Moran and Comcare - [2001] AATA 111

DECISION AND REASONS FOR DECISION [2001] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/513

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JOHN BARCLAY MORAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date15 February 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – relationship between stress at work and ischaemic heart disease – meaning of "stress" considered – nature of applicant's work considered – medical evidence and authorities on stress and heart disease canvassed
Compensation (Commonwealth Government Employees) Act 1971 ss.29, 53, 54
Safety Rehabilitation and Compensation Act 1988 s.24
Statement of Principles No. 80 of 1998
Re Mathieson and Australian Telecommunications Commission (1988) 17 ALD 121
Re Harper and Australian Postal Commission (1988) 15 ALD 734
Re Sheedy and Comcare (1990) 23 ALD 487
Re Veigli and Reserve Bank of Australia (1988) 17 ALD 89
Re MacKenzie and Comcare (AAT 9999, 10 February 1995)

REASONS FOR DECISION

15 February 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr John Barclay Moran (the applicant) for review of a decision of a delegate of the respondent dated 26 October 1999 (T22) which affirmed a decision dated 9 April 1999 (T10) that the respondent is not liable to pay compensation in respect of a claimed condition of ischaemic heart disease.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T45), together with 16 exhibits, one lodged by the applicant (Exhibit A1) and 15 lodged by the respondent (Exhibits R1-R15). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Mr S. Cole, of counsel.
The issue for the Tribunal is whether or not the applicant's employment with the Commonwealth contributed to the development or aggravation/acceleration of the applicant's ischaemic heart disease.
history of the application
The applicant was born on 8 April 1926 and was employed as an engineer by the Department of Defence from 1964 until he was retired on 26 September 1988.
On 2 December 1998 the applicant lodged a claim for compensation (T9) for "loss of physical and mental capacity to work" affecting "heart and brain". In an attachment to the claim (T9/26-27), he stated (inter alia):
"…
I beleive [sic] my heart condition was result of stress in my work:
(i) Originally my workplace was known as W.R.E.
Weapons Research Establishment.
We worked with explosives – I was responsible for the direction, safety and the lives of the men working with me – I found this very stressful.
(ii)In later years, we developed Weapons of Destruction – this worried me – justification was defence of our country but worry was that they be misused.
(iii)My work was covered by Official Secrets Act. I found this added considerable stress – always on guard! Because of this I considered that I should not talk to Doctors about stress due to national security constraints – who knows what I might say under anaesthesia – best they don't know.
(iv)First 20 years with W.R.E., I was temorary [sic] employee Engineer – this meant no promotion – any permanent officer could override me – this happened when my Senior Engineer left and I performed his duties for 6 months until I was challenged by permanent officer who had to be given job! Mine was position of responsibility without authority!
(v)I suggest that my history of 15 years of stomach ulcer is indicative of stress. It is cured now.
…"
This claim was rejected by a delegate of the respondent on 9 April 1999 (T10), with the delegate stating (inter alia):
"…
Upon looking at the medical evidence on your file and expert opinions on ischemic [sic] heart disease, in summary, I find that you have failed to establish, on the balance of probability (as opposed to possibility) that your employment has contributed in a material way to the development or aggravation of your Ischemic [sic] Heart Disease, or in fact that your claims of 'stress in the workplace' has aggravated your condition.
…"

