Foster and Comcare
[2004] AATA 884
•24 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 884
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos Q1999/369, Q2002/1094
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINA FOSTER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date24 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
...................[Sgd]......................
R G Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – whether chronic fatigue syndrome an aliment, disease or injury - appropriate diagnosis of condition – presence of pre-existing undifferentiated somatoform disorder - aggravation by circumstances in the workplace – temporary nature of aggravation – relevance of perceptions of workplace detriment - absence of permanent impairment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss4, 14, 16, 19, 24
Wiegand v Comcare (2002) 72 ALD 795
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
24 August 2004 Mr R G Kenny, Member Background
1. On 8 September 1993, Christina Foster (the applicant) lodged a claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). The claim was in respect of chronic fatigue syndrome which was described as being related to the applicant’s employment with the Child Support Agency (CSA) which, at that time, was part of the Australian Taxation Office. The applicant’s claim was accepted by Comcare (the respondent) as “adjustment reaction with mixed emotional features” and compensation was paid to her under the Act.
2. On 30 March 1994, the respondent determined that liability under the Act would cease and this decision was affirmed on 5 September 1994. On 12 October 1995, the matter came before the Administrative Appeals Tribunal (the Tribunal) where the parties agreed to settle the matter on terms which included:
(i)that the respondent pay to the applicant compensation in accordance with the provisions of the Act for incapacity from 24 April 1994;
(ii)that the applicant’s claim for compensation for chronic fatigue syndrome be dismissed;
(iii)that the applicant’s claim for compensation for permanent impairment from chronic fatigue syndrome be dismissed;
(iv)that the applicant undertake appropriate treatment, initially, with Dr J Reddan, psychiatrist;
(v)that the applicant commences and co-operates in a rehabilitation program as provided by the Act with the involvement, initially, of Dr J Reddan; and
(vi)that such rehabilitation program be work place based outside the Child Support Agency but within the Australian Taxation Office at either the Mt Gravatt or the Chermside or the Central Business District offices, in consultation with the applicant and her medical practitioners.
3. On 3 December 1996, the respondent determined that compensation benefits would cease to be paid to the applicant with effect from 11 December 1996. That decision was affirmed in a reviewable decision on 1 February 1999 and, on 31 March 1999, the applicant sought review of that decision by the Tribunal. This comprises application Q1999/369.
4. On 22 August 2002, the applicant lodged a claim for compensation for permanent impairment and, on 9 September 2002, that claim was rejected by the respondent. On 6 December 2002, the respondent made a reviewable decision affirming the matter in respect of permanent impairment and, on 13 December 2002, the applicant sought review of that decision by the Tribunal. This comprises application Q2002/1094.
Hearing
5. The hearing commenced on 23 March 2004 and continued on 24 and 25 March 2004 before Ms J Cowdroy, Member. It was then continued before a reconstituted Tribunal for a further five days in June 2004. The applicant was represented by Mr A Harding of Counsel. The respondent was represented by Ms E Ford of Counsel.
6. The following material was taken into evidence.
§Exhibit 1 a document prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 in relation to Q1999/369 (T documents T1 – T52);
§Exhibit 2 a document prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 in relation to Q2002/1094 (T documents T1 – T21);
§Exhibit 3 a bundle of the applicant’s school reports;
§Exhibit 4 a bundle of referee reports relating to the applicant;
§Exhibit 5 a statement completed by the applicant in September 1993;
§Exhibit 6 a bundle of correspondence between the applicant and the office of the Merit Protection Commissioner;
§Exhibit 7 a CSA Upper Mt Gravatt Operation Review;
§Exhibit 8 clinical notes of Dr Cochrane of Brunswick;
§Exhibit 9 clinical notes of Dr Alan Hadley;
§Exhibit 10 a file note, dated 15 March 1994, by Eileen Nielsen;
§Exhibit 11 a medical report, dated 26 June 2000, by Dr William Wilkie, psychiatrist;
§Exhibit 12 a letter, dated 11 September 1995, by Christine Cotterell;
§Exhibit 13 an email message, dated 14 April 1994, from Eileen Nielsen;
§Exhibit 14 a bundle of letters and responses;
§Exhibit 15 notes of a meeting conducted on 7 June 1994;
§Exhibit 16 a work roster, dated 4 July 1994, completed by Telere Haw;
§Exhibit 17 a memorandum, dated 4 July 1994, by George Brenan;
§Exhibit 18 an outline of a Return to Work plan;
§Exhibit 19 a bundle of sick leave documents;
§Exhibit 20 a schedule of sick leave taken by the applicant;
§Exhibit 21 a Bundle of documents prepared for Dr John Whiting;
