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  4. Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator - [2021] QIRC 273

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Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator[2021] QIRC 273

Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator[2021] QIRC 273

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator [2021] QIRC 273

PARTIES: 

Scott, Tracy as Litigation Guardian for Lomax, Fabian

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/110

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

6 August 2021

HEARING DATES:

1 and 2 October 2019

17 December 2020 

MEMBER:

O'Connor VP

HEARD AT:

Cairns

ORDERS:

  1. The decision of the Regulator should be affirmed;
  2. The Appeal is dismissed; and
  3. I will hear the parties as to costs.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of the respondent – where appellant suffered cardiac arrest and severe hypoxic brain injury – where appellant sustained injury out of or in the course of his employment – whether  employment was the major significant contributing factor to the injury – determined employment was not a significant contributing factor to the injury – determined appellant has not established that he suffered an "injury" within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 32

Workmen's Compensation Act (1932‑35) SA, s 4

CASES:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

Blackwood v Civeo Pty Ltd [2016] ICQ 1

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

JBS Australia Pty Ltd AND Q-COMP [2013] ICQ 13

Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88

Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519

Poulsen v Q-COMP [2012] ICQ 6

Qantas Airways v Q-Comp (2009) 191 QGIG 115

Taylor v Workers' Compensation Regulator [2017] QIRC 006

WorkCover Queensland AND BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142; [2002] ICQ 24

APPEARANCES:

Mr C.J. Ryall of Counsel instructed by Maurice Blackburn Lawyers for the Appellant.

Mr P.B. Rashleigh of Counsel directly instructed by Ms R. Jamieson of the Respondent.

Reasons for Decision

  1. [1]
    Mr Fabian Lomax (the Appellant) worked as a Sales Technician based in Cairns for a national company, Wedderburn Pty Ltd (Wedderburn).  His role involved providing technical support for Wedderburn customers in Cairns and the surrounding areas.
  1. [2]
    On 19 June 2018 the Appellant filed a notice of appeal attaching the Review decision of 4 May 2018 of the Workers' Compensation Regulator which was issued on 31 May 2018.
  1. [3]
    On 26 June 2018 Ms Tracy Scott, de facto partner of the Appellant, filed an Affidavit in the Queensland Industrial Relations Commission (the Commission) consenting to act as litigation guardian for Fabian Desmond Lomax in this proceeding.
  1. [4]
    An amended notice of appeal and amended Statement of Facts and Contentions were filed by the Appellant on 30 September 2019.
  1. [5]
    The Respondent states there is no dispute the Appellant is a worker for the purposes of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act).  A worker who sustains an injury is entitled to benefits under the WCR Act.[1]
  1. [6]
    For the purposes of the WCR Act, an injury is a personal injury that arises out of or in the course of employment, and the employment is a significant contributing factor to the injury.[2]
  1. [7]
    The Respondent agrees that the cardiac arrest resulting in severe hypoxic brain injury is a personal injury for the purposes of the WCR Act and that the injury arises out of or in the course of the Appellant's employment with Widderburn.[3]

Issue for determination

  1. [8]
    The issue for determination in this appeal is whether the Appellant's employment with Wedderburn was a significant contributing factor to the injury for the purposes of s 32 of the WCR Act.
  1. [9]
    Section 32 of the WCR Act provides:
  1. 32Meaning of injury
  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  2. (2)
    However, employment need not be a contributing factor to the injury if  section 34(2) or 35(2) applies.
  3. (3)
    Injury includes the following -
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. (i)
    a personal injury;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

. . .

  1. [10]
    A significant contributing factor for the purposes of the WCR Act is a real or effective cause, rather than just the setting in which the injury occurs.[4]
  1. [11]
    Whether employment is a significant contributing factor is an issue of fact.  The Commission may have regard to the medical evidence which is led.[5]
  1. [12]
    The Appellant submits that physical exertion involved in work he performed immediately prior to suffering his cardiac arrest and/or anger he suffered in the course of his work the day before caused "physiological changes including an increase in blood pressure that triggered his heart attack".

