Miller v State of New South Wales
[2017] NSWWCCPD 38
•1 September 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| Status: Appeal to the Court of Appeal dismissed - Miller v State of New South Wales [2018] NSWCA 152 | ||
| CITATION: | Miller v State of New South Wales [2017] NSWWCCPD 38 | |
| APPELLANT: | David Miller | |
| RESPONDENT: | State of New South Wales | |
| INSURER: | QBE Insurance (Australia) Ltd | |
| FILE NUMBER: | A1-5831/16 | |
| ARBITRATOR: | Mr B Batchelor | |
| DATE OF ARBITRATOR’S DECISION: | 21 March 2017 | |
| DATE OF APPEAL DECISION: | 1 September 2017 | |
| SUBJECT MATTER OF DECISION: | Section 9A of the Workers Compensation Act 1987; substantial contributing factor; mere temporality is not sufficient to satisfy the requirements for s 9A | |
| PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Stacks Law Firm |
| Respondent: | Moray & Agnew | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 21 March 2017 is confirmed. | |
INTRODUCTION
On 21 March 2017 an Arbitrator of the Workers Compensation Commission issued a Certificate of Determination pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) making an award for the respondent.
By an Amended Application received by the Commission on 9 May 2017, David Miller appeals against the decision of the Arbitrator.
There are 11 grounds of appeal, not all of which are pursued in the appellant’s written submissions. Paragraph 6 of the written submissions asserts 17 errors of law. The written submissions rely on paragraphs 6(l)(m)(n).
Doing the best I can, it seems to me that the grounds of appeal can be best addressed in the following manner:
(a) Grounds 1 to 5 inclusive relate to paragraph [114] of the Arbitrator’s reasons and seem to involve paragraphs [8] to [45] of the appellant’s submissions.
(b) Ground 6 complains that the Arbitrator failed to apply common sense to the test for substantial contributing factor. This is at paragraphs [46] to [49] of the appellant’s submissions.
(c) Grounds 7 and 8 challenge the findings of the Arbitrator at paragraph [112] and the application of s 4 of the Workers Compensation Act 1987 (the 1987 Act). This is at paragraphs [60] to [64] of the appellant’s submissions.
(d) Ground 9 asserts that the Arbitrator failed to consider and make findings as to whether the factors were real and of substance in the sense discussed in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi). This ground is considered in the appellant’s submissions at paragraphs [65] to [72].
(e) Ground 10 asserts that the Arbitrator failed to provide adequate “resources” but I assume that this is complaint as to the adequacy of the “reasons”. This is at paragraphs [73] to [75] of the appellant’s submissions.
(f) Ground 11 asserts that the Arbitrator failed to make findings with respect to the injury expressed by Drs Bryant, Jennings and Heyns. Reliance is made on the appellant’s submissions at [6(l), (m), (n)].
For the reasons that follow the appeal is dismissed. The Arbitrator’s decision in the Certificate of Determination dated 21 March 2017 is confirmed.
NATURE OF THE APPEAL
The appeal is pursuant to s 352 of the 1998 Act. The jurisdiction pursuant to s 352(5) is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”
THRESHOLD MATTERS
Monetary threshold
The respondent concedes that the appeal has been brought within time and that there is no issue with respect to quantum. Plainly, there is no issue as to the percentage of the amount awarded in the decision.
Hearing on the papers
The appellant has requested an oral hearing. The respondent opposes that hearing.
In his submissions on this point, the appellant identifies three matters of substance in support of the request for an oral hearing:
(a) The Arbitrator failed to adequately explain the reasons for his decisions. The reasons are not clearly expressed in terms of the analysis.
(b) The Arbitrator’s reasons do not show that attention has been given to the evidence critical to the issues in the case and that the basis of the critical findings be apparent.
(c) The Arbitrator’s reasons were not adequate to explain the essential reasons for his conclusions. The Arbitrator failed to explain the factual foundation for his findings.
The appellant also wishes to cross-examine Mr Holman. I consider this issue later.
I am not persuaded that an oral hearing is necessary or of advantage in determining the appeal. The present information and materials are extensive and comprehensive. I am satisfied they are sufficient to enable me to determine the appeal without a conference or formal hearing. Sub-section 354(6) of the 1998 Act provides that the Commission may exercise its functions under the Act without holding any conference or formal hearing. I propose to determine the matter ‘on the papers’.
APPLICATION TO EXTEND TIME TO SERVE FRESH EVIDENCE
On an appeal to a Presidential member, the Commission has the following jurisdiction pursuant to s 352(6) of the 1998 Act to receive evidence in addition to that before the Arbitrator:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
A grant of leave under s 352(6) is conditioned (CHEP Australia Limited v Strickland [2013] NSWCA 351, per Barrett JA at [27]) on the appellant satisfying the Commission as to one of two alternative “gateways” either:
(a) The evidence concerned was not available to the party and could not reasonably have been obtained by that party before the proceedings concerned.
(b) The alternative basis is that the failure to grant leave would cause substantial injustice in the case.
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [66], Sackville AJA (Basten and Ward JJA agreeing) said:
“Section 352(6) permits the Commission to grant leave to adduce fresh or additional evidence if satisfied of the conditions specified in the sub-section. Having regard to the limited nature of the appeal under s 352(5), the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous: CDJ v VAJ (1998) HCA 67; 197 CLR 172 at [109], per McHugh, Gummow and Callinan JJ.”
