Lutz v State of New South Wales (Ambulance Service of New South Wales)
[2021] NSWPIC 65
•7 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lutz v State of New South Wales (Ambulance Service of New South Wales) [2021] NSWPIC 65 |
| APPLICANT: | John Robert Lutz |
| RESPONDENT: | State of New South Wales (Ambulance Service of New South Wales) |
| MEMBER: | Ms Jacqueline Snell |
| DATE OF DECISION: | 7 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The applicant brought a claim for lump sum death benefit payable under section 25(1)(a) of the 1987 Act and funeral expenses payable under section 26 of the 1987 Act, together with interest and costs; the respondent disputed the deceased worker (who was the applicant’s wife) suffered injury arising out of or in the course of her employment with the respondent which resulted in her death; Held- the cause of the deceased worker’s death was Takotsubo Syndrome, which resulted from psychological injury sustained in the course of the deceased worker’s employment with the respondent; the applicant was partially dependent on the deceased worker at the time of her death; the respondent is to pay to the applicant the lump sum death benefit payable under section 25(1)(a) of the 1987 Act; the respondent is to pay to the applicant funeral expenses payable under section 26 of the 1987 Act; the respondent is to pay to the applicant interest at the rate of 4.25% from the date the claim for compensation was duly made; the respondent is to pay to pay the applicant’s costs as agreed or taxed, and a 30 percent uplift on costs for both parties is recommended. |
| DETERMINATIONS MADE: | The Commission notes: 1. Liability is admitted for the psychological injury Cheri Lutz (the deceased worker) sustained in the course of her employment with the respondent. The Commission determines: 2. The deceased worker died on 13 February 2016. 3. The cause of the deceased worker’s death was Takotsubo Syndrome, which resulted from psychological injury sustained by the deceased worker in the course of her employment with the respondent for which liability is admitted. 4. Robert Lutz (the applicant) was partially dependent on the deceased worker at the date of her death. There were no other persons dependent on the deceased worker at the date of her death. 5. The respondent is to pay to the applicant the lump sum death benefit of $750,000 under s 25(1)(a) of the Workers Compensation Act 1987. 6. The respondent is to pay to the applicant funeral expenses in the sum of $9,568.35 under s 26 of the Workers Compensation Act 1987. 7. The respondent is to pay to the applicant interest on the lump sum death benefit as provided by s 109 of the Workplace Injury Management and Workers Compensation Act 1998 from 26 May 2020 at the rate of 4.25 percent. 8. The respondent is to pay the applicant’s costs as agreed or assessed. The matter is certified as complex and a 30 percent uplift on costs for both parties is recommended. |
STATEMENT OF REASONS
BACKGROUND
Robert John Lutz (Mr Lutz) is the applicant in these proceedings. Mr Lutz was the husband of Cherie Lutz (Ms Lutz) who passed away on 13 February 2016.
Ms Lutz sustained psychological injury in the course of her employment as a paramedic with the Ambulance Service of NSW (the respondent) for which liability was admitted. Ms Lutz was ultimately medically retired from her employment with the respondent as a result of her psychological injury, with her final day of work being 11 December 2015.
Mr Lutz claimed in these proceedings that the psychological injury Ms Lutz sustained in the course of her employment with the respondent caused takotsubo syndrome, which in turned caused her death on 13 February 2016. The cause of Mr Lutz’s death is particularised in the following terms:
“The deceased experienced a series of traumatic incidents at work during the course of her employment with the Respondent from 19 April 1999 to 11 December 2015. In particular, on 18 November 2009 she attended a call out at private premises where she witnessed the violent self-infliction of injuries by one of the residents, resulting in his death. Subsequently the deceased developed post-traumatic stress disorder and acute depression for which she was medically retired. On 6 February 2016 the deceased collapsed at home and was transported to Royal Prince Alfred Hospital. She was later transferred to St Vincent’s Hospital and whilst an inpatient she passed away as a result of Takotsubo syndrome/stress-related cardiomyopathy. The deceased’s severe psychological injury materially contributed to her death”.
By consent, the application in these proceedings was amended at page 8 to reflect the correct date of Ms Lutz’s death, being 13 February 2016.
The claim for compensation in these proceedings involved the following:
(a) lump sum death benefit payable unde s 25(1)(a) of the Workers Compensation Act 1987 (1987 Act);
(b) funeral expenses payable under s 26 of the 1987 Act;
(c) interest at the rate of 4.2 percent from the date of the claim to date of payment of the lump sum compensation, and
(d) costs.
The respondent issued notice in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 9 December 2016, and also issued notice on 12 August 2020 relevant to Mr Lutz’s request to review the decision to decline his claim for compensation payable on death. In essence, the respondent disputed Ms Lutz suffered an injury arising out of or in the course of her employment with the respondent that resulted in her death.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether Ms Lutz suffered an injury arising out of or in the course of her employment with the respondent which resulted in her death, and
(b) interest.
The parties agree that the following issue are not disputed:
(a) Mr Lutz was partially dependent on Ms Lutz at the time of her passing;
(b) there are no other dependents, and
(c) in the event Mr Lutz is successful in his claim, relevant to costs, an uplift for complexity at 30% is considered appropriate.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation conference and arbitration hearing on 11 March 2021, by telephone. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Perry of counsel appeared for Mr Lutz, instructed by Mr McClenahan. Mr Robertson of counsel appeared for the respondent, instructed by Mr Atkins. Following conciliation conference, Mr Atkins was excused from attending the arbitration hearing, as was Ms Ferguson from QBE.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application in Respect of Death of Worker and attached documents (ARDW);
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 16 February 2021 lodged by the applicant, and attached documents (AALD).
Oral evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of the evidence
A brief summary of evidence follows. For the purposes of this review of the evidence I understand the terms cardiomyopathy, takotsubo cardiomyopathy and takotsubo syndrome refer to the same condition and are used interchangeably. For the sake of consistency, I will refer to the condition as “takotsubo syndrome”.
Statement of Ms Lutz
In her statement dated 30 January 2015[1] Ms Lutz explained that in 2005 following the intense pressure involved in her Intensive Care Paramedic recertification she experienced her first episode of depression, which saw her admitted as an inpatient for six weeks at St John of God Hospital. Her treating psychiatrist was Dr Chee and she remained on a “tightly measured prescription”. Ms Lutz described the horrific event she attended on 18 November 2009, which involved Adam Salter (Mr Salter) being fatally shot by a police officer and she also described her consequential distressing attendances at the coronial inquest into his death and the Police Integrity Commission (PIC) hearing.