This decision was affirmed upon review dated 26 October 1999 (T22) on the basis that "… There is no medical evidence establishing that the employee's employment contributed to his condition of ischaemic heart disease.".
applicant's evidence and submissions
In detailing the applicant's evidence and submissions, the Tribunal has also included relevant extracts from the documentary material as appropriate.
The applicant told the Tribunal that he moved to South Australia in 1957, having joined the Commonwealth Public Service in 1954. He became a permanent public servant in 1976. He worked at the Weapons Research Establishment (WRE) which later became the Defence Science and Technology Organisation (DSTO). In October 1987 the applicant was sick at work, and subsequently attended Flinders Medical Centre, resulting in eventual heart bypass surgery on 1 March 1988. On 26 September 1988 he was invalided out of the Department. He stated that he then applied for his superannuation payout, which took some time to process, resulting in an eventual payment in September 1990. He told the Tribunal that due to a variety of factors, his superannuation payout was not as substantial as it should have been. In 1998 he decided to claim for salary loss for the two and a half year period (to age 65) that he would have been employed had he not been invalided out.
The applicant told the Tribunal that the stress of his work was a major factor in development of the heart disease which lead to his invalidity and retirement. He stated that he had to work with explosives which he found highly stressful. He also stated that he was in charge of a group of men during rocket testing and had a great deal of responsibility. If anything happened to any of the men, he considered that it would be his fault, and that if he made a mistake then men could have died under his command. He further stated that he had to make snap decisions during rocket tests which was very stressful. He referred to his Catholic upbringing to demonstrate that he had a particular work ethic in which he felt a deep sense of responsibility to his "subjects" (the men working under his supervision) and stated that he was under a great deal of stress with the thought that anything might happen to those men.
The applicant told the Tribunal that the secrecy aspect of his work was stressful, as he had to carry around secrets all of the time. He stated that security people were constantly monitoring his telephone conversations and told the Tribunal that it was stressful to think that one was under constant surveillance. He also stated that he had a moral objection to the weapons research he was required to do, but continued to work in that position because he considered that any research would be used in defence of Australia. He sometimes thought that some of the research he was doing would be misused, which was stressful.
In relation to his obesity, he considered that it was the stress of his position that led to his overeating. He stated that the obesity was a step in the chain of work-related events that led to his heart disease. He told the Tribunal that his job involved sitting at a desk for most of the day and that, whilst stationed at Woomera, he had food and alcohol readily available, such that he felt that the Department encouraged him to eat.
The applicant referred the Tribunal to a report by Dr R. van den Berg, Rheumatologist, dated 8 June 1988 (T7) from which the Tribunal notes:
"…
… He is seeking to base his case largely on the problem of stress at work being a major factor in his ischaemic heart disease. Certainly from the history he seems to have no major risk factors for his heart disease in that he has had normal serum lipids, is a non-smoker and there is no significant family history and he has no diabetes. He is considerably obese, weighing 139 kg today, though I note this is below his previous maximum of approximately 180 kg. I am uncertain, but do not feel that obesity alone without concomitant diabetes, hyperlipidaemia, hypertension is a particularly strong predictor of ischaemic heart disease.
…"

The applicant referred to a report of Dr K. Jones, Commonwealth Medical Officer, dated 30 June 1988 to support his contention that it was recognised that he was under stress at work (T8):
"…
… He finds his work somewhat stressful in that his staff is at risk of injury if experiments go wrong, and he bears the responsibility. Examination revealed he was much overweight, weepy, intense and had a hand tremor. His blood pressure was 160/100 and his heart and lung sound normal. His superficial thrombophlebitis persists.
…"
The applicant referred to Statement of Principles (SoP) No. 80 of 1998 concerning Ischaemic Heart Disease to support his contention that it is recognised that stress can be related to heart trouble. He also referred to a passage from an extract from a National Heart Foundation working group report (T15/48), from which the Tribunal notes the following extract:
"…
P514 "The available research evidence provides little scientific grounds for concluding in individual cases that the contributing chronic stress of any particular job may have contributed directly to coronary heart disease; or recommending that any individual should avoid certain job or change to another job to prevent coronary heart disease."
P514 "Evidence that concerns major acute stressors (including those at work) is more open, but such acute stressors are usually unpredictable and so generally cannot be anticipated or prevented. However, there is good evidence that stress and its psychological consequences do affect several conventional coronary risk factors."
…"

The applicant referred to a medical study entitled Clinical Cardiology: New Frontiers (1999) American Heart Association, Inc (T15/55) from which the Tribunal notes:
"… Recent studies provide clear and convincing evidence that psychosocial factors contribute significantly to the pathogenesis and expression of coronary artery disease (CAD). This evidence is composed largely of data relating CAD risk to 5 specific psychosocial domains: (1) depression, (2) anxiety, (3) personality factors and character traits, (4) social isolation, and (5) chronic life stress. Pathophysiological mechanisms underlying the relationship between these entities and CAD can be divided into behavioural mechanisms, whereby psychosocial conditions contribute to a higher frequency of adverse health behaviours, such as poor diet and smoking, and direct pathophysiological mechanisms, such as neuroendocrine and platelet activation.
…
Work-related stress is the most widely studied chronic life stress relative to CAD. Although many aspects of one's work environment relative to the development of CAD have been studied, much interest has focused on models of inherent "tension" at work. …
…Taken together, the studies regarding presence of stress at work and subsequent CAD development have been largely positive, suggesting a strong causal relationship between this form of chronic stress and development of atherosclerosis.
…"

