Lim provided a supplementary report dated 4 August 2017, which sought to respond to the reports of Professor O’Rourke dated 11 April and 13 June 2017.[8] Dr Lim addressed the statement of Professor O’Rourke that the applicant’s myocardial infarction occurred on 12 September 2015. Dr Lim stated that identifying the actual time of occurrence is usually imprecise. He stated that when symptoms do not provide a clear indication of when acute coronary occlusion resulting in a myocardial infarction actually occurred, cardiologists rely on cardiac biomarkers for guidance. Dr Lim referred back to the four possibilities he outlined in his initial report, and stated that none of these support the contention that the myocardial infarction occurred on 12 September 2015.
[8] Exhibit G, Report of Dr Richard Lim dated 4 August 2017, at p. 1.
Dr Lim also gave evidence at the hearing. He elaborated on his above comments regarding biomarkers, stating that biomarkers take precedence over any documentation of symptoms. He stated that he cannot be precise about when occlusion occurred in a persistent fashion, however based on the blood test results it is more likely that occlusion occurred after 4:30am than at 4:30am. He also commented that it was not possible for him to say definitively, or prove, that the symptoms the applicant experienced on 12 and 13 September 2015 were related to the myocardial infarction he later experienced.
Under cross-examination Dr Lim accepted that the applicant had a number of risk factors for coronary artery disease, including that he was a long-term smoker and had abdominal obesity, and because of this it was likely that he suffered from the disease. He agreed that it was his belief that at the time of the myocardial infarction the applicant had suffered from long-standing severe coronary artery disease. Dr Lim was asked to comment on the likelihood that the applicant’s coronary disease would proceed to a complete blockage without any medical intervention, and he accepted that it was more likely than not.
Dr Lim’s supplementary report of 15 September 2017 addressed additional matters that arose out of the hearing on 28 August 2017. Dr Lim was asked to comment on Professor O’Rourke’s view that the pain the applicant suffered on 12 and 13 September 2015 was myocardial infarction “stuttering” in its progress, and that the biomarker results were “probably falsely high”. Dr Lim’s response was that Professor O’Rourke’s view is not supported by the documented “indisputable time course of the cardiac biomarkers”, which indicate that the clinical event of acute myocardial infarction occurred on the morning of 14 September 2015. He stated that any definitive diagnosis of myocardial infarction, whether “stuttering” or classic, is confirmed by “definitive elevation of cardiac biomarkers”, and the time of actual coronary occlusion resulting in myocardial necrosis is estimated from the their time course. He was unsure of the logic behind the comment that the biomarker results were “probably falsely high”.
Professor Michael O’Rourke, cardiologist
Professor O’Rourke provided reports dated 11 April 2017 and 13 June 2017.[9] He also gave evidence at the hearing and provided a supplementary report after the hearing.
[9] Exhibit H, Report of Professor O’Rourke dated 11 April 2017 and Exhibit I, Report of Professor O’Rourke dated 13 June 2017.
In his report of 11 April 2017 Professor O’Rourke spoke about the ECG of the applicant showing features of evolving myocardial infarction, which led to his transfer to the PA Hospital and the performance of a coronary angiography by Dr Lim.[10] Professor O’Rourke stated that multiple risk factors had been uncovered while he was in hospital, including a family history of coronary artery disease, hypertension, obesity, hyperlipidaemia and smoking. The applicant was urged to discontinue smoking but he did not.
[10] Exhibit H, Report of Professor O’Rourke dated 11 April 2017, at p. 2.
Professor O’Rourke noted that the clinical notes for QEII Hospital and the PA Hospital provide a consistently different history of the onset of the applicant’s condition, as compared to the applicant’s version of events. All notes record that the applicant had experienced chest pain on the weekend prior to Monday 14 September 2015.[11] These reports conflicted with the symptoms reported by the applicant in his claim form 6 months later.
[11] Exhibit H, Report of Professor O’Rourke dated 11 April 2017, at p. 3.
Professor O’Rourke has opined that the applicant’s myocardial infarction began two days prior to his presentation at the QEII Hospital, on 12 September 2015, and progressed over the subsequent two days.[12] He states that it was caused by complete occlusion of the left anterior descending (“LAD”) coronary artery. He noted that the applicant’s reporting of chest pain in late August 2015 could have been caused by coronary narrowing.
