Peter Marsden and Comcare
[2014] AATA 429
•1 July 2014
[2014] AATA 429
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5882 and 2013/3129
Re
Peter Marsden
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member and
Dr I Alexander, MemberDate 1 July 2014 Place Sydney The decisions under review are affirmed
........................[sgd]................................................
Mr Dean Letcher, QC, Senior Member and Dr I Alexander, Member
CATCHWORDS
COMPENSATION - Household Services - Compensation in respect of a disease, physical or mental injury suffered by an employee contributed to a significant degree by their employment - Previously accepted psychological Injury - Whether compensable injury - Adjustment disorder - Ventricular Tachycardia - Decision under review affirmed
PRACTICE AND PROCEDURE - Tender of statements - Witnesses unavailable for cross-examination - Leave to grant statements refused
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 14, 29(1), 29(2), 66
SECONDARY MATERIALS
Guidelines for Family Assistance – Household, Attendant Care and Childcare Services
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member and
Dr I Alexander, Member1 July 2014
INTRODUCTION
In 2008 the Applicant was a clerk in the Australian Bureau of Statistics when he claimed to have suffered psychological injury as a result of harassment and discrimination in the workplace. Comcare accepted that his work had made a significant contribution to his Adjustment Disorder, and it made payments of compensation and expenses under s l4 Safety Rehabilitation and Compensation Act 1988 ("the SRC Act"). That decision is not questioned. After several months off work, the Applicant returned to his position in 2010, and made a further claim on the same basis, which was also accepted and which is also not questioned.
As part of that claim, he sought payment of household expenses ["HS"], namely lawn mowing, which he said he was unable to carry out as a result of his compensable condition. Those expenses were paid by Comcare until 4 December 2012 when his claim for a further period was refused, declined again on review and by reviewable decision on 2 April 2013. The Applicant to this Tribunal in matter 2013/3129 claims pursuant to s29(2) of the SRC Act, that his compensable condition made a significant contribution to his need for HS, and that it was unreasonably disruptive of other family members' activities to require them to provide those HS.
On 10 July 2010 the Applicant was admitted to hospital with ventricular tachycardia ("VT") - rapid and irregular heartbeat. He claims that his compensable condition of Adjustment Disorder made a significant contribution to the occurrence of the cardiac disorder. This claim ['VT'] was refused and the reviewable decision made on 13 November 2012 is the subject of matter 2012/5882 before this Tribunal.
A third application, 2012/5881, concerns the quantum and status of certain incapacity payments, and the resolution of that matter has been deferred to a future date to be fixed, as a decision may not be required.
LEGAL BACKGROUND
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of a disease, physical or mental injury suffered by an employee contributed to a significant degree by that employment. "Injury" includes ailments and the aggravation of such ailments. The Applicant claims that he suffered the Adjustment Disorder with Anxiety and Depression, and that when he was back at work in 2012 there was an increase in stress and anxiety in June 2012, which contributed to a significant degree to the causation of a 'secondary condition' of VT. The Respondent denied that there was evidence of such an increase, and even if there had been, denied that it caused or significantly contributed to the VT.
By agreement the HS and VT matters were heard together, and evidence in one was treated as evidence in the other but separate decisions are required.
HOUSEHOLD SERVICES EVIDENCE
Under s 29(1) SRC Act, "where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation...". Relevantly, “Household services” is defined in s4(1) of the SRC Act to include gardening. Under s 29(2) in determining the household services reasonably required, Comcare must have regard to :
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
The Applicant gave evidence that he had mowed his own lawns up until about six months after his VT episode in July 2010, but conceded that he could have continued mowing until about 18 months after i.e. early 2011. He said that he realised he could not do the work when he nearly fainted twice, felt breathless, weak and could not continue. He had usually spent one to two hours (on his applications) or one and a half to two and a half hours (in oral evidence) mowing a level front lawn and a partly sloping back lawn on his standard suburban block. It was his evidence that he would mow the lawn fortnightly in the summer, and every 4 to 6 weeks in the cooler months.
The Applicant filled out quarterly applications for Comcare payments for these services with a supporting statement of his local doctor. On each form the doctor had written "Breathless, anxiety, dizziness" and as to what might help the Applicant he put "Cardiology review" on the first, and thereafter only "Psychiatric review" on the remainder. The Applicant maintained that it was solely his compensable condition [not his cardiac state] that was the significant causal factor in his requirement for Household Services.
On each form the Applicant’s wife was described as employed in "temp work", and each child was listed as a "fulltime student" living at home. In his evidence, the Applicant said that his 50 year old wife worked as a 'temp' for 8 hours, 5 days a week, with travel taking an additional hour each way. He also explained that she was fully occupied with shopping, washing and caring for the four person family for the entirety of Saturdays and Sundays.