In CDJ v VAJ [1998] HCA 67; 197 CLR 172 at 202 [112], McHugh, Gummow and Callinan JJ said, amongst other things:
“The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
The appellant made initial submissions in support of an extension of time to serve further evidence. By letter dated 31 July 2017, the respondent opposed the Commission receiving further evidence.
By an email sent at my request on 1 August 2017, the parties were was asked to provide amongst other things a copy of the fresh or additional evidence; the reasons why it was not given in the proceedings before the Arbitrator; and submissions on why the fresh or additional evidence should be admitted or rejected as the case may be.
In response to the email direction the appellant furnished copies of the following:
(a) report of Dr Jennings dated 4 August 2017;
(b) report of Dr Fulde dated 12 June 2016 (I assume this is a typographical error and the correct date is “12 June 2017”);
(c) report of Dr Fulde dated 1 August 2017;
(d) affidavit of Scarlett Abernethy dated 9 August 2017, and
(e) statement of Heather Finlayson dated 4 August 2017.
In addition the appellant’s counsel provided written submissions dated 9 August 2017.
The appellant’s submission at paragraph [24] is “that the evidence sought to be relied upon is evidence which was not available to the Appellant at the time of the Arbitration Hearing; or alternatively, is additional evidence”.
At paragraph [25] the appellant submits that in the event the evidence is determined to have been available to the appellant before the proceedings concerned were before the Arbitrator “then it is submitted that the failure to grant leave to admit the evidence ‘would cause’ substantial injustice in the case.”
The hearing before the Arbitrator occurred on 23 February 2017. The Certificate of Determination is dated 21 March 2017. Plainly the material was not available when the matter was before the Arbitrator.
The appellant has filed an affidavit of Scarlett Abernethy affirmed but undated. The affidavit details efforts to obtain evidence from Ms Finlayson, Mr Holman, nurse Tintu and nurse Bisimol. It says nothing about the reports of Dr Jennings and Professor Fulde.
There is no material before me as to why the appellant was unable to obtain the further report of Dr Jennings and the two additional reports of Professor Fulde before the hearing before the Arbitrator on 23 February 2017. The appellant has not satisfied me that the additional reports could not reasonably have been obtained before the proceedings before the Arbitrator.
I deal with the alternative submission that a failure to grant leave would cause “substantial injustice in the case” below.
Dr Jennings’ evidence may be summarised as follows:
(a) The deceased would have had a considerably greater chance of survival if the time from onset of her respiratory symptoms to her receiving appropriate medical care was reduced.
(b) It is likely that if she had received appropriate treatment of her acute asthma attack in a timely manner that she may never have deteriorated to cardiac arrest at all, and therefore survived (paragraph [6]); (For the purpose of my consideration of this issue it may be assumed that Dr Jennings, as a highly qualified paramedic, has the appropriate expertise to give this opinion).
(c) If the focus is on the cardiac arrest (and not the preceding severe asthma attack) it is difficult to say what the outcome may or may not have been if the delay in Ambulance Service of NSW’s response (time) was reduced.
(d) Mr Holman, being a qualified and experienced paramedic holding the grade P1at the time would have been able to administer effective CPR, but being off duty at the time, would not be able to administer adrenaline or defibrillation which would most likely have been required in this situation (paragraph [10]).
(e) The chance of survival diminishes with each minute of delay in the administration of defibrillation (if indicated) and advanced cardiac life support (including adrenaline).
(f) The deceased’s chances of survival would be improved if: (i) the ambulance was stationed at Nyngan; (ii) the ambulance crew were able to respond immediately the triple 0 call came into the Western Control Centre, and (iii) the crew contained at least one Paramedic credentialed to deliver defibrillation (if indicated) and intravenous adrenaline (paragraph [16]).
Oversimplifying Dr Jennings’ supplementary report of 4 August 2017 amounts to the proposition that had the deceased received appropriate medical care at an earlier point of time her prospects of survival were enhanced.
The Arbitrator had a report from Dr Jennings dated 8 November 2015 and expressly referred to that report at paragraphs [39] to [43] of the reasons. The Arbitrator summarised the results of Dr Jennings’ views at paragraph [43] in the following terms:
“the deceased’s chances of survival would have been significantly improved by shortening the duration between her cardiac arrest (the time the heart stopped pumping) and the time an appropriately equipped and skilled team arrived at her side.”
I do not see how the more recent material from Dr Jennings impacts on the question of whether the deceased suffered an aggravation, acceleration, exacerbation or deterioration of her disease contributed to by employment within s 4(b)(ii) or upon the question of whether the “employment” was “a substantial contributing factor to the injury” within s 9A(1).
In my view, no substantial injustice results from my declining to grant leave to the appellant to rely Dr Jennings’ additional report dated 4 August 2017. I refuse leave to rely on Dr Jennings’ report dated 4 August 2017.
Dr Fulde’s first report bears a date 12 June 2016 (I assume this is a typographical error and the correct date is 12 June 2017). I summarise the report in the following propositions:
(a) For a 50 year old asthmatic to for the first time have a severe attack causing rapid loss of consciousness by itself without any obvious trigger is most unusual (page 14).