§Exhibit 22 a bundle of notes;
§Exhibit 23 medical reports completed by Dr Andriya Martinovic;
§Exhibit 24 a further report, dated 26 October 1994, from Dr Martinovic;
§Exhibit 25 a medical report, dated 27 August 1993, by Dr A Hadley;
§Exhibit 26 a medical report, dated 18 March 2004, from Dr Maureen Field, neurophysiologist;
§Exhibit 27 a medical report, dated 22 March 2004, by Dr M Oldmeadow;
§Exhibit 28 a bundle of documents headed “The Royal Women’s Hospital”;
§Exhibit 29 a bundle of documents headed “Attendance Record”;
§Exhibit 30 rehabilitation records;
§Exhibit 31 various summons records;
§Exhibit 32 photographs of applicant;
§Exhibit 33 various medical reports relating to the applicant;
§Exhibit 34 a file note, dated 19 July 1994, by Telere Haw;
§Exhibit 35 a training schedule completed by Telere Haw;
§Exhibit 36 a letter by the applicant to Dr Martinovic;
§Exhibit 37 a medical report, dated 18 December 2002, by Dr G Larder, psychiatrist;
§Exhibit 38 a further medical report, dated 5 June 2003, by Dr G Larder;
§Exhibit 39 a further medical report, dated 16 March 2004, by Dr Larder;
§Exhibit 40 a medical report, dated 16 November 2001, by Dr Michael Donoghue;
§Exhibit 41 a further report, dated 27 September 2002, by Dr Donoghue;
§Exhibit 42 statements, dated 23 March 2004 and 25 September 1995, by Elspeth Drinkeld;
§Exhibit 43 statements, dated 27 May 2004 and 22 September 1995, by Alison Millett;
§Exhibit 44 a statement completed by Eileen Nielson;
§Exhibit 45 a medical report, dated 18 February 1994, by Dr P Georghiou;
§Exhibit 46 an attendance record;
§Exhibit 47 leave application documents;
§Exhibit 48 a document entitled “Following Up”;
§Exhibit 49 further referees’ reports;
§Exhibit 50 a statement, dated 4 June 2004, by Christine Cotterall;
§Exhibit 51 medical reports, dated 26 March 2000, 26 August 2002, 8 November 2001 and 3 March 2003, by Dr Peter Sevenson, consultant physician ;
§Exhibit 52 medical reports, dated 16 August 1995, 21 June 2002, 17 July 2002, 5 March 2003, by Dr J Reddan, consultant psychiatrist;
§Exhibit 53 a facsimile note, dated 29 April 1996, from the applicant to Dr Reddan;
§Exhibit 54 medical reports, dated 22 April 2002 and 9 March 2004, by Dr Lucille Douglas, psychologist;
§Exhibit 55 curriculum vitae of Dr Peter Cotton, psychologist;
§Exhibit 56 clinical notes of Dr P Cotton (with invoice);
§Exhibit 57 return to work plan closure;
§Exhibit 58 a statement of Anne White;
§Exhibit 59 a file note, dated 9 October 1996, by B Drescher;
§Exhibit 60 a medical Report, dated 13 December 2001, of Dr Greg Apel;
§Exhibit 61 a letter, dated 17 June 1994, by the applicant to Comcare;
§Exhibit 62 a letter, dated 24 June 2004, from Gary Champion;
§Exhibit 63 a letter, dated 23 June 2004, by Dorothy Andrews;
§Exhibit 64 a document from the Royal Australian College of Physicians entitled “Chronic Fatigue Syndrome - Clinical Practice Guidelines 2002”;
§Exhibit 65 a transcript of proceedings before the Administrative Appeals Tribunal on 23, 24 and 25 March 2004; and
§Exhibit 66 a medical Report, dated 5 October 1995, of Dr Brian Kelly.
Issues for Determination
7. The issues for the Tribunal to determine are whether the applicant suffers from an injury or disease as defined in the Act; whether any such injury or disease arose out of or was contributed to in a material degree by her employment with the CSA; and, if so, whether she suffers from incapacity to work or any impairment as a result of any such injury or disease for the purposes of sections 14 and 24 of the Act. Relevant to the determination of those issues are the following provisions of the Act:
“Section 4 Interpretation
(1) In this Act, unless the contrary intention appears: …
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
‘disease’ means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
…
‘injury’ means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
Section 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
…
Section 16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
Section 19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NEW - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
…
Section 24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.”
Submissions and Evidence
8. The applicant, who was born on 8 May 1963, commenced employment with the Australian Taxation Office in Melbourne in 1980 and, on 12 December 1992, moved to Brisbane where she commenced work with the CSA. She continued in full time employment, albeit with periods of sick leave and recreation leave, until 21 June 1993 at which time she commenced a period of long service leave until 5 July 1993. Thereafter, apart from a few days work in August and September 1993, she remained on sick leave until 4 January 1994 after which she commenced a graduated return to work plan which continued until April 1994. Compensation had been paid to the applicant following a claim made by her on September 1993 and the respondent made a determination to cease liability in that regard on 30 March 1994. The matter came before the Tribunal and was settled on 12 October 1995 in accordance with the terms noted above. Compensation was again ceased from 11 December 1996.
