Woolworths Limited v Christopher-Coates

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14
APPELLANT:	Woolworths Limited
RESPONDENT:	David Christopher-Coates
INSURER:	Self-insured
FILE NUMBER:	A1-6020/12
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	8 November 2013
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	19 February 2014 21 March 2014
SUBJECT MATTER OF DECISION:	Death claim; heart attack; factual findings; assessment of expert evidence; disease provisions; ss 4(b)(i), 4(b)(ii), 15 and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr Catsanos, instructed by Berry Buddle Wilkins Lawyers
Respondent:	Mr Morgan, instructed by Beilby Poulden Costello
ORDERS MADE ON APPEAL:	1. The orders made in the Certificate of Determination dated 8 November 2013 are confirmed. 2. The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.

BACKGROUND TO THE APPLICATION

Marie Kathleen Scanlan (the deceased) was employed by the appellant, Woolworths Limited (Woolworths), as an operations site manager, at the Plumpton Petrol Site and mini mart. On 16 April 2009 the deceased suffered a fatal heart attack whilst en route to a management meeting.
It is not in dispute that the deceased suffered from a number of comorbidities which predisposed her to the risk of cardiac disease. It is alleged that her death resulted from a disease contracted by the deceased in the course of her employment under s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), or, alternatively, the death resulted from the aggravation of a disease under s 4(b)(ii) by reason of the stressors of her employment as an operations site manager from June 2000 by reason of:
(a)     the requirement to work unsuitably long hours;
(b)     being on call 24 hours a day 7 days per week;
(c)     operating with inadequate or insufficient assistance;
(d)     being denied annual leave requests, and
(e)     being required to work double shifts.
The deceased’s three children; Natalie Jean Christopher, David William Christopher-Coates and Julie Marie Christopher (the dependants), brought an application pursuant to s 25 of the 1987 Act for lump sum compensation to be apportioned equally between them.
On 25 August 2010, Woolworths’ solicitors issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Woolworths denied liability for the following reasons:
“1.     The death of Marie Scanlan did not arise out of or in the course of employment with Woolworths.
2.       Marie Scanlan’s employment with Woolworths was not a substantial contributing factor to her death.
3.       Marie Scanlan’s death was caused by lifestyle factors unrelated to her employment with Woolworths. In this regard we refer to the expert medical opinion served by you. Dr Brender (cardiologist) stated: ‘as discussed above, Ms Scanlan’s lifestyle factors and vascular risk factors were almost certainly the major contributing factors leading to her death’.
4. Whilst Woolworths accepts Marie Scanlan was on a journey from her place of abode to a training session at the relevant time, due to the operation of s 10(1D) of the Act, Woolworths state that s 10(1) of the Act does not apply.
5.       Marie Scanlan’s death resulted from a medical condition unrelated to her employment and the journey did not cause or contribute to the death.
6. Woolworths does not believe David Christopher-Coates or Natalie Christopher to be dependent on Marie Scanlan. Woolworths does not believe the statements attached to the draft application in respect of the death of a Worker support a finding of dependency as contemplated by s 25 of the Act.
7.       Woolworths relies on the following:
i.Section 4 of the Workers Compensation Act 1987
ii.Section 9A of the Workers Compensation Act 1987
iii.Section 10 of the Workers Compensation Act 1987.”
Woolworths subsequently withdrew the denials with respect to the dependency of David Christopher-Coates and Natalie Christopher.
The matter came before a Commission Arbitrator for an arbitration hearing on 24 May 2013. Both parties were represented by counsel. No oral evidence was called at the hearing. The Arbitrator reserved her decision.
On 8 November 2013, the Commission issued a Certificate of Determination and the Arbitrator’s Statement of Reasons.
The Arbitrator found that the deceased died as a result of an injury “for the purposes of ss 4 and 25 of the Workers Compensation Act 1987”. She found that the deceased’s employment with Woolworths was a substantial contributing factor to that injury and therefore the requirements of s 9A of the 1987 Act were satisfied. As there was no dispute about dependency, orders were made under s 25(1)(a) of the 1987 Act. The maximum compensation was apportioned equally between the dependents.
The Certificate of Determination of 8 November 2013 is in the following terms:
“1. I find that on 16 April 2009 Marie Kathleen Scanlan died as a result of an injury for the purposes of sections 4 and 25 of the Workers Compensation Act 1987. Her employment with the respondent was a substantial contributing factor to that injury for the purposes of section 9A of the Workers Compensation Act 1987.
2. It was not disputed, and I so find, that as at 16 April 2009 Natalie Jean Christopher, David William Christopher-Coates and Julie Marie Christopher were dependent for support on Marie Kathleen Scanlan in satisfaction of the requirements of section 25(1) of the Workers Compensation Act 1987.
4.[sic] I am satisfied that as at 16 April 2009 no other persons were dependent for support on Marie Kathleen Scanlan.
5. I find that the compensation payable on the death of Marie Kathleen Scanlan from injury on 16 April 2009 in accordance with section 25(1)(a) of the of the [sic] Workers Compensation Act 1987 is $433,650.
6.       In accordance with section 29 of the Workers Compensation Act 1987 that compensation is to be apportioned as follows:
(a)$144,550 to Natalie Jean Christopher;
(b)$144,550 to David William Christopher-Coates, and
(c)$144,550 to Julie Marie Christopher.
7. In accordance with section 85A of the Workers Compensation Act 1987 I authorise and direct that the sums as apportioned above be paid directly to them by the respondent.
8. Pursuant to section 26 of the Workers Compensation Act 1987 the respondent is to pay reasonable funeral expenses in respect of the death.
9.     The respondent is to pay the costs of the applicant in these proceedings.
10.     I am satisfied this matter was complex medically, legally and factually. Pursuant to Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2011 I certify this matter as complex with 30 per cent increase in the costs otherwise available to both parties.”

PRELIMINARY MATTERS

There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ISSUES IN DISPUTE

Woolworths has appealed the Arbitrator’s determination on the basis that the Arbitrator erred as follows:
(a)     finding that Dr Brender’s conclusions were based on the facts found by the Arbitrator (Dr Brender is a Consultant Cardiologist retained by the dependant’s solicitors);
(b)     finding that Dr Brender concluded that work related factors caused the underlying disease that led to the deceased’s death;
(c)     finding that Dr Brender accepted work related factors to be the main aspects of the deceased’s adverse lifestyle;
(d)     to the extent that she found the deceased’s sedentary lifestyle to be a product of work-related stressors;
(e)     finding that work related factors contributed in a real sense to the underlying vascular disease that caused the myocardial infarction and ultimately the deceased’s death;
(f)      finding that employment caused or contributed to an aggravation, acceleration, exacerbation or deterioration of the underlying coronary vascular disease;
(g)     finding that the dependants had discharged the burden of proof;
(h)     regarding the evidence of Dr Brender as establishing causation on the balance of probabilities;
(i)      attaching significance to Woolworths bringing no “positive medical case”;
(j)      failed to give adequate reasons as to the significance attached to the appellant not presenting “a positive medical case”;
(k) finding injury within the meaning of s 4(b)(ii) of the 1987 Act, or alternatively
(l) finding that employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act.

THE EVIDENCE

David William Christopher-Coates

David William Christopher-Coates is the son of the deceased. He was born on 19 July 1983. Mr Christopher-Coates was not living with his mother at the time of her death but states that he spoke with her daily and saw her once per week.
Mr Christopher-Coates stated that his mother always appeared tired and stressed and fed up with work. She complained that she did not have enough staff and was required to work too many hours. For approximately six months prior to her death the deceased had repeatedly asked her employers if she could take leave which was owed to her but her requests were denied and she was told to wait until a more opportune time arose. He stated there were other occasions where approved leave had been cancelled because of a lack of replacement staff.
When off duty, Mr Christopher-Coates observed that his mother received phone calls on her mobile phone from employees of the petrol station or the head office personnel between every hour or two. The frequency of the calls caused his mother to obtain a new landline telephone number which she did not make available to her employer. He stated that the phone calls to her mobile and home phone disrupted her life and her sleep patterns. She received calls all hours of the day and night.
On average the deceased worked six to seven days per week. There were occasions when she worked 14 days straight. On other occasions, after completing a shift she returned home for between five and eight hours and returned to work again. He stated that his mother made no extra money for working overtime. The deceased was partly remunerated by way of a bonus, payable on the condition that the station for which she was responsible achieved a budget target. In order to do this, she worked additional shifts to ensure that the station did not exceed budget by paying additional wages.
Mr Christopher-Coates claimed that his mother repeatedly requested her employer to provide additional employees so that the work could be spread more evenly but these requests were denied. He said that his mother frequently spoke of being overworked and exhausted and that she was sleep deprived. The deceased was often required to work outside of rostered shift hours in order to attend to problems that had emerged at the worksite.
Beyond the workplace, Mr Christopher-Coates stated that there were no other known causes of any stress in his mother’s life. Her relationships and finances were stable. He stated that at the time of her death, work was the dominant force in his mother’s life. It was where she spent most of her time and it was the activity to which she dedicated most of her energy and thoughts. In the lead-up to her death she sounded and looked physically exhausted.

