Farrow-Smith and Comcare (Compensation)

Farrow-Smith and Comcare (Compensation) [2022] AATA 3157 (26 September 2022)
Division:GENERAL DIVISION
File Number: 2021/0312
Re:Elloise Farrow-Smith
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President J Sosso and Member L Benjamin
Date:26 September 2022
Place:Brisbane

The decision under review is affirmed.
.....................[SGD].................................
Deputy President J Sosso
Catchwords
COMPENSATION – Ross River Virus – self-reporting of symptoms – conflicting medical opinion – credibility of witnesses – ailment was not contributed to, to a significant degree, by her employment – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
D’Amico and Comcare [2018] AATA 54
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
E.M.I (Australia) v Bes (1970) 44 WCR 114
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) FCR 65
Tully and Comcare [1996] AAT 349
White and Military Rehabilitation and Compensation Commission [2017] AATA 1555
Secondary Materials
Farmer, JF, Suhrbier A, ‘Interpreting paired serology for Ross River virus and Barmah Forest virus’, AJGP Vol 48, September 2019.
Flexman, JP, et al, ‘A comparison of the diseases caused by Ross River virus and Barmah Forest virus’ (1998) 169 MJA 159.
Harley et al, ‘Ross River Virus Transmission: Infection and Disease: a Cross-Disciplinary Review’, Clinical Microbiology Reviews, Oct 2001
Lucas, RE, Qiao, M, ‘A case of encephalitis in central Australia due to Ross River virus?’ Aust NZ J Med 1999, Vol 29, 25 March 2008.
New South Wales Government, ‘NSW Arbovirus Surveillance & Mosquito Monitoring 2019 – 2020’, Weekly Update: 14 February 2020 (Report Number 8).
REASONS FOR DECISION
Deputy President J Sosso and Member L Benjamin
26 September 2022
INTRODUCTION

