Jefferson v Ambulance Service of NSW
[2012] NSWWCCPD 11
•8 March 2012
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Jefferson v Ambulance Service of NSW [2012] NSWWCCPD 11 | |||||
| APPELLANT: | Timothy Jefferson | |||||
| RESPONDENT: | Ambulance Service of NSW | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-4037/11 | |||||
| ARBITRATOR: | Ms K Haddock | |||||
| DATE OF ARBITRATOR’S DECISION: | 21 September 2011 | |||||
| DATE OF APPEAL HEARING: | 28 February 2012 | |||||
| DATE OF APPEAL DECISION: | 8 March 2012 | |||||
| SUBJECT MATTER OF DECISION: | Injury; causation; cerebral haemorrhage; whether arose out of employment; standard of proof; whether Arbitrator applied wrong standard | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr B McManamey, instructed by DibbsBarker Lawyers | ||||
| Respondent: | Mr R Stanton, instructed by Sparke Helmore Lawyers | |||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 21 September 2011 is confirmed. Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
Timothy Jefferson worked for the Ambulance Service of NSW as an intensive care paramedic. At about 7.30 am on the morning of 8 June 2006, he was at work at Ryde Ambulance Station and coming to the end of his evening shift. He was not feeling well and was told that he looked sick and pale. He felt “agitated and stressed”. He went home at the end of his shift at 8.00 am. At 4.13 pm, he telephoned “000” because he believed he was suffering a stroke.
An ambulance took Mr Jefferson to Royal Prince Alfred Hospital (RPA) where he was diagnosed as having suffered a brainstem haemorrhage which caused damage to his central nervous system. I will refer to this episode as the stroke or haemorrhage. His case before the Arbitrator was that the stroke arose out of his employment, which involved, among other things, “long hours, alternating day and night shifts, and extreme stress” between 15 June 1998 and 1 September 2008.
Mr Jefferson’s stroke has left him with problems with his gait, speech, vision and general manual dexterity. He attempted administrative duties for 3–4 hours per day three days per week starting on 28 May 2007. Those duties ceased in September 2008 and he has not returned to work since. He was medically retired on 2 January 2009. He has claimed weekly and other compensation from 8 June 2006 to date and continuing.
The matter proceeded to arbitration on 11 August 2011, with lengthy submissions from both sides. Neither side called any oral evidence. The issues in dispute were whether Mr Jefferson’s stroke arose out of his employment or occurred in the course of his employment and, if so, whether his employment was a substantial contributing factor to the injury. Mr Jefferson’s case was that his stroke arose out of his employment because his work exposed him to stress and stress can cause an increase in blood pressure.
The respondent did not suggest that Mr Jefferson’s work was anything other than challenging. It argued that the “injury” occurred at home and not in the course of Mr Jefferson’s employment. On the question of whether the injury arose out of Mr Jefferson’s employment, it argued that there was no evidence that Mr Jefferson had hypertension before 8 June 2006 and he had not established that his employment was a substantial contributing factor to his stroke.
In a reserved decision delivered on 21 September 2011, the Arbitrator said that the cause of the stroke had not been established and it was not possible to say with certainty why it occurred. She determined that Mr Jefferson had not discharged the onus of establishing that his injury arose out of or in the course of his employment and, if he had, employment was not a substantial contributing factor to the injury. She made an award for the respondent with no order as to costs, save for certifying the matter as complex.
Mr Jefferson has appealed the Arbitrator’s determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) applying the wrong standard to determine if Mr Jefferson had discharged the onus of establishing that the injury arose out of his employment;
(b) finding that the cause of the stroke had not been established;
(c) finding that the injury did not arise out of Mr Jefferson’s employment, and
(d) finding that employment was not a substantial contributing factor to the injury.
EVIDENCE
Mr Jefferson started work for the respondent as a probationary ambulance officer in 1998 and progressed to become an intensive care paramedic officer in 2004. His duties included attending “000” calls for medical and accident emergencies. He said the work was extremely stressful because of the constant exposure to trauma and human suffering. He gave several examples of trauma scenes he attended in the course of his work in the two years up to 8 June 2006. Those events made him feel a “sense of helplessness” and “inadequate”. He was aware that many other people were relying on him.
Mr Jefferson said that being an intensive care paramedic was “often at times stressful” and “could demand a lot of you”. There were high incidences of serious injuries. He needed to assimilate and use a wide cross-section of knowledge, and respond quickly to ensure the safety of the person under his care. He had to be alert at all times because quick response times were crucial. He had to be able to cope under pressure, no matter what.
No two days were the same. He might have to treat a patient in need of emergency care while in an ambulance travelling at high speed to a hospital. Sometimes the work was dangerous because he attended accidents on busy roads or violent situations. On several occasions, people affected by drugs had threatened him. There were also potential dangers from infections with HIV and hepatitis, so Mr Jefferson had to have his “wits” about him at all times.
On 8 June 2006, Mr Jefferson was the acting station officer as well as an intensive care paramedic at the Ryde Ambulance Station. He said:
“I recall not feeling well and I was told that I was sick, pale with a blank look. I felt agitated and stressed, having regard to the day to day challenges of the working environment where you are faced with:
·Rapidly changing situations;
·Time pressures where timeframes for actions are measured in minutes and seconds rather than hours;
·Ill-defined problems [sic] situations;
·High degree of uncertainty.”
He did not complain to anyone of feeling unwell and stressed because he considered it simply “one of the factors of being a Paramedic – you have bad days and weeks especially when there are particular accidents which you attend which affect you for a variety of reasons”. He stopped work at approximately 8.00 am.
Mr Jefferson’s wife, a human resources manager, said that her husband began to display “erratic, out of character behaviour from approximately mid-May 2006 onwards”. That behaviour involved him getting annoyed over inconsequential issues. He was generally irritable and “on a short fuse but unable to pinpoint what was worrying him” when she inquired what was making him feel that way. This was out of character for him, as he was usually jovial, good-natured and renowned for his good humour.
On 8 June 2006, Mrs Jefferson told a work colleague that “Tim is totally stressed out at the moment. I can’t seem to calm him down; he can’t seem to let things go and is getting himself very worked up. I’m not sure how to help him or what is going on”. On the same day or the previous day, she spoke with her human resources director and said she was worried about her husband because he seemed “really stressed” and could not calm down. She was not sure how to help him but he could not go on like that.
As a human resources manager, Mrs Jefferson said she had a reasonable awareness of the “human and business cost of workplace stress”. She was aware, from discussions with her husband, that his work “implicitly involves high levels of stress given his daily encounters with traumatic events involving life and death situations where he is required to make split second decisions, on which someone’s life may depend”.
Mrs Jefferson recounted particular incidents in 2003 and 2004. In 2003, Mr Jefferson suffered a needlestick injury and had to undergo numerous tests over three months to determine if he had contracted hepatitis or HIV. That was a “very trying and worrying time” for them. In 2004, a man under the influence of drugs threatened Mr Jefferson as he treated the man’s girlfriend. Mr Jefferson feared for the safety of his patient, his colleague and himself.
Mr Jefferson often talked to his wife about arriving at scenes where the patient was already deceased, the impact on him of not being able to make a difference, and the emotional investment and support involved in delivering the news of the death to family members. Mrs Jefferson also referred to times when her husband arrived at work to find he had been called off-road to work at the Operations Centre at Redfern. As the shift pattern was longer at the Operations Centre, the short notice of the change impacted on family commitments. She added that there was rarely a week when he did not work overtime. In recent years, it appeared that the requests for him to work overtime had increased.
Mrs Jefferson was “not aware of any particular stress factors at that time as Tim was unable to articulate what was bothering him even though he was aware something was not right”. As far as she was aware, there were no particular stress factors other than his work.
Mr Jefferson has also relied on statements from several work colleagues.
Paul Vella, ambulance officer with the respondent, said in a statement dated 18 June 2009 that he recalled in 2006, when changing shifts, Mr Jefferson looked ill and was “not himself”. When he spoke to him, he gave little or no response. Mr Vella was having a joke with other ambulance officers in the lunchroom and Mr Jefferson “just stared at us and said nothing, without laughing”. Mr Jefferson went home that morning and the next thing Mr Vella heard was that he had had a stroke. Mr Vella and Paul McQuaid, another intensive care paramedic who worked with Mr Jefferson, talked about completing an incident report because of “how [Mr Jefferson] was”. One of them completed that document on that day or the next.
Mr Vella said that Mr Jefferson did the same work as the rest of the ambulance officers and he “had no serious work related issues” as far as he could see. They all tended to get a bit stressed over their work at times. Mr Jefferson was a “bit of a perfectionist with his work duties at times”. He did not like being told to send jobs down to the other officers when he was in the control room. Work in the Operations Centre, which Mr Jefferson did at different periods, was “tense work” with a lot of stress on the operators. Mr Vella described the worker as a fit person who did not smoke.