The Tribunal also notes reference to a report of Dr D. Pearce, General Practitioner, dated 20 February 1989 (T33) which stated (inter alia):
"… He retired on the basis of coronary artery disease, which has four known major contributing risk factors associated with it. These are high blood pressure, high cholesterol level, cigarette smoking and obesity. He is nonbtensive [sic], he has a good cholesterol level (5.2) and he is not a cigarette smoker.
Therefore I have no hesitation in stating that he retired from a complaint significantly contributed to by his Benefits Classification Condition ie obesity."

In a further report of Dr Pearce's dated 17 July 1990 (T39), he quotes a report of Dr M. Sheppard, Cardiologist, dated 5 June 1990 which stated (inter alia):
"…
The three main risk factors of course are smoking, cholesterol and hypertension – in him smoking would be a relatively mild risk factor as he gave up smoking eighteen years ago approximately and smoked a relatively small amount before that time. There appears to be some reversible element to smoking as a risk factor but it nevertheless also produces atherosclerosis and over the years would have contributed to artherosclerosis to some extent.
Weight is still considered to be a significant risk factor – there was some debate as to whether it operated independently or via cholesterol, hypertension, low HDL and high triglycerides. It is, however, now thought to be an independent risk factor and in particular truncal obesity has been described as being a significant problem. My feeling is that his obesity has been so great that it would definitely have been a risk factor and may well have outweighed his smoking history which is relatively mild. It was interesting that he had relatively few other risk factors although as I mentioned it would be interesting to know his HDL and triglycerides."
…"
The applicant also made submissions in relation to a large body of case law placed before the Tribunal. The Tribunal has taken the applicant's submissions into account in relation to those cases, to which it will turn in the discussion and findings herein.
respondent's submissions
Mr Cole submitted, on behalf of the respondent, that for the purposes of this hearing, the respondent did not seek to challenge the applicant's claim on the basis of the notification and claim requirements contained in sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). He further submitted that the respondent's position was that a connection between the applicant's heart disease and his employment was not made out on the balance of probabilities as required by section 29 of the Act.
Mr Cole referred to two reports of Dr M. West, the Cardiovascular Specialist in charge of the applicant's care in and around 1988, dated 20 July 1988 (T29) and 6 February 1989 (T31). From the latter report the Tribunal notes the following:
"…
It is my opinion that the patient's obesity has not substantially contributed to his coronary artery disease. The patient has a risk factor for coronary artery disease of cigarette smoking for 40 years and I believe this is likely to be the most significant factor. Obesity is regarded as a minor risk factor in the causation of coronary artery disease but its precise role in the causation is debated. The patient's obesity may well be important in his ability to cope with damage to his heart due to coronary artery disease in that because he has a greater body mass the heart has to work harder and therefore is more likely to come under stress when it is damaged. I regard this effect though as being secondary and the primary risk factor which this patient has for his coronary artery disease being his long history of smoking.
…"

The Tribunal also notes the following from a report of Dr I. Ross, Cardiothoracic Surgeon, dated 10 February 1989 (T32):
"…
If, as is indicated in your letter, the condition which has led to his being unable to work is coronary insufficiency, then I would be of the opinion that Mr. Moran's obesity is certainly a contributing factor to his coronary artery insufficiency but is not the sole cause.
Obesity is undoubtedly associated with hypertension which is also known to be a risk factor for the development of coronary artery disease.
…"

