PTSD & Death benefit claims
Gaylene Ann Reakes v State of NSW & Ors (2019) NSWWCC 134
On 10 April 2019, Arbitrator Paul Sweeney found that Ian Mark Reakes (the deceased) died as a result of psychiatric injury, namely post-traumatic stress disorder (PTSD), arising out of and in the course of his employment, and awarded death benefits to the deceased’s dependent wife and son pursuant to s25 (1) (a) of the Workers Compensation Act 1987. The cause of death was ischemic heart disease (IHD).
It was not disputed that the deceased suffered PTSD as a result of his service with the NSW Police Force. At issue was one of causation, and whether it could be said that his death from IHD resulted from his PTSD injury.
The deceased died on 13 September 2014 at age 51. During his lifetime, he was a serving Police Officer, and was medically retired on 15 March 2012 as a result of PTSD caused by the cumulative nature of policing duties.
The evidence of his wife was that the deceased had been a smoker since the age of about 19. She asserted that his smoking and drinking both increased parallel to the development of his psychiatric injury. There was much argument surrounding the precise amounts the deceased was sad to be smoking and drinking.
It was submitted for the Applicant that the condition of PTSD materially contributed to the IHD. PTSD is also said to have caused the deceased to increase his smoking and drinking, such that he was dependent on same and unable to cease either habit.
The Respondent argued that there was no causal link between PTSD and the death of the deceased. They suggested that the deceased would have died of IHD around the same time regardless of the work injury, given the presence of numerous other risk factors which are said to have caused the disease, and irrespective of an increase of fluctuating cigarette and alcohol consumption.
Discussion and Findings
Arbitrator Sweeney confirmed that the leading authority on causation in workers compensation cases remains the decision of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang Cement). This case confirmed that causation is to be addressed and determined on its own facts, and a common sense evaluation of the chain in causation is required. He also made reference to the more recent case of Sutherland Shire Council v Baltica General Insurance Co Limited and Others (1996) 39 NSWLR 87 (Sutherland Shire Council), a decision which has been unreservedly accepted by the Presidential Unit, wherein it was again confirmed that “the relevant inquiry directs attention to whether the injury caused or materially contributed to the incapacity”.
Having regard to the evidence led by both parties, Arbitrator Sweeney was not persuaded that PTSD was a direct cause of the deterioration of the deceased’s IHD.
However, specific to the facts in this matter, he accepted that there was a significant increase in the deceased’s alcohol and cigarette consumption from 2008 until 2012, and from 2013 until his death in 2014. The question then arose as to whether the deceased’s death resulted from PTSD through the agency of increased smoking and drinking.
There was argument between the expert witnesses on two questions: whether the deceased suffered from hypertension, and secondly, whether he had symptoms of IHD in his lifetime. The first of these questions was said to be critical.
Arbitrator Sweeney ultimately concluded on balance that hypertension was present. He found that that the deceased’s increased use of tobacco and alcohol accelerated his IHD and caused him to die earlier than he would have had he not suffered from PTSD.
If both the deceased’s alcohol and cigarette consumption were operative causes of his IHD, the case that they accelerated his death was said to be more cogent. Accordingly, the Arbitrator found that the deceased’s death resulted from his work related injury.
Lessons for Employers and Insurers
While it was accepted that the deceased’s PTSD was the direct cause of his PTSD, this matter makes plain the very real risk for increases in claims for death benefits in respect of psychiatric injury, in particular from the emergency services. It is commonplace to see evidence of increased cigarette and alcohol consumption in cases of psychiatric injury, in particular PTSD, as both are said to be used as methods to cope with symptomatology.
In order to properly assess such claims, careful reference to all available factual and medical evidence is imperative and same ought to be requested as soon as possible so that opinions on causation can be sought, and carefully reasoned. On accepted psychiatric injury claims, it would be prudent to obtain a detailed history of lifestyle habits; and ask assessing doctors as a matter of course to take a specific history as to an injured worker’s cigarette and alcohol consumption over time.
Additionally, it was noted in this case that the complete clinical records from treating doctors, Psychiatrists and Cardiologists were instructive in the decision making of the Arbitrator, and where cardiac injury is claimed as either a primary or secondary injury to psychological injury, a through assessment of the medial picture must be obtained.