Walker v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Walker v Secretary, Department of Education & Ors [2025] NSWPIC 270
APPLICANT:	Adam Walker
FIRST RESPONDENT:	Secretary, Department of Education
SECOND RESPONDENT:	Karen Spiteri
THIRD RESPONDENT:	Kayla Byrne
FOURTH RESPONDENT:	Ben Leonard McLean
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	17 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury sustained in 2020; applicant died in 2022 from unknown causes; claim pursuant to section 25(1)(a); Held – alleged dependants had not discharged their onus of proof as to cause of death; award for first respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the first respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Leonard McLean was employed by the first respondent at the Cobham Juvenile Justice Centre as tradesman when on 14 January 2020 a group of detainees that were attempting to escape, broke through the ceiling of the workshop area where he was working. As a result of this event Leonard McLean sustained a psychological injury. Liability was accepted for this injury by the first respondent’s workers compensation insurer.
Leonard McLean died on 17 January 2022. The applicant and the second, third and fourth respondents allege that his death was caused by his psychological injury on
[1] T76.1.
14 January 2020. Accordingly, they are making a claim for compensation and apportionment of the lump sum pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act). The amount of the lump sum is $849,300. Dr Adam Walker, the applicant, is the adult son of Leonard McLean and his first wife. Ms Karen Spiteri, the second respondent, lived at times with Leonard McLean in a defacto relationship. Ms Kayla Byne, the third respondent, and Mr Ben Leonard McLean, the fourth respondent, are the adult children of Leonard McLean and his second wife. These parties agree that if liability is established the apportionment of the lump sum they are seeking is 25% each.[1]
The Application in Respect of Death of Worker (the application) was amended by consent to delete the reference to the date of injury “14 June 2020” and to substitute “14 January 2020” and to change the name of the first respondent to “Secretary, Department of Education”.
The first respondent’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 21 April 2023 in which it denied that Leonard McLean’s death resulted from his psychological injury.[2]
[2] Application p 2.
On 4 June 2024 the applicant’s solicitor submitted a request for the review of the declinature decision and attached reports from Dr Conrad dated 31 May 2024 and Dr Abdal Khan dated 17 March 2021 and 30 March 2022, as well as clinical notes from Dr Selim and statements from family members.[3]
[3] The letter from the solicitors to the insurer requesting the review is not before the Commission.
On 18 June 2024 the insurer responded to the request for review and considered the additional documents. It maintained its decline of the claim but gave additional reasons for the declinature responding to the submission made to it, that if Leonard McLean did not have a crippling psychiatric condition he would have had early intervention and life -saving thrombolysis relying on the decision in De Silva v Department of Finance Services.[4]
[4] [2015] NSWWCC 279, De Silva.
However, at the arbitration hearing the applicant’s counsel advised that his primary case is that Leonard McLean had an accepted post-traumatic stress disorder with an alcohol disorder as a result of his employment. He submits that a feature of the medico-legal assessments of the psychological injury claim was that Leonard McLean suffered from an alcohol disorder and it is asserted that this alcohol disorder made a material contribution to his death. It was noted that alcoholism was one of the causes of death recorded on the death certificate. The applicant also argued that the reference on the death certificate to Leonard McLean dying from a stroke is unlikely to be correct. The applicant submits in these circumstances s 9B of the 1987 Act has no application in this matter.
The first respondent’s counsel submits that the first issue for determination is the cause of death of Leonard McLean and if the Commission finds it was either a stroke or heart attack the respondent argues s 9B is not satisfied. It also submits that if the Commission finds alcoholism was the cause of his death, it did not arise as a result of his psychological injury on 14 January 2020. In its review notice the respondent had summarised the evidence about Leonard McLean’s alcohol use dating since 8 August 2014, predating the psychological injury.[5]
[5] Application p 7.
Mr Hickey, counsel for the third respondent, while adopting Mr Stockley’s submissions, also made submissions in the alternative about how s 9B should be interpreted.
Mr Morgan, counsel for the second respondent, cavilled with Mr Hickey’s submission that s9B might have some relevance in the case and strongly supported Mr Stockley’s submission that it is not relevant. He also made submissions about Mr McLean avoiding treatment because of his psychological injury. Mr Eirth had nothing to add to the earlier submissions.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The matter proceeded in arbitration hearing on 3 March 2025. Mr Stockley, counsel, instructed by Mr Morson, solicitor, appeared on behalf of Dr Adam Walker, who was present. Ms Goodman, counsel, instructed by Ms Liu, solicitor, and Ms Orchard from the insurer appeared for the first respondent. Mr Morgan, counsel, instructed by Mr Fogarty, solicitor, appeared for the second respondent, Ms Spiteri, who was present. Mr Stephen Hickey, counsel, instructed by Mr Corcoran, solicitor appeared for the third respondent, Kayla Byrne, who was present. Mr Eirth, counsel, instructed by Mr Burston, solicitor appeared on behalf of the fourth respondent, Ben Leonard McLean, who was present.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application in Respect of Death of Worker and attached documents;
(b)    first respondent’s Reply and attached documents;
(c)    second respondent’s Reply and attached documents;
(d)    third respondent’s Reply and attached documents;
(e)    fourth respondent’s Reply and attached documents;
(f)    letter from Turner Freeman dated 5 November 2024;
(g)    statutory declaration of Mr Morson dated 21 November 2024;
(h)    Application to Lodge Additional Documents dated 12 February 2025 filed by the applicant;
(i)    Application to Lodge Additional Documents dated 25 February 2025 filed by the first respondent attaching ambulance records, and
(j)    Application to Lodge Additional Documents dated 25 February 2025 filed by the third respondent.

Oral evidence

There was no oral evidence. The counsel made oral submissions, which were sound recorded. A written transcript (T) has been made from the recording.

