Fenton v AIA Australia Ltd (formerly American International Assurance Company (Australia) Ltd)
[2017] VCC 438
•26 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-05058
| AMANDA CLAIRE FENTON | Plaintiff |
| v | |
| AIA AUSTRALIA LTD (formerly AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LTD) (ACN 004 837 861) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16, 17, 21, 22 and 24 February 2017 | |
DATE OF JUDGMENT: | 26 May 2017 | |
CASE MAY BE CITED AS: | Fenton v AIA Australia Ltd (formerly American International Assurance Company (Australia) Ltd) | |
| MEDIUM NEUTRAL CITATION: [First revision 2 June 2017] | [2017] VCC 438 | |
REASONS FOR JUDGMENT
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Subject: INSURANCE
Catchwords: CONTRACT – insurance policy – whether the defendant breached its contractual obligations under the policy
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A M Donald | Slater & Gordon |
| For the Defendant | Mr D Christie | Moray & Agnew Lawyers |
HER HONOUR:
Relevant background
1 On 25 February 2009, Ms Amanda Fenton, the plaintiff, entered into a Priority Protection Disability Income Policy (“the policy”) with AIA Australia Ltd, the defendant.[1] The policy paid an “agreed value” monthly benefit of $8,412.
[1]Policy number 50526121
2 On or about 20 October 2009, the evidence is that the plaintiff ingested toxic fish whilst on holiday in Cuba and became ill.
3 Subsequently, Dr Fuller, infectious disease physician and clinical microbiologist, examined the plaintiff and diagnosed her as suffering from ciguatera poisoning.
4 The plaintiff completed a Disability Income Claim Form dated 21 December 2009 where she sought payment of the agreed monthly benefit pursuant to clause 5.1.1 of the policy.[2] The policy states as follows:
“5.1.1 Total Disablement Benefit
If the Life Insured is totally disabled for longer than the Waiting Period selected, the monthly benefit will be payable from the end of the Waiting Period and will continue to be paid throughout the Benefit Period selected as long as the Life Insured continues to be totally disabled. The benefit is calculated on a daily basis and paid monthly in arrears. The amount of the Total Disablement benefit may be subject to claim offsets (see condition 5.1.9).
The Life Insured is totally disabled if He or She satisfies the definition of total disablement relevant to the income protection benefit selected and the occupation category of the Life Insured at the commencement date of the benefit.
... .”
[2]The plaintiff’s Writ and Statement of Claim also particularised parasites/amoebic gastroenteritis but this did not form part of the proceeding
5 Based on Dr Fuller’s medical opinion, the evidence is that the defendant determined the plaintiff was Totally Disabled. Following the 90-day waiting period stipulated under the policy, from 20 January 2010 until 6 September 2014, the defendant paid a monthly Total Disablement benefit to the plaintiff.
6 In September 2014, Dr Mary Wyatt, occupational physician, determined the plaintiff was capable of working in a reduced capacity. Accordingly, the defendant exercised its discretion in accordance with the policy to deem the plaintiff Partially Disabled. From 7 September 2014, the defendant commenced paying the plaintiff Partial Disability benefits, which was 70 per cent of the Total Disablement benefits.
7 In July 2015, the defendant assembled a Multidisciplinary Panel comprising of Associate Professor Tilman Ruff, consultant physician in infectious disease and travel medicine, Dr Dielle Felman, consultant psychiatrist, and Dr Matthew Paul, consultant occupational physician. In a joint report dated 7 August 2015, the three medical witnesses submitted that the plaintiff did not have ciguatera poisoning and had the capacity to return to full-time work immediately. Accordingly, as the plaintiff did not continue to be Totally Disabled or Partially Disabled, the evidence is that the defendant determined she was no longer entitled to monthly benefits pursuant to clause 5.1.1. From 7 September 2015, the defendant ceased paying any and all benefits to the plaintiff.
8 On 23 October 2015, the plaintiff filed a Writ and Statement of Claim alleging that, from 7 September 2014 to date, she continued to be Totally Disabled and, consequently, the defendant breached the policy in its failure to pay her:
(a) 30 per cent of the monthly benefits between 7 September 2014 and 7 September 2015; and
(b) monthly benefits from 7 September 2015 to date and continuing.
9 The defendant admits that the policy was binding between the parties as at the time the plaintiff contracted ciguatera poisoning.[3] The defendant denies that it breached the policy as alleged by the plaintiff.
[3]This is despite the fact the plaintiff’s contract with the ANZ Bank had ceased in September 2009
The issues
10 In essence, the policy provides that the plaintiff is entitled to the agreed monthly benefit where she is, and continues to be, Totally Disabled beyond the Waiting Period pursuant to clause 5.1.1 of the policy.
11 It is useful to set out the following definitions in the policy, which are relevant to my assessment:
“‘TOTAL DISABLEMENT (DISABILITY INCOME)’ means that, solely due to Injury or Sickness, the Life Insured is:
· unable to perform one or more duties of His or Her occupation, that is important or essential in producing income; and
· under the regular care of and following the advice of a Medical Practitioner; and
· not working (whether paid or unpaid).”[4]
[4]Joint Court Book (“JCB”) 68
“‘PARTIAL DISABLEMENT (DISABILITY INCOME)’ means that, solely due to Injury or Sickness, the Life Insured is:
· unable to work in His or Her own occupation at full capacity but working in a reduced capacity in any occupation; and
· earning a monthly Income which is less than His or Her pre-disablement income; and
· under the regular care of and following the advice of a Medical Practitioner.
Where the Life Insured is capable of working in a reduced capacity in any occupation, but is not working, We may deem the Life Insured to be entitled to the Partial Disablement Benefit.
… .”[5]
[5]JCB 65
“‘PARTIAL DISABLEMENT – DISABILITY INCOME CAPABILITY CLAUSE’
Partial Disablement Benefit Amount (Agreed Value and Indemnity Value).
The initial benefit payable will be:
(A-B)/A x Insured Monthly Benefit, where
A = Life Insured’s monthly predisablement income, and
B = Life Insured’s Income from all sources for the month in which the partial disablement benefit is being paid.
When the Life Insured is partially disabled but not working or not working to their optimum capacity, ‘B’ will be calculated on the monthly income it would be reasonable for the Life Insured to earn if working to the extent of His or Her optimum capability.
In determining what the Life Insured could reasonably be expected to earn if the Life Insured were working to the extent of His or Her optimum capability, the following will be taken into account:
· All available medical evidence from the Life Insured;
· All available medical evidence from the Life Insured’s Medical Practitioner; and
· Any additional information that directly relates to the Life Insured’s medical condition.
… .”[6]
“‘SICKNESS’ means the illness or disease which Manifests itself after the Policy is in force and which results in total or partial disablement.”[7]
“‘MANIFESTS’ means that symptoms exist which would cause an ordinarily prudent person to seek diagnosis, care or treatment, or that medical advice or treatment has been recommended by or received from a Medical Practitioner.”[8]
[6]JCB 65
[7]JCB 66
[8]JCB 64
12 The plaintiff asserts that she was, and continues to be, Totally Disabled, in that she satisfies the definition of “Total Disability”, which in turn triggers the payment of a monthly benefit to her. The defendant maintains that the plaintiff does not meet the definition of “Totally Disabled” on two main fronts, which was that she did not suffer from a sickness, that is, ciguatera poisoning, from 7 September 2014, and that she was able to perform the duties of her occupation.
13 The issues to be determined in this matter are:
(a) whether the plaintiff suffered from a “Sickness”, that is, ciguatera poisoning;
(b) whether the plaintiff was unable to perform one or more of her duties of her occupation that was essential in producing income; and
(c) whether the plaintiff’s inability to perform that or those duties was solely due to the injury or sickness, that is, ciguatera poisoning.
14 I must make these determinations at both of the relevant periods alleged by the plaintiff, that is, the period from 7 September 2014 to 7 September 2015, and the period from 7 September 2015 to date.
The evidence
15 The trial involved a considerable amount of evidence called from expert witnesses, and a large number of exhibits were tendered.
16 I will now summarise the relevant evidence given.
The Plaintiff’s evidence
(a) the Plaintiff
17 The plaintiff was born in December 1971 and is currently forty-six years of age. In 1989, she completed her VCE and undertook a one-year secretarial course.[9]
18 The plaintiff worked in office administration in Australia before working and travelling in London. She commenced contract work with the Australian and New Zealand Banking Group Limited (“the ANZ Bank”) in 2004, which continued until 2009, interspersed with periods of travel.
19 On 23 April 2007, the plaintiff commenced a contract as a project co-ordinator with the ANZ Bank, which she told the Court she obtained through an employment agency, Glendall Pty Ltd.[10]
[10]T58
20 On 25 February 2009, the plaintiff entered into the policy with the defendant.
21 The plaintiff said that she ceased work at the ANZ Bank in September 2009 because her employment contract ran out. She tried to negotiate a new contract but ultimately withdrew her application. Counsel for the defendant said that her contract was not renewed as she asked for too much money. Counsel referred to a chain of emails where Ms Davies from the ANZ Bank said that she would no longer be proceeding with an offer of employment to the plaintiff. However, the plaintiff maintained she withdrew her job application.
22 The plaintiff said she contracted ciguatera poisoning on holidays in Cuba in October 2009. She described her initial symptoms from ciguatera as aching in her legs;[11] an invisible rash on her chest;[12] nausea;[13] vomiting and diarrhoea;[14] weak and lethargic;[15] feeling of discomfort[16] and a light/heavy feeling.[17]
[11]T167
[12]T168
[13]T169
[14]T169
[15]T170
[16]T172
[17]T172-173
23 On 1 November 2009, the plaintiff travelled from Cuba to New York.[18] She told the Court that she felt lethargic, the tip of her tongue felt numb when she drank liquids and she had hot flushes in her hands, burning in her feet, stomach pains, aching legs, fatigue and weakness.[19] Whilst in New York, she consulted Dr David Bekhor, infectious disease specialist, who she said told her that if she was not better upon her return to Australia, she could have ciguatera poisoning.[20]
[18]T66
[19]T67
[20]T68
24 On 13 November 2009, the plaintiff returned to Melbourne.
25 She sought medical treatment from Dr Sam Birman, general practitioner. She told the Court that she felt completely lethargic, “an agony of discomfort”, breathlessness, fatigue and stomach problems.[21] The plaintiff told Dr Birman that Dr Bekhor indicated she may have ciguatera poisoning. Dr Birman referred the plaintiff to Dr Andrew Fuller.
