Gallas and Comcare
[2008] AATA 198
•13 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 198
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200500134
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL GALLAS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis, Senior Member R W Dunne and
Dr J D Campbell, MemberDate13 March 2008
PlaceAdelaide
Decision The tribunal sets aside the decisions under review, and in place of those decisions, decides that the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injuries which he sustained in 2001 and 2002 for which he has claimed compensation. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – meat inspector contracted Q fever in 1980 – post-Q-fever fatigue syndrome – periodic recurrence of severe symptoms – re-exposure in course of employment to Q fever antigen – conflicting medical evidence – increased susceptibility of applicant to episodic immune dysfunction from causes unrelated to Q fever – held that recurrence of severe symptoms in 2001 and 2002 constituted an ailment and an aggravation of an underlying ailment, and therefore a disease and an injury – held that recurrences in 2001 and 2002 were materially contributed to by applicant’s employment – meaning of “disease”, “ailment” and "aggravation" – decisions under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1) and 124(1)
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Australian Postal Corporation v Nadge (1994) WAG 36, 21 June 1994
Canute v Comcare (2006) 226 CLR 535
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
13 March 2008 Deputy President D G Jarvis,
Senior Member R W Dunne and
Dr J D Campbell, Member1. The applicant, Paul Gallas, has worked as a meat inspector with the Australian Quarantine Inspection Service (AQIS) since 1977. In 1980 he contracted acute Q fever, a disease caused by being infected by an air-borne organism known as Coxiella Burnetii that is commonly passed on by infected animals. Acute Q fever causes various symptoms including fevers, sweating, headaches and muscle and joint pain, and also inflammation of the liver and the lungs.
2. Mr Gallas claimed compensation for Q fever under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the “1971 Act”), and liability was admitted, with a deemed date of injury of 5 October 1980. The parties agreed that Mr Gallas was incapacitated for work from 8 to 24 October 1980, 28 October 1980 to 5 November 1980, and 24 November 1980 to 7 January 1981.
3. At various times since July 1982 Mr Gallas has had recurrences of the symptoms of Q fever. Sometimes his symptoms have been mild, and at other times he has had episodes of severe symptoms which have resulted in incapacity for work. It was accepted that at least since July 1982, Mr Gallas has suffered from post-Q-fever fatigue syndrome, a secondary condition arising from his primary infection in October 1980.
4. In August 2001, Mr Gallas claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”) in respect of a period of incapacity from a recurrence of symptoms earlier that year, entailing seven days off work in February 2001, followed by a further period off work of more than six weeks in April and May 2001 (exhibit A1, T84, page 141). Comcare accepted liability for this claim. The supporting medical certificates referred to a diagnosis of post-Q-fever fatigue syndrome.
5. In 2002 Mr Gallas had a further recurrence of severe symptoms, and was incapacitated from work for about four and a half months. He made a further claim for compensation under the SRC Act, describing his injury as “Reactivation Acute Phase Reaction to Q Fever” (exhibit A1, T93, page 175). Comcare determined that this episode was not a re-infection but a recurrence and that the Q fever disease had re-occurred as the natural progression of the disease, and that therefore his 2002 claim was not a new claim, but a continuation of his previous claim under the 1971 Act.
6. Mr Gallas requested a reconsideration of the determination of his 2002 claim. A review officer subsequently affirmed that decision, and decided that the episode of symptoms resulted from the condition of post-Q-fever syndrome, which was secondary to the Q fever infection for which liability had been accepted with a deemed date of injury of 5 October 1980.
7. When reviewing the rejection of the 2002 claim, the review officer also undertook a review of own motion of the earlier decision in relation to the 2001 claim, pursuant to s 62(1) of the SRC Act. The review officer disagreed with and revoked Comcare’s prior determination of the 2001 claim, and decided instead that:
(a) the condition of Q-fever syndrome for which liability had been accepted by Comcare with date of injury deemed to have been 5 October 1980 was extended to include the secondary condition of post-Q-fever fatigue syndrome; and
(b) the symptoms experienced by Mr Gallas in and around February 2001 and which resulted in incapacity for work and requirement for medical treatment were symptoms associated with the condition of Q fever with the secondary condition of post-Q-fever fatigue syndrome, with date of injury 5 October 1980.