[12] Exhibit H, Report of Professor O’Rourke dated 11 April 2017, at p. 4.
Professor O’Rourke stated that the applicant suffers from complex longstanding triple vessel coronary artery disease, which caused the myocardial infarction. He noted that there is no definite previous evidence of coronary artery disease, but this had progressed throughout his lifetime due to his present risk factors outlined above. These risk factors led to the development of atherosclerotic plaques on the inside of his coronary arteries, which progressively grew over the years and narrowed his coronary arteries. He stated that plaque disruption is the ultimate complication of this process. He noted that cigarette smoking is the principal cause of this condition, as it “accelerates the deposition of atheromatous plaques”.
Professor O’Rourke did not identify any aspect of the applicant’s employment that could have contributed to the onset, aggravation or acceleration of any underlying or pre‑existing conditions.[13]
[13] Exhibit H, Report of Professor O’Rourke dated 11 April 2017, at p. 5.
Professor O’Rourke’s report of 13 June 2017 merely served to confirm his opinion subsequent to viewing Dr Lim’s report of 7 May 2017.
At the hearing Professor O’Rourke was asked to comment on the 4 August 2017 report of Dr Lim. He stated that he does not agree with this report, as no blood was taken on 12 and 13 September 2015 to see if there was an elevation in the enzymes. He hypothesised that the enzymes could have almost certainly been elevated on Saturday, then went back down and came back up again. Professor O’Rourke confirmed that this was based on the symptoms the applicant reported. He commented that the coming and going pain the applicant described, and which Dr Lim described in his letter to Dr Kwok, is a classic symptom of a myocardial infarction. Professor O’Rourke agreed that biomarkers are very useful in clinical practice in determining when occlusion occurred, as they are very specific and sensitive.
During evidence-in-chief Professor O’Rourke was asked to comment on the inevitability of a myocardial infarction in the applicant’s circumstances, given his identified risk factors. Professor O’Rourke stated that it was “almost inevitable”; you just could not predict when it would happen. He commented that smoking is known to cause heart attacks. Professor O’Rourke also stated that a myocardial infarction is almost invariably caused by coronary artery disease.
Under cross-examination Professor O’Rourke confirmed that he did not examine the applicant personally, but stated that it did not cause him any difficulty in reaching his conclusions; he instead opined that it may have made the process easier.
Professor O’Rourke also provided a supplementary report dated 4 October 2017 to address further issues arising out of the hearing on 28 August 2017. In this report Professor O’Rourke reiterated his opinion that he would expect the applicant’s levels to have been elevated during the two days prior to 14 September 2015, and to have fallen back towards zero by noon on 14 September 2015.
Hospital records
The QEII Hospital Emergency Department clinical record includes the triage nurse’s note that on 14 September 2015 the applicant presented with “chest pains on and off since Sat”. She also reported that the applicant had experienced “pain today since 0430 gradually increased”.[14] The treating doctor, Dr Amy Wain, diagnosed the applicant with an acute myocardial infarction.[15] The doctor also noted “chest pain since Saturday night 1900, pain pretty much all weekend, but got alot (sic) worse at 7am with radiation thru (sic) to his back”. It is recorded that the applicant reported smoking 20 cigarettes per day and having no previous cardiac investigations. The applicant reported his chest pain to be at a level of 3/10.
[14] Exhibit C, QEII Hospital Emergency Department record dated 14 September 2015.
[15] Exhibit F, QEII Hospital clinical summary dated 14 September 2015.
The referral from Dr Amy Wain of the QEII Hospital to the PA Hospital confirmed the diagnosis of acute myocardial infarction and the fact that the applicant had presented with “central chest pain since Saturday evening”.[16]
[16] Exhibit N, Report of Dr Amy Wain from QEII Hospital dated 14 September 2015.
The clinical records of the PA Hospital record that at the time of the applicant’s transfer to the PA Hospital he had been experiencing “36 hours of “crushing chest pain” radiating through to back”.[17] Notes from the chest x-ray conducted by Dalveer Singh at the PA Hospital also confirm that there had been “left chest pain 3 days radiating to back”.[18]
[17] Exhibit E, PA Hospital Emergency Department Clinical Summary dated 14 September 2015.
