Delaney and Comcare - [2001] AATA 577

DECISION AND REASONS FOR DECISION [2001] AATA 577

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/601

GENERAL ADMINISTRATIVE DIVISION          )
           Re      PATRICIA ANNE DELANEY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date22 June 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...….(Sgd) B. H. Pascoe.........
Senior Member
CATCHWORDS
COMPENSATION – former member of Army Reserve – exposure to CS gas during training – suffers from complex symptoms – whether suffering chronic fatigue syndrome – whether condition caused by exposure to CS gas
Compensation (Commonwealth Government Employees) Act 1971

REASONS FOR DECISION

22 June 2001 Mr B. H. Pascoe, Senior Member

This is an application to review a decision of the respondent dated 16 April 1998 which affirmed a prior determination dated 21 July 1997 which denied liability to pay compensation to the applicant. A claim for compensation had been lodged by the applicant on 25 July 1996 stating that the applicant suffered from "chemical exposure, muscle, blisters, skin rash, dizziness, vomiting, fatigue, allergy, bleeding, headaches, etc. etc." caused by "CS tear gas training" during a recruit training course at Puckapunyal in April 1982.
The first day of hearing of this application was on 5 October 2000 when the applicant was represented by Mr Lopes of counsel and the respondent by Mr Wallace of counsel. The only evidence on that day was that of the applicant, Ms Delaney. It was listed for a further two days on 18 and 19 January 2001, but the applicant sought an adjournment owing to the recent illness of Mr Lopes. The hearing was resumed on 29 March 2001 when the applicant was represented by Mr Paine of counsel. Evidence was given by Dr Ford, a cytogeneticist, by video link; Mr Printz, a former Army instructor; and Dr Fryman, a general practitioner. For the applicant the following additional documents were tendered:

A report by Professor O'Brien, rheumatologist and allergist, 14 December 1998 (Exhibit A1)
A report by Dr Collins, consultant forensic pathologist, 23 March 2000 (Exhibit A7)
An extract from the Army Occupational Health and Safety Manual (Exhibit A9)

The respondent tendered three reports from Dr Barton, a consultant occupational physician, dated 29 January 1999, 20 December 1999 and 24 February 2000 (Exhibits R1, R2 and R3) together with the applicant's medical file from Dr Fryman (Exhibit R4).