8. The consequence of the above decisions by the review officer was that Mr Gallas’ entitlement to compensation in respect of the episodes of symptoms in 2001 and 2002 was to be determined pursuant to the 1971 Act and not the SRC Act. The 1971 Act was less beneficial to him in certain respects than the SRC Act.
9. Mr Gallas has applied to this tribunal for review of the determinations made by the review officer.
Issues before the Tribunal
10. The issues before the tribunal are:
(a) whether, in or around February 2001, or in or around June 2002, or both, Mr Gallas suffered an injury for the purposes of the SRC Act;
(b) if so, were those injuries a recurrence of the secondary condition of post-Q-fever fatigue syndrome with a deemed date of injury of 5 October 1980 (being a condition that was secondary to the primary Q fever infection, for which liability had previously been accepted by Comcare under the 1971 Act);
(c) alternatively, were the two episodes of symptoms not due to post-Q-fever fatigue syndrome, but to Mr Gallas having been re-exposed to the Coxiella Burnetii organism in the course of his employment, so that he suffered “new” injuries for the purposes of the SRC Act, and was entitled to compensation under that Act;
(d) in the alternative to (c), whether as a result of Mr Gallas’ primary Q fever infection in 1980, there has been a change in his immune response mechanisms so that he has an enhanced susceptibility to episodes of severe symptoms, and whether he is entitled to compensation under the SRC Act even though the trigger(s) that caused the two episodes in issue are unknown.
Background Facts
11. The following findings are based on the evidence of Mr Gallas, whom we found to be a reliable witness. He gave evidence in a careful and matter of fact way, and there is no suggestion that he exaggerated his symptoms.
12. Mr Gallas is aged fifty-seven. Prior to contracting Q fever he had been extremely active playing competitive football during the winter and competitive tennis during the summer. He had sustained some injuries playing football, including a broken ankle, but apart from that he had not experienced any illnesses.
13. He contracted Q fever when he was working predominantly with feral goats at an abattoir at Mount Barker in the Adelaide Hills. His symptoms included fever, night sweats, severe headaches, a general feeling of weakness, nausea and problems with his eyes such as sensitivity to sunlight. He was tested positive for Q fever and put on medication, although this did not reduce his symptoms. Following his return to work he did not resume tennis, but was able to resume competitive football during the following winter, and after that he resumed competitive tennis. He said that he had noticed some reduction in stamina; he attributed this to a combination of the effects of not training, thereby losing fitness and returning to work when he was still recovering. For a time, apart from this reduced level of fitness, he had no further symptoms of Q fever.
14. However, in July 1982, after again working with goat carcasses at the abattoir at Mount Barker, he experienced further symptoms similar to those he had experienced when he contracted Q fever, although they were less severe. He had one week off work.
15. After July 1982 Mr Gallas had various periods of increased symptoms and incapacity for work. His next episode of symptoms resulting in incapacity for work was in July 1983. His subsequent history of symptoms, including episodes of incapacitating symptoms, are set out in detail in his witness statement, exhibit A7.
16. Over the years since July 1982, Mr Gallas has had some periods of minor symptoms, various periods of symptoms sufficiently severe to incapacitate him for work, some episodes of very severe symptoms, and some periods where he has been free of symptoms. For example, there was an episode of severe symptoms in March and April 1986, and an episode of very severe symptoms in 1990, when Mr Gallas collapsed at work and was hospitalised for about a week. He described his symptoms then as the worst he had ever had; his hair went grey and he lost over a stone in weight in a very short period, and he felt extremely lethargic. From 1996 to 2001 he was free of symptoms, and to the best of his recollection he had “returned to (his) pre-injury level of fitness and functioning” (exhibit A7, page 11). He also had a period of good health from 2003 until a minor episode of illness in the second half of 2007.