Background

  1. [13]
    On 21 June 2017 the Appellant attended work at a new shopping centre located in the Cairns region.  Mr Nigel Jelley, a Salesman at Wedderburn had been sent to Cairns to demonstrate to customers a new point of sale system.  As the Appellant was unfamiliar with the new system he intended to watch the demonstration to customers at the Bar Street markets so he could familiarise himself with the product.
  1. [14]
    The Appellant carried the equipment from the car park to the location of the demonstration.  Mr Jelly was unable to assist as he was suffering from a hernia.
  1. [15]
    It is alleged that prior to the demonstration occurring, Mr Jelly said to the Appellant, "don't you have work to do, you can go now".  The Appellant left the shopping centre and sent a text to his de facto wife, Ms Tracey Scott stating, "Nigel is a fucking dumb cunt … [c]ause he is a cock head".[6]
  2. [16]
    In his amended Statement of Facts and Contentions the Appellant contends that on his return to the shopping centre on 22 June 2017 he had to collect the point of sale system and other items.  The larger system weighed approximately 10 kilograms.  In addition to the system he carried three to six boxes each weighing between 10 and 15 kilograms.  The system and the other items were on the mezzanine level of the building where the demonstration took place.  Each of the items had to be carried down one flight of stairs and approximately 30-40 metres from the bottom of the stairs to the car park then to the Appellant's vehicle.  The Appellant completed the task at 10.00 am.  The recorded time shows 15 minutes duration for the task.[7]
  1. [17]
    The Appellant further pleads that the cardiac arrest resulting in a severe hypoxic brain injury on 22 June 2017 was caused by or substantially contributed to by the severe anger induced as a result of the interaction with Mr Jelley on 21 June 2017 and/or his exertions during the course of his employment prior to 10.00 am on 22 June 2017.
  1. [18]
    At 10.17 am on the morning of 22 June the Appellant called 000 noting that he was experiencing chest pain.  When the ambulance arrived the Appellant was unconscious.

Whether employment a significant contributing factor?

Episode of anger

  1. [19]
    The Appellant was unable to provide evidence as a consequence of his hypoxic brain injury caused by the myocardial infarction complicated by extended cardiac arrest.  This was confirmed by Dr Sandery, the Appellant's treating general practitioner, who stated on 13 September 2019 that the Appellant does not have capacity to give evidence regarding any of the matters relating to the events of 21 or 22 June 2017 or his subsequent hospitalisation.[8]  The Respondent accepted that.
  1. [20]
    Ms Scott in her evidence on 1 October 2019 said she had been the Appellant's de facto partner since November 2001 and as to his temperament, "[he] avoided conflict would be my way of describing him.  He hated conflict. … I've never seen him get angry like that".[9]
  1. [21]
    On the day before his injury Ms Scott said the Appellant "told me that he had to set up the equipment for Nigel and carry all the equipment into the job … apparently, he said Nigel had a hernia. … he went to shake Nigel's hand and [Nigel] pulled it away".[10]
  1. [22]
    Mr Chuck Irvine, Sales Consultant gave evidence for the Appellant that he had a personal relationship with him for 21-22 years.  Mr Irvine said that on the evening of 21 June 2017 the Appellant was very upset about the circumstances of what had gone on that day.  He stated, "it's just unusual for him to be in that sort of manner because Fabian's not a person … to get angry, to even raise his voice or to be upset".[11]
  1. [23]
    In his evidence in chief, Mr Tony Benjamin, Technical Support Officer employed by Wedderburn said he has known the Appellant since about 1986.  He said the Appellant "was frustrated that Nigel wanted him there when they couldn't get it working.  They had some issue of getting some piece of equipment not working.  And once they got it working … Nigel turned to him and said, '[y]ou can go now.  I don't need you'.  And Fabian was frustrated because he wanted to stay and watch the demonstration of the new piece of equipment that he hadn't seen".[12]  Mr Benjamin said the Appellant was upset when he was asked to leave.
  1. [24]
    Mr Peter Kruger, Regional Service Manager for Queensland, Wedderburn said he had worked with the Appellant for over 25 years.  In his evidence, Mr Kruger said the Appellant contacted him on 21 June 2017.  He said the Appellant was annoyed that Nigel had asked him to leave the job that he was on.  He was "expressive - a lot of foul language, you know; he was very annoyed. … [he] said that Nigel wasn't his boss, he shouldn't have the right to tell him what to do".[13]
  1. [25]
    The Respondent submits that it was not part of the Appellant's employment to be present for demonstrations.  The Appellant was to do the manual lifting and Mr Jelly was going to set up the demonstration and the Appellant was to leave.  Mr Jelly said the Appellant "was not required by the sales department for the demonstration. … he would have needed to arrange that with the service department".[14]
  1. [26]
    Mr Jelly in cross-examination rejected the proposition that he said to the Appellant, "[y]ou're not staying, are you?  Don't you have work to do?"  Mr Jelly also could not recall turning his back to the Appellant or not offering his hand and that he believed he said goodbye to him.[15]
  1. [27]
    The Respondent submits that the evidence does not reach the threshold for anger let alone severe anger.[16]

