WorkCover Corporation of South Australia v Harley No. Scgrg-97-959 Judgment No. S6622
[1998] SASC 6622
•9 April 1998
WORKCOVER CORPORATION OF SOUTH AUSTRALIA
v HARLEY
Full Court: Prior, Debelle and Nyland JJ
Prior J
The respondent was employed as a support worker at a women’s shelter for some seven years. At about 4 o’clock in the afternoon on 26 March 1993, she felt ill. She had a pain in the head. She took two Panadol but felt no better. Indeed, she said she "got sicker and sicker". She left work. A colleague suggested she should drive straight to her doctor. The colleague followed her to see the respondent stop in Melbourne Street, North Adelaide. The respondent managed to get out of her car before vomiting and then collapsing. She was taken to hospital by ambulance. She had suffered a subarachnoid haemorrhage as a result of a ruptured berry aneurysm. A berry aneurysm is a congenital defect of the muscle wall and the internal elastic laminar, which may lead to out-pouching over time.
The respondent made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1986. A review officer held that in suffering an aneurysm, on 26 March 1993, on the way home from work at a women’s shelter, a disability arose from that employment and so was compensable: Workers Rehabilitation and Compensation Act 1986, s30. In the opinion of the review officer, the respondent’s aneurysm and subarachnoid haemorrhage were to be treated as a disease as "disease" is defined in the Act.
The review officer found that the worker performed a highly stressful and demanding job and suffered increased stress levels from that job and that hypertension was so strongly associated with those stresses that the two were shown to be related. He also accepted the respondent’s evidence that she became a heavier smoker because of her work and said that he was satisfied, on the balance of probabilities, that the respondent’s increase in smoking and hypertension, caused by the stresses of an inherently stressful job, contributed materially to the onset of her disability.
On an appeal to the Tribunal it was put that the issues properly raised were whether the haemorrhage was a primary or secondary disability and, if a secondary disability, did the employment contribute to it.
The Deputy President constituting the Tribunal heard evidence from Professor Burns, head of the Department of Neurology at the Flinders Medical Centre, and Dr Clothier, a rehabilitation physician. It was the opinion of Dr Clothier that a significant contributing feature to berry aneurysms is the presence of hypertension. Dr Clothier also said that "other diseases of the arterial wall, such as atheroma or collagen disorders can be contributing factors" and that "cigarette smoking has a major role in the production of atheroma of blood vessels". Dr Clothier said that "there is consistent evidence that cigarette smoking, in particular, heavy smoking contributes to subarachnoid haemorrhage and stroke." He said that it was his opinion:
"that the increased work stress and resultant increase in cigarette smoking, has significantly contributed to the deterioration of Ms Harley’s berry aneurysm and subsequent subarachnoid haemorrhage."
Dr Clothier also said that, in his opinion:
"the work stressors, did contribute to Ms Harley’s hypertension which also contributed to the formation of the berry aneurysm and subsequent rupture with subarachnoid haemorrhage."
Section 30(1) of the Act says that a disability is compensable if it arises from employment. Subsection (2) provides:
…a disability arises from employment if -
(a) in the case of a disability that is not a secondary disability or a disease - it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a disease -
the disability arises out of employment; or
the disability arises in the course of employment and the employment contributed to the disability."
In Burch v State of South Australia , Lander J said:-
"Section 30 is clear enough. A disability which is not a secondary disability or disease is compensable if it arises out of or in the course of employment. However, if the disability is a secondary disability or a disease it is only compensable if it arises out of employment or it arises in the course of employment and the employment contributed to the disability.
In the case of a disease or a secondary disability mere temporal connection is not enough. The disability must arise out of the employment or if not arise in the course of employment and the employment contributed to the disability."
The Tribunal’s view was that the rupture of the berry aneurysm causing the subarachnoid haemorrhage was not a secondary disability but was a disability in the primary sense as defined in s3 of the Act. Thus there was no need for the worker to prove a causal connection between the disability and the employment. A temporal connection was held sufficient. The Tribunal further found, on the evidence before it, that there was a causal connection made out because of the stressful nature of the respondent’s employment, causing her to increase her smoking and contribute to a hypertensive illness from which she suffered, so that in combination it could properly be said that her employment contributed to her disability.
