Estate of Eduardo Ferro and Australian Postal Corporation [2010] AATA 119 (15 February 2010)

Last Updated: 16 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/4404

GENERAL ADMINISTRATIVE DIVISION )

Re Estate of Eduardo Ferro

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Dr M E C Thorpe, Member

Date 15 February 2010

Place Sydney

Decision The decision under review is set aside and the matter is remitted to the Respondent.

..............................................

Ms N Isenberg
Senior Member

CATCHWORDS

Workers’ Compensation – injury- disease- aggravation of disease- cardiac arrest at work- injury resulting in death- injury simpliciter- temporal connection with employment- material contribution as a result of work- decision set aside- remitted to Respondent.

...

RELEVANT ACT/S

Safety, Rehabilitation and Compensation Act 1988: ss 4, 14, 16

...

CITATIONS

Australian Postal Corporation v Burch [1998] FCA 944

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Kennedy Cleaning v Petroska [2000] HCA 45; (2000) 200 CLR 286

Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; (1996) 187 CLR 310

...

REASONS FOR DECISION

15 February 2010	Ms N Isenberg, Senior Member Dr MEC Thorpe, Member
INTRODUCTION

1. Mr Eduardo Ferro was an employee of the Australian Postal Corporation (Australia Post). Unfortunately, on 7 January 2004 he collapsed at his workplace, and ultimately passed away on 11 May 2004. At the time of his death he was 57 years of age.

BACKGROUND

2. Mr Ferro suffered a stroke on 27 March 2003. He remained in hospital for about a month and did not resume work for a further 2 months, when he commenced working on restricted hours. He took considerable periods of sick leave during the twelve months prior to 7 January 2004.
3. Moments before his collapse at his workplace on 7 January 2004, Mr Ferro attended a short team briefing provided by Mr Andrew Lee, his shift leader. After the briefing, Mr Ferro and his workmates were walking back to their normal work stations when he collapsed and lost consciousness. Cardiopulmonary resuscitation (CPR) was administered immediately by a staff member. Mr Ferro was treated by ambulance officers at the scene and he was transported to Concord Hospital where he was found to have suffered a cardiac arrest. He remained in hospital until his death on 11 May 2004.
4. The death certificate identified the cause of death and duration of last illness as:
   1. 1. Sputum plug respiratory arrest, hours,
      2. Chest infection, weeks,
      100. Trocheostromy, [sic], months,
      4. Hypoxic brain injury, months
      5. Myocardial infarction, months
         
   • (II) Severe ischaemic heart disease, years, Arthrosclerosis, years, Diabetes mellitus, years, Hypertension cerebrovascular accident, years.
     

HISTORY OF APPLICATION

5. On 21 July 2008, a determination was made whereby there was no liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of Mr Ferro’s death .
6. The delegate, in issuing that determination, had regard to the report of Dr John Hickie, cardiologist. Review was sought of the decision of 21 July 2008. On 21 August 2008, the Reconsiderations Delegate affirmed the determination of the delegate. The deceased’s wife, Mrs Epifania Ferro has sought a review of this decision by this Tribunal.

ISSUES FOR DETERMINATION

7. The Tribunal must decide:
   1. Whether what occurred to Mr Ferro on 7 January 2004 is an injury, as opposed to a disease, within the meaning of the Safety, Rehabilitation & Compensation Act 1988 (Cth).
   2. Whether what occurred to Mr Ferro on 7 January 2004 is a disease or an aggravation of a disease within the meaning of the Act; and
   3. If Mr Ferro suffered an injury within the meaning of the Act, whether such injury resulted in his death.

LEGISLATIVE FRAMEWORK

8. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the Act), in particular ss 4 and 14.
9. Section 4 of the Act defines “disease” and “injury” as follows:
   4. Interpretation
      • (1) In this Act, unless the contrary intention appears:

...

disease means:

                     (a)  an ailment suffered by an employee; or

                     (b)  an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

...

injury means:

                     (a)  a disease suffered by an employee; or

                     (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

                     (c)...

