Pharaoh and Comcare (Compensation) [2017] AATA 1556 (27 September 2017)
Division:GENERAL DIVISION
File number: 2015/5684
Peter Pharaoh
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr James Popple, Senior Member
Date:27 September 2017
Place:Canberra
Comcare’s decision on 3 September 2015 is set aside and, in substitution, the following decision is made:
Comcare is liable under s 16 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation in respect of the cost of medical treatment obtained in relation to the applicant’s 1996 injury. Treatment that reduces the applicant’s risk of suffering further ventricular tachycardia or another heart attack is treatment obtained in relation to his 1996 injury, and treatment that it is reasonable for him to obtain in the circumstances. Comcare shall pay the applicant’s costs of these proceedings.
COMPENSATION — Commonwealth employees — Applicant suffered heart attack while at work — because of heart attack, Applicant at increased risk of sudden death due to ventricular tachycardia or another heart attack — Applicant continues to suffer effects of injury after 21 years — treatment that reduces risk of ventricular tachycardia or heart attack is treatment obtained in relation to injury — treatment reasonable in the circumstances — decision under review set aside and substituted.
The applicant suffered a heart attack in 1996, while at work. Comcare accepted liability for this injury under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), and agreed to pay compensation for medical expenses under s 16 of the SRC Act. In 2015, Comcare decided that the applicant no longer suffered from the effects of his heart attack, and determined that he was no longer entitled to compensation under s 16.
The applicant’s heart attack reduced his life expectancy, by increasing his risk of sudden death due to further ventricular tachycardia or another heart attack. He continues to suffer the effects of the heart attack. Treatment that reduces the risk of him suffering further ventricular tachycardia or another heart attack is treatment obtained in relation to his 1996 heart attack, and treatment that it is reasonable for him to obtain in the circumstances.
Comcare is still liable to pay the applicant compensation for medical expenses under s 16.
Background
On 4 July 1996, Mr Peter Pharaoh suffered a myocardial infarction (a heart attack) while at work. At the time, he was employed by Comcare. On 1 November 1996, he started a graduated return to work. On 19 December 1996, he returned to full-time work.
On 9 July 2004, Mr Pharaoh left Comcare and made a claim for workers’ compensation.
On 10 February 2005, Comcare accepted liability, under s 14 of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pharaoh and Comcare (Compensation) [2017] AATA 1556
Case
[2017] AATA 1556
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr Peter Pharaoh for a review of a decision made by Comcare. Comcare had determined that Mr Pharaoh was no longer entitled to compensation for medical expenses under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) from 13 July 2015, on the basis that he no longer suffered from the effects of a heart attack he sustained at work on 4 July 1996. The review was heard by Dr James Popple, Senior Member, of the Administrative Appeals Tribunal.
The primary legal issue before the Tribunal was whether Mr Pharaoh continued to suffer from the effects of his 1996 work-related heart attack. This determination was crucial because Comcare's liability to pay compensation for medical expenses under section 16 of the SRC Act is contingent on the treatment being obtained in relation to an injury from which the employee continues to suffer its effects. If Mr Pharaoh no longer suffered from the effects of the injury, any medical treatment obtained would not be considered to be "in relation to" the compensable injury, thereby negating Comcare's liability.
The Tribunal considered medical evidence from cardiologists and a general physician, as well as agreed facts regarding Mr Pharaoh's condition. The Tribunal found that while Mr Pharaoh's heart attack was not severe, it caused scarring in his left ventricle that would not heal. Despite evidence of normal ventricular function at various points, the Tribunal concluded that Mr Pharaoh still suffered from the effects of his heart attack. Consequently, medical treatment obtained by Mr Pharaoh since 13 July 2015 was considered to have been obtained in relation to his compensable injury.
The Tribunal set aside Comcare's decision of 3 September 2015 and substituted a new decision. It determined that Mr Pharaoh continued to suffer from the effects of his heart attack and that Comcare remained liable to pay compensation for medical expenses obtained in relation to that injury, provided the treatment was reasonable in the circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Comcare is still liable to pay the applicant compensation for medical expenses under s 16.Background On 4 July 1996, Mr Peter Pharaoh suffered a myocardial infarction (a heart attack) while at work. At the time, he was employed by Comcare. On 1 November 1996, he started a graduated return to work. On 19 December 1996, he returned to full-time work. On 9 July 2004, Mr Pharaoh left Comcare and made a claim for workers’ compensation. On 10 February 2005, Comcare accepted liability, under s 14 of the SRC Act, for Mr Pharaoh’s 1996 heart attack. Comcare decided that it was liable to pay Mr Pharaoh compensation for medical expenses (s 16) and incapacity (s 19) for the period 4 July to 18 December 1996. However, Comcare decided that Mr Pharaoh’s compensable injury had resolved as at 19 December 1996, so it was not liable to pay compensation for medical expenses or incapacity from that date. On 6 March 2005, Mr Pharaoh requested a reconsideration of that determination. At some time between March 2005 and January 2007,[1] Comcare varied its determination. It decided that it remained liable to pay compensation for medical expenses, but it affirmed its determination that it was not liable to pay compensation for incapacity from 19 December 1996.[1] Comcare’s letter to Mr Pharaoh about its reconsideration decision is undated. The next letter it sent is dated 19 January 2007. On 1 May 2015, Comcare advised Mr Pharaoh that it proposed to determine that compensation was no longer payable for medical expenses under s 16. On 13 July 2015, Comcare decided that Mr Pharaoh no longer suffered from the effects of his 1996 heart attack, and determined that he had no present entitlement to compensation for medical expenses under s 16. On 9 August 2015, Mr Pharaoh requested a reconsideration of that determination. On 3 September 2015, Comcare affirmed its determination. On 30 October 2015, Mr Pharaoh applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 3 September 2015, affirming its determination that (from 13 July 2015) Mr Pharaoh had no entitlement to compensation for medical expenses under s 16 of the SRC Act.Issue Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1)(b) provides that “injury” includes “a physical … injury arising out of, or in the course of, the employee’s employment”. Comcare accepts that Mr Pharaoh suffered an injury, for the purposes of s 14, when he suffered a heart attack while at work on 4 July 1996. Section 16(1) provides:16 Compensation in respect of medical expenses etc.(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Evidence