Julie Marie Christopher

Julie Marie Christopher is a daughter of the deceased. Ms Christopher was born on 17 October 1986. She was living permanently with her mother at the time of the mother’s death.
Ms Christopher stated that her mother had been employed at the petrol station for about ten years. In 2002 she had been promoted to manager. In mid-2007 it became a 24 hour petrol station. Since that time her mother often worked overnight, operating shifts that ran from 11.00 pm to 1.00 pm the following day. The number of hours worked or when they were in the day did not affect her weekly remuneration.
The deceased was eligible for yearly bonuses which were dependent upon the performance of the petrol station. For three years on a daily basis, Ms Christopher claimed, her mother came home from work exhausted and would say words to the following effect: “I’ve had enough. I can’t take it anymore. I have idiots working for me. I have no support. I’m always exhausted”.
Ms Christopher claims that her mother spoke to her supervisors and the area manager approximately once per fortnight about the problems that she was experiencing at the workplace. On several occasions Ms Christopher observed her mother in tears on the phone to her supervisor, however, no steps were taken to assist her.
Ms Christopher stated that on several occasions when talking to her mother about the work situation her mother broke down in tears stating that she was unable to cope. Continuity of assistance was a constant problem. She cited, by way of an example, the assignment to her mother of a heavily pregnant woman, going on maternity leave in six weeks of her appointment, as someone assessed to be suitable to be second in charge.
Ms Christopher alleged that her mother’s weight fluctuated and her appetite diminished. She stated that in 1988 her mother was diagnosed with cancer although Ms Christopher was not made aware of this until 1996. Between 2003 and 2006 her mother was treated with chemotherapy and radiation. During this period she continued working. She stated that her mother worked mostly seven days per week.
When her mother did get a day off work she was constantly interrupted by phone calls from relief staff at the petrol station. The deceased’s salary was based on working a 45 hour week, however, she worked closer to 70 hours per week.
Outside of her employment difficulties her mother’s life was going well. She had no financial problems and she was in a long term stable and happy relationship. Ms Christopher stated “work was the focus of my mother’s life. It was a constant source of stress for her and a constant drain on her energy and time”.

Natalie Jean Christopher

Natalie Jean Christopher is a daughter of the deceased. She was born on 15 April 1982.
Natalie last lived with her mother in 1997. She said that she spoke to her mother on average two to three times per week by telephone. Her mother often sounded tired and mentioned feeling tired. Often this was because she had worked a 16 hour shift without a break. Even after a 16 hour shift she would sometimes be required to deal with telephone enquiries from co-workers.
Natalie stated that “the culture of the petrol station was one of ‘deference’ to my mother”. She was often contacted by telephone with enquiries. When her mother visited her on weekends (her mother left her telephone on 24 hours a day) and her phone “rang a lot”. Her mother’s requests to take annual leave, in five day blocks, which had accrued were either denied or were postponed for weeks or months. Most recently she had requested leave in April 2009 but was told to postpone any leave until May 2009. She could not recall the last time her mother took a holiday that constituted annual leave.
Despite having control over the rosters her mother felt that she didn’t have much choice other than to roster herself on for so many hours. This was because her annual bonus was determined by her results relative to budget. By taking on more hours at the station she was more likely to come in at a lower budget and increase the prospects of receiving a bonus. There was therefore a financial incentive to work longer hours.
Natalie claimed that each year her mother’s expenditure budget went down and her revenue budget went up. This made it harder for her to achieve budget. Because her expense budgets were often under budget, the budget for the following year was reduced to match the overheads actually incurred in the previous year. This resulted in her engaging fewer staff and working more hours herself. About twice per week her mother worked 18-20 hours per day. On average her mother worked 50-60 hours per week, six or seven days every week. Natalie denied there being any other aspects of her mother’s life to be causing her any stress and confirmed that she was in a stable financial position and enjoyed a stable and happy relationship with her partner. Natalie confirmed that her mother had on a number of occasions expressed the frustrations she felt at the inadequacy of staff both in terms of numbers and competence.

Anthony David Weismantel

Anthony David Weismantel was in a relationship with the deceased for four and a half years prior to her death. Mr Weismantel travelled frequently but saw the deceased at least once per week. When he was in Sydney and not travelling he saw her daily.
The deceased often spoke about her work situation and to Mr Weismantel’s observation she was under a visible amount of stress and quite often spoke about it. He added that during her days off work or even during the course of social outings she received telephone calls from work colleagues.
The deceased’s complaints about the stress she felt at work occurred at least weekly and were the subject of conversation. Mr Weismantel said that the deceased told him that she had been trying to get approval for more staff but wasn’t able to do so and was forced to work long hours herself even when she was unwell. She had difficulty getting approval to take annual leave which was continually refused due to a lack of personnel to fill in for her.
Mr Weismantel stated that the deceased undertook weekly treatment for a cancer condition which was known to her employers. He said she frequently looked tired and in pain. The deceased returned to work even after chemotherapy sessions, even though she wasn’t well enough to work, because it was easier for her to do so rather than to deal with the consequences of having alternate staff substituting her.

The remuneration arrangements under which the deceased worked were explained by Mr Weismantel. He said:
“Marie told me that the bonus structure that Woolworths had in place was that she was given a budget for her petrol station. If Marie exceeded that budget she was eligible for a bonus. Through hard work Marie almost always exceeded her budget. The outgoings of that budget included staff wages and salaries. Therefore there was an extra incentive for Marie to work shifts herself.”
The receipt of bonuses was an important issue for the deceased. She relied on these to help support her children financially. The deceased drank alcohol once per week, she smoked two to three cigarettes a day and her appetite was poor.
The deceased was often required to attend meetings on her days off. Mr Weismantel said:
“On the day of her death Marie was on her way to one such meeting. Marie found these meetings very stressful to go to; Marie worried that the outcome of these meetings would affect her bonus. On the day of her death Marie was heading to an area meeting at the Yagoona headquarters.”
The deceased had accrued a lot of annual leave at the time of her death. She had difficulty getting her leave approved and on approximately three occasions the deceased told Mr Weismantel that she had been “knocked back” for leave approval. The deceased rarely took sick leave and on the occasions that she did she was interrupted by repeated phone calls.
In the two weeks leading up to her death, Mr Weismantel stated that he noticed the deceased on three occasions appearing to be in extreme pain. The deceased told him that she was experiencing a pain in her chest and her arm and he observed that she was sweating.
In relation to the events immediately preceding her death Mr Weismantel said:
“The last time I spoke to Marie was on the evening of 15 April 2009. We spoke by telephone, as I was in Brisbane at the time. During this conversation Marie told me she was very unhappy and stressed about having to go to a meeting at Yagoona the following morning. Marie had mentioned to me in the past that she did not agree with a lot of the decisions that were made at these area managers’ meetings. In the past, these meetings had been very stressful for her. Management decisions such as staffing were made at the area managers’ meetings and staffing was always a problem for Marie. Marie had asked Woolworths to address her staffing issues on a number of occasions, to no avail. She would often go to these meetings, with a view to persuading the area managers to allocate more staff to her. However she would always be told at these meetings that they could not accommodate her needs. She felt frustrated and powerless regarding the decisions made at these meetings and found the meetings unpleasant and stressful.”

The deceased was secure financially and enjoyed good relationships with her children and was in a close and stable relationship with Mr Weismantel.

Elizabeth Anne Ferreira

Elizabeth Anne Ferreira was a former work colleague and close personal friend of the deceased. Ms Ferreira lived in Melbourne but spoke to the deceased by telephone at least once or twice a day and visited the deceased in Sydney every two and a half months for the four years before her death.
Ms Ferreira and the deceased were work colleagues initially at the Richmond Woolworths supermarket and petrol site, and from 1999 at the petrol station at Plumpton where the deceased worked as the manager. During the time that they shared a shift together, the deceased commenced work at 4.00 am and continued working until 2.00 pm or 3.00 pm Monday to Friday.
As a manger the deceased was required to work for 10 hours a day but often worked many more hours than this.
Ms Ferreira stated she was aware that the deceased worked double shifts and weekend shifts. This happened frequently because of insufficient staff. During the course of their daily conversations the deceased said that she felt very stressed and was not coping with running the petrol station by herself. Ms Ferreira confirmed that the deceased was receiving ongoing treatment for cancer including chemotherapy sessions which often made her feel unwell.
To Ms Ferreira’s observations the deceased worked with an inadequate number of staff. The deceased complained about this particularly during the last 12 months of her life and stated that she felt exhausted by the work.
Ms Ferreira confirmed that the deceased had applied for but had been denied opportunities for annual leave and that this had happened on several occasions. At the time of her death the deceased had accrued 12 weeks of annual leave.
Ms Ferreira stated that the deceased was paid for ten hours of work per day in a 50 hour week but in fact she worked somewhere between 60 and 70 hours per week without any additional remuneration.
At the beginning of every year the deceased was allocated a budget which she was required to meet in order to achieve an annual bonus. The more her results exceeded budget expectations the more bonus she received. Included in the annual budget was an allocation for wages of staff, stock and petrol. This put significant pressure on the deceased to stay within her allocated budget and to work extra hours herself in order to do so. The budget was difficult to achieve.
Ms Ferreira stated that the deceased often broke down in tears in the course of their telephone discussions because of the pressure of work and her inability to cope.
When Ms Ferreira worked at the Plumpton site she was the deceased’s second in charge. After Ms Ferreira left, the deceased complained that she never had a competent replacement.
In order to keep the site running efficiently, the deceased constantly took phone calls from staff members outside of working hours. The deceased felt that her staff were unreliable and inadequate and often left allocated tasks uncompleted. At the time of her death the deceased did not have any sources of stress in her life other than her work.
Ms Ferreira confirmed that on the day the deceased died she was heading to a meeting with other site managers.

