The widow of a travelling engineer was awarded over $500K in workers compensation after her husband died of a heart attack while travelling for work.

The widow’s husband, Mr Kamal Fernando was employed as a principal engineer. He was found dead in a Ballina motel room in August 2014.

At issue was whether the injury was a ‘heart attack injury’ within the meaning of section 9B of the Workers Compensation Act 1987.

It was clear that the deceased was travelling in the course of his employment – regular travel (with overnight stays) was part of the nature of his occupation as an engineer involving both the management of sites and to further the commercial operations of his employer.

Section 9B(1) requires a comparison of:

1. the risk to which the nature of the employment concerned gives rise and
2. the risk had the worker not been employed in employment of that nature.

The first of these needs to be ‘significantly greater’ than the second, if compensation is to be payable.

There was evidence that the deceased had been woken by his wife many times because of sleep apnoea. He had coronary atherosclerosis and ischaemic heart disease.

In his decision, Senior Arbitrator Snell said that the expert witness concluded that if the deceased had been at home with the applicant on the night of his death, or in the presence of another adult in the motel room, he ‘would, on the balance of probabilities, have survived his acute coronary syndrome.

“Thus in the opinion of Professor Raftos, it is probable that if the deceased had experienced the myocardial infarction in his home, ambulance officers would have been present before he went into ventricular fibrillation.”

Ultimately, “It follows that if the deceased had not been in the relevant employment, and had medical assistance available to him at home from ambulance officers, the risk of him going into ventricular fibrillation, and thence to cardiac arrest which was secondary to ventricular fibrillation, would have been much less.”

“Professor Raftos said in those circumstances there would have been an 85 per cent chance of the ventricular fibrillation being successfully treated.”

In the circumstances, the Senior Arbitrator concluded that the test in section 9B was satisfied and therefore $510,800 in workers compensation was awarded to the widow of the deceased engineer.

De Silva v Secretary, Department of Finance, Services and Innovation [2015] NSWWCC 279. Arbitrator Mr Snell. 7.10.15. See the decision in full here.