Pereira v ARA Fire Protection Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pereira v ARA Fire Protection Services Pty Ltd & Ors [2025] NSWPIC 11
APPLICANT:	Jacqueline Pereira
RESPONDENT:	ARA Fire Protection Services Pty Ltd
SECOND RESPONDENT:	Monique Pereira
THIRD RESPONDENT:	Jayden Pereira
FOURTH RESPONDENT:	Jennifer Thompson
MEMBER:	Cameron Burge
DATE OF DECISION:	13 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; death claim arising from alleged heart attack injury; whether employment was main contributing factor to injury which caused death, namely aggravation of underlying heart condition by way of rupture of arterial plaque causing heart attack; sections 4(b)(ii) and 9B discussed; Held – the injury at issue having been pleaded as an aggravation of a disease process, the applicant must prove the deceased’s employment was the main contributing factor to the heart attack injury; if the applicant succeeded on the question of injury, she would also need to establish the deceased’s employment significantly increased his risk of suffering the heart attack at issue; the evidence does not establish on the balance of probabilities that the deceased’s employment was the main contributing factor to the heart attack; award for the first respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the first respondent.

STATEMENT OF REASONS

BACKGROUND

On the night of 16-17 September 2021, Max Pereira (the deceased) died of a heart attack at his residential premises after returning home from work early after complaining of chest pain. At the deceased's date of death, he was employed by the first respondent, ARA Fire Protection Services Pty Ltd in a role described by his wife, Jacqueline Pereira (the applicant) as being in the nature of a project manager who also from time to time worked “on the tools.”
The second respondent is the deceased's adult daughter. The third respondent is his adult son. The fourth respondent is the deceased's ex-wife.
The applicant, second, third, and fourth respondents allege the deceased died as a result of the nature and conditions of his employment, as he worked in a physically demanding, hot and dusty environment where he was exposed to silica dust. It is alleged this employment resulted in a significantly higher risk of the deceased suffering a heart attack than had he not been engaged in employment of that nature.
The first respondent disputes liability and alleges the deceased's death did not result from a work injury. It also alleges the deceased’s employment was neither a substantial contributing factor nor the main contributing factor to any injury and that the employment did not give rise to a significantly greater risk of heart attack than had the deceased not been in its employ.
Whilst apportionment is a live issue in these proceedings, the parties agreed the Personal Injury Commission (Commission) would deal with the question of liability only. In the event the applicant was successful on the primary liability question, the matter would be then listed for hearing to determine questions of apportionment.

ISSUES FOR DETERMINATION

The only issue for determination in these reasons is the question of primary liability. As noted, the first respondent disputes liability pursuant to s 4(b)(i), s 4(b)(ii), s 9A and s 9B of the Workers Compensation Act 1987 (the 1987 Act).
The parties agree the cause of the deceased's death was a heart attack caused by the rupturing of plaque in his coronary artery against a background of coronary artery disease. 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.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was listed for a preliminary conference before me on 16 September 2024. On that occasion, the parties agreed the question of primary liability would be dealt with by way of written submissions.
At the preliminary conference, directions were made for the filing by the applicant and the second, third and fourth respondents of joint submissions and for submissions by the first respondent. The applicant and the second, third and fourth respondents also lodged submissions in reply.

EVIDENCE BEFORE THE COMMISSION

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application in Respect of Death of Worker and attachments;
(b)    Reply of first respondent;
(c)    Reply of second respondent;
(d)    Reply of third respondent;
(e)    Reply of fourth respondent;
(f)    Application to Admit Late Documents (AALD) of the applicant dated 9 September 2024, and
(g)    first respondent’s AALD dated 10 October 2024.

Oral evidence

There was no oral evidence called n the proceedings.

