Dunston and Comcare (Compensation) - [2019] AATA 3772

Dunston and Comcare (Compensation) [2019] AATA 3772 (17 September 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/6064, 2018/0214
GENERAL DIVISION  )
Re: Michelle Dunston
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Member Richard West
DATE OF CORRIGENDUM:            24 September 2019
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

Paragraph a. of the Decision is altered to read:
a. The decision of the Review Officer dated 12 January 2018 is set aside and in substitution the Tribunal determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under sections 16 and 21 of the Safety Rehabilitation and Compensation Act 1988 in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.

Paragraph 57 of the Reasons for Decision is altered to read:
57. Accordingly, the Tribunal sets aside the decision of the Review Officer of 12 January 2018, and in substitution determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under ss 16 and 21 of the SRC Act in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.

.....................[sgd]..............................................
Member
Division:GENERAL DIVISION
File Numbers:2017/6064 and 2018/0214
Re: Michelle Dunston
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member West
Date:17 September 2019
Place:Melbourne

Application 2018/0214:
a. The decision of the Review Officer dated 13 December 2017 is set aside and in substitution the Tribunal determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under sections 16 and 21 of the Safety Rehabilitation and Compensation Act 1988 in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.
b. Costs are reserved.

Application 2017/6064 is adjourned.
…………[sgd]…………………..
Member Richard West
Catchwords
COMPENSATION - aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome – entitlement to compensation under ss. 16 and 21 of SRC Act - no present liability - permanent impairment – application of the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 and American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition 2001 – absence of medical evidence to assess degree of impairment.
Legislation
Administrative Appeals Tribunal Act 1975 (C’th)
Safety Rehabilitation and Compensation Act 1988 (C’th)
Cases
DNJN and Comcare [2014] AATA 237
DNJN and Comcare (Compensation) [2015] AATA 928
Prain and Comcare (Compensation) [2016] AATA 459
Hutchinson and Comcare (Compensation) [2018] AATA 4357
Kennedy and Comcare (Compensation) [2018] AATA 1837
Prain v Comcare [2017] FCAFC 143
Plumb v Comcare [2004] AATA 999,
KTKY and Comcare (Compensation) [2019] AATA 1123
Comcare v Wuth [2018] FCAFC 13
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1
American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition 2001
REASONS FOR DECISION