The deceased’s letter to Mr Greenhalgh of 16 September 2008

On 16 September 2008, the deceased wrote a handwritten letter to Mr Rod Greenhalgh who was employed by Woolworths as the petrol area manager responsible for the deceased’s site. The letter bears a marking indicating that it was faxed to a phone number in Melbourne on the day that it was written at 10.07 am. Mr Greenhalgh denies that he received the letter.
The letter is in the following terms:
“16/9/08
To Rod Greenhalgh
I wish to express myself, I the Manager, Marie Scanlan of Plumpton Site 1512.
Over not only the past years, but now the past few months, I have continually been doing unessary [sic] shifts due to
SHORTAGE OF STAFF
NOT BEEN ABLE TO Receive Help, when needed from other sites, Reason again, same problem, SHORTAGE OF STAFF.
There seems to be a problem with HR NOT Aknowleging [sic] the IMPORTANCE OF THIS PROBLEM nor yourself, not only within my site but others as well.
We are a growing Multi National Company and Petrol has grown along with it. And we need as a Team to realise this, and give it as much attention as the supermarkets receives [sic].
This has been a continual problem since I have been a Site Manager, which I find is not acceptable. Do you think we could address this matter, seriously. The moral [sic] of my staff is poor, because of extra shifts that I have had to demand from them. And most of all my ability to manage this site is really hampered by the excessive hours I have had to put in Recently.
Rod there is no point in giving me staff, that is no good to me SHORT TERM. I need as you know as the Manager of site 1512, that the takeings [sic] are very high to most, and reliability and responsibility is very much needed for this busy site, that can only grow more and more in the future, with this appriate [sic] help.
Hopefully I hope you address this matter urgently, or you may stand to loose [sic] good staff, as well as a Site Manager.
I regret that we have had to get to this point as a Manager, but something needs to be done as soon as possible,
Yours
Marie Scanlan
Manager of SITE 1512.”

Rodney Wayne Greenhalgh

Mr Greenhalgh prepared a statement, dated 8 September 2009, concerning the events as they unfolded on 16 April 2009. They described a series of phone calls and investigations that took place to locate the deceased’s whereabouts following her failure to arrive at the agreed time.
Mr Greenhalgh described a telephone conversation that took place at approximately 7.30 am on 16 April 2009 with an employee known as Kelly at the Plumpton petrol site, he said:
“7.30am – rang Kelly at the site (Plumpton) and asked if she had heard from Marie as it was unusual of her not to show up for pre-arranged business. Ms Kelly said that she had spoken to Marie at about 6.00am and at the time she was getting ready to go to the meeting and could not offer any explanation as to where she could be. I was concerned and asked Kelly what time she finished her shift, Kelly said 10.00am. I asked Kelly would she do me a favour and drop into Marie’s home to check if she was okay.”
The statement goes on to detail his dealings with the police after the deceased was located in her car and his conversation with relevant staff and family members that day.
Mr Greenhalgh provided a signed statement dated 18 October 2010. Mr Greenhalgh states that he is currently employed by Woolworths as the petrol area manager of 16 petrol sites including that for which the deceased was responsible at Plumpton. The deceased reported to him from October 2006.
Mr Greenhalgh denied receiving any complaints from the deceased regarding her working hours or conditions. He denied imposing any unreasonable working demands and further denied that the deceased worked under a stressful or unreasonable working environment.
The deceased was scheduled to work 40 hours per week but was expected to work 45 hours per week. As manager she was free to choose her own hours but generally chose to work the “graveyard shift” which commenced at 4.00 am and generally finished between 2.00 pm and 4.00 pm.
The deceased worked under a budget arrangement which was set by the national office.
Mr Greenhalgh confirmed that there was an occasion for a brief period between 22 September 2008 and 19 October 2008 where the deceased was allocated a second in charge by the name of Amie Cini. She was transferred to the Plumpton site from Narrabeen at her request to reduce her travelling time during the course of her pregnancy. Ms Cini finished at the Plumpton site on 19 October 2008 to go on maternity leave.
The site at Plumpton warranted a salaried second in charge (2IC) and also a trainee manager (3IC) however the deceased chose not to have any other salaried employees because of her desire to use her own staff. He stated that the Plumpton site was staffed with experienced personnel and did not experience a high turnover. The deceased had never raised with him any performance or attendance issues with the staff.
Site mangers were not expected to return to the site outside of normal working hours but it did happen from time to time. When that did occur the managers were entitled to take compensatory leave. In the event of an inadequacy of staff the deceased was required to escalate that matter to Mr Greenhalgh so that he could assist in finding appropriate staff. He was on call 24 hours a day.
Mr Greenhalgh accepted that he was aware that the deceased routinely filled in for staff but stated that this was not an expectation of Woolworths, nor that their employees perform double shifts.
Staff are not expected to work outside of normal hours and he was unaware that this had been occurring in the deceased’s case.
Mr Greenhalgh denied that the deceased had ever made an application for annual leave which had been declined. His records revealed that back to 2007 there had been no evidence of any application for leave which had been refused.
The deceased had a great rapport with her staff and they were very loyal to her however in Mr Greenhalgh’s view this rapport was largely the result of her willingness to always fill in and cover for her staff when they were unable to attend work. He said in many ways her staff were loyal to her as they were able to get away with working practices which would not be tolerated by other managers.
He denied that the deceased had spoken to him about any medical condition in particular any cancer condition. He was aware that she took medication but did not pry into her health issues.
Mr Greenhalgh denied ever calling the deceased on her home phone and always made contact with her via her mobile phone. He said he rarely contacted her out of hours. In response to being shown a copy of the deceased’s letter of 16 September 2008, Mr Greenhalgh said:
“I deny that I ever sighted this correspondence or was aware of same during the time that Marie Scanlan was alive. I find the correspondence out of the ordinary because of its tone and the nature of the complaints. At the time of this letter being drafted by Marie Scanlan we had just employed a 3IC (trainee manager) for the site. I cannot understand if the correspondence was drafted by Marie Scanlan, why she never raised any issues directly with me.”

Constable Matthew Glynn

Constable Glynn stated that at about 8.00 am on 16 April 2009, in response to a radio call, he attended a vehicle parked outside 65 Wayne Street, Dean Park. By the time he arrived at the scene Ms Scanlan was deceased. His observations indicate that her vehicle was parked about 80 cm from the kerb partially blocking a driveway. There was no evidence of any damage to the vehicle. The driver’s window was down and the engine had been switched of. His statement identifies discussions he had with witnesses at the scene.

Autopsy report

An autopsy report, dated 17 April 2009, was prepared for the coroner, by Liliana Schwartz of the department of forensic medicine.
Dr Schwartz provided the following post mortem summary:
“At autopsy, there was no obvious evidence that may explain the sudden demise. There was evidence of haemopericardium (blood in the pericardial sac); the source of this blood was a ruptured left ventricle which shows an acute myocardial infarction. The lungs were oedematous and congested; the liver showed fatty changes. The lymph nodes showed reactive changes.
Under microscopic examination, there was evidence of an acute myocardial infarction, long term ischaemic heart disease and features suggestive of lipomatous hyperplasia of the right ventricle. The lungs were oedematous and congested and the liver showed fatty changes in the central areas.
The toxicological analysis was negative.”
The autopsy examination findings indicated that the body was that of an obese female consistent with the stated age of 49 years. Her body weight was 110.5 kg and body length 1.58 metres, BMI – 44kg/m².

Dr David Brender

Dr David Brender is a consultant cardiologist retained by the dependents’ solicitors. Dr Brender is the only medical expert who gave evidence in the proceedings. His evidence and the Arbitrator’s treatment of his evidence, are central to the disposition of this appeal. Dr Brender provided two reports, the first dated 12 April 2010 and a supplementary report dated 25 July 2012. His first report proceeded by way of response to a series of questions posed by the solicitors for the deceased. Due to the significance of Dr Brender’s evidence and the reference to it by both parties to the appeal, it is necessary for his evidence be extracted in full.
In his report of 12 April 2010 Dr Brender gave the following evidence, responding to a series of questions put to him by the dependant’s solicitors:
“1. What was the cause or causes of the death of Marie Kathleen Scanlan?
As stated in the autopsy report for the coroner, from the Department of Forensic Medicine, the direct cause of death was a haemopericardum due to cardiac rupture. The antecedent cause was an acute myocardial infarction consequent upon her significant underlying three vessel coronary artery disease. The autopsy refers to a 90% luminal narrowing of the proximal segment of the diagonal branch of the left anterior descending artery, a small left circumflex artery with up to 80% luminal narrowing and an 80% luminal narrowing in the mid right coronary artery. In addition there was mild to moderate arteriosclerosis in the aorta.
2. With reference to the statements enclosed with this letter, could any or all of Ms Scanlan’s lifestyle factors, as discussed by her family and friends, more likely than not, have contributed to the cause or causes of Ms Scanlan’s death?
The lifestyle factors were certainly the major contributing cause of Ms Scanlan’s underlying coronary artery disease. She was obese at 110.5 kgs for a height of 1.58 metres, this puts her well into the obese range according to the Australian Nutrition Chart. She is some 40 to 50kgs over the healthy weight range and has a BMI -44. Her local doctor, Dr Simon Ng, reported that she had high blood pressure on Karvezide and Zanidip and high cholesterol for which she takes Crestor. In addition she was a current smoker, despite a history of asthma.
It is these vascular risk factors in her lifestyle which would have been the major cause of her underlying coronary artery disease. I am not aware of any details of her family history.
3.Could a stressful work environment such as that experienced by Ms Scanlan, more likely than not, be considered to be a substantial contributing factor to the cause or causes of Ms Scanlan’s death?
It is clear from the statements (a), (b), (c), (d) and (e) [these were the statements of Ms Ferreira, Natalie Christopher, Mr Christopher-Coates, Marie Christopher and Mr Weismantel respectively] that Ms Scanlan was extremely conscientious in carrying out her duties and was consequently under a considerable amount of on-going stress. She worked long hours, often unpaid overtime, and apparently was not able to receive enough support from her staff to lighten her workload. In addition there were on-going difficulties in her being able to have time off for breaks and holidays.
Although it is not documented in the file, nevertheless I understand from discussions with Ms Ger that on the day of her fatal infarct she was on her way to a meeting. She had complained of chest and left arm pains on the previous day and it is possible that she was experiencing angina, though this is not proven. If she was under an unusual amount of stress on the day in question, on her way to the meeting, then this could have been a contributing cause to the acute myocardial infarction and subsequent cardiac rupture leading to her death. It appears from the reports of the bystanders and the police that she became severely ill while driving her car. Consequently she pulled up away from the kerb and across a driveway and was then seen to be slumped across the wheel. It would be fair to assume that she suffered her acute heart attack while driving but was able to stop the car and switch off the engine before suffering haemodynamic collapse with the cardiac rupture. Cardiac rupture is a recognised complication of acute myocardial infarction, occurring in 1% - 3% of fatal cases.
4. If there were multiple factors that contributed to the cause or causes of Ms Scanlan’s death, what were they?
As discussed above, Ms Scanlan’s vascular risk factors would have led to the antecedent causes as described in the autopsy and it is possible that an acute stressful situation on the day of her death, remembering that she may well have been suffering angina the previous day, led to the direct cause. We, of course, have no proof of this but it is certainly possible.
5.Could a work environment such as that experienced by Ms Scanlan, more likely than not, increase the propensity for someone such as Ms Scanlan to smoke, eat poorly, and do little physical exercise? If so, what impact could these lifestyle decisions have had on Ms Scanlan’s death?
It is certainly possible that in a stressful environment a person might resort to smoking to relieve tension. Also, from the work descriptions given of her daily and weekly programme, as well as noting the need for overtime; it would appear that the deceased certainly would not have had time for physical exercise. A sedentary lifestyle, coupled with the vascular risk factors, and noting her marked obesity, would certainly have contributed to her underlying coronary artery disease.
6.Please assume that Ms Scanlan complained of and suffered from pains in her left arm and chest to her co-workers in the days prior to her death. What condition, if any, could these pains have been symptomatic of?
With the benefit of hindsight, and noting the vascular findings at autopsy, it would be reasonable to assume that chest and left arm pain in the days prior to Ms Scanlan’s fatal myocardial infarction might well have been due to angina, that is a flair up of ischaemic heart disease and, if untreated, this may well progress to acute myocardial infarction.
7.In reference to your answer to question 6 above, if Ms Scanlan did suffer from any such condition, could the stress Ms Scanlan experienced on the day of her death have been, more likely than not, a substantial contributing factor to her death?
As stated above, if Ms Scanlan was suffering from a flair up of ischaemic heart disease in the days prior to her death, then it is possible that an acute stressor, by raising blood pressure and increasing sympathetic stimulation could well have led to vascular events causing an acute myocardial infarction and subsequent cardiac rupture leading to death.
8.Were the general conditions of Ms Scanlan’s employment, more likely than not, a substantial contributing factor to her death?
As discussed above, Ms Scanlan’s lifestyle factors and vascular risk factors were almost certainly the major contributing factors leading to her death. These factors would have led to the antecedent causes, namely her significant underlying arteriosclerosis. If, on the day of her death, she was under an unusual degree of stress related to employment situations, then that stress could well have been a contributing factor in the direct cause of her death. Direct proof is lacking as we cannot measure stress but from the statements referred to above it does appear that the deceased did operate under a great deal of work-related stress, related to her conscientious approach to the job. An unusual stress related to her employment on 16 April 2009 may well have been “the final straw”.
I hope these remarks help you.
Yours faithfully
Dr David Brender.”

