Battye and Comcare [2000] AATA 18 (20 January 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/146

GENERAL ADMINISTRATIVE DIVISION ) Q1998/875

Re PATRICK FRANCIS BATTYE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 20 January 2000

Place Brisbane

Decision The Tribunal decides that: (a) in relation to Q1998/146 the decision under review is affirmed (Decision No 18/2000); and (b) in relation to Q1998/875 the decision under review is varied on the basis that the applicant suffered an injury as defined by s 4(1) on 17 January 1996 but not thereafter (Decision No 19/2000).

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

COMPENSATION : Whether injury as defined in s4(1) - material contribution from employment - reasonable disciplinary action

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 7(4), 7(6), 14

Public Service Act 1922 ss 56(d), 62(1)

Income Tax Assessment Act 1936 s 16

Merit Protection (Australian Government Employees) Act 1984 s 17(1)

Comcare v Mooi (1996) 69 FCR 439

Comcare v Chenhall (1992) 37 FCR 75

Re: Choo and Comcare (1995) 39 ALD 399

Australian Postal Corporation v Burch (1998) 85 FCR 264

Repatriation Commission v Webb (1987) 76 ALR 131

REASONS FOR DECISION

20 January 2000 Mr K L Beddoe (Senior Member)

1. The applicant seeks review of two decisions of the respondent. The first decision dated 27 August 1998 to refuse a claim for compensation in relation to stress said to have been caused by the applicant's employment in the Australian Taxation Office. The second decision dated 18 February 1998 refused a claim for compensation in relation to a myocardial infarction and stent insertion.

2. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") provides for compensation for injury suffered by an employee if, inter alia, the injury results in incapacity for work.

3. Section 16 of the Act provides for compensation for medical treatment obtained in relation to an injury.

4. Section 4(1) of the Act defines "injury" as follows:

"injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee,

being a physical or mental injury arising out of, or in the course

of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a

disease) suffered by an employee (whether or not that injury arose

out of, or in the course of, the employee's employment), being an

aggravation that arose out of, or in the course of, that

employment;

but does not include any such disease, injury or aggravation

suffered by an employee as a result of reasonable disciplinary

action taken against the employee or failure by the employee to

obtain a promotion, transfer or benefit in connection with his or

her employment;

"Disease" is defined as follows:

"disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a

material degree by the employee's employment by the Commonwealth or

a licensed corporation;

5. Section 7(4) relevantly provides that for the purposes of the Act an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease, or aggravation or when the disease or aggravation first resulted in incapacity for work or impairment of the employee.

6. Section 7(6) provides that an incapacity for work or impairment of an employee shall be taken, for the purposes of the Act, to have resulted from a disease, or an aggravation of a disease, if but for the disease or aggravation as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

7. At the hearing of these applications the applicant conducted his own case and Mr Bickford of counsel appeared for the respondent. The documents lodged in the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Professor West, Dr Likely, Dr Reddan and a former officer of the Australian Taxation Office.

8. I make the following findings of fact:

(a) The applicant is and was at all relevant times an employee of the Australian Taxation Office and in January 1996 was employed in that office as an Acting Administrative Services Officer Grade 4. He was located in the Business Audit Section of the Taxation Office and was required to perform duties in relation to non lodgment of business returns.

(b) On 10 January 1996 the applicant was interviewed by a Taxation Office Investigator, Mr Davis, in relation to an allegation that he had improperly interrogated the Australian Taxation Office computer system. The circumstances surrounding the alleged improper use of the system related to a number of enquires made by the applicant in November 1995 which related to the income tax affairs of the applicant's neighbour. There was no dispute before this Tribunal that those enquires of the system were made for a purpose which was beyond the scope of the applicant's employment in the Taxation Office and based upon information which the applicant had known in relation to his neighbours for a number of years. The nature of the enquiry undertaken by the applicant was, he contends, and I accept, of the nature of the work that he undertook in the normal course of his duties and on my assessment of the material before this Tribunal the improper use relates to the fact that he did not follow the normal course in such enquires. More importantly, there was a clear conflict in that he was interrogating the computer for his own personal purpose and in relation to a person who was known to him on a personal basis and who therefore should not have been the subject of official actions by him.