Exertion

  1. [28]
    The Respondent submitted the Appellant's case is based on an Explanation of the MET (Metabolic Equivalent), The Measurement of Energy Expenditure as outlined in the report of Dr Inez Farag, Physiotherapist:

Measurement of energy expenditure is carried out in METs (metabolic equivalent) with 1 MET defined as the amount of oxygen consumed while sitting at rest.[17]  This has been calculated to be 3.5 ml of oxygen, per kilogram of body weight per minute, for an "average person" with a body weight of 70 kg.[18]

  1. [29]
    Mr Stephen Hoey, Occupational Therapist provided evidence for the Appellant.  He undertook an inspection of the site and an examination of the details of the items that needed to be carried and provided two formal reports.[19]  There was no evidence available about which set of stairs were used or where the Appellant had been able to park his vehicle.  Mr Hoey's assessment was "after adjustments the height and weight of the Appellant at the time the average MET value for the two scenarios was 5.66 METs and 5.47 METs respectively".[20] 
  1. [30]
    In considering the reports of both Mr Hoey and Dr Farag, the Appellant submits that in moving the equipment on 22 June 2017 he exceeded his maximum MET.  Mr Hoey in his evidence[21] and his report of 20 January 2020 sets out a maximum MET of 5.9 for the activity of walking downstairs - carrying a load.[22]  Dr Farag at page 4 of her report said the Appellant on 18 October 2012 had a maximum MET functional capacity of 4.8.
  1. [31]
    In cross-examination, Mr Hoey agreed his calculations were based on "[t]he instructions from the solicitors involved gave me a set of variables. … I'm not privy to having seen Mr Lomax conduct the task, and no one's able to give specific parameters as to how the task was conducted.  So within the instructions I was given, I’ve done the best I can".[23]
  1. [32]
    Dr Farag in cross-examination said that when Mr Hoey was looking at a calculation of MET levels, it was her opinion that that calculation could only provide a broad indication of cardiovascular system impact of the activity in question.[24]
  1. [33]
    Dr Farag in her conclusion on the required level of physical exertion by the Appellant stated, "the analysis of tasks undertaken by him on the morning of the subject incident, would indicate that there was a component of the job that exceeded his safe MET capacity".[25]  Mr Hoey agreed with Dr Farag about matters she raised regarding energy expended.[26]
  1. [34]
    The Appellant referred to the records of the Cairns Base Hospital which included an Exercise Stress Test Report in respect of the Treadmill Stress Test conducted on 18 October 2012 (4 years and 8 months prior to the claimed injury).  Under the Exercise Test Summary the following was included: "[t]he patient exercised according to BRUCE CBH for 5.43, achieving a work level of Max. METS: 4.80".  Under the heading "Interpretation", it is noted, "Functional Capacity: moderately decreased (20% to 30%).  Overall impression: Normal stress test".[27]
  1. [35]
    The Respondent submitted it is said that because of the effort expended in carrying the items to the vehicle involved a MET of 5.9 this has caused the Appellant to have the cardiac arrest leading to the hypoxic brain injury.[28]

Medical Evidence

  1. [36]
    In cross-examination Dr Kenneth Hossack, Cardiologist, was referred to the Appellant presenting at the emergency department of the Cairns Base Hospital with chest pain on 10 October 2012.  Dr Hossack said it would be difficult "to assess maximal exercise capacity at that point in time" because he had a higher blood pressure.  Subsequently on 18 October 2012 the Appellant presented for a stress test.  Dr Hossack said "the purpose of the test is severalfold … one of the purposes that we're using the test for now is to assess his exercise capacity. … it was unlikely that the exercise test performed at that time reflected his maximal exercise capacity.  What that test reflected was his level of sub-maximal exercise.  His exercise capacity at that time was 7.1 METs".[29]
  1. [37]
    When cross-examined about this MET reading, Dr Hossack explained his reasoning to the effect it was 95 per cent accurate a very highly reproducible measurement.[30]  Dr Hossack said irrespective of how the doctors at the Cairns Base Hospital fill out their exercise stress test report, the Appellant exercised to a level of 7.1 METs without a question or a shadow of a doubt.[31]
  1. [38]
    Dr Hossack agreed that the Appellant continued to have obvious risk factors right up to the event in 2017.  When asked about the possibility that physical exertions and emotions can trigger heart attack, Dr Hossack said:

I think there can be triggers for myocardial infarction, yes.