17. Mr Gallas explained that his work as a meat inspector involved on occasions inspecting animals before slaughter, either in open-air pens (for cattle) or in the case of sheep and goats, under cover. He also inspects carcasses and on occasions excises organs from slaughtered animals and palpitates certain organs, as part of the inspection process. There are different inspection lines for cattle and smaller animals, such as sheep and goats, and he also works in different parts of abattoirs, including the boning room. There is dust in his place of work when he is working outside, and also inside because of the actions of evaporative air-conditioning units and fans. He was not issued with, and does not wear, a face mask.
Medical Evidence
18. Over the years since he contracted Q fever, Mr Gallas was treated by or referred to a number of doctors, including his local GPs, Dr Ian Maddocks, a physician, Dr Mark Awerbuch, a rheumatologist, and Dr David Shaw, a specialist physician in infectious diseases. The T-Documents (exhibit A1) contain copies of various reports and medical certificates from the doctors in question, and they record histories which are consistent with the account given by Mr Gallas of his symptoms over the years.
19. Another doctor who was asked to assess Mr Gallas’ symptoms was Professor BP Marmion. It appears from a report dated 8 August 1988 (to which neither party referred during the hearing) that Professor Marmion was involved in assessing Mr Gallas’ symptoms at about the time of that report, and that he arranged for various pathological tests to be carried out. Professor Marmion has provided a number of other medical reports over the years since that report. In a report dated 24 October 2001 (exhibit A1, T87, page 160) Professor Marmion, after recounting the history of Mr Gallas’ symptoms and subsequent tests at various times, expressed the following opinion:
“All of this is interpreted to mean that as a result of chronic infection [Mr Gallas] has a heightened immune sensitivity to the Q fever organism and that on a fresh or new exposure to the organism (which is inevitable in the abattoir from time to time) he responds to this fresh invasion of the organism by an “acute phase reaction” which is however mostly less severe than that in the original primary infection. The acute phase reaction results from the interaction of the Q fever organism with the heightened CMI state [i.e. cell-mediated immune] which induces a cytokine cascade (cytokines are very potent immunological hormones which produce the general symptoms of fatigue, arthalgia, myalgia, etc. which characterized Paul’s illnesses).”
20. In various subsequent reports, Professor Marmion confirmed his opinion and further explained the basis of it. In a report of 12 December 2005 (exhibit A2) Professor Marmion, after referring to periodic incapacitating episodes of acute symptoms, said:
“… Such intense episodes of illness are “hyper-allergic” or hyper-sensitivity responses of a previously sensitised cellular immune system, in a minority of immuno-genetically disposed individuals, to a re-exposure to the Q fever organism in the environment.
Our clinical trials of the Q fever vaccine in 1981 – 89 involved a much closer contact with abattoir workers and their medical officers than any other group studying Q fever in Australia. This experience led to my conclusion that reports of second, third or repeated attack of “Q fever”, as described by a minority of abattoir workers (such as Paul Gallas) in our 4 study abattoirs were not de novo invasive, blood-stream infections with the coxiella. Rather that they were more likely to be intense cell-mediated immune (CMI) hypersensitivity reactions to a heavy re-exposure to the organism. Such re-exposures may perhaps involve limited replication of the coxiella at the portal of entry for the organism via the lung, but in essence are reactions to antigen rather than a generalised systemic invasion of the body by the coxiella, as in a primary acute attack.” (exhibit A2, page 2).
21. In the course of considering Mr Gallas’ claim for compensation, Comcare sought an opinion from Professor Andrew Lloyd, a consultant infectious diseases physician. Professor Lloyd expressed the view that it was more likely than not that the symptoms experienced by Mr Gallas in June 2002 were directly attributable to the Q fever infection acquired initially in 1980, and to an episodic post-Q-fever fatigue syndrome relating specifically to that original infection, rather than a new infection, by which he meant a re-infection with Coxiella Burnetii, the causative agent of Q fever. Professor Lloyd pointed out that many other infections and some non-infective conditions may cause identical symptoms to those caused by acute Q fever and the secondary disease of post-Q-fever fatigue syndrome.