Peter Van Winden, paramedic with the respondent, provided a statutory declaration on 2 June 2009 and a statement on 10 March 2010. Mr Van Winden talked to Mr Jefferson on the completion of his (Mr Jefferson’s) shift on 8 June 2006. He said they “would have been talking about the up and coming footy over the weekend”. At the time of his statutory declaration, it occurred to Mr Van Winden that Mr Jefferson was not his usual self “with sharp replies and humour”. Mr Jefferson seemed a bit distant, preoccupied and vague.
In his statement of 10 March 2010, Mr Van Winden listed three examples of stressful events he had attended with Mr Jefferson. With respect to the respondent’s peer support program, Mr Van Winden said that it was a common belief that, if an officer put his hand up to say he was feeling stressed, he could not handle the job. Therefore, officers “kept issues/stress levels to themselves for fear of retribution”.
Mr McQuaid prepared a note on his computer on 17 June 2006, and swore a statutory declaration on 1 June 2010. In his note of 17 June 2006, Mr McQuaid said that when he relieved Mr Jefferson on the morning of 8 June 2006, he observed him to be irritable and not acting appropriately. He was upset that simple things were not in place and “stomped around the station, looking for foam drug inlays”. When Mr McQuaid tried to make conversation with him, he was irritable and distant.
In his statutory declaration, Mr McQuaid said that Mr Jefferson had “appeared irritable and a little confused” on the morning of 8 June 2006. After hearing of Mr Jefferson’s stroke, he discussed his observations with Mr Vella and they both entered a note describing their observations in the station incident book. Mr McQuaid gave details of one of the incidents he attended (in November 2004) with Mr Jefferson and confirmed that Mr Jefferson was “visibly stressed in managing this complex job” which involved inserting a breathing tube into the patient’s trachea to assist his breathing.
Mark Hayes, the officer in charge of Ryde Ambulance Station, provided an unsigned statement on 18 June 2009. Mr Hayes had been informed that the worker’s claim form stated that the injury had been reported to him on 8 June 2006. He did not recall any formal report of injury and Mr Jefferson did not complain to him about work matters. He added that Mr Jefferson “let things at work upset him at times” and needed to discuss things with his peers. He accepted that the work could be demanding, busy and stressful.
Medical evidence
Mr Jefferson’s general practitioner is Dr Cameron. His clinical records from 2003 are in evidence. They record that, on a date not specified in 2003, Mr Jefferson experienced dizziness after 20 minutes on an exercise bike. His blood pressure was 125/80. Dr Cameron recorded Mr Jefferson’s blood pressure on three other occasions in 2003. The readings were 120/70, 120/70 and 125/70. In April 2005, Dr Cameron recorded Mr Jefferson’s blood pressure to be 138/80 and in August 2005 to be 135/80. The next entry in the notes is in October 2006, which reads “June 8th stroke ++”.
The attending ambulance officers made contact with Mr Jefferson at 1623 on 8 June 2006. They took a history that he reported tingling and numbness in his left arm, pain behind his left eye and feeling generally uncoordinated. His systolic blood pressure was 150 at 1625 and 130 at 1658.
Mr Jefferson was admitted to Royal Prince Alfred Hospital at 1655. The triage nursing assessment recorded:
“BAT CAL THIS AFTERNOON SITTING WATCHING TV SUDDEN ONSET LEFT SIDE WEAKNESS AND PAIN BEHIND LEFT EYE INITIALLY GCS15 SUDDEN DROP TO 9 PROFUSE VOMITING PUPILS PIN POINT CDA NARCAN NIL CHANGE IN GCS BP 150 P100 BSL 6.1 O/A RECOVERY POSITION VOMITING HX NIL”
The notes also recorded under “CLINICAL ASSESSMENT”:
“Nursing No’s written in retrospect.
BAT CALL 40 yo paramedic, unwell last 5/7 ↑ memory loss. Today called wife [with] slurred speech headache …”
Additional notes on the same page, but in different hand writing recorded:
“40 m
1/52 alerted behaviour
- memory mix up
- unusually ‘snappy’ with wife
today 1600 rang wife – slurred speech
called COA at the same time …”At 2000 on 8 June 2006, the neurological registrar recorded (in a history taken from Mr Jefferson’s family) that Mr Jefferson had no history of prior headaches or similar episodes in the past. His past medical history included a fractured ankle in 2000 but “nil else of note” and “nil regular” medication. His blood pressure was 150/90. Under “Imp”, the following was recorded:
“-40 yo ♂ spontaneous (R) midbrain-pontine haemorrhage [with] intraventricular extension
? underlying vascular abn (eg cavernoma)
? underlying neoplastic lesion”
The progressive notes written at 2141 on 8 June 2006 recorded that Mr Jefferson had been admitted with an acute right midbrain-pontine haemorrhage with intraventricular haemorrhage. They added:
“Background: has been vaguely irritable for last 1/52 but nil specific. At -1600, sudden onset severe headache with L arm tingling and dysarthria. During transport to hospital, started vomiting+++, L hemiplegia, GCS E3V2M5. Sedated and intubated in ED.
Ct - > acute haemorrhage R midbrain-pons extending in to IVth ventricle. No obvious ANM or neoplasm.
PMH: Nil
DH: Nil. NKDA.
SH: Work as paramedic, NS, 10g Etoh/day.
FH: Father had stroke…
HR 60 reg, BP 138/60, MAP 93 ”
Dr Shivalingham, neurosurgical registrar with RPA Neurosurgery Clinic, reported on 18 August 2006 that it was likely that Mr Jefferson had a cavernoma (a cavernous angioma – an angioma is a form of tumour) and noted that there was a positive family history for that condition.
Several entries in the hospital notes referred to Mr Jefferson having had a past medical history of hypertension.
A report from the Registrar of the Royal Rehabilitation Centre Sydney dated 19 October 2006 recorded Mr Jefferson’s past medical history as including, among other things, hypertension. Under “therapy and progress in rehabilitation”, the following was recorded: “hypertension managed with Coversyl”. Other entries in the hospital notes also included hypertension in Mr Jefferson’s past medical history.
Associate Professor Davies, neurologist at RPA’s Neurology Ambulatory Care Clinic, reported on 21 August 2006 that the haemorrhage “probably happened because of a cavernous angioma, as his father has a familial syndrome with multiple cavernous angiomas, but the presumptive lesion was obliterated by the haemorrhage and Tim has no other detectable lesions at this point”. Mr Jefferson had recently started Coversyl due to “some raised blood pressure”. Associate Professor Davies said on 25 June 2007 that recent MRI scans had not shown any new cavernomas.
Dr Hawthorne, consultant physician rehabilitation medicine, Department of Rehabilitation Medicine, Concord Hospital, reported to Dr Cameron on 6 March 2009, as follows:
“As you know, I was not involved in [Mr Jefferson’s] initial treatment. I am aware that the stroke did not occur at work. According to his discharge summary from RPAH, he had a history of hypertension, but I do not know if he was taking any medication at the time of the stroke. The stroke that he suffered is commonly associated with hypertension and I am not aware of any other clearly identified causative factors in his case. The fact that the stroke seem [sic] to have occurred some 8 hours after a shift would suggest that an acutely stressful situation was not a precipitating factor for the stroke, since haemorrhagic stroke is most likely to occur when BP is at its highest.
It is difficult to say definitively whether chronic work stress was a substantial contributing factor. If it could be shown that he had continually high BPs (consistent with hypertension) while working as an ambulance officer and that when he was not working (e.g. on holidays) his BP was normal, then I think that one could conclude that work was likely to be a contributing factor to the chronic vessel damage which can lead to haemorrhage.
I would say that BP is likely to increase acutely for any person when they are exposed to stressful situations. Clearly intensive care paramedics are exposed to stressful situations. It is not possible to say what the magnitude and duration of the BP increase would have been for [Mr Jefferson], as this would vary from individual to individual and from situation to situation. The effect of any BP increase would also vary considerably from individual to individual.
So I would say that his work could be a contributing factor. It is difficult to say how likely that it actually was, because of the uncertainties I have outlined above.
I hope this is of some assistance.”
Associate Professor Davies reported on 26 June 2009 to Dr Chung at Drummoyne Medical Centre. He said that Mr Jefferson:
“was substantially investigated during the course of his hospital admission for the cause of his haemorrhage, but no cause was identified. His father has a syndrome of multiple cavernous angiomas and it is likely that a cavernous haemorrhage in the brainstem was the primary source of the haemorrhage, but if this is so, all trace of the haemorrhage was obliterated by the haemorrhage.
There is no previous condition that influences the outcome of the haemorrhage. The haemorrhage was spontaneous and there is no suggestion that there was a traumatic cause for the haemorrhage.”
Associate Professor Davies again reported to Dr Chung on 27 November 2009, when he referred to the haemorrhage having “occurred on the background of a presumed cavernous angioma, because his father is known to have a syndrome of multiple cavernous angiomas”.
