Allen and Comcare
[2004] AATA 760
•20 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 760
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/35
GENERAL ADMINISTRATIVE DIVISION ) Re DEIRDRE ALLEN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President Don Muller Date20 July 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to reject a claim by Deirdre Allen for compensation for permanent impairment relating to breathing difficulties from inhaling paint fumes on 16 September 1998.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – impairment not permanent – whole person impairment less than 10% - decision affirmed
Safety Rehabilitation and Compensation Act 1988: ss24(7)
REASONS FOR DECISION
Deputy President Don Muller 1. Deirdre Allen, the Applicant, made a claim on 11 February 2002 for compensation for permanent impairment relating to breathing difficulties said to have arisen from inhaling paint fumes at her workplace in September 1998.
2. Ms. Allen’s claim was rejected on 6 March 2002 on the ground that her condition was not permanent in that it had not stabilised and all active treatment was not completed.
3. Upon reconsideration on 16 July 2002, the claim was rejected on the grounds that Ms. Allen’s condition had not become stabilised and permanent, she had not undertaken all rehabilitative treatment and that even if those factors had been satisfied, the degree of permanent impairment was less than 10% whole person impairment as provided for in the “Guide to the Assessment of the Degree of Permanent Impairment”. Consequently, there was no entitlement to a lump sum payment of compensation for permanent impairment.
4. Ms. Allen applied to this Tribunal on 10 September 2002 for a review of the reconsideration decision dated 16 July 2002.
5. At the hearing Ms. Allen represented herself and the Respondent was represented by Ms. Walker of Counsel.
6. The Tribunal heard oral evidence from Ms Allen, Gilbert Desmond Pike (her former work colleague), Dr David Meadows and Dr Peter Stevenson. In addition the Tribunal had before it the following documents :
(a)The documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975; exhibit 1;
(b)Dr Meadows’ reports dated 4 March 2003, 28 January 2003 and 8 January 2003; exhibit 2;
(c)Dr Meadows’ report dated 15 January 2004; exhibit 3;
(d)Dr Meadows’ report dated 19 January 2004; exhibit 4;
(e)Dr Meadows’ report dated 6 October 2004; exhibit 5 ;
(f)Dr Peter Stevenson’s report dated 18 March 2003; exhibit 6;
(g)Dr Peter Stevenson’s report dated 19 November 2003; exhibit 7
(h)Dr Fisher’s letter dated 19 May 2003 to Phillips Fox Lawyers; exhibit 8;
(i)Paint information provided by the building manager to Philips Fox dated 14 August 2003; exhibit 9;
(j)Paint information, Material Safety Data Sheet for Infosafe No. WNOK; exhibit 10 ;
(k)Part of the Applicant’s original incident report dated 17 September 1998, questions 15 through to 21, exhibit 11;
(l)Facsimile received by the Applicant dated 6 December 1999 from TCG Centre regarding the paint used by the contractor, Otis Elevator Building, exhibit 12; and
(m)Bundle of correspondence provided by the Respondent that includes correspondence from Dr. Fisher, Dr. Marks and Dr. Stevenson, exhibit 13.
7. Ms. Allen gave oral evidence to the Tribunal. Among other things, her evidence covered the following matters.
(a)She was trained as an architect and practised both in the United Kingdom and Australia for twenty years. She has not practised as an architect in five years.
(b)She was employed as an architect by Parks Australia North in 1998. Parks Australia North was located on the 7th Floor of the TCG Centre in Mitchell Street Darwin.
(c)The Parks Australia Office was an open office with high screens between the desks and Ms Allen sat underneath the air conditioner vent.
(d)On the morning of 16 September 1998 the building maintenance crew painted the lift well and the paint fumes travelled into the air conditioning vent. The fumes travelled into Ms Allen’s workplace and she and all of her fellow employees decided to leave the building because the fumes were so pungent. This was roughly at 9.00 am. Some of the other workers waited for some time before they too left the office.
(e)Ms Allen returned to her office at 10.45 am and stayed for approximately 10 to 15 minutes. The fumes were still affecting her and she then left the office for the day.
(f)She returned to work the following morning (17 September 1998). The fumes had dissipated by then but the smell of fresh paint was still noticeable. She could not cope with the smell and left work for the day after about 15 minutes.
(g)On the day after the incident she filed an “incident report” dated 17 September 1998. In the report she answered the following questions in the following manner:
“20. Describe the injury or illness, including the parts of the body that were affected.“
Tightness + Pain in Lungs + sinuses. Headache. Later at home as above plus Pain in left kidney persisting currently 17/8/98.
