Pereira v ARA Fire Protection Services Pty Ltd - [2025] NSWPICPD 77

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pereira v ARA Fire Protection Services Pty Ltd [2025] NSWPICPD 77
APPELLANT:	Jacqueline Pereira
FIRST RESPONDENT:	ARA Fire Protection Services Pty Ltd
SECOND RESPONDENT:	Monique Pereira
THIRD RESPONDENT:	Jayden Pereira
FOURTH RESPONDENT:	Jennifer Thompson
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W24182/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	3 November 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Certificate of Determination dated 13 January 2025 is confirmed.

CATCHWORDS:	WORKERS COMPENSATION – s 4(b)(ii) of the Workers Compensation Act 1987 – main contributing factor within the meaning of s 4(b) of the Workers Compensation Act 1987 – failure to establish that the nature of work was the main contributing factor to the aggravation of an underlying condition which caused a heart attack injury
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Acorn Lawyers
First Respondent:
Mr B McManamey, counsel
Moray & Agnew Lawyers
Second Respondent:
Mr M Forshaw, solicitor
Carroll & O’Dea Lawyers
Third Respondent:
Ms M Walsh, solicitor
Turner Freeman
Fourth Respondent:
Ms S Molenaar, solicitor
RMB Lawyers
DECISION UNDER APPEAL:	Pereira v ARA Fire Protection Services Pty Ltd & Ors [2025] NSWPIC 11
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	13 January 2025

INTRODUCTION

This is an appeal from a Certificate of Determination dated 13 January 2025 in which an award for the first respondent was made.
The appellant is the widow of the late Max Pereira, who passed away on 17 September 2021. The second, third and fourth respondents are the deceased's adult daughter, his son, and ex-wife, respectively. The first respondent was Mr Pereira’s employer at the time of his passing.
The appellant widow was the applicant before the Member. The second, third and fourth respondents support the appeal but have not filed separate submissions.
For the reasons that follow the appeal is dismissed. The Certificate of Determination is confirmed.