Ms Delaney was born in Australia in 1952 and moved to New Zealand at 9 years of age. She left school at 15. After a variety of jobs including office work, working in coffee shops and a department store, a machinist and fruit picking and packing, she returned to Australia in 1979. She joined the Army Reserve in March 1982. In June 1982 she attended a 15 day recruit training camp. At some time during the 15 days, Ms Delaney was required to undertake gas training. She was provided with a gas mask and waited for some time with other recruits for her turn in the gas shed. She understood that she would be required to answer questions in a mock interrogation and, at some point, remove her mask to be exposed to the gas. Ms Delaney said that it was a warm day and, while waiting, adjusted her mask to allow in air to cool her face.
Ms Delaney believed that she was inside the gas shed for approximately three minutes with her mask on being asked questions. She was instructed to remove her mask and believed it was a further three to four minutes before she was directed to go outside. She said that she experienced a burning sensation on her head, neck and hands and severe eye pain. The burning and pain ceased after one hour. The recruits were instructed to have a shower and change clothing. Ms Delaney said she was unable to wash her clothes until some nine hours later because of lack of time and the few washing machines available.
Ms Delaney said that, on the last day of training, she started to suffer from swelling, fatigue, joint pain and swelling in the eyes whilst on the parade ground. She came off the parade ground and was told to see her own doctor as the camp had shut down. It was a Saturday and her family had arrived to collect her with the intention of staying with her husband's family for the weekend. On the way, they stopped at a pharmacist who gave Ms Delaney some antihistamine which helped the swelling of the eyes. She said that she decided to go home to Maryborough on the Sunday. By the Monday most of the swelling had gone and Ms Delaney saw her local doctor, Dr Ghai, who prescribed anti-inflammatories.
Ms Delaney said that she has continued since to experience a variety of symptoms including swelling, joint pains, stomach tenderness, breathing problems, sore throat, headaches, nausea, skin rash, ulcers and extreme fatigue. She consulted a number of specialists and had numerous tests but no clear diagnosis of any specific complaint. She continued in the Army Reserve as a cook for various periods until 1989 when she was unable to continue due to her symptoms and resigned. She moved to Geelong in 1988 and worked in various part-time and temporary jobs. Ms Delaney said that her symptoms made it difficult to continue working and she has not worked since 1990 after applying for an invalid pension. She believed that the appropriate diagnosis of her condition was chronic fatigue syndrome ("CFS").
While Ms Delaney said that she never knew the cause of her symptoms, she believed that they originated from the exposure to gas in 1982. In 1991 she began to research CS gas, sought legal advice in 1994 and lodged a claim for compensation in 1996. She maintained that, prior to 1982, she had no health problems other than having had a hysterectomy. Since the early 1990s she has developed hip displaysia and arthritis but did not allege that these were the result of exposure to CS gas.
In cross-examination, Ms Delaney said that she worked as a fruit picker in New Zealand in 1977 but was not aware of what sprays, if any, were used in the orchards and vineyards. She could not recall receiving treatment for a bacterial infection by her local doctor in 1982 prior to the Army Reserve training. She did accept that she had been treated for meningitis, swelling in the left leg joint and back problems prior to 1982. She maintained that the occasional muscle aches and pains prior to 1982 were not the same persistent and severe pain after 1982. Ms Delaney denied that she had not complained of fatigue and many other symptoms to general practitioners prior to 1987 notwithstanding that no reference to such complaints were found in their clinical records. She accepted that she had no direct knowledge that the gas to which she was exposed in 1982 was CS gas but considered that the result of her enquiries clearly indicated that CS gas was used.
Mr Printz was the senior instructor in initial training of recruits to CS gas between 1974 and 1976. He said that the type of gas used since World War II has been CS gas which was exposed to soldiers to less than 1% of the safe level of exposure.
Dr Ford had been asked to test a sample of Ms Delaney's blood. She noted an abnormality in the cells and chromosomes. Out of 50 cells, five had structural abnormalities. Dr Ford said that the background population rate was 1.3 abnormal cells in 1000 and that 5 in 50 was strong evidence that Ms Delaney had been exposed to some agent which can damage chromosomes. She said that her research indicated that such damage can result from exposure to chemicals, severe viral disease or drugs. She had understood that there had been no indication of a severe viral infection, that meningicocol septicaemia from which Ms Delaney had suffered could be excluded and that there were no drugs involved which could induce the extent of the chromosomal damage. She could not offer any opinion of whether Ms Delaney suffers from CFS as she had not seen her nor was in any position to make a diagnosis. Dr Ford acknowledged that research into CFS was in its infancy but, from her own research, was confident that evidence linking some cases of CFS to chemical toxicity including CS gas would emerge. She did assume that 1% of a safe level of exposure should not be dangerous but that it was possible that the exposure had been higher or that Ms Delaney had been particularly susceptible. She acknowledged that the connection between CS gas and CFS was speculative but considered that the history given to her indicated a likelihood that the exposure to CS gas was the cause of the chromosomal damage.
Dr Fryman said that Ms Delaney had been a patient since 1992. He said that she had told him that she had been diagnosed with CFS. He acknowledged that there was no specific diagnostic test for CFS and he had agreed with the diagnosis by a process of exclusion of other possible causes of her condition. He believed that CFS was an immune system disorder triggered by something in the environment. Dr Fryman acknowledged that, in his experience, the most common cause of CFS was a severe viral infection although, in some one-third of cases, the cause could not be identified. He said that it was possible, but not provable, that the exposure to CS gas had resulted in chromosomal damage which affected the immune system and resulted in CFS. He had not been able to identify any other cause of Ms Delaney's condition.