[21]T69-70
26 On 30 November 2009, the plaintiff first attended on Dr Fuller, infectious disease physician and clinical microbiologist.[22] Dr Fuller prescribed Endep. In Court, the plaintiff described her symptoms at this time as terrible fatigue, weakness, groggy in the head, and concentration and memory problems.[23]
[22]T257
[23]T71-72
27 On 21 December 2009, the plaintiff completed a Disability Income Claim Form for the defendant. She listed the nature of her sickness as ciguatera and parasites. She listed her current symptoms as:
· Chronic fatigue and exhaustion
· Bouts of nausea
· Headaches every so often
· Stomach cramps every so often
· Burning hands and sore hands when placed under cold water or touching something cold
· Dizziness; and
· Difficulty concentrating and remembering.[24]
[24]Exhibit 3, JCB 72-79
28 The plaintiff said she applied for, and obtained, a job with the National Australia Bank (“the NAB”) in December 2009. Counsel for the defendant referred her to a chain of emails where, on 14 January 2010, she emailed Ms Carcour from the NAB that she “won’t be going ahead with the contract”.[25] She told the Court this was because she was too unwell; however, she agreed she did not make this statement as a result of medical advice.[26]
[25]T408, exhibit MM
[26]T408
29 On 14 March 2010, the plaintiff completed the first monthly Supplementary Report Form for Continuing Disability, which the defendant required her to undertake pursuant to the policy. She listed her current symptoms as:
· Nausea (currently 3 times a week)
· Weak (4-5 days a week)
· Tired
· Poor concentration (nearly always)
· Dizzy (2 times a week)
· Drowsy (5 days a week).[27]
[27]JCB 94
30 As to work duties, the plaintiff said that she could not perform “all duties” of her usual occupation due to:
“Chronic fatigue, dizziness, drowsiness, nausea, poor concentration, need to sleep most afternoons, sometimes feel out of breath, weak. This is caused from the Ciguatera Fish poisoning I have.”[28]
[28]JCB 93
31 The plaintiff said these symptoms persisted throughout 2010.[29]
[29]T81-82
32 In March 2010, the plaintiff also identified that she first had eye pain, headaches and feeling “like someone is just squeezing … [her] eyeball”.[30]
[30]T69, L29
33 From 22 April 2010 to 4 May 2010, the evidence is that the plaintiff travelled to the Solomon Islands to visit a friend.[31]
[31]T82-85
34 The plaintiff said that she applied for, and obtained, a six-month contract with the ANZ Bank in June 2010. She accepted the position but told them she had made plans to attend a friend’s wedding on 31 July 2010 in Switzerland.[32]
[32]Exhibit PP, JA 229, T411-412
35 On 1 July 2010, Dr Birman certified the plaintiff could perform the duties of her usual occupation for 20 hours per week.[33] However, on the same day, the evidence is that the plaintiff withdrew her application with the ANZ Bank on the basis that her doctor had “advised not to commence work as yet”.[34]
[33]Exhibit VV, T416-418
[34]Exhibit UU, T415, L3
36 From 29 July 2010 to 31 August 2010, the plaintiff travelled to Switzerland, Northern Italy and Spain.[35] She attended a friend’s wedding in Switzerland. The plaintiff told the Court that she had five “good days” out of thirty or so days she was in Europe.[36] One day she felt good enough to climb a mountain.[37]
[35]Exhibit XX
[36]T 86
[37]T86
37 The plaintiff gave evidence that, upon returning from Europe, she started looking for jobs at the NAB and the ANZ Bank but did not go ahead as she was sick.[38] There were no emails produced in Court to corroborate her evidence.
[38]T421
38 From 7 October 2010 to 21 October 2010, the plaintiff travelled to Tonga to visit friends and relax.[39]
[39]Exhibit XX, T87
39 The plaintiff’s evidence was that stress, anxiety and activity brings on more bouts, and travelling overseas lifted her spirit and rejuvenated her.[40]
[40]T87
40 At the end of 2010, she said her symptoms were much the same.
41 In November 2010, she reported to the defendant very poor health, with only 15 per cent of days in a month being good.[41]
[41]T89
42 The plaintiff’s evidence was that she did not look for work after 2010. She said it was embarrassing to go to interviews, win the job and then have to say she was too sick to work. She did not want to be in that position again.[42] The plaintiff said that she was suffering from quite severe symptoms in January 2011 but that these abated somewhat in February 2011.[43] The plaintiff agreed with her counsel that her health during 2011 could be “sometimes good, sometimes bad and severe and sometimes pretty good for a while”.[44]
[42]T130
[43]T91
[44]T92
43 From 14 February 2011 to 24 February 2011, the evidence is that the plaintiff travelled to Tonga.[45] She said her health fluctuated during this travel.[46]
[45]Exhibit XX, T92
[46]T92
44 On 3 March 2011, the plaintiff arrived in Los Angeles before visiting New York for a couple of weeks.[47] She said she experienced fluctuating symptoms.
[47]T92-93
45 From 1 July 2011 to 5 July 2011, the evidence is that the plaintiff travelled to Sydney.[48]
[48]Exhibit XX
46 In 2012, the plaintiff said she went to live with her mother. She said her health was extremely debilitating in 2012. There was fatigue and tiredness, a sick feeling that comes with the tiredness. She suffered from grogginess and fogginess in her head. She said her brain would feel “mushy”.[49] She suffered from neuropathy of the hands whereby, when she took items out of the fridge or freezer, she would experience incredible pain in her hands.[50] The plaintiff said she first experienced the symptom that she started to feel horrendously sick if she did not eat.[51] The plaintiff said that the fluctuating symptoms she suffered from in 2012 were “nausea, weakness, dizzy, light headed, important concentration, severe pain behind right eye”.[52]
[49]T71, T105
[50]T105
[51]T155
[52]T94
47 From 3 March 2012 to 16 March 2012, the plaintiff travelled to Thailand, which included bus and boat travel between islands, and to Singapore.[53]
[53]Exhibit XX, T104 – 151
48 From 22 May 2012 to 21 June 2012, the plaintiff travelled to Los Angeles, San Francisco, New York and Mexico, which included a friend’s wedding in the mountains of Mexico City and hiring minibuses with friends.[54]
[54]Exhibit XX, T154
49 From 8 August 2012 to 16 August 2012, the plaintiff travelled to New Caledonia.[55]
[55]Exhibit XX
50 In 2013, the plaintiff reported to the defendant little activity, restrictions as per the past three years, and the same symptoms as previously.[56] The plaintiff said there were months where she struggled to get two good days in a row, then she had a block of five to ten days when she was well.[57] She said her condition fluctuated. She suffered severe weakness, lethargy, fatigue, pains in the head, grogginess and dizziness.
[56]T106
[57]T108
51 In cross-examination, the plaintiff said, in 2013, she first reported the symptom of an “invisible rash”, which she described as a dry skin rash, it was itchy but you could not see it.[58]
[58]T168
52 The plaintiff said she maintained a list of symptoms of ciguatera poisoning which she could report to doctors. She agreed she provided the list to Dr Karen Hitchcock, as the symptoms that come and go, as at April 2013.[59] She agreed that she also provided the list to Dr Faragher.
[59]T380-381
53 From 22 April 2013 to 28 May 2013, the plaintiff travelled to Tonga.[60]
[60]Exhibit XX
54 From 28 April 2014 to 23 May 2014, the evidence is that the plaintiff travelled to New York for two to three weeks.[61] She said it was normal to suffer jetlag. She recounted one day when she visited New York. She was staying on 52nd Street, Midtown, and visited the Staten Island ferry area and walked to Wall Street and the Freedom Tower. She saw the Statue of Liberty. She agreed with counsel for the plaintiff that travelling is naturally exhausting.[62]
[61]Exhibit XX
[62]T146
55 As at September 2014, the plaintiff said she was experiencing the same symptoms as other years, apart from 2012.[63]
[63]T111
56 In 2015, she said she could not foresee when she would be well and reliable for work. She said that she still has bouts which come on frequently and can last anywhere from a couple of hours or up to two weeks. She might be okay for a couple of days but then it hits again. She said she had no sort of routine or reliability about her.
57 As at January 2015, the plaintiff described her symptoms as the same as previous years, but also said she now experienced a tightness of forehead that caused her eyes to close over and go puffy.[64] She had an intense feeling of grogginess; sometimes she is dizzy; she found it difficult to go for a walk; she is off balance. She has days when she lies on the bed. She reported that, during 2015, she developed a further symptom of scorching of the skin when she was exposed to warm water whilst showering. She said she felt horrendous.
[64]T113-114
58 In February 2015, the evidence is that the plaintiff travelled with family to Perth, which included a daytrip to Rottnest Island, and Margaret River, which she was unable to participate in because of her health.[65]
[65]T123-124
59 From 18 July to 11 August 2015, the plaintiff travelled to New York.[66]
[66]Exhibit XX
60 In September 2015, the evidence is that the plaintiff travelled to Noosa, Queensland. She also travelled to the Gold Coast a couple of times during 2015.[67] The plaintiff’s evidence was that she likes to stay at Burleigh as “there is a beautiful walking track there with exercise stations”.[68]
[67]T312
[68]T122
61 The plaintiff said her health was still fluctuating in 2016. She described what she called a new symptom of ciguatera in 2016, which was pain spreading like a web around her shoulders and back.[69]
[69]T150
62 On 15 January 2016, the evidence is that the plaintiff travelled to the Gold Coast.[70]
[70]Exhibit XX
63 From 10 June 2016 to 20 July 2016, the evidence is that the plaintiff travelled to Singapore, Italy, Paris and Spain.[71] While in Italy, she attended a wedding. She said she had to rest a lot so that she had enough stamina to last at the wedding. In cross-examination, the plaintiff agreed that the wedding was at 5.00pm and she rested in the morning and the afternoon. On another day, she reported walking a couple of kilometres, then she suddenly felt really tired. She returned to where she was staying and the symptoms became worse and worse. She spoke of being completely exhausted while in Paris.[72]
[71]Exhibit XX
[72]T120
64 In January 2017, the plaintiff said she visited Byron Bay.[73] She spoke of hiring a surfboard where she attempted to surf but it was too strenuous.
[73]T122
65 Throughout the period of 2009 to date, she described in Court her symptoms from ciguatera to include yellow hands and face,[74] nausea, lethargy, the tip of her tongue felt numb when she drank fluids, hot flushes in her hands, burning in her feet, stomach pains and cramps, aching legs, fatigue, weakness, breathlessness, an agony of discomfort, grogginess in the head, mushy brain, head filled with water, concentration and memory problems, bouts of nausea, headaches, burning hands when touching something cold or when under cold water, dizziness, a “need to eat” or would feel horrendously sick[75] and insides tremor or shake when waking up, combined with blood pulsing around.[76]
[74]T378
[75]T155
[76]T189
66 She said the week before the trial commenced, she had a better week. However, that still required her to lie down between activities. She experienced lethargy, her eyes were closing over, grogginess and being off balance when she walked. She experienced one evening when she suffered pain in her right eye, such that she was required to take Panadol. She also had to take a warm shower because she had intense pains across her upper back into her shoulders and neck. The plaintiff maintained that her symptoms from ciguatera were unpredictable and fluctuated not only from week to week but also within the course of a day. She said that, on medical advice, she does not ingest alcohol, caffeine, nuts, eggs and fish to avoid re-triggering symptoms.[77]
[77]T124
67 In cross-examination, she agreed that some of the symptoms she experienced, she no longer experiences such as the rash on her chest, diarrhoea, vomiting, numbness in the lips or the tongue and hot flushes in her hands. She still suffers aching in the legs, nausea, lethargy, lifting of the arm can feel weak, burning in her feet, eye pain, pain in her head and grogginess. She has not experienced the invisible rash-like dry skin for a couple of years nor has she experienced the mushy brain for the past six months.
