COMPENSATION - liability for medical treatment - meaning of "in relation to" - whether stenting procedure several months after heart attack "in relation to" heart attack - decision set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) - s 16

Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472

O'Grady v Northern Queensland Co. Ltd [1990] HCA 16; (1990) 169 CLR 356

PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301

Mr Pratt has sought a review of a decision of Comcare to refuse compensation for the cost of a stenting operation carried out approximately 5 months after he suffered a myocardial infarct at work. Comcare accepted that the infarct was a compensable injury but decided that the stenting was not "medical treatment obtained in relation to the injury" as required by section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

For the reasons set out we have decided that Mr Pratt is entitled to compensation for the claimed expenses. The reviewable decision will be set aside and a substitute decision will be made allowing the expenses claimed.

Unless otherwise stated our findings of fact are based on an agreed statement of facts filed by the parties. We are satisfied as to the existence of those facts on the balance of probabilities.

Mr Pratt is 63 years old. In 1986 he commenced employment by the Australian Capital Territory Department of Parks and Wildlife as a truck driver.

Mr Pratt has atherosclerotic coronary artery disease, commonly known as a narrowing of the arteries. This condition has not been shown to have been contributed to by his employment and is not one for which Comcare has accepted liability to pay compensation. In 1993 he suffered a myocardial infarction for which Comcare did accept liability.

On 14 September 2001 Mr Pratt was undertaking fitness training as part of his work. This involved walking 3.2 kilometres within 30 minutes whilst carrying a 11 kilogram backpack. He began to experience chest pain during the walk and by the time he had completed it he was suffering nausea, breathlessness and chest pain. He was admitted to Calvary Hospital where he was diagnosed as suffering an acute myocardial infarction.

Mr Pratt was discharged from hospital on 20 September 2001 after undergoing a coronary angiography and thrombolytic therapy.

On 22 October 2001 Comcare accepted liability in relation to the myocardial infarction of 14 September 2001.

On 7 November 2001 Mr Pratt was admitted to The Canberra Hospital with a recurrence of chest pains. An angiogram showed one artery to be totally blocked and others to be narrowed to varying degrees. After assessment by a number of specialists it was decided that a double stenting procedure was the most appropriate treatment. For a number of reasons this procedure was not carried out until February 2002.

On 4 February 2002 Dr Farshid, consultant cardiologist, performed an angioplasty and inserted stents in the left circumflex artery and in the right coronary artery. [1]

For the reasons set out later, we find that the stenting procedure reduced the risk of another clot forming at the same site as the clot which gave rise to the infarct on 14 September 2001.

The issue before us is whether the stenting procedure was related to the compensable injury being the myocardial infarct of 14 September 2001. By a reviewable decision of 2 September 2002 Comcare decided that it was not related and therefore that Comcare was not liable to meet the cost of that procedure.

The relationship between the infarct and the need for the stenting was the subject of differing medical opinion.

Dr Coles, Mr Pratt's treating cardiologist since 1993, said in his report of 27 June 2002[2] that:

"The acute inferior infarct of 4 September 2001 was caused by total occlusion of one of these [narrowed] coronary arteries. This was treated by thrombolytic therapy and the clot presumably dissolved. The stenting procedure was to remove the focus for such a clot to prevent it happening again."

In his oral evidence Dr Coles explained that the infarct was caused by a disturbance of a plaque in the artery which caused a clot to form on its surface. The thrombolytic therapy cleared the clot but the narrowing of the artery remained. Had the stenting not been carried out the site could again have been the site of occlusion and could have led to ischaemia which could manifest itself in angina or acute infarction. He expressed the opinion that the disruption of the plaque is usually worse after an acute event. As Mr Pratt had not suffered angina before the infarct, but did after, it was a reasonable assumption that the disruption of the plaque in September 2001 made the narrowing of the artery worse.

Professor O'Rourke, cardiologist, gave evidence on behalf of Comcare. He examined Mr Pratt on 13 June 2003 for the purposes of preparing a medico-legal report. In his report of 17 June 2003 he expressed the view that:

"...the stenting procedure that the applicant underwent was treatment for his underlying condition and not treatment for myocardial infarction.

......

If stenting was required for treatment of myocardial infarction, it would have been done at the time of the admission and not many months later."[3]

Professor O'Rourke did not directly address Dr Coles' view that if the stenting had not been carried out at the site of the occlusion which gave rise to the infarct, the disruption of the plaque at that site would be more likely to cause a further clot.

