Amirah Aboutaleb and Comcare

[2015] AATA 207

[2015] AATA  207

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/5061
Re	Amirah Aboutaleb
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member Dr R. Blakley, Member
Date	2 April 2015
Place	Melbourne

The Tribunal affirms the decision under review.

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G. D. Friedman, Senior Member

CATCHWORDS

COMPENSATION – Australian Taxation Office – physical symptoms – Multiple Chemical Sensitivity – whether an ailment

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5B, 14(1)

CASES

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

G. D. Friedman, Senior Member

Dr R. Blakley, Member

2 April 2015

1. Amirah Aboutaleb joined the Australian Taxation Office (ATO) in 1990 after leaving school.  She spent 22 years with the ATO and one year with the Department of Health and Family Services.  On 14 May 2012 Ms Aboutaleb lodged a claim for compensation for allergy arising from exposure to pollutants in her work environment.  The respondent refused the claim for aggravation of allergy, unspecified, not classified elsewhere on the basis that her condition was not significantly contributed to by her employment.  Ms Aboutaleb seeks review of the decision and claims that she suffers from Multiple Chemical Sensitivity (MCS) that has been triggered by exposure to chemicals in her workplace. 

LEGISLATIVE BACKGROUND

1. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988  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).

7 Provisions relating to diseases

…

(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

ISSUES

1. The issues before the Tribunal are:

·           Does Ms Aboutaleb have an injury for the purposes of the SRC Act? This involves consideration of whether she has a disease as defined in the SRC Act, in particular:

oDoes she suffer from an ailment?  If so:

oWas the ailment contributed to, to a significant degree, by her employment with the ATO?  If so:

·           Does the injury result in impairment or incapacity to work? 

DOES MS ABOUTALEB SUFFER FROM AN AILMENT?

1. Ms Aboutaleb told the Tribunal that she joined the ATO in Melbourne in October 1990 on a traineeship after completing Year 11 and was in good health.  After one year she moved to Adelaide and worked as a Customer Service Officer with the Child Support Agency (CSA), which was part of the ATO.  In about 1993 she returned to Melbourne at the Box Hill office of the CSA, and in about 1995 moved to the Moonee Ponds office of the ATO.  She moved to Brisbane in 1996, followed by a position in Canberra with the Department of Health and Family Services the same year.  She remained in this position until about 1999 when she returned to Brisbane.  In about 2000 she transferred to Melbourne when her then husband took up a position there, and she worked in the Moonee Ponds office of the ATO.

1. When the CSA separated from the ATO Ms Aboutaleb moved to the Melbourne Central office of the CSA in about 2007.  In about 2008 she was promoted to Executive Level 1 (EL1) in the Chermside office of the ATO in Brisbane.  In 2011 she moved to Sydney and worked at the Hurstville office of the ATO, where she remained until she lodged her claim for compensation in May 2012 and ceased work in September 2012.  She moved to Mildura, Victoria and received a redundancy payment in April 2013.  She then moved to Hamilton, New Zealand where she worked part-time in a call centre operated by an energy company.  In August 2014 she returned to Australia and lives with her five children in Point Cook, Melbourne.  

1. Ms Aboutaleb stated that her MCS began in 2005 when she was working at the Moonee Ponds office of the ATO.  She explained that she noticed redness on her face and elsewhere, particularly in closed meeting rooms, and said that the building had been refurbished.  In about 2007 she suffered irritation and an adverse reaction to an office fit-out at Melbourne Central. She said that she sought medical treatment on a regular basis for symptoms such as stomach bloating and pain, pelvic pain and inflammation, skin irritation and swelling all over her body, as well as unknown allergies.  In January 2008 she lodged an incident report with her supervisor following the adverse reaction to the new workstation which she believed was fitted with a laminate material.