FINDINGS AND REASONS

Primary liability for injury/death

The applicant relies on three factors of the deceased employment which she submits contributed to an aggravation of his heart decease, namely:
(a)    exposure to silica dust;
(b)    physical exertion, and
(c)    working in a hot environment.
There is no issue the deceased’s primary role was supervisory in nature. There is an evidentiary dispute over the extent to which the deceased performed physical work, if any, and whether such work was heavy in nature.
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.
There is medical agreement the cause of death was a heart attack as a result of ruptured plaque in the deceased's circumflex coronary artery.
To succeed under s 4(b)(ii) of the 1987 Act, the applicant must establish the deceased’s employment was the main contributing factor to the aggravation of his coronary heart disease, not to the underlying disease itself.
If the applicant succeeds on the s 4(b)(ii) question, then s 9B of the 1987 Act applies. The section relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”
There is substantial evidentiary overlap when considering matters relevant to both s 4(b)(ii) and s 9B. It is therefore appropriate to examine the evidence generally before determining whether the tests in each section are satisfied.

Lay evidence

As noted, there is a factual dispute as to the extent to which the deceased was required to carry out physically demanding work and also the extent of his exposure to silica dust. It is appropriate to briefly summarise the lay evidence surrounding these issues, as it partly informs the medico-legal opinion on which each party relies.
The applicant relies on her own statement, together with those from Brandon Spowart and Jay Turk, each of whom at different times worked with the deceased and were employed by the first respondent.
Mr Spowart, employed as a fire door fitter on the WestConnex project, gave evidence the deceased generally worked in a supervisory role, performing minimal labouring work. He said much of the deceased's and his own work was underground and they often worked in exposed areas as they were among the first to enter the tunnel behind the tunnel borers. Mr Spowart said:
“6.     Before commencing work on the WestConnex site, I had to do a site induction, which required a fitness test. I was also required to undergo mask fitting training due to the high levels of silica dust that was present inside the tunnels. Sometimes you could not see more than 20 metres ahead of you due to the haze of dust and chemicals. To the best of my knowledge, everyone who worked on the WestConnex construction site had to complete this induction.
7.     Max and I usually met on site in the morning, but on some occasions we would go to the fire door factory and pick up doors for installation. I usually worked a
10-hour day, from about 6:00 am until 4:00 pm. Max always worked longer hours and could be called at any hour of the day and night to manage issues that came up on site.
8.     I was working with Max on 16 September 2021. As I understood it, Max had been working at the Rozelle site with Robert [Naprolec] and had been complaining of chest pain. I am not aware of the details of any conversation between them, but Max was sent to work with me labouring. When he arrived, he was already experiencing chest pain.
9.     Our job was to install fire doors. We would transport the doors and door jams to their position along the tunnel wall, then use a crane and scissor lift to manoeuvre them into position. Each stainless-steel door weighed approximately 100 kg. The doors were being installed every 150 metres throughout the tunnel.
10.    It was always very hot in the tunnels. Even through winter, we would become saturated in sweat by the time we unpacked our tools from the Ute and walked them down the tunnel. It was hard work installing the doors and exhausting in the heat.
11.    Max continued to complain of ‘heartburn’ during the morning of 16 September 2021 and I saw him periodically bend over in pain during the day. He looked to be in so much discomfort, I said to him, ‘This is stupid mate, go home.’
12.    We were supposed to be working all day installing doors, but we returned to the factory shortly after lunch because Max was in too much pain to be doing labouring work.
13.    When we got back to the factory, I walked in first and said to a colleague, Mitchell, ‘Max is not well.’ Max walked in shortly after. He was crouched over because he was in such severe pain. Everyone told him that he needed to go home and eventually he agreed. To my knowledge, he drove himself back to Wollongong in the early afternoon.”
Mr Turk also referred to the nature of the work carried out by the deceased as follows:
“4.     ARA Fire Group was predominantly contracted to install the fire safety doors and sprinkler systems. I was Max's leading hand for sandblasting and spray painting while working in the tunnel, but for the third stage of the project, he was promoted to a managerial position. Before his promotion, the work he was doing was very labour intensive. We often worked night shifts together and would be consistently sandblasting and spraying from 5:00 pm until 5:00 pm.
5.     Max also assisted with the installation of the linear heat cable. The cabling helped to detect when there is a fire or smoke. Managing this job was a very stressful role and several supervisors quit before Max was tasked with finishing it.
6.     When I started work with ARA Fire Group, I did not receive any work health and safety training, however, I attended an induction for the WestConnex site which involved a fitness test and assessment of my lung health. We also underwent training on how to properly fit a mask to avoid the inhalation of silica dust.
7.     It was well known among the workers of ARA Fire and on the WestConnex site that there was a lot of silica dust in the tunnels. The construction works involved a lot of cutting and spraying of concrete, as well as exposure to raw earth in the areas where the tunnel had been freshly dug. We worked in hot and dusty conditions.
8.     Max and I were no longer working together at the time he passed away. I had spoken to him a few days prior to his death, as Max was considering coming to work with me at my new company.”
It is accepted Mr Turk was not working with the respondent at the time of the deceased's death. In a supplementary statement, Mr Turk said:
“4.     As previously stated, I worked with Max for the entire time I was employed with ARA Group. I left in March 2021.
5.     In approximately September 2020 until the day he passed away, Max was working in a supervisory role. He was still required to be down in the tunnels with us for most of his shifts, and he told me on multiple occasions that his role was very stressful.
6.     The role of installing fire doors was very physically hard. The doors weighed a couple of hundred kilograms, and although we had mechanical aids to assist us, there were stages of the installation process where we had to lift the doors with our hands.
