Pharaoh and Comcare (Compensation)
[2017] AATA 1556
•27 September 2017
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.
........................................................................
James Popple, Senior Member
CATCHWORDS
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.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1), 5B(1), 14, 16, 67(8)
CASES
Bashar v Comcare (2002) 69 ALD 784
Comcare v Martinez (No 2) (2013) 212 FCR 272
Howes v Comcare [2016] FCA 1521
Stacey and Comcare [2015] AATA 386
REASONS FOR DECISION
Dr James Popple, Senior Member
27 September 2017
Summary
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 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.
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
The parties (and the medical experts) have different opinions about whether Mr Pharaoh continues to suffer the effects of his 1996 heart attack. Mr Pharaoh points to the reports of the GPs who have treated him since his heart attack, and who have stated (at various times) that he continues to suffer from the effects of the heart attack. In 2005, that was also the view of Dr David Coles, who was Mr Pharaoh’s treating cardiologist. Dr Coles reported to Comcare on 5 July 2005 as follows:
Mr Pharaoh … has a significant left ventricular scar and will need lifelong medications to ensure he remains in good health and suffers no complications from this scar. His present medications are appropriate and obviously are dual purpose, helping control his systemic hypertension as well as optimising the remodelling of his left ventricle.
On 14 September 2005, Dr Coles reported:
… the effects of the heart condition remain and all factors refer back to the original condition.
…
Mr Pharaoh requires ongoing medical treatment as a result of his previous myocardial infarction.
And, on 25 November 2005, in response to questions from Comcare, Dr Coles wrote:
Mr Pharaoh’s medication requirements would be different had he not suffered the acute anterior infarct on 4th July 1996.
In clarification, I refer to the original anterior infarct rather than pre-existing coronary artery disease or hypertension.
I give no weight to the evidence of Mr Pharaoh’s GPs, noting that they would appear to have no specific expertise. I give little weight to the evidence of Dr Coles. He is an expert—or, at least, was an expert (he has since retired)—but his evidence is over 11 years old. I prefer the evidence of the two cardiologists (Professors Keogh and O’Rourke) and of Dr Gorman. Their evidence is more recent, and was tested at the hearing so that the reasons for their opinions became clear. Generally speaking, Professor O’Rourke and Dr Gorman say that Mr Pharaoh no longer suffers the effects of his 1996 heart attack; Professor Keogh says that he does.
Professors Keogh and O’Rourke agreed that Mr Pharaoh’s left ventricular scar does not cause any functional incapacity. This is because other parts of his heart are compensating for the scarred part of the heart not working to its previous capacity, if at all. This results in a compensatory improvement in function. As Professor Keogh explained:
… the scar is there but the heart is compensating. Now, the heart is a muscle, and essentially it’s compensating, to make it look like the overall ejection fraction of his heart is normal. But the truth is that scar is not contributing any work to the heart muscle—and essentially it’s making up for it.
…
… the left ventricle is the main pumping chamber and that’s the one where you most worry about having a heart attack. The end of the heart, the left ventricle, doesn’t work at all. Akinesis, which means no movement. And the front wall, and the septum, which joins the left ventricle to the right ventricle, are reduced in their work. And so the other parts of the ventricle—it’s a mechanism that it overworks to compensate for that scar which is immutable and can never be repaired.
Professor Keogh said that, although Mr Pharaoh’s ventricular contractility is within normal limits, there are potential ill effects of this compensation, because the undamaged parts of the heart are working harder. She said:
… the muscle fibres get thicker and try to compensate to keep that overall ejection fraction in the heart … But, they are not healthy either, because they are thickening up beyond what they were ever supposed to be and that causes a whole new pile of problems …
… the thickened scar is prone to the things we talked about—ventricular tachycardia. The thicker parts of the heart muscle can become problematic by trying to compensate—to not get quite enough blood supply on the inside of the heart wall because they have thickening and then, you have got that outside sitting risk of the coronary heart disease recurring at some stage in his life, either in that first culprit artery, or at one of the other main arteries.
Professor O’Rourke did not disagree with Professor Keogh’s analysis, but maintained his view that Mr Pharaoh suffered “a very tiny infarct” and has “a tiny scar”, so that the other parts of the heart would not have to work that much harder to compensate.