FINDINGS AND REASONS

Summary of evidence

Prior to psychological injury on 14 January 2020

On 11 February 1981 Mr Leonard McLean had testing performed at Nepean Hospital and there is a reference to symptomatic AF, meaning atrial fibrillation.[6] He was 33 at the time and the casualty notes refer to “documented first similar episode of AF 3 years ago” and that he had a “bad family history of 1HD/sudden death.” It is recorded that in January 1981 he collapsed twice and was found to have postural hypotension.[7] It was also noted “query whether ETOH related”. ETOH is a reference to alcohol. There is a history in the records to Mr McLean being an occasional social drinker, occasionally bingeing. However, in the admission notes there is recorded he drinks 20 spirit drinks a week.[8] It is also recorded that on the Thursday, Friday and Saturday prior to the admission he consumed a large amount of alcohol.[9]
[6] First respondent’s reply p 831.
[7] First respondent’s reply p 828.
[8] First respondent’s reply p 824.
[9] First respondent’s reply p 824
There is reference in Dr Selim’s clinical notes on 28 May 2010 to Leonard McLean having an alcohol consumption of three standard drinks per day, five to six days per week and that he smoked 25 cigarettes per day.[10]
[10] Application p 374.
On 8 August 2014 Leonard McLean was seen at the Emergency Department of Nepean Hospital and a history is recorded “Uncle and father MI [myocardial infarction] at ages 43, 45 years. Strong family history”.[11] It is also noted he smoked a packet a day since early adulthood and drank four to five standard drinks of alcohol a day. He had dizziness and bilateral arm shaking and numbness and chest pain. It is recorded that he had a past history of a “previous episode paroxysmal AF.”
[11] Application p 181.
On 11 August 2014 Dr Selim records that Leonard McLean had an episode of dizziness last Friday with vague chest discomfort. He noted that Leonard McLean went to the Emergency Department where the “ECG/Troponins normal”. He added that there had been no further episodes since. At the time of the consultation his blood pressure was150/95 and Dr Selim prescribed Cartia EC 100mg tablets.[12]
[12] Application p 370.
The ambulance records refer to an incident on 28 September 2015 with the problem noted as “chest pain not alert”. At the time Leonard McLean was aged 58 and he was conveyed to Nepean Hospital. The description noted a past history of atrial fibrillation and that he was found lying on the ground at the rear of the house with friends in attendance. It is recorded that he had been working on electrical wires in the roof when he began to experience left sided chest pain. It is also noted that the pain began the previous day as a dull type pain and was increasing on 28 September 2015. He was hypertensive with a blood pressure reading of 170/106 at 11.50am but dropped at 12.00am to 130/90 and dropped further thereafter. The diagnosis was ischaemic chest pain.
He was a patient at Nepean Hospital from 28 September to 2 October 2015. The hospital notes have the history that he drinks two bottles of wine daily and smokes. He had severe chest pain and the ECG found anterior STEMI.[13] He had mid LAD 100% stenosis and distal LAD 70% stenosis, in other words blockage in the lower anterior descending artery.
[13] Application p 183.
On 6 October 2015 it is recorded in Dr Selim’s notes that Leonard McLean had “PTCA and stenting at Nepean Hospital last week 28/9 to 2/10 admitted with chest pain. Anterior STEMI”. Also, at the time he was still smoking 25 cigarettes per day.[14]
[14] Application p 368.
On 29 October 2015 Dr Fernandes, cardiologist, reported to Dr Selim noting that Leonard McLean had attended Nepean Hospital with an anterior infarct and stents were placed into his mid and distal LAD and the ECG showed he had moderate left ventricular dysfunction in hospital. Dr Fernandes advised his risk factors for coronary artery disease are elevated cholesterol, positive family history and he drinks a moderate amount of alcohol. He was a smoker but had stopped after the infarct and he did not have a history of hypertension or diabetes. Dr Fernandes arranged for another ECG which found decreased left ventricular function with anterior, inferolateral and apical akinesis/severe hypokinesis. Dr Fernandes stated that if he still has significant left ventricular dysfunction he is a candidate for ICD (implantable cardioverter defibrillator). The doctor revised his medication regime.[15]
[15] Application p 194.
A blood test for liver function dated 29 April 2016 ordered by Dr Selim refers to elevated GGT of 87 level and the pathology report says the likely possibilities include liver enzyme induction by ethanol, anticonvulsants or some other drugs.[16] A lipid test on the same day has high cholesterol of 6.2 and LDL on 4.5.[17] But in a test on 25 July 2018 the GGT was 48 in the normal range, cholesterol was 4.3 and LDL 2.3 all in normal range.[18]
[16] Application p 401.
[17] Application p 399.
[18] Application p 392.
On 5 May 2016 Dr Fernandes reported to Dr Selim and stated that Leonard McLean was doing well from a cardiac viewpoint with his symptoms improving.[19]
[19] Application p 195.
On 29 September 2016 Dr Fernandes reported to Dr Selim about the ECG test. There was no evidence of pulmonary hypertension but stated that present were the same signs associated with a mid to distal LAD territory infarct with apical akinesis, unchanged from his prior ECG.[20]
[20] Application p 197.
On 24 July 2017 the ambulance was called to Leonard McLean and it is recorded that he had chest pain and was clammy. The caller was Karen Spiteri. The past history was “Ischaemic heart disease; coronary angioplasty/stent; gastric reflux; smoker- 25 per day” It is recorded he was taking medications of “Bispro; Cartia; Coversyl; Crestor”. The ambulance officer recorded the case description that he was 59 with complaints of severe epigastric pain that that he felt like he was having a heart attack with symptoms similar “to previous AMI September 2016”. No ischaemic changes were noted on ECG testing. The final assessment was abdominal pain and anxiety.
On 27 July 2017 it is recorded that Leonard McLean was having greater than 20 standard drinks per week.[21]
[21] Application p 362.
On 25 July 2019 Dr Fernandes reported to Dr Selim following his ECG (echocardiogram), noting Leonard McLean in the past had an anterior infarct. The doctor sets out his findings including severe pulmonary hypertension for which he had no explanation.[22]
[22] Application p 200.
On 1 August 2019 Dr Fernandes saw Leonard McLean following CTPA (CT pulmonary angiogram). He found no evidence of pulmonary embolism. He said he might have liver cysts that needed watching.[23]
[23] Application p 201.

Post dating 14 January 2020

On 27 January 2020 Dr May Aung, general practitioner (GP), saw Leonard McLean and referred him to the Emergency Department of Liverpool Hospital as he had a syncope with shaking and stiffness. She noted he had been vomiting for two days and had stent surgery in 2015. She sought investigation of his unexplained syncope and seizure.[24] No records from Liverpool Hospital are before the Commission. There is no evidence whether Mr McLean did attend there.
[24] Application p 202.
The next day Mr Mclean saw Dr Selim who refers to him having a vasovagal attack and that he felt better after rehydrating. On 28 January 2020 Dr Selim also records in his clinical notes that Leonard McLean became very anxious and threatened when youths broke into the room he was working in at Cobham. He had poor sleep, irrational fear and panic attacks.[25] He was diagnosed with an adjustment disorder with anxious mood and “?PTSD”. Diazepam tablets were prescribed. On 31 January 2020 Dr Selim noted that there was no improvement in his anxiety levels and he was reluctant to take Diazepam for poor sleep.
[25] Application p 294.
On 12 March 2020 Dr Mark Walker, treating psychiatrist, reported to Dr Selim that as a result of the incident in January 2020 at Cobham Leonard McLean was self-medicating with increased alcohol consumption of six standard drinks per day.[26] He diagnosed post-traumatic stress disorder, at high risk of developing secondary major depression.
[26] Application p 228.
On 22 March 2020 an ambulance was called by “Karen- wife”. It was noted he had chest pain and difficulty speaking. He refused transportation. It is noted he was 62 and had come in from mowing the lawn and developed shortness of breath and chest tightness and had a history of AMI but he denied any similarity to that. He advised he had been newly diagnosed as suffering post-traumatic stress disorder and was now seeing mental health professionals once per week. The ambulance officers attributed his presentation to anxiety.
On 30 April 2020 Dr Mark Walker reviewed Leonard McLean and states that with respect to his alcohol intake he prescribed Naltrexone 50mg daily to assist in reducing his alcohol intake further. He noted he was overwhelmed and extremely distressed and the doctor increased the dosage of Venlafaxine (also known as Effexor) to 150mg daily.[27]
[27] Application p 236.
On 1 May 2020 it is recorded in Dr Selim’s notes that Naltrexone Hydrochloride 50mg was commenced and that Leonard McLean had a depressed mood and substance abuse. It is noted that he was drinking heavily and that he was kicked out of home by his wife. The Effexor dose was doubled.[28]
[28] Application p 353.
In the Allied Health Recovery Request dated 5 May 2020 there is a history of “alcohol use approximately four glasses of wine daily”.[29]
[29] Application p 174.
On 19 May 2020 Dr Selim’s records in his clinical notes that he had stopped drinking.
There is a report with a handwritten date in top right corner of May 20 but the copy has a typed date of 19 August 2020. However, in the report it refers to the next consultation being on 16 June 2020. Nothing turns on the correct date. In this report Dr Mark Walker reported to Dr Selim that Leonard McLean had recently separated from his partner and Naltrexone had been helpful in reducing his alcohol intake. The dose of Venlafaxine was reduced to 225 mg.[30]
[30] Application p 253.
Dr George, psychiatrist, provided a medico-legal report for the insurer in relation to the injury on 14 January 2020. The report is dated 21 May 2020.[31] Dr George took a history that within two weeks of the incident at Cobham Leonard McLean started to abuse alcohol and at the time of the examination he was taking Naltrexone 50mg to prevent his drive to drink and had not drunk alcohol for three weeks. Dr George records that Leonard McLean’s father died at age 42 from a heart attack. Dr George diagnosed chronic post-traumatic stress disorder in combination with major depression with anxious mood and alcohol use disorder.
[31] Application p 243.
On 5 June 2020 Dr Selim recorded that Naltrexone caused postural dizziness and that Leonard McLean had fallen over and struck his head on the television cabinet.[32]
[32] Application p 353.
On 16 June 2020 Dr Mark Walker reviewed Leonard McLean and noted improvement with increase in his antidepressant medication and that Leonard McLean felt he was coping much better. The doctor recommended increasing the dose of Venlafaxine to 300mg.[33]
[33] Application p 257.
On 15 July 2020 Dr Selim records that Leonard McLean denies excessive alcohol consumption but that his wife says he is drinking heavily.[34]
[34] Application p 351 and first respondent’s Reply p 64.
Dr Mark Walker reported to Dr Selim on 7 August 2020 that Leonard McLean had recently decompensated when an apprentice fell through his ceiling at home and, as a result, he had a relapse of his intrusive symptoms. Dr Walker recommended that he reduced his Diazepam from 4mg to 2mg and then cease it.
On 27 August 2020 Dr Selim recorded that Leonard McLean had lightheadedness. He was drinking heavily, one bottle of wine a day for many years. He had a fall two days earlier due to intoxication. The reason for contact was noted as “? alcohol withdrawal, anxiety, laceration, alcohol addiction”.[35]
[35] First respondent’s Reply p 63.
On 16 October 2020 Dr Selim noted that he was drinking three alcoholic drinks per day and was awaiting an appointment at Nepean Drug and Alcohol clinic.[36]
[36] First respondent’s Reply p 62.