(b) In Dr Fulde’s opinion, it was very probable that the patient had besides an asthma attack, a cardiac event, which would account for the very unusual rapid loss of consciousness and cardiac respiratory arrest (page 15).
(c) To the express question “Were the conditions of the deceased’s employment a substantial contributing factor to the deceased suffering an asthma attack and subsequent anoxia causing death?” Dr Fulde answers “See above. No.” (page 16).
(d) To the question “Was the location of the deceased’s employment at the time that she suffered the asthma attack a substantial contributing factor to the deceased suffering an asthma attack and subsequent anoxia causing death?” Dr Fulde answers “See above. The exact timeframes are not clear to me but it would seem that expert CPR was very quickly available (minutes) which, as a rule, if survivable pathology such would have occurred.” (As written page 17).
(e) To the question “If so, why was the location of the deceased’s employment a substantial contributing factor to the deceased suffering an asthma attack and subsequent anoxia causing death?” Dr Fulde answers “See above. I can find no evidence of this.” (As written page 17)
Dr Fulde was asked whether or not on the assumption “[t]hat the deceased started experiencing breathing difficulties as the bus left Nevertire, which is about a 40 minute drive from where the deceased pulled the bus over to the side of the road about 10 [kilometres] from Nyngan at about 4.30 p.m. and, had the deceased been located in her usual place of employment, she would have had time to seek medical attention well before the attack became acute.” Dr Fulde answered “See above. I do not have any indication of the time of the start of or progress of the patient’s asthma attack.”
Later the doctor was asked “Was the delayed response of Ambulance NSW of or about 28 minutes a more substantial contributing factor to the deceased suffering an asthma attack and subsequent anoxia causing death?” The doctor answered “See above. The patient very rapidly suffered a cardiorespiratory arrest, expeditious, expert CPR was given. In the first instance I cannot find any obvious association which would have clearly changed the outcome.”
In his second report dated 1 August 2017, Dr Fulde was asked:
“Against the background, we seek your opinion in relation to the question of whether on the balance of probabilities, had Mrs Miller been in Brewarrina during her asthma attack between 4:00 pm and 4:30 pm on 15 of April 2011, with the availability of one or more of those sources of treatment, would her asthma attack have been able to be treated effectively and would she have survived?”
In answer to that question Dr Fulde says in summary:
“As stated the asthma attack commenced some 30 – 40 minutes before the acute deterioration. I am of the opinion that had the patient been in her office in town she would have had access to several health carers in easy proximity.
…
I am of the opinion, if the patient had been in town at her place of work, as her asthma attack progressed, progressively help would have been sought and would have responded and attended to the patient.
This includes attendance at the local hospital.
With this I am also of the opinion that on the balance of probabilities she would not have deteriorated suffering a cardiorespiratory arrest, thus surviving her asthma attack.”
At its highest Dr Fulde’s opinion is that the location at which the deceased had the acute asthma attack was relevant to her accessing treatment, but it was not relevant to the onset of the asthma attack.
The two reports of Professor Fulde do not establish that the deceased’s employment was a substantial contributing factor to the injury, recognising that the injury was the severe asthma attack.
I do not accept that there is a substantial injustice in this case in declining to grant leave to the appellant to rely on the reports of Dr Jennings dated 4 August 2017 and Professor Fulde dated 12 June 2016 (sic) and 1 August 2017. I refuse leave under s 352(6).
The appellant’s written submissions commenced with references to a number of appellate cases, providing authority on the nature of the appellate jurisdiction exercised under s 352(5). But as I read those cases, they concerned appeals under s 352 when s 352(5) provided the appeal was “by way of review of the decision appealed against”. The cases to which the appellant refers in his written submissions (paragraphs [6] to [15]) were pre-eminently concerned with whether s 352(5) as it then was required the Presidential member to identify error before receiving fresh or additional evidence and deciding on the enlarged material what was the true and correct view.
Section 352(5) in its present form applicable to this matter, expressly requires that the Presidential member must find error of fact, law or discretion before the jurisdiction to intervene in the arbitral award is engaged. For this reason, the nature of the present appeal is fundamentally different from that considered in those cases.
In my view, the appellant does not demonstrate error on the part of the Arbitrator in fact, law or discretion. I do not think that the additional material in the reports of Drs Jennings and Fulde referred to above demonstrate that if the material had been received by the Arbitrator a different conclusion would have been achieved.
Furthermore, in my view of the reports, it cannot be said that the reports could not reasonably have been obtained by the appellant before the proceedings came on before the Arbitrator.
The essence of the appellant’s claim is that the geographic location at which the asthma attack occurred was remote from medical assistance. That still does not answer the question of whether or not the employment was a substantial contributing factor to the injury as distinct from the death. In my view, the additional reports do not lead to the prospect of a different outcome and, in this circumstance, I am not persuaded that in declining to admit the additional report the appellant will suffer a substantial injustice.
In my view, so far as the additional report from Dr Jennings and the two fresh reports from Dr Fulde are concerned, the appellant does not satisfy either alternative for the admission of additional evidence pursuant to s 352(6) of the 1998 Act.