Mr Jefferson’s solicitors obtained a report from Associate Professor Overton on 11 December 2009. Associate Professor Overton was formerly Associate Professor of Anaesthesia at the University of Sydney and Deputy Director of the Royal Alexandra Hospital for Children. He has been associated with the NSW Ambulance Service since 1969. He continues to lecture and advise the Service. He has never been deployed with ambulance officers and his comments about their duties were “anecdotal” from discussions with officers.
With regard to the statements from Messrs Vella, Hayes, McQuaid and Van Winden that “Tim was upset – not himself”, Associate Professor Overton said this “requires interpretation by an expert as to whether it is significant in relation to Tim’s condition” and that he was not qualified to comment on it. He believed that “stress from many sources can cause a cerebral bleed” but “only an expert could define if those were predictable prodromal symptoms”. Associate Professor Overton said he was not qualified to comment on the stress factors and their relationship to Mr Jefferson’s condition.
Dr Hawthorne reported to Mr Jefferson’s solicitor on 8 April 2010. This letter was in response to material sent to him by the solicitors in February and March 2010. He said there was no doubt that the work duties performed by Mr Jefferson “would produce stress reactions in a large number of individuals” and that there were a “number of situations described which would be likely to cause an Ambulance Officer a degree of stress”. There was no specific cause found for Mr Jefferson’s haemorrhage. The sort of stroke suffered by Mr Jefferson was “commonly associated with hypertension”.
Dr Hawthorne added:
“It is not possible to say definitively whether [Mr Jefferson’s] work duties were a substantial contributing factor to the onset of his condition. I am not of the opinion that the stroke actually occurred at work. There are a number of reports [Mr Jefferson] did not look well, that he was pale, did not seem his usual self and was somewhat vague and irritable. There was one report that he was confused, but there was no basis given for this description. In my opinion the descriptions are highly consistent with a person who is under stress, rather than someone who was in the early stages of having a stroke. I believe that these reports are of [Mr Jefferson’s] condition approximately nine hours before he called the ambulance to attend himself. Generally haemorrhagic strokes have quite sudden onset. This suggests that the stroke did not commence at work. [Mr Jefferson’s] lack of memory for the events of that day is likely to represent retrograde amnesia caused by the subsequent cerebral insults and sedation that he experienced.
I am not aware that [Mr Jefferson] had a history of hypertension, or that he was taking medication for the condition. If [Mr Jefferson] was hypertensive on a regular basis, he would be at increased risk of haemorrhagic stroke. Haemorrhagic strokes are most likely to occur on a background of chronic vessel damage caused by relatively sustained blood pressure elevations (ie hypertension). They do occur in a smaller proportion of people with no history of hypertension.
It is quite likely that he did feel stressed at work. I believe there is good evidence that he was stressed on this particular day, and thus it is likely that his blood pressure would have been higher than usual that morning. In a normotensive person, this would increase the risk of stroke to some degree and in a hypertensive person to a greater degree.
In summary, it is certainly plausible that [Mr Jefferson’s] work was a contributing factor to his stroke. I am not able to say how significant it was as a factor.”
Dr Lorentz, consultant neurologist, examined Mr Jefferson at the request of his solicitors on 19 August 2010. In his report of 26 August 2010, Dr Lorentz noted that Mr Jefferson was not on any medication at the time of his haemorrhage, but added that the discharge summary from RPA mentioned “a retinal haemorrhage in 2005, hypertension and migraine”. He noted that Mr Jefferson’s father had a history of “multiple cavernous angiomata”. Mr Jefferson never smoked and had only occasional light beers. He was not on stimulants and did not drink excess amounts of coffee.
Mr Jefferson confirmed the stressful nature of his job and told Dr Lorentz that he could not “recollect exactly what he felt like” when he finished his shift at 8 am on 8 June 2006, though eyewitnesses said he was not himself and his wife said that he was quite stressed for a while prior to the stroke.
Under “nature of the injury suffered”, Dr Lorentz wrote “brain stem haemorrhage, possibly from a congenital cavernous angioma, which destroyed itself in the haemorrhage”. It was the view of Dr Lorentz that Mr Jefferson’s work was a substantial contributing factor to the medical condition and subsequent incapacity. Risk factors for intracerebral haemorrhage were hypertension, smoking, excess alcohol intake, obesity and diabetes. Dr Lorentz added:
“It is generally accepted that acute and chronic stress are significant factors in causing or aggravating hypertension. This is so much part of common knowledge, that there is a ‘white coat syndrome’, meaning that blood pressure readings taken the first time by doctors are generally higher than readings at other times, especially when the subject is relaxed, as on waking in [sic] after sleep. According to Stroke literature, the improved control of hypertension is responsible for the fall in incidence of cerebral haemorrhage over the last 50 years.
…
It is obvious that Mr Jefferson’s occupation as a paramedic was extremely stressful on account of the nature and conditions of work, including long hours and alternating day and night shifts.
His wife and eye witnesses testified that for some time prior to his stroke he appeared to be very stressed.
It is my opinion that Mr Jefferson’s work as a paramedic was a substantial contributing factor to his stroke and subsequent incapacity.”
In a supplementary report on 9 September 2010, Dr Lorentz added that Mr Jefferson had a mid-brain haemorrhage from a congenital cavernous angioma. The angioma had bled “probably for some hours before it became clinically obvious”. He said that Mr Jefferson had no history of vascular disease or hypertension prior to his stroke. It was his opinion that “a bleeding from the angioma occurred during change in elevation of blood pressure, which I attribute to the stressful nature of his work”.
In a report dated 16 December 2010, Dr Lorentz referred to literature on the natural history of cerebral venous malformations and angiomas and said:
“It is therefore my opinion that, whilst Mr Jefferson probably suffered from a cavernous malformation of the brain, he would not have suffered from a haemorrhage at the time and place where he did had he not had stress-related hypertension.”
In a letter to the respondent’s solicitors dated 19 January 2011, Dr Lorentz said that Mr Jefferson had “a particularly stressful period prior to the haemorrhage occurring, and there is evidence in the literature that risk factors for haemorrhage are hypertension, smoking, obesity, excess alcohol intake, as well as stress”. It was possible that Mr Jefferson had a cerebral angioma in which the haemorrhage in the mid-brain occurred. However, “no evidence of the angioma was found following recurrence of the haemorrhage”. It was his opinion that Mr Jefferson “possibly had a cavernous angioma in which a haemorrhage has occurred as a result of blood pressure related to work-related stress”.
The respondent qualified Dr O’Neill, consultant neurologist, who saw Mr Jefferson on 8 February 2011 and reported the following day. After noting the reference to migraine and hypertension in the RPA discharge summary, Dr O’Neill recorded that Mr Jefferson and his wife denied any history of migraine or hypertension. Mr Jefferson said that, prior to the stroke, he had regular check-ups with his usual general practitioner, Dr Cameron.
Dr O’Neill recorded that Mr Jefferson’s work as an intensive care paramedic “was at times an extremely stressful job and Mr Jefferson gave good examples of stress-related situations in his Statutory Declaration”. On the other hand, Dr O’Neill noted, Mr Jefferson said that he “loved his work and his wife confirmed this”. Mrs Jefferson said that for some weeks prior to the stroke her husband had been “agitated, uptight, couldn’t relax, couldn’t rationalise”. She said this was not obviously about work, “he would internalise that”. He seemed overly upset about little things. This seemed to be confirmed by Mr McQuaid who said that, on the morning of the stroke, Mr Jefferson was observed “to be irritable and not acting appropriately”. He was upset that simple things were not in place and stomped around the station looking for foam drug inlays.
Mr Jefferson could not recall to Dr O’Neill the onset of his symptoms on 8 June 2006, but could recall that he dialled “000” as he thought he was having a stroke and then called his wife. Dr O’Neill then referred to the hospital notes and said that the “mechanism for the haemorrhage was never established but Mr Jefferson’s father apparently had a stroke as a consequence of bleeding from one of a number of cavernous angiomas of the brain”. At the time of the examination by Dr O’Neill, Mr Jefferson was taking Coversyl daily for control of blood pressure.
Under “causation” Dr O’Neill said:
“An exact mechanism for the haemorrhage was never established.
Given the family history, it is certainly possible that Mr Jefferson bled from a previously asymptomatic brain stem cavernoma that was itself obliterated in the haemorrhagic process.
The commonest cause for intracerebral haemorrhage is hypertension and certainly in this case (with the exception of a possible cavernoma) other known structural causes such as aneurysm or arterio-venous malformation have been excluded. There was also no evidence of coagulopathy and Mr Jefferson did not have an excess alcohol intake.
Intracerebral haemorrhage is usually itself associated with a rise in blood pressure and I was somewhat surprised, therefore, that the systolic blood pressure was only recorded as 150 in triage in RPAH.
It is not clear from the correspondence sent to me whether or not Mr Jefferson had a background history of documented hypertension. He and his wife deny it. In that regard it would be useful to see the pre-stroke records of his general practitioner (Dr Cameron) and it would be of interest to note the nature of the retinal problem in 2005 and whether that problem was associated with elevated blood pressure.