10. Section 14(1) provides for liability for compensation for injured workers, and section 16 of the Act provides for reasonable medical expenses to be paid in that regard.
    14. Compensation for injuries
        • (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
          

LAY WITNESSES

11. Hai Tu Mach, a workmate of Mr Ferro provided a statement dated 22 November 2005 and gave evidence with the assistance of an interpreter.
12. Mr Mach said that he, Mr Ferro and other employees of Australia Post attended a training session given by Mr Andrew Lee, the shift supervisor. The training session was in relation to a new piece of equipment, the Flat Mail Optical Character Reader (FMOCR). Some of the workers had previously refused to work on the FMOCR and they argued with Mr Lee, however, Mr Ferro was not one of those who argued.
13. Mr Mach indicated in his statement:

‘I did not notice whether Eddy [Mr Ferro] was upset about this training or not.

After the training was completed and we all started walking back to our team and work station.

Eddy was walking in front of me. Suddenly he started to shake violently and began falling backwards. I was able to take hold of him preventing him from falling to the ground. I lowered him onto the ground.

14. Andrew Lee provided a statement dated 9 December 2008 and gave evidence during proceedings.
15. In his statement Mr Lee indicated that during the session, Mr Ferro appeared to become very agitated and proceeded to scream words to the effect of “Why is management putting pressure on staff.” This surprised Mr Lee as he felt this was not normal for Mr Ferro. Mr Lee said he went on to explain the simple nature of the task and how the briefing was to address the Occupational Health and Safety (OH&S) aspects of the task. As he felt that Mr Ferro had become uncontrollable, Mr Lee cut the briefing short.
16. Mr Lee went on to say that as the group dispersed after the briefing, Mr Ferro collapsed about a minute or two later.
17. Mr Lee indicated in his statement that he felt the outburst by Mr Ferro was completely unexpected as he was not asking him to do anything that could be regarded as either stressful or difficult.
18. In his oral evidence to the Tribunal, Mr Lee said that he had gathered about 20 people to the OH&S demonstration. The demonstration focussed on accessing the back of the FMOCR safely to attend to mis-sorts. He recalled Mr Ferro suddenly shouting out in the middle of the demonstration, but there was no ‘argument’ by him or anyone else. He recalled that there were some manning issues when the FMOCR had first been introduced, and thought that there may have continued to be manning issues.
19. Mr Lee said that he thought Mr Ferro’s conduct to be unusual because ordinarily questions and comments are made at the end of a presentation. He reported that Mr Ferro was ‘uncontrollable’, and clarified at the hearing that he meant this to mean that Mr Ferro was ‘furious’, and he had to cut the meeting short.
20. Paul Cabal, an Australia Post first aid officer, provided a statement dated 21 September 2009 and gave oral evidence during proceedings.
21. Mr Cabal said that he had been at Mr Lee’s briefing. Mr Lee had asked him to attend as he was in the ‘Safety Task Force’ and Mr Lee wanted to ensure that what he was going to suggest to remedy a problem with the FMOCR was approved by head office. Mr Cabal indicated that he could not recall that there was any shouting at the briefing. At the conclusion of the briefing, Mr Cabal said that everyone started to go back to their jobs. He subsequently heard a lot of shouting and then saw Mr Ferro about 10 metres away, lying on the floor.
22. In his statement he wrote that Mr Ferro had clenched his fists and collapsed on the floor.
23. Mr Cabal has his advanced first aid certificate and immediately commenced CPR. He did not hesitate to wait for a mask and commenced mouth-to-mouth resuscitation instantly because Mr Ferro was already turning blue. During this Mr Cabal noticed there was blood in Mr Ferro’s mouth. There were other first aiders there, but only he attended to Mr Ferro.
24. Ms Thi Quynh Mai Huynh, a fellow staff member, and Mr Mach’s wife, was not called to give evidence although she was present at the hearing. She had previously provided a statement dated 22 November 2005. She reported that various staff argued with Mr Lee during the training, but she did not see Mr Ferro argue with Mr Lee, although she noticed he was upset from the expression on his face.
25. Mr Ivan Lewis Thomasse, a fellow staff member, was not called to give evidence but provided a statement dated 24 November 2005. There he stated there was a dispute with the ‘process officer’ (Mr Lee) in relation to the request to work on the new machine. He stated Mr Ferro was "particularly adamant they were not allowed to work on the machine.” Mr Thomasse stated Mr Ferro had "strong words" with Mr Lee. Whilst he did not recall the exact words, he described the exchange as "arguing" and he observed the deceased was "visibly upset and angry”.
    