21. Describe how the incident happened.
1. The office a/c was off when we arrived.
2. It was turned on at 8.30 am – 9.00am
3. Shortly after a smell came through (suspected to be paint fumes)
4. It was unpleasant so I went out to organise other work outside the office.
5. I came back at 10.45 am and developed the symptoms listed at 20
6. I could stand it no longer and left at 12.00 noon.
7. At home I felt worse, but did not feel able to drive a long distance to visit an after hours doctor.
8. Reported for work on 17/9/98 smell still in office. Have to leave and also see doctor.”
(h)On 17 September 1998, she went to see Dr. Anne-Marie Guthrie who was an assistant to Dr. David Meadows. (In a report dated 8 January 2002, Dr. Meadows stated: “This lady was seen on 17/9/98 with symptoms of running nose, itchy nose, eyes watery, cough and ‘cold’ feeling in lungs and malaise after being in freshly painted office. Chest was clear and PEF was 410. Impression was of a reaction to paint fumes and a medical certificate was issued for 17-18/9/98 to avoid any further exposure to the fumes.”
(i)She took three days off work, which included a weekend and returned to work on Monday 21 September 1998.
(j)She initially forgot about the paint episode but about ten days later she experienced pain in her rib cage. She thought that she might have a heart problem but she delayed going to a doctor because her partner was away.
(k)When her partner returned in January 1999, she went to see Dr. Meadows on 25 January 1999. She complained of a constricted feeling in her chest with occasional tingling in her lips. She was referred to a heart specialist which revealed that she had no cardiac problem.
(l)She again went to Dr. Meadows on 17 May 1999, complaining of a “tight wheezy chest”. (Dr. Meadows thought the intermittent episodes resembled asthma attacks and so he referred her to a specialist, Dr. Dale Fisher. Dr. Fisher saw Ms. Allen in June 1999 and “felt that she had asthma”. Dr. Fisher’s tests indicated either broncho spasm or asthma. Ms. Allan was prescribed Bicloforte and Ventolin inhaler.)
(m)Ms. Allen was reviewed on 15 March 2000 and referred back to Dr. Fisher. (Dr. Fisher did some spirometry tests which were noted to be unremarkable – but he remained convinced that she had asthma – he diagnosed her as having “occupationally acquired asthma”).
(n)Despite taking medication for asthma, Ms. Allen did not improve. She was then referred to an asthma specialist, Dr. Marks. (Dr. Marks made a diagnosis of asthma and initially prescribed Salbutamol and Budesonide, which were of little help, and ultimately she was commenced on the drug Montelukast, which improved her symptoms substantially).
(o)She has now adapted to a “lower level of activity” than she indulged in before the paint incident. She described her partner as an “action man” who loves camping and biking. She now has difficulty in keeping up with him.
(p)She believes that the inhalation of paint fumes has permanently impaired her ability to have an active sex life and complete day to day activities such as housework and gardening.
(q)She has continued on in the same employment doing the same work as before the incident.
8. Ms. Allen claimed for rehabilitation and compensation on 18 May 1999, for “inflammation respiratory tract, irritation to eyes, lungs, nose due to paint fumes”.
9. The Respondent accepted liability for “allergic urticaria” on 29 February 2000 and a further determination dated 10 December 2001 concluded that the Applicant’s condition was “asthma, unspecified”.
10. In support of her current claim, Ms. Allen completed a Non-Economic Loss Questionnaire on 11 February 2002. She described her pain as:
“Intermittent attacks of pain. Not easily tolerated, but short lived. Responding fairly readily to treatment.”
She also described how her injuries have affected her:
“Embarrassment/Emotional Turmoil/Sadness
Due to inactivity have had 15 kg weight gain in 3 years since this has happened. Used to be very slim. Partner of 18 years not happy with my appearance or fitness level neither am I. Once was healthy now feel I have sick syndrome. Having to regularly visit doctor to get prescriptions and fill in forms to satisfy Comcare and keep up paperwork to keep claiming money back for the rest of my life. Being unable to do activities I once did.” (T25)
11. Mr. Gilbert Desmond Pike, a fellow employee at Parks Australia North gave evidence about the incident on 16 September 1998. The following points are a summary of his evidence:
(a)He is now retired but he was previously employed by Environment Australia, and before that he was a Commonwealth Public Servant.
(b)During the time of the painting episode he had been the elected work place delegate.
(c)He thought that the painting was being done in the toilet or in the hallway about 10 metres from the entrance to the office area.
(d)He smelt the paint fumes and asked someone to find out where they were coming from. He was told that painters were painting the corridor.
(e)He attempted to contact a Northern Territory work health member by telephone but was unable to get anyone to come on site.
(f)He recalls that Ms. Allen left the office fairly early in the day. She left soon after they first smelt the fumes. The others stayed until lunch time. He had asked all of the workers (six people) to stay. They were all complaining about the smell.
(g)He went out of the building for lunch. He had not been feeling well before lunch. He felt much better after he had been outside the building for a short time.
(h)He returned from lunch and attempted to get someone in higher authority to make a decision as to whether the workers would have to stay on the job, or go home. He was eventually told to make the decision himself. He decided to go home at 3.00pm. Some of the other workers stayed on the job – some went home.
(i)He went back the following day and the fumes had dispersed by then.
(j)He has had a long association with various kinds of paints. He thought the paint smell was like that of an acrylic lacquer but stronger than he was used to. He thought that it was not acetone, not toluene and not turpentine.
(k)He has not had any ill effects from the paint fumes.