MEMBER’S STATEMENT OF REASONS

Mr Pereira died at his residence on 17 September 2021. According to the widow, the deceased’s duties were in the nature of a project manager who from time to time worked “on the tools”.
The parties agreed that the cause of the deceased’s death was a heart attack caused by the rupture of plaque in his coronary artery against a background of coronary artery disease.
The Member identified the issue between the parties as:
“The question at issue is whether the deceased’s employment was the main contributing factor to the aggravation of the underlying heart disease to the point the deceased suffered the fatal heart attack. If that is the case, the additional question arises as to whether the deceased’s employment led to a significantly higher risk of the heart attack injury occurring.”[1]
[1] Pereira v ARA Fire Protection Services Pty Ltd & Ors [2025] NSWPIC 11 (reasons), [7].
Later the Member refined that statement of the relevant issues further:
“As noted, there is no question the deceased suffered from pre-existing heart disease and given the manner in which the parties each approach the matter in their submissions, the question at issue is plainly whether the deceased’s employment was the main contributing factor to the aggravation of the underlying disease which caused the fatal myocardial infarction (heart attack). If that is the case, the question for determination is whether the nature of the deceased’s employment gave rise to a significantly greater risk of him suffering the heart attack which led to his death than had he not been employed in employment of that nature.”[2]
[2] Reasons, [15].
The Member directed himself as to the relevant statutory questions,[3] observing that there was a “substantial evidentiary overlap when considering matters relevant to both s 4(b)(ii) and s 9B” of the Workers Compensation Act 1987 (the 1987 Act).
[3] Reasons, [17]–[18].
After summarising the statement evidence filed by the parties, the Member said the evidence of Juliana Tio, the project engineer, was relevant to the case and helpful.[4] He had “little difficulty placing some limits on the weight of Mr Turk’s evidence, given he had not worked with the deceased for some months before the date of his death. However, [he was] not prepared to make such a finding in relation to Mr Spowart.”[5]
[4] Reasons, [40].
[5] Reasons, [44].
Mr Spowart’s evidence confirmed the deceased was labouring with him on his final workday.
The Member made findings with respect to the lay evidence:
“47.   I am satisfied on the balance of probabilities that the deceased was exposed to dust in the course of his employment with the first respondent. Indeed, some of the more measured lay witnesses relied on by the respondent admit, quite appropriately, this is the case. I also have no difficulty in accepting the deceased was a man who, from time to time, despite his position being generally supervisory in nature, assisted his colleagues with carrying out manual work.
48.    The only evidence in relation to the specific duties being carried out by the [deceased] on his last shift preceding his death is that of Mr Spowart. Notwithstanding Ms Walker’s challenge to his credibility, I am minded to accept Mr Spowart’s evidence.
49.    However, that is not the end of the matters to be determined. I also have no difficulty accepting Ms Tio’s evidence that the [deceased] was already complaining of chest pain before the commencement of his last shift, and that his complaints, consistent with the evidence of Mr Spowart, continued until he went home.
…
52.    In my view, the timing of the heart attack is not determinative of the question of workplace injury, however, the fact the deceased was complaining of chest pain before he commenced his shift is a factor which must be taken into consideration in any commonsense evaluation of the evidence and causal chain.”
The Member considered the medical evidence, summarising that evidence in detail.
He noted the medical experts were ad idem as to the cause of the deceased’s death, namely, heart attack against a background of an atherosclerotic disease. The proximate medical cause of the heart attack was agreed to be the rupturing of arterial plaque in the circumflex coronary artery.[6]
[6] Reasons, [54].
The parties agreed:
“the allegation of injury is that the heart attack is the culmination of an aggravation of a disease process, said by the [appellant] to have been aggravated by the deceased’s employment to the point where that employment was the main contributing factor to the aggravation, and whose nature gave rise to a significantly greater risk of the deceased suffering the heart attack injury.”[7]
[7] Reasons, [55].
The Member quoted from the autopsy report and postmortem examination:
“Sections of the coronary arteries (left anterior descending, left circumflex and right coronary arteries) showed significant atherosclerosis, many of them with prominent calcification and chronic inflammation in the walls. In a section of the left circumflex artery, marked artifactual disruption of the atherosclerotic plaque was seen, but there was also a suggestion of possible haemorrhage in the plaque.”[8]
[8] Reasons, [60].
The Member noted from cardiologist, Dr Helprin’s report, who was qualified by the appellant:
“1.     Mr Pereira was a long-term smoker and had pre-existent coronary artery disease.
2.     A plaque in the circumflex coronary artery ruptured causing a fatal heart attack. Predisposing factors was working physically very hard in a very hot and dusty environment and this could have easily precipitated the plaque rupture and the fatal heart attack.
3.     Inflammatory mediators are very important in coronary artery disease and certainly silica inhalation can increase inflammation and weaken the plaque in the coronary arteries and precipitate a plaque rupture as well.
4.     Therefore, on the balance of probabilities, I agree that Mr Pereira’s employment with ARA gave rise to a significantly higher risk of him suffering a heart attack than had he not been so employed.
5.     The Autopsy Report is consistent with the death of someone who suffered a cardiac arrest as a result of exposure to silica particulate, i.e. a coronary plaque rupture causing a fatal heart attack.”[9]
[9] Reasons, [63].
Of these passages the Member said:
“64.   Dr Helprin qualifies his own findings by noting only silica inhalation can increase inflammation and weaken arterial plaque, and that working in a hot and dusty environment could have precipitated the arterial plaque rupture. I do not make that comment in criticism of Dr Helprin, however, the qualification is important for two reasons.
65.    Firstly, Dr Helprin does not go so far as to give reasons as to why silica inhalation and/or workplace environmental factors did give rise to the heart attack, only that they could have. Although Dr Helprin’s conclusion was the deceased’s employment significantly increased the risk of a heart attack, Dr Helprin does not appear to have been appraised of the deceased already complaining of chest pain at the commencement of his shift. Nor does Dr Helprin provide an evidentiary basis for his conclusion the deceased had both inhaled silica dust and that the findings on autopsy were consistent with such inhalation and consequent inflammation of the coronary tissue.
66.    Secondly, the [appellant] has the onus of proving her case. In order for the [appellant] to succeed, it is necessary for there to be sufficient evidence to ground an actual persuasion of comfortable satisfaction of the existence of a fact. … Nguyen v Cosmopolitan Homes [2008] NSWCA 246 …”. (emphasis in the original)
The Member thereafter identified:
“the relevant facts to be established are not merely the presence of dust in a workplace which was hot and heavy, but also:
(a) such dust was inhaled by the deceased, and
(b) the inhalation of the dust was the main contributing factor to the rupturing of the arterial plaque which caused the heart attack.”[10]
[10] Reasons, [67].