This matter concerns two applications for review of two decisions of the delegate of the Respondent, which were heard concurrently by the Tribunal.
In application no. 2017/6064, by decision dated 15 August 2017, the delegate affirmed the Respondent’s primary determination of 6 July 2017 to deny liability to pay compensation to the Applicant in respect of a permanent impairment and non-economic loss for aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, pursuant to s 24 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
In application no. 2018/0214, by decision dated 12 January 2018 the delegate affirmed the primary determination of 13 December 2017 to find no present liability to compensation benefits under ss16 and 21 of the SRC Act in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.
Matter 2018/0214
History of Claim
On 10 April 2012, the Applicant submitted a claim for compensation for an aggravation of chronic fatigue syndrome (CFS) and an aggravation of depression and anxiety caused by isolation, victimisation, discrimination and negligence in the workplace, with a date of injury of 28 July 2011.
On 2 July 2012 the Respondent rejected the claim,[1] and this decision was affirmed by a Review Officer on 12 September 2012.[2]
[1] Documents provided under s 37 of the Administrative Appeals Tribunal Act 1975(Cth) (T-documents) T48 at p. 173 of 2017/6064.
[2] T53 at p.193 of 2017/6064.
On 24 April 2014 this Tribunal affirmed the Review Officer’s decision.[3] In reaching its decision, the Tribunal made the following findings of fact regarding the Applicant’s claimed injury at paragraphs [20] to [24]:
[3] DNJN and Comcare [2014] AATA 237.
20. The matter in dispute between the parties is whether the aggravation in 2010 of the condition then suffered by the Applicant is an injury within the meaning of subsection 14(1) of the Act in respect of which Comcare is liable to pay compensation to the Applicant.
21. The Applicant argued that the condition she suffered in 1992 has been properly diagnosed as Chronic Fatigue Syndrome and because of the sudden onset of symptoms following her drug therapy, that condition is an injury simpliciter rather than an ailment. She argues that the aggravation of her condition in 2010 is an aggravation of an injury and not an aggravation of an ailment and therefore not a disease.
22. On the evidence before me I cannot be satisfied that the condition suffered by the Applicant in 1992 should be classified as an injury. In reaching this conclusion I have taken into account the report of Dr Donohoe, Medical Practitioner, who assessed the Applicant for the purposes of these proceedings.
23. In the opinion of Dr Donohoe the Applicant suffered a drug injury from the use of Roaccutane. In his report of 24 June 2013 Dr Donohoe stated:
The injury caused by the drug was insufficient to cause disabling chronic fatigue syndrome, but was sufficient to make her susceptible to late stresses which did cause chronic fatigue syndrome.
24. For the reasons which follow I am satisfied that the condition from which the Applicant suffers is an ailment within the meaning of the Act. As I am satisfied that the Applicant has suffered a disease by reason of the aggravation of her pre-existing ailment, it makes no difference to the resolution of the issues how the original condition is classified.
The Tribunal nevertheless concluded[4] that:
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.
[4] DNJN and Comcare [2014] AATA 237 at [86].
The Tribunal’s decision was set aside by a decision of the Federal Court and remitted to the Tribunal for reconsideration.[5] The Court allowed the appeal on the basis that the applicant was not put on notice that the Tribunal might find that the transfer was a causative, reasonable administrative action and so did not have an opportunity to make submissions that the Tribunal should find otherwise.[6]
[5] Order of the Federal Court made 7 October 2014 in matter No. (P) VID281/2014.
[6] See DNJN and Comcare (Compensation) [2015] AATA 928 at [22].
For the purposes of the reconsideration, the Tribunal noted that the parties accepted the Tribunal’s findings regarding the Applicant’s injury in its previous reasons for decision; and that the sole issue before the Tribunal was whether the aggravation of the Applicant’s CFS was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.[7]
[7] DNJN and Comcare (Compensation) [2015] AATA 928 at [27] and [28].
On 2 December 2015, the Tribunal determined[8] that the Review Officer’s decision of 12 September 2012 should be set aside, and in substitution it decided that:
(i) in accordance with s. 14 of the SRC Act, the Respondent is liable to pay compensation to the Applicant in respect of an injury being an aggravation of Chronic Fatigue Syndrome;
(ii) the injury arose out of the Applicant’s employment by the Commonwealth; and
(iii) in accordance with s.7(4) of the SRC Act the Applicant is taken to have sustained the injury on 23 July 2010.
[8] DNJN and Comcare (Compensation) [2015] AATA 928 at [47] and [48].
Payment of compensation was commenced in accordance with the Tribunal’s decision.
On 13 December 2017, a delegate of the Respondent denied liability for ongoing medical expenses and incapacity payments in respect of the aggravation of CFS, finding that there is no longer a link between your current condition and your Commonwealth employment.[9] That decision was affirmed by a Review Officer on 12 January 2018 (Reviewable Decision).[10]
Issues for Determination
[9] T17 at p. 29 of 2017/0214.
[10] T33 at p. 78 of 2017/0214.
The initial findings of the Tribunal, that on and from 23 July 2010 the Applicant suffered from an ailment, namely an aggravation of a pre-existing CFS (Ailment), which was contributed to, to a significant degree, by her employment with Centrelink was not in dispute.
The principal issue to be determined in this matter is whether, by the date of the delegate’s decision on 13 December 2017, the Applicant continued to suffer the Ailment and whether the circumstances of her employment continued to contribute to a significant degree to the Ailment. If the answer to these questions is ‘yes’, it is then necessary to consider whether this continues to be the case at the time of the Tribunal’s decision.[11]
[11] Prain and Comcare (Compensation) [2016] AATA 459 at [43].
It is important to note that the Ailment, as found by the Tribunal in its decision of 2 December 2015, is not CFS itself. The Tribunal found that the Applicant had suffered CFS prior to her employment as a result of a reaction to the drug Roaccutane. This is not disputed by the Applicant. The Ailment found by the Tribunal, and for which compensation was initially provided, was the aggravation of the pre-existing CFS. This finding is confirmed by the medical evidence before the Tribunal in this application.[12]