The statement of 4 August 2017 from Ms Finlayson declares that Brewarrina Hospital had a defibrillator, oxygen, adrenaline and Salbutamol.
I do not understand the Arbitrator to doubt that, if the deceased had been able to get to Brewarrina Hospital in time, the hospital would have had adequate facilities to treat her.
The passage quoted from Professor Young at paragraph [55] of the Arbitrator’s reasons indicates acceptance of the Professor’s opinion that the outcome for the deceased would have been the same wherever the deceased suffered the asthma attack unless she was able to be immediately ventilated with oxygen, proceeding to airway intubation and administration of intravenous drugs.
The Arbitrator’s point is not, with respect, that the Brewarrina Hospital did not have the requisite facilities. The point is there is no evidence justifying the conclusion that the deceased would have got to the hospital before cardiac arrest.
The evidence of Mr Holman before the Arbitrator was a statement to the Coroner. The Arbitrator considered this evidence at paragraphs [25] to [31] inclusive.
In my view for the reasons advanced in relation to the application to cross-examine Mr Holman, additional written or oral evidence from Mr Holman is unnecessary.
For these reasons I decline to admit the additional evidence pursuant to s 352(6).
APPLICATION TO CROSS-EXAMINE CRAIG HOLMAN
The Appellant has made an application issue a subpoena to have Craig Holman cross-examined.
At the Arbitration no application was made to adduce oral evidence or to cross-examine any witness (Arbitrator’s reasons at [14]).
Mr Holman, a Grade 1 Paramedic, provided a statement to the police for the purpose of the Coronial Inquest. It is dated 27 June 2011 and details Mr Holman’s actions and observations. The Arbitrator dealt with the material at paragraphs [25] to [31] of the Arbitrator’s reasons.
Importantly, the Arbitrator found that Mr Holman “realised the female was unresponsive and was informed she had just had an asthma attack. He diagnosed that the woman was in cardiac arrest as she had an absent pulse, absent respirations and her skin was cyanosed. He commenced CPR and cardiac compression.” (Arbitrator’s reasons at [28].)
The appellant says that it proposes to cross-examine Mr Holman on matters “relating to the condition in which he found the deceased on arrival and how her condition progressed whilst waiting for the doctor and ambulance to reach her with appropriate medical treatment such as a defibrillator which could have saved her life.” I do not see how cross-examination of Mr Holman would advance the information provided to the Arbitrator and recorded at paragraph [28] of the Arbitrator’s reasons.
The application for cross-examination of Mr Holman asserts that Mr Holman will be able to provide “key evidence as to the timeline of events”. The timeline was not disputed at the arbitration. The Arbitrator sets it out at paragraph [32] of the Arbitrator’s reasons and says at paragraph [33] “The timeline in that summary is undisputed.”
In my view, the proposed oral evidence from Mr Holman would be unlikely to provide additional information or enhance the exercise of the Commission’s functions as required by s 354(6) of the 1998 Act.
BACKGROUND FACTS AND FINDINGS OF THE ARBITRATOR
The late Mrs Miller was born in 1963. She died on 15 April 2011 at age 48.
On 5 May 2014 the Coroner entered a verdict of death due to anoxia due to a severe asthma attack.
The applicant and the deceased were married in 1997. They moved to Brewarrina near Nyngan, New South Wales, in approximately 2006.
The deceased had suffered from asthma for all of her life (Arbitrator’s reasons paragraph [8]).
The respondent in the Home Care Service Division employed the applicant and the deceased.
The deceased’s duties were those of a co-ordinator operating from an office in Brewarrina. Her usual role was to organise drivers for clients. On the occasion of her death one of the regular drivers was not available and the deceased was required to drive a number of clients from Brewarrina to Dubbo.
“On the return journey from Dubbo to Brewarrina via Nevertire and Nyngan, the deceased suffered a severe asthma attack from which she died. This occurred approximately 10 to 15 kilometres from Nyngan” (Arbitrator’s reasons at paragraph [5]).
The deceased pulled over to the side of the road at around 4.30 p.m. Shortly thereafter Mr Holman stopped and assisted her from the bus. The Arbitrator found that when the deceased pulled over she was still conscious “but thereafter could not get any air into her lungs and slumped over the steering wheel and passed out.” (reasons at paragraph [90].)
The Arbitrator made a number of critical findings which appear to be uncontradicted, namely (references are to the paragraph numbers in the Arbitrator’s reasons):
(a) Brewarrina had appropriate facilities to address the treatment needs of the deceased had she been able to access the hospital within ‘the window of opportunity’ referred to by Drs Heyns and Jennings (paragraph [92]).
(b) He did not accept that the deceased’s asthma condition was “well controlled” (paragraph [98]).
(c) He did accept the deceased was well educated in how to manage her condition (paragraph [98]).
(d) He accepted Professor Young’s opinion that having regard to the history of the condition a severe attack was likely to happen at any time (paragraph [99]).
(e) The medical history and the chronic lifelong condition meant it was very likely the deceased would have a severe attack at any time, whether or not she had been at work (paragraph [101]).
