Gully and Military Rehabilitation and Compensation Commission
[2005] AATA 50
•18 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 50
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/1198
) N2003/1199
GENERAL ADMINISTRATIVE DIVISION ) N2004/1274 Re JULIE GULLY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal P J Lindsay, Senior Member
Dr J D Campbell, MemberDate18 January 2005
PlaceSydney
Decision The Tribunal decides as follows:
(a) The decision in N2003/1198 is affirmed; and
(b) The decisions in N2003/1199 and N2004/1274 are both set aside and in substitution thereof determine that the Respondent is liable to pay compensation pursuant to section 14 of the Act in respect of the Applicant’s chronic fatigue syndrome and depressive disorder with the date of aggravation of the chronic fatigue syndrome being July 1999 and the date of the depressive disorder being September 1999, with clinical worsening (aggravation) January 2000.
(c) The Applicant is entitled to costs pursuant to the Tribunal’s Practice Directions in relation to matters N2003/1199 and N2004/1274.
[Sgd] P J Lindsay
Senior Member
CATCHWORDS
WORKER’S COMPENSATION - nature and conditions of employment - aggravation of chronic fatigue syndrome - causation/aggravation of depressive disorder.
Safety Rehabilitation and Compensation Act 1988, sections 4, 14
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
REASONS FOR DECISION
18 January 2005 P J Lindsay, Senior Member
Dr J D Campbell, Member1. Julie Gully (“the Applicant”) has made three applications to the Administrative Appeals Tribunal in respect to decisions by the Respondent, the Military Rehabilitation and Compensation Commission (or a predecessor body):
·N2003/1198 concerns a reviewable decision made on 15 November 2001 denying Mrs Gully’s claim for compensation for post-viral chronic fatigue syndrome.
·2003/1199 concerns a reviewable decision made on 24 January 2003 denying Mrs Gully’s claim for compensation for anxiety, depression and aggravation of chronic fatigue syndrome.
·N2004/1274 concerns a reviewable decision made on 22 September 2004 denying a claim for compensation for anxiety and depression secondary to chronic fatigue syndrome, said to be in response to her employer’s failure to provide suitable duties and adequately respond to her diagnosed illness of viral pericarditis and chronic fatigue syndrome.
background
2. Mrs Gully is 42 years old, married with four children. She enlisted in the Australian Army on 30 May 1995. She was medically discharged from the Army on 30 July 2000 as unfit due to the following medical conditions: chronic fatigue syndrome, depression and morbid obesity (pursuant to documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975). At the time of discharge Mrs Gully was a private.
3. On 18 March 1998 Ms Gully had redo venous surgery to the right leg – surgery for bilateral varicose veins having been undertaken some three years prior to enlistment. On 23 April 1998 Mrs Gully had redo venous surgery to the left leg. On 3 May 1998 Mrs Gully presented to 1st Field Hospital (1 Fd Hosp) complaining of pains in the chest, central chest pain and shortness of breath. Mrs Gully was transferred to Liverpool Hospital (T39, p129). Mrs Gully was hospitalised at Liverpool Hospital, a diagnosis of pulmonary embolus was excluded with a diagnosis made of acute viral illness. Electrocardiography during her admission demonstrated isolated T wave inversion in lead III. Mrs Gully was returned to 1 Fd Hosp on 7 May 1998 and discharged from that unit on sick leave with bed rest on 7 May 1998 with review at The School of Military Engineering (SME) at the Regimental Aid Post (RAP) (T39, p131).
4. On 11 May 1998 Mrs Gully’s condition was reviewed by Dr Elder at the RAP at SME. Clinical notes recorded at that time note “patient says viral pericarditis, but no documents. Complained of “tired and retrosternal pain”. Light duties one week”. (T39, p132). Mrs Gully was further reviewed by the operating surgeon on 4 June 1998, who noted in the records that she had recovered from viral pericarditis and that she had excellent results from the surgery (T39, p132).
5. On 17 June 1998 Mrs Gully presented at the RAP at SME complaining of central chest pain, with subsequent examination and electrocardiograph (ECG) being recorded as showing no change. Mrs Gully was excused from duty for the day (T39, p133). On 27 July 1998 Mrs Gully was classified class one at a medical board examination (T39, p10). On 2 August 1998 Mrs Gully attended a Women’s Health Clinic and was seen by Dr Giles (T39, p134).
6. On 28 June 1999 Mrs Gully presented at the RAP at SME complaining of flu symptoms and palpitations for the past week. Following examination and assessment, she was referred to Dr Hooper, Consultant Physician for further assessment (T39, p134/135). Ambulatory electrocardiography undertaken at Liverpool Hospital on 7 July 1999 demonstrated frequent ventricular ectopics (T39, p142). A review by Dr Hooper on 13 July 1999 reported no new findings other than a soft systolic murmur with Mrs Gully to remain off work until echocardiogram completed (T39, p148). A review at the RAP at SME on 20 July 1999 noted that Mrs Gully had developed twitches in her right eye, left face and left deltoid, that she feels tired and has an erratic heart beat (T39, p150).
7. Mrs Gully was reviewed on 10 September 1999 by Dr Plummer who records Mrs Gully as having longstanding problems with viral illness, with all tests being negative except the demonstration of ventricular ectopics on ECG. Dr Plummer records Mrs Gully as being anxious and depressed (T39, p154). On 14 September 1999 Dr Hooper concluded that the most likely diagnosis in this matter is chronic fatigue syndrome (T39, p155). Mrs Gully was referred to a psychologist on 1 October 1999 to assist with therapy for depression (T39, p158). On 7 October 1999 Mrs Gully as a consequence of a medical board examination, was classified class 4, with disabilities of cardiac sequelae of viral pericarditis and chronic fatigue syndrome with depression (T39, p160).