(c) On 10 January 1996 the applicant was interviewed twice, the second being a formal interview and I am satisfied that it became apparent to the applicant on that occasion that it was being alleged that he may have improperly used confidential information held by the Taxation Office which was protected by s 16 of the Income Tax Assessment Act 1936.

(d) On 17 January 1996 the applicant attended his doctor, a general practitioner, who told the applicant to relieve his feelings of stress by removing himself from the stressors for a week and certified sick leave for a week. Subsequently the doctor, Dr Gutteridge, certified the applicant a further week's leave. The applicant's sick leave records indicate that he was absent from work due to stress from 17 January 1996 to 31 January 1996 and that he was on paid sick leave for this time (Exhibit 6).

(e) By a notice dated 18 January 1996 a Deputy Commissioner of Taxation, who was authorised under the terms of the Public Service Act to do so, charged the applicant with having failed to fulfil his duty as an officer within the meaning of paragraph 56(d) of the Public Service Act 1922 in that on 24 November 1995 the applicant engaged in improper conduct as an officer. Particulars of the charge are not set out but in essence relate to an intentional improper access to computer records of the Australian Taxation Office, details of which are set out in the attached schedule to the Notice and which for privacy reasons are not set out in these reasons for decision.

(f) On the material before this Tribunal the charge by the Deputy Commissioner of Taxation arose out of the enquiries conducted by Mr Davis under the provisions of the Income Tax Assessment Act 1936. I am satisfied, and find, that Mr Davis was conducting enquires in relation to a possible breach of s 16 of the Income Tax Assessment Act 1936 and associated provisions in the Taxation Administration Act 1953 and that Mr Davis was not conducting an enquiry within the terms of the Public Service Act 1922. There is no material before the Tribunal to determine the basis upon which the Deputy Commissioner of Taxation decided to make the charge under the Public Service Act other than which appears in the formal documents which were served upon the applicant at the time.

(g) In a report dated 15 March 1996 an officer appointed under s 62(1) of the Public Service Act made a report in relation to the charge and also served on the applicant a Notice of Decision under s 62(6) of the Public Service Act. The effect of the Notice was to find that the charge had been made out and that the applicant was notified that he would be transferred to a position of Administrative Service Officer Class 2 in the Debt Collection Section of the Taxation Office on the salary as specified in the Notice.

(h) As he was entitled to do the applicant appealed, under s 63 of the Public Service Act, to a Disciplinary Appeal Committee against the decision of the enquiry officer. Notwithstanding s 62(10) of the Public Service Act and the fact of the applicant's appeal he was transferred to a position of lower classification. It seems to have been accepted, certainly by the subsequent hearing at the Disciplinary Appeal Committee, that the actions of the Taxation Office in transferring the applicant prior to the decision of the Disciplinary Appeal Committee was contrary to the Act but that situation does not seem to have been remedied by the Australian Taxation Office.

(i) In a decision dated 6 September 1996 a Disciplinary Appeal Committee constituted by three officers of the Australian Taxation Office decided to affirm the decision of the enquiry officer. The constitution of a Disciplinary Appeal Committee is as per s 17(1) of the Merit Protection (Australian Government Employees) Act 1984. Little was said before me about the constitution of the Committee but I must say, in passing, that it seems surprising, in the light of s 17, that it was thought to be appropriate that a committee of three officers of the Australian Taxation Office, who presumably are or maybe all subject to direction by the Deputy Commissioner of Taxation who laid the charge, was thought to be an appropriate constitution of a Disciplinary Appeal Committee. However, I am satisfied that nothing turns on this for present purposes.

(j) On 10 June 1997 the applicant was admitted to Townsville General Hospital suffering severe chest pain. The applicant stated that the pain began while driving to work in the morning.

(k) On 24 June 1997 the applicant underwent a percutaneous transluminal coronary angioplasty and the insertion of a stent.

(l) The applicant was a long term cigarette smoker who only ceased smoking relatively recently.

(m) On 10 July 1998 the Repatriation Commission accepted the applicant's condition of Ischaemic Heart Disease as war caused with effect from 14 April 1997.

