Faltusz and Telstra Corporation Ltd (Compensation)
[2019] AATA 5995
•12 December 2019
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 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.
Dr Coombes then reported, on 1 May 2018, once again to Dr Athena Pantazis:
Tim returned for review. He has been stable since I last saw him. I think extremely likely that his post-traumatic stress disorder and symptoms of angina, back in 2015, were triggered by his work situation. I gather he is making a workers’ compensation claim to that effect and I have no trouble supporting that claim.
I note that the reports provide no basis for the opinion that the stress had a contributing effect to the angina and I will deal with that in more detail shortly. I also note that in all the evidence that there is no evidence to support the suggestion that the applicant had a heart attack in November of 2015. It’s quite clear that it was an angina attack and I so find. None of the doctors gave evidence of him having suffered a heart attack. The applicant’s own cardiologist referred to it as an “angina attack” and, as already noted, the troponin levels made it quite clear that there had been no heart attack at the relevant time.
The applicant’s cholesterol levels were reported as:
·7.7 at 15 November 2015;
·5 at 26 November 2016;
·8.7 at 26 May 2017; and
·6.7 at 17 July 2017,
which, on all occasions, except for the November 2016, was well above acceptable levels.
Associate Professor Gutman provided a report dated 21 May 2019 and was cross‑examined. He noted, among other things, that a person’s general lifestyle was a significant risk factor for angina and heart attacks, in that it could lead to other factors that contribute, such as blood pressure, cholesterol and diabetes.
More importantly, he was cross-examined at length by the applicant to the effect that there was a clear relationship between stress and heart attacks – and, at this stage, I indicate when I talk about “heart attacks” I’m referring to what the applicant referred to as a “heart attack”, which I’ve already found to have been an angina attack. Professor Gutman was taken to several articles, which appeared in the applicant’s exhibit 2, and his evidence was to the effect that there is no clearly established causal link between stress and heart attacks and that it would be very difficult to draw such a clear distinction, in any event.
However, he said examination of that issue was not particularly relevant in this case because there was a clear factor leading up to the angina attack and that was a very high cholesterol level. He was then cross-examined about whether or not an acute stressor could lead either to a heart attack, in the absence of the cholesterol, or if an acute stressor could lead to heightened cholesterol. He was quite clear on his evidence, that, in his opinion, there was no direct connection between a stressor and high cholesterol and that, in some circumstances, an acute stressor could lead to a heart attack and he gave an example of somebody who had severe problems about being in enclosed spaces being trapped in a lift.
He noted, in the applicant’s case, that the cholesterol plaques had blocked 90 per cent of the relevant artery and that he clearly suffered from a coronary artery disease, which is not disputed by the respondent, and that a causative factor in relation to that coronary artery disease was the high cholesterol level. He could find no connection between the applicant’s depression and the “disease”, the angina from which he suffers, reverting to the fact that the most probable cause, and which he said was an obvious cause, was the high cholesterol levels.
The applicant gave evidence to the effect that he had a very healthy lifestyle at all relevant times and still leads one. There was nothing in his diet or exercise regime which would cause him to have high cholesterol and there was nothing that had caused him to have a cholesterol test before November 2015. However, I note it relevant that, apart from the applicant’s own evidence and the history given by the doctors which I have just referred to, that there was a history of angina attacks or pains in the chest, and other symptoms associated with angina attacks, on several occasions before November 2015.
So it seems that, in fact, he had a cholesterol build up for quite some time and, as the artery became progressively blocked, he started having the symptoms which are now referred to as “angina attacks.” I note there was no evidence to suggest that there was a connection between stress, anxiety and depression and cholesterol levels, except indirectly, if the stress, anxiety and depression led to inappropriate eating and diet or other behaviour which could increase the risk factors referred to by Professor Gutman.