And those triggers can do things such as increasing blood pressure, which creates the risk we talked about of rupture of vulnerable plaque --- Yes, but could I also point out that, in my opinion, a more likely explanation for ruptured plaque is chemical reactions that take place in the plaque, which result in the production of enzymes that [weakens] the cap over the plaque, and that cap ruptures …[32]

  1. [39]
    During his cross-examination Dr Hossack was asked if such a spontaneous event could be triggered and whether the Appellant would be more vulnerable by exceeding his capacity for exercise.  It was Dr Hossack's opinion that "the effort involved in the activity that Mr Lomax had to do, to pick up the equipment and take it down to the vehicle, was much less than the effort involved in performing the exercise test in 2012".[33]
  1. [40]
    In relation to the Appellant watching the State of Origin on 21 June 2016, it was the opinion of Dr Hossack that medical literature on an epidemiological basis suggests the emotional impact on a viewer in a sporting event can be associated with an increased risk of a heart attack but it is not absolute and the studies by no means explain all of the reasons why people have a heart attack.  A gentleman who smokes, has poorly controlled blood pressure, untreated high cholesterol, is very likely to have a spontaneous event irrespective of anything else to cause a myocardial infarction.[34]  He went on to say the majority of people he has treated for myocardial infarction do not have a triggering event.  They have a high cholesterol with plaque rupture.[35]
  1. [41]
    The Appellant referred to the multiple reports of Dr Michael Jelinek, Consultant Cardiologist wherein he expressed the opinion there was a contribution to the myocardial infarction causing the injury firstly from the anger the Appellant was suffering on the morning of the event and later the exertion involved in the task undertaken between 9.45 am and 10.01 am.  Dr Jelinek said the combination of those trigger conditions was noted to be associated with an increased likelihood of the Appellant suffering the injury.[36]
  1. [42]
    In his report of 27 September 2017 Dr Jelinek specified the research he relied on in forming his opinions about the associations between the relevant triggers and heart attacks:

The Inter Heart study (circulation 2016; 134:1059 - 1067) indicated that physical exertion within 1‑hour of a heart attack was associated with 2.44 times the risk of heart attack than at other times.  A combination of physical exertion and emotion was associated with 3.05 times the risk of heart attack as at other times.[37]

  1. [43]
    In cross-examination, Dr Jelinek accepted the proposition that because the injury occurred soon after what he assumed was a period of exertion and anger there were possible triggers which caused or contributed to the cardiac arrest.[38]
  1. [44]
    The Respondent submitted that arising from the cross-examination of Dr Jelinek, "that for anger to be somewhat causative in a cardiac arrest it needed to be severe anger and the event needed to be within two hours of the onset of the severe anger".[39]
  1. [45]
    The Appellant submitted that Dr Jelinek was probably not qualified to give any expert opinion about emotional matters.  His evidence was that cardiologists recognised there were triggers for heart attacks and those triggers included anger and exertion is uncontroverted and agreed to by Dr Hossack.[40]
  1. [46]
    Dr Jelinek agreed that the Appellant, because of his pre-existing medical conditions which were significant coronary artery disease and his non-compliance with medication, was at significant risk of suffering a heart attack leaving aside any of the issues that he postulated such as anger or exertion.[41]
  1. [47]
    Dr Jelinek also agreed the MET of 7.1 as worked out by Dr Hossack was a reasonable estimate.[42]  Further, he agreed with the proposition that in 90 per cent of cases there is no real cause that can be found in respect of a heart attack.[43]
  1. [48]
    The Respondent submitted that Dr Jelinek adopted the approach "that because the heart attack followed those things, therefore those things must have caused the heart attack".[44]

Consideration

  1. [49]
    The onus of proof rests on the Appellant to establish to the requisite standard that his employment was a significant contributing factor to his cardiac arrest resulting in his severe hypoxic brain injury for the purposes of s 32 of the WCR Act.
  1. [50]
    The Respondent does not contest that the cardiac arrest resulting in severe hypoxic brain injury is a personal injury for the purposes of the WCR Act.  Nor is there any dispute that the injury arises out of or in the course of the Appellant's employment with Wedderburn.  However, what is in dispute between the parties is whether his employment with Wedderburn was a significant contributing factor to the injury.
  1. [51]
    Whilst the medical evidence suggests that there may be a number of contributing factors causing the Appellant's cardiac arrest and the consequent hypoxic brain injury, for the purposes of s 32(1) of the WCR Act, the Act speaks of employment being a significant contributing factor to the injury.  Significant is used in the sense of "important" or "of consequence".[45]
  2. [52]
    In Newberry v Suncorp Metway Insurance Ltd,[46] Keane JA, with whom de Jersey CJ and Muir J agreed, said:

The requirement of s 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.[47]

  1. [53]
    His Honour later observed:

[T]he fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been a 'significant contributing factor to the injury'.  To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment'.