At paragraph [99] the Arbitrator says:
“In his first report, Dr Bryant makes the point that the likelihood of sudden severe and potentially life-threatening episodes of asthma is greater in individuals with severe or poorly controlled asthma, especially if an asthma attack occurs in a situation where high level medical care is not readily available. Professor Young makes the point that, assuming the deceased was not smoking whilst driving the vehicle on the day, she would have been predisposed to sudden severe asthma attacks of uncertain cause from her history of persistent asthma attack spanning many decades. He does not believe that a specific cause for this fatal account [sic] can be identified, but says it could be predicted that she was very likely to have a severe attack at any time. There is no suggestion either from the applicant or the respondent that the particular conditions of the deceased’s employment on 15 April 2011 brought on the attack. I accept Professor Young’s opinion that, having regard to the history of her condition, a severe attack was likely to happen at any time.” (emphasis added)
At paragraph [101] the Arbitrator says:
“(b) the nature of the work performed and the particular tasks of that work: as noted above there is no suggestion that the nature of the deceased’s work, in driving the community bus, was the cause of the severe asthma attack. This is conceded by the applicant. Further I find that it was not unusual for the deceased to engage in this activity as part of her employment duties with the respondent. The evidence of the applicant is that she was obliged to drive the bus, often, on a weekly basis;” (emphasis added).
The Arbitrator found against the applicant on the basis of the findings at paragraphs [112], [113] and [116]. Importantly paragraph [114] was not essential to the Arbitrator’s reasoning.
The Arbitrator found:
“112. In this case the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment.
113. The applicant’s submission is that because of the location of the asthma attack the deceased lost the opportunity to seek suitable treatment in Brewarrina, either at a doctor’s surgery or the local hospital or (in accordance with the ‘two pronged approach’ put forward by the applicant’s counsel), having access to a second inhaler, nebuliser or ventilator. The following matters are relevant:
(a)the deceased gave no indication of the apparent seriousness of her attack to the passengers on the community bus. She did not pull over until asked to do so;
(b)the deceased suffered from a serious asthma condition and was at risk of a severe attack at any time;
(c)the condition was not well controlled, but the deceased was well educated as to how to manage her condition;
(d)the deceased had a long history of treatment for her condition, both in hospital and with her treating doctors;
(e)at the time the deceased was in the course of her employment and not carrying out anything other than normal duties as part of that employment as a community transport coordinator and driver, and
(f)once the very serious nature of the asthma attack became apparent when the bus was between Nevertire and Nyngan, the ‘window of opportunity’ for effective lifesaving treatment to be rendered to the deceased had unfortunately passed.
…
116. Having regard to all of the evidence I find that the applicant has not, on the balance of probabilities, discharged the onus of proof on him to show that the deceased’s employment was a substantial contributing factor to the injury suffered by her in the course of her employment on 15 April 2011.”
LEGISLATIVE FRAMEWORK
The Arbitrator correctly noted that the matter was to be determined having regard to s 4(b)(ii) of the Workers Compensation Act 1987 as it was prior to its amendment by the Workers Compensation Legislation Amendment Act 2012.
This meant that the applicant had to satisfy both s 4(b)(ii) and s 9A of the Workers Compensation Act 1987 Act.
“Injury” in s 4(b) meant “personal injury arising out of or in the course of employment” and included, amongst other things:
“(ii) the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …”
Section 9A provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) …
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work … or the worker’s death, resulted from the injury.
(4) …”
AS TO THE GROUNDS OF APPEAL GENERALLY
At the outset it is appropriate to consider the appellant’s challenges as contained in the first five appeal grounds. These as I understand it, concern paragraph [114] of the Arbitrator’s reasons. The appellant challenges each of the matters set out in (a) to (e) in [114].
In my view, the appellant misconceives what the Arbitrator was intending to demonstrate by paragraph [114]. In paragraph [114], the Arbitrator reflected the argument being advanced by the appellant at the hearing.
The chapeau to the paragraph makes this clear:
“In order for the applicant to succeed in his claim, on the basis put forward at the hearing, a number of matters would have to be assumed, namely…” (emphasis added)
The case which was advanced by the applicant was summarised at paragraph [9] of the reasons:
“The applicant contends, that had the deceased been in Brewarrina at the time of her severe asthma attack on 15 April, 2011, she could have availed herself of medications which she kept in her home, attended on her general practitioner, or at the Brewarrina Hospital and thereby avoided the fatal consequences of her asthma attack.”
In paragraph [114] the Arbitrator identifies the “assumptions” that had to be made to sustain the contention that had the worker had the asthma attack in Brewarrina at her office she would not have died.
Another scenario that did not occur on 15 April 2011 could be envisaged. But this is irrelevant to the scenario that did occur.
In my view, paragraph [114] did not form an essential part of the Arbitrator’s reasoning.
The essential reasoning was contained in paragraphs [112] and [113]. The finding that the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment (paragraph [112]), in my view, was fatal to the applicant’s success. It was fatal because that finding meant that the applicant could not satisfy either s 4(b)(ii) or s 9A.
The matters at paragraphs [114(b) to (e)] are all essentially conjectural. They each proceed on the premise that the deceased would have behaved in a particular manner.
I agree with the respondent’s submission at 1.1 that the applicant’s submissions misunderstand the observations of the Arbitrator at paragraph 114 of the Reasons. I also agree with the respondent’s submissions that the Arbitrator fully understood and considered the opinions of Drs Jennings and Heyns.
