McGrane v Kmart Australia Ltd
[2024] NSWPIC 610
•30 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McGrane v Kmart Australia Ltd [2024] NSWPIC 610 |
| APPLICANT: | Naomi McGrane |
| RESPONDENT: | Kmart Australia Limited |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 30 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Consideration of whether the provisions of section 9B of the Workers Compensation Act 1987 are engaged in relation to the claim for hypertension so that the applicant is precluded from receiving compensation; Held – section 9B is not engaged; alternate finding of the nature of employment giving rise to a significantly greater risk of injury that had the worker not been in that employment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has suffered a consequential condition to a cardiovascular system which is compensable. 2. The parties have agreed that the consequential condition represents a 10% whole person impairment (with a date of injury of 17 August 2010). 3. The claims in respect of the cervical spine, left upper extremity (shoulder) and ears, nose, throat and related structures (teeth), are all remitted to the President to be referred to a Medical Assessor for whole person impairment assessment with a date of injury of 4. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute, and (b) Reply to the Application to Resolve a Dispute and attached documents. 5. The matter should be listed for further telephone conference after the issuing of a Medical Assessment Certificate to ventilate issues regarding weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
The applicant began her employment with the respondent in 2009 initially on a part-time basis.
The applicant has provided a statement dated 3 September 2024.[1] The applicant found the work strenuous at times and began to experience pain in the left side of her neck and left shoulder in early 2010. These allegations of injury are not in issue, nor is the nature of her work.
[1][1] Application page 5.
The applicant began taking the anti-inflammatory medication Celebrex. The applicant says in her statement that she understood that this medication increased her blood pressure to an unsafe level and as such she ceased taking it.
At the same time, the applicant was experiencing anxiety and depression, and she felt a lack of support from her managers.
The applicant lodged a workers compensation claim form in October 2010 and shortly thereafter the respondent accepted liability in respect of the neck and left shoulder.
The applicant sought treatment in respect of the pain she experienced in her neck and left shoulder which included referral to Dr Jovanovic (orthopaedic surgeon) and Dr Ellis and
Dr Russo for pain management.The applicant continued to receive active treatment in respect of her physical injuries, such treatment has been extensive. This includes, but is not limited to, a neurotomy and interscalene blocks, trigger point injections, a radiofrequency denervation surgery, a nerve block procedure, a left shoulder arthrogram, a CT-guided subacromial steroid injection, a left shoulder arthroscopy surgery, intravenous lidocaine infusions, a pulsed radiofrequency greater occipital nerve surgery, radiofrequency surgeries, cervical surgery, a left diagnostic block and injection. The applicant also says that she has taken a great deal of prescribed medication over the years to help her alleviate her pain. Understandably, the pain has caused stress to the applicant.
The applicant claims medication has damaged her teeth and she now requires extensive dental repair which includes implants to eight of the front teeth if they cannot be saved and if not possible, dentures. This injury is not in dispute, nor is the injury to the left shoulder and cervical spine.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the provisions of s 9B of the Workers Compensation Act 1987 (the 1987 Act) are engaged in relation to the claim for hypertension so that the applicant is precluded from receiving compensation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
There was no issue that the applicant has suffered injuries to her cervical spine, left upper extremity (shoulder) and ear, nose and throat system.
The parties agree that the cardiovascular system is in issue, that is whether s 9B of the 1987 Act is engaged to preclude compensation. If there was a finding in favour of the applicant in respect of that body system, there was agreement that there would be a 10% whole person impairment arising from that injury.
If the applicant is unsuccessful in relation to the claim to the cardiovascular system, the other body parts need to be referred to a Medical Assessor for assessment.
Following a determination on the hypertension claim and the issuing of a Medical Assessment Certificate, it was agreed that the matter should then be listed for further telephone conference in relation to the weekly benefits.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (Application), and
(b) Reply to the Application to Resolve a Dispute.
LEGISLATION
This dispute focuses upon the application of s 9B of the 1987 Act, which provides:
“No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2) In this section--
‘heart attack injury’ means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with--(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.”
MEDICAL EVIDENCE
This is rather a narrow dispute, that is whether the applicant can be compensated in respect of the cardiovascular system, I will focus on the medical material that has been served and relied upon by the parties in their submissions in this matter.
