Flood and Comcare (Compensation) - [2020] AATA 2152

Flood and Comcare (Compensation) [2020] AATA 2152 (8 July 2020)
Division:GENERAL DIVISION
File Numbers: 2017/3139, 2017/3141, 2017/6347

Re:Leanne Flood
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms S Taglieri SC, Member
Date:08 July 2020
Place:Hobart

The decision made by the Respondent on 16 October 2017 (application no. 2017/6347) is set aside and in substitution the Tribunal decides that:
1.The Respondent is liable to continue paying compensation pursuant to the Act in respect of a Somatic Symptom Disorder (SSD) suffered by the Applicant on 15 September 2009.

The reviewable decision made by the Respondent on 24 March 2017 (application no. 2017/3139) is affirmed for reasons other than those of the Respondent.
The reviewable decision made by the Respondent on 21 April 2017 (application no. 2017/3141) is affirmed for reasons other than those of the Respondent.
................................[sgd]......................................
Ms S Taglieri SC, Member
COMPENSATION – accepted liability for “respiratory conditions due to external agents” and secondary “adjustment disorder” – the applicant does not suffer “multiple chemical sensitivity” but suffers “somatic symptoms disorder” – was there continuing incapacity for work – was there a need for reasonable treatment – entitlement to compensation for permanent impairment and non-economic loss.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Comcare v Amorebieta [1996] FCA 1438
Comcare v Fiedler [2001] FCA 1810
Comcare v Nichols [1999] FCA 209
Commonwealth v Borg (1991) 20 AAR 299
Military Compensation Commission v May [2016] HCA 19
Morton and Comcare [2005] AATA 318
Prain v Comcare [2017] FCAFC 143
Quinn and Australian Postal Corporation, Re (1992) 15 AAR 519
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Secondary Materials
Guide to Assessment of Permanent Impairment
REASONS FOR DECISION
Ms S Taglieri SC, Member
08 July 2020
BACKGROUND