In the alternative, the Member said “there needs to be an actual persuasion not only that the deceased was carrying out heavy work in a hot humid environment, but also that such work was the main contributing factor to the aggravation of his underlying condition which caused the heart attack injury. In my view, the fact the deceased presented to the workplace for the start of his shift while already complaining of chest pain is a relevant matter in determining this aspect of the case.”[11]
[11] Reasons, [68].
The Member considered respiratory physician Dr Freiberg’s evidence and explanation, who was qualified by the appellant, that acute exposure to particle dust can release inflammatory mediators from the lungs which can then circulate through the body, causing oxidative stress and endothelial dysfunction, triggering vasoconstriction, increasing heart rate, blood pressure, and reducing heart rate variability. These can lead to cardiovascular events such as myocardial infarction – particularly in susceptible individuals like the deceased, who had established coronary artery disease and who was exposed to silica in a hot, dusty work environment. Although training and masks were available, mask usage was inconsistent, raising the risk of inhalation and consequent heart attack. Thus, the deceased’s job significantly increased his likelihood of suffering a myocardial infarction.[12]
[12] Reasons, [70].
Of those comments the Member said this:
“It is unclear whether Dr Freiberg had access to the autopsy report. However, as with Dr Helprin, his opinion relies on general findings rather than specific aspects of the deceased’s condition.”[13]
[13] Reasons, [71].
Respiratory physician, Dr Kaufman, qualified by the first respondent, noted that X-rays performed in September of 2020 showed clear lung fields with no evidence of pneumoconiosis. Dr Kaufman said this indicates an absence of radiological evidence of silicosis. Likewise, airway lung function measurements carried out at the same time gave normal results, indicating normal airway function with no airflow limitation.[14]
[14] Reasons, [72].
The Member said:
“73. Dr Kaufman indicated his view that no aspect of the deceased’s employment would have been a contributing factor to the heart attack. He noted there was no primary lung disease which would cause complications to the heart. He said:
‘In severe cases of silicosis, right heart failure may occur, primarily from pulmonary vascular disease secondary to destruction of large portions of the lung or impingement on pulmonary arteries (the artery is taking blood from the right side of the heart to the lungs). At autopsy, there was no suggestion of such disease. X-ray did not show any evidence of silicosis, either severe or mild, and spirometry measuring airway function was normal. In some cases, silica can cause airflow limitation in the absence of silicosis. This was not present.’
74. On balance, I prefer the views of Dr Kaufman to those of Dr Freiberg. Dr Kaufman makes reference to specific investigations of the deceased’s lungs and the findings on autopsy. He is the only medicolegal expert to specifically address the relevant autopsy findings on the presence or otherwise of dust in the deceased’s airways. Having examined the autopsy report, Dr Kaufman made specific and persuasive findings as to the absence of silica dust.”
The Member also referred to the evidence of the cardiologist Dr Herman, qualified by the first respondent. His evidence was that the deceased had a history of severe coronary artery disease, cigarette smoking and obesity. Studies on small particulate matter linking it to increased heart attack risk led Dr Herman to conclude that, compared to smoking and obesity, employment with the first respondent was a very low risk factor. Dr Herman also observed that the deceased was used to hot, humid work environments and did not consider this a contributing factor.[15]
[15] Reasons, [75].
On the issue of silica exposure, Dr Herman stated the risk of silica promoting plaque rupture in an individual wearing appropriate equipment was negligible compared to the risk of plaque rupture occurring in an obese actively smoking individual.[16]
[16] Reasons, [76].
The Member then referred to the supplementary report from Dr Helprin dated 26 August 2024.
In a more extensive quotation, the Member quoted the following passage from Dr Helprin’s supplementary report:
“Thus the acute work environment did precipitate the heart attack. There is clearly a very strong temporal relationship of the heart attack to work and there is strong biological plausibility that the work environment as described precipitated the plaque rupture in the circumflex artery that caused the heart attack.”[17]
[17] Reasons, [77].
Of this passage the Member said this:
“Without being critical of Dr Helprin, I note he was unaware the deceased was complaining of chest pain before entering the tunnel on the last date at work, and there is no actual evidence of the presence of silicosis or silica dust in the autopsy findings. As noted, it is necessary in cases such as this to be satisfied after a commonsense evaluation of the causal chain that the [deceased’s] employment was the main contributing factor to the aggravation of the underlying condition in the nature of the fatal heart attack. In so finding, there must be an actual persuasion of the relevant facts in issue.
In this case, there are several difficulties for the [appellant]. The first is, the deceased was provided with an appropriate mask to wear. I accept the deceased wore a beard at the time of death, however, there is no expert opinion to the effect the nature of his facial hair would have obviated the filtering effects of the mask with which he was provided. Such a finding cannot, absent relevant expert evidence, merely be inferred. Additionally, the radiological evidence from 2020 establishes there was no evidence of silicosis in the [deceased’s] lungs. The autopsy report also makes no mention of any silica in the [deceased’s] pulmonary system, despite tissue samples being taken and evaluated.”[18]
[18] Reasons, [78]–[79].
The Member said that he had no difficulty accepting that exposure to silica dust can cause cardiac pulmonary issues:
“However, in this matter, I do not have an actual persuasion either of such relevant exposure nor of any exposure being the main contributing factor to the rupture of the arterial plaque. As the authorities make clear, there can only be one main contributing factor to an injury.
I am also not persuaded on the balance of probabilities that the [deceased] carrying out work in a hot environment, which he was used to, was the main contributing factor to his heart attack, against a background of advanced coronary artery disease, smoking and obesity. I am likewise not so persuaded in relation to the carrying out physical work.”[19]
[19] Reasons, [81]–[82].
The Member rejected the evidence of Dr Helprin that the findings on autopsy were consistent with death by cardiac arrest as a result of exposure to silica particulate because there was “no evidence of the presence of silica particulate upon autopsy examination”.[20] He accepted Dr Freiberg’s conclusions that both long term and acute silica exposure can precipitate cardiac events but said that the “contemporaneous evidence in this matter does not establish the presence of silica particulates in the deceased’s system.”[21]
[20] Reasons, [84].
[21] Reasons, [85].
The Member accepted Dr Helprin’s opinion that the plaque rupture was precipitated by physical work in a hot and dusty environment but said “there is no rationale provided as to why such work was the main contributing factor to the heart attack, and not merely one contributing factor among many.”
The Member concluded:
“In my view, the causes of the deceased’s fatal heart attack was multi-factorial. The evidence does not persuade me on the balance of probabilities that his employment was the main contributing factor to the heart attack injury and accordingly the [appellant’s] claim must fail.”[22]
[22] Reasons, [87].
In view of that finding, the Member did not find it necessary to determine the issue under s 9B.