22. We arranged for Professors Marmion and Lloyd to give evidence concurrently. Both doctors accepted that Mr Gallas had been infected with primary Q fever in 1980, and that from 1982 onwards he had suffered from post-Q-fever fatigue syndrome, and that this had given rise to symptoms since then. Both doctors agreed that generally, a primary attack of Q fever confers immunity to a second attack of acute primary Q fever on subsequent exposure to the Coxiella organism. Further, they agreed that the periodic acute episodes of symptoms from which Mr Gallas has suffered on a number of occasions since the primary infection in 1980 are not invasive infections of the same nature as the primary Q fever infection that occurred in 1980. However, Professors Marmion and Lloyd differed in their views as to the probable cause of the periodic acute episodes of symptoms.
Legislative Scheme
23. Mr Gallas was infected with Q fever when the 1971 Act was in force. However, by virtue of s 124(1) of the SRC Act, that Act applies (subject to certain qualifications not relevant to the present matter) in relation to “an injury, loss or damage suffered by an employee, whether before or after the commencing day”. The commencing day was 1 December 1988. The claims for compensation are based on circumstances that pre-date the amendments to the SRC Act in 2007, and the following references of the relevant provisions reflect the provisions of the SRC Act prior to those amendments.
24. Section 14(1) of the SRC Act provides for compensation for injuries, and provides as follows:
“14(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.”
25. Section 4(1) of the SRC Act defines “injury” to include “a disease suffered by an employee”. The expression “disease” is defined as follows:
“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.”
26. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
27. The expression “aggravation” is defined in s 4(1) to include “acceleration or recurrence”.
Consideration
28. Counsel for Comcare, Mr Dubé, referred to the conflict of medical evidence as to the cause of the two episodes of severe symptoms on which Mr Gallas’ claim is based, and submitted that we should find that the two episodes did not constitute fresh injuries for the purposes of the SRC Act, but were merely recurrences of the continuing post-Q-fever fatigue syndrome, liability for which Comcare had accepted under the 1971 Act. He submitted that the issue that has arisen in relation to each episode gives rise to a question of fact, and he referred to the analysis by Lee J of a similar issue in Australian Postal Corporation v Nadge (1994) WAG 36, 21 June 1994.
Did the episodes of acute symptoms suffered by the applicant in 2001 and 2002 constitute injuries?
29. It is first necessary to consider whether the periods of intense symptoms in 2001 and 2002 constituted an “injury” for the purposes of s 14 of the SRC Act. The High Court of Australia said in Canute v Comcare (2006) 226 CLR 535 at [8] that the concept of an “injury” is a term of pivotal importance in the structure of the SRC Act. In the present matter, the term is central to determining whether, by virtue of ss 124(1) and 14(1) of the SRC Act, Comcare is liable for compensation under that Act for the claims made in respect of the two periods in question. The High Court in Canute further pointed out, at [10], that the term “injury” is not used in the SRC Act in the sense of “workplace accident”, but is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body.
30. Counsel for Mr Gallas, Mr Cole, contended that the 2001 and 2002 episodes constituted “new” injuries or an aggravation of the pre-existing post-Q-fever fatigue syndrome. He relied upon the evidence of Professor Marmion to the effect that re-exposure to Coxiella had produced the acute immune hypersensitivity reactions to which he referred in his report.
31. As mentioned above, the word “injury” in the SRC Act is defined to include a disease. The definition of “disease” is couched in broad terms, having regard to the width of the definition of its first component, namely “ailment”. The definition of “ailment” includes any disorder. The word “disorder” is not defined, but according to the Macquarie Dictionary (Revised 3rd Edition) the relevant meaning of that word is “a derangement of physical or mental health or function”. The definition of “ailment” in the SRC Act also includes the word “ailment” itself, and so the word “ailment” in the Act must be given its ordinary English meaning. According to the same dictionary, the meaning of “ailment” includes “a morbid affection of the body or mind; indisposition.” The word “morbid” is defined in the dictionary to include “affected by, proceeding from, or characteristic of disease”. The meaning of the word “indisposition” is defined to include “the state of being indisposed; a slight illness.”