MEDICAL EVIDENCE

26. Records relating to Mr Ferro’s presentation and admission to Blacktown Hospital on 27 March 2003 verify that Mr Ferro presented on that day with ataxia, dizziness and nausea. Extensive investigation had revealed severe atherosclerotic disease of the circulation to both back and front of the brain. He was also treated for diabetes mellitus, elevation of blood pressure and elevation of cholesterol, with blood thinning agents. Mr Ferro improved gradually and returned to work after several months of continuing therapy.
27. Two ambulance records were presented to the Tribunal. The first estimated the time of the incident to have occurred at 17.20, and the second at 17.30. Both record that the ambulance arrived at the scene at 17.45. The records of Concord Repatriation General Hospital in relation to Mr Ferro’s admission after his collapse at work were also tendered at the hearing. The hospital recorded a history of ventricular fibrillation arrest, the administration of good CPR by a safety officer, the administration of five shocks by ambulance officers, and a calculated “down time” of 45 minutes. The records note that Mr Ferro collapsed at work at 17:30, CPR commenced immediately by co-workers, and the ambulance arrived on scene at 17:45. On 8 January 2004 the main issue was identified as hypoxic brain injury. A Computerised Tomography (CT) scan performed on 12 January 2004 confirmed Mr Ferro suffered from diffuse hypoxic brain injury. Mr Ferro did not regain consciousness prior to passing away on 11 May 2004.
28. Dr John Hickie, cardiologist, provided four reports and gave oral evidence at the hearing. In the first report dated 12 May 2006 he noted he had been provided with a history that on 7 January 2004 Mr Ferro was involved in an acute stressful situation, namely an argument with his supervisor. In addition to the statement of Mr Mach, Dr Hickie had relied upon statements of Mr Ferro’s co-workers who were not called to give evidence, Ms Huynh and Mr Thomasse. Mr Thomasse stated in his report that he ‘heavily supported’ Mrs Ferro’s claim that her late husband had been involved in a dispute at work. Dr Hickie reported that it is generally accepted that chronic stress does not cause myocardial infarct, but acute stress, if of sufficient intensity and duration, is capable of eliciting an adverse cardiac response. This, in turn, can trigger or hasten cardiac lesions and dysfunction such as an acute attack of angina pectoris, myocardial infarct, a sudden cardiac dysrhythmia (including sudden death) or an episode of acute congestive heart failure. He further explained that this may occur particularly if the acute stress is a single isolated identified emotional stress in individuals rendered susceptible to harm by reason of pre-existing heart disease, whether or not previously known or symptomatic.
29. Dr Hickie provided a further supplementary report dated 25 February 2009. In that report Dr Hickie stated:

‘At autopsy Mr Ferro had severe coronary artery disease and a myocardial infarct. He would have been at risk of sudden death from a cardiac arrhythmia and/or a myocardial infarct (heart attack) at any time. This could have occurred whether he was at work, at home or elsewhere.’

He provided another report dated 10 July 2009 in which it was observed that he was unaware that there were differing accounts of what had occurred in the time leading up to Mr Ferro’s collapse, but he stated that he did not wish to change his opinion.

In summary, Professor Hickie’s opinion was that a thrombosis, a myocardial infarct and ventricular fibrillation were all implicated in Mr Ferro’s collapse and that the ventricular fibrillation was the reason for his collapse.