68 The plaintiff told the Court that the words are distorted on the page so that it is like a pop-up book.[78] She also said she experienced a scorching sensation when she had a warm shower.[79]
[78]T381
[79]T382, T367
69 In cross-examination, the plaintiff agreed that Dr Wyatt said she was fit to go back to work and that she should go back to work. The plaintiff said she relied more heavily upon what her infectious disease specialist tells her, which was Dr Fuller. She agreed that he encouraged her to go back to work.[80] She agreed that, since 2010, she had not attended any job interview. She said when Dr Fuller encouraged her to return to work, she explained the difficulties and challenges she would face and he agreed it was not the right time.[81]
[80]T129
[81]T131
70 The plaintiff told the Court that most of her work duties as a project co-ordinator at the ANZ Bank were performed at her desk in a seated position using a keyboard and mouse. Occasionally, she had to lift up a file box. Her work was cognitively demanding and she was required to organise and plan projects, as well as co-ordinate activities. She enjoyed work but it was not stressful. She agreed she had adjusted her life to the condition she suffers.[82]
[82]T388-89
71 The plaintiff said she would need to be in much better health in order to work than what she is currently experiencing.[83] She said her focus was spending quality time with friends and family and being active and fit to play sport. The following exchange occurred in Court:
Q: “How does that happen when you're not even trying to go back to work, why would you have that thought if you’re not even trying?---
A: Because first, I’m trying to be well. Once I get to a certain point of being well over a long period of time with no symptoms that’s when I will be trying to go back to work, when I can say to an employer that I’m physically fit to return to work and that I can do the job that you need doing.”[84]
[83]T391
[84]T391, L27 – T392, L3
72 In cross-examination, the plaintiff discussed the work she was performing in New York when working for the ANZ Bank in Australia. She said she was at the end of the project. She agreed that she could perform her job remotely.
73 In cross-examination, counsel for the defendant asked about the day when she was examined by Associate Professor Ruff, Dr Paul and finally, Dr Felman, as part of the Multidisciplinary Panel. She agreed that she did not suffer any fatigue at the end of the day. She said she felt a little bit groggy when she has to concentrate for a long period of time. She does not feel alert; she feels a bit vague.[85] She said she felt like that when seeing Dr Paul.
[85]T133
(b) Janice Marie Hill
74 Janice Marie Hill, physiotherapist, currently works at Caulfield Hospital, which is part of Alfred Health. She is a full-time employee who spends 24 hours per week in hydrotherapy and the balance of time at the aged care assistance service.[86]
[86]T198
75 Ms Hill has treated the plaintiff from 5 September 2011[87] through to the end of 2015 when she was involved in a transport accident. Following rehabilitation, she commenced treating the plaintiff in October 2016 through to date.[88]
[87]I note Ms Hill’s report at JCB 539 states 4 September 2011
[88]T199
76 Ms Hill’s letter dated 4 July 2014 to Ms Melanie Tenace, a claim’s assessor for the defendant, was tendered in evidence.[89] Ms Hill said the list of the plaintiff’s symptoms in the letter were pretty much consistent but not all the time as they come at different intervals.[90]
[89]JCB 539
[90]T202
77 As for the end of 2015, Ms Hill said the plaintiff was able to do a full hour of treatment each time she attended on her. Her attendance for the period July 2014 to the end of 2015 hovered around 38 per cent. Ms Hill recalled an attendance by the plaintiff on her on 30 January 2016 where she said the plaintiff definitely did not look well and was slow in her communication of the symptoms she was experiencing. Her pallor was very pale. She had not seen this before physically, although she had seen a couple of videos shown by the plaintiff.[91]
[91]T204
78 In cross-examination, Ms Hill agreed that the symptoms she listed were the symptoms the plaintiff told her she was experiencing. She agreed that most of the symptoms were subjective.[92] She said she could verify organically the musculoskeletal symptoms by means of a physical assessment performing a range of movement, muscle testing and passive mobilisation of joints. She said she would back up the plaintiff’s complaint of pain by a hands-on assessment of the joints in the neck and spine and ribcage, and treat it accordingly.[93] She agreed she could not do any organic testing for the eye pain. As for the plaintiff’s attendance record on her, she agreed that this involved subjective reporting, and the reason why the plaintiff did not come was not known until after the event.[94]
[92]T205
[93]T205
[94]T206-207
79 Ms Hill said that she asked the plaintiff to keep a diary of her symptoms, which she did for a number of years, but it seemed to be creating stress and anxiety for the plaintiff. She discussed this with the plaintiff and they came to an agreement to stop it.[95]
[95]T207-208
80 Counsel for the defendant asked Ms Hill as to her statement in her letter that, “she only attends hydrotherapy when she is generally well and does not attend when her symptoms have escalated”.[96] Also, as to her statement that “this level of work is still considerably lower than her pre-morbid level of activity”. She agreed that both statements were not from personal knowledge but from what the plaintiff told her. Similarly, where she states that the plaintiff was assessed by the Chronic Fatigue Clinic at Caulfield Hospital and considered unsuitable, that was from what the plaintiff had told her.[97] The plaintiff had also informed her that her employment required an ability to concentrate for long periods.
[96]T208; JCB 541
[97]T209
81 In re-examination, Ms Hill said she did not know the reason why the plaintiff did not come to her appointments all the time but she seemed to be consistently reporting the same issues regarding her symptoms.[98]
[98]T210
82 I formed the view that Ms Hill was a credible and truthful witness.
(c) Dr Andrew Fuller
83 Dr Andrew Fuller, infectious disease physician and clinical microbiologist, has treated the plaintiff since 2009 to date. He has practised for twenty-five years and is currently employed in the Infectious Diseases Unit at The Alfred hospital.
84 Dr Fuller agreed that ciguatera poisoning was caused by a toxin that enters the body after a person eats fish containing the toxin.[99] He agreed that there was no clinical test available to detect the toxin.[100] Instead, he relied upon subjective symptoms that the plaintiff reported to him.[101]
[99]T260
[100]T260
[101]T260
85 Dr Fuller explained that ciguatera poisoning is based on eating the appropriate fish, which was the case in Cuba, and also had three components, which is gastrointestinal, neurological and cardiovascular symptoms. He said the cardiovascular component is low blood pressure, which the plaintiff had; the neurological component, which the plaintiff had, and the gastrointestinal component, which she has continued to have on and off, even after treating the amoebic infection. As her symptoms were characteristic of the condition, he had no doubt that the plaintiff has ciguatera poisoning.[102]
[102]JCB 512-514
86 In November 2009, about a month after the plaintiff ingested fish in Cuba, Dr Fuller diagnosed the plaintiff with ciguatera poisoning.[103]
[103]T257
87 Dr Fuller completed a Medical Attendant’s Statement Disability Income, dated 7 January 2010, where he stated the diagnosis and objective clinical signs of the condition of the plaintiff was ciguatera poisoning. As to her prognosis, she was improving steadily and the ciguatera should resolve within six weeks.[104]
[104]Exhibit 4, JCB 80-84
88 Counsel for the defendant referred Dr Fuller to a graph the plaintiff drew to document her fluctuating energy levels and symptoms from 16 June 2015 to 13 June 2015, which was undertaken at the request of the defendant.[105] Dr Fuller agreed the plaintiff reported dramatic fluctuations in her symptoms within the course of a day and from day to day, which ranged from having so little energy she could not get out of bed to undertaking a range of activities such as hydrotherapy, bike riding, gardening and social activities.[106] Further, that she reported a lot of symptoms.[107] Some of the symptoms included fatigue, poor energy, occasional breathlessness, eye pain, intense pain in her scalp, droopy eyelids and neuropathy in her hands, in particular, getting milk out of the fridge burns her.[108] In 2015, she reported a scorching sensation in the shower.
[105]Exhibit F, T263
[106]T261, 266
[107]T264, L14
[108]T265-267
89 Dr Fuller agreed the ongoing perpetuation of ciguatera was dependent upon the subjective reporting of symptoms. He believed it was uncommon for ciguatera to continue for more than a year or two and that seven years, in the plaintiff’s case, was rare. He told the Court that journal articles and sources from the United States show ciguatera can persist for a decade.[109] He agreed the plaintiff’s symptoms persisted for “five or six years unchanged, variations within but unchanged in terms of improvement”.[110]
[109]T285
[110]T268, L6-8
90 As to the plaintiff’s travel overseas, he was concerned that the plaintiff travelled to New York, Mexico and Los Angeles, particularly given that was twenty-four hours’ travelling time. However, he said he was aware of patients with chronic fatigue who go on holidays.[111]
[111]T302-303
91 Dr Fuller informed the Court that he referred the plaintiff to other specialist doctors to rule out other diagnoses, which included:
· Dr Mark Jeanes, psychiatrist, who said she had no specific psychiatric illness;[112]
[112]T312
· Dr Jack Wodak, consultant neurologist, who could not fault her neurologically. Her brain scan and nerve conduction studies were normal;[113]
[113]T301, JCB 536
· Dr Bruce Day, neurologist, who said the nerve conduction studies he conducted were normal;[114]
[114]T301-302
· Dr Karen Hitchcock, general physician, who said she could not assist the plaintiff;[115]
· Dr Van Den Box, neurology registrar, who, due to the plaintiff’s droopy eyelids, reviewed her for myasthenia;[116] and
· Dr Mark Faragher, consultant neurologist, who concluded there was no neurological diagnosis and that her symptoms most likely have a functional origin.[117]
[115]T307
[116]T309
[117]T311, JCB 534
92 Dr Fuller said that, whilst it was unusual to occur beyond one or even two years, he had “no doubt” the plaintiff continued to have the toxin in her body and suffered from ciguatera.[118] There was no trend for improvement.[119]
[118]T277 L4-6
[119]T268
93 In 2012,[120] Dr Fuller recalled discussing the plaintiff’s case with Associate Professor Ruff on a “no-names” basis. Dr Fuller said he sought his opinion as the expert in ciguatera poisoning in Australia. Whilst there was no file note made, he said that Associate Professor Ruff agreed with his diagnosis of ciguatera.[121]
[120]I note that Dr Fuller initially told the Court that this occurred in 2015 at T269; see also T291
[121]T269
94 As Dr Fuller had not read Associate Professor Ruff’s report of 2015, I adjourned the Court to allow Dr Fuller to read it before continuing his evidence.[122]
[122]T269, L5
95 Initially, Dr Fuller maintained that they shared the same opinion as to the plaintiff’s illness because they both maintained ciguatera was rare beyond two years but possible, and that chronic fatigue had developed. Dr Fuller said:
“… Now, I have not seen this report until now so my comments, if you look at page 657, at the top of that page he does say – this is Tilman Ruff: ‘In a small proportion of cases it is well recognised that Ciguatera symptoms may persist for a few years.’ And then further down he says, ‘For the time course of a discrete episode of Ciguatera poisoning it is, however, possible to say that a time course beyond two years is extremely unusual’, and I would agree beyond two years is extremely unusual, but it is possible and he makes that comment too. So we’re talking about - we’re both saying the same thing in a similar way. He’s saying most people are better by two years, well, I’m saying the same thing, but there are some people who go beyond that and I think she is one of these. The other point he makes in his writing is that chronic fatigue and (sic) quite common and that is well recognised as well. And he postulates that the Ciguatera has faded off and the chronic fatigue has started and that is also plausible. So I think we have fairly similar opinions”.[123]
[123]T292, L11-31
96 However, upon intense cross-examination, Dr Fuller conceded that their opinions were different, as he believed the plaintiff had ciguatera and Associate Professor Ruff said the ciguatera had gone and the plaintiff had developed chronic fatigue.[124] The following exchange occurred:
[124]T294, L29-30
A:“… I still think she has – she’s still not well after seven years. She still has hot/cold reversal on her hands and still has the same sort of symptomatology that fluctuates as it did in year one and year two, she’s still not get the energy levels to get back to full-time work and so I still think she still has symptoms attributable to Ciguatera toxin and chronic fatigue has developed; that’s what I think so I’m not changing my tune in any way.