[1] ARDW at page 1.
Ms Lutz described having to again deal with this horrific incident towards the end of 2014 when she was required to review material and sign a statement relevant to the upcoming criminal trials of the police officers involved in Mr Salter’s matter. She acknowledged at that time “it is likely that I will have to give evidence again in court later in 2015”.
Statements of Mr Lutz
In his substantive statement dated 23 April 2017[2] Mr Lutz addressed the events which he said led up to the death of Ms Lutz. He relevantly explained that in 1995 Ms Lutz experienced periods of depression and anxiety secondary to her work, with treatment including medication, counselling and a six week admission to St John of God Hospital before her condition stabilised.
[2] ARDW at page 9.
He said that on 18 November 2009, Ms Lutz attended a very distressing incident where a patient (Mr Salter) with self-inflicted stab wounds was lethally shot by a police officer. Ms Lutz’s experience at the ensuing coronial inquest in September/October 2011 was “extremely upsetting” and she was “clearly agitated and frustrated” with the progress of the coronial inquest being reported and the release of the coroner’s findings in mid-October 2011.
Ms Lutz reportedly “reached breaking point” on 25 December 2011 when she attended a family function on Christmas Day where, in front of a patient’s family, she was unable to resuscitate the patient who had gone into cardiac arrest.
On 28 August 2012 Ms Lutz appeared at the PIC hearing relevant to the events leading up to the death of Mr Salter and was reportedly subjected to “quite hostile treatment” by a number of counsel appearing for the police officers, as the police version of events differed significantly from all the other witnesses. The difficulty and pressure the paramedics appearing at the PIC hearing were under was recognised in a letter dated 7 September 2012 penned by Geoffrey Watson SC, counsel assisting, in a private capacity[3].
[3] ARDW at page 57.
Although following the PIC hearing, Ms Lutz reportedly felt some relief, in or about June 2013 the PIC released findings to Parliament, with recommendation the Director of Public Prosecution advise in relation to the laying of criminal charges against the police officers involved in Mr Salter’s matter, which “triggered a new wave of uncertainty” for Ms Lutz.
At the end of October 2014 it was announced that criminal charges would be laid against the four police officers involved in Mr Salter’s matter and Ms Lutz was advised she was required to give evidence “possibly at multiple trials”. PIC subsequently provided Ms Lutz with a draft statement for review and finalisation, together with copies of her record of interview with Police, transcripts of her evidence at the coronial inquest and the PIC hearing, and sketch plans of the scene. Following chase up contact from PIC in early January 2015, Ms Lutz ultimately managed to finalise her statement by 15 January 2015.
At the end of January 2015 Ms Lutz was served with a summons to produce her personal telephone records for dates relevant to Mr Salter’s matter and to produce correspondence between her and PIC between 23 May 2012 and 15 January 2015. The summons caused Ms Lutz to become “deeply distressed” and led her to believe counsel appearing for the police officers would be “far more aggressive” at the criminal trials than they had been at the PIC hearing. In April 2015 Ms Lutz was notified pre-trial dates had been set for two criminal trials, the first being 17 August 2015 and the second being 26 April 2016. In June 2015 Ms Lutz was notified that all four police officers would be tried together, with the trial set to commence 26 April 2016.
On 27 November 2015 Ms Lutz was notified by the respondent that her medical retirement was approved, with her final day being 11 December 2015. While this was reportedly a relief for Ms Lutz, her retirement “understandably left her with a feeling of emptiness”. Over Christmas and into early January 2016, Mr Lutz was on leave and spent time with Ms Lutz. Over the Australia Day long weekend they spent time in the Blue Mountains “quietly celebrating” their 25th wedding anniversary. After Mr Lutz returned to work, Ms Lutz “was spending her time at home alone with the occasional interaction with close friends for exercise”.
During the evening of Friday, 5 February 2016, Ms Lutz mentioned at about 7.00pm she felt unwell and retired to bed. On Saturday morning she told Mr Lutz that she felt better and Mr Lutz left home for a pushbike ride. Mr Lutz sent a text message to Ms Lutz at around 9.30 am to which she responded “she was up and feeling ok, had had breakfast and was working on her jigsaw puzzle”. Mr Lutz finished his ride at around 11.00 am and after missing a call from Ms Lutz, he received her message asking him to urgently return her call as she was not feeling well. Mr Lutz returned Ms Lutz’s call and on learning she had fainted, told her to call an ambulance. The ambulance responded quickly, and in significant cardiac distress, Ms Lutz was transported to Royal Prince Alfred Hospital (RPAH) with Mr Lutz having returned home in time to travel with her to the hospital.
With initial view in Emergency that Ms Lutz may require a pacemaker, Ms Lutz reportedly “said she was terrified that she would not be able to exercise with a pacemaker, as it was the one thing that provided some relief for her”. Ms Lutz came under the care of Professor Wilcox and with her condition continuing to decline “Professor Wilcox felt the clinical picture was presenting as Takotsubo Syndrome, a cardiac condition brought on by extreme stress”. During Sunday evening Ms Lutz was transferred to Intensive Care and overnight she suffered cardiogenic shock. Ms Lutz was placed on external support and on Wednesday she was transferred to St Vincent’s Cardiac Intensive Care Unit. Support “was very sadly” removed on Saturday, 13 February 2016.
In his supplementary statement dated 2 July 2020[4] Mr Lutz canvassed dependency, which is not in issue in these proceedings. Mr Lutz says he considered himself partially financially dependent on Ms Lutz as at the date of her death on 13 February 2016 as their income and expenses had been shared during their married life together, and that would have remained the position into the future had she not died.
[4] ARDW at page 19.
Summary of events
A document entitled “SUMMARY OF EVENTS”[5] which was forwarded by PIC under cover of letter dated 23 March 2017 to Mr Lutz on request, relevantly described telephone contact between Ms Lutz and PIC Senior Investigator Bantoft (Officer Bantoft) on 9 January 2015, with Officer Bantoft having made a file note of their conversation which included the following:
“…CL stated she had been dreading the statement and that was why she had not completed it at this stage, but also knew that it was necessary and would have it completed by Thursday 15 January if that was her deadline. CL stated that she would have some good friends come around to her house whilst she read through the material to assist her emotionally.