[18] Exhibit M, Report of Dalveer Singh from PA Hospital dated 14 September 2015.
Dr Christopher Cunneen, occupational & environmental physician
Dr Cunneen assessed the applicant’s fitness to return to work on 3 February 2016, and provided an independent medical examination report of the same date.[19] In this report Dr Cunneen advised that the applicant was unfit to return to work as he failed to meet the mandatory criteria for holding both unconditional and conditional commercial driver’s licences.[20] He stated that the normal health range of cardiac function is at least 50%, while the minimum acceptable standard for commercial driving is 40%. The applicant’s cardiac function was 37% at that time. Dr Cunneen opined that the applicant had functional capacity to return to paid work, but not in a driving role.
[19] Exhibit A, T-Documents, T6.
[20] Exhibit A, T-Documents, T6, at p. 22.
TNT Australia Pty Ltd records
Mr Andrew Martland completed an Employer’s Injury Claim Report on behalf of the respondent on 6 May 2016.[21] In this report Mr Martland stated that the applicant had suffered a heart attack while he was working both at and away from the usual workplace.
[21] Exhibit A, T-Documents, T9, at p. 34.
A delegate of the respondent drafted an incident report dated 12 May 2016 pertaining to the applicant’s myocardial infarction on 14 September 2015. It was noted that on the day, the applicant felt unwell and was coming down with the flu. He then drove to the hospital and was hospitalised. His injury or illness was described as “myocardial infarction”.
In this report Mr Nick Ryan drafted several file notes all dated 11 May 2016 to document his conversations with Mr Andrew Martland, the applicant’s team leader, Ms Robyn Armstrong, and the applicant. Mr Martland advised that the applicant attended work on 14 September 2015, and reported that he was feeling sick, as though he had the flu, as soon as he arrived, but insisted on staying at work as he felt he could continue. After the applicant had gone out on the road he again reported feeling sick and returned to the depot to drive home. Mr Martland later heard that the applicant went to hospital and was admitted for heart bypass surgery. Mr Ryan noted that at the time the incident was not considered to be a work-related injury as it was a heart attack and nothing out of the ordinary had happened at work that day that Mr Martland could recall.
In his file note with Ms Armstrong, Mr Ryan documented that Robyn relayed a very similar description of the claim circumstances. She advised that the applicant reported feeling sick when he was out on the road, returned to the depot to drive home, and stopped to get treatment at the QEII Hospital on his way home.
In his file note with the applicant, Mr Ryan noted that the applicant reiterated the circumstances of the injury as per the details in his claim form. The applicant expressed his dissatisfaction with the report of Dr Cunneen, and stated that he wanted to return to work. In the conversation Mr Ryan referred to several comments by his treaters, including the comment that the cause of the heart attack was “coronary artery disease”.
Mr Ryan noted that he advised Mr Martland, Ms Armstrong and the applicant that on the basis of the medical records, reports and circumstances of the incident he planned to reject the claim as it did not arise out of or in the course of employment, nor was the injury contributed to, to a significant extent, by his employment.
SUBMISSIONS
Applicant submissions
The applicant’s submissions identified the critical issue in this matter as being whether the applicant’s myocardial infarction arose out of, or in the course of, his employment, and can therefore be classified as an injury (other than a disease) pursuant to s 5A(1)(b) of the Act. The applicant notes that there is no dispute that the applicant experienced an identifiable “physiological change” or a “physiological disturbance”.
The applicant seeks to rely on Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 with respect to its discussion of ‘injury’ and ‘disease’. The applicant also referred to Australian Postal Corporation v Burch (1998) 85 FCR 264, in which it was accepted that where a thrombosis of the employee’s cerebral artery caused a stroke, the stroke was found to be the injury as it was a disturbance of the normal physiological state, notwithstanding that it had involved an occlusion or blocking.
