Re Leo Vincent Delahunty v the Commonwealth of Australia [1981] FCA 8; (1981) 53 FLR 9 (11 February 1981)

FEDERAL COURT OF AUSTRALIA

Re: LEO VINCENT DELAHUNTY
And: THE COMMONWEALTH OF AUSTRALIA [1981] FCA 8; (1981) 53 FLR 9
No. VG124 of 1980
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Evatt(1), Northrop(1) and Deane(1) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employee - Heart attack - Arterial sclerosis - myocardial infarction - aggravation or acceleration of disease - employment a contributing factor - capacity for work - Compensation (Commonwealth Government Employees') Act 1971 ss.5, 27, 29 and 95 - Federal Court of Australia Act 1976 s.24(1)(c).

Workers' Compensation - Commonwealth employee - Arterial sclerosis - Myocardial infarction - Employment contributing to aggravation or acceleration of disease - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss. 5, 27, 29, 95 - Federal Court of Australia Act 1976 (Cth), s. 24(1)(c). Since 1942, apart from war service, the appellant had been a Commonwealth Government employee working in the Taxation Office. From 1963 he had occupied positions of considerable responsibility within the department. Particularly since 1966 his employment involved continual stress. On 12th December, 1976, the appellant suffered a myocardial infarction and in March 1977 he was prematurely retired on superannuation from the Australian Taxation Office. On 1st May, 1977, the appellant commenced a claim pursuant to the Compensation (Commonwealth Government Employees) Act 1971 for compensation. The claim for compensation was rejected by a delegate of the Commissioner for Employees' Compensation on the grounds that his employment was not a "contributing factor for contraction by him of hypertension, coronary sclerosis and myocardial infarction . . . or, the aggravation, acceleration or recurrence of those conditions". On appeal to a judge of the County Court of Victoria the decision of the delegate was upheld.

On appeal on a question of law under s. 95 of the Act,

Held: (1) By reason of the combination of ss. 27 and 29 of the Act the appropriate question for consideration was not the traditional workers' compensation issue of whether the appellant suffered injury "arising out of or in the course of" his employment but instead was whether the employment of the appellant had been a contributing factor to the arterial degeneration and resulting myocardial infarction or to the aggravation or acceleration of that degeneration and infarction.

(2) From the judgment of the County Court judge it appeared probable that he had only addressed himself to the traditional question. His decision must therefore be set aside.

(3) On the evidence it was established that: (i) the appellant had been employed in a stressful job for many years; (ii) he was susceptible to being adversely affected by stress; (iii) stress can contribute to myocardial infarction, independently of hypertension; (iv) the appellant suffered from hypertension to which his employment was a contributing factor; (v) the appellant's employment was a "contributing factor" both to his myocardial infarction and to his underlying arterial degeneration. In the circumstances the appellant had established his entitlement to compensation under the Act.

(4) On the evidence the appellant was totally incapacitated for work as a result of the myocardial infarction which he suffered on 12th December, 1976.

E.F. Hill and S.B. Spittle, for the appellant.

C. Wheeler, for the respondent.

HEARING

Melbourne, 1980, December 18; 1981, February 11. 11:2:1981
APPEAL.

Appeal to the Federal Court pursuant to s. 24(1)(c) of the Federal Court of Australia Act 1976 on a question of law arising under s. 95 of the Act from a decision of a judge of the County Court of Victoria upholding a decision of a delegate of the Commissioner for Employees' Compensation that the employment of the appellant in the Australian Taxation Office was not a "contributing factor to the contraction by him of hypertension, coronary sclerosis and myocardial infarction . . . or the aggravation, acceleration or recurrence of those conditions".
Cur. adv. vult.

Solicitors for the appellant: Slater & Gordon.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.
D. LEVIN

ORDER

A. The appeal be allowed.

B. Order of the County Court of Victoria made on 29 September 1980 be set aside and in lieu thereof the following orders made.

1. In pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971 as amended, including s.29 of the Act . . .

IT IS DETERMINED

(i) That on 12 December 1976 personal injury arising out of the employment of Leo Vincent Delahunty by the Commonwealth was caused to Leo Vincent Delahunty resulting in him being totally incapacitated for work on and subsequent to 13 December 1976.

(ii) That the claim for compensation by Leo Vincent Delahunty of 1 May 1977 be allowed.

(iii) That the claim for compensation be remitted to the Commissioner for Employees' Compensation for determination by him in accordance with these directions of the amount of compensation payable to Leo Vincent Delahunty pursuant to the Compensation (Commonwealth Government Employees') Act 1971.