The Medical Evidence

9. Document T10(a) is a copy of a medical certificate by Dr Gutteridge dated 17 January 1996 which certifies the applicant was totally incapacitated for work from 17 January 1996 to 24 January 1996. A further certificate dated 24 January 1996 certified the applicant totally incapacitated for work from 24 January 1996 to 31 January 1996 (T10(b)). Both medical certificates said the applicant was suffering from "Stress" which the applicant was said to have stated was caused by "Recent Events at Work". Pre-existing factors relevant to the diagnosis was described as "had post traumatic neurosis in the past".

10. Dr Gutteridge's clinical notes (Exhibit 8) make it clear to me that the applicant told Dr Gutteridge that he wished to avoid the stresses at work and the stressor was identified as the investigation being conducted by the Taxation Office.

11. Evidence of acceptance by the Repatriation Commission of Post Traumatic Neurosis as caused by eligible defence service is found in Exhibit 7. Acceptance apparently followed a report by Dr Richards, Psychiatrist, dated 9 December 1986 (Exhibit 7). Dr Richards was of the opinion that the applicant suffered no significant intellectual or personality deficit as a result of a motor vehicle accident in 1977 but found mild traumatic anxieties which were periodically unpleasant rather than incapacitating. He also found weekly brief post traumatic headaches.

12. In a determination dated 17 February 1987 (Exhibit 7) a delegate of the Repatriation Commission assessed a 30% impairment in respect of Post Traumatic Neurosis.

13. I accept the evidence of Dr Likely and Dr Reddan that Post Traumatic Neurosis does not assimilate with Post Traumatic Stress Disorder and would be diagnosed as Adjustment Disorder with Anxiety under DSM (IV).

14. In a report (Exhibit A) to the Department of Veterans' Affairs dated 10 March 1998 Dr Likely, Consultant Psychiatrist, made a multiaxial assessment based on DSM IV as follows:

Clinical Disorders : Post Traumatic Stress Disorder (chronic).

Alcohol abuse and dependence (stable).

Personality Disorders : No disorder.

General Medical Conditions : Ischaemic Heart Disease.

Psychosocial and

Environmental Problems : Stressor of Work Difficulties.

Stressor of ongoing appeals to the Department of Veterans' Affairs.

Global Assessment of

Functioning : Current GAF 41-50, indicative of serious

symptoms and serious impairment in

functioning.

Dr Likely did not indicate that it was a current assessment of functioning but that can be implied from the report.

15. Exhibit B includes a further report by Dr Likely dated 7 July 1998 and addressed to the respondent's solicitor. The report enclosed a copy of Exhibit A. Dr Likely attributed Post Traumatic Stress Disorder to the motor vehicle accident in 1977 but since then the condition had gradually attenuated which I understand to mean that it abated or went into remission. He says that the applicant experienced a recurrence of the condition in 1996 because of difficulties in the work place and the consequent excessive psychosocial stress. The recurrence was marked by anxiety, dysphoria and irritability.

16. This view is essentially confirmed in Dr Likely's short report on 13 July 1999 (Exhibit C).

17. In his oral evidence Dr Reddan's report was put to Dr Likely. He was in general agreement that the applicant suffers an anxiety disorder that was exacerbated by the 1996 incident. However he did not agree that the applicant suffered a borderline personality disorder. In his opinion the applicant was obsessive, but did not exhibit narcissistic or avoidance traits. Dr Likely noted that the applicant had 'Cluster A' personality traits, which includes paranoid and schizoid, but in his opinion the applicant doesn't have a personality disorder.

18. Exhibit 2 includes a comprehensive report by Dr Reddan, Consultant Psychiatrist. That report is dated 18 March 1999 and is addressed to the respondent's solicitor. Dr Reddan records the history taken from the applicant in some detail. Although generally consistent with the evidence before the Tribunal it is inaccurate in some details. Dr Reddan was not of the opinion that the applicant suffered Post Traumatic Stress Disorder after the motor vehicle accident in 1977. She based her opinion firstly, on the fact that the applicant was asleep at the time of the accident so that he does not remember the event and secondly the contemporaneous records do not record typical symptoms of Post Traumatic Stress Disorder. Dr Reddan opines that the applicant was suffering Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. In her opinion this condition became chronic and was maintained by alcohol abuse. She notes the problems suffered by the applicant did substantially improve. In her opinion by the time the applicant joined the Australian Taxation Office it would have been unlikely that he would have met the criteria for any mental disorders in DSM-IV. Sick leave records however indicated that he may still have been suffering some emotional problems.

