Carlson and Telstra Corporation Limited (Compensation)

Carlson and Telstra Corporation Limited (Compensation) [2018] AATA 3359 (10 September 2018)
Division:GENERAL DIVISION
File Number: 2017/3808
Re:Lynette Carlson
APPLICANT

AndTelstra Corporation Limited
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:10 September 2018
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[Sgd]..........................................
Member D K Grigg
CATCHWORDS
COMPENSATION —- whether applicant entitled to compensation – whether injury contributed to a “significant degree” by employee’s employment – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Chambers (2017) 156 ALD 186
Amaca Pty Ltd v Ellis (As Executor of the Estate of Cotton (rec’d)) (2010) 240 CLR 111
REASONS FOR DECISION
Member D K Grigg
10 September 2018
INTRODUCTION & CLAIMS HISTORY

Ms Carlson has been an employee of Telstra since 10 March 2008 and, at all relevant times, was employed as a customer service officer at the Maryborough Telstra Call Centre.[1]
[1] Exhibit 1, T Documents, T20, page 91, Determination dated 17 February 2017.
On 26 November 2016, Ms Carlson lodged an incident/hazard report stating as follows:[2]
I was bitten numerous times by insects in the workplace on 23^rd and 24^th October 2016; I then had a severe allergic reaction which became allergic vasculitis which included swelling of the lower legs and feet together with an angry rash; to date I have been to the doctor or hospital eight times for continued treatment and undergone numerous tests and been prescribed several medication; I have further medical appointments, including seeing a specialist at the earliest time of 10^th December; I take precautions before entering the workplace which includes taking an antihistamine, spraying with insect repellent as recommended by Dr, removing myself from the area and sitting at the other end of the workplace
[2]Exhibit 1, T Documents, T4, pages 41 – 51, Incident hazard report submitted by Ms Carlson on 26 November 2016.
On 30 November 2016, Ms Courtney Beck, from the Telstra Injury Management Team, emailed Ms Carlson regarding the incident/hazard report and recorded that:[3]
[Ms Carlson] noted that there had been “midgies” in her office at work and that she had suffered bites from these insects over a period of three consecutive nights working in the office. [Ms Carlson] stated she had an allergic reaction to the bites and experienced swelling and burning pain in her legs and feet. [Ms Carlson] advised that she had consulted her general practitioner and was prescribed antihistamines and had been referred to a specialist. [Ms Carlson] advised that she’d only sustained the bites and experienced the allergic reaction when sitting at the front and middle of the office. She also said she was unaware of the process to lodge an incident and claim form and this is why there had been a delay.
[3] Exhibit 1, T Documents, T4, page 46, Incident/ hazard report submitted by Ms Carlson on 26 November 2016.
On 5 December 2016, Justin Baker, Ms Carlson’s team leader, provided a statement that:[4]
(a)no other staff members, of which there are approximately 182, had reported being affected by biting insects;
(b)Ms Carlson is a smoker and goes outside to the smoking area on every break;
(c)on 25 November, he discussed Ms Carlson’s condition with her and she mentioned that the few insect bites are long gone and that it’s an allergic reaction to something;
(d)Ms Carlson advised him that her doctor did not know the cause and that she would be seeing a specialist to investigate further;
(e)he told Ms Carlson to wear more appropriate clothing to minimise alleged exposure, however Ms Carlson continued to wear dresses/skirts.
[4] Exhibit 1, T Documents, T5, page 52, Statement of facts of Mr Justin Baker dated 5 December 2016.
On 13 December 2016, Ms Carlson had a histopathology test taken of portions of the left upper-arm and right lower-leg which indicated that she had small vessel vasculitis.[5]
[5] Exhibit 1, T Documents, T6, Histopathology report of Dr Khamas dated 14 December 2016.
On 15 December 2016, Ms Carlson applied for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “Allergic Vasculitis” which had affected her arms and legs. Ms Carlson claims the condition resulted from insects in her workplace which she says bit her while she worked and that she first noticed these symptoms on 23 October 2016 (“Compensation Claim”).[6]
[6] Exhibit 1, T Documents, T7, pages 54-73, Ms Carlson’s Workers’ Compensation Claim Form dated 30 November
2016.