Dr Mark Herman
Dr Herman, cardiologist, has prepared a report dated 5 July 2023.[2] Dr Herman describes the applicant as someone who sustained an injury at work which has resulted in the need for a C1/C3 surgery and a chronic pain syndrome. He observed that prior to her injury the applicant was a fit and active lady who attended the gym several occasions per week and could perform for 90 minutes without symptoms. That is, she was completely asymptomatic before her workplace injury.
[2] Application page 110.
Dr Herman took a history of significant weight gain following the injury from some 50kg in September 2011 to 71kg in September 2018. The applicant had become far less mobile with no regular exercise, she utilised anti-inflammatories for pain control and developed a chronic pain syndrome and anxiety.
Dr Herman took a history of the applicant being hypertensive on several occasions relating to severe anxiety and pain with a general practitioner taking readings of her blood pressure on 6 December 2010 of 180/106. Then in 2018, with blood pressure recordings of 168/108 the applicant commenced on anti- hypertensive therapy and remained on Valsartan for blood pressure control.
The applicant explained to Dr Herman that her symptoms included palpitations, chest pain, dyspnoea, angor animi and episodes of paraesthesia involving the lips and tongue, fingers and toes which Dr Herman thought were highly suspicious of hyperventilation syndrome. The applicant also had episodes of tachycardia which he believed were anxiety related. The applicant had cardiac risk factors which included smoking of some 20 cigarettes per day with a 20-year history, hypertension and hyperlipidaemia.
Dr Herman opined that the applicant having suffered from a mild coronary artery disease at CT coronary angiography and a constellation of symptoms suspicious of hyperventilation syndrome. On this background, Dr Herman explained, that the applicant had hypertension which had worsened since her work-related injury in 2010 in association with weight gain, immobility, chronic pain, anti-inflammatory consumption and anxiety.
Dr Herman opined, on the balance of probabilities, that the applicant’s hypertension was significantly exacerbated by her work-related injury. The mechanisms included weight gain, chronic pain, anxiety, decreased mobility and anti-inflammatory drugs used for pain control. It was the doctor’s opinion that the applicant’s chest pain, dyspnoea, palpitation and presyncope were due to hyperventilation syndrome, which required psychological rather than cardiac input. He also recommended suspension of smoking to reduce aggressive risk factors as she had mild coronary artery disease.
Dr Herman has prepared a second report dated 28 February 2024.[3] Dr Herman prepared that report after seeing the applicant in his rooms where she had high hypertensive readings which included significant readings such as 226/128 settling down to 195/103.
[3] Application page 114.
Dr Herman’s opinion remained the same and he opined the applicant had a guarded cardiac prognosis unless she could control her blood pressure more adequately. Dr Herman then assessed the applicant’s whole person impairment which he assessed at 15% whole person impairment.
Dr Herman has prepared a further report dated 10 July 2024[4] when he was provided with the opinion of A/Prof England dated 24 May 2024, together with the applicant’s statement and the clinical notes from Dr Ellis.
[4] Application page 119.
Dr Herman said that he did not disagree with A/Prof England’s assessment and confirmed that he thought that the hypertension was provoked by the work-related injury and subsequent weight gain, immobility and chronic pain and anxiety.
Dr Herman’s attention was directed to s 9B of the 1987 Act, and he explained it was his opinion that hypertension cannot be classified as a heart attack injury within s 9B as the applicant did not have persistent tachycardia on his two clinical examinations, A/Prof England’s examination and halter monitoring performed by her own cardiologist.
If, however, the applicant did have tachycardia, Dr Herman explained, this was probably sinus tachycardia, an appropriate rapid heart rate in response to external stressors such as anxiety or pain. This is not pathological and does not fulfil the criteria of a “heart attack injury”.
Associate Professor John England
A/Prof England has prepared a report dated 24 May 2024.[5] A/Prof England obtained a history similar to that which was obtained by Dr Herman of a fit and healthy person with no history of heart problems prior to her workplace injuries. He confirmed that the applicant’s blood pressure was raised during times of acute stress and pain.
[5] Reply page 79.
A/Prof England diagnosed the applicant as having a cardiovascular condition primarily hypertension with limited end organ damage. He observed that Holter monitoring did not reveal any ‘significant’ arrythmia apart from stress tachycardia.
