KTKY and Comcare (Compensation)
[2019] AATA 1123
•30 April 2019
KTKY and Comcare (Compensation) [2019] AATA 1123 (30 April 2019)
Division:GENERAL DIVISION
File Number(s): 2016/6320
Re:KTKY
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:30 April 2019
Place:Perth
The Reviewable Decision of 28 September 2016 is affirmed.
...........................[sgd].............................................
Senior Member Dr M Evans
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – heart attack – broken heart – type 2 acute myocardial infarction – whether a “disease” or an “injury (other than a disease)” – whether causal relationship between Applicant’s employment and her heart attack – whether injury arising out of, or in the course of the Applicant’s employment – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 29(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 5A, s 5A(1)(a),
s 5A(1)(b), s 5B, s 14, s 14(1), s 16, s 24, s 27, s 60(1), s 61, s 61(1A), s 62, s 62(2),
s 62(4), s 62(5), s 64(1), s 65(4)CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Hutchinson and Comcare [2018] AATA 4357
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain and Comcare [2016] AATA 459SECONDARY MATERIALS
Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, Federation Press 2018)
REASONS FOR DECISION
Senior Member Dr M Evans
30 April 2019
BACKGROUND
The Applicant is a 56 year old woman. She was employed by the Department of Human Services (Centrelink) from 1990 to 2010. The Applicant’s last position before she ceased working was as a Customer Service Officer (T3, page 17).
On 3 April 1997, the Applicant lodged a claim for compensation for “R [right] trapezius pain exacerbation of pre-existing condition” (T3, page 13). In her compensation claim form the Applicant described the events that contributed to her injury as, “Previously I was at the counter, do not need too much keying, but on 10/3/97 I moved to back office where I need to work long periods over the phone & keying as well” (T3, page 15).
The Applicant specified in her claim form that she first noticed this injury on
14 March 1997 and that the date of her first medical treatment was 17 March 1997
(T3, page 13) which is the accepted date of injury (T4, page 24).
On 20 May 1997 Comcare accepted liability for this claim (“aggravation of… underlying neck and shoulder condition”) following a request for reconsideration from the Applicant, but not on an ongoing basis (T4, page 24).
The Applicant subsequently made claims for secondary conditions. The current accepted conditions for the Applicant are: “right trapezius pain, exacerbation of pre-existing condition, major depressive disorder, recurrent episode, Chronic pain syndrome and disorders of bursae and tendons shoulder region (bilateral)” (T112, page 530). The existence of liability for these conditions is not in issue in this application, and is not disputed by the Respondent (4 February 2019 transcript, pages 19-20).
On approximately 27 October 2010, the Applicant was retired on invalidity grounds
(T20, page 106, T21, page 107).
On 8 May 2015, the Tribunal made a decision with respect to three claims made by the Applicant concerning compensation for permanent impairment and non-economic loss, and the calculation of normal weekly earnings (T59, page 279). Specifically, the Tribunal:
(a)
affirmed a decision by Comcare that the Applicant was not entitled to compensation for permanent impairment and non-economic loss under s 24 and
s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in relation to the compensable physical injuries to the Applicant’s neck and shoulders;
(b)affirmed a decision by Comcare that Comcare was liable to pay the Applicant compensation for permanent impairment on the basis of a whole person impairment of 10 percent in relation to the Applicant’s compensable mental injuries of major depressive disorder and chronic pain; and
(c)set aside a decision by Comcare, and substituted a new decision regarding the calculation of the Applicant’s normal weekly earnings.
On 2 December 2015, the Applicant was taken to Sir Charles Gairdner hospital (the Hospital) by ambulance after suffering an episode which was diagnosed by Dr Chris Finn (Consultant Cardiologist and Specialist in Echocardiography at the Hospital) as “an NSTEMI of uncertain cause” and (T79, page 434) which Dr Finn also referred to as a “myocardial infarction – Non-STEMI” (Discharge Summary from Dr Finn dated
3 December 2015 in Exhibit A1).
Dr Chris Judkins (Cardiologist), discussed below, diagnosed the Applicant’s episode differently as a “Type 2 Acute Myocardial Infarction” (Type 2 AMI) (see Exhibit R7, page 1 of Report dated 4 November 2017). This diagnosis is discussed below.
The Applicant was admitted to hospital on 2 December 2015 and was discharged the following day (T79, page 434).
In layperson’s terms, the Applicant had suffered a heart attack. Consequently, the Tribunal will refer to the episode as the heart attack. In a letter to Comcare dated
18 January 2016 (T79, page 433), the Applicant sought reimbursement for medical expenses in relation to her heart attack.
The Applicant enclosed supporting documentation including her hospital admission documentation, a letter from her general practitioner (GP), Dr Animashaun dated
7 December 2015 confirming that her condition was stable as at 7 December 2015, a letter from her Clinical Psychologist Ms Maddalena Torre dated 8 December 2015, and a letter from Dr Finn to her GP Dr Animashaun dated 21 December 2015
(T79, pages 433 to 445).
In the letter to Comcare dated 18 January 2016 (T79, page 433), the Applicant further stated:
As you are aware, I have chronic pain and depression as a result of my injuries sustained while working at Centrelink and also I have been under a lot of stress the last 10 years because of my fight to get compensation for my injuries and for the negative outcome of my appeal to the Administrative Appeal [sic] Tribunal earlier April 2015 because of the negligence of some Doctors and for the disadvantage that all my medical records and workplace records “suddenly went missing.”
The constant battle I have every day with the chronic pain, depression and anxiety plus the fact to come to terms with the injustice I had suffered with the Legal System and Comcare is affecting my health a lot.
Please consider my situation and the negative effects on my health.
In a letter dated 12 April 2016 (T81, pages 448-449) a delegate of Comcare made a determination that Comcare was not liable to pay compensation for ambulance services or cardiologist services under s 16 of the SRC Act. The delegate explained the basis for this decision as follows (T81, page 449):
Currently, the available medical evidence does not indicate that these [medical] accounts meet the above criteria for your accepted compensable condition of right trapezius pain, exacerbation of pre-existing condition, major depressive disorder, recurrent episode, Chronic pain syndrome and disorders of bursae and tendons shoulder region (bilateral).
The medical evidence provided is insufficient to show a clear causative link between your accepted conditions and your episode of NSTEMI. Injuries sustained as a result of the compensation process are not compensable.
In a letter dated 25 May 2016 the Applicant requested a review of the decision dated
12 April 2016 (T91, page 469). In an attached letter dated 12 May 2016, the Applicant made submissions that her heart attack was caused by stress, and that the stress was related to her psychological injury of “Major Depressive Disorder, recurrent episode” which was an accepted condition by Comcare (T91, pages 470-471) (Emphasis omitted).
A letter from a delegate of Comcare to the Applicant dated 23 August 2016
(T99, page 501) stated that she had considered the Applicant’s letters dated
18 January 2016 and 25 May 2016, and the report from Dr Finn dated 21 December 2015. The letter advised the Applicant that the delegate rejected the Applicant’s claim for “acute myocardial infarction” under s 14 of the SRC Act and stated that:
The medical evidence provided is insufficient to show a clear causative link between your accepted conditions and your episode of NSTEMI. Injuries sustained as a result of the compensation process are not compensable.
In an email dated 31 August 2016 (T101, page 506), the Applicant requested a reconsideration of the decision of 23 August 2016, and again referred to her letters of 26 May 2016 and 12 May 2016. The Applicant also stated that she was dissatisfied with her condition being referred to as an “acute myocardial infarction” which was different to Dr Finn’s in his diagnosis of an NSTEMI.
In a letter to the Applicant dated 28 September 2016 (T107, page 516) a delegate of Comcare advised that she had undertaken the reconsideration, and had decided that the determination to deny acceptance of liability for “acute myocardial infarction” under s 14 of the SRC Act was correct (Reviewable Decision).
In her reasons for decision, the delegate considered the Applicant’s heart attack to be an injury (other than a disease), rather than a disease. The delegate stated that
(T107, page 518):
I have reviewed the evidence on your claim and I am not satisfied on the balance of probabilities that the medical information supplied has established that your recent episode of NSTEMI suffered on 2nd and 3rd of December 2015 is related to, or caused by, your accepted compensable condition, nor am I satisfied that your condition arose out of, or in the course of, your employment.
In a letter dated 12 November 2016, the Applicant sought review of the Reviewable Decision in the Tribunal (T1, page 1).
JURISDICTION
The jurisdiction of the Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other “enactments”, which grant it jurisdiction to review certain decisions made under those enactments.
In this case, the relevant “enactment” is s 64(1) of the SRC Act which provides that:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
A “reviewable decision” is defined in s 60(1) of the SRC Act as “a decision made under subsection 38(4) or section 62”.