8. On 26 October 1999, Dr Hooper reported that Mrs Gully’s serology was consistent with past cytomegalic and Ebstein-Barr viral infections and that he considered the diagnosis to be chronic fatigue syndrome. Dr Hooper recommended that Mrs Gully undertake a programme of regular exercise at her own pace; that resolution would occur, but duration uncertain and that anti-depressants may be helpful (T39, p162).
9. A further medical board examination was undertaken on 10 November 1999, in which it is noted that Mrs Gully has at this stage not been seen by a psychiatrist (T39, p163).
10. On 28 January 2000 the RAP notes record Captain Hampton’s concerns regarding Mrs Gully’s safety at work and transit to and from work, because of drowsiness. It is further noted that Mrs Gully had returned to work one week earlier following a three month period of leave. It was further noted that Mrs Gully was unable to handle work for half a day (T39, p165). On 1 February 2000 Dr Giles records Mrs Gully as experiencing chronic fatigue syndrome since April 1998, that exacerbation of fatigue was present with Mrs Gully requiring two rests per day, and that she was experiencing difficulty with driving because of drowsiness from anti- depressants (T39, p165).
11. A medical board examination on 16 February 2000 records that Mrs Gully has been seen by Dr Taylor, a Consultant Psychiatrist, who considers Mrs Gully to be suffering from major depression (T39, p166). Dr Hooper referred Mrs Gully to Professor Walls who concurred with the diagnosis of chronic fatigue syndrome (T39, p168), p172). Mrs Gully was the subject of a final medical board examination on 17 July 2000, in which the examining doctor, Dr Grace described the disabilities of depression and chronic fatigue syndrome as having occurred during service, were not attributable to service, but had been aggravated by conditions of service (T39, p179).
12. Mrs Gully lodged a claim for compensation on 12 October 1999 in which she alleged she suffered chronic post-viral fatigue syndrome affecting her heart, nervous system, lymph glands, muscles and intellectual functions. Liability was denied on 24 July 2000, with further claims for compensation lodged by Mrs Gully as detailed earlier in this decision.
issues
13. The relevant issues to be considered in this matter are:
a)From what diseases and/or injuries does Mrs Gully suffer relevant to the claim for compensation, and when did the clinical onset of such diseases occur?; and
b)Whether such diseases were caused by service and/or aggravated by the nature and conditions of employment?
decision
14. For the reasons detailed later in this decision, we make the following findings:
a)That Mrs Gully suffers from chronic fatigue syndrome with the clinical process commencing with a viral infection suffered by Ms Gully in May 1998; and
b)That Mrs Gully suffers from a depressive disorder with clinical onset noted by Dr Plummer in September 1999; and
c)That the disease of chronic fatigue syndrome was not caused by Mrs Gully’s employment, but was aggravated by the nature and conditions of her employment; and
d)That the depressive disorder was materially contributed to by Mrs Gully’s employment, and was aggravated by the nature and conditions of her employment; and
e)That Mrs Gully continues to experience symptoms as a consequence of the ongoing disease processes.
evidence of mrs gully
15. Mrs Gully detailed the following evidence:
a)Enlisted Australian Army in May 1995, and worked in the Army in Darwin in the administrative/clerical field. Transferred with her family to Moorebank in December 1996 and worked at SME, undertaking clerical and administrative work. Mrs Gully found her work demanding but enjoyable. As part of her employment Mrs Gully stated that she had to undertake physical training activities from 0715 to 0900 hours three days a week, plus sporting activities on Thursday afternoons. Such activities included doing obstacle courses in full military gear, carrying thick ropes in teams, abseiling, climbing and other activities.
b)In December 1998 she received a medal for exemplary service during the period December 1996 to December 1998, presented to her by the outgoing commanding officer.
c)That she underwent bilateral varicose vein surgery in 1990 with initially good recovery. Referred to Dr Crozier in February 1998 because of further symptoms from varicose veins in both legs. Underwent redo venous surgery on right leg on 18 March 1998 with a good result. Underwent redo venous surgery on left leg on 22 April 1998. Experienced a sore throat on 24 April 1998 and at time of discharge on 24 April 1998 was feeling unwell, experiencing both a fever and a sore throat. Stated that symptoms continued up to the time of her presentation to 1 Fd Hospital on 3 April 1998. Transferred to Liverpool Hospital where she remained until 7 May 1998. Discharged 1 Fd Hosp on 7 May 1998 and returned for review to the RAP at SME on 11 May 1998.
d)On 11 May 1998 saw Dr Elder at SME who returned her to full duties apart from physical activity for one week. After one week physical training activities were to be undertaken at own pace for a further week, which she believed was certified. After that she continued doing physical training activities at her own pace, as her supervisors allowed her to so do.
e)On 4 June 1998 she saw Dr Crozier and told him that her veins were as he would have expected and that she had no obvious heart problems. At this time she noted the continuance of fatigue which had been present since the operation, associated with shortness of breath on exertion, which had continued since the viral illness in May 1998.
f)On 17 June 1998 she consulted Dr Shaba at 1 Fd Hosp because of chest pain and was excused from duty for the day. Around this time she also noted that she began to experience twitching of muscles every few days. She also noted that she was working very hard at this time, was feeling fatigued and having difficulty in coping. She indicated that her fatigue got progressively worse and her supervisor, Capt Hampton, allowed her to do work half days. She also noted that her immediate supervisor became ill in July 1998 and was not replaced until later in 1998, after absence of some months.
g)That up to January 1999 she coped, albeit with increasing difficulty. This involved a minimum of physical training activity, which in essence involved some organised walking, but even with this she felt fatigued.
h)That with the arrival of a new Commanding Officer in January 1999, a change of policy determined that everybody in the unit would do physical training unless they had a certificate from the medical officer. Further she noted the imposition of increased work loads.
i)That when undertaking physical exercise as instructed she noted that her muscles ached after such activity, and that she was not coping particularly well. She stated that she saw Dr Elder only occasionally and that any request for exemption from physical activity, which she made every couple of months, was denied.
j)During 1999 she noted that her muscle twitching was more severe, her glands were up, she experienced sore muscles and heart palpitations, as well as extreme tiredness and an irregular heart beat.