On 19 May 2011, Beilby Poulden Costello, the dependant’s solicitors, requested a further report. Dr Brender was asked to comment on whether the overall circumstances of the deceased’s employment in addition to the events on the day of her death were likely to have aggravated the underlying disease condition that led to her fatal injury. It was noted that the deceased’s employment required her to effectively be permanently on call, working long hours and many overnight/late or early morning shifts. She had little respite by the way of holidays or free days. She worked an oppressive workload under which she suffered considerable stress and strain.
Specifically, Dr Brender was asked to consider that the deceased:
“•    Was the manager of a 24 hour service station when she died;
·        She was paid a salary and was required to work 6-7 days a week;
·        On occasion she would work 14 days straight;
·        On occasion she would work a 12 hour shift come home then return to work 5 to 8 hours later;
·        She had made complaints that her service station was understaffed;
·        She was not permitted to take leave that was owed (239 hours of leave was accrued as at the date of death);
·        Annual leave once granted was often cancelled due to staffing shortages;
·        In the months leading up to her death the station was in danger of not meeting budget;
·        In order to meet budget she was working extra shifts so that wages would not be spent on employees;
·        She was on call and received phone calls from work at all hours of the day and night;
·        She often spoke to her children of being overworked and exhausted;
·        She was sleep deprived.”
Dr Brender was also asked to express an opinion as to whether the overall nature of the deceased’s employment could be said to be a substantial contributing factor to the aggravation, acceleration or deterioration of a disease process of which the rupture was the inevitable consequence.
In a further report of 25 July 2012, Dr Brender stated:
“There is no doubt that this lady’s underlying severe vascular disease arose because of her adverse lifestyle and risk factors (although we do not have any information regarding her family history, this may have also been a significant relevant risk factor).
The major risk factors are as enumerated above but the deceased’s lifestyle may also have been a contributing factor. From the job description that I have been given it appears that she was working under a great deal of stress, she had little time for relaxation, felt that she did not have time to exercise and hence had a very sedentary lifestyle, and it appears that she was very conscientious and consequently under quite a deal of stress in relation to carrying out her job description efficiently. I noted also from the statements given that she had been treated with chemotherapy for malignancy, this had obviously been a successful treatment as there is no mention of malignancy found in any organ in the very detailed autopsy report. She would of course been [sic] under a great deal of stress while going through the course of chemotherapy and even if given a diagnosis of ‘cure’ or ‘remission’, nevertheless there would have been on-going stress related to concern regarding possible recurrence.
It is of course not possible to measure stress, nor do all individuals react in a similar way to lifestyle stressors. In the case of the deceased I can only state that her lifestyle, involving, as it had, a significant degree of work-related stress may well have been a contributing factor in aggravating the underlying coronary vascular disease. The main causes of this, however, as enumerated above, were the risk factors which have been measured and/or documented.
I hope these additional remarks are of help to you.”