30. From the ambulance report, Dr Hickie deducted Mr Ferro was in ventricular fibrillation when the ambulance officers arrived, and he reverted to normal sinus rhythm after five DC conversions, with reestablishment of circulation. He was unable to estimate when the myocardial infarction occurred and relied on the subsequent Concord Hospital notes to indicate the presence of an infarct. In particular, he was unable to say if myocardial infarction was present before or during the ventricular fibrillation. He said myocardial infarction can be the cause of ventricular fibrillation but that also ventricular fibrillation can occur in the absence of myocardial infarction.
31. In this situation, Dr Hickie expressed during the hearing that he was of the opinion that the dispute at work on 7 January 2004, is likely to have caused and/or contributed to the death of the deceased.
32. Two possible explanations were provided by Dr Hickie as to Mr Ferro’s situation. First, that atherosclerosis was followed by a thrombosis myocardial infarct and ventricular fibrillation, or alternatively, atherosclerosis, acute stress ventricular fibrillation was followed by a myocardial infarct. Dr Hickie was unable to say what would have been the sequence. Whilst it was not possible to say what happened first, the end result was ventricular fibrillation. Further, there was nothing in the autopsy report that would help him to say which came first.
33. He suggested that if someone is in ventricular fibrillation for more than 10 to 15 minutes they usually go into what is called cardiac arrest with no rhythm at all and occasionally, if assistance arrives soon enough, there is a chance that they will be resuscitated.
34. Professor M O'Rourke, cardiologist, provided reports dated 18 February 2009 and 20 March 2009, and gave evidence. He noted in his first report that Mr Ferro had a number of pre-existing conditions and these included high blood pressure, diabetes mellitus and atherosclerotic arterial disease. All of these conditions required treatment. Mr Ferro had taken a substantial amount of time off work because of these illnesses. Professor O'Rourke further noted that Mr Ferro suffered a stroke involving branches of the basilar artery on 27 March 2003. Extensive investigation revealed severe atherosclerotic disease of the circulation to both back and front of the brain. His electrocardiogram was abnormal and consistent with coronary atherosclerotic disease.
35. Professor O’Rourke’s opinion was that the coronary occlusion preceded the onset of the ventricular fibrillation and that it was the myocardial ischaemia, caused by the blockage to the artery, which resulted in ventricular fibrillation.
36. At an angiography on 7 January 2004, Mr Ferro was found to have an occlusion of the left anterior descending coronary artery, as the cause of evolving myocardial infarction and ventricular fibrillation. Professor O'Rourke noted that myocardial infarction is caused by coronary thrombosis developing on an atherosclerotic plaque that has split or fissured. He further noted that there are situations where severe emotion or exercise can trigger myocardial infarction or cardiac arrest, but these are rare. He was of the opinion that the events in the workplace on that day did not constitute an acute stressor had nothing to do with the artery becoming completely occluded, although he said in further evidence:

“I think it (complete blockage) occurred probably while he was at work, but it may have been present before with incomplete occlusion and then just causing complete occlusion at the time”

37. Professor O’Rourke considered death was a matter of inevitability due to the underlying coronary artery disease and of the clot that formed, but that this could have occurred at the time that it did or could have occurred at some other time. The ventricular fibrillation and the delay in the treatment of the fibrillation was a critical factor in his death. Professor O’Rourke agreed that it is a common occurrence with myocardial infarction to go into ventricular fibrillation but it is not necessarily the outcome of myocardial infarction. He also agreed with the Applicant’s proposition that, “that is one way in which a person might physiologically respond to a myocardial infarction.” Based on the actual physical evidence of the angioplasty, Professor O’Rourke preferred the view of an occlusion rather than a spasm of the coronary artery.
38. In his report dated 20 March 2009 Professor O'Rourke stated:

I believe that ventricular fibrillation suffered by the deceased on the 7 January 2004 was the result of atherosclerotic disease. Mr Ferro had no other cause of ventricular fibrillation and atherosclerotic disease with myocardial infarction was demonstrated in the patient. I cannot say that ventricular fibrillation was the inevitable result of atherosclerotic disease because atherosclerotic disease can occur and not result in ventricular fibrillation. Acute evolving myocardial infarction however is a very frequent cause of ventricular fibrillation and I believe the coronary atherosclerotic disease with evolving myocardial infarction was the cause of ventricular fibrillation in this man.

