Benussi and Comcare (Compensation)

[2016] AATA 354

Benussi and Comcare (Compensation) [2016] AATA 354 (30 May 2016)

Division	GENERAL DIVISION
File Number	2015/0312
Re	Daniela Benussi
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey Dr Ion Alexander, Member
Date	30 May 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

Catchwords

COMPENSATION – whether effects of aggravation of vasomotor rhinitis had ceased –

exposure to air-conditioning – enhanced sensitivity – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 42C

Safety Rehabilitation and Compensation Act 1988 ss 14, 19

REASONS FOR DECISION

Senior Member J F Toohey
Dr Ion Alexander, Member

30 May 2016

BACKGROUND

1. Daniela Benussi was a full-time Commonwealth Public Servant from 1973 until 2009 when she took a voluntary redundancy.  For most of that time she worked as an administrative/accounts officer in the Department of Immigration and Citizenship (the Department).

2. On 21 November 2008, Ms Benussi lodged a claim for workers compensation in respect of irritable bronchial airways, muscle spasm, eczema, lymph glands, back pain, depression, stress, pharyngitis, dermatitis, laryngitis, sinusitis, epitaxies, and dry eyes and blurry vision.  Ms Benussi attributed her conditions to exposure to the air-conditioning in her workplace.

3. On 9 April 2009, Comcare determined it was not liable to compensate Ms Benussi.  On reconsidering its decision on 14 October 2009, Comcare accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for “aggravation of kerato conjunctivitis sicca”, but otherwise affirmed its determination that it was not liable to compensate Ms Benussi.

4. Ms Benussi sought review by the Administrative Appeals Tribunal (the Tribunal) of Comcare’s determination. On 7 April 2011, the Tribunal issued a decision under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act) varying the reviewable decision by deciding that:  

   (a)the Applicant suffered from an “aggravation of vasomotor rhinitis” which was materially contributed by her employment with the Department of Immigration and Citizenship (DIAC), pursuant to sections 4 and 14 of the [SRC Act], as at 11 October 2004; and

   (b)the Applicant suffered from an “adjustment disorder” which was significantly contributed to by her employment with DIAC, pursuant to section 14 of the SRC Act, as at 11 May 2007;

   (c)the reviewable decision dated 14 October 2009 is otherwise affirmed.

5. The Tribunal noted in its decision that:

   The Applicant acknowledges that “aggravation of vasomotor rhinitis” includes those descriptions relating to her flu-like symptoms (including coughing, laryngitis and sore throat), respiratory systems (including wheezing) and eye problems (including dry eyes and blurred vision).

6. It is not clear what led the parties to agree, and the Tribunal to determine, that Ms Benussi suffered from “aggravation of vasomotor rhinitis”.  Her condition does not appear to have been identified as such by her doctors.

7. After some delay, in March 2013, Ms Benussi provided Comcare with information relating to periods for which she claimed compensation under s 19 of the SRC Act for incapacity.   Comcare accepted liability to compensate her for incapacity suffered between 11 October 2004 and 24 October 2008, but denied liability to compensate her from 2 July 2009, when she accepted voluntary redundancy, on the basis that she was fully fit at that time and the redundancy was “truly voluntary”. 

8. Comcare affirmed its determination on 16 January 2015 and Ms Benussi now seeks review by the Tribunal of the determination in respect of “aggravation of vasomotor rhinitis”.

   MS BENUSSI’S EVIDENCE

9. Ms Benussi provided a written statement and gave oral evidence.  She gave evidence that she had no problems with her health before joining the public service, and no problems at work until the late 1990s when the Department moved to offices in Pitt Street, Sydney.  She attributes her health problems to the effects of air-conditioning at work.

10. For approximately the first 10 years of her employment with the Department, Ms Benussi was located in an old building that had no air-conditioning.  From the late 1980s to the late 1990s, she worked in four separate locations.  Giving evidence, Ms Benussi said she could not remember whether the first three were air-conditioned but she said she started to have problems in the late 1990s when the Department relocated to Pitt Street where she sat directly beneath an air-conditioning duct.