9. The applicant’s case is that events in the workplace at the CSA in 1993 were responsible for the development or aggravation of a condition which has been variously identified as chronic fatigue syndrome, undifferentiated somatoform disorder or adjustment disorder. It was contended that this was further exacerbated and continued in effect by the stressors imposed upon the applicant as part of her return to work program in 1994 and that, subsequently, she has not recovered from the condition from which she remains permanently incapacitated. It was further contended that, even if, in an objective sense, it could not be shown that circumstances in the workplace, particularly in 1994, were responsible for the continuation of the condition, the applicant developed perceptions that events in the workplace were impacting upon her in a manner which was responsible for the continuation of symptoms and that this, also, was sufficient, under the Act, to constitute a material contribution.
10. For the respondent, it was submitted that the applicant suffers from an undifferentiated somatoform disorder which predated, by some years, her employment circumstances in 1993 and that what she suffered at that point was a temporary exacerbation of the underlying effects of this condition. Further, it was submitted that the causes for this exacerbation were related to a range of environmental factors associated with other difficulties that the applicant was having. In particular, these included difficulties in relation to her move to Brisbane, in her personal life and in the financial circumstances associated with the purchasing of a residence in Brisbane. It was conceded that she had developed an adjustment disorder but it was contended that the effects of this were also temporary. Reference was made to the events in the workplace during the return to work program in 1994 and it was submitted that these had been greatly exaggerated by the applicant and that her focus was not on work-related issues but on feelings of anger associated with her attempts and determination to establish that she suffered from chronic fatigue syndrome. It was submitted that, thereafter and from 1995 in particular, the applicant’s main focus was on the litigation process in which she had become engaged in order to vindicate her belief in relation to chronic fatigue syndrome.
11. It was further submitted by the respondent that the underlying condition in the applicant has always been an undifferentiated somatoform disorder and that a diagnosis of chronic fatigue syndrome was not open on the basis that it is not a separate disease entity. Moreover, it was submitted that, from 11 December 1996 when the respondent brought compensation payments to an end, any effects upon the applicant of workplace stressors had ceased and compensation was no longer payable to her thereafter under the Act.
Ailment, Disease or Injury
12. The applicant has been seen by a range of specialist medical practitioners and some of these have described her as suffering from chronic fatigue syndrome. This was done in the report of 26 June 2000 and in the oral evidence of Dr William Wilkie, psychiatrist; in the report, dated 29 January 1997, and in the oral evidence of Dr Chris Cantor, psychiatrist; in the report, dated 22 March 2004 and the oral evidence of Dr Michael Oldmeadow, consultant physician; in a report dated 12 November 1996 by Dr John Whiting, physician in internal medicine and infectious diseases; in the reports dated 16 November 2001 and 27 September 2002 and the oral evidence by Dr Michael Donoghue, specialist in occupational medicine; and in the report, dated 18 March 2004, and the oral evidence of Dr Maureen Field, psychologist. The applicant has also been described as suffering from chronic fatigue syndrome by various general practitioners, including Dr Alan Hadley who first treated the applicant in July 1993 and referred to that condition in August 1993.
13. In evidence (Exhibit 64) were the Clinical Practice Guidelines on Chronic Fatigue Syndrome published by the Royal Australasian College of Physicians (Volume 176 of the Medical Journal of Australia). It was not disputed during the hearing that this constituted the latest set of guidelines in relation to that condition from that College. In those guidelines, the diagnostic criteria for chronic fatigue syndrome (CFS) are listed and it is described as a “clinical condition defined by a cluster of constitutional and neuro-psychiatric symptoms occurring in a distinctive pattern” (Exhibit 64 at s 27). The guidelines state that many people presenting with persistent fatigue have some other identifiable medical or psychiatric disorder which accounts for the symptom and “careful assessment to exclude these is essential before making the diagnosis of CFS” (Exhibit 64 at s 27). They continue:
“Disease or Illness
Syndromal diagnoses like CFS have a long history of use in clinical medicine. In the absence of a clear understanding of the underlying patho-physiology, CFS is best regarded as an ‘illness’ – a subjective state that can only be defined by reference to the sick individual – rather than a ‘disease’. ‘Disability’ arises when illness interferes with the individual’s ability to function normally. People with CFS are clearly ill, and are often significantly disabled, even though an underlying disease process has not yet been identified.” (at s 27)
14. Apart from that of the practitioners noted above, there was evidence before the Tribunal which diagnosed the applicant as suffering from an undifferentiated somatoform disorder which is a psychiatric condition provided for in DSM:IV. In her reports dated 16 August 1995, 17 July 2002, 21 June 2002 and 5 March 2003 and also in her oral evidence, Dr Jill Reddan, psychiatrist, expressed that opinion. In his reports, dated 18 December 2002, 16 March 2003 and 5 June 2003, as well as his oral evidence, Dr Gary Larder, psychiatrist, also characterised the applicant as suffering from undifferentiated somatoform disorder. In his report dated 15 May 1997, Dr John Chalk, psychiatrist, expressed the opinion that the applicant suffered from an adjustment disorder in 1994 which had settled and that, when he saw her in 1997, she was suffering from a somatoform disorder as diagnosed by Dr Reddan. In his report, dated 5 October 1995, Dr Brian Kelly, psychiatrist, also described what may have been initially an adjustment disorder and which had developed into a persisting somatoform disorder. Dr Peter Stevenson, consultant physician, in his reports of 26 March 2000 and 8 November 2001 as well as his oral evidence, expressed the opinion that the applicant’s symptoms were readily explainable by the underlying psychiatric condition of somatoform disorder and, in that regard, referred to the reports of Dr Reddan and Dr Chalk. Dr Michael Whitby, in a report dated 25 July 1997, expressed the opinion that the applicant was suffering from a psychiatric condition rather than chronic fatigue syndrome. In his report dated 18 February 1994, by Dr Paul Georghiou, consultant physician in infectious diseases, expressed the opinion that the applicant was suffering from mixed anxiety and depressive disorder and he said that the applicant presented with a fatigue disorder which did not fit into the current working case definition of chronic fatigue syndrome.