2. The respondent pay the appellant's costs of both the appeal before the County Court and the appeal before this court. Appeal allowed with costs.

DECISION

The appellant, Leo Vincent Delahunty, appeals from a decision of a Judge of the County Court of Victoria, a prescribed court under the Compensation (Commonwealth Government Employees') Act 1971 (the Act), upholding a decision of a Delegate of the Commissioner for Employees' Compensation that the employment of the appellant in the Australian Taxation Office was not a "contributing factor to the contraction by him of hypertension, coronary sclerosis and myocardial infarction . . . or, the aggravation, acceleration or recurrence of those conditions". The effect of that decision of the Delegate was that the appellant was not entitled to compensation under the Act. The appeal is brought on a question of law under s.95 of the Act. Under s.24(1)(c) Federal Court of Australia Act 1976 the appeal is within the appellate jurisdiction of the Federal Court.

In early 1941, the appellant commenced employment with the Queensland Taxation Department in Brisbane. Upon the coming into effect of the uniform taxation legislation in 1942, the appellant became an employee of the Commonwealth. Apart from a period of three years when he was absent on war service in the Royal Australian Navy, the appellant continued to work in the Commonwealth Department of Taxation or, as it is presently known, the Australian Taxation Office, until 12 December 1976 when he suffered a myocardial infarction. Since that date he has not worked. In March 1977 he was prematurely retired on superannuation from the Australian Taxation Office on the recommendation of a Commonwealth Medical Officer.

During the last 14 years of his employment with the Taxation Department, the appellant occupied positions of considerable responsibility. From 1963-1966 he was Chief Assessor in the Department's Victorian Office with approximately 50 persons under his direct control. From 1966 until his premature retirement, he was Principal Advising Officer in the Victorian Branch. That position involved responsibility, in the Department, for appeals to Boards of Review and the Courts, involvement in proposals for amendment of taxation legislation and, on occasion, the presentation of the Department's case before a Taxation Board of Review. In that position, the appellant had under his supervision a number of other employees including eight senior officers. Regularly, the appellant was called upon to perform the duties of the Assistant Deputy Commissioner (Appeals) when the holder of that position was absent on annual leave or sick leave.

The evidence before the learned County Court Judge demonstrated that the appellant had, over the years, plainly been a person who was, in so far as his health was concerned, susceptible to being adversely affected by stress. On three occasions, when the appellant was under circumstances of particular stress, he had suffered after-effects to an extent which led him to seek medical attention. Two of those occasions arose from domestic situations. The third arose from the appellant's efforts to cope with the demands of his work at the time when the appellant, as Chief Assessor, was put in charge of the Department's Company Section. The appellant, who was accepted by the learned Judge as an honest witness, swore:

"it was a very difficult trying time because I was having - well, I thought I was being overwhelmed with the responsibilities of the job and trying to learn about insurance companies and banks and the complex mining provisions in a very short time. I was the man in charge; I was the man the people came to, and I went through a period of - well I would describe it as anxiety, worrying about the job. I would wake up at night in a sweat worrying and I sought medical advice. My recollection, I don't remember if it was Moreland I saw, but I saw a doctor - told me - I think he said "You've got mild anxiety state" and my recollection was he treated me with valium tablets and sleeping tablets".

The appellant went on to give evidence that this period in which he suffered overt effects of anxiety and depression lasted for three to four months by which time he had "regained confidence in (his) ability to cope".

Notwithstanding the appellant's evidence that he learned to cope with the demands of the job he held from 1963 until 1966, it is plain from the evidence that the appellant's employment from 1963 on, and particularly his employment from 1966 on, carried with it considerable responsibility and involved continual stress upon him. It would seem that the learned trial Judge accepted that this was so. The transcript records that, in the course of the final submissions of Mr Wheeler who appeared for the respondent Commonwealth, the following exchange occurred:

"HIS HONOUR: Now I thought everything was up to that point, was agreed, that he had stress, that work induced - was part of the stress, but did the stress cause the heart attack? I thought that was the only issue.

MR WHEELER: With respect, sir, I would take issue as to whether the work was a contributing factor in the development of stress.

HIS HONOUR: I can assure you that my view is, on the evidence, that it was".

Indeed, the stressful nature of the appellant's position appears to have been conceded by the respondent Commonwealth. The transcript records that Counsel for the Commonwealth expressly conceded that the appellant held "a responsible and stressful job".