19. Dr Reddan noted the applicant's reaction to the interview produced intense and distressing emotions, but it was not pathological. She also noted that the applicant was predisposed to this reaction by virtue of his personality. Dr Reddan found personality vulnerability in the form of avoidant or paranoid, obsessional and narcissistic personality traits. She was able to exclude the diagnosis of Post Traumatic Stress Disorder as the applicant did not meet criterion A of the DSM-IV for Post Traumatic Stress Disorder. Dr Reddan diagnosed the applicant as currently suffering Adjustment Disorder with Anxiety. In her opinion his personality, ongoing uncertainty in relation to charges and other stressors perpetuated this condition. Dr Reddan's view was that the condition was precipitated by the investigation, not by the applicant's duties at the Australian Taxation Office.

20. Dr Reddan then went on to address the relationship between "Stress" as precipitating cardiac events in people with Coronary Artery Disease. She found that studies noted the effect is acute rather than chronic. In her opinion it is likely that if acute anxiety had made a substantial contribution to the applicant's episode of ischaemia, then it would have occurred at the time of maximal emotional arousal in January 1996. She also notes that Ischaemic Heart Disease progresses slowly over time and that the applicant had significant predisposing factors such as a family history of heart disease, hyperlipidemia, a smoking history and hypertension.

21. In her oral evidence Dr Reddan clarified that the condition suffered in 1996 was a new condition causing a short period of incapacity. She noted that his personality functioning was a factor in the development of the condition.

22. Professor West , a cardiologist, provided a report dated 12 April 1999 to the respondent's solicitor (Exhibit 3) and also gave oral evidence at the hearing. Professor West opined that the applicant's admission to hospital on 10 June 1997 was because of unstable angina caused by myocardial ischaemia due to coronary artery disease. In this case there was minimal cardiac damage from the episode. The applicant subsequently underwent an angiogram which showed the presence of coronary artery disease. A percutaneous coronary artery transluminal angioplasty with an insertion of a stent was performed which removed his symptoms of angina. Professor West noted that the condition may have been difficult to distinguish from a myocardial infarction initially, but subsequent progress indicated minimal damage. He is of the opinion that the applicant now has no symptoms of angina due to coronary artery disease.

23. Professor West addressed the relationship between work stress and the admission to hospital on 10 June 1997. In his opinion the applicant's employment did not precipitate the admission to hospital or cause the underlying disease process. He then examined the effect of the stressful interactions at work in relation to the investigation on the applicant's coronary artery disease. Professor West was unable to determine whether the applicant's condition was aggravated or hastened in its development. However he notes "Normally psychological stress is not regarded as a risk factor for Coronary Artery Disease but it may induce angina in a subject who has underlying Coronary Artery Disease." Professor West noted that the applicant experienced symptoms consistent with angina when he experienced episodes of stress at work, however he also noted that the applicant still experiences tightness in his chest in such a situation but has no evidence of Coronary Artery Disease causing angina. Therefore Professor West surmises that the tightness in the chest could simply be an expression of the applicant's stress condition. He also noted that angina was brought on by a number of other activities such as walking up hills or mowing the lawn.

24. Professor West found on the balance of probabilities that the applicant's coronary artery disease is associated with his risk factors which are a family history of heart disease, high blood pressure, smoking and high cholesterol.

25. Professor West also notes that the applicant is unable to recall a stressful incident on 10 June 1997 preceding the onset of chest pain.

26. In his oral evidence Professor West stated that he agreed with Dr Reddan's analysis of the relationship between "stress" and the development of coronary artery disease.

27. Exhibit 1 contains reports from two cardiologists. Dr Gunawardane saw the applicant in February 1997 and diagnosed multivessel disease after the applicant reported experiencing pain while walking up a hill eight months earlier. Dr Gunawardane conducted an exercise stress test which confirmed the diagnosis.

