Alexander McDonald and Comcare

Case [2013] AATA 105

[2013] AATA 105

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/0031, 2011/5355 & 2012/2826

Re

Alexander McDonald

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 28 February 2013
Place Melbourne

Application 2011/0031

1.The reviewable decision made by Comcare on 9 November 2010 (being reconsideration 23114453) is set aside.

2.       In substitution for the decision set aside it is decided that:

(1)Comcare is liable to pay to Dr McDonald compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being an aggravation of a condition of nausea, disorientation and headaches;

(2)the injury was suffered by him between April 2006 and May 2007.

Application 2011/5355

3.The reviewable decision made by Comcare on 22 November 2011 (being reconsideration 25525982) is set aside.

4.       In substitution for the decision set aside it is decided that:

(1)Comcare is liable to pay to Dr McDonald compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a chronic adjustment disorder with depressed moods;

(2)the injury was suffered by him between 1 July 2010 and 31 December 2010.

5.The reviewable decision made by Comcare on 22 November 2011 (being reconsideration 25673997) is set aside.

6.In substitution for the decision set aside it is decided that as at the date of this decision Dr McDonald is not entitled to compensation in accordance with sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being chronic adjustment disorder with depressed moods.

Application 2012/2826

7.The reviewable decision made by Comcare on 22 June 2012 (being reconsideration 27176306) is set aside.

8.The matter is remitted to Comcare for reconsideration in accordance with these reasons for decision.

Applications 2011/0031, 2011/5355 and 2012/2826

9.Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs.  Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the applicant.

..................[sgd]......................................................

Deputy President J W Constance

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) - Electromagnetic hypersensitivity syndrome – chronic adjustment disorder with depressed moods – migraine - permanent impairment – whether applicant suffered an injury - whether ailment contributed to, to a significant degree by employment - whether aggravation of ailment contributed to, to a significant degree by employment – perception - immaterial whether symptoms have determinable pathological cause or purely psychogenic - decisions under review set aside.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14(1), 24(1), 24(2).

CASES

Canute v Comcare (2006) 226 CLR 535.

Commonwealth v Beattie (1981) 53 FLR 191.
Federal Broom Company Pty. Limited and Semlitch (1964) 110 CLR 626.

Wiegand v Comcare Australia [2002] FCA 1464.

SECONDARY MATERIALS

Csermely, Péter and Yahara, Ichiro, ‘Heat Shock Proteins’.

Genuis, Stephen J, 'Fielding a Current Idea: Exploring the Public Health Impact of Electromagnetic Radiation'.
Levy, Finn and Wannag,…

Continue reading Alexander McDonald and Comcare

Sign in free to access the full text

Details
AGLC
Alexander McDonald and Comcare [2013] AATA 105
Case
[2013] AATA 105
Decision Date

CaseChat Overview and Summary

The case of Alexander McDonald and Comcare involved a claim for compensation by Dr McDonald, who alleged he suffered injuries related to his employment with CSIRO. Dr McDonald claimed that his electromagnetic hypersensitivity syndrome and other health issues were aggravated by his work conditions, particularly exposure to electromagnetic frequencies (EMF). The dispute centred around whether these health conditions constituted injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth), and if so, whether they were significantly contributed to by his employment. The primary issues for determination included whether Dr McDonald suffered an aggravation of his electromagnetic hypersensitivity syndrome, a chronic adjustment disorder with depressed moods, and migraines, and if these conditions resulted in permanent impairment. The court had to decide if these ailments were indeed injuries as defined by the Act, when these injuries occurred, and whether they were attributable to his employment.

The court carefully reviewed the evidence presented by Dr McDonald and the opinions of medical experts. Dr McDonald was found to be an honest and credible witness who accurately described his symptoms and believed he suffered from electromagnetic hypersensitivity syndrome. The medical evidence supported his claims, and it was acknowledged that his condition was aggravated by exposure to EMF, particularly during trials with electronic equipment at work. The court found that Dr McDonald suffered an aggravation of his condition, a chronic adjustment disorder with depressed moods, and migraines, which were significantly contributed to by his employment. However, regarding the claim for permanent impairment, the court decided that Dr McDonald was not entitled to compensation for this aspect.