The applications for review before the Tribunal involve the Applicant’s entitlements to receive compensation for a medical condition, which the parties referred to as “multiple chemical sensitivity” (MCS) for the purpose of the proceedings.
The Applicant had been an employee of the Respondent and worked at its Centrelink office in Devonport, when in 2009 she reported experiencing various physical symptoms and other effects interfering with her capacity for work.
Following various attempts to return to work in different settings, the Applicant was retired on the grounds of invalidity and she has not worked since December 2014.[1]
[1] T129, T Documents, pp 566–567.
The Applicant received payments of compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) for many years. The Respondent had accepted liability under the Act for a physical respiratory condition, said to have been suffered in around December 2009 due to environmental factors in the workplace and a secondary psychological condition.
On or about 15 June 2016 the Applicant made a claim under the Act for compensation relating to permanent impairment and non-economic loss (the Claims).[2]
[2] T139, T Documents, pp 593–620.
On 17 January 2017 the Respondent made determinations rejecting the Applicant’s Claims for permanent impairment and non-economic loss.[3]
[3] T146, T Documents, pp 699–700; T147, T Documents, pp 701–702.
The Applicant sought a review of the decisions referred to at [5] and [6] and on 24 March 2017 and 21 April 2017, the Respondent affirmed its earlier decisions to refuse the Claims.[4]
[4] T152, T Documents, pp 749–752; T155, T Documents, pp 756–759.
The Applicant had also submitted medical certificates certifying incapacity for work after her retirement on the grounds of invalidity.[5] Further, she had presented a psychology counselling and treatment notification plan,[6] proposing ongoing treatment for psychological symptoms.
[5] T160, T Documents, pp 787–886.
[6] T156, T Documents, pp 760–761.
On 18 July 2017, the Respondent determined that it was not liable to pay compensation for incapacity or medical expenses pursuant to sections 16 and 19 of the Act.[7]
[7] ST12, Supplementary T Documents, p 906.
The Respondent subsequently affirmed the decision referred to at [10], the effect of which was a cease liability decision relating to incapacity payments and medical expenses for the previously accepted respiratory condition and secondary psychological condition.[8]
[8] ST15, Supplementary T Documents, p 913.
The Tribunal conducted a hearing in respect of the applications for review pursuant to section 64 of the Act in relation to the three determinations identified in [8] and [11] above.
At the hearing before the Tribunal the Applicant was represented by Counsel as was the Respondent. The hearing took place over five days in September and October 2019. The expert evidence of Dr Little and Dr Elder was received concurrently on 22 October 2019, at which time each party closed their cases.
The Tribunal agreed that Counsel could deliver written closing submissions and then orally address the Tribunal at a later date. Consequently, on 18 November 2019, the Applicant filed and served her written submissions. On 3 December 2019 the Respondent filed and served written submissions. The Tribunal has had regard to the written submissions of the parties and the oral submissions made by Counsel on 10 December 2019.
ISSUES BEFORE THE TRIBUNAL AND THE EVIDENCE RELIED UPON
The submissions filed by the parties demonstrated that they were broadly in agreement in respect of the issues to be determined by the Tribunal.
The formulation of the issues in the Applicant’s submissions[9] is more extensive than the formulation offered by the Respondent.[10] Noting that the Respondent had accepted liability for two conditions under the Act until 2017, the Tribunal is of the view that the appropriate formulation of the issues for determination is as follows:
(a)What condition(s) did the Applicant suffer and for which liability was accepted until 16 October 2017;[11] and
(b)Did the Applicant continue to suffer the condition(s), referred to in answer to the first issue, after 16 October 2017, and if so:
(i)was there continuing incapacity for work; and/or
(ii)a need for reasonable medical treatment for the condition(s); and
(c)If the Applicant continued to suffer the condition(s) referred to in answer to the first issue after 16 October 2017, is she entitled to compensation for permanent impairment and non-economic loss.
[9] ‘Applicant’s submissions’, 18 November 2019, [8].
[10] ‘Respondent’s outline of submissions’, 1 December 2019, [5].
[11] Date of cease effects decision.
The Tribunal received in evidence, by consent, three volumes of T documents[12] and a volume of supplementary T documents.[13]
[12] T Documents, T1–T160.
[13] Supplementary T Documents, ST1–ST17.
The Applicant called two expert witnesses in support of her case: Dr Little, a Consultant Physician with specialist qualifications in Allergies and Immunology, who had treated the Applicant for several years; and Dr Reid, a Consultant Psychiatrist, engaged for medico-legal purposes only.
The Applicant gave evidence about the onset of her symptoms and conditions, how they progressed and her experience of the same over some eight years. She was cross- examined very closely, particularly about alleged inconsistencies in reports she had made about her symptoms and disability, and what was demonstrated on video surveillance evidence.[14]
[14] Exhibit R2, Surveillance Footage CD, tendered 27 September 2019.
The video surveillance had been taken between 16 September 2019 and 22 September 2019, a short time prior to the hearing in the Tribunal. After hearing submissions from Counsel on the first day of the hearing, the Tribunal made a ruling that the Respondent could adduce the video surveillance into evidence.[15] It also directed that the video surveillance be disclosed to the Applicant’s Counsel and solicitors.
[15] Transcript 25.9.19, p 21, lines 20–26.
The Tribunal then adjourned the hearing until the following day, to give the Applicant’s Counsel and solicitor opportunity to consider the video surveillance and take instructions before proceeding.
