Szajna and Australian Postal Corporation

[2013] AATA 898

[2013] AATA  898

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2873
Re	Anthea Szajna
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe Dr M Sullivan, Member
Date	17 December 2013
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

COMPENSATION – Workplace injury or disease – Injury within the meaning of the Act – Injury a consequence of underlying condition – Ventricular fibrillation – Decision under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) s 5A

CASES

Australian Postal Corporation v Burch (1998) 85 FCR 264

REASONS FOR DECISION

Senior Member Bernard J McCabe
Dr M Sullivan, Member

1. Mr Paul Szajna was employed by Australia Post. He died at work following a heart attack on 7 February 2012. His widow, the applicant, has sought compensation under the provisions of the Safety Rehabilitation and Compensation Act 1988 (“the Act”). The application cannot succeed. We explain our reasons below.

   THE QUESTION WE MUST ANSWER

2. The proceedings did not focus on the death of Mr Szajna. The focus has instead been on the heart attack which preceded (and precipitated) his death. We accept the medical evidence established that heart attack is more precisely described as ventricular fibrillation, or cardiac arrest. Mr Szjana also suffered from an underlying coronary artery condition. The outcome of the proceedings turns on whether the ventricular fibrillation that occurred at work on 7 February 2012 can be regarded as an injury within the meaning of s 5A of the Act – in particular, whether it is an injury within the meaning of s 5A(1)(b), which refers to:

   …an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment…

3. There was no dispute that ventricular fibrillation meets one of the requirements the courts have said are inherent in the definition in s 5A(1)(b) – namely, that the employee suffered something in the nature of “a disturbance of the normal physiological state”: Australian Postal Corporation v Burch (1998) 85 FCR 264 at 269 per Heerey, Sundberg and North JJ. But there is a second question that must be asked, and which will determine the outcome of these proceedings: was the ventricular fibrillation that Mr Szjana experienced on 7 February 2012 an inevitable consequence of his underlying coronary artery condition? If the answer is “yes”, Mr Szjana did not suffer from an injury as that term is defined in s 5A of the Act. In substance, that means Mr Szjana’s condition is wholly attributable to his underlying condition rather than anything occurring in his workplace, which means his employer is not liable to compensate Mrs Szjana for her husband’s untimely death. If ventricular fibrillation was not inevitable, the applicant will succeed.

   THE MEDICAL EVIDENCE

4. In order to answer the question posed by the parties, it was necessary to consider the evidence provided by two eminent cardiologists. Each of them is well-credentialed and experienced. Dr Hossack, who was called by the applicant, has particularly strong clinical experience, while Professor O’Rourke has extensive clinical experience and a further degree in science relevant to cardiovascular physiology. Both have been involved in research, although Professor O’Rourke’s research experience is more recent. Professor O’Rourke has also been instrumental in organising the distribution of cardiac defibrillators in ambulances and at other sites within the community to reduce the incidence of sudden cardiac death in the Australian population. The doctors gave evidence concurrently – that is, they sat in the witness box together and answered questions while commenting on the opinions proffered by each other. It was an illuminating discussion.

5. Both doctors accepted the deceased experienced undetected and untreated coronary artery disease, although there was some dispute over the extent to which that disease had advanced. There was some technical argument between the experts as to how stenosis or narrowing of the arteries was measured. Dr Hossack also raised doubts as to the functional impact of the measured occlusion of the coronary arteries but Professor O’Rourke countered that autopsy measurement of occlusion was arguably more accurate than angiography. Dr Hossack also contended that the fibrosis found in Mr Szajna’s myocardium could be a consequence of an aging process rather than ischemia. Even so, there did not appear to be any doubt the underlying condition was present, and that it could be expected to progress if it were untreated.

6. Both experts also agreed ventricular fibrillation led to Mr Szajna’s death. The disagreement related to whether ventricular fibrillation was an inevitable or unavoidable consequence of Mr Szajna’s coronary artery disease. Dr Hossack opined that ventricular fibrillation might be a product of coronary artery disease, but it can also be triggered by a number of other events, including stress, exertion, viruses and prescription drugs. He was critical of what he described as a failure to properly investigate whether any of these other known triggers might have played a role in the onset of ventricular fibrillation in this case. Dr Hossack referred to one possibility in particular: he said Mr Szajna might have been affected by adrenaline used in dental surgery occurring on the day of his heart attack or perhaps the day before. This explanation was ruled out at the end of the hearing when evidence was provided by the dentist in question confirming adrenaline had not been used. Even so, Dr Hossack insisted coronary artery disease did not explain every case of ventricular fibrillation, even in a person who has coronary artery disease when he or she experiences ventricular fibrillation.