Ground 1 - The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the deceased was in or close to Brewarrina at the time of her attack
As indicated above, the appellant misconceives the purpose of paragraph [114] of the Arbitrator’s reasons.
The Arbitrator correctly identified that the locality at which the acute asthmatic episode occurred was essential to the appellant’s case as summarised at paragraph [9] of the reasons. It was necessary that the asthma attack should occur in and close to Brewarrina so as to permit the deceased to access suggested medical assistance. The Arbitrator’s conclusion that for the applicant’s contention to succeed it was necessary to assume the acute asthma attack had happened in or close to Brewarrina is plainly correct.
It is also correct that there was no direct evidence that could be used to infer when or where the deceased might suffer an acute asthmatic episode.
Ground 1 of the appeal fails.
Ground 2 - The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the deceased immediately recognised the seriousness of the attack
The appellant asserts that the deceased immediately recognised the seriousness of the attack and she was unable to act and take appropriate action due to where she was driving. The basis for the assumption as to the deceased’s assessment of the alleged seriousness of the asthma attack is unstated. In my view, the Arbitrator is correct the assumption as to the deceased’s understanding of the seriousness of her condition immediately before losing consciousness is unsupported by evidence.
Furthermore according to Mrs Dwyer’s evidence, summarised accurately by the Arbitrator at paragraph [23], the deceased seemed to be having difficulties breathing and started to cough consistently from when the bus was leaving Nevertire yet she did not pull over until about 10 kilometres outside the town of Nyngan. This seems to suggest that the deceased assumed the asthma episode was not so acute as to require immediate attention. Far from recognising the seriousness of the attack, the deceased appears to have gone some period of time before taking any action in relation to her deteriorating respiratory condition. It seems she stopped only after the insistence of the passengers.
Ground 2 of the appeal fails.
Ground 3 - The Arbitrator erred in finding there was insufficient evidence to make a finding in favour of the appellant on the use of the additional puffer, nebuliser or Ventolin being insufficient treatment to deal with the attack
The Arbitrator accepted the evidence of Professor Young. It was open to him to accept that evidence.
The Arbitrator quoted from Professor Young’s evidence at paragraphs [53] to [55] of the Arbitrator’s reasons. Professor Young said that to effectively ventilate a patient with severe asthma before anoxia and cardiac arrest occurs the patient needs to be transported to a hospital emergency department.
The Arbitrator quoted Professor Young at paragraph [53]:
“It is well recognised that patients with a severe attack of asthma, as long as they reach a hospital emergency department before cardiac arrest, will very often survive but hardly ever survive if arrest has occurred before reaching such a facility.”
Further at paragraph [55] he quoted Professor Young to the effect:
“Mrs Miller required immediately bag ventilation with oxygen proceeding to airway intubation and administration of intravenous drugs.”
The effect of that evidence from Professor Young is that, the usual modes of treatment employed by the deceased namely “puffer”, nebuliser or Ventolin would probably not have successfully resolved or dealt with the attack experienced by Mrs Miller. The asthma attack seems to have been very severe such that the only treatment with a realistic prospect of avoiding anoxia and cardiac arrest was immediate attention in a hospital emergency ward.
Ground 3 of the appeal fails.
Ground 4 - The deceased was able to get herself to Brewarrina Hospital in time for the appropriate treatment to be administered to her
The appellant’s submission assumes that the deceased would have taken a particular course of conduct. The probability, however, favours the deceased attempting measures other than attendance at hospital within a sufficient time to receive effective treatment.
The Arbitrator quoted from the applicant’s statement paragraph [19] of the award:
“In his second statement, the applicant says the deceased rarely needed to use her asthma puffer during the day, but that it was more at night when she had problems with her asthma. He never saw her suffering a bad asthma attack at home, but on some occasions he saw her struggle for air, when she would use her asthma puffer and be okay. On rare occasions the puffer would not help and she would need to use her Ventolin machine. The applicant only saw her do this two or three times. He does not remember the deceased ever suffering an asthma attack at work.”
The deceased went to hospital only when she was suffering pneumonia. The accepted evidence of Professor Young was that for the deceased to have had any chance of survival she needed to attend hospital within a “very narrow window of opportunity”. The evidence indicated that the deceased’s initial response to an asthma attack was to seek to treat the attack by means other than attending hospital. Indeed it seems from the applicant’s evidence that she had not attended hospital in Brewarrina for asthma but only to treat pneumonia.
The difficulty with the appellant’s proposition is that it required the deceased to recognise that:
(a) The attack was more serious than those she may have usually experienced.
(b) It would not be relieved by use of the puffer or her nebuliser at home.
(c) She would need emergency medical treatment at the Brewarrina Hospital before she experienced severe anoxia or cardiac arrest.
Those matters are entirely conjectural and it was open to the Arbitrator, in my view, to draw the inference that he did.
It is simply not correct to state, as the appellant states (appellant submissions [42]), that the deceased had been “kept” alive by frequent attendances at the Brewarrina Hospital over a four year period. So far as the evidence indicated, the attendances at the Brewarrina Hospital were to respond to pneumonia not to acute asthma attacks. But even if the assertion at paragraph [42] of the submissions were correct, this would not overcome the absence of evidence capable of supporting an inference as to the likely conduct of the deceased in the circumstances.