Ms Elloise Farrow-Smith (the Applicant) seeks review of a decision dated 11 December 2020 by a Review Officer of Comcare which affirmed a determination of 9 September 2020 declining liability to pay compensation for the contraction of Ross River Virus, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) – Exhibit 1 T19 pp. 167 – 172.
The Applicant was born in 1969 and moved to the Northern Rivers District of New South Wales in 1974. Apart from periods during which she undertook study or work duties, the Applicant has been a resident of this region since 1974 – Exhibit 4 para 5.
The Applicant has resided at Suffolk Park, which is in the Byron Bay locality, since 2002 – Exhibit 4 para 21.
The Applicant commenced working with the Australian Broadcasting Corporation (ABC) as a journalist in June 1999. At all relevant times, the Applicant was employed as a journalist with the ABC – Exhibit 1 T7 p. 30, Exhibit 2 para 2.5.
On 12, 13 and 14 February 2020, the Applicant was assigned to cover floods which were affecting the Tweed, Chinderah, Tumbulgum, Coraki and Woodburn localities – Exhibit 1 T3, p. 10, Exhibit 4 para 33.
The Applicant stated that she had noticed mosquitos at all of the places she visited in the 12 – 14 February 2020 period; however, it was only on the third day that she remembered being bitten – Exhibit 4 paras 41, 43 and 51.
On 12 February 2020, the Applicant worked with Ms Bronwyn Herbert, and they covered the floods at Tweed Heads, Chinderah and Tumbulgum. The Applicant had the task of filming the floods – Exhibit 2 para 2.7, Exhibit 4 para 34. In her statement of 14 April 2021, the Applicant gave this account of her clothing on that day – Exhibit 4 paras 35 – 36:
“35. I was wearing long pants. These were cotton pants that were fitted but not tight. I wore lace up heavy duty boots. These were ankle high boots. The boots had been provided by the ABC. I wore ankle socks with them.
36. I wore a linen blazer type jacket with one button at the front, long sleeves and a collar with a T-shirt underneath. The jacket had pockets. I also wore a rain coat over the top.
37. I wore a similar outfit every day, except that I did not wear the rain coat on 14 February. By then, the rain had stopped and the sun had come out behind the clouds. It was hot and humid but overcast.”
On 13 February 2020, the Applicant worked with Ms Leah White, where they both covered the floods in the same locations – Exhibit 2 para 2.8, Exhibit 4 para 38.
Finally, on 14 February 2020, the Applicant worked with Ms Donna Harper, covering the floods at Coraki and Woodburn – Exhibit 2 para 2.9, Exhibit 4 para 39.
In her 14 April 2021 statement, the Applicant gave the following account of what had occurred on 14 February 2020 – Exhibit 4 paras 44 – 56:
“44. At Coraki on 14 February, I was filming by the river and especially down at the riverside caravan park. I noticed that there were lots of mosquitos around. There was mosquito repellent in the car. I put some on.
45.     We then went to Woodburn, and filmed there.
46. We returned to Coraki in the late afternoon. We noticed the river had risen further. We got out near where the two rivers joined. We were at the water’s edge. It looked like a good place to film as it was shady under the trees.
47.     A swarm of mosquitos descended on us from the trees.
48.     Donna went back to the car.
49. I could not move as fast because I had to pack up the camera equipment. I had a camera, tripod and back pack. I had to remove the camera from the tripod, pack up the equipment and carry it back to the car. Donna was unable to assist me with this because she has bad knees.
50. My hands, ears, face and the back of my neck were exposed. I felt mosquitos around my face and my hands. I felt mosquitos biting through my jacket on my shoulder blades and on the skin at the back of my neck as well as biting my neck through clothing. My hair was drawn back in a pony tail and part of my neck was exposed.
51.     That is the only occasion in the 3 days that I recall being bitten by mosquitos.
52.     I got back to the car as soon as I could.
53. I estimate that the mosquito attack went on for about 5 minutes. This occurred at about 4:00 p.m. or a bit later. The sky was overcast but it wasn’t raining.
54. I was the driver. I got into the driver’s seat and drove back to the ABC at Lismore. This took about 35 minutes.
55. I felt very itchy as I drove back to the office. I was itchy in the areas of my shoulder blades, my hands and around my neck.
56.     I was scratching the areas that I could reach.”
In her Workers’ Compensation Claim form, the Applicant provided the following account of what transpired during the course of covering the floods – Exhibit 1 T3 pp. 10 – 11:
“Over the course of three (consecutive) days in mid February, I was required to work in the field, reporting from flood affected areas. At all locations there were bad mosquito swarms. These locations were Tweed, Chinderah, Tumbulgum, Coraki and Woodburn. Despite wearing protective clothing (my camera jacket which I always wear when filming) and using insect repellent, I was bitten through my clothing on a number of occasions. My colleague returned to the car but I was required to film/operate the camera and was bitten whilst filming and on the return trip as I carried the camera and other equipment to the car. I had to be out of the car a lot more due to the filming commitment of my job. Two weeks later (late Feb) I began to experience aching joints and fatigue. The following week (early March) my condition worsened but I thought it was the flu. Then the COVID-19 lockdown happened and I was unable to get to a Doctor. My condition worsened and I thought I had COVID and tried to get tested. However the health authorities were not doing widespread testing in March so refused me. By early April my health had deteriorated. I attended the local Dr surgery and the Dr ruled out COVID and was of the opinion that I had Ross River virus. He then sent me for blood tests which confirmed Ross River virus. I have not had this illness before.
The Applicant’s account of the incident at Coraki was corroborated by her work colleague, Ms Harper, who provided the following undated statement – Exhibit 1 T7 p. 33:
“I was working with my ABC colleague, Elloise Farrow-Smith on February the 14th, 2020 covering the impact of floods on the river communities of Coraki and Woodburn for stories to cover multiple media platforms for the ABC.
The first time we arrived at Coraki was around 10am and we later returned to Coraki in the afternoon after visiting and filming another flooded river location at Woodburn.
Elloise was covering the television side of the story and had to regularly film the swollen rivers and flooded riverbanks to constantly send vision to Sydney for ABC TV news channels. This job required her to be out of the car more than myself as I would stay in the car to write up stories. I estimate she was out of the car about 80 per cent more of the time than me. I was able to return from those sites to the work car and write/file my stories inside the vehicle for radio news, online and Facebook. However Elloise’s work commitments required her to be outside the car in order to film/use the camera to gather video/tv content. On a number of occasions I did not get out of the car whilst Elloise filmed at different river locations.
Despite our ongoing attempts to protect ourselves, including regularly spraying the insect repellent on us, the mosquitos would bite through our clothing. There were swarms of mosquitos at these locations and they were ferocious. We were both wearing long sleeves and pants. Elloise wore lace-up work boots and a long sleeved cream linen blazer. I recall this because she got mud on the blazer and we had a conversation about the blazer because she called it her ‘work’ blazer.”
From 17 February 2020 until 28 February 2020, the Applicant worked at the ABC offices in Lismore before starting long service leave; however, she started to feel unwell on 26 February 2020, and, by 28 February 2020, was “pretty bad” – Exhibit 4 paras 64 – 66
“64. On the evening of 26 February, I attended a function with a group of ABC employees. This was a film premiere at the cinema at Byron Bay.
65. I recall that I did not feel very well that evening. I was not drinking.
66. By Friday 28 February 2020, I was feeling pretty bad. This was my last day at work before proceeding on long service leave. I was intending to take leave for about 3 months.”
On her way home from work, the Applicant visited a Chemist at Goonellabah where she spent about $400 on medications such as Panadol and Nurofen, as well as temperature scans, vitamins, eucalyptus products, tissues and other items. The Applicant claimed that she was not thinking logically or clearly, was delirious and struggled to drive home – Exhibit 4 para 69.