Dr Barton examined Ms Delaney on 27 January 1999 and had read the report of Dr Ford. He accepted that it was likely that Ms Delaney has CFS but did not believe that there was any medical evidence to support a view that the exposure to CS gas in 1982 caused, contributed to or aggravated her condition.
It was submitted for the applicant that her condition was caused by chromosomal abnormalities which, on the evidence of Dr Ford, had resulted from exposure to some outside factor and, in the absence of any other factor and the development of symptoms over a relatively short period after exposure to CS gas, the most probable factor was that CS gas exposure. It was argued that no medical evidence had been provided that exposure to CS gas could not cause problems. While Mr Paine accepted that the evidence of Mr Printz was that the exposure to the gas was less than 1% of a safe level, there had been no evidence of what was a safe level of exposure. It was argued that the intention of the gas training was to cause distress and Ms Delaney had suffered distress and may well have been a particularly susceptible individual.
For the respondent, it was submitted that Ms Delaney had been searching for some years to find a cause of her symptoms and, more recently, had sought to blame the exposure to CS gas. However, it was argued that the attribution to CS gas as the cause was no more than an hypothesis and could not be said as having any probability of having contributed to her condition to a material degree. Mr Wallace submitted that there was a lack of any firm evidence that Ms Delaney suffered from CFS or, if so, what was the cause of the condition. It was said that, while Ms Delaney had stated that she was in good health prior to 1982, her medical records prior to that time showed that she suffered many serious maladies, some involving surgical treatment. It was argued further that many of her alleged symptoms after 1982 were not shown in histories given to medical practitioners consulted in that subsequent period. It was said that the exposure to CS gas was of brief duration, at very low levels and at the same levels as had been used for many years prior to and since 1982 without any other evidence of long lasting symptoms from the large number of service personnel involved.
Under the Compensation (Commonwealth Government Employees) Act 1971, an employee of the Commonwealth is entitled to compensation for personal injury arising out of or in the course of the employment of that employee. Where the employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease and employment by the Commonwealth was a contributing factor to such contraction, aggravation, acceleration or recurrence of the disease, it is deemed to be a personal injury arising out of such employment. The Tribunal has to be satisfied, on the balance of probabilities, that the applicant suffered any injury which arose out of or in the course of employment by the Army Reserve or suffers a disease where such employment was a contributing factor.
There are two major difficulties in this case to be overcome by the applicant in the Tribunal accepting her claim that she suffers from CFS and that CFS was caused by her exposure to CS gas in 1982. The first difficulty is the description of her condition. She believes that she suffers from CFS. Dr Fryman supports that diagnosis, primarily as a result of eliminating other diagnoses, but there is little in the way of firm evidence of a proper and clear diagnosis of her condition. In itself this is not a bar to success for Ms Delaney as the Tribunal is not restricted by a difficulty in arriving at a correct medical label for her condition. It is sufficient if the Tribunal can be satisfied that she suffered an injury arising out of or in the course of employment. It is that second requirement which is a particular difficulty to overcome.
At best, the evidence in this case points to a possibility and only a possibility that exposure to CS gas was the cause of Ms Delaney's condition. Dr Fryman said that, in his 20 years of experience with CFS, he was of the opinion that some two-thirds of cases were caused by a viral infection and the remaining one-third from unidentified causes among which were thought to be exposure to chemicals which can attack the immune system. He felt that it was possible, but incapable of being proved, that it was likely that the history of Ms Delaney demonstrated an immune system reaction and, in the absence of evidence of any other factor, that the exposure to CS gas was the possible cause. Dr Ford made no diagnosis of Ms Delaney's condition but found chromosomal damage and, on the basis of her research, considered that there was a strong relativity between that damage and the degree of Ms Delaney's illness. She was not aware of any evidence of any chromosome breaking agent to which Ms Delaney had been exposed, other than, possibly, CS gas, but the high level of chromosomal damage indicated a greater exposure to some agent than the average person. Dr Ford accepted that she would not have expected the degree of damage from the level of exposure to CS gas experienced by Ms Delaney but that it was possible that the level was higher than said by Mr Printz or that Ms Delaney was particularly susceptible. On the other hand, Professor O'Brien, in his report of 14 December 1988, considered the connection between CS gas and Ms Delaney's condition as speculative and Dr Barton did not believe that there was any medical evidence to support a connection. This reluctance to attribute CFS to CS gas exposure was shared by Dr Oldmeadow, a consultant physician, and Professor Boyce who had examined Ms Delaney at the request of the respondent prior to the reviewable decision.
It must be said that what has been advanced by Ms Delaney is, at best, an hypothesis that there is a possibility that there is some connection between her exposure to CS gas and her medical condition. It is no more than that, a possibility. However, given the lack of medical knowledge of her condition and its causes, it is equally possible that the cause of that condition is something completely unconnected with her employment by the Army Reserve. It could have been something prior to 1982 or something subsequent to 1982. Consequently, it is not possible to attribute any degree of probability to the claimed causation. It follows that the decision under review should be affirmed.
I certify that the eighteen (18) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Signed:         ............................................................................
  Personal Assistant
Date/s of Hearing  5 October 2000 and 29 March 2001
Date of Decision  22 June 2001
Counsel for the Applicant        Mr L. Paine
Solicitor for the Applicant         Petersons
Counsel for the Respondent    Mr J. Wallace
Solicitor for the Respondent    Australian Government Solicitor