Q:But you accept you’re not saying the same thing as Associate Professor Ruff, are you?---
A:So his - no, I guess you’re right, it is slightly different, yes.
Q:It is significantly different because he says she doesn’t have the illness anymore and you say she does?---
A:So earlier on he’s saying she has the symptoms and so forth and … She’s saying she still has symptoms and he’s calling it, if you go to the next couple of pages, he’s now calling it chronic fatigue …”[125]
[125]T294, L30 – T295, L15
97 Further, Dr Fuller said:
A: “He’s saying the Ciguatera has gone and now she has chronic fatigue. I’m saying sure, she’s got chronic fatigue but I think the Ciguatera hasn’t quite gone, that’s what I’m saying.
Q: So you disagree with him?---
A: Yes.”[126]
[126]T314, L7-12
98 As to work capacity, Dr Fuller told the Court that he consistently encouraged the plaintiff to return to work but I note that this was not referred to in his clinical notes nor in the letters to Dr Birman, the plaintiff’s general practitioner, where he advised she was not capable of going back to work. However, in cross-examination, Dr Fuller conceded that the plaintiff was currently not well enough for full-time work but was capable of doing part-time work and graduating up.[127] This was notwithstanding the view of the experienced Medical Panel.[128] He said he always encourages his patients to get better and back to work and he would not necessarily write that in his clinical notes. He agreed with counsel for the defendant that getting back to work is very important to normal life.[129]
[127]T298, L6-9
[128]T299
[129]T283
99 Dr Fuller said he was not aware of the details of where the plaintiff travelled. He was aware that the Multidisciplinary Panel expressed surprise at the extent of the travel, given the symptoms the plaintiff was reporting. He agreed that he, too, was a little surprised at the extent of the travel.[130]
[130]T303, L23-30
100 Dr Fuller said the plaintiff has ciguatera induced chronic fatigue.[131]
[131]T308, L28-31
101 Counsel for the defendant attacked the credit of Dr Fuller, which I will subsequently address.
(d) Ms Carmel Fenton, Ms Beverly Fenton, Ms Christine Millane
102 Ms Carmel Fenton, the plaintiff’s sister; Ms Beverly Fenton, the plaintiff’s mother, and Ms Christine Millane, the plaintiff’s cousin, gave evidence as to what they observed of the plaintiff.
103 Ms Carmel Fenton described the plaintiff as sporty, social and in good health prior to 2009. She said that, upon the plaintiff’s return from Cuba, she saw the plaintiff in pain, with stomach cramps and running to the bathroom. Ms Fenton said she visited her mother’s house regularly between 2009 and 2014. Ms Fenton had pre-school children at that time and once the children were at school, she did not visit the plaintiff as often. After 2009, she saw days where the plaintiff was not feeling bad and other days where she was slow and not able to function properly. If the plaintiff tried to do anything physical, she observed the plaintiff feeling unwell and resting the next day. In cross-examination, she said that her sister is still unwell.
104 Ms Beverly Fenton told the Court that the plaintiff was very healthy, sporty and social with lots of friends when she was growing up. Currently, the plaintiff lives in her home with her. She described the plaintiff on her “good days” as going out, mowing the lawn, gardening, seeing friends, attending physiotherapy and other normal things. When she is not well, she said the plaintiff will sit on the couch or the chair or lie down on her bed.
105 Ms Millane described the plaintiff as a vivacious, social, popular, and a go-getter and friendly person whilst growing up. She said that ciguatera “… stopped her from pursuing her career and just stopped her from doing all the activities she did”.[132] Ms Millane described a trip to Perth with family, including the plaintiff, in early 2016. She observed the plaintiff with puffy eyes and a lack of energy, which lasted about three days. The plaintiff missed out on a trip to Rottnest Island and, whilst in Margaret River, she stayed back at the accommodation instead of accompanying her family outside.
[132]T448
106 All family members answered questions directly and were straightforward in the evidence they gave. They acknowledged a lack of medical training and that their evidence relied upon what the plaintiff told them as to how she felt from the illness or the impact the illness had upon social or work opportunities. I accept that their evidence as to what they observed is relevant.
The Defendant’s evidence
(a) Dr Mary Eva Wyatt
107 Evidence was given by Dr Wyatt, medical practitioner specialising in occupational medicine. Her specialty involves dealing with situations where there is an overlap between work and health and where someone’s work affects their health or where the health impacts their ability to work.[133] Dr Wyatt’s medical reports of 24 February 2013 and 24 January 2014 and letter to the defendant dated 22 April 2014 were tendered in evidence.
[133]T215-216
108 At the request of the defendant, Dr Wyatt first consulted with the plaintiff to review her condition and work capacity on 22 February 2013.[134] She said the plaintiff’s case was more complex and it may have taken longer than the allocated 45 minutes for an interview with her.
[134]JCB 592
109 In her first report dated 23 February 2013, Dr Wyatt came to the following conclusions:
· It was appropriate to accept that the plaintiff has had ciguatera poisoning, as her condition in 2009 was consistent with it;
· The plaintiff had ongoing symptoms;
· The plaintiff is capable of working in a role which affords flexibility in the days she works and the timing of work but this would not allow her to work in her project co-ordinator role;
· The plaintiff appears to have a partial disablement, for example she is able to perform some of her duties some of the time; and
· She estimated the plaintiff was two years away from returning to her usual full-time job.
110 Dr Wyatt was cross-examined by counsel for the plaintiff regarding page 5 of her first report where she said the plaintiff described having an ongoing range of symptoms in the early stages. She said that she believed it was appropriate to accept that she has had ciguatera poisoning.
111 Dr Wyatt was asked whether she had done some research. Dr Wyatt said she had no expertise of ciguatera poisoning but did spend half a day doing relevant research before the plaintiff’s assessment.[135] She agreed she would defer to the opinion of infectious disease physicians.
[135]T224
112 Dr Wyatt agreed with counsel for the plaintiff that there were three elements to working, which were working dedicated hours, between dedicated times and performing defined duties and that a worker needed to be predictable and reliable.[136] She further agreed that part-time work required dedicated days in the week but said it was more likely to be a flexible role but still required the worker to get the work done.[137]
[136]T229
[137]T231
113 In her second report dated 25 January 2014, Dr Wyatt assessed the plaintiff for a second time and came to the following conclusions:
· It is possible the plaintiff has ciguatera poisoning but long-term disability is uncommon;
· Her impression was that the plaintiff’s reported disability was not commensurate with the nature of the condition and that there may be dysfunctional personality factors playing a role;
· The plaintiff’s reported reasonable alternating with very disabled days is highly unusual and suggests non-physical factors are playing a substantial role;
· The plaintiff has the capacity for work and a graduated return to work seemed sensible. There was no clear-cut medical reason for the plaintiff to return to work part time but it seemed a pragmatic recommendation; and
· The major barrier to the plaintiff’s return to work would be her beliefs in the illness and focus on the illness.[138]
[138]JCB 600-604
114 In cross-examination, Dr Wyatt said she thought she had spoken to Dr Fuller, who indicated the plaintiff’s condition was improving, with more good days and less bad days. But when she saw the plaintiff, she advised she had not improved in her symptoms.
115 Dr Wyatt said about 60 per cent of us have long-term pain. Dr Wyatt said that she accepted the plaintiff’s advice about her symptoms at face value. She was told that Dr Fuller said the plaintiff was not able to work. She said studies report when people are off work long term, their medical conditions accounts for 10 to 20 per cent of the likelihood they will go back to work. The medical condition and symptoms reported is only a small part of whether a person returns to work. If one accepts the patient’s advice about her symptoms, you might come to the conclusion reached by Dr Fuller. However, when she looks at it from her speciality of occupational medicine, when beliefs about the condition and beliefs about illness are taken into account, she formed the view that they were “the major driver … [in] Ms Fenton not returning to work”.[139]
[139]T232-233
116 In a subsequent letter dated 22 April 2014, Dr Wyatt considered that the plaintiff could participate in a gradual return to work program commencing at 50 per cent of her previous level of work. However, given the context, it would be more prudent to start the plaintiff at a lower rate such as 30 per cent and graduate up over a longer period of time. This would be a more pragmatic approach.[140]
[140]JCB 605
(b) Dr Peter Stevenson
117 Dr Stevenson, consultant physician, saw the plaintiff on two occasions for medico-legal purposes at the request of the defendant. He informed the Court that he had intermittently seen patients with ongoing symptoms of ciguatera. Dr Stevenson provided two reports dated 10 September 2010 and 9 April 2015, which were tendered in evidence.
118 In his first report dated 10 September 2010, Dr Stevenson noted that the plaintiff provided him with a written list of symptoms. He described ciguatera poisoning as an infection with a toxin found in certain species of fish, often from the Caribbean. The fish contains a neurotoxin involved which causes short-lived bowel upset and neurological symptoms. He opined that the true neurotoxin is short-lived and often the illness is acutely resolved in one month. He said the literature did not support total incapacity beyond six months.[141]
[141]JCB 560-564
119 In his report, Dr Stevenson found it difficult to conclude that the plaintiff had no work capacity, and opined that:
“… If she can commit herself to overseas travel then she should be physically able to commit herself to at least part-time sedentary occupation.”[142]
[142]JCB 563
120 During cross-examination, Dr Stevenson acknowledged that when he first examined the plaintiff in September 2010, he accepted her history and symptoms that she reported.[143] He acknowledged that the plaintiff presented in a credible manner and as a pleasant and motivated lady.
[143]T239-240
121 Counsel for the defendant took Dr Stevenson to Dr Fuller’s diagnosis of ciguatera poisoning and he agreed that ciguatera poisoning was the probable diagnosis with the usual vagueness that often attends the diagnosis. He said that the plaintiff’s statement of disability was less emphatic in 2010, that she was intermittently describing herself as well enough to apply for jobs. He said in his first assessment he accepted her account as reasonable enough, that she was symptomatic enough for interrupting what appeared to be attempts to get back to work.[144]
[144]T245
122 Dr Stevenson agreed that there was no cure for ciguatera poisoning as the neurotoxin clears from the body. He said that since neurotoxin is not assayable in the brain, there is no evidence that ongoing claims of disability are necessarily due to persisting neurotoxin.[145]
[145]T246
123 In his second report dated 9 April 2015, Dr Stevenson said he had difficulty in accepting the plaintiff’s level of incapacity at the second assessment. She reported that, although it was nearly five years since he last saw her, everything was “still the same”. She produced a list of symptoms for him.
124 Dr Stevenson observed that, upon examination, the plaintiff seemed quite well, animated, argumentative and defensive. He described the plaintiff as follows:
·“Ms Fenton appears to have an inappropriate disease conviction used to justify a long-term occupancy of the invalid role.”
·“Ms Fenton appeared completely well and presented as a healthy argumentative woman claiming total chronic disability.”
·“It is improbable there is any condition.”