7.     The doors would arrive at our workshop in a truck on a pallet. A forklift would lower the pallet of doors from the truck to the ground. We were then required to lift the doors from the pallet by hand. Max would often help us lift the heavy doors at this stage.
8.     A forklift would then lift the doors onto another truck, which would then transport the doors down into the tunnels, after which another forklift would lower the doors onto the ground.”
In a second statement, Mr Turk referred to the amount of dust allegedly within the tunnels. He said:
“3.     As previously stated, it was well known amongst the workers at ARA Fire on the WestConnex site that the tunnels were hot and dusty. Our clothes were covered in dust for the entirety of the shift.
4.     I brought a spare change of clothes to work every day to change into, because it was so dusty. The dust got onto our face and skin, which we would take home with us in the car.
5.     There were showers on the worksite, however they were provided by the builders. None of the ARA contractors ever used them. I believe they were actually for the builders only and not for us.
6.     We were never told or encouraged to shower on the worksite before heading home. It was common practise to get into our cars and drive home with dust still on our face and skin.
7.     The dust would get into our cars. On one occasion, the builders held a meeting and told us it was mandatory to clean our cars every day. ARA never told us this or encouraged us to do it.
8.     At the time I was working with Max, he owned a work car and would drive it to and from the worksite every day.”
The applicant also provided statement evidence as to the deceased's employment. She also stated the deceased would often come home from work “covered in dust”. Annexed to the applicant's supplementary statement was a photograph of the deceased taken by her in early 2021 when the deceased came home from work. It shows the applicant wearing high‑visibility work clothes and that he wore a beard. The applicant states that in the photo, the deceased was covered in dust. The applicant also stated:
“5.     Max did not bring a change of clothes to work and did not shower on the job site. I never heard him mention anything about showers at work.
6.     I had to wash Max's clothes separately from mine and my daughter Monique's clothes because of how dirty and dusty they always were. Once home from work, Max would always have a shower before doing anything else, because of how dusty and dirty he was. Max took his shoes off downstairs in the garage and did not bring them upstairs into the apartment, because of how dirty they were.
7.     Max would travel two hours home every day, from the work site in Sydney to our home in Wollongong. He drove a work car, which was always dirty/filled with dust. If Monique or I ever got in the car, we would have to wipe down the seats and armrests. He never washed his car at work and only on occasion would he clean it himself.
8.     Max would often receive calls from Jennifer Walker at home after work hours. He would often work on his computer after hours too.
9.     Max often mentioned how tough the work was. He was always exhausted after work and had no energy to do anything else. He often complained how hot and dusty it was in the tunnels, making his job so physically demanding.”
The first respondent also relied on a number of witness statements. Mr Shreedev Radhakrishnan provided a statement. He was the deceased’s supervisor. He noted the deceased was initially employed as a painter-blaster but was promoted to a supervisory role in approximately September 2020. He did not recall the deceased complaining about his role. He said the deceased was not required to do physical work in the supervisory position which he held at the time of his death.
Mr Radhakrishnan set out a number of aspects of the deceased's role. He stated the deceased never worked “on the tools” and that he never observed the deceased covered in dust. He noted the deceased was required to wear personal protective equipment (PPE) including a P2 mask.
Paul Corrigan, a supervisor employed by the respondent also provided a statement. He said he did not supervise the deceased but had known him since 2018. Mr Corrigan moved to Melbourne to work on a project with the first respondent, however, he gave evidence he was familiar with the duties the deceased would have carried out in the role which he had at the date of death.
Mr Corrigan stated the deceased would not have been required to undertake heavy manual labour. He stated there was no entry to the tunnels unless workers were clean shaven and wore a P2 mask which fitted their face and had particle capture fitted. He stated the deceased was not often covered in dust from completing his duties.
Mr Corrigan's statement can only be described as having been made with an advocate's enthusiasm, including making suppositions and asking rhetorical questions in the course of setting out his evidence.
I note Mr Corrigan states all workers were required to be clean shaven, yet the photographic evidence annexed to the applicant's statement clearly demonstrates the deceased was not. Mr Corrigan was at pains to emphasise the worksites were not dusty, yet also set out the seemingly contradictory evidence of the requirement to wear P2 masks and be clean shaven owing to the risk of dust particles, and also commented on the use of air monitors within the tunnels.
Mr Corrigan returned to Sydney in or about late 2020 and worked on the same projects as the deceased, although different parts of them.
Robert Naprelac provided a statement. He was the first respondent's general superintendent for the project the deceased worked on. He confirmed the deceased's role as at his date of death and said he and the deceased were close. Mr Naprelac described the deceased's duties in terms generally consistent with the first respondent's other witnesses and noted the requirement to be clean shaven, though he acknowledged the deceased wore a goatee. It should be noted the beard in the photographic evidence would not be best categorised as a goatee but rather a full-face beard.
Unlike Mr Corrigan, Mr Naprelac seemed to concede dust was a factor in the workplace and acknowledged as much in his statement.
Disturbingly, Mr Naprelac made some gratuitous comments regarding the applicant and deceased’s relationship, which the applicant refuted in her supplementary statement. It is unclear whether Mr Naprelac holds qualifications as a marriage counsellor or psychologist, however, whether he does or not, it is unclear how his unsolicited commentary has any relevance to the issues at play in these proceedings. Continuing with his commentary, Mr Naprelac felt qualified to state the applicant was stressed at home, but apparently did not have a care in the world at work.

