Franks and Comcare (Compensation)

[2019] AATA 2802

Franks and Comcare (Compensation) [2019] AATA 2802 (15 August 2019)

Division:GENERAL DIVISION

File Numbers:         2016/5539 & 2018/4534

Re:Susan Franks

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:15 August 2019

Place:Sydney

The reviewable decision is affirmed.

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Deputy President B W Rayment OAM QC

CATCHWORDS

COMPENSATION – commonwealth employees – death of employee – compensation to dependants – accepted claim for workers compensation – Guillain-Barre syndrome – nephrotic syndrome – whether Guillain-Barre syndrome caused nephrotic syndrome resulting in death – whether underlying frailty was caused by Guillain-Barre syndrome resulted in death – whether death of the employee would have otherwise occurred at a significantly later time – other diseases contributing to death – insufficient medical knowledge to establish a link – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7 and 17

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

15 August 2019

1. The late John Barry Franks was working for Film Australia in the Solomon Islands in 1986, working as a sound recordist. He contracted an infection and developed Guillain-Barre Syndrome, which required him to be removed to Royal Prince Alfred Hospital in Sydney for treatment.

2. He was very debilitated and required treatment over several months. He had restricted mobility and required a wheelchair for a total of twelve months. He used two walking sticks at first, and subsequently used one walking stick for the rest of his life. He could not exercise much, and could walk only very slowly. His walking around an oval was his usual exercise.

3. His widow told me the condition affected his whole body, including his arms, upper body and major defects in his lower body.

4. He was a non-smoker but developed chronic obstructive airways disease in around 2000 and in about 2013 he was found to have coronary artery disease and was given a stent.

5. In the following year he developed nephrotic syndrome, for which he was hospitalised at Royal North Shore Hospital in 2015 and again in April 2016. He passed away while in hospital in that month.

6. His renal specialist at Royal North Shore was Professor Pollock, who gave evidence before me.

7. Comcare accepted his workers compensation claim in 1986 and thereafter.

8. Representing his estate, Mrs Franks made a claim on Comcare under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) alleging that his death resulted from his 1986 injury. By s 17(3) of the Act, if liability is established, Comcare would be liable to pay $400,000 for the benefit of his dependant, including Mrs Franks.

9. He died from a number of causes, one of which was his nephrotic syndrome, which is said by the applicant to be linked to his Guillain-Barre condition stemming from 1986. In order to succeed, Mrs Franks must also show that he died significantly earlier than otherwise would have been the case, in accordance with s 7(5) of the Act.

10. Professor Pollock is of the opinion that because in a number of earlier cases reported in the literature, Guillain-Barre syndrome has been found to be associated with nephrotic syndrome, and since both are relatively rare immune diseases, an association is plausible. The associations previously reported, however, have been concurrent or very close in time.

11. She also noticed when she treated him in 2016 that he was very frail, a state which she attributed to the 1986 Guillain-Barre disease, and said that his frailty would have contributed to his contracting other conditions, including the nephrotic syndrome.

12. So two possible links are suggested by the applicant between the Guillain-Barre syndrome and the nephrotic syndrome, which was part of the circumstances of his death.

13. The respondent called the evidence of Professor Carr, an immunologist. Professor Carr gave evidence suggesting that the nephrotic syndrome was not likely to have been caused by the incidence of Guillain-Barre syndrome thirty years earlier. All the reported cases involved concurrent incidence of the two diseases. He said that the received wisdom within his specialty is that the likely explanation for the cases of concurrent development of the two diseases is that they both stem from a deficient immune system. I did not understand him to say that the “received wisdom” is supported by any scientific experimentation. That would require detailed experimental work the results of which may one day be known, but are not available at this time. Thus whether or not the “received wisdom” is correct is not yet known.

14. He said that some people are predisposed to autoimmune disease, and that the explanation for coincidence of Guillain-Barre syndrome and nephrotic syndrome may lie in that fact. Dr Pollock commented that while that will account for some cases, there are other cases where people will acquire an autoimmune disease for reasons that we haven’t been able to determine, and in effect suggested that the association between the two diseases may arise from that fact. I do not understand Professor Carr to be of a different opinion.

15. Thus, it is possible that one day there will be evidence in scientific literature for or against the theory suggested by Professor Pollock. We know of the association, albeit in some thirty or more cases worldwide. How the association arises, or typically arises, we do not know. That state of scientific knowledge is insufficient to enable me to be satisfied that there is an indirect link between the Guillain-Barre syndrome and the nephrotic syndrome which was contracted thirty years later.

16. As to the frailty to which Professor Pollock referred, Professor Carr said he would very much accept Professor Pollock’s assessment that he had chronic frailty as a result of the Guillain-Barre syndrome, using walking aids for walking and the like. He said that his interpretation of frailty is that it mostly affects your ability to recover. He said that since the late Mr Franks had acute bleeding, acute severe heart failure, severe kidney dysfunction, and blood poisoning, the combination of those conditions would not have had a different outcome, at his age, without frailty. Professor Pollock also spoke of frailty as an index of a poor outcome, which seems to confirm the evidence of Professor Carr.

17. Even if the applicant’s frailty made him susceptible to contracting nephrotic syndrome, which appears to be unproven, but cannot be ruled out, there would be a problem in the light of the coincidence at the time of the applicant’s death of the various diseases mentioned in the previous paragraph. Dr Pollock also said that the ischaemic heart disease of the applicant would have reduced the applicant’s life expectancy to the lower limit of the normal population.

18. In the result I am not satisfied that the Guillain-Barre syndrome resulted in the applicant’s death, so that the reviewable decisions will be affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 15 August 2019

Dates of hearing:	20-21 May 2019 and 5 July 2019
Date final submissions received:	29 October 2018
Solicitors for the Applicant:	Ian Collins Solicitor
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Lehmann Snell Lawyers