·“… A graduated return to work is neither necessary nor helpful. It would only justify the incorrect assumption that she still suffers from a physical condition from which she requires rehabilitation. Ms Fenton is a pleasant lady but she has no physical disease.”[146]
[146]JCB 570-571
125 In cross-examination, counsel for the plaintiff asked Dr Stevenson whether he just did not believe the plaintiff when she re-attended for examination. Dr Stevenson said that her emphatic level of incapacity made her less credible. For example, to spend three months in bed, or two weeks, where she could not move a finger, was a profound level of incapacity.[147] Dr Stevenson said such patients are hospitalised where they are completely unable to move, and he knows they are completely unable to move because they have not been moving their respiratory muscles and they need to be on a ventilator. He said he has seen such patients get better and return to work. He said they are returning to work after about four and five years, and the plaintiff is not. That is an anomaly which has him worried about the plaintiff’s presentation.[148]
[147]T253
[148]T253
126 As to work capacity, Dr Stevenson agreed with counsel for plaintiff that full-time work required working a number of dedicated days, working between dedicated times and that, to be an effective worker, you need to be predictable and reliable.[149]
[149]T241
(c) Dr Martin Jackson
127 Dr Martin Jackson, clinical neuropsychologist, saw the plaintiff on 21 August and 25 September 2012 and produced a report dated 12 October 2012, which was tendered. He had two consultations with the plaintiff, as she appeared fatigued halfway through the initial consultation and Dr Jackson made the clinical decision to stop and see her a second time to finish his examination.
128 In cross-examination, he agreed his purpose was to carry out neuropsychological tests. Dr Jackson agreed that the plaintiff was cooperative throughout the assessment on both occasions and attempted all tasks given to her to the best of her ability.
129 In his report, Dr Jackson stated that the results of the neuropsychological assessment were that her neuropsychological profile was considered to be valid and reliable. There was no evidence of Mood Disorder exaggerating her symptomatology and she appeared as a straightforward a credible historian.[150] From a purely neuropsychological perspective, Dr Jackson concluded that there was no evidence of a psychological condition and she has the cognitive abilities to work on a full-time basis in her usual occupation.[151]
[150]JCB 587-588
[151]T333; JCB 589
(d) Dr Dielle Felman
130 Dr Dielle Felman, consultant psychiatrist, examined the plaintiff at the defendant’s request on 10 July 2015. Dr Felman convened the Multidisciplinary Panel which consisted of Associate Professor Ruff, infectious diseases specialist, and Dr Matt Paul, occupational physician. She was the last to consult with the plaintiff that day and the consultation lasted approximately ninety minutes.[152] Subsequently, she produced an individual medical report dated 7 August 2015, which was tendered in evidence.
[152]T318
131 In her report, Dr Felman stated that the plaintiff identified strongly with her condition and incapacity. She said the mental state examination findings were notable for a euthymic, warm and reactive woman who displayed an absence of cognitive symptoms or objective fatigue at the end of a long day of assessment. Dr Felman said the plaintiff was preoccupied with symptoms and limitations and appeared entrenched in an illness role and disability.
132 Dr Felman reported that the plaintiff did not significantly lament the fact she had not returned to work, although she previously enjoyed her role at the ANZ Bank. The plaintiff told her that she may be able to return to work in the future, possibly in her usual work type, and also expressed interest in working for the AFL or Cricket Australia. She noted there were some inconsistencies in her reported level of functioning, for example buying clothes for work being a significant challenge and taking a month to achieve, at the same time as being able to travel overseas and attend the AFL or rugby matches.
133 Ultimately, in her report, Dr Felman concluded that there was insufficient information to conclude a psychiatric condition underpinned the plaintiff’s presentation or incapacity.
134 In cross-examination, Dr Felman agreed that part of her assessment was a comprehensive enquiry as to the plaintiff’s previous psychiatric history, her current illness and her past history, including family history of any psychiatric illness or any drug and alcohol history. She agreed that the plaintiff reported that, between Associate Professor Ruff and Dr Paul’s assessments, she was getting a bit tired. She agreed the plaintiff was open and forthcoming, very logical, very clear and articulate. Dr Felman said she was looking for over concerns regarding her physical symptoms. She said the plaintiff expressed some anxiety about the insurance process but that it was not significant.
(e) Associate Professor Tilman Ruff
135 Evidence was given by Associate Professor Tilman Ruff, infectious diseases specialist, employed at the Noosal Institute for Global Health with the University of Melbourne and international medical advisor with the Australian Red Cross. He has written on the topic and was published in the Lancet.[153] He has treated patients with ciguatera poisoning, written papers about the clinical and public health aspects of ciguatera poisoning and is sought out by colleagues who are treating patients who have the sickness. The evidence is that he is regarded as the pre-eminent expert on ciguatera poisoning in Australia.
[153]The world’s largest circulating medical journal
136 As part of the Medical Panel, Associate Professor Ruff assessed the plaintiff on 10 July 2015 for approximately two hours and also read through extensive documentation from her treating doctors. He produced an individual report dated 3 August 2015, which was tendered in evidence.
137 The plaintiff described that her symptoms fluctuated wildly and that overall there had been no secular trend for improvement or worsening but remained unchanged. She described her symptoms at that time to include varying levels of energy and strength, some pain when touching cold objects, occasional breathlessness and episodes of right eye pain.[154] He said the plaintiff was co-operative, alert, engaging, responsive and warm throughout his consultation.[155]
[154]JCB 609
[155]JCB 611
138 Associate Professor Ruff opined that, whilst it was not possible to place an upper limit on duration, persistence of ciguatera poisoning beyond one to two years was uncommon and not well established. Further:
“… However, close to 6 years after illness onset, with no trend for improvement, extreme fluctuations in symptomology over a time course of hours and days and a lack of specific precipitants associated with ciguatera, together, in my assessment, make Ms Fenton’s continuing illness implausible to attribute to direct continuing effects of ciguatera toxicity. … .”[156]
[156]JCB 612
139 In his report, Associate Professor Ruff opined that, whilst he had no doubt the plaintiff had ciguatera poisoning in 2009, she no longer had the symptoms seven years later. Instead, the plaintiff is in the “category of fatigue syndromes”.[157]
[157]T364
140 In cross-examination, Associate Professor Ruff further explained that the plaintiff’s symptoms were not consistent with a ciguatera poisoning diagnosis for the following reasons:
· It is close to six years after the illness onset
· The plaintiff’s lack of trend for improvement more than seven years later
· Her conscious effort to avoid foods that would re-expose her to ciguatera poisoning symptoms made re-exposure unlikely
· Very dramatic changes from being nearly well to totally incapacitated and bed bound within a day or an hour or two
· Development of the new symptom of a scorching of the skin in 2015 was not consistent with ciguatera poisoning in 2009;[158] and
· Lack of specific precipitants associated with ciguatera.
[158]T367-368
141 In cross-examination, Associate Professor Ruff was taken by counsel for the plaintiff to an article he published with Richard J Lewis, entitled “Clinical aspects of ciguatera: an overview”.[159] He agreed that symptoms of ciguatera as outlined in the article were correct.[160] Associate Professor Ruff said that part of the difficulty with ciguatera was that none of the symptoms were specific to ciguatera, as they can all have multiple other causes.
[159]T353
[160]T354-355
142 In re-examination, he described inconsistencies in sport, social activities and extensive travel the plaintiff was able to undertake compared to her reported symptoms where she could not even get out of bed. Further, that the plaintiff could travel at the same time as other less demanding activities were difficult for her, such as shopping or hydrotherapy.[161]
[161]T368
143 As to improvement, he agreed that the time course is generally over days and weeks but symptoms may uncommonly persist for months, rarely years.[162]
[162]T357-358
144 Associate Professor Ruff agreed that his assessment of the plaintiff differed from Dr Fuller’s but made no further comment.
(f) Dr Matthew Paul
145 Dr Matthew Paul, occupational physician, examined the plaintiff as part of the Multidisciplinary Panel on 10 July 2015. He was the second person to assess the plaintiff, which went for approximately an hour. He subsequently produced an individual report dated 6 August 2015, which was tendered in evidence.
146 In his report, Dr Paul stated that the plaintiff told him that most of her work as a project co-ordinator was performed at her desk in a seated position using a keyboard and mouse. The work was cognitively demanding and she found it enjoyable.[163] She told Dr Paul that she was not working and there were no plans to return to work. She was not working as the level of her symptoms and unpredictable changing nature of the symptoms made her an unreliable employee.[164]
[163]JCB 650
[164]JCB 652
147 Dr Paul reported that there was no objective level of impairment upon examination of the plaintiff. Whilst ciguatera poisoning may have triggered the onset of symptoms, her initial condition is likely to have resolved by now. As there was no objectively confirmed medical diagnosis, there was no need for medical restrictions.
148 Further, Dr Paul stated that medical restrictions on her work capacity could be harmful as the health benefits of work are well known and the health risks of long-term worklessness are significant.[165] Dr Paul agreed with Dr Stevenson’s second report in 2015 that there was no medical condition prohibiting a return to work in her usual role. Dr Paul believed a graduated return to work was not needed as it had been encouraged in the past and not acted upon. He felt there were non-medical factors acting as a barrier to her return to work and noted “secondary gain”.
[165]JCB 654
149 In cross-examination, Dr Paul agreed with counsel for the plaintiff that he had no expertise in ciguatera poisoning but accepted that it was probable she had the disease at the end of 2009 based on Associate Professor Ruff’s report. As to the inconsistences between Dr Fuller and Associate Professor Ruff’s diagnosis of ciguatera poisoning, Dr Paul said that he would rely upon his own findings and come to his own conclusions based on the evidence at hand, which is what he did in his individual report.[166]
[166]T460
150 Dr Paul tended not to agree with counsel for the plaintiff that working full time required a person to be predictable and reliable. He said, in fact, most people were neither predictable nor reliable, which was the reason for the concept of sick leave in workplaces.[167] He said it all depended on the role, job and arrangement with your employer.
[167]T463
151 Counsel for the plaintiff submitted that Dr Paul did not have expertise in infectious diseases and had no qualifications to opine as to the effects of ciguatera poisoning, which gives little weight to his opinion. I note that Dr Paul’s evidence was relied upon in relation to the plaintiff’s work capacity and not as to whether she suffered from ciguatera poisoning. Consequently, I do not accept counsel for the plaintiff’s argument.
(g) Ms Aelan Bradley
152 Ms Aelan Bradley, consultant rehabilitation counsellor, undertook an employability assessment of the plaintiff at the request of the defendant. She did not meet with the plaintiff but undertook the assessment based on documents provided to her by the defendant. She produced two reports dated 31 July 2013 and 30 January 2017, which were tendered in evidence.
153 In her first report, Ms Bradley identified vocational options recommended as suitable for the plaintiff in accordance with her education, training and experience, which were:
· Program or Project Administrator/Project Support Officer/Coordinator[168]
[168]JCB 637
· Systems Analyst;[169] and
· Various work from home jobs, which included customer service and sales representative roles; work processing operator for transcription company and online data entry jobs, amongst others.[170]
[169]JCB 641
[170]JCB 644
154 In her supplementary report, Ms Bradley provided details as to the monthly income that could be earned in the occupations she identified as suitable for the plaintiff in her previous report.[171]
[171]JCB 664-666
155 In cross-examination, Ms Bradley agreed that full-time employment required dedicated days and times to perform certain duties of the role. Further, that being employed also required predictability and reliability. She agreed that the concept of part-time employment was similar. She agreed that if you have a debilitating illness that prohibits you from getting out of bed, it does not matter whether you have portable technology or can work at home, because you could not perform your duties.[172]
[172]T344
(h) Dr Karen Hitchcock
156 Dr Hitchcock, general physician specialising in acute and general medicine, examined the plaintiff on 16 April 2013 for approximately one hour.[173] Subsequently, she prepared a letter to Dr Birman dated 16 April 2013, which was tendered in evidence.