28. Dr Cannon's report is dated 20 August 1998. He writes, "Unfortunately I think with a significant history of smoking, hypertension and hypercholesterolemia, it is difficult to give his stressful situation a particularly high causative index. Certainly as he was actually driving his car to work when he developed the chest pain, it becomes even more problematic to attribute his work stress to the events".

Consideration

29. There are two periods of incapacity claimed by the applicant. The first period claimed is from 17 January 1996 to 31 January 1996 for "stress" and the second period is from 10 June 1997 to 31 August 1997 for a myocardial infarction. The applicant is seeking to have his leave credits reinstated for those periods.

Claim for "Stress"

30. The first question to be addressed is whether or not the applicant suffered an injury as defined in s4 of the Act. In relation to the claim for stress the respondent submitted on the authority of Comcare v Mooi (1996) 69 FCR 439 that "work related stress" was not a medical condition. In this case the general practitioner, Dr Gutteridge did not identify any condition other than stress, however the Tribunal prefers the more specific evidence of the specialists. Dr Likely was of the opinion that the applicant was suffering from an aggravation of his Post Traumatic Stress Disorder, but during cross examination he conceded that his view was not supported by DSM-IV. Folio 16 of Exhibit 7 is a statement by the applicant dated 27 July 1977 recalling that he was asleep when the accident happened and that his first memory was waking up in the hospital. Dr Likely who is also the applicant's treating psychiatrist, conceded that there was a significant anxiety disorder exacerbated by the incidents in 1996. In this case the Tribunal prefers the evidence of Dr Reddan (and Dr Likely in cross-examination) that the applicant was suffering an Adjustment Disorder with Anxiety. The Tribunal having satisfied itself on the medical evidence that the applicant suffers from an Adjustment Disorder finds that it is an 'ailment' as defined in s4(1).

31. The Tribunal can see a relevant distinction between this case and the Mooi case on the basis that the present case really involves the psychological disorder diagnosed under the DSM-IV as an Adjustment Disorder. The Mooi case involved a condition that "did not fit the diagnostic criteria in any of the diagnostic manual lists of mental or behavioural disorders" (at page 441). At page 69 FCR 447 it was held that the Tribunal erred in law in finding that:

"the respondent had suffered an "injury" within the term in s14(1) of the Act: having found that he respondent was not mentally ill or mentally disturbed or suffering from any psychological disorder, it was not open to the Tribunal, on the proper construction of s14, to hold that the condition the respondent developed in response to conditions in his workplace amounted to an "injury" within s14(1)."

32. At page 444 Drummond J notes when referring to the evidence of a medical practitioner that

"in drawing a distinction between clinically significant, ie abnormal behaviour in the circumstances of the particular patient and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s14(1).

33. In this case Dr Reddan states at page 21 of Exhibit 2 "that it could be argued that his reaction was not in excess of what could be expected and that his reaction was not pathological". However she then proceeds to diagnose the condition of Adjustment Disorder with Anxiety (DSM-IV).

34. Being satisfied that this case can be distinguished from the facts in Mooi v Comcare and finding that the applicant suffered from an ailment as defined in s4(1) of the Act, the Tribunal must then decide whether that ailment has been contributed to in a material degree by the applicant's employment. In this case the applicant attended his general practitioner on the 17 January 1996 and the applicant identified his stressor as the investigation/allegations (Exhibit 8). This visit to the doctor was one week after the applicant was interviewed in relation to possible charges. The Tribunal also notes the entry in Dr Gutteridge's clinical notes (Exhibit 8) that the applicant was desperate for time off work to avoid the stressors. However the Tribunal is minded to follow the objective assessment made by Dr Reddan. In her opinion the condition suffered in 1996 was a new condition which caused a short period of incapacity. Dr Reddan opines that the condition was precipitated by the investigation and not general duties at the applicant's employment. She states that in her opinion his personality, ongoing uncertainty in relation to the charges and other stressors perpetuated the condition. Dr Likely in his written report (Exhibit B) refers to difficulties in the workplace and consequent excessive psychological stress as causing a recurrence of the condition in 1996. Given those explanations as to the cause of the condition, the Tribunal finds that the ailment was contributed to in a material degree by the applicant's employment. The Tribunal gives little weight to the fact that the applicant attended the doctor one week after the interviews because in Dr Reddan's opinion the uncertainty in relation to the charges perpetuated the applicant's condition. Therefore the applicant suffered a disease as defined in s4(1).