Turning to the provisions of s 9B of the 1987 Act, A/Prof England stated that the applicant did have symptoms of rapid heart rate or arrythmia under the term “tachycardia”.
A/Prof England opined that blood pressure in the last few years has been aggravated by the pain syndrome and all the emotional stress of neck and shoulder surgery with all the doctor visits and hospital visits for treatment along the way. He noted that hypertension is essential hypertension which is present in about 95% of the population in Australia. He did however acknowledge that the blood pressure could be aggravated by the treatment of the original accepted physical injury.
A/Prof England then assessed the applicant as having 10% whole person impairment the reduction he attributed to the treatment from Dr Herman which has had excellent results.
GENERAL THRUST OF THE DIPSUTE
In this case the applicant seeks compensation for a hypertension condition. The parties agree that the applicant does have such a condition which if compensable, would be assessed as being 10% whole person impairment. Section 9B of the 1987 Act refers to compensation for two types of injuries, that is, heart attack or stroke injury.
The applicant does not agree that s9B is engaged in this dispute. Firstly, it was submitted that hypertension is a completely separate issue to a heart attack injury (or stroke injury) and hypertension is the condition for which the applicant seeks compensation, that is the s 9B is not engaged as this was not a claim for a stroke or heart attack injury.
Secondly it was submitted, if s9B is wide enough to encompass hypertension that the employment concerned gave rise to a significantly greater risk of injury than had the worker not been employed in employment of that nature.
The respondent seeks to agitate the comorbid conditions of arrhythmia and tachycardia in s 9B(2)(g) which they say is a complete defence to this part of the applicant’s claim. They rely upon A/P Herman states that the applicant does not have significant arrythmia (though presumably does have some) apart from stress related tachycardia.[6]
[6] Reply page 84.
DISCUSSION
A good starting point is to observe that the history taken by Dr Herman has not been put in issue by the respondent. That is, that there has been increased weight, there has been times of stress, increased pain, immobility and consumption of significant medication all flowing from the applicants accepted physical injuries.
It seems to me that there is a general consensus in the medical opinion that the hypertension is related to anxiety, immobility, pain and medication, all factors that arise from the original injury.
The applicant submitted that if it is asserted by the respondent that the applicant has had a heart attack injury which is hypertension, it must show that hypertension consists of, is caused by, results in or is associated with tachycardia or arrhythmia.
In reply, the respondent’s case was that if the applicant’s condition of hypertension occurred in circumstances where there was any type of tachycardia or any arrythmia, no matter how small, they were caught within the provisions of s 9B and precluded from seeking compensation.
The respondent points out that Dr Hermann in his report[7] refers to there being no high-grade arrythmia. A/Prof English in his report,[8] certainly feels that there is a racing of the heart, some arrythmia and tachycardia. He then goes on to say that the halter monitoring did not illustrate any arrythmia but probably stress-related tachycardia.
[7] Application page 110.
[8] Reply page 82.
The respondent says that this means that there was probably some arrythmia and if there is a skerrick of arrythmia, the applicant’s case falls within the provisions of s 9B(1)(2)(f). The difficulty with this submission is that there is the requirement of being “caused by, results in or is associated with” the heart attack injury.
It appears to me, on the evidence that that the tachycardia or arrhythmia seems to be a completely separate issue to that of hypertension. There was no medical evidence before me which supports a finding of a heart attack injury, if that be hypertension, that consists of, is caused by or results in or is associated with tachycardia or arrhythmia.
The medical evidence on a whole, does not support hypertension causing or resulting in tachycardia or arrhythmia, they are two separate conditions. The easier test “of associated with’ denotes a connection, or a ‘working together type relationship’. The medical evidence does not disclose a relationship or association in this dispute between hypertension and any tachycardia or arrhythmia. The evidence before me appears to show that those are two separate conditions as identified by Dr Herman in his clearly reasoned reports.
I therefore find that s 9 B is not engaged and the hypertension is compensable. Appreciating the breadth of the section, and the limited established authority in relation the dispute, I will move to the second limb of argument (as minds elsewhere may differ).