k)She presented to the RAP at SME on 28 June 1999 with the sudden onset of an irregular heartbeat. She was referred to Dr Hooper at 1Fd Hospital, where she was admitted and upon discharge remained on sick leave until the end of July 1999. A return to work occurred but only for a short time prior to a further series of medical tests organised by Dr Hooper. In January 2000 she returned to work, having been off work since November 1999.
l)On return to work in January 2000, she was feeling fatigued and depressed, the latter being a consequence of not being able to get any help from Dr Elder by way of a diagnosis of her condition and a certificate to exempt her from physical exercise.
m)In early 2000 a Major Jolly made arrangements for her to see Dr Giles at 1 Fd Hosp. She understands that as a result of this consultation, Dr Giles recommended her discharge from the service. Later she saw Dr Elder who gave her a reprimand in that she had basically broken the rules in asking to see another doctor, and that she had no right to see another doctor. She was also given a copy of a minute dated 25 June 1999 signed by Lt Colonel D W Keating, and after reading it she felt devastated. Further, she stated that Dr Elder stated that her seeing another doctor would not be tolerated and that he did go and speak to her commanding officer.
n)That notice of intention to discharge was issued on 18 April 2000, with the discharge taking effect on 30 July 2000.
o)That since discharge she has been unable to work, as she is unable to concentrate properly, unable to do much around the home, feels really bad on some days and gets very tired. She is currently receiving care from Dr Haig, a Consultant Psychiatrist, and is taking Aurorix for her depression, which she believes arises from the way she has been left.
16. In cross-examination Mrs Gully detailed the following:
a) That she feels debilitated and depressed as a consequence of the chronic fatigue syndrome; that the level of debilitation and depression varies from time to time; that she is concerned about her claim for compensation;
b) That the whole of the letter by Lt Colonel Keating upset her, but when presented with each element of the letter to comment upon she agreed that she never suggested that Dr Elder was either negligent or guilty of some kind of malpractice nor had she said to him that she had no confidence in him. However, she believed it was unreasonable not to be permitted to go elsewhere when the advice received was not to her liking – and further this was the case in her patient relationship with Dr Elder. Further she made no official complaint against Dr Elder, nor did she indicate to anyone that she was displeased with a consultation with Dr Elder, because she felt intimidated by Dr Elder and that he had told her he was a medical officer and that had a rank of Lieutenant Colonel, and that she had no right to see another doctor.
c) That her reason for wanting to see another doctor, namely Dr Giles, was that she was not satisfied with the way Dr Elder was responding to her complaints, and that Dr Giles would be of more assistance in dealing with her complaints. She also felt intimidated by Dr Elder.
d) That she had seen Dr Elder on 11 May 1998, Dr Bryant on 20 July 1999, Dr Hooper on 14 September 1996 at which time he gave a preliminary diagnosis of chronic fatigue syndrome, Dr Elder on 17 September 199 at which she was referred to a psychologist, who she consulted on 5 November 1999. After the consultation she was referred by Dr Elder to a psychiatrist, Dr Taylor, and given a certificate excusing her from duty for four days. In relation to Dr Elder Mrs Gully stated that Dr Elder was intimidating, he would not listen to her and he did not physically examine her.
e) That she next consulted Dr Elder in January 2000, at which time she was referred to Dr Taylor (psychiatrist), Dr Hooper (physician) and Dr Giles, under whose care she would have preferred to be and a preference which she told Dr Elder at the time she was given the Minute of Lt Colonel Keating by Dr Elder on 3 February 2000. As a consequence of this exchange she stated that Dr Elder became very angry and threatened to charge her, the threat to charge being told to her by Capt Hampton. Despite particular questioning relating to feelings of intimidation in 1999, not being relevant to issues occurring in February 2000, Mrs Gully said that she was intimidated by other things in 1999, facts about which she was unable to remember with some certainty.
f) That she saw Dr Cassir on 29 September 1999, and that a medical board on 9 October 1999 exempted her from physical training. Further, she denied that she had been untruthful or exaggerated what Dr Elder had said to her.
g) That she saw Professor Dwyer in January 2001, at which time she complained of problems with concentration, short term memory and sleep, together with depression. She admitted that she was unable to inform Professor Dwyer of any particular incidents which caused her stress during service.
h) That when she saw Dr Stevenson she did not make any complain about any matter which contributed to the way she was feeling apart from the chronic fatigue disorder.
17. In response to questions asked by the Tribunal Mrs Gully stated:
a)That her work in the Army was essentially clerical;
b)That she became concerned about Dr Elder’s attitude to her at the time of the first consultation in May 1998 – the problem being his decision to send her back to work;
c)That she did not see a doctor from late June 1998 until late June 1999, because her boss gave her time off and helped her cope and it would have been inconvenient to go to 1 Fd Hosp as doctors were not available at SME;
d)That her condition between release from hospital in May 1998 and November 1999 when she went on leave remained roughly the same, apart from a worsening of the condition in July 1999;
e)That her condition of chronic fatigue syndrome was worsened by the failure of army medical officers (Dr Elder) to grant her restrictions which would have excused her from physical training, physical training assessments, overnight duties as well as having to undertake the work of two people when her immediate supervisor became ill. Mrs Gully stated that her work requirements continued up to the time her palpitations got worse in late June 1999, and she coped basically because the people with whom she worked were looking after her.
18. In a letter to Professor Dwyer dated 15 March 2001 (Exhibit A9) Mrs Gully stated that she failed her combat fitness assessment on 16 April 1999 due to exhaustion and was unable to walk properly and was in a lot of pain for several days afterwards. Mrs Gully again fully detailed the circumstances surrounding her experiences as she perceived them to be from May 1998 onwards.
19. In a further statement dated 22 October 2003 (T5 N2003/1198) Mrs Gully stated that:
“My troubles began after having to return to duty after suffering from pericarditis. I was exhausted and less able to participate in any physical activity. This disturbed me as I had been so fit prior to my illness.