Ventricular tachycardia is an increase in heart rate caused by electrical activity in the ventricles. Dr Gorman explained that one of the risks of ventricular tachycardia is sudden death. Mr Pharaoh suffered ventricular tachycardia at the time of his heart attack,[3] and in November 2003. Professor O’Rourke said that this was of no consequence. He also said that he didn’t think that it necessarily arose from the scar tissue in Mr Pharaoh’s left ventricle caused by his heart attack. Professor Keogh said that she thought it was “incredibly likely” that the November 2003 ventricular tachycardia was due to the scar tissue from the heart attack. Dr Gorman said that the scar was “the likely source”.
[3] Professor Keogh was sure of this. Professor O’Rourke was less clear on this point, though my understanding of his evidence is that he accepted that Mr Pharaoh suffered ventricular tachycardia at the time of his heart attack, but took the view that that was not significant because “the arrhythmias that occur in the setting of an acute myocardial infarction are usually just temporary and they do not continue subsequently”.
Dr Gorman also said that a person who has experienced ventricular tachycardia has a greater risk of experiencing it again than a person without scar tissue on their heart—a person who has never suffered a heart attack. He also said that, if Mr Pharaoh were to have another episode of ventricular tachycardia, that episode would have been “caused by the heart attack”.
Both Professor Keogh and Professor O’Rourke agreed that some of the medications that Mr Pharaoh has been taking (specifically Enalapril and Metoprolol) contribute to the maintenance of the heart’s functional capacity—the ability of the heart to compensate. Professor Keogh said that both medications would be beneficial for Mr Pharaoh even if he had not had a heart attack. But (given that he had) they had “the specific purpose of reducing the strain and helping the compensatory action”—of keeping his heart in “its compensated state”. Professor Keogh also reported[4] that, if Mr Pharaoh were to cease taking Enalapril and Metoprolol, it is likely that his left ventricular function would deteriorate with “a likely negative impact on his survival”. However, Professor O’Rourke was of the view that the benefit of these medications is largely seen in the first months after a heart attack.
[4] 7 May 2016.
Professor O’Rourke also said:
… one can speculate about what might happen in the future, and one might want to have increased treatment preventative measures, but up until now … the changes—there have been no adverse physiological problems resulting from the—to the physiological state, resulting from the myocardial infarct 21 years ago.
In his view, the effects of Mr Pharaoh’s heart attack “appear to have ceased during his admission to the Canberra Hospital” in July 1996:[5]
… I can’t identify any change or disturbance in physiological state or symptoms up until the present, which have resulted from that small myocardial infarct in 1996. It does indicate a scar, that there has been damage to the myocardium, but the scar becomes just an inert scar, like a scar on the skin when the skin is cut.
It does nothing. It just holds the rest of the tissues together. It doesn’t contract like the muscle that was damaged in the myocardial infarction. So it’s a passive replacement of a small amount of myocardium which was damaged 21 years ago, and it does not appear to be contributing anything to his present medical condition.
[5] As Comcare points out, Professor Keogh agreed that the “symptoms” of Mr Pharaoh’s heart attack were “short-lived”. Nonetheless, in her view, he continues to suffer the effects of the heart attack.
Professor O’Rourke said that the treatment Mr Pharaoh has received since 13 July 2015 (the date of Comcare’s determination)[6] was “prophylactic treatment to prevent the recurrence of myocardial infarction”:
I think it was reasonable for him to continue on with prophylactic treatment because he had a previous myocardial infarct, and it was possible with the same risk factors that are prevailing that he could have another myocardial infarct. But with the risk factors controlled, it’s less likely that he would have a further myocardial infarct.
[6] See [8] above.
In 2004, Comcare asked Professor O’Rourke what he thought the prognosis was for Mr Pharaoh’s condition. Professor O’Rourke reported:[7]
Mr Pharaoh is currently 52 years of age.[8] According to life expectancy tables from the Australian Bureau of Statistics, life expectancy is 28.8 years for a man of this age. As a consequence of his previous infarction and known premature development of coronary disease I believe that Mr Pharaoh’s life expectancy is approximately 20 years rather than 28.8.[9]
This is a reduction in life expectancy of just over 30 per cent from 2004 (when it was estimated), and of almost 24 per cent from 1996 (when Mr Pharaoh had the heart attack). Professor O’Rourke confirmed his estimate at the hearing.
[7] 29 November 2004.
