MKG-newOn 19 June 2012 section 9B of the Workers Compensation Act 1987 (section 9B) was introduced that provides that no compensation will be payable for people suffering from a stroke or a heart attack, unless the nature of employment gave rise to a significantly greater risk of the worker suffering the injury.

For heart attacks prior to 19 June 2012, the test was whether employment was a substantial contributing factor to the injury. Section 9B seeks to make the test more onerous on the worker.

In the normal course of events, the question to be answered is whether the work that the deceased was doing significantly heightened the risk of injury.

However in the matter of De Silva v Secretary, Department of Finance, Services & Innovation [2015] NSWWCC 279 (De Silva) it was held that if a person was put in a position by his employment and that gave rise to a significantly greater risk of injury then it was compensable.

In De Silva the deceased was in a motel room alone in Ballina away from his wife and family. There was no dispute that the only reason he was in the motel room in Ballina, was because of his employment.  Mr De Silva had a heart attack and the medical evidence was that if he was accompanied, which he would have been in his own bed, then it was more likely than not that an ambulance would have been called and he would have survived the heart attack.

Thus it was decided that as Mr De Silva was alone at the time, as a result of his employment, this gave rise to a significantly greater risk of injury.

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