I never really got much better after that. I was easily fatigued and began to have trouble remembering details. In the first few weeks after returning to work I experienced muscle soreness and a range of other bodily symptoms. I delegated my household duties to my husband and my children.”
major hampton
20. In oral evidence Major Hampton detailed the following:
a)In 1998 he was, as a captain at SME, Mrs Gully’s direct supervisor, and that in the period 1996 to 1998 Mrs Gully’s performance was outstanding, so much so that he recommended her for a soldier’s medallion, which was awarded in 1998;
b)That following Mrs Gully’s return to work after hospitalisation in May 1998 he observed that she had lost quite a bit of fitness and that she continued to do physical training at her own pace for the remainder of 1998. Towards the end of 1998 he observed a difference in her work performance and that she was continually tired, nervous and upset;
c)That he became aware that Mrs Gully had been disciplined by her doctor when Mrs Gully informed him of the event;
d)That when Mrs Gully first came out of hospital in May 1998 she was fine and after that over the whole time period her performance and her ability to perform her work went backwards;
e)That in late 1998 early 1999, which he later admitted in cross-examination may well have been late 1999/early 2000 he was much concerned over Mrs Gully’s health and safety in the work place and the responsibility placed on him to make what he believed to be decisions as to Mrs Gully’s competence to remain at work. He did discuss the issue with his supervisor, Major Jolly and in particular raised the issue of having to make judgements, which he believed should have been managed in the medical side of the house. Such decisions seemed to encompass whether she was fit to remain at work and/or whether she was fit to drive herself home. He was unable to remember any requests by Mrs Gully to be relived of guard duty or asked to be sent home.
medical evidence
dr haig – consultant psychiatrist
21. In a medical report dated 20 December 2000 (T26 N2003/1178), Dr Haig detailed Mrs Gully’s clinical history and concluded that Mrs Gully was suffering from a dysthymic disorder as evidenced by moderately severe feelings of depression most days, significant problems in concentration and sustained activity either mental or physical. Dr Haig considered that this disorder, which was secondary to a chronic fatigue syndrome, has been partially treated. Dr Haig also concluded that Mrs Gully was unfit to perform duties as either a clerk or child care worker, and that this situation was unlikely to improve significantly in the next two to five years.
22. In a further report dated 13 November 2003 (Exhibit A3) Dr Haig, having detailed an updated history consequent upon multiple consultations as the treating psychiatrist, concluded that the dysthymic disorder has developed as a result of the chronic fatigue, but has been significantly exacerbated by limited support, expectations by her employer or advisers of her performing an active work schedule at a time when she was physically comprised, fatigued and experiencing palpitations during her employment by the Army. Dr Haig further confirmed his opinion in a report dated 18 October 2004 (Exhibit A8) and in oral evidence before the Tribunal, albeit with some reservations.
23. In oral evidence Dr Haig addressed the issue of the two syndromes with the underlying pathology being closely related, with the chronic fatigue syndrome frequently associated with depressive symptoms. Further, in using the term reactive depression in this matter, the dysthymic disorder was a reaction to both the chronic fatigue syndrome and the manner in which she was treated, particularly with her fatigue symptoms not really being adequately addressed. Dr Haig also commented that adequate treatment of the underlying depression seems to assist in improving the symptoms of chronic fatigue syndrome, while it is very difficult to understand what the underlying pathology of chronic fatigue syndrome is. Dr Haig, while noting that it was very difficult to sort the resulting impairment of dysthymic disorder into causation (chronic fatigue syndrome) and reaction to the work events, concluded that the work related component was a significant component of the resulting impairment. Further Dr Haig adhered to his opinion when presented with a history that Mrs Gully returned to an active work schedule in the latter half of 1998 less the compulsion to undertake physical training, with the compulsion to undertake the physical training from January 1999 being an added stressor which would have probably compromised her further or highlighted her chronic fatigue.
24. Dr Haig, in cross-examination, stated that he did not elicit from Mrs Gully during his first interview on 20 December 2000 that there were any problems at her work following her return in May 1998 until June 1999. Despite this, Dr Haig agreed that she started to feel depressed as a result of the development of symptoms post June 1999, with the depression arising as a consequence of such physical symptoms derived from the chronic fatigue syndrome. Dr Haig noted that these depressive symptoms received some limited relief by treatment with Cipamil and Zoloft.
25. Dr Haig concluded that there had been little change in Mrs Gully’s level of depression since he first saw her on 20 December 2000 – with an anxiety and depression rating score of 19 at that time, a score of 21 when seen in 2003 and a score of 18 when seen in September 2004.
26. Dr Haig also acknowledged that there was a difference between Mrs Gully being forced to work in the period late June 1998 to late June 1999 and choosing to work with supportive colleagues, with an opportunity to visit a doctor at a nearby hospital without encountering the particular doctor, whom Mrs Gully perceived to be unsupportive. In such circumstances Dr Haig agreed that Mrs Gully’s condition is not likely to have been worsened, and that particular activities undertaken during this period would not have contributed to her condition becoming chronic. We note that in this context that while Mrs Gully continued to work over this period, her working conditions altered from January 1999, with a requirement to undertake full duties including physical exercise.
dr taylor – consultant psychiatrist
27. Mrs Gully was seen by Dr Taylor on several occasions in the first half of 2000, namely February, 9 March 2000, 6 April 2000, 11 and 25 May 2000 (T39). Dr Taylor concluded that Mrs Gully was suffering from severe depression and at each consultation monitored the severity of the condition and reviewed the medication.
dr dinnen – consultant psychiatrist
28. In a report dated 14 November 2002 (Exhibit A4) Dr Dinnen detailed Mrs Gully’s clinical history and observations made by her husband as to the character of Mrs Gully and her illness coping mechanisms.