On 6 November 2020 Dr Selim recorded that Leonard McLean claimed to be drinking two standard drinks per day. On examination he appeared anxious and stammered frequently.
On 3 December 2020 Dr Selim recorded that Leonard McLean had reduced his alcohol intake to 15 standard drinks per week. He had changed his residence and felt calmer. On examination he had a visible tremor and appeared anxious, he was stuttering at times. His LFTs were abnormal.[37]
[37] First respondent’s Reply p 61.
On 22 December 2020 Dr Selim noted that Leonard McLean was seeing Dr Walker and he was to continue Effexor and stay off Diazepam. He was happy with his mental progress.
[38] First respondent’s Reply p 60.
Dr Selim noted an abdominal ultrasound showed he had a moderate fatty liver.[38]
On 3 March and 1 April 2021 Dr Selim notes that Leonard McLean was mentally stable but still stutters frequently and avoids public places. He sees a psychologist fortnightly.[39]
[39] First respondent’s Reply p 59.
Dr Abdal Khan, psychiatrist, issued a medico-legal report for Leonard McLean’s solicitors dated 17 March 2021 regarding his psychological injury case.[40] He diagnosed a post-traumatic stress disorder and a comorbid condition of alcoholic use disorder.
[40] Application p 35.
On 26 April 2021 Dr Selim recorded that Leonard McLean was seeing Dr Mark Walker and he still had significant symptoms such as lots of nightmares. He was still consuming five to six alcoholic drinks per day and smoking 20 cigarettes per day.[41]
[41] First respondent’s reply p 58.
On 6 May 2021 Dr Terry Kohler, consultant clinical psychologist, engaged by the insurer for the psychological injury claim refers to a conversation with Ms Rich, treating psychologist, that Mr Mclean said he generally drinks three to four glasses of wine per day and has done so regularly for a long time. He added that his alcohol consumption did increase and after separation and then reconciliation with his partner he reported he had stopped drinking. It is noted that Ms Rich said Mr McLean’s doctor had referred him to the Nepean Drug and Alcohol services but he did not attend.[42]
[42] First respondent’s reply p 493.
On 27 May 2021 Dr Selim recorded that Leonard McLean still has recurrent dizzy episodes when he stands up suddenly.[43] The doctor halved the dosage of Coversyl to 2.5mg.
[43] First respondent’s reply p 58.
On 1 June 2021 Dr Selim recorded that Leonard McLean felt much better after halving the dose of Coversyl, he had increased energy and was less unsteady.
On 9 June 2021 Dr Selim recorded that when Leonard McLean attended on him, he appeared intoxicated.[44] He attended several times in the following months but there was no reference to alcohol use in those entries.
[44] First respondent’s reply p 57.
On 9 June 2021 Dr George issued a further medico-legal report after re-examination of Leonard McLean.[45] At the time he was living with his 85-year-old mother at Blacktown. He reported experiencing anxiety and so he does not go to shopping centres or crowded places. Dr George records the history that he no longer takes Naltrexone to prevent alcohol use and so he drinks four to five glasses of wine a day. He was 178cm and 95kg. Dr George diagnosed chronic post-traumatic stress disorder and says, “it is quite possible that his diagnosis of alcohol use disorder might still be relevant.” He said that he needs ongoing psychological treatment to change behaviour patterns which tend to perpetuate alcohol use.
[45] First respondent’s reply p 35.
On 13 September 2021 Dr Selim noted that he had pseudoseizures in the last two weeks, lasting 15 seconds with the upper body shaking only.[46]
[46] First respondent’s reply p 54.
On 7 October 2021 Dr Walker reported to the insurer that Leonard McLean continued to experience significant trauma-based anxiety symptoms on a daily basis and he had panic attacks when he attempted to visit local shopping centres.[47]
[47] First respondent’s reply p 503.
On 20 October 2021 Dr Selim recorded that Leonard McLean had a fainting episode yesterday and was taken by ambulance to Mt Druitt Hospital but he did not wait for a doctor due to anxiety. It is noted that he feels well now. The reason for contact was syncope.
On 29 October 2021 Dr Selim notes that Leonard McLean still has very high anxiety levels and he cannot go to shopping centres. He was still drinking heavily, forty standard drinks per week and he has frequent postural dizziness. He has panic attacks. The doctor noted he had postural hypotension and the Coversyl tablets were ceased.[48]
[48] First respondent’s Reply p 53.
It is recorded in Dr Selim’s notes on 12 November 2021 that Leonard McLean had phoned and advised he had made a contact with a doctor from the Drug and Alcohol Clinic. The reason for contact is recorded as alcohol dependence.
On 29 November 2021 Dr Selim recorded that Leonard McLean had a panic attack in his waiting room. His mood/anxiety levels fluctuate and he still drinks heavily.[49]
[49] First respondent’s Reply p 52.
On 6 December 2021 Nicola Rich, psychologist, reported to Dr Selim that she had 33 sessions of treatment with Leonard McLean up to September but that Leonard McLean did not want to schedule any further sessions.[50] She says on 14 November 2021 he reported he would be linking with the Nepean Centre for Addictions.
[50] First respondent’s Reply p 504.
On 10 December 2021 Dr Selim recorded that Leonard McLean had been contacted by the Nepean Drug and Alcohol Clinic and he will commence counselling in January. His daughter had reported him to the RTA questioning his driving ability.
On 23 December 2021 Dr Selim recorded that Leonard McLean was much calmer and had decreased his alcohol use to three drinks a day.
Dr Adam Walker in his statement dated 27 November 2023 says that Leonard McLean’s health deteriorated after the 2020 incident. He lists a number of observations he had of his father, as follows:
“(a)    To be fearful of public places. He would refuse to go into areas such as shopping centres.
(b)     My father would only go near a public space in certain circumstances. He would for instance, drive his mother to shopping centres so she could purchase essential items. However, my father would refuse to enter the shopping centre, and would instead remain in the car (which he would lock).
(c)     My father experienced social withdrawal. He was fearful and hypervigilant at social gatherings. For instance, my father would need to have some time alone during family gatherings.
(d)     My father informed me on numerous occasions that he could not be around other people due to his psychological condition. Other people stressed him out.
(e)     My father was required to take anti-depressant and mood stabilising medications to manage his symptoms.”[51]
[51] Application p 29.
Benn McLean gives a similar account in paragraph 9 of his unsigned statement of his observation of his father after the psychological injury.[52] Ms Spiteri lived with Leonard McLean from about 2014 or 2015 but moved out two to three years prior to his death according to Dr Adam Walker.[53] In her statement dated 21 November 2023 Ms Spiteri says that after his psychological injury Leonard McLean was reluctant to leave the house and did his best to avoid crowds.
[52] Application p 33.
[53] Statement of Dr Adam Walker dated 12 February 2025 [46].