Before outlining s 62, it is relevant to note s 61 which, in part, provides that:
(1A) The determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations.
(1) As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a) the terms of the determination;
(b) the reasons for the determination; and
(c) a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2)…
As noted above, Comcare made a determination, in accordance with s 61(1A) of the
SRC Act on 23 August 2016 (T99, page 501) that it was not liable to pay compensation under s 14 of the SRC Act for the Applicant’s heart attack.Section 62 of the SRC Act provides, in part, that:
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth—the Commonwealth; or
(c)if the determination affects a Commonwealth authority—that Commonwealth authority…
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
The Applicant made a request for a reconsideration of the determination of
23 August 2016 on 31 August 2016 (T101, page 506) as per s 62(1) of the SRC Act.A delegate of the Respondent reconsidered the determination and affirmed the decision of 23 August 2016 on 28 September 2016 (T107, page 516), pursuant to ss 62(4) and (5) of the SRC Act, being the Reviewable Decision. Consequently, the Tribunal has jurisdiction to review the Reviewable Decision because it is a decision made under s 62.
Further, s 29(2) of the AAT Act provides:
(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant…
Section 65(4) of the SRC Act modifies s 29(2) of the AAT Act as follows: “Subsection 29(2) of the Act has effect as if the reference to ‘the twenty‑eighth day’ (first occurring) were a reference to ‘the sixtieth day’”.
The Applicant lodged her application for review of the Reviewable Decision with the Tribunal on 12 November 2016 (T1, page 1). Therefore the Applicant was within the
sixty-day prescribed time for applying to the Tribunal (s 29(2) AAT Act; s 65(4) SRC Act).ISSUES
The issue that requires determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant for her heart attack, in accordance with
s 14 of the SRC Act.
This requires consideration of whether the heart attack is a disease or an injury (other than a disease), which will determine the applicable test for causation that the Tribunal is required to apply.
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application was on 4 and 5 February 2019.
The Applicant was self-represented and, although her English appeared to be very good, she was assisted by an interpreter. The Applicant gave evidence at the hearing, and was cross-examined. She also made submissions. The Applicant called her Clinical Psychologist Ms Maddalena Torre as a witness, who gave evidence by telephone and was cross-examined.
The Respondent was represented by Ms Dowsett, and was assisted by her instructing solicitor, Ms Ladhams from the Australian Government Solicitor (AGS). The Respondent called Dr Judkins, Cardiologist, as a witness. Dr Judkins gave evidence to the Tribunal in person on the second day of the hearing, and was cross-examined by the Applicant with the assistance of the Tribunal.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s submissions comprising 4 pages and attaching a bundle of documents including reports from Dr Chris Finn (Consultant Cardiologist and Specialist in Echocardiography), Dr Stephen Proud (Consultant Psychiatrist), Dr Rob Will (Consultant Rheumatologist), Maddalena Torre (Clinical Psychologist) and Dr Fay Meakin (General Practitioner), as well as documentation from the Sir Charles Gairdner Hospital (Exhibit A1);
(b)email from the Applicant dated 17 January 2017 (Exhibit A2);
(c)
email from the Applicant dated 1 February 2019 attaching a letter from
Dr Rhoanna McNeill, Specialist Psychiatrist, dated 28 December 2018
(Exhibit A3);
(d)Respondent’s Statement of Facts Issues and Contentions dated 25 May 2018 (Exhibit R1);
(e)section 37 documents (T documents) numbered T1 to T113, and comprising 533 pages (Exhibit R2);
(f)supplementary s 37 documents (Supplementary T documents) numbered ST1 to ST2 and numbered from pages 534 to 700 (Exhibit R3);
(g)briefing letter to Dr Jonathan Spear from AGS dated 30 August 2017 and associated report of Dr Spear dated 20 September 2017 (Exhibit R4);
(h)
letter to Dr Jonathan Spear from AGS dated 7 December 2018 and Report of
Dr Spear dated 21 December 2018 (Exhibit R5);
(i)additional documents provided to Dr Spear by the Applicant in the course of the medical examination which are referred to in his Report dated 20 September 2017 (Exhibit R6);
(j)briefing letter to Dr Christopher Judkins, Cardiologist dated 25 August 2017 and Report of Dr Judkins dated 4 November 2017 (Exhibit R7).
The Tribunal has considered the parties’ oral and written submissions, the evidence of the witnesses at the hearing including the Applicant and the medical witnesses, and all of the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. As the Applicant was unrepresented the Tribunal assisted her when appropriate, for example, by asking additional questions during examination in chief and cross-examination to ensure the Tribunal had all the information required to make the correct and preferable decision.
APPLICABLE LEGISLATION
Section 14(1) of the SRC Act provides that:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Compensation for medical expenses is provided for in s 16(1) of the SRC Act which states:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 5A(1) of the SRC Act defines an “injury”:
(1)In this Act:
"injury" means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(Original emphasis.)
“Disease” is defined in s 5B of the SRC Act as follows:
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
(Original emphasis.)
Section 4 of the SRC Act states that, ““ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” (Original emphasis.)
EVIDENCE
The Applicant
At the Tribunal hearing, the Applicant described the following events leading up to her heart attack (4 February 2019 transcript, page 23-24):
Two months before 2 December when I had my heart attack, I was starting to feel really, really bad. When the tribunal declined my two claims I was at my lawyer’s office and I had a mental breakdown, and since then the pain has been there constantly, day and night. The night before I had my heart attack I felt really, really bad. I was sweating in bed, I was feeling hot and cold, and got up to have a shower, then I started vomiting, and I thought it was the flu or something like that. I couldn’t sleep at all that day, and when I got up the following morning, it would’ve been around 6, 7 am, not sure about that, and my daughter was up around 9. I think that was the time because she always gets up at that time. She was on holiday, and she wanted to go out, and I told her we couldn’t because I wasn’t feeling well, and that I wanted to go back to bed, and my daughter got upset, she was – she was young, she was only 15 at the time and she said, “Mum, I want to go out, because I’m on holidays. If you don’t feel well why don’t you go to the doctor?”
I didn’t go to the doctor because I had seen him two months previously with the same symptoms; I was tired and had chest pains, and I got upset with that, but it wasn’t that bad that it was going to cause me a heart attack. So she went back to her bedroom and I started to cry because, really, it wasn’t their fault. So I went into her bedroom and I was lying in bed next to her, and I apologised to her, I said, “I know that it’s not my fault that I’m sick.” And lying down in bed I felt really bad, and I told her I wasn’t feeling well, to call an ambulance. I had nausea and I also started sweating, the same symptoms that I had the previous night. She called the ambulance and my son was looking after me while we were waiting for the ambulance to arrive. When the ambulance arrived they just put on oxygen mask and I couldn’t tell them anything, and my daughter told them that we had a disagreement, that we argued, and I don’t understand why they put in their report that we had an argument, because we didn’t. It wasn’t just a normal exchange between a teenager and her mum, and in the hospital they told me that I had a heart attack.
The Applicant further explained that she believed that her depression made her more susceptible to stress, and there had been an accumulation of stress, causing her heart attack. The Applicant also described that her heart attack had been described to her as a “broken heart” by the cardiologist Dr Finn who saw her in hospital (4 February 2019 transcript, page 24):
…when I was working, before I hurt myself, and I had all these injuries, I was different. I did not suffer from depression. See, I didn’t get upset or been irate over non-important things, and also I was able to sleep at night. I think of all the things that happened, all the injuries, all the different problems and all that, and my pain, and all that, was accumulated in my heart, and was a time that the heart could just not do anything else. The cardiologist, Dr Finn, when he saw me, said that I had a broken heart. And he explained to me what it meant to have a broken heart, it wasn’t just to have a hole in the heart, and he said or not when they show you in the movies, like, you know, a broken heart, a romantic type of thing, he says it was just an accumulation of different things, but when you lose a person you love or when you lose your job or when you have difficult operations and when you go through a state of depression. And he told me that what I had was a combination of all those factors, and that’s why my heart was broken.
The Applicant stated that after her heart attack, she was prescribed aspirin, as well as a spray for under her tongue (a nitrate spray, see 5 Februrary transcript, page 70) if “I feel that I cannot breathe”. She stated that the spray was “so there is more oxygen going through the heart” (4 February 2019 transcript, page 25).
With respect to the argument she had with her daughter on the morning of the heart attack, the Applicant stated that she had a “discussion” with her daughter which was not an “argument” (4 February 2019 transcript, page 31-32). The Applicant stated the following under cross-examination (4 February 2019 transcript, page 36):
MS DOWSETT: But it is true, isn’t it, that you did have frequent conflict with your daughter?
