Saracino v Secure Events and Assets Pty Limited
[2022] NSWPIC 521
•21 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Saracino v Secure Events and Assets Pty Limited [2022] NSWPIC 521 |
| APPLICANT: | Addolorata Saracino |
| RESPONDENT: | Secure Events and Assets Pty Limited |
| Member: | Elizabeth Beilby |
| DATE OF DECISION: | 21 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for lump sum benefit; consideration and determination of the factual environment the deceased was in at the time he suffered a fatal cardiac event; Held – on the balance of probabilities that the deceased suffered a disease injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 and that employment was the main contributing factor to the aggravation, acceleration, exacerbation of a disease as the result of activity at the concert. |
| determinations made: | 1. Eddie Silvio (the deceased) suffered an injury by way of aggravation of an underlying disease (s 4(b)(ii) of the Workers Compensation Act 1987). 2. There was no person who was dependent upon the deceased at the date of death. 3. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $758,750 4. The lump sum of $758,750 is to be paid directly to the Estate of the late Eddie Silvio pursuant to s 85A of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Eddie Silvio (the deceased) was employed by Secure Events and Assets Pty Ltd (the respondent) as a security guard.
On 8 December 2018 he was directed to attend a music festival concert at Parramatta Park, New South Wales.
The deceased was required to stand between the stage and a metal barrier which held back the crowd.
Later in the afternoon the crowd had been pushing forward on the metal barrier towards the stage. Whilst the exact behaviour of the crowd in not obvious, there is no dispute that verbal control was required to tell the crowd to step back.
Mr Silvio left the stage area, took a few steps to have a drink and then appeared to collapse.
Unfortunately, Mr Silvio was unable to be revived and died later that evening.
There is no dispute that the deceased had an underlying condition by way of atherosclerotic coronary disease or that the cause of his death was a fatal cardiac arrythmia.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) did the applicant suffer an injury by way of aggravation of an underlying disease (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)).
MATTERS NOT IN DISPUTE
It was conceded by the respondent that if it was found that the deceased did suffer an injury falling within s 4(b)(ii) of the 1987 Act then they would also have satisfied s 9A of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply to the Application to Resolve a Dispute, and
(c) Application to Admit Late Documents (late documents) from the respondent dated 18 August 2022.
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.
Consideration - the claim
Section 4(b)(ii) of the 1987 Act provides:
“4 Definition of ‘injury’
(a)…
(b)includes a ‘disease injury’ , which means--
(i) …
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…”
The respondent’s position is that whilst it is conceded Mr Silvio suffered a fatal heart attack injury at work, his employment did not give rise to a significantly greater risk of that heart attack nor was his employment the main contributing factor to that injury. Accordingly, it was submitted by the respondent that there was no entitlement to compensation pursuant to ss 25 and 26 of the 1987 Act.
EVIDENCE
I will now turn to the evidence that has been filed in this dispute.
Samantha Carter
Samantha Carter was a fellow security guard who was employed at the same time and at the same premises as the deceased. She has prepared a statement dated 16 June 2020.[1]
[1] Application page 91.
Ms Carter observed the deceased to appear healthy and without showing any signs of physical distress before the index event.
Ms Carter observes that early in the evening a band was playing, and the crowd was becoming excited and pushed forward on the metal barrier. There was no breaking of the barrier, and the deceased did not have to physically force back patrons however there was verbal control by security guards yelling at the crowd to step back.
Ms Carter saw the deceased leave the stage area, take a few steps to the stage to have a drink and collapsed to the side. The deceased worker was having what looked like a small seizure.
Mc Carter appears to have been assisted in providing her statement by QuantumCorp investigators.
The history in relation to providing a statement to the police is contained not in her statement but in body of the report from QuantumCorp Investigations at page 5.[2] The history is this:
“She provided a report to the police and thought she was the only person to do so as she was the only witness to what occurred”.
[2] Application page 88.
The importance of this is that there is some history of the index event contained in the police notes however it is not entirely clear who provided that history. By inference it appears to be Samantha Carter as she is referenced as “INF” which is well known to mean informant as to the factual matters the police outline in their narrative.