[12] See Dr Donahue in Exhibit A4 at [2.1] and Dr Hunter in Exhibit R7 at [3].
It is also not disputed by the Respondent that the Applicant has continued to suffer from CFS since 2010. The Respondent’s submission is that as at 13 December 2017 the Applicant’s work-related aggravation of CFS no longer contributed to her incapacity for work.
Background Facts
The background facts in this matter are set out in the decision of Deputy President J W Constance of 2 December 2015[13] at paragraphs [8] to [18], as follows:
[13] DNJN and Comcare (Compensation) [2015] AATA 928.
8. 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.
9. 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.
10. 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.
11. In 2003 the Applicant commenced employment with Centrelink. 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.
12. 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.
13. 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.
14. 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. 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.
15. The person to whom the Applicant spoke on 2 August 2010 was Ms Eyre of the Human Resources Team. 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.
I am satisfied that this is an accurate record of the conversation which took place.
16. On 4 August 2010 the Applicant sent an email to Mr Barillaro which read, in part:
Further to my email sent the other day. I would like to advise that I would like to be considered for a compassionate transfer back to DSM. This is due to health reasons.
17. The Applicant was on recreation leave from 4 August 2010 until 23 August 2010. On 16 August 2010, while she was on leave, the Applicant again spoke to Ms Eyre and asked her “how you got on with my transfer”. Ms Eyre again advised the Applicant that she should arrange for a certificate to be issued by her treating doctor and that she should contact her team leader. The Applicant stated that she would do this. She said also that she did not wish to return to her position in the Random Sample Team.
18. The Applicant was not transferred back to the Disability Processing Team. Her employer arranged for her to work away from the Random Sample Team. On 28 July 2011 the Applicant went on leave and has not returned to work since. [She was retired on medical grounds in August 2014].
Medical Evidence
In relation to both applications the Applicant relied on the medical evidence of the Applicant’s general practitioner Dr Ann Small, Dr Don Lewis and Dr Mark Donohue. The Applicant tendered a report from Dr Small dated 15 October 2018[14] and Dr Small gave oral evidence to the Tribunal. The Applicant tendered a report from Dr Don Lewis dated 29 January 2018,[15] but Dr Lewis was not called as a witness as he was unfit to give evidence due to poor health. The Applicant tendered three reports from Dr Donahue dated 24 June 2013,[16] 9 March 2018 and 21 January 2019.[17] Dr Donahue gave oral evidence to the Tribunal.
Dr Small
[14] Exhibit A4.
[15] Exhibit A1.
[16] T66 at p.318 of 2017/6064.
[17] Exhibit A3.
In her report of 15 October 2018 Dr Small stated that the Applicant remains unwell and she is fatigued and in pain every day, she has trouble with memory and concentration, she is depressed and needs antidepressants, if she has coffee with a friend, she is exhausted the next day, she has insomnia and requires medication.
Dr Small concluded in her report that the Applicant was still suffering from the same work- aggravated compensable CFS condition, remains totally incapacitated for work and requires ongoing medical treatment. In her oral evidence she confirmed that this was continuing.
Dr Small identified four psychological and emotional stressors in the Applicant’s life since 2014. They were:
·the AAT determination of 2015;[18]
·the denial of her claim for permanent impairment and non-economic loss in 2017;[19]
·her examination by the Respondent’s medical practitioner Dr Vecchio and his report of 2017,[20] which disagreed with all other doctors she had seen; and
·her legal battle in 2018.[21]
[18] DNJN and Comcare (Compensation) [2015] AATA 928.
[19] Reviewable Decision 2.
[20] The Respondent did not seek to rely on Dr Vecchio’s report.
[21] The current proceedings.
Dr Small opined that the Applicant has been under constant psychological and emotional stress since her case began in 2012. She went on to say in her report that:
These Court/legal cases exhaust her – she has to plan for them, meet her lawyers, her anxiety and depression worsen. This has been going on for years now. She is now suffering from work-related CFS aggravation by all these work-related legal contests
Under cross-examination, Dr Small was taken to her report of 5 April 2016[22] and confirmed the statement that:
The stress of her job change and lack of managerial support worsened her CFS in 2010-2011. Then the continuing refusal of ComCare to accept her CFS as work-related and the long-term harassment of medical appointments/conciliations etc further exacerbated her CFS until she had to retire on invalid grounds in 2014.
[22] T83 at p.427 in 2017/6064.
Dr Small also agreed that there were other psychological and emotional stressors in addition to the factors she had identified in her report of 15 October 2015. She agreed that this included the Applicant’s discrimination complaint to the Human Right Commission.
Dr Small gave evidence that the Applicant’s symptoms fluctuated, but her symptoms remain bad and can go to very bad and do not ease when stress is lower. She said that the Applicant’s symptoms have fluctuated from week to week, but since 2010 they have not changed over time.
Dr Donahue
In his report of 24 June 2013, Dr Donahue diagnosed that in 2009/2010 the Applicant had aggravated the CFS she suffered previously as a result of taking Roaccutane some years earlier, and opined:
While I would hope that her removal from workplace stresses including the environment she found stressful to her, will aid in her recovery, there is no evidence of this at present. I can find no rationale to disagree with the clinical practice guidelines,^[[23]^] and regard her injury at present as permanent in nature. I do not think that the condition has stabilised, and it may be necessary to review this prognosis in a year or two to determine if significant gains in quality-of-life or recovery of health or reduction of symptoms has occurred. At that time, a more accurate prognosis is likely to be able to be given.
[23] In this context Dr Donahue referred to the Australian Chronic Fatigue Syndrome Clinical Practice Guidelines which state that for people who have been severely disabled by CFS and unable to work for more than 5 years, the probability of substantial improvement within 10 years is less than 10% to 20%.