Further, there is no warrant in the language of s 32 of the WCRA for reading the words 'if the employment is a significant contributing factor to the injury' as lessening the stringency of the requirement that the injury 'arise out of the employment', as was suggested in the course of argument on the appeal.  It is clear, as a matter of language, that the words 'if the employment is a significant contributing factor to the injury' are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of employment.  It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.[48]

  1. [54]
    It is not sufficient to establish a mere temporal relationship between an injury and being at work to satisfy the requirement under s 32 of the WCR Act of arising out of, or in the course of, employment.[49]  As was observed by de Jersey P (as he then was) in Croning v Workers' Compensation Board of Queensland,[50] the employment needs to be the "real effective cause".[51]
  1. [55]
    In Poulsen v Q-COMP, Hall P wrote:

If s. 32(1) of the Act did no more than recite the traditional formula 'arising out of or in the course of the employment', the Appellant would have had a case.  However, the Legislature has added a further requirement, viz., that the employment be a significant contributing factor to the injury.  An applicant must now show a further element of causation.  Further, whatever the precise content of 'significant', it is apparent from the phrase 'a significant contributing factor' that mere satisfaction that some element of contribution (minor was the adjective used by the Acting Industrial Magistrate) occurred is insufficient.  Here, on the evidence, the Appellant established the type of case made out in Pleming v Workers' Compensation Board of Queensland.  The Appellant failed to demonstrate that the contribution of the employment was of any significance whatever compared to the dominant contributing factor, viz., the Appellant's underlying condition.[52]  (citation omitted)

  1. [56]
    Hall P adopted a similar approach in JBS Australia Pty Ltd AND Q-COMP, where his Honour concluded:

I should say to begin with that, I accept that the employment must significantly contribute to the occurrence of the injury.  It is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence, compare Croning v Workers' Compensation Board of Queensland, at 101 per de Jersey P.  It must be shown to be more probable than not that there is a significant causal relationship between the accident and the workers' post‑accident condition, … .[53] (citation omitted)

  1. [57]
    In Blackwood v Civeo Pty Ltd, Martin J said:

The test applied in determining whether employment was a significant contributing factor must be applied in a practical way.  It is the 'exigencies' of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment.[54]

  1. [58]
    Further, his Honour said:

While causation will, necessarily, be part of any analysis, the Act recognises that there may be more than one factor in play … .[55]

  1. [59]
    In any case where there is a conflict of expert evidence the Commission must, inevitably, prefer one opinion to another in order that a decision can be rendered.  As I observed in Taylor v Workers' Compensation Regulator:

The Commission, as the tribunal of fact, can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an injury having regard to the totality of the evidence.  The Commission's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[56]

  1. [60]
    Dr Hossack's evidence was that in his experience, the majority of people who are treated by him for myocardial infarction and upon whom angioplasties are performed, do not have a triggering event.  They have high cholesterol with plaque rupture.[57]
  1. [61]
    In cross-examination, Dr Hossack provided the reason for the ruptured plaque as follows:

... in my opinion, a gentleman that smokes has poorly controlled blood pressure and untreated high cholesterol is very likely to have a spontaneous event, irrespective of anything else to cause a myocardial infarction.[58]

  1. [62]
    It was Dr Hossack's evidence that it was more likely that the rupture of the plaque was:

... chemical reactions that they place in the plaque, which result in production of enzymes and we can note that the cap over the plaque ruptures.  The treatment of high cholesterol with certain types of drugs helps prevent those reactions taking place and cause stabilisation of the plaque and prevents ruptures occurring.[59]

  1. [63]
    Dr Jelinek accepted in cross-examination that the Appellant was a heavy cigarette smoker;[60] he had poorly controlled hypertension;[61] suffered from pre-existing significant coronary artery disease prior to 22 June 2017[62]; was non-compliant with medication,[63] that Dr Hossack's MET calculation of 7.1 was a reasonable estimate;[64] and that he engaged in what he described as "a retrospective summation".[65]
  1. [64]
    The Appellant argues that it is well established that the Commission is entitled to draw inferences as to causation simply from a sequence of events.
  1. [65]
    To support the submission, the Appellant refers to the dicta of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (Forst) where his Honour wrote:

I do not see why a court should not begin its investigation, i.e. before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.[66]

  1. [66]
    In Forst,[67] Rich ACJ, Starke and McTiernan JJ considered whether the evidence justifies the inference that the exertion brought about by the strenuous work done by the deceased immediately before he died accelerated or materially contributed to his death.  Their Honours drew a connection between exertion in the workplace and the worker suffering a coronary thrombosis.
  1. [67]
    Dixon J dissented in Forst concluding that the inference that exertion caused a worker's heart attack could only be drawn if there was "competent and trustworthy expert opinion" evidence.  He wrote:

First. I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.