…CL made a comment that people make comment that the event was some years ago now and how does she remember the incident without refreshing her memory, and she stated that she still closes her eyes today and the event is as clear in her mind as the day it happened”.
[5] ARDW at page 21.
Medical certificate of cause of death
The Medical Certificate of Cause of Death completed by Dr Fernando Rajee on 13 February 2016[6] relevantly described the “disease or condition directly leading to death” as cardiac arrest with a akinetic heart, the “antecedent causes” as cardiogenic shock, and “other significant conditions contributing to death but nor related to the disease, injury or condition causing it” as “cerebral stoke”.
[6] ARDW at page 29.
Death Certificate
The Death Certificate dated 2 March 2016[7] confirmed Ms Lutz was married to Mr Lutz and that she died on 13 February 2016 with the cause of death and duration of last illness noted in the following terms:
“(I)(a) Cardiac arrest with a akinetic heart, 8 days
(b) Cardiogenic shock, 8 days
(II) Cerebral stroke – 8 days”
Treating medical evidence
Dr Ellis
[7] ARDW at page 33.
Dr Ellis was Ms Lutz’s general practitioner, and her most recent opinion was provided under cover of letter dated 28 October 2015[8]. In her report Dr Ellis lent considerable support for the medical retirement of Ms Lutz but also canvassed in some detail the need for recovery time following the medical retirement of Ms Lutz, particularly in light of the requirement that she return to court in March/April 2016 “which is a great source of distress”. Dr Ellis cautioned “Cheri needs support through the process of the continuing court case which recommences next year. After this, Cheri can start to recover and begin on a new vocational path”.
[8] ARDW at page 174.
Dr Chee
Dr Chee was Ms Lutz’s treating psychiatrist, and his most recent opinion was provided under cover of letter dated 29 November 2014 addressed to Dr Ellis[9]. In his report he confirmed he has been involved in Ms Lutz’s psychiatric care for a number of years and like Dr Ellis, he lent support for the medical retirement of Ms Lutz against a background of the respondent being unable to provide her with suitable employment. Dr Chee made specific reference to the traumatic incident “when a mentally ill man was shot dead by a police officer in front of her” and made mention “there followed a period of considerable stress with coronial enquiries, and I understand now charges have been laid against the police officers involved”. He made mention also of Ms Lutz becoming increasingly disillusioned and feeling hopeless about her career options with the respondent, and said “[S]he has experienced increased levels of anxiety, low distress tolerance as well as periods of tearfulness. This is despite years of pharmacotherapy as well as psychotherapy with myself, yourself as well as with her psychologist”.
Paul Penna
[9] ARDW at page 150.
Paul Penna was Ms Lutz’s treating psychologist and he provided opinion under cover of letter dated 1 July 2015[10]. In his report he confirmed he had been involved in Ms Lutz’s psychological care since November 2009, and like Dr Ellis and Dr Chee he lent support for the medical retirement of Ms Lutz against a background of the respondent being unable
to provide her with suitable employment. Relevant to the incident that occurred on 18 November 2009, Mr Penna wrote:
“The distress of a police shooting, at which Mrs Lutz was a witness and senior paramedic, and the subsequent Coroner’s Inquest and Police Integrity Hearings have had an significant impact on her mental health. The demands of this case continue to impact Ms Lutz”.
[10] ARDW at page 162.
He wrote too:
“Concerns about her mental health now and in the future, and career options contribute a substantial burden.
It is common for a person’s mental health to suffer as a result of a major personal event. When an individual experiences ongoing trauma, inconsistent support and an uncertain future, the impact on an individual’s mental health can be much grater”.
Associate Professor Lowe
On 7 February 2016 Associate Professor Lowe performed a cardiac catheterisation following Ms Lutz’s admission to RPAH during the early hours of 6 February 2016. In his report[11] Associate Professor Lowe raised the possibility Ms Lutz was suffering takotsubo syndrome.
[11] ARDW at page 181.
Professor Wilcox
Professor Wilcox was Ms Lutz’s treating cardiologist on admission to RPAH. His reports dated 8 February 2016[12], 10 February 2016[13] and 13 September 2016[14] were relied on by Mr Lutz in these proceedings. Professor Wilcox is described by Professor O’Rourke in his report dated 11 October 2016 (referred below) as “a highly competent, highly respected cardiologist in a prestigious institution”.
[12] ARDW at page 182.
[13] ARDW at page 184.
[14] ARDW at page 232.
In his reporting, Professor Wilcox noted the history initially obtained from Ms Lutz was that she had been dizzy for a couple of days prior to admission with a single episode of loss of consciousness. Paramedic arrival following this loss of consciousness noted Ms Lutz as being in complete heart block but once in the hospital, the degree of heart block varied. With the benefit of testing, which included clear evidence of quite significant left ventricular dysfunction, Professor Wilcox formed his initial view the clinical picture was “Takotsubo syndrome without any proffered stress”. However, following “frank discussion” with Ms Lutz during the morning of Monday, 8 February 2016, Professor Wilcox noted the “extraordinary stress” Ms Lutz had suffered in her life, with particular reference to the incident occurring on 18 November 2009 and sequelae, which included the criminal trial scheduled for April 2016. Professor Wilcox cautioned he did not consider Ms Lutz fit for the scheduled trial “as Takotsubo syndrome can recur in the setting of severe emotional stress”.
In response to specific questioning by Mr Lutz’s solicitors as to whether or not the takotsubo syndrome suffered by Ms Lutz related to the post-traumatic stress disorder (PTSD) suffered by her during the course of her employment with the respondent (it must be noted that at that particular point in time Professor Wilcox was not under the impression that takotsubo syndrome was the cause of Ms Lutz’s death) Professor Wilcox wrote:
“There is no question that the clinical context was of major stress with the final termination of her career in late December. She expressed her distress at losing a job that she had spent so much of her life enjoying until earlier that year. There was no question the forthcoming stress of a court hearing to readdress the matter had a major effect on her. If she had had a Takotsubo like picture no one would have been in any doubt it was causally related. My view is that I think it is likely that it was indeed a contributing factor to triggering this very severe and rapidly fatal condition”.