Stress is common to many jobs, and I do not believe that stress, in itself, can cause a cerebral haemorrhage. On the other hand, I do believe stress can aggravate blood pressure in people who suffer with hypertension.
In short, I would only regard Mr Jefferson’s work as being a potential substantial contributing factor to the stroke if it was established that he had a previous history of untreated hypertension.”
In a supplementary report dated 28 July 2011, Dr O’Neill said that the medical records from DMC Medical Centre (presumably Dr Cameron’s practice) were unhelpful as there were no notes until April 2005. There was no mention of hypertension and the anti-hypertensive medication, Coversyl, seemed to have been first prescribed on 20 October 2006. It is assumed that Dr O’Neill did not see Dr Cameron’s handwritten notes, which commenced in 2003.
Dr O’Neill quoted from the report of Associate Professor Davies dated 26 June 2009, in which it was stated that the haemorrhage was spontaneous and that there was no traumatic cause for it (see [40] above), and concluded:
“On balance, I am of the view that Mr Jefferson sustained a spontaneous cerebral haemorrhage and the nature of his work was not a substantial provoking factor.”
ARBITRATOR’S REASONS
After setting out a detailed summary of the relevant evidence and the parties’ submissions, the Arbitrator said (at [143]) that the medical evidence did not “definitively establish the cause of the applicant’s stroke”. She noted that Mr Jefferson had a family history of cavernous angioma and that Drs Davies, Lorentz and O’Neill had suggested that he may have had an angioma, which led to his haemorrhage. However, if it existed, it was obliterated by the stroke and no others were found on later investigations. Apart from his exposure to stress during his employment, and possible hypertension, the Arbitrator said that Mr Jefferson had no other risk factors for a stroke.
In summarising the various medical opinions on causation, the Arbitrator said (at [144]–[147]):
(a) Associate Professor Davies said “it was likely” that a cavernous angioma in the brainstem was the primary source of the haemorrhage;
(b) Dr Hawthorne said that the haemorrhage was due to a leaking artery within the brainstem, for which no specific cause was found, and this “sort of stroke is commonly associated with hypertension”;
(c) Dr Lorentz, who accepted that Mr Jefferson possibly had an angioma, said that the haemorrhage occurred in the angioma as a result of blood pressure related work-related stress, and
(d) Dr O’Neill accepted that stress can cause hypertension, which is a risk factor for stroke and is the most common cause. He regarded Mr Jefferson’s work as a “potential substantial contributing factor” to his stroke if he had a previous history of untreated hypertension.
The Arbitrator said (at [148]) that determining the cause of the worker’s injury required the application of a “commonsense” test as stated by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). She concluded (at [149]) that Mr Jefferson had not discharged the onus of establishing that his injury arose out of or in the course of his employment.
The Arbitrator found (at [150] and [151]) that Mr Jefferson had not received an injury in the course of his employment because:
(a) apart from Dr Lorentz, who provided no reason for his opinion that Mr Jefferson’s stroke began while he was at work, the evidence was that it occurred some eight or nine hours after he ceased work, while he was at home, and
(b) Dr Hawthorne was of the opinion that Mr Jefferson was not in the early stages of a stroke when he left work on 8 June 2006. He said the fact that the stroke occurred eight hours after Mr Jefferson’s shift suggested that an acutely stressful work situation was not its precipitating factor, since it was likely to occur when blood pressure was at its highest. There was no evidence that Mr Jefferson was exposed to any stressful event on 8 June 2006, and little evidence of what work he performed on that day.
With respect to whether the injury arose out of the employment, the Arbitrator noted (at [152]) the submission made by Mr Jefferson’s counsel, Mr McManamey, that Mr Jefferson suffered from chronic stress, rather than an acute episode of stress, and that the resultant elevation of his blood pressure precipitated his stroke. Mr McManamey added that it was not necessary for him to establish that Mr Jefferson was hypertensive, but only that his blood pressure was raised, for him to succeed. He also submitted that Dr Cameron’s records revealed blood pressure readings before the stroke that were consistent with elevated blood pressure. The Arbitrator said that the doctor’s notes were difficult to read, but that it appeared the highest reading was 138/80, which was recorded in April and August 2005 (the reading in August 2005 was in fact 135/80 not 138/80).
The Arbitrator noted (at [153]) that Dr Hawthorne accepted that, if it could be shown that Mr Jefferson had continually high blood pressure while he was working and normal blood pressure at other times, it “could” be concluded that his work was likely to be a contributing factor. He added that it was difficult to say how likely that was. If Mr Jefferson was under stress at work on the day of his stroke, it was likely his blood pressure would have been elevated. In a person with normal blood pressure, that would increase the risk of stroke to some degree. In a hypertensive person, it would increase the risk to a greater degree.
Dr O’Neill did not accept that stress, in itself, could cause a cerebral haemorrhage. However, he accepted that stress may aggravate blood pressure in those who suffer from hypertension. He regarded Mr Jefferson’s employment as a “potential substantial contributing factor” to his stroke, if he had a previous history of untreated hypertension.
The Arbitrator accepted (at [155]) the evidence of Drs Hawthorne, Lorentz and O’Neill that stress may cause elevated blood pressure, which in turn is a risk factor for stroke, particularly in a hypertensive individual. However, while Dr Lorentz referred to Mr Jefferson having stress-related hypertension, there was no evidence that he in fact had hypertension before the stroke occurred. The evidence of Mr Jefferson and his work colleagues that he appeared unwell and that his behaviour was out of character before the stroke occurred did “not establish that he was hypertensive”.
The Arbitrator noted (at [156]) that, despite the history of hypertension appearing under “past history” in the Royal Prince Alfred Hospital discharge summary, both Mr Jefferson and his wife denied that he had pre-existing hypertension. There was no evidence in Dr Cameron’s records that he was treating Mr Jefferson for hypertension before the stroke in June 2006.
With regard to Mr McManamey’s submission that Dr Cameron’s records were consistent with Mr Jefferson having elevated blood pressure, the Arbitrator said (at [158]) there was no medical evidence to suggest that a reading of 138/80 was “regarded as indicative of high blood pressure”. There was no record of Dr Cameron having warned Mr Jefferson about his blood pressure or having prescribed medication for that condition before October 2006, which was after the stroke. Given his training, Mr Jefferson may have been expected to recognise the symptoms of high blood pressure, but denied any history of it.
Though the stroke itself would be expected to raise Mr Jefferson’s blood pressure, Dr O’Neill noted with some surprise that it was recorded as (only) being 150 at triage at the hospital. That did not suggest an individual who had pre-existing hypertension. In the absence of any evidence that Mr Jefferson had hypertension before his stroke, and where both he and his wife denied it, the Arbitrator was not satisfied that he suffered from pre-existing hypertension ([160]).
The Arbitrator accepted (at [161]) that, if Mr Jefferson was a normotensive individual, to adopt Dr Hawthorne’s terminology, his blood pressure may nonetheless be raised if he were exposed to stress and that would increase the risk of stroke to some degree. However, the most that Dr Hawthorne was prepared to say was that it was “certainly plausible” that Mr Jefferson’s work contributed to his stroke, but he was unable to say how significant it was.
Dr O’Neill would only accept that Mr Jefferson’s injury was work related if it was established that he had a previous history of untreated hypertension. The Arbitrator said (at [162]) that the evidence did not establish that Mr Jefferson had a history of untreated hypertension prior to 8 June 2006.
With regard to Dr Lorentz’s opinion that Mr Jefferson probably would not have suffered a haemorrhage at the time and place he did had he not had stress-related hypertension, the Arbitrator said (at [163]) that the difficulty with that opinion was that there was no evidence that Mr Jefferson had hypertension before the stroke, or that his blood pressure was elevated to such a degree on 8 June 2006 that it could be described as “high”.
The Arbitrator was not satisfied that Mr Jefferson had pre-existing hypertension, such that an increase in his blood pressure caused by stress was likely to have precipitated the injury on 8 June 2006. She repeated (at [168]) that the cause of the stroke had not been established and added:
“it is not possible to say with certainty why it occurred. Dr Lorentz refers to haemorrhage occurring in 25 per cent of patients with a cavernous malformation, but it has not been definitively established that the applicant had such a condition. The unfortunate outcome for the applicant of this uncertainty is that he has not discharged the onus.”
Having found that Mr Jefferson had not received an injury in the course of or arising out of his employment, the Arbitrator acknowledged that it was not necessary to consider if his employment was a substantial contributing factor to the injury. Nevertheless, she made the following observations on that issue.