The Applicant’s 22 year old son attended university on a 9 to 5 basis 5 days a week, was learning to drive and was subject to extensive course and practical work in his Industrial Design degree which took up well over 60 hours of his time each week.
The Applicant’s daughter was a 19 year old student of Communications "or something like that", and was also said to be working over 60 hours a week on her studies, which included "a lot of writing and essays".
As well as their studies [and some part-time work] each child assisted with cooking and cleaning up around the house and, in the Applicant’s view, each "needed 1 or 2 hours a night quiet time just to chill out".
The Applicant said that these commitments prevented the members of his family from assisting him with the maintenance of the lawn as it would have resulted in an unreasonable disruption to their activities.
The Respondent’s case was that any need for the services [which was not conceded] was due to the non-compensable VT. Further, it was contented that other family members could have provided those services without any substantial disruption to their other activities. It was put to the Applicant in cross-examination that university students are not engaged in active study for the entire calendar year, as students have a vacation period from November to early March following the conclusion of semester two, and from June to July at the end of semester two, as well as two mid-semester breaks. The Applicant did not dispute this timetable, but maintained that in November-March the students would be "doing work for next year". He agreed that at the time his last application was lodged [4 February 2013] neither child was attending university and conceded that "if they weren't then attending university they weren't as fully involved as I said".
It was put to the Applicant that the requirement of 1-2.5 hours a fortnight or month would be manageable for one or more of the family members without resulting in any substantial disruption to their activities. He denied this.
The Tribunal considered the quality and nature of the evidence in the particular context of the hearing. Part of the context was that in a directions hearing the Applicant had told the tribunal member that he did not intend to call any family member to give evidence as to why they were unable to assist with mowing. He was warned clearly that his statements about their activities might be given far less weight than evidence from the persons themselves. He insisted that he would not call them. Less than a week before the hearing the Applicant indicated that he would rely on their evidence and would provide their written statements before the commencement of the hearing. The Respondent then informed the Applicant that it would require each of the family members for cross-examination, and stated that it would oppose the tender of the statements if the witnesses were not made available.
On the first day of the hearing the Applicant sought to tender the statements of his wife and two children but refused to make any of them available to give oral evidence [not even by telephone].
In these circumstances the Respondent argued that the statements should not be accepted, citing s66 of the SRC Act, the history of the matter and alleging prejudice and procedural unfairness. The Tribunal refused to grant leave to the Applicant to file the statements, refusing their tender on the basis that it would give rise to procedural unfairness, was contrary to s66, would amount to an abuse of the orderly processes of the Tribunal and the statements would be of insubstantial weight in light of the Applicant’s refusal, without reasonable excuse, to make the witnesses available.
Section 66 SRC Act provides that:
66 Evidence in proceedings before Administrative Appeals Tribunal
(1) Where:
(a) a claimant who has instituted proceedings under this Part seeks to adduce any matter in evidence before the Administrative Appeals Tribunal in those proceedings; and
(b) the claimant had not disclosed that matter to the Tribunal at least 28 days before the day fixed for the hearing of those proceedings;
that matter is not admissible in evidence in those proceedings without the leave of the Tribunal.
Both parties relied in part on a document entitled, 'Guidelines for Family Assistance – Household, Attendant Care and Childcare Services’ which appeared on the Comcare website. These guidelines were not said to be a Ministerial or even agency policy, and do not appear to have any particular authority. The guidelines indicated that a family member would be accepted by Comcare to be ' unduly disrupted' if otherwise engaged for over 60 hours a week.
The Respondent’s case on Household Services was that the Applicant’s deteriorating cardiac condition caused the breathlessness, fatigue and profuse sweating he noticed on exertion, that there was no increase in stress or anxiety at the time that the Applicant felt unable to mow and that in any event his other family members alone or in combination could have carried out the work without undue disruption.
The Tribunal found the Applicant’s testimony concerning the family work and study commitments exaggerated, selective, superficial, incomplete and unconvincing. The Tribunal believed that three able-bodied adults could easily find time to mow and trim the lawns of their family home for the 1-2 hours a fortnight or less required. At a more fundamental level, we found that the breathlessness, fatigue, dizziness and sweating complained of derived from the Applicant’s obesity, deteriorating cardiac condition and sleep apnoea.
VENTRICULAR TACHYCARDIA CLAIM
In his evidence the Applicant pointed to a number of factors which he said supported his case that his compensable condition of Adjustment Disorder was a significant contributing factor condition of Ventricular Tachycardia (‘VT’):
(A)Temporal. Incidents at work causing him increased stress, anxiety and depression occurred in late June 2010, followed closely by prolonged vomiting during July 8-10 resulting in a diagnosis of VT after admission to Blacktown Hospital. The Applicant stated: "I accept that the doctors do not say that there is a significant contribution, but look at the timelines".