12. Ms. Allen told the Tribunal that she had made enquiries of various paint manufacturers about the types of paints they produce. She has also contacted painting contractors about what types of paints they use. She bought some cans of paint to see if she could produce a paint with the smell of the one she was exposed to on 16 September 1998. She has been unable to do so.
13. Dr. Meadows, General Practitioner, gave evidence that he has been Ms. Allen’s general practitioner since 1991. He has seen her on a fairly regular basis over the intervening years. He said that she had never had a problem with asthma before the paint incident. He said that he has had trouble with the diagnosis because it did not appear to him to be the “normal type of occupational asthma”. He thought that Ms. Allen may have RADS (reactive airways dysfunction syndrome). He believes that her problem is not severe – no physical signs of damage to airways. Ms. Allen has had normal functions in relation to her airways all along – better than normal on occasions – but reduced function on other occasions.
14. Dr. Peter Stevenson, Consultant Physician, examined Ms. Allen on 12 March 2003. He provided reports dated 18 March 2003 and 19 November 2003. He also gave oral evidence. Dr. Stevenson conducted lung function testing and he also reviewed the results that had been obtained by Dr. Meadows, Dr. Parkes and Dr. Fisher. Dr. Stevenson’s report of 18 March 2003 contains the following:
“Physically Ms Allen appears to suffer from a lung condition, which is a little difficult to specify. Clinically there is minimal evidence of asthma. Her lung function has varied between complete normality to evidence of a restrictive defect, and occasional evidence of paroxysmal obstruction consistent with bronchial asthma.
I must emphatically agree with Dr Marks and Dr Fisher, as quoted above, that the exposure in the workplace was insufficient to cause either a true reactive airways dysfunction syndrome or occupational asthma. I would respectfully disagree with Dr Parkes on that issue.
There seem to have been fumes in the air conditioning. The nature and concentration is difficult to specify, but this was not an overwhelming toxicity. It is unclear whether epoxy resins or diisocyanates or both were involved. Both are potential causes of occupational asthma. I have seen several cases of occupational asthma due to each. Every case was due to substantial chronic exposure without adequate respiratory protection, and that is the thrust of the literature. Exposure diluted in air conditioning clearly is an inadequate cause.
The evidence of asthma is borderline, but the evidence of occupational asthma is inadequate.
Clearly also Ms Allen is demonstrating considerable anxiety and probably some depression. Some of this may be the reaction to the compensation process, but some of it seems clearly primary. She described a remarkable amount of anxiety from very early on. I think I commented at one stage in the course of the interview recurrently to be talking about death, and she agreed. I could not avoid the conclusion that there seemed much more emotional reaction to the perception of a toxin in the air than actual physiological reaction to toxin in the airways.
Ms Allen tells me that she is coping with her employment adequately. She has had some respiratory difficulties, but her work is sedentary. Her respiratory troubles clearly involve non- work related factors.
One (explanation) which I have seen in several previous occasions and which is now well recognised in the literature, is bronchial asthma associated with gastroesophageal reflux disorder (GORD). Actual symptoms of oesophageal reflux may be minimal. The condition is important and not uncommon and often produces asthmatic like syndromes which are odd and variable. It is diagnosable on 24-hour oesophageal ph monitoring. It is treatable with long-term anti-reflux agents or surgery. If I were managing Ms Allen I would certainly have her investigated for that. Ms Allen struck me as clearly focused towards recovery rather than occupation of the sick role and if this is a factor, it would well be a treatable cause which would improve her situation.”
15. In his oral evidence Dr. Stevenson was adamant that the exposure to paint fumes described by Ms. Allen was not sufficient to be described as chronic exposure. He was also clear on the paint that she does not have RADS because RADS is caused by an acute toxic exposure such that the patient needs acute care on the same day – being too sick to measure lung function – and it usually clears up after 12 to 18 months. Ms. Allen does not have RADS. Dr. Stevenson was equally adamant that Ms. Allen does not have asthma.
16. Dr. Stevenson assessed Ms. Allen as having a nil percentage of whole person impairment according to the official Guide.
17. The only other medical witness to have made an assessment of Ms. Allen’s whole person permanent impairment was Dr. Meadows. He used Table 2.1 and came to an assessment of 50%. This would represent an extremely serious and disabling whole person impairment. It is clearly incorrect.
18. I accept the evidence of Dr. Stevenson, who is a specialist, in preference to the evidence of Dr. Meadows. I find that Deirdre Allen does not have RADS, she does not have occupational asthma, and whatever problems she does have with her respiration amount to a nil whole person permanent impairment.
19. Under subsection 24(7) of the Safety Rehabilitation and Compensation Act 1988, an amount of compensation is not payable to a person under that Act if the degree of permanent impairment is less than 10%.
“s.24(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%.
an amount of compensation is not payable to the employee under this section.”
20. The decision to reject an application by Deirdre Allen for compensation for permanent impairment in relation to breathing difficulties is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 21 April 2004
Date of Decision 20 July 2004
Applicant Ms. Allen, herself
Counsel for the Respondent Ms. Walker
Solicitor for the Respondent Phillips Fox
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