In this appeal it is complained that the Tribunal erred as a matter of law in reaching both of these conclusions. It is said that the Tribunal has erred in a proper understanding of the evidence from Professor Burns, in particular.
It was submitted before us that a disability must be characterised first by determining whether it is a disease or secondary disability. It was said that it was necessary to draw a distinction between the underlying condition, namely the berry aneurysm on the one hand and its rupture on the other. That distinction was said to be important for the purposes of appreciating the distinct role to be played in this case by the differing definitions of "disease" on the one hand and "secondary disability" on the other.
There is no definition of "disease" in the Act, as much as within s3 it is provided that:
"`disease’ includes:
(a) any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development; and
(b) any disability to which s31 applies;"
"Secondary disability" is defined in the Act. In s3 it is provided that:
"`secondary disability’ means a disability that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior disability;"
In the same section, "disability" is defined. The section provides that:
"`disability’ means -
(a) any physical or mental injury including -
loss, deterioration or impairment of a limb, organ or part of the body, or of a physical, mental or sensory faculty; or
a disease; or
disfigurement;"
The Tribunal’s finding was that there was a contribution by employment to a disability but that an employment contribution was not required in this case. The Tribunal rejected the present appellant’s argument that the haemorrhage was a secondary disability. It was submitted that, by subs(2) of s30, the Tribunal had to determine whether the identified disability was a disease or secondary disability. If a disability was a secondary disability or a disease, a causal connection had to be made out.
I think the appellant is correct in the submission that the berry aneurysm was a disease within the meaning of that word in s3 of the Act. It was a physical defect of gradual development. I also think the appellant is correct in submitting that the subarachnoid haemorrhage was a secondary disability. On this appeal error is identified in the reasoning of the review officer and the Tribunal. I agree with the submission that the Tribunal placed too much reliance upon Zickar v MGM Plastic Industries Pty Ltd , a decision upon legislation significantly different from that before the Tribunal.
The appellant submits that the Tribunal has failed to properly comprehend the evidence. This Court should so decide and properly remit the matter to the Tribunal for consideration of that question, an error of law being established. The respondent says that there is no cause for interference by this Court because the evidence before the Tribunal establishes that the disability arose in the course of employment and the employment contributed to the disability.
The appellant’s submission was that properly understood, the evidence of Professor Burns only conceded a hypothetical possibility of a causal connection between the risk factors of increased smoking and hypertension and the occurrence of the haemorrhage. It was put that the finding made by the Tribunal was not supported by the evidence on which it relied.
I think the respondent is correct in the submission that even the evidence of Professor Burns concedes that there is a connection between the haemorrhage and the factors referred to. His opinion was that he did not regard that connection as significant. However, the Tribunal did not act on its understanding of Dr Burns’ evidence alone. It also accepted the opinions of Dr Clothier which were, in themselves, sufficient to establish that the secondary disability arose in the course of employment and that the employment contributed to the disability. On that basis the appeal must be dismissed.
Debelle J
I agree with the substance of the reasons of Prior J. I agree that the berry aneurysm was a disease within the meaning of the Workers Rehabilitation and Compensation Act 1986 and that the subarachnoid haemorrhage was a secondary disability. That leaves the question of fact whether the secondary disability arose in the course of employment and that the employment contributed to the disability. There was evidence on which the Tribunal could reach that conclusion. It has not been demonstrated that the Tribunal erred in doing so.
I agree that the appeal should be dismissed.
Nyland J
I have read the draft reasons of Prior J. I also agree with the submission of the appellant that the berry aneurysm was a disease within the meaning of the definition contained in s3 of the Workers Rehabilitation and Compensation Act 1986 and that the subarachnoid haemorrhage was a secondary disability. The Tribunal was therefore in error in concluding that it was a primary disability.
I further agree with Prior J, however, that there was sufficient evidence before the Tribunal to establish that the secondary disability arose in the course of employment and that the employment contributed to the disability. The appeal should therefore be dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
(Full Court, 25 February 1998, S6157, unreported)
(1996) 71 ALJR 32
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