29. In conclusion Dr Dinnen stated that:
· Mrs Gully is a genuine but chronically ill woman
· Mrs Gully is suffering from chronic post-viral syndrome
· That there is no evidence of significant major psychological disturbance sufficient to cause such a chronic incapacitating illness
· Mrs Gully is suffering from reactive depression
· The reactive depressive illness can be related on the balance of probabilities to the way her condition was managed while she was in the Army
· The depressive illness on its own account would alone restrict her from working no more than eight hours per week.
30. In concurrent evidence, Dr Dinnen detailed the following further observations:
· That Mrs Gully’s clinical history in his view revealed the existence of physical problems and her ability to cope with physical training prior to the onset of depressive symptoms;
· Agreed that the issue of where chronic fatigue as a disease entity fits into medicine remains a conundrum;
· That he accepts and defers to the physicians opinion that Mrs Gully suffers a chronic fatigue syndrome;
· That there is no evidence of other psychological issues or problems in Mrs Gully’s clinical history as detailed by either he or other psychiatrists;
· The depressive syndrome is clearly distinguishable from the chronic fatigue syndrome;
· Factors experienced by Mrs Gully in the work place would be factors in the depressive illness independent of the chronic fatigue syndrome. Further the depression may be reactive to a loss of career, a loss of opportunity or loss of a normal lifestyle;
· That the reasons why Mrs Gully did not seek medical care in the June 1998 to June 1999 period would include avoidance (studies which show soldiers in significant percentages avoid seeking medical care even with frank psychiatric disturbance); category of person who comes too late and at a point in time where they are unable to ignore the disruption in their life; in Mrs Gully’s case she fell into the latter category because of her personality and some institutional attitudes towards medical certification of unfitness;
· That the depressive illness commenced when she returned to work with increasing symptomatology through late 1998 and 1999;
· He accepts Mrs Gully’s accounts that she was not treated sympathetically by the Army and that her management in the Army was not optimal, with delay in obtaining expert medical opinion and delay in establishing diagnosis and treatment;
· That there was a contribution by her employer to her illness (as outlined above) and that such sub optimal management contributed to the depressive illness in its own right;
· That the development of the depression was to a significant extent, a consequence of the way she was dealt with until the time that she was medically retired. This also included having to do things, which were, as she perceived it, responsibilities she would want to avoid because of her illness. These included being required to do physical exercise that she did not want to do because she felt unable to do them, or she was afraid it would make her condition worse;
· If he had received a history, which did not detail complaints about how she was treated in the Army and no complaint about Dr Elder, and this was a consistent history, then he would not be saying what he has said. The absence of such a history in earlier consultant reports is understandable in that it is often difficult to get a full history when you first see a patient in psychiatry and the patient may not necessarily see the significance of the history relevant to the issues in question at that time. Dr Dinnen accepts that patients may develop a history over time, but did not consider that to be the case in this matter.
dr lewin – consultant psychiatrist
31. In a medical report dated 17 June 2003 (Exhibit R1) Dr Lewin detailed the following symptoms:
· Considered Mrs Gully’s complaints of a range of bodily symptoms began in April 1998 and were clearly established by May 1998; thinks it is likely that the entire complex of bodily symptoms are symptoms of emotional origin and are part of her psychiatric condition;
· Diagnoses a depressive illness in the form of a depressive reaction as evidenced by her worries and fears about her health, with the admission to Liverpool Hospital with a suspected pulmonary embolus precipitating a range of worries and fears which escalated into her depressive reaction;
· Effective treatment of the depressive episode would allow Mrs Gully to return to work in three to six month.
32. In concurrent evidence Dr Lewin detailed the following further observations and opinions:
· That Mrs Gully had described to him that in the first few weeks after she returned to work in 1998 she had a range of bodily symptoms including fatigue, exhaustion and muscle soreness. She delegated household chores to her husband and described struggling to maintain the work routine. She continued to work, albeit struggling, for six months with symptoms persisting. After about a year she developed a further complaint of an irregular heart beat;
· Believes that the depressive illness began at an early stage, that is within weeks following the hospitalization at Liverpool in May 1998;
· That depression is the primary condition, but he would defer to Professor Dwyer as far as a physical diagnosis is concurred;
· That the depressive condition waxed and waned over the remaining period in the service, with the causation factor remaining the admission to Liverpool Hospital for a life threatening condition, namely pulmonary embolus. Dr Lewin did not view subsequent events as contributing to a worsening of her depressive condition;
· That the history of the onset of the depression was consistent with it coming on in 1999;
· If it is accepted that there was a physical illness that was the source of debilitation, then that physical illness may give rise to a secondary psychiatric condition.
dr loblay – consultant physician
33. In a medical report dated 13 December 20002 (Exhibit A7), Dr Loblay concluded that in Mrs Gully’s case, there had been an initiating viral infection, the subsequent development of chronic fatigue syndrome, complicated by a significant episode of major depression. Dr Loblay did not believe that her illness is likely to be directly related to her work, although perceived dismissive attitudes expressed by the doctor who assessed her as being fit to return to work could have indirectly contributed to her depression.
dr stevenson – consultant physician
34. In a medical report dated 10 September 2001 (T37) Dr Stevenson concluded that Mrs Gully was and is still suffering from significant major depression, and that a diagnosis of post viral chronic fatigue syndrome was not tenable. Dr Stevenson did not believe that Mrs Gully had a significant viral infection and had not had viral pericarditis. Further, Dr Stevenson noted that symptoms were minimal in the immediate aftermath of the viral infection, while disabling some 18 to 24 months later.
35. Dr Stevenson stated that Mrs Gully was extremely reserved about service related factors and he had no evidence to conclude that service employment was a substantive cause of the employee’s condition.
professor dwyer – consultant physician
36. In a medical report dated 10 June 2003 (Exhibit A5) Professor Dwyer concluded that Mrs Gully was suffering from chronic fatigue syndrome, complicated by a severe reactive depression. He further confirmed an opinion expressed in an earlier report date 23 May 2001 (T28) in which he stated (Exhibit A6):
“In summary then, while I do not believe that the primary cause of Julie’s problem was work related, subsequent events including her depression and failure to recover fully from her post viral state were very much affected by her employment conditions.”
