Hill and Comcare - [2000] AATA 228

DECISION AND REASONS FOR DECISION [2000] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q99/573

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GRAHAM BURRELL HILL
  Applicant

And COMCARE
Respondent
DECISION

Tribunal Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member

Date23 March 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – myocardial infarction – whether a disease or an injury – whether an injury arising out of or in the course of employment – effect of work stress.
Safety Rehabilitation and Compensation Act 1958 ss 4, 24
Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156
Petkoska v Kennedy Cleaning Services Pty Ltd (1998) 87 FCR 526
Humphrey Earl Limited v Speechley (1951) 85 CLR 126

REASONS FOR DECISION

23 March 2000 Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member

This matter was remitted from the Federal Court on 20 April 1999 to be determined according to law.
The applicant had lodged an application on 25 April 1995 to review a decision by an Independent Review Officer on 30 March 1995 which affirmed a decision by Comcare on 29 November 1994 to disallow a claim for permanent impairment resulting from a myocardial infarction. This was on the grounds that liability had been accepted for the temporary effects of the myocardial infarction only.
The matter was initially heard before a Tribunal constituted by myself, as Presiding Member, Dr KP Kennedy and Mrs H Pavlin, Members on 10 March 1997, 20 November 1997 and 27 March 1998 respectively.
At the initial hearing the respondent sought to examine the issue of liability in relation to the claim under Section 24 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal did not allow this, as Comcare had previously accepted liability in relation to a claim under Section 19 for the same condition. It was on this point that the matter was appealed to the Federal Court of Australia.
His Honour Justice J Spender held that the earlier determination in respect of the claim under Section 19 was not a claim for permanent incapacity and the Tribunal had to decide for itself whether the requirements for liability to pay compensation for injury resulting in permanent impairment are established. Thus, "work connection" had to be considered by the Tribunal. Judge Spender suggested that the matter be remitted to the Tribunal as it was constituted in the initial hearing.
This matter was re-heard in Brisbane on 7 and 8 February 2000 before myself and Dr Kennedy, Mrs Pavlin's term of tenure having expired and not having been renewed at that stage. With the issue of quantum having already been determined, the only questions in issue were whether the condition was an injury or a disease and whether there was a work connection with the condition. Written submissions were presented by both parties with the Tribunal reconvening on 7 March 2000 to hear submissions in reply.
The applicant represented himself while the respondent was represented by Mr P Bickford of Counsel instructed by the Australian Government Solicitor.
The applicant himself gave oral evidence as did his wife, Mrs Lesley Hill and his work supervisor at the time of the incident, Mr John Patrick Martin. Medical evidence was presented by Dr Roger Wilkinson, Dr EG Galea, Dr David Wyld and Professor MJ West. The following documents were admitted as exhibits.

Exhibit 1 "T" Documents
Exhibit 2 Respondent's Statement of Issues
Exhibit 3 Respondent's Statement of Facts and Contentions
Exhibit 4 Report of Dr EG Galea dated 29.1.96
Exhibit 5 Report of Dr EG Galea dated 31.1.96
Exhibit 6 Report of Dr EG Galea dated 18.6.97
Exhibit 7 Report of Dr RK Wilkinson dated 19.11.97
Exhibit 8 Dossier of the Applicant
Exhibit 9 Inpatient Summary
Exhibit 10 Electro-cardiograph
Exhibit 11 Report of Dr RK Wilkinson dated 18.2.93
Exhibit 12 Cardiac Catheterisation Report dated 17.2.93
Exhibit 13 Cardio-electrogram 1992
Exhibit 14 Report of Dr RK Wilkinson dated 20.7.93
Exhibit 15 Repatriation Commission decision dated 13.3.86
Exhibit 16A Applicant's Statement of Facts and Contentions
Exhibit 16B Respondent's Statement of Facts, Issues and Contentions
Exhibit 17 Further Statement of Issues by Applicant
Exhibit 18 Ipswich Hospital Admission Report
Exhibit 19 Report by Professor MJ West dated 7.1.00
Exhibit 20 Report of Dr RK Wilkinson dated 18.8.87
Exhibit 21 Report of Dr RK Wilkinson dated 5.3.93
Exhibit 22 Report of Dr RK Wilkinson dated 17.8.95
Exhibit 23 Report of Dr RK Wilkinson dated 4.12.95
Exhibit 24 Report of Professor MF O'Rourke dated March 1998
Exhibit 25 Letter to Dr Hayes dated 12.8.92 from Dr I Scott
Exhibit 26 Letter to applicant dated 1.9.92 from Dr I Scott
Exhibit 27 Letter to Dr Tankey dated 19.8.92 from Dr J R Hayes
Exhibit 28 Statement of Mr JP Martin dated 4.10.96