15. Dr Wilkie was unwilling to accept that the applicant was suffering from some underlying psychiatric condition. In his evidence, he said that he had been treating patients with chronic fatigue syndrome for some twenty-eight years. He conceded that undifferentiated somatoform disorder is a diagnosis used by psychiatrists when a person tends to express their emotional distress by reporting physical symptoms. He agreed in his evidence that it was necessary to obtain a full medical history, for example from a general practitioner, as to the pattern of reporting of illness before determining a diagnosis. In his report, he said the applicant was not suffering from somatoform disorder but, in so stating, he made little reference to the historical presentation by the applicant to a range of medical practitioners in many of the years prior to 1993 when she made complaint of a range of physical problems. His reports do not reflect that pattern of presenting to medical practitioners.
16. Dr Wilkie’s reports were also predicated on the basis that chronic fatigue syndrome is an independent psychiatric entity. That also appeared to be the premise upon which Dr Whiting provided his report. However, I am satisfied that that this is not consistent with the other medical evidence or the guidelines noted above, from the Royal Australasian College of Physicians. Dr Cantor, the other psychiatrist who described the applicant as suffering from chronic fatigue syndrome, expressed the opinion that the applicant may also have been suffering from somatoform disorder although he said that he did not have confidence in that diagnosis. Nevertheless, in his oral evidence, he conceded that there could have been an underlying somatoform disorder in the applicant. Dr Oldmeadow also considered that there may have been an overlapping presentation of symptoms from chronic fatigue syndrome and somatoform disorder.
17. Reference has been made above to the definitions of “ailment”, “disease” and “injury”. Chronic fatigue syndrome is not a condition which meets the description of “disease” according to the Guidelines from the Royal Australasian College of Physicians but the definition of “disease” in the Act is broader than that because it includes an “ailment”. I am satisfied that the definition of “ailment” in the Act is sufficiently broad to encompass the cluster of symptoms which comprise chronic fatigue syndrome and that, therefore, it is a disease for the purposes of the Act. It follows that chronic fatigue syndrome is an “injury” because the definition of that term in the Act encompasses a “disease”. It is not disputed and I am satisfied that the condition of undifferentiated somatoform disorder also meets the terms of those definitions in the Act.
Diagnosis in the Applicant
18. The guidelines from the Royal Australasian College of Physicians state that there is a need for other conditions to be excluded before chronic fatigue syndrome can be attributed to an individual. In that regard, I am satisfied that the psychiatric evidence of Dr Reddan, Dr Chalk and Dr Kelly is such that there is, present in the applicant, an undifferentiated somatoform disorder which, as a recognised psychiatric disease entity, precludes the entering of a diagnosis of chronic fatigue syndrome. I am also satisfied that the applicant’s somatoform disorder pre-existed the circumstances she experienced in the workplace in early 1993. That was the opinion of Dr Reddan in her first report, dated 16 August 1995. There, Dr Reddan was able to reach that conclusion based upon a history of medical treatment of the applicant prior to 1993 which was taken by her from the applicant. In giving oral evidence, a much more detailed history of the applicant’s involvement with a range of medical practitioners prior to 1993 was related to Dr Reddan.