[8] He is now 65.
[9] Spelling errors corrected.
Although he had reported that this reduction in life expectancy was due to both the heart attack and coronary artery disease, at the hearing Professor O’Rourke said that he thought that the reduction was due more to the coronary artery disease than to the heart attack. Professor Keogh agreed with Professor O’Rourke’s estimate of Mr Pharaoh’s reduced life expectancy. But she attributed “more than half the discount in life expectancy [to] the heart attack”:
There was a plaque rupture. There was a heart attack. There is a scar. There is a scar there still and it has ramifications for the future. … [T]he fact that he’s got a scar means that if he ever has another heart attack, which is perfectly likely, the fact he’s had one means it’s possible to have another, and it makes his future far more complicated, and it also poses the risk of rhythm disturbances—malignant disturbances in the heart, which he did demonstrate seven years after his heart attack. So the scars that resulted from the heart attack, which continue to today, has ramifications for his future.
Professor Keogh continued:
Having had myocardial infarct and having the scar, he is at much greater risk, obviously, than had he not had a myocardial infarct. The treatments that he’s on at present, which number three cardiac-specific therapy, plus Aspirin, if they were just was just in a person who had high cholesterol, high blood pressure, and we could control those risk factors, they would have a certain—they would offer him a certain amount of risk reduction in the future for death or for heart attack. But having had a heart attack, his risks are much higher, his risks are more than double of dying prematurely and having further heart attacks, and so the benefits that these drugs are offering him are more than double what it would if he was just taking it for primary—what’s called primary risk reduction. So having had a heart attack is secondary risk reduction, if he hadn’t had a heart attack it would be primary, and all his risks are doubled because of the heart attack and hence the importance of the medications is more than doubled.
Professor O’Rourke disagreed:
I don’t know that I’d go so far as to say more than double. He does have—I expect that with the risk factors not well-controlled up until now, his risk is still high and is cumulative and it could be brought down from any number that you think about, if his cholesterol were lower, if his blood pressure was lower, if his weight was lower, and in those areas I think it’s the preventive measures are not being effectively applied.
Professor Keogh said that it was not possible to normalise Mr Pharaoh’s risk—to reduce his level of risk to that of a person who had not had a heart attack:
… having had a heart attack, your risks are going to be higher of sudden death, hospitalisation, fatal or non-fatal further myocardial infarction, and you can’t actually normalise those risks against someone who doesn’t have—who hasn’t had an infarct.
She said that, in such circumstances, medication cannot diminish the risk of death by “more than about 25 per cent”. Professor O’Rourke disagreed. When asked whether it is possible to normalise Mr Pharaoh’s risk, he answered:
If a person tries hard enough, yes indeed. In fact, the first heart attack can be a stimulus to a person to realise that they’ve got an underlying condition which is well advanced and that they’re likely to have further episodes down the track.
Professor O’Rourke said that Mr Pharaoh’s “risk factors [were] not well-controlled up until now” and that “his risk is still high”.
Dr Gorman reported[10] that Mr Pharaoh’s heart attack had resolved by 2004 (when he had an angiogram) and that he remains asymptomatic. At the hearing, he agreed that the heart attack had reduced Mr Pharaoh’s life expectancy, though he said that it may have been reduced by a small amount—possibly even zero. In his view, Mr Pharaoh’s heart attack merely made it clear that he was in an epidemiological class of people who may suffer a heart attack in the future: “he jumped from having two risk factors for coronary artery disease” (high blood pressure and high lipid profile), “to having three risk factors”. The heart attack, he said, demonstrated that Mr Pharaoh has heart disease and, therefore, a reduced life expectancy.
[10] 25 November 2013.
I have difficulty reconciling parts of Dr Gorman’s evidence. As noted above, Dr Gorman said that a person who has experienced ventricular tachycardia has a greater risk of experiencing it again (and a greater risk of sudden death) than a person who has never suffered a heart attack.[11] I do not understand how the effects of a heart attack could be said to have resolved if a person who has suffered a heart attack and subsequent episodes of ventricular tachycardia—like Mr Pharaoh—has a (continuing) greater risk of sudden death than a person who has not. In such circumstances, the heart attack must have reduced Mr Pharaoh’s life expectancy, even if only by a small amount. That means that the heart attack does not merely signify heart disease: the risk of sudden death is greater because of the heart attack.