The following summary of facts was taken from the evidence presented.
At the commencement of his evidence-in-chief, the applicant stated that he had sustained a myocardial infarct at about 8 am on 1 August 1992 while filing defect reports together at his home. He had brought these defect reports from work on the previous day.
Earlier that day, he had awakened at about 5.30 am. He had sexual intercourse with his wife after which his wife returned to sleep. He arose, had breakfast and then went downstairs to collect an electric typewriter from his Comcar which he then brought upstairs. He also subsequently brought upstairs a monitor and his briefcase.
The above items were put out on his dining room table and he commenced to collate reports. After he had been collating reports for about 30 minutes, he began to feel sick and developed diarrhoea associated with profuse sweating. He woke his wife and told her "get me to the hospital quickly". By this stage he had a stabbing pain in his chest which was not eased by the anginine and oxygen given in the ambulance. He did not know whether his wife had accompanied him to the hospital or not.
The applicant was cross-examined after Dr Wilkinson had been interposed as a witness. During his cross-examination, the applicant told Mr Bickford of Counsel that in 1992 he had been employed as a Quality Assurance Officer. His duties had involved review of contracts, acceptance of equipment etc. He was required to check quotes, verify invoices for payment and his work required him to move about between his office at Brisbane Airport and the Gold Coast as well as out west etc. His normal hours were about 7.30 am to 4.00 pm.
During further cross-examination, the applicant confirmed that he had no written authorisation to take files home and he had been given no direction to take files home. He said that in 1991 there had been an informal arrangement with his supervisor to the effect that he could take flex time or time off in lieu for work done at home. The applicant claims that the arrangement had provided for time off to equate and to compensate for work done voluntarily by an officer in his or her own time. He also claimed that authorised overtime on a Saturday attracted pay at a time and a half rate and on a Sunday, at a double time rate. We accept that this was so, but also that such authorised overtime rarely, if ever, occurred. Furthermore, on the evidence of the applicant's supervisor (Mr Martin – see paragraph 33) it did not apply to work done by an officer at home. He could not claim overtime for work done at home.
The applicant acknowledged that he had been a smoker for most of his life up until 1992. He had not smoked since 1992 and during the earlier years he had given up smoking on four occasions. He had commenced smoking at the age of 17 years and had been a smoker during his 22 years in the Air Force. During the June to August period in 1992 he had been smoking 30 – 40 cigarettes a day.
The applicant said that at the present time his cardiac condition has stabilised and he remains in employment.
Medical evidence
The first medical witness was Dr Roger Wilkinson, a Specialist Cardiologist. Dr Wilkinson said that he had first treated the applicant about 18 years ago. Dr Wilkinson said that the main risk factors for coronary artery disease were high cholesterol, cigarette smoking, obesity, physical inactivity and genetic factors.
When asked about the possible relationship between stress and myocardial infarction, Dr Wilkinson said that there was literature for and against. Dr Wilkinson was shown a report on "Stress and Heart Disease" prepared by Professor MJ West of the University of Queensland. After reading the report, Dr Wilkinson said that he did not take issue with that report.
Dr Wilkinson expressed the opinion that stress may well play a part in acceleration of coronary artery disease – it was a "possibility". Dr Wilkinson said he thought it probable that stress does play a part but such an association had not been scientifically proved.
Dr Wilkinson said that there was no doubt about the link between cigarette smoking and coronary artery disease. When asked about the association between physical exertion and myocardial infarction, Dr Wilkinson said that ordinary activity would be unlikely to precipitate infarction but severe activity might. The incidents nevertheless would probably be remarkably small.
Another Specialist Cardiologist, Dr EG Galea also gave evidence. Dr Galea had provided a number of earlier written reports but he had not seen the applicant since 1997. During his evidence-in-chief, Dr Galea opined that there was no relation between chronic stress and coronary artery disease and therefore no relationship between work stress and coronary artery disease. He believed, however, that acute stress could precipitate myocardial infarction.
Dr Galea confirmed that the risk factors for coronary artery disease included unfavourable family history, hypertension, lipid disorder, cigarette smoking and obesity. Other factors included obstructive sleep apnoea and diabetes. Dr Galea believed that physical exertion may cause myocardial infarction in the presence of high grade narrowing of the coronary arteries.
Dr Galea was also shown the report of Professor West titled "Stress and Heart Disease". Dr Galea praised that report and said that he did not take issue with the report.
Dr Galea was also referred to the report of Professor Michael O'Rourke, Professor of Medicine at the University of New South Wales (Exhibit 24). In that report, Professor O'Rourke referred to studies which had shown that emotional stress, like exercise, could readily induce myocardial ischaemia in persons with coronary atherosclerosis but there was little evidence to suggest that stress plays an immediate part in progression of atherosclerosis. Other studies reported by Professor O'Rourke from his literature review had found an increased risk of coronary thrombosis during or after a period of unaccustomed exercise, during or after sexual intercourse or in association with episodes of anger. However, the risk in all these circumstances was considered to be extremely low.
Dr Galea said that for work stress to be a factor, the work would have to aggravate the coronary artery disease and that had never been proven. The risk from smoking was clearly proven due to the increased tendency to arrthymias, the tendency to produce thrombocytosis and spasm of the coronary arteries.