19. This history of treatment was provided in various documents in evidence before the Tribunal. A chronology was prepared for identification purposes by the respondent, the contents of which were not disputed by Mr Harding, and I am satisfied that that summary reflects the frequency of treatments by the applicant with varying medical practitioners in the period from mid 1980 when she commenced employment with the Australian Taxation Office until she came to Queensland in December 1992. The summary incorporates references to the clinical notes and sick leave reports taken from Exhibits 8, 19, 28 and 33, respectively. These reflect an absence of some seventeen days during 1981 on sick leave for reasons associated with stomach problems, flu, gastric virus and chiropractic appointments; some eight days in 1982 for reasons such as stomach upset, migraines, virus and headaches; about nine days in 1983 on sick leave for such matters as cold, migraine, food poisoning; about nine days in 1984 for feeling “sick”, flu, allergies and headache; some nineteen days in 1985 for a variety of complaints including, in November 1985, nausea with aches all over; some twenty occasions in 1986 with complaints such as sinus, cold, after effects of chiropractic appointment as well as the following specific references in clinical notes (Exhibit 28):
“24/3/86 - … attends dysplasia clinic at RWH – tends to constipation. PM - irritable bowel syndrome – diagnosed February 1985. Started 2 years earlier. Health problems since June (new job then) – mid-cycle spotting/abdominal pain October 1985 – no abnormality detected. Had developed vomiting etc then.
- losing weight over the past 2 to 3 months – no appetite
- lethargy.
- For BMCG then sort things out.
2/4/86 – abdomen – no abnormality detected
27/5/86 – recurrence of abdomen pain – colicky in nature. No relieving/precipitating factors. Increases on walking – also – swollen lymph nodes – Left groin settling now…
29/5/86 – U.S. no cyst - ? P.I.D. to return for swabs
30/5/86 – Pain settled now. On review of History – lethargy 5mths – associated loss in appetite, weight. Vomiting – Oct/Nov 2-3mths loss of concentration/memory – weight steady now, vomiting decreased.
Works in Tax Dept – before June 85 – busy job but own boss. Now less busy and working to taxpayers enquiries.
Pain – Nov 85-May 86(?) Constant. Dull to sharp Midcycle….
17/6/86 – Problems with irritable bowel syndrome again …
25/6/86 – Anal pain – hurts to walk etc …
4/9/86 – with last period – pain, vomiting …
11/12/86 - ? Haemorrhoids. Also sounds like problems with IBS – Examination – no abnormality detected …”
20. The exhibits indicate a further six occasions of reporting for treatment in 1987 and nine such occasions in 1988. In 1989, there were some eighteen occasions when sick leave was obtained with references to aches under arms, in groins and behind knees, tender throat, malaise, not passing urine properly, three days of flu, abdominal pains, and chest pain with a reference to a normal chest examination. In 1990, sick leave was sought on four occasions and clinical notes make reference to a history of needing too much sleep, bursting into tears and acneiform rash on face for four to six months with no obvious precipitating factors. On 22 June 1990, it was noted that the applicant still had vomiting and diarrhoea and that she had “exams next week”. On 24 June 1990, reference is again made to an examination which was on the following day and the applicant was complaining of vomiting and diarrhoea.
21. During 1991, clinical notes made reference to a complaint of lump on right forehead which increases with headaches, haemorrhoids with examination revealing tiny perianal fissures. There is also a report from a plastic surgeon in respect of the prospects of obtaining forms of cosmetic surgery. Lower back pain was reported on 17 September 1991 and diagnosis of migraine was made on 19 September 1991. During 1992, clinical notes refer to diarrhoea, ache in the epigastrium, the conduct of a barium enema with reference to cramps, diarrhoea, constipation and piles all contributing. No abnormality was detected in respect of the barium enema and some ten days of sick leave were recorded, mainly in respect of a virus.
22. Dr Reddan, in her oral evidence, declared that this was a considerably more detailed history than she had gleaned from the applicant and she expressed the opinion that it pointed to a “longitudinal problem that had been present from quite some time and that made somewhat understandable subsequent and later events and her later condition”. She expressed the opinion that it was entirely consistent with a diagnosis of a somatoform disorder. Dr Reddan also agreed that a patient with a somatoform disorder will make complaints that seem greatly exaggerated in comparison with the minor abnormalities that are identified. Dr Cantor who, as noted above, made reference to the presence of both chronic fatigue syndrome and somatoform disorder, had also been unaware of the detailed medical history of the applicant prior to the 1993. In his oral evidence, he agreed, when that history was detailed to him, that she probably did have an undifferentiated somatoform disorder prior to 1993. Though not a psychiatrist, Dr Whitby also was of the opinion that the applicant had an underlying psychiatric condition prior to any suggestion that chronic fatigue had developed in the applicant. In his evidence, Dr Stevenson was referred to the long history of many symptoms complained of by the applicant, many investigations and an absence of abnormality detected. He described this as a classic history of a somatoform illness.
23. Dr Donoghue’s diagnosis of chronic fatigue syndrome was made after he referred the applicant to a psychiatrist, Dr Greg Apel, and to physician, Dr J Douglas. The reference by him to Dr Apel was to determine whether any psychiatric diagnosis could be excluded and he noted and relied on Dr Apel’s exclusion of the existence of any such condition. Dr Apel, in his report dated 13 December 2001, described the applicant as previously having been diagnosed as suffering from chronic fatigue syndrome. No contemporaneous diagnosis was made by him. No reference was made to somatoform disorder. Significantly, no history of presentations for medical treatments prior to 1993 was referred to by Dr Apel and his report appears to have relied on the history given by the applicant. That history refers only to events from 1993 and, therefore, does not include the long history of involvement by the applicant with medical practitioners over the previous years. Dr Apel’s report is of no assistance to the Tribunal and, because of his reliance on it, that is also the situation with the evidence of Dr Donoghue.