I pause to note the following. The type of commentary contained in Mr Naprelac's statement carries no weight whatsoever and is counterproductive. Mr Naprelac is, of course, entitled to set out in his statement what he saw and heard, but his opinion on the deceased’s relationship is about as helpful as Sigmund Freud’s would be on the processes surrounding tunnel boring. That is, completely unhelpful.
It is unclear why a party to proceedings would include this gratuitous commentary in its lay evidence. Regardless of the respondent's views as to its exposure in relation to primary liability, to place such matters into evidence is, frankly appalling. The applicant has been widowed. I have little doubt the sudden death of her husband together with the processes involved in bringing a claim of this nature are stressful enough, without her having to deal with allegations in relation to her marriage and to address them in evidence in reply.
Ms Juliana Tio, project engineer, also provided a statement. She confirmed the nature of the deceased's role and acknowledged the tunnels were dusty, but noted the air quality was monitored. Ms Tio disputed the deceased would be covered in dust in the course of his duties.
Ms Tio saw the deceased during his last shift, noted he was unwell and told him to go home. She was present before the start of the shift on 16 September 2021 and noted the deceased at that time was complaining of pain and was rubbing his chest.
By confining herself to matters actually relevant to the case, Ms Tio's evidence proved helpful.
Mr Barrie Smith also provided a statement. He was at the relevant time the first respondent's project director/general manager. He had known the deceased for some years and provided a statement broadly consistent with those of the respondent's other witnesses in relation to the deceased's duties. Mercifully, he did not see fit to provide gratuitous commentary on the deceased's marriage. Mr Smith conceded the deceased would occasionally be covered in dust, but noted he was fitted with a P2 mask as a requirement of his employment.
Ms Jennifer Walker, commercial manager for the first respondent also provided a statement. She set out the deceased's working hours and duties.
Ms Walker relevantly challenged the reliability of both Mr Spowart and Mr Turk as witnesses, noting the former was dismissed for allegedly falsifying a COVID test result, while Mr Turk had not worked with the deceased for over five months at the time of his death. I have 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, I am not prepared to make such a finding in relation to Mr Spowart. If the respondent sought to impugn Mr Spowart's credibility and suggest he was either fabricating his evidence or otherwise lying, it ought to have sought leave to put those propositions to him. In the context of a keenly contested liability matter where the nature of the deceased's duties is in issue, such an application would be appropriate.
In a statement in reply, Mr Spowart confirmed the deceased was working with him in a labouring capacity on the deceased's last day of work.
The lay evidence in this matter is important in establishing the context within which the deceased carried out his duties with the first respondent, however, it is not of itself determinative of the question of causation pursuant to s 4(b)(ii), or of the matters to be decided pursuant to s 9B. Nevertheless, it is appropriate at this juncture to set out some preliminary findings which arise from the lay evidence.
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.
The only evidence in relation to the specific duties being carried out by the applicant 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.
However, that is not the end of the matters to be determined. I also have no difficulty accepting Ms Tio's evidence that the applicant 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.
The first respondent submitted the lay evidence supports a finding not only that the deceased was experiencing chest pain at the commencement of his shift on 16 September 2021 before he entered the tunnel and engaged in any work. As such, the first respondent submits the deceased could not have been in the course of his employment when his heart attack commenced, as it had started before his shift on the date in question.
In reply, the applicant submitted the precise timing of the heart attack's occurrence was not a relevant consideration, as the claim was not presented as one of personal injury. The applicant submitted that whilst the heart attack was a manifestation of the underlying disease, the injury alleged is the aggravation of the underlying cardiovascular condition, and as such whilst the rupture of the plaque is a necessary link in the chain of causation of death, the question of precisely when it occurred is not relevant.
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.