In his report of 21 January 2019 Dr Donahue opined:
[the Applicant’s] CFS was initially caused by an idiopathic response to the drug Roaccutane, and she recovered from this sufficiently to be gainfully employed with minimal disability.
From 2005 to 2010, stress in her workplace increased and [the Applicant’s] symptoms and disability increased resulting in an exacerbation of her chronic fatigue syndrome. By 2014, she was so disabled by her chronic fatigue syndrome that she medically retired.
As is common with chronic fatigue syndrome, the exacerbation has persisted for the four years between her retirement and the time I last reviewed her in December 2018. It is difficult for me to comprehend how her current symptoms and disability could be considered more likely to relate to the Roaccutane exposure than to the work stresses between 2005 and 2010. She effectively recovered from the former for over thirteen years, whereas there has been a continuity and worsening of symptoms and disability caused by work-place factors between 2005 and her retirement, and no recovery following retirement.
Under cross-examination, Dr Donahue conceded that the removal of workplace stress was the basis for his hope in 2013 that the Applicant might recover. He described the workplace stress as the major contributing factor to the exacerbation of the Applicant’s CFS. He conceded that the rejection of the Applicant’s Comcare claim was a source of stress. He stated in his report of 21 January 2019[24] that:
One primary treatment option is stress reduction and stress management, possibly with access to mindfulness and meditation training. One of her stresses has now become the issue of denial of workplace causation of her current condition, and rejection of her compensation claim. This process has itself resulted in increasing symptoms and disability.
He also agreed that the factors identified in Dr Small’s report of 15 October 2018 probably contributed to the Applicant’s current CFS.
Dr Hunter
[24] Exhibit A3.
The Respondent relied primarily on the medical evidence of Dr Robin Hunter, a consultant rehabilitation physician, with approximately 15 years’ experience in conducting treatment programs for patients suffering from CFS. The Respondent tendered a report from Dr Hunter dated 3 May 2018[25] and Dr Hunter gave oral evidence to the Tribunal by telephone.
[25] Exhibit R7.
In her report of 3 May 2018 Dr Hunter concluded that:
·it was reasonable to assume that the Applicant’s CFS was precipitated by an adverse reaction to Roaccutane in her early twenties;
·from the progress notes of Dr Small, it is apparent that the Applicant had significant symptoms of CFS in June 2009; although she was able to continue to work until July 2010;
·her symptoms were exacerbated by work stressors resulting in her being unable to continue at full-time work after July 2010; and
·when she ceased work altogether in 2011 the work-related stressors were removed.
Dr Hunter concluded in her report that the Applicant:
…is suffering from a pre-existing condition, chronic fatigue syndrome, which was present prior to July 2010 and was aggravated by work but has persisted despite ceasing work.
The applicant’s former employment with Centrelink does not continue to contribute significantly to her symptoms of chronic fatigue syndrome.
Under cross-examination Dr Hunter was asked about the Applicant’s efforts since 2011 to establish her Comcare claim, involving three hearings and numerous meetings with doctors and lawyers over eight years. Dr Hunter did not agree that reliving workplace stresses through the litigation process amounted to retraumatisation but she opined that the stress of the processes would have impacted on the Applicant’s CFS and could have led to the maintenance of her ongoing CFS condition.
Dr Hunter’s evidence was that, with the removal of work-related stressors in 2011, the Applicant’s employment does not continue to contribute significantly to her symptoms of chronic fatigue syndrome.
The Applicant
The Applicant gave evidence[26] as follows:
[26] Exhibit A2.
·She ceased work on or about 28 July 2011 and has not returned to work.
·Since the injury, being an aggravation of her CFS, she has had severe and persistent CFS symptoms including facial bone pain, mental and physical tiredness that is made worse by even slight stress, severe insomnia, depression and anxiety, painful lymph nodes in her heck, memory and word-finding difficulties, difficulties dealing with extremes of weather, handwriting difficulties, sore muscles, dizzy spells, digestive problems, heart palpitations, sensitivity to crowds and noise.
·Her condition has caused a permanent change in her CFS condition to the extent that she can now barely function, and if she were to cease taking Lexapro and Benzodiazepine she would not be able to function or care for herself.