The court concluded that Comcare was liable to pay compensation for the aggravation of Dr McDonald's condition, chronic adjustment disorder with depressed moods, and migraines, but not for the claim of permanent impairment. The decisions previously made by Comcare were set aside, and new decisions were substituted, with specific timelines provided for when the injuries were suffered. The matter concerning the claim for permanent impairment was remitted to Comcare for reconsideration. The court also noted that within 14 days of the decision, either party could apply for directions regarding costs, with the respondent to pay the applicant's costs if no such application was made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Dr Anderson also expressed the opinion that EMF in commercial and light aircraft would be expected to be considerably higher than would be experienced in an office environment. In his opinion Dr McDonald's claim to be able to tolerate conditions in aircraft is inconsistent with his claimed difficulties experienced in the workplace and in urban areas. Further he says that attempts by Dr McDonald to shield himself by the use of protective clothing will only be effective if he is completely enveloped by the material.LEGISLATIVE BACKGROUND Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:injury means:(a)a disease suffered by an employee … Disease is defined in section 5B. The section reads:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. In subsection 4(1) ailment is defined:ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). ISSUES FOR DETERMINATION The following issues arise for determination.(1)Has Dr McDonald suffered an injury being an aggravation of an electromagnetic hypersensitivity syndrome, in accordance with subsection 14(1) of the Act?(2)If so, when did he suffer the injury?(3)Has Dr McDonald suffered an injury being chronic adjustment disorder with depressed moods, in accordance with subsection 14(1) of the Act? (4)If so, when did he suffer the injury?(5)If Dr McDonald has suffered an injury, being chronic adjustment disorder, with depressed moods, has the injury resulted in a permanent impairment in accordance with subsection 24(1) of the Act?(6)Has Dr McDonald suffered an injury or injuries being migraines, in accordance with subsection 14(1) of the Act?(7)If so, when did he suffer the injury or injuries?REASONINGAs to the claim for aggravation of electromagnetic hypersensitivity syndromeIssue 1: Has Dr McDonald suffered an injury within the meaning of subsection 14(1) of the Act? In deciding this issue it is necessary to determine the following:(1)Has Dr McDonald suffered an ailment within the meaning of subsection 4(1) of the Act?(2)If so, has he suffered an aggravation of that ailment? (3)If so, was the aggravation of the ailment contributed to, to a significant degree, by Dr McDonald's employment by CSIRO? I have found Dr McDonald to be an honest witness. I am satisfied that he has accurately described the symptoms from which he suffers and that he has not exaggerated his symptoms. I am satisfied also that, by reason of the medical advice he has received over many years, he believes that he suffers from electromagnetic hypersensitivity syndrome. I am supported in this conclusion by the opinions of Dr Weissman and Dr Stevenson. Both reported that in assessing Dr McDonald they found him to be a credible historian.