APPLICANT: Not often. Just normal. Normal when you’re dealing with a teenager. But it’s not to mean that that is going to give me a heart attack, it’s just normal interaction with a family.
When phrasing a question to Cardiologist Dr Judkins during cross-examination, the Applicant further described the discussion with her daughter, and the events leading up to its as follows (5 February 2019 transcript, page 74):
The night before I have the heart attack, I was feeling very unwell. For a long time prior to that, I wasn’t feeling very well. I’ve got pain on my arm and I’m not able to sleep, due to that pain. I don’t sleep a lot and the little sleep that I get is broken. The night before I had the heart attack, I couldn’t sleep at all, I had to get up and shower because I was sweating profusely. When I got up, I didn’t feel hungry at all, I didn’t feel like eating anything. I felt like I needed to throw up. My daughter asked me if she could go out, I said, “No”, because I wasn’t feeling very well. I told her that I needed to lie down for a little bit, could she please look after her brother.
She replied, as teenagers sometimes do, told me it wasn’t her fault that I wasn’t feeling well, that I should go and see a doctor. I told her to go to her room, so she went to her room and was lying in bed. About 10 minutes later, I went over to her room and laid down with her and I asked for forgiveness and told her it wasn’t her fault. I felt unwell, I felt like I needed to throw up and I told her that I was feeling unwell. I started sweating a lot and asked her to call an ambulance. When the ambulance attended, they gave me an oxygen mask and I couldn’t speak at all. My daughter said that we had had a small disagreement, but the ambulance staff wrote down that it happened in an argument.
In her closing submissions to the Tribunal, the Applicant stated her belief that her heart attack, and that the subsequent negative events in her life were linked to her accident at work (5 February 2019 transcript, page 93):
I sincerely believe that this is linked to my employment. If I hadn’t had the accident and I hadn’t had to go through so many operations as I had to undergo, if I hadn’t got this depression due to the chronic pain that was a residual of the injury, none of the other events that were mentioned before would have happened to me. The Comcare cases, the litigation process, none of that would have happened to me.
I believe that the human body can only cope with a certain amount of stress and a certain amount of depression. I take what Dr Judkins said about if someone loses a member of their family or a loved one that that event could trigger a response from the body. What happened with my daughter I don’t believe was serious enough event to trigger what happened, considering that I had been feeling very unwell from the night before and maybe a couple of months prior to the event. If I had been properly represented throughout the legal process because I wasn’t properly represented, I wasn’t shown [the expert Doctor’s] initial report where he did the table incorrectly.
My lawyer told me that the report was incorrect but she was going to request that it was done again. When she received the second report – the amended report – it wasn’t shown to me. She only presented it in court. She showed it to me, I’m sorry, but she did never mentioned that the table was incorrect. She presented it to the tribunal and it was rejected by the tribunal.
My life has significantly changed from the accident. If I am different person now I don’t think that is a personality disorder. The depression makes me feel sad. It makes me irritable and I don’t tolerate things as I used to before. What was mentioned about the lady that was living in luxury as she wasn’t working, that’s not the reality of a worker that has an accident at work, especially when they have to continuously going to the tribunal to fight for the rights and their financial security.
I arrived in Australia on 6 April 1984. I came here full of dreams and I fulfilled many of my dreams. My main dream was to become an Australian citizen and work for the government and fulfilled that dream and I worked for 20 years. When I had the accident it felt like a slap in the face and my life changed since then. I had a happy marriage with the children. My husband got fed up with the legal system. He advised that I should just forget about it. But I said that I couldn’t do it because it was my right. So he got tired and left. And this is why I link everything that has happened to me to my employment.
The Applicant admitted under cross-examination that she was confused about the outcome of the Tribunal’s previous decision and could not understand why the Tribunal made the decision that it did (4 February 2019 transcript, page 27). The evidence indicates that the Applicant had difficulty coming to terms with the Tribunal’s decision, and not getting the outcome she wanted, and that this was a source of stress for the Applicant. For example, in a letter to Comcare dated 21 August 2016 (T100, page 505), the Applicant stated that, “I still cannot come to terms with this outcome” (that is, the Tribunal’s decision). She further stated in this letter:
The only reason I went to Tribunal to fight for my rights is because I was 100% convinced that I will have justice for the injuries I sustained while working at Centrelink. Unfortunately, I was only convinced that [sic] is no justice in this world.
In this letter (T100, page 505), the Applicant asks Comcare to assist her with her legal costs from her previous Tribunal case. She states, “…please consider my situation and free me from this debt”. This letter indicates that as well as experiencing stress as a result of the Tribunal’s decision, the Applicant was also experiencing financial pressures as a result. The Applicant’s dissatisfaction with the Tribunal proceedings and the Tribunal’s decision is also indicated in the clinical notes of her Clinical Psychologist, Ms Maddalena Torre, which are discussed below. These notes refer to the Applicant discussing suing various people, including her lawyer, the expert Doctor, and the judge with her psychologist, following the Tribunal proceedings (ST2, page 653). When asked about this under cross examination by Ms Dowsett, the Applicant did not recall discussing suing the Judge with Ms Torre but she did recall discussing the expert Doctor who made the mistakes in his report.
She also admitted suffering “normal stress” from the breakdown of her marriage and the interactions with her ex-husband (4 February 2019 transcript, pages 27-29). It became apparent to the Tribunal during cross-examination of the Applicant that she was likely experiencing some stress as a result of financial difficulties due to only receiving 75% of her wages, the litigation process (including having to attend numerous medical appointments), her legal bills and debts, together with her husband not paying her any maintenance although she had the care of two teenage children (4 February 2019 transcript, pages 29-31).
Medical documentation from Dr Chris Finn, Consultant Cardiologist and Specialist in Echocardiography
Dr Chris Finn treated the Applicant when she was admitted to the emergency Department of Sir Charles Gairdner hospital on 2 December 2015. In a letter dated 21 December 2015 to the Applicant’s GP, Dr Finn stated as follows (Letter from Dr Finn dated 21 December 2015 in Exhibit A1):
[The Applicant] was admitted to Sir Charles Gairdner hospital on the 2nd and 3rd of December 2015 with an NSTEMI of uncertain cause.
Stress appears to have been a contributing factor, including the fact that she had an argument with her daughter prior to the episode. Clearly there is significant background stress, which includes an ongoing workplace claim, chronic pain, depression, and anxiety.
She had a rise in high sensitivity troponin from 42 to 91, which was not associated with ischaemic ECG changes.
CT abdomen, coronary angiography and echocardiography were all satisfactory studies, and in particular there was no evidence of coronary artery disease or structural heart disease to account for the event.
I have asked her to continue low-dose Aspirin, but no other new medication.
She had one further mild episode of chest discomfort, which resolved spontaneously and did not require the use of her nitrate spray.
I have suggested that she can return to see me if she experiences continuing chest pain, as a cardiac arrhythmia or coronary artery vasospasm are not excluded as potential diagnoses.
I have reassured her that her long-term prognosis is excellent on the basis of her cardiac investigations at the hospital.
In his discharge summary, Dr Finn stated the principal diagnosis and the reason for the Applicant’s admission to hospital to be “myocardial infarction – Non-STEMI” (page 1 of discharge summary dated 3 December 2015, Exhibit A1). He noted that a coronary angiogram was done during the admission which showed “angiographically normal arteries”. The history taken was as follows:
52y lady presented to ED with central chest pain, diaphoresis, shortness of breath and nausea.
-Onset 10 AM post argument with daughter
-Radiation to shoulder
-Also describing severe epigastric pain in ED – lipase 410
-Recent one month history of lethargy and fatigue in the context of chronic pain
The summary of significant results on the second page of the Discharge Summary signed by Dr Finn also noted the results of a coronary angiogram conducted on
3 December 2015, which were that “all coronary arteries angiographically normal”. The results of an echocardiogram, also conducted on 3 December 2015 were noted to include “Normal left and right ventricular size and systolic function”, “normal atria size”, and “mild mixed regurgitation” (Page 2 of Discharge summary dated 3 December 2015 in Exhibit A1). The Discharge Summary of Dr Finn further noted that Aspirin was prescribed. It was recommended that the Applicant make a follow-up appointment with Dr Finn in four to six weeks’ time, and that she should present to the nearest emergency department again if she was experiencing severe chest pain or otherwise feeling unwell (Page 2 of Discharge summary dated 3 December 2015 in Exhibit A1).Ms Maddalena Torre, Clinical Psychologist
The Applicant’s Clinical Psychologist, Ms Maddalena Torre, gave evidence at the Tribunal hearing on 4 February 2019. The Applicant also submitted three letters from Ms Torre concerning the Applicant which were put into evidence as part of Exhibit A1.