Over the years prior to September 1976, it would seem that the appellant's blood pressure had been taken only on the infrequent occasion when he had cause to seek medical attention for particular specific symptoms. There were the three occasions already mentioned when the appellant sought medical attention in relation to the effects of particular instances of concentrated stress. From 1964 on, there were some nine other occasions on which the appellant sought medical attention. There is one occasion referred to in the evidence when the appellant's blood pressure was elevated when taken while he was giving blood at the Victorian Blood Bank. Otherwise, his blood pressure on the irregular occasions when it was tested was normal, though, in so far as diastolic pressure is concerned, tending towards what is regarded, according to one of the medical specialists who gave evidence, as the upper limit (90) of normal. On the evidence, it would seem clear that the appellant, over the years, was a person who could be affected by stress to the extent of seeking medical attention for overt effects of stress without suffering associated hypertension.

It should be added that the appellant, in association with, and largely for the purposes of his employment, commenced the study of law about 1963 and qualified in about 1970. The added stress caused by examinations brought about in the appellant what was described as a mild anxiety state.

In the period June to October 1976, a blood pressure survey was conducted in the Taxation Department. In September 1976, the appellant's blood pressure was taken three times in the course of this survey. On the first occasion, the reading was 140/100 which indicated elevated diastolic pressure. On the second occasion it was 150/95. On the third occasion, when the reading reached 180/120, the appellant was advised by the nursing sister conducting the survey to see his medical practitioner. The nursing sister's notes recorded that, on this occasion when the appellant's diastolic pressure reached 120, the appellant had said "he was busy within the section that morning". On 30 September 1976, the appellant attended his own doctor. His blood pressure while standing was 150/100. Medication was prescribed. On 28 October 1976 while under medication, the appellant's blood pressure was 140/90 which, in so far as diastolic pressure is concerned, was in the area of the upper limit of normal. As one of the medical specialists who gave evidence commented, it would be reasonable to assume that, without medication, the appellant's diastolic pressure would have been abnormally elevated. On 9 December 1976, while the appellant was still under medication, his blood pressure was 120/80. On 12 December 1976, as has been mentioned, he suffered a myocardial infarction.

Section 27 of the Act provides, for present purposes, that, in the event of "personal injury arising out of . . . . the employment of an employee by the Commonwealth", the Commonwealth is, subject to the Act, liable to pay compensation in respect of that injury. Under s.5 of the Act, but subject to s.29, 'injury' does not include a disease or the aggravation, acceleration or recurrence of a disease.

Section 29 of the Act provides, for present purposes, that, in the event that an employee suffers "an aggravation, acceleration or recurrence of a disease" and that any employment of the employee by the Commonwealth was "a contributing factor" to the "aggravation, acceleration or recurrence" of the disease, and that a "total or partial incapacity for work of the employee" arises as a result therefrom, the "aggravation, acceleration or recurrence" shall be "deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth". Under s.5 of the Act 'disease' includes 'any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development'.

Were it not for the provisions of s.29 of the Act, the question which the learned County Court Judge would have been required to ask himself would have been the traditional question posed by Workers Compensation legislation, namely, did the appellant suffer injury "arising out of or in the course of" his employment. By reason of the combined operation of ss.27 and 29 however, the question which the learned Judge was required to ask is a much less stringent one. In the circumstances of the present case, that question was whether the employment of the appellant had been a contributing factor to the arterial degeneration and resulting myocardial infarction or to the aggravation, or acceleration of that degeneration and infarction. It was common ground that those conditions were diseases within the meaning of the Act. If that primary question was answered in the appellant's favour, the further question of whether the appellant's resulting incapacity was partial or total would arise. The appellant's main argument on the hearing of the appeal was that the learned County Court Judge had never directed his attention to the primary question.

In his reasons for upholding the Delegate's decision, His Honour did not refer to the provisions of s.29 of the Act. He stated what he saw as the essential question in the following terms:

"Has it been established that either or both of these attacks could be regarded as a personal injury arising out of the course of the appellant's employment with the Commonwealth?"

If one reads the words "arising out of the course of the appellant's employment" as "arising out of or in the course of the appellant's employment", this statement of the essential question corresponds with the traditional question posed by s.27 of the Act.

It is possible that, in formulating the relevant question in the manner in which he did, the learned County Court Judge intended to encompass, in the concept to which he referred, the effect of the deeming provisions of s.29 of the Act. In the absence of any express reference in His Honour's judgment to the provisions of s.29 of the Act, it is impossible to say with confidence whether this was so. It is not clear whether His Honour's attention was ever directed to the provisions of s.29 of the Act. It was suggested in the course of argument on the appeal that it was not. Doing the best that we can on the material before this Court it appears to us to be probable that His Honour did not intend to encompass the effect of the provisions of s.29 of the Act in the primary question which he formulated. That being the case, it appears to us that His Honour did not address his mind to the essential question which arose for consideration in the present case. Accordingly, the decision of the County Court must be set aside. Under s.95 of the Act the Federal Court may make such order as in all the circumstances it thinks fit. In all the circumstances of this appeal and in view of the fact that no question of credibility arises, it is, in our view, encumbent upon this Court to determine, on the evidence given before His Honour, whether the appellant was entitled to compensation pursuant to the provisions of the Act.