·The baseline of her CFS has changed dramatically. Prior to 2005 she rarely had the need to see a doctor and she enjoyed life and work. Today she is largely housebound. She spends weeks hardly speaking to anyone and her only social contact is through yoga classes. She has to live alone and get people to do her household work.
·She stated that she has constant headaches and sinus pain which feels like pressure and heaviness. It is like living with constant glandular fever along with a hangover.
· She said she takes the following medication:
i.Lexapro/escitalopram 10 to 20 milligrams a day;
ii.Temaze/benzodiazepine 20 to 40 milligrams each night;
iii.Melatonin 5 milligrams at night; and
iv.various other supplements.
·She said she requires counselling, medication, yoga and meditation to assist her in dealing with CFS so as to live day to day.
Under cross-examination the Applicant was taken to the four factors identified by Dr Small as psychological and emotional stressors which continued after 2014 to aggravate her CFS. The Applicant denied that these matters were particularly stressful for her. She said that she was worried for a time that she would lose her house because she had been denied top up payments but now that the issue had been resolved in her favour she wasn’t worried. She was also taken to Dr Small’s clinical notes,[27] where Dr Small had noted the Applicant’s involvement in proceedings in the Human Rights Commission and involving Comcare as well as allegations that she was being bullied to return to work. The Applicant denied that any of these matters were causing her significant stress. She insisted that she was used to the litigation process and disagreed with Dr Small’s assessment that the legal process had caused her significant stress.
[27] Exhibit R1.
The Applicant was shown Dr Small’s report of 20 May 2014 in which Dr Small had noted that the Applicant had:
(i)a nervous breakdown in 2005 due to stress at work;
(ii)been constantly tired and fatigued after taking Roaccutane when she was 23 and had not been the same since;
(iii)constant headaches for years; and
(iv)insomnia for years.
The Applicant disputed this record by Dr Small. She agreed that she had a breakdown in 2005 but disputed the record otherwise; conceding only that she had had headaches constantly since 2005.
The Applicant was shown a report by Professor Hollander dated 28 March 2013,[28] upon which she had written extensive comments.[29] She said she could not recall her own comments. When it was put to her that she had not taken issue with the history taken by Professor Hollander, other than at paragraph [2] of her commentary, she said she did not know, but she may have had other concerns. When asked if she recalled saying to Professor Hollander that she was first diagnosed with CFS in 2009 and they were not sure even then, as recorded at page four of the report,[30] she said she wasn’t sure.
[28] T60 at p. 230 of 2017/6064.
[29] T64 at p. 278 of 2017/6064.
[30] T60 at p. 233 of 2017/6064.
The Applicant was shown a copy of the report of Dr Daniel Lewis dated 18 March 2013[31]. Dr Lewis had recorded that the Applicant had said she told him that she gets out of bed at 9.00 am, occasionally goes back to bed after breakfast, often has pain which is worse than her fatigue, and she has a serious pain problem having had a headache for 20 years. She said she did not believe that she said that.
[31] T62 at p.266 of 2017/6064.
The Applicant was taken to the report of Dr Small dated October 2010.[32] She said she disagreed with the statement in the report that she complained of having felt tired and fatigued since having a course of Roaccutane in 1991, and had described having constant headaches and unrefreshed sleep for years. This is notwithstanding that Dr Small noted in the report that she was co-operative and clear in giving her history and that her history had not changed over time.
[32] Exhibit R3.
The Applicant was also shown a report of Dr Plumley dated 3 March 2016.[33] She denied telling Dr Plumley that she had 25 years of chronic headaches, cognitive problems and mental fatigue. as he had recorded in his report.
[33] Exhibit R4.
The Applicant said that Dr Cunnington, in his report of 4 October 2011[34] was incorrect in stating that she had described difficulty with both sleep onset and sleep maintenance insomnia over around 20 years.
[34] Exhibit R5.
In Dr Cunnington’s report of 10 April 2012, regarding a diagnostic sleep study he conducted for her, he recorded that part way through the study the Applicant felt she had not slept at all and insisted on removing the monitoring leads and went home. In fact she was recorded as having slept for 45 minutes. Under cross-examination, the Applicant insisted that she was 100% correct and she was certain that she did not fall asleep.