The entry in the QuantumCorp report is consistent with Samantha Carter indeed providing the history to the police as her understanding that she was the only person to see what actually occurred. I observe that the history contained in the police notes was more contemporaneous than the statement.
NSW Police Force
Documents were produced by the NSW Police Force in relation to the index event.[3]
[3] Late documents page 3.
In the documents, as previously outlined, Samantha Carter is listed as an ‘INF”. The following entry is contained in the notes[4];
“She states that the Deceased showed no sign of illness during the day where they were allocated to crowd control for stages 3 & 4. The Deceased appeared jovial and normal during the day. She had worked with the Deceased on about 5 or 6 prior occassions and noticed nil out of the ordinary.
Between 1700-1745 the two were in the vicinity of the front of stage 3 for the band ‘Tonight Alive’. Just before the incident the pair had stopped the crowd surfing in the area. The deceased had a silver travel style mug. He had a sip from the mug. Very shortly after the Deceased collapsed and began to convulse.”
[4] Late documents page 14.
It is therefore easy to attribute the information contained therein to Ms Carter.
There is other information in the produced documents which are relevant to the dispute, in particular describing the environment immediately prior to the Mr Saracino collapsing.
The relevant excerpt commences[5]:
“About 5.44 pm, the deceased was working and one of the performers on the stage behind him has signalled for the patrons give the performer a 'high five'. Due to this, the patrons have reached over the fence separating the patrons and the performers. This activity is believed to have been 'frantic' with the deceased needing to push the patrons back into their area to stop them from climbing over the fence.
The 'frantic' activity of the patrons has ceased, and the deceased has stopped needed to push them back. As this was occurring, the deceased has walked backwards to a large speaker, fallen to the ground and started to have a seizure. A nearby security worker, Samantha CARTER has seen the deceased seizure and has called for urgent assistance from fellow security guards. A unknown person has then called 000 and an urgent call has been put over police radio. CARTER has stated that when she saw the deceased, she believed that the deceased was choking and as such, placed him in the recovery position.”
[5] Late documents page 11.
The documents do not readily discern who has provided this description of events. The applicant submitted that I should infer that it was Ms Carter who provided this description.
I agree and do make the inference that it was Ms Carter that provided this relevant and contemporary history. The three primary reasons that I do so is that firstly she is described as “INF” in the police documents, that is Informant, ie providing relevant information. The second reason is the history contained in the QuantumCorp report that she provided a statement to police and thought she was the only one to do so. The third reason (and also to lesser extent) is that she is the only person identified as being near the deceased at the relevant time.
Medical evidence
Autopsy report for the coroner
An autopsy report was prepared for the coroner and is attached to the Application.[6] The report finds the cause of death was ischemic heart disease on a background of marked left ventricular hypertrophy.
[6] Application page 56.
The report summary also has some history as to the event however it is not apparent where this history was taken from. It is as follows:
“The deceased had previously undergone a gastric sleeve surgery for weight loss. No other past medical history is known, and the deceased’s regular doctor is also unknown. It is also noted the deceased was a smoker.
On 8 December 2018, the deceased was working as a security guard for a music festival at Parramatta Park. At 5.44pm the deceased was noted to attempt to prevent the festivalgoers getting on to the performance stage. This involved physically straining and pushing people backwards. Immediately after this, the deceased walked backwards, fell to the ground and appeared to suffer a seizure, which was noted by another nearby security guard. Emergency services were called, and resuscitation was attempted by police officers at the scene.”
Associate Professor Richard Haber
Associate Professor Richard Haber has prepared a report at the request of the applicant’s solicitors dated 2 September 2021.[7] Associate Professor Haber has a history that the deceased was not required to physically restrain the crowd however there was verbal control by yelling for the crowd to step back. This is a history which is consistent with the evidence of Ms Carter.
[7] Application page 26.
Associate Professor Haber also has a history which the coroner understood which was that the deceased was involved physically restraining and pushing the festival goers.
It is without contention that the deceased had evidence of severe aortic stenosis causing marked left ventricular hypertrophy, patchy myocardial fibrosis and significant cardiomegaly. In addition there was severe stenosis of the right coronary artery and to a lesser degree involvement of the other two main coronary arteries.