37. In a further report dated 20 August 2002 (Exhibit A6) Professor Dwyer concluded:
“I do believe however that full understanding and management of her needs following her viral pericarditis aggravated the condition and directly led to the eventual failing of her coping skills and the onset of a significant reactive depression.”
38. In oral evidence Professor Dwyer detailed the following relevant observations and opinions:
· That he is head of an immunology unit which has for the past 18 years been conducting research in trying to understand mechanisms associated with chronic fatigue syndrome;
· That in a report to Dr Newton dated 29 January 2001 (Exhibit A10) he noted that he was unable to find any particular related stress incidents, which if present would have raised issues of whether psychosomatic illness or abnormal illness behaviour would need consideration;
· That Mrs Gully has never been perfectly well after the initial episode, which took her to Liverpool Hospital, such circumstances being the complication of the original viral infection. In such circumstances, such as in Mrs Gully’s case a reactive depression often follows;
· That the mechanisms of Mrs Gully’s employment that required her to conform (compulsory physical training), produces a degree of stress and that results in a bad effect both on her sense of well being and aggravated her depression. It matters not whether the stress is real or perceived;
· That Mrs Gully, not seeking medical treatment between late June 1998 and late June 1999 was entirely reasonable behaviour in an environment where she was having to deal with a chronic illness;
· That the requirement to undertake physical exercise caused an exacerbation of her symptoms with her best chance of recovering from this illness in a shorter period of time being disadvantaged;
· That by international agreement a diagnosis of chronic fatigue syndrome cannot be made until a period of six months has elapsed and during which the symptoms of the syndrome have been present;
· That the amount of physical activity that Mrs Gully was obliged to engage in as well as some other duties (guard duties at night) were very likely to have aggravated her condition and possibly altered the natural course of the illness with closer to probable being perhaps a better definition, which he later argued equated to a 50 per cent chance;
· That in reaction to the return to work on light duties on 11 May 1998, he would be no more critical than saying that he may have not returned her to work so quickly;
· That the downturn in Mrs Gully’s health in 1998/1999 came when she was required to resume physical training three times a week, with such a return not being under a medically supervised graded program;
· That a primary diagnosis of depression would not explain all the issues in this matter.
dr elder – general practitioner
39. In a report dated 8 October 2004 (Exhibit R3), Dr Elder detailed the following:
·Saw Mrs Gully on 11 May 1998 when she presented with chest pain and complained of tiredness. Observations were normal and she was given light duties for one week because of her tiredness;
·Was involved in her case on 20 July 1999 when Dr Bryant, a Registrar discussed Mrs Gully’s presentation of fever, sore throat and complaint of tiredness. Given sick leave for seven days and to return if condition deteriorated;
·Saw Mrs Gully on 17 September 1999 at which she was anxious about the results of blood tests ordered by Dr Hooper on 14 September 1999. Referred her to a psychologist;
·On 5 November 1999 referred her to a psychiatrist on the recommendation of a psychologist as she was depressed and needed medication. Given sick leave for four days;
·On 24 January 2000 referred Mrs Gully to Dr Hooper and Dr Taylor and to Dr Giles for a Pap smear.
40. In relation to allegations made Dr Elder stated:
·He saw Mrs Gully only twice in 1999 as already outlined, with Mrs Gully not requesting any time off on 17 September 1999 and given four days off on 5 November 1999 (allegation - attended every couple of months in 1999, sought exemption from physical training – not granted – doctor unsympathetic);
·He saw Mrs Gully on 24 January 2000 and referred her to three doctors (allegation – by January 2000 she was extremely depressed about the fact that she could not get help from him);
·Mrs Gully wished to be referred to Dr Giles for continuing care were the circumstances in which he gave her a copy of Colonel Keating’s Minute. Denies stating that seeing another doctor would not be tolerated and that he did not reprimand her. Further he did not complain about Mrs Gully’s conduct to the Commanding Officer, but did ask whether she could work half days, such action occurring on 24 January 2000;
·That he did not place any physical restrictions on Mrs Gully on 17 September 1999 as she had seen Dr Hooper some three days earlier and he, in turn, had not suggested any restrictions;
·Denies stating that her condition distressed other staff; that she was doctor shopping, but admits to requiring Mrs Gully to comply with the Minute issued by Colonel Keating.
41. In oral evidence Dr Elder made the following relevant comments:
·That he had never made the statement to Mrs Gully that “I am the equivalent of a Lieutenant Colonel and you are a Private”;
·That he never reprimanded Mrs Gully, nor did he recommended she be charged on reprimanded;
·That Mrs Gullly had passed a battle fitness assessment in August 1999 (T39, p154);
·That he did not believe that Mrs Gully could be intimidated by him;
·That there was no animus between he and Mrs Gully when he gave her Colonel Keating’s Minute on 24 January 2000 as, if there had been, he would have made a record.
consideration and findings
42. In introductory comment we acknowledge the many issues that are involved in contemplating and addressing the circumstances surrounding a diagnosis of chronic fatigue syndrome. In this regard we were assisted by the report of Dr Grant which canvassed both the clinical features and evolution of the syndrome. We were further assisted by Professor Dwyer who introduced us to some of the underlying clinical immunological theories and processes and to Doctors Dinnen and Lewin who frankly shared with us the diagnostic conundrum that the syndrome presents to clinicians.
43. We note that the diagnostic criteria for such a syndrome require that an individual must have experienced a viral infection and later developed a post viral illness, which is evidenced by a wide spectrum of physical and psychological symptoms. We further acknowledge that such symptomatology must be present for at least six months and that the understanding of the underlying pathology is still evolving.
44. In addressing the issue of whether Mrs Gully is a person whose story should be believed, we have been careful to detail the history of events as she has described to the Tribunal and to the many clinicians involved in this matter over the years. We have further detailed the clinical history as recorded in the Army medical records and outlined the allegations made by Mrs Gully against Dr Elder and his responses to them. We also note the history of Mrs Gully prior to the onset of her viral illness in 1998, including the awarding of a medallion for exemplary service by the unit Commanding Officer in 1998.