The Applicant confirmed her statement dated 11 March 2012,[35] in which she complained about the medical reports of various medical practitioners, accusing them of taking advantage of the vulnerabilities of CFS patients, outright lying about what is told to them and not caring about the trust and competence expected of the medical profession. She said she had been exposed to some very dodgy practitioners.
Consideration of the Evidence
[35] T59 at p.229-229 of 2017/6064.
In giving her evidence the Applicant gave the impression that she was seeking to minimise the effect of everything other than her employment prior to July 2011 as contributing to the aggravation of her condition. She appeared at times to be evasive, with a deliberately selective memory and an unwillingness to make reasonable concessions. The Tribunal accepts, as was submitted by counsel for the Respondent, that this impression may have resulted from the Applicant’s medical condition rather than any deliberate attempt to mislead the Tribunal.
The Tribunal is mindful of the debilitating effects that can arise from CFS; and the medical evidence in this case indicates that the Applicant’s condition can have a deleterious effect on her cognitive functioning and her memory. The Tribunal therefore draws no negative conclusions regarding the credibility of the Applicant but it does note that, taken overall, the Applicant’s evidence suggests that she is not the best judge of events and of what affects her condition. For this reason, where there is a disparity between the Applicant’s evidence and that of the medical experts, the Tribunal gives greater weight to the latter.
The Tribunal notes that both the delegate (who made the initial determination to deny compensation to the Applicant) and the Review Officer (in reviewing that determination) based their respective decisions on the medical report of Dr Veccio dated 19 June 2017.[36] The Respondent does not rely on that report in these proceedings, and Dr Veccio was not called to give evidence.
[36] T95 at p. 466 in 2017/6064.
The principal evidence relied on by the Respondent is the evidence of Dr Hunter. In her opinion the Applicant’s former employment does not continue to contribute significantly to her symptoms of CFS. She agreed that stress associated with ongoing litigation could have resulted in the Applicant’s ongoing CFS symptoms and the worsening of her condition.
In assessing the weight to be given to Dr Hunter’s evidence the Tribunal notes that she did not elaborate on the reasons for her conclusion that the Applicant’s former employment does not continue to contribute significantly to her symptoms of CFS. Her opinion is based on an assumption that it is not reasonable to relate her permanent CFS to the 2010 work-related aggravation as the work-related aggravation was due to stressors at work that were eliminated in 2011 and cannot be considered as an ongoing contributing factor.
In addition, Dr Hunter’s opinion was based on having seen the Applicant on only one occasion on 30 April 2018, to assess her for the purpose of giving evidence in these proceedings. On the other hand Dr Small, who had treated the Applicant since June 2009, and Dr Donahue, who had consulted with her on several occasions from 2013, both gave evidence that the aggravation of the Applicant’s CFS, which had been caused by factors related to her employment in 2010, continued to contribute to her condition to a significant degree.
The Applicant’s medical witnesses acknowledged that the Applicant had experienced ongoing stress arising from her continuing involvement in litigation since she ceased employment in 2011. Dr Small in particular identified several sources of stress which had exacerbated the Applicant’s symptoms after 2015. The Applicant sought to downplay the effect of these stressors, but for the reason discussed earlier the Tribunal prefers the evidence of Dr Small. Dr Small stated that the Applicant’s involvement in litigation in the Tribunal, the Federal Court of Australia and the Human Rights Commission, and the attendant demands of consulting with lawyers and attending medical appointments, were stressors in the Applicant’s life after at least 2015 which had the potential to make her CFS condition worse. She stated that while these stressors made the Applicant’s symptoms go from bad to very bad, the Applicant’s condition did not improve at any stage throughout that period.
The Applicant asserts that evidence of stress resulting from litigation related to the Applicant’s injury is of itself work-related and any contribution of stress from such litigation to the aggravation of the Applicant’s condition should be accepted as a contribution by her employment to the injury. The Tribunal does not accept this submission.
In Kennedy and Comcare the Tribunal noted that the Courts have made clear that frustration towards a respondent in resolving a legal claim for compensation is not sequelae of an applicant’s employment; that is, it is not a compensable factor.[37] The Tribunal commented on this issue in similar circumstances in Hutchinson and Comcare:[38]