THE ARBITRATOR’S DECISION AND REASONS

The issues in this case concerned whether the deceased’s vascular disease was contracted in the course of her employment or alternatively whether the disease was aggravated, accelerated or exacerbated by the employment. Woolworths argued that the disease condition was caused by vascular risk factors and lifestyle factors that were unrelated to her employment.
The evidence of the dependents’ was accepted. Their statements were accepted as probative evidence, particularly in respect of inferences to be drawn from their direct observations and discussions with the deceased. Equally, the Arbitrator accepted as reliable the evidence of Mr Greenhalgh, the deceased’s area manager, although she observed that in so far as he referred to day to day events, he did not work at the Plumpton site and only saw the deceased on particular occasions.
The Arbitrator placed significant weight on the deceased’s handwritten letter dated 16 September 2008, although she accepted that there is no evidence that Mr Grenhalgh ever received it. The Arbitrator found the content of that letter significant in terms of what it disclosed of the deceased’s concerns regarding the business at that time and her own role and responsibilities as manager and the stresses and frustrations she was experiencing. She accepted it as a contemporaneous account having been prepared seven months prior to the deceased’s death.
Taking all the evidence as a whole, the Arbitrator was satisfied that the deceased personally took on additional shifts and was working excessive hours in order to meet budgets. She accepted that the deceased was worried and stressed at having to demand additional shifts of her staff and the inadequacy of the assistance and support from management. The Arbitrator concluded that the evidence suggested that the deceased was no longer coping well with the demands of her work.
The Arbitrator found (at [44] of Reasons):
“More generally I accept those circumstances led to the work becoming the dominant focus of the deceased’s life. I accept that work overshadowed other aspects of her life so that she had no time for any other activities, no time for relaxation and most relevantly, she led a sedentary lifestyle.”
Notwithstanding Mr Greenhalgh’s denial of the claims that the deceased had been refused annual leave when requested, the Arbitrator found that the evidence did not exclude the possibility that the deceased may have asked for leave more informally or orally and that Mr Greenhalgh did not specifically refute that possibility. The Arbitrator accepted that the deceased had 12 weeks annual leave owing to her which must have accrued over several years and supported the conclusion that work had become a dominant focus in her life.
Although the Arbitrator accepted Mr Greenhalgh’s evidence refuting complaints to him about the inadequacy of staffing, the Arbitrator found that the deceased may have imposed on herself, without his direct knowledge, a tough workload that sometimes involved her working long hours or double shifts and doing additional duties. The respondent conceded that the deceased was a hard-working and efficient employee. It was further conceded that there were times when the deceased worked under pressure. The Arbitrator found, having regard to all the evidence, that as a matter of fact, the deceased worked very long hours and that she often felt tired and exhausted and felt stressed by her work situation.
The Arbitrator held that Dr Brender’s conclusions were based on the facts as she found them and that there was therefore a proper factual foundation for his conclusions. She found (at [66] of Reasons):
“Central to those conclusions is that the deceased’s sedentary lifestyle was largely a consequence of a range of work-related factors and that, in addition, those
work-related factors caused her significant levels of actual stress. It is these two overarching, work-related factors that Dr Brender accepts as causative of the underlying disease of [sic] that led to the myocardial infarct, the cardiac rupture and death. As noted above he refers to the sedentary lifestyle on several occasions as being one of the ‘major risk factors’ of the underlying [sic, disease] and it must therefore be a significant, substantial and real cause of the disease. The fact that it is only one of those major causes does not make it less significant, less substantial or ‘less major’.”
The Arbitrator added (at [67] of Reasons):
“Similarly, Dr Brender states unequivocally that there is ‘no doubt’ the underlying vascular disease ‘arose because of’ her adverse lifestyle (and the risk factors already noted). He proceeds to describe the nature of her work and why he considers it stressful. I have accepted as correct the factual foundation on which Dr Brender’s opinion proceeds. In the end Dr Brender appears to accept that work-related factors and the stress connected with those factors are the main aspects of her ‘adverse lifestyle’. He suggests the deceased would have been under significant stress also due to her cancer treatment and the possibility of remission, and I accept that opinion. However Dr Brender does not identify any other sources of stress or any other specific adverse lifestyle factors that would have contributed to her underlying condition. Nor does the witness evidence before me disclose any sources of stress other than the work-related ones described by them, accepted broadly by Dr Brender and as accepted by me.”
The Arbitrator found (at [68] of Reasons) that Dr Brender was of the opinion that an acute stressful situation confronting the deceased on the date of her death could have been a contributing factor to the direct cause of her death. She said:
“I have accepted above that the deceased found her work environment stressful due to several factors, and against that background I accept the phone call to Kelly at about 6.00am on the day of her death suggests a strong concern for the operations at her own site even while preparing to travel to the meeting in Yagoona. In addition Mr Weismantel has attested to having spoken to her by phone on 15 April 2009. He says the deceased told him she was very unhappy and stressed about having to attend the meeting in Yagoona, because management decisions were often made with which she did [sic not] agree. I have accepted that evidence as truthful. Taken as a whole this evidence suggests the deceased may well have been feeling particularly stressed that morning, and while not conclusive evidence it provides some factual foundation for the opinion offered by Dr Brender that stress on that day could have been a contributing factor to the death. In his terms, an unusual [sic stress] related to her employment on that day may well have been the ‘final straw’.”
In Dr Brender’s view the worker’s complaints of chest and left arm pain on the day prior to the fatal infarct, whilst not conclusive, possibly indicated that she was suffering from angina at that time.
The Arbitrator expressed her ultimate conclusion (at [70] of Reasons) stating:
“Taken together I am therefore satisfied that the deceased’s sedentary lifestyle and work related stress factors contributed in a real sense to the underlying coronary vascular disease that resulted in the myocardial infarct and finally the rupture that caused the death.”
Whilst there was no direct evidence linking the deceased’s obesity as being causative of the underlying coronary vascular disease, the Arbitrator held that as a matter of common sense the deceased’s sedentary lifestyle would have contributed at least in part to the obesity. However, in view of the lack of any further factual or expert evidence the Arbitrator declined to draw any conclusions of any work related causal connection between the obesity and the injury that led to death.
Whilst the Arbitrator accepted that the deceased was a smoker, she acknowledged that the evidence was equivocal as to the extent to which she smoked. She did acknowledge, however, Dr Brender’s opinion that it was at least one of the risk factors associated with coronary artery disease. However in view of the lack of evidence, the Arbitrator excluded smoking as a factor giving rise to the underlying condition at least in so far as the smoking was provoked by or work related.
The Arbitrator held (at [73] of Reasons) that it was of some significance that Woolworths did not tender any expert medical evidence. Whilst the conclusions of Dr Brender were challenged, they were not contradicted by expert opinion. She said:
“I agree that in this case it is of some significance that the respondent brings no positive medical case and does not rely on any expert opinion of its own. The respondent was offered several opportunities to put forward such evidence. While it is correct the applicant must prove his own case on the balance of probabilities, this is a relatively complex case from a medical perspective in which issues to do with causation, or the reasons for the death, and [sic] not precisely known. In this case I ultimately have only one expert medical opinion to consider, and the opinions and conclusions in that report have been challenged in submissions but have not been directly disputed by way of additional expert opinion. That is a matter purely for the respondent, but in the end I am satisfied that the applicant has discharged his burden of proof.”
The Arbitrator found (at [74] of Reasons) that the deceased’s employment was a contributing factor to the aggravation of the deceased’s vascular disease for the purposes of s 4(b)(ii) of the 1987 Act. She said:
“On the evidence as a whole I am satisfied that the death of the deceased worker resulted from an injury for the purposes of sections 25 and 4 of the 1987 Act. I am satisfied that injury was an aggravation, acceleration, exacerbation or deterioration of a disease, being the underlying coronary vascular disease, which caused the acute myocardial infarction and cardiac rupture that led to the death. There is clearly an unbroken and very immediate chain of causation between these events. I am satisfied the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. It is therefore an injury for the purposes of section 4(b)(ii) of the 1987 Act. I am satisfied the injury arose out of the employment and that the relevant causal connection exists between the deceased’s employment with the respondent and the occurrence of the injury.”
The Arbitrator held (at [75] of Reasons) applying Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 (Badawi), that the deceased’s employment was a substantial contributing factor to her injury and subsequent death. The Arbitrator stated (at [76] of Reasons):
“In so concluding I am satisfied the factors I have accepted above as contributing to, and playing a material role in causing, the aggravation (etc) of the underlying coronary vascular disease suffered by the deceased were also factors that were ‘real’ and ‘of substance’ in the sense discussed in Badawi. It is apparent they were not the only contributing factors to the injury, but that is not required. Nor is it required that they be the only or most substantial contributing factor. As discussed above the deceased’s sedentary lifestyle was accepted by Dr Brender as one of the “major risk factors” causing the coronary vascular disease, which led to the myocardial infarct, the cardiac rupture and ultimately to the death. In accepting it as one of the “major” risk factors Dr Brender clearly considered it to be one of the main determining factors, and it must therefore be both ‘real and of substance’ as demanded by Badawi. Dr Brender goes on to explain the link between that factor and what he describes as an adverse lifestyle. The relevant factors in her lifestyle said to be contributing, and ultimately causative, were the stresses and extent of her work, the fact she had little time for relaxation, felt she did not have time to exercise and hence had a very sedentary lifestyle.”

The Arbitrator’s conclusions and orders with respect to the apportionment of the lump sum entitlements are not in dispute.

WOOLWORTHS’ SUBMISSIONS

Grounds 1-6

Errors of fact

Both Dr Brender and the Arbitrator adopted the term “lifestyle factors”. In describing the so called “lifestyle factors” as the major contributing cause of the deceased’s underlying coronary artery disease, Dr Brender isolated the following:
(a)     she was obese at 110.5 kg for her height of 1.58 m, being well into the obese range according to the Australian National Nutrition Chart. She is some 40-50kg over the healthy weight range and has a BMI of 44;
(b)     her local doctor, Dr Ng, reported that she had high blood pressure and was taking medication, namely Kaverside and Zanadip;
(c)     she had high cholesterol for which she was taking Crestor, and
(d)     she was a current smoker, despite a history of asthma.
Dr Brender opined that from her job description it appeared that she was working under a great deal of stress and had little time for exercise and hence led a sedentary lifestyle. It is submitted that the Arbitrator elevated some of Dr Brender’s comments to a level of significance not reasonably available on his or any other evidence. In particular, equating a sedentary lifestyle only with limited time for exercise and drawing a connection between employment and sedentary lifestyle was a conclusion not reasonably available on the evidence.
The reduced opportunity for exercise, in Dr Brender’s opinion, never rose above a speculative possibility. It was clearly not within the ambit of “lifestyle factors” discussed by the doctor in his report of 12 April 2010. Dr Brender’s conclusion with respect to the lack of opportunity for exercise can only arise from the conclusion that employment was the predominant feature in the deceased’s lifestyle. However, beyond that there is no evidence of any specific loss of ability to undertake exercise, nor that such exercise would have been undertaken in any event.
The Arbitrator’s findings (at [44] of Reasons) that there was no time for any other activities and no time for relaxation appears to overstate any reasonable inference available on the evidence.
Woolworths do not cavil with the Arbitrator’s conclusion that the deceased suffered work related stress, which is a finding obviously supported by the evidence. The Arbitrator’s error was to attenuate that evidence and make findings and draw conclusions unsupported by the evidence.
The Arbitrator found that it was “central” to Dr Brender’s conclusions that the deceased’s sedentary lifestyle was largely a consequence of work related factors. It was not central to Dr Brender’s conclusions and it was never put any higher by him than being something which “may also” have been a contributing factor.
Dr Brender never suggested that a sedentary lifestyle and work stressors were causative of the underlying disease and was at pains to point out in both of his reports that the disease resulted from documented risk factors. Whatever the definition and role of “sedentary lifestyle” is there can be no doubt that Dr Brender saw any work related component as only ever being something which “may well” have made a contribution to the deceased’s death, rather than accepting work factors as having an unequivocal causative role in her death.
The Arbitrator’s comments (at [67] of Reasons) suggesting there is “no doubt” that the underlying vascular disease arose from work related factors and work related stress cannot stand as accurate given the caveats Dr Brender expressly raised in relation to any work related component. It is submitted that Dr Brender did not say that the so-called work related components of stress and long hours were causative of the underlying condition.
In terms of whether the events immediately preceding the deceased’s heart attack were causative, Woolworths submitted that Dr Brender indicated that if the deceased had been suffering angina in the days preceding the fatal myocardial infarction, then it is possible that an acute stressor, by raising blood pressure and increasing sympathetic stimulation, could well have led to vascular events leading to death.

Dr Brender speaks of this being a “possibility” which “could well have” been a contributing factor but stopped short of expressing an opinion on which an affirmative conclusion could be drawn on the evidence. Additionally there is uncertainty as to whether the deceased was suffering angina in the days before her death and whether there was an unusual work related stress on the day of her death.
The Arbitrator noted (at [57] of Reasons) Dr Brender’s observation that it would be reasonable to assume that the chest and left arm pain in the days prior to the deceased’s death “might well have been” due to angina. Again there is a caveat in relation to the existence of angina.
The evidence given by Mr Weismantel of his discussion with the deceased on the evening prior to her death is not evidence of an unusual stress sufficient to give rise to a possible causal connection.
The statement of Ms Kelly does not indicate unusual stress on the day in question.
The Arbitrator’s conclusions (at [68] of Reasons) fall short of expressing a conclusion as to whether the deceased was in fact feeling particularly stressed and does not engage in any consideration of whether that would constitute “unusual stress” as described by Dr Brender. The Arbitrator did not in fact come to a conclusion that the stress on the particular morning was a contributing factor. Alternatively, if she did reach that conclusion she did not explain it and it was flawed on the evidence.