Evidence Before The Court
The issue in this review is whether Comcare is still liable to pay compensation to Mr Pharaoh under s 16. That depends on whether he continues to suffer the effects of his heart attack. If he does, Comcare is liable to pay compensation in respect of his reasonable medical expenses. If he does not, then any medical treatment he obtains is not obtained “in relation to” the heart attack, so Comcare is not liable under s 16.[2][2] At the hearing, Mr Pharaoh argued that it is open to me to vary the decision under review so as to decide that Mr Pharaoh still suffers from the effects of his heart attack, while nonetheless affirming that part of Comcare’s decision that is about s 16: in other words, to decide that medical treatment he has obtained since 13 July 2015 was not obtained in relation to the heart attack, but that future medical treatment might be. I do not think that that is a decision that I can make on review. The decision under review is Comcare’s decision that Mr Pharaoh is no longer entitled to compensation under s 16, not its decision that he no longer suffers from the effects of his heart attack—though the former followed from the latter. In any event, I have decided that Mr Pharaoh still suffers from the effects of his heart attack (see [45] below), and that medical treatment he has obtained since 13 July 2015 was obtained in relation to the heart attack (see [54]).Medical evidence There is evidence before me about the state of Mr Pharaoh’s heart at various times since 1996, and the treatment he has obtained during that period. In addition, I heard evidence from two cardiologists:·Professor Anne Keogh, who saw Mr Pharaoh on 28 April 2016 and wrote a report on 7 May 2016; and·Professor Michael O’Rourke, who saw him on 1 March 2016 and wrote reports on 29 November 2004, and 9 March and 7 September 2016.I also heard evidence from:·Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist, who saw Mr Pharaoh on 12 November 2013 and wrote a report on 25 November 2013.Agreed facts I make the findings set out in [16]–[19] below, on the balance of probabilities. These findings are based on the evidence before me, especially the evidence of the people listed at [14] above. These findings are generally agreed between the parties. Mr Pharaoh’s heart attack—an acute anterior myocardial infarction—was not severe. (Professor Keogh characterised the damage it did as “substantial” but the heart attack was, she said, “modest sized”. Professor O’Rourke called it “relatively small”.) The heart attack caused scarring in Mr Pharaoh’s left ventricle. That scarring will never heal. Mr Pharaoh had a coronary angiogram in April 2004. His left ventricular ejection fraction was measured at 77 per cent, which meant that his overall ventricular contractility was within normal limits. Mr Pharaoh had an echocardiogram on 27 June 2005. That showed normal left ventricular size and systolic function, and an apical scar.Differences of opinion
Decision
Reasons for decision
On 30 October 2015, Mr Pharaoh applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 3 September 2015, affirming its determination that (from 13 July 2015) Mr Pharaoh had no entitlement to compensation for medical expenses under s 16 of the SRC Act.Issue Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1)(b) provides that “injury” includes “a physical … injury arising out of, or in the course of, the employee’s employment”. Comcare accepts that Mr Pharaoh suffered an injury, for the purposes of s 14, when he suffered a heart attack while at work on 4 July 1996. Section 16(1) provides:16 Compensation in respect of medical expenses etc.(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. The issue in this review is whether Comcare is still liable to pay compensation to Mr Pharaoh under s 16. That depends on whether he continues to suffer the effects of his heart attack. If he does, Comcare is liable to pay compensation in respect of his reasonable medical expenses. If he does not, then any medical treatment he obtains is not obtained “in relation to” the heart attack, so Comcare is not liable under s 16.[2][2] At the hearing, Mr Pharaoh argued that it is open to me to vary the decision under review so as to decide that Mr Pharaoh still suffers from the effects of his heart attack, while nonetheless affirming that part of Comcare’s decision that is about s 16: in other words, to decide that medical treatment he has obtained since 13 July 2015 was not obtained in relation to the heart attack, but that future medical treatment might be. I do not think that that is a decision that I can make on review. The decision under review is Comcare’s decision that Mr Pharaoh is no longer entitled to compensation under s 16, not its decision that he no longer suffers from the effects of his heart attack—though the former followed from the latter. In any event, I have decided that Mr Pharaoh still suffers from the effects of his heart attack (see [45] below), and that medical treatment he has obtained since 13 July 2015 was obtained in relation to the heart attack (see [54]).Medical evidence There is evidence before me about the state of Mr Pharaoh’s heart at various times since 1996, and the treatment he has obtained during that period. In addition, I heard evidence from two cardiologists:·Professor Anne Keogh, who saw Mr Pharaoh on 28 April 2016 and wrote a report on 7 May 2016; and·Professor Michael O’Rourke, who saw him on 1 March 2016 and wrote reports on 29 November 2004, and 9 March and 7 September 2016.I also heard evidence from:·Dr David Gorman, a consultant general physician, pain management specialist and medical oncologist, who saw Mr Pharaoh on 12 November 2013 and wrote a report on 25 November 2013.Agreed facts