32. The episodes of acute symptoms which Mr Gallas experienced in 2001 and 2002 were distressing, and resulted in incapacity for work. Having regard to the width of the definition of “ailment” we consider that those episodes of severe symptoms each constituted an indisposition, and so an “ailment” for the purposes of paragraph (a) of the definition of “disease” in s 4(1) of the SRC Act.
33. Further, on Professor Marmion’s evidence (which we accept in preference to that of Professor Lloyd, as mentioned below) the episodes entailed an acute phase reaction that induced a cytokine cascade. This reaction would in our view constitute a “disorder”, and on that basis also, an “ailment” for the purposes of the SRC Act definition of “disease”.
34. For the sake of completeness, we have also considered whether each of the episodes in question constituted an “aggravation” of an ailment within the meaning of paragraph (b) of the definition of “disease” in the SRC Act. Aggravation connotes a pre-existing or underlying disease becoming worse : see Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 405, where Hill J examined a number of authorities dealing with the meaning of the words “aggravation” and “acceleration”.
35. It has been held that increased pain may constitute an aggravation: see Tippett v Australian Postal Corporation (1998) 27 AAR 40, where Finkelstein J said, at 44 (omitting references):
“Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury … .”
36. We note that a different view was expressed by Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508 where he said, at [10], that a “permanent underlying change” was required in order for there to be an aggravation. However, his Honour did not refer to Tippett (supra), and we prefer with respect the views of Finkelstein J in that case, as that view is supported by the approach of the Full Federal Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179 – 180, where Davies, Sheppard and Ryan JJ said, at 180:
“It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.”
37. On the above analysis we consider that each of the two episodes of severe symptoms also constituted an aggravation of an ailment, namely the pre-existing post-Q-fever fatigue syndrome, for the purposes of paragraph (b) of the definition of “disease” in s 4(1) of the SRC Act.
Was the ailment or aggravation contributed to in a material degree by the applicant’s employment?
38. The final element of the definition of “disease” is the requirement that the ailment or aggravation must be “contributed to in a material degree by the employee’s employment”. The primary argument made on behalf of Mr Gallas was that we should prefer the opinion of Professor Marmion to that of Professor Lloyd, and find that the acute episodes of symptoms in 2001 and 2002 were contributed to in a material degree by Mr Gallas’ employment, because they resulted from a re-exposure in the workplace to the Coxiella organism, and not (as Professor Lloyd considered) from the inherent symptomatology of the post-Q-fever fatigue syndrome.
39. As against this, Mr Dubé asked us to prefer Professor Lloyd’s opinion, and contended that Professor Marmion’s explanation for the episodic increases in symptoms was in the realm of scientific debate, and that whilst re-exposure to Coxiella was a possible explanation for the relevant episodes, we should not be satisfied on the balance of probabilities that that was the cause of the episodes.
40. We have carefully reviewed the competing views expressed by Professors Marmion and Lloyd. We prefer the evidence of Professor Marmion for a number of reasons.
41. In determining the cause of the episodes of severe symptoms in 2001 and 2002, we must take into account the particular facts relating to Mr Gallas’ condition following his original infection in 1980, including the episodic severe symptoms, the lack of evidence of the cause of those episodic severe symptoms, and the likelihood of periodic re-exposure to Coxiella at his place of employment. A number of articles from various medical journals were tendered on behalf of the applicant. Some of these are referred to in the medical reports exchanged prior to the hearing, or were referred to in evidence. The articles provided some basis for the opinions expressed by Professor Marmion, but we did not find them particularly helpful, and they are not determinative of the issues that have arisen. In order to decide the present proceedings it is not necessary for us to determine the competing scientific theories that were referred to by each side, but rather we should decide on the basis of the evidence before us whether the episodes of severe symptoms suffered by Mr Gallas in 2001 and 2002 were contributed to in a material degree by his employment.