(B)Cardiological. He relied upon the opinion of Drs Burgess and Thorburn, the latter of whom stated:
"The trigger for this episode of VT at this time could relate to several causes...Acute renal failure and also acute hepatitis.This may have been due to the vomiting and dehydration...The trigger for this ...may have been related to his underlying emotional stress at the time which was causing him to have stress related vomiting and poor oral intake" (Dr Burgess report)
The detailed reports of Dr Thorburn noted:
On 9 March 2011: "Severe deterioration in July 2010 with an episode of sustained VT. I think it likely but not definite that this could have been exacerbated by stress and gastro-intestinal infection".
On 7 October 2010: " I think it is quite probable that the VYT he gets intermittently could he triggered by stress at work".
On 29 September 2011: "probable severe gastrointestinal disturbance with diarrhea and vomiting and this in itself was probably at least a trigger for his VT. It is possible that his anxiety state by raising adrenaline levels could increase the likelihood of him getting VT. However, anxiety state alone would not cause VT but only aggravate a tendency. I would agree with the conclusion that Mr Marsden's VT was predominantly secondary to underlying pre-existing disorder but that stress would have aggravated this".
(C)Prior history: After insertion of a pacemaker in 2002 the Applicant himself noted no significant cardiac problems until 10 July 2010. He believed that he had played cricket and other sports after 2002, was regularly checked by his regular Cardiologist, Dr Thorburn who noted that "10 years is a significant lapse of time" with no cardiac event occurring. The Applicant thought everything had returned to normal until a sudden change in July 2012.
(D)Psychiatric Opinion: Drs Rees and Synnott, psychiatrists, both allowed the possibility that depression and anxiety might play a role in occurrence of VT.
MEDICAL EVIDENCE
Tribunal Member Dr Alexander reviewed the hospital records available from 2002 and 2010 which had not been provided to all of the doctors who gave medical opinions.
Following the first episode of VT in 2002, an electrophysiological study using programmed ventricular stimulation was unable to induce VT, even when an isoprenaline infusion was used to facilitate induction.
Following the episode of VT in 2010, a similar electrophysiological study using programmed ventricular stimulation was able to induce sustained VT without an isoprenaline infusion.
Clearly this evidence suggests a change in Mr Marsden's cardiac status over time. The significance of this change has not been explained to our satisfaction, but clearly leads to a conclusion that Mr Marsden had become more susceptible to suffer episodes of VT since the original episode in 2002. This conclusion is supported by the fact that a new pacemaker was implanted following this last episode.
The central question in this case is: what caused the episode of VT?
Mr Marsden claims that his compensable condition was a significant contributing factor because of increased stress, and relies on the opinions of Cardiologists Drs Thorburn, Herman and Burgess.
The opinions expressed by the cardiologists are somewhat problematic in that they tend to deal with possibilities and appear to be based on assumptions which are not supported by the cotemporaneous documentary evidence.
Examination of the Blacktown Hospital records reveals that Mr Marsden was first seen on 10 August 2010 at 12:08pm and was noted to have VT and hypotension. After Mr Marsden failed to respond to medication cardioversion was performed, which had a good effect on his heart rate and blood pressure.
The various notes of his presenting symptoms consistently referred to intermittent vomiting from one to three days, diaphoresis (excessive sweating), but no diarrhoea.
A review of the pathology results from the blood and fluids taken at the time of presentation show evidence of renal failure, acute hepatic injury, but no significant derangement of electrolytes or evidence of dehydration, and no evidence of gastro-intestinal infection.
The records also indicate that no rehydration fluids were administered but only a maintenance level of intravenous fluids.
In a letter 21 September 2011 Dr Thorburn notes that Mr Marsden presented with VT "in the setting of probable severe gastroenteritis disturbance with diarrhoea and vomiting, and this in itself was at least for a sustained ventricular tachycardia" and goes on to say, "it is possible that his anxiety state, by raising adrenaline, could increase the likelihood of him getting ventricular tachycardia. However, anxiety state alone would not cause ventricular tachycardia but only aggravate a tendency."
In a report dated 14 May 2013, Dr Herman expressed the opinion that Mr Marsden's episode of VT in July 2010 "was probably due to an episode of severe diarrhea and vomiting probably inducing electrolyte disturbance” and that this "occurred in the setting of profound anxiety related to work related stress."
In his oral evidence at the hearing, Dr Herman conceded that he had expressed the opinion without reviewing the contemporaneous pathology results. When Dr Herman was informed of the results he agreed that the VT was the cause and not an effect of hypoperfusion.
In a letter dated 5 November 2013, Dr Burgess stated that when Mr Marsden was admitted to hospital he was found to have acute renal failure and acute hepatitis, and expressed the opinion that "this may have been due to vomiting and dehydration, or due to hypoperfusion of the organs due to persistent conscious ventricular tachycardia, or a combination of the two", and that the trigger may have been gastroenteritis" or "stress related vomiting and poor oral intake"
This opinion is somewhat unusual given the clear explanation that VT was the most likely cause of the hypotension as evidenced by the improvement in blood pressure following cardioversion. There is no evidence to support the diagnosis of gastroenteritis and little evidence to support the notion of dehydration due to vomiting.
