Shehata, S.I v Australian Postal Corporation

[1993] FCA 647

SHEHATA IBRAHIM SHEHATA v. AUSTRALIAN POSTAL CORPORATION
No. VG415 of 1992
FED No. 647
Number of pages - 7
Workers Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
HEEREY J

CATCHWORDS

Workers Compensation - heart attack suffered at home after several days absence from work - existence of pre-existing conditions - contribution of workplace "stress" to injury - actual physical injury - fracture of the lining of the artery - whether any question of law raised by appeal.

Administrative Appeals Tribunal Act 1975 s.44(1)

Commonwealth Employees' Rehabilitation and Compensation Act 1988 ss.6(1)(b)(i), 62 (1)(a), 62(5), 64(1)

Commonwealth v Borg (Full Federal Court, 15 November 1991, unreported)

Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267

Hume Steel Ltd v Peart (1947) 75 CLR 242

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

HEARING

MELBOURNE, 23 and 24 August 1993

#DATE 16:9:1993

Counsel for the applicant: Mr S Spittle

Solicitor for the applicant: McMullin, Coate and Co

Counsel for the respondent: Mr M McInnis

Solicitor for the respondent: Sparke Helmore Withycombe

ORDER

The Court Orders:

1. The appeal is dismissed.

2. The applicant pay the respondent's costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

HEEREY J The applicant is an employee of Australia Post. He suffered a heart attack and sought compensation under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the Act"). An initially favourable determination was subsequently revoked and the revocation affirmed by the Administrative Appeals Tribunal ("the Tribunal"). He now appeals to this Court. That appeal of course is confined to questions of law: Administrative Appeals Tribunal Act 1975 s.44(1).

1. The Tribunal constituted by Mrs R A Balmford Senior Member, Mr B H Pascoe Member and Professor R W Webster Member handed down its decision on 14 October 1992.

2. Much of the argument before me was concerned with the way the Tribunal dealt with the evidence. It will therefore be convenient at the outset to set out substantial parts of the Tribunal's reasons. At the same time the essential factual history will emerge. To facilitate understanding I have included some sub-headings and editorial descriptions.
   (Findings of Fact)
   

7. On the basis of the evidence before us, we find the facts set out in this and the following five paragraphs. Mr Shehata, who was born in Egypt in 1939, came to Australia in

1972. He began work as a mail officer with the respondent in 1973. After promotion to Senior Mail Officer (`SMO'), he was appointed in 1985 an Acting Mail Processor Controller

(`MPC') at the State Mail Centre at Port Melbourne. A number of other employees held similar positions, and were rostered to supervise, priority being given to those ranked first on the list. From 1985 to 1988, Mr Shehata's name was first on the list, which gave him a higher probability of being appointed to act in a supervisory position. In 1988 he was displaced to second position, in 1991 to third position and in 1992 to fourth position. As a supervisor, he had problems with his superiors and with his subordinates.

8. Mr Shehata's duties, whether as an SMO or as an Acting MPC were physical as well as supervisory. Overtime was available to him as an SMO as well as an Acting MPC, and he took all overtime available to him. From 1985 to 1988 he was an Acting MPC for three years continuously but had fewer opportunities after 1988, when he was placed lower on the list. In 1988 he failed to be selected for a training course for MPC's, which could have led to permanent promotion, and he resented this. He has continued to resent that he has not achieved permanent promotion to MPC. He has complained to his supervisor about this matter, but has never complained to him about the mental stress of performing supervisory duties or about the physical pressure of the job although he did complain about the physical work to his leading hand.

9. In 1983 Mr Shehata consulted Dr McCleave (general practitioner) with headaches, and was prescribed Aldomet for his blood pressure. His blood pressure has continued to be controlled with that medication. He has had mild asthma since 1974, which is controlled: he only occasionally needs Ventolin. In August 1989 he complained to Dr McCleave of headaches which he said were caused by tension and stress at work, and similarly in 1990. In 1989, because of a crisis in his relationships at home, Dr McCleave referred him to Dr Wood (psychiatrist) who saw him four times, `tried medication and encouraged him to regard his work more philosophically'. He has sought no other psychiatric consultation. He did not complain to Dr McCleave about the physical aspect of the job.