Events in days prior to death

On 14 January 2022 Dr Selim records in his clinical notes “no alcohol consumption past 48 hrs but still drinking regularly and quite heavily- 1 bottle wine day. Has contacted Nepean Drug and Alcohol but refusing to see them. Social phobia. Still highly anxious.” The reason for contact was recorded as workers compensation, anxiety disorder and alcohol addiction. Dr Selim changed the alcohol assessment to five or six standard drinks on typical day, and six or more standard drinks on one occasion to daily or almost daily. In answer to patient concerned about drinking he wrote, no.[54]
[54] First respondent’s Reply p 51.
Dr Adam Walker states on 15 January 2022 his father was staying at Benn McLean’s residence and Benn rang him and told him that his father had been hallucinating, breathing heavily, exhausted and unable to walk independently. Dr Adam Walker adds that Benn had contacted the ambulance service who recommended his father attend hospital but he refused due to his fear of public spaces, people and the unpredictability of people like drug addicts and people being high on ice in the ER. He says Benn said he was not going to be home in the evening on 16 January 2022 so Dr Adam Walker attended the house in the evening.
The dates given by Dr Adam Walker do not accord with the ambulance records or the statement of Benn McLean. In Benn McLean’s statement and the ambulance records refer to the ambulance attending on Leonard McLean on 16 January 2022.
On 16 January 2022 at 4.30pm an unnamed caller rang the ambulance service advising Leonard McLean had been fainting with hallucinations; he had a history of heart problems with two stents. There is also recorded a history of “alcoholism- withdrawing” and that he had fainted a number of times that day. The past history is recorded as “atrial fibrillation; Post Traumatic Stress Disorder; hypertension; anxiety; depression; alcohol abuse; coronary angioplasty/stent”. In addition to the medications listed earlier it is also recorded that Leonard McLean was taking “Naltrexone generichealth; Venlafaxine hydrochloride”. It is recorded in the case description that Leonard McLean was 64 and his son stated he was an alcoholic with complex post-traumatic stress disorder and after visiting his GP he had been asked to start taking Naltrexone again and that he had not taken it for six months. Apparently, the last time he took it he had dizziness, hallucinations and poor mobility and these symptoms have returned. It is recorded that he has an appointment to attend his GP the next day to discuss that same, he advised the ambulance officers that he had stopped taking Naltrexone the night before and the symptoms were subsiding. It is also noted that he drinks seven to eight glasses of wine a day.
On examination he was alert, orientated, afebrile, tachycardic, and had a postural drop in blood pressure. He refused treatment because he was seeing his GP the next day. It is noted his son was in attendance to care for him.

17 January 2022

Dr Selim’s clinical note for 17 January 2022 has the history that Leonard McLean was brought in by his son. “looked frail today but no other symptoms. Commenced Naltrexone 2 days ago- 50mg/d by Nepean Drug and Alcohol Clinic? Became non responsive after using bathroom at surgery”. The doctor records that he had no carotid pulse, his pupils were dilated and unresponsive and there was no spontaneous respiration. He diagnosed cardiac arrest.
On 17 January 2022 Dr Selim called the ambulance. In the Ambulance Incident Detail Report there are various comments recorded by the call taker prior to the ambulance arriving. These include “HAVING SEIZURE MOUTH FROTHING”. “you are responding to a patient in apparent cardiac (respiratory) arrest. The patient is a 65 -year-old male, who is unconscious and no breathing. Not breathing at all. Cardiac or Respiratory Arrest /Death.”[55]
[55] Ambulance records p 41.
It is noted “PT WAS HAVING SEIZURE IN CAR PRIOR TO GOING INSIDE DRS CLINIC”. The case description states:
“C/T 65yom cardiac arrest witnessed by gp @medical centre. o/a gp giving ineffective cpr to pt, pt son stating pt seizure in car prior gp clinic alcohol withdrawal, unresponsive after presenting to gp, gp commencing cpr. code 2 confirmed ICP back up requested. crew taking over CPR, pads placed on pt, COACHED ran by crew, 1 shock delivered, LMA inserted effective ventilation, iv access unsuccessful, ICP on scene, lucas device placed on pt, extricated via carry sheet, code 3 passed to nepean, pt fitting evidence based trial. urgent transport to nepean, PEA throughout. refer to 903 casheet further information”[56]
[56] Ambulance records p 48.
The past history is recorded as follows:
“Post Traumatic Stress Disorder; acute myocardial infarction occurrence 6 Year/s ago; Alcohol Abuse; Diabetes >> insulin resistance; Coronary Angioplasty / Stent occurrence 6 Year/s ago; Cholecystectomy; Gout.”
Another case description is recorded as follows:
“C/T 1A arrest. O/A 1360 on scene, 64 y.o male pt supine on floor in GP surgery, CPR in progress by 1360, LMA in situ receiving BVM ventilations. HPC: Pt presented to medical centre accompanied by son, son reports pt had seizure in the car on the way there, GP states pt was alert when he arrived, then at 11:28 pt had seizure and witnessed cardiac arrest. CPR commenced by GP immediately and AED applied. Nil AED shocks delivered. Son states pt was well this AM. Management: Pt initially
found on treatment bed receiving effective CPR by GP. Pt moved to floor to continue resuscitation. Initial rhythm found by 1360: PEA. 1x DC schock (sic) administered by 1360 for VF on second COACHED cycle. Unsuccessful IV cannulation attempts on scene. 1903 LUCAS applied. Pt enrolled in EVIDENCE trial by 1903 and randomised to EXPEDITE arm. Pt extricated on carry sheet. IV access gained once loaded. Adrenaline administered. Pt found to be hypoglycaemic. 10% glucose commenced. Code 3 passed to Nepean Hospital and R1 tx with 1360 officers on board. Outcome:
[57] Ambulance records p 59.
ROSC achieved after handover at Hospital but soon afterward pt died in ED.”[57]
The death certificate lists the cause of death and duration of last illness as follows:
“(1)(a) Stroke, immediate
(b) Ischaemic heart disease, 6 years
(c) Alcoholism”[58]
[58] Application p 20.
The name of the certifying practitioner recorded on the death certificate is Dr Maged Selim.
The death certificate form completed by Dr Selim in his handwriting has instructions as to its completion. At 21.1 it has in the first box “Disease or condition directly leading to death. Do not only state the mode of dying such as cardiac or respiratory failure without also stating antecedent causes”. Against this the doctor wrote a) “stroke”. And the approximate duration between onset and death was completed as “immediate”.
On the next line the box on the left states:
“Antecedent causes
Note. If the direct cause of death as described in line a) was due to, or arose as a consequence of another disease injury or condition, this should be reported in line b). Similarly, if the condition in line b) was due to another condition, report this on line c) and so forth.”
Dr Selim wrote “b) Ischaemic heart disease” and the onset was six years. On line c) the doctor wrote “alcoholism” but did not give a duration.[59]
[59] First respondent’s Reply p 508.
The Nepean Hospital records for 17 January 2022 has the triage note that he was “unresponsive, cardiac arrest from GP”.[60] The records refer to the treatment given to him and state “? Death due to stroke, ICH, sepsis with dehydration or recent MI with cardiac failure but no clear cause of death.”[61]
[60] First respondent’s Reply p 517.
[61] First respondent’s Reply p 520.
A fatality notification form was completed on 21 February 2022 recording Dr Adam Walker as the next of kin. I note he holds qualifications including PHD and he not a medical practitioner. The details of the circumstances and cause of death refers to Leonard McLean having an accepted psychological injury claim and states that Leonard McLean died on
[62] Application p 25.
17 January 2022 after stroke or seizure like events and the death is recorded on the death certificate as stroke, heart disease and alcoholism.[62] The copy of the form is partially completed.