After referring to Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 (Badawi), and noting that the causal connection between the worker’s employment and the injury must be “real and of substance”, the Arbitrator dealt with each of the factors in s 9A(2) of the Workers Compensation Act 1987 (the 1987 Act) and concluded that Mr Jefferson’s employment was not a substantial contributing factor to his stroke. Her reasons were expressed at [173]:
(a) the stroke occurred approximately eight hours after Mr Jefferson finished work, while he was at home;
(b) it was not possible to know whether Mr Jefferson may have had a stroke whether or not he was employed by the respondent, as it was not possible to know whether he had a cavernous angioma, and, if so, whether it would have caused a haemorrhage;
(c) Mr Jefferson was apparently in good health before the stroke occurred, though there was evidence from his wife and colleagues that he had been “stressed” for some time before, and appeared unwell on the day it occurred. There was evidence that his father had cavernous angiomas and had had a stroke. Mr Jefferson was therefore at risk of also having a cavernous angioma, and
(d) Mr Jefferson did not have other risk factors for a stroke; he did not smoke, was a light drinker, was not overweight and did not have diabetes.
The Arbitrator preferred the opinions of Drs Hawthorne and O’Neill to that of Dr Lorentz. In particular, Dr Hawthorne went no further than to say it was “plausible” that Mr Jefferson’s work was a contributing factor to the stroke, but was unable to say how significant it was.
SUBMISSIONS
Mr McManamey submitted that the “central issue” for determination by the Arbitrator was whether the injury arose out of the employment. At the oral hearing of the appeal, he conceded that there was insufficient evidence to establish that Mr Jefferson suffered an injury in the course of his employment and did not press that point. His argument on appeal was that Mr Jefferson’s injury arose out of his employment and this was a case where arising out of and substantial contributing factor under s 9A “really rise and fall together” (T21.13).
He said that the medical evidence agreed, and the Arbitrator accepted, that Mr Jefferson suffered a brainstem haemorrhage. The task for the Arbitrator was to determine on the balance of probabilities whether the haemorrhage arose out of employment and, if so, whether employment was a substantial contributing factor to the injury. It was accepted that (at [14]–[106]) the Arbitrator set out a “fair summary of the evidence”.
With respect to the Arbitrator’s statement at [168] (see [72] above) that the cause of the stroke had not been established and it was not possible to say with certainty why it occurred, Mr McManamey submitted that the Arbitrator did not apply the correct legal standard. It was not necessary for there to be certainty, which is arguably a stricter test than beyond reasonable doubt. It is sufficient if the matter can be determined on the balance of probabilities. The Arbitrator did not need to be certain of what caused the haemorrhage; she merely had to determine the most likely cause.
In this case, there were only two possible conclusions. Either the stroke was caused by the stress of work or it was a spontaneous event. The Arbitrator accepted that stress may cause elevated blood pressure, which is a risk factor for stroke, particularly in a hypertensive individual. Dr Hawthorne considered stress could have elevated the blood pressure and would have increased the risk of stroke to some degree and, in a hypertensive person, would have increased the risk to a greater degree. Drs Lorentz and O’Neill essentially agreed with that opinion.
There was evidence of increasing blood pressure over time. Dr Cameron’s notes record Mr Jefferson’s blood pressure in 2003 to be 125/80 and 138/80 in April and August 2005. Mr McManamey agreed at the hearing that the entry for August 2005 is 135/80, not 138/80. As an expert tribunal, the Arbitrator was entitled to inform herself that hypertension is usually diagnosed when blood pressure is 140/90. Normal blood pressure is 125/70. The evidence showed that, 10 months before the stroke, Mr Jefferson’s blood pressure was at the upper end of the normal range and had been increasing.
During the 10 months before the stroke, Mr Jefferson continued to be exposed to the stressful matters set out in his statement, which are accepted to have been capable of causing increased blood pressure. By 8 June 2006, Mr Jefferson was feeling agitated and stressed, having regard to the day-to-day challenges of the working environment. Mr Jefferson, and several of his work colleagues, gave evidence that his work was stressful. Mr Jefferson’s evidence was that he felt “agitated and stressed” at work on the morning of 8 June 2006. Other evidence established that Mr Jefferson’s behaviour on that morning was “out of character, as he appeared irritable and confused” (Paul McQuaid), looked ill and was not himself (Paul Vella) and was not his usual self, seeming distant and vague, pale and washed-out looking (Peter Van Winden).
Mrs Jefferson, a human resources manager, gave evidence that she had observed from mid-May 2006 that her husband was beginning to display erratic, out of character behaviour, including getting annoyed over inconsequential issues. She considered that her husband was totally stressed. The indication is that Mr Jefferson had reached a state of being permanently stressed as a result of his work. No other stressful circumstances were identified in the evidence. The evidence does not suggest that he became less stressed when he went home. Other witnesses confirmed that, on 8 June 2006, Mr Jefferson was exhibiting signs and symptoms that Dr Hawthorne thought were consistent with a person who was under stress.
There is ample evidence that Mr Jefferson was exhibiting signs of stress leading up to and on 8 June 2006. That stress would have contributed to an increase in blood pressure. Drs Hawthorne, Lorentz and O’Neill all accept that stress can increase blood pressure. It is likely that, if Mr Jefferson had seen Dr Cameron shortly before his stroke, his blood pressure would have been found to have increased since August 2005. Only a slight increase was required for Mr Jefferson to have been diagnosed with hypertension.
The evidence was that Mr Jefferson was exhibiting signs of stress (greater than had previously been noted) when last seen by others on 8 June 2006, and there was no reason to conclude that he would have been less stressed after he went home.
The stroke occurred when there was evidence of increasing blood pressure, evidence of stress which is capable of increasing blood pressure, and evidence that, on the day of the stroke, Mr Jefferson was exhibiting signs of stress in excess of what he had previously displayed. It is accepted that stress can increase blood pressure and that increasing blood pressure can precipitate a stroke. All of those factors point to a strong possibility of a causal link between employment and the onset of the stroke on 8 June 2006. Dr O’Neill observed that the commonest cause for intracerebral haemorrhage is hypertension. In this case, other than a possible cavernoma, other known structural causes had been excluded. Hypertension is no more than increased blood pressure.
The alternative is that, despite these precipitating factors, Mr Jefferson had a stroke that was totally spontaneous in its onset. The opinions in support of spontaneous onset are not strong. Associate Professor Davies said that the haemorrhage was spontaneous and that there was no suggestion that there was a traumatic cause for the brain haemorrhage. He appears to have only considered the alternate cause for brain haemorrhage as being trauma. There is no indication that he was aware of the antecedents to the haemorrhage and he was not aware of the stress Mr Jefferson experienced prior to it. He did not consider the possibility of work stress precipitating the haemorrhage.
Dr O’Neill said in his report of 28 July 2011 that the haemorrhage was spontaneous. He had not seen Dr Cameron’s handwritten notes in which the blood pressure readings were recorded. Dr O’Neill did not otherwise explain his conclusion. This was important because he stated in his earlier report that stress can aggravate blood pressure. The medical evidence does not establish a mechanism by which a brain haemorrhage can be said to be spontaneous. Rather, Dr O’Neill was simply not satisfied that stress was a substantial contributing factor. He did not disclose the standard of proof that he required to be satisfied.
When the evidence is weighed applying the proper standard of proof (on the balance of probabilities), the conclusion should be that the haemorrhage was caused or precipitated by the stress at work. In those circumstances, the injury arose out of the employment. In reaching this conclusion, it does not matter whether Mr Jefferson had a cavernous angioma or not. If he did not, the above analysis stands. If he did, it may have increased his vulnerability in that he was more likely to suffer a haemorrhage if he had increased blood pressure. The angioma would have made Mr Jefferson more easily injured, but the onset of the haemorrhage at that time would still have been precipitated by the stress at work.
The proper conclusion on injury would establish that there is a causal connection between employment and the injury. The contribution of the employment is real and of substance, as it is the reason the haemorrhage happened when it did. The finding that the haemorrhage arose out of employment excludes a conclusion that the injury would have happened at the same time in any event. The only proper conclusion is that employment is a substantial contributing factor in the sense that it is real and of substance.
Mr McManamey made the following additional submissions at the oral hearing of the appeal:
(a) the Arbitrator did not deal with the history in the hospital records that Mr Jefferson’s past medical history included hypertension. He also referred to Mr Jefferson taking Coversyl (medication for high blood pressure) in August 2007 at a time when his blood pressure was only 135/90;
(b) the change in Mr Jefferson’s behaviour was consistent with him suffering from increased stress and he had reached a stage where he was permanently stressed;
(c) Dr Hawthorne interpreted Mr Jefferson’s behaviour on 8 June 2006 as the behaviour of a person under stress, not the early stage of a stroke;
(d) the Arbitrator failed to weigh the evidence to decide if Mr Jefferson was under work stress and whether, if under stress, that may have increased his blood pressure. When that evidence is considered, the conclusion is that Mr Jefferson had raised blood pressure on 8 June 2006 consequent upon his stress symptoms;
(e) Mr Jefferson’s state after he left work on 8 June 2006 is not known and it is not known who gave the history recorded by the hospital that he was watching TV at home;
(f) the Arbitrator did not deal with the evidence from Dr Hawthorne and Dr Lorentz that stress can lead to an increase in blood pressure and did not consider whether there was a link between that and the stroke at 4 pm, and
(g) the Arbitrator failed to consider the totality of the evidence from Dr Lorentz and did not analyse if Mr Jefferson had high blood pressure and did not consider the opinion of Dr Lorentz against that background.