One starts with the undisputed facts that the appellant, who was plainly a person prone to be affected by stress, was employed in what was conceded to be a "responsible and stressful position" and that he was, at the time he suffered the myocardial infarction, under medication for hypertension. It seems to us, on the evidence, that the appellant's employment was plainly a contributing factor to that hypertension. The overall evidence would tend to predispose one to expect that the hypertension and myocardial infarction were connected and that the continual stress associated with the appellant's employment was a contributing factor to both hypertension and infarction.

There was a conflict in the medical evidence on the question whether stress, of itself, can give rise to a heart attack. Two specialists in cardiology, who had been involved in recent research into cardio-vascular diseases, gave evidence that it could. Dr Kay, a practising specialist in cardiology who did not lay claim to having engaged in such advanced research, expressed a contrary view. The learned trial Judge did not find it necessary to resolve this dispute among experts. Careful reading and re-reading of the evidence leads us, without hestitation, to prefer the views of the two experts who, supported by references to research and surveys, expressed the view that stress can, independently of hypertension, contribute to a myocardial infarction.

Once the view is accepted that stress can, independently, be a contributing factor to a myocardial infarction, the case is a tolerably clear one. The appellant's employment involved stress. The appellant was being treated for hypertension to which his employment was plainly a contributing factor. As a matter of probability, the inference would seem unavoidable that both stress from his employment and hypertension to which his employment had contributed, were contributing factors to the myocardial infarction which he suffered. In the words of the Act, the appellant's employment was a "contributing factor" both to that myocardial infarction and to the underlying arterial degeneration. It is relevant to note that this conclusion accords with the conclusion of two of the three medical specialists who gave evidence. It also accords with the conclusion of the medical practitioner who was the appellant's general practitioner. It follows that the appellant was entitled to compensation pursuant to the provisions of ss.27 and 29 of the Act.

There remains for consideration the question whether, for the purposes of the Act, the appellant's resulting incapacity was total or partial. Again, there is some conflict among the medical experts who gave evidence.

Dr Kay gave evidence that, by February 1977, he thought that the appellant "should be fit to continue his present work if he can control his tiredness and tension". He added, in his notes, "but he, himself, had to make that decision". The evidence is silent as to whether Dr Kay's views, in this regard, were ever communicated to the appellant. The other two experts in cardiology, Dr Rollo and Dr Nestel, were of the view that the appellant was not fit for future employment after 12 December 1976. Dr Rollo's evidence was that, following the infarction, his belief was that the appellant "was not suitable for further employment". Dr Nestel's evidence was that, following the infarction it "was not reasonable" to expect the appellant to go to work and that "the probabilities were" that to resume work "might have been injurious to his health". Dr Nestel's view was that his opinion in this regard was reinforced by the fact that, after the appellant's premature retirement, he suffered a further cardiac episode in September 1979. There is to be added to the evidence of Dr Nestel and Dr Rollo the plain fact that the appellant was, on the recommendation of a Commonwealth Medical Officer, prematurely retired on superannuation.

The clear conclusion to which we have come on the evidence is that the appellant was, as a result of the myocardial infarction which he suffered on 12 December 1976, totally incapacitated.

In the result, the appellant's appeal should be upheld. Accordingly, the appeal is allowed and the order of the County Court made on 29 September 1980 is set aside and in lieu thereof the following orders are made:

1. In pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971 as amended, including s.29 of the Act . . .

IT IS DETERMINED

(i) That on 12 December 1976 personal injury arising out of the employment of Leo Vincent Delahunty by the Commonwealth was caused to Leo Vincent Delahunty resulting in him being totally incapacitated for work on and subsequent to 13 December 1976.

(ii) That the claim for compensation by Leo Vincent Delahunty of 1 May 1977 be allowed.

(iii) That the claim for compensation be remitted to the Commissioner for Employees' Compensation for determination by him in accordance with these directions of the amount of compensation payable to Leo Vincent Delahunty pursuant to the Compensation (Commonwealth Government Employees') Act 1971.

2. The respondent pay the appellant's costs of both the appeal before the County Court and the appeal before this court.