In the present case it seems that a considerable contributor to, even possibly a dominant cause of, the Applicant’s present mental condition is the stress and anxiety caused by the many Federal Court and AAT actions that the Applicant has, in her view, been required to undertake, and is still undertaking, to receive the compensation to which she sees herself entitled. It is also clear from the very lengthy submissions made by the Applicant in these proceedings and her communications with the Tribunal registry, that she sees herself as being mistreated, or at least not treated fairly, by Comcare and the legal system. These factors all seem to be significant contributors to the Applicant’s mental condition. As the above cited cases establish, these are not factors that relate to the Applicant’s employment by the Respondent for the purposes of s 5B(1) of the SRC Act.
[37] [2018] AATA 1837 at [27].
[38] Hutchinson and Comcare (Compensation) [2018] AATA 4357 at [122] see also Plumb and Comcare [2004] AATA 999, KTKY and Comcare (Compensation) [2019]AATA 1123 at [108]-[121].
However, the evidence of the Applicant and the medical witnesses was consistent in that the Applicant has had continuing CFS symptoms since she ceased work in July 2011. The Tribunal accepts that, over the entire period from July 2011 to September 2017 and continuing, the Applicant has consistently experienced debilitating symptoms of CFS; which have generally remained at the level which caused her to cease work in 2011, and in respect of which this Tribunal found that she had a compensable ailment. While the Tribunal accepts that later stressors, especially the Applicant’s involvement in various litigation, made her symptoms worse at times, it is not possible to discern from the evidence any pattern from which one could confidently draw the conclusion that the Ailment had been replaced by a subsequent aggravation of her CFS condition.[39]
[39] See discussion in Prain v Comcare [2017] FCAFC 143 at [79]-[87].
Dr Donahue noted in his report of 24 June 2013[40] that the Australian Chronic Fatigue Syndrome Clinical Practice Guidelines states that people who have been severely disabled by CFS and unable to work for more than 5 years have only a 10-20% chance of improvement within 10 years. Dr Hunter confirmed the appropriateness of these guidelines in her evidence. Based on these guidelines the Applicant’s claim that the aggravation of her CFS condition has continued unabated since 2010/2011 is plausible.
[40] T66 of 2017/6064.
While it is not appropriate to talk in terms of an onus of proof in administrative law proceedings of this kind, it is relevant that prior to the decision under review the Applicant had been found by the Tribunal to be entitled to compensation in respect of her injury. For the Tribunal as currently constituted to decide that the Applicant is no longer so entitled it needs to be satisfied that circumstances have changed, such that the factual basis for the earlier determination no longer applies.[41]
[41] Commonwealth v Borg (1991) 20 AAR 299, also Commonwealth v Muratore (1978) 141 CLR 296.
In this case the Tribunal, having regard to all of the evidence, is not satisfied that the Applicant’s current condition has ceased to be a continuation of the aggravation of her CFS contributed to by her employment in 2010. Notwithstanding the existence of other stressors over the eight years or so since the Applicant ceased employment, the evidence does not show that the work-related factors were, in the words of the Federal Court in Prain,[42] pushed into the background.
[42] Prain v Comcare [2017] FCAFC 143.
Accordingly, the Tribunal sets aside the decision of the Review Officer of 13 December 2017, and in substitution determines that, on and from 13 December 2017, the Applicant is entitled to compensation benefits under ss 16 and 21 of the SRC Act in respect of aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.
Costs of the matter are reserved.
Application no. 2017/6064
In March 2017 the Applicant submitted a claim for compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act for aggravated/exacerbation of Myalgic Encephalomyelitis/Chronic Fatigue Syndrome.
On 6 July 2017 the delegate of the Respondent declined the claim; and on 15 August 2017 the Review Officer affirmed that determination.
The Applicant seeks a review of this decision in these proceedings.
In the course of proceedings the parties addressed a threshold issue related to the application of s 24(5) of the SRC Act.
Section 24(1) provides that, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.[43] The factors to be considered in assessing whether an impairment is permanent are set out in s 24(2). The amount of compensation to be paid is a percentage of the maximum amount that equals the degree of impairment (expressed as a percentage) determined under s 24(5).
[43] Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s.27 of the SRC Act.