CONSIDERATION

39. Mr Ferro was described as having a history of mild heart disease. He suffered a minor cerebrovascular event on 31 March 2003 and extensive investigation revealed severe atherosclerotic disease of the circulation to both the back and front of the brain. He was treated for diabetes mellitus and elevation of blood pressure with blood thinning agents. He was able to return to work after several months. There are no recorded symptoms of coronary artery disease.
40. There was little dispute that at the meeting called by Mr Lee, Mr Ferro, for whatever reason, felt aggrieved about the situation such that Mr Lee ended the meeting. Mr Lee described Mr Ferro as being ‘uncontrollable’, meaning ‘furious’, and ‘very angry’. Within a few minutes Mr Ferro started to shake, possibly to clench his fist, and to fall to the ground. Within a short period of time he was cyanosed and blood was present in his mouth. CPR was administered and an ambulance was called. Through the use of an electrocardiogram machine, he was found to be in a state of ventricular fibrillation and to have a chaotic irregular heartbeat, which ultimately led to hypoxia, and as a result he suffered brain damage. He was taken to hospital. Further ECG investigations disclosed that he had suffered an acute left ventricular arterial myocardial infarct.
41. It was on this background of chronic vascular disease that Mr Ferro’s collapse occurred on 7 January 2004, resulting in his death on 11 May 2004. He survived the events around his collapse at the work place, but never regained consciousness. He survived for four months before death, which was attributed to cerebral anoxia. The death certificate listed a number of causes of death including hypoxic brain injury, myocardial infarct and complications including sputum plugging.
42. The collapse occurred consequent to a cardiac episode (encompassing heart attack, coronary thrombosis and ventricular fibrillation) resulting in permanent lethal hypoxic brain damage.
43. As such, the task of the Tribunal is to determine if Mr Ferro suffered an injury, as opposed to a disease within the meaning of the Act, and whether such injury resulted in his death. That is, whether the “heart attack” suffered by Mr Ferro on 7 January 2004 was an injury as opposed to a disease, within the meaning of Act.
44. Having regard to this, the task of the Tribunal is to determine if Mr Ferro had suffered an injury simpliciter for the purposes of the Act, for which there need only be a temporal connection with his employment in order to succeed. That is, whether the “heart attack” was an injury, as opposed to the inevitable result of the ravage of a disease. In the alternative, if it was a disease, or aggravation of a disease, the issue becomes whether there was a material contribution as a result of his work, within the meaning of the Act.
45. The Respondent contended that Mr Ferro’s coronary occlusion and the ventricular fibrillation were inevitable. In Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; (1996) 187 CLR 310 (Zickar) the principle enunciated by the minority, and implicitly acknowledged by the majority, was that the inevitable consequences of the progress of a disease are not considered to be an injury simpliciter. In Zickar, the majority, consisting of Toohey, McHugh and Gummow JJ stated:

‘If the rupture is due to blood pressure, atherosclerosis, arteriovenous malformation or any other congenital or diagnostic aetiology it is, nonetheless, a rupture. Something quite distinct from the defect disorder, or morbid condition, which enables it to occur.’