Professor Hayward
Professor Hayward was Ms Lutz’s treating cardiologist following her transfer from RPAH to St Vincent’s Hospital. In his report dated 24 February 2016[15] Professor Hayward detailed the deterioration of Ms Lutz’s condition with ultimate death following the election to withdraw further therapy.
[15] ARDW at page 231.
Independent medical evidence
Dr George
Arrangement was made by the respondent for Ms Lutz to attend an independent medical examination with Dr George, psychiatrist, on 14 January 2015, being approximately one year prior to her death. Dr George provide a report dated 18 January 2015, which is relevant to Ms Lutz’s claim for compensation benefits resulting from psychological injury[16]. Dr George reported that at the time of assessment Ms Lutz had not worked since about August 2014, having previously been undertaking suitable duties for a three year period. He noted Ms Lutz last worked in normal paramedic duties on 25 December 2011.
[16] ARDW at page 152.
Ms Lutz explained to Dr George that she had succumbed to exam stress during the re-certification process relevant to her status as an intensive care paramedic and had come under psychiatric care for depression. She told Dr George that in 2009 she was diagnosed with PTSD after witnessing a police officer fatally shoot a mentally disturbed man in his home, while she and other paramedics were in the process of treating him. Ms Lutz told Dr George there had been an investigation into the incident, with subsequent hearings in 2011 and 2013 rekindling her symptoms. She said “the shooting had never gone away”. She said the recent request to review her original statements/transcripts of evidence had again rekindled her symptoms. Ms Lutz told Dr George her work situation with the respondent was uncertain, and that “[G]enerally she has felt overwhelmed by all these circumstances”. She explained to Dr George “she competes in triathlons and uses exercises to control her symptoms of anxiety and depression”.
Following mental state examination, Dr George provided diagnosis in terms of an exacerbation of major depressive disorder with elements of PTSD. He provided opinion in the following terms:
“Ms Lutz is a 46 year old woman who presents for psychiatric assessment in the context of developing symptoms of depression as well as recurrence of some symptoms of Post-Traumatic Stress Disorder. These symptoms have come about in relation to rekindling of a traumatic experience to which she was exposed in 2009 when a mentally disturbed man was shot by police in front of her.
There have been investigations subsequently because, apparently, the police lied at the Coroner’s Inquest. Charges are about to ensue, according to her descriptions. She has had to review her transcript of evidence and this has brought into focus of the death of the man once again.
In addition to this, she has become distressed, anxious and depressed to a degree with respect to the lack of direction related to her work. Her secondment position is soon to come to an end. She wanted to be involved in teaching of ambulance officers, but would have to undergo re-certification and she cannot work as an active ambulance officer again due to her symptoms. She feels, generally, overwhelmed and distressed by these events”.
In response to specific questioning, Dr George cautioned Ms Lutz would need to remain under the care of her treating psychiatrist, should undergo cognitive behavioural therapy with her usual psychologist and continue with her medication, which was identified as Pritiq 150 mg daily and Avanza 7.5 mgs daily.
Dr Chow
Arrangement was made by the respondent for Ms Lutz to attend an independent medical examination with Dr Chow, psychiatrist, on 23 September 2015, being just some five months prior to her death. Dr Chow provided a report dated 8 October 2015[17], which was relevant to the medical retirement of Ms Lutz. Dr Chow reported Ms Lutz as having ceased work on 25 December 2011, trialling back on a number of light duties of non-operational roles “which she found ongoing difficulties with” over the following three years, and ceasing work altogether in August 2014.
[17] ARDW at page 76.
Ms Lutz explained to Dr Chow she had suffered a first episode of depression in 2005, with admission to St John of God Hospital. She explained she had been under the psychiatric care of Dr Chee since that time. She told Dr Chow that since November 2009 she had experienced psychological symptoms with deterioration when she witnessed the police shooting of Mr Salter, with the subsequent distressing coroner’s inquest and PIC hearing. She told Dr Chow the police officers involved in the shooting were involved in court proceedings. Ms Lutz reported to Dr Chow she was “probably significantly affected by the police shooting incident” and “became increasingly lost in her sense of direction”.
In his report Dr Chow acknowledged that although Ms Lutz was now removed from a work environment that might trigger her psychological symptoms, her condition was unlikely to stabilise until the police officers’ court proceedings were finalised, which was of unknown timeframe at that stage. Dr Chow provided diagnosis of PTSD and major depressive disorder.
Professor O’Rourke
Professor O’Rourke is a Cardiologist. He provided a substantive report dated 11 October 2016[18] and two supplementary reports dated 28 July 2020[19], which are relied on by the respondent in these proceedings. Professor O’Rourke is an eminent and decorated cardiologist, who has worked at St Vincent’s Hospital since 1970. He has conducted research into clinical cardiology for over 35 years and has written over 400 articles in peer review journals and seven books on arterial function and disease. Of particular relevance in these proceedings is that Professor O’Rourke with others has written an article relevant to takotsubo syndrome: Takotsubo cardiomyopathy: an extreme in the cardiovascular continuum?[20].
[18] ARDW at page 234.
[19] Reply at pages 384 and 387.
[20] ARDW at page 716.
While in his initial substantive report Professor O’Rourke attributed the death of Ms Lutz to myocarditis with no connection with her employment with the respondent, in one of his subsequent supplementary reports Professor O’Rourke accepted that much had been learned about takotsubo syndrome since he wrote his initial report in 2016. In that subsequent supplementary report Professor O’Rourke said he now agreed with Professor Duflou (referred below) that takotsubo syndrome was responsible for the death of Ms Lutz. Professor O’Rourke described Professor Duflou’s reporting that the histological features of Ms Lutz’s myocardium were more consistent with takotsubo syndrome than with primary or secondary myocarditis as “compelling”.
While Professor O’Rourke accepted a diagnosis of takotsubo syndrome for Ms Lutz‘s presentation at RPAH on 6 February 2016 he said:
“I cannot accept a nexus between this condition and her employment with the Ambulance Service. TC can be triggered by an acute event, and used to be called ‘stress cardiomyopathy’ because of such experiences. But the events can be pleasant as well as unpleasant as pointed out in the attached papers. Episodes can be triggered also by exercise or by surgical procedures. Ms Lutz was a keen athlete and long distance runner, and had no other cardiac symptoms before February 2016.