They applicant relies on the comments made in Kennedy Cleaning Services Ply Ltd v Petkoska (2000) 200 CLR 286. In this case the employee had suffered from a heart condition which ultimately led to a stroke. When considering s 7(1) of the Workers’ Compensation Act 1951 (ACT), McHugh, Gummow and Hayne JJ stated that where a sudden physiological change has been caused or provoked by a disease this does not prevent it from constituting a “physical injury”. Gaudron J agreed but qualified that this “depends on the terms of the legislation in question”. Gleeson CJ and Kirby J also agreed. In their reasons they referred to the decision in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, stating:
“It is impossible to reconcile the approach urged by the appellant in this case with the reasoning of the majority in Zickar. If the appellant's approach were adopted, the mere fact that an ascertainable lesion or dramatic physiological change had taken place or that the normal physiological state had been disturbed would be irrelevant because it would be no more than the outcome, direct or indirect, of a progressive congenital or other disease process. However, this is not the way the majority approached the matter in Zickar… [if the evidence amounts to] something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word.
If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker's employment. If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
The foregoing approach does not rob the disease provisions of the Act of utility… The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an "injury" in the primary sense.”
In Szajna v Australia Postal Corporation (2014) 226 FCR 1 at [77] Rangiah J considered that there is no case which establishes or supports the idea that the inevitable consequences of a progressive disease cannot be defined as an “injury”.
The applicant submits that the words “in the course of, the employee’s employment” in paragraph (b) of s 5A(1) of the Act have the effect that no causal link is required between the ‘injury’ and the employment. It is sufficient that an injury is sustained by an employee while performing their duties or doing something that they are reasonably expected or required to do in order to carry out such duties.[22] The applicant referred to his claim for workers compensation, in which he stated that he was delivering freight for his employer when he sustained the injury.[23]
[22] Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 293-294 per Dixon J.
[23] Exhibit A, T-Documents, T8, at p. 29.
The applicant has submitted that he gave reliable and candid evidence at the hearing, and accepted that due to the passage of time it was difficult to specifically recall what he had told doctors. In this respect, the applicant seeks to rely on the contemporaneous clinical records of the QEII Hospital, which recorded that the applicant’s pain “got alot [sic] worse at 7am with radiation thru [sic] to his back”. The applicant submits that this supports a finding that the applicant’s symptoms became worse around 7am on 14 September 2015.
The applicant submits that the opinion of Dr Lim ought to be preferred to the opinion of Professor O’Rourke, on the basis that he had examined and treated the applicant, and his opinion was based on objective biomarkers. In contrast, Professor O’Rourke’s opinion was based solely on the subjective material provided to him, which he accepted was unreliable. The applicant contends that Professor O’Rourke’s opinion is not supported by any objective clinical evidence.
The applicant argues that the fact that the applicant had pre-existing coronary heart disease does not preclude it from being classified as an ‘injury’, as opposed to a ‘disease’, for the purposes of the Act, as the structure of the Act means that each of these is created on a different basis of liability.
While he suffered from coronary artery disease, the applicant argues that complete LAD occlusion was not the inevitable outcome. The applicant accepts that whether an injury was an inevitable outcome of an underlying disease is relevant, but is not determinative of whether an injury simplicitor has occurred.[24]
[24] Szajna v Australia Postal Corporation (2014) 226 FCR I at [76].
The applicant submits that complete LAD occlusion occurred around 7am on 14 September 2015. He contends that this should be considered as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, that is an injury in the ‘primary’ sense of the word.[25] Even if it is accepted that the applicant suffered relevant symptoms over the weekend of 12 and 13 September 2015, such symptoms are distinct from complete LAD occlusion, which was the cause of the applicant’s myocardial infarction.
[25] Kennedy Cleaning Services Ply Ltd v Petkoska (2000) 200 CLR 286.
With regard to the applicant’s incapacity for work, the applicant has submitted that the assessment of Dr Cunneen, occupational & environmental physician, concluded that the applicant was unfit to return to his pre-injury work as a truck driver as he failed to meet mandatory Austroad criteria for holding both unconditional and conditional commercial driver’s licences. The applicant was only able to return to work for the respondent on 15 September 2016, after it was determined that he met the mandatory criteria and was fit to return to work.