Medical evidence

The parties each relied on independent medical examiner (IME) opinions from consultant cardiologists and respiratory physicians. Additionally, the autopsy report on the deceased was helpfully placed into evidence.
The medical experts are ad idem as to the cause of the deceased's death, namely heart attack against a background of atherosclerotic disease. The proximate medical cause of the heart attack, it seems to be agreed, was the rupturing of arterial plaque in the circumflex coronary artery.
As referred to earlier in these reasons, the parties agree the allegation of injury is that heart attack is the culmination of an aggravation of a disease process, said by the applicant 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.
The autopsy report set out the following circumstances leading to the deceased's death:
“The deceased did not have a significant medical history, and rarely saw his general practitioner. He was a smoker. During the night of 16 September 2021, he complained of chest pains and indigestion. He declined the offer to be taken to hospital and went to bed. On the morning of 17 September 2021, he got up as usual to get ready for work. At 6:00 am the next of kin woke up and found the deceased lying on his back in front of the balcony sliding door. Emergency services were called, but the deceased was declared life extinct soon after their arrival. Police did not find any indications of suspicious circumstances.”
The post-mortem examination revealed the following:
“A post-mortem computerised tomography (CT) scan was performed and showed mild coronary artery calcification. No significant injuries were noted. …
The body was that of an obese adult male. An area of apparent myocardial infarction was noted macroscopically in the back part of the left ventricle, and disappearance was confirmed microscopically.
Significant coronary artery narrowing was noted in all three of the main coronary arteries. In the left circumflex artery, an apparent thrombus was noted macroscopically. Microscopic examination was hampered by post-mortem processing artefact, but there appeared to be haemorrhage within an atherosclerotic plaque. This acute change can cause acute myocardial infarction (a heart attack). There was also a fibrous scar in the heart, indicating that a previous heart attack may already have occurred in the past.
A toxicological analysis of preserved blood showed a negligible concentration of the simple analgaesic, paracetamol.
Conclusion:
In conclusion, in light of the circumstances surrounding death and these post-mortem findings, I propose that the cause of death be recorded as myocardial infarction due to coronary atherosclerotic disease, with smoking as contributory condition (risk factor).”
In examining the deceased’s lungs, the medical examiner who prepared the autopsy report noted the deceased's pleural cavities were unremarkable. In relation to the lungs, the autopsy report noted:
“The lungs displayed normal lobation.
The visceral pleural surfaces were normal.
On sectioning the lung, parenchyma showed congestion and oedema.
The diaphragm and mediastinum were normal.”
In relation to the heart, the report relevantly said:
“The coronary arteries showed right dominance.
The coronary arteries arose and distributed normally.
The coronary arteries showed marked atherosclerotic narrowing, each up to approximately 80% of the lumen.
In the left circumflex artery, an apparent thrombus was noted.
The atria and appendages were normal.
The foramen ovale was closed.
The wall of thickness of the right ventricle, left ventricle and interventricular septum was not unusual.
The ventricular cavities were normal in dimension.
In the posterior, sure area of the heart, an infarct in evolution was noted, with softening of the tissue and yellow discolouration.
In the posterior wall of the left ventricle, near the apex, an area of fibrosis was present.
The endocardium was unremarkable.
The cardiac valves were grossly normal.
The aorta and its major branches arose normally and followed the usual course with no significant atherosclerosis.
The pulmonary vasculature was normal and there were no pulmonary thrombo-emboli.
The vena cava and its major tributaries were patent and returned to the heart in the usual distribution.”
Upon examination of the heart tissue, the autopsy revealed:
“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.
In the posterior wall of the left ventricle, features of early infarction was seen, with hypereosinophilia, fragmentation, contraction band necrosis and multiple acute inflammatory cells infiltrating in the interstitial septa.
In a different section taken from the posterior wall of the left ventricle, an established fibrous scar was also seen.”