Ground 4 - The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the deceased was able to get herself to Brewarrina Hospital in time for the appropriate treatment to be administered
There is no precise calculation in the evidence as to how long the deceased had between the onset of the attack and the attendance at hospital if she was to be ventilated in a manner contemplated by Professors Young and Bryant. The onus was on the appellant to establish a precise timeframe if this was to be relied upon.
The Arbitrator says, in a passage not challenged by the appellant:
“52. In Professor Young’s opinion, the deceased’s condition was not recoverable from the time of her attack at approximately 4.30 pm given that it deteriorated rapidly. Professor Young says that it appears that the deceased lost consciousness in minutes, which would have been due to anoxia and probably cardiac arrest at the time. Although Mr Holman was on the scene within five minutes, the professor believes that it is very probable that the deceased had already suffered irreversible brain damage at the time and resuscitation efforts were doomed to failure. He notes that the nurses on the bus apparently had not been able to feel a pulse within minutes of the deceased complaining of an asthma attack, and he believes that the chances of a successful resuscitation would have been lost within two or three minutes after this finding.”
The appellant carried the onus of establishing that the deceased would have chosen, had she been in Brewarrina, to attend Brewarrina Hospital and that she would have done so within the “window of opportunity” contemplated by Professors Young and Bryant. That “window” may have been as little as two or three minutes.
In my view, the Arbitrator was not in error in finding that the appellant had not discharged the onus of proof.
Ground 4 of the appeal fails.
Ground 5 - The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant of the fact that the treatment given at the hospital would have been adequate to save the deceased’s life
The Arbitrator accepted Professor Young’s opinion, which he quoted at paragraph [93] as follows:
“Professor Young goes on to say that he does not believe the delay in intervention for the deceased’s asthma attack had any bearing on the fatal outcome, as he considered it to be highly likely that she suffered irreversible anoxic brain death by the time Mr Holman arrived at the scene, and that was within five minutes of the deceased developing the asthma attack.”
In Professor Young’s opinion, unless the attack occurred at a time when the deceased could have been immediately ventilated, it was likely to prove fatal. Acceptance of that opinion, based on the view taken by Professor Young meant that unless the attack occurred in the hospital precinct it was likely to be fatal.
Ground 5 of the appeal fails.
Ground 6 - The Arbitrator erred in failing to find that the employment was a substantial contributing factor to her injury and death applying the factual circumstances of the deceased’s passing and applying the common sense test to the circumstances and taking into account the timeline
The appellant does not challenge the conclusion that the nature of the deceased’s work in driving the community bus was not such as to cause the severe asthma attack.
In Le Brocq v WorkCover Authority (NSW) [2008] NSWCA 125 6 DDCR 257 at [25], Rein J (Tobias JA and Gzell J agreeing) said:
“… there is a need to determine what was the appellant’s employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks.”
In Mercer v ANZ Banking Group Limited [2000] NSWCA 138 48 NSWLR 740 (Mercer), Mason P (Meagher and Beazley JJA agreeing) said [22]:
“The worker correctly submits that the words ‘employment concerned’ in s 9A reinforce the view that it is the work activity in which the worker was engaged at the time of the injury that it is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s 9A.”
Although Mercer at [32] was not followed as to its interpretation of the expression “substantial contributing factor” in s 9A in Badawi, in my view the above proposition as to the focus on the nature of employment pursued by the worker at the time of the injury remains apposite.
In Badawi at [89] the Court said:
“The President, in determining whether the appellant was entitled to compensation, was required under s 9A(1) to determine whether ‘the employment concerned was a substantial contributing factor to the injury.’ In undertaking that task the President was required to take into account the matters specified in s 9A(2).”
Later in the decision their Honours said:
“91. The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task the President was required to undertake under s 9A. It remained fundamental because as we have already explained, ‘employment’ for the purpose of s 4 and s 9 is the same employment that is under consideration in s 9A. By that, we are not saying that the tests under those two provisions, that is s 9 and s 4 on the one hand and s 9A are the same. We have already explained that s 9A involves a different test than that which arises under the earlier provisions.”
The deceased’s work required her to drive a bus between Brewarrina and Dubbo and return. The Arbitrator found her employment included driving duties in the nature of those she was performing on the 15 April 2011. It is undisputed that neither the driving nor the location of the bus when the episode commenced caused the severe asthma attack.
Sections 4 or 9, much less s 9A are not satisfied.
Ground 6 of the appeal fails.
Ground 7 - The Arbitrator erred in law in finding that the deceased had not suffered an injury within the meaning of s 4 of the 1987 Act
The appellant’s submission in this regard is encapsulated at paragraph [53] of the written submissions, namely:
“The appellant submits that if the deceased had been at her place of work in Brewarrina when she first started to experience symptoms of an asthma attack on 15 April 2011, and not driving the bus as it left Nevertire on its way to Nyngan and Brewarrina, she would have availed herself of treatment options for her condition in Brewarrina.”