45. We are satisfied that the clinical history of events in this matter as stated by Mrs Gully are relatively consistent, and to this extent we accept such evidence. We also reject the contention that the clinical history of events evolved over time and was moulded to meet her desire to be compensated for her illness. In this respect, we accept that the absence of complaints about her activities in the workplace and her difficulties with Dr Elder in Dr Haig’s first report of December 2000 was an issue, but one explained by the nature, purpose and length of Dr Haig’s initial consultation. We further believe that a negative inference cannot be drawn from Professor’s Dwyer initial and subsequent reports for the very reasons detailed to the Tribunal by Professor Dwyer.
46. In addressing the issue of complaints about Dr Elder, we conclude that Mrs Gully’s evidence has been colored by her perception of what she believes Dr Elder could have and should have done in the provision of care for Mrs Gully. There is indeed much to suggest what communication occurred between Mrs Gully and Dr Elder was of a limited nature and content. We accept that Mrs Gully may have felt intimidated by Dr Elder. We note the evidence of Captain Hampton in relation to the issue of a complaint to the Commanding Officer about Mrs Gully by Dr Elder and observe the source of this information to be Mrs Gully, who in turn states that her source of such information was Captain Hampton.
47. Without detailing again chapter and verse of allegation by Mrs Gully and response by Dr Elder, we conclude that a viable doctor patient relationship was not in evidence between the two parties. Further we conclude that Mrs Gully’s evidence of their interactions has been colored by her perception of Dr Elder’s failure to provide for her the necessary support she so desired, and to which she believed she was entitled. We also note that there was limited contact between the parties, with Mrs Gully’s perception of inadequate support from Dr Elder commencing with their first interaction on 11 May 1998. As a consequence, and after a searching appraisal of the four interactions which did occur we have difficulty in accepting Mrs Gully’s version of events as regards what was said by Dr Elder.
48. A further issue which related to the credibility of Mrs Gully’s clinical history was her failure to seek medical attention between 17 June 1998 and 28 June 1999 for her continuing symptomatology over that period. We note the reasons for not seeking medical attention given by Mrs Gully and further note the exploration of such circumstances with Professor Dwyer, Drs Haig, Dinnen and Lewin and their possible explanations for such. As a consequence of their consideration we draw no negative inference in relation to Mrs Gully’s creditability in the circumstances as outlined.
49. In addressing the issue of diagnoses in this matter we acknowledge that there are two streams of clinical opinion. Firstly Professor Hooper, Walls, Dwyer and Doctors Loblay, Haig and Dinnen conclude that Mrs Gully’s clinical symptomatology satisfies the criteria for a diagnosis of chronic fatigue syndrome witch a further and separate condition of reactive depressive disorder. Drs Stevenson and Dr Lewin prefer a primary diagnosis of depressive disorder.
50. We conclude that Mrs Gully suffers from a chronic fatigue syndrome and a further condition of reactive depression. In so finding we rely on the symptomatology as detailed by Mrs Gully and the opinions of the six doctors referred to above. We also note that Dr Lewin would defer to Professor Dwyer’s opinion as to the presence of a physical illness. We further note that we do not agree with Dr Stevenson’s clinical analysis as there is clear evidence that Mrs Gully did suffer from significant viral illness which caused her admission to Liverpool Hospital on 3 May 1998.
statutory framework
51. Section 4 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) defines injury as a disease suffered by an employee, with a disease being defined as an ailment suffered by an employee or the aggravation of such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employer’s employment. The Tribunal further notes that section 4 defines ailment as any physical or mental ailment, disorder, defect or morbid condition.
52. In addressing the earlier findings against the statutory framework, we conclude that both chronic fatigue syndrome and depressive disorder are ailments. The issue that remains to be decided is whether each ailment or the aggravation of each ailment was materially contributed to by her employment.
53. Further we are mindful that in addressing the concept of aggravation it is necessary to find that an existing disease has been made worse or has become more severe. Further we note the decision in Commonwealth Banking Corporation v Percival (1998) 20 FCR 176 where at pp179-180 the Full Court said:
“that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law, where it is fundamental that the symptom of an injury is part of that injury.
Pain is the most common symptom of any 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.”
54. In addressing the chronic fatigue syndrome, we again note the diagnostic criteria of an individual suffering a viral illness followed by a post viral illness which must exist for a period of six months before a diagnosis can be made. The artificiality of such criteria is to be recognized when considering compensation law for clearly once the diagnostic criteria are fulfilled, the commencement time of the post viral illness must equate with a concept of clinical onset in so far as entitlement to compensation is concerned.
55. While we acknowledge that in this matter nothing turns of the clinical onset of the condition, for there is both an absence of evidence from Mrs Gully and specific evidence from Professor Dwyer that there were or were not factors, respectively in Mrs Gully’s employment which materially contributed to the causation of the chronic fatigue syndrome. This we note, is accepted by both parties, with the outcome that the decision under review in matter N2003/1198 is affirmed.
56. In addressing the issue of whether an aggravation of the chronic fatigue syndrome has been materially contributed by her employment, we are mindful of the clinical history as outlined by Mrs Gully. We further note the clinical disease process as outlined by Professor Dwyer and note his opinion that the employment conditions whereby Mrs Gully was required to undertake physical exercise and other numerous duties during the first half of 1999 resulted in an aggravation of her condition (symptoms) and a 50 per cent chance of altering the natural cause of the illness.
57. In analyzing this issue further, we are mindful of the details contained within Professor Dwyer’s opinion in this matter. We note an absence of opinions on this matter from Drs Hooper and Walls. We have already noted our difficulty with Dr Stevenson’s opinion. While we note that Dr Loblay considered that Mrs Gully’s chronic fatigue syndrome was not directly related to her work, we prefer the opinion of Professor Dwyer for the reasons that Professor Dwyer is an eminent expert in the area and that his opinion and consideration have been tested before the Tribunal. We also noted that the psychiatrists deferred to Professor Dwyer in the assessment of the physical condition.