Telstra is a licensee[7] under the Act and as such self-insures its workers compensation claims. The relevant provisions of the Act which refer to Comcare apply to Telstra as a licensee under the Act.
[7]Section 4 of the Act defines a “licensee” to mean “a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII.”
On 19 December 2016, Ms Carlson emailed Ms Vim Shanmugathasan to inform Telstra that:[8]
(a)at the time of the incident she had been wearing long pants and that the insect bites started at the bottom of her legs and shin and have now spread “all over her body (leg, arm, neck, kidney and brain)”;
(b)her immune system is down; and
(c)she was taking steroids and was on a waiting list for admission to hospital to obtain higher doses of steroids.
[8] Exhibit 1, T Documents, T9, page 75, pages from Ms Carlson to Telstra dated 22 December 2016.
Ms Carlson had her first appointment at the Vasculitis Clinic at Royal Brisbane and Women’s Hospital (“RBWH”) on 16 January 2017.[9]
[9] Exhibit 1, T Documents, T10, page 75, Medical Certificate from Dr Dutton dated 16 January 2017.
Investigations by Telstra revealed that a pest control specialist had been engaged to review bug concerns at Ms Carlson’s place of work on 5 December 2016 and that it had been determined that the bugs were weevils. The pest control specialist also identified old rat pest control blocks and recommended their removal. The rat blocks were removed on 11 and 12 January 2017.[10]
[10] Exhibit 1, T Documents, T13, page 80, Email from Tom Divitcos, Telstra to Ms Shanmugathasan dated 30
January 2017.
On 25 January 2017, Ms Carlson was assessed by Dr Gabriella Strey, Specialist Physician/Endoscopist, for the purposes of managing her leukocytoclastic vasculitis. Dr Strey reported that Ms Carlson told her that her rash had started after an insect bite a couple of weeks ago and had then spread all over her body. Dr Strey recorded that Ms Carlson had been seen by a dermatologist and had a skin biopsy which showed features suggestive of small vessel vasculitis and that she had tested negative for hepatitis and HIV.[11]
[11] Exhibit 1, T Documents, T14, page 81, Report of Dr Strey dated 25 January 2017.
On 11 February 2016, Sandy Hunt, a colleague of Ms Carlson’s at Telstra, provided a statement. In her statement, Ms Hunt says:[12]
·she witnessed an incident involving Ms Carlson on 24 October 2016. At that time she was sitting at a desk next to Ms Carlson and heard Ms Carlson say “ouch”;
·she asked Ms Carlson what was wrong and Ms Carlson replied that she had been bitten by something on her leg;
·Ms Carlson showed her lower leg just below her shin and she saw that a red mark with a little rash was beginning to show;
·Ms Carlson said to Ms Hunt that she was so tired of being bitten here;
·she told Ms Carlson to be careful not to scratch as it will make the area worse and told her that she should lodge an incident report;
·she sighted Ms Carlson’s worsening condition and rash over the next two weeks until Ms Carlson was no longer able to be in the work environment.
[12] Exhibit 1, T Documents, T17, page 86, Statement of Sandy Hunt dated 11 February 2016.
On 16 February 2017, Ivey's Carpet and Pest, pest technicians, reported that:[13]
(a)they had attended at the Telstra offices where Ms Carlson works and had steam cleaned the carpet areas and had not noticed any biting insects;
(b)they spoke with staff about biting insects; and
(c)during the inspection, they found a major problem with black ants as a result of which the area was sprayed on 13 February 2017.
[13]Exhibit 1, T Documents, T18, pages 87 – 88, Email from Ivey's Carpet and Pest to Telstra dated 16 February 2017.
On 16 February 2017, Dr John Parkes, Occupational and Environmental Physician, provided a report to Telstra that:[14]
[14] Exhibit 1, T Documents, T19, pages 89 – 90, Report of Dr Parkes dated 16 February 2017.
·in his opinion, he did not believe there was sufficient evidence on the balance of probabilities to say that Ms Carlson’s hypersensitivity vasculitis was caused by being bitten by an insect at work;
·biting midges would be more likely to occur outside rather than inside of a building and in fact could have occurred anywhere;
·there is no evidence of midges in the call centre;
·in December 2016, the pest controller only found weevils which do not bite;
·there is no evidence of anyone else being bitten at the call centre;
·Ms Hunt, the only witness, only observed a single red mark on one leg;
·Ms Carlson’s doctor also observed no insect bites in her consultation with her on 27 October 2016;
·Insect bites are not the usual cause of hypersensitivity vasculitis;
