Re Keith Gazeley and Commonwealth of Australia [1984] AATA 259 (6 July 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: KEITH GAZELEY
And: COMMONWEALTH OF AUSTRALIA
No. N82/413
Commonwealth Government Employees

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Deputy President Smart (Presiding Member)
I. Prowse (Member)
Dr. D.J. Howell (Member)

CATCHWORDS

Commonwealth Government Employees - Heart Disease - Ischaemic episode - Ischaemic heart disease - recurring strees.

Compensation (Commonwealth Government Employees) Act, s. 29.

HEARING

SYDNEY
6:7:1984

ORDER

The decision of the delegate of the Commissioner for Employees' Compensation is affirmed.

Liberty to apply to either party is reserved in relation to any matter which may arise in the adjustment and calculation of compensation and sick leave.

DECISION

For many years Keith Gazeley was employed by Customs. On 29 September 1975 he was transferred to Queen's Bond as Supervisor (Inspector, Class 6 level). In this position he was required to meet certain deadlines. He had to organise the sales of certain goods (overtime sales), the printing of catalogues and the distribution of monies collected, arrange contracts and supervise the Bond staff. This type of work differs from other Customs work. According to Mr. O'Connor, a fellow officer, Mr. Gazeley on several occasions spoke of his concern about the duties of the position and at no time looked relaxed or happy. Mr. O'Connor observed a build-up of stress and tension in Mr. Gazeley.

2. On 3 February 1976 while walking along Empress Street, Hurstville, on his way to work Mr. Gazeley experienced a heart attack. He stopped until the pain receded and then continued up the hill and on to Hurstville Railway Station stopping each time the pain took hold. He boarded a crowded city-bound train and 'staggered out' at Sydenham Station, collapsing onto a railway seat. He was taken to Marrickville Hospital. He suffered an anteroseptal infarct.

3. Mr. Gazeley contends that until 29 September 1975 he was in apparent good health with no personal or family history of heart disease and very little sick leave from work.

4. The history recorded by the Hospital was:

"He complained of retrosternal chest pain the previous

evening and again that morning, following exertion and
lasting half an hour.

Past health included chronic bronchitis, sinusitis. He
smoked forty cigarettes a day, nil alcohol, was on nil
medication and had no allergies. He had no history of
angina but increased shortness of breath on exertion."

5. Dr. G.V. Hall, a cardiologist, has expressed the view, which we accept, that the underlying ischaemic heart disease must have existed for some time prior to February 1976 to lead to a myocardial infarct. Dr. Hall pointed out that ischaemic heart disease was a constitutional disease consisting of atherosclerosis involving the coronary arteries. It leads to a narrowing of the arteries and a subsequent insufficiency of the blood supply to the heart. Dr. Hall said that while an infarct may damage the heart muscle and lead to complications as a result of that, the progress of the disease in the coronary arteries depends on other risk factors.

6. Mr. Gazeley returned to duty on 27 April 1976. He was transferred to another position and given duties of which he had had no experience for 20 years. He was off sick for two weeks in May 1976 with reactive depression and for two weeks in October 1976 with acute anxiety.

7. Acting on the advice of Dr. J.G. Richards, a cardiologist, a delegate of the Commissioner for Employees' Compensation determined that Mr. Gazeley suffered an aggravation of a pre-existing or underlying condition, namely, coronary artery disease resulting in a myocardial infarction on 3 February 1976 to which his employment was a contributing factor. Customs was held liable to pay compensation.

8. In October 1976 he ceased taking medication. His health improved and he did not take any sick leave until 24 October 1978 when he became ill during the night. He was admitted to Sutherland Hospital with a history of severe constricting left-sided chest pain associated with breathlessness and sweating. He was diagnosed as having had a subendocardial inferior myocardial infarct. He was away from work for 8 weeks.

9. On 15 February 1979 there was an incident at work when three clerical assistants for whom Mr. Gazeley was temporarily responsible did not return from lunch until 4.30 p.m. Some harsh words were spoken and, understandably, Mr. Gazeley was angry. Matters were tense at the office on 16 February 1979. On his way way home a further incident took place. The applicant climbed the stairs from Caringbah Station to the roadway. While waiting at the traffic lights he felt that he was not getting enough air with normal breathing, a pain in the chest began as he crossed the road. As he walked along it gradually became worse. He called in at a Doctor's surgery, received an injection and was taken to Sutherland Hospital. The diagnosis was acute coronary insufficiency. Dr. W. Basil, the treating cardiologist, reported that he made a good recovery.

10. Dr. Basil said that while the applicant may have suffered a minor infarct there was no proof that this was so and that probably Mr. Gazeley did not have one at that stage. It was not an easy matter to assess and the doctor was at pains to stress that he could not categorically say whether or not an infarct had taken place. It was difficult to know whether there was any damage at that stage. If there was no myocardial infarct there would be no damage. There was no recurrence of chest pain whilst in hospital. There was no enzyme rise and no change in the cardiograms. The findings after the 1978 incident indicated some abnormalities and so did those taken after the later incident in 1980 (see below).

11. Mr. Gazeley has not worked for Customs since 16 February 1979. In May 1979 a Commonwealth Medical Officer ruled that Mr. Gazeley was unfit for continued employment and should be retired. On 10 January 1980 Dr. Richards expressed the view that the applicant was capable of discharging the duties of his previous employment.