10. In August 1990 Mr Shehata began to feel chest pain and shortness of breath on exertion at work, which was relieved if he ceased exertion. On 3 September he felt chest pain after walking more than 50 metres, and had to stop until he recovered. It would appear that it is this occurrence which is referred to on the accident report form and witness statement which were lodged in support of the claim form from which the proceedings derive. No doubt this accounts for the reference to '3 September 1990' in the decisions under review.

11. On Tuesday, 11 September 1990, Mr Shehata had a brief argument with a subordinate. He was upset by this for the rest of the day, and began to feel pain in his chest. However, he continued to work for the remainder of the shift, with some assistance in the physical work. He stayed home on 12 September, but could not see Dr McCleave until 13 September. Dr McCleave referred him to a cardiologist and made an appointment for Monday, 17 September. He rested over this period, apart from doing some shopping on the Saturday.

12. On Sunday night, 16 September, Mr Shehata was woken from sleep by severe pain and was admitted to the Royal Melbourne Hospital where he was diagnosed as suffering from anterior myocardial infarction, unstable angina, cholesterol 7.2 and hypertension. A coronary artery bypass was performed by Mr Skillington at Epworth Hospital on 27 September.

13. Mr Shehata returned to work in November 1990 and after two weeks on light duties returned to his normal duties. Since then he has been placed lower on the list of Acting MPC's.

(Summary of Medical Evidence)

14. Dr Wood said in his report of 14 May 1992: "Mr. Shehata was referred to me by Dr. P.J. McCleave in August 1989. He complained that he was becoming very nervous and irritable. He mentioned work frequently. He worked as a supervisor and found the laziness of some of the employees frustrating. He also mentioned he felt there had been sudden major reorganisations of his work which had not achieved anything and which made him angry. He felt that others with less ability than him had been promoted ahead of him. This anger had involved his home life and he confided that he had felt like hitting his wife as she was demanding entertainment all the time. Nevertheless, the main source of his dissatisfaction was work."

15. At the hearing Dr McCleave said that he formed the view, from blood pressure readings, that when Mr Shehata talked about work he became angry. He said that Aldomet, which Mr Shehata was using to control his hypertension, can make people irritable. He did not consider that Mr Shehata was suffering from a chronic anxiety state.

16. Dr Parker (psychiatrist called by applicant) concluded in his report of 2 April 1992:

'Mr Shehata is a classical example of what is described as an obsessional personality and people with his temperament are usually well controlled and keep their feelings in check as much as possible. He found that the change in attitude towards work among the men he was supervising was disturbing him and when he had a disagreement or a worry about work his blood pressure would rise. After an argument on 11th September 1990 he became particularly upset and shortly afterwards had his first heart attack. ...

There is strong evidence in the scientific literature of an association between obsessional people and the development of heart attacks and this has certainly been my experience in psychiatric practice. Although there have been other, perhaps more important contributing factors, it cannot be denied that work stress has played a significant part in the development of this man's heart attack.' At the hearing he said that stress can raise blood pressure, with a transient effect. The argument at work on 11 September had been the final straw, raising Mr Shehata's blood pressure above what it already was: possibly after exacerbation by physical effort."

17. Dr Stock (cardiologist called by applicant) said in his report of 28 February 1992:

'CONCLUSION:

He suffers from hypertension and labile episodes of elevated blood pressure with risk factor of work related stress since 1983.