In letters dated 28 August 2017 and 2 February 2007, addressed “To Whom It May Concern”, Ms Torre stated, “She [the Applicant] recently suffered a heart attack contributed to by stress, according to medical records”. Both letters also refer to the Applicant’s ability to tolerate stress as “significantly compromised”.
The most relevant letter is a letter from Ms Torre dated 8 December 2015, which is substantially produced as follows (Exhibit A1):
[The Applicant] has been a client of mine for two years. [The Applicant] has been under sustained stress throughout the time I have known her. The stress she has experienced predates our acquaintance, as she has been dealing with a workplace injury, insurance claim, chronic pain, depression, and anxiety for many more years prior. Apart from being subject to chronic, unrelenting stressors related to her workplace injury and its sequelae (including the breakdown of her marriage), [the Applicant] has also had a series of acute crises in relation to stress – these have included a series of incidents relating to her injury and claim, such as critical medical records and workplace records being lost, mistakes by medical personnel, hurdles and obstacles in regards to progressing her claim and stressful appointments and assessments.
On 3 December 2015 [see note], [the Applicant] was transported on an emergency basis via ambulance to hospital. She suffered a heart attack. Apparently medical tests revealed no blockages in her heart and no damage to her heart. Nonetheless she was in hospital for a few days and is now on heart medication.
In terms of contributing factors, [the Applicant] has endured significant stress due to her injury and subsequent related incidents and events. This has been chronic in nature with many critical/acute incidents also. It is not within my professional expertise to draw causative links though evidence based research on stress and cardiac health/cardiac risk draws causative links between the same.
I continue to support [the Applicant]. Her recent heart attack has exacerbated her anxiety and depression, as she now fears for her health, longevity and her capacity to safely see her children through to independent adulthood.
(Emphasis added.)
[Note: the documentation from Dr Finn indicates that the actual date of the Applicant’s heart attack was 2 December 2015.]
Under cross examination, Ms Dowsett asked Ms Torre about her professional expertise to draw causative links between stress and the risk of a heart attack (4 February 2019 transcript, page 46):
MS DOWSETT: In this letter, Ms Torre, you write that it is not within your professional expertise to draw causative links though evidence based research on stress and cardiac health and cardiac risk draws causative links between the same. Do you recall the letter that I’m talking about?
MS TORRE: Yes. Yes, I do.
MS DOWSETT: That remains the situation doesn’t it? That it is not within your professional expertise to make a conclusion as to the cause of the heart attack that KTKY suffered?
MS TORRE: No, I can’t make comment as to the cause of the heart attack. I believe Comcare themselves have said it was triggered by the fight that she had with her daughter. What I can draw causative links with is the fact that pain and depression are biochemically linked. So already major depression has been accepted as a condition due to the injury and that he [sic] depression would increase irritability, increase stress, decrease resilience, increase agitation, increase reactivity. So from that point of view the depression would actually make KTKY vulnerable to experience stress – to having stress be something that affects her more than the average person – to be vulnerable to irritability and the possibility of, you know, argument or whatever it might be because obviously the depression itself has a direct link with stress, irritability, anger, resilience and so. So that – I can draw the links in terms of how depression effects stress levels. I understand there wasn’t any physical cause drawn in terms of the cardiac – NSTEMI or whatever – how it is listed. That’s up to the cardiologist to be able to say but certainly nothing physical is actually suggested from the documentation that I read, which is why the even Comcare – yourselves, are saying that it was triggered by her argument or something like that. So I can only talk about the effect of depression and pain on stress, and the fact that there are already (indistinct).
Under cross examination by Ms Dowsett, Ms Torre acknowledged that there were a number of stressors in the Applicant’s life. The following exchange is relevant
(4 February 2019 transcript, page 48):
MS DOWSETT: Now, in the course of your treatment of her, do you agree that it’s accurate to say that KTKY spoke to you about a number of factors that caused her stress?
MS TORRE: Yes.
MS DOWSETT: So, for example, her divorce and her interactions with her ex-husband?
MS TORRE: No. She – if we’re actually (indistinct) right back, the marriage broke down because of her injury, because he wasn’t – basically sort of the injury was the genesis of how things deteriorated. Because of her pain, because of her lack of function, because of the mood changes that the injury caused. So there are a variety of factors that KTKY has mentioned, however, when you’re looking at it over a chronology in terms of the epidemiology of how things have occurred, none of those factors were present prior to the injury, nor was her predisposition that way. So she had no previous depression. The marriage was going along quite happily. And she didn’t have any relationship issues with anyone else in terms of irritability or agitation. She was maintaining solid relationships with people. She was considering herself happy, functional and so on. There are a variety of factors, you’re quite correct, but all of those factors fell, you know, within the bracket of what’s been, you know, caused by the injury or related to the injury. So they are all there, yes. They are all various ones, but they’re all still underneath that umbrella, if that makes sense, because they weren’t pre-existing.
During the cross-examination of Ms Torre, Ms Dowsett referred to Ms Torre’s clinical notes (in Exhibit R3, ST2) in which there were notations regarding conflict with the Applicant’s teenage daughter; the Applicant’s marriage breakdown and settlement; the Applicant’s dissatisfaction with previous Tribunal proceedings, including medical records going missing and an expert medical witness making errors in his medical report (see 4 February 2019 transcript, pages 48-54), which affected the outcome of the Applicant’s prior application to the Tribunal. As noted earlier, due to the unsuccessful outcome of the Tribunal proceedings these clinical notes also refer to a list of persons the Applicant was considering suing including her lawyer, the doctor, the judge and her employer (ST2, page 653). Under cross-examination Ms Torre also acknowledged that the Applicant at times experienced some frustration at having to attend appointments in relation to her previous workers compensation claim (4 February 2019 transcript, page 54).
Evidence of Dr Christopher Judkins, Cardiologist
Cardiologist Dr Christopher Judkins gave evidence at the Tribunal hearing on
5 February 2019. Dr Judkins examined the Applicant on 22 September 2017, and wrote a report dated 4 November 2017 (Exhibit R7). Dr Judkins’ diagnosis, based on the available medical evidence, and an examination of the Applicant on 22 September 2017, was that the Applicant suffered a “Type 2 AMI”, which he also referred to as a “Type 2 MI”.
In his report dated 4 November 2017, Dr Judkins at page 2 more specifically stated, “the most likely diagnosis is a stress induced cardiomyopathy or coronary spasm”, and further, “an unequivocal definitive answer as to the cause of [the Applicant’s] presentation is not possible however the most likely diagnosis as indicated by Dr Chris Finn would be a stress induced cardiomyopathic process.”
In his oral evidence to the Tribunal, Dr Judkins explained there were different types of heart attacks (transcript, page 67-68):
…we classify what we consider to be heart attacks or acute myocardial infarctions, as a type 1 to type 5. So, the classic sort of, concept of a heart attack is one where you have plaque build-up and a blockage in an artery, which then leads to damage to the heart muscle and that’s considered a type 1.
The second type is a type 2 and 3 to 5 are much less common, but type 2 is generally due to a supply/demand issue and having read through all of the notes that were provided, my opinion would be that the most likely cause of the presentation – in 2015 I think it was – is due to a supply/demand issue and based on all the information that’s available, most likely it is a stress cardiomyopathy or coronary spasm.
Dr Judkins offered the following opinion regarding the proximity of the stressful event to the Applicant’s heart attack, on page 3 of his report (Exhibit R7):
During [the Applicant’s] admission there was documented chest pain and a small troponin rise. There were no ECG changes of coronary ischemia. Echocardiography (performed the day after admission) demonstrated normal function without regional wall motion abnormality. Coronary angiography demonstrated no blockages. Dr Finn indicates a cardiac arrhythmia or coronary artery spams [sic] remain differential diagnoses
Assuming based on the available evidence that this was a stress cardiomyopathy rather than a NSTEMI, Stress Cardiomyopathy are characterized [sic] by a sudden stressful event (eg bad news/loss of a loved one, sudden shock (eg MVA), or an argument). The precipitant can at times be minor such as an argument. Distant stress-related events are less likely to contribute to an acute stress cardiomyopathy. The argument with her daughter is therefore the most likely acute precipitant. I am not qualified to determine if the stress from her workplace contributed to ongoing low-level anxiety, and the subsequent argument with her daughter.
Dr Judkins further opined, on page 4 to 5 of his report that, “assuming this is a stress-related cardiomyopathy event, stress distant to the event is less likely to be contributory as a stress related cardiomyopathy is usually caused by an acute stressful event at the time of presentation.”