Mr Cole also tendered various reports of Dr M. O'Rourke (collectively Exhibit R15). From the report of Dr O'Rourke dated December 1990 the Tribunal notes the following:
"…
… It is only natural that persons should seek a cause for their problems; experience and circumstances often encourage a link with emotional stress. This link may be heightened by the prospect of compensation if the stress is related to work or to previous military service.
…
… While it is easy to perceive a link between chronic stress and high blood pressure and coronary disease, the most rigorously conducted studies have failed to show such a link.
…
The National Heart Foundation Working Party (13) noted that the relationship between stress and heart disease is incomplete and inconsistent. The report stated that there was little scientific ground for concluding in individual cases that the chronic continuing stress of any particular job may have contributed directly to coronary heart disease, or for recommending that any individual should avoid certain jobs or change to another job to prevent coronary artery disease. …
…
In an invited review for the world's most prestigious medical journal (The New England Journal of Medicine) in March 1990 on "Prognosis and Management After First Myocardial Infarction", Moss & Benhoran did not mention psychological risk factors or the effectiveness of educational and supportive interventions in therapy (22). Pressed into explaining why by correspondents to the Journal, the authors stated in the same Journal that despite investigation over many years, no definitive studies have substantiated such efficacy, and that studies that did had flawed experimental design (23).
…
… it has not been possible to separate the effect of stress itself from the effects this has on eating and smoking habits. The person who perceives himself as being under stress is more likely than another to be careless with his diet, and to seek solace in alcohol or cigarettes.
…
I believe that neither psychological stress nor behaviour type is an independent risk factor for development of atherosclerosis or coronary heart disease, or for development of hypertension. I do believe however that acute stress can bring on symptoms in a patient with established disease, and so can induce attacks of angina pectoris, cardiac failure, arrhythmias, and even sudden death.
…"
Mr Cole submitted that the SoP referred to by the applicant was of no assistance as it referred to a different standard of proof. He also distinguished the National Heart Foundation report, in that there is a distinction drawn therein between heart disease and myocardial infarction. In relation to the other studies before the Tribunal, he submitted that there are no factors in any of them upon which the applicant can specifically rely to support his claim, such that they are only useful as general information.
Mr Cole submitted that as a matter of causation it is simply too remote to attempt to connect stress at work to the applicant's obesity and then relate that obesity to the applicant's heart disease. He submitted that there is an unresolved debate about whether or not stress can be linked to heart disease. He further submitted that at best it could be asserted that some types of stress in some individuals in some situations can lead to development of heart disease, and that this is far removed from the balance of probabilities required in this matter.
Mr Cole also referred to a large number of cases to which the Tribunal will turn in due course.
discussion and findings
Sub-section 124(2) of the Safety Rehabilitation and Compensation Act 1988 directs the Tribunal back to consider section 29 of the Act, given the dates involved in this matter.
Section 29 of the Act provides:
"(1)     Where –
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2)       If –
          (a)       the death of the employee;
          (b)       a loss to the employee of a kind referred to in section 39 or 40;
          (c)       facial disfigurement to the employee;
          (d)       a loss to the employee of the sense of taste or smell; or
          (e)       the total or partial incapacity for work of the employee,
results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, the, , for the purposes of this Act, unless the contrary intention appears –
(f)the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g)the date of the death, the date of the loss, the date of the disfigurement, the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
(3)       Sub-section (2) does not apply in relation to a disease, or an aggravation, acceleration or recurrence of a disease, if the employee has at any time, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease."

The applicant has two main contentions. First, that the stress of his workplace contributed to either the development or aggravation of his ischaemic heart disease. Secondly, that the stress of his workplace contributed to his obesity, which in turn contributed to the development of his ischaemic heart disease. The Tribunal will consider both of these issues in turn.
As a preliminary matter, the Tribunal notes that the documentary evidence suggests that there was some dispute as to the applicant's smoking history. The applicant asserted in a letter dated 30 July 1989 (T36), written in response to a report of Dr West, that he had not smoked for fifteen years prior to that date and had only been an extremely light casual smoker prior before then. This statement is consistent with those of fellow workers (Exhibits R2 and R3) and the Tribunal accepts that the applicant smoked about 3 cigarettes per day prior to giving up in or about the late 1970s.
The Tribunal notes that the report of Dr Pearce dated 25 March 1989 (Exhibit R12) stated (inter alia):
"…
The situation regarding hypertension is that multiple readings of his blood pressure performed over the last 12 years has not ever shown a solitary elevated reading…As he is NOT hypertensive, it is not possible to relate his coronary artery disease to hypertension as a predisposing factor. …
…
… It is clear that the obesity is the major factor (almost the sole factor) in his case, and the facts do not allow any other reasonable interpretation.
…"
The Tribunal notes the Commonwealth Medical Officer's report dated 12 February 1988 (Exhibit R14) which stated (inter alia):
"… At present he experiences angina with moderate effort (leisurely walking) + his symptoms are increased when under stress."