The Applicant spent the weekend in bed and suffered from body aches and pains. She took Panadol and Nurofen to relieve her symptoms – Exhibit 4 paras 71 – 72.
On 3 March 2020, the Applicant travelled to Yamba to stay with her mother. She was subsequently joined by her partner and son. The Applicant gave the following account of her time in Yamba – Exhibit 4 paras 73 – 76:
“73. My mother was insistent that we go on the holiday as planned. On 3 March we left for Yamba. We regularly holiday at Yamba. My mother drove us to Yamba. We were joined there by my husband and my brother and my son. I was still taking panadol and nurofen.
74. We stayed at Yamba from 3 to 7 March 2020.
75. We had a house on Pilot Hill. The house had fly screens.
76. I had a bedroom. I spent most of my days in bed. I got up to go to a massage place in Yamba each day to relieve my body aches. Then I would go home and back to bed. I did not get any better. I could not do any of the things we usually do on holiday in Yamba because I felt exhausted and like I had the flu.
77. I did not try to go to a doctor in Yamba, I thought I had the flu and should keep away from people.”
The Applicant returned to her home, but her condition continued to deteriorate. She was tended to by her partner, and thought she had contracted coronavirus. On 6 April 2020, the Applicant saw her General Practitioner (GP) and a blood test was organised which confirmed that she suffered from Ross River Virus. Due to the debilitating effects of the disease, she was unable to return to work at the conclusion of her long service leave, and eventually, returned to work in October 2020 on reduced hours. Unfortunately, she was unable to cope and has still not recovered – Exhibit 4 paras 80 – 91.
A medical certificate of 6 May 2020 from the Applicant’s treating GP, Dr Gregory Gover, contained the following information – Exhibit 1 T5 p. 18:
“Ms Elloise Farrow-Smith has been diagnosed with Ross River Virus infection and is sick and unable to attend work.
Her symptoms began in early March, and she was unable to continue work from that point.
Dates which relate to illness are from 2nd March – 30th May 2020.”
On 3 June 2020, the Applicant lodged a Workers’ Compensation Claim – Exhibit 1 T3 pp. 8 – 16.
The Applicant stated that the condition she was claiming for was Ross River Virus infection with resulting physical injury, depression and incapacity/inability to perform work/employment – Exhibit 1 T3 p. 9. The time the Applicant first noticed signs and symptoms was stated to be 10:00am on 28 February 2020– Exhibit 1 T3 p. 11.
The following symptoms were noted – Exhibit 1 T3 pp. 9 – 10:
“Extreme fatigue, headache, body and joint aches especially – ankles, toes, wrists, fingers, shoulders, knees. [U]nable to put pressure on my joints, have to roll out of bed to get out. Difficulty sitting to standing and in sitting down. [D]ifficult to walk exhaustion. Swollen and sore lymph. [U]nable to grasp things, unable to turn door handles, unable to open things, generally fingers not working…”
On 9 September 2020, a Comcare Claims Manager declined the Applicant’s claim under s 14 of the Act – Exhibit 1 T12 pp. 140 – 142.
It was accepted that the Applicant was suffering from Ross River Virus; however, the Claims Manager was not satisfied that the Applicant’s employment was “significant in the causation of your condition” – Exhibit 1 T12 p. 140.
In reaching this conclusion, the Claims Manager had regard, inter alia, to pathology reports of 7 and 24 April 2020 which are discussed below. The Claims Manager concluded as follows – Exhibit 1 T12 p. 141:
“In Comcare’s assessment, we found that if your exposure to Ross River Fever was between 9th – 14th February 2020 and a maximum incubation period was taken of 21-days, your serology results should have been IgM positive/IgG negative around 5th – 10th March and IgM positive/IgG positive 19th – 24th March. However, Comcare notes that these results were found on 7 April 2020 and 24 April 2020 respectively.
Dr Grover [sic] reviewed this medical research and provided a report dated 27 August 2020. In his report he noted that your reported symptoms align with your stated exposure in February but also states:
‘Yes, I do agree with Comcare’s assessment on the expected pattern of change of antibody status overtime. However, because serology was not performed earlier than the 07/04/20, the opportunity of a positive IgM and negative IgG finding is not available.’
Further advice was sought from Comcare’s Clinical Panel Doctors who advised that the serology result were more consistent with the March exposure to mosquitoes and that Dr Grover [sic] had noted the opportunity of a positive IgM and negative IgG finding was not available, however the results of the 7 April 2020 were positive IgM and negative IgG.
Compensation matters are decided on the probability that something is so, as opposed to the possibility that it may be so. Whilst Comcare acknowledges that you suffer from Ross River Fever, based on the inconsistencies in onset of symptoms, serology results as well as your multiple exposures to mosquitoes in locations prone to Ross River Fever, Comcare cannot be satisfied that it is probable your employment with Australian Broadcasting Corporation has significantly contributed to your condition. Accordingly, your claim has been declined.”
Reference was made to advice from Comcare’s Clinical Panel Doctors. A Clinical Panel Review was conducted by Dr James Chan on 2 September 2020 – Exhibit 1 T11 pp. 135 – 139. Dr Chan made the following observations – Exhibit 1 T11 p. 137:
“Comment:
a.The reported exposure in Northern NSW for work in Feb 2020 and onset of symptoms can be consistent with the IE developing RRV. However, there was a delay in performing serology till early April 2020.
b.IE is noted to have had mosquito bite exposures in Feb 2020 and also early March 2020 in regions that have known RRV
c.Serology in early April 2020 was positive for IgM and negative for IgG
d.Serology later in April 2020 was positive for both IgM and IgG.
e.The GP has incorrectly stated the test in early April was positive for both and therefore consistent with the article about RRV serology in Folio 24. The serology is more consistent with the March exposure
Note: however, there are false positives possible. Interpretation should be sought from an expert in the area such as an infectious disease specialist.”
The Applicant sought a reconsideration of this determination. On 11 December 2020, the Comcare Review Officer affirmed the 9 September 2020 determination – Exhibit 1 T19 pp. 167 – 172.
The Review Officer found that the Applicant had sustained Ross River Virus infection – Exhibit 1 T19 p. 168. However, the Review Officer then found that this condition was not significantly contributed by the Applicant’s employment, but rather, it was more probable that the infection was contracted whilst the Applicant was on “annual leave” (sic) in March 2020 – Exhibit 1 T19 p. 168.
In addition to the material that the Claims Manager considered, the Review Officer also considered a report of Dr Marcus Navin, Occupational Physician, of 7 December 2020.
In accordance with the recommendation of Dr Chan, Comcare had requested that the Applicant attend and be assessed by Dr Navin but, in an email of 27 November 2020, the Applicant’s legal representatives advised that she would not be attending the appointment. Comcare subsequently arranged for Dr Navin to review the extant documentation and provide a report based on that material – Exhibit 1 T19 p. 168.
The Review Officer made the following observations – Exhibit 1 T19 pp. 168 – 169:
·Dr Navin provided a report dated 7 December 2020 in which he advised that the blood tests carried out subsequent to 6 April 2020 indicate the evolution of a recent (i.e. de-novo) infection. He advised that, when adopting the widest scope for symptom development of 21 days to the presentation of symptoms, the exposure to the virus would have occurred on or about the second week of March 2020. He advised that it was more probable than not that exposure in March 2020 was the source of the Applicant’s infection, noting that the Applicant’s work-related travel was in early February 2020.
·Dr Gover advised that it is possible that the Applicant’s infection could have been contracted at time other than her potential workplace exposure and that there are no means of proving this one way or the other with any surety.
·Dr Navin advised that the standard incubation period is seven to nine days post infection before the onset of symptoms. Dr Navin further acknowledged that there is a spectrum from three days to longer, but not beyond 21 days, based on medical literature, and that the Applicant’s serology results were inconsistent with an exposure in early February 2020.