46. It is sufficient that there is a disturbance of the normal physiological state, an ascertainable lesion or a dramatic physiological change. Gleeson CJ and Kirby J, in Kennedy Cleaning v Petroska [2000] HCA 45; (2000) 200 CLR 286 (Petroska) noted that the mere fact that a sudden physiological change is in some way connected with an underlying disease process does not, of itself, prevent the classification of such a change as an injury.
47. In Australian Postal Corporation v Burch [1998] FCA 944; (1998) 85 FCR 264 (Burch) the Full Court heard an appeal against the decision of Northrop J, who had found that Mr Burch’s stroke was not the inevitable result of any disease he may have been suffering. The Full Court dismissed the appeal and upheld the decision of Northrop J. His Honour referred to Health Insurance Commission v Van Reesch (1996) 45 ALD 302 noting that in that case there was evidence that the disc prolapse was not the inevitable consequence of the disease.
48. Neither Burch nor Petroska have challenged the clear recognition in Zickar that inevitable consequences, such as the progress of a disease, are not considered an injury simpliciter.
49. The Tribunal needed to determine whether the events on 7 January 2004, which ultimately led to Mr Ferro’s death, were an inevitable consequence of his underlying condition.
50. This requires a detailed analysis of the events of 7 January 2004. Both cardiologists, Professor O’Rourke and Dr Hickie considered Mr Ferro to have suffered a cardiac event on that day resulting in collapse. Neither cardiologist was able to say with certainty the precise evolution of cardiac events at the time of the collapse, in particular if a coronary thrombosis was occurring or had occurred at the time of the collapse. Professor O’Rourke preferred a coronary thrombosis event, placing reliance on ST changes on the ECG. Subsequent admission to hospital confirmed the coronary thrombosis (occlusion).
51. Both cardiologists agreed that Mr Ferro went into ventricular fibrillation. Professor O’Rourke considered the fibrillation to be consequent to the coronary thrombosis. Dr Hickie said he may have spontaneously gone into ventricular fibrillation and then developed secondarily a coronary thrombosis, but it was impossible to say what happened first, however, the end result was ventricular fibrillation. That ventricular fibrillation also reduces the blood flow to the brain and will produce irreversible changes in the functioning of the brain if not treated promptly. He further explained that this is the reason defibrillators are now being placed in public places.
52. It would appear Mr Ferro was in ventricular fibrillation for an extended period of time, possibly as long as 45 minutes. Although the exact length of time is unclear, it is apparent that it was sufficient enough to result in irreversible cerebral hypoxia. The ventricular fibrillation was able to be reversed by the ambulance officers after five DC Cardio versions with return of cardiac output and he was able to sustain his own life independently.
53. Mr Ferro was then able to survive a further four months, never regaining consciousness or cerebral function, eventually succumbing to cerebral hypoxia. Professor O’Rourke opined that it was brain damage that led to his death and said

‘I do not know how much myocardial infarction there was and whether he would have been limited by that, if he left hospital in a good state.’

54. The Applicant submitted that the myocardial infarct either occurred completely during the course of Mr Ferro’s employment or, more definitely, that the occlusion that led to the infarct was completed during the course of employment, and as such, it was most likely that the ventricular fibrillation also occurred during the course of his employment. It was submitted that there was a very clear chain of events which resulted from the circumstances of 7 January 2004, that is, an injury that resulted in death, which resulted from employment. The submission was that what happened to Mr Ferro on 7 January 2004 was not an inevitable consequence of the underlying disease he suffered. She said it was quite clear from the medical evidence that Mr Ferro could have died from other causes or he could have died at a later point in time as a result of his condition. Alternatively, he may not have died at all if he had suffered a myocardial infarct as a result of coronary atherosclerosis. That he went into ventricular fibrillation, which was not reversible within a time frame that might have made a difference, was not an inevitable consequence of his disease: it was a consequence but not the inevitable consequence.
55. Both Professor O’Rourke and Dr Hickie agreed that it was not certain when the myocardial infarction started but both were reasonably certain that the complete occlusion did so within a short time frame before the ventricular fibrillation set in.

Professor O’Rourke reported on 20 March 2009:

‘I cannot say that the ventricular fibrillation was the inevitable result of atherosclerotic disease because atherosclerotic disease can occur and not result in ventricular fibrillation.’

