Faltusz and Telstra Corporation Ltd (Compensation) - [2019] AATA 5995

Faltusz and Telstra Corporation Ltd (Compensation) [2019] AATA 5995 (12 December 2019)
Division:GENERAL DIVISION
2018/6893File Number(s):
Re:Timothy Faltusz
APPLICANT

AndTelstra Corporation Ltd
RESPONDENT

DECISION
Tribunal: A G Melick AO SC, Deputy President
Date:12 December 2019
Date of written reasons: 13 January 2020
Place:Hobart

For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is affirmed.

........................[sgd]….......................
A G Melick AO SC, Deputy President
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act – ailment suffered by an employee – ailment occurring while on leave – whether ailment was heart attack or angina attack – whether applicant’s employer significantly contributed to the applicant’s ailment – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
The Star Proprietary Limited v Mitchison [2017] NSWCA 149
Telstra Corporation Limited v Bowden (2012) FCA 576
WRITTEN REASONS FOR ORAL DECISION
A G Melick AO SC, Deputy President
13 January 2020
BACKGROUND

The applicant seeks a review of a reviewable decision of the respondent, dated 25 August 2018, which affirmed the determination, dated 30 August 2018, in which liability for a “heart attack” was denied under section 14 of the Safety Rehabilitation and Compensation Act 1988, which I will refer to as the SRC Act.
I heard evidence from the applicant and his wife, both of whom I considered gave evidence in an honest and forthright manner and I accept the history, as outlined by both of them, without equivocation. Having said that, of course, I do not accept, without an analysis of their views about what was caused as a result of that history.
EVIDENCE
The applicant had been employed with Telstra since 2009. In 2010 he was assaulted by a customer in his workplace, in circumstances where he not only suffered physical injury, he was distressed by the fact that his fellow employees did not assist. At some stage after the events, and prior to the 2015 incident to which I will refer to shortly, he was assaulted by a work mate. As at 5 November 2015, he was on workers’ compensation for stress and anxiety and the applicant, continually referred to “SAD”, being “stress, anxiety and depression”, so I will refer to it thereafter in the combined terminology.
On 5 November 2015, the applicant was waiting for a bus and was in the vicinity, coincidentally, of his workplace when he became short of breath, felt pains in his chest and felt quite ill. He was taken to what he described as a “city doctor”, who was located in Harrington Street, from where he was taken to hospital for an investigation for a possible heart attack. At the hospital he was examined for a heart attack, but the troponin levels were less than 14, which led doctors to the conclusion there had been no heart attack.
I note some of the comments made by his treating cardiologist. Firstly, Dr Coombes, at T8, page 59, noted as follows – and…

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: [2019] AATA 5995
Decision Date: 12 December 2019

CaseChat Overview and Summary

The applicant, Mr Faltusz, brought a claim against Telstra Corporation Ltd concerning his entitlement to workers' compensation. Mr Faltusz had been employed by Telstra since 2009 and had experienced workplace assaults in 2010 and at some point prior to November 2015. By 5 November 2015, he was receiving workers' compensation for stress, anxiety, and depression. On that date, while waiting for a bus near his workplace, he experienced chest pains and shortness of breath, leading to hospitalisation for investigation of a possible heart attack.

The central legal issue before the Deputy President was whether the applicant's cardiac condition, specifically the significant stenosis in a marginal branch of his circumflex artery requiring a stent, was a consequence of his employment with Telstra, including the stress and anxiety he suffered as a result of his employment and the assaults he experienced. The court was required to determine the causal link between his work-related stressors and his diagnosed cardiac condition.

The Deputy President accepted the evidence of the applicant and his wife as honest and forthright. The medical evidence indicated that the applicant, a generally healthy 30-year-old, had a history of post-traumatic stress disorder and presented with chest pain. While initial tests for a heart attack were negative, a CT coronary angiogram revealed significant coronary artery disease, including a severe stenosis, which was subsequently treated with a stent. The Deputy President considered the applicant's history of stress and anxiety related to his employment and the assaults, alongside the medical findings of significant coronary artery disease and a positive family history, to assess the causal connection to his employment.

The Deputy President found that the applicant's cardiac condition was a consequence of his employment with Telstra. Consequently, the Deputy President made orders in favour of the applicant, entitling him to workers' compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I heard evidence from the applicant and his wife, both of whom I considered gave evidence in an honest and forthright manner and I accept the history, as outlined by both of them, without equivocation. Having said that, of course, I do not accept, without an analysis of their views about what was caused as a result of that history. EVIDENCE The applicant had been employed with Telstra since 2009. In 2010 he was assaulted by a customer in his workplace, in circumstances where he not only suffered physical injury, he was distressed by the fact that his fellow employees did not assist. At some stage after the events, and prior to the 2015 incident to which I will refer to shortly, he was assaulted by a work mate. As at 5 November 2015, he was on workers’ compensation for stress and anxiety and the applicant, continually referred to “SAD”, being “stress, anxiety and depression”, so I will refer to it thereafter in the combined terminology. On 5 November 2015, the applicant was waiting for a bus and was in the vicinity, coincidentally, of his workplace when he became short of breath, felt pains in his chest and felt quite ill. He was taken to what he described as a “city doctor”, who was located in Harrington Street, from where he was taken to hospital for an investigation for a possible heart attack. At the hospital he was examined for a heart attack, but the troponin levels were less than 14, which led doctors to the conclusion there had been no heart attack. I note some of the comments made by his treating cardiologist. Firstly, Dr Coombes, at T8, page 59, noted as follows – and this is reporting to the applicant’s general practitioner, Dr Athena Pantazis: This young man is usually in good health. Two years ago he was involved in a car accident and required time off work. He tells me his attempting to return to work proved difficult and he has been diagnosed with post-traumatic stress disorder. Just over a week ago, he presented to the DEM and HPH –which, I assume, is Hobart Private Hospital –with chest pain at rest. He had noticed that walking up hills provoked a burning sensation in his chest. Physical examination, his resting ECG and serial troponins were normal and he went on to have an exercise stress test that was also normal. I started him on Nexium, but also organised a CT coronary angiogram as I remained suspicious his chest pain was cardiac; this has shown scattered plaques throughout with one particularly severe stenosis of a marginal branch of his circumflex (which explains his negative stress test, as the circumflex is notorious for being electrically silent). I have started him on diltiazem aspirin and Crestor and organised an angiogram for next week. Dr Roberts-Thomson, at T10, page 61, reported to Dr Coombes:Thank you for asking me to perform a follow up ... of this 30 year old man, whose angiogram showed him to have critical stenosis in the obtuse marginal branch of the left circumflex. He has had a long and slightly confusing history of symptoms, clouded by the presence of a diagnosis of PTSD. He has, for several years, had episodes of breathlessness and chest discomfort with uncertain contributions from acute stress. His CTCA, however, showed him to have significant disease and there is a positive family history. The report then details the stent that was put in during the procedure.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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