DNJN and COMCARE

Case [2014] AATA 237

[2014] AATA 237

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4514

Re

DNJN

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 24 April 2014 
Place Melbourne

The reviewable decision, being the decision of Comcare made 12 September 2012 that the Applicant is not entitled to compensation for aggravation of Chronic Fatigue Syndrome, is affirmed.

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

Deputy President J W Constance

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – chronic fatigue syndrome - whether applicant suffered an ailment within the meaning of the Act – whether applicant suffered an aggravation of an ailment – whether aggravation was contributed to, to a significant degree by the applicant’s employment – reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14(1)

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626
Hart v Comcare (2005) 145 FCR 29
Peters v Comcare [2013] FCA 1361

Smith v Comcare [2013] FCAFC 65

REASONS FOR DECISION

Deputy President J W Constance

24 April 2014 

INTRODUCTION

  1. The Applicant has been employed in the Australian Public Service since 2003.  In 2012 she made a claim for compensation for an injury she suffered and which she claimed was caused by her employment.  In her claim form the Applicant described the injury as an aggravation of pre-existing Chronic Fatigue Syndrome.

  2. On 12 September 2012 Comcare decided to affirm an earlier determination denying liability to compensate the Applicant.  The Applicant has sought a review of this decision by the Tribunal.

  3. For the reasons which follow the reviewable decision made by Comcare will be affirmed.

    BACKGROUND

  4. Unless stated otherwise, the following findings of fact are based on the evidence of the Applicant.

  5. The Applicant grew up in country Victoria.  She was a healthy child who enjoyed sports and outdoor activities and at the same time was an excellent student.

  6. In 1992 the Applicant took a course of Roaccutane, a drug prescribed by her general practitioner for the treatment of acne.  Immediately following her taking the drug the Applicant suffered a number of acute symptoms, including mental fatigue, insomnia, sore throat, swollen glands, sinus pain and headache.

  7. At the time of the onset of these symptoms the Applicant was studying at University.  After some time the acute symptoms subsided but the sinus pain and sore glands continued in a mild state.  She was able to complete her study and graduate with the Degree of Bachelor of Arts in Criminal Justice Administration.  Following graduation the Applicant worked in several jobs.

  8. In 2003 the Applicant commenced employment with Centrelink and has continued in that employment ever since.  In 2005 she was working in the Fraud Investigation Team when she suffered anxiety and depression arising, in part at least, from the type of investigative work she was undertaking.  After some time off work the Applicant was able…

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AGLC
DNJN and COMCARE [2014] AATA 237
Case
[2014] AATA 237
Decision Date

CaseChat Overview and Summary

The case between the Applicant and Comcare involved a claim for workers' compensation due to an aggravation of Chronic Fatigue Syndrome (CFS). The Applicant, who had been employed by Centrelink since 2003, experienced an exacerbation of her condition following a transfer to a new team in June 2010. The Applicant argued that this transfer, and the associated stress, led to the aggravation of her CFS and that this was a compensable injury under the relevant legislation. Comcare, on the other hand, contended that the aggravation was not a result of the transfer but rather was due to other factors, and that even if it was due to the transfer, it was reasonable administrative action taken in a reasonable manner, thus exempting it from compensation.

The court had to determine several issues: whether the Applicant suffered from an ailment within the meaning of the Act, if there was an aggravation of that ailment, if the aggravation was contributed to significantly by her employment, and if the aggravation resulted from reasonable administrative action taken in a reasonable manner. The court found that the Applicant did suffer from an ailment, specifically a disorder manifesting in various symptoms including tiredness and cognitive fatigue. There was also an aggravation of this condition, which occurred between June and August 2010, and this aggravation was contributed to significantly by her employment. However, the court concluded that the aggravation was a result of reasonable administrative action, namely the transfer to the new team, which was taken in a reasonable manner. Consequently, the aggravation was not compensable under the Act.