The second basis on which the applicant sought to advance its case was to show that if its first limb of argument is unsuccessful, then the nature of employment resulted in significantly greater risk of injury that had the worker not been employed in employment of that nature.
The applicant pointed out that the claim for hypertension is a secondary condition and as such is not subject to the strict provisions of s 4 of the 1987 Act. The threshold in respect of consequential conditions as we all know is substantially lower than that of a s 4 injury.[9] All the applicant needs to show is that the consequential condition resulted from a s 4 injury as defined.
[9] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWCCPD 8.
It was submitted by the applicant that what s 9B(1) asks the decision-maker to consider is whether the employment concerned gave rise to a significantly greater risk of the worker suffering the ‘injury’ as opposed to the consequential condition, (in this case the consequential condition is hypertension).
The submission on my reading of the section could be correct on the basis that s 9B(1) separates an injury, which is this case would be the applicant’s other claimed injuries and a second category which is the heart attack or stroke injury. The section quite clearly identifies the test in relation to whether the worker suffered the injury occurred in circumstances where the employment gave rise to a significantly greater risk of the worker suffering the injury. That is the injury must be what is defined by s 4 of the 1987 Act.
The applicant referred UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (iCare).[10] In that case Mr Markey suffered a blow to the side of his head in November 2020 and a stroke on 3 December 2020. It was not an issue that he had a subsequent injury to his artery which resulted in that stroke when he was hit with a long piece of plastic.
[10] [2022] NSWPIC 146 (6 April 2022).
In UPVC Window Solutions Pty Ltd, Deputy President Snell helpfully provided guidance in relation to the meaning of “significantly greater risk” in the decisions of Renew Gods Program v Kim[11] and Secretary, Department of Communities and Justice v Galea. [12] He summarised the effect of those authorities in the following manner:[13]
“(a) the worker carries the onus of establishing that the test in s 9B is satisfied;
(b) where the words ‘an injury’ first appear in s9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to satisfaction of the test in s 9B;
(c) where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to ‘what the worker in fact does in the employment that caused or contributed to the injury’;
(d) s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation.The test involves an evaluative judgment, and
(e) the test requires satisfaction on all of the evidence. It does not necessarily ‘require that there be medical evidence to some particular effect’. In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section.”
[11] Renew Gods Program v Kim [2015] NSWCCPD71.
[12] Secretary, Department of Communities and Justice v Galea [2021] NSWCCPD 1.
[13] At para 182.
The respondent says that if the applicant wished to submit and establish that the employment concerned gave rise to a significantly greater risk of the injury, then there must be medical evidence in relation to this. It was submitted by the respondent that the only medical evidence on this issue is that of A/Prof English. A/Prof English addresses this point at paragraph 7[14] where he states that the nature of the employment did not give rise to a significantly greater risk of the worker suffering the injury. The respondent says that the applicant has not addressed this second limb at all and as such must fail. The only evidence is that provided by A/Prof England.
[14] Reply page 85.
The respondent submitted that what A/Prof England’s opinion really is, is that the applicant has had physical injuries which have caused her pain and stress which has then caused in turn her hypertension which has resulted in arrythmia and/or tachycardia. This would then fall squarely within s 9B.
In this case I find that there has been an increased risk of injury of the type the applicant has received to her neck and left shoulder arising from the nature and conditions of her employment which required heavy lifting and repetitive movement. This is not in disputed.
I find that the consequential condition of hypertension is a not unexpected outcome of that type of injury given that the applicant was required to take significant medication, experienced anxiety and pain and reduced mobility which the medical evidence on a whole supports has caused hypertension.
I make this finding on the basis of medical evidence and common sense. I do not share the respondent’s view that medical opinion is required on this very obvious issue. The applicant has sustained injuries to the cervical spine and shoulder, which have been accepted by the respondent. There is no issue in respect of this, and on that basis alone, I doubt that medical evidence is required to prove this point. Nevertheless, the applicant has provided evidence in her statement that outlines the nature of her duties as being heavy and repetitive that on a commonsense basis lead to a finding of a significantly greater risk of injury. Given the unchallenged evidence as to the effects of treatment and pain on the applicant, the applicant was at more significant risk hypertension than she would have been but for her employment.
I therefore find in favour of the applicant in both limbs of their argument.
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