The coroner had concluded that the pathological findings were likely to have acted in concert to cause a fatal cardiac arrythmia with sudden collapse and death.
Associate Professor Haber also had an understanding of the produced police documents which included descriptions of patrons reaching over the fence separating the patrons and the performers after being invited by the performer to do a “high five”. The activity was believed to have been “frantic” with the deceased needing to push the patrons back into their area to stop them climbing over the fence.
It was Associate Professor Haber’s opinion that the circumstances gave rise to a significantly greater risk of the deceased suffering from a cardiac event as he had been involved in a highly stressful situation with the crowd becoming frantic and the guards having to shout at the top of their voices to control the crowd without any actual physical contact. The event was described as causing the deceased to be affected by a stressful environment and as such the high stress was both physical and emotional.
Associate Professor Haber explained that the applicant did have a severe underlying cardiac problem as well as a blockage of a bicuspid aortic valve as well as significant stenosis of the right coronary artery. It is well known that both of these conditions are known to cause sudden cardiac death due to the fatal type of cardiac arrythmia of the type that the deceased had. Associate Professor Haber describes the situation as being similar to a barbecue being prepared and all that was needed was a minor fire to get things going. It was therefore more likely than not that even a minor stress could cause a sudden death.
Associate Professor Haber accepts that Mr Silvio was always at a significantly higher risk of a cardiovascular event given his pre-existing bicuspid aortic valve disease in association with the left ventricular hypertrophy and a blockage of the right coronary artery. He had however no apparent earlier warning of any advance cardiac problem and the stressful situation of working as a security guard in a loud and stressful environment with frantic public was just enough emotional and physical stress to cause more likely than not an arrythmia which could and was fatal.
It is on that basis that Associate Professor Haber finds that that those circumstances were likely to trigger the cardiac event.
Dr Mark Herman
Dr Herman has prepared a report dated 22 July 2022 at the request of the respondent’s solicitors[8]. In that report he understood that the deceased worker did not have to physically force back patrons but was involved in verbal control by yelling at the crowd to step back.
[8] Reply page 98.
Dr Herman considered the autopsy report and explained that in patients with severe aortic stenosis of whatever cause (in Mr Silvio's case, due to a bicuspid rather than trileaflet aortic valve), there is a very definite risk of sudden death occurring either with or without exertion. That is the deceased's physical activities on the day that he died were not of sufficient intensity to provoke sudden cardiac death. The pre-existent severe aortic stenosis with a resultant severe left ventricular hypertrophy provoked a high-risk situation for sudden cardiac arrest (as detailed above) and was the ultimate cause of his death.
Dr Herman opined that the process of controlling a crowd surging forward by issuing verbal instruction would not appear to be sufficiently stressful (physically or emotionally) to trigger the arrhythmia (to which he was always predisposed).
Dr Herman has prepared a supplementary report dated 16 August 2022[9] after being provided with both the police report and Professor Haber’s opinion. He maintains his previous opinion that work was not associated with a significant increased risk of a sudden cardiac death. Whilst Dr Haber opines that sudden cardiac death can be "triggered" by significant physical and emotional stress it was his opinion that Mr Silvio did not experience sufficient physical or emotional stress to have put him at particular risk on the day of his premature death.
[9] Late documents page 1.
It appears that Dr Haber relies upon factual assumptions that Mr Silvio was accustomed to this type of work and did not have to physically force back patrons but was involved in verbal control by yelling at the crowd to step back. This would not appear to be particularly emotionally stressful and unlikely to provoke sufficient stimulus to provoke a sudden cardiac death in someone accustomed to this role.
Helpfully Dr Herman states that it was proven that the crowd were indeed "frantic" and that if Mr Silvio was involved in physically restraining the crowd, he would be happy to review his assessment.
Consideration and determination
The applicant claims Mr Silvio suffered an injury pursuant to s 4(b(ii) of the 1987 Act. There is no dispute that the suffered from undiagnosed bicuspid aortic valve disease with severe left ventricular hypertrophy and associated coronary artery disease ( which was not work related)..
I am required to consider whether employment was a material contributing factor to the death.