Respondent submissions
The respondent’s submissions outline their main contentions, which are:
a)The applicant’s myocardial infarction was an inevitable consequence of his pre‑existing, underlying coronary artery disease, and as such is properly characterised as part of the same ailment;
b)As there is no evidence to support a finding that the applicant’s myocardial infarction or pre-existing coronary artery disease was contributed to, to a significant degree, by his employment, the causation test in s 5B(1) of the Act cannot be satisfied and therefore the myocardial infarction cannot be categorised as a ‘disease’;
c)The myocardial infarction did not arise out of or in the course of the applicant’s employment because it occurred on Saturday, 12 September 2015, when he was not at work; and
d)Alternatively, if it is accepted that the myocardial infarction occurred on Monday, 14 September 2015, it is submitted that it occurred prior to when the applicant arrived at work, and therefore did not arise out of or in the course of the applicant’s employment.
The respondent acknowledged the application of Szajna v Australia Postal Corporation (2014) 226 FCR 1, which considered the issue of “whether the law qualifies the meaning of ‘injury’ by providing that it does not encompass the inevitable consequence of an underlying disease”.[26] Rangiah J referred to the judgment of Toohey, McHugh and Gummow JJ in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, stating that he did not think it supported the principle that “the inevitable consequences of a disease cannot be an ‘injury’ within the ordinary meaning of that word”, instead considering that their Honours were stating that this issue depended on the evidence, including whether the consequences were inevitable. [27] Rangiah J concluded that:
a)“In order to decide whether an employee has sustained an “injury” within the ordinary meaning of that word, consideration must be given to the precise evidence on a case by case basis.”
b)“If the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as such an “injury”.
c)“It is necessary to consider whether the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden change to occur.”
d)“The question of whether the physiological change or disturbance is the inevitable consequence of the progress of the disease may be relevant in deciding whether there is an “injury”, but it is not itself necessarily determinative.”
[26] At [53].
[27] At [77].
The respondent submits that this is consistent with the reasoning of Kirby J in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at [352].
Inevitable consequence
The respondent submits that the applicant’s myocardial infarction was caused by, and was an inevitable consequence of, his pre-existing coronary artery disease, and should be considered as part of that disease rather than as a separate injury.
The applicant was, and continues to be a smoker. In cross-examination he admitted that he had been smoking for over 40 years. The applicant has a family history of coronary artery disease, and also suffers from hypertension and hyperlipidaemia. According to Professor O’Rourke, these are all risk factors for the development of coronary artery disease. The respondent submits that these risk factors led to him suffering from severe coronary artery disease prior to, and at the time of, his myocardial infarction. Both Professor O’Rourke and Dr Lim, and even the applicant’s general practitioner, Dr Chea Kwok,[28] agree that the applicant suffered from severe coronary artery disease. Professor O’Rourke has stated that, despite the applicant having not attended a medical practitioner prior to 14 September 2015 and therefore having never been diagnosed with the disease, he is sure that the applicant suffers from the condition and it has “progressed throughout his life time”.[29] He also went into great detail about how this process occurred in his report dated 11 April 2017. Dr Lim commented in his report dated 7 May 2017 that the applicant had “pre-existing vulnerable coronary stenosis”.
[28] Exhibit A, T-Documents, T7.
[29] Exhibit H, Report of Professor O’Rourke dated 11 April 2017, at p. 4.
Professor O’Rourke has concluded, in his report dated 4 October 2017, that:
“I express the strong opinion that had [the applicant] obtained appropriate clinical intervention at onset of clinical symptoms over the weekend of September 12/13, it is more likely than not that he would not have suffered the extensive myocardial infarct that became fully apparent on Monday 14 September.”
The respondent disputes the applicant’s description of the myocardial infarction as “sudden”. The respondent draws attention to the majority judgement in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, which found that “suddenness” is not necessary for there to be an injury; a condition might instead be a “disturbance of the normal physiological state”. They also noted that “suddenness” can be useful to distinguish a physiological change from the natural progression of an underlying disease. The respondent argues that the inverse of this logic is that an absence of suddenness may indicate that a condition is properly characterised as the natural progression of a disease.
The respondent submits that the applicant’s experience of the myocardial infarction was not sudden. He became unwell, continued to work for some time, and then drove himself to the hospital; he also admitted under cross-examination that he only went to the hospital because he didn’t have a regular doctor and the hospital was on his way home. Further, the respondent argues that the applicant experienced symptoms in August 2015 that did not result in a myocardial infarction. Professor O’Rourke has noted in his report of 11 April 2017 that these symptoms “may have been caused by coronary narrowing and temporary chest pains when the heart required more blood during exercise.” The respondent contends that Dr Lim has not provided any evidence to dispute this.