1. She said that apart from suspected gall bladder problems there were no major medical problems when she moved to the Chermside office of the ATO.  In March/April 2009 she travelled to Egypt, and during her absence a new workstation with wood-like laminate was installed.  She said that when she returned to work she became ill with a variety of unexplained symptoms which she said were not related to her visit to Egypt.

1. Ms Aboutaleb emphasised that throughout 2010 she undertook a large number of medical tests for conditions including allergies, auto-immune issues and infectious diseases, but no diagnosis was made.  She said that in April 2010 she lodged an incident report for a suspected allergy to airborne pollutants, particularly dust, from being moved close to a highly-used printer in the Chermside office.  In July 2010 she lodged a further incident report concerning exposure to environmental pollutants in the office, despite being moved away from the printer, which led to her feeling tired and unwell.  At the time she attributed this to stress and a run-down immune system.

1. In relation to her move to Hurstville in 2011, Ms Aboutaleb stated that she developed severe pain in her arms, elbows and wrists, and underwent surgery for right carpal tunnel in August 2011 and left carpal tunnel in October 2011.  She said that when she returned to work in December 2011 she suffered increasingly severe swelling and nerve pain which affected her work performance.  Ms Aboutaleb described how she started questioning the cause of her symptoms and in April/May 2012 Dr M Hassim, her general practitioner, arranged a number of blood tests which she said showed a sensitivity to histamine that is normally caused by a weakened immune system; adrenal fatigue from fighting illness too long and over-exposure to things to which the body is sensitive; and a chemical enzyme problem that can be caused by MCS.  Ms Aboutaleb told the Tribunal that Dr Hassim was concerned that she may be suffering from MCS, and referred her to Dr A Broadfoot, consultant physician in immunology and allergy.

1. Ms Aboutaleb said that she now believes that she has MCS, which she described as …a diagnostic label for people who suffer multi-system illnesses as a result of contact with, or proximity to, a variety of airborne agents and other substances.  She said that MCS was identified in a 1989 multidisciplinary survey of 89 clinicians and researchers, and was modified in 1999.  Ms Aboutaleb produced a large number of articles about MCS from an internet search, and said that MCS occurs in four stages, starting from mild reaction to a small number of items, and, depending on the person’s physical health and the environment in which the person lives, gradually progressing to a severe reaction to almost everything.

1. In respect of MCS Ms Aboutaleb stated that she suffers the full range of symptoms which at times are debilitating and are brought about by reactions to various chemicals.  She noted that the reaction to cleaning products and room deodorizers is different from the reaction to office floor space.  She stated that, although MCS started in 2005, she first sought treatment in May 2012.  She explained that after the office was refurbished she developed redness over her body when she attended closed meeting rooms within the building.  She said that at the Melbourne Central office in 2007 she experienced irritation and reaction to an office refurbishment.

1. In a summary of medical issues prepared by Ms Aboutaleb in August 2012, she stated that she has suffered significant illnesses over a long period and that …none of the dozens of doctors or specialists has been able to explain any of my illnesses until recently…and then it became obvious that there is a very direct connection with my attendance at work and my illnesses flaring up.  She said that she has been tested for almost every known infection, parasite, or disease, with nothing identified other than occasional unexplained abnormal markers and nutritional deficiencies which are known to be caused by MCS.  

1. Ms Aboutaleb identified known triggers which include buildings occupied by the ATO, closed air-conditioned rooms, large retail stores that sell office products, shoe shops, perfume, smoke, paint, cleaning products, desk surfaces, doctors’ surgeries, hospitals and libraries.  Among the many symptoms are joint pain, muscle ache, sensitivity to heat, swelling all over her body, skin irritation, gastrointestinal problems and high blood pressure.  She produced statements by several work colleagues who supported her evidence that she had suffered ill-effects from working in certain buildings occupied by the ATO, and said that the assessment in December 2012 by a psychiatrist to whom she was referred by the ATO revealed no psychiatric issues.