The lung tissue was described as being congested and showed evidence of intra-alveolar haemorrhage with multiple carbon pigment laden microphages present.
The applicant's cardiologist, Dr Helprin, provided an Initial Report dated 20 May 2024. He described the findings of the autopsy as follows:
“The autopsy demonstrates significant triple vessel coronary artery disease and there was a heart attack apparent at the back of the heart and there was a complex coronary plaque rupture involving the circumflex coronary artery which was obviously the cause of the heart attack.
I note the important scientific references from Dr David Freiberg, respiratory and sleep physician, he notes that acute exposure to particle dust can lead to release of inflammatory mediators from the lungs which can circulate through the body causing oxidative stress, endothelial dysfunction, triggering vasoconstriction, increasing heart rate and blood pressure and reducing heart rate variability and this can lead to the development of cardiovascular events including myocardial infarction, particularly in people with pre-existent coronary artery disease.
Several studies have shown that significant association with acute exposure to particulate matter can increase the risk of heart attack.
I note that Mr Pereira was overweight and described as being a heavy smoker.
Up to the time of his fatal heart attack, Mr Pereira was a relatively healthy person and had recently had treatment for a dental abscess. There was a history of superficial thrombophlebitis associated with varicose veins 2017 and there was also a history of left leg osteomyelitis in 2015.”
In reaching his conclusions, Dr Helprin found the following:
“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.”
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.
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.
Secondly, the applicant has the onus of proving her case. In order for the applicant 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. The Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) summarised the approach as follows:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (at [55])
In this matter, 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.
Alternatively, there needs to be an actual persuasion not only that the deceased was carrying out heavy work in a hot and humid environment, but also that such work was the amin 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.
Dr Helprin had referred to the report of Dr Freiberg, the respiratory physician relied on by the applicant. In his report dated 7 June 2023, Dr Freiberg noted the deceased worked in a silica-exposed environment and had been trained in appropriate protective mask usage. He noted it was essential to ensure the protective masks were fitted with a high level of filtration efficiency and were fitted appropriately so as to create a seal around the nose and mouth preventing any leakage.
Dr Freiberg commented on exposure to silica dust in the following terms:
“Generally exposure to fine particles and coarse particles can be associated with increased cardiovascular risk. According to the World Health Organisation guidelines, the 24-hour mean concentration should not exceed 25 µg/m³ for PM 2.5 and 50 µg/m³for PM 10.
Several studies have investigated the link between occupational silica exposure and the risk of cardiovascular disease, including myocardial infarction.
Acute exposure to particle dust can lead to release of inflammatory mediators from the lungs which can then circulate through the body causing oxidative stress, endothelial dysfunction, triggering vasoconstriction, increasing heart rate and blood pressure and reducing heart rate variability. These effects can lead to the development of cardiovascular events including myocardial infarction, particularly in susceptible individuals such as Mr Pereira with established coronary artery disease.
…
Therefore, in this obese smoking man with 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 the 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.”
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.
For the first respondent, Dr Kaufman, respiratory physician, provided an IME report. He set out the history of the deceased's work and noted chest X-rays performed in September 2020 showed clear lung fields with no evidence of pneumoconiosis. According to Dr Kaufman, this indicates an absence of radiologically evident silicosis. Likewise, airway lung function measurements carried out at the same time gave normal results indicating normal airway function with no airflow limitation.
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 true silicosis. This was not present.”