·50% of all cases of hypersensitivity vasculitis are idiopathic, that is, no causal trigger is found;
·in his opinion, the involvement of Ms Carlson’s arms and the transient proteins in her urine suggests that she has systemic immunological propensity that developed into leukocytoclastic vasculitis which could well have occurred without a trigger.
On 17 February 2017, following Telstra’s investigation of Ms Carlson’s Compensation Claim, Telstra determined that Ms Carlson be denied compensation under the Act, on the basis that there was no evidence that her claimed condition was contributed to, to a significant degree, by her employment with Telstra.[15]
[15]Exhibit 1, T Documents, T20, pages 91 – 98, Determination dated 17 February 2017; T21, page 117, Email from Telstra to Ms Carlson dated 17 February 2017.
On 12 March 2017, Ms Carlson requested a reconsideration of the Delegate’s decision and provided Telstra with the following additional information:[16]
·a report of Dr Zoltan Orovec, Consultant, dated 11 December 2016;
·a report of Dr Kumar, Dermatologist, dated 10 December 2016;
·a patient health summary printed on 6 March 2017
·a report from Dr Catherine Dutton, Registrar at RBWH, dated 20 January 2017
[16] Exhibit 1, T Documents, T21, pages 99 – 125, Ms Carlson’s request for reconsideration dated 12 March 2017.
On 10 December 2016, Dr Kumar reported that Ms Carlson has vasculitis with evidence of protein in her urine and that he had organised for her to be assessed and treated in hospital.[17]
[17] Exhibit 1, T Documents, T21, page 106, Report of Dr Kumar dated 10 December 2016.
On 11 December 2016, Dr Orovec reported that Ms Carlson had presented to the emergency department on 10 December 2016 with redness to her lower legs. Dr Orovec diagnosed Ms Carlson with systemic collagen vascular disease including vasculitis and advised her to see a physician.[18]
[18] Exhibit 1, T Documents, T21, page 105, Report of Dr Orovec dated 11 December 2016.
Ms Carlson’s patient health summary indicates that:[19]
[19] Exhibit 1, T Documents, T21, pages 107 – 113, Patient health summary records.
·she had a consultation with Dr Hamad on 27 October 2016 regarding her insect bites. Dr Hamad recorded that there were papular red itchy lesions on her lower legs and that Ms Carlson complained that her feet were slightly stiff and swollen although there were no signs of inflammation;
·she had a consultation with Dr Hamad on 28 October 2016 and complained that her leg swelling was getting worse but she did not have any pain. Dr Hamad diagnosed her with bilateral leg oedema and advised her to have a blood test;
·she had a consultation with Dr Hamad on 4 November 2016 regarding another insect bite which showed redness and swelling on her left ankle and that the results of her blood test showed that she had reactive protein in her urine;
·on 7 November 2016, Ms Carlson told Dr Hamad her joint pain is getting better, her swelling was going down and that she still had a vasculitic rash in her lower leg. Ms Carlson was also advised to repeat her blood tests;
·she had a consultation with Dr Hamad on 10 November 2016 and he noted that her left ankle was red again and he advised her to try Prednisolone;
·on 14 November 2016, Dr Hamad reported that Ms Carlson looked better and that her vasculitis had started to improve and he advised her to taper the Prednisolone gradually within the next 10 days;
·she had a consultation with Dr Hamad on 24 November 2016 and complained that she had been suffering from red itchy rash over her lower legs and had bilateral ankle swelling. Dr Hamad noted that once she had reduced the Prednisolone the rash started to come back again, so he referred her to a dermatologist, Dr Sandeep Kumar;
·on 28 November 2016, she had a consultation with Dr Hamad and he reported that her vasculitis looked very bad and she was waiting for an appointment with her dermatologist;
·Dr Hamad recorded on 11 December 2016 that Ms Carlson had been seen by her dermatologist yesterday but unfortunately, the dermatologist did not think he could do anything about the rash on the upper limb which Dr Hamad noted he did not think was vasculitis;
·on 13 December 2016, Dr Hamad reported that Ms Carlson was suffering from neck pain and headaches, she had no rash at the site of the pain, did not have blurring of vision and she had a possibility of shingles. Dr Hamad performed a punch biopsy of the skin lesions;
·on 16 December 2016, Dr Hamad recorded that Ms Carlson looked better, her headache was getting better and that the diagnosis was allergic vasculitis;