1. Ms Aboutaleb told the Tribunal that she first sought treatment for aggravation of her disease on 24 May 2012, which was also the first occurrence when the disease resulted in an incapacity for work.  She described the impairment as high blood pressure and heart rate with chest pain and general feeling of being unwell.  She said that the aggravation was a systemic chemical reaction causing her blood pressure and heart rate to rise, and the reaction to airborne chemicals in the ATO building occurred about 30 minutes after commencing work.  Ms Aboutaleb maintained that the aggravation did not occur outside the office environment, and she would not have been incapacitated or impaired if she had not been inside the ATO building on that day.  She emphasised that the aggravation was caused entirely by reactions to office chemicals that have become progressively worse, and the reaction to office chemicals is the only known cause of her blood pressure rising dangerously. 

1. Ms Aboutaleb referred to her significant illnesses over a long period and stated that no doctor has been able to explain her condition until recently when she has been away from the office environment, demonstrating a close connection between a worsening of her illnesses and her attendance at work.  She concluded that issues with her workstation exacerbated the problem of sick building syndrome but were not the sole cause.  She stated that her immune and adrenal system became exhausted from continued exposure to chemicals at work.  She told the Tribunal that in May 2012 she was ill and desperate and felt that she could no longer work.  She said that she lodged her claim for compensation on 14 May 2012 because her condition deteriorated rapidly to the point where attending work was a danger to her life.  In her application for compensation she estimated the date of onset of her injury to be 1 May 2009, which was the date she returned from a holiday (where she had been healthy) and became ill after returning to work at her newly-installed workstation.  She asked for a redundancy which was finalised in April 2013.  

1. Ms Aboutaleb stated that she moved to Hamilton, New Zealand in about May 2013 after receiving her redundancy payout from the ATO because she was advised that a rural climate would be best for her medical condition.  She said that she worked part-time in a call centre for an energy provider, and the office building was less damaging to her health than previous ATO offices, although she said that perfume worn by some staff caused her to fall asleep at work.  She told the Tribunal that she re-located to Australia in August 2014 because of smoke from fireplaces in Hamilton, which had caused redness in her skin and respiratory problems such as wheezing.  She said that for several months she had difficulty in finding suitable accommodation for herself and her children, and that living in Mildura with her parents had not been possible because of the hot climate and health issues arising from the use of insecticides on fruit trees.

1. In respect of education qualifications, Ms Aboutaleb explained that she has completed several online courses since ceasing work with the ATO.  She said that she had hoped to commence a Master of Business Administration degree when she returned to Australia, but this has not been possible because of the accommodation issues, inadequate internet availability in her rental property, and the time taken to settle the children into a new neighbourhood and school.  She has applied to her local council for assistance to undertake a leadership program, with a view to working for the local community.   Ms Aboutaleb stated that she would prefer to resume working but has been unable to find suitable employment.  She told the Tribunal that she is happy with who she is and is looking forward to her husband’s arrival in Australia when he completes his requirements for registration as a medical practitioner. 

1. Under cross-examination Ms Aboutaleb agreed that MCS is a controversial issue, and claimed that MCS is not well-known by most doctors.  She said that despite her health problems with some electronic devices she is able to use a laptop computer at home.  She maintained that the ATO should have permitted her to work from home after she became unwell as a result of issues with certain ATO facilities.  She said that her husband is working as a general practitioner in Oman and was unsuccessful in his latest attempt to seek registration in Australia.     

1. Dr C Little, allergist and immunologist, stated in a report dated 28 April 2014 that Ms Aboutaleb requested an assessment, which took place on 6 June 2013 and then on 25 and 26 July 2013.  He took a history of her being unwell for about 12 years, but particularly in the 12-month period before he first saw her.  Specific symptoms that she reported included shortness of breath, cough, hoarse voice and facial pain.  She also mentioned soreness and itching of the throat and blocked ears, plus tiredness, dizziness and aches and pains in the limbs, shoulders and neck, and unsettled sleep pattern.  The history included diabetes, surgery for carpal tunnel and a fractured skull.

