Eduardo Ferro v Australian Postal Corporation - [2010] AATA 119

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/4404

GENERAL ADMINISTRATIVE DIVISION )
ReEstate of Eduardo Ferro

Applicant

And Australian Postal Corporation

Respondent

DECISION

TribunalMs N Isenberg, Senior Member
Dr M E C Thorpe, Member

Date15 February 2010
PlaceSydney
DecisionThe decision under review is set aside and the matter is remitted to the Respondent.

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

Ms N Isenberg
Senior Member

CATCHWORDS

Workers’ Compensation – injury- disease- aggravation of disease- cardiac arrest at work- injury resulting in death- injury simpliciter- temporal connection with employment- material contribution as a result of work- decision set aside- remitted to Respondent.

…

RELEVANT ACT/S

Safety, Rehabilitation and Compensation Act 1988: ss 4, 14, 16

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CITATIONS

Australian Postal Corporation v Burch [1998] FCA 944

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Kennedy Cleaning v Petroska (2000) 200 CLR 286

Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310

…

REASONS FOR DECISION

15 February 2010

Ms N Isenberg, Senior Member

Dr MEC Thorpe, Member

introduction

Mr Eduardo Ferro was an employee of the Australian Postal Corporation (Australia Post). Unfortunately, on 7 January 2004 he collapsed at his workplace, and ultimately passed away on 11 May 2004. At the time of his death he was 57 years of age.

background

Mr Ferro suffered a stroke on 27 March 2003. He remained in hospital for about a month and did not resume work for a further 2 months, when he commenced working on restricted hours. He took considerable periods of sick leave during the twelve months prior to 7 January 2004.
Moments before his collapse at his workplace on 7 January 2004, Mr Ferro attended a short team briefing provided by Mr Andrew Lee, his shift leader. After the briefing, Mr Ferro and his workmates were walking back to their normal work stations when he collapsed and lost consciousness. Cardiopulmonary resuscitation (CPR) was administered immediately by a staff member. Mr Ferro was treated by ambulance officers at the scene and he was transported to Concord Hospital where he was found to have suffered a cardiac arrest. He remained in hospital until his death on 11 May 2004.
The death certificate identified the cause of death and duration of last illness as:
I.
a)    Sputum plug respiratory arrest, hours,
b)    Chest infection, weeks,
c)    Trocheostromy, [sic], months,
d)    Hypoxic brain injury, months
e)    Myocardial infarction, months
(II)Severe ischaemic heart disease, years, Arthrosclerosis, years, Diabetes mellitus, years, Hypertension cerebrovascular accident, years.

History of application

On 21 July 2008, a determination was made whereby there was no liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of Mr Ferro’s death .
The delegate, in issuing that determination, had regard to the report of Dr John Hickie, cardiologist. Review was sought of the decision of 21 July 2008. On 21 August 2008, the Reconsiderations Delegate affirmed the determination of the…

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: [2010] AATA 119
Decision Date: 15 February 2010

CaseChat Overview and Summary

Eduardo Ferro has brought a claim against the Australian Postal Corporation for workers’ compensation in relation to the death of his wife, who suffered a cardiac arrest at work. The Federal Circuit and Family Court of Australia was required to determine whether the cardiac arrest, which resulted in death, was an injury within the meaning of the relevant legislation. The primary issue was whether the cardiac arrest could be considered an injury, which resulted in death, as opposed to an injury simpliciter. This distinction is important because it affects the scope of compensation available to the claimant.

The court had to assess whether the cardiac arrest was an injury resulting in death or an injury simpliciter, and whether the disease causing the cardiac arrest was connected to the employment. The court considered the evidence and submissions on whether the cardiac arrest was an injury resulting in death or an injury simpliciter, and whether the disease causing the cardiac arrest was connected to the employment. The court found that the cardiac arrest was an injury simpliciter, and that the disease causing the cardiac arrest was not connected to the employment. However, the court found that the employment materially contributed to the cardiac arrest, and that the injury was connected to the employment. The court set aside the decision and remitted the matter to the Respondent for reconsideration in light of its findings.

The court held that the cardiac arrest was an injury simpliciter, and that the disease causing the cardiac arrest was not connected to the employment. However, the court found that the employment materially contributed to the cardiac arrest, and that the injury was connected to the employment. The court set aside the decision and remitted the matter to the Respondent for reconsideration in light of its findings. The final orders of the court were that the decision of the Respondent be set aside and the matter be remitted to the Respondent for reconsideration in light of the court’s findings.

Orders