Frustrated and abused to death by workcover: a landmark legal case

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This workers compensation landmark legal case asserts the causal relationship between psychological symptoms and links those symptoms to the physical injuries (and unfortunately death in this tragic case) and the claim for compensation for those injuries (and death). Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act. Fact is also that the management of a claim for compensation is as much a part of the claim as the treatment of the injury.

Frustrated and abused to death by workcover: a landmark workcover legal case

The worker compensation Landmark Case: Koorang Cement PTY LTD V Bates 1994

(1994) 10 NSWCCR 796  Court of Appeal Matter No. 40478 of 1993 KOORAGANG CEMENT PTY LTD v. BATES, 20 December 1994, Supreme Court of New South Wales (Court of Appeal):  Kirby P, Sheller JA, Powell JA

For what injuries compensation is payable – Causal relation between injury and incapacity or death?

Death or incapacity “results from” relevant work injury – Worker suffering injury to back – Death 11 years later – Consequences of work related injury over 11 years –  This was an appeal from the judgment of O’Meally CCJ – compensation was now awarded to the widow of a deceased worker.

Summary of the workcover case

The worker was a truck driver. He injured his back on 30 July 1981 while climbing up and down from his truck. He stopped work in June 1983. In September 1985, his general practitioner, Dr Furey, reported that the worker was:

very distressed because of the delay in reaching a solution to his back difficulty. He felt that, if he did anything, people might be watching him. He was very upset. He was complaining of a knot in the stomach. He was depressed and he was placed on a tranquilliser.” (at 453-4)

In May 1986, Dr Furey described the worker as “very severely depressed”. His personality was being affected by the “chronicity of his condition”.

In July 1987, Dr Furey advised the worker to go on a diet as his weight had increased because of his inactivity.

In April 1988, the worker told Dr Furey that he had a lot of suicidal thoughts. Dr Furey felt that the length of time in the compensation system was the “root cause of all this”. In March 1989, the worker’s back continued to give him excessive pain, radiating down his leg.

In March 1991, the worker was again found to be “excessively depressed, anxious, still having problems at home and problems with his back”. He had a sudden, unexplained exacerbation of pain in November 1991. A CT scan on 6 November 1991 revealed degenerative disc disease, with a prolapse at L4/5 and significant degeneration at L5/S1. There had been a gross deterioration since the scan taken in April 1982.

On 16 March 1992, the worker received a letter from the insurer advising that compensation payments would cease from 29 March 1992. The worker saw Dr Furey on 19 May 1992 severely depressed. He said he did not have enough money to pay the doctor and that he would have to sell his house. He was worried and anxious about his future. On 8 June 1992, the worker died of a heart attack.

Dr Furey stated that, while the worker had antecedent myocardial disease, it was exacerbated by the “depressive and anxiety situation in which he found himself, as a result of the lengthy and protracted workers’ compensation situation”. He felt that the worker’s death had been accelerated by the “stress generated by the cessation of compensation payments and the peculiarities of the workers’ compensation system”. The heart attack had happened much earlier than the worker should have had it and was “totally related to his back injury and the failure to reach a satisfactory conclusion within a ten year period”.

The worker’s widow made a claim for compensation benefits, which the insurer denied. She relied on evidence from Dr Furey and Dr Schiller, physician, who concluded that the emotional stress and depression the worker experienced in the weeks leading up to his death, which resulted from the cessation of compensation payments and consequent financial crisis in which he found himself, contributed to his death from a heart attack. Dr Schiller added that the worker’s sedentary lifestyle due to his back injury and unemployment also contributed to the heart attack. The employer called no evidence.

The test of causation in a claim for death benefits under the 1987 Act is the same as in a claim for weekly compensation: if the death “results from an injury”, compensation is payable (s 25 of the 1987 Act).

The trial judge found that the deceased “suffered injury in the course of his employment on 30 July 1981; namely, injury to his lower back” (emphasis added) and that “[a]s a result thereof the deceased suffered myocardial infarction from the effects of which, on 8 June 1992, he died” (at 457E). The judge did not find that the worker suffered a psychological injury or that the heart attack was a personal injury.

The employer appealed. It argued that the prolonged incapacity, immobility, sedentary lifestyle, increased obesity, stress and anxiety, depression, and acute stress when compensation payments ceased were all “mere predisposing factors” that were not “causative in the relevant sense that it was not shown that the death ‘resulted from’ any of them, either individually or in conjunction” (at 460F).

Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):

“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”

 

BACK INJURY, HEART ATTACK AND DEATH WORKCOVER CLAIM

Mr Maxwell Bates (the deceased) was the husband of Mrs Jennifer Bates (the respondent to this appeal). He was born in 1935. In August 1981 he was working for Kooragang Cement Pty Ltd (the appellant) as a truck driver. On 4 August 1981, he reported to Dr Philip Furey of Newcastle that “he was climbing up and down from his truck excessively, but noted on climbing down, that he was getting pain across his lower back and with pins and needles into his foot and toes and often his foot felt cold”. He reported that this symptomatology had been present for two weeks, although to a lesser degree for a period of six months. Dr Furey diagnosed advanced discogenic disease aggravated by excessive movements up and down from his truck. He certified him fit for selected work. But the deceased did not return to work until 3 May 1982. According to Dr Furey’s contemporaneous record, the deceased coped well, although in pain, when he returned to
work. But he continued with pain down the leg. On 2 May 1983, he had been lifting cement bags and the pain down the leg increased, but he continued at work. He asked for a certificate excusing him from lifting cement bags. This was given. However, the employer was unable to offer him work confined to driving his truck only. Thus, on 10 June 1983, the deceased “virtually ceased work”. He claimed and was paid workers compensation benefits under the Workers Compensation Act 1926. Every three months thereafter, Dr Furey issued certificates.