Section 24(5) of the SRC Act provides that Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. The approved Guide is currently the Guide to the Assessment of the Degree of Permanent Impairment – Edition 2.1 (Comcare Guide).
The Comcare Guide sets out, in Part 1, guidelines for the assessment of the degree of permanent impairment resulting from injuries to various bodily parts and systems.
Principle 12 of the Principles for Assessment in Part 1 of the Comcare Guide states that in the event an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this guide, the assessment is to be made under the American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition 2001 (AMA Guide)
The AMA Guide does not specifically deal with CFS. However, the AMA Guide states in section 1.5 of Chapter 1 as follows:
Given the range, evolution and discovery of new medical conditions, the Guides cannot provide an impairment rating for all impairments. Also since some medical syndromes are poorly understood and are manifested only by subjective symptoms, impairment ratings are not provided for those conditions. The Guides nevertheless provide a framework for evaluating new or complex conditions. Most adult conditions with measurable impairments can be evaluated under the Guides. In situations where impairment ratings are not provided, the Guides suggests that physicians use clinical judgement, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.
While the Tribunal makes no findings at this stage in relation to whether the Applicant’s ailment has resulted in a permanent impairment, it notes that there is substantial medical evidence to that effect from Dr Donahue,[44] confirmed by Dr Hunter (in her oral evidence), by Dr Small and by Dr Veccio.[45]
[44] T66 at p.322 of 2017/6064 and Exhibit A3.
[45] T95 at p.474 of 2017/6064.
Notwithstanding this evidence, none of the medical witnesses called in the proceeding provided to the Tribunal any assessment of the degree of the Applicant’s permanent impairment using the Comcare Guide or the AMA Guide.
Dr Donahue gave evidence that he was familiar with the Comcare and AMA Guides. He said that there was nothing in the guidelines from which to assess the degree of impairment of CFS. He specifically stated that Chapter 18 of the AMA Guide, which deals with Pain, was not appropriate for the assessment of the Applicant’s impairment. He stated further that he was familiar with the use of clinical judgement under Section 1.5 of the AMA Guide; but that it could not be applied to assess the degree of impairment for CFS because there was no similar condition, and nothing in the AMA Guide to which the Applicant’s CFS could be compared. He was specifically asked whether Chapter 12.1 of the Comcare Guide, dealing with sleep and arousal disorders, could be used in assessing the degree of impairment and he replied that he would love to say that it applied but it is not relevant.
Dr Hunter stated that the degree of impairment for CFS was not assessable under the Comcare Guide. She said that her experience was in the Victorian workers’ compensation system and in Victoria the relevant medical panel would never arbitrarily make an assessment under Victorian law based on clinical judgement. She said that it was outside her area of expertise to give an opinion as to whether the degree of impairment of the Applicant’s CFS could be assessed using clinical judgement under Section 1.5 of the AMA Guide.
In Comcare v Wuth[46] the majority stated, in relation to the reference to clinical judgement in Section 1.5 of the AMA Guide that:
In “suggest[ing]” that physicians use clinical judgment, it is plain from the context that the text is not suggesting that others might use clinical judgment, but is rather a suggestion to physicians as to how they might undertake the necessary comparison in situations where no impairment ratings are provided. As such, as Comcare submits, the AMA5 permitted only a physician to use clinical judgment, and did not permit the decision-maker independently in the absence of any expert evidence to compare the unlisted condition with an allegedly similar impairment that was measurable (emphasis added).
[46] [2018] FCAFC 13 at [94]-[95] per Perry J., with whom Siopis J. agreed.
In these proceedings, the Tribunal is not able to make an assessment of the degree of any permanent impairment it may find relating to the Applicant’s CFS as required by s 24(5) of the SRC Act because it has no medical evidence upon which to make that assessment under either the Comcare Guide or the AMA Guide.
In response to this issue the Applicant’s counsel sought to recall Dr Donahue to elicit further evidence on the assessment of the degree of impairment of the Applicant’s CFS. The Tribunal indicated that it would consider whether to allow further evidence to be called, once having considered the other matters raised in the proceedings.
Having now determined that the Applicant has a continuing entitlement to compensation in application no. 2018/0214 in respect of the aggravation of the Applicant’s CFS condition, and mindful that there is substantial medical evidence in support of a claim that the Applicant has a permanent impairment, the Tribunal is satisfied that the assessment of the degree of impairment under s 24(5) is a matter which may properly arise in this matter.
It is unfortunate that the evidence does not adequately address s 24(5) and the implications of Wuth. Had this situation arisen in judicial proceedings it might be expected that the court would determine the issues on the evidence as presented. However, the Tribunal is not a judicial body. The essential role of the Tribunal is inquisitorial, and it has an obligation to make the correct and preferable decision.[47]
[47] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Consistent with this obligation, the Tribunal has decided that it should defer further consideration of the review in application no. 2017/6064 and give each party an opportunity to put submissions on the question of what, if any, further evidence ought be tendered in relation to the assessment of the degree of impairment as required by s.24(5) of the SRC Act. A direction will be issued to that effect.
The application no. 2017/6064 is adjourned.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member West.

..........................[sgd]..........................................
Associate
Dated: 17 September 2019

Dates of hearing: 24, 26, 27 and 28 July 2019

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Chris Thomas

Saines Lucas Solicitors

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Cathy Dowsett

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