DISCUSSION AND FINDINGS
I do not accept that the Arbitrator applied the wrong standard of proof. Even if she did apply the wrong standard, for the reasons explained below, that has not affected the outcome. Applying the correct standard, I have reached the same conclusion, namely, that Mr Jefferson has not discharged the onus of establishing on the balance of probabilities that his haemorrhage arose out of his employment.
The Arbitrator’s statement that it was not possible to say with certainty why the stroke occurred must be read in the context of her reasons overall (Sarian v Elton [2011] NSWCA 123). The context was that, as the Arbitrator correctly noted, the medical evidence did not “definitively establish” the cause of the stroke. That was no more than a general observation, based on the whole of the evidence. It was clearly not intended as an indication that, to succeed, Mr Jefferson had to establish his case to a standard other than the balance of probabilities.
The statement complained of appears after the Arbitrator considered the injury issue. That discussion started at [140] of her decision and involved an extensive review of the evidence and an express reference to the commonsense test of causation in Kooragang. The Arbitrator then said (at [149]) that she had determined that Mr Jefferson had not discharged the onus of establishing that his injury arose out of or in the course of his employment. Her approach did not suggest, either expressly or impliedly, that she applied a standard other than the civil standard. This conclusion is supported by her reference to, and application of, the principles in Kooragang.
The Arbitrator gave detailed reasons for concluding that Mr Jefferson had not discharged the onus of proof. On the question of whether he suffered an injury in the course of his employment, she accepted Dr Hawthorne’s evidence that the stroke occurred eight or nine hours after Mr Jefferson ceased work. This finding was open on the evidence and has not been challenged.
On the question of whether Mr Jefferson’s stroke arose out of his employment, it is uncontroversial that the requirement that an injury “arise out of employment involves a causal relationship between the employment and the injury” (Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 at 570G–571B), and the parties approached the case on that basis.
Mr Jefferson’s case rested largely on an acceptance of the evidence from Dr Lorentz that Mr Jefferson had “stress-related hypertension” (Dr Lorentz’s report of 16 December 2010), or that the haemorrhage occurred “during [a] change in elevation of blood pressure, which [Dr Lorentz] attribute[d] to the stressful nature of [Mr Jefferson’s] work” (Dr Lorentz’s report of 9 September 2010). This evidence had to be considered, it was submitted, in the context of the lay evidence that Mr Jefferson was exhibiting signs of stress at work on 8 June 2006, had been stressed at home in the weeks leading up to that date, and the evidence that stress can cause blood pressure to increase.
For the reasons explained below, the Arbitrator considered Dr Lorentz’s evidence in the context of the other evidence in the case and did not accept it. She said at [155]:
“I accept the evidence of Drs Hawthorne, Lorentz and O’Neill that stress may cause elevated blood pressure, which in turn is a risk factor for stroke, particularly in a hypertensive individual. However, while Dr Lorentz refers to the applicant having stress related hypertension, there is no evidence that he in fact had hypertension before the stroke occurred. There is the evidence of Mrs Jefferson and the applicant’s colleagues that he appeared to be unwell and that his behaviour was out of character before the stroke occurred, but that does not establish that he was hypertensive.”
Mr McManamey has challenged the Arbitrator’s use of the term hypertensive, saying it was not clear what it meant. I have assumed that, when the Arbitrator used the adjective “hypertensive”, she was referring to a person exhibiting, or a condition relating to, hypertension. In other words, based on the evidence from Mrs Jefferson and Mr Jefferson’s work colleagues, the Arbitrator was not satisfied that Mr Jefferson had hypertension on 8 June 2006.
Mr McManamey also submitted, in relation to [155], that Dr Lorentz was aware that Mr Jefferson did not have a history of hypertension prior to his stroke and the Arbitrator therefore erred in saying that “while Dr Lorentz refers to [Mr Jefferson] having stress-related hypertension, there is no evidence that he in fact had hypertension before the stroke occurred”. I do not accept that the Arbitrator erred in the manner alleged.
The Arbitrator’s statements and conclusion at [155] were very specific:
(a) she accepted that stress may cause elevated blood pressure;
(b) she accepted that elevated blood pressure is a risk factor for stroke, particularly in a hypertensive individual;
(c) while Dr Lorentz referred to Mr Jefferson having stress-related hypertension, there was no evidence that he had hypertension before the stroke, and
(d) the evidence from Mrs Jefferson and Mr Jefferson’s work colleagues about his appearance before the stroke did not establish that he was hypertensive.
The Arbitrator’s statements at (a) to (c) inclusive were consistent with the evidence. The evidence was that stress may cause elevated blood pressure, which is a risk factor for stroke. Dr Lorentz said that Mr Jefferson would not have had his stroke at the time or place he did “had he not had stress-related hypertension”. However, it is also correct that there is no evidence that Mr Jefferson had hypertension before the stroke (see [109] below). It is accepted that Dr Lorentz acknowledged that Mr Jefferson did not have a history of hypertension prior to the stroke. However, contrary to Mr McManamey’s submission, the Arbitrator did not say or imply that Dr Lorentz had assumed Mr Jefferson had hypertension before 8 June 2006.
The Arbitrator accepted two of the propositions in Mr Jefferson’s case, namely, that stress may cause elevated blood pressure and that elevated blood pressure is a risk factor for stroke. Those factors alone did not establish Mr Jefferson’s case. The Arbitrator did not accept that the lay evidence established that Mr Jefferson had hypertension (“was hypertensive”) on 8 June 2006, or that work caused the haemorrhage. Those conclusions were open on the evidence and I agree with them. She returned to the relevance of elevated blood pressure later in her decision.
The only evidence on the meaning of hypertension is in Dr Hawthorne’s report of 8 April 2010, where he said that “haemorrhagic strokes are most likely to occur on a background of chronic vessel damage caused by relatively sustained blood pressure elevations (ie hypertension)” (emphasis added). There was no evidence that Mr Jefferson suffered from relatively sustained blood pressure elevations.
The Arbitrator repeated (at [163]) that the difficulty in accepting Dr Lorentz’s opinion was that there was no evidence that Mr Jefferson had hypertension before the stroke and added that there was no evidence Mr Jefferson’s blood pressure was elevated to such a degree on 8 June that it may be described as “high”. Given the lack of evidence that Mr Jefferson had hypertension (relatively sustained blood pressure elevations) before 8 June 2006, it was open to the Arbitrator to prefer Dr Hawthorne’s evidence to the evidence of Dr Lorentz. Her approach and conclusion disclose no error and I agree with them.
The further attack on the Arbitrator’s decision is that she failed to analyse if, as a result of stress, Mr Jefferson had increased blood pressure on 8 June 2006, and failed to analyse the opinion of Dr Lorentz in his report of 9 September 2010 against the background of the lay evidence and the evidence of Dr Hawthorne that Mr Jefferson was exhibiting signs of stress on the morning of 8 June 2006. I do not accept this submission.
The Arbitrator acknowledged (at [142] and [152]) that Mr Jefferson’s case was that raised blood pressure (not necessarily so high as to justify a diagnosis of hypertension) was a “known risk factor for stroke” and (at [146]) that Dr Lorentz was of the opinion that the haemorrhage occurred in the angioma as a result of blood pressure related to work-related stress. She also acknowledged that stress could increase blood pressure and that there was evidence that Mr Jefferson had been stressed for some time before 8 June 2006 (Reasons at [173(d)]). However, she did not accept Dr Lorentz’s conclusion. Her main reasons were:
(a) there was no evidence that a reading of 138/80 is regarded as indicative of “high blood pressure” (Reasons at [158]);
(b) if Mr Jefferson was a “normotensive” individual (to use Dr Hawthorne’s terminology) his blood pressure may nevertheless be raised if he were exposed to stress, and increase the risk of stroke to some degree (Reasons at [161]);
(c) if that occurred, that is, if Mr Jefferson was exposed to stress, it was “certainly plausible” (on Dr Hawthorne’s evidence) that the work contributed to the stroke (Reasons at [161]);
(d) Dr O’Neill only accepted that the haemorrhage was work-related if it was established that Mr Jefferson had a previous history of untreated hypertension, which was not established on the evidence (Reasons at [162]);
(e) there was no evidence that Mr Jefferson’s blood pressure was elevated to such a degree on 8 June 2006 that it could be described as “high” (Reasons at [163]);
(f) Dr Lorentz said that acute and chronic stress were significant factors in causing or aggravating hypertension (Reasons at [181]), and
(g) she preferred the opinions of Drs Hawthorne and O’Neill, in particular Dr Hawthorne (Reasons at 182]).
The Arbitrator gave a further reason for not accepting the opinion of Dr Lorentz. That was because he had originally said that the angioma was a “possible” cause of the stroke and later, without explanation, said that it did cause the stroke (Reasons at [180]).