Having considered all of the material before him, the Review Officer preferred the assessment and findings of Dr Navin – Exhibit 1 T19 p. 169:
“…due to his areas of expertise as an Occupational Physician, which includes Infectious Diseases, together with his detailed explanation of the likely development of your condition and assessment of the relationship between your condition and your employment. This opinion is supported by Dr Chan.”
ISSUES
It is not disputed that the Applicant contracted Ross River Virus – Exhibit 2 para 3.1, Exhibit 3 para 28.
Comcare submitted that the issue to be determined is initial liability to pay compensation under s 14 of the Act, and whether Comcare is liable to pay compensation for incapacity for work under s 19 or for medical expenses under s 16, is not within the jurisdiction of the Tribunal – Exhibit 3 para 27. Reference was made to the Full Federal Court decision of Lees v Comcare [1999] FCA 753; 56 ALD 84 (Lees).
In Lees, their Honours, Wilcox, Branson and Tamberlin JJ, made the following observations:
“[27] As Finn J noted, s14 is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned. S14 creates a liability in Comcare in respect of injuries suffered by employees which result in death, incapacity for work or impairment. However, the liability in Comcare created by s14 is qualified in two ways. First, such liability is a liability ‘[s]ubject to’ PtII of the Act. That is, it is a liability limited in its extent by other provisions of PtII of the Act (see, for example, s17(2)). Secondly, the liability is a liability to pay compensation ‘in accordance with’ the Act. That is, it is a liability to pay the compensation for which the statute provides, as required by the Act (see, for example, s17(3)(4) and s(5), s19, s20, s24 and s25).
[28] A consideration of the provisions of PtV and PtVI of the Act tends, in our view, to confirm the above construction of s14 of the Act…
…
[30] It is clear that PtV of the Act envisages first, the giving of notice of an injury and separately, and in most cases it may be assumed subsequently, the making of a claim for compensation in accordance with an approved form. The claim for compensation envisaged by s54 is not, it would seem, necessarily a claim for compensation under a particular section, or particular sections, of the Act. The form approved by Comcare as required by s54(2)(a) reflects the generic nature of a claim under the section. It is headed ‘Claim for Rehabilitation and Compensation’. It requires the provision of detailed information concerning the injury and time taken off work because of the injury, but it does not provide for the provision of information of the kind that would be necessary before a determination could be made under, for example, s16, s17, s18, s20, s21, s24 and s25 of the Act.
[31] The claim, and the claim form, envisaged by s54 of the Act reflects the practical reality that a claim for compensation is likely to be made relatively soon after the suffering of an injury, particularly if incapacity for work or significant medical expenses result from the injury. At the time that this initial claim is made it may be quite impossible for the employee to provide details of, for example, the fact or extent of any permanent impairment. For the reasons expressed below, the determination which is made on a claim, as required by s54 of the Act, will ordinarily be a determination under s14 of the Act.
…
[34] The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s14 of the Act. A determination under s14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
[35] This is not to say that a determination under s14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s53 of the Act; secondly, that a claim for compensation has been made as required by s54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (s4 and s5); fourthly, that the employee suffered an injury (s4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
At the Hearing, the Tribunal referred to Comcare’s submission, as well as the Full Federal Court decision in Lees, and observed that the Tribunal stands in the shoes of the decision-maker and does not have jurisdiction to go beyond the subject of the decision. Accordingly, in this matter, as the sole question determined in the reviewable decision was liability under s 14 of the Act, the Tribunal cannot go further and determine if Comcare was liable to pay for medical expenses under s 16 or for compensation for incapacity under s 19 – Transcript (Tr.) 16.5.2022 p. 11.
Ms Fraser of Counsel, for the Applicant, accepted that the sole issue to be determined was liability under s 14 – Tr. 16.5.2022 p. 11.
At the outset, there was a difference between Ms Fraser and Mr Clark of Counsel, for Comcare, as to whether this was an injury (other than a disease) or a disease matter.
This issue will be further dealt with when discussing legal principles governing the matter; however, at the outset, the Tribunal proceeds on the basis that this is a disease matter. As such, the two issues to be determined are as follows:
(a)whether the Applicant has suffered an ailment, which, in this matter, is Ross River Virus, which question can be answered in the affirmative; and
(b)whether the ailment was contributed to, to a significant degree, by the Applicant’s employment with the ABC.
The Tribunal also accepts, based on the factual matrix outlined above, the key issue is whether the Applicant contracted Ross River Virus before 28 February 2020, whilst she was working for the ABC, or after she commenced long service leave.
THE HEARING
A Hearing was convened in Brisbane on 16 and 17 May 2022.
The Applicant was represented by Ms Michele Fraser of Counsel and Comcare by Mr Charles Clark of Counsel.
The Applicant appeared in person on the first day of the Hearing and was cross-examined by Mr Clark. Also giving evidence on the first day were the Applicant’s partner, Mr John D’errey (in person), Dr Gover and Dr Navin.
On the second day of the Hearing, evidence was received from Professor Tony Korman.
Leave was given for the parties to provide written closing submissions.
The Applicant provided the Tribunal with Submissions for the Applicant (SA) on 29 June 2022 and Submissions in Reply for the Applicant (SRA) on 13 July 2022.
Comcare provided the Tribunal with Respondent’s Outline of Submissions (ROS) on 29 June 2022 and Reply Submissions on Behalf of the Respondent (RSR) on 13 July 2022.
THE LAW
Subsection 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined by s 5A(1) as follows:
“(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.”
“Disease” is defined by s 5B(1) to mean:
“(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.”
“Significant degree” is defined by s 5B(3) to mean “a degree that is substantially more than material.”
“Aggravation” is defined in s 4(1) to include “acceleration or recurrence.”
Finally, “ailment” is defined in s 4(1) to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
In determining if, in this matter, the “injury” suffered by the Applicant is a “disease” or “an injury (other than a disease)”, the Tribunal is guided by the High Court decision of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May).
French CJ, Kiefel, Nettle and Gordon JJ provided the following analysis of the task to be performed by the Tribunal in this matter:
“39.On appeal to this Court, the appellant contended that the Full Court applied an incorrect concept of ‘injury (other than a disease)’ and did not recognise that the Act treats ‘disease’ and ‘injury (other than a disease)’ as separate but related bases of liability. In particular, the appellant contended that the Full Court was wrong to hold that ‘injury (other than a disease)’ did not require a ‘sudden or identifiable physiological change’.
40. Mr May contended that there was nothing in the context, structure or purpose of the Act to require a ‘sudden or identifiable physiological change’ and that the basic notion of ‘physical injury’ is ‘something which involves a harmful effect on the body’ or ‘a disturbance of the normal physiological state which may produce physical incapacity and suffering or death’.
Meaning of ‘injury’ under s 4(1) of the Act
41.As seen earlier, subject to an exception for disciplinary action and other matters not now relevant, ‘injury’ was defined in s 4(1) of the Act to mean:
‘(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment; …”
(Emphasis added.)
42. The set of conditions answering the definition of ‘injury’ in the Act relevantly comprises two sub-sets, ‘disease’ and ‘injury (other than a disease)’, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
43. As appears from the definition of ‘disease’, a ‘disease’ for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee's employment by the Commonwealth.
44. An ‘injury (other than a disease)’ covers the other sub-set of ‘injury’. Various aspects of this limb of the definition of ‘injury’ should be observed. First, the phrase ‘other than a disease’ means that if an employee establishes that they have a ‘disease’ within para (a) of the definition of ‘injury’, there is no need to consider para (b). Secondly, an ‘injury (other than a disease)’ suffered by an employee must be ‘a physical or mental injury arising out of, or in the course of, the employee's employment’ (emphasis added). That is to say, the physical or mental injury has to have a causal or temporal connection with the employee's employment. Thirdly, that need for a causal or temporal connection in respect of a ‘physical or mental injury’ in para (b) directly raises the question – what does ‘injury’ mean in that paragraph?
45. ‘Injury’ in para (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word’ (emphasis added).
46. That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.
47. However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee's condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.’
(Emphasis added)
49. It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis, … accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.
50. First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51. If the answer to both those questions is ‘Yes’, there is a ‘disease’ within para (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.
52. If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act.
53. If there be an ‘injury’ in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered ‘Yes’, there is an ‘injury (other than a disease)’ within para (b) of the definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
54. It may be that there are circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of ‘ailment’ (and therefore result in a positive answer to the first question) but the second question is answered ‘No’. But if that is the position on the evidence, there will not be any relevant overlap between a ‘disease’ and an ‘injury (other than a disease)’ in the definition of ‘injury’ in s 4(1) of the Act. It reflects the fact that there are marked differences between arising ‘out of’ or ‘in the course of’ (in para (b)) and ‘contributed to in a material degree’ (for para (a)) in the definition of ‘injury’. And it simply means that the employee was unable to satisfy the different level of employment connection required under para (a) of the definition of ‘injury’ under the Act.
55. This construction of the definition of ‘injury’ in s 4(1) of the Act does not ‘rob’ the ‘disease’ limb of utility. The ‘disease’ limb of the definition remains an additional basis of liability.
56. The proper construction of the Act reflects the importance of the distinction drawn by the Act between ‘disease’ and ‘injury (other than a disease)’ in the definition of ‘injury’ in s 4(1) of the Act and recognises that each creates a different basis for liability under the statutory scheme.”
(footnotes omitted)
As will be seen from their Honours’ analysis, the first task required of the Tribunal is to determine, from the evidence presented, if the Applicant suffered from an ailment as defined in s 4 of the Act. The definition of “ailment” refers to a “morbid condition (whether of sudden onset or gradual development)”.
The word “morbid” is defined in the 4th edition of the Macquarie Dictionary as follows:
“1. Suggesting an unhealthy mental state; unwholesomely, gloomy, sensitive. Extreme. Etc. 2. affected by, proceeding from, or characteristic of disease. 3. relating to diseased parts”.
As Comcare submits, Ross River Virus is a disease of gradual onset, caused by a pathogen following infection brought about by mosquito bites, and resulting, inter alia, in the type of symptoms experienced by the Applicant – Exhibit 3 para 28. In Tully and Comcare [1996] AAT 349, the Tribunal also proceeded on the assumption that the disease provisions apply when a person is claiming compensation for Ross River Virus – see [36] – [38].
It was recognised by the High Court in May, and in subsequent Court and Tribunal cases, that disease and injury other than a disease are not necessarily mutual exclusive concepts – see Prain v Comcare (2017) FCR 65 at [72]. However, the High Court made it explicitly clear in May that if the evidence before a decision-maker allows that person to reach a conclusion that an applicant has suffered an ailment, then the disease provisions of the Act must be applied. We are satisfied, on the evidence presented, that the Applicant suffered an ailment as a result of experiencing mosquito bites, and apply s 5B to the evidence presented.
THE EVIDENCE
Introduction