1. Dr Little found Ms Aboutaleb to be overweight and observed that rhinitis (inflammation of the membranes of the nose) was evident.  He concluded that Ms Aboutaleb’s history raised the possibility of sensitisation to chemicals, involving adverse reactions at low levels which are encountered in everyday life.  He added that the history is consistent with MCS, commonly known as idiopathic environmental intolerance.  He stated:

…The basis for this disorder is not well understood, but the best studies implicate neurogenic inflammation, possibly involving immune mechanisms.  Indeed a recent paper provided some documentation of immune reactivity in MCS.  There are no definitive diagnostic tests, the diagnosis depending on history, including observations as to the provocation of symptoms with chemical exposure.  Testing with extracts may provide useful information, although clearly this relies on the patient’s subjective report…

1. He said that in this case adverse reaction to exposure to chemicals such as perfume, solvents and essential oils support a diagnosis of MCS.  Dr Little explained that management of the condition essentially is by avoidance of  chemicals that can induce symptoms. He also expressed the view that management of other factors, such as stress, may be helpful, although he added that Ms Aboutaleb had features of metabolic syndrome, of which the symptoms include being overweight and having elevated blood sugar and insulin. 

1. Dr Little was not present at the hearing to give oral evidence or be cross-examined.  Ms Aboutaleb explained that although she was told several times during the hearing that commenced on 29 April 2014 and was adjourned until 19 March 2015 that she had the responsibility of ensuring Dr Little’s availability, she had been advised by an unidentified officer of the Tribunal some time before the resumed hearing of 19 March 2015 that arrangements would be made by the Tribunal for Dr Little to be present.  Under cross-examination she agreed that the delay in scheduling the resumed hearing was to accommodate her re-location to Australia. She conceded that she had no written record of the alleged conversation with the Tribunal staff member or confirmation by the Tribunal, and she agreed that she had not informed the respondent of any purported arrangements.  She agreed further that she had spoken to Dr Little in about September 2014 but had not mentioned his attendance at the resumed hearing.

1. Several days after the hearing  Ms Aboutaleb  informed the Tribunal in writing that the Tribunal officer to whom she had spoken had indicated that the respondent’s counsel had issued the summons on Dr Little, so that she had no responsibility for arranging his attendance.  She stated that in September 2014 she did not discuss with Dr Little his attendance at the resumed hearing because he was more concerned with her well-being and homelessness, and that previously he had told her that his clinic manager arranged his court attendances.   

1. Dr Broadfoot stated in a report dated 20 August 2012 that Ms Aboutaleb was referred to him by Dr Hassim for allergy assessment and the first consultation occurred on 9 May 2012.  He stated that Ms Aboutaleb presented with symptoms of swelling all over her body, a burning sensation and itchy rash associated with episodes of flushing, general malaise, arthralgias, myalgias and fatigue.  She also reported generalised joint pain, sensitivity to cold weather, hoarse voice, dark circles under her eyes, runny nose and sinus congestion.  Dr Broadfoot diagnosed MCS and acknowledged that the condition is controversial and based on a person’s clinical history, with patients developing multiple symptoms which they attribute to environmental agents.  He stated that Ms Aboutaleb’s MCS is an aggravation of long-standing intolerances that have been present since 2008 and that significant contributing factors include exposure to multiple environmental agents.  He said:

Certainly work environments can contribute to this but many other environments in particular areas with strong odours can also contribute to her condition.  These include exposure to agents such as perfumes, cleaning products, petroleum and print.  Currently her symptoms are likely to occur at work, at home, and will only improve if she is in an area that she would describe as low pollution.  

1. Dr Broadfoot also stated that Ms Aboutaleb suffers from allergic rhinitis and has dust mite allergy, although these would not account for her constellation of symptoms.  He concluded that management of idiopathic environment intolerance is very difficult.  He said he would recommend a psychological assessment and possibly a psychiatric assessment, and suggested that Ms Aboutaleb may need to move to a rural area with fewer chemicals. 