24. Dr Wilkie was strongly of the opinion that the applicant suffered from chronic fatigue syndrome and not somatoform disorder. However, he did not have a full history of the medical treatment of the applicant prior to 1993 and appeared to trace all of the applicant’s health problems from 1993 onwards. I formed the opinion that much of Dr Wilkie’s evidence was directed towards a justification of the existence of chronic fatigue syndrome as a separate entity. He was unwilling to accept that reliance by an employee on their full sick leave entitlements leave over a number of years could point to the prospect of a somatoform disorder being present and, rather, expressed the opinion that this was not an unusual thing for member’s of the Public Service to do. Although he agreed that the definition of undifferentiated somatoform disorder was a multiplicity of physical symptoms for which there was no real pathological presence found, he said a somatoform disorder would not be diagnosed on that basis alone and that there needed to be some underlying psychiatric process. In that regard, he said that he might be counted “as a bit of an odd bod” and he gave examples of what he considered would be required in order to make a diagnosis of somatoform disorder saying:
“A little girl said she couldn’t see, but it was quite clear that she wasn’t blind, but her mother was having an affair with another man and she did not want to see it and you will get people who have things to do with hearing things. Problems associated with the lower back when people are afraid that they can not stand up for themselves.”
25. Dr Wilkie said that this kind of connection was required in order to make the diagnosis of undifferentiated somatoform disorder. That approach is not consistent with the other psychiatric evidence before the Tribunal.
26. On the evidence before me, I am satisfied that the appropriate diagnosis of the condition in the applicant for the purposes of the Act is an undifferentiated somatoform disorder. I am also satisfied that the existence of the condition pre-dated her employment circumstances in 1993 and that, therefore, her employment was not responsible for the development of that condition. Nonetheless, the compensation provisions of the Act will be applicable to her if her employment was responsible for an aggravation of the underlying psychiatric condition of somatoform disorder.
Relationship to Employment
27. It was the applicant’s evidence that she began her employment with the CSA in January 1993 as a trainer and that she was required to work long hours and to undertake responsibilities above those associated with her status as an ASO4 officer. She said that she began to develop headaches, sleeping difficulties with associated tiredness and virus infections. She took a period of long-service leave from 21 June until 5 May 1993 during which she stayed at a health farm. She continued to have headaches and tearful episodes during that period and also after she returned to work. During her stay at the health farm, she had heard good reports of Dr Alan Hadley and so she went to see him on 15 July 1993. His clinical notes from that day record a range of presentation symptoms and reference was made to a “political situation at work”. A letter written by Dr Hadley on 27 August 1993 described an exacerbation of the applicant’s symptoms by her work environment. Apart from a few days in August and September 1993, she was on sick leave until a return to work program commenced in early 1994. Dr Hadley’s notes on 16 September 1993 described ”work frustrations”.
28. The applicant saw psychologist Dr Peter Cotton in October 1993 and he prepared the return to work program which was endorsed by Eileen Nielson, the applicant’s workplace case manager, and agreed to by the applicant and Lindsay Morrison, her immediate supervisor at the CSA. The program commenced in January 1994 and was designed to bring the applicant to full-time employment over a period of three months with progressive increases of weekly hours over that time commencing with two hours per day for three days of the week. In her evidence, the applicant said she continued to feel unwell during the period of the program and had difficulty in completing the nominated number of hours. She said that she was also the subject of unsympathetic treatment by the officers associated with administering the program, Ms Nielson, Mr Morrison, Alison Millett and Chris Cotterell, and continually pressured by them to increase her weekly hours of work beyond those agreed to in the program and, indeed, to 20 hours per week, in a manner which was not in compliance with the medical reports of her progress. She said that she was belittled by her managers and supervisors, treated as a “bludger” and denied the opportunity to move to a different area of work. She also said that she was required to attend meetings where her circumstances were discussed in a manner that enabled others to overhear the conversations. In relation to her involvement with Dr Cotton, the applicant said that he was also party to increasing her workload to 20 hours per week and called for meetings with her but misled her as to the purpose of these meetings.
29. Alison Millett was acting manager of the CSA branch at Mt Gravatt when the applicant’s return to work program began. In her evidence, Ms Millett said that her own focus was entirely on facilitating the applicant’s return to work. She said that she found the applicant’s work was characterised by infrequent and irregular attendance. Ms Millett denied that she had held a belief that the applicant had not been trying to comply with her program requirements although she felt that there had been a lack of commitment to it. She said that she was involved with many meetings with the applicant but denied that any of these were in situations that enabled their conversations to be heard by others.