As outlined above, the Tribunal received into evidence testimony from the Applicant and her partner, Mr D’errey, as well as from three medical professionals: Dr Gover, Dr Navin and Professor Korman.
Before proceeding with the details of the evidence presented, it is relevant to deal with one submission of Ms Fraser. She submitted that Comcare did not challenge the Applicant’s account of her debilitating symptoms – SRA para 1.
This submission was challenged by Mr Clark who, in turn, submitted that the Applicant’s account of disabling symptoms in late February 2020, and being bedridden for a number of weeks thereafter, was not reflected in contemporaneous medical records – RSR para 1.
Although we will deal, at length, with the Applicant’s testimony below, it is the case that Mr Clark cross-examined the Applicant, at length, about her health in the period between February to April 2020. Indeed, his cross-examination of the Applicant was challenged by Ms Fraser. The following exchange occurred – Tr. 16.5.2022 pp. 20 – 21:
“MR CLARK: All right. My question was this: ‘She is worried about EBV. Has had a sore throat one month ago?’---Yes, when I was at Yamba I had a sore throat; I was really unwell, and so I told the doctor that and I said maybe I had glandular fever, and we were just talking.
Once again though, what’s recorded there is not reflective of, you know, a four, five, perhaps nearly six week history of debilitating symptoms, is it?---They’re really short consults – they’re really busy – 15 minute consults.
MS FRASER: Can I object to this? There’s a limit to which this witness can be asked about notes taken by her medical practitioner in the course of the consultation. And the other proposition that my friend put is that this doesn’t reflect a lengthy period of illness, when in fact it’s talking about things that happened a month previously.
DEPUTY PRESIDENT: Yes, Mr Clark.
MR CLARK: Are you happy for me to proceed, or do you want me to respond to the objection?
DEPUTY PRESIDENT: I was waiting for you to respond.
MR CLARK: Look, I appreciate there’s a limit as to how much the cross examination can persist for. It hasn’t reached that level yet. Our position is simply this, that the applicant’s statement has already established – sets out a lengthy period of quite debilitating symptoms where she was bedridden, and, as I’m about to put to her, and I’ll be asking you to consider, that you might have expected, you know, a symptom description, or symptoms description of that magnitude, or of that sort, to be put, rather than what’s contained there.
DEPUTY PRESIDENT: Just proceed, Mr Clark.
MR CLARK: Thank you. You’ve heard which way I’m going with this argument. You agreed with me that that’s what you told Dr Hannah, okay, and you’ve also agreed that the fairly pervasive history, which you have told the tribunal about, about, you know, these lengthy symptoms for, by this stage, four to five weeks, is not mentioned there, is it?
MS FRASER: Can I ask my friend what it is he says was agreed to, because I’m not sure I do agree with any proposition he put in respect to this matter?
MR CLARK: Well, I distinctly heard her say that she agreed that she’d told the doctor that she was worried about EBV, has had a sore throat one month ago.”
Accordingly, we do not accept that the Applicant’s account of her medical condition between the time she covered the floods in the Northern Rivers District of New South Wales in early February 2020 until her consultations with Dr Neil Hannah in April 2020, was not challenged by Mr Clark during his cross-examination.
It also follows that we do not agree with Ms Fraser’s submission (SRA para 1) that we are precluded from finding that either the Applicant’s or Mr D’errey’s evidence should not be accepted.
Ms Elloise Farrow-Smith
The Tribunal had the benefit of receiving a detailed statement dated 14 April 2021 from the Applicant. Extracts from that statement are set out in the Introduction.
We also had the benefit of receiving oral testimony from the Applicant on the first day of the Hearing.
The Applicant, under cross-examination, testified that when filming the floods at Coraki at approximately 4pm, she felt mosquito bites to her face, neck and hands – Tr. 16.5.2020 pp. 15 – 16.
Mr Clark then dealt with the Applicant’s final day at work before taking long service leave, and, in particular, her visit to a Chemist Warehouse at Goonellabah. The following exchange occurred – Tr. 16.5.2020 pp. 17 – 18:
“You’d agree with me that a lot of these purchases are for purposes other than any muscular aches and pains, aren’t they?---I was purchasing things primarily for my illness. I was not feeling well and so I was not really thinking clearly, and I was grabbing a lot of different things there.
Well, just, you know, there’s toothpaste – that’s just a routine purchase, isn’t it?---It is.
Zovirax cold sore cream?---For my son.
Elastoplast?---For my son.
Sensodyne toothpaste?---For my son.
Sorbent tissues?---For me, because I felt I was coming down with the flu or something.
A lot of magnesium tablets?---Well that’s good for muscle aches and pains, and I felt really achy.
In his statement, your partner says in paragraph 19 - - -
…
MR CLARK: It’s in page 30 of the – it’s in the tender bundle, page 31. We haven’t had recourse to that document. He records a conversation. He asks you ‘Why so much.’ She said, ‘I feel terrible. I’m not well.’ And he goes on to say this:
At about this time we started hearing about COVID. I didn’t know what COVID was. I understood it was aching joints and not feeling well.
Now, that was his understanding. Was your understanding the same at that time? ---We’d heard a lot, yes, about that.
In respect of not only – well, there was panic buying in supermarkets at that time, you recollect that?---Yes.
And equally, there was panic buying in respect of pharmacies and chemists, wasn’t there?---Sorry, is your question was there panic buying, or was I panic buying?
Sorry, I can be more specific. Your purchase of all those items, what, do you say was potentially motivated by the fact that there was panic buying of all these sorts of items and you wished to accumulate as many of those items as possible in those circumstances?---I disagree. I was not feeling well and I was buying them for myself at that time.
But did you have the understanding then that aching joints and not feeling well might be indicative of you having contracted COVID?---At that point I just thought I felt like I had the flu.
Nevertheless, by any measure your condition was quite debilitating, wasn’t it?---Yes.”
The Applicant confirmed that she stayed with her mother in Yamba from 2 March 2020 until 7 March 2020, when she returned home – Tr. 16.5.2020 p. 19.
The Tribunal was presented with the Applicant’s health summary of visits to the Bay Centre Medical Clinic between 5 February 2019 and 9 July 2020 – Exhibit 1 T22 pp. 195 – 204.