The Respondent also called two expert witnesses. Dr Elder, an Occupational Physician, and Dr Chow, a Consultant Psychiatrist. Both had examined and assessed the Applicant for medico-legal purposes only.
THE APPLICANT’S EVIDENCE AND CASE
The Applicant gave evidence about the onset of various symptoms experienced while she was working in a new office in Devonport, specifically built for the Respondent’s Centrelink office.
The evidence was that she was working at the new office in Devonport in February 2009 and experienced headaches and nausea, that soon escalated to include shakiness, a husky voice, a running nose, watering eyes, muscle aching, exhaustion, shortness of breath and chest pains.[16]
[16] Exhibit A1, Applicant’s outline of evidence [3].
Counsel for the Applicant also adduced evidence from the Applicant regarding her understanding of various investigations into environmental factors at the Devonport Office, and other staff and customers also experiencing discomfort due to strong odours in the building.[17]
[17] Exhibit A1, Applicant’s outline of evidence [5]–[9] and oral evidence to similar effect.
Documents recording the fact of investigations and their outcomes were also tendered[18] and before the Tribunal in the T documents.[19] These all confirmed the overall effect of the Applicant’s evidence.
[18] Exhibits A2, IEQ Assessment dated 12 December 2010; A3, Report, ‘Origin and Mechanism of off odour formation at Centrelink (Devonport)’ dated 16 December 2010; and A6, ‘Report on AIQ Issues in 5 Centrelink Offices’, IKW Consulting Group Pty Ltd, dated 11 February 2011.
[19] T Documents T4, p 7; T5, p 8; T7, pp 11–20; T8, pp 21–24; T9, pp 25; T10, pp 26–44; T11, p 45; T13, pp 48–50; T15–T18, pp 55–68, T20–T24, pp 70–74; and T 26, p 88.
By late December 2009,[20] there were noticeable chemical and other odours in the building where the Applicant worked. Despite that it was said that there were no apparent breaches of occupational health and safety standards, the tendered documents noted occupants of the office including other staff and visitors, to have had similar experiences.
[20] T15, T Documents, pp 55–65.
Specific focus was placed upon undisputed evidence that by the end of 2009, testing of carpet tiles, glues and concrete on the floor beneath had found organic vapour emission, but that the chemicals in the vapour emitted from the carpet, namely 2-Ethyl-1-hexanol, were not present in the general office air.[21]
[21] T13, T Documents, p 48.
The Applicant was certified unfit for work in September 2009 and later returned to work. During 2010, her sensitivities to the environment at the Devonport office progressed. She experienced respiratory symptoms amongst others referred to at [24].
During 2010, the Applicant then participated in return to work programs, working either from her home or from the Respondent’s Burnie office, working limited hours and limited days.[22]
[22] T37, pp 175–177; T39, pp 179–180; T50, pp 233–236; and T51, pp 237–239.
Further investigations took place concerning the complaints about odour and symptoms experienced by those in the Devonport office into 2010.[23] The results again did not detect chemicals at levels harmful to people in the air in the office.[24]
[23] T35, T Documents, pp 118–165; T42, T Documents, p 199.
[24] T42, T Documents, pp 199.
Due to the respiratory symptoms, the Applicant was referred to a Respiratory Physician, Dr Hewer and saw him in October 2010. Dr Hewer undertook lung function test, blood tests and chest X-ray. No physical abnormalities of note were found. In his report to Dr Pava he stated that the Applicant “would appear to have developed multiple chemical sensitivity syndrome.”[25] He also suggested referral to Dr Little in Melbourne.
[25] T 52, T Documents, p 241.
Up until about November 2010 the Applicant had been diagnosed to be suffering from a “reaction to an unknown chemical at work.”[26] From 16 November 2010, Dr Pava and later Dr O’Sullivan, noted the Applicant’s diagnosis as multiple chemical sensitivity syndrome.[27] The change in the diagnostic label appears to be related to the views expressed by Dr Hewer.
[26] T160, T Documents, certificates from Dr Pava, up to p 810.
[27] Ibid, p 813.
The Respondent had initially denied liability for the condition from which the Applicant suffered. However, after the Applicant sought a review of the denial of liability, on 17 February 2011, the Respondent determined to accept liability for “respiratory conditions due to external agents.” The date of injury was attributed to be 15 September 2009,[28] being the date Dr Pava first provided the Applicant with a certificate.[29]
[28] T58, T Documents, pp 254–260.
[29] T160, T documents, p 787.
Compensation payments were made to the Applicant under the Act and the Applicant continued to participate in return to work programs. The Applicant was seen by Dr Little in Melbourne in April 2011 and he continued to be involved in her care.
The Applicant stated that on medical advice, particularly of Dr Little, the Applicant implemented a regime of strict avoidance of contact or association with chemical substances or agents believed to be causative of her symptoms. This led to consequent reduced social and occupational interaction which impacted on her psyche.[30]
[30] Exhibit A1, Applicant’s Outline of Evidence, [21], [39], and [42]–[43].
The T documents included reference to a referral by her GP to a psychologist, Ms Bernadette Smith. A report of Ms Smith,[31] described chronic physical symptoms affecting capacity to socially, domestically and occupationally function, and that the Applicant had an attitude of acceptance of it.
[31] T80, T Documents, pp 316–320.
Ms Smith considered that despite the Applicant having developed coping strategies, she remained vulnerable to periods of depressed mood and anxiety. By 2012 Ms Smith had diagnosed a condition consistent with adjustment disorder, and mixed anxiety and depression.
It appears that it was on the basis of Ms Smith’s opinion, that the Respondent accepted liability for a secondary condition of adjustment disorder and mixed depression.[32]
[32] T104, T Documents, pp 381–382.