The court's reasoning was based on the evidence provided, which indicated that the Applicant's condition worsened after the transfer and the associated stress. However, the court found that the transfer was a reasonable administrative action, and since the aggravation occurred after this action, it could not be said to have resulted from it. Therefore, the claim for compensation was dismissed. The court did not find it necessary to determine a specific diagnosis of Chronic Fatigue Syndrome to conclude that the Applicant suffered from an ailment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the reviewable decision made by Comcare will be affirmed.BACKGROUND Unless stated otherwise, the following findings of fact are based on the evidence of the Applicant. The Applicant grew up in country Victoria. She was a healthy child who enjoyed sports and outdoor activities and at the same time was an excellent student. In 1992 the Applicant took a course of Roaccutane, a drug prescribed by her general practitioner for the treatment of acne. Immediately following her taking the drug the Applicant suffered a number of acute symptoms, including mental fatigue, insomnia, sore throat, swollen glands, sinus pain and headache. At the time of the onset of these symptoms the Applicant was studying at University. After some time the acute symptoms subsided but the sinus pain and sore glands continued in a mild state. She was able to complete her study and graduate with the Degree of Bachelor of Arts in Criminal Justice Administration. Following graduation the Applicant worked in several jobs. In 2003 the Applicant commenced employment with Centrelink and has continued in that employment ever since. In 2005 she was working in the Fraud Investigation Team when she suffered anxiety and depression arising, in part at least, from the type of investigative work she was undertaking. After some time off work the Applicant was able to continue working and to manage the symptoms of her condition. Her health issues caused her to take substantial, but not excessive, sick leave. For part of 2008 the Applicant worked in a claims processing role. As she was experiencing some difficulties in this position she had a fitness for duties examination and was moved into the Disability Processing Team. In April 2010 the Applicant took part in a coaching meeting with her team leader, Mr Parisi. A week later she had a discussion with her manager, Mr Barillaro. Following these meetings the Applicant formed the view that she may be made the subject of an unsolicited redundancy notice. A short time later she applied for a position in the Random Sample Team. Her application was successful and she commenced working in that team on 21 June 2010. Soon after she commenced in the new position the Applicant’s health deteriorated and she decided that the work she had been undertaking in her previous position in the Disability Processing Team was more suited to her. On 2 August 2010 the Applicant informed her employer that she wished to return to the Disability Processing Team.[1] At about the same time she spoke to the Manager in that team who advised her that there was not a vacancy available for her in the team.[1] Exhibit A7 p.166. The person to whom the Applicant spoke on 2 August 2010 was Ms Eyre of the Human Resources Team.[2] Her notes of this conversation read, in part:[The Applicant] rang back the same day and stated the following:She had applied for a permanent position with BI RSS (from Processing at ANC) had been here since late June. She wanted to go back to her previous job and had spoken to staff at ANC who said they needed her because they were understaffed however the Manager says, due to budget constraints, they are not taking on anyone.I explained that this was the case in most areas – they are often not advertising and not filling vacancies as they occur. [The Applicant] asked about being transferred back on medical grounds. I explained this would need to be assessed by the Workplace Health Team and she would need a certificate from her treating doctor. [The Applicant] stated she had a certificate but it had information on it she didn’t want her workplace to see. I suggested she contact the doctor and either ask to have another certificate without that information or make another appt. She advised she had REC leave for 2 weeks at the end of this week so would arrange it then.[3]I am satisfied that this is an accurate record of the conversation which took place.[2] Exhibit R3 para.6.[3] Exhibit R3 attachment C.