Having regard to Deputy President Snell’s observations in AV v AW,[10] which provides authority of what is required in determining the main contributing factor to the injury in accordance with s 4(b)(ii) of the 1987 Act, the Deputy President said that:
“(a) The test is one of causation;
(b) A more stringent connection with employment was required than required in s.9A of the 1987 Act; which required the connection to be a substantial contributing factor;
(c) The test involves a consideration of whether there were competing work and non-work-related factors and following an evaluation of the causal factors, the employment was the main contributing factor;
(d) Medical evidence of whether the test as satisfied is both relevant and desirable”
[10] [2020] NSWCCPD 9.
As observed by Roche DP in State Transit Authority of NSW v Elatchi,[11] if an expert does not address the ultimate legal question requiring determination, it is not fatal, and the Arbitrator or Member must determine the issue of injury using evaluative process and having regard to the evidence as a whole.
[11] [2015] NSWCCPD 71.
To my mind, determination of the dispute turns upon findings and characterisation of what occurred immediately before the index event. This is because both experts agree that with Mr Silvio’s underlying condition, sudden cardiac death could be "triggered" by significant physical and emotional stress.
The starting point must be the signed statement of Ms Carter. This was signed in June 2020. Ms Carter describes that the crowd became “very excited”. She says the crowd were pushing forward on the metal barrier and that the security guards were ‘yelling’ at the crowd to step back.
Curiously in her statement, Ms Carter says that there was no physical contact between the deceased and the barrier or the crowd. This is despite the metal fence barrier being only around waist height and the crowd being very excited.
I want to make it clear, I am not being critical of Ms Carter’s evidence, just making an observation as memories can be fallible over time. Certainly the report that she gave police that the pair (meaning herself and the deceased) had to stop crowd surfing in the area just before the incident leads to an inference that the crowd was indeed excited and maybe the description of “frantic” could well be apt.
The more contemporaneous history of the events would be in the police documents which was taken on or about the time of the date of death. It is significantly more contemporaneous than the statement of Ms Carter which was taken in 2020.
The police report refers to the crowd being “frantic” and indeed that word is used on more than one occasion. It identifies the deceased as being required to push patrons back into their area and stop them from climbing up on the fence. This is an entirely different characterisation as that contained in Ms Carters statement.
The police report also provides a context relating to the crowds “frantic behaviour”. It described the performer signalled to the patrons to give the performer a “high five”. This then meant that the deceased needed to push patrons back into their area to stop them climbing over the fence. This sounds like a plausible occurrence given the invitation by the performer.
I place greater reliance on the evidence contained in the police narrative than the 2020 statement due to its contemporaneous nature.
I make the following findings of fact based on the evidence before me. I find that the crowd was indeed frantic before the event. We have the history that the crowd was invited to high five the performer and there is no doubt that this would have incited the crowd to respond to such an invitation and more likely than not involve them pushing forward against the metal barrier. The deceased was then in a position where he had to yell at the crowd to stop them pushing and breaking the barrier. The circumstances of such an event, would be characterised by the word “frantic” that is, it was loud, boisterous and there was some physical involvement even if it was only just maintaining the barrier line as opposed to pushing patrons back.
This would without doubt cause both physical and emotional stress as there is no doubt that the deceased interacted with the ‘frantic ‘crowd.
Dr Herman’s opinion relies on an assumption that there wasn’t sufficient physical or emotional distress to put the deceased at risk of a premature death. Dr Herman also, to make it quite clear, says that he would review his decision if it was found that there was some physical involvement.
As Dr Herman has based his opinion on the statement if Ms Carter, which only involved verbal instruction, his opinion is of little assistance in this determination.
Associate Professor Haber, supports the applicants case, even in circumstances where there was no physical interaction between the deceased and the crowd. I therefore rely upon his opinion and find in favour of the applicant.
SUMMARY
So, in this matter I have determined, having regard to the whole of the evidence, that I feel an actual persuasion of the existence of the fact that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of s 4(b)(ii) of the 1987 Act.
I find on the balance of probabilities that the deceased suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act and that employment was the main contributing factor to the aggravation, acceleration, exacerbation of a disease as the result of activity at the concert.
There was no person dependant upon Mt Silvio as at the time of his death and as such the lump sum benefit is to be paid to his Estate (the Administrator being the named applicant).
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