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  • Haridra De Silva v Department of Finance & Services [2015] NSWWCC 279 is the first decision of the Workers Compensation Commission that deals specifically with the 2012 amendment to the Workers Compensation Act under s 9B.
  • The Commission found the worker suffered an injury (in this case a fatal heart attack) which may have been avoided had he not been required to travel for his work.
  • Furthermore, it was found that the worker’s work-related travel created a ‘significantly greater risk’ of the injury or death occurring. As such, it satisfied the only circumstance in which the amended legislation provides for compensation for heart attack or stroke.

In 2012, the Workers Compensation Act 1987 was amended to provide that no compensation can be awarded under the Act for heart attack or stroke unless the nature of the worker’s employment resulted in a significantly greater risk of the claimed injury (s 9B).

Years later, the case of Haridra De Silva v Department of Finance & Services [2015] NSWWCC 279 is the first workers compensation case to satisfy the threshold of ‘significantly greater risk’ in relation to a claim following a fatal heart attack.

Factual background

Mr Fernando was employed as a principal engineer with the NSW Department of Finance & Services. He and a work colleague were required to attend a two-day site visit at Ballina in August 2014. After completing a day’s work, they retired to their respective motel rooms at about 10pm. The following morning, Mr Fernando did not arrive for breakfast. Having failed to obtain a response to telephone calls, the management forced open his door to find him sitting by the bed, with his head on the mattress and with vomitus on the floor. According to expert witness Professor Raftos, this indicated that Mr Fernando had symptoms, most probably chest pain and nausea, before the fatal cardiac arrest.It was determined that Mr Fernando died because of cardiac arrest in ventricular fibrillation, which occurred as a result of acute coronary syndrome caused by occlusion of his left anterior descending coronary artery as a result of atherosclerosis. Mr Fernando was known to have obstructive sleep apnoea, but no other serious illnesses or injuries. He was a non-smoker and there was no family history of heart disease.

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