11. Sometime around 2000, the Department moved to offices in Lee Street, Sydney, where, Ms Benussi says, she felt better initially because she was not directly beneath an air-conditioning duct.  After a time, however, she was moved to another part of the office where there was very strong air flow from the air-conditioning which became “extremely problematic” for her; she started to experience headaches, sore throat and chest, and a runny nose.  While at work, she did her best protect herself from the cold by wearing jumpers, scarves and rugs, even in summer.  She says her managers were not sympathetic to her concerns and ignored her complaints and recommendations from her doctors.

12. Ms Benussi says she first became aware of health problems in September 2001.  She visited her general practitioner, Dr Manee Vandebona, with symptoms of tight chest, headaches, runny nose, sore shoulders and back. She says she has suffered ongoing symptoms including coughing, sinusitis, laryngitis, sore throat and respiratory systems, including wheezing, and a feeling of being generally unwell when in an air-conditioned environment.  She has also suffered skin problems and dry eyes and blurred vision, and she suffers from headaches and chest, neck and back tightness.

13. Ms Benussi gave evidence that, throughout 2004 to 2009, she experienced a sore throat, sore chest and a runny nose whenever she went into air-conditioning.  Her symptoms abated when she left work and only recurred if she went into an air-conditioned environment, such as a supermarket, cinema or gym, where they immediately returned.  She says she continues to feel those symptoms any time she goes into air-conditioning; she has not been to the cinema for seven years and she avoids public transport; if she has to go into an air-conditioned environment, she wears suitable clothing such as gloves, a scarf and a hood, even during summer. She says most of her symptoms disappear within five minutes of leaving an air-conditioned space. She now also experiences symptoms when inhaling cold air outdoors, especially during winter.

14. When she accepted a voluntary redundancy in August 2009, Ms Benussi was working full-time, without restrictions.  Although she says she was still experiencing symptoms from the air-conditioning, there was no suggestion from any of her doctors that she could not work full-time.  Ms Benussi says she had only a short time in which to decide whether to take the redundancy; it was a difficult decision but she accepted the redundancy because she felt no one was listening to her at work and her health was her priority.

15. In August 2009, Ms Benussi started part-time work as a secretary at Scalabrini Aged Care Village.  She worked two days a week up until May 2010 and has worked three days a week since then.  Her office is not air-conditioned and she drives to work in order to avoid public transport.  She acknowledges that she is able to work full-time but says she can only do so in an office that is not air-conditioned. She has been unable to find full-time work that is not in an air-conditioned office. She says the aged care village is undergoing renovations and it is likely that air-conditioning will soon be installed.  Her supervisors have said they will try to accommodate her needs but they cannot give any guarantees.

16. Ms Benussi is not currently having any medical treatment for her condition.  She takes vitamin tablets and exercises regularly.  She says she stopped using inhalers when they proved ineffective and also because of their potential side effects.

    THE MEDICAL EVIDENCE

17. The Tribunal has before it documents provided by Comcare in accordance with s 37 of the AAT Act, including documents relating to Ms Benussi’s previous application for review.  They include a number of “Incident Notifications” made by Ms Benussi and numerous emails in which she complained of symptoms resulting from the cold air-conditioning at work.

18. The Tribunal also has before it clinical notes of Dr Vandebona and reports of Dr Peter Kendall, consultant physician, who saw Ms Benussi for assessment in September 2010, and Dr Anthony Lowy, occupational physician, who saw her for assessment in December 2010.  Reports from Dr Dale Kong, occupational physician, and Dr Geoffrey Cohn, each of whom saw Ms Benussi for assessment in September 2008, are included in the documents provided by Comcare.

19. Dr Brian Jarvie, respiratory and sleep physician, first saw Ms Benussi in February 2002 at the request of Dr Vandebona.  He saw her again in March 2002, October 2004 and June 2014.  He has provided a number of written reports and gave oral evidence.

20. Associate Professor David Bryant, the head of respiratory medicine at St Vincent’s Hospital in Sydney, saw Ms Benussi for assessment in May 2015.  He has provided a written report and gave oral evidence.