The following exchange with Ms Dowsett during examination in chief is also relevant because it explains that “acute” in the phrase acute myocardial infarction primarily refers to proximity in terms of time (5 February 2019, transcript, pages 71-72):
MS DOWSETT: What can you tell the tribunal about the magnitude of an event that is required to provoke this kind of type 2 incident?
DR JUDKINS: Yes, okay. So, in terms of the coronary spasm or takotsubo cardiomyopathy, it’s typically what we call a stressful event, which would be sort of, you know, more stressful than normal, but we definitely, very commonly see these events being initiated by even mild stress. So, for instance, an argument with a neighbour, which is quite common and one particular argument which might not be more vigorous or involved than any other argument, might then just initiate one of these events, even though there might have been more serious arguments prior to that, yes.
…
MS DOWSETT: So, just to be clear, when you refer to an acute event, you are speaking of proximity, rather than the magnitude of the event?‑‑‑
DR JUDKINS: Yes, that’s – well, both probably. Generally speaking, it is a greater magnitude, but it can be a very minor magnitude sometimes as well. So, it’s not strictly one or the other, but more so, it tends to be an acute event in time. So, limited to prior – relatively soon, prior to the presentation with the event and I would give a, you know, ballpark, usually it’s within a couple of hours, but it can be up to a day.
MS DOWSETT: Now, returning back to KTKY’s evidence yesterday and I think, picking up on what she was just flagging then, she also said that Dr Finn told her that this broken heart was the result of things building up over time. In your opinion, is that a probable explanation for what happened?‑‑‑
DR JUDKINS: Usually, it is an acute event, which will lead to a takotsubo or coronary spasm. There are quite a lot of fairly poor-quality studies out there, looking at the effect of stress and depression on the risk of usually a type 1 MI. That data is fairly mixed, because it’s very difficult to do a proper controlled study looking at outcomes of stress on heart attacks. So, the data seems to be – is usually quite retrospective, which is then influenced by what we call, “Recall bias”; people’s ability to remember or recall stressful events. However, if we are discussing a type 2 MI, the data linking, you know, long-term accumulated stress to type 2 MI’s is significantly weaker.
In his evidence at the Tribunal hearing, Dr Judkins went on to state that the stressful event that precedes a type 2 MI, “can be quite a minor precipitant” (5 February 2019 transcript, page 75).
With respect to whether ongoing stress and depression may have contributed to the Applicant’s heart attack, Dr Judkins stated, on pages 5 and 6 of his report, as follows:
There is conflicting data but low-level stress as well as depression may contribute to the development of stress cardiomyopathy. While there is an agreed link between [the Applicant’s] work related stress and subsequent claims related stress to her diagnosis of depression, the degree of contribution requires the opinion of [sic] qualified psychiatrist. The degree to which [the Applicant’s] depression contributed to her argument with her daughter also require [sic] a qualified psychiatric opinion. The argument with her daughter is the main precipitating event for her hospital admission and subsequent diagnosis on 2/12/2015.
The following exchange under cross-examination is also relevant, because Dr Judkins refers to the very limited evidence that chronic stress could result in the type of heart attack experienced by the Applicant (5 February 2019 transcript, page 74):
APPLICANT: … In your opinion, my chronic pain and lack of proper sleep, could that have affected my heart, combined with depression?
DR JUDKINS: So, we know from the coronary angiogram that was done, that there was no plaque or build-up in the coronary arteries, so, you know, in terms of risk of heart attack, I would say, no, those things have not contributed because there was no heart attack, type one heart attack, I should say.
APPLICANT: But mine is the number two type.
DR JUDKINS: Number two, yes. And we know that acute stress can definitely – that is the cause, so stress is bad for your heart, because the acute stress can lead to this stress cardiomyopathy. There’s less – well, there’s really very limited evidence to demonstrate that chronic stress would then contribute to this presentation.
Dr Judkins expanded further on the link between long term stress and the type of heart attack experienced by the Applicant in the following exchange with the Senior Member in which he clarified the statement on page 5 of his report reproduced at paragraph [70] above (5 February 2019 transcript, pages 75-76):
SENIOR MEMBER: Doctor, when you say that anyone could have this condition, so does that mean that people with certain, like, personality types, or depression, or – does it equally apply to everyone – or are some people more pre-disposed to having this type of heart attack?
DR JUDKINS: Bit of a difficult question sometimes to answer. I think middle-aged females are the classic, sort of, kind of order of patients who will have stress cardiomyopathy or coronary spasm, both of those. Are there any other particular groups of people? I suppose the question here is whether people who’ve got long-term chronic stress, are they at high risk? The answer, I have to say, is I’m not sure, okay? I don’t think there’s any good evidence that demonstrates that but that comes back to my previous point that it is sometimes difficult to do these studies. And the lack of evidence doesn’t necessarily mean there’s not an association, it just means we don’t have any good evidence to suggest that that’s the case. Yes.
SENIOR MEMBER: … I did just have one question which is – it was about the paragraph on – it’s under the “In summary”, very, very last paragraph. About three pages from the end, just under, “In summary”, the very last paragraph of that:
There is conflicting data, low-level stress as well as depression may contribute to the development of stress cardiomyopathy. While there is an agreed link between KTKY’s work-related stress and subsequent claims related stress to her diagnosis of depression, the degree of contribution requires the opinion of qualified psychiatrist.
I was just wondering, if you could, … explain that a little bit more?
DR JUDKINS: Yes. So, I think that comes back to the quality of the data, because coronary spasm and stress cardiomyopathy are quite uncommon conditions and they can occur at any time. The difficulty with doing a study or looking at associations can be quite difficult, because there are lots of other things in our lives which can contribute to these things. As an example, I think I referenced one study there where there was an association with depression and chronic levels of stress and type one type events.
In a lot of studies, when they then go back and have a look at other contributing factors, such as, you know, alcohol use, smoking, weight, which can also be increased in people who’ve got depression and chronic stress, the stress and depression in an independent risk factor, it seems to be those other things that contribute more. And that’s part of the difficulty with looking at these associations. So, whilst there might be an association, once you take some of these other factors into degree, it’s not quite as strong and there’s conflicting data either way. So, it’s not clear, I suppose.
There is some people will show an association, that doesn’t necessarily imply causality either, although you might infer that stress might cause these problems, it doesn’t necessarily demonstrate that.
During the examination in chief of Dr Judkins, Ms Dowsett asked Dr Judkins about the other potential diagnoses of the Applicant’s heart attack stated in Dr Finn’s letter of
21 December 2015. Dr Judkins clarified that these were all examples of a Type 2 AMI heart attack, as the following exchange indicates (transcript, page 70-71). In this exchange, Dr Judkins also explained that a “broken heart” is sometimes use to colloquially refer to a Type 2 MI which, as noted above, he interchangeably referred to as a Type 2 AMI:MS DOWSETT: … Dr Finn refers to some potential diagnoses that have not been excluded. Could you please explain to the tribunal what those potential diagnoses are?‑‑‑
DR JUDKINS: Okay. So, there are three diagnoses there, cardiac arrhythmia, coronary artery vasospasm – sorry, two I should say – cardiac arrhythmia and coronary artery vasospasm and they fall under the type 2 MI category. Yes, cardiac arrhythmia being a disturbance of the electrical activity within the heart and there are a number of potential causes for that and coronary artery vasospasm being a condition I mentioned earlier, where the coronary arteries, which run around the outside of the heart, will spasm down to temporarily prevent blood flow from going down the arteries.
MS DOWSETT: In her evidence yesterday, KTKY referred to a conversation she said she had with Dr Finn and she said that he told her that she had a broken heart. Now, acknowledging that you are not Dr Finn and you are not said to have been in the conversation, does that description, “A broken heart”, is that a descriptor that a cardiologist might use and if so, what does it describe?
DR JUDKINS: So, a broken heart is often used to refer to what we call a stress cardiomyopathy or a takotsubo cardiomyopathy. It is another cause which I would list as a potential cause here as part of the type 2 MI. The term comes from the fact that a takotsubo or stress cardiomyopathy is often initiated by an acute stressful event, which can be the loss of a loved one or news of a bad outcome and hence the use of the term of, “Broken heart”, yes.
SENIOR MEMBER: Sorry, can I just interrupt there. So, all of these – so, the cardiac arrhythmia, the coronary artery vasospasm and this broken heart, would all fall under the category of the type 2 MI, yes?
DR JUDKINS: That’s correct, yes.