Mr Clark referred to the surgery consultation notes of 6 April 2020 prepared by Dr Hannah – Exhibit 1 T22 p. 198:
“Presenting complaint
comes for fluvax but has polyarthralgia
hands ankle and r shoulder
no swelling no redness
APP4
Examination:
no joint swelling or redness
Impression
APP4
? rh
Plan
blds and review
trial nsaid
represtent for fluvax in 2 weeks
Reason for visit:
Joint pain…”
The Applicant agreed that she was complaining to Dr Hannah of hands, ankle and right shoulder pain and the following exchange occurred – Tr. 16.5.2020 pp. 19 – 20:
“That he examined you, that he could find no swelling or no redness?---I guess that’s what he said. I had – my fingers felt quite swollen, because that was one of the feelings that I got from it.
Well, he does – in that examination, he said ‘no joint swelling or redness.’ You say that’s not correct?---Well, that’s his finding. I just remember feeling my joints hurting.
You’d agree with me, by this time you’d had five weeks of quite debilitating illness, hadn’t you?---I had.
And would you also accept that that history is not reflected in what the doctor has recorded as to what you told him?---I was unable to get to the doctor before then, because we were in lockdown.
I appreciate that, but once you did, on 6 April, do you accept the proposition that that history does not record the fairly lengthy five weeks of debilitating symptoms which you had by that time suffered?---It actually was a flu vax for my son and myself, and it was a short – and I had mentioned in that doctor’s consult when he was giving my son and me the flu vax, which I didn’t get, I talked with him about me being unwell, and then that’s when he said come back for a blood test.
But what is recorded there, do you accept the proposition, simply does not reflect that five week history of debilitating symptoms, does it?---No, because it was just a short consult for my son to get a flu vax basically.
But clearly his suspicions were aroused, to the extent that he ordered you to undertake some blood tests?---Yes. I was grateful for that.”
Mr Clark then turned to the surgery consultation notes of 9 April 2020 where Dr Hannah made the following observations – Exhibit 1 T22 p. 199:
“Presenting complaint
call for results
discussed +ve RRF
but could be false +ve or cross reacting
seh [sic] is worried about EBV as had sore throat 1 month ago
was down in yamba and got snmashed [sic] by mosquitoes
Plan
advised nsaids for joint pain
review in 2 weeks
consider fluvax then if onogn symptoms recheck serology
Reason for visit:
RRV…”
It will be noted that Dr Hannah wrote that the Applicant informed him that she “was down in yamba and got snmashed [sic] by mosquitoes”. In her statement of 14 April 2021, the Applicant denied that she informed Dr Hannah that she was bitten by mosquitoes in Yamba – Exhibit 4 para 78:
“78. I did not get bitten by mosquitos at Yamba and I did not tell Dr Hannah that I was ‘smashed by mosquitos’ at Yamba. I was talking about Coraki.”
The following exchange occurred between Mr Clark and the Applicant – Tr. 16.5.2022 p. 22:
“Did you tell him … ‘Was down in Yamba and got smashed by mosquitoes?’---No. I told him – he said where have you been, and I said that I’ve been – told him where I’d been, but I didn’t say that I was in Yamba and got smashed by mosquitoes. That doesn’t follow.”
Ms Fraser made the following submission regarding this notation – SA para 3.22:
“His notes are unpunctuated, but assuming that his note of 9 April 2020, ‘was down in Yamba and got smashed by mosquitos’ was intended to convey that Ms Farrow Smith reported being smashed by mosquitos at Yamba, and not disparate events, ‘(e)xperience teaches that busy doctors misunderstand or misrecord histories…’”
Ms Fraser quoted from the New South Wales Court of Appeal decision of Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
We are not persuaded that Dr Hannah would have made a specific notation about the Applicant being bitten by mosquitoes in Yamba without receiving that information from the Applicant. We agree with Mr Clark that “it is fanciful to suggest” (RSR para 1) that the difference between the Applicant’s statement quoted above and Dr Hannah’s notation, can be reconciled by suggesting that he misunderstood or misread what the Applicant told him. It is inconceivable that Dr Hannah would have noted that the Applicant told him Yamba if she was talking about Coraki. We deal further with this matter in the Consideration part of this decision.
Mr Clark asked the Applicant a series of questions about the absence of any reference in Dr Hannah’s notes of 9 April 2020 of her suffering the signs and symptoms she claimed she experienced in the period immediately after ceasing work on 28 February 2020 – Tr. 16.5.2022 pp. 21 – 22:
“Your statement sets out a lengthy history that by 9 April you have been suffering quite debilitating symptoms which caused you to be bedridden?---Yes.
But do you accept that that history doesn’t appear in the consultation note with Dr Hannah on 9 April?---I’m just not sure, like, what – how to answer that question though, because I’m not – these are his notes, which he just, you know, jots down and we had a chat. We definitely talked, but I just don’t know what I’m meant to answer, sorry.
DEPUTY PRESIDENT: Just before Mr Clark proceeds, can I ask you this question? ---Yes.
Mr Clark’s asking, in our opinion, fair questions about the disparity between the signs and symptoms of Ross River fever and that which was noted by the doctor. Did you tell the doctor about those signs and symptoms and he has omitted to put them in his records, or did you not tell him about your signs and symptoms?---I did tell him about my signs and symptoms. I said I had aching joints, and that’s – I described everything to him, and that’s why he said I think you should get tested for Ross River. If I hadn’t told that to him he wouldn’t have tested me for Ross River.
Okay. Thank you. Yes, Mr Clark.
MR CLARK: More specifically, did you tell him that you’ve been bedridden by, not always, but bedridden and afflicted by quite debilitating symptoms for about five weeks by that stage?---Yes.
Did you tell him – sort of the next line – ‘Was down in Yamba and got smashed by mosquitoes?’---No. I told him – he said where have you been, and I said that I’ve been – told him where I’d been, but I didn’t say that I was in Yamba and got smashed by mosquitoes. That doesn’t follow.
You’d agree with me there’s no reference to, in any of these, either on 6 April or 9 April, to any exposure to mosquitoes back in mid February - - -?---Sorry, where do you want me to look now?
In either of those entries on 6 April or 9 April, there’s no mention of any reference to mosquito exposure back in mid February, is there?---There’s a reference to mosquitoes on 9 April there, but there’s just not a lot of notes. I mean I talked with him much more than what’s said here I guess.”