    Dr Vandebona’s notes and reports

21. On 25 October 2010, Dr Vandebona reported to Ms Benussi’s solicitors that Ms Benussi first consulted her in September 2001 with “flu-like illness, coughing which is worse at night and initially with significant sputum” which Ms Benussi thought was a reaction to cold air-conditioning at work.  In January 2002, she continued to complain of a stuffy nose related to air-conditioning.  Dr Vandebona referred her to Dr Jarvie and later to Dr Cohn. 

22. Dr Vandebona reported that during the course of treating Ms Benussi, she continued to complain about the air-conditioning at work.  She concluded that Ms Benussi had “long-term sensitivity to air-conditioning” which was likely to be permanent. 

23. In January 2005, Ms Benussi complained of a burning sensation in her back muscle and eye irritation.  In November 2005, she complained of a rash on her face and neck which she related to the air-conditioning at work.  Dr Diana Rubel, dermatologist diagnosed impetiginised subacute dermatitis and said “it may be that the air-conditioning is exacerbating her symptoms”.

24. On 8 March 2007, Dr Vandebona provided a certificate for Ms Benussi stating she had “worsening symptoms of neck spasm, tender lymph glands, sharp pain along airway, back pain due to cold air-condition (sic)”.  She recommended Ms Benussi not be exposed to cold air conditioning.

    Dr Jarvie’s evidence

25. Dr Jarvie first saw Ms Benussi on 18 February 2002 for respiratory assessment.   He noted that she had a flu-like illness in September 2001 which was associated with coughing; her paroxysms of coughing had settled but she still had an irritable dry cough which was aggravated by factors such as air-conditioning.  He thought she had “irritable airways which [were] best managed as a form of mild asthma”.  He recommended she use Tilade, a non-steroid anti-inflammatory puffer.

26. On 20 October 2004, Dr Jarvie reported to Dr Vandebona that Ms Benussi “once more” had cough and sputum production; her symptoms appeared to be aggravated by factors such as air-conditioning which was “very common in people who have oversensitive airways”.  He noted that Ms Benussi “finds that excessive air-conditioning is the main irritant causing her symptoms”.  He suggested she should avoid environments where the air-conditioning was likely to irritate her condition.

27. Dr Jarvie saw Ms Benussi again on 12 January 2009.  He confirmed his opinion that Ms Benussi had oversensitive airways aggravated by factors including air-conditioning; she did not have significant respiratory impairment.  He thought there was “probably a non-specific irritant effect from air-conditioning in her work environment” and her condition should be well-controlled by the intermittent use of Tilade.

28. Dr Jarvie next saw Ms Benussi in June 2014.  In a report dated 2 March 2015, he confirmed that she did not appear to have asthma.  He accepted her statement that she was adversely affected by air-conditioning but saw no reason why she could not undertake full-time employment in a non-air-conditioned environment.

29. Giving evidence before the Tribunal, Dr Jarvie agreed that his 2004 report that Ms Benussi’s symptoms appeared to be aggravated by air-conditioning was based on her self-reporting.  He said it was very difficult to say whether she should avoid air-conditioning but, given the “very strong history” she gave, he had to suggest she avoid it.  He agreed with Associate Professor Bryant that other explanations for her condition were possible.

30. Dr Jarvie gave evidence that there was a clear precipitant which left Ms Benussi’s airways irritable for some time.  He agreed that the history he took of developing irritable airways could be the consequence of a viral illness consistent with her complaint of “flu-like” symptoms in September 2001.  He agreed that a viral illness commonly results in bronchial sensitivity and that it seemed a viral illness was the major factor contributing to her condition.

31. In response to questions posed by the Tribunal, Dr Jarvie agreed that many of the symptoms complained of by Ms Benussi such as headaches and tightness of the chest are not characteristic of over-sensitive airways; he agreed that her symptoms could be characteristic of anxiety.  He also agreed that he did not diagnose Ms Benussi as suffering from vasomotor rhinitis.  He thought it advisable, if Ms Benussi has over-sensitive airways, that she avoid air-conditioning.  He acknowledged that, while he could not rule it out entirely, there is no evidence of which he is aware, linking air-conditioning with sensitive airways. 