There was not a great deal of difference between the two medical experts other than on the issue of whether the stenting procedure was treatment for the infarct or for the underlying condition of the narrowing of the arteries. Whilst we are greatly assisted by the medical evidence as to the nature of the various treatments and what they were designed to achieve, the question of whether the treatment was "in relation to the injury" (as required by section 16 of the Act ) is a matter for us to decide. That specific question is not a matter for medical opinion.

We have found in accordance with the opinion of Dr Coles that the stenting reduced the risk of another clot forming at the same site and that the disruption of the plaque at the original site made the narrowing worse. We have accepted this opinion, being that of Mr Pratt's treating cardiologist and one which was not challenged.

Section 16(1) of the Act provides:

"Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain In the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment."

We have to decide whether the stenting procedure is properly described as treatment "in relation to" the accepted compensable condition of myocardial infarction. There has been no suggestion from Comcare that the treatment was not reasonable.

Counsel for both parties have referred us to a number of decisions in which the High Court and the Federal Court have dealt with the meaning of the phrase "in relation to." The relevant principles which emerge from these decisions are:

a) the words are wide in their meaning and by themselves simply signify that there be some connection between two matters[4];

b) the connection which the phrase imports is "a matter of degree[5];

c) the connection required is determined by having regard to the context of the phrase and the scope of the Act.[6]

In considering the connection required by the words "in relation to" in the Commercial Arbitration Act (1985) NT the High Court said:

"Inevitably, the closeness of the relationship required by the expression 'in or in relation to' in s 48 of the Act - indeed, in any instrument - must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears."[7]

At this point we wish to make it clear that we are considering the issue before us solely on the basis that the myocardial infarction was accepted by Comcare as an injury, and not a disease. We are therefore considering the stenting procedure as treatment for an injury simpliciter, not as treatment for the atherosclerosis. Late in the hearing there was some discussion that Mr Pratt may have been able to claim that the infarct suffered by him was an aggravation of a disease, however, as counsel for Comcare pointed out, the hearing had not proceeded on this basis and had it done so, Comcare would have approached the matter differently.

Counsel for Comcare referred us to the Second Reading Speech when the Bill to introduce the present Act was before Parliament. He pointed out that a purpose of the new Act was to reduce the cost of the compensation scheme by restricting compensation to those diseases to which employment was a contributing factor. He argued that in this case we should not circumvent the intention of the Legislature by allowing treatment which in fact was for an underlying disease and not for the compensable injury. Whilst it is true that the intention of Parliament was to restrict the extent of compensation for diseases this does not change the beneficial nature of the legislation and we are of the view that section 16 should be considered in this context.

The phrase "in relation to" in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation. In accordance with the decisions referred to above we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment 'of' the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the infarct. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition "of" rather than "obtained in relation to".

We find that the cost of the whole of the stenting procedure is compensable. Dr Coles and Professor O'Rourke agreed that stenting would now be used to treat a myocardial infarct provided that the procedure could be undertaken within a short period of the injury occurring. In those circumstances clearly the procedure in part would be treatment of the infarct itself and part treatment of the underlying condition to reduce the risk of recurrences of an infarct. For the reasons stated above, the section should be interpreted broadly so as to include Mr Pratt's treatment in this case. Dr Coles stated that the stenting was to prevent a recurrence of the injury and that it became necessary because of the injury Mr Pratt had already suffered. This is sufficient connection for the purposes of section 16 of the Act.

Alternatively, on the basis of Dr Coles evidence we have found that part of the stenting was carried out at the site of the occlusion which caused the infarct and at which site it was reasonable to expect that the disruption of the plaque was worse after the acute event. We are of the view that such treatment is treatment "in relation to" the accepted injury which occurred on 14 September 2001.

The reviewable decision made 2 September 2002 is set aside and in substitution we decide that Comcare is liable to pay compensation to Mr Pratt for the cost of the surgery performed on him on 4 February 2002.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Date/s of Hearing 22 October 2004 & 1 November 2004

Date of Decision 2 December 2004

Counsel for the Applicant Mr David Thorley

Solicitor for the Applicant Gary Robb & Associates

Counsel for the Respondent Mr Andrew Dillon

Solicitor for the Respondent Australian Government Solicitor

[4] Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533; Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at 487.

[5] O'Grady v Northern Queensland Co. Ltd [1990] HCA 16; (1990) 169 CLR 356 at para 10.

[6] O'Grady v Northern Queensland Co Ltd (supra).

[7] PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 313.