56. Both Professor O’Rourke and Dr Hickie had difficulty or were unable to express the events of the 7 January in physiological terms, despite direct questioning by the Tribunal. Dr Hickie considered ventricular fibrillation to constitute a physiological disturbance or change. In cross examination Professor O’Rourke said ventricular fibrillation is not necessarily the outcome of myocardial infarction but that it was one way in which a person might physiologically respond to a myocardial infarct.
57. Zickar and Burch as reported in Petkoska require that consideration be given to the precise evidence concerning the nature and incidents of the physiological change. If the evidence amounts to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. Also, in Petkoska Gleeson CJ and Kirby J noted that the mere fact that a sudden physiological change is in some way connected to an underlying disease process does not, of itself, prevent the classification of such a change as an injury within the primary statutory provisions that apply in such a case.
58. We accept the Applicant’s submission that it is hard to see that coronary occlusion, ventricular fibrillation and cerebral anoxia cannot be considered to be dramatic physiological change.
59. Counsel for the Respondent submitted that the evidence before the Tribunal was that ventricular fibrillation, developed by Mr Ferro was an inevitable consequence of a disease and not injury simpliciter. That the progress of his disease had come to a stage where the artery clotted, his artery was occluded by a clot and he collapsed into a cardiac arrhythmia. The Respondent submitted that there was nothing sudden that happened that day, and that the clot was simply completed within the artery and the inevitable consequences followed, that is, he went into ventricular fibrillation and infarction occurred. The difficulty with this submission is that, the assertion that there was nothing sudden or dramatic, and that there was no dramatic physiological event, fails to consider the significance of ventricular fibrillation.
60. We do not accept, as the Respondent submitted, that the evidence was that ventricular fibrillation was the inevitable consequence of the progress of Mr Ferro’s atherosclerotic disease, although it may have been in some way connected with it. The ventricular fibrillation was a sudden physiological change and not an inevitable consequence of his disease. It was a consequence of his disease, but it was not an inevitable consequence.
61. We were satisfied that the medical evidence was to the effect that Mr Ferro went into ventricular fibrillation which was not reversible within a timeframe that might have made a difference. As a result of ventricular fibrillation he suffered irreversible brain damage, described by Professor O’Rourke in his report of 18 February 2009, as ‘lethal cerebral ischaemic damage’. Simply put, ventricular fibrillation caused the brain damage from which he never recovered.
62. Significantly, in our view, Professor O’Rourke stated in his report of 20 March 2009:

‘I cannot say that ventricular fibrillation was the inevitable result of atherosclerotic disease because atherosclerotic disease can occur and not result in ventricular fibrillation.’

Once the ventricular fibrillation was reverted the heart returned to normal rhythm and the circulation was maintained but the physiological changes in the brain were irreversible and ultimately resulted in death. In his evidence Professor O’Rourke, the Respondent’s specialist, said the coronary situation was resolved by the angiogram but the brain damage was irreversible. He did not know how much myocardial infarction there was, and he did not know if he would have been limited by that if his brain had recovered and he left hospital in a good state.

63. The Tribunal is satisfied that the events of 7 January 2004, in particular the ventricular fibrillation, is something that can be described as a sudden and ascertainable, or dramatic physiological change or disturbance of the normal physiological state which qualifies for characterisation as an “injury” in the primary sense of the word. The Tribunal is further satisfied that, as it occurred within the protected area of employment, it is ordinarily compensable without proof of specific causal connection with the workers employment as stated in paragraph 39 of Petkoska.

DECISION

64. The Administrative Appeals Tribunal sets aside the decision under review. The matter is remitted to the Respondent.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr MEC Thorpe, Member.

Signed: ..............................................................................

B. Dhanasar, Associate.

Date/s of Hearing: 3, 4, 5 November 2009

Date of Decision: 15 February 2010

Applicant representative: Brydens Law Office

Applicant counsel: Ms Lorraine Walker

Respondent representative: Australian Government Solicitors

Respondent counsel: Miss Rhonda Henderson