    Associate Professor Bryant’s evidence

32. Associate Professor Bryant reported on 19 May 2015 that he could find no evidence that Ms Benussi had ever had a measurable impairment of lung function, and she had no measurable impairment on account of abnormal respiratory function.  He noted that she had “objectively confirmed sicca syndrome” causing dryness of her eyes but he knew of no evidence that this disorder was caused by exposure to cool, dry air such as air-conditioning. He thought that sicca syndrome made her relatively intolerant of the atmospheric changes produced by air-conditioning. 

33. Associate Professor Bryant gave evidence that his reference to “objectively confirmed sicca syndrome” was based solely on a report from Dr Cohn dated 8 January 2009 (see below) in which Dr Cohn diagnosed Ms Benussi as suffering keratoconjunctivitis sicca or acute dry eyes, which was aggravated, but not caused, by her working environment.  Associate Professor Bryant confirmed that he made no other diagnosis. He confirmed that vasomotor rhinitis is not within his expertise and he made no comment on it.

34. Responding to questions from the Tribunal, Associate Professor Bryant agreed that the history taken by Dr Jarvie of flu-like symptoms in September 2001 followed by an irritable dry cough and irritable airways could be the consequence of an acute viral infection.

35. Associate Professor Bryant gave evidence that it was outside his area of expertise to comment on any relationship between Ms Benussi’s nasal symptoms and air-conditioning but, “from a respiratory perspective”, it was advisable that exposure to cold and dry air be minimised to reduce the likelihood of developing cough and tracheal discomfort.  He said no conclusions could be drawn from the fact that she apparently did not suffer symptoms until she worked in air-conditioning but, if she did not experience symptoms anywhere else, suggested there was a relationship. 

    Dr Cohn’s report

36. In a report dated 15 September 2008, Dr Cohn stated that Ms Benussi reported that cold air at work affected her vision.  He found she had some posterior marginal blepharitis and the Schirmer test confirmed extreme dryness; there was nothing to suggest Sjogren’s Syndrome.  He recommended she have a deflector to protect her from the direct draft of air-conditioning and she could try anti-inflammatory drops for blepharitis.  Although it is not completely clear from the evidence how long Ms Benussi used eye drops, her evidence was that she no longer uses them.

37. In a further report on 8 January 2009, Dr Cohn diagnosed Ms Benussi as suffering keratoconjunctivitis sicca complicated by posterior marginal blepharitis. He stated that “the history of intolerance of air-conditioning and sustained work at a computer terminal can be considered to be primarily of unrelated causation, the underlying dryness of the eyes”.  He concluded that the underlying problem causing the dryness of her eyes was not caused by her workplace but workplace factors were aggravating her symptoms.  He recommended that Ms Benussi’s “direct exposure to the draft of the air-conditioning be altered by the application of a deflector or a change of workstation position”.

    Dr Lowy’s report

38. In a report dated 16 December 2010, Dr Lowy said he found, on examination, that Ms Benussi was “suffering from no medical conditions of any kind”.  He said she described herself as fit and healthy “except for air-conditioning and respiratory problems”.  We note that Ms Benussi’s report of respiratory problems is not supported by either Dr Jarvie or Associate Professor Bryant who found, respectively, “no significant” or “no measurable” respiratory impairment.

39. Dr Lowy reported that Ms Benussi was:

    …adamant that she must avoid entering facilities where there is air-conditioning such as stores, supermarkets, movie theatres, some public transport and aeroplanes.  Exposure to these cold circumstances precipitates apprehension and tension and Ms Benussi turns around and cannot enter. 

    He recorded that Ms Benussi’s social life had deteriorated as a result of having to avoid such places.

40. Dr Lowy noted the reports of air quality monitoring undertaken at Ms Benussi’s workplace in 2007 and 2008 established that daytime temperatures were “well within the recommended comfortable range”.  He noted they were not consistent with temperatures recorded by Ms Benussi herself.  It is not clear from his report whether he thought this supported her claims or not.