Evidence

Evidence Before The Court

For the reasons which follow the decisions under review will be set aside. Decisions accepting the claims will be substituted except in the case of the claim for permanent impairment.EVIDENCE AND FINDINGS OF FACT Unless otherwise stated the following findings of fact are based on the evidence of Dr McDonald. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. I am satisfied of the facts found on the balance of probabilities. Dr McDonald was born in 1954. He commenced working for CSIRO in 1994 as a Senior Research Scientist. At his interview for the position he informed the Selection Panel that he suffered from sensitivity to electromagnetic frequencies, known as EMF. Although Dr McDonald had experienced symptoms of EMF sensitivity for many years his condition was not diagnosed until 1993. The diagnosis was made by Dr Cooper, his General Practitioner at the time. Dr McDonald was told that he was sensitive to EMF which is emitted by equipment such as computers, televisions, mobile telephones, microwave ovens, amplifiers, power lines and transformers. For some years prior to 1993 Dr McDonald had worked with a computer with an LCD screen and with a thermal printer without difficulty. Upon being diagnosed with the condition Dr McDonald followed the medical advice he was given and took steps to reduce his exposure to EMF, including moving to live in the country and limiting his exposure to television and other electronic devices. Dr McDonald noticed that his health improved when he made this move. When Dr McDonald commenced working for CSIRO it agreed to provide him with additional administrative support so that he was not required to do computer work. When he was promoted to a science-management position in 2003 he was provided with full-time administrative support. He retained the technical support already provided to him for his research. These measures enabled him to limit his EMF exposure at work. In 2005 Dr McDonald transferred from Hobart to Melbourne. In early September 2005 the Division in which Dr McDonald was working was re-structured and he returned to his previous position of Principal Research Scientist. His administrative support was withdrawn making it necessary that he make greater use of computers. For two weeks he experienced nausea, fatigue and very poor concentration. Dr McDonald again consulted Dr Cooper. On 30 September 2005 Dr Cooper wrote to the CSIRO recommending that Dr McDonald continue to receive administrative support to reduce his exposure to EMF.[5] Dr McDonald was then provided with part-time administrative support. He was provided with a Blackberry device which, in his belief, “evoked mild but tolerable symptoms.”[6] With this support in place he was able to work effectively.[5] Exhibit A32.[6] Exhibit A1, p.2. Between April and July 2006 Dr McDonald was required by his employer to trial working with various pieces of electronic equipment including the Blackberry, a PDA device, a desktop computer enclosed within a Faraday cage[7] and an electronic projector. The computer was only operated for short periods on several occasions in the presence of Mr Wilson, the Site Rehabilitation Claims and Case Manager who was supervising the trials. Dr McDonald became ill within minutes each time the computer was switched on. He experienced nausea and headaches and suffered severe migraine 2-12 hours later. He felt unwell for several days after each attack. His symptoms were worse than they had been before the trial commenced. [7] A Faraday cage is a device designed to contain electromagnetic radiation emitted by the computer.

Decision

Reasons for decision

On the basis of the evidence of Dr McDonald I find that he suffered the migraines at unspecified times between April and July 2006 (inclusive) and between March and May 2007 (inclusive). On the basis of his reports to his employer[61] I am satisfied that he suffered migraine on at least the following dates:·24 July 2006;·19-27 April 2007 (periodically);·10 May 2007;·25 June 2007.CONCLUSIONS[61] Exhibit A38.Application 2011/0031 The reviewable decision made by Comcare on 9 November 2010 (being reconsideration 23114453) will be set aside. In substitution for the decision set aside it will be decided that:(1)Comcare is liable to pay to Dr McDonald compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being an aggravation of a condition of nausea, disorientation and headaches;(2)the injury was suffered by him between April 2006 and May 2007.Application 2011/5355 The reviewable decision made by Comcare on 22 November 2011 (being reconsideration 25525982) will be set aside. In substitution for the decision set aside it will be decided that:(1)Comcare is liable to pay to Dr McDonald compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a chronic adjustment disorder with depressed moods;(2)the injury was suffered by him between 1 July 2010 and 31 December 2010. The reviewable decision made by Comcare on 22 November 2011 (being reconsideration 25673997) will be set aside. In substitution for the decision set aside it will be decided that as at the date of this decision Dr McDonald is not entitled to compensation in accordance with sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury being chronic adjustment disorder with depressed moods.Application 2012/2826 The reviewable decision made by Comcare on 22 June 2012 (being reconsideration 27176306) will be set aside. The matter will be remitted to Comcare for reconsideration in accordance with these reasons for decision.Applications 2011/0031, 2011/5355 and 2012/2826 Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the applicant.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.