1. Dr M Hassim stated in a report dated 23 August 2012 that Ms Aboutaleb has been diagnosed with MCS, which is a non-immunologic mechanism that is diagnosed by eliminating all other possibilities based on a person’s presenting symptoms and is an occupational condition caused by long-term repetitive exposure to a particular chemical or group of chemicals.  He said that blood tests and allergy tests have confirmed that her illness (which includes symptoms such as inflammation, pain and swelling, high blood pressure, shortness of breath, flushing on exposed skin, inflammation and swelling of nasal, sinus and respiratory tract, bloated stomach and irritated eyes) and reaction to her environment are not the consequence of an allergy.  He said that the condition had been present for a number of years but diagnosed only recently, and that she first had sought treatment from him on 3 June 2011.

1. Dr Hassim stated that MCS has been accepted as a recognisable disease by the Australian Government and is a disability for the purposes of the Disability Discrimination Act 1992.  It has been recommended for inclusion in the International Classification of Diseases that is due to be finalised in 2015.     

1. Dr J Silver, consultant occupational physician, stated in a report dated 12 June 2013 that he was provided with a large amount of reference material by the respondent’s solicitors.  He took a history of sinus congestion and minor skin irritation and asthma for many years, with symptoms worsening over the past 10 or 12 years.  He said that Ms Aboutaleb told him she has come to react to a variety of chemicals, but she felt that, over the years, she had coped well with stress and was, in general, happy and productive at work.

1. Dr Silver concluded that Ms Aboutaleb’s presentation and behaviour were consistent with a diagnosis of …functional somatic syndrome, specifically chronic fatigue syndrome and the so-called multiple chemical sensitivity, both of which are, as are the functional somatic syndromes in general, manifestations of psychological/emotional distress in terms of diffuse physical symptoms.  He said that there was no pathological basis for the functional somatic syndrome, and Ms Aboutaleb has no physical impairment or disability associated with her multitude of symptoms, many of which have been taken at face value by practitioners.  As such, her condition is psychologically, emotionally and behaviourally-based and she is not incapacitated, other than by her own assertion that she cannot tolerate a variety of situations.  He emphasised that a pathological diagnosis requires a positive diagnosis rather than a diagnosis by exclusion.

1. In oral evidence Dr Silver stated that he has been a practising medical practitioner for more than 30 years and followed his usual practice for a medico-legal assessment.  He said that he obtained Ms Aboutaleb’s consent for the assessment to be recorded by him, and initially Ms Aboutaleb was pleasant and co-operative.  However when Ms Aboutaleb was asked to describe her reaction to certain chemicals she took offence at the questions and left the consultation abruptly before a physical examination could take place.  This followed Dr Silver’s request for Ms Aboutaleb’s support person to leave the consultation when that person was seen to be using her mobile telephone, which was contrary to the condition imposed by Dr Silver for the attendance of a support person.      

1. In a written submission Ms Aboutaleb disagreed with Dr Silver’s conclusions and told the Tribunal that persons suffering from MCS do not have a typical allergy immune system response in their blood test results, which is how it may be determined that the person has a sensitivity or intolerance rather than an allergy.  She disagreed that functional somatic syndromes have no pathological basis and stated that she believed that Dr Silver’s knowledge of MCS was insufficient for him to make a judgement about the issue.  She said that she felt that she could not continue the consultation because she found Dr Silver’s behaviour to be inappropriate and he was taking her comments out of context and mocking her.  She also disagreed with Dr Silver’s action in excluding her support person, but conceded in cross-examination that the support person had been sending text messages to her (despite being present in the same room as  Ms Aboutaleb) advising her not to answer Dr Silver’s questions.     