Dr Khan

Dr Khan provided a further report dated 30 March 2022 in which he opines that the psychological injury was the cause or major contributing factor to the aggravation of any underlying disease process, specifically alcohol use disorder, which has been listed as a cause of his death on the death certificate.[63] Dr Khan adds:
“Mr McLean had various risk factors for stroke and ischaemic heart disease, including a history of smoking, a history of hypercholesterolaemia, previous ischaemic heart disease with cardiac stenting and a previous myocardial infarction. Commenting specifically on these risk factors and specifically on the other causes of
death, stroke and ischaemic heart disease, is not within my clinical expertise.
That said, as a consultant psychiatrist and addiction medicine specialist, I am able to comment on how chronic psychiatric illnesses, including post-traumatic stress disorder and alcohol use disorder, increase the affected individual’s risk of cerebrovascular events and cardiovascular disease through a direct effect by increasing blood pressure (in the case of both post-traumatic stress disorder and alcohol use disorder) and increasing the risk of atrial fibrillation (in the case of alcohol use disorder).”
[63] Application p 46.

Associate Professor Myers

A/Prof Paul Myers, general and vascular surgeon, provided a medico-legal report to the first respondent’s solicitors dated 21 July 2022.[64] The doctor advises that Leonard McLean had a cardiac arrest and he was asystolic when he arrived at Nepean Hospital, which he explains means there was little or no electrical activity in his heart. He adds that the history is not one which one would associate with an acute stroke, be it cerebral hemorrhage or infarction from thrombotic or embolic disease. A/Prof Myers says as no autopsy was performed one has to posit that he had an acute arrythmia secondary to his coronary artery disease leading to cardiac arrest and death.
[64] First respondent’s Reply p 1.
A/Prof Myers repeats that there is no evidence to conclude he had a stroke but he says stroke has many causes. He adds if it is accepted that his alcoholism was caused by or connected to his employment there can be an increased risk of cerebral degenerative disease associated with alcoholism. However, he concludes this report by stating that if he did have a stroke it would not have been related to his employment and the stroke would have occurred at the same time in his life regardless of his employment.
In a subsequent report dated 9 November 2022 A/Prof Myers reviewed the records from
Dr Selim and Nepean Hospital. He advises that the death was from cardiac arrest, that is, cessation of heart function while at the GP’s office from which he was unable to be resuscitated including by the ambulance officers and hospital staff. He was asystole which means he had no heart rhythm at all. A/Prof Myers says all the evidence points to him having an acute myocardial arrhythmia as the cause of death, probably associated with coronary artery disease. The doctor states the employment did not give him a significantly greater risk of him suffering a heart attack. He says the risk factors for coronary artery disease are similar to those for peripheral artery disease, the main one being genetic or inherited, and the second risk factor is smoking. He says there are other risk factors such as hyperlipidemia, hypercholesterolemia, hypertension, diabetes and so on. Earlier in his report he said that there can be some effects of alcohol consumption of high rate sometimes causing a degree of myocarditis. He says he is not aware of any evidence that he had alcohol induced cardiac disease.
A/Prof Myers provided a further report dated 19 July 2024.[65] He disagrees with Dr Conrad’s opinion and repeats there is no evidence to support that Leonard McLean had a stroke and the symptoms he was showing in the days before his death were more of alcoholic issues rather than any cardiac issues. So, the doctor opines that even if he had gone to hospital earlier the likelihood of cardiac issues being prevented were close to zero. He says there is no evidence that Leonard McLean was having a cardiac event prior to his death. He states that people do have acute cardiac events both within and without hospital that are not predicted and do have cardiac arrests from which they are not able to be resuscitated.
[65] First respondent’s Reply p 12.

Dr Conrad

Dr Conrad, general surgeon, provided a medico-legal report dated 31 May 2024 for the applicant’s solicitors.[66] He proceeded on the basis that the applicant’s father died from a stroke and gave the opinion that the death was significantly contributed to by his psychiatric work-related condition. He found that had he presented to hospital early that may have reduced the likelihood of him passing away as a result of his stroke. He also offers the following opinions:
“It is a possibility that Mr McLean’s refusal to attend hospital as advised on 16 January 2022 may have contributed to his death. It is difficult to say this definitely resulted in his death.
…
As previously stated at the time of his injury, 14 January 2020, Mr McLean was employed as a general assistant at Cobham Juvenile Justice Centre. More likely than not the nature of his employment in a threatening environment in the vicinity of young criminals who would have been placed there as a result of violent crimes did pose a significantly greater risk of a heart attack or stroke injury than had Mr McLean been working in a nonthreatening environment.”
[66] Application p 48.

Dr George

Dr George provided a further report on the papers dated 22 March 2023.[67] Dr George was asked “Do you consider that Leonard McLean’s alleged alcoholism resulted from his psychological injury on 14 January 2020? Alternatively, did it continue on the same course as it was pre-14 January 2020?” the doctor answered:
[67] First respondent’s Reply p 43.
“Referring to the report by Dr Terry Kohler dated 29/4/2021, Dr Kohler
commented on the treatment by psychologist, Ms Nicola Rich. He stated, “Mr
McLean told Ms Rich that he generally drinks 3-4 glasses of wine per day and
has done so regularly for a long time. His alcohol consumption did increase
and after separation and then, reconciliation with his partner, he reported that
he stopped drinking”.
There were liver function tests done over a number of years and recorded in
the GP notes. The liver enzyme, gamma GT, is often raised in people who
abuse alcohol. The normal range for gamma GT when measured is between
0-50 units per litre. On different occasions dating back, at least to 2014, the
gamma GT results were elevated. An elevated result usually indicates abuse
of alcohol for, at least, a month prior to the blood being taken for examination.
This is my understanding but could easily be verified through any pathology
laboratory or access to a gastroenterologist, who could provide expert opinion
on the subject.
On 20/8/2014, the MCH level was elevated at 33 when the normal range is
between 27 and 32. This haematological reading is elevated in alcohol
abuse. Gamma GT results on 20/8/2014 registered 65 and on 29/4/2016
registered 87. Gamma GT was significantly elevated on 25/7/2017 where a
reading of 231 was recorded. The GP notes dating back to 28/5/2010 record
“Standard drinks on a day drinking alcohol, 3 – days of the week, usually
drinks alcohol – 5 to 6/week”.
I believe there is ample evidence to suggest that Mr McLean was a constant
user of alcohol dating back, at least, to 2010. As Dr Haber has indicated, the
usual pattern, if remission from alcohol abuse does not occur, is for the
quantity of alcohol consumed over time to increase. Often, there are
exacerbations and remissions in terms of alcohol use. I believe the 2017
gamma GT results suggest that, at that time, Mr McLean was consuming
alcohol heavily. Therefore, I do not consider that Mr McLean’s alleged
alcoholism resulted from his psychological injury of 14/1/2020. More than
likely, it has continued on the same course, as it was pre-January 2020, with
fluctuations over time, according to stressors. The GP notes indicate that Mr
McLean was subject to previous violence in association with his work at
Cobham Juvenile Justice Centre.”