Grounds 7-8

Onus of proof

The submissions which follow as to errors of law include error of the type discussed by Hodgson JA in McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 at [34]:
“…that the facts as found were so compelling that one can infer there was an error of law in interpretation of the provision; or that the Deputy President applied an incorrect criterion, or took into account an irrelevant consideration in reaching her conclusion.”
The words used by Dr Brender must be read in context. As discussed above, Dr Brender’s words contain a large element of uncertainty and speculation in so far as causation is concerned, and despite being specifically asked for his opinion, Dr Brender does not suggests that it was more probable than not that employment factors were causative. The qualification that matters “may well” be causative was clearly deliberate in the context of the questions which the doctor was asked: St George Club Ltd v Hines (1961) 35 ALJR 106 (Hines).
Questions of causation involve more than a somewhat speculative possibility: Evans v Queanbeyan City Council [2011] NSWCA 230; 9 DDCR 541 at [33]–[53] (Evans).
Where, as in the various instances discussed above, the doctor chooses his words carefully, Woolworths submit that the Commission should be cautious to impose a meaning or draw a factual conclusion inconsistent with the primary opinion which underlies them.

Grounds 9-10

Significance attached to no “positive medical case”

The Arbitrator considered (at [73] of Reasons) that it was a matter of some significance that Woolworths “brings no positive medical case and does not rely on any expert opinion of its own”. The Arbitrator did not explain the significance of this finding or how and to what extent it impacted upon her decision.
The Arbitrator’s comments appeared to possibly be an application or “misapplication” of the principles in Jones v Dunkell (1959) 10 CLR 289 (Jones v Dunkell).
Woolworths’ case before the Arbitrator and on appeal is based on the submission that the dependants did not overcome the onus of proof in order to establish a work-related injury. There was no material upon which to draw a Jones v Dunkell, or any other, inference.
The Arbitrator erred by referring to, and, drawing an adverse inference as a result of the absence of a so called positive medical case from the employer in circumstances where the employer was entitled to present no expert medical evidence given the case it was meeting. This error vitiates the decision and demands that it be set aside.
At the very least there was a failure to provide adequate reasons in relation to this aspect of the Arbitrator’s decision: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis).

Grounds 11-12

Injury and s 9A

For the reasons already given, the Arbitrator erred in finding that employment contributed to the “aggravation, acceleration, exacerbation or deterioration of a disease” within the meaning of s 4(b)(ii) of the 1987 Act.
Alternatively, if the dependants establish injury for the purposes of s 4(b)(ii) on the basis that there was some contribution from employment, that contribution must have been de minimus.
For the reasons already discussed, the Arbitrator does not appear to have found the events on the morning of the deceased’s death to have been causative and that conclusion was appropriate on the evidence (see [68] of Reasons).
If employment played any role by way of contribution it could only have been matters relevant to some aspect of the so called sedentary lifestyle and work stresses that were discussed earlier and could only be a contribution founded on the tentative words of Dr Brender.
The predominant cause of the deceased’s death were significant non-work related factors, namely that she:
(a)     suffered significant underlying coronary artery disease;
(b)     was obese;
(c)     had high blood pressure for which she took medication;
(d)     had high cholesterol for which she took medication;
(e)     was a current smoker at the date of death with a history of asthma, and
(f)      according to Dr Brender, would have had ongoing stress in relation to her history of cancer.
Accepting that there can be more than one substantial contributing factor, on the facts of this case any contribution from employment could not be considered “real and of substance” (Badawi).
The antecedent significant non-employment related factors involved in the deceased’s pre‑existing cardiac condition were the predominant cause, in that any role played by the employment could not on any construction be regarded as “substantial” within the terms of the statute.
To the extent that the factors prescribed in s 9A(2) have relevance, the employment in this case was of no real causal significance.
Woolworths submit that the Arbitrator’s decision should be revoked and in lieu thereof an award entered in favour of it, or alternatively the mater be remitted for redetermination by another Arbitrator.

THE DEPENDANTS’ SUBMISSIONS

The nature of the appeal

The broad thrust of the appeal is inconsistent with the nature of appeal under s 352 of the 1998 Act as considered by the Court of Appeal in Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 at [145]–[148].
The Arbitrator analysed the only expert medical evidence in the case, namely Dr Brender’s evidence, against a background of all of the evidence available and correctly observed that Dr Brender had access to the statements of evidence when expressing his opinion.
Where a medical expert talks only in terms of a “possible” view, or something that “might” have been relevant, then the Arbitrator was entitled with reference to all of the other evidence in the matter to decide that is the probable view. This then is a factual analysis and merely because Woolworths disagrees with that analysis is not a proper basis for appeal (EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 (Bes); Tubemakers of Australia Ltd v Fernandez [1975] 2 NSWLR 190 (Tubemakers); Morro v London Assurance [1972] WCR (NSW) 100; Australian Padding Co Pty Ltd v Zarb (1996) 13 NSWCCR 365).
The dependants do not concede that the argument advanced by the dependants was one solely within the meaning of s 4(b)(ii) and maintain that the application of s 4(a) was argued in the alternative with arguments pursuant to s 4(b)(ii), both of which then would need to have regard to the operation of s 9A of the 1987 Act if established.

Grounds 1-6

Errors of fact

The Arbitrator analysed what Dr Brender meant by “lifestyle factors” (at [63] of Reasons) namely that he accepted that the deceased was working under a great deal of stress and had little time for relaxation and that she thought she did not have time to exercise, and hence had a very sedentary lifestyle. The Arbitrator correctly observed that those comments provided insight into what Dr Brender thought accounted for the identified risk factor of sedentary lifestyle which he accepts as causative. Accepting the statements from the dependants, which suggest that the deceased was working under stress and had little time for relaxation or more significantly exercise, Dr Brender drew a clear link between a workplace situation, the lack of exercise and her sedentary lifestyle.
The dependants reject the submission that Dr Brender’s opinion was merely speculative of a possibility. It was incumbent upon Woolworths, if it was to posit a case different to that asserted to Dr Brender, to have placed before the Arbitrator an alternative opinion with respect to the roles played by body habitus, lifestyle, employment, underlying coronary artery disease, the circumstances of the deceased being required to attend a meeting at Yagoona, and the role each of these played in the ultimate failure of her vascular system.
To submit that Dr Brender’s opinion does not rise beyond a “may” or “may have” or “speculative” level ignores the task presented to the Arbitrator in drawing together all of the threads of the material available to her, including expert medical opinion, in determining whether from a common sense point of view she would be satisfied that the employment was a significant contributing factor to the ultimate decompensation of her vascular system.

Grounds 7-10

Onus of proof/significance of “no positive medical case”

It is clear from the Arbitrator’s Reasons (at [73]) that the Arbitrator does not rely on the failure of Woolworths’ case to advance an alternative proposition but dismisses its relevance in deciding that the dependants had discharged the onus of proof.
If Woolworths was to run a positive case on whether “substantial contributing factor” had been satisfied factually, one would have expected some evidence to be called delineating the role to be played by various risk factors, be it obesity, smoking, sedentary lifestyle and the like, and the relative contributions they make to the underlying coronary artery disease and whether any of those risk factors played a role in the ultimate failure of the deceased’s vascular system leading to her death (Watts Peterson Automotive Pty Ltd v Peterson (1994) 10 NSWCCR 653; NSWCC 30 and Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626).

Grounds 11-12

Injury and s 9A

Much of the argument of this issue flows from the dispute with respect to the analysis of the factual matters. The role played by employment related issues such as the extent to which the time away from work was sedentary, and, if so, the extent to which it was causally related to work, was said to be largely unexplored. That submission is incorrect. The Arbitrator analysed at some length all of the statements in the matter being from the deceased’s children and friends including Ms Ferreira and Mr Weismantel and drew the unavoidable conclusion that the deceased had little, if any, time away from work and her life was consumed by her work.
If an alternative proposition such as that referred to at [77] of the appellant’s submissions, namely, that the predominant cause of the deceased’s death were the significant non-work related factors, was to be advanced by the appellant, it ought to have been advanced by way of evidence and none was before the Arbitrator.
It was open to the Arbitrator to find on the facts available to her that work had indeed consumed her life, and to complain about such a finding post facto in the absence of bringing a positive case is not a matter that is appropriate for appeal.
The Arbitrator’s Reasons (at [66]) reveal a common sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang)). Namely, congruence in Dr Brender’s assumptions on the history with the evidence disclosed and an acceptance of those matters in concert with the doctor’s expressed view formed a factual basis for the finding on causation and the role played by employment factors.
The dependants submit that the appeal should be dismissed and the Arbitrator’s determination confirmed.

DISCUSSION AND FINDINGS

Was the deceased’s sedentary lifestyle employment related?