35. The respondent also submitted in the alternative, that the stress condition was not an injury as defined in s4(1) of the Act as it resulted from 'reasonable disciplinary action'. The respondent submitted and the Tribunal so finds on the basis of Comcare v Chenhall (1992) 37 FCR 75 that the disciplinary action did not commence until the applicant was charged by Mr Quigley on 18 January 1996. The case of Comcare and Chenhall is authority for the proposition that interviews relating to investigations of possible offences do not amount to disciplinary action. That case involved a federal police officer who was interviewed by members of the Internal Investigation Division in the course of investigating possible disciplinary and criminal offences committed by the respondent. It was held that the phrase " disciplinary action ":

(1) means no more than reasonable action lawfully taken against an employee in the nature of, or to promote discipline. Action taken to determine whether or not disciplinary action would be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not disciplinary action;

(2) means action taken against a particular employee, not action as part of general maintenance of discipline over employees;

(3) has no relevance to a finding of guilt or innocence;

(4) is not limited to the imposition of a sanction.

At p83 Cooper J stated:

"disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition"

His Honour continues at page 90,

" Action taken to investigate a complaint or allegation against a member, including advising the member of the existence and nature of the complaint or allegation and interviewing the member in relation to it prior to the Commission determining to act in accordance with the provisions of the Discipline Regulations or the Complaints Act on the report of the investigation does not constitute "disciplinary action taken against an employee" within the meaning of the definition of "injury" in the Act."

36. In Re Choo and Comcare (1995) 39 ALD 399 the Tribunal decided that a formal counselling session formed part of disciplinary action. The purpose of that counselling session was "to enable concerns relating to Mr Choo's work performance to be expressed and discussed" (at page 408). It addressed a difficulty being experienced with Mr Choo by other staff. This can be distinguished from the present case which involves two interviews undertaken for the purpose of investigating a possible improper use of confidential information. Re  Choo involves addressing an established situation and the present case involves an investigation.

37. The present case is analogous to Chenhall and so the Tribunal finds that disciplinary action commenced on 18 January 1996.

38. Given this finding the Tribunal must address whether the changes represented reasonable disciplinary action. In the light of Re Choo which referred to Repatriation Commission v Webb (1987) 76 ALR 131 the Tribunal finds that the laying of the charge was reasonable disciplinary action as it was not irrational, absurd or ridiculous. The charges were laid after the complaint was investigated including the applicant undergoing both an informal and then a formal interview. I have already noted that the investigation was apparently conducted under the terms of the Income Tax Assessment Act 1936 but charges were laid under the Public Service Act 1922. I am satisfied that change of course, if that is what it was, does not mean that the disciplinary action was therefore unreasonable.

39. Under s7(4) of the Act, the applicant sustained the injury on 17 January 1996 as this is when he first sought medical treatment. The difficulty arises because the applicant sustained the injury on the 17 January 1996, but reasonable disciplinary action began on 18 January 1996. Based on the medical evidence the Tribunal finds that the stressor or cause in relation to the applicant's condition is the investigation/charges not his general duties in his employment. It follows in my view that the applicant did not suffer an injury as defined in s4(1) of the Act from 18 January 1996 as the condition must be attributed to reasonable disciplinary action from that date being the date that the formal charges were laid.

40. I would accept that the absence from work on 17 January 1996 was due to an injury as defined caused by the investigation preceeding the disciplinary action. I have considered whether the incapacity for work on 17 January was really in anticipation of the charges to be laid but I am unable to be satisfied that was the case.

Claim for "Myocardial Infarction with a Stent Insertion

41. Counsel for the respondent drew the attention of the Tribunal to the possible operation of s43 of the Act. He noted that the Repatriation Commission had accepted the condition of ischaemic heart disease with effect from 14 April 1997 (page 109 of 268 it Exhibit 1). I am not aware that a relevant request has been made.