Dr David Wyld, who had initially seen the applicant at Ipswich Hospital in 1992, also gave evidence. Dr Wyld confirmed that the notes written in the Ipswich Hospital records (Exhibit 18) had been made by him but he did not remember Mr Hill.
The last medical witness was Professor MJ West, Professor of Medicine at the University of Queensland. Professor West had prepared a paper on "Stress and Heart Disease" to which reference has already been made.
Professor West, during his evidence-in-chief, indicated that his paper had provided an overview of the current views on stress and heart disease. He said that it was difficult to demonstrate an association between stress and the prevalence of heart disease. The risk factors for heart disease had been clearly established. It was his opinion that no case had been made out to demonstrate stress as a cause of coronary artery disease. It may be that stress can induce acute myocardial infarction but this is complex because of the difficulty of separating stress from other factors. Some studies have suggested that stress may precipitate arrhythmias.
Professor West said that there remains a possibility that stress is a factor but the role of stress is not as important as biological risk factors and he believes it unlikely that stress would cause myocardial infarction in the absence of other factors. He does not believe that stress causes coronary atherosclerosis. Myocardial infarction may occur before there is total coronary artery occlusion.
Professor West was asked about the association between sexual activity and cardiac events. Professor West said that sexual activity could lead to an acute cardiac event but there was little evidence in the literature. He commented that it may be only a small contributing factor.
In conclusion, Professor West said that there was no proof that stress causes heart disease. It was possible that stress can cause heart disease not but probable.
Other Evidence
Evidence was also given by a Mr JP Martin who had been Mr Hill's immediate supervisor up until June 1992. Mr Martin had been on sick leave at the time Mr Hill had sustained the infarct. Mr Martin said overtime was very strictly controlled at the time and in general no overtime was allowed. If additional time was worked, flex time could be allowed but often flex time was not used and was then written-off. He said that normal hours of duty were between 8 am and 4 pm.
Mr Martin said that he did not ever direct staff to take files home and could not direct them to take files home. He also stated that although there was the agreement for flex time, this did not cover work done at home as that would be an unknown quantity to him which could not be verified.
The wife of the applicant, Mrs Lesley Hill, gave evidence by telephone. Mrs Hill confirmed the evidence of her husband in relation to the events of 1 August 1992 that had occurred while she had been awake. She confirmed that after he had left the bed she had returned to sleep until she had been awakened by him with the request to get an ambulance.
When questioned by the applicant, Mrs Hill said that she had not noticed the typewriter and documents on the table on the previous night. She also said that the typewriter was too heavy for her to carry up the stairs.
Subsection 24(1) of the Safety Rehabilitation and Compensation Act 1988 provides:
"Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury."
"Injury" is defined in Section 4 to mean:
"(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; 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;"
"Disease" is also defined in Section 4 to mean:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;"
It is not contested that the applicant suffered from coronary atherosclerosis, which is an ailment and so a disease under Section 4 of the Act. The question remains as to whether the myocardial infarct would be an aggravation of that ailment and therefore a disease or if it were a complication of the disease and of itself an injury.
Mr Bickford referred the Tribunal to the High Court case of Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 and to the Federal Court case of Petkoska v Kennedy Cleaning Services Pty Ltd (1998) 87 FCR 526. An appeal in this case is currently before the High Court. Both of these cases consider the distinction between a disease and an injury.
Both cases related to a cerebral aneurysm rather than a myocardial infarct and the legislation in each case differed from the legislation under consideration here. As such, neither case is a conclusive guide for this particular matter. However, general comments made on the nature of injuries and diseases may be persuasive.
In the case of Petkoska (supra), Finn and Merkel JJ at 535 made the following observations:
"A disease in a given instance may itself create a pre-disposing physical condition such that a later physical incident or event, while not an inevitable or inexorable progression of the condition, is nonetheless more likely to occur and to have injurious consequences. Where such consequences are occasioned they may properly be attributed to that incident or event rather than to the disease that pre-disposes the person to that incident or event, and so be characterized as an injury under the Workers Compensation Act."
The applicant does suffer from coronary heart disease as a result of plaque developing and accumulating. A rupture of this plaque caused the myocardial infarct. The consequence of a myocardial infarction is the death of muscle tissue due to a "cutting off" of blood supply to a section of cardiac muscle. Following the reasoning in Petkoska's case these consequences are more properly attributable to the event of the myocardial infarction and so are to be characterised as an injury in our view. We rule, and find, accordingly.
Therefore, it is the finding of the Tribunal that the myocardial infarction was an injury which was related to the applicant's underlying coronary heart disease.
For an injury to be a compensable injury under Section 4 of the Act, it must arise out of or be in the course of the employees' employment.
The meaning of the words "arising out of or in the course of employment" were considered in Humphrey Earl Limited v Speechless (1951) 84 CLR 126 by Dixon J (as he then was). At page 133 he observed:
"When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do, in order to carry out his duties."