He suffers from occlusive atherosclerotic vascular disease with underlying risk factors of hypertension, hypercholesterolaemia and work related stress. He developed unstable angina in August 1990 due to commencement of coronary occlusion of the left anterior descending coronary artery which progressed to total coronary occlusion and myocardial infarction on the 16th September, 1990, as a result of which he underwent coronary bypass surgery with resultant temporary total work incapacity. Life expectancy has been affected with a 50% survival change of 10 years. OPINION:

It is probable that work related stresses over some years caused episodes of labile hypertension which contributed to the aggravation of hypertension and accelerated the development of the subsequent complication of coronary artery occlusion and myocardial infarction which caused him to become temporarily totally incapacitated for work with a shortened life expectancy.

It is probable that continued exposure to stress, especially over a period of some 4 weeks whilst he had commencement of coronary artery occlusion, aggravated the frequency of angina with myocardial ischaemia and accelerated the process of coronary occlusion, thereby accelerating the onset of total occlusion and myocardial infarction with resultant work incapacity and shortened life expectancy.'

"18. Mr Hammond (cardiologist called by respondent) said in his report of 19 March 1992:

'I do not believe that stress experienced by Mr. Shehata over a long term period will have acted to cause his coronary atherosclerosis. The factors identified in Mr. Shehata's case that are recognised as risk factors for the causation of coronary atherosclerosis include elevation of the serum cholesterol to levels as high as 7.5 mmol/Ls., and hypertension. In addition persons who have followed a normal western lifestyle will have a high prevalence of coronary atherosclerosis and its complications, when compared to individuals who have followed a more primitive lifestyle.

The question of stress and its relation to the development of coronary atherosclerosis is regarded as controversial. In my opinion there is no good evidence that stress alone, experienced intermittently over a period of time, will cause or aggravate the condition of coronary artherosclerosis. However in Mr. Shehata's case a specific incident, being an argument, occurred on 11th September, 1990. This episode was regarded as being personally extremely upsetting by Mr. Shehata. Shortly after this incident he experienced chest pains, which persisted intermittently over the next 3 days. The exact sequence of these symptoms over the next 3 days is somewhat hard to ascertain, however I believe it reasonable to state that the sequence of events between 11th September, 1990 and the subsequent myocardial infarction on 16th September, 1990 could be regarded as recurrent chest pains of ischaemic origin such that Mr. Shehata could be termed to have suffered from unstable angina.

Given the occurrence of a pattern of unstable angina I believe it reasonable to state that given the pre-existence of a critical or near critical coronary artery lesion the occurrence of a particular incident in the workplace, being an episode of emotion, may have acted as an immediate precipitating factor for the onset of myocardial ischaemia and subsequent unstable angina, leading eventually to a myocardial infarction some days later.

The effects of such an immediate precipitating factor would have been limited in time and have now ceased to operate.'

At the hearing he said he did not agree with Dr Stock's account of the relevant patho-physiological process. The narrowing of the artery was caused by atherosclerosis, which had probably been gradually narrowing over 20 or 30 years. A narrowing of 85 to 90 per cent was required before blood flow was restricted enough to cause chest pain. This point had probably been reached in about August 1990. Asked whether there had been a fracture of the lining of the artery or the breakaway of a platelet or thrombus or clotting, he said 'not necessarily, no ... that is moving then into a realm of quite definite speculation'."

19. Dr Goble (cardiologist called by respondent) is an extremely distinguished cardiologist of international standing. In contradistinction to the other medical witnesses whose reports are cited above, he had not examined Mr Shehata. In his report of 18 March 1992, he said: 'I have studied your file in this case and note that Shehata probably had for some years high blood pressure, a raised cholesterol level and had been a smoker in the past. These are aggravating factors leading to the development of coronary artery disease. Coronary artery disease developed in this case, probably over many years, and eventually Shehata suffered from a myocardial infarction due to a coronary artery thrombosis following which he had cardiac surgery and following which he has remained on treatment.

...

I do not consider that the stress alleged by the applicant to have arisen from his work caused his coronary artery disease, nor do I consider that it aggravated, accelerated or in any way provoked the occurrence of myocardial infarction. There is one possible proviso and that is that if stress of work led to Shehata sitting, eating, drinking and smoking then it may possibly indirectly have been harmful to him. If it led to his losing his appetite and being more active or physically agitated it may have been helpful to him.