[173]T288
157 In her letter, Dr Hitchcock relevantly stated:
“My impression here today is that we have very little to offer Amanda. She has ongoing physiotherapy, has had psychological review, and currently has what she feels is a good life.”[174]
[174]Exhibit J, JCB 624
158 In cross-examination, Dr Hitchcock agreed that the plaintiff was very upfront. She said she took the view that all appropriate management of the sort that she would be offering or suggesting, such a physiotherapy and psychological therapy, had all been undertaken, so she did not feel that she would be able to offer anything else, and that was her assessment. She said the plaintiff was remaining under the regular care of Dr Fuller.
159 Ultimately, I formed the view that the expert witnesses called by the defendant were objective and provided consistent evidence as to the plaintiff’s condition.
(i) Multi-disciplinary Panel
160 Associate Professor Ruff, Dr Dielle Felman and Dr Matthew Paul, who together comprised the Multidisciplinary Panel, prepared a joint report, which focused on a holistic assessment of the plaintiff’s condition, functioning and work capacity.
161 Counsel for the plaintiff submitted that the evidence of individual Multidisciplinary Panel members may be compromised by the fact they discussed the case prior to writing their individual reports. I do not accept this argument, as I found each witness to be professional and objective.
162 Counsel for the defendant tendered the joint report of the Multidisciplinary Panel.[175] Each witness answered the questions asked of them by the defendant on the basis of their expertise. The opinions reflected their individual reports and evidence given in Court.
[175]JCB 655-663
163 Associate Professor Ruff considered the plaintiff suffered from ciguatera poisoning in October 2009 but that it did not explain her persistent illness six years later.[176] Associate Professor Ruff opined that the plaintiff’s continuing illness, whilst it was triggered by ciguatera poisoning, now fits the diagnostic criteria for Chronic Fatigue Syndrome. As to a differential diagnosis, Dr Felman did not believe the plaintiff met the criteria for psychiatric diagnosis.[177] Dr Paul said that she appeared to meet the criteria for “chronic fatigue syndrome/SEID” but that her levels of reported activity were not consistent.[178]
[176]JCB 669
[177]JCB 659
[178]JCB 659-660
164 As to further treatment, Dr Felman did not consider psychiatric treatment was required, and Associate Professor Ruff could not recommend any particular definitive medical therapy.[179] Dr Paul prescribed a treatment plan of returning to normal activity in order to treat fatigue syndromes. He said this included returning to work.[180]
[179]JCB 660
[180]JCB 661
165 Both Dr Felman and Associate Professor Ruff identified that the plaintiff had become entrenched in a prolonged “sick role”.[181] Dr Paul felt that, whilst there were no medical barriers to her return to work on an immediate full-time basis, the insurance policy itself may be discouraging a recovery and return to work due to “secondary gain”.[182]
[181]JCB 662
[182]JCB 663
The Plaintiffs credit
166 The plaintiff’s credit was directly in issue. Counsel for the plaintiff submitted that the plaintiff was a witness of truth on the following basis:
· She was a straightforward and credible witness
· She was candid in her evidence and did not hide the extent or duration of her overseas travel or attempts to gain employment in 2010
· She consistently reporting her symptoms to medical witnesses
· Medical witnesses recognised she was straightforward and credible on presentation at examinations;[183] and
· The defendant had not led any evidence that substantiated that the plaintiff falsified or otherwise exaggerated symptoms for “secondary gain” as alleged.
Dr Stevenson at JCB 556-564; Mr Jackson at JCB 574-591; Dr Wyatt at JCB 592-599; Dr Hitchcock at T289; Ms Hill at JCB 539-542; Dr Felman at JCB 615-621; Dr Jeanes at AH Folder 5-7
167 I shall deal with these matters in turn.
168 I accept that the plaintiff did not attempt to hide the extent and duration of her overseas travel nor her attempts to gain employment in 2010. A number of the medical witnesses made comments about the overseas travel, namely, that if she could commit to overseas travel, then it was difficult to understand why she could not commit to work. Dr Fuller was aware that she travelled but when provided in Court with the number of days in one year spent on travel, he expressed surprise.
169 In respect to her attempts to gain employment in 2010, I concluded that the plaintiff was less than frank in what she told witnesses and the Court about her success or otherwise in obtaining employment.
170 Further, I accept that the plaintiff consistently reported her symptoms to medical witnesses. A number of the witnesses referred to being provided with a list of symptoms, and made comments about that. Dr Faragher, neurologist, who examined the plaintiff at the request of Dr Fuller, said the plaintiff provided him with a list which comprised of 24 symptoms. He commented that the list of symptoms described most likely have a functional origin. Dr Stevenson, Dr Wyatt and Dr Hitchcock all referred to being provided with a list. In fairness to the plaintiff, other medical witnesses record similar symptoms.
171 While a number of witnesses said the plaintiff was straightforward and credible on presentation at examinations, some later qualified that comment. For example Dr Stevenson, at his second examination, described the plaintiff as “animated and argumentative” and concluded she was focused on long-term occupancy of an invalid role.[184]Dr Wyatt, in her second report, said there was now an abnormal illness behaviour present, a substantive focus on illness, symptoms and treatment. She further noted that, in the previous examination, the plaintiff reported difficulty with memory and concentration which interfered with her capabilities. This was a symptom she reported to other medical witnesses. In contrast, the neuropsychologist’s evidence does not suggest there is an organic problem causing difficulty with memory and concentration. Other medical witnesses only examined the plaintiff on one occasion. In general, they all commented positively on her level of engagement and presentation as a historian. Mr Jackson, consultant clinical neuropsychologist, said the plaintiff’s neuropsychological profile was valid and reliable. There was no evidence that she exaggerated her symptoms. He noted that fatigue was not something tested on a neuropsychology testing.
[184]JCB 568 and 573
172 Counsel for the plaintiff asserted that the defendant had not established that the plaintiff falsified or exaggerated her symptoms. A number of the medical witnesses commented on the plaintiff’s preoccupation with symptoms and limitations and said she appeared entrenched in an illness role and disability.[185] Some commented on inconsistencies in her reported functioning. Associate Professor Ruff described the plaintiff as “co-operative, alert, engaging, responsive, and warm throughout the interview”. He commented upon inconsistencies between the plaintiff’s symptoms and level of functioning, such as the substantial level of ongoing daily activity during a period of reported severe symptoms, and her ability to undertake such activities as engaging in overseas holidays while not being able to undertake other activities similarly or less demanding, such as shopping or hydrotherapy. He said that she has accepted and adapted to a prolonged sick role based on the diagnosis of ciguatera. Dr Felman commented upon her inability to buy clothes for a job, yet she was able to travel overseas or attend a football or rugby match. Dr Paul, occupational physician, reported that there was some inconsistency in her reported level of symptomatology.
[185]Associate Professor Ruff and Dr Felman
173 Taking into account the evidence as a whole, I reject the submission of counsel for the plaintiff that the defendant did not put the plaintiff’s credit in issue.
174 Counsel for the defendant submitted that the plaintiff was not a credible witness, which was borne out in four respects:
· The plaintiff’s position in respect to returning to work despite the continuing urging of her treating doctor
· The plaintiff’s apathy/disinterest in seeing the medical opinions upon which the defendant relied when terminating her insurance benefits
· The extent of overseas travel the plaintiff undertook whilst receiving benefits from the defendant; and
· The plaintiff’s ability to engage in social activities in a manner which is inconsistent with the level of functioning she was reporting.
175 I will similarly address each issue in turn.
176 First, counsel for the defendant referred me to certain aspects of the plaintiff’s evidence, which were:
· She turned down a position at the NAB on 14 January 2010 due to illness despite not having consulted a doctor on or around this date;
· She turned down a position at the ANZ Bank on 1 July 2010 on the basis that she was advised by her doctor not to commence work despite the fact Dr Birman certified her for 20 hours’ work per week on the same day. Counsel submitted that the plaintiff did not have an explanation for this; and
· The plaintiff having made no job applications since 2010.
177 In evidence, the plaintiff said she did not think her doctor told her that she should go back to work, but acknowledged that he said it would be good if she could, to which she agreed. She said they then discussed the challenges she would face and the condition she would have to be in, in order to get back to work.[186] This is consistent with Dr Fuller’s letters to the plaintiff’s general practitioner that she was not fit to return to work. It was only in cross-examination that he acknowledged that she could return to work.
[186]T391, L17-23
178 A number of the medical witnesses addressed the plaintiff’s reluctance to return to work. In September 2010, Dr Stevenson said he found it difficult to conclude that she had no capacity for work if she could commit to overseas travel. He said she should work towards part-time work. In April 2015, he addressed the work issue again. He said she had the capacity to return to work and the ongoing barriers are inappropriate disease conviction and ongoing occupancy of the sick role. Further, a graduated return to work is neither necessary nor helpful. Further, she was no longer focused on return to work but on long-term occupancy of the invalid role. Dr Paul, occupational physician, said there was no medical condition stopping the plaintiff from returning to work in a full-time capacity. He said a graduated return to work was not needed. This was consistent with the recent report of Dr Stevenson.
179 Further, the evidence is that the plaintiff displayed apathy/disinterest in seeing the medical opinions upon which the defendant relied when terminating her insurance benefits, in particular, the opinion of Associate Professor Ruff. I considered this unusual, given the plaintiff’s evidence that she had researched the illness on the internet and that she reported her interest in her medical condition to Dr Felman.
180 Counsel for the defendant handed up a written summary of the plaintiff’s overseas travel from 2010 to 2016 The summary provided as follows:
· In 2010, 69 days overseas
· In 2011, 34 days overseas
· In 2012, 69 days overseas
· In 2013, 36 days overseas
· In 2014, 25 days overseas
· In 2015, 24 days overseas; and
· In 2016, 40 days overseas.
181 A number of the medical witnesses commented on the fact that the plaintiff was able to commit to overseas travel and yet not to work.
182 Lastly, her ability to engage in social activities in a manner which is inconsistent with the level of functioning she was reporting. For example counsel for the defendant asked the plaintiff about the week commencing 17 June 2015 where she described attending a Melbourne rugby game on Monday, a golf lesson on Tuesday, a State of Origin rugby match on Wednesday, a ball at Crown Casino on Thursday and a Richmond AFL game on the Friday. In Court, counsel then took the plaintiff to a Retail Supplementary Report Form covering this claim period where the plaintiff stated she was unable to perform all of her work duties due to “frequent severe bouts of illness”. As to daily activities, the plaintiff said she had done “very little as I’ve been very unwell”.[187]
[187]JCB 398
183 Counsel queried the plaintiff on the inconsistency as follows:
Q:What is your explanation for telling the insurance company when asked what your daily activities during this period while you were not working, what is your explanation for the answer, ‘Very little as I have been very unwell’?---
A:Because as I just explained, Your Honour, that was five days out of 30 days. I wanted to give myself a test to see how much I could do and that was on a better week. I would suggest given that I have written that, that the weeks before and after that week I had been very unwell because I don’t lie on those forms.
Q:You lied on this form?---
A:No, I didn’t.