·on 3 January 2017, Dr Hamad recorded that the vasculitis was still active and new lesions were appearing on her limbs. Dr Hamad noted that that Ms Carlson was continuing to take the Prednisolone and was waiting for an appointment at a hospital;
·on 13 January 2017, Dr Hamad reported that Ms Carlson was stable, the vasculitis had slightly improved after increasing Prednisolone and that Ms Carlson was worried about a red nodular tender lesion on her right leg which she said was a possible spider bite;
·on 19 January 2017, Dr Hamad reported that Ms Carlson had an appointment at RBWH and had been advised to taper the Prednisolone gradually as they want to start her on Hydroxychloriquine after checking her vision. He reported that her skin lesions seemed to be improving and she had no more new lesions;
·on 30 January 2017, Dr Hamad reported that Ms Carlson looked stable and that she had gained 8 kg since starting on the Prednisolone. Dr Hamad advised her to watch her diet and undertake regular exercise. Ms Carlson said that if she engages in activity she develops new lesions. Ms Carlson was due to see the ophthalmologist the following day and would then start on anti-malaria medication;
·on 28 February 2017, Dr Hamad recorded that Ms Carlson was still suffering from a flareup of new vasculitis, was still taking the Prednisolone, had started the Hydroxychloriquine and was advised to contact the rheumatology clinic. He also noted she had a moon face and was gaining weight.
On 20 January 2017, Dr Dutton reported that Ms Carlson had been reviewed in the rheumatology clinic by her and Dr Kubler. In their opinion:[20]
(a)Ms Carlson’s presentation was consistent with “urticarial vasculitis”;
(b)there was no clear evidence of an underlying connective tissue disease driving her presentation;
(c)extra cutaneous disease is not evident on an objective basis;
(d)Ms Carlson should obtain a prompt assessment by an ophthalmologist to assess her subjective report of reduced peripheral field visual acuity; and
(e)she should down-titrate Prednisolone and start Plaquenil (Hydroxychloriquine).
[20] Exhibit 1, T Documents, T21, pages 114 – 115, report of Dr Dutton dated 20 January 2017.
On 6 February 2017, Ms Leonie Henricks, from the Commonwealth and Public Sector Union (“CPSU”), telephoned Comcare and advised that she received a complaint from a Telstra employee with regards to a bug and rodent infestation at the Telstra Call Centre in Maryborough. Ms Henricks requested and had an inspector attend the site to assist. On 7 February 2017, Inspector Amanda McNiven phoned Ms Henricks and advised that there was a lengthy history of issues with bugs and rodents at the Maryborough site.
A Comcare Inspection Report was prepared detailing the complaints and actions/steps taken by Telstra (“Comcare Report)”.
The Comcare Report contained allegations reported by the CPSU representative that there had been a bug problem for some time and that workers had been advised not to lodge incident reports. The Tribunal includes this information as background and acknowledges that these are only allegations and not the subject of this application. Further, regardless of whether that is true, it does not assist the Tribunal here.
What the Comcare report does indicate is that there is clearly a problem with bugs and rodents. It is not denied by Telstra that ants, weevils and cigarette beetles were present at the Maryborough Telstra Call Centre. Ms Carlson notes that the Comcare Report refers to “organic matter with wings” and that this would include midges. However, there is no specific reference to midges in the Comcare Report.
On 10 May 2017, following a reconsideration, Telstra decided that it was not liable to pay compensation in respect of “Allergic Vasculitis” under section 14 of the Act (“Reviewable Decision”).[21]
[21] Exhibit 1, T Documents, T24, pages 136 -141, Decision dated 10 May 2017.
Ms Carlson then applied for a review of the Reviewable Decision by this Tribunal.[22]
[22] Exhibit 1, T Documents, T2, pages 3 - 39, Application for Review of Decision dated 27 June 2017.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by section 14(1) which provides that 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.
(Emphasis added)
“Injury” is defined in section 5A of the Act to mean, so far as this case is concerned:
“(1) …
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(Emphasis added)
A “disease” is defined in section 5B of the Act to mean:
(1) In this Act:
"disease" means:
(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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
(Emphasis added)