42. We make the general comment that Professor Lloyd appears to have focussed on the outcome of various studies and reports that refer to the absence of scientific proof to support Professor Marmion’s approach. However, Professor Marmion makes it clear that his explanation of Mr Gallas’ symptoms would apply only to a minority of immuno-genetically disposed individuals who are re-exposed to the Q fever organism (see exhibit A2, page 2, and his reference to the “subject-specific (‘idiosyncratic’) factor” in Appendix 3 to his subsequent report of 31 July 2007, being exhibit A3(b)). The importance of considering the specific issues raised in the proceedings is apparent from dicta of King CJ in State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31 at [33], where he referred to statistical evidence, and said:
“… I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual. The fact that most people with a blood alcohol level of 0.15 per cent are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable.”
43. On some (but not by any means, all) of the occasions when Mr Gallas suffered from severe episodes of symptoms a number of tests were taken in an endeavour to determine the cause of his symptoms, but Professor Marmion explained that there was no easy serological test to indicate the “booster” effect of re-exposure to Coxiella (exhibit A1, page 238). Further, whilst he conceded that it was not possible to test for every potential alternative cause of his symptoms, he pointed out that the various tests for other unrelated infections were negative. But in his opinion, there was an obvious potential cause of his symptoms, and that was the likelihood of re-exposure to the Q fever organism because of the work Mr Gallas was undertaking. In the absence of some other explanation he thought it reasonable to conclude that re-exposure to Coxiella was the probable cause of his intense episodes of symptoms. We think that there is force in this reasoning, which of course takes into account Mr Gallas’ particular circumstances and history.
44. Professor Marmion also supported his opinion by reference to the case history of a female abattoir worker in a Victorian abattoir who after an initial infection had a very severe episode of symptoms on being re-exposed to the Q fever antigen. He also referred to the history of a large number of people in Birmingham, England, who were exposed only on one occasion to the Q fever organism; he made the point that although a number of those people had post-Q-fever fatigue syndrome, the pattern of their symptoms did not entail the fluctuations of symptoms experienced by Mr Gallas, who continued to work in abattoirs where he was likely to be re-exposed to Coxiella Burnetii and on occasions had episodes of very severe symptoms. Professor Marmion also referred to cases of the inadvertent vaccination of some abattoir workers whose skin tests indicated that they had been immune from Q fever. He refers to these matters in exhibits A3(b) and A6.
45. We are mindful that Professor Lloyd said that he had treated patients who did have markedly fluctuating symptoms following Q fever infections, but (perhaps through a misunderstanding, which we find somewhat surprising) he did not provide details of cases which supported his claims.
46. Whilst both professors are eminent specialists, Professor Marmion appears to have greater experience in the specialised study of Q fever and its consequences, and we refer to the curricula vitae of the two doctors which are to be found, in the case of Professor Marmion, as an attachment to exhibit A3(b), and in the case of Professor Lloyd, as an attachment to exhibit R3(b).
47. We add that we do not think that Professor Marmion’s explanation should be rejected because a number of Mr Gallas’ episodic acute symptoms did not correspond with other reported outbreaks of Q fever, or conversely, because there were reported outbreaks of Q fever in other abattoir workers but Mr Gallas did not suffer an episode of severe symptoms at the time of those outbreaks. There are insufficient records to indicate the part of the abattoir where Mr Gallas was working at the time of various outbreaks, and there is no satisfactory evidence before us as to the risks and extent of re-exposure to Coxiella as far as he was concerned. Further, Professor Marmion pointed out that from about 1990 onwards, abattoir workers were immunised against Q fever, so that their number of non-immune workers was substantially reduced. As against this, on Professor Marmion’s assessment, which we accept, Mr Gallas was one of a minority of persons who were liable to be adversely affected by re-exposure to Coxiella.
Is the applicant entitled to compensation by reason of increased susceptibility to acute symptoms from dysfunction of his immune system?