… I cannot see any nexus between the stressful incident in 2009, and the onset of TS on 6 February 2016. She ceased working for NSW Health on June 1, 2014 and for NSW Ambulance community relations in 2014. In her private life, Ms Lutz was very active, participating in competitive cycling events, including one of 120km in 2 days.
There has been a surge of interest in TC in recent years, with attempts made to agree on when a diagnosis is warranted in relation to a particular event of stress, a surprising event, a surgical procedure or a period of physical exercise, before onset of symptoms. For physical stress of unaccustomed exercise, this has been generally accepted as during exercise or within one hour of exercise cessation (Mittleman et al. NEJM 1993:329:1677-83; Willich et al. NEJM 1993; 329: 1684-90). In Ms Lutz’s case, there was no such proximate stress. She was able to train for and participate in strenuous exercise programs after discharge from the ambulance service. It was expected that Ms Lutz would be called as a witness to an enquiry on the shooting incident of 2009 in April 2016, and that such concern may have triggered TC. However, I do not accept as a medical proposition that there can be a causal connection between anxiety about a forthcoming event, and the triggering of Takotsubo Syndrome.
On the balance of probabilities, there is no temporal or proximate connection between any acutely stressful event at work with NSW Ambulance and the onset of TC (or TS) symptoms in 2016.
In my experience, Takotsubo Syndrome is not associated with chronic or recurrent stress”.
In the second of his supplementary reports, while Professor O’Rourke relevantly accepted that severe recent emotional stress could trigger takotsubo syndrome, he provided comment no trigger was identified as a cause in February 2016, and the work-related trauma was many years before.
Professor Duflou
Professor Duflou is a Forensic Pathologist. He provided a substantive report dated 1 January 2020[21] and a supplementary report dated 6 January 2020 [22] which are relied on by Mr Lutz in these proceedings. Professor Duflou relevantly obtained training in cardiovascular pathology as a postgraduate research fellow, and has reportedly examined, interpreted and reported on deaths involving heart disease and other cardiac abnormalities over a period in excess of 35 years. He has reportedly also published in excess of 130 peer reviewed scientific articles, including articles relevant to research findings on death due to heart disease. It is evident that at the time of preparing his substantive report, Professor Duflou had available to him significant medical information, including the substantive report of Professor O’Rourke referred. He also had the microscopy slides of the heart of Ms Lutz.
[21] ARDW at page 106.
[22] ARDW at page 137.
In his substantive report Professor Duflou noted the history of Ms Lutz’s psychological injury and untimely death in consistent terms. He noted the incident that occurred in November 2009 involving Mr Salter, after which Ms Lutz experienced psychological symptoms that interfered with her work duties and day to day living. With her initially debilitating symptoms improving with medical care, Ms Lutz commenced a return to work program. However, with the lead up to the inquest into Mr Salter’s death and subsequent release of the coroner’s findings in October 2011, Ms Lutz’s psychological condition deteriorated and she ceased work again after attending a traumatic event on 25 December 2011. Over the ensuing seven months Ms Lutz’s psychological condition improved and she returned to work on suitable duties and also appeared at the PIC hearing. While Ms Lutz slowly increased her workload, there appeared to be some difficulty finding a suitable role for her and there were discussions about medical retirement. With Ms Lutz being advised in October 2014 that she would be required to give evidence at criminal trials relevant to the matter of Mr Salter, Ms Lutz came under additional stress, which caused further distress and depression. Although her medical retirement was approved in November 2015, Ms Lutz was still required to give evidence at the criminal trial which was fixed for April 2016.
Professor Duflou noted Ms Lutz reported feeling unwell during the evening of 5 February 2016 and fainting the following morning. On subsequent questioning, Ms Lutz reported feeling dizzy for a couple of days beforehand. With ambulance arrival, Ms Lutz was found to have complete heart block and was transported to RPAH. On the basis of findings following admission, Associate Professor Lowe suggested diagnosis of takotsubo syndrome and myocarditis and Professor Wilcox made a diagnosis of likely takotsubo syndrome in a setting of extreme stress with myocarditis considered a less likely possibility. Professor Duflou noted the deterioration in Ms Lutz’s condition, her transfer to St Vincent’s Hospital, the ultimate withdrawal of treatment and her death on 13 February 2016.
Professor Duflou noted the anatomical pathology undertaken, the virology testing undertaken and had the opportunity to review the microscopy slides detailed in Professor Barret’s report[23].
[23] ARDW at page 213.
In response to specific questioning by Mr Lutz’s solicitors, Professor Duflou said:
(a) the clinical features as described by Professor Wilcox are consistent with those expected in takotsubo syndrome; Professor Duflou explained that as myocarditis had many causes, including severe stress, he was of the view “that both viral infection and stress-induced cardiomyopathy remain possible causes of the identified pathology”. In such cases, he said, all the circumstances should be taken into account and “given the clinical features presented it is in my view entirely possible for the cardiac abnormalities, both clinically and pathologically, to be the result of psychological and/or physiological stress on the heart”;
(b) the changes revealed were consistent with the existence of takotsubo syndrome. While the histological features of takotsubo syndrome are not fully characterised, the predominant mechanism causing the condition appears to be release of stress substances, which in turn have a direct toxic effect on the myocardium[24];
[24] Ono R, Falcao L Takotsubo cardiomyopathy systematic review: pathophysiological process, clinical presentation and diagnostic approach to takotsubo cardiomyopathy. International Journal of Cardiology 2016; 209:196-295.