[11] See [25]–[26] above.
I have a similar difficulty with parts of Professor O’Rourke’s evidence. He takes a different view than do Professor Keogh and Dr Gorman about the significance of ventricular tachycardia. He (like Dr Gorman) says that Mr Pharaoh’s heart attack has long since resolved, largely because of the acute thrombolytic treatment he received soon after the heart attack. And Professor O’Rourke says that Mr Pharaoh’s treatment is to prevent another heart attack. Yet he estimates that a combination of coronary artery disease and (to a lesser extent) the 1996 heart attack has reduced Mr Pharaoh’s life expectancy by almost 24 per cent. And he says that it is possible for someone like Mr Pharaoh to reduce his level of risk to that of a person who had not had a heart attack, though Mr Pharaoh has not done so. I do not understand how the effects of a heart attack could be said to have resolved if a person who has suffered a heart attack has a (continuing) greater risk of another heart attack, because of the earlier heart attack.
I have already explained why I prefer the evidence of Professor Keogh, Professor O’Rourke and Dr Gorman to the evidence of Dr Coles and Mr Pharaoh’s GPs.[12] Because of the difficulties I have had reconciling parts of Professor O’Rourke’s evidence and parts of Dr Gorman’s evidence, I prefer the evidence of Professor Keogh to the evidence of Professor O’Rourke and Dr Gorman.
[12] See [21] above.
Further findings
Having regard to the medical evidence, I make the findings set out in [40]–[44] below, on the balance of probabilities. I note that these findings are entirely consistent with Professor Keogh’s evidence, and consistent with parts of the evidence of Professor O’Rourke and Dr Gorman.
The scarring in Mr Pharaoh’s left ventricle increases his risk of another heart attack.
Other parts of Mr Pharaoh’s heart are compensating for the scarred part of his heart. As a result, his overall ventricular contractility is within normal limits, and has been since April 2004, at the latest. This means that his left ventricular scar does not cause any functional incapacity. However, this compensation increases his risk of ventricular tachycardia.
Mr Pharaoh suffered ventricular tachycardia at the time of his heart attack, and in November 2003. These occurrences increased the risk of further occurrences of ventricular tachycardia. And these occurrences were both caused by the scarring due to his heart attack.
The Enalapril and Metoprolol that Mr Pharaoh has been taking continue to contribute to the compensatory action of his heart. This reduces Mr Pharaoh’s risk of further ventricular tachycardia, and his risk of another heart attack.
Further ventricular tachycardia or another heart attack could cause sudden death.
It follows from these findings that Mr Pharaoh continues to suffer the effects of his 1996 heart attack.
Compensation in respect of medical expenses: s 16 of the SRC Act
Under s 16 of the SRC Act, Comcare is liable to pay compensation in respect of the cost of medical treatment that is:
·obtained in relation to an injury; and
·reasonable for the employee to obtain in the circumstances.[13]
[13] See [12] above.
Medical treatment obtained in relation to an injury
In Howes v Comcare, the question arose whether specified surgery was medical treatment obtained “in relation to” the applicant’s compensable injuries for the purposes of s 16. The Federal Court explained:
The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. … [I]n order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries … I consider that [Dr David Maxwell’s evidence] was relevant to the prior question whether the surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT’s conclusion that the surgery was not in relation to the injuries is more accurately described as “an evaluative conclusion” based on primary facts …[14] The subjective views of either the applicant or her medical advisors were not determinative. …
It was a matter for the AAT to consider and weigh the conflicting relevant medical evidence … The AAT’s finding … that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries was substantially based upon the AAT’s preference of Dr Maxwell’s opinion to those of the applicants’ five medical practitioners. In making [a finding that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries], I do not consider that the Senior Member misconstrued s 16 of the SRC Act. On the contrary, he plainly proceeded on the basis that there needed to be an appropriate relationship between the medical treatment and the compensable injuries and, in that context, consideration was given to all the relevant medical evidence before the Senior Member concluded that he preferred that of Dr Maxwell.[15]
I have adopted the same approach in making the findings at [40]–[44] above. I must now come to an evaluative conclusion, based on facts I have found, about whether the medical treatment Mr Pharaoh has obtained was obtained “in relation to” his heart attack, for the purposes of s 16.