30. In her evidence, Eileen Nielsen, the applicant’s case manager in 1994, said that the implementation of the return to work program had been carried out in accordance with the periodic medical reports that were received and that there had been no attempt to increase the applicant’s hours beyond the levels recommended by those practitioners. She conceded that there had been discussion of a 20 hour threshold but denied that any attempt had been made to bring the applicant to that level. Rather, she said, the threshold was referred to as a level which would be required before the applicant would have any reasonable prospect of being moved to another area of work. Ms Neilsen said, in any event, steps were taken to determine whether other placement opportunities existed even though the applicant was not working to the threshold level of 20 hours. Ms Nielsen was referred to an occasion when the applicant left a note on Ms Neilsen’s desk rebuking her for leaving her personnel file open on the desk. Ms Nielsen agreed that this had happened, that she had been working on the file before being called away for a short time and she said that the applicant had been in breach of privacy guidelines by entering the human recourses area and going to the case manager’s desk. There was no evidence that any other employees had sighted the applicant’s documentation.
31. Christine Cotterell was the senior human resources officer associated with the applicant’s return to work program in 1994 and was also mentor to Eileen Nielsen. She said in her evidence that she developed a plan which was based on conversations that she had with the applicant’s general practitioner, Dr Hadley. On his advice, it was revealed to the applicant in stages with the first such stage involving an increase in her hours to 4 hours per day for 3 days in the week. She said that the applicant agreed to follow the plan but did not attend the workplace for the programmed hours. She said that she held meetings with Dr Cotton and the applicant to facilitate matters but this did not lead to improvements in the applicant’s participation levels. Ms Cotterell denied that there had been attempts to increase the applicant’s engagement to 20 hours per week and said that this figure had arisen because the applicant had indicated a desire to move to a new area and she had advised the applicant that it was unlikely that another area would be willing to accept her unless that threshold was achieved.
32. Dr Cotton’s evidence was that he was not aware of any attempt to increase the applicant’s working hours to 20 per week, that he had not participated in any such attempt and that this would have ruined the purpose of the program. He also denied that he had falsely declared the reason for holding any meetings with the applicant and said that the purpose had always been explained to her and that this was to assist in the progress of the program. Dr Cotton confirmed that the applicant had reported to him in October 1993 that she had found matters external to the workplace stressful to her including the circumstances of her move from Victoria to Brisbane. He also said that, in 1994, the concerns expressed by her were not in respect of the work environment of 1993 but with structural aspects of her situation in 1994. He said that her focus had shifted to matters such as the role of her supervisors and that she was manifesting a brooding anger about the workplace. He said that he had examined her working environment and considered that there was no objective evidence of any workplace stressors. In his report of 15 March 1994, he wrote that the applicant had “difficulty differentiating her own subjective perceptions and concerns from the objective characteristics of the situation”. He said that previously identified employment factors had been “superseded by underlying concerns unrelated to her present employment situation”. He also conceded in his evidence that the applicant, in 1994, may have had a perception that she was being placed under work-related stress but that her primary problem related to her unresolved problems with the past. Dr Cotton said he brought the program to an end in April 1994 and that this was on the basis of non co-operation by the applicant.
33. There is evidence that the applicant’s somatoform disorder, an underlying condition present prior to her engagement with the Child Support Agency, was aggravated by the circumstances of her employment in 1993. In her reports, Dr Reddan nominated the events of 1993 as contributing to the aggravation. During the currency of her return to work program, the applicant saw Dr Georghiou in February 1994. Dr Georghiou expressed the opinion that her employment could be considered as an aggravating or accelerating factor in the presentation of her symptoms. That opinion was also expressed by Dr Whitby, Dr Cantor and Dr Cotton. There is also evidence that there were external factors apart from the circumstances of employment which contributed to the aggravation of the applicant’s mental state at that time. These included the relationship with her fiancé who also worked with the Australian Taxation Office and who also moved to Queensland at the same time as she did. She reported relationship concerns with him during 1993 and their relationship ended at the end of that year although they continued to share premises thereafter. Clinical notes prepared by Dr Cotton in October 1993 record that the applicant advised that “everything has contributed to her situation” and, there, she nominated moving from Victoria to Brisbane as being of relevance as well as the circumstances of her employment.
34. I am satisfied that there was no further aggravation of the applicant’s psychiatric state arising out of the circumstances of her employment during the return to work program in 1994. I accept the evidence of Ms Millett, Ms Nielsen, Ms Cotterell and Dr Cotton in relation to their dealings with the applicant in 1994. I am satisfied that they were applying their best endeavours towards its implementation and, in particular, I accept their evidence that there was no attempt to increase the applicant’s working period to 20 hours per week. It is not disputed that the applicant did not comply with the work-attendance requirements of the program. It was submitted that, even if there was no direct work-related contribution at that stage, there was contribution, nonetheless, because of the applicant’s perceptions of the manner that she was dealt with in that 1994 period. In that regard, in Wiegand v Comcare (2002) 72 ALD 795, von Doussa J said (at 796):
“All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.”