PROCEDURAL MATTERS

The parties agree that the appeal has been filed in time and that the amount in question exceeds the monetary threshold for appeal.
Neither party has requested an oral hearing. I am satisfied on the basis of the submissions and the materials before me that I can determine the matter without an oral hearing.

JURISDICTION

The jurisdiction conferred by s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 is one limited to identifying and correcting errors of fact, law or discretion.
In State of New South Wales v Culhana[23] a Full Bench of five Justices of the Court of Appeal concluded:
“Future appeals under s 352 should apply the approach in Warren v Combes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential Member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential Member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential Member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
[23] [2025] NSWCA 157 (Culhana), [91].

In this matter the first respondent submits:
“As was set out in the primary submissions, the conclusions reached by the Member were not just open to him but were the correct conclusions when the evidence is considered. There is no basis for finding an error, recalling that it is still the case that a mere availability of another [inference] is not sufficient to uphold an appeal. The Presidential Member must come to the view that the Member was wrong.”[24]
[24] First respondent’s submissions dated 16 September 2025, [24].
In my view that submission accords with the ratio in Culhana.

GROUNDS OF APPEAL

The appellant relies on the following three grounds of appeal:
Ground 1 – Error of law in incorrectly defining the wrong question for determination.
Ground 2 – Error of law in taking into account an irrelevant consideration, namely the timing of the onset of the deceased’s symptoms.
Ground 3 – Error of law in taking into account an irrelevant consideration, namely the absence of postmortem evidence of silicosis.