Dr Judkins noted that a Type 2 AMI is “…due to troponin leak from the heart muscle not caused by blockage of a coronary artery” (Exhibit R7, page 1 of Report). However, in the following exchange with Ms Dowsett, Dr Judkins provided the following clarification regarding the significance of an elevation in troponin levels (transcript, page 68):
MS DOWSETT: KTKY was recorded as having an elevated troponin level. Could you explain to the tribunal what that elevation signifies?‑‑‑
DR JUDKINS: Yes, okay. So, the troponin elevation is one of the key parameters that we use to identify somebody who has had either strain to their heart or a heart attack. So, as mentioned, there’s type 1 to type 5 initiating events, which are all quite different. They will all potentially result in an enzyme leak. The troponin itself is a part of the heart muscle, which because there is some strain or stress on the heart, leaks in to the blood supply and that’s how we measure it. So, the characteristics of the heart attack are going to be a typical story for pain, an enzyme leak, plus or minus electrical changes on the ECG and you don’t necessarily know which type of heart attack it is until you investigate further.
MS DOWSETT: Is it medically accurate to speak of these troponin levels as either a cause or a consequence of a heart attack?‑‑‑
DR JUDKINS: Yes. So, they will always be a consequence. So, they are the result of having some strain to the heart muscle. The enzyme will then leak out. We will then measure it, then go back to determine that something has occurred.
At the conclusion of his report (Exhibit R7, page 6 of Report), Dr Judkins summarised the Applicant’s prognosis as follows:
… [the Applicant] sustained no short or long term damage from the event/admission and has an excellent prognosis from a cardiac point of view. Other than low-dose aspirin no further treatment has been prescribed, has been required or is likely to be required.
Dr Jonathan Spear, Consultant Psychiatrist
Dr Spear examined the Applicant on 8 September 2017, for the purpose of producing an independent medico-legal report. His report was dated 20 September 2017 (Exhibit R4).
In his report (Exhibit R4, page 10), Dr Spear stated that, “It is most likely that [the Applicant] was suffering from major depressive disorder and pain disorder in December 2015 when she had NSTEMI episode.” In his supplementary report dated 21 December 2018 (Exhibit R5), in response to Dr Judkins diagnosis of a Type 2 myocardial infarction or a “stress-induced cardiomyopathy or coronary spasm”, Dr Spear amended this statement to (Exhibit R5, page 3):
It is most likely that [the Applicant] was suffering from major depressive disorder and pain disorder in December 2015 when she had NSTEMI episode as diagnosed by Dr Finn or stress-induced myocardial perceive or coronary spasm as diagnosed by Dr Judkins.
Dr Spear also stated that, “On balance, I consider it most likely that she [the Applicant] does have a personality disorder” (page 7).
Under the heading, “File Review” (page 3), Dr Spear listed the following stressors experienced by the Applicant:
The file review indicated stressors including:
Lack of social support.
Marital separation in 2011 and subsequent divorce.
An argument with her daughter.
Legal issues.
Workplace claim.
Insurance claim.
Chronic pain.
Not working.
Alleged medical malpractice or negligence with a complaint to AHPRA (Australian Health Practitioner Regulation Agency).
Financial strain.
Social isolation.
Being a single parent.
Further, in the “Summary and Assessment” section of his Report (page 9), Dr Spear identified non-work related stressors experienced by the Applicant as follows:
Non-work-related personal stressors include lack of social support, marital separation and subsequent divorce, an argument with her daughter, financial strain, social isolation and being a single parent. Stressors relating to the claim process include a workplace claim for compensation and an insurance claim.
Dr Spear stated that he did “consider it is most likely that [the Applicant] experienced stress in the lead up to the NSTEMI episode”. However, he stated that, “This stress does not appear to be the direct consequence of her employment with DHS” (page 11).
In this section of his Report, Dr Spear expanded on the stressors in the Applicant’s life and their level of contribution to her NSTEMI (pages 11-12). Relevant excerpts from this section are as follows:
Stressors secondary to her accepted conditions:
Her stressors include chronic pain and major depressive disorder, associated with psychological symptoms including lack of motivation, decompensation, irritability, intermittent suicidal thoughts and somatic anxiety symptoms. Major depressive disorder is associated with increased risk of NSTEMI.
…
In general antidepressant medications reduce the risk of NSTEMI.
Legal issues relating to her claim:
Legal issues including a workplace claim and insurance claim, financial pressure and formal allegation of medical malpractice and neglect, would most likely have contributed to her stress at the time of the NSTEMI.
Non-work related stressors:
She had an argument with her daughter on the day of the NSTEMI, which was most likely the principal trigger for her NSTEMI.
[The Applicant] has cognitive distortions, such as, a sense of entitlement, a sense of injustice, catastrophic thinking, ideas of helplessness and low self-esteem and poor adaptive skills with decompensation, which include a vulnerability to develop mental health disorder and again are likely to contribute to stress and interpersonal difficulties.
She has personal stressors including lack of support, social isolation, marital separation and being a single parent. These are most likely to have contributed to increased risk for a NSTEMI.
Dr Spear summarised his findings in the following table, reproduced from page 12 of his Report. Notably, Dr Spear’s opinion was that the “most likely principal cause” of the Applicant’s heart attack was the argument with her daughter:
Direct workplace stress Not evident No contribution Stressors secondary to accepted conditions Chronic pain Potential increased risk of NSTEMI Major depressive episode Significant increased risk of NSTEMI Side effects from treatment Potential contribution from medication interactions, but not evident Antidepressants reduce the risk of NSTEMI Legal issues Potential contribution to increased risk of NSTEMI Non-work related stressors Argument with her daughter Most likely principal cause of NSTEMI Cognitive distortions Significant contribution to interpersonal difficulties and argument Poor coping skills Significant contribution to interpersonal difficulties and coping with argument Personal stressors Significant contribution to increased risk of NSTEMI
In Dr Spear’s supplementary report (page 3), he stated that, “After considering Dr Judkins’ views [that the Applicant suffered a Type 2 MI instead of an NSTEMI], I remain of the views expressed on page 12 of my report”. These are the views (that is, opinions) which are set out in the above table.
Dr Rhoanna McNeill, Specialist Psychiatrist
The Applicant also submitted to the Tribunal a letter from Dr Rhoanna McNeill, Specialist Psychiatrist dated 28 December 2018 (Exhibit A3). The first paragraph of Dr McNeill’s letter indicates that the Applicant was referred to Dr McNeill by her GP. The letter from Dr McNeill states:
[The Applicant] participated in the psychiatric assessment, although was primarily focused on obtaining a Report to annexure to her Court Application to appeal a Worker’s Compensation decision, and a second opinion to refute a recent Psychiatrist’s personality disorder assessment.
The most recent document reviewed by Dr McNeill was Dr Spear’s report dated
20 September 2017 (Exhibit A3, page 1), and it is his personality disorder assessment that the Applicant disagreed with.
On page 2 of the letter (Exhibit A3), Dr McNeill stated:
She explained that she wanted to continue “fighting for my rights” and feels justified to continue to fight because she lost her job and wages. She feels the situation led to the demise of her marriage and her social withdrawal from friends. She continues to cook, garden, pay bills, avoid stressors, enjoy her family. She reports she can feel happy when she is not in pain. She reports her stressors are the current appeal, pain, injuries and loneliness.
[The Applicant] acknowledges that her personality has changed since the onset of these difficulties. She described herself as pre-morbidly happy, active, independent, but now feels “trapped” and “robbed” of her life and career. [The Applicant] does not feel her focus on her legal appeal is excessive, despite this taking up a large focus of her time and thoughts. There is evidence of cognitive distortions relating to her entitlements and feelings of injustice. I note from the reports that workplace issues and concerns were documented in the 90s.
On mental state, [the Applicant] looked older than her stated age, neatly groomed. She was pleasant and a reasonable historian. Her posture was slumped at times. She became irritable when challenged regarding her current cognitions and rigid stance. She was generally reactive, although cried on several occasions. She reported low mood. There was no thought disorder, attention or cognitive deficits, or psychotic symptoms. There was evidence of rigid and overvalued preoccupations with health anxiety, injustice, entitlements and stressors. Her insight and judgement are incomplete. There were no acute risk issues.
Dr McNeill commented (Exhibit A3, page 2) that she was, “unable to obtain a clear pervasive history since adolescence to diagnose a personality disorder. However, a change/deterioration in personality is acknowledged by [the Applicant].” Dr McNeill did, however, state that, “There is evidence of dysfunctional personality traits given her presentation, current approach to life and functioning, her focus on litigation for the past two decades, and is also supported by the documentation provided.” (page 3)
In the last paragraph of the letter (Exhibit A3, page 3), Dr McNeill stated that, “I explained to [the Applicant] that I could not add to the prior opinions regarding her NSTEMI aetiological claim, and therefore was not prepared to complete the Report she was requesting.” This tends to indicate that Dr McNeill agreed with those findings because she could not add to them.
Further, the Tribunal agrees with the submission from Counsel for the Respondent at the Tribunal hearing that, although Dr McNeill does not conclusively diagnose the Applicant with a personality disorder, her findings are overall consistent with those of Dr Spear (transcript, page 89).