It is an accepted fact that the deceased suffered from a number of risk factors predisposing her to the myocardial infarction she ultimately suffered. Those risk factors included hyperlipidaemia (high cholesterol), hypertension, obesity and the fact that the deceased was a current smoker. These risk factors have been variously described in the evidence as “lifestyle factors” and “vascular risk factors”. In order to avoid further confusion I will refer to these as the vascular risk factors.
It is not disputed that the deceased was a conscientious worker who worked long hours and worked under a considerable degree of stress.
Woolworths challenged the Arbitrator’s conclusion that the deceased’s sedentary lifestyle was largely a consequence of a range of work related factors and was in part causative of the underlying disease that led to the acute myocardial infarction leading to her death. Mr Catsanos, who appeared for Woolworths, submitted that the Arbitrator overstated any reasonable inference available from the evidence or attenuated the evidence to make findings that were unsupported by the evidence. I do not accept that submission.
Dr Brender’s first report, of 12 April 2010, was prefaced by noting that he had received additional information provided by Beilby Poulden Costello Lawyers under cover of a letter dated 18 March 2010. Dr Brender referred to this as statements (a) to (e). That was a reference to the following statements:
(a)     Elizabeth Anne Ferreira;
(b)     Natalie Jean Christopher;
(c)     David William Christopher-Coates;
(d)     Julie Marie Christopher, and
(e)     Anthony David Weismantel.
Commenting on the deceased’s work environment, Dr Brender’s said at page 4 of his report of 12 April 2010 (see [75] of this decision) that having regard to the work descriptions from the statements that had been made available to him of the deceased’s daily and weekly program as well as noting the need for overtime, that it was apparent to him that the deceased would have little time for physical exercise. He concluded that a sedentary lifestyle coupled with the vascular risk factors, “would certainly have contributed” to the underlying disease. Reading the doctor’s opinion in context he equated the sedentary lifestyle with the deceased’s work program, including the regular overtime she worked.
Dr Brender confirmed his view at page 5 of the report of 12 April 2010, where he concluded that the “major” contributing factors leading to the deceased’s death were her vascular risk factors and “lifestyle factors”. It is reasonably clear to me, as it was to the Arbitrator, that having regard to the question posed and the doctor’s answer that he included amongst his description of “lifestyle factors” a sedentary lifestyle that was the inevitable result of the conditions under which the deceased worked.
Dr Brender’s second report was in response to a request for a further report where he was asked for his opinion concerning whether the overall circumstances of the deceased’s employment, in addition to the events on the day in question, were likely to have aggravated the underlying disease condition that led to the deceased’s fatal injury. Dr Brender concluded that the underlying disease related mainly to her documented vascular risk factors, however, he stated that her employment, which limited her time for exercise and relaxation and hence led to and a sedentary lifestyle, may well have been a contributing factor in aggravating the underlying coronary vascular disease.
I reject the submission that the Arbitrator elevated Dr Brender’s views to a level of significance not reasonably available on his or any other evidence. There was ample evidence to support the Arbitrator’s conclusion that the deceased’s sedentary lifestyle was the inevitable consequence of the conditions under which the deceased worked. She noted this included the evidence of David Christopher-Coates who said that on average the deceased worked six to seven days per week and there were occasions when she worked 14 days straight. Julie Christopher stated that the deceased worked up to 70 hours per week. Natalie Christopher added that there were occasions when the deceased worked 18-20 hours a day and that this occurred twice per week. She also said that the deceased worked 50-60 hours on average over six or seven days per week.
Mr Weismantel stated that the deceased was compelled to work excessive hours in order to achieve budgetary constraints that were imposed upon her and in order to derive bonus payments upon which she depended. Ms Ferreira stated that the deceased worked somewhere between 60 and 70 hours per week. The deceased’s letter to Mr Greenhalgh, which I accept he did not receive, but upon which the Arbitrator relied on the basis that it reflected the deceased’s concern about her working conditions, noted that she was continually required to do unnecessary shifts due to a shortage of staff. The uncontested evidence is that the deceased had accumulated 12 weeks of annual leave at the date of her death.
Although the estimate of the hours worked by the deceased varied, it established that she worked between 50-70 hours per week. Woolworths did not challenge the evidence of the hours worked by the deceased. Mr Greenhalgh merely said that the hours worked by the deceased were unexpected and he had been unaware of it.
The evidence referred to above was available to Dr Brender at the time that he wrote both reports. It more than amply supported his opinion that the deceased would inevitably have led a sedentary lifestyle by reason of the demands upon her from her employment. It also more than amply supported that Arbitrator’s conclusions, based on Dr Brender’s opinion regarding the connection between the worker’s sedentary lifestyle and her employment.
I reject the submission that Dr Brender’s opinion concerning the deceased’s reduced opportunity for exercise did not rise above a speculative possibility. The doctor’s opinion was based, as he said, on the statements of the witnesses of the “work descriptions given of her daily and weekly program” and her need for overtime (report of 12 April 2012, page 4). The excessive hours regularly worked by the deceased coupled with a substantial amount of untaken annual leave formed a proper basis for Dr Brender’s conclusion that the deceased’s working conditions inevitably contributed to a sedentary lifestyle.
Mr Catsanos submitted that read in context, Dr Brender’s opinion does not suggest that it is more probable than not that employment factors were causative. The qualification that such matters “may well” be causative was deliberate in the context of the questions that were asked of him (Hines).
The submission misstates the thrust of Dr Brender’s evidence and confuses the doctor’s opinion on causation of the underlying disease with his opinion concerning the aggravation of the disease due to unusual stress on the day of the deceased’s death. For the reasons I have already given, Dr Brender was under no doubt that the sedentary lifestyle that was the result of the excessive hours the deceased worked together with a considerable accumulation of untaken leave contributed to the development of the vascular disease she suffered. His opinion in relation to the aggravation of the disease was qualified, which I shall come to when dealing with the question of aggravation by reason of a stressful event.
Mr Catsanos submitted that for the deceased’s sedentary lifestyle to be employment related it must be a product of the employment. There must be evidence of the employment having caused the deceased to not avail herself of exercise which she would otherwise have undertaken and there is no such evidence. The submission was not supported by any reasoned argument or authority and I reject it. Whether the disease resulted from the employment is a question of fact. What is required is a common sense evaluation of the causal chain: Kooragang. The causal chain is established in this case by the evidence, to which I have already referred, concerning the deceased’s working hours and lack of leave, coupled with the expert evidence of probable contribution to the inevitable sedentary lifestyle dictated by working under those conditions.

I also reject the submission that the Arbitrator’s findings (at [44] of Reasons) that the deceased had no time for any activities and no time for relaxation overstated any reasonable inference available on the evidence. The Arbitrator’s decision must be read as a whole when considering the adequacy of the Arbitrator’s Reasons. The decision must be read fairly (Sarian v Elton [2011] NSWCA 132 at [19]). In context, the Arbitrator’s conclusion that there was no time for any other activities and no time for relaxation should not be taken literally. It was not suggested that the deceased worked 24 hours a day 7 days per week. The evidence to which I have already referred in addition to the evidence that the deceased was regularly contacted on her mobile phone out of hours (see David Christopher-Coates at [13], Natalie Christopher at [27] and Mr Weismantel at [37] above) plus the deceased’s untaken annual leave accrual of 12 weeks, more than amply support the Arbitrator’s inference.
Woolworths submit that the Arbitrator erred by concluding that it was “central” to Dr Brender’s conclusions that the deceased’s sedentary lifestyle was largely as a consequence of work related factors. It is submitted that Dr Brender’s conclusion was never put any higher by him than it being something which may have been a contributing factor. I reject that submission also. The Arbitrator was correct to observe that a sedentary lifestyle was central to Dr Brender’s conclusion. At [5] of his report of 12 April 2010, to which I have previously referred, Dr Brender clearly stated that a sedentary lifestyle coupled with the known vascular risk factors “would certainly have contributed” to the underlying coronary artery disease. Dr Brender stated in his second report that “there is no doubt” that the deceased’s vascular disease arose due to adverse lifestyle (and the documented vascular risk factors).
Mr Catsanos argued that the Arbitrator’s conclusion regarding there being no doubt as to the causes of the deceased’s underlying vascular disease arising from work related factors could not stand as accurate given the caveats expressed by Dr Brender. Mr Catsanos submitted that Dr Brender did not say that the work related components of stress and long hours were causative of the condition. For the reasons I have already given, that submission is rejected. The Arbitrator was correct to conclude from Dr Brender’s evidence that he clearly formed the view that the combination of the documented vascular risk factors together with a work related sedentary lifestyle contributed to the development of the underlying disease. Any caveat expressed by Dr Brender related only to his views concerning the contribution made by an unusual degree of stress on the day of the deceased’s death as being a contributing factor to the myocardial infarction she suffered.

Was the disease aggravated by an acute stressful event?