Ground 1 – Error of law in incorrectly defining the wrong question for determination

Appellant’s submissions

The appellant submits that the first respondent’s dispute notice denied injury and raised a defence pursuant to s 9B of the 1987 Act. The first respondent’s defence asserted that the appellant’s medical case was predicated upon an incorrect assumption that the deceased had been exposed to silica in the course of his work. The defence relied upon the evidence of co-workers to say that the deceased had not been exposed to silica as alleged.
The appellant submits that exposure to dust particles in the deceased’s workplace was an element of the appellant’s expert medical case on causation. The opinions of Dr David Freiberg were to the effect that such exposure can be associated with increased cardiovascular risk and can lead to the development of cardiovascular events including myocardial infarction.
The appellant submits that the deceased’s exposure to silica at work in the days before his death presented a significantly higher risk of suffering a myocardial infarction than had he not been so employed. The appellant submits that the conclusion of Dr Freiberg to this effect is supported by Dr Helprin in his supplementary report of 26 August 2024 where he expressed the view that there was a causal nexus between the deceased’s work conditions and his heart attack.
The appellant submits that the Member initially correctly identified the ultimate issues at paragraph [15] of the reasons, but that he subsequently fell into error by stating at paragraph [67] of his reasons the appellant was required to establish that “the inhalation of the dust was the main contributing factor to the rupturing of the arterial plaque which caused the heart attack” (appellant’s emphasis).
It is submitted this erroneously (re)defined the issue from a question of cause to a question of consequence of the disease and its aggravation.
Because the Member asked himself the wrong legal question, his answer was nugatory and appellate intervention is required.
Additionally the appellant submits that the Member found that as a general proposition the deceased had been exposed to dust in the course of his employment and that despite his position as a supervisor he insisted on carrying out manual work.
From these findings the appellant submits:
“These factual findings established the underpinnings for the assumptions relied upon by Dr Herman and Dr Kaufman. So long as their scientific opinion were accepted the [appellant’s] claim was made out.
However, having satisfied himself of these matters to the required standard, the Member strayed from a proper consideration of the matter before him by laying significance on two considerations that the appellant submits were irrelevant and therefore erroneous.”[25]
[25] Appellant’s submissions dated 7 February 2025, [12]–[13].
I am not sure the appellant intended to refer to Drs Herman and Kaufmann who were qualified for the first respondent. I assume the intention was to refer to Drs Helprin and Freiberg.
The appellant then goes on to consider those two allegedly erroneous considerations in Grounds 2 and 3 of the appeal (I deal with those submissions later).

First respondent’s submissions

The first respondent submits that the Member correctly identified the issue to be determined when he made the statement at paragraph [15] of the reasons. The first respondent submits that the medical evidence in the case established the deceased had underlying coronary heart disease. His death occurred following a rupturing of the arterial plaque in the circumflex coronary artery.
The first respondent submits that at paragraph [55] the Member correctly identified that the parties agreed that the allegation of injury is that the heart attack is the culmination of an aggravation of a disease process, said by the appellant to have been aggravated by the deceased’s employment to the point where employment was the main contributing factor to the aggravation, and whose nature gave rise to a significantly greater risk of the deceased suffering the heart attack injury.
The medical evidence only identified the heart attack as being the aggravation of the pre-existing condition. It did not identify anything else as being the aggravation of the underlying disease.
The Member was correct when he noted that Dr Helprin observed that there was a complex coronary plaque rupture which was obviously the cause of the heart attack. Dr Helprin described predisposing factors as working physically very hard in a very hot and dusty environment and this could easily precipitate the plaque rupture and the fatal heart attack. But Dr Helprin did not identify any other matter that constituted aggravation of the pre-existing disease. “Ultimately Dr [Helprin] did not say that the work was a contributing factor to the aggravation let alone the main contributing factor. As correctly pointed out by the Member, Dr [Helprin’s] opinion was only that silica inhalation and working physically very hard in a very hot and dusty environment could have given rise to the heart attack.”[26]
[26] First respondent’s submissions dated 12 March 2025, [8].
Dr Freiberg also identified the myocardial infarction as the relevant aggravation of the disease. Dr Freiberg did not opine that the employment was the main contributing factor to any aggravation. Rather he presumed that there had been acute exposure to silica in the hot and dusty environment where the deceased worked in the days before his death.
On the basis of that assumption he said that the deceased’s employment gave rise to a significantly higher risk of him suffering a myocardial infarction injury than had he not been so employed. Dr Freiberg also identified the myocardial infarction injury as the aggravation and whilst he thought there was a higher risk, he did not opine that the work factors which he presumed were contemporaneous with the onset of the heart attack were the main contributing factor to any aggravation etc. of the disease condition.
The first respondent submits:
“Ultimately the Member, as he was entitled to do, preferred the opinion of Dr Kaufman. The Member explained why he preferred those views (at [74]) and the appeal does not challenge that part of the Member’s reasoning.”[27]
[27] First respondent’s submissions dated 12 March 2025, [10].
The first respondent says that it is significant that the appellant does not identify what the aggravation of the disease condition was if it was not the rupturing of the arterial plaque.