In a report dated 14 May 2013 Dr Talley, gastroenterologist makes the following observations:
It is unusual to see diarrhoea, fever and vomiting due to emotional stress without a history of recurrent longstanding functional gastrointestinal symptoms.
Vomiting and diarrhoea from stress does occur but usually does not cause electrolyte disturbance or dehydration.
The was no evidence of electrolyte disturbance in the notes.
Ventricular tachycardia resulting in poor perfusion of the liver, kidneys could alone have caused the gastrointestinal symptoms.
In a report dated 2 December 2013, Dr Talley stated that he believed that Mr Marsden did not develop VT as a result of severe electrolyte disturbance and that he "felt sick" because he was suffering from severe sustained VT.
There was little evidence that psychological factors played any part in his condition.
After due consideration of all the medical evidence, the most likely conclusion by far is that Mr Marsden suffered an episode of VT in August 2013 for reason that are unclear but most likely due to a deterioration in cardiac status over time.
The evidence also points to a conclusion that the symptoms suffered by Mr Marsden prior to his attendance at Blacktown Hospital were due to sustained VT and related to stress. There is also no convincing evidence that stress was the trigger for the onset of the VT.
This additional material and analysis led the Tribunal to a number of conclusions adverse to the Applicant’s case:
(a)The fact that in 2002 the VT observed was not able to be induced, whereas in 2010 it was inducible implies that there had been a worsening of cardiac function.
(b)The fact that the VT in 2010 was sustained but not in 2002 also indicates this.
(c)Drs Herman, Thorburn and Burgess allowed for the possibility that stress could have produced such levels of adrenaline (or in conjunction with a gastro-intestinal infection causing vomiting, diarrhoea and other fluid loss) so as to lead to a reduction of fluid perfusion of organs including the heart and contributed to the occurrence of the VT.
(d)There was no evidence of any gastro-intestinal infection. The Blacktown pathology records exclude bacterial or viral infection.
(e)The pathology records did not show markedly abnormal levels of potassium which would have indicated dangerously low hydration. Sodium (salt) levels were quickly restored with ordinary fluid infusion.
(f)The renal failure and acute hepatitis were best explained by reduced perfusion of kidneys and liver, resulting from reduced circulation of blood due to grossly impaired cardiac functioning. That is, the hypotension and hypoperfusion were a result, not a cause of cardiac dysfunction.
(g)Dr Talley was the only reporting doctor to review the blood/urine hospital results. He found that they did not show infection or the sort of results to be expected if there had been severe fluid loss. When Dr Herman was informed of those results his evidence was that he agreed with Dr Talley that the VT was a cause not an effect of the hypoperfusion.
(h)There is no evidence that high adrenaline levels or high stress, anxiety or depression existed at, or before, the Applicant’s admission to hospital on 10 July 2010, nor that they caused vomiting, diarrhea or profuse sweating likely to contribute to VT. In fact, the hospital records do not support any report of diarrhea. They do refer to "Diaphoresis" which the Applicant understood to be diarrhea but in fact is the medical term for profuse sweating.
(i)There was little evidence that psychological factors are or can be significant causally for VT except in a few studies in very specific groups. The generalised opinion of Dr Rees is not given strong support by the literature quoted. A paper of Whang noted that symptoms of depression are predictive of shock-treated VT and the paper by de Broek reported that the risk of VT in patients already with an implanted defibrillator was higher by 70% in patients with anxiety but only if they were Type D [Depressive Personality] patients. Both papers refer to 'mixed findings' (i.e. negative conclusions) of other studies.
Dr Talley's final opinion, in his report of 2 December 2013, was that the admission to hospital of the Applicant in July 2010 and the finding of VT was as a result of gradually deteriorating cardiac function and that stress did not play a significant role.
We prefer Dr Talley's opinion and accept his analysis which is based on a full review of the available data. We do not accept that the Applicant’s Adjustment Disorder made a significant contribution to the occurrence in July 2010 of Ventricular Tachycardia.
DECISIONS
The Applicant’s claim for household expenses was declined by the reviewable decision of 2 April 2013. That decision is affirmed.
The Applicant’s claim for compensation arising from a condition of Ventricular Tachycardia in July 2010 was declined by reviewable decision on 13 November 2012. That decision is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member and Dr I Alexander, Member ........................................................................
Associate
Dated 1 July 2014
Dates of hearing 25 & 26 March 2014 Applicant In person Counsel for the Respondent Ms A Bortone Solicitors for the Respondent Australian Government Solicitor
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