The standard of proof associated with section 29 of the Act is the balance of probabilities. This simply means that the Tribunal is required to be satisfied that it is more probable than not that there is a connection established between the applicant's employment and his ischaemic heart disease. In many of the cases put before the Tribunal, greater emphasis is placed upon the notion that stress may accelerate or aggravate the underlying condition of ischaemic heart disease, either by worsening the underlying condition, or by causing a temporary worsening of the symptoms, resulting in some form of temporary incapacity.
The two questions the Tribunal must consider are whether or not the applicant was in fact suffering "stress" at work, and whether or not there is a connection between such stress and ischaemic heart disease, (either development or acceleration).
In relation to whether the applicant suffered "stress" the Tribunal notes the use of the National Heart Foundation Report definition of stress by Senior Member Hallowes in Re Mathieson and Australian Telecommunications Commission (1988) 17 ALD 121 at p121, following Senior Member Balmford's use of the definition as "an appropriate basis for discussion of the subject in a context such as the present" in Re Harper and Australian Postal Commission (1988) 15 ALD 734. That definition provides (inter alia) (Exhibit R15):
"…
Stressors are external events or situations which can present a threat or challenge to the individual. Although stressors are equated commonly with stress, an individual's interpretation of them is crucial to a possible link to illness. There can be great variations in individuals' appraisal of a stressor, depending on past experience, personality, and the social context in which the stressor occurs. The final component is the stress response, in which individuals who perceive a threat, challenge or loss respond with some degree of emotional or physical disturbance or both. This usually involves distressing feelings of tension and anxiety, and may extend to panic and profound physical distress.
The concept is best understood when there is a single, acute event; the stress response usually dissipates over time. Chronic stress can be seen as a condition in which episodes occur too often for the individual to recover, or when a single situation continues indefinitely. The result is amore or less constant state of discomfort with the individual unable to return to emotional or physical equilibrium.
…"

In Re Sheedy and Comcare (1990) 23 ALD 487, the Tribunal stated (inter alia) at p487:
"…
… We have taken their evidence into account and have adopted the following expressions from the book, Stress, Theory and Practice by King, Stanley and Burrows (Grune and Stratton Inc, 1987) when it was said that "stress is a negative emotional experience which results from negative thoughts about our environment … the term 'stress' should be reserved for a relatively disruptive level of this negative mood … Whenever we have serious doubts about coping, then some of the physiological changes described … may occur. That is, negative thinking produces 'stress' in a person. The mere presence of a demand, or a stressor, does not guarantee that an individual will experience stress. On the other hand the absence of an unpleasant and threatening situation does not necessarily mean that the individual will be stress free. Although demands do not always cause stress, it is reasonable to say that as the number or severity of threats and unpleasant demands increases, so the likelihood of a person experiencing stress increases … for the present we should accept that an understanding of stress should include that the idea of stress is a state of unacceptable divergence between perceived demands and capabilities to adapt. More briefly, but perhaps just as accurately: stress arises from doubts about coping"
…"