Although, I note that both Dr Roberts-Thomson and Professor Gutman referred to a family history. It’s not clear what family history Dr Roberts-Thomson was referring to and Dr Gutman referred to a family history of the applicant’s mother and the applicant gave evidence about the fact that it wasn’t really a family history of heart disease, it was a family history of curled arteries. In any event, it seems quite clear that the applicant has had, for quite some time, substantially elevated cholesterol levels and the only times they appear to be under control or anywhere near normal is when taking appropriate medication.
Despite there being no cholesterol checks prior to 2015, I note there were several of what have now been recognised as angina attacks. In the absence of any other suggested cause I find that his cholesterol levels were significantly elevated prior to that time and that was the cause of the angina attacks.
Based upon the evidence, including all the articles referred to in exhibit 2 provided by the applicant, I find there is no link between the applicant’s SAD and his cholesterol levels and, furthermore, I find there is no significant link between the applicant’s SAD and his coronary artery disease. I reiterate that I find the angina attack was caused by a build-up of cholesterol plaques in the relevant artery, at that time being at 90 per cent.
LAW
Section 5(a) of the SRC Act defines an injury as being: inter alia,
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment;
…
Section 5(b), definition of “disease”, says:
In this Act:
disease means:
(a) an ailment suffered by an employee,
(b) an aggravation of such an ailment;
…
There seems to be no dispute between the parties that the applicant suffered from an ailment he describes as a “heart attack”, but I’ve already found it not to be a heart attack, but an angina attack. Now, it should be noted that the injury has to arise out of, or in the course of, the employee’s employment. The applicant seems to suggest that it arose out of his employment because it occurred outside his place of employment and some of his supervisors were present. The relevant law is set out in quite a few cases.
I will just refer to two of them. In The Star Proprietary Limited v Mitchison [2017] NSWCA 149 it is noted that:
Critical inquiries about whether an injury arose out of employment required consideration of what the employer actually did in his employment, whether it caused the injury sustained.
And in Telstra Corporation Limited v Bowden (2012) FCA 576 it held that:
In determining whether an injury is sufficiently causally connected to a person’s employment, such it arose out of employment, the question is whether the event giving rise to the injury was something that the person was required or expected to do.
In this situation, he was actually on workers’ compensation at the time, or on leave, and, obviously, wasn’t required or expected to be outside his place of employment or one of the possible places of employment at the time he suffered the angina attack. And, furthermore, there was nothing that he was doing in his employment on that day which contributed. So I find that the applicant did not suffer an injury within the meaning of section 5(a) of the Act.
However, then we have to go to the question of disease. Section 5(b) of the SRC Act provides that, “A disease is compensable under the SRC Act and was contributed to, to a significant degree, by the employee’s employment.”
It seems to be agreed that the applicant did suffer an ailment, but it then has to have been contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee under S 5B(2) of the Act. So the question then becomes, “Did Telstra contributed, to a significant degree, to the applicant’s ailment?” That then leads me back to the findings I have already made.
As previously noted, the applicant contends that his SAD, caused by his employment and for which he was actually on leave at the time, was responsible or had a direct causative effect upon his ailment, that is the angina. I have already made findings in relation to that, in that I find that the stress, anxiety and depression did not contribute, in a significant way, to the applicant’s coronary artery disease, either directly or by an intermediate step, that is stress causing him to adopt an unhealthy lifestyle and, therefore, increase his risk factors, leading to the angina attack. As I’ve already noted, I find that his coronary artery disease was caused by an excessive build-up of cholesterol, the reasons for which I do not consider are necessary for me to find other than it was not related to any stress suffered by the applicant.
Accordingly, the applicant does not come within the terms of either sections 5(a) or 5(b) of the Act and, therefore, he is not entitled to compensation, pursuant to section 14 of the Act.
I affirm the decision from which the review is being sought.
I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the written reasons for the decision herein of A G Melick AO SC, Deputy President.
..............................[sgd].......................................
Associate
Dated: 13 January 2020
Date(s) of hearing: 11 and 12 December 2019 Applicant: In person Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Ms Anella Bortone, Sparke and Helmore Lawyers
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