This case is still an authoritative guide to the interpretation of these words.

In this case, the applicant was working on files at home on a Saturday morning. He was not specifically authorised to take those files home nor was he directed to do so by his superiors at any time. It was expected of the employees that they would get their work done in a timely manner and if this involved working outside of normal hours then that was permitted. Evidence before the Tribunal from Mr Martin was that there was an informal agreement that overtime done on weekdays could be taken as flex time; however, this did not extend to weekend work or work done at home. As such, although the applicant was working on files on the Saturday morning in question, it cannot be said that he was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties. It was an activity he undertook of his own choosing and at his own discretion.

This was not an injury arising out of or suffered in the course of his employment. Therefore, it is not a compensable injury for the purposes of the Safety Rehabilitation and Compensation Act 1988.
Extensive argument was presented to the Tribunal as to the effect of stress on coronary heart disease and to the question of whether work stress acts as a trigger for myocardial infarctions. This was only relevant if the myocardial infarction was found to be a disease, and the test for compensation was whether the employment materially contributed to the disease or its aggravation. This test does not need to be considered in the present case and the Tribunal declines to make any findings as to the impact of work stress in this case.
The issues raised in the case canvassed other matters that we have not specifically referred to in the reasons delivered above. They included the impact the domestic circumstances of Mr and Mrs Hill, on the morning in question, would have had on Mr Hill suffering the myocardial infarct. Though these issues were raised, they were not, in our view, supported by the evidence. Therefore, we regard them as having no role to play in determining the proper outcome of the real issues raised at the hearing. Accordingly, we do not propose to go into them or to regurgitate the evidence led in respect of them.
For these reasons the Tribunal affirms the decision under review
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Dr KP Kennedy, Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  7.2.00, 8.2.00
Date of Decision  23.3.00
Counsel for the Applicant
Representative for Applicant   Applicant appeared in person
Counsel for the Respondent    Mr P Bickford
Solicitor for the Respondent    Australian Government Solicitor