To the extent the Mr Jefferson’s case was that any increase in blood pressure could have caused the haemorrhage, that opinion was not consistent with the reasoned opinion of Dr Hawthorne, one of Mr Jefferson’s treating doctors, whose evidence the Arbitrator preferred. Dr Hawthorne’s evidence was logical and entitled to significant weight. It was largely consistent with Dr O’Neill’s evidence, which the Arbitrator also accepted. The Arbitrator’s reasons provided a proper basis for not accepting Dr Lorentz’s opinions and disclose no error.
The Arbitrator’s statement that there was no evidence that Mr Jefferson had hypertension before the stroke was correct. The evidence was that Mr Jefferson’s blood pressure was 135/80 in August 2005. There was no evidence that such a reading justified a diagnosis of hypertension or a conclusion that Mr Jefferson’s blood pressure was high. The Arbitrator also correctly observed that there was no evidence that Dr Cameron had warned Mr Jefferson about his blood pressure. The Arbitrator correctly noted that Mr Jefferson and Mrs Jefferson both denied that Mr Jefferson had a history of hypertension. The Arbitrator was well justified in concluding that Mr Jefferson did not have hypertension prior to his stroke. That finding was consistent with the evidence and discloses no error.
The Arbitrator did not fail to consider the effect of stress on blood pressure. She expressly acknowledged that blood pressure may increase if a person is exposed to stress, and that such an increase can increase the risk of stroke to some degree. However, she did not accept that Mr Jefferson had hypertension before 8 June 2006, or that his blood pressure was elevated to such a degree on that day that it could be described as “high”. It was certainly possible that stress may have caused Mr Jefferson’s blood pressure to increase on the morning of 8 June 2006 and the Arbitrator acknowledged that Dr Hawthorne had conceded as much. But that fact on its own did not establish the worker’s case.
Dr Hawthorne went no further than to say that it was “plausible” that Mr Jefferson’s work contributed to the stroke, but was unable to say how significant it was. This was in the context of his comment that the fact that the stroke occurred approximately eight hours after Mr Jefferson finished his shift suggested that any stressful work situation was not a precipitating factor, since the stroke was likely to occur when blood pressure was at its highest. Dr O’Neill only accepted that the stroke was work-related if it was established that Mr Jefferson had a previous history of untreated hypertension. The evidence did not establish that Mr Jefferson had previous untreated hypertension.
Dr Hawthorne further explained that haemorrhagic strokes are most likely to occur on a background of “chronic vessel damage caused by relatively sustained blood pressure elevations (ie hypertension)”. This did not completely exclude the possibility that work caused or contributed to the stroke, especially since Dr Hawthorne added that such strokes do occur in a smaller proportion of people with no history of hypertension, but it made work a much less likely cause. Given that Mr Jefferson did not have a history of “relatively sustained blood pressure elevations”, Dr Hawthorne’s opinion was persuasive.
As noted above, the blood pressure reading in Dr Cameron’s notes for August 2005 was 135/80, not 138/80. Though this difference is only small, and probably not critical, it is inconsistent with Mr McManamey’s written submission, not pressed at the oral hearing, that, 10 months before the stroke, Mr Jefferson’s blood pressure had been increasing. In the two readings taken in 2005, it had decreased slightly. Though it is not determinative, and I do not base my decision on it, I note that Dr Cameron took no history of Mr Jefferson experiencing stress at work or exhibiting signs of stress.
Even if the Commission were to accept, notwithstanding the absence of expert evidence on the point, that hypertension is usually diagnosed when blood pressure is 140/90, there is no evidence that Mr Jefferson’s blood pressure ever reached that level. Blood pressure fluctuates significantly over time depending on many factors (this is well illustrated by the blood pressure readings taken while Mr Jefferson was in hospital, which fluctuated between 119/58 and 150/90). The critical point is that there is no medical evidence that Mr Jefferson had “relatively sustained blood pressure elevations” (hypertension) at or about the time of the stroke. The suggestion by Dr Lorentz that Mr Jefferson had stress-related hypertension at the time of the stroke was speculative.
While it is accepted that Mr Jefferson gave evidence that he was feeling stressed on 8 June 2006, and that his job was challenging, neither he nor any of his work colleagues gave any evidence of any stressful activities on that shift or the immediately preceding shifts. His statement focused on particular events that happened in 2004 and 2005, and on a general assertion that he felt agitated and stressed, having regard to the day-to-day challenges of the working environment. He then referred to rapidly changing situations, time pressures, ill-defined problem situations, and a high degree of uncertainty.
Mr Jefferson’s statement was in terms of his job in general and he related no events that occurred on his shift on 8 June 2006 that troubled him or were likely to have caused him stress, a fact that the Arbitrator noted at [151]. I do not accept the submission that Mr Jefferson’s statement recounted events that occurred on 8 June 2006. The statement was clearly expressed in general terms, “having regard to the day to day challenges of the working environment” without any reference to events on the shift that finished on the morning of 8 June 2006. This point is of limited relevance in any event. Even accepting that, because of his duties in general, Mr Jefferson was stressed at work on 8 June 2006, Dr Hawthorne’s evidence that “an acutely stressful situation was not a precipitating factor for the stroke, since haemorrhagic stroke is most likely to occur when BP is at its highest” (emphasis added) is strongly against a finding that work caused or contributed to the stroke.
The submission that, if Dr Cameron had seen Mr Jefferson shortly before his stroke, his blood pressure would have been found to have increased since August 2005 is speculative and involves guesswork. In any event, an increase in blood pressure would not of itself have established that Mr Jefferson had hypertension. It would be necessary to know the extent of the increase, the circumstances in which it occurred and whether it was a sustained increase before such a diagnosis could be made.
I do not accept the submission that there is no reason to conclude that Mr Jefferson would have been less stressed after he went home. The hospital notes recorded that Mr Jefferson’s symptoms started while he was watching television. If his work on his shift on 8 June 2006 was stressful (and I emphasise that there was no evidence of any particularly stressful events in the course of that shift), then it is reasonable to infer that watching television at home was less stressful. There is no evidence that he was ruminating about his work while at home, either on 8 June 2006 or at other times. Whether the history in the hospital notes came from Mr Jefferson or another source is of no consequence. Mr Jefferson has not challenged or contradicted the accuracy of that part of the notes, as he did the history of past hypertension recorded in the discharge summary.
The submission that the stroke occurred when there was evidence of increasing blood pressure was not entirely accurate. The evidence was that Mr Jefferson’s blood pressure was higher in 2005 than it had been in 2003, but slightly lower in August 2005 than it had been in April 2005. While Mr Jefferson said he felt stressed on the morning of 8 June 2006, he did not identify any particularly stressful events that occurred in the course of his shift. Nevertheless, Dr Hawthorne felt that it was likely that Mr Jefferson’s blood pressure would have been higher than usual on the morning of 8 June 2006. However, on the question of causation, he stopped short of saying work had caused or contributed to the stroke, saying only that it was “plausible” that work was a contributing factor to the stroke. That merely established that work was a possible cause. It did not establish causation on the balance of probabilities, which requires that the necessary facts be established as being more probable than not. The necessary facts have not been established to that standard.
I do not accept that hypertension is no more than “increased blood pressure”, as Mr McManamey submitted on the appeal. If a person’s blood pressure increased from 110/70 to 120/80 that would not establish hypertension. As I have noted, the evidence established that Mr Jefferson’s blood pressure increased from 120/70 in 2003 to 138/80 in April 2005 and was 135/80 in August 2005.
Giving full weight to the lay evidence (including the evidence from Mrs Jefferson) about Mr Jefferson’s conduct on 8 June 2006 and in the weeks leading up to that date, and to Dr Hawthorne’s evidence that Mr Jefferson was under stress at work on 8 June 2006, the evidence does not establish that it was more probable than not that he had relatively sustained blood pressure elevations up to or on 8 June 2006. Given Dr Hawthorne’s evidence that haemorrhagic strokes are most likely to occur on a background of “chronic vessel damage caused by relatively sustained blood pressure elevations”, the opinion of Dr Lorentz that the haemorrhage occurred during a “change of blood pressure” due to the stressful nature of Mr Jefferson’s work is unsustainable and the Arbitrator did not err in not accepting it and preferring the evidence of Drs Hawthorne and O’Neill.
The submission that the opinions that Mr Jefferson’s stroke was spontaneous in its onset were not strong has ignored the fact that Mr Jefferson carries the onus of proof. It was not for the respondent to prove that the stroke was spontaneous, but for Mr Jefferson to prove, on the balance of probabilities, that it arose out of his employment. Mr Jefferson failed to discharge that onus.
Dealing with the evidence from Associate Professor Davies, even though he only considered trauma as the alternative cause for the stroke, his opinion that the haemorrhage was spontaneous did not advance the worker’s case.