12. However, on 17 January 1980 he was admitted to Sutherland Hospital with a 12-hour history of central chest pain. Dr. Basil felt that he had had a further subendocardial myocardial infarct. This was not work related. Mr. Gazeley was retired on 15 February 1980 after completion of 1 year's sick leave.

13. We accept the evidence of Dr. Basil as to the condition of the applicant on the three occasions in question and Dr. Basil's diagnosis on these occasions.

14. Dr. Richards agrees with Dr. Hall that prior to 3 February 1976 the applicant had coronary artery disease. The 1978 incident does not appear to be work related.

15. This application is primarily concerned with the events of 15 and 16 February 1979. As we examined the evidence two major issues emerged, namely,:

1. Did the incident of 16 February 1979 aggravate, accelerate
or lead to the recurrence of coronary artery disease of the
applicant or occasion him any physical or mental injury?

2. If so, for what period?

16. Dr. Hall was of the view that although in February 1979 the applicant suffered prolonged angina, this did not lead to a myocardial infarct. In his opinion the applicant suffered from an acute ischaemic episode as a result of the effort of walking up the railway steps. The effects of the aggravation ceased when the pain was relieved after treatment in hospital. Mr. Gazeley was in hospital for 5 days. In Dr. Hall's opinion the period of aggravation was limited and the effects of the incident in February 1979 ceased after a relatively short period. We found his evidence convincing.

17. The Tribunal took up with Dr. Hall the question whether 'job stress' could or does affect the progress of ischaemic heart disease. He said:

"Well, what I have been speaking of before was that by
continuing, recurring stress , it may act like a
recurrent exertion and produce acute ischaemia which can
lead on to, if it is prolonged or severe enough, an
infarct, but whether it affects the actual disease
process in the coronary arteries is completely
controversial. If it does, nobody knows how or why. So
that narrowed arteries might lead to myocardial infarct
and further damage to the heart muscle, but it is
controversial as to whether it can have any bearing on
the disease process in the coronary arteries.

"How do we decide the controversy?---I do not know. We have
not been able to do so yet.

Is there a preferred view or is it still an open
question?---Very much an open question. The slightly
preferred view is that it does not or there is no
evidence that it does."

As to the events of 15 February 1979 Dr. Hall gave this evidence.

"How much, if any, effect would that have played in relation
to the events of 16 February?---It does not seem likely
that they would have played a large part because of the
time interval, Mr. Chairman. It does seem as if the
exertion on 16 February was the precipitating factor.

Could the events of the 15th have had any predisposing effect
at all?---I do not think so. I mean, there is always
the query in this controversial question of whether it
is having any effect on the disease in the arterial
wall, but so far nobody has been able to demonstrate
whether it does or how it works or so forth."

18. The delegate acted on Dr. Hall's advice and found that Mr. Gazeley suffered an acute ischaemic episode on 16 February 1979 and that his employment was a contributing factor to that episode. The delegate was unable to find that the condition of ischaemic heart disease suffered by Mr. Gazeley was the result of personal injury or a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor. The extensive and cogent oral evidence of Dr. Hall has persuaded us that these findings are correct.

19. The delegate, having deemed the ischaemic episode to be a personal injury, determined that the respondent was liable to pay compensation in respect of that injury. We were informed that compensation as such had not been paid for the relevant period because the applicant was on full pay for sick leave for that period. We raised with counsel for the respondent whether this was appropriate and whether perhaps the correct course was for compensation to be paid for, say, two months and thereafter sick leave for 12 months. We were advised by counsel for the respondent that the sick leave position and entitlements would be checked. This has now been done.

20. We have been advised that the Commonwealth Employees' (Redeployment and Retirement) Act 1979 Handbook provides:

"4.4 ..."in granting sick leave the Chief Officers should
have regard to the Common Rule re Sick Leave
(Determination l19 of 1951) which limits the maximum
period of paid sick leave in respect of any continuous
absence through illness to 52 weeks. This maximum
period may only be extended by paid was (sic) service
sick leave and approved compensation leave (26 weeks)".

Therefore a total of 78 weeks paid sick leave may be
taken.

5.15 ..."where the Permanent Head has signed a
retirement instrument under Section 19 to retire a staff
member, he cannot, as a matter of law, revoke the
decision and substitute retirement from another date.
Exceptions to this principle may occur, for example,
where the date set out in the documents was not the date
intended by the Permanent Head, or his delegate as the
result of some patent error, such as typographical
errors, wrong transcription of a date from a record card
or file, or a wrong mathematical calculation. Legal
advisings obtained over several years state that
retirement dates cannot legally be varied for any other
reason, e.g. where the Permanent Head subsequently
becomes aware that a compensation claim has been
accepted. The only redress in such cases is for the
former officer or employee to seek an act of grace
payment".

21. The Permanent Head appears to have signed a retirement instrument under section 19 of the Commonwealth Employees' (Redeployment and Retirement) Act 1979 with the effective date of retirement for Mr. Gazeley of 17 February 1980. It seems that there may well be difficulties in altering this date.

22. Bearing in mind Mr. Gazeley's age (born 1925) and his 38 years of service, it does seem that the fairest course would be to allow Mr. Gazeley a short period on compensation, say, two months, and 12 months sick leave from, say, 16 April 1979. It is noted that this would mean that for two months Mr. Gazeley would receive the difference between the amount of his weekly pension and the amount to which he would have been entitled by way of compensation. In the circumstnces of this case we would recommend that the appropriate act of grace payment be made.

23. The decision of the delegate should be affirmed. Liberty to apply is reserved in relation to any matter which may arise in the adjustment of compensation and sick leave.