By mid-2014, with the failure of all return to work programs, assessments were undertaken to determine fitness for work. Dr Alison Drewry, an Occupational Physician performed one assessment.[33] She concluded there were no realistic rehabilitation goals given the duration and intensity of the Applicant’s conditions. Dr Drewry recommended that the Applicant be certified permanently unfit for work.
[33] T120, T Documents, pp 463–470.
A second assessment was conducted by Dr Anthony Sheehan, a consultant Psychiatrist. He also recommended retirement of the Applicant, due to a diagnosis of chronic adjustment disorder with depressed and anxious mood.[34]
[34] T123 and T124, T Documents, pp 489–505.
It should be mentioned that the reports of Dr Drewry and Dr Sheehan do not address in any meaningful way, the cause of the Applicant’s conditions.
For the purpose of considering whether the Applicant should be retired on ill health grounds or on invalidity grounds, the Applicant completed a questionnaire for ComSuper. The questionnaire was received in evidence[35] and extensively details the Applicant’s claimed experience of sensitivity or reactions to a long list of particular agents. The Applicant confirmed in oral evidence that she had completed the questionnaire and the writing was her own. She said that what she had written was true.
[35] T126, T Documents, pp 510–559.
The Applicant and her employer agreed that the preferable course was for the Applicant to retire on invalidity grounds. This occurred on 31 December 2014 after confirmation from ComSuper.
When the Applicant was asked if her condition was different to that as described in the witness statement,[36] the Applicant said:
“No. I don’t – I don’t think – I don’t feel any better or worse probably on that fluctuating basis than I did at the time that statement was done. It’s still just a matter of management.”[37]
[36] Exhibit A1, Applicant’s Outline of Evidence.
[37] Transcript 26 September 2019, p 55, lines 28–30.
Counsel for the Respondent closely cross-examined the Applicant about the information she had provided in the ComSuper questionnaire and the overall picture it conveyed about:
(a)The nature and severity of respiratory symptoms, coughing, sneezing, watering eyes, headache, muscle ache and weakness, to particular agents; and
(b)The degree of restriction or confinement of activities resulting from the symptoms.
The Applicant maintained that the information in the questionnaire and written outline of evidence was truthful and that she continued to suffer in the manner portrayed by the those documents. She purported to give explanations for apparent variations that might otherwise be demonstrative of inconsistency.[38]
[38] For example, see Transcript, 27 September 2019, pp 84; 106–107; 115 and 135.
When challenged about the reliability of her evidence by reference to the activities and her conduct in the video surveillance, the Applicant’s explanation was that her reactions and symptoms depended on what particular agent was present, the intensity of it, the length of time exposed and how close she was to it.
The Applicant claimed that she had followed medical advice about reducing exposure to agents that were problematic, but that she could not always avoid the agents and had to live some kind of lifestyle and attend to basic needs.
Upon questioning of the Applicant from the Tribunal the following exchange occurred:
MEMBER: And I’m putting this to you in fairness so you can respond. When I look at the video, there’s none of that sort of aversion or guarding or wariness as you go about doing the activities depicted on the video. Can you explain that to me?
MS FLOOD: The dog park I have been going to ever since I’ve had that dog. I’m very familiar with the dog that I was patting. I’ve known him for nearly three years. I’ve never known him to have been washed or shampooed or anything so – I mean, I’m not going to sniff him every time. There’s generally the same few people there every day. I see them there most of the time for the last few years so I’m aware of what those people are like and those people are also aware that fragrances can affect me and they don’t take any notice if I just start wandering off somewhere, if I wander off and stand upwind from them to talk to them so that if I need to, I’m very familiar with those people. If someone else comes in – there is one dog that comes in that is fragranced and I don’t go near him because I know he is all the time.
MEMBER: What about the other video footage? So at the supermarket and at the - - -?
MS FLOOD: The supermarket – I’ve – I’ve got to go shopping. It’s a regular thing that you’ve got to do, and you’ve got to get outside the house for your own sanity otherwise it makes your own mental health even worse if you’re shut up inside and have no real life at
all. I’ve got to do something. I’m aware of some things that are there. They don’t
clean the registers as much as they do because I used to just ask them can you not do
that until I leave. And they wouldn’t do it and they would wait. If I saw them
coming with it, I would just say can you wait till I leave till you do that and then they
would do that for me. I can move away from anything that is aggravating me. I’ve
also got the opportunity now that if something – I am feeling a bit tired or a bit out of
sorts, I can go home and rest and recover.
MEMBER: And the nursery - - -?
MS FLOOD: The nursery – I’ve been in there before so I’m fairly familiar with both of those places to know what’s in there, what’s not, what I may need to look out for. Sometimes I’ve had to leave. Sometimes I don’t. If there’s something there then I will leave.
MEMBER: All right. And the second matter I’ve had for you is that I’ve observed you giving evidence and you, during the course of your evidence, have displayed the cough that I’ve read about?
MS FLOOD: Yes.
MEMBER: In the video surveillance, although there’s no sound, I’ve observed you in court when you cough, often you will cover your mouth. There was no sign of that in the video footage I’ve seen – that behaviour?
MS FLOOD: No. Whatever it was probably wasn’t affecting me or I didn’t a cough – the cough at the time. It depends – it depends what it is. In here, it’s the cleaning things in the buildings and that sort of stuff and the coming through traffic on the way down here and that sort of thing.
OBSERVATIONS ABOUT THE VIDEO SURVEILLANCE