In Re Veigli and Reserve Bank of Australia (1988) 17 ALD 89 at p90, Deputy President Layton stated (inter alia):
"…
(47) There were various interpretations of "chronic stress" given in the course of this review. Dr Craig, when asked what sort of history he would consider indicated chronic stress in an employment situation stated: "I would say a more or less continuous experience of adverse circumstances. I mean it is all arbitrary but something that he is aware of continually. That may not be every day but it may be once or twice a week say or several months a year. I mean it could be intermittent even but by chronic I mean it is something that is ongoing from year to year."
(48) Dr Byrne had difficulty accepting any definition of "chronic stress" but instead preferred to use the expression "accumulation of acute events" some of which may be prolonged and some of which may be short but recurrent. He explained the difficulty in these terms: "There is some degree of uncertainty as to when an acute stressor or a series of acute stressors becomes a chronic stressor, but the investigation of this area tends to characterise life events as acute stressors, as single discrete measurable instances from whatever context they occur."
…
(49) In my view, on the facts as found there is not sufficient evidence to indicate that the applicant has in fact suffered from chronic stress nor, in the alternative, an accumulation of acute events of such a recurrent nature as to fall within a description of "chronic stress".
(50) For these reasons, I do not consider that there is sufficient factual basis upon which any causal relationship between the stress suffered by the applicant and his hypertension and/or coronary artery disease need be determined.
…"
The Tribunal notes that there is an important subjective component in determining whether a particular person is "stressed", and a particular person's reaction to events is critical to such a judgement. In the present matter, the applicant was particularly dogmatic in his assertion that he was under considerable stress at work. There is a considerable lapse of time however, between the applicant ceasing work in 1988 and the present. The Tribunal was left with the strong impression that the applicant's current perception of his working life may have been coloured by the present litigation, and that in his own mind, he now remembers working life as more stressful than perhaps it actually was. There is no contemporaneous medical evidence which persuasively demonstrates that the applicant was complaining of being particularly stressed during his working life, and the Tribunal only has his evidence now as to how things were then.
The applicant noted the sense of responsibility he felt, the explosives work, being monitored by security personnel, and the need to make instant decisions as amongst the most stressful aspects of his employment. One must bear in mind however, that the applicant was engaged as an engineer with the Department of Defence performing similar duties for the better part of 25 years (from 1964 to 1988). It is difficult to accept that if his occupation was as stressful on a daily basis as the applicant now asserts it was, that he would have been able to withstand the rigours of the position for that length of time. The Tribunal accepts that he was reticent to discuss aspects of his employment because of the secrecy concerns, but nevertheless, there is a lack of documented evidence which would support the applicant's contentions. Particularly, there is no evidence about the stomach ulcer suffered by the applicant, and the Tribunal is not in a position to determine whether that was in some way related to any such stress in employment.
The Tribunal is not satisfied that the evidence before it establishes that there was an "unacceptable divergence between perceived demands and capabilities to adapt" or any sort of "continuous experience of adverse circumstances" in the course of the applicant's employment. The Tribunal can appreciate that there were requirements of the applicant's position which would have caused moments of temporary anxiety, and indeed surges of adrenalin. Certainly responsibility for others can be a cause of anxiety. Nevertheless, each case involves an assessment of the particular facts before the Tribunal, and taking into account its assessment of the applicant and his perceptions of work stress, and on all available evidence as to what was involved in the applicant's employment, the Tribunal finds that it is not satisfied that the applicant suffered "stress" in his employment as that term is understood by reference to the above quoted authorities.
That of itself is enough to be a bar to the applicant's success. It remains appropriate however, to canvas the question of whether there is any relationship between stress and ischaemic heart disease.
A number of Tribunal and Federal Court cases concerning stress and heart disease make reference to the need for consistency in approach, and it is certainly appropriate for the Tribunal to endeavour to be consistent. It can be remarkable how divergent the end results can be in such endeavours however, and the number of cases on this issue demonstrate that, whilst the Tribunal must be mindful of principles of consistency, each case is ultimately decided on the particular facts of the matter. This case is distinct from the line of cases which consider heart attacks, and those that consider hypertension, both of which the applicant did not have. The medical evidence before the Tribunal, both specific to the applicant and concerning stress and ischaemic heart disease generally, is largely stemming from the period around the late 1980s and early 1990s. It is significant to note that the medical reports cited in the cases from the early 1980s draw different conclusions from latter cited reports in cases in the late 1980s/early 1990s. In Re Veigli (decided in November 1988), Deputy President Layton gave consideration to the National Heart Foundation Report and commented at p91 (inter alia):
"…
(55) Therefore, I have had nothing further placed before me other than the usual controversial and conflicting material surrounding this important and vexed issue, and I am not convinced on the evidence placed before me that the Tribunal decisions in the previous cases are wrong in finding that there may be a causal relationship between stress and hypertension and/or coronary artery disease. However, it is not necessary for me to make a definitive decision on that issue given the found facts in this case."
The Tribunal would note the use of the phrase "may be a link", which recognises the lack of definitive evidence on this issue. The latest authority the Tribunal has before it is Re MacKenzie and Comcare (AAT 9999, 10 February 1995) and the Tribunal has not located any significant case law after this time. In Re MacKenzie the Tribunal, (comprising Senior Member Lewis, Members Thorpe and Way) stated (inter alia) at paragraphs 59 and 60:
"59. There is conflict of medical opinion regarding the effect which emotional stress has on the development and aggravation of coronary artery disease. We note that this is an area of medicine where considerable developments have occurred more recently as a result of ongoing research. The developments in that research are explicated by Dr. Freeman in his documentary and oral evidence. We note that Dr. Byrne, as a clinical psychologist, has also researched this issue, and that he was involved in the National Heart Foundation Working Party report. On a careful consideration of his evidence we find that we can conclude no more than that there is a possibility that occupational stress is a factor (one amongst many) in the development and/or aggravation of the Applicant's coronary artery disease. …
60. … Having read the decision of the Full Federal Court in Re Delahunty we consider that the matter before us can be distinguished from that matter on the facts, that is, that since 1981 medical research has developed to the point where different and updated expert evidence is now available which leads to a markedly different application of the contemporary research evidence to the matter before us.
…"