Dr O’Neill also said that the haemorrhage was spontaneous. Mr McManamey has submitted that Dr O’Neill did not explain his opinion and had not seen Dr Cameron’s notes in which the blood pressure readings were recorded. His opinion that the haemorrhage was spontaneous was expressed in his short report of 28 July 2011. That report must be read with his report of 9 February 2011, where he recorded:
(a) that Mr Jefferson loved his work (something that Mrs Jefferson confirmed);
(b) that Mr Jefferson denied any history of migraine or hypertension;
(c) the mechanism for the haemorrhage was never established;
(d) it was possible that Mr Jefferson bled from a previously asymptomatic brain stem cavernoma;
(e) the commonest cause for intracerebral haemorrhage was hypertension;
(f) as intracerebral haemorrhage is usually associated with a rise in blood pressure, he was surprised that Mr Jefferson’s systolic blood pressure was “only recorded as 150 in triage in RPAH” (emphasis added);
(g) it was not clear to him whether or not Mr Jefferson had a background history of documented hypertension;
(h) while he accepted that stress can aggravate blood pressure in people who suffer with hypertension, he did not believe stress, in itself, could cause a cerebral haemorrhage, and
(i) he would only regard Mr Jefferson’s work as a potential substantial contributing factor to the stroke if it was established that he had a previous history of untreated hypertension.
Dr O’Neill also recorded that Mr Jefferson’s job was “at times extremely stressful”, that in the weeks prior to the stroke Mr Jefferson had been “agitated, uptight, couldn’t relax, couldn’t rationalise”, and that, on the morning of the stroke, he was irritable and not acting appropriately. Dr O’Neill also referred to the hospital notes. In these circumstances, and particularly in light of the fact that Mr Jefferson did not have hypertension before the stroke, Dr O’Neill’s history provided a fair climate for his opinion to be assessed (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510).
Though Dr O’Neill did not see Dr Cameron’s handwritten notes (which included Mr Jefferson’s blood pressure readings in 2003 and 2005), there is no evidence that readings of 135 or 138 justified a conclusion that Mr Jefferson had hypertension. In these circumstances, Dr O’Neill’s opinion that the haemorrhage was spontaneous is persuasive. That is especially so when it is read with Dr Hawthorne’s evidence that the stroke occurred at home eight hours after Mr Jefferson stopped work.
Mr McManamey also submitted that Dr O’Neill had not disclosed the standard of proof he required to be satisfied. It was for the Commission to apply the correct standard of proof once the evidence was established. Dr O’Neill’s evidence did not support the worker’s case and provided strong support for the conclusion that the stroke was spontaneous.
I do not accept that the Arbitrator failed to deal with the entries in the hospital notes to the effect that Mr Jefferson’s medical history included hypertension. At [158], she correctly noted that there was no evidence that a blood pressure reading of 138/80 was regarded as indicative of high blood pressure. She also correctly observed, as I have noted above, that there was no evidence that Dr Cameron had ever warned Mr Jefferson about his blood pressure, or prescribed medication for it prior to October 2006, and that Mr Jefferson denied any history of such a condition.
In the absence of any evidence that Mr Jefferson had hypertension before his stroke, and where both he and his wife specifically denied it, the Arbitrator was not satisfied that he suffered from pre-existing hypertension (Reasons at [160]), despite the history to the contrary in the hospital discharge summary, which the Arbitrator had noted at [156]. Mr Jefferson clearly did not have a history of hypertension before 8 June 2006 and the Arbitrator’s conclusion to that effect necessarily involved a rejection of the history recorded in the hospital notes and discharge summary that he did. It was not necessary for her to deal further with that issue.
The submission that the history of hypertension noted in the hospital notes may have come from Dr Cameron is simply unsubstantiated speculation, which I do not accept.
The fact that Mr Jefferson was taking Coversyl in August 2007, when his blood pressure was 135/90, is of no assistance in determining if he had untreated hypertension before June 2006. By August 2007, Mr Jefferson had been taking Coversyl for some time. There is no evidence that Coversyl, or any similar medication, was or should have been prescribed before June 2006.
I do not accept that the Arbitrator failed to weigh the evidence to decide if Mr Jefferson was under work stress and whether that may have increased his blood pressure and caused the haemorrhage, as alleged in Dr Lorentz’s report of 9 September 2010. The Arbitrator accepted that, if Mr Jefferson was under stress at work on 8 June 2006, it was likely that his blood pressure would have been elevated and, in a person with normal blood pressure, that would have increased the risk of stroke to some degree. In a person with hypertension, it would have increased the risk of stroke to a greater degree. However, as she did not accept that Mr Jefferson had hypertension, either before 8 June 2006 or on that day, she did not accept the worker’s case that any increase in blood pressure was enough to have caused or contributed to the haemorrhage. That conclusion was open and discloses no error.
The Arbitrator’s conclusion is strongly supported by Dr Hawthorne’s evidence, which the Arbitrator referred to at [153], that, if it could be shown that Mr Jefferson had continually high blood pressure (consistent with hypertension) while working as an ambulance officer and that when he was not working (eg, on holidays) his blood pressure was normal, then “one could conclude that work was likely to be a contributing factor to the chronic vessel damage which can lead to haemorrhage”. While it was not essential for Mr Jefferson to call this kind of evidence to succeed, the absence of such evidence, though not determinative, weakened his case and contributed to the finding that he had not made out his case.
For the reasons explained above, I do not accept that the Arbitrator did not deal with the evidence from Dr Hawthorne and Dr Lorentz that stress can lead to an increase in blood pressure and did not consider whether there was a link between an increase in blood pressure and the stroke. The Arbitrator preferred the evidence of Drs Hawthorne and O’Neill. For the reasons already explained, that conclusion was open to her and necessarily involved a rejection of both opinions expressed by Dr Lorentz. The Arbitrator did analyse the issues and I agree with her reasons and conclusions.
If, contrary to my view, the Arbitrator failed to deal with Dr Lorentz’s evidence that the haemorrhage occurred during a change in elevation of blood pressure due to the stressful nature of his work, and failed to consider that evidence in light of the lay evidence and Dr Hawthorne’s evidence, then, on re-determination, I have, for the reasons set out in this decision, reached the same conclusion, namely, that Mr Jefferson has not proved that, on the balance of probabilities, his haemorrhage arose out of his employment.
In light of Dr Hawthorne’s evidence that haemorrhagic strokes are most likely to occur on a background of chronic vessel damage caused by relatively sustained blood pressure elevations (which I do not accept Mr Jefferson had), that the stroke was most likely to have occurred when Mr Jefferson’s blood pressure was at its highest, that is, in the morning when he was exhibiting signs of stress, and his opinion that the stroke in fact occurred in the afternoon, eight hours after Mr Jefferson stopped work, the argument that chronic stress caused an increase in blood pressure and that that increase caused the stroke is simply unsustainable and I do not accept it. For the reasons already explained, I prefer the evidence of Drs Hawthorne and O’Neill to that of Dr Lorentz.
On re-determination, I would add that Mr Jefferson’s assertion that his work was generally stressful and that he suffered chronic stress is of little assistance in determining the cause of his stroke. He was an experienced paramedic. There was no evidence that he was doing anything out of the ordinary or stressful on 8 June 2006. There was no evidence that being the acting station officer added to the demands of his job or caused him any anxiety. The assertion that Mr Jefferson was subject to chronic stress in his job must be assessed in light of the history taken by Dr O’Neill, confirmed by Mrs Jefferson, that the worker “loved his work”. That history was not the history of a person suffering from chronic stress. In addition, as I have already noted, there was no suggestion in Dr Cameron’s notes that Mr Jefferson had ever presented with symptoms of anxiety or stress because of his work. The argument that stress at work caused or contributed to Mr Jefferson’s stroke has not been made out.
Notwithstanding these comments, even accepting that Mr Jefferson was exhibiting signs of stress on 8 June 2006, and accepting that stress can cause an increase in blood pressure, for the reasons explained above, I do not accept that, on the balance of probabilities, Mr Jefferson’s stroke arose out of his employment. Though it is not necessary for the determination of the case, I have concluded that Mr Jefferson’s stroke was spontaneous.
As I have found that Mr Jefferson’s injury did not arise out of his employment, the question of whether his employment was a substantial contributing factor to his injury does not arise.
CONCLUSION
Mr Jefferson has not established that the Arbitrator erred in finding that he had not discharged the onus of proving that his injury arose out of or was received in the course of his employment. An analysis of the Arbitrator’s decision demonstrates that she was not satisfied that the necessary facts to prove the case had been established as being more probable than not. It follows that it was open to the Arbitrator to conclude that Mr Jefferson had not discharged the onus of establishing that his injury arose out of or in the course of his employment. She did not apply the incorrect standard of proof. If she did apply the wrong standard of proof, or err in any of the other ways alleged on appeal, which I do not accept, that has not affected the outcome and I have, for the reasons explained above, reached the same conclusion applying the correct standard.
DECISION
The Arbitrator’s determination of 21 September 2011 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
8 March 2012
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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