The Heart of Section 4(b)(ii)

Pereira v ARA Fire Protection Services Pty Ltd [2025] NSWPICPD 77; (3 November 2025)

The Appellant was the widow of the late Max Pereira, who passed away on 17 September 2021.  The parties agreed that the cause of the deceased’s death was a heart attack caused by the rupture of plaque in his coronary artery against a background of coronary artery disease.  The deceased’s duties were those of a project manager who from “time to time worked on the tools”. 

The Appellant made a claim for a lump sum death benefit on the basis that the deceased’s employment had aggravated his pre-existing coronary disease and that the nature of his employment gave rise to a significantly greater risk of the deceased suffering a heart attack.  The Appellant alleged that the deceased was performing physical work in a hot environment and had inhaled silica dust.

Issues for Determination

• Whether the deceased’s employment was the main contributing factor to the aggravation of an underlying condition which caused a fatal heart attack injury pursuant to Section 4(b)(ii) of the Workers Compensation Act 1987 (‘the 1987 Act’)
• If yes, whether the nature of the deceased’s employment gave rise to a significantly greater risk of him suffering the heart attack which led to his death than had he not been employed in employment of that nature pursuant to Section 9B of the 1987 Act.

The matter was heard in the Personal Injury Commission before Member C Burge, who found in favour of the Respondent.  The Member made the following findings:

• The deceased was a man who, from time to time, despite his position being generally supervisory in nature, assisted his colleagues with manual work.
• The deceased was a long-term smoker and had pre-existing coronary artery disease.
• A chest X-ray performed in September 2020 showed no evidence of pneumoconiosis or silicosis.
• On the balance of probabilities, the deceased was exposed to dust in the course of his employment.
• Evidence from a witness confirmed that the deceased was already complaining of chest pain before the commencement of his last shift, and that his complaints continued until he went home.
• The autopsy findings found no evidence of the presence of silicosis or silica dust.
• The Member considered that the timing of the heart attack is not determinative of the question of the workplace injury, however, the fact the deceased was complaining of chest pain before he commenced his shift is a factor which must be taken into consideration in any common sense evaluation of the evidence and causal chain.
• The Member accepted that exposure to silica dust can cause cardiac pulmonary issues however, in this matter he did not have an actual persuasion either of such relevant exposure nor of any exposure being the main contributing factor to the rupture of the arterial plaque.
• At [87] the Member stated;

“In my view, the causes of the deceased’s fatal heart attack was multi-factorial. The evidence does not persuade me on the balance of probabilities that his employment was the main contributing factor to the heart attack injury and accordingly the [appellant’s] claim must fail.”

• In view of that finding, the Member did not find it necessary to determine the issue under Section 9B.

The Appellant filed an Appeal against the Member’s decision on the following grounds:

1. Error of law in incorrectly defining the wrong question for determination.
2. Error of law in taking into account an irrelevant consideration, namely the timing of the onset of the deceased’s symptoms.
3. Error of law in taking into account an irrelevant consideration, namely the absence of postmortem evidence of silicosis.

Decision

The Appeal came before Acting Deputy President Geoffrey Parker SC, who made the following findings regarding the grounds of appeal:

Ground 1 – Error of law in incorrectly defining the wrong question for determination

The Appellant submitted that the deceased’s exposure to silica at work in the days before his death presented a significantly higher risk of suffering a heart attack than had he not been so employed.  The Appellant submitted that the Member erroneously considered that the Appellant was required to establish that “the inhalation of the dust was the main contributing factor to the rupturing of the arterial plaque which caused the heart attack”

The Appellant submitted that the Member redefined the issue from a question of cause to a question of consequence of the disease and its aggravation.

The Deputy President found that the Member persistently maintained a focus on identification of the main contributing factor.  He considered that the Appellant simply failed to persuade him that the exposure to silica dust, physical  exertion and working in a hot environment, had been made out as the main contributing factor to the heart attack.  The Deputy President found that the Member did not depart from the statutory question correctly posed and dismissed Ground 1 of the Appeal.

Ground 2 – Error of law in taking into account an irrelevant consideration, namely the timing of the onset of the deceased’s symptoms

The Appellant submitted that the fact that the deceased experienced chest pain before the commencement of the last shift was an irrelevant consideration.  The Appellant submitted that this fact was consistent with the Appellant’s case because it was simply the manifestation of the disease condition that was caused by his working conditions that he faced well before the commencement of that chest pain.

The Deputy President considered that the Member did not find the fact that the deceased was experiencing chest pain prior to the commencement of his shift to be determinative.  Noting that the Member expressed that the temporal connection was not determinative, however, it was a relevant factor which he was required to take account of.  The Deputy President found that the Appellant’s contention that it was an irrelevant matter was not made out and dismissed Ground 2 of the Appeal.

Ground 3 – Error of law in taking into account an irrelevant consideration, namely the absence of postmortem evidence of silicosis.

The Appellant submitted that the Member placed impermissible weight on the postmortem absence of silicosis to dismiss the connection between dust exposure and the aggravation of the coronary artery disease.  The case theory offered by the Appellant’s expert, Dr Freiberg was that dust exposure can release inflammatory mediators from the lungs which can weaken the plaque in the coronary arteries and precipitate a plaque rupture.  He did not identify the presence of silicosis as part of the causal chain.

The Deputy President accepted the First Respondent’s submission that the Member was correct to consider whether there was evidence of silica exposure and the Member’s conclusion that such evidence did not exist was in fact correct, having regard to the chest X-ray and the autopsy report.  The Deputy President dismissed Ground 3 of the Appeal.

Conclusion

The Deputy President accepted the First Respondent’s submission that the Appellant failed because there were a range of factors which contributed to the onset of the heart attack outside work hours.  He considered that at most the Appellant’s medical case was that some factors at work such as heavy, physical work in the hot environment, and exposure to dust, primarily silica, gave rise to an increased risk of heart attack.  The Deputy President considered that there was, however, no evidence that risk had materialised by causing the aggravation of the underlying condition or that such an aggravation was the cause of the fatal heart attack.  The Deputy President considered that the Member was correct in not finding it necessary to deal with the Section 9B issue.

Implications

This decision highlights the relevant considerations regarding whether a worker’s employment was the main contributing factor to the aggravation of a pre-existing disease pursuant to Section 4(b)(ii) of the 1987 Act.  In this instance, the Deputy President considered that as the deceased’s heart attack was multifactorial and that there was no evidence that that work-related risk had materialised by causing the aggravation of the underlying condition or that such an aggravation was the cause of the fatal heart attack.  Therefore, a thorough understanding of pre-existing conditions as well as the circumstances of injury through both medical and factual evidence is required to determine liability.

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