48. In case we are incorrect in preferring Professor Marmion’s opinion, we will consider whether Mr Gallas had been rendered susceptible to episodic acute symptoms resulting from dysfunction of his immune system, and whether the episodes of severe symptoms in 2001 and 2002 constituted “new” injuries and were compensable under the SRC Act.
49. In order to consider this alternative, it is necessary to refer again to the evidence of Professor Lloyd. In the course of his evidence he said that he thought there were three hypotheses that applied in Mr Gallas’ case. The first hypothesis (as modified by him during his evidence) was that the various episodes of severe symptoms were the result of underlying post-Q-fever fatigue syndrome being made worse by “triggers” which were unknown, but which might include such matters as stress or other psychological difficulties, excessive exercise or sleep disorder. The second hypothesis was that Mr Gallas had suffered from some other infection or infections which produced the symptoms that he described, which symptoms were (as we have said above) common to the symptomatology arising from a large number of other infectious diseases. The third hypothesis was that advanced by Professor Marmion.
50. Professor Lloyd thought that the first hypothesis was more probable than the second, and he rejected the third hypothesis for reasons that he explained in his various reports and in evidence. It appears from the historical evidence in the T-Documents (exhibit A1) that at the time of certain of the earlier episodes of acute symptoms Mr Gallas had undergone various serological tests. It was accepted that it was not feasible to test for every new infection that might have caused those episodes of symptoms, but the tests that were undertaken did not indicate that Mr Gallas was at the relevant times suffering from any new infection unrelated to post-Q-fever fatigue syndrome.
51. If the issue in the present matter is approached on the basis of Professor Lloyd’s first hypothesis, it is necessary, once again, to decide whether each episode of severe symptoms constitutes an “injury” within the meaning of ss 124(1) and 14(1) of the SRC Act. We have already found that this was the case for the reasons referred to above.
52. On Professor Lloyd’s first hypothesis, the “triggers” for the episodic acute symptoms were unknown. Mr Gallas did not have any recurrent episodes of Q-fever-like symptoms prior to contracting Q fever in 1980. However, after that he has continued to suffer from Q-fever fatigue syndrome entailing episodic severe symptoms. We infer from this, and from the final paragraph of Professor Lloyd’s report of 21 September 2006 (exhibit R1), that on Professor Lloyd’s first hypothesis, Mr Gallas has been left with increased susceptibility to recurring episodes of severe symptoms. Whilst (according to Professor Lloyd’s first hypothesis) there was no proof that the “triggers” causing these episodes were related to Mr Gallas’ employment, the increased susceptibility was the result of the original Q fever infection, which was in turn caused by Mr Gallas’ employment. On that basis, and even if we had accepted Professor Lloyd’s opinion and had applied his first hypothesis, it would follow that the episodes of increased symptoms in 2001 and 2002 were contributed to in a material degree by Mr Gallas’ employment.
53. For the sake of completeness, we add that if Professor Lloyd’s second hypothesis applied (that is, that there had been evidence of the actual cause of either of the two episodes in question and of the relative significance of that cause) then it would have been necessary for us to have considered whether in those circumstances Mr Gallas’ employment had made a material contribution to his condition, or whether the intervening cause had broken the chain of causation (see the analysis of Lee J in Nadge (supra)). However, there was no evidence before us of the nature or extent of any such intervening cause(s), and we find that Mr Gallas’ symptoms cannot be explained by reference to Professor Lloyd’s second hypothesis.
Decision
54. The tribunal sets aside the decisions under review, and in place of those decisions, decides that the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injuries which he sustained in 2001 and 2002 for which he has claimed compensation.
I certify that the 54 preceding paragraphs are
a true copy of the reasons for the decision herein of
Deputy President D G Jarvis, Senior Member R W Dunne
and Dr J D CampbellSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 8 and 9 January 2008
Date of Decision 13 March 2008
Counsel for the Applicant Mr S Cole
Solicitor for the Applicant Duncan Basheer Hannon
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Sparke Helmore
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