Secondly, I do not read the evidence, considered as a whole, as meaning that physical effort is commonly, although not invariably, the inciting cause of coronary thrombosis.

Thirdly, whether an inference can or should be drawn from the fact that in the present case the collapse of the deceased occurred after unusual exertion seems to me to depend on the answer first given to the pathological question whether there is any natural connection between exertion and the formation of a thrombus.

Tempting as it always is, particularly in matters of bodily health, to argue from a sequence of external events, such reasoning is justified only when positive knowledge or common experience supplies some adequate ground for believing that the events are naturally associated.[68]

  1. [68]
    A distinguishing feature of Forst is that s 4 of the Workmen's Compensation Act (1932‑35) (S.A.) does not contain the requirement that the employment significantly contribute to the injury.  Section 4 of the South Australian Act provides as follows:
  1. 4.If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with this Act.
  1. [69]
    The question whether the Appellant suffered an injury within s 32(1) of the WCR Act is a question of fact.  As was recognised by Hall P in Nilsson v Q-COMP there is room for "intuitive" reasoning.  However, as his Honour warned, "... one may not in the process substitute speculation for satisfaction on the balance of probabilities".[69]
  1. [70]
    The Appellant would urge the Commission to draw an inference that the Appellant's emotional state combined with the level of exertion would have had a cumulative effect on his blood pressure and also other systemic issues.  Moreover, it is contended that exertion can trigger myocardial infarction and the compelling temporal connection between the exertion and the appellant suffering symptoms support the inference being drawn that the cardiac arrest was triggered by and therefore caused or substantially contributed to by his employment.
  1. [71]
    The approach to be adopted by a Court in drawing an inference was considered in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd where the Victorian Court of Appeal wrote:

The principles, relating to the drawing of inferences in civil cases, are well established.  First, any inference must be based on facts established by admissible evidence.  Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.  Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts.  In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference… .

In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:

"A party seeking to establish that an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts.  The inference must be based on evidence rather than speculation …".[70] (citation omitted)

  1. [72]
    The process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.[71]
  1. [73]
    What is contended by the Appellant in his amended Statement of Facts and Contentions is that the cardiac arrest was caused by a thrombosis in the circumflex artery that was caused by or contributed to by an episode of anger on the part of the Appellant during the period during and after driving from work on 22 June 2017, induced by his response to his interaction with Mr Jelly (a co-worker) on 21 June 2017 and/or the exertion involved in completing his work on the morning of 22 June 2017.
  1. [74]
    However, the Appellant submitted the question is not whether they could have, but whether one or the other of them, did have the relevant effect.  If either or both the exertion and emotional response did produce the physiological responses, then that would be sufficient to find they were the cause or a significant contributing factor.[72]
  1. [75]
    On the evidence before the Commission, it cannot, in my opinion, be said that the inference or inferences advanced by the Appellant are 'the more probable inference'.  I do not think that they have a greater degree of likelihood than any other competing inference.
  1. [76]
    The lay evidence adduced on behalf of the Appellant shows that at the highest, he had "strong emotional response to the events at work on 21 June 2017".[73]
  1. [77]
    In the report of Dr Hossack dated 14 July 2020, he expressed the view that the anger experienced by the Appellant was not a contributing factor to his cardiac arrest.[74]  In coming to that conclusion, Dr Hossack referred to an article by Mittlemen et al.[75]  The literature suggests that an anger level of 5 or more was associated with an increased risk of myocardial infarction.  The descriptors of level 5 are: "Very angry, body tense, clenching fists or teeth".  The study demonstrated that the risk of myocardial infarction/cardiac arrest associated with anger persisted for two hours after the episode of anger.
  1. [78]
    The evidence does not establish anger sufficient to cause a myocardial infarction.  Nor is the evidence sufficient to conclude that the Appellant's reaction was "severe anger".  While the Appellant might have been upset, frustrated or very upset it is not indicative of severe anger, precipitating the cardiac arrest.[76]
  1. [79]
    The Appellant contended that the emotional state combined with the level of exertion would, have had a cumulative effect on his blood pressure and was at least capable of producing physiological responses causing the thrombosis and subsequent heart attack.[77]
  1. [80]
    The time recording completed by the Appellant on his phone app showed he finished the task a little prior to 10.00 am.  The Appellant's call to 000 was at 10.07 am on 22 June 2017.  Dr Jelinek in forming his opinion relies on research showing a connection between exercise as a trigger only if the exercise took place within one hour before the heart attack.[78]
  1. [81]
    I accept that the evidence as to the exertion in removing the items from the display on 22 June 2017 was not sufficient to exceed the Appellant's maximum MET of 7.1.[79]  Dr Hossack was of the opinion that the energy expenditure carried out on 22 June 2017 was well below the Appellant's maximum capacity.  In his view, the carrying of the boxes in no way contributed to the development of the myocardial infarction and cardiac arrest.
  1. [82]
    It was accepted by both Dr Jelinek and Dr Hossack that 90 per cent of cardiac arrests occur in circumstances where no precipitating factor is found.  Further, it was agreed that the Appellant was at significant risk of suffering a heart attack because of his pre-existing condition.
  1. [83]
    In accepting the evidence of Dr Hossack, in my opinion, the explanation for the heart attack is the chemical reaction that took place in the plaque which resulted in the production of enzymes that affected the cap over the plaque thereby resulting in the cap rupturing.  The Appellant was non-compliant with cholesterol medication which could have helped prevent the reaction taking place causing stabilisation of the plaque and preventing the rupture occurring.[80]  As Dr Hossack opined in his report of 14 July 2020:

Mr Lomax had a number of risk factors for coronary artery disease.  These included a significant history of smoking, poorly controlled hypertension which has been present for at least 5 years, and hyperlipidaemia untreated which has been present for at least 5 years.  The combination of these factors are the major contributing factors to the development of an acute myocardial infarction with subsequent cardiac arrest.[81]

  1. [84]
    The Respondent submits the employment was just the setting where the cardiac arrest which led to the hypoxic brain injury occurred.  I agree.  His employment was not a significant contributing factor to his injury.  The Appellant failed to demonstrate that it was the contribution of the employment that was of significance compared to the dominant contributing factor, namely, the Appellant's underlying condition.  The Appellant did not suffer any injury within the meaning of s 32 of the WCR Act.[82]

Conclusion

  1. [85]
    On consideration of the totality of the evidence before the Commission, I am not satisfied that the Appellant has established that he suffered an "injury" within the meaning of s 32 of the WCR Act.  Accordingly, the Appellant has not discharged the onus of proving, on the balance of probabilities, that the Respondent's decision should be set aside, and that his claim is one for acceptance.
  1. [86]
    I make the following orders:

Orders

  1. The decision of the Regulator should be affirmed;
  2. The Appeal is dismissed; and
  3. I will hear the parties as to costs.

Footnotes

[1] WCR Act, s 108(1).

[2] Ibid, s 32(1).

[3] Respondent's submissions filed 19 February 2021, [5]-[6].

[4] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 [101].

[5] WorkCover Queensland AND BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142;  [2002] ICQ 24.

[6] Exhibit 5.

[7] Exhibit 6.

[8] Exhibit 1.

[9] TR1-9, L30 - TR1-10, L6.

[10] TR1-11, LL18-22.

[11] TR1-15, LL39-41.

[12] TR1-20, LL1-5.

[13] TR1-25, LL36-46.

[14] TR1-32, LL43-47.

[15] TR1-36, LL21-33.

[16] Respondent's Submissions filed 19 February 2021, [25].

[17] Respondent's Submissions filed 19 February 2021, [26];  Exhibit 13, p 3, Ndahimana, D. Kim Eun-Kgung, Measurement Methods of physical activity and energy expenditure: a review, Clinical Nutrition Research (2017) 6 (2) 68-80.

[18] Exhibit 13, p 3.

[19] Exhibit 11.

[20] Appellant's Submissions filed 5 March 2021, [10].

[21] TR3-17, L33.

[22] Exhibit 11, p 187.

[23] TR3-17, LL9-12.

[24] TR3-34, LL16-18.

[25] Exhibit 13, p 141.

[26] TR3-17, LL26-29; Respondent submissions filed 19 February 2021, [34].

[27] Exhibit 4, p 6.

[28] Respondent submissions filed 19 February 2021, [32].

[29] TR3-21, L5 - TR3-22, L3; Exhibit 12, Report dated 7 September 2020, p 1.

[30] TR3-22, LL15-25.

[31] TR3-25, LL10-11.

[32] TR3-27, LL8-16.

[33] TR3-28, LL21-24.

[34] TR3-28, LL5-16.

[35] TR3-29, LL1-3.