Evidence

Evidence Before The Court

When she gave evidence the Applicant verified the statements made by her in this report. On the basis of the Applicant’s evidence I am satisfied that the Applicant suffered significant stress shortly after she transferred to the Random Sample Team and that this stress arose from the realisation that she had been mistaken in seeking a transfer from the Disability Processing Team.The evidence of Dr Donohoe In the opinion of Dr Donohoe, to which I have already referred, stress can aggravate the condition of Chronic Fatigue Syndrome.[19][19] Exhibit A12.Finding Based on the evidence of Dr Donald Lewis and Dr Donohoe I am satisfied that the Applicant suffered an aggravation of the condition of Chronic Fatigue Syndrome. Based on evidence to which I shall refer later, I am satisfied that the aggravation occurred between 21 June 2010 and 4 August 2010.Issue 3: Was the aggravation contributed to, to a significant degree, by the Applicant’s employment by Centrelink? On the basis of the evidence of the Applicant and of Dr Donald Lewis, to which I have already referred, I am satisfied that the stress and the resulting aggravation of her condition which the Applicant suffered following her move to the Random Sample Team, was caused by that move. There is no evidence which suggests that the Applicant was caused stress by any other factor or factors at this time. I am satisfied that the aggravation of her condition was contributed to, to a significant degree, by the Applicant’s employment.Issue 4: Was the aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment?When did the aggravation occur? It is necessary to determine when the Applicant suffered the aggravation of her condition as any administrative action, reasonable or otherwise, which occurred after the aggravation cannot be said to have resulted in that aggravation. In the form claiming compensation[20], which was completed by the Applicant in April 2012, she stated that she first became ill in “early August 2010” and that she first sought medical treatment for the injury when she consulted her general practitioner, Dr Mughal, on 4 August 2010.[21] However the Applicant gave evidence that she consulted Dr Small on 23 July 2010 as she felt unwell. [20] Exhibit R1 pp.84-103.[21] Exhibit R1 p.87. On 6 August 2010 the Applicant informed her employer verbally that she felt she had an exacerbation of her illness.[22] The Applicant’s evidence is confirmed by the report of Dr Mughal dated 15 August 2010[23] in which he refers to the Applicant having “a medical condition which has been exacerbated recently, potentially becuase [sic] of her work changes” [emphasis added].[22] Exhibit A7 p.13.[23] Exhibit A3. The Applicant gave evidence that for about three weeks in June-July 2010, as part of her duties with the Random Sample Team, she interviewed customers. At this time she felt unwell as a result of suffering a chest infection. There is no evidence that this infection was work-related. After conducting the interviews the Applicant returned to her office to start the review process. It was then that she learned that she was required to review a case involving a marriage-like relationship. This realisation caused the Applicant to feel stressed in her new position.[24][24] Exhibit A5 paras 37-38.

Decision

Reasons for decision

The Applicant made no complaint about the manner in which she was advised that there was not a position available to which she could return. Had it been necessary I would have found that the action was “taken in a reasonable manner”. CONCLUSION Having decided that the aggravation of the Applicant's condition was suffered as a result of her transfer from one position to another and that the transfer was reasonable administrative action in respect of her employment and taken in a reasonable manner, the aggravation is not an injury within the meaning of the Act and the Applicant is not entitled to compensation for that aggravation.EVENTS AFTER THE AGGRAVATION OCCURRED There was some confusion in the case argued by the Applicant. The Applicant’s written submissions filed on 3 February 2014 stated, in part:My claim is for a workplace aggravation/exacerbation/relapse of chronic fatigue syndrome, the aggravation is dated 23rd of July 2010, the cause was significant stress resulting from a change in work group and duties… Later in the same submissions the Applicant referred to Comcare’s argument relating to the exemption based on reasonable administrative action as follows:Comcare stated at the start of the hearing that the only administrative action they [sic] were relying on was what they stated as the denial of my return to the Disability Processing Team. The cause however of the exacerbation of my CFS was changing teams, this was thus ‘arising out of the employee’s employment’ and date of injury 23 July 2010 is before any administrative actions occurred, so it cannot be said that these administrative actions, if that’s what they were, contributed to the onset of the aggravation of my condition. The argument put by the Applicant in her submissions was consistent with what she said when she gave her oral evidence:… my case is that my CFS was actually aggravated when I changed teams so when I moved from the Disability Processing Team in June 2010, so it was that moving team and moving duties that caused the aggravation and not anything that happened later.[50][50] Transcript 25/11/13 p.12. I have found that the aggravation of the Applicant's condition occurred in July-August 2010. Notwithstanding the argument put by the Applicant and the evidence I have referred to, I have considered that in the Applicant's Claim for Workers’ Compensation[51] the Applicant provided the following information:[51] Exhibit R1pp.84-103.12. When were you injured or when did you first notice you were ill?28/07/2011 when I had to cease work alltogether [sic].First became ill early August 2010.…24. What were you doing at the time you were injured or contract your illness?What started the chain of events that led to your injury or illness?Changing workplace duties in June 2010 started the chain of events which led to my illness and inability to work.25. What action, exposure or event happened to cause your injury or illness?Approx 12 months of employer and management lead adverse action subjecting me to workplace isolation, victimisation, discrimination and negligenceThis information in the Claim Form suggests that the Applicant’s claim is for an aggravation which was caused by the conduct of her employer over a period of 12 months. This is inconsistent with her claim as put during the hearing.