WAS THE APPLICANT’S HEART ATTACK A “DISEASE” OR AN “INJURY (OTHER THAN A DISEASE)”?
As noted above, Comcare is liable to pay compensation to the Applicant under s 14 of the SRC Act, if the Applicant suffered an “injury” within the meaning of s 5A(1) of the
SRC Act.An “injury” under s 5A(1) includes a “disease” (s 5A(1)(a) of the SRC Act) and an “injury (other than a disease)” (s 5A(1)(b) of the SRC Act) suffered by the employee.
Section 5B(1) of the SRC Act defines a “disease” as an “ailment suffered by an employee” (s 5B(1)(a) of the SRC Act) or an “aggravation of such an ailment” (s 5B(1)(b) of the
SRC Act), both of which must be “contributed to, to a significant degree, by the employee’s employment”.The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one because the classification will determine the applicable test for causation.
For an injury that is not a disease (often referred to as an injury simpliciter), the injury must arise out of, or in the course of, employment (s 5A(1)(b) of the SRC Act).
An injury simpliciter (within the meaning of s 5A(1)(b) of the SRC Act) can be contrasted with a “disease” which, according to s 5B(1) of the SRC Act, must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486) than an injury simpliciter.
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), French CJ, Kiefel, Nettle and Gordon JJ (the majority) (at 480), discussed the meaning of an “injury”, citing the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626. They stated:
45. "Injury" in para (b) is used in its "primary" sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if "something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word".
46. That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an "injury" in the primary sense.
47. However, as the Full Court correctly held, "suddenness" is not necessary for there to be an "injury" in the primary sense. A physiological change might be "sudden and ascertainable". A physiological change might be "dramatic". The employee's condition might be a "disturbance of the normal physiological state". That an "injury" in the primary sense can arise, and can be described, in a variety of ways does not mean that "suddenness" is irrelevant. As the Full Court said, "suddenness" is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an "injury" in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
"[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word." (emphasis added.)
It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis,... accepted at trial" and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".
(Footnotes omitted.)
The questions that the Tribunal must ask in order to identify whether there is a disease or an injury simpliciter were further described by the majority in May at 481-482:
…the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis,... accepted at trial" and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".
50. First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51. If the answer to both those questions is "Yes", there is a "disease" within para (a) of the definition of "injury". Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is "No".
52. If there is not a "disease" within para (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.
53. If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within para (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
(Footnotes omitted.)
In a separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for there to be an injury. His Honour stated at 487:
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
The SRC Act does not, however, mandate the order in which these questions need to be asked, provided that the Tribunal considers both s 5A(1)(a) (whether the injury is a “disease”) and s 5A(1)(b) (whether the employee suffers from an “injury (other than a disease”). In May, Gageler explained at 486, “… the questions posed by paras (a) and (b) need not be asked in their statutory sequence.”
With respect to whether the Applicant’s heart attack was an “injury (other than a disease)” or a “disease”, in its Statement of Facts, Issues and Contentions (Exhibit R1), the Respondent submitted that the Applicant’s heart attack was more appropriately considered to be an “injury (other than a disease)” for the purpose of s 5A of the SRC Act (paragraph [33]-[36]). However, at the hearing Ms Dowsett submitted that the Applicant’s heart attack was not an injury simpliciter, but rather the relevant section was s 5B of the SRC Act which defines “disease” because the Applicant’s heart attack did not result in any identifiable physiological change (4 February 2019 transcript, page 21).
The Tribunal accepts the evidence of Dr Judkins and finds that, on the balance of probabilities, the Applicant most likely experienced a stress induced cardiomyopathy or a stress cardiomyopathy or coronary spasm, more commonly known as a Type 2 AMI or a Type 2 MI. A heart attack, by its very nature, is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The Tribunal accepts the evidence of Dr Judkins that the Applicant’s heart attack was most likely brought on by an acute precipitant (meaning acute in time), being the argument with the Applicant’s daughter that morning.
Further, the Applicant had increased troponin levels following her heart attack. Dr Judkins’ evidence to the Tribunal was that increased troponin levels “are the result of having some strain to the heart muscle” (transcript, page 68). Dr Judkins also stated
(transcript, page 68) that, “The troponin itself is a part of the heart muscle, which because there is some strain or stress on the heart, leaks in to the blood supply and that’s how we measure it.” The Tribunal is of the opinion that, in the Applicant’s circumstances, strain and stress to the heart muscle in the form of a heart attack is a sudden and ascertainable physiological change and a dramatic disturbance of the normal physiological state.As noted above, Counsel for the Respondent argued at the Tribunal hearing that the Applicant’s heart attack was a “disease” because it did not result in any identifiable physiological change. Counsel for the Respondent referred to some of the examples of injury given by the High Court of Australia in May, which included the breaking of an artery, detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain (see majority at 481-468). However these examples were given in the context of Mr May experiencing subjective symptoms for which there was no medical diagnosis. In May, the High Court (majority, page 484) acknowledged that the evidence of physiological change:
…will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
Thus, in each individual case the Tribunal must consider the specific medical evidence relating to physiological change before it. In the Applicant’s case, the Tribunal considers that the medical evidence, particularly that of Dr Judkins, indicates that her heart attack did involve a physiological change because the increased troponin levels indicated strain or stress on the heart. Indeed, it is difficult to see how a heart attack, including the heart attack experienced by the Applicant, cannot be considered to be a sudden and dramatic physiological change.
A finding that the Applicant’s heart attack was not a disease under s 5B of the SRC Act, and that it is better aligned with an injury under s 5A of the SRC Act, is consistent with the earlier decision of the Full Court of the Federal Court in Australian Postal Corporation v Burch (1998) 156 ALR 483 (Burch), which was not discussed by the High Court in May. In Burch, a stroke was found not to be a disease, but rather an injury because, “It was a disturbance in the normal physiological state or an ascertainable lesion or dramatic physiological change” (citations omitted). Before reaching this conclusion, the Full Court relevantly stated, at 487 that:
… counsel for the appellant accepted that an injury in the ordinary sense did not necessarily require something external to the body. Such a concession was obviously correct. In Kavanagh v Commonwealth (1960) 103 CLR 547 at 553 Dixon CJ said a rupture of the gullet was an “injury by accident”. Such an episode was:
…a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection.…
However, the appellant’s counsel in the present case argued that there could not be an injury in this sense without some “rupture” or “breaking” of some tissue. Here, counsel said, there was merely an occlusion, that is to say, a blocking.
However, the fact that cases such as Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature.
[emphasis added.]Thus, according to the Full Court of the Federal Court in Burch, an event internal to the body such as a heart attack can be an injury, and further, the absence of any rupture or breakage (in this case, the absence of any tissue damage to the Applicant’s heart), does not preclude a finding that the Applicant suffered an injury.
In summary, the Tribunal finds that s5A(1)(b) of the SRC Act, which defines an injury (other than disease), is applicable to the Applicant’s heart attack. Consequently, the Tribunal must now consider whether the Applicant’s injury arose out of, or in the course of, the Applicant’s employment.
Did the Applicant’s heart attack arise out of, or in the course of, the Applicant’s employment?
The effect of s 5A(1)(b) of the SRC Act is that the Applicant’s heart attack must arise out of, or in the course of, employment, for it to be an injury (other than a disease) within the meaning of s 5A(1)(b) of the SRC Act.
A majority of the High Court stated in May, at 480, that, “…the physical or mental injury has to have a causal or temporal connection with the employee’s employment”.
As explained in Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, Federation Press 2018), page 94, “Arising out of” denotes a causal relationship, the “course of employment” denotes a temporal one; however there is much overlapping between the two concepts.”
In the Applicant’s case, there is no temporal connection to work. She did not, for example, suffer the heart attack whilst working for Centrelink. Rather, she suffered the heart attack approximately 5 years after she was retired on invalidity grounds. Thus, the Applicant did not suffer a heart attack in the course of her employment.
The question then becomes whether the Applicant’s heart attack arose out of her employment with Centrelink. That requires the Tribunal to consider the causal relationship between the Applicant’s employment and her heart attack.
The Applicant believes that the depression and associated susceptibility to stress she suffered as a result of her accepted injuries, including chronic pain, caused her heart attack. This was evident from the evidence of the Applicant, outlined above, and her submissions to the Tribunal. However, the existence of any such causal relationship is negated by the evidence before the Tribunal, particularly the medical evidence. The evidence of Dr Finn noted above, stated in part that (Letter from Dr Finn dated 21 December 2015 in Exhibit A1):
Stress appeared to be a contributing factor including the fact that she had an argument with her daughter prior to the episode. Clearly there is significant background stress, which includes an ongoing workplace claim, chronic pain, depression, and anxiety.