1. Dr T Anderson, specialist occupational physician, stated in a report dated 22 August 2012 that he took a history of elevated blood pressure, a burning sensation and flushed face, sleep apnoea, electro-magnetic sensitivity and intolerance of certain chemicals.  He noted multiple clinical assessments, none of which has identified any significant clinical condition that would account for her symptoms.  He was unable to describe a specific clinical diagnosis other than labile (or fluctuating) blood pressure.  In respect of MCS, Dr Anderson said that he was not persuaded that this is a reasonable or realistic diagnosis in modern mainstream medicine, and he did not agree with Dr Broadfoot’s diagnosis.  He stated that there may be the existence of intolerance to some localised features but he could find no convincing evidence that this was specifically outside the reasonably normal range of human experience.  Dr Anderson suspected that there was likely to be a certain amount of psychiatric and/or psychological magnification of her circumstances, and her condition was subjectively driven. 

1. In a written submission Ms Aboutaleb disagreed with Dr Anderson’s conclusions and told the Tribunal that Dr Anderson does not have expertise in the field of MCS and that the conclusions by Dr Hassim and Dr Broadfoot were more credible.

1. Ms L Burrows, Team Leader, ATO Hurstville, New South Wales, stated that Ms Aboutaleb commenced at Hurstville on 17 January 2011 after re-locating from Queensland.  She noted that Ms Aboutaleb was on approved leave in respect of carpal tunnel conditions from 22 June 2011 to 11 December 2011.  On 9 May 2012 Ms Aboutaleb consulted an allergy specialist and her general practitioner certified that she was unable to work on 10 and 11 May 2012 because of severe allergic reaction to some allergen at work.  On 11 May 2012 the general practitioner issued a further certificate of inability to work until 23 May 2012 and stated: From the history given to me by Amirah it appears that the environment and type of work she does is not conducive to her health. 

Consideration

1. In Comcare v Mooi (1996) 69 FCR 439 Drummond J stated at 443 that the use of the word ailment shows a legislative intention to cover the whole range of physical and mental illnesses from major to minor ones.  He said a claim should not be rejected simply because the employee's condition cannot be identified as a recognised medical condition. However at 444 Drummond J added that it is:

...essential for...a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.

1. Therefore it is necessary for Ms Aboutaleb to demonstrate that her condition is outside the boundaries of normal human functioning and behaviour.  Although Dr Broadfoot, a consultant physician in immunology and allergy, diagnosed Ms Aboutaleb as suffering from MCS, he acknowledged that it is a controversial issue for which diagnosis is based on a person’s clinical history, and that some mainstream medical practitioners do not recognise its existence as a medical condition.  He recommended that Ms Aboutaleb undergo a psychological assessment and possibly a psychiatric assessment.  Dr Hassim also diagnosed MCS and agreed that the diagnosis was made by eliminating all other possibilities based on Ms Aboutaleb’s presenting symptoms caused by long-term exposure to a particular chemical or a group of chemicals.  Dr Little, an allergist and immunologist, acknowledged that MCS is not well understood and agreed there are no diagnostic tests.  He concluded that Ms Aboutaleb’s history is consistent with MCS, but noted that her history raised the possibility of sensitisation to chemicals.  

1. Dr Anderson was unable to make a clinical diagnosis that would account for her symptoms, and Dr Silver concluded that her condition was psychologically, emotionally and behaviourally-based and not incapacitating.

1. The Tribunal accepts that no diagnostic test is available for MCS and that the issue is controversial.  The Tribunal also accepts that during the past 10 to 12 years Ms Aboutaleb has had an adverse reaction to certain chemicals and pollutants in a variety of environments and that at times she has experienced symptoms including flushed face, skin irritation and inflammation, elevated blood pressure and fatigue.

1. The Tribunal accepts the evidence from Dr Anderson that a clinical diagnosis requires more than a diagnosis by exclusion, and that there may be the existence of intolerance to some localised features but there is no convincing evidence that this is specifically outside the reasonably normal range of human experience.