I do not consider that stress at work would have aggravated or accelerated any aspect of the development of his illness although it may have contributed to his developing symptoms. ...

On my understanding of the information available to me I consider that this man's employment did not contribute to ongoing aggravation of any aspect of his arterial disease and that his work, prior to the gap of three days before the onset of symptoms would not have been contributing to the underlying abnormality that led to those symptoms.'

20. At the hearing he said that Mr Shehata had a coronary thrombosis which led to his admission to the Royal Melbourne Hospital. The mechanism was that:

'A clot forms on a pre-existing atheromatous plaque or narrowing. That is triggered first by the aggregation of platelets which are formed elements in the blood on the surface of the plaque and then the clot develops on top of those platelets. It may or may not develop, depending on other circumstances which we hardly understand. Prior to the development of the aggregation of the platelets there is some other change in the plaque which may be that a portion of the lining, the endothelium, peels off or the plaque actually cracks open. So something happens to the plaque. The platelets then form and it is still reversible and it may or may not then progress to a blood clot which may or may not progress to the blocking of the artery.' He also indicated that Aldomet can cause irritability in some patients.

(Applicant's Principal Submission)

21. Mr Spittle's principal submission was that stress arising from Mr Shehata's employment by the respondent caused him to be hypertensive, which contributed in a material degree to the aggravation of an ailment from which he suffered, namely coronary artery disease, causing the myocardial infarction. Thus, by virtue of the definitions of 'ailment', aggravation', 'disease' and 'injury' in sub-section 4(1) he had suffered an injury which was compensable under the Act.

22. (Submission concerning the relevance of promotion prospects for the calculation of compensation, if awarded)

(Stress)

23. The medical witnesses are divided on the question of whether stress can have the effect for which Mr Spittle contends. As we understand his submission, it is mental rather than physical stress on which the argument is based. Mr Shehata had no significant complaint about the physical performance of his duties. It is not in issue that stress can cause a sudden elevation of blood pressure in the short term. An extensive list of blood pressure readings, taken by Dr McCleave, was in the material before the Tribunal. Some of those readings were taken on occasions when Dr McCleave had noted 'workplace problems'. However, on the medical evidence those readings indicated only mild, controlled hypertension, and the higher readings did not necessarily show any correlation with the occasions of those complaints. On 13 September 1990, after the upset of 11 September, it was only 130/70. Dr McCleave did not consider that he was suffering from a chronic anxiety state.

24. We note Dr Parker's evidence in paragraph 16 supra as to Mr Shehata's obsessional personality, and his problems with duties as a supervisor, also observed by Dr Wood. However, considering the evidence before us as a whole, Mr Shehata's resentment that he has not achieved promotion appears to us to be the factor which is causing him unhappiness in the workplace. He had fewer opportunities for supervision after 1988, and so spent less time in supervisory duties. His irritability in the performance of those duties may have been a side effect of the Aldomet which controls his hypertension. He has continued to be an Acting Mail Processing Controller, and to be anxious to achieve a permanent appointment to that position. If he found that position to be significantly stressful, we doubt that he would be seeking it, particularly in view of the likely short term effects of sudden episodes of stress on his blood pressure. He has complained to his supervisor about his failure to achieve promotion, but not about the mental stress of performing supervisory duties. It is worth noting that he was referred to Dr Wood for psychiatric consultation because of problems at home, not at work.

25. Accordingly, we find that any stress suffered by Mr Shehata from his employment by the respondent results from his failure to obtain promotion in connection with that employment. Thus any aggravation of his underlying condition to which any such stress may have contributed is expressly excluded from the definition of 'injury' in sub-section 4(1). The submission based on stress accordingly fails. In reaching this conclusion we have been mindful of the decision of the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at to the meaning and effect of the expression 'contributed to in a material degree' in the definition of 'disease' in that sub-section.