Consideration

The submissions, with respect, stray from the point of this ground of the appeal. It is difficult to identify from the appellant’s submission how it is said that the Member fell into error or what is meant by the appellant’s statement at [9] of her submission that the Member erroneously redefined the issue from a question of cause to a question of consequence of the disease and its aggravation at paragraph [67] of the reasons.
The Member identified the statutory questions at [7] and again at [15]. There is no error in the formulation of the statutory questions relevant to s 4(b)(ii) and s 9B in the formulation adopted by the Member in those two paragraphs.
Furthermore, the Member said at paragraph [13]:
“The [appellant] relies on three factors of the deceased’s employment which she submits contributed to an aggravation of his heart disease, namely:
(a)     exposure to silica dust;
(b)     physical exertion, and
(c)     working in a hot environment.”
There is no submission or ground of appeal that the Member incorrectly identified the three factors relied upon by the appellant to support her claim. The Member then dealt systematically with each of those issues summarising his findings at reasons [47]–[48].
The Member accepted that the workplace was hot and the work was heavy. The Member was correct to say that the onus was on the appellant to establish that the deceased inhaled silica, bearing in mind the use of protective masks, and further, to prove that the inhalation of dust was the main contributing factor to rupture of the arterial plaque which caused the heart attack. She did neither.
I am not convinced that the Member departed from the statutory inquiry as to what was the main contributing factor to the rupture of the arterial plaque. In paragraph [68] of the reasons the Member makes the same point that the appellant needed to persuade him not only that the deceased was carrying out physical work in a hot and humid environment, “but also that such work was the main contributing factor to the aggravation of his underlying condition which caused the heart attack injury”. He was not so persuaded.
The Member persistently maintained a focus on identification of the main contributing factor. The appellant simply failed to persuade him that the factors identified in [13] had been made out as the main contributing factor to the myocardial infarction.
In my view the Member did not depart from the statutory question correctly posed at [7] and [15] in his deliberations. Ground 1 of the appeal is dismissed.

Ground 2 – Error of law in taking into account an irrelevant consideration, namely the timing of the onset of the deceased’s symptoms

Appellant’s submissions

The appellant submits that the fact that the deceased experienced chest pain before the commencement of the last shift was an irrelevant consideration. The appellant specifically at paragraph [14] of her submissions refers to the Member’s “comments at Reasons [48]”.
The appellant submits that it was not part of her case that there was a temporal connection between the work exposure and the onset of observable symptoms. The appellant’s submission “in short” is as follows:
“the fact the [deceased] might have experienced chest pain before the commencement of his last shift is consistent with [the appellant’s] case because it was simply the manifestation of the disease condition that was caused by his working conditions that he faced well before the commencement of that chest pain.”
The appellant submits that it was an error of principle for the Member to erroneously dismiss the contribution of physical exertion to the plaque rupture.

First respondent’s submissions

The first respondent submits that the appellant does not challenge the factual determination that the myocardial infarction had commenced before the deceased started work on 16 September 2021.
The first respondent submits that the Member correctly identified that the timing of the heart attack was not determinative. However, it was a matter which had to be taken into consideration in any commonsense evaluation of the evidence and causal chain.
It submits that if the manifestation of the aggravation occurred when the deceased was not at work then there would need to be medical evidence which explained how the employment was the main contributing factor to an occurrence at a later time. There was no such evidence.
Furthermore, because Dr Freiberg identified hard, physical work in a hot and dusty environment as one of the risk factors, his opinion was based upon the idea that the heart attack had commenced within close proximity of that work being performed. The evidence did not support that conclusion.
The appellant was unsuccessful because she could not discharge the onus of proof. The Member correctly identified that there was no evidence to support the conclusion that there had been an aggravation due to exposure to silica dust. The Member correctly identified that it was for the appellant, who bore the onus, to bring evidence to establish that the mask worn by the deceased was ineffective or evidence that there had been silica in the deceased’s system. In the absence of such evidence the Member correctly concluded that he could not be satisfied that the exposure to silica was a cause of, let alone the main contributing factor to, any aggravation of the underlying condition. Dr Helprin had identified exposure to silica particulate as the potential cause of the heart attack.
The Member ultimately concluded that the cause of the deceased’s fatal heart attack was multifactorial. The evidence did not establish that employment was the main contributing factor. The respondent submits:
“The highest at which the appellant’s case could be put was that there were some aspects of the employment which may have resulted in an increased risk of heart attack. Those factors of course had to be balanced against the deceased’s obesity, his smoking and the natural progression of the underlying disease condition.”[28]
[28] First respondent’s submissions dated 12 March 2025, [20].
The Member’s conclusion (that the cause of the deceased’s fatal heart attack was multifactorial) was the only correct conclusion which could be reached on the evidence.