Ratio Decidendi

Legal Principle Established

The follow issues arise for determination.(1)Has the Applicant suffered an ailment within the meaning of subsection 4(1) of the Act?(2)If so, has she suffered an aggravation of that ailment?(3)If so, was the aggravation contributed to, to a significant degree, by her employment by Centrelink?(4)If so, was the aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment?CONSIDERATIONIssue 1: Has the Applicant suffered an ailment within the meaning of subsection 4(1) of the Act? On many occasions the Applicant has described in detail the condition she has experienced in varying degrees from 1992 onwards. She claims that what she has experienced are the signs and symptoms of Chronic Fatigue Syndrome. Based on her evidence I am satisfied that from time to time since 1992 the Applicant has suffered and continues to suffer the following:·pain in the sinus;·an overwhelming feeling of tiredness;·cognitive fatigue;·post-exertion exhaustion;·insomnia;·depression;·anxiety;·painful and swollen lymph nodes in the neck;·cognitive deficiencies;·adverse reaction to extremes of temperature;·sore eyes and floaters within vision;·a flu-like illness with aching and pain and at times a sore throat;·tightness and pain in muscles throughout the body;·dizziness;·digestive problems;·heart palpitations;·high sensitivity to the side-effects of medications;·sensitivity to crowds, loud noise and bright lights.[9]Not all of these signs/symptoms are constant. They vary in intensity. I accept her evidence that she is never symptom free.[9] Exhibit A6. The definition of ailment is very broad, although it is in part circular in that it includes the word ailment as part of the definition. The definition does not require that the ailment be a condition which fits within a recognized diagnostic criteria.[10][10] In Federal Broom Company Pty. Limited v Semlitch ((1964) 110 CLR 626) the High Court considered the provisions of State workers’ compensation legislation, but the principles are applicable. Windeyer J at para 639 said:But I can see no need for the Court to put a label upon the applicant’s illness, or to be concerned because witnesses labelled it differently. The Macquarie Dictionary includes the following definitions:Disorder: a derangement of physical or mental health or functions;Defect: a fault or imperfection. I am satisfied that since 1992 and as at the date of this decision, the Applicant has suffered from an ailment, being a disorder which manifests itself in variable signs and symptoms which include an overwhelming feeling of tiredness, cognitive fatigue and post-exertion exhaustion. This condition is properly described as a derangement of physical or mental health or functions and therefore is a physical or mental … disorder or defect within the definition of ailment in subsection 4(1) of the Act. During the hearing of this matter both parties devoted very considerable time and effort in arguing whether or not the Applicant was suffering from Chronic Fatigue Syndrome at the time she alleges she was injured by reason of that condition being aggravated. It is sufficient that I am satisfied that the Applicant suffers from an ailment; it is not necessary that I be satisfied of a particular diagnosis.