Q:Excuse me, Ms Fenton, you were asked this question: ‘What were your daily activities during this period whilst you were not working’?---
A:Yes.
Q:If you were giving an honest answer you would have told the insurance company about all of these sporting events and balls and golf lessons that you did during that week?---
A:I wasn’t looking to hide anything. The fluctuating nature of the illness means on different days I can do different things. If they had asked me what I had done on specific days I would have described exactly what I have done. But given I took the month as a whole, not just that one week when I was doing those things, that was my answer to include the whole month.”[188]
[188]T398, L2-28
184 I found the plaintiff’s evidence and explanation in respect to her social and recreational activities most unconvincing.
185 In considering the plaintiff’s credit, I must consider the evidence as a whole.
186 In my view, in Court, the plaintiff was pleasant, articulate and answered all questions. During cross-examination, she was unable to continue at one point and her evidence was delayed until the following week. I accept that there are factors that undermine the plaintiff’s credit, such as the extensive overseas travel and social activities she undertook, which did not correlate with the complaints she made to medical witnesses about her inability to function. Further, that she turned down employment opportunities without adequate reasons and against the advice of her general practitioner. I formed the view that she took on the role as the expert as to when she could return to work.
187 Given the objective evidence of a number of the medical practitioners, experts in their respective disciplines, I find that the plaintiff is not a convincing and reliable witness. Accordingly, I will rely heavily upon the objective medical evidence in my assessment.
Positions adopted by the parties
188 In essence, counsel for the plaintiff submitted that there should be judgment for the plaintiff on the basis that:
· The plaintiff is an honest, straightforward and credible witness;
· The evidence of Dr Fuller, that the plaintiff still suffered from ciguatera poisoning, should be preferred as the treating practitioner compared to Associate Professor Ruff, who saw the plaintiff on one occasion and who is not a practising clinician; and
· Associate Professor Ruff acknowledged the plaintiff was suffering from a “continuing illness” based on chronic fatigue, which is an established symptom of ciguatera poisoning.
189 Counsel for the defendant directed the Court’s attention to the following issues:
· The plaintiff was not a convincing witness, particularly given her extensive overseas travel and ability to engage in social activities that flies directly in the face of her complained level of functioning;
· Associate Professor Ruff’s evidence, that the plaintiff is no longer infected with ciguatera, should be preferred to Dr Fuller, as he has the eminent and superior qualifications;
· By 6 September 2015, the plaintiff was not Totally Disabled or Partially Disabled because she was able to work in her occupation at full capacity based on the defendant’s medical evidence; and
· The plaintiff did not have an inability to work solely due to ciguatera as there were numerous other factors including prioritising other areas of her life, lack of motivation to return to work and playing the “sick role”.
190 I will address the respective issues raised by the parties in my assessment.
Legal analysis
191 I will now turn to consider whether the plaintiff has established that she met the definition of Total Disablement under the policy at the relevant times.
A The period from 7 September 2014 to 7 September 2015
(a) Whether the Plaintiff suffered from a “Sickness”, that is, ciguatera poisoning
192 At the threshold, the Court must find that the plaintiff suffers a Sickness pursuant to the policy terms. The plaintiff bears the onus of proving that she continued to suffer from ciguatera poisoning from 7 September 2014 to 7 September 2015.
193 In accordance with the policy, the plaintiff completed a Disability Income Claim Form dated 21 December 2009. In that form, the plaintiff said she suffered from a sickness, that is, ciguatera poisoning. On 7 January 2010, a Medical Attendant’s Statement Disability Income form was completed by Dr Fuller. In that form, Dr Fuller certified that the plaintiff’s conditions were ciguatera poisoning from eating toxic fish in Cuba and amoebic gastroenteritis from Cuba.[189]
[189]JCB 80
194 In her Statement of Claim, the plaintiff alleged that, since 2009 to date, she has continued to suffer from ciguatera poisoning. She also pleaded amoebic gastroenteritis but it was accepted that that sickness resolved itself some years ago. No other sickness is pleaded or particularised. Symptoms of ciguatera poisoning are particularised, namely, chronic fatigue, nausea, vomiting, diarrhoea, headaches, stomach cramps, dizziness, pain, aching, sensitivity, difficulty concentrating and remembering.[190] These are the disabling symptoms, they are not the sickness.
[190]JCB 7-8
195 Dr Fuller first examined the plaintiff in November 2009, which was about a month after she ingested fish in Cuba. He diagnosed the plaintiff with ciguatera poisoning. In Court, Dr Fuller maintained his opinion that the plaintiff continued to suffer from ciguatera poisoning. He agreed that the ongoing perpetuation of ciguatera poisoning was dependent upon the subjective reporting of symptoms.
196 On 24 January 2014, Dr Wyatt examined the plaintiff for a second time. In her report dated 25 January 2014, she stated that it was possible but uncommon for the plaintiff to still be suffering from ciguatera poisoning as at the time of her examination. I note that Dr Wyatt is an occupational physician and does not have expertise in ciguatera poisoning.
197 On 26 March 2015, Dr Stevenson examined the plaintiff for a second time. In his report dated 9 April 2015, Dr Stevenson stated that he found it improbable that she had any condition and that the plaintiff had an inappropriate disease conviction used to justify a long-term invalid role. He told the Court that he had experience in treating patients with ciguatera poisoning.
198 On 10 July 2015, Associate Professor Ruff examined the plaintiff for the first time. In his individual report dated 3 August 2015, he opined that the plaintiff no longer suffered from ciguatera poisoning as at the time of his examination.
199 In determining the conflicts upon evidence between Associate Professor Ruff and Dr Fuller as to the plaintiff’s diagnosis of ciguatera poisoning, I have regard to all of their evidence and their presentation before me in Court.
200 Associate Professor Ruff gave evidence in a straightforward manner and made appropriate concessions. He impressed me as an articulate, intelligent and knowledgeable witness who was objective. Whilst he does not currently regularly practice, he is an Associate Professor with the University of Melbourne and an international medical advisor with the Australian Red Cross. Associate Professor Ruff made a major scientific contribution in relation to ciguatera, he is a published author on the topic and is regarded as the pre-eminent expert on the illness in Australia.
201 Counsel for the plaintiff said that the Court should prefer the evidence of Dr Fuller as the primary treating doctor since November 2009, who has seen the plaintiff on approximately fifty to sixty occasions compared to Associate Professor Ruff, who saw the plaintiff once for a one-hour examination. Further, that Dr Fuller is an infectious disease physician who has practiced for twenty-five years.
202 The credit of Dr Fuller was called into question to an extent by counsel for the defendant. He appeared to be sympathetic to the plaintiff as his long-term patient and as someone who had her best interests at heart. As Dr Fuller’s evidence in cross-examination continued in Court, he appeared to become defensive and less convinced of his diagnosis in light of reading Associate Professor Ruff’s report. Nonetheless, I accept he was a conscientious and skilled doctor who referred the plaintiff to other specialties for assessment to ensure he did not miss any diagnoses. Ultimately, Dr Fuller said the plaintiff was suffering ciguatera induced chronic fatigue. Associate Professor Ruff accepted the plaintiff was unwell and diagnosed chronic fatigue.
203 Significantly, in cross-examination, Dr Fuller acknowledged that Associate Professor Ruff had more expertise in ciguatera poisoning than he did himself.[191] Further, that Associate Professor Ruff was the most expert person on ciguatera poisoning in Australia.[192]
[191]T270
[192]T273
204 In considering the whole of the evidence, I am inclined to rely upon the evidence of Associate Professor Ruff where it conflicts with Dr Fuller. This is due to the fact Dr Fuller acknowledged Associate Professor Ruff’s expertise in ciguatera poisoning was greater than his own, that Associate Professor Ruff is the Australian expert in ciguatera poisoning and that he provided an objective and well-reasoned report, which was consistent with Dr Stevenson’s assessment.
205 Accordingly, based on Associate Professor Ruff’s opinion, I accept that the plaintiff did not suffer from ciguatera poisoning as at 10 July 2015.
206 I note that the defendant accepted the plaintiff continued to suffer from ciguatera poisoning from 7 September 2014 to 7 September 2015 by virtue of the fact it continued to pay her Partial Disablement benefits under the policy. That is, to fall within the definition of Partial Disablement Income Capability Clause and be entitled to Partial Disablement benefits, the defendant must have accepted the fact the plaintiff suffered from a Sickness, that is, ciguatera poisoning.
207 Given the state of the evidence, I will now assess the second element of the definition of Total Disability.
(b) Whether the Plaintiff was unable to perform one or more of her duties of her occupation that was essential in producing income
208 Secondly, the Court must find that the plaintiff was unable to perform one or more duties of her occupation that was essential in producing income. From 23 April 2007 until 30 September 2009, the plaintiff gave evidence that she was in full-time employment, working 40 hours per week.
209 In her Statement of Claim, the plaintiff alleged that she ceased work in October 2009 because of her condition, that is, ciguatera poisoning, and has been unable to work since. She particularised she worked as a project co-ordinator and operated as an independent contractor.
210 It was accepted between the parties that the plaintiff’s occupation under the policy was that of project co-ordinator whereby she was an independent contractor who obtained work through the employment agency Glendall Pty Ltd. From the Disability Income Claim Form dated 21 December 2009, the plaintiff listed her work duties as a project co-ordinator included:
· Resourcing
· Financials – analyse and provide information to finance and managers; and
· Project planning and tracking.[193]
[193]Exhibit 3, JCB 75
211 In 2014, Dr Wyatt reported that the plaintiff said she was a project co-ordinator, which required her to undertake a combination of computer-based work, meetings and co-ordination work.
212 There was no attempt by counsel for the plaintiff to articulate the exact nature or specific duties of a project co-ordinator that the plaintiff was unable to perform. Instead, the plaintiff maintained that she could not perform any work duties of her occupation. For example for the period 7 September 2014 to 6 October 2014 inclusive, the plaintiff completed a retail supplementary report form lodged with the defendant where she stated she could not perform all of her work duties due to being “unwell and unfit 100% of the time”.[194]
[194]JCB 364-5
213 In her retail supplementary report form for April to May 2014, the plaintiff said that she travelled to New York and was unwell 50 per cent of the time.[195] She told the Court that one day she spent sightseeing in Manhattan but that night, she was exhausted and nauseous with “terrible pains” across the top of her back and neck.[196] In Court, the plaintiff said her health during 2014 was the same as every other year apart from 2012, which was the worst. She described fluctuating symptoms of lethargy, fatigue, weakness, dizziness, grogginess in the head, memory and concentration problems and pains at different times.
[195]JCB 358
[196]T112
214 I note that some of the defendant’s medical witnesses commented on the plaintiff’s ability to travel but not undertake work. Further, that there were inconsistencies in her reported functioning, such as attending sporting events but being unable to purchase clothes for a job in less than a month.
215 Dr Fuller told the Court that he consistently encouraged the plaintiff to return to work but I note that this was not referred to in his clinical notes nor in the letters to Dr Birman, the plaintiff’s general practitioner, where he advised she was not capable of going back to work. He maintained that, in 2014, the plaintiff was not good enough to try to go back to work in a full or part-time capacity.[197] He did not articulate the nature of the duties of her occupation that she was unable to perform. The evidence is that he was aware she was a project co-ordinator at a bank. In Court, Dr Fuller said that he had been encouraging her to go back to work despite the fact that it was not stated in any of his clinical notes or letters.[198] It was not until his evidence in Court that he conceded that the plaintiff was now capable of doing part-time work and graduating up.[199]
[197]JCB 523
[198]T282
[199]T298, L6-9
216 Counsel for the plaintiff did not call any occupational witnesses to give evidence as to the plaintiff’s work capacity but instead relied upon the evidence of the plaintiff and Dr Fuller.