7. Professor O’Rourke was less inclined to criticise the failure to look for other explanations for the ventricular fibrillation in this case. He pointed out Mr Szajna suffered from quite extensive coronary artery disease as evidenced by the autopsy examination of his coronary arteries, the post mortem CT scan which showed extensive calcification of his coronary arteries and the histological findings of fibrosis consistent with previous episodes of ischemia in the myocardium. He said the level of occlusion in two cardiac vessels was sufficient to explain inadequate oxygenation of the heart muscle. Professor O’Rourke said that the combination of the results of Mr Szajna’s post-mortem examination and the strong epidemiological evidence of coronary artery disease leading to ventricular fibrillation and sudden death in men in Mr Szajna’s age group made him quite satisfied that there was a very clear link between Mr Szajna’s coronary artery disease, the development of ventricular fibrillation and his subsequent death. Professor O’Rourke felt it was unnecessary to go beyond those conclusions. We note Dr Hossack agreed in his evidence that coronary artery disease was the most likely cause of ventricular fibrillation in this case.

8. Importantly for present purposes, Dr Hossack opined it was not inevitable that a person with coronary artery disease would experience ventricular fibrillation. He based that opinion on his extensive experience which demonstrated many people with coronary artery disease did not experience ventricular fibrillation – and even some of those who did could attribute the ventricular fibrillation to some other cause. He also quoted studies which showed that in patients who have experienced ventricular fibrillation and then have a defibrillator implanted, up to 70% do not experience a further episode of ventricular fibrillation. He relied on this evidence to challenge the certainty of predicting ventricular fibrillation.

9. We accept Dr Hossack’s evidence that many people who experience untreated coronary artery disease will not develop ventricular fibrillation during the course of their lives. But that does not conclude the debate over whether ventricular fibrillation is an inevitable result of the underlying condition. Professor O’Rourke explained the fibrosis in the cardiac muscle that was evident in the histology reports (and which was a consequence of the coronary artery disease) disrupted the homogeneous nature of the myocardium and therefore affected the co-ordinated de-polarisation and re-polarisation required to cause the heart to beat properly. He pointed out that with increasing fibrosis, which is a consequence of chronic ischemia and/or infarction (secondary to coronary artery disease), there will ultimately be a poorly co-ordinated contraction of the ventricle leading to ventricular fibrillation. Professor O’Rourke stated that inevitably in Mr Szajna’s case, progression of the coronary artery disease would lead to further fibrosis in the heart, constantly increasing the risk that ventricular fibrillation would occur at some indeterminate time in the future.

10. Professor O’Rourke explained the heart beats billions of times during the course of a normal person’s life. He was certain that at some point the damage done to Mr Szajna’s heart would result in ventricular fibrillation. Professor O’Rourke agreed it was impossible to predict when that might occur, and it was entirely possible that the deceased might have died from some other cause before it occurred (and might even have experience ventricular fibrillation attributable to some other cause). In that sense, he agreed with Dr Hossack: it was entirely possible that a person with coronary artery disease might not experience ventricular fibrillation because of the intervention of some other event.

11. We accept the medical evidence establishes there are persons with coronary artery disease who do not experience ventricular fibrillation during the course of their lives. But that does not answer the question: “Was the ventricular fibrillation that Mr Szjana experienced on 7 February 2012 an inevitable consequence of his underlying coronary artery condition?”

12. The evidence of Professor O’Rourke and Dr Hossack makes it clear it was not inevitable that Mr Szjana would experience ventricular fibrillation on a particular date. Even so, we accept Professor O’Rourke’s evidence that it was inevitable Mr Szjana would experience ventricular fibrillation at some point in the future in the absence of other events. We are persuaded to this view because Professor O’Rourke was able to clearly explain how the coronary artery disease compromised the heart. That explanation made it clear that, at some indeterminate point in the future, the heart muscle must malfunction and ventricular fibrillation will occur. We are satisfied Professor O’Rourke’s academic qualifications and more recent experience in research leaves him in a better position to opine on this process.

    CONCLUSION

13. The law requires that we answer a precise question that may strike a lay observer (and the medical experts, for that matter) as counter-intuitive. We accept this may be one of those cases where it is difficult to follow how one fits medical evidence within legal rules. But that is what we must endeavour to do. Having asked and answered the question put to us, we must affirm the decision under review.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Sullivan, Member.

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Associate

Dated 17 December 2013

Date of hearing	23 October 2013
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Turner Freeman Lawyers
Counsel for the Respondent	Mr Geoffrey Johnson SC and Mr Gregory Johnson
Solicitors for the Respondent	Sparke Helmore Lawyers