58. We further note that the pathology of the chronic fatigue syndrome remains clinically not defined (Professor Dwyer). In such circumstances it would be very difficult to define aggravation in terms of a change in underlying pathology. We are satisfied, that in the light of the clinical history and the opinion of Professor Dwyer that there was increase of the symptoms of chronic fatigue syndrome (namely muscular pain, fatigue and difficulties with concentration and memory) and that such increases in symptomatology were material contributed to by her employment when she was required to undertake physical exercise and other duties in the first half of 1999. We also note that such increased symptomology continues to exist. Further we acknowledge that Mrs Gully may have had perceptions about the inadequacy of her medical treatment program, but we conclude that if there had any effect, it would have been more relevant to the issue of depression.
59. In summary we conclude that Mrs Gully has suffered an aggravation of her chronic fatigue syndrome and this was materially contributed to by her employment. We further conclude that this constitutes a disease and hence an injury in terms of the Act and that the effects of this injury are continuing. We find that the aggravation of the chronic fatigue syndrome was evident by July 1999.
60. In addressing the depressive disorder, there is common ground amongst all the psychiatrists and the physicians that such a disorder exists. While Drs Stevenson and Lewin considered this to be the primary disorder with a clinical onset within weeks of May 1998, Dr Lewin, in deference to Professor Dwyer’s opinion that a physical disease entity did exist concluded that in such circumstances the depressive disorder was secondary to the physical disorder with a clinical onset in September 1999. Dr Lewin, however did not in effect resile from his opinion that depression was the primary diagnose.
61. Following a review of all the clinical material, we conclude that the clinical onset of the depressive disorder was in September 1999 when Dr Plummer records Mrs Gully as being depressed with subsequent confirmation by other treating doctors at that time (Drs Hooper, Elder).
62. We note that there is relevant evidence from all the clinicians that the depressive symptoms are commonly associated with chronic fatigue syndrome. We note that Drs Haig, Dinnen and Dwyer all conclude that the depressive disorder is both a separate clinical condition and reaction to the chronic fatigue syndrome. Further the three doctors are of the opinion that the depressive disorder was materially contributed to by Mrs Gully’s employment, when she was required to undertake physical exercise and other duties in the first half of 1999, as well as performing duties in her workplace in the absence of her immediate superior for some months in the second half of 1998. Further Dr Dinnen is of the opinion that her depression was materially contributed to by the way in which her condition was managed in the Army (not optional).
63. We also note the opinion of Dr Lewin and the admissions made by Dr Haig in response to a particular scenario in cross examination. Nevertheless we accept the opinions of Drs Dinnen and Dwyer and Dr Haig (as amended for a particular scenario). We do not accept the opinion of Dr Lewin for the reason that he postulates a primary depressive disorder, yet at the same time defers to Professor Dwyer, where he nominates the existence of a physical disorder. Further we do not accept the opinion of Dr Stevenson for reasons already expressed in relation to the issue of chronic fatigue syndrome.
64. As a consequence we find that the depressive disorder was materially contributed to by her employment, the material contribution being the manner in which her condition was managed in the Army (suboptimal management). This involved suboptimal diagnosis treatment and management of her primary condition as well as requiring her to undertake physical training and other duties which increased symptoms arising from her chronic fatigue syndrome. We also note Mrs Gully’s perception of her relationship with Dr Elder and suspect that such a perception may well have been a focus for her dissatisfaction with her interaction with the medical system and her absence of clinical improvement. We also note that aggravation of the chronic fatigue syndrome by way of increased symptomatology would have further contributed to a worsening of depressive symptomatology.
65. As a consequence of our findings we conclude that Mrs Gully’s depressive disorder is both an ailment and the aggravation of an ailment which has been materially contributed to by her employment. We note the aggravation of the ailment as occurring towards the last months of her service when she was under treatment from Dr Taylor. We find that this decision constitutes an injury within the terms of the Act and that on the evidence of all the psychiatrists we conclude that the effects of the injury are ongoing. We conclude that the depressive disorder commenced in September 1999 and that aggravation of that condition occurred over the ensuing months of service, particularly from January 2000.
66. We also note that an issue was raised concerning section 6A of the Act. While the matter was not further pursued, we are of the opinion that there is insufficient evidence directly relating to the unintended consequence of the treatment and the injury suffered by Mrs Gully as a consequence of that treatment. It is again noted that we had difficulty in accepting Mrs Gully’s version of events in relation to her interaction with Dr Elder. For these reasons we take this issue no further.
67. We conclude by finding that the Respondent is liable to pay compensation pursuant to section 14 of the Act in relation to both chronic fatigue syndrome and depressive disorder.
68. In summary, as a result of our findings we determine that:
(a) The decision in N2003/1198 is affirmed; and
(b) The decisions in N2003/1199 and N2004/1274 are both set aside and in substitution thereof determine that the Respondent is liable to pay compensation pursuant to section 14 of the Act in respect of the Applicant’s chronic fatigue syndrome and depressive disorder with the date of aggravation of the chronic fatigue syndrome being July 1999 and the date of the depressive disorder being September 1999, with clinical worsening (aggravation) January 2000.
(c) The Applicant is entitled to costs pursuant to the Tribunal’s Practice Directions in relation to matters N2003/1199 and N2004/1274.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of P J Lindsay, Senior Member and Dr J D Campbell, Member
Signed: Neil Glaser
AssociateDates of Hearing 8 and 9 December 2003,
20, 21 and 22 October 2004
Date of Decision 18 January 2005
Solicitors for the Applicant Ryan Carlisle Thomas
Solicitor for the Respondent Blake Dawson Waldron
Key Legal Topics
Areas of Law
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Workers Compensation Law
Legal Concepts
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Causation
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Compensatory Damages
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Standing
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