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.
Dr Herman, cardiologist, also provided an IME report for the respondent. He noted the deceased's history of severe coronary artery disease, cigarette smoking and obesity. Dr Herman referred to some studies which indicated exposure to small particulate matter led to an association between increased risk of heart attack at a range of 1-5%. Dr Herman referred to the study relied upon by Dr Helprin and noted the risk of an ischaemic heart disease was only slightly increased, though not statistically significant, compared with previous studies, leading Dr Herman to conclude the relative risk compared to traditional factors of smoking and obesity rendered the employment with the respondent as an extremely low risk factor. Dr Herman noted the deceased was accustomed to working in a hot and humid environment and was therefore of the view such work was not a factor leading to the heart attack.
In relation to 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 the plaque rupturing occurring in an obese, actively smoking individual.
In a supplementary report dated 26 August 2024 provided after the respondent's IME opinion, Dr Helprin for the applicant referred again to Dr Freiberg's report from 7 June 2023, together with Dr Herman's report, and noted the latter conceded silica may be a precipitant of acute myocardial infarction. Dr Helprin stated:
“In the context of working in a physically demanding environment, labouring in the tunnel, fixing door jams and hammering drill bolts into the concrete and being exposed to silica, it is more likely than not that the acute physical work together with the 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 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.”
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 applicant'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 applicant. The first is, the deceased was provided with an appropriate mask to wear. I accept the deceased wore a beard at the time of his 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 applicant's lungs. The autopsy report also makes no mention of any silica in the applicant's pulmonary system, despite tissue samples being taken and evaluated.
Whilst it is true an absence of commentary in the autopsy report surrounding dust particles does not of itself rule out the presence of them in the deceased’s airway and cardio-pulmonary tissue, that is of no assistance to an applicant who carries the onus of proving both that such dust particles were present and they were causative of the heart attack.
I have no difficulty in accepting that exposure to silica dust can cause cardiopulmonary 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 applicant 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 of physical work.
The applicant’s IMEs do not, in my opinion, provide a persuasive basis for making a finding that the deceased’s employment was the main contributing factor to his injury on any of the alleged bases.
Dr Helprin stated in his report that the findings on autopsy were consistent with death by cardiac arrest as a result of exposure to silica particulate. However, there is no evidence of the presence of silica particulate upon autopsy examination.
Whilst I have no difficulty in accepting Dr Freiberg’s conclusions that both long term and acute silica exposure can precipitate cardiac events, the contemporaneous evidence in this matter does not establish the presence of silica particulates in the deceased’s system.
Dr Helprin also opined the plaque rupture was precipitated by physical work in a hot and dusty environment, however, 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.
In my view, the cause 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 applicant’s claim must fail.
Having found for the first respondent on the question of injury pursuant to s 4(b)(ii) of the 1987 Act, it is unnecessary to determine the question posed under s 9B of the same Act, namely whether the deceased’s employment significantly increased his risk of suffering the heart attack at issue.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2025] NSWPIC 11

13 January 2025