The entirety of the video surveillance footage was viewed. The Applicant admitted, and the Tribunal finds, that the footage shows her in various settings. A supermarket, nurseries, in a vehicle, at a dog park and outside her home.
In all the footage, the Applicant’s body language and behaviour is unguarded and she appears in the Tribunal’s view at ease and willingly participating in the activities shown, without apparent caution or adverse effects, over periods varying in duration from less than a minute to several to many minutes.
The footage does not demonstrate her undertaking activity that she said she could not do at all. Despite this, it does raise doubt about the extent of avoidance in activities of life and the degree of interference to her lifestyle. This is addressed further below in the findings and conclusions of the Tribunal.
THE EXPERT EVIDENCE - MULTIPLE CHEMICAL SENSITIVITY
The evidence before the Tribunal as to a condition labelled as “multiple chemical sensitivity” or similar was extensive. It can be relevantly summarised as follows:
(a)The diagnostic label is a descriptor of a collection of symptoms that cannot be otherwise explained by commonly accepted diagnosed medical conditions;
(b)It has been variously classified as a condition having a pathological or physical aetiology or alternatively as a cluster of psychosomatic symptoms or a combination of both;
(c)Whether of pathological/physical aetiology or psychosomatic basis, the diagnosis is controversial and there does not appear to be a universally accepted formulation of the required criteria for diagnosis; and
(d)Further medical and scientific studies are required to address the divergence of views, hypotheses and variation in research findings.
In November 2010 the Department of Health and Ageing issued a scientific review report[39] to which both Dr Elder and Dr Little contributed. The report and various parts of it were the subject of evidence during the concurrent expert evidence received by the Tribunal. Although the review report clearly draws together years of scientific work and research from all over the world in relation to MCS, it struck the Tribunal that there was lack of consensus amongst many scientific studies, the views of what could be drawn from the studies, and views of the contributing authors and published literature.
[39] Exhibit A7, NICNAS 'Scientific review report - MCS Identifying Key Research Needs', Department of Health and Ageing.
It was also significant that the purpose of the report was to identify key research areas required because of the degree of divergence of scientific results and opinions.[40] Dr Little, who was more positive about the utility of the report and its contents, put it this way:
DR LITTLE: I think that the paper did provide a list of possible mechanisms and looked at the evidence for or against some of these proposals but it then deciding that there wasn’t enough evidence to clearly come down on any particular hypothesis, so it was more a review of the exploration of possibilities rather than anything more definitive than that.
[40] Transcript, 22 October 2019, p 59.
The substance of Dr Elder’s opinion is summarised in the following statements:[41]
“Dr Mark Cullen, a US OEP (Occupational and Environmental Physician) who first coined the phrase “MCS” has expressed regret at using that phraseology. (His statement to the WA Standing Committee on the ALCOA Wagerup Refinery issue). He admits that it is not sensitivity in the immunological meaning.
I do accept that she reacted to the odours in the workplace. However, all testing remained negative, and I note that although the original diagnosis on the claim was “respiratory injury” her lung function tests were normal.
Again, I state that there is no known biological proven mechanism that suggests this would lead to ever-widening reactions to other non-related chemicals. I would ask the Tribunal to consider if this were possible, why has none of these patients ever become “allergic” and hence unable to be exposed to, other chemicals such as oxygen or water?
It is often several weeks or months later that the psychological reaction in a vulnerable patient develops. This is significantly worsened by iatrogenesis.”
[41] Report of 11 January 2018 and oral evidence; see for example pp 76 and 94 of the Transcript dated 22 October 2019.
The Tribunal found the report interesting, and the evidence of Dr Little and Dr Elder helpful in understanding competing perspectives in the medical and scientific fields around MCS. However, given the state of uncertainty and divergence of views of the experts and findings drawn from studies and research, the Tribunal was not persuaded that there is a commonly accepted diagnosis of MCS and criteria for it. Further, the Tribunal was not satisfied that there is, in the field of medicine or science, common acceptance that the condition is a physically based one.
Fundamentally, the lack of consensus about so many aspects of MCS, including its origin or cause, left the Tribunal unpersuaded that it is commonly accepted as a medical condition which is pathologically/physically based.
THE PSYCHIATRIC EVIDENCE
Dr Reid
Dr Reid expressed the view that the Applicant was suffering from a somatic symptom disorder (SSD). In his report before the Tribunal,[42] he stated that the Diagnostic and Statistical Manual focused on clinical presentation and the condition was one which:[43]
“…does not require psychological explanation for the condition but focusses on thoughts, feelings and behaviours. Patients are excessively worried about their symptoms which is judged to be out of proportion to the severity of the physical complaints, anxiety and excessive time spent on medical treatment and health concerns.”
[42] Exhibit A5, Medical Report of Dr Reid, 5 April 2018.
[43] Ibid, p 5.
Dr Reid further explained in his report and confirmed under cross-examination that the diagnosis of SSD was not dependent on determining whether symptoms have a physical basis or not. He concluded that the Applicant had a SSD whether an overall chemical sensitivity existed or not.
In his report, Dr Reid stated that the trigger for the SSD appeared to be the environmental factors and odours in the workplace. He did not consider there to be obvious personal vulnerability but that medical consultations had not provided reassurance of a self-limiting condition and may have heightened perpetuation of symptoms.[44]
[44] Ibid, p 7.
He commented that the condition was difficult to treat but that psychological sessions and medications were likely to benefit. Under cross-examination, he expanded upon the psychological sessions involving cognitive behavioural therapy (CBT), aimed at breaking down her perceptions.[45]