[14] Citing Comcare v Martinez (No 2) (2013) 212 FCR 272 at 295 [88] per Robertson J.
[15] Howes v Comcare [2016] FCA 1521 at [54]–[55] per Griffiths J. See also at [44]–[53] on the meaning of “in relation to” in s 16 of the SRC Act.
Comcare says:
… the purpose of the legislation is to rehabilitate and compensate in relation to injuries that arise out of or in the course of employment. The purpose of the [SRC] Act is not to compensate people for risk, or likely future consequences, or underlying conditions that bear no relationship to former employment, such as underlying coronary artery disease or its sequelae. So, … applying the phrase “in relation to” in this case needs to take into account that there needs to be some sort of relational context between the employment and the treatment under claim.
I disagree. Section 5A(1)(b) of the SRC Act requires a relationship between employment and an injury: it applies to an “injury arising out of, or in the course of, the employee’s employment”. And s 16 requires a relationship between that injury and medical treatment: it applies to “medical treatment obtained in relation to the injury”. But applying the phrase “in relation to” in s 16 does not involve consideration of a relationship between the employment and the treatment—except indirectly via the injury: between the employment and the injury, then between the injury and the treatment.[16]
[16] Comcare may have conceded as much at the hearing: “Admittedly [the phrase “in relation to” is applied] through the prism of the injury that may or may not have been accepted, but must have a relationship to employment”.
It follows that I also disagree with Comcare when it says that (in applying s 16) it is relevant that “[t]he reason why [Mr Pharaoh] suffered a heart attack was not because of work, it was because of his underlying coronary artery disease”. Comcare accepted liability because Mr Pharaoh suffered his heart attack while he was at work. Applying s 16 involves considering whether the medical treatment was obtained in relation to that injury, without further consideration of connection to employment. Comcare is right when it says that it is not liable to compensate Mr Pharaoh for medical treatment obtained in relation to Mr Pharaoh’s underlying coronary artery disease or its sequelae. But that is because his underlying coronary artery disease is not an injury: it has no relationship to his employment.[17] It is not because of a lack of a relationship between his employment and his treatment.[18]
[17] Section 5A(1)(a) of the SRC Act provides that “injury” includes “a disease suffered by an employee”. Section 5B(1) provides that “disease means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee’s employment …”
[18] In support of its argument, Comcare referred me to the Tribunal’s decision in Stacey and Comcare [2015] AATA 386, in which Humphries DP said (at [15]): “The combined effect of s 16 and the definition of injury in s 5A is that Comcare is liable to meet the costs of the reasonable treatment Mr Stacey incurs ‘in relation to the injury’ he suffered ‘in the course of [his] employment’”. Later, the Tribunal concluded (at [23]) that “the connection between the employee’s employment and the need for these medications is very slight”. (See also [52] below.) I do not take the Tribunal to be saying (in these passages, or elsewhere in Stacey) that applying the phrase “in relation to” in s 16 involves consideration of a direct relationship between employment and treatment.
Section 4(1) of the SRC Act defines “medical treatment” to mean (amongst other things) “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”. In Bashar v Comcare, the Federal Court explained:
… in the context of a statute such as this, the notion of “therapeutic” might well also include … treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing.[19]
So, treatment can be medical treatment, for the purposes of s 16, if it prevents an effect of a compensable injury from appearing.
[19] (2002) 69 ALD 784 at 785 [9] per Madgwick J.
Comcare says the treatment Mr Pharaoh is receiving is in relation to his underlying coronary artery disease, and points out that that is not an injury in respect of which Comcare has accepted liability—the accepted injury is his heart attack. No doubt the medication he is taking treats his underlying coronary artery disease.[20] But, it also reduces the risk of him suffering further ventricular tachycardia or another heart attack, both of which were made more likely by his 1996 heart attack.
[20] Professor O’Rourke said that Mr Pharaoh’s treatment is prophylactic treatment to prevent another heart attack: see [29] above. Professor Keogh said that the treatment addresses the risks that arise because of his underlying coronary artery disease and his heart attack: see [32].