(c) the changes revealed were consistent with the existence of an inflammatory response to takotsubo syndrome. The pathological observations in the ventricles, the left more so than the right, are an inflammatory response with associated necrosis of myocytes, which can be seen as a manifestation of takotsubo syndrome. The specimens of the right and left ventricle show changes that are entirely concordant with takotsubo syndrome;
(d) while death only occurs between 1% and 2% of diagnosed takotsubo syndrome cases, Ms Lutz suffered an embolic stroke which contributed significantly to her death in that it led to the withdrawal of active medical treatment. It is “very likely” the stroke is a direct consequence of her heart condition; stoke is an accepted complication of takotsubo syndrome “especially if the left ventricle is relatively akinetic and therefore prone to mural thrombus formation”. In the case of Ms Lutz where a CT scan of her brain revealed a massive middle cerebral artery embolic stroke “it is therefore very likely that the stroke is the result of the cardiac condition, and specifically in the form of a poorly functioning left ventricle. The cause of this left ventricular dysfunction can be either myocarditis or takotsubo cardiomyopathy, with both described as rare causes of embolic stroke”[25];
(e) Ms Lutz’s clinical history supported the possibility of suffering takotsubo syndrome resulting in sudden death as takotsubo syndrome has been described in many diverse circumstances including stress related employment problems and anxiety[26], and “importantly many of these circumstances need not occur as an acute stressful event immediately preceding the onset of the condition”;
(f) at no time was significant coronary artery disease identified;
(g) relevant to a paper forwarded to him by Mr Lutz’s solicitors[27], Professor Duflou noted the authors essentially argued that the left ventricular dysfunction seen in takotsubo syndrome is likely the result of effect of stress substances on the heart. Dr Duflou noted that one of the 19 patients reported had extensive myocarditis, contraction band necrosis and myocyte necrosis, being the histologic largely seen in Ms Lutz’s case. Professor Duflou provided opinion the histological features in Ms Lutz’s heart were “similar if not identical to those described in the various research publications mentioned”, and
(h) relevant to Professor O’Rourke’s initial substantive report, Professor Duflou confirmed his view that Professor Wilcox formed consistent opinion that Ms Lutz likely had takotsubo syndrome as a result of the stressful events described to him. Professor Duflou explained Professor Wilcox’s “later hesitancy” in respect of such diagnosis, with reference to Professor Wilcox’s reading of Professor Haywood’s letter which, while summarising Dr Barrett’s histology report, made no mention of Dr Barrett’s caution of a need for further testing. Professor Duflou noted such further testing was largely done in the form of viral studies that were all negative; while Professor O’Rourke appeared to be of the view that takotsubo syndrome is the result of “an acute, proximate and identified stress event”, Professor Duflou said this did not need to be the case and referred to the paper by Sharkey and others that listed a large number of circumstances where takotsubo syndrome had occurred and “in many there is no immediate acute stressful event preceding the development of the cardiomyopathy symptoms”.
[25] El-Battrawy I, Borrggrefe M, Akin I. Takotsubo syndrome and embolic events. Heart Failure Clinics 2016; 12:543-550 and Yin K, Kerur B, Witmer C, et al. Thrombotic events in critically ill children with myocarditis. Cardiology in the Young 2014;24:840-847.
[26] Sharkey S, Windenburg D, Lesser R, et al. Natural history and expansive clinical profile of stress (takotsubo) cardiomyopathy. Journal of the American College of Cardiology 2010; 55:333-341 (Sharkey).
[27] Wittstein I, Thiemann D, Lima J, et al. Neurohumoral features of myocardial stunning due to emotional stress, New England Journal of Medicine 2005; 352:539-548.
In his supplementary report Professor Duflou confirmed the viral testing negative result was supportive of a non-viral cause of the myocarditis Ms Lutz suffered and that it was his understanding her clinical presentation and the laboratory based investigations “are such that it is entirely reasonable and appropriate for a diagnosis of takotsubo/stress-related cardiomyopathy to have been made”.
Submissions
Both counsel made oral submissions which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter, which is not without complexity. As a copy of the recording is available to the parties I merely note here that the thrust of counsels’ submissions went to acceptance or otherwise by the Commission as to whether the takotsubo syndrome which resulted from the death of Ms Lutz was triggered by the psychological injury Ms Lutz had sustained during the course of her employment with the respondent.
Through Mr Perry of counsel, Mr Lutz essentially argued there was a causal link between the psychological injury Ms Lutz sustained as a result of the incident occurring in November 2009 and sequelae coupled with her medical retirement in late 2015 and the takotsubo syndrome which resulted in her death on 13 February 2016. Through Mr Robertson of counsel, the respondent essentially argued there was no causal link between Ms Lutz’s employment with the respondent and the takotsubo syndrome which resulted in her death on 13 February 2016.
Determination
Whether Ms Lutz suffered an injury arising out of or in the course of her employment with the respondent which resulted in her death
Liability is admitted for the psychological injury Ms Lutz sustained in the course of her employment with the respondent, and it was not disputed the cause of Ms Lutz’s death on 13 February 2016 was takotsubo syndrome.
My fundamental task is to determine whether on the basis of the evidence before the Commission, including that provided by the independent medical examiners, there is an unbroken causal chain between the psychological injury sustained by Ms Lutz during the course of her employment with the respondent and her subsequent death from takotsubo syndrome, so that I can be satisfied that Ms Lutz’s death resulted from that psychological injury.
The dicta of Kirby P in Kooragang Cement Pty Ltd v Bates[28] is, and remains, the critical guide when determining whether the death of a worker results from a work injury. Kirby P said at [462]:
“…it has been well recognised in this jurisdiction that any injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
Kirby P then said at [463-4]:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
There have been decisions since Kooragang that have addressed the application of the term “results from”. In State of New South Wales v Rattenbury[29] DP Roche addressed the term “results from” in the context of s 33 of the 1987 Act and said at [91]:
“The attack on the Arbitrator’s conclusion at [116] fails to acknowledge one of the most fundamental principles of workers compensation law, namely, that a claimant only has to establish that his or her incapacity has resulted from the relevant injury (Kooragang) and, as the Arbitrator noted (at [117]), there can be multiple causes of an incapacity (Calnan v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585; Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435).”
[29] [2015] NSWWCCPD 46.
Roche DP also addressed the term “as a result of an injury received by a worker” in the context of s 60 of the 1987 Act in Murphy v Allity Management Services Pty Ltd[30] and said at [57-58]:
“Moreover even, if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[30] [2015] NSWWCCPD 49.
Relevant to the competing medical evidence provided by Professor Duflou (and to some extent Professor Wilcox) and that of Professor O’Rourke, I am mindful that in Singh v FTW Products Pty Ltd[31] Snell ADP made the following observation:
“The resolution of disputes between medical experts requires a rational examination and analysis of the evidence and the issues (per Ipp JA in Sourlos v Luv A Coffee Lismore Pty Ltd & Anor [2007] NSWCA 203 at [25] citing Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127). In Hume v Walton [2005] NSWCA 148 McColl JA said at [69]:
‘The primary’s judge’s duty was not only to record the evidence but also to record the findings she made based on that evidence: Misfud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case, where there is disputed expert evidence, the ‘parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other’: Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 at [42] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)’.”