Associate Professor Haber

A/Prof Haber, cardiologist, provided a medico-legal report for the first respondent’s solicitors dated 8 December 2022.[68] He briefly outlines Leonard McLean’s past medical history. He advises that at the time of his death he was being treated for coronary artery disease since 2015, he was drinking heavily and was being treated for post-traumatic stress disorder. He states that Leonard McLean “died suddenly, so obviously he had a cardiac arrest (stopping of the heart). Not all sudden deaths are due to coronary artery disease, as this may simply be a terminal event due to many possible underlying diseases. The late Mr McLean was obviously going downhill for quite some time as he became very frail and had even trouble just walking. One obvious factor for his frailty was his chronic alcoholism.” However, he states later that Leonard McLean may or may not have had a heart attack injury. He adds that he had chronic coronary artery disease which was already present well before the injury on 14 January 2020. He said there was no reason to consider that the injury caused any change to the symptoms related to coronary artery disease. He concludes by stating that “to a great degree, it is more likely than not that he died as a result of alcoholism or at least this has been a significant contributing factor to his death.”
[68] First respondent’s Reply p 16.
A/Prof Haber provided a further report dated 25 July 2024.[69] The doctor had been provided with Dr Conrad’s report and the statements from the family members. He states:
[69] First respondent’s Reply p 22.
“I understand from these documents that the late Mr McLean on 16 January 2022 was
noted to be hallucinating breathing heavily, being exhausted and hardly able to walk
Ambulance was called and paramedics advised him to go to hospital but he refused
to do so.
On 17th January he saw his GP and while there he collapsed and died. I’m not sure
on what evidence anybody is saying that he had a “stroke”.
The history which I obtained from the notes and reported to you already, Mr Maclean
saw his local doctor in a very frail state After using the bathroom he collapsed,
became unconscious and did not respond to CPR by his GP or paramedics.
History of somebody going to the toilet and dying either there or when walking out is
classical of a fatal pulmonary embolism but of course there are many other
possibilities including heart attack. Considering reduced physical activities he would
be a ‘candidate’ for pulmonary embolism.
Prior to his demise he was very frail, heavy alcoholic and poorly nourished.”
A/Prof Haber says there is no proof he died of a stroke but he does not refer to the death certificate completed by Dr Selim. A/Prof Haber does state that a report from the GP he was being treated by at the time of his death would be helpful. Unfortunately, no such report is before the Commission.
A/Prof Haber answers the question, if Leonard McLean had attended hospital on the day prior to his death, would his death have been averted:
“Description of the events which took place at the time of his death would be very
helpful in assessing the cause of his death. However, I have not seen the report of
the events from his GP. If he died suddenly as he was in or near the toilet this would
make pulmonary embolism or heart attack the most likely cause of his death in this
case being in hospital a day earlier would be unlikely to have made any difference to
the final outcome.
However, if his death was resultant of gradual deterioration of his health by poor
nutrition and alcoholism as well as psychiatric condition then he may have had a slim
chance of surviving or avoiding death on 17 January but that chance would be a very slim one.”