Comcare also says that, because the treatment Mr Pharaoh is receiving is intended to prevent a possible future heart attack, it is not treatment obtained in relation to the 1996 heart attack. It is, Comcare says, treatment obtained in relation to a possible future injury and not the compensable injury. Comcare says that Mr Pharaoh’s case is indistinguishable from Stacey and Comcare, in which Mr George Stacey had suffered a stroke while at work. The Tribunal considered whether Comcare was liable to pay Mr Stacey compensation, under s 16, for medication that would reduce his risk of another stroke. The Tribunal said:
The connection with employment is even more attenuated with respect to treatments to prevent a future recurrence of the stroke. Again, there is a link by virtue of the subject matter, but the scheme of the legislation does not appear to embrace preventative steps by the Commonwealth to guard against future injury, whatever the merits of such an approach in a public policy sense. For the purposes of the Act, treatment to reduce the likelihood of future strokes cannot be said to be treatment “in relation to” a previous stroke, though treatment of the latter might incidentally be efficacious of the former.[21]
Comcare says that “the mechanism of injury in relation to the stroke is analogous to the mechanism of the heart attack”. There is no evidence before me that supports that assertion. Mr Stacey suffered from thrombocythaemia, which probably contributed to the stroke that he suffered, and increased the risk of him suffering another.[22] But his stroke did not increase the risk of him suffering another.[23] The mechanism is different in this review: the scarring in Mr Pharaoh’s left ventricle (caused by the 1996 heart attack) increases his risk of suffering another heart attack. So, treatment that reduces that risk is treatment that prevents an effect of the compensable injury from appearing.
[21] Stacey and Comcare [2015] AATA 386 at [20] per Humphries DP.
[22] [2015] AATA 386 at [7]–[8] per Humphries DP.
[23] [2015] AATA 386 at [29] per Humphries DP.
The medication Mr Pharaoh takes reduces his risk of further ventricular tachycardia, and his risk of another heart attack. It prevents effects of his 1996 heart attack (ventricular tachycardia or another heart attack) from appearing. It is treatment for prophylactic or preventative purposes, and medical treatment for the purposes of s 16.
Comcare points out that there is no evidence that Mr Pharaoh has suffered a heart attack since 1996, or suffered ventricular tachycardia since 2004. And there is little evidence about the state of his heart since 2005. That is why I have not found that it is likely that Mr Pharaoh will suffer further ventricular tachycardia or another heart attack. I have found, on the balance of probabilities, that his heart attack increased the risk of him suffering further ventricular tachycardia or another heart attack. The medical experts disagree about the extent of that increased risk.[24] But that increased risk (whatever its extent) means that medical treatment obtained to reduce that risk is medical treatment obtained “in relation to” Mr Pharaoh’s 1996 heart attack.
[24] See [32]–[33] above.
Medical treatment that is reasonable to obtain
It is reasonable for Mr Pharaoh to obtain treatment that reduces the risk of him suffering further ventricular tachycardia or another heart attack. I have found that Enalapril and Metoprolol reduce that risk.[25] It follows that these medications are medical treatment that it is (and was) reasonable for him to obtain in the circumstances.[26]
[25] See [43] above.
[26] The evidence before me relates to Enalapril and Metoprolol, but there may be other medications (including medications that Mr Pharaoh is currently taking) that also reduce the risk of him suffering further ventricular tachycardia or another heart attack, and which would also be reasonable for him to obtain.
Costs
Section 67(8) of the SRC Act provides:
(8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
In this review, Mr Pharaoh is the claimant and Comcare is the responsible authority.
My decision in this review involves setting aside a reviewable decision and making a decision in substitution that is more favourable to Mr Pharaoh. Accordingly, I order that the costs of the proceedings in this review be paid by Comcare.
Conclusion
Mr Pharaoh continues to suffer the effects of his 1996 heart attack. The heart attack reduced his life expectancy, by increasing his risk of sudden death due to ventricular tachycardia or another heart attack.
Treatment obtained to reduce the risk of Mr Pharaoh suffering further ventricular tachycardia or another heart attack is treatment obtained in relation to his injury (his 1996 heart attack). It is reasonable for Mr Pharaoh to take medications that reduce that risk.
Comcare is still liable to pay compensation to Mr Pharaoh under s 16.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple
........................................................................
Associate
Dated: 27 September 2017
Dates of hearing: 2–3 August 2017 Counsel for the Applicant: Mr Karl Pattenden Solicitors for the Applicant: Slater and Gordon, Lawyers Counsel for the Respondent: Mr Peter Woulfe Solicitors for the Respondent: Sparke Helmore, Lawyers
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