[31] [2007] NSWWCCPd 230.
There is no doubt Professor O’Rourke is an eminent and respected cardiologist, who has himself with others written an article relevant to takotsubo syndrome, which I have the opportunity to review. In this article, while it is acknowledged that in contrast to other coronary syndromes, takotsubo syndrome is 10 times more common in women than men and is most commonly precipitated by stress, which could be emotional or physical “such as threat to life or loved ones, unaccustomed exertion, intraoperative or postoperative stress”, there is no further comment relevant to the cause of takotsubo syndrome.
Although in his reports, Professor O’Rourke accepted severe emotional stress could trigger takotsubo syndrome, he provided opinion there was “no temporal or proximate connection” between any acutely stressful event suffered by Ms Lutz at work with the respondent and the onset of her symptoms in February 2016 and said in his experience takotsubo syndrome was not associated with chronic or recurrent stress. He also provided opinion that “as a medical proposition” he did not accept any causal connection between anxiety regarding the giving of evidence by Ms Lutz at the criminal trial commencing in April 2016 and the onset of her symptoms of takotsubo syndrome. While Professor O’Rourke acknowledged Ms Lutz was a keen athlete and long distance runner with no cardiac symptoms prior to February 2016, he accepted that in the circumstances of her case there was no proximate physical stress prior to the onset of symptoms of takotsubo syndrome.
Professor Duflou is a consultant forensic pathologist, with extensive expertise in all aspects of forensic pathology, including cardiovascular pathology. At the time of reporting, Professor Duflou had available to him a number of articles relevant to takotsubo syndrome, including that of Sharkey, which reportedly provided a table of examples of emotional and physical stressors triggering heart failure and included events which Professor Duflou relevantly observed “need not occur as an acute stressful event immediately preceding the onset of the condition”. Professor Duflou provided opinion that while Professor O’Rourke appeared to be of the view that takotsubo syndrome resulted from “an acute, proximate and identified stress event”, this did not need to be the case and referred to Sharkey. Unfortunately, the article of Sharkey to which Professor Duflou referred is not before the Commission and I have not had the opportunity to review it.
Mr Perry of counsel did however refer me to a Consensus Paper entitled “International Expert Consensus Document on Takotsubo Syndrome (Part 1): Clinical Characteristics, Diagnostic Criteria, and Pathophysiology”[32] that was published in 2018 on behalf of the European Society of Cardiology (Consensus Paper). I have had the opportunity to review this article. The authors of the article described takotsubo syndrome having gained international awareness in 2005 but remaining an “underappreciated and often misdiagnosed disorder”. Relevant to predisposition and risk, the authors reported that 42 percent of patients with takotsubo syndrome had a psychiatric diagnosis with half of those patients suffering from depression. Relevant to the triggering of takotsubo syndrome, psychological triggers are reported to represent a range of traumatic emotions including grief, interpersonal conflict, fear and panic, anger, anxiety, financial or employment problems, and embarrassment. Examples given relevant to such psychological stressors include many which do not appear to be in the nature of an acute and proximate occurrence, but rather appear to be in the nature of a persistent occurrence (family estrangement, illness, homelessness). At Figure 3, emotional stress factors precipitating takotsubo syndrome are in part identified to include depression, PTSD and retirement.
[32] Reply at page 436.
While the respondent in submissions was critical of Professor Wilcox for failing to provide reasoning for his support of a causal link between Ms Lutz’s employment with the respondent and her death in February 2016, he is described by Professor O’Rourke as a highly competent and highly respected cardiologist and in my view is allowed to use his general experience and knowledge as an expert even though it is not stated in his report. Spiegelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investment Commission v Rich[33] at [170]:
“[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”.
[33] [2005] NSWCA 152.
Professor Wilcox provided initial diagnosis of takotsubo syndrome (which, it is accepted by both Professor O’Rourke and Professor Duflou, resulted in the death of Ms Lutz), and in providing his diagnosis, Professor Wilcox was acutely aware of the “extraordinary stress” Ms Lutz had suffered, with particular reference to the incident occurring in November 2009 and sequelae, which included the criminal trial scheduled for April 2016. Professor Wilcox provided opinion “no-one would have been in any doubt” this “extraordinary stress” compounded with expressed distress of the end of her paramedical career with the respondent was causally related to her takotsubo syndrome. He said “I think it is likely that it was indeed a contributing factor to triggering this very severe and rapidly fatal condition”.
While in submissions the respondent downplayed the expertise Professor Duflou as a clinical pathologist brought to the matter compared with that brought by Professor O’Rourke as a cardiologist, following review of the evidence as a whole, consideration of counsels’ submissions and review of the articles to which I was referred, I accept opinion provided by Professor Duflou that takotsubo syndrome need not occur as an acute stressful event immediately preceding an onset of symptoms as propounded by Professor O’Rourke. I prefer the opinion of Professor Duflou to that of Professor O’Rourke in that the Consensus Paper (which I have had the opportunity to review having not been provided with the opportunity to review Starkey to which Professor Duflou referred) provided a number of examples of psychological triggers of takotsubo syndrome that are not in the nature of “acute and proximate” occurrence but rather are in the nature of a “persistent” or “chronic” occurrence. In my view Professor O’Rourke fell somewhat short of providing opinion Ms Lutz’s physical exercise was a trigger for her takotsubo syndrome and while he said in his experience takotsubo syndrome was not associated with chronic or recurrent stress, this does not appear to be a view shared by the authors of the Consensus Paper or his esteemed colleague Professor Wilcox. While in submissions the respondent suggested that a trigger for her takotsubo syndrome was the unwelcome initial view provided to Ms Lutz at RPAH that she might require a pacemaker, there is no medical opinion to specifically support this submission and I reject it.