42. The respondent submitted that the medical evidence established a possibility that the applicant suffered a mild heart attack. If that was the case then the myocardial infarction would be an "injury" but not a "disease" on the authority of Australian Postal Corporation v Burch (1998) 85 FCR 264.

43. Burch is authoritative as to what constitutes an injury simpliciter as compared with disease as defined in the Act. At page 268 it was noted by the Court that an "injury in the ordinary sense did not necessarily require something external to the body" nor did it require a "rupture or breaking or some tissue". In that case it was found that a stroke was an injury. It was a disturbance of the normal physiological state.

44. A myocardial infarct as defined in the Oxford Concise Medical Dictionary 3^rd Edition (1990; Oxford University Press, is the death of a segment of the heart muscle, which follows an interruption of the blood supply. Professor West in his report (Exhibit 3) noted that there was minimal or no cardiac damage from the episode. Dr Cannon wrote in his report (page 37 of Exhibit 1):

"It would appear that the discharge diagnosis from the Townsville General Hospital on the summary dated 25 June 1998 is incorrect. Whilst the initial diagnosis was that of posterior myocardial infarction, the CK rise of 260 suggested an extremely small infarct. Further more the coronary angiography revealed a lesion in the LAD and not in the circumflex which would be expected location of a posterior infarct. I think there is therefore little doubt that the applicant in fact had unstable angina with significant anterior ST depression consistent with ischaemia in the LAD territory and not infarction in the posterior circumflex territory."

45. On this basis the Tribunal is satisfied that the applicant suffered unstable angina requiring admission to hospital on 10 June 1997, not a myocardial infarction.

46. On the authority of Burch the Tribunal is satisfied that the applicant suffered an ailment as defined in s4(1). Professor West stated that the unstable angina caused myocardial ischaemia due to coronary artery disease. Therefore the ailment was coronary artery disease.

47. In Burch the court notes at page 268:

" The policy manifest in the drafting of the Act is to require a higher level of work connection in the case of disease. In the case of disease there has to be a contribution in a material degree by the employment. In the case of injury, it is sufficient to show that the injury arose out of or in the course of the employment - there need be no causal connection"

48. The Tribunal must then determine whether there has been a material contribution to the said ailment by the applicant's employment. The respondent's counsel submitted that the applicant developed coronary artery disease long before he began working for the Australian Taxation Office. He also drew the Tribunal's attention to the evidence given by Professor West in relation to the applicant's risk factors. He also noted that Professor West and Dr Reddan both agreed that work stress was not significant contributing factor. In the alternative if the Tribunal found that there was a material contribution, then the respondent submitted that the stress resulted from reasonable disciplinary action.

49. The Tribunal notes the opinion of Professor West at page 5 of his report (Exhibit 3) that on the balance of probabilities that the applicant's coronary artery disease is associated with his risk factors which are family history of heart disease, high blood pressure, smoking and high cholesterol. He writes "Normally psychological stress is not regarded as a risk factor for Coronary Artery Disease". The Tribunal also notes the opinion of Dr Cannon (at page 37 of Exhibit 1) that with a significant history of smoking, hypertension and hypercholesterolemia, it is difficult to give his stressful situation a particularly high causative index. Dr Cannon also writes that it is a remote possibility that stress was the major cause of coronary artery disease.

50. After consideration of the opinions of two cardiologists, the Tribunal is satisfied that there was no material contribution to the applicant's ailment by his employment. Therefore the applicant has not suffered an injury as defined in s4 (1) of the Act.

51. The Tribunal decides that :

(a) in relation to Q1998/146 the decision is affirmed; and

(b) in relation to Q1998/875 the decision under review is varied on the basis that the applicant suffered an injury as defined by s4 (1) on 17 January 1996 but not thereafter.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: A Brown

Secretary

Date/s of Hearing 11 & 12 October 1999

Date of Decision 20 January 2000

Counsel for the Respondent Mr Bickford

Solicitor for the Respondent Australian Government Solicitor