KTKY and Comcare (Compensation)

Case [2019] AATA 1123

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 459

SECONDARY 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

  1. 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).

  2. 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).

  3. 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).

  4. 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).

  5. 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…

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Details
AGLC
KTKY and Comcare (Compensation) [2019] AATA 1123
Case
[2019] AATA 1123
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, KTKY, against a decision by Comcare to deny liability for compensation for an acute myocardial infarction (heart attack). The Applicant had suffered a heart attack on 2 December 2015, and Comcare had determined that this event was not caused by, nor related to, her accepted compensable conditions, nor did it arise out of or in the course of her employment. The Applicant sought review of this decision by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Applicant's heart attack constituted a "disease" or an "injury (other than a disease)" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), and whether there was a sufficient causal relationship between the Applicant's employment and her heart attack. The Tribunal was required to determine if the injury arose out of, or in the course of, the Applicant's employment.

The Tribunal considered evidence including a letter from a psychologist, Ms Torre, who detailed the Applicant's history of sustained stress related to a workplace injury, chronic pain, depression, and anxiety, as well as acute crises. While Ms Torre stated it was not within her professional expertise to draw direct causative links between stress and the heart attack, she noted that evidence-based research establishes such links and that the Applicant's accepted depression would increase her vulnerability to stress. Comcare's delegate had considered the heart attack an injury rather than a disease but was not satisfied on the balance of probabilities that the medical information established a link to the accepted condition or that it arose out of or in the course of employment.

The Tribunal affirmed the decision under review. It found that the Applicant had not established, on the balance of probabilities, that her heart attack was caused by, or related to, her accepted compensable condition, nor that it arose out of or in the course of her employment. Consequently, Comcare was not liable to pay compensation for the acute myocardial infarction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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