[36] Appellant's Submissions filed 5 March 2021, [43];  Exhibit 10.

[37] Exhibit 10.

[38] TR3-9, LL20-21; TR3-10, LL8-9.

[39] Respondent's Submissions filed 19 February 2021, [38]; TR3-9, LL20-21.

[40] Appellant's Submissions filed 5 March 2021, [50].

[41] TR3-8, LL20-28; Respondent submissions filed 19 February 2021, [39].

[42] TR3-9, LL1-4.

[43] TR3-12, LL27-28.

[44] Respondent's Submissions filed 19 February 2021, [43].

[45] Qantas Airways v Q-Comp (2009) 191 QGIG 115, 119.

[46] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519.

[47] Ibid, 529. 

[48] Ibid, 532-3.

[49] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142. 

[50] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[51] Ibid, 101. 

[52] Poulsen v Q-COMP [2012] ICQ 6, [10].

[53] JBS Australia Pty Ltd AND Q-COMP [2013] ICQ 13, [3].

[54] Blackwood v Civeo Pty Ltd [2016] ICQ 1, [24].

[55] Ibid, [25].

[56] Taylor v Workers' Compensation Regulator [2017] QIRC 006, [43] (citations omitted from original).

[57] TR3-29, LL1-3.

[58] TR3-28, LL34-46.

[59] TR3-27, LL14-18.

[60] TR3-9, L14.

[61] Ibid.

[62] TR3-8, LL20-21.

[63] TR3-8, LL24-25.

[64] TR3-9, L4.

[65] TR3-12, LL5-6.

[66] Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, 563.

[67] (1940) 64 CLR 538.

[68] Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, 570.

[69] [2008] ICQ 32, 3.

[70] Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, [101]‑[102].

[71] Ibid, [101].

[72] Appellant's Submissions filed 5 March 2021, [73].

[73] Appellant's Submissions filed 5 March 2021, [68].

[74] Exhibit 12.

[75] Triggering of acute myocardial infarction onset by episodes of anger. Determinants of Myocardial Infarction Onset Study Investigators, M A Mittleman 1, M Maclure, J B Sherwood, R P Mulry, G H Tofler, S C Jacobs, R Friedman, H Benson, J E Muller.

[76] Respondent's Submissions filed 19 February 2021, [54], [56].

[77] Appellant's Submissions filed 5 March 2021, [71]-[72].

[78] Ibid, [75].

[79] Respondent's Submissions filed 19 February 2021, [57].

[80] Respondent's Submissions filed 19 February 2021, [59].

[81] Exhibit 12.

[82] Exhibit 12, [61], [62].

Close

Editorial Notes

  • Published Case Name:

    Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator

  • Shortened Case Name:

    Scott as Litigation Guardian for Lomax v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 273

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    06 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
4 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Cite 3 - (1940) 64 CLR 538
Cite 4 - (1940) 64 CLR 538
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
4 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Cite 3 - (1997) 156 QGIG 100
Cite 4 - (1997) 156 QGIG 100
JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13
2 citations
Jump To
Cite 1 - [2013] ICQ 13
Cite 2 - [2013] ICQ 13
Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
3 citations
Jump To
Cite 1 - [2017] VSCA 88
Cite 2 - [2017] VSCA 88
Cite 3 - [2017] VSCA 88
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
4 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Cite 3 - [2006] 1 Qd R 519
Cite 4 - [2006] 1 Qd R 519
Nilsson v Q-COMP [2008] ICQ 32
1 citation
Jump To
Cite 1 - [2008] ICQ 32
Poulsen v Q-COMP [2012] ICQ 6
2 citations
Jump To
Cite 1 - [2012] ICQ 6
Cite 2 - [2012] ICQ 6
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 115
Cite 2 - (2009) 191 QGIG 115
Taylor v Workers' Compensation Regulator [2017] QIRC 6
2 citations
Jump To
Cite 1 - [2017] QIRC 6
Cite 2 - [2017] QIRC 6
Workcover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142
3 citations
Jump To
Cite 1 - (2002) 170 QGIG 142
Cite 2 - (2002) 170 QGIG 142
Cite 3 - (2002) 170 QGIG 142
WorkCover Queensland v BHP (Qld) Workers’ Compensation Unit [2002] ICQ 24
2 citations
Jump To
Cite 1 - [2002] ICQ 24
Cite 2 - [2002] ICQ 24
Workers' Compensation Regulator v Civeo Pty Ltd [2016] ICQ 1
3 citations
Jump To
Cite 1 - [2016] ICQ 1
Cite 2 - [2016] ICQ 1
Cite 3 - [2016] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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