The circumstances of the applicant in Re MacKenzie bear some comparison to the present matter. That applicant had an ongoing angina problem which led to bypass surgery and a claim for a work stress association. He had a smoking history somewhat more significant than the applicant in the current matter, had not had "essential hypertension" and obesity is not mentioned as a factor.
No medical reports of any significance post-dating Re MacKenzie were placed before the Tribunal, and it remains the most current authority on the issue. There would need to be very good reason for this Tribunal not to follow the reasoning of the three member Tribunal in Re MacKenzie. In the absence of any medical evidence subsequent to that decision, there is no compelling reason for this Tribunal to reach a different conclusion. With respect, this Tribunal adopts the reasoning of Re MacKenzie,.
Whilst a connection between stress and ischaemic heart disease might be there in certain circumstances, that is a possibility, and certainly not more probable than not. More particularly, there is no evidence which would enable the Tribunal to be justified in concluding that there is a particular link in the case of this applicant. No medical report before the Tribunal concludes that the applicant's heart disease is linked to stress arising out of his employment. To make such a finding would be mere supposition on behalf of the Tribunal. Accordingly, the Tribunal finds that there is not a link in this case between the applicant's ischaemic heart disease and any "stress" at work.
The applicant's second hypothesis was that stress led to his obesity which in turn led to his heart disease. The Tribunal concurs with Mr Cole that there is a serious remoteness problem with this hypothesis. There is a divergence of opinion in the medical evidence before the Tribunal as to whether obesity of itself leads to the development or aggravation of ischaemic heart disease without associated risk factors. Whilst on the basis of his reports Dr Thorpe seems prepared to support the link, the specialist medical evidence is more circumspect. At its highest, the Tribunal considers the medical evidence before it suggests that there is a strong possibility that there might be a connection between obesity (without associated risk factors) and ischaemic heart disease, but it is not satisfied that it is more probable than not that such a connection exists on the evidence available and so finds.
The Tribunal has already addressed the issue of stress in the applicant's workplace. Whilst some of the medical reports would support the notion that stress may lead to overeating, there is no report which supports the applicant's contention that his workplace encouraged him to eat and that the stress of his workplace caused him to overeat. There is further no report which supports the hypothesis connecting the applicant's work stress to his overeating and heart disease. In the absence of such medical evidence to corroborate the applicant's account, the Tribunal would be drawing such conclusions on the basis of assumption and speculation alone. It is not for the Tribunal to make such assumptions, given the remote nature of the hypothesis and the fact that the Tribunal is required to be satisfied that such a connection is more probable than not.
In the above circumstances, the Tribunal is not satisfied that the applicant's employment contributed to either the development or acceleration of the applicant's ischaemic heart disease and so finds.
decision
Accordingly, for the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  19 January 2001
Date of Decision  15 February 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr S. Cole
Solicitor for the Respondent    Phillips Fox

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Citations

Moran and Comcare [2001] AATA 111

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