26. Mr Spittle relied also on the decision of the High Court in Johnston v The Commonwealth (1982) 150 CLR 331, citing the whole of the first paragraph which appears on page 339 of the report. The plaintiff in Johnston was a member of the Royal Australian Navy serving in Vietnam and medical facilities for diagnosis and treatment were provided by the Navy. The failure to diagnose and treat his cancerous condition was thus found to be a contribution by his employment to the aggravation of his condition. In the present case, the respondent bore no responsibility for diagnosis and treatment of Mr Shehata's medical condition. Mr Spittle did not make clear what he perceived as the relevance of Johnston to the facts of the present case, and we are unable to take that submission into account.

(Continuing to Work)

27. Mr Spittle submitted further that a compensable aggravation occurred as a result of Mr Shehata's continuing to work after he had begun to feel symptoms of chest pain, attributable, on all the cardiological evidence, to unstable angina. He referred to Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 at 129-130, and on the report of Dr Stock cited above. However, given our finding in paragraph 24 above, that submission cannot be sustained.

(Injury Simpliciter)

28. Mr Spittle also submitted that Mr Shehata had suffered an injury simpliciter, being a 'physical or mental injury ... arising out of, or in the course of, the employee's employment' in terms of the definition of 'injury' in sub-section 4(1) of the Act. He referred to the well-known passage from the judgment of Latham CJ in Hume Steel Ltd v Peart (1947) 75 CLR 242 at 253, to the effect that the detachment of a piece of the lining of an artery should be held to be an injury.

29. We have already found, in effect, that whatever happened to Mr Shehata cannot be said to have arisen 'out of' his employment by the respondent. Thus that submission would only be sustainable if it could be established that the detachment of a piece of the lining of an artery, or some similar event (as to which see the extract from the evidence of Dr Goble cited in paragraph 19 supra), occurred 'in the course of that' employment. There is no evidence on which we could make such a finding. Dr Hammond regarded the suggestion that such an event occurred 'in the course of Mr Shehata's employment would be considerably more speculative. Mr Shehata was not at his place of employment at any relevant time after 11 September, and was admitted to hospital on the night of 16 September. The submission as to injury simpliciter accordingly fails.

Power to Reconsider and Revoke
4. A preliminary argument advanced by the applicant requires examination of the decision-making process of the respondent.

1. On 25 February 1991 a delegate of the respondent, which was a "determining authority" licensed under Part VIIIA of the Act, made a determination for liability of "aggravation of a pre-existing condition namely coronary atherosclerosis under s.6(1)(b)(i) of the Act. 3.9.90."

2. On 28 February 1991 a delegate of the respondent made a further determination that:
   

"(a) Any incapacity suffered for work by the said Ibrahim Shehata on and subsequent to the date of this determination is not the result of the personal injuries sustained on 3 September 1990.

(b) The personal injury of 3 September 1990 does not reasonably require any further treatment on and subsequent to the date of this determination. Therefore in accordance with the provisions of the Act, including s.6, 7, 14, 16 and 19, I determine Australia Post is not liable to pay compensation to the said Ibrahim Shehata on and subsequent to the date of this determination in relation to his claim dated 3 September 1990."

1. This determination, which was referred to in argument as the "cease effects" determination, left in place the original determination as to liability.

2. On 18 March 1991 the applicant applied for reconsideration of the cease effects determination of 28 February. His application referred to his need for continuing and future medication and treatment.

3. On 15 April 1991 a delegate of the respondent made a further determination in favour of the applicant accepting condition "Agg pre-existing coronary atherosclerosis" and allowing compensation for 26 and 27 February 1991.

4. Finally on 13 June 1991 a delegate of the respondent made the following determination:
   

"... I hereby revoke the following determinations in their entirety

Determination dated 25 February 1991 Determination dated 15 April 1991 Therefore, based on the medical and factual evidence before me I find that Australia Post is not liable to pay compensation for the claim submitted on 30 October 1990 in respect of a heart attack."