Consideration

The appellant’s reference to paragraph [48] of the reasons is unclear. In that paragraph the Member expresses his acceptance of Mr Spowart’s evidence. That evidence related to the specific duties described by Mr Spowart in his statement and recorded by the Member at paragraph [22] of the reasons.
Of significance in Mr Spowart’s statement is that the deceased was already experiencing chest pain when the deceased arrived at work on 16 September 2021. Mr Spowart described the work at paragraph [9] of the statement quoted by the Member and the fact that the work was performed under very hot conditions in the tunnels.
At paragraph [48] of the reasons the Member accepts Mr Spowart’s evidence as to the specific duties being carried out by the deceased on his last shift preceding his death. The Member seems to have accepted the appellant’s case at this point and I am unable to understand how what appears at reasons [48] supports the contention that the Member addressed an irrelevant consideration.
In Dr Helprin’s report of 26 August 2024 the doctor says:
“In the context of working in a physically demanding environment labouring in the tunnel, fixing door jambs and hammering and drilling bolts into the concrete and being exposed to silica it is more likely than not that the acute physical work together with exposure to silica caused a fissuring or rupture of a pre-existent coronary plaque and this leads to thrombosis (blood clotting) which leads to the fatal heart attack.
Thus the acute work environment did precipitate the heart attack.
There’s clearly a very strong temporal relationship of the heart attack to work and there’s strong biological plausibility that the work environment as described precipitated the plaque rupture in the circumflex artery that caused the heart attack.”[29]
[29] Application to Admit Late Documents dated 9 September 2024, p 6.
That conclusion, which is the highest the evidence gets in terms of causation, is dependent on the “very strong temporal relationship of the heart attack to work”. However, as the Member points out at reasons [78], the temporal relationship between work and the heart attack is falsified by the fact that the deceased was complaining of chest pain before entering the tunnel and the absence of actual evidence of the presence of silicosis or silica dust in the autopsy findings or the earlier X-ray findings.
The Member’s acceptance of the evidence of Ms Tio that the deceased was already complaining of chest pains before the commencement of his last shift, which is consistent with the evidence of Mr Spowart of his continued complaints of chest pain until he went home on that day,[30] is directly against the “very strong” temporal connection contemplated by Dr Helprin.
[30] Reasons, [49].
Furthermore, the Member accepted that exposure to silica dust can cause cardiopulmonary issues. But what he was not persuaded of was that such relevant exposure or any exposure had occurred in this case and was the main contributing factor to the rupture of the arterial plaque.[31]
[31] Reasons, [81].
In addition, the Member accepted the views of Dr Kaufman that no aspect of the deceased’s employment would have been a contributing factor to the heart attack.[32] The appellant has not displaced the Member’s acceptance of Dr Kaufman’s evidence.
[32] Reasons, [73]–[74].
The temporal connection was made relevant by the appellant’s evidence. The basis of that temporal connection was falsified by the other evidence which was accepted by the Member.
The Member did not erroneously dismiss the contribution of physical exertion to the plaque rupture, rather he concluded that the deceased was complaining of symptoms before he commenced his shift on 16 September.
The Member did not find that to be determinative, indeed he expressly said that the temporal connection was not determinative. However, it was a relevant factor which he was required to take account of and the appellant’s contention that it was an irrelevant matter is not made out.
Ground 2 of the appeal is dismissed.

Ground 3 – Error of law in taking into account an irrelevant consideration, namely the absence of postmortem evidence of silicosis

Appellant’s submissions

The appellant submits that the Member placed impermissible weight on the postmortem absence of silicosis to dismiss the connection between dust exposure and the aggravation of the coronary artery disease. The case theory offered by Dr Freiberg was that dust exposure can release inflammatory mediators from the lungs. He did not identify the presence of silicosis as part of the causal chain.
The appellant submits furthermore that the first respondent’s medical commentators did not suggest that the presence of signs of silicosis would have made any difference to their respective opinions. In his erroneous consideration of this question the Member compounded his mistake by stating that it was unclear whether Dr Freiberg had access to the autopsy report. However, there can be no doubt, not only did Dr Freiberg’s report acknowledge the autopsy report as part of his documentary review, he referred to its findings in the body of his report. The autopsy demonstrated that the deceased had pre-existing atherosclerosis.
The error may not give rise to a separate ground of appeal because it is a mistake made in consideration of an already irrelevant consideration, however, it gives some insight into the Member’s approach that may help explain how he fell into error.[33]
[33] Appellant’s submissions dated 7 February 2025, [22].