Finally, Mr Clark drew the Applicant’s attention to the surgery consultation notes of Dr Gover of 6 May 2020 – Exhibit 1 T22 p. 200.
The Applicant accepted that this was the first time she had raised with Dr Gover that she had been bitten by mosquitoes whilst working at Coraki – Tr. 16.5.2022 p. 22.
Further, the Applicant accepted that this was in the context of her leave entitlements and her desire that get “recredited for leave in some way” – Tr. 16.5.2022 p. 23; Exhibit 1 T22 p. 200.
The surgery consultation notes, relevantly, are as follows – Exhibit 1 T22 p. 200:
“Elloise needs a medical certificate
did go on long service leave and is definately [sic] unwell, may get recredited for leave in some way
reports that she feels that she was bitten whilst on assignment by work at Coraki: remembers being bitten a lot whilst floods were about
advised not able to say if this was so, endemic RRV in Byron and SP [Suffolk Park]
may not be a work related/compensatable illness…”
Mr John D’errey
Mr D’errey is the partner of the Applicant. He prepared a statement dated 16 December 2021 – Exhibit 6.
Mr D’errey stated that he had been in a de facto relationship with the Applicant for about 20 years and they have a son aged 16. Mr D’errey stated that he built their home which is on the top of a hill and which does not have any nearby bodies of water – Exhibit 6 paras 1 – 7.
The house has fly screens and is well protected from insects. The property also has sealed rainwater tanks, and the water from the house gutters flow into the rainwater tanks – Exhibit 6 paras 8 – 9.
Mr D’errey stated that he remembered that before the Applicant left for Yamba, “she came home with a lot of pharmaceuticals and devices.” The Applicant told Mr D’errey that upon being questioned why she had purchased so much, she replied “I feel terrible. I’m not well” – Exhibit 6 paras 14 – 17.
The Applicant left for Yamba with her mother, and Mr D’errey followed a day later. When he arrived in Yamba, “Elloise was still unwell”. The Applicant and her family stayed in a house and she only left the house to get massages with her mother. Mr D’errey recounted that the Applicant “laid down a lot” – Exhibit 6 paras 20 – 23.
After the family returned to Yamba, the Applicant’s condition worsened – Exhibit 6 paras 26 – 27:
“26. Elloise’s illness was getting worse. She went to the Doctor and had a blood test. This proved to be positive for Ross River virus.
27. At first Elloise complained of fever, headaches and not feeling well. Then her symptoms became more intense and she seemed to go into a long decline. Elloise was spending most of her time in bed and was taking a lot of medications.”
During cross-examination on 16 May 2022, Mr D’errey re-iterated the views outlined in his Statement – Tr. 16.5.2022 pp. 26 – 27.
Dr Gregory Gover
Dr Gover is a GP who operates from the Bay Centre Medical Clinic in Byron Bay, New South Wales – Tr. 16.5.2022 p. 29.
As previously noted, Dr Gover provided the Applicant with a Medical Certificate on 6 May 2020, in which he stated that she had been diagnosed with Ross River Virus infection, was sick and was unable to attend work, and her symptoms began in early March 2020 – Exhibit 1 T5 p. 18.
At the request of Comcare, Dr Gover prepared a report dated 7 July 2020 in which he answered a series of Questions – Exhibit 1 T8 pp. 119 – 122.
Dr Gover diagnosed the Applicant as suffering from Ross River Virus infection – Exhibit 1 T8 p. 119.
The clinical signs and symptoms supporting this diagnosis were as follows – Exhibit 1 T8 pp. 119 – 120:
“The clinical signs which have been evident are; arthritis affecting the metacarpophalangeal joint of the left thumb, dactylitis of the right middle finger, reduced ability to make a fist, and reduced grip strength in both hands.
Symptoms that have been reported: polyarthralgia, swelling of the hand joints, muscle aches, fatigue, excessive need of sleeping, unrefreshing sleep, right calf soreness, feeling faint, dizziness, vertigo, lethargy, exhaustion, difficulty concentrating, difficulties problem solving, difficulty in attending to and managing daily activities of living, difficulty in memory, generalised headache, facial aching, pain and tenderness in thoracic cage, reduced exercise capacity, dysthesias in fingers and palms.”
In response to a Question about the work-related factors for the Applicant’s claimed condition, Dr Gover referred to the Applicant being bitten by mosquitoes whilst reporting on local flooding events on 9, 12, 13 and 14 February 2020 at Tweed Heads, Tumulgum, Coraki and Woodburn – Exhibit 1 T8 p. 120.
Dr Gover opined as follows as to when the Applicant first suffered from clinically identifiable symptoms – Exhibit 1 T8 p. 120:
“The first identifiable symptom Ms Farrow-Smith reported was the onset of muscle aches and soreness on the 28th February 2020.
Ross River Virus has an incubation period of 7 – 9 days usually, with a reported range of between 3-21 days. This would be consistent with an exposure to the virus around the time that Ms Farrow-Smith was reporting the flooding events and bitten by mosquitoes.”
Dr Gover confirmed that he first consulted with the Applicant about her claimed condition on 6 May 2020 and, prior to that, she was treated by Dr Hannah – Exhibit 1 T8 p. 120.
The next Question Dr Gover was asked was as follows – Exhibit 1 T8 p. 121:
“6. Having regard to Ms Farrow-Smith’s serology, the date of exposure and the incubation period of Ross River Fever, is it possible, that Ms Farrow-Smith’s claimed condition is attributable to factors other than her employment with the Australian Broadcasting Corporation? In particular, please comment on the probable contribution of any non-employment related factors.”
The following answer by provided by Dr Gover – Exhibit 1 T8 p. 121:
“It is not possible to provide the same degree of certainty of causality in this circumstance compared to a physical injury, for example, which occurs at a work place.
It is not possible to say that the Ross River infection certainly occurred during her employment on the days listed in response 3.
It is possible that the infection could have been contracted at another time, and there are no means of proving this one way or the other with any surety.
Dr Hannah in his notes on the 9th April 2020 records that: ‘she is worried about EBV as had a sore throat 1 month ago, was down at Yamba and got smashed by mosquitoes’.
I understand that Ms Farrow-Smith went to Yamba for a holiday in early March, and was attacked by mosquitoes there but had already begun to experience muscle aches in late February. This suggests that Ms Farrow-Smith may have been already symptomatic with Ross River Virus infection at this time.”