41. Dr Lowy stated that he had “no problem” accepting that Ms Benussi’s conditions were likely to have resulted from exposure to air-conditioning over a long period but “none of [her] conditions were or are permanent and recovery has occurred”.  He thought that, up until June 2009, she was not fit to work in an air-conditioned environment.  He thought she had “persistent bronchial sensitivity due to an underlying susceptibility to cold air and draughts”.  He acknowledged there “cannot be any objective clinical findings in this situation” but he accepted the veracity of her reporting of symptoms.

    Dr Kong’s report

42. Dr Kong saw Ms Benussi on 9 September 2008 for a fitness for duty assessment.  He noted that assessments of the air-conditioning had shown it met “relevant Australian standards in terms of temperature and ventilation rates” and that the system was “regularly monitored” and adjustments made to try to direct drafts away from Ms Benussi (which she disputes). 

43. Dr Kong did not believe Ms Benussi’s medical conditions indicated an underlying susceptibility to cold air and breezes but, rather, her perception based upon her beliefs about the impact of cold air drafts.  He did not think that exposure to cold drafts to be causally related to her muscle spasms or development of respiratory tract infections.  He thought she was fit to work in air-conditioned environments but, given her perceptions, that a resolution might involve her working in an area where drafts were kept to a minimum.

    CONSIDERATION

1. Dr Jarvie and Associate Professor Bryant agreed that Ms Benussi’s symptoms could have had their origin in a viral infection, consistent with her complaint of flu-like symptoms in September 2001.  It is relevant that Ms Benussi was unable to say whether her workplaces before 2000 were air-conditioned, putting in question the link between her condition and workplace air-conditioning.  A plausible alternative explanation for her symptoms raises questions as to causation and, to a lesser extent, diagnosis, which we are not required to determine in these proceedings, but which cast doubt on the reasons for any continuing symptoms.

2. The most consistent diagnosis of Ms Benussi’s condition is irritable or sensitive airways, which we understand to describe an underlying susceptibility rather than a specific disease in any medical sense.  There is no evidence to suggest that air-conditioning causes irritable airways or any of Ms Benussi’s complaints, and there is little evidence that it aggravates her symptoms.  Her attribution of all of her symptoms including her skin condition, back pain and headaches to air-conditioning is not supported by the medical evidence.  Rather, as Dr Kong believes, it appears to reflect her perception of its effects.

3. For Ms Benussi, it is submitted that she had a long history of employment without any symptoms and then a long and continuous history of problems from around the time she started working in air-conditioning.  However, by her own evidence, it is not clear that the onset of her symptoms in fact coincided with, or was related to, working in air-conditioning. 

4. Comcare concedes that Ms Benussi has an underlying condition that can be aggravated by air-conditioning but submits there is no evidence that her underlying condition was caused by her employment and nor is there any evidence that any aggravation was permanent or continuing.  We accept that submission.  Nothing in the medical evidence before us supports the conclusion that Ms Benussi suffered an enhanced sensitivity to air-conditioning and other irritants as a result of her employment.  Associate Professor Bryant found no evidence of respiratory disease, and Dr Jarvie agreed that her complaints of headaches and tightness of the chest are not related to “irritable airways” and nor are her symptoms of dry eyes.

5. Ms Benussi was working full-time without restrictions when she took a voluntary redundancy in June 2009.  We accept that she may have felt frustrated at what she saw as a lack of response to her problems by her employer but the medical evidence does not support the conclusion that her capacity for work was reduced or restricted. 

6. Based on the information before us, we are satisfied that Ms Benussi was fit for full-time employment without restrictions when she took a redundancy in July 2009.  We are not satisfied that any symptoms that she experienced after she ceased employment in June 2009 were the continuing effects of the injury for which Comcare accepted liability. 

   CONCLUSION

7. For these reasons we affirm the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey, Dr Ion Alexander, Member

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

Associate

Dated 30 May 2016

Date(s) of hearing	29 February 2016, 1 March 2016
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Ms L Flanagan, Carroll and O'Dea Lawyers
Counsel for the Respondent	Ms R Henderson
Solicitors for the Respondent	Mr P Lehmann, Lehmann Snell Lawyers