First respondent’s submissions

The first respondent submits that the appellant seeks to argue that it is not relevant whether or not there was postmortem evidence of silicosis.
The first respondent submits that there can be no doubt that Dr Freiberg was trying to draw a connection between silica inhalation and the risk of myocardial infarction.
The Member expressly stated, at reasons [74], that he preferred the views of Dr Kaufman. Dr Kaufman had said that right heart failure may occur in severe cases of silicosis. He expressly said, “at autopsy there was no suggestion of such disease. X-ray did not show any evidence of silicosis, either severe or mild, and spirometry measuring airway function was normal. In some cases, silica can cause the airflow limitation in the absence of true silicosis. This was not present”.

Dr Kaufman made it quite clear that the absence of any evidence of silicosis was a significant matter in his reasoning.
The first respondent submits it was not only correct to consider whether there was evidence of silicosis but also that proper evaluation of the evidence required the Member to do so.
So far as the Member stated that it was unclear whether Dr Freiberg had access to the autopsy report or not, the first respondent submits that the important part of the Member’s comment was that whilst the document may have been acknowledged as part of the document review Dr Freiberg undertook, his reference to the autopsy was to its demonstration of pre-existing atherosclerosis, Dr Freiberg did not otherwise comment on the contents of the autopsy report. Most significantly, he did not comment upon the significant findings referred to by Dr Kaufman.
Dr Freiberg did not address the question of how the heart attack could be attributed to silicosis when the autopsy report had eliminated that possibility. The failure to consider such an important question suggests that Dr Freiberg did not have access to the full report or did not consider it fully.

Consideration

Firstly, I am not clear as to what the appellant’s observation at paragraph [22] of her submissions is intended to mean. This is either a ground of appeal relied on or not.
Dr Freiberg’s report of 7 June 2023 favouring the appellant’s case depended on his assumption that the deceased had been exposed to silica. Indeed he says:
“Therefore in this obese smoking man with his pre-existing atherosclerosis the acute exposure to silica was highly likely in the hot and dusty environment where he worked in the days before his death. Despite the appropriate training and availability of masks in the workplace there is a high incidence of these masks not being utilised sufficiently throughout the entire work period to prevent particle inhalation. There is sufficient evidence of the effects acutely of this silica inhalation and the risk of myocardial infarction. On the balance of probabilities therefore the nature of the late Mr Pereira’s employment with ARA gave rise to a significantly higher risk of him suffering a myocardial infarction injury than had he not been so employed.”[34]
[34] Application in Respect of Death of Worker, p 24.
The difficulty with that conclusion and hypothesis, which is quoted by the Member at reasons [70] in greater detail, is that the autopsy report does not confirm exposure to silica.
Furthermore, the Member accepted Dr Kaufman’s opinion based on X-rays in September 2020, together with no evidence of pneumoconiosis, that there was an absence of radiological evidence of silicosis.[35]
[35] Reasons, [72]–[74].
The point is not whether Dr Freiberg had access to the autopsy report but the “specific and persuasive findings” of Dr Kaufman as to the absence of silica dust.
I accept the first respondent’s submission that the Member was correct to consider whether there was evidence of silica exposure and the Member’s conclusion that such evidence did not exist was in fact correct.
Ground 3 of the appeal is not made out and is dismissed.

CONCLUSION

I accept the first respondent’s submission that the appellant failed because there were a range of factors which contributed to the onset of the heart attack outside work hours.
At most the appellant’s medical case was that some factors at work such as heavy, physical work in the hot environment, and exposure to dust, primarily silica, gave rise to an increased risk of heart attack. There was, however, no evidence that that risk had materialised by causing the aggravation of the underlying condition or that such an aggravation was the cause of the fatal heart attack.
The Member did not find it necessary to deal with the s 9B point. Strictly that conclusion is correct.

DECISION

The appeal is dismissed.
The Member’s Certificate of Determination dated 13 January 2025 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

3 November 2025