[45] Transcript, 21 October 2019, pp 7–8.
As to the concept of “perpetuation”, Dr Reid further explained what factors contributed to the perpetuation of the Applicant continuing to suffer SSD. In his evidence in chief, he said:
“I think they’re relevant in consolidating and perpetuating her condition. My condition (sic) is based on her thoughts, feelings, and behaviour. You could understand that if a colleague has had a similar condition, that would be a perpetuating factor in acknowledging your own symptoms, and also seeing a specialist physician that provided a diagnosis would consolidate her viewpoint.” [46]
[46] Ibid, p 5, lines 30–39.
Following cross-examination, Dr Reid was not shaken in his view about the factors that led to the SSD and continuation of the condition. He was closely cross-examined about the factors which may have contributed to the perpetuation of the condition at and after the Respondent deciding to stop making payments of compensation. This is usefully demonstrated in his evidence to the Tribunal below:
“I think that’s an element, but I don’t see it as a strong a perpetuating factor as, you know, what she went through; she became unwell and sought out help and moved on from work. I think they are the elements that led to this ongoing situation, and the natural history of the condition, which is a chronic one.” [47]
[47] Ibid, pp 17–19 and especially, p 18, lines 23–26.
Dr Reid also maintained his views that it was reasonable for the Applicant to have treatment directed to breaking down perceptions.[48] It is fair to say that he was not overly optimistic about improvement or prognosis.
[48] Ibid, p 9, line 5.
Dr Reid expressed the view that the Applicant suffered a 10% permanent impairment assessed pursuant to Table 5.1 of the Guide to Assessment of Permanent Impairment, provided for pursuant to section 24 of the Act.
By the time Dr Reid gave evidence, he had seen the video surveillance. Under cross-examination he said:
“I think any new information would allow me to do that, but I think, as I said the video didn’t change my opinion substantially.”[49] (Emphasis added.)
[49] Ibid, p 15.
At the conclusion of cross-examination, the Tribunal was concerned to fully understand what Dr Reid meant by the evidence referred to above. The following exchange occurred:
MEMBER: Dr Reid, you said in answer to a question from Mr Gollan that the video didn’t disturb your opinion, and you used the words that what you saw in the video didn’t disturb it enough, and you used the word “enough”. What do you mean by that?
DR REID: Yes. Well, I think, number one, she described, when she saw me she told me the things she did. So she went to the dog park, she went shopping, she, you know, looked out for her grandparents. So she wasn’t doing things that she hadn’t disclosed to me. I still feel that within that diagnostic criteria those things are possible, so many patients, you know, have had worse symptoms and then are in a chronic state. She’s in a chronic state and she’s, you know, she’s living a lifestyle. I didn’t think it was substantially different to what she described to me.
MEMBER: So are you saying that you would’ve had to have seen activities that she claimed she didn’t do at all; is that your opinion?
DR REID: Yes, I think if you’d put her in the Centrelink building, et cetera, or they’d put her in places that she described as anxiety provoking, then my opinion might’ve been different, but, you know, I - I didn’t see that and she, you know, said that walk the dog, et cetera, is part of her lifestyle, so I don’t think she significantly overplayed her function.
MEMBER: Can I just explore that a little further; if I take an example; if the video had shown her in the fragrance section and cosmetic section of Myer, that might’ve disturbed your view?
DR REID: Well, again it’s really specifically to what she finds distressing, but if - if she says that Myer is a place I can’t go and she’s there, then it creates some uncertainty, but the overall factor is, you know, her anxiety around her original workplace and then her deterioration since then. But again, how much do you rely on behaviour versus their thoughts and feelings?
MEMBER: Yes. Now, you said that the video really shows the behaviours and doesn’t address the thoughts and anxieties that she might be experiencing; do you agree that by watching the video you can see in Ms Flood that she seems calm, she seems to be interacting normally, for example, in the nursery with her partner about what they were looking at. Wouldn’t that indicate something about how she’s feeling and thinking?
DR REID: I think you can interpret it just as you described it; describe it that she looks relaxed with her partner, you know, accompanied by her partner. But I suppose the thing with a chronic condition is that it’s really that people are often left with the vulnerability. You know, there are a lot of symptoms that reduce and then they change their lifestyle, but, you know, if you asked her to get back to work and put up another rehabilitation plant in, and then there’d only be an aggravation of her condition.
In the Tribunal’s view, the exchange discloses that Dr Reid was firm that the video surveillance did not alter his view about diagnosis of SSD, but that it had some reducing effect upon his view about the severity of the condition on her life and activities.
Dr Chow
Dr Chow had initially expressed the view that the Applicant suffered from an adjustment disorder.[50] This was on the basis that he assumed that MCS was a physically based condition. He also agreed that, based on presentation in September 2016, the Applicant had a 10% permanent impairment and would benefit from ongoing treatment which had only fairly recently re-commenced.
[50] T144, T Documents, p 670.
The Respondent’s solicitors provided Dr Chow with additional documents and asked him to make assumptions about the Applicant’s condition not having a physical basis. In his subsequent report of 13 December 2017,[51] he stated that on the basis that there is no physical basis for the Applicant’s symptoms, his diagnosis was of SSD.
[51] Exhibit R4, Reports of Dr Chow dated 3 October 2016, 25 November 2016 and 13 December 2017.
Dr Chow’s explanation of SSD was largely consistent with the views of Dr Reid. Regarding treatment for SSD, Dr Chow’s views supported the use of CBT, observing that past treatment had not been focussed on a psychiatric disorder of that kind, but on a physically based condition. He also expressed some doubt about the outcome of CBT, saying the Applicant and her treaters would have to be able to consider the psychological aspects for the treatment to be beneficial.