However, the expert opinion of Dr Judkins was that the Applicant’s stress related cardiomyopathy (heart attack) was most likely caused by a stressful event that occurred close in time (that is, an acute event), with the argument with her daughter being “the most likely acute precipitant” (Exhibit R7, page 3 of Report). The Tribunal notes the Applicant’s evidence that she started to feel unwell the night before, and that she did not believe that the disagreement with her daughter caused her heart attack. The Applicant believed that her heart attack was caused by the accumulation of stress which she felt more acutely due to the secondary depression from her workplace injuries. There is, however, insufficient medical evidence before the Tribunal to show that the Applicant’s heart attack was caused or contributed to by this accumulated stress associated with her depression. Indeed the medical evidence, specifically the evidence of Dr Judkins and Dr Spear, suggests that the Applicant’s heart attack was most likely caused by the argument with her daughter that morning, and not as a result of long term accumulated stress associated with her depression.
Dr Judkins did state, however, that the degree to which work related stress and claims related stress contributed to the Applicant’s depression, as well as the degree to which the Applicant’s depression contributed to the argument with her daughter, would require the opinion of a psychiatrist (Exhibit R7, page 3 of Report; quote reproduced at paragraph [70] above). The psychiatric opinion of Dr Spear on these issues is discussed in further detail below.
In her evidence to the Tribunal, the Applicant’s Clinical Psychologist, Ms Maddalena Torre, was of the opinion that the Applicant’s depression made her more vulnerable to experience stress than the average person, including being more vulnerable to irritability and anger (transcript, page 46). However, she admitted that she was not qualified to give evidence as to the cause of the Applicant’s heart attack (transcript, page 46). Ms Torre suggested that although there were a “variety of factors” which caused the Applicant stress, including her marriage breakdown, pain, lack of function, and mood changes, “all of those factors fell, you know, within the bracket of what’s been, you know, caused by the injury or related to the injury” (transcript, page 48). Ms Torre also referred to these factors being underneath the same “umbrella” as the workplace injury.
However, decisions of the Courts and of this Tribunal have consistently found that some factors are too remote and cannot be said to flow from employment. Ms Dowsett submitted that “a large number of factors have been identified in the material which do not fall within the concept of employment for the purposes of the Act. There is the divorce, also, the compensation claim process itself, including the previous tribunal proceeding and the outcome” (5 February 2019 transcript, page 80). In support of this submission, Ms Dowsett referred to the case of Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 (Tzikas).
In Tzikas, Sweeny and Woodward JJ, in a joint judgment stated (at 195) that:
…we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.
In Prain and Comcare [2016] AATA 459 (Prain), Deputy President Humphries, at [63], citing Tzikas, stated that:
In determining whether resentment towards Comcare or the Canberra Hospital in relation to the conduct of litigation seeking compensation can weigh as a compensable factor, it is important to identify the true source of the resentment. Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not.
Deputy President Humphries in Prain, continued on as follows:
64. In Plumb and Comcare [2004] AATA 999 the Tribunal considered a workers compensation claim for a condition based partly on a non-work-related disorder and partly on anger towards Comcare. The medical evidence suggested that:
... Mr Plumb’s employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb’s involvement in the proceedings, and the Department’s approach to those proceedings.
The Tribunal also noted a need for vindication and justification. It went on to find that the contribution to his condition made by the stress of the litigation afforded Mr Plumb no basis for compensation.
In Hutchinson and Comcare [2018] AATA 4357, after discussing relevant authorities, including the decisions in Tzikas and Prain, Deputy President Boyle, at [122], stated that factors such as the stress and anxiety of litigation and a perception of not being treated fairly were not factors relating to employment:
In the present case it seems that a considerable contributor to, even possibly a dominant cause of, the Applicant’s present mental condition is the stress and anxiety caused by the many Federal Court and AAT actions that the Applicant has, in her view, been required to undertake, and is still undertaking, to receive the compensation to which she sees herself entitled. It is also clear from the very lengthy submissions made by the Applicant in these proceedings and her communications with the Tribunal registry, that she sees herself as being mistreated, or at least not treated fairly, by Comcare and the legal system. These factors all seem to be significant contributors to the Applicant’s mental condition. As the above cited cases establish, these are not factors that relate to the Applicant’s employment by the Respondent for the purposes of s 5B(1) of the
SRC Act.The Applicant’s evidence to the Tribunal, as well as the evidence of Ms Torre and
Dr Spear, was that she experienced a number of stressful events including her marriage breakdown and the pressures associated with being a single parent, the stress of her compensation claim and associated Tribunal proceedings, financial pressures arising from the compensation process, and feelings of injustice at the outcome of the previous Tribunal proceedings. Indeed, as noted above at paragraph [50], the Applicant appears to link all subsequent negative events in her life to her accident at work and her injuries. However, as the decisions discussed above indicate, these stressors are too remote to relate to the Applicant’s employment, and in any event, the medical evidence of Dr Judkins and Dr Spear indicates that the most likely cause of the Applicant’s heart attack was the argument with her daughter (a non-work related stressor).
Dr Spear was of the opinion that the Applicant was suffering from major depressive disorder and pain disorder at the time of her heart attack. Although Dr Spear’s Table referred to “major depressive disorder” as being associated with a “significant increased risk of NSTEMI”, in his supplementary report (Exhibit R5, page 3) Dr Spear revised his opinion to state that “any increase in risk of a myocardial infarction for those with exposure to depression is not materially significant”. Thus it could not be concluded on the balance of probabilities that the Applicant’s accumulated stress associated with her depression contributed to her heart attack, or an increased risk of heart attack.
Dr Spear also noted that, although there were numerous sources of stress in the Applicant’s life at that time (including stress secondary to her accepted conditions, legal issues relating to her claim and non-work related stress), the “most likely principal cause” of the Applicant’s heart attack was the argument with her daughter, which, in the opinion of the Tribunal, is too remote to relate to her employment.
The Table prepared by Dr Spear noted that “non-work related stressors” (which the Tribunal notes are consistent with Tzikas and the other authorities as not relating to employment), were the most significant contributors to the Applicant’s heart attack. More specifically, in the opinion of Dr Spear, as well as the argument with her daughter being the most likely principal cause, the other non-work related stressors included “cognitive distortions” which were a “significant contribution to interpersonal issues and argument”; “poor coping skills” which were a “significant contribution to interpersonal issues and coping with argument” and “personal stressors” which were also a “significant contribution” to the Applicant’s increased risk of heart attack. Additionally, as noted above, although Dr McNeill did not formally diagnose a personality disorder, she did identify “evidence of dysfunctional personality traits”, which is consistent with the evidence of Dr Spear. The Tribunal accepts the expert opinion of Dr Spear which indicates that the argument with the Applicant’s daughter was the principal cause of her heart attack, together with other personal stressors which were not related to the Applicant’s employment.
CONCLUSION
Based on the above discussion, the Tribunal finds that the Applicant’s heart attack was not an injury within the meaning of s 5A(1)(b) of the SRC Act because although it was a sudden and ascertainable physiological change and a dramatic disturbance of the normal physiological state, it did not arise out of, or in the course of, the Applicant’s employment with Centrelink. This is because the medical evidence indicates that the argument with the Applicant’s daughter, which was unrelated to her employment, was the most likely precipitant to her heart attack. Even if it could be concluded (which in the Tribunal’s opinion it cannot be, on the basis of the current medical evidence) that accumulated stress contributed to the Applicant’s heart attack, the stressors in the Applicant’s life were primarily not work related.
The Tribunal has a great deal of sympathy for the Applicant, who suffers from pain and depression as part of her accepted conditions. However, based on a consideration of the relevant legislative provisions, and the evidence before the Tribunal, particularly the medical evidence, the Applicant’s heart attack is too remote to be considered as arising out of, or in the course of, the Applicant’s employment with Centrelink.
Consequently, Comcare is not liable to pay compensation for the Applicant’s heart attack under a 14(1) of the SRC Act, and the correct and preferable decision is to affirm the decision under review.
DECISION
The Reviewable Decision of 28 September 2016 is affirmed.
130.
I certify that the preceding 129 (One hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member
Dr M Evans.................................[sgd]......................................
Associate
Dated: 30 April 2019
Date of hearing:
4 and 5 February 2019
Solicitors for the Applicant:
Counsel for the Respondent:
Self-represented
Ms C Dowsett
Solicitors for the Respondent:
The Australian Government Solicitor
Key Legal Topics
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Administrative Law
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Employment Law
Legal Concepts
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Causation
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Jurisdiction
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Procedural Fairness
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Remedies
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Statutory Construction
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