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

1. 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.

2. 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.

3. 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.

4. 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…