1. An accompanying letter advised:
   

"In accordance with s.62 of the (Act) I wish to advise that the determination dated 28 February 1991 has been affirmed. After carefully considering all the evidence available, I have also found that the initial determination accepting liability should be revoked in its entirety."

1. The Tribunal treated its function as being the review of two decisions of the delegate of the respondent made on 13 June 1991, that is to say the decision affirming the cease effects determination of 28 February and decision revoking the determinations of 25 February and 15 April.

2. Counsel for the applicant argued that the decisions of 13 June 1991 were not valid because the applicant's request for reconsideration on 18 March only sought a reconsideration of the cease effects determination of 28 February.

3. This point was not taken before the Tribunal. It is in any event without substance because the respondent as a "determining authority" is expressly given power of its own motion to reconsider any determination made by it: s.62(1)(a). Upon reconsideration, the determination may be affirmed or revoked: s.62(5). That affirmation or revocation is a reviewable decision subject to review by the Tribunal: ss.60(1), 64(1).

Change of Circumstances
15. Having looked at the various determinations that were made, it will be convenient to consider another argument advanced by the applicant. It was said that the reasons of the Tribunal for its decision make no reference to the submission made on behalf of the applicant that a determination ceasing entitlement to compensation should not be made unless the decision-maker is satisfied that there has been a change of circumstances or that an entitling circumstance has ceased to exist. Reference was made to Commonwealth v Borg (Full Federal Court, 15 November 1991, unreported) and Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 276-277.

1. For the reasons already mentioned, the decision-maker, and the Tribunal on review, were entitled to revoke the initial determination of 25 February 1991 which was the basic finding of liability. If that decision to revoke were validly made, no question of change of circumstances would arise.

Applicant's Case on the Merits
17. Counsel for the applicant claimed that it was not open to the Tribunal to reach the conclusion that there was no "injury" within the meaning of the s.4(1) of the Act. It was also said that the Tribunal adopted an approach to the claim (which was presented on more than one basis) that led to a departure from the essential tests laid down by the Act. As a consequence, the Tribunal misdirected itself on the questions in issue and failed to examine or determine whether and to what extent relevant identified factors were related to the employment within the terms of the Act.

1. As I understood him, the applicant's counsel sought to make good those general assertions in two ways. The first related to the case on aggravation or acceleration and the second to what was called "injury simpliciter", meaning injury alone or injury as a single event.

2. But before considering in greater detail the attack on the Tribunal's reasoning, something needs to be said about the forensic setting. Had the applicant suffered his heart attack while at work, there would have been no problem with his compensation claim. He would have sustained injury while "at his place of work for the purposes of that employment" and thus his injury would be treated as having arisen "out of, or in the course of his employment" and would meet the test for compensable injury: see the definition of "injury" in s.4(1) and also ss.6(1)(b)(i) and 14(1).

3. But the applicant suffered his heart attack while at home on a Sunday evening, having been away from work since the previous Wednesday. Much of the medical explanation of the heart attack was clear enough. He had for many years suffered from coronary atherosclerosis, which is a condition involving hardening and narrowing of the arteries with consequent obstruction of the blood flow to the heart. Likely contributing causes to that condition were his hypertension (high blood pressure) and high levels of cholesterol.

4. In that context the applicant had to show there was something about his work which contributed to his atherosclerosis or its aggravation or acceleration (see Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328). The case presented was that stress at his work made that contribution by causing increased blood pressure. "Stress" was used in this context, primarily at any rate, in the sense of mental or psychological stress - hence the reliance on psychiatric evidence. There was evidence of, for example, frustration at the laziness of other employees.

5. The respondent sought to meet this case in a number of ways. First, it contended that stress simply does not, as a matter of medical science, contribute to heart attacks. This is a controversial issue in medical circles. The Tribunal heard expert evidence from proponents of views for and against. Secondly, stress did not cause the applicant's hypertension. The applicant's history of blood pressure readings extending back to April 1983 showed wide variations but no consistent relationship between elevated readings and incidents of stress at work. Thirdly, there were factors causing the applicant's stress which were either not work-related (domestic problems and a medication used for hypertension which itself caused irritability) or expressly excluded by the Act (concern about failure to obtain a promotion).