“Ailment” is defined in section 4 of the Act to mean:
“… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
(Emphasis added)
ISSUE FOR DETERMINATION
The issue for determination is whether Ms Carlson is entitled to compensation for an injury under section 14 of the Act.
It is not in dispute that:[23]
(a)Ms Carlson was an “employee” of Telstra;[24] and
(b)Ms Carlson suffered from an “ailment”.[25]
[23]Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 4 May 2017, para 4.1.
[24] s 5 of the Act.
[25] Exhibit 12, Respondent’s Outline of Submissions dated 21 August 2018, paras 6-14.
Telstra contends that Ms Carlson’s employment at Telstra did not contribute to her ailment “to a significant degree” and therefore it is not liable to compensate Ms Carlson.
A consideration of whether Ms Carlson is entitled to compensation under section 14 of the Act involves determining the condition suffered by Ms Carlson and whether its onset or aggravation was contributed to, to a significant degree, by her employment with Telstra.
DID MS CARLSON SUFFER A DISEASE?
Did Ms Carlson suffer an ailment?
Telstra accepts that Ms Carlson suffers from an ailment, being a form of vasculitis.[26]
[26] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 4 May 2018, para 4.1.
The Tribunal finds that Ms Carlson suffered from an “ailment” as defined by section 4 of the Act.
Various terminology was used by different medical specialists to describe the type or nature of the vasculitis suffered by Ms Carlson. Dr Damon Langguth, Clinicial Immunologist and Director of Immunology at Sullivan Nicolaides Pathology, gave evidence before the Tribunal that despite what appears to the lay person to be different terminology, the practitioners that had examined and assessed Ms Carlson all agreed that she suffered from urticarial vasculitis. Dr Langguth explained that the reference to “leukocytoclastic vasculitis” is a reference to the description used when considering pathology findings, and the term “urticarial vasculitis” refers to the clinical presentation. The parties agreed with Dr Langguth’s explanation.
The issue then becomes whether Ms Carlson’s “ailment”, urticarial vasculitis, was contributed to, to a significant degree, by her employment. If it was not, it cannot be considered a “disease” under s 5B(1) of the Act and compensation will not be payable.[27]
[27] Comcare v Chambers (2017) 156 ALD 186, at [5].
WAS THE DISEASE CONTRIBUTED TO AS A RESULT OF MS CARLSON’S EMPLOYMENT?
Ms Carlson submits that she was bitten by midges, or some other biting insect, at work and that this is what caused her vasculitis.
Was Ms Carlson bitten by midges at work?
Telstra submits that the Tribunal cannot be satisfied on the balance of probabilities that Ms Carlson was bitten by midges at work.
The evidence establishes that Ms Carlson’s workplace had a problem with pests, namely weevils, black ants and cigarette beetles.[28] It is not in dispute that weevils and cigarette beetles do not bite and that, while black ants may bite, their mandibles are not strong enough to pierce human skin. Ms Carlson did not contend that her ailment was caused by ants.
[28]Exhibit 1, T Documents, T13, page 80, Email from Health, Safety and Environment Team Manager: Pest control specialist report dated 30 January 2018; T18, pages 87-88, Report of Ivey’s Carpet Cleaning and Pest control dated 16 February 2017; Exhibit 8, Report of Ivey’s Carpet Cleaning and Pest Control dated 1 June 2017.
The pest control technicians made no reference to having found midges.[29] The evidence of the presence of midges comes from Ms Carlson and some of her colleagues. Ms Carlson sought to argue that the reference in the Comcare report to “organic material with wings” would include midges. However, there is nothing to verify this. It is accepted by all parties that midges were prevalent in October 2016 in the Maryborough area, so it is possible that midges were present.
[29]Exhibit 1, T Documents, T13, page 80 Email from Health, Safety and Environment Team Manager: Pest control specialist report dated 30 January 2018; Exhibit 8, Report of Ivey’s Carpet Cleaning and Pest Control dated 1 June 2017.
Even if it is presumed that midges were present at the Maryborough Telstra Call Centre, a conclusion that Ms Carlson was bitten at work is a more difficult one to make. Ms Carlson says she did not see the insect that bit her, and that she just assumed it was a midge. Further, it is impossible, because of the lack of corroborating evidence of any midges, or a significant number of midges, to find that, on the balance of probabilities, Ms Carlson was bitten at work. It is possible that she was bitten outside while on her work breaks,[30] or on the way home, or just going about her normal after-work activities.
[30] Ms Carlson told the Tribunal she had 4 work breaks of approximately 10 minutes each on the day she says she
bitten, and that she went outside to a public area on each break to have a cigarette.
Ms Carlson attended her general practitioner, Dr Hamad, on 27 October 2016 and reported having suffered an insect bite. However, Dr Hamad’s records do not indicate what kind of insect bit her and there is no reference to Ms Carlson telling Dr Hamad, at that time, that she was bitten at work.[31]