His Honour continued (at 797):
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
35. I am satisfied that the allegations made by the applicant in respect of the manner that she was dealt with by her supervisors, managers and by Dr Cotton were not based on events that occurred to her and that, therefore, any perceptions that the applicant may have developed were not perceptions that related to, in the words of von Doussa J (above), any “incident or state of affairs that actually happened”.
36. As noted above, the evidence is that there was an aggravation of the applicant’s psychiatric condition during 1993. However, I am satisfied that that her employment circumstances were not solely responsible for that aggravation. In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, the Federal Court referred to the degree of contribution required for the purposes of the Act and said (at 328):
“The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
37. I am satisfied that the applicant’s employment made a material contribution to that aggravation of her underlying somatoform disorder for the purposes of section 14 of the Act. The respondent, indeed, paid compensation to the applicant in accordance with that provision albeit for a differently described psychiatric condition of adjustment disorder. This continued until the decision was made to cease liability with effect from 11 December 1996. It remains to be considered whether or not the effects of the applicant’s somatoform disorder continued after that date.
Duration of Employment Contribution
38. After compensation payments to the applicant had been brought to an end by the respondent in 1994, she sought review of that decision. The respondent affirmed its decision on 5 September 1994 and the applicant sought further review by the Tribunal. The outcome of the subsequent hearing in 1995 has been noted above. The applicant’s claim for compensation for chronic fatigue syndrome was dismissed though it had been her contention all along that this was the condition from which she suffered. The Tribunal directed that the applicant was to undertake a rehabilitation program and Dr Reddan was responsible for its implementation.
39. Dr Reddan first saw the applicant in August 1995 and had the benefit of involvement with her at that time and continued to see her until 1996 when a rehabilitation plan was formulated and commenced in July 1996. I was impressed by the evidence of Dr Reddan and the manner in which she was able to describe her dealings with the applicant. In her report of 21 June 2002 and in her oral evidence, Dr Reddan confirmed that the applicant’s undifferentiated somatoform disorder was not caused by her employment with the Australian Taxation Office but was contributed to by the nature of her workplace after she commenced work with the CSA. She said that, when she saw the applicant in 1995 and 1996, it was apparent to her that the applicant was not focused on developing a rehabilitation plan but was focussed on vindicating her claim that she suffered from chronic fatigue syndrome and was focussing on the legal processes which had encompassed her during 1995, in particular, with the Tribunal. Dr Reddan expressed the opinion that the aggravation by events in the work place had been of a temporary nature and that, as time went on, the condition had been perpetuated by other matters such as her desire to be vindicated in the correctness of the diagnosis of her condition, the way in which matters were dealt with at the Tribunal and an unwillingness by the respondent to accept that she suffered from chronic fatigue syndrome. Dr Reddan expressed the opinion that any work-related contribution to her condition had ceased by 1996.
40. In his report of 19 July 1997, Dr Chalk was of the same opinion as Dr Reddan. He said:
“She is entrenched in the litigation process and in my view her current symptoms relate more to her pre-existing personality and her underlying somatoform disorder than to any work contribution which as an aggravating factor, must at a point three years down the track, be viewed as distant.”
41. Dr Whitby, in his report of 25 July 1997, left open any question as to whether or not there was a continuing work contribution to the applicant’s psychiatric state. However, Dr Cotton, who had initially formed the opinion that she was suffering from an adjustment disorder related, in part, to her employment circumstances, was also of the opinion that this had been resolved by 1994. Dr Larder, in his evidence, agreed that the applicant’s problems in 1995 and 1996 in respect of her secondary rehabilitation program were related to her desire to convince the workplace that she had a chronic fatigue syndrome and that she was “hell bent on vindication proving that she’s sick and that the workplace did it”. In his report, Dr Oldmeadow described the stress associated with the compensation process as being a major perpetuating factor for her symptoms and he confirmed this in his oral evidence, conceding that feelings of anger and the litigation process are able to “keep matters going”. He also described the applicant’s ongoing clinical manifestations as being related to her frustrations related to the lack of understanding of her condition.
42. On the material before me, I am satisfied that, while there was an employment contribution to the aggravation of a pre-existing somatoform disorder in the applicant, I am also satisfied, on the balance of probabilities, that the work-related component of any aggravation had ceased by 1996. It was on that basis that the decision under review to cease liability was made and I affirm that decision.
Permanent Impairment
43. The applicant’s claim for compensation for permanent impairment was lodged in 2002 and, on the basis of the finding that the work-related component of her psychiatric condition of undifferentiated somatoform disorder had ended by 1996, I am satisfied that the applicant does not suffer from permanent impairment in accordance with the terms of section 24 of the Act. The decision in respect of permanent impairment is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 22-25 March 2004, 7-10 and 29 June 2004
Date of Decision 24 August 2004
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Phillips Fox
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