In reaching our conclusion, we make the following factual findings:
(a)there is no record of the Applicant informing Dr Hannah on either 6, 9, 23 or 30 April 2020 that she had been suffering from debilitating illness since 28 February 2020;
(b)apart from Mr D’errey, there is no other evidence before the Tribunal that would support the proposition that the Applicant was seriously ill from 28 February 2020 until 6 April 2020;
(c)there is no evidence that the Applicant’s illness, on or about 28 February 2020, was Ross River Virus;
(d)the Applicant informed Dr Hannah that she had been “smashed” by mosquitoes in Yamba in March 2020; and
(e)Dr Gover repeated this version of events at Yamba in his report of 7 July 2020 without contradicting it.
We conclude that the Applicant’s illness, on or about 28 February 2020, was not as a result of Ross River Virus.
We further conclude that the medical science presented to the Tribunal, in the form of the Ross River virus serology of 7 and 24 April 2020, conclusively support the theses of Dr Navin and Professor Korman that the Applicant contracted Ross River Virus at some time after the first week of March 2020 and whilst she was on long service leave.
In reaching this conclusion, we also find that there is no medical science presented to us, other than views of Dr Gover, that would support a finding of slowed immune reaction in the Applicant. For different reasons, both Dr Navin and Professor Korman gave compelling testimony that convinced the Tribunal that there was no secure medical evidence that would support such a hypothesis. Insofar as Dr Gover’s support for the hypothesis is based on his belief that the Applicant was infected by Ross River Virus in February 2020, and which belief is based entirely on the Applicant’s self-reporting, we prefer the opinions expressed by Dr Navin and Professor Korman. We note that the opinions expressed by Dr Navin and Professor Korman are based purely on proven medical science and are not based on subjective considerations.
We, therefore, conclude that the Applicant’s ailment, Ross River Virus, was not contributed to, to a significant degree, by her employment with the ABC.
DECISION
The decision under review is affirmed.

I certify that the preceding 346 (three hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso and Member L Benjamin

....................[SGD]................................
Associate
Dated: 26/09/2022

Date of Hearing:

Date Final Submission Received:

16 and 17 May 2022

13 July 2022

Applicant:

Counsel for the Applicant:

In-person

Ms Michele Fraser

Counsel for the Respondent:

Mr Charles Clark

Solicitor for the Applicant:

Mr Maurice Castagnet
Castagnet Lawyers

Solicitor for the Respondent:

Ms Kate Watson
HBA Legal

Date of Hearing: Date Final Submission Received:	16 and 17 May 2022 13 July 2022
Applicant: Counsel for the Applicant:	In-person Ms Michele Fraser
Counsel for the Respondent:	Mr Charles Clark
Solicitor for the Applicant:	Mr Maurice Castagnet Castagnet Lawyers
Solicitor for the Respondent:	Ms Kate Watson HBA Legal

[2022] AATA 3157

26 September 2022

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Procedural Fairness

Statutory Construction