[31]Exhibit 1, T Documents, T2, page 25, Application for Review dated 27 June 2017; T21, page 107, Request for reconsideration of decision dated 12 March 2017.
In the circumstances, the Tribunal cannot be satisfied that Ms Carlson was bitten by a midge while she was at work.
Did midges cause or contribute to Ms Carlson’s vasculitis?
Even if the Tribunal had found that she was bitten at work, the medical evidence does not support a finding that this caused Ms Carlson’s vasculitis.
Dr Carl Kennedy, Clinical Immunologist and Allergist, reported in November 2017 that:[32]
(a)Ms Carlson has “cutaneous vasculitis”;
(b)the initiating event for her condition is unclear; and
(c)“vasculitic lesions can have multiple drivers and this may be due to midge bites”.
[32] Exhibit 11, Report of Dr Kennedy dated 15 November 2017.
Dr Kennedy did not refer to any medical evidence or literature to support his statement that midge bites may cause the type of prolonged vasculitis suffered by Ms Carlson.
A case on point regarding meeting the requisite standard of proof is that of Comcare v Chambers (2017) 156 ALD 186. In that matter, there were two hypotheses posed to explain the cause of Mr Chambers’ seizures. The Tribunal had to determine whether it was satisfied on the balance of probabilities that Mr Chambers’ seizures were caused by workplace stress or were unconnected to his workplace and had simply manifested for the first time. Perram J held, at [32], that Mr Chambers could prove workplace stress was the cause of his seizures by demonstrating that it was “more likely than not” the case. The medical evidence, at its highest, was that stress “could” have aggravated his neurocognitive impairment. Perram J found that:
[35]…Knowing that stress makes the seizures more likely does not tell me on the balance of probabilities that this is what caused Mr Chambers’ seizures. Consequently, I accept Comcare’s submission that Dr O’Neill’s evidence (which was as good as the argument got) could not sustain a conclusion on the balance of probabilities that Mr Chambers’ workplace stress was the cause of an aggravation of epilepsy constituted by his seizures.
The High Court has also held that the possibility that something “may” have been a cause for a medical condition “is not a sufficient basis for attributing legal responsibility”.[33]
[33]Amaca Pty Ltd v Ellis (As Executor Of The Estate Of Cotton (Dec’d)) (2010) 240 CLR 111, at [70].
In this case, contrary to Dr Kennedy’s postulation (see para 47 above), Dr Langguth, who examined Ms Carlson on behalf of Telstra on 13 November 2017, gave evidence that there is nothing in the medical literature to suggest that an insect bite could have caused Ms Carlson’s prolonged vasculitis. Dr Langguth reported that:[34]
·“Insect bites do not cause a prolonged vasculitis and in fact most insects do not cause a vasculitis at all. Mosquitoes and midges (sandflies) are not known to cause a vasculitic illness. They can cause local urticarial reactions. Bedbugs cause a local vasculitis, though she clearly was not bitten by them as the lesions are different and bedbugs are found in mattresses. There are no reported cases of prolonged vasculitis after mosquito or midge bites that I could find in the medical literature searching the US Library of medicine”;
·“I don't think we are likely to ever know what the initial cause was and this is common, with at least 50% of these conditions having no obvious cause. It is possible that she did indeed have bites but her vasculitis is not related to that”;
·“I do not think the condition of urticaria vasculitis has been contributed to, to any degree, by some incident or aspect of the applicant's appointment”;
·“There are no non-work related factors which have caused or contributed to the applicant's condition”;
·“The applicant would have developed this current condition and it would have the same clinical course whether she was working at Telstra or not;
·“I do not think that any aspect or incident of the applicant's Telstra employment had any effect on her disease at all. In other words, the applicant's condition would be the same today regardless of any aspect or incident of her employment”.
[34] Exhibit 7, Report of Dr Langguth dated 17 January 2018.
While the Tribunal can appreciate that the timing of her reported insect bite and the onset of her vasculitis may have caused her, and her general practitioner, to wonder whether it was the cause of her condition, there is simply no medical evidence or scientific medical support to suggest that an insect bite, of any kind, could have led to the prolonged vasculitis that Ms Carlson suffers.
The Tribunal finds that Ms Carlson’s ailment is not an “injury” for the purposes of the Act. Therefore, Ms Carlson is not entitled to compensation under section 14 of the Act.
DECISION
The reviewable decision dated 10 May 2017 is affirmed.

I certify that the preceding 54 (Fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[Sgd].......................................
Associate
Dated: 10 September 2018

Date of hearing: 21 August 2018

Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

By Telephone

Ms Kate Slack

Ms Suzy Dole, Sparke Helmore Lawyers

[2018] AATA 3359

10 September 2018

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