Ultimately, Dr Reid and Dr Chow each expressed consistent views which had persuasive force.
FINDINGS OF THE TRIBUNAL
On the basis of the very persuasive expert opinions of Dr Reid and Dr Chow, I find that the Applicant suffered a SSD, taken to have been suffered on and from 15 September 2009 and constituting a disease pursuant to section 5B of the Act.
The evidence of the Applicant corroborated by a large volume of documentation and the expert opinions of Dr Reid and Dr Chow satisfy me that the Applicant’s presence at the Devonport office in 2009, while performing her employment duties, entailed exposure to chemical odours for various periods from February 2009, and this contributed to the SSD, to a significant degree.
The views of the psychiatrists leave the Tribunal in no doubt that SSD is a mental ailment within the meaning of section 4 of the Act and in turn because of the significant contributory effect of chemicals and odours in the workplace, a disease within the meaning of section 5B of the Act.
Although the Respondent accepted liability for a primary condition which it labelled “respiratory conditions due to external agents”, the Tribunal finds that the condition the Applicant suffered and for which the Respondent is liable is SSD. Given the nature of a SSD as explained by the psychiatrists, there is no secondary condition, but rather the symptoms of anxiety and depression are composite elements of the SSD itself.
I accept the Applicant suffered and suffers a SSD because she likely holds an honest belief that she experienced and experiences a constellation of physical symptoms related to chemicals, odours or agents in the workplace, but in fact does not experience these.
The Tribunal is of the view that the beliefs referred to in the preceding paragraph were reinforced and entrenched into the Applicant’s psyche by advice given to her by some medical practitioners and the Applicant’s own research leading to highly avoidant behaviour. Although these contributions exist, the Tribunal is not persuaded this detracts from the significant contribution to the condition by the Applicant’s employment itself having regard to sections 5B(2) and 5B(3) of the Act.
The chemical and other unpleasant odours were in the Devonport office where the Applicant worked for an extensive period and her presence for employment necessarily meant that she had recurrent and prolonged exposure to unpleasant chemicals and odours for several months and probably was more vulnerable than others to adverse mental reactions.[52]
[52] Transcript, 22 October 2019, p 18, lines 5–19, evidence of Dr Reid.
The Tribunal is not satisfied that the Applicant suffered MCS, a label-asserted diagnosis or ailment. Further it is not satisfied that the condition the Applicant suffered had or has a physical aetiology.
On the present state of accumulated specialised expert knowledge and the evidence before it, the Tribunal is not satisfied, to the requisite degree,[53] that MCS is an ailment for the purposes of the Act, due to the clear lack of consensus between the experts and the obvious need for further scientific research.[54]
[53] Briginshaw v Briginshaw (1938) 60 CLR 336.
[54] See [47]–[51] above.
In arriving at the finding that the Applicant suffered SSD for the purposes of the Act, the Tribunal has accepted [9] of the Respondent’s written submissions of 1 December 2019. The conclusion that the Applicant suffered a physically based condition (whether injury or disease) can be rejected on the basis of what the High Court said in Military Compensation Commission v May.[55]
[55] [2016] HCA 19, [57]–[61].
However, nothing which the High Court said in Military Compensation Commission v May prevents the conclusion reached by the Tribunal at [78]–[80] above, that the Applicant suffered SSD, a psychiatrically based ailment, being a disease for the purposes of section 5B of the Act.[56]
[56] Military Compensation Commission v May [2016] HCA 19, [50].
The finding of the Tribunal, that the Applicant’s compensable injury was a SSD, is one that the Tribunal is able to make on the evidence before it and pursuant to the principles articulated by the Full Court of the Federal Court in Telstra Corporation Limited v Hannaford.[57]
[57] (2006) 151 FCR 253, per Conti J at [57] onwards and Heerey J at [8] onwards.
DID THE APPLICANT CONTINUE TO SUFFER A SSD AFTER DECISION TO CEASE LIABILITY?
The Respondent’s submissions contend that if the Applicant suffered SSD for which the Respondent was initially liable, by the time of the cease effects decision, it was no longer liable.
The Respondent cites Prain v Comcare[58] as authority for the proposition that the effect of Dr Reid’s evidence meant that the Tribunal should affirm the Respondent’s decision of 16 October 2017.
[58] [2017] FCAFC 143.
Although Dr Reid accepted that validation of the Applicant’s beliefs about chemical sensitivity by Dr Little and suggestibility could perpetuate the condition, in the Tribunal’s view that does not mean that exposures to the chemicals and odours in the workplace were no longer of significance to the continuation of symptoms of SSD.[59] It is also potentially relevant that the Respondent apparently accepted that the treatment by Dr Little was reasonable as it paid for it and that the Applicant was referred to Dr Little as a suitable medical specialist.
[59] Transcript, 21 October 2019, p 19, lines 21–25.
The Respondent does not carry a strict onus of proof upon this review, but many authorities establish that the Tribunal must have before it sufficient material to persuade it that the effects of the compensable injury have ceased, if the decision under review is to be affirmed.[60]
[60] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525; Commonwealth v Borg (1991) 20 AAR 299 at 307; Comcare v Nichols [1999] FCA 209, [22].
The Tribunal finds that the Applicant continued to suffer the effects of SSD after 16 October 2017. It does so on the basis of:
(a)the opinions of Dr Reid, which it prefers to those of Dr Chow about ongoing causation; and
(b)the view that the Applicant has not been consciously dishonest in her inconsistent portrayal of symptoms or functional limitations of SSD.
In arriving at the position set out at [91] the Tribunal has had the benefit of assessing the Applicant’s demeanour and to the extent that there is variation between her evidence to the Tribunal, her answers in the ComSuper questionnaire and the activities or behaviour shown on the video surveillance, that is explained by the very nature of SSD.