Determination

As the submissions have been sound recorded and a written transcript has been made, I will not recite the submissions verbatim. I will summarise the main thrust of each parties’ submissions when making my determination where relevant.
The first respondent submitted that the first task is to find the cause of the death of Leonard McLean. I accept this is a logical starting point because the relevant provisions of the 1987 Act cannot be ascertained and then applied until the cause of death is identified.
In this matter the applicant and the second, third and fourth respondents have the onus of proving the cause of death because they are the parties making the respective claims for compensation.
Proving the cause of death is difficult in this case because an autopsy was not performed.
Leonard McLean collapsed in the presence of his long-term treating GP, Dr Selim, on
17 January 2020. He was the first doctor to treat Leonard McLean that day.
Dr Selim recorded in his clinical notes that Mr McLean “looked frail today but no other symptoms. Commenced Naltrexone 2 days ago- 50mg/d by Nepean Drug and Alcohol Clinic? Became non responsive after using bathroom at surgery”. The doctor records that he had no carotid pulse, his pupils were dilated and unresponsive and there was no spontaneous respiration. He diagnosed cardiac arrest.
However, on the death certificate Dr Selim advised that the immediate cause of death was a stroke and the antecedent causes were ischaemic heart disease of six years duration and alcoholism for which he did not ascribe a duration.
This case is made more difficult because the applicant and the second, third and fourth respondents did not obtain a report from Dr Selim asking him to explain why he believed Leonard Mclean had a “stroke” and why this appeared on the death certificate whereas his clinical entry for the day does not refer to “stoke” but “cardiac arrest”. I find this is a significant omission in their cases. A/Prof Haber commented that such a report would be helpful.
Another fact that is unexplained is the relevance of Leonard McLean having apparently suffered a seizure in the car on the way to Dr Selim’s surgery. This is a history contained in the ambulance notes. Dr Adam Walker was the son who took Leonard McLean to Dr Selim’s surgery that day. However, he does not refer in his statement to the drive there at all. Again, I find this to be a surprising omission. Details of how Leonard McLean presented on this journey may have assisted the doctors who have not examined Mr McLean in understanding his later collapse. In any event, whatever Mr McLean experienced in the car trip Dr Selim records that he seemed frail but had no other symptoms on arrival at his surgery. This accords with the ambulance history. Dr Selim says he collapsed after he went to the bathroom at his surgery. There is no evidence that Mr McLean was helped to and from the bathroom once he had arrived at Dr Selim’s surgery. Again, Dr Adam Walker’s statement is silent about such details. The ambulance record says:
“Pt presented to medical centre accompanied by son, son reports pt had seizure in the car on the way there, GP states pt was alert when he arrived, then at 11:28 pt had seizure and witnessed cardiac arrest.”
This history suggests that Mr McLean had a seizure in the car and again in Dr Selim’s rooms. This conclusion is supported by the information given to the call taker at the Ambulance Service who recorded that Mr McLean was frothing at the mouth when he was being attended to by Dr Selim when he had collapsed.[70]
[70] Ambulance records p 41.
The first respondent’s counsel drew attention to these histories in her submissions and she argues that there is nothing in the evidence about what caused the seizures.[71]
[71] T41.23.
A/Prof Haber has not considered the relevance of the seizures. He states that a description of the events which took place at the time of his death would be very helpful in assessing the cause of his death and he states he has not seen the report of events from his GP. He does not refer to the details contained in the ambulance records.
A/Prof Haber has postulated a number of causes of the death of Mr McLean. He stated he obviously has a cardiac arrest, being the stopping of his heart. He added that not all sudden deaths are due to coronary artery disease and the heart stopping may have been a terminal event due to many possible underlying diseases. He states there is no information to suggest one way or another whether he had alcoholic cardiomyopathy. In his first report A/Prof Haber stated it is more likely than not that he died as a result of alcoholism or at least that this has been a significant contributing factor to his death.
However, in his second report A/Prof Haber considered that the “[h]istory of somebody going to the toilet and dying either there or when walking out is classical of a fatal pulmonary embolism but of course there are many other possibilities including heart attack”.
I find that A/Prof Haber’s opinions are really just speculation. He has mentioned several times that he would find helpful an account from Dr Selim. While A/Prof Haber is a cardiologist I find he has not ruled out the possibility of a heart attack as being the cause of death and as I have referred to above he has not dealt with the fact that Mr McLean had seizures on 17 January 2022. He raised the possibility of alcoholism being a contributing condition but he also raised the possibility of Mr McLean suffering a pulmonary embolism. I find his analysis is not sufficiently detailed or reasoned for me to rely upon it when determining the cause of death.
Mr Stockley for the applicant submitted that alcoholism was a material contributing factor to the death. He placed reliance on the fact that Dr Selim included it as antecedent cause on the death certificate. He relied upon the opinions of Dr Khan and Dr George pre-dating the death that Mr McLean had an alcoholic use disorder as a comorbid condition as a result of his psychological injury on 14 January 2020. However, the passage quoted by Mr Stockley,[72] being the addiction history, was based upon an understanding by Dr Khan that “prior to the subject injury, Mr McLean consumed alcohol infrequently.” I consider this history to be inaccurate. The following evidence shows Mr McLean drank alcohol more than infrequently before his psychological injury:
(a)    on 28 May 2010 Dr Selim recorded he drank three standard drinks per day, five to six days per week;[73]
(b)    on 8 August 2014 Nepean Hospital recorded he drank four to five standard drinks of alcohol a day;[74]
(c)    at Nepean Hospital from 28 September to 2 October 2015 it is noted he drinks two bottles of wine daily;
(d)    on 29 October 2015 Dr Fernandes reported he drinks a moderate amount of alcohol, [75] and
(e)    on 27 July 2017 it is recorded that Leonard McLean was having greater than 20 standard drinks per week.[76]
[72] T11.11.
[73] Application p 374.
[74] Application p 181.
[75] Application p 194.
[76] Application p 362.
Dr Khan in his first report diagnosed post-traumatic stress disorder and found “he has also developed the comorbid condition of alcohol use disorder.”[77] Whether Dr Khan would have found that Mr McLean “developed” an alcoholic use disorder as a result of the post-traumatic stress disorder if he had known of the extent of his alcohol use beforehand is unclear. In his report dated 30 March 2022 Dr Khan considered the death certificate and report from Dr George dated 9 June 2021 and opined that the psychological injury was the cause of or major contributing factor to the aggravation of any underlying disease process such as the alcohol use disorder. He does not address the prior history of alcohol abuse by Mr McLean so I have difficulty in placing weight on his conclusions.
[77] Application p 38.
Dr George, in his first report, says within two weeks of the psychological injury he started to abuse alcohol and at the time of examination on 21 May 2020 Mr McLean was taking Naltrexone to prevent his drive to drink and he advised he had not been drinking alcohol for three weeks. He gave the further history that he was averaging eight glasses of alcohol a night and his defacto partner kicked him out of the house. He diagnosed an alcohol use disorder. Dr George did not refer to a pre-injury history of alcohol use.
At the time of a second examination of Mr McLean Dr George noted he was no longer taking Naltrexone and he was drinking four to five glasses of wine a day. Dr George stated it is quite possible that his diagnosis of alcohol use disorder may still be relevant.
However, in his further report on 22 March 2023 Dr George lists considerable documents reviewed by him. Dr George opines that there is considerable evidence that Mr McLean was a constant user of alcohol at least back to 2010. He formed the view that Mr McLean’s alcoholism did not result from his psychological injury. He says it is more than likely it has continued on the same course as it was pre-injury, with fluctuations over time, according to stressors. He made reference to the liver function tests pre-injury indicating obvious alcohol abuse.
Mr Stockley did not refer to this last report of Dr George, relying on those prepared for the psychological injury claim. He did refer to Mr McLean being prescribed Naltrexone and the evidence is clear this post-dated the psychological injury. The medical records about alcohol consumption after the psychological injury are as follows:
(a)    on 12 March 2020 Dr Mark Walker notes he was self-medicating with increased alcohol consumption of six standard drinks per day;[78]
[78] Application p 228.
(b)    on 30 April 2020 Dr Mark Walker states he prescribed Naltrexone 50mg daily to assist in reducing his alcohol intake further;[79]
[79] Application p 236.
(c)    on 1 May 2020 Dr Selim’s notes that Naltrexone hydrochloride 50mg was commenced, he was drinking heavily and that he was kicked out of home by his wife;[80]
[80] Application p 353.
(d)    in the Allied Health Recovery Request dated 5 May 2020 there is a history of “alcohol use approximately four glasses of wine daily”;[81]
[81] Application p 174.
(e)    on 19 May 2020 Dr Selim’s records in his clinical notes that he had stopped drinking;
(f)    in May 2020 Dr Mark Walker noted he had recently separated from his partner and Naltrexone had been helpful in reducing his alcohol intake;[82]
[82] Application p 253.
(g)    on 21 May 2020 Dr George recorded he was taking Naltrexone 50mg to prevent his drive to drink and had not drunk alcohol for three weeks; [83]
[83] Application p 243.
(h)    on 15 July 2020 Dr Selim recorded that he denies excessive alcohol consumption but that his wife says he is drinking heavily;[84]
[84] Application p 351 and first respondent’s Reply p 64.
(i)    on 27 August 2020 Dr Selim noted he was drinking heavily, one bottle of wine a day for many years. He had a fall two days earlier due to intoxication. The reason for contact was noted as “? alcohol withdrawal, anxiety, laceration, alcohol addiction”;[85]
[85] First respondent’s Reply p 63.
(j)    on 16 October 2020 Dr Selim noted he was drinking three alcoholic drinks per day and was awaiting an appointment at Nepean Drug and Alcohol clinic;[86]
[86] First respondent’s Reply p 62.
(k)    on 6 November 2020 Dr Selim recorded that he claimed to be drinking two standard drinks per day;
(l)    on 3 December 2020 Dr Selim recorded that Leonard McLean had reduced his alcohol intake to 15 standard drinks per week; [87]
(m)     on 26 April 2021 Dr Selim noted he was still consuming five to six alcoholic drinks per day;
(n)    on 6 May 2021 Dr Kohler refers to Mr McLean drinking three to four glasses of wine per day;
(o)    on 9 June 2021 Dr Selim recorded that when Leonard McLean attended on him, he appeared intoxicated;[88]
(p)    on 9 June 2021 Dr George no longer takes Naltrexone to prevent alcohol use and so he drinks four to five glasses of wine a day;
(q)    on 29 October 2021 Dr Selim noted he was still drinking heavily, forty standard drinks per week;
(r)    Dr Selim’s noted on 12 November 2021 that he had made a contact with a doctor from the Drug and Alcohol Clinic;
(s)    on 29 November 2021 Dr Selim recorded that he still drinks heavily;[89]
(t)    on 10 December 2021 Dr Selim recorded that Leonard McLean had been contacted by the Nepean Drug and Alcohol Clinic and he will commence counselling in January, and
(u)    on 23 December 2021 Dr Selim recorded Mr McLean had decreased his alcohol use to three drinks a day.
[87] First respondent’s Reply p 61.
[88] First respondent’s Reply p 57.
[89] First respondent’s Reply p 52.