During cross-examination Dr Lim stated that coronary artery disease is often a progressive process. He also agreed that it was more likely than not that the applicant’s severe coronary artery disease would have resulted in a myocardial infarction without medical intervention, and that the applicant had not sought medical intervention prior to Monday 14 September 2015. The respondent also relies on Dr Lim’s confirmation that, in the applicant’s circumstances, his myocardial infarction cannot be seen as a standalone condition, as it is wrapped up in his coronary artery disease.
On the basis of this evidence the respondent submits that these circumstances fall into a category where “the inevitable consequence of an underlying disease may… be regarded as part of the disease, rather than an injury”.[30]
[30] Szajna v Australian Postal Corporation (2014) 226 FCR 1 at [78].
The respondent takes issue with the reference in the applicant’s written submissions to Rangiah J’s judgement in Szajna v Australian Postal Corporation (2014) 226 FCR 1. The respondent notes that the applicant excluded the critical word ‘necessarily’ from their paraphrase. The respondent accepts that if the myocardial infarction was inevitable in the circumstances that does not automatically disqualify it from being considered as an ‘injury’; however, they submit that it can clearly be determined that the myocardial infarction was so interwoven with the coronary artery disease process that the myocardial infarction should not be considered, in these circumstances, to be a separate and distinct injury.
The respondent also notes that as the applicant has never raised the alternative proposition that his myocardial infarction or coronary artery disease were significantly contributed to by his employment, the causative test for the definition of a ‘disease’ under s 5B of the Act cannot be met.
The myocardial infarction occurred on Saturday 12 September 2015
In the event that the Tribunal accepts that the myocardial infarction should be considered a disease, the respondent submits that the applicant’s myocardial infarction occurred on Saturday 12 September 2015, not Monday 14 September 2015 as submitted by the applicant. The respondent therefore argues that the myocardial infarction cannot be said to have arisen out of, or in the course of, the applicant’s employment.
In making this submission, the respondent relies on the opinion of Professor O’Rourke. Professor O’Rourke has expressly stated that the myocardial infarction occurred on 12 September 2015 and progressed over the subsequent two days. This opinion is based on all contemporaneous medical records from the relevant period, including the PA Emergency Department Clinical Summary which referred to “36 hours of ‘crushing chest pain’ radiating through to back”; the QEII Emergency Department Clinical Record which records “chest pains on and off since Sat”; and Dr Lim’s report dated 7 October 2015 which stated that “the pain first started two days before presenting to QEII Hospital. It recurred the following day and really those two days were the worst…” At no point has the applicant stated that what he reported to the doctors on 14 September 2015 was incorrect.
The respondent contends that it is not in dispute that the applicant experienced pain from 12 September 2015. When giving evidence Professor O’Rourke explained that the most important feature of a myocardial infarction is pain.
When it was put to Professor O’Rourke in cross-examination that his opinion was based on subjective reports, he responded by commenting how any doctor would diagnose that pain as a myocardial infarction; he also referred to the fact that when the applicant described his symptoms, an ECG was performed and no other investigations were done at that stage. The respondent submits that it was clear to the doctors treating the applicant on 14 September 2015 that he may have been suffering from heart problems.
The respondent has taken issue with the applicant’s preference of the opinion of Dr Lim on the basis that he a) had the benefit of examining the applicant first hand and b) that his opinion was based on objective cardiac biomarkers. The respondent contends that the first basis is irrelevant as there is no dispute that the applicant suffered a myocardial infarction, and dealing with the applicant first hand gave him no advantage in determining when it occurred. Dr Lim himself does not rely on his first-hand experience as a reason for his opinion.
The respondent submits that the second basis is flawed. They argue that the evidence does not support the conclusion that the myocardial infarction occurred on Monday 14 September 2015 because:
a)The graph does not include any data from the two days prior to 14 September 2015;
b)The recordings are over a period of less than 24 hours, and the levels may have come down and changed. Professor O’Rourke explained that he would expect the levels to have been elevated prior to 14 September 2015, and then to have fallen back towards zero by the time they were measured at noon on Monday 14 September; and
c)The insertion of the stent can result in contaminated blood being released, which can result in a misleadingly high enzyme reading, and can be therefore be an unreliable indicator.