In September 1985, Dr Furey reported that the deceased was “very distressed because of the delay in reaching a solution to his back difficulty. He felt that, if he did anything, people might be watching him. He was getting very upset. He was complaining of a knot in the stomach. He was depressed and he was placed on a tranquilliser.”

In May 1986, Dr Furey found him “very severely depressed”. He stated that “his  personality was being affected by the chronicity of his condition and the failure to reach a conclusion”. Dr Furey’s report proceeded:    “I remember discussing [his depression] with him and we both felt that the compensation situation and the system itself was responsible for the breakup of his domestic bliss and for his continuing depression.”

In July 1987, Dr Furey found the deceased’s back was the same. But for the first time, he reported that his local doctor was investigating him for cardiac disease and had advised  him to go on a diet “as his weight was increasing from his inactivity”.

In April 1988, Dr Furey reported that the deceased told him that he “had a lot of suicidal thoughts and he was in the depths of despair at that moment. The length of time that he had been spending in the compensation situation, in my opinion, was the root cause of all this”. Dr Furey expressed the hope that a settlement of some kind (presumably a
redemption of workers compensation entitlements) would be reached.

In March 1989, Dr Furey found that little had changed. The back was still giving him excessive pain, radiating down his leg. During 1989 he remained depressed and, on one occasion, fell when his left leg gave way underneath him.

In March 1991, the worker was again found to be “excessively depressed, anxious, still having problems at home and problems with his back”. This situation persisted into August 1991. He had a sudden, unexplained exacerbation of pain in November 1991 which severely restricted his movement. At this time, Dr Furey referred the deceased for a CT scan. This reported on 6 November 1991 that the deceased was suffering from degenerative disc disease, with a-disc prolapse at L4-5 and significant degeneration at the L5-S1 levels of the spine. Comparing this CT scan with one taken in April 1982, Dr Furey expressed the view:

“The change now in the scan demonstrated stenosis at the L5-S1 neuroforaminal level … All these factors showed the gross deterioration since the previous scan and showed the total disability as being progressive and permanent and quite restrictive on his normal activities.”

On 16 March 1992, according to Dr Furey’s report, the deceased received a letter from the insurer, telling him that from 29 March 1992, compensation would cease.

Dr Furey went on: “He came to see me on 19 May 1992 quite severely depressed, telling me that his compensation had ceased and that he would have to be paying me but he didn’t have enough money to do so, telling me that he would be forced into selling his house. He didn’t know how his future would be as there was no indication that settlement was going
to be reached in the near future, and generally quite severely down about the whole affair. He stated that he didn’t understand why it had taken so long to reach this point in time and he couldn’t understand the machinery of compensation and litigation and why should he be singled out to have been kept in limbo all these years, and then suddenly had the rug pulled from under him. He was worried, he was anxious about his future; he didn’t know how he would cope financially and discussed the problem at length with me. My advice was for him to go and see his solicitor and see if things could be hurried; and also stated that he should go back and see Dr Isaacs [a specialist neurologist] once more, to get his final reporting before litigation. It was pointed out to Mr Bates that now the insurer had done this, that it could take another 12 to 18 months before it would come to court, and he quite despaired at that statement.

On 8 June 1992 Mr Bates died of a myocardial infarction. The certificate reading Myocardial Infarction; Coronary artery thrombosis; Coronary athrosclerosis.”
Dr Furey was asked to express an opinion on whether the myocardial infarction which caused the deceased’s death, resulted from his work injury or its consequences. He replied:

“In my opinion Mr Bates obviously had antecedent myocardial disease, but this indeed was exacerbated by the depressive and anxiety situation in which he found himself, as a result of the lengthy and protracted workers compensation situation. When the final rug was pulled on 29 March 1992 he then proceeded to have an increased stress environment, which forced him to make a decision – two weeks before his death – when he asked his solicitor to prepare a contract for the sale of his home. This must have devastated him completely as that was all he had in his life, and was hoping that the compensation payment would have paid out his house and allowed him to live there until his death. And
in my opinion his death was accelerated most assuredly by the stress generated by the cessation of compensation payments and the peculiarities of the workers compensation system, which allowed a man with an injury – originally experienced in 1981- to go on to 1992 before settlement was reached.”

Later in the report, Dr Furey went on:

“It was … not a surprise to me to learn that he had sustained a myocardial infarction, because I felt that with the past history of myocardial disorder, that the despair at this future, had indeed precipitated his myocardial infarction. In other words he had it much earlier than he should have had it; and totally related to his back injury and the failure to reach a satisfactory conclusion within a 10 year period … I think what was more dramatic than the actual physical disability in the latter months, was his mental changes and particularly since he had received that letter on 16 March 1992, stating that compensation payments would cease on the 29 March 1992. That was when the final coup de grace was given to him by the insurer or in fact by the system itself. From then on he went into a period of intense anxiety and witnessed the phone call to the solicitor, asking for a contract to be drawn up to sell his house. He realised he couldn’t continue to cope any longer and his whole life was tumbling around him because of lack of finance. And that indeed was the reason for his myocardial infarction. It is a very sad and tragic end to a classical example of protracted compensation and litigation, which need not have occurred if only [a] decision had been made years earlier.

The deceased’s widow made a claim for workers compensation benefits. This was denied. Then won on appeal (this case)

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The insurer in each of these matters was Allianz Australia Workers Compensation (NSW) Limited?

Remember that when you read “the employer argued” etc etc. it is not actually the employers, but it is the insurance company and its legal representatives.

Allianz offices in Newcastle are located in Charlestown. If you have a problem, you know where to go to deal with it.

Allianz: home of bullies.