Mr Catsanos submitted that the Arbitrator’s Reasons fall short of expressing a conclusion as to whether the deceased was in fact feeling particularly stressed on the day of her death and did not engage in any consideration of whether that would constitute “unusual stress” as discussed by Dr Brender. He submitted that the Arbitrator did not come to a conclusion that stress on the particular morning was a contributing factor. Alternatively if she did, she did not explain it and it was flawed on the evidence. I reject that submission.
At the oral hearing of the appeal, Mr Catsanos submitted that whether the deceased’s disease condition was aggravated by unusual stress on the day of her death is not a matter that is engaged on appeal because it was not the subject of a finding by the Arbitrator. The Arbitrator’s findings on this issue are recorded at [68] and [74] of her Reasons. The Arbitrator accepted Dr Brender’s evidence that an acute stressful situation on the day in question could have been a contributing factor to the cause of the deceased’s death. She also accepted that the deceased found her work environment stressful, and the evening before her death the deceased had told Mr Weismantel that she was feeling unhappy and stressed about the requirement to attend a management meeting at Yagoona the following day.
The Arbitrator accepted that the evidence when taken as a whole, supported a conclusion that the deceased may well have been feeling stressed on the day in question. She also held that there was a factual foundation for Dr Brender’s opinion, that unusual stress on the day of the death may well have been the “final straw” that led to the fatal infarct. These findings were open on the evidence and disclose no error.
As Mr Morgan, who appeared for Mr Christopher-Coates, submitted, the Arbitrator’s finding (at [70]), which makes reference to the combination of a sedentary lifestyle and work-related stress contributing to the fatal infarct is a finding of aggravation of the deceased’s vascular disease. I agree. It was a finding that was consistent with the evidence and open to the Arbitrator to make.
The Arbitrator’s findings at [74] are more emphatic. She found that there was an unbroken and immediate chain of causation between “these events”. Although the Arbitrator did not state what these events were, reading the decision fairly, and as a whole (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430), it is clear that the Arbitrator’s reference to an unbroken and immediate chain of causation “between these events” was a reference to the unbroken and immediate connection between the deceased’s extremely stressful work, both on the day of her death and leading up to that day, and the acute myocardial infarction that occurred on 16 April 2009, which resulted in death. Thus, she was satisfied that the relevant causal connection existed between the employment and the injury, that is, between the employment and the aggravation of the coronary artery disease. Bearing in mind that Dr Brender was the only expert to give evidence, that finding was open on the evidence and, for the reasons more fully explained below, I agree with the Arbitrator’s conclusion.
If, contrary to my finding, the Arbitrator failed to determine the issue of aggravation by reason of an acute stressful event, both parties consented to me re-determining that issue (T80.43). If I was to re-determine the issue I would reach the same conclusion as the Arbitrator for the following reasons.
Mr Weismantel’s unchallenged evidence is that the deceased told him the evening before her death that she was feeling very unhappy and stressed about having to go to a meeting at Yagoona the following morning. The deceased had told him in the past that she did not agree with many of the decisions that were made at these area managers’ meetings. In the past her requests for additional staff and resources had been refused. He said the deceased told him she felt frustrated and powerless regarding the decisions made at these meetings and found the meetings unpleasant and stressful. I accept that unchallenged evidence.
Mr Weismantel also said that in the two weeks leading up to the deceased’s death he noticed the deceased on three occasions appearing to be in extreme pain. The deceased told him that she was experiencing a pain in her chest and her arm and he observed that she was sweating. I also accept that evidence. Dr Brender said that, although it could not be proven, those symptoms may well have been symptoms of angina. Scientific proof is not required, only proof on the balance of probabilities. Given the obvious distress the deceased was experiencing in the lead up to attending the management meeting, I find that it is more probable than not that the symptoms described by Mr Weismantal were symptoms of angina or as Dr Brender described it “a flair up of ischaemic heart disease”.
Mr Catsanos submitted that Mr Weismantel’s evidence of his discussions with the deceased on the evening prior to her death did not amount to evidence of unusual distress sufficient to give rise to a possible causal connection. I do not accept that submission. Mr Weismantel clearly stated that on the evening before her death the deceased told him that she was very unhappy and stressed about having to go to a meeting at Yagoona the following morning because of the pressure she anticipated she would come under at that meeting. That was, in my view, powerful evidence of significant or unusual stress the deceased was experiencing in anticipation of attending the management meeting.
Mr Catsanos further submitted that the statement of Ms Kelly does not indicate any unusual stress on the day in question. Ms Kelly did not make a statement. She is referred to in a brief statement of Mr Greenhalgh directed to his actions on the day of the deceased’s death including his discussions with staff, the police and relatives. The brief reference to Ms Kelly was only made in the context of attempting to locate the deceased when she did not arrive as expected at the meeting at Yagoona. Ms Kelly’s evidence is not determinative and does not advance Woolworth’s position.
Mr Catsanos also submitted that the dependants do not discharge the onus of proof merely by establishing a possible causal connection between unusual stress on the day of the death and employment: Hines, see also Evans at [33]–[53].
However, as Mr Morgan submitted, if the expert evidence suggests a possible view, then after examining the lay evidence the Judge (or in this case the Arbitrator) may decide that it is the probable view.
In Bes at 242 Herron CJ stated:
“Much the same thesis is to be found in Ramsay v Watson in the High Court (108 CLR p 642) and I particularly refer to the passage in the joint judgment of their Honours at the foot of p 645. It seems to me that that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable.”
In Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720 (Fernandez), a case which concerned whether the development of Dupuytren’s contracture in the worker’s hand could be due to a blunt trauma, Barwick CJ, Gibbs, Mason and Murphy JJ agreeing (Stephen J dissenting), held that where there is expert evidence of a probable cause of the worker’s disability, in drawing an inference as to the causal connection between the injury and the condition, the jury was entitled to have regard to the absence of any pre-accident disability and the appearance of the condition after the accident together with the absence of any other proof or indication in the evidence of an alternative cause of the condition. The combination of the circumstances taken together with the medical evidence provided a sufficient basis from which the jury could draw an inference favourable to the respondent worker. Murphy J stated at 725:
“If expert evidence establishes that the relationship is possible (that is, it is a reasonable hypothesis or one consistent with scientific knowledge) the proof to the required standard (civil or criminal) that the relationship existed in the case under consideration may then be achieved by further evidence (expert or non-expert).”
Fernandez was cited with approval in Commonwealth v McLean (1996) 41 NSWLR 389 (McLean), where Handley and Beazley JJA said this at 410:
"A tribunal of fact is entitled to find causation as a matter of commonsense from the sequence of events, although medical science does not support an affirmative answer, provided it does not exclude such a finding: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563-564, 569 and Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720."
I accept Dr Brender’s opinion that exposure to an unusual degree of stress related to the deceased’s employment on the day in question could have been a contributing factor to the cause of the deceased’s death.
Dr Brender’s evidence must be considered with the lay evidence, particularly Mr Weismantel’s evidence. The combination of Dr Brender’s and Mr Weismantel’s evidence leads me to conclude that it was more probable than not, that the deceased was experiencing symptoms of untreated angina prior to her death.
It is clear that the deceased was feeling very considerable stress in anticipation of attending the management meeting on 16 April 2009. Although the evidence is silent on the frequency with which those meetings occurred, as it took place at a site that was not the deceased usual place of work, I infer that these meetings occurred infrequently and in that sense it was an unusual event. I find that the deceased was exposed to an unusual degree of stress by reason of the requirement to attend a management meeting which she anticipated would be unpleasant and stressful.
That being so, based on the approach adopted in Bes and McLean, I conclude that, on the balance of probabilities, the unusual stressful event on the day of the deceased’s death and immediately before that day aggravated, accelerated or exacerbated her underlying vascular disease which “led to vascular events causing an acute myocardial infarction and subsequent cardiac rupture leading to her death” (Dr Brender). It was, as Dr Brender described it, “the final straw”.

Adequacy of reasons

I also reject Mr Catsanos’ submission that the Arbitrator failed to adequately explain the reasons for her conclusion. The reasons are clearly expressed in terms of the above analysis. It is necessary that the Arbitrator’s Reasons show that attention has been given to the evidence critical to the issues in the case and that the basis of the critical findings be apparent. In Soulemezis McHugh JA said (at 280):
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons; ex parte Powter; re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”
Moreover in Northern NSW Local Health Network v Heggie [2013] NSWCA 255, Sackville AJA (Basten and Ward JJA agreeing) said (at [166]):
“The WIM Act s 294(2), provides that the Commission is to attach to its certificate of determination a brief statement of its reasons. The WIM Act, s 354, also provides that proceedings are to be conducted as informally as proper consideration of the matter permits and that the rules of evidence do not apply. Having regard to these provisions, I think that a fair reading of the Arbitrator's reasons is that he did take into account the events preceding the alleged assault, but considered that they had little bearing on the issue of the reasonableness of the Health Network's actions.” (emphasis in original)
The Arbitrator’s Reasons were perfectly adequate to explain the essential reasons for her conclusions. She explained that there was a proper factual foundation for the basis of Dr Brender’s opinion. The factual basis included the fact that the deceased worked in an environment that was stressful and that she had expressed to Mr Weismantel that she was feeling unhappy and stressed about having to attend the management meeting at Yagoona. The Arbitrator accepted that evidence. On the basis of that unchallenged evidence, coupled with an acceptance of Dr Brender’s conclusion that unusual stress on the day of the accident could have been a contributing factor, these were sufficient reasons to explain the Arbitrator’s conclusion.

Significance attached to the “no positive medical case”

For the reasons I have already given, where the expert evidence suggested a possible link between the deceased being subjected to an unusual degree of stress on the day of her death, taken together with other lay evidence, the possible cause of the death may be taken to be the probable cause of death.
The principles discussed in Bes and Fernandez may only be applied where no alternative cause is established or suggested by the evidence (see [174]–[175] above).
The Arbitrator was correct to note in her analysis that no contradictory expert evidence had been submitted by Woolworths. In doing so the Arbitrator did not draw a Jones v Dunkel inference. However, in order to assess the probable cause of the deceased’s death it would have been necessary for the Arbitrator to have had regard to any evidence that would exclude the possibility of a causal connection between the employment and the disease or aggravation of the disease. If there was no such evidence the Arbitrator was required to say so, and that is what she did.
I am satisfied that the Arbitrator’s Reasons adequately reveal the significance of her remarks concerning the absence of contradictory medical evidence, and they are consistent with established authority and reveal no error.

Injury and s 9A

Woolworths’ submissions with respect to the application of s 9A of the 1987 Act, in substance seek to reargue the submissions which were put before the Arbitrator rather than identify error.
It has not been suggested that the Arbitrator misapplied the legislation or failed to apply the relevant test as discussed in Badawi.
Mr Catsanos argued on appeal, as he did before the Arbitrator, that if the dependants establish injury for the purposes of s 4(b)(ii) on the basis that there was some contribution from employment, that that contribution must have been de minimus. He submitted that the role played by the vascular risk factors were the predominant cause of the final infarct and death. I reject that submission.
Section 9A is satisfied when the contribution made by the employment factors to the cause or aggravation of the disease was real and of substance. It is not a matter of making an assessment as to whether that contribution was “de minimus” as Mr Catsanos submitted, or any other such test. This was the approach cautioned against by the plurality in Badawi. All that was required for the death to be compensable was for the dependants to establish that the employment was a substantial contributing factor to the aggravation of the disease not the disease itself: Cant and Murray v Shillingsworth [2006] NSWCA 367 at [64].
During the course of oral argument Mr Catsanos conceded that if the Arbitrator’s finding was that there was an acute stressor on the day of the deceased’s death and if that finding was upheld on appeal then, to use his words, it would be “hard to see why that would not be relevant in substance” (T49.39).
I have found on the re-determination of the aggravation issue that the stress the deceased encountered when confronted with the prospect of participating in a management meeting ultimately aggravated her disease and led to her demise. Therefore given Mr Catsanos’ concession, the s 9A issue falls away. However for the reasons given by the Arbitrator and for the reasons given in this decision the contribution played by the employment generally and the acute stress on the day of the deceased’s death more than comfortably satisfy the requirement of s 9A of the 1987 Act.

DECISION

The orders made in the Certificate of Determination dated 8 November 2013 are confirmed.

COSTS

The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.

Judge Keating
President

21 March 2014

I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 14

19 February 2014 21 March 2014