As did Professor Duflou, I accept Professor Wilcox’s opinion Ms Lutz likely developed takotsubo syndrome as a result of the psychological injury she had sustained during the course of her employment with the respondent, with particular reference to the incident occurring in November 2009 and sequelae, including her consequential medical retirement effective 11 December 2015. I prefer the opinion of Professor Wilcox to that of Professor O’Rourke in that Professor Wilcox was Ms Lutz’s treating cardiologist following her admission to RPAH and as such he had the opportunity to speak with her on more than one occasion about the triggering of the takotsubo syndrome that resulted in her death, whereas Professor O’Rourke was of course not afforded such opportunity.
For the reasons discussed above, I accept there was an unbroken chain of events from the psychological injury sustained by Ms Lutz during the course of her employment with the respondent to the takotsubo syndrome which caused her death on 13 February 2016, which allows me to be satisfied, on the balance of probability, that the death of Ms Lutz on 13 February 2016 resulted from the psychological injury she sustained during the course of her employment with the respondent, for which liability is admitted.
Dependency
The death certificate issued in respect of Ms Lutz by the Registrar of Births, Deaths and Marriages in the State of NSW stated she was married to Mr Lutz and that she had no children. In his supplementary statement, Mr Lutz said he considered himself partially financially dependent on Ms Lutz as at the date of her death on 13 February 2016 as their income and expenses had been shared during their married life together, and that would have remained the position into the future had she not died.
There was no evidence before the Commission to suggest that any person other than Mr Lutz was dependent on Ms Lutz as at the date of her death and Mr Lutz’s dependency on Ms Lutz as the date of her death on 13 February 2016 is not disputed by the respondent.
I am satisfied there was no one dependent on Ms Lutz at the date of her death, other than Mr Lutz.
Funeral and associated expenses
Mr Lutz has met the costs associated with the funeral of Ms Lutz. The tax invoice dated 18 February 2016 of Hills Family Funerals is in the sum of $9,568.35[34]. As I am satisfied, on the balance of probability, that the death of Ms Lutz on 13 February 2016 resulted from the psychological injury she sustained during the course of her employment with the respondent, for which liability is admitted, it follows Mr Lutz has an entitlement to compensation payable under s 26 of the 1987 Act for the costs associated with the funeral of Ms Lutz.
Interest
[34] ARDW at page 86.
Mr Lutz has been successful in his claim for compensation payable on death.
Section 109 of the 1998 Act relevantly provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any party of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be order under this section:
(a)…
(b)on any claim for compensation payable under this Act for any period before a claim for compensation was duly made, or
(c)…
(3) …”
In Kaur v Thales Underwater Systems Pty Ltd[35] Keating P said at [39]:
“Section 109(2) (b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thale’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act”.
[35] [2011] NSWWCCPD 6 (Kaur).
In his decision in Shanika Cooper v G & W Mudge Concreting Pty Ltd & Ors[36] Arbitrator Wynyard referred to the decision of Kaur to form the view the phrase “duly made” refers to a date when an applicant’s claim is fully particularised. I agree with this approach.
[36] WCC6411/18.
While in submissions the respondent said that in the event Mr Lutz’s claim for compensation payable on death was successful, any entitlement he had to interest on the lump sum death benefit would be payable from the date his claim for interest was duly made. I reject submission as s 109 of the 1998 Act speaks of a claim for “compensation” being duly made, with s 4 of the 1998 Act providing definition in the following terms:
“compensation means compensation under the Workers Compensation Acts, and includes monetary benefits under those Acts”.
Interest is not compensation under the Workers Compensation Acts.
Although the initial claim for lump sum death benefit payable under s 25(1) of the 1987 Act and funeral expenses payable under s 26 of the 1987 Act was made under cover of letters dated 22 June 2016[37], there was minimal medical evidence to support Mr Lutz’s claim at that point in time and I am of the view Mr Lutz’s claim was not fully particularised until 26 May 2020 when the reports of Professor Duflou were served on the respondent’s solicitors by email under cover of letter from Mr Lutz’s solicitors dated 25 May 2020[38]. I am of the view that until Professor Duflou’s reports were provided to the respondent, Mr Lutz’s claim could not be regarded as fully particularised.
[37] ARDW at pages 87 and 88.
[38] Reply at page 349.
In such circumstances, I consider it appropriate to award interest to be paid on the lump sum death benefit payable under s 25(1)(a) of the 1987 Act from 26 May 2020 at the claimed rate of 4.25 percent.
Costs
As I am satisfied, on the balance of probability, that the death of Ms Lutz on 13 February 2016 resulted from the psychological injury she sustained during the course of her employment with the respondent, for which liability is admitted, it follows Mr Lutz has an entitlement to costs.
While counsel made no submissions relevant to costs at the arbitration hearing on 11 March 2021, I subsequently received correspondence dated 15 March 2021 from Mr Lutz’s solicitors that was sent with the concurrence of the respondent. Submission was made on behalf of Mr Lutz that in the event an award was made in his favour, there would be an uplift for complexity of 30 percent. The respondent did not wish to be heard with respect to this application, save to submit that if there was to be an uplift for complexity such uplift should be allowed in respect of the costs of both Mr Lutz and the respondent.
I agree with submission made on behalf of Mr Lutz that this matter involved significant complexity. I am satisfied in the circumstances where there was a contested hearing with injury resulting in death in issue, an uplift for complexity is appropriate. I recommend an uplift of 30 percent relevant to the parties’ costs.
SUMMARY
Liability is admitted for the psychological injury Ms Lutz sustained in the course of her employment with the respondent.
Ms Lutz died on 13 February 2016. The cause of Ms Lutz’s death was takotsubo syndrome, which resulted from the psychological injury she sustained in the course of her employment with the respondent for which liability is admitted.
Mr Lutz was partially dependent on Ms Lutz at the date of her death. There were no other persons dependent on Ms Lutz at the date of her death.
The respondent is to pay to Mr Lutz, the sum of $750,000 being the lump sum death benefit under s 25(1)(a) of the 1987 Act.
The respondent is to pay to Mr Lutz, the sum of $9,568.35 being funeral expenses payable under s 26 of the 1987 Act.
The respondent is to pay to Mr Lutz, interest on the lump sum benefit under s 109 of the 1998 Act from 26 May 2020 at the rate of 4.25 percent.
The respondent is to pay Mr Lutz’s costs as agreed or assessed. The matter is certified as complex and a 30 percent uplift on costs for both parties is recommended.
Jacqueline Snell
MEMBER
7 April 2021
0
2
0