The Arbitrator said at paragraph [110]:
“The applicant submits, that looking at the notion of causation, applying the factual circumstances of the deceased’s passing, applying common sense and the timeline of events on 15th April 2011 ‘her employment, the location of her employment has been a substantial contributing factor’ (see T28.25–28.30). The location of events may have been a substantial contributing factor to the deceased’s death; it was not a factor to her injury. I accept Professor Young’s evidence that, having regard to the deceased’s medical history and her chronic life-long condition, the deceased was likely to suffer a severe asthma attack at any time.”
In my view, the Arbitrator was correct in that conclusion. The location at which the deceased was at the time and what she was doing driving the bus did not aggravate, accelerate, exacerbate or cause a deterioration in the deceased’s asthma. The task itself and the location at which it was being performed were entirely irrelevant to the onset of the asthma attack.
In my view, the Arbitrator did not make any error in law in finding that the deceased had not suffered an “injury” within the meaning of s 4 of the 1987 Act.
Ground 7 of the appeal fails.
Ground 8 - The Arbitrator erred in failing to find that the deceased’s employment was a contributing factor to the aggravation of the deceased’s underlying asthma for the purpose of s 4(b)(ii)
In my view, this ground of appeal is not made out for the reasons indicated above at paragraphs [117] to [129].
Ground 8 of the appeal fails.
Ground 9 - The Arbitrator erred in failing to consider and make findings as to whether the factors were real and of substance in the sense discussed in Badawi
The appellant submits that there is an “unbroken and very immediate chain of causation between the asthma attack, the anoxia causing the cardiac arrest and the circumstances of the deceased’s employment.”
However, the underlying premise as to “the circumstances of the deceased’s employment” is not articulated. Other than geography, there is no circumstance in the appellant’s employment of relevance and, as explained above, the geographical location of the events made no contribution. The underlying disease was not aggravated, accelerated or exacerbated by the duties Mrs Miller was performing. There was, therefore, no injury to which the employment contributed.
The injury was the aggravation, acceleration or exacerbation of the asthma condition leading to the acute asthma attack.
The Arbitrator set out at paragraph [111] the factors in s 9A(2) that were of relevance. He expressly made reference at paragraph [101(a)] to the fact that the deceased was remote from her home and office in Brewarrina.
He had previously made express reference to Badawi at [82] as to the requirement that the substantial contributing factor implied a causal connection that must be “real” and “of substance”.
He concluded that the causal connection between the deceased’s employment and the acute asthma attack was not real and of substance. In my view, he was correct to do so and no error is demonstrated.
Ground 9 of the appeal fails.
Ground 10 - A failure to provide adequate reasons
In my view, the Arbitrator’s reasons are complete and more than adequate to explicate the reasoning process. The reasons demonstrate that the Arbitrator engaged with all of the evidence, both lay and expert, sufficient to enable the applicant to understand the reasons for his conclusions. The reasons furthermore are adequate to enable the decision to be considered at appellate level.
The statement of reasons must be looked at as a whole and the material inadequacies specifically identified and considered. It is not enough to assert inadequacy of reasons without specifying the effect thereby occasioned: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444.
Ground 10 of the appeal fails.
Ground 11 - The Arbitrator erred in failing to have any regard to or to make any finding with respect to the injury expressed by Dr Bryant, Dr Jennings, Dr Heyns
This ground of appeal is said to be supported by the submissions at [6(l), (m), (n)]. In essence, the submission is that the Arbitrator erred in failing to adopt and prefer the opinions of Drs Bryant, Jennings and Heyns.
In my view, the Arbitrator considered in detail the opinions of those doctors, in particular that of Associate Professor Bryant. Associate Professor Bryant’s views are summarised and considered by the Arbitrator at paragraphs [44] to [48].
The Arbitrator notes that in the original report, Associate Professor Bryant stated “That he has seen no evidence that the work of the deceased as a homecare services driver would have been a substantial contributing factor to her developing an asthma attack” (Arbitrator’s reasons at paragraph [46]). He quotes from the supplementary report of 21 April 2016 at [47] to the following effect:
“Because of the remoteness of the location in which Ms Miller was at the time of her attack, it is likely that the delay in receiving medical treatment did substantially contribute to her death.”
It cannot, with respect, be said that the Arbitrator did not consider the opinion of Associate Professor Bryant.
Dr Jennings’ opinion was to the same effect and as noted by the Arbitrator at paragraph [43].
Dr Heyns’ opinion is noted by the Arbitrator at paragraph [38], including the opinion “She got sick so far from medical care and that it took such a long time for medical care to arrive to her could undoubtedly play a role in her outcome.”
The Arbitrator did not overlook these opinions. However, the opinions do not address the fundamental requirement under ss 4 and 9A, namely, that the relevant injury was the aggravation of the pre-existing asthmatic condition. To that aggravation, employment was not a substantial contributing factor, indeed, the employment activities were of no significance at all.
As the Arbitrator says, in my view correctly:
“110. … The location of events may have been a substantial contributing factor to the deceased’s death; it was not a factor to her injury.
…
112. In this case the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment.”
Ground 11 of the appeal fails.
CONCLUSION
The decision of the Arbitrator does not show error of fact, law or discretion. The Certificate of Determination dated 21 March 2017 is confirmed.
Geoffrey Parker SC
Acting Deputy President
1 September 2017
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