Despite the Tribunal’s conclusion at [91] and [92], the Tribunal must approach the task of assessing the question of impairment based on objective evidence of the Applicant’s functioning. The best objective evidence is the content of the video surveillance, as it demonstrates how she acts and functions through a prism unaffected by her focus on SSD, treatment and claims for compensation.
Applicant’s Counsel submitted that the video surveillance did not portray what the Applicant was feeling and any apparent inconsistencies are explained in the Applicant’s evidence overall. The Tribunal rejects this submission. Furthermore, the activity on the video surveillance had some influence on the views of almost all experts who viewed it, about the degree of limitations experienced by the Applicant.[61]
[61] Dr Reid at [68] above; see Transcript, 21 October 2019, pp 31–33 for Dr Chow’s evidence and [114] above; and see Transcript, 22 October 2019, p 97 for Dr Elder’s evidence.
There is a difference in the degree of functional limitation portrayed in the ComSuper questionnaire, the Applicant’s evidence and the reported limitations to doctors on one hand, and the activities on the video surveillance. The difference reflects either an improvement in the Applicant’s condition or an honest but flawed view on the Applicant’s part about what she in fact does and can do.
COMPENSATION PURSUANT TO SECTIONS 16 AND 19 OF THE ACT
It is beyond the scope of this review to make definitive determinations about payments for incapacity. However, the Tribunal observes that based on all the evidence before the Tribunal the Applicant is likely to have some capacity for work, especially so after suitable rehabilitation and treatment.
The Tribunal has arrived at the view referred to at [96] above on the basis of the level of activity in the video surveillance and Applicant’s admissions that when familiar with environments she can manage exposures and symptoms.
In respect of payments for medical expenses, the Applicant has submitted a psychology counselling treatment notification plan.[62] On the basis of the opinions of Dr Reid, Dr Elder and Dr Chow, specifically targeted CBT is reasonable and may further improve the Applicant’s condition.
[62] T156, T Documents, pp 760–761.
Dr Chow stated that previous psychological therapy had not been optimally focused for her psychogenic based disorder.[63] He, like Dr Reid, expressed reservations about the prospect of targeted CBT being of benefit.[64]
[63] Exhibit R4, Report of Dr Chow, 13 December 2017, p 3.
[64] Ibid, in answer to question 3 of report.
Despite the reservations of the experts, it is abundantly clear that the Applicant has had little if any specialist psychiatric or psychological treatment directed to SSD. Rather, treatment has focused on avoidance of a raft of activities. This seems inappropriate for SSD based on the views of Dr Reid and Dr Chow. Continued use of simple anti-depressants is also reasonably required based on their views, which are accepted.
It is reasonable to avail the Applicant of targeted CBT and use of anti-depressants.
PERMANENT IMPAIRMENT AND NON-ECONOMIC LOSS?
The decisions under review, relating to permanent impairment and economic loss, should be affirmed if the Applicant does not satisfy the 10% threshold required under section 24(7) of the Act.
The key question for determination is whether as a result of the SSD, the Applicant suffers from a 10% permanent impairment or greater. The assessment of impairment must be in accordance with the Guidelines published pursuant to section 28 of the Act.[65] For psychiatric conditions including a SSD, Table 5.1 of the Guide applies.
[65] Approved Guide to the Assessment of Degree of Permanent Impairment.
The Applicant relies on Dr Reid’s views to establish that she suffers from 10% permanent impairment. Dr Chow also initially agreed with an assessment of 10% permanent impairment.[66]
[66] Report of Dr Chow, 3 October 2016, p 10.
The 10% permanent impairment opinions were each given before the psychiatrists had viewed the video surveillance. Further, the Applicant has not had reasonable treatment that may lead to improvement of her condition.[67]
[67] [98]–[100] of these reasons.
Dr Reid’s evidence was that the video surveillance did not dethrone his diagnosis or change his opinion substantially.[68] This conveyed to the Tribunal that it influenced his opinion somewhat. This, in combination with his concessions about the potential benefit of CBT, leads the Tribunal to conclude that the Applicant’s condition is not fully stabilised despite the passage of years.
[68] [68] of these reasons.
Although Dr Reid stated he did not consider the Applicant to be fictitious or malingering and the Tribunal tends to agree, the Respondent has demonstrated a degree of inconsistency between the Applicant’s claims and her actual activities and function.
Dr Chow placed significant emphasis on the inconsistency between reported claims of avoidance of activity and what the video demonstrated the Applicant was capable of doing without apparent adverse response.
Whether the Applicant has at least 10% permanent impairment resulting from the compensable injury (SSD), involves a question of law to be determined in part upon factual findings made about the criteria in Table 5.1 of the Approved Guide.[69] The factual findings to be made are informed by all the evidence before the Tribunal, including the opinions of Dr Reid and Dr Chow.
[69] Comcare v Amorebieta [1996] FCA 1438 at [13]; Morton v Comcare [2005] AATA 318 at [46]; Comcare v Fiedler [2001] FCA 1810.
By reference to Table 5.1, no degree of permanent impairment arises where there is “reaction to stresses of daily living without loss of personal or social efficiency”.
For 10% permanent impairment to apply, there must be satisfaction of more than one of the criteria in the Table correlating with 10%. Whilst the Tribunal is satisfied that one criterion applied, namely reaction to stresses of daily living with minor loss of personal or social efficiency, it is not persuaded that another criteria does.
It is far from clear from the contents of Dr Reid’s report in 2018 which two or more of the criteria applicable to a 10% permanent impairment were satisfied in his opinion. In describing the Applicant’s permanent impairment, Dr Reid simply refers to her suffering a loss of mental function with a proneness to worry, depression and social avoidance.
Dr Chow also assessed the Applicant’s permanent impairment at 10% when he expressed his opinion on 3 October 2016. But his view as to the severity of the condition and impact on activities of daily living clearly changed, due to the content of the video surveillance.
The Tribunal is of the view that the Applicant’s perception of her symptoms and limitations are exaggerated from what they objectively are, and her activities and symptoms are in fact less limited than she says.
The Applicant has not persuaded the Tribunal that she suffers permanent impairment of 10% or greater from the compensable SSD from which she suffers. Either because it is not satisfied that the Applicant meets two or more of the criteria required for a 10% permanent impairment or because reasonable treatment for her condition has not been undertaken.
CONCLUSION
The decision made by the Respondent on 16 October 2017 (application no. 2017/6347) is set aside and in substitution the Tribunal decides that:
(a)The Respondent is liable to continue paying compensation pursuant to the Act in respect of a SSD suffered by the Applicant on 15 September 2009.
The reviewable decision made by the Respondent on 24 March 2017 (application no. 2017/3139) is affirmed for reasons other than those of the Respondent.
The reviewable decision made by the Respondent on 21 April 2017 (application no. 2017/3141) is affirmed for reasons other than those of the Respondent.

I certify that the preceding 118 (one-hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

......................[sgd]...........................
Associate
Dated: 08 July 2020

Dates of hearing:

Date of oral closing submissions:

25–27 September and 21–22 October 2019

10 December 2019

Counsel for the Applicant:

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

Mr B Hilliard

Slater and Gordon Lawyers

Mr J Gollan

Lehmann Snell Lawyers