Not Inexcusably Bad: Death Benefit Payable

Ironmonger v Gunnedah Shire Council [2021] NSWPIC 48

The Applicant sought death benefit compensation under Section 25 of the Workers Compensation Act 1987 resulting from the death of his son, the Deceased, on 10 March 2017.

On 10 March 2017 the Deceased attempted to take his own life by way of a drug overdose. He was rendered unconscious and when found taken by ambulance to Gunnedah Hospital before being transferred to Tamworth Base Hospital where he later died.

The Applicant alleged that the Deceased’s death resulted from an accepted work related psychological injury deemed to have occurred on 28 February 2017. The Respondent disputed liability for the claim on the basis that there was a novus actus interveniens, a break in the chain of causation, which arose from the medical treatment the Deceased received at Tamworth Base Hospital.

A report of the Coroner dated 16 January 2018 found that the direct cause of the Deceased’s death was a pulmonary embolism. The Coroner also noted that the Deceased was morbidly obese at the time of his death.

The Applicant filed an Application to Resolve a Dispute and the matter was heard in the Personal Injury Commission (PIC) before Member Jane Peacock.

Determination / Reasons

Member Peacock noted that it was not in dispute that the Deceased suffered a psychological injury as a result of his employment with the Respondent. In accordance with the decision in Mahony v J Kruschich (Demolitions) Pty Ltd (1995) 156 CLR 522 (Mahoney), Member Peacock considered that the question for determination was whether the treatment that the Deceased had received at the Tamworth Base Hospital was so inexcusably bad or improper that it constituted a novus actus interveniens which broke the chain of causation between the attempted suicide as a result of the workplace injury and the Deceased’s death.

The Respondent submitted that there was unacceptable sub-therapeutic prophylaxis and an unacceptable lack of appropriate testing and treatment when a pulmonary embolism was considered by medical staff at Tamworth Base Hospital.

In NSW, a VTE (venous thromboembolism) Risk Assessment Tool exists which states that specialist advice should be sought when a patient has a BMI greater than 35. It was submitted that this tool was not adhered to in the case of the Deceased which resulted in unacceptable treatment. The Deceased only received a standard dose of VTE prophylaxis which they submitted was not sufficient given the Deceased’s weight.

The Applicant submitted that the treatment provided by Tamworth Base Hospital was appropriate, adequate and in accordance with accepted competent medical practice. It was submitted that the medical care received was not inexcusably bad. In accordance with medical standards in NSW, the standard dose of VTE prophylaxis is provided to anyone at risk of pulmonary embolism and there is no clear Guideline in place in respect of a higher dosage for obese patients.

Member Peacock noted that a pulmonary embolism had a high mortality rate and that even with efficient treatment the mortality rate only drops to 20% and not zero.  She considered this was important when determining whether the causal chain was broken by treatment at the hospital, given that a pulmonary embolism necessarily results in death, but treatment does not necessarily guarantee survival.

Given there were no Guidelines in place in respect of treatment dosage or the adjustment of the dosage for obese patients, Member Peacock considered that on the balance of probabilities that the treatment provided by Tamworth Base Hospital was not inexcusably so bad as to break the chain of causation.  She found in favour of the Applicant and made Orders for the Respondent to pay death benefits and funeral expenses.

Implications

To establish a break in causation as a result of medical treatment, it must be found that the treatment was so “inexcusably bad” that death resulted from the treatment and not the injury itself.

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