1. The Tribunal places little weight on the report from Dr Little.  Although Ms Aboutaleb (who had referred herself to him) explained to the Tribunal that she believed she did not have the responsibility of ensuring his attendance at the hearing to give evidence and be cross-examined, she was made aware on several occasions that Dr Little was required for cross-examination, and the Tribunal accommodated her situation regarding availability.  She was given ample time to arrange for his attendance.  When she saw him in September 2014 she should have confirmed his attendance with him or his practice manager.

1. In any event Dr Little assessed Ms Aboutaleb as having a history that raised the possibility of sensitisation to chemicals encountered in everyday life, rather than a probability.  He did not describe his expertise in the field of MCS or the research on which he relied to reach his conclusions about the existence of MCS.  He also raised the issue that Ms Aboutaleb had features of metabolic syndrome. 

1. The Tribunal prefers the evidence from Dr Silver, an experienced occupational physician, to that of Dr Hassim, a general practitioner.  The Tribunal accepts his version of the assessment at which Ms Aboutaleb agreed to the procedures to be followed and signed the standard documents acknowledging that it was a medico-legal consultation.  The Tribunal finds that Dr Silver’s demeanour and actions were not inappropriate, and does not accept Ms Aboutaleb’s assertions that his behaviour justified her decision to leave the assessment abruptly when she objected to reasonable questions about her reaction to various chemical and physical environments, and before a physical examination could occur.

1. The Tribunal accepts Dr Silver’s evidence that Ms Aboutaleb’s presentation and behaviour were consistent with a diagnosis of functional somatic syndrome, or a syndrome that has no organic explanation, being a manifestation of psychological or emotional distress associated with a variety of physical symptoms.  As a medical practitioner of more than 30 years’ experience, Dr Silver is well-qualified to reach an informed conclusion about MCS and her individual situation, in preference to Ms Aboutaleb’s conclusions from her research about self-reported symptoms using the internet.  The Tribunal accepts Dr Silver’s conclusion that a pathological diagnosis requires a positive diagnosis rather than a diagnosis by exclusion and that there is little support for MCS in the wider medical community, although it may be a part of somatic functional syndrome, together with chronic fatigue syndrome.

1. The Tribunal also accepts Dr Silver’s conclusion that Ms Aboutaleb has no physical impairment or disability associated with her multitude of symptoms, and is not incapacitated other than by her own assertions.  This is consistent with Ms Aboutaleb’s own evidence that she is fit for employment and wants to work.  In 2014 she worked 30 hours per week in a call centre, which may contain a number of chemicals to which she had previously been exposed during her 22-year employment with the ATO; she has completed a number of online courses in the past few years despite her reservations about exposure to chemicals in equipment such as computers; she re-located to Australia to promote her employment prospects by seeking to undertake a Master of Business Administration degree; and she has applied to undertake a leadership program which would lead to possible employment in her local community.  She described herself as a single mother despite her marriage in 2011 and appears to be conducting her household efficiently, including the care of five children.

1. The Tribunal concludes that, despite her past medical difficulties, Ms Aboutaleb is managing her situation relatively well and is not incapacitated from work, as she still has the ability and desire to further her studies and to seek employment.  In all the circumstances the Tribunal finds that Ms Aboutaleb is not in a condition that is outside the boundaries of normal mental functioning and behaviour.  Therefore Ms Aboutaleb does not suffer an ailment as defined in the SRC Act, and she does not satisfy the requirements of an injury.  Consequently she cannot succeed in her application and there is no need for the Tribunal to consider any contribution to her condition by her employment with the ATO.  

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member, Dr R. Blakley, Member

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Associate

Dated 2 April 2015

Dates of hearing	29 and 30 April 2014, 1 May 2014, 19 March 2015
Applicant	In person
Counsel for the Respondent	Mr J Wallace
Solicitors for the Respondent	Sparke Helmore