6. As an alternative the applicant argued that there was an injury (not a disease) in the sense of a single physical event which occurred while he was at work and resulted in the heart attack on the Sunday evening. The event in question was said to be the detachment of a piece of the lining of an artery. The problem of course was to show that this did in fact happen while he was at work.

Aggravation or Acceleration
24. It was argued that the evidence disclosed that the applicant's work involved physical exertion and that the Tribunal should have found that there was therefore physical stress and hence there was an aggravation which was contributed to in a material degree by the applicant's employment.

1. This case was run very much as a second string before the Tribunal. Stress in the sense of mental or psychological stress was at the forefront. The applicant called two psychiatrists. It is true that the report of Dr Stock, the cardiologist called by the applicant, does mention in the history episodes of chest pain following specific physical exertions at work. However read as a whole it is clear that when the report puts forward "stress" as a contributing cause of the heart attack, it is mental stress that is meant.

2. But in any event the part, if any, played by physical stress seems to be purely a question of fact with the consequence that the Tribunal's decision is not open to challenge on an appeal under s.44. The Tribunal was entitled to find on the evidence that the applicant had not established that stress, in the sense of physical stress, contributed to his condition. His failure to complain about physical stress to his general practitioner or to his supervisor was a relevant, although not of course conclusive, part of the evidence. The Tribunal did not, as the applicant's argument seemed to suggest, treat complaint as some kind of legal precondition to the establishment of a claim. More importantly, none of the medical experts gave evidence of a connection between the applicant's physical exertion at work and the aggravation or acceleration of his atherosclerosis.

3. The Tribunal would have been entitled to treat its finding that stress was not a contributing factor as concluding the case against the applicant. But it nevertheless went on to consider the possibility that any work-related stress which did materially contribute to the condition was expressly excluded by the proviso to the definition of "injury" in s.4(1) which provides that a disease, injury or aggravation
   

"does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

The Tribunal in effect found that, if stress was a contributing factor, the proviso applied.

1. This finding seems to have been open on the evidence. I do not think it is necessary to decide the question whether the expression "as a result of ... the failure ..." in the proviso means that a respondent has to show that the disease etc was solely the result of the relevant failure or whether it is sufficient that the failure was one of a number of contributing causes. The factual finding here seems to be that, insofar as there was mental stress, the only work-related mental stress was that of a kind covered by the proviso, namely concern at his failure to obtain promotion.

Injury Simpliciter
29. As I have noted the alternative argument was that there was an actual physical injury when the piece of the lining of the artery detached. The passage from the judgment of Latham CJ in Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252 relied on by counsel before the Tribunal and referred to in its reasons is in the following terms:

"There is a distinction, according to the common uses of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of the piece of the lining of the artery in the present case should be held to be an injury. The death of the worker resulted from that injury."

1. The heart attack the applicant suffered did not occur while he was at work so s.6(1)(b)(i) does not apply. He had to show that it arose out of or in the course of his employment unassisted by any statutory presumption, conclusive or otherwise. There was substantial medical evidence on which the Tribunal could have come to the conclusion that the pre-existing condition, and in particular high blood pressure and raised cholesterol level, led to the heart attack without any work related contributing factor. The evidence of Mr Hammond was to the effect that it was simply speculation whether there had been a fracture of the lining of the artery or a breakaway of the platelet or thrombosis or clotting. Even if such an event had occurred, the applicant would have to establish a temporal or causal connection with his employment. As the Tribunal noted, this would be even more speculative.

Conclusion
31. In my opinion, no question of law is raised by this appeal. The Tribunal was faced with contested issues of fact which it resolved in a way which was open on the evidence.

1. The appeal will be dismissed with costs including reserved costs.