The recent case of Barbosa v Rio Formwork Pty Ltd [2020] NSWWCC 17 before the NSW Workers Compensation Commission (WCC) presented some interesting questions about how we determine whether a worker’s employment was a “substantial contributing factor” in the cause of the death of a worker.
Mr Adao Barbosa had suffered severe lower back injuries at work in 2001 and 2003. He could not return to work. His ability to participate in most forms of exercise was significantly reduced and his diet was poor because of his physical and psychological injuries. Mr Barbosa gained weight and developed both cerebrovascular disease and diabetes mellitus. Sadly, on 3 May 2012, Mr Barbosa died as a result of a basilar artery occlusion, likely secondary to his cerebrovascular disease.
A worker can be successful in obtaining compensation for an injury, condition or disease which did not occur during the course of carrying out their work duties when it is proven that the injury/condition/disease was substantially caused by a direct work injury. It is quite common for so-called “consequential conditions” to form part of a worker’s compensation claim.
However, when Mr Barbosa’s wife, Maria made a claim for a worker’s compensation death benefit, liability was initially denied by the insurer.
The insurer’s argument, among others, was that Mr Barbosa’s weight gain and diabetes which arose as the result of his physical and psychological injuries did not cause his death, but rather increased the risk that he would develop the disease that lead to it.
Ultimately, the Arbitrator accepted the expert evidence of Dr Brooder (the neurologist commissioned by Mrs Barbosa) that Mr Barbosa’s diabetes and weight gain significantly increased his risk of the occlusion which caused his death, and therefore could be considered a substantial contributing factor to it. This finding was grounded on a number of factors, including the timing of Mr Barbosa’s development of diabetes, his vascular health before his work injury and any other factors which may have contributed to his death.
Mr Barbosa’s work injuries in the early 2000s caused him to develop psychological conditions, eat more and exercise less. This in turn caused him to develop cerebrovascular disease and diabetes mellitus, which contributed to his death. Ultimately, Mrs Barbosa was awarded nearly $500,000 in compensation.
Sometimes the consequences of workplace injuries do not become fully realised until much later, and it can be difficult to see initially how they are connected. It is important to obtain expert advice from an experienced lawyer as early as possible. If you or a loved one has suffered an injury at work, please contact Amanda Robinson on (02) 4050 0330 to discuss your rights or make an appointment online.