It is difficult to determine if Mr McLean’s alcohol consumption did increase as a result of the psychological injury as the records pre and post injury have similar, at times fluctuating, amounts of alcohol being consumed. Again, it would have been of assistance for a report to have been obtained from Dr Selim about this as he would have been well placed to advise as he treated Mr McLean for many years before and after the injury. It is not clear if Dr Mark Walker knew the extent of Mr McLean’s use before the injury. Also, on the death certificate, while Dr Selim put alcoholism as an antecedent cause of death, he did not put the duration of the alcoholism.
Mr Stockley submitted that A/Prof Myers had difficulty concluding that Mr McLean died because of a stroke. I find this is evident from the doctor’s reports.
A/Prof Myers states that Mr McLean clearly had some prodromal issues in the days before with what was said to be increasing confusion and inability to walk. But he says there can be numerous causes for this and none of which have been elucidated. He says this history is not one that one would associate with acute stroke, be it cerebral hemorrhage or infarction from thrombotic or embolic disease.
However, I do not accept that A/Prof Myers supports the argument that Mr McLean died as a result of alcoholism or that alcoholism was a material contributing factor to his death. He states he is not an expert on the effect of long-term overuse of alcohol on the myocardium, that is the heart muscle specifically. He adds he is not aware of any evidence that
Mr McLean did have alcohol induced cardiac disease.
He says in the absence of an autopsy one has to “posit” he had an acute arrythmia secondary to his coronary artery disease leading to cardiac arrest and death. He concludes that all the evidence is that the death was a result of myocardial arrest, almost certainly due to coronary artery disease. He lists the risk factors with the main one being genetic. There is evidence that Mr McLean had a strong family history of coronary artery disease. A/Prof Myers says the second biggest risk factor is almost certainly smoking. The evidence is that Mr McLean was a heavy smoker for most of his life. The doctor also lists other risk factors such as hyperlipidemia, hypercholesterolemia, hypertension and diabetes, Mr McLean suffered from these conditions.
A/Prof Myers does not support the alternate proposition that if Mr McLean went to hospital on 16 January 2022 he would have been treated to either prevent a stroke or heart attack if either were present. He states that the statements of the family members do not support he was having a cardiac event or stroke on that day. He says people do have cardiac events within and without hospital that are not predicted and they do have cardiac arrests from which they are not able to be resuscitated and he suspects this is the case with Mr McLean.
For these reasons, A/Prof Myers does not support a causal connection between the psychological injury on 14 Janaury 2020 and cardiac cause of death. He does not support the alternate argument of counsel that if he had gone to hospital on 16 January 2022, his death could have been prevented.
To the extent that it is necessary, I prefer the opinion of A/Prof Myers to that of Dr Conrad because his opinion is more reasoned and he has considered the available evidence whereas Dr Conrad has proceeded on the assumption that Mr McLean died of a stroke.
However, neither A/Prof Myers nor Dr Conrad have considered the evidence of Mr McLean having a seizure in the car on the way to Dr Selim’s rooms on 17 January 2022 and collapsing having a seizure with frothing at the mouth.
Mr Hickey submitted from examining Dr Selim’s notes there was a significant earlier history of alcohol use but he submits from Dr Khan’s first report the evidence is the alcohol intake escalated between 14 January 2020 and 17 January 2022. However, I have dealt with this argument above. Dr Khan had the history that Mr McLean consumed alcohol infrequently before the psychological injury and I have found this is incorrect. I am not convinced the records show the alcohol intake escalated after the psychological injury. The only doctor to look at the records in detail is Dr George in this last report and he is of the opinion the pattern of alcohol use did not show an escalation. Mr Hickey refers to some of the entries about alcohol use such as on 14 January 2022 of one bottle of wine a day yet in 2015 Nepean Hospital has a history he was drinking two bottles of wine a day. I find accept Dr George’s opinion that Mr McLean had continued alcohol use, not an escalation or aggravation caused by the psychological injury.
Mr Hickey adopted Mr Stockley’s submissions but also submitted about s 9B of the 1987 Act. He said the Commission does not need to consider applying that section if his and
[90] T29.31-30.05.
Mr Stockley’s submissions are accepted. He argues that in any case the indefinite article is used in s 9B “no compensation is payable under this Act in respect of an injury…” He argues that the injury is the post-traumatic stress disorder because that is the injury which is the injury that is associated with a heart attack injury in this case.[90]
Section 9B of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”
Mr Hickey argues that “this is not a case where you have an atrial ventricular fibrillation at work caused by stress or whatever event at work that’s the focus. This worker dies some two years after the event and one must look at the injury that’s causative”.[91]
[91] T 30.13.
The injury being relied upon under s 4 of the 1987 Act is the psychological injury sustained on 14 Janaury 2020. It is argued that as a result of the injurious event Mr McLean also developed an alcohol abuse disorder or, alternatively, an aggravation of his prior alcohol condition. I have explained why I find that the evidence does not support that Mr McLean developed an alcohol abuse disorder as a result of the events on 14 January 2020. I have also rejected that the evidence establishes on the balance of probabilities that there was an aggravation of his prior alcohol condition because I have preferred the opinion of Dr George in his last report, who having considered all the evidence has concluded the alcohol condition was continuing from pre-injury.
The fact that Dr Selim included alcoholism in the death certificate does not provide a causal connection to the injury on 14 January 2020. He did not advise the duration of the alcoholism. A/Prof Myers has provided an opinion as to why he favours a diagnosis of a cardiac arrest secondary to coronary artery disease. He states Mr McLean was in asystole, that he had no cardiac rhythm or output when he present to Nepean Hospital. But he says he has to “posit” this explanation. This means he has to assume this is cause of death. A/Prof Haber does not rule out a cardiac cause. However, he required a report from Dr Selim in order to give a considered opinion. I consider both doctors are really just engaging in speculation.
I find that those claiming dependency have not discharged their onus of proof because the Commission is left in a position where it simply cannot determine the cause of death as all the experts are indulging in speculation without sufficient evidence to determine the cause of death. It concerns me that none of the experts have considered the fact that Mr McLean had seizures on 17 January 2022. Nepean Hospital had a history of seizure and access to the ambulance records yet they could not be certain of the cause of death and the doctors there had the advantage of actually examining and treating Mr McLean. Furthermore, as I have observed the absence of a report from Dr Selim is a significant omission.
Having reached this conclusion, I find I do not need to deal with s 9B. I determine there should be an award for the first respondent.
I do not agree with Mr Hickey’s interpretation of s 9B. I accept the “injury” for which compensation is sought is that on 14 January 2020, the psychological injury. I agree it is not an injury in respect of an injury that “is caused by” a heart attack injury. However, if I had accepted that the psychological injury caused an aggravation of the prior alcoholism and that was the cause of death, then s 9B would apply because that injury “results in or is associated with a heart attack injury”.
For completeness, I note that Mr Morgan drew attention to the history recorded by Dr Kohler about alcohol consumption and from Ms Rich, which I referred to above. The passage from Dr Kohler does not really advance the dependents’ case as he refers to Mr McLean drinking three to four glasses of wine per day in his report dated 6 May 2021, and it is evident that
Mr McLean regularly drank more than this prior to the psychological injury.
Mr Morgan also submitted that the evidence from the children showed the deceased clearly deteriorated over the course of the months towards the end of 2021 and into 2022.[92] I do not accept this submission. Dr Adam Walker in his statement dated 27 November 2023 in paragraph 9 lists the ways his father’s health deteriorated after the work incident and he does not mention increased alcohol use, or alcohol use at all. His list is focused on his father’s disinclination to go out. Ms Spiteri does not refer at all to his alcohol use. The statement from Benn McLean also does not refer at all to alcohol use and is focused on his father’s disinclination to go out. Kayla Byrne’s statement does not refer to alcohol use.
[92] T35.16.
I find it remarkable that none of the family members gave evidence in their statements about the alcohol use of Mr McLean before and after the psychological injury.
I find their onus of proof has not been discharged. However, had I found Mr McLean died from a stroke or heart attack, and accepted the reason he did not attend the hospital on 16 January 2022 was due to social phobias caused by his psychological injury, I would not have been persuaded that if he had attended hospital that day it would have prevented his death, relying on the opinion of A/Prof Myers. I find it is impossible to know if he could have been saved when it is not known what killed him.
In summary I find:
(a) award for the first respondent.

[2025] NSWPIC 270

17 June 2025