217 Counsel for the defendant relied heavily upon the evidence of Dr Wyatt, medical practitioner specialising in occupational medicine. On 22 February 2013, Dr Wyatt examined the plaintiff for the first time. The plaintiff told Dr Wyatt her occupation was that of project co-ordinator and that she had remained off work since becoming unwell in September 2009.[200] The plaintiff provided a curriculum vitae to Dr Wyatt, which said that she commenced at the ANZ Bank in 2004. She reported that her contracts with the ANZ Bank were of variable terms and she would take between three and six months off work to travel between contracts. Dr Wyatt reported that the plaintiff said she was a project co-ordinator, which required her to undertake a combination of computer-based work, meetings and co-ordination work. Upon examination, Dr Wyatt said that the plaintiff was capable of working in a role that affords her flexibility in the days she works but that this did not allow her to return to her work as a project co-ordinator. This is because she was required to get work done within a timely fashion.[201]
[200]JCB 592
[201]JCB 598
218 On 24 January 2014, at the request of the defendant, Dr Wyatt examined the plaintiff for a second time. In her second report dated 25 January 2014, she stated that the plaintiff had remained off work. As to the question of whether the plaintiff had any capacity to perform her usual duties of a project co-ordinator, Dr Wyatt answered that, at this stage, the plaintiff has the capacity for work. She agreed with Dr Stevenson that commencing part-time and graduating to full-time work would be a sensible approach. Having regard to the situation and duration of time the plaintiff had off, a range of everyday administrative tasks would be a sensible approach. She reported that there was no clear-cut medical reason for the plaintiff to work on half-time hours but in the circumstances, it was a pragmatic recommendation.[202]
[202]JCB 603-604
219 In April 2014, Dr Wyatt further stated that:
· The plaintiff could participate in a gradual return to work program commencing at 50 per cent of her previous level of work; and
· Given the context, the more prudent approach would be to start the plaintiff at a lower rate such as 30 per cent and graduate up over a longer period of time.
220 Dr Wyatt said she was told that Dr Fuller said the plaintiff was not able to work. She said studies report when people are off work long term, their medical conditions accounts for 10 to 20 per cent of the likelihood they will go back to work. The medical condition and symptoms reported is only a small part of whether a person returns to work. If one accepts the patient’s advice about her symptoms, you might come to the conclusion reached by Dr Fuller. However, when she looks as it from her speciality of occupational medicine, when beliefs about the condition and beliefs about illness are taken into account, she formed the view that they were “the major driver in Ms Fenton not returning to work”.[203]
[203]T232-233
221 Dr Wyatt said she broadly agreed with the opinions in the Employability Assessment Report undertaken by Ms Bradley, which identified viable employment options for the plaintiff, which included a program or project administrator/project support officer/co-ordinator and systems analyst.
222 In determining the conflicts upon evidence between Dr Fuller and Dr Wyatt as to the plaintiff’s work capacities, I have regard to all of their evidence and their presentation before me in Court. Given that Dr Wyatt is an expert in occupational medicine and work capacities and that this is not Dr Fuller’s area of expertise, as a infectious diseases physician, I rely more heavily on Dr Wyatt’s evidence as to work capacity where it conflicts with that of Dr Fuller.
223 Accordingly, based on Dr Wyatt’s opinion in April 2014 that the plaintiff could participate in a gradual return to work program commencing at 30 per cent of her previous level of work and graduating up to full-time work over a period of time, the objective medical evidence is that the plaintiff could in fact perform one or more duties of her occupation. Consequently, the plaintiff has not established that she was unable to perform one or more duties of her work as a project co-ordinator at a bank, which was due to ciguatera poisoning.
224 Notwithstanding that the plaintiff may have been suffering from ciguatera poisoning at this time, as the plaintiff cannot satisfy this second element of the definition, which is that she was unable to perform one or more duties of her occupation, she cannot establish that she was Totally Disabled pursuant to the policy definition. It also follows that she cannot claim Total Disablement benefits in accordance with clause 5.1.1 of the policy. Consequently, she has not established that the defendant breached the policy in its failure to pay her Total Disablement benefits.
225 The plaintiff’s first allegation of breach of contract fails.
B The period from 7 September 2015 to date
(a) Whether the plaintiff suffered from a sickness, that is, ciguatera poisoning
226 Similarly to above, at the threshold, the Court must find that the plaintiff suffers a Sickness, which the plaintiff submitted as ciguatera poisoning in her Disability Income Claim Form dated 21 December 2009 and in her Statement of Claim. On 7 January 2010, in a Medical Attendant’s Statement Disability Income form, Dr Fuller certified that she suffered from ciguatera poisoning from eating toxic fish in Cuba and amoebic gastroenteritis from Cuba.[204]
[204]JCB 80
227 The plaintiff bears the onus of proving that she suffered from ciguatera poisoning as at 7 September 2015 to date.
228 As at September 2015, the plaintiff’s evidence was that she suffered the same symptoms as in previous years but also said she now experienced a tightness of forehead that caused her eyes to close over and go puffy[205] and where the words are distorted on the page so that it is like a “pop-up book”.[206] She also said she experienced a scorching sensation when she had a warm shower.[207] In Court, the plaintiff described her current health as the same as previously described, with frequent bouts of grogginess, eyes closing over, lethargy, tiredness and having to sleep during the day.[208]
[205]T113-114
[206]T381
[207]T382, T367
[208]T114
229 The medical witnesses with expertise in the illness and who expressed a diagnosis in relation to the plaintiff’s ciguatera poisoning were Dr Fuller, Associate Professor Ruff and Dr Stevenson. I rely heavily upon their evidence to make my assessment.
230 All medical witnesses said that ciguatera poisoning was caused by ingesting fish that contains a neurotoxin. Further, that there was no clinical test available to detect the toxin.[209] Dr Fuller said ciguatera poisoning produced gastrointestinal, neurological and cardiovascular symptoms, which the plaintiff had. Initially, there are objective clinical signs such as low blood pressure, abnormalities on electrocardiography or nerve conduction studies showing nerve dysfunction. However, to make a continuing diagnosis of ciguatera poisoning seven years later, medical witnesses relied upon the self-reported symptoms of the plaintiff. There is no cure for ciguatera poisoning.
[209]See Dr Fuller at T295; Associate Professor Ruff at T357-358
231 Dr Fuller, Associate Professor Ruff and Dr Stevenson were in agreement that the plaintiff initially contracted ciguatera poisoning in October 2009. However, there was conflict as to whether the plaintiff continued to suffer from ciguatera poisoning at the time of their relevant examinations.
232 All medical witnesses were generally of the view that it was uncommon for ciguatera poisoning to continue for more than one year or two. Dr Fuller said that journal articles indicated ciguatera could persist for a decade but it was rare. Associate Professor Ruff gave evidence that it would be extremely unusual and not really plausible for ciguatera to persist seven years later. Dr Stevenson opined that the illness is often resolved in one month and that the literature did not support total incapacity beyond six months.[210]
[210]JCB 560-564
233 The plaintiff relied upon the evidence of her treating doctor, Dr Fuller, who gave evidence that he “had no doubt” the plaintiff continued to suffer ciguatera poisoning at the date of trial.[211] Briefly, his reasons were that:
[211]T277 L3-8
· Chronic fatigue had developed
· The plaintiff continues to have hot/cold reversal on her hands
· The plaintiff continues to have fluctuating symptomology and levels of energy; and
· The plaintiff’s illness had persisted unchanged with variations within, but unchanged in terms of improvement.
234 Conversely, upon his examination of the plaintiff on 10 July 2015, Associate Professor Ruff opined that it was implausible to attribute the plaintiff’s continuing illness to ciguatera poisoning, given that:
· It is close to six years after the illness onset
· The plaintiff had no trend for improvement more than seven years later
· Her conscious effort to avoid foods that would re-expose her to symptoms
· Very dramatic changes from being nearly well to totally incapacitated and bed bound within a day or an hour or two was inconsistent with ciguatera
· Development of the new symptom of scorching sensation of the skin in 2015 was not consistent with ciguatera poisoning in 2009; and
· Lack of specific precipitants associated with ciguatera.
235 Associate Professor Ruff also commented on the inconsistencies between the plaintiffs social, sport and travel undertaken at the same time she reported not being able to carry out less demanding activities such as shopping, getting out of bed and hydrotherapy. Dr Fuller appeared to accept the plaintiff’s dramatic fluctuation in symptoms as consistent with ciguatera poisoning. Dr Fuller was concerned as to the plaintiff’s level of travel but knew of patients with chronic fatigue who travelled on good days.
236 Associate Professor Ruff’s opinion was supported by the opinion of Dr Stevenson, who told the Court he had expertise in infectious diseases and has treated patients with ciguatera poisoning.[212] Following Dr Stevenson’s second examination of the plaintiff in March 2015, he found it difficult to accept the plaintiff’s level of incapacity as her symptoms had remained unchanged over the last five years. The plaintiff reported being “in bed for months on end”. She said such last protracted period of disability was from September to November 2014. He said her subjective symptoms were more difficult to accept. He commented on the inconsistency in not being able to be reliable and predict when she went to work, yet was able to predict with some confidence when she was well enough to travel. He concluded the plaintiff was no longer focussed on returning to work but was focussed on the long-term occupancy of an invalid role. Essentially, Dr Stevenson submitted there was no evidence that her ongoing claims of disability were necessarily due to the persisting neurotoxin that caused her ciguatera poisoning.[213]
[212]T234, L14; T238, L19; T253, L7
[213]T246
237 As to the conflict of evidence addressed earlier, I am inclined to rely upon the evidence of Associate Professor Ruff where it conflicts with Dr Fuller. Accordingly, on the basis of Associate Professor Ruff’s opinion, which is supported by Dr Stevenson, that the plaintiff did not suffer from ciguatera poisoning as at his examination of the plaintiff on July 2015, I am satisfied that the plaintiff no longer suffered from ciguatera poisoning from this date. The plaintiff has not established that she suffered from a “Sickness” under the policy as at 7 September 2015.
238 As the plaintiff does not suffer from a “Sickness”, namely ciguatera poisoning, she cannot establish that she is Totally Disabled pursuant to the policy definition. It also follows that she cannot claim Total Disablement benefits in accordance with clause 5.1.1 of the policy. Consequently, she has not established that the defendant breached the policy in its failure to pay her Total Disablement benefits.
239 The plaintiff’s second allegation of breach of contract must fail.
Conclusion
240 For the foregoing reasons, I am not satisfied that the plaintiff has established that she satisfied the policy definition of Total Disablement between 7 September 2014 and 7 September 2015 and 7 September 2015 to date and continuing. I find that she was not entitled to Total Disablement benefits from 7 September 2014 to date and continuing.
241 Accordingly, the plaintiff has not established that the defendant breached its contractual obligations under the policy in its failure to pay her Total Disablement monthly benefits pursuant to clause 5.1.1 of the policy.
242 For the foregoing reasons, the proceeding is dismissed.
243 I will now hear the parties on costs.
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