The respondent further submits that Dr Lim himself referred to his conclusions as “possibilities/uncertainties”. When giving oral evidence he commented that he could not be certain of when the myocardial infarction occurred, and instead he provided an estimate.
The respondent contends that the applicant’s submissions seek to draw a distinction between the condition experienced by the applicant on 12 and 13 September 2015, which the applicant submits was symptoms of myocardial ischemia or angina; and on 14 September 2015, which the applicant submits was the myocardial infarction.
Professor O’Rourke’s opinion is that if the applicant had sought medical treatment earlier, complete occlusion was likely to have been identified prior to 14 September 2015, on either 12 or 13 September 2015. He has commented in his report of 4 October 2017 that a lack of testing on 12 or 13 September 2015 cannot lead to an inference that the applicant was not experiencing relevant symptoms at that time.
Alternatively, the myocardial infarction occurred on Monday 14 September 2015 prior to when the applicant arrived at work
The respondent submits, in the alternative, that if I accept that the myocardial infarction occurred on Monday 14 September 2015, it occurred prior to when the applicant arrived at work on that day.
The respondent refers to the applicant’s submissions which state that the myocardial infarction occurred at around 7:00am on 14 September 2015. The respondent argues that this submission ignores the applicant’s own evidence that he did not experience pain on that day, instead experiencing flu-like symptoms, and the QEII Hospital Emergency Department record which records “pain today since 0430”. The submission also ignores the fact that Dr Lim did not take into account the QEII Hospital Emergency Department record; Dr Lim’s opinion that the tests performed between 12:24pm and 12:40pm showed results consistent with the STEMI beginning 6-12 hours earlier (that is, prior to 7am); Dr Lim’s opinion that the myocardial infarction occurred at about 7am was presented as one of several possibilities; and Dr Lim’s opinion that identifying the actual time of total occlusion is usually imprecise.
If it is to be accepted that the applicant did not experience pain on Monday 14 September 2015, that is consistent with Professor O’Rourke’s opinion that tissue death (that is, the myocardial infarction) had already occurred prior to that time, because once tissue death occurs the nerve endings cannot trigger a pain response. Professor O’Rourke opined that the time of occlusion was over 7 hours, and possibly up to 60 hours later, which stretches back through the weekend of 12 and 13 September 2015.
The respondent submits that the opinion of Professor O’Rourke should be preferred.
In their submissions the respondent concluded that the circumstances of the applicant’s claim do not satisfy any limb of s 5A of the Act, and as such the respondent is not liable to compensate the applicant for his condition.
CONCLUSION
Having regard to the observations of Rangiah J in Szajna v Australian Postal Commission (2014) 226 FCR 1 at [76], I have to determine whether at 7am on 14 September 2015 the applicant had sustained an ‘injury’ within the ordinary meaning of that word. His Honour explained that if the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as an ‘injury’. I do not consider that the evidence indicates that at 7am or later on 14 September 2015 there was such a change.
I accept the opinion of Professor O’Rourke that the myocardial infarction occurred on 12 September 2015; there was a cogent basis for his opinion as he relied upon the contemporaneous medical evidence which indicated that there were chest pains since 12 September 2015. I should also mention that Dr Lim quite properly mentioned that he was unable to be certain when the myocardial infarction occurred. The injury did not arise in the course of the applicant’s employment (s 5A(1)(b) of the Act) and was not sustained at the applicant’s place of work (s 6(1)(b) of the Act).
Even if the events had occurred at work, Dr Lim also quite properly recognised that because acute myocardial infarction had occurred at work it does not mean that work or employment caused the condition. There is no evidence that the employment has aggravated the coronary heart condition of the applicant. I have concluded that the applicant did not sustain an “injury (other than a disease)” within the meaning of s 5A(1)(b) of the Act. There is also no evidence that there was an aggravation of an injury within s 5A(1)(c) of the Act.
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.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
................................[Sgd]....................................
Associate
Dated: 8 August 2018
Date of hearing: 28 August 2017 Date final submissions received: 15 November 2017 Counsel for the Applicant: Ms Jennifer Hewson Solicitors for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondent Ms Kate Slack
Solicitors for the Respondent: Sparke Helmore
0