Hannaford and Telstra Corporation Limited

[2008] AATA 879

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: 2007/0069

GENERAL ADMINISTRATIVE DIVISION        )   

ReRONALD BOYCE HANNAFORD

Applicant

AndTELSTRA CORPORATION LIMITED

Respondent

DECISION

TribunalM D Allen, Senior Member

Dr J Campbell, Member

Date3 October 2008

PlaceSydney

DecisionThe decision under review is affirmed.

....................[sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

WORKERS COMPENSATION – did employee suffer from an unknown arbovirus – was ongoing debility caused or contributed to by an acute febrile illness – was that illness work-caused? – decision under review affirmed

RELEVANT ACT/S:

Safety, Rehabilitation and Compensation Act 1988 – Sections 7, 62

CITATIONS

Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

Re Hannaford and Telstra Corporation Limited [2004] AATA 1250

REASONS FOR DECISION

3 October 2008

M D Allen, Senior Member

Dr J Campbell, Member

1. By application made 11 January 2007 the Applicant sought review of a “reviewable decision” made by the Respondent on 4 January 2007 pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which decision revoked a prior determination that the Respondent was liable to pay compensation to the Applicant in respect of “Ross River Virus”.

2.      The reviewable decision read:

1.The determination dated 8 may 2002 is revoked;

2.I further determine that:

(a)Ronald Hannaford has not suffered an identifiable ailment, injury or disease; and

(b)Telstra Corporation Limited is not liable to pay Ronald Hannaford compensation under Part II of the SRC Act in respect of Ross River Fever or any other arbovirus.

3.      In order to understand the issues raised by the reviewable decision, it is necessary to canvass the history of the Applicant's claim against the Respondent.

4.      On 8 May 2002, the Respondent accepted a claim by the Applicant for the payment of compensation pursuant to the Act for the claimed disease of “Ross River Fever”.

5.      Subsequently in July 2003, an application was made by the Applicant for the payment of compensation pursuant to ss 24 and 27 of the Act for permanent incapacity and non-economic loss.

6.      That application ultimately led to reviewable decisions that any incapacity from Ross River Fever had ceased, and that the Applicant was not entitled to any payment for permanent impairment or non-economic loss.

7.      The reviewable decisions above were appealed to the Administrative Appeals Tribunal (AAT).  At the hearing before the AAT, the Respondent argued that the Applicant had in fact never suffered from Ross River Fever.  Based on the medical evidence before it, the Tribunal found as a fact that the Applicant had never suffered from Ross River Fever and affirmed the decisions under review (see Re Hannaford and Telstra Corporation Limited [2004] AATA 1250).

8.      An appeal against that decision was lodged with the Federal Court.  Although initially successful before Moore J, the judgment of the Full Court restored the decision of the AAT (see Telstra Corporation Limited v Hannaford (2006) 151 FCR 253).

9.      By letter dated 27 October 2006, the Applicant’s solicitors requested a reconsideration of the determination of 8 May 2002.  The solicitor’s letter read inter alia that the reason for the request for reconsideration was the finding by the AAT that the Applicant was not suffering from Ross River Fever at the relevant time adding, “Mr Hannaford was suffering from something”.  The solicitors did not suggest from just what disease the Applicant may have been suffering, but these proceedings have continued on the basis that the Applicant was suffering from an unidentified arbovirus.

issues

10.     The issues raised in this matter were:

(a)Did the Applicant suffer an unidentified arbovirus as a result of his employment by the Respondent, in particular employment at Yamba, New South Wales, in or about February/March 2002;

(b)Did that unidentified arbovirus aggravate the degenerative arthritis suffered by the Applicant;

(c)Did the acute symptoms caused by the unidentified arbovirus lead to the Applicant suffering a deconditioning of his musculoskeletal system.

occupational disease

11.     For the Applicant, it was submitted that any unidentified arbovirus suffered by him was an occupational disease in the terms of Ss 7(1) of the Act.  Ss 7(1) reads:

Provisions relating to diseases

(1)Where:

(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

(b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and

(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

12.     Item 28 of the Declaration made under Ss 7(1) of the Act specifies “occupational infectious or parasitic diseases” as a kind of disease and specifies the kind of employment involving exposure to risk as:

Employment carrying a particular risk of contamination including:

(a)Health or Laboratory Work;

(b)Veterinary Work;

(c)Work handling animals, animal carcasses, parts of such carcasses, or merchandise which may have been contaminated by animals, animal carcasses or parts of such carcasses.

13.     The words of the schedule referred to “employment” as carrying a particular risk of contamination.  That is to say, it is the employment per se that must carry the particular risk, as for example in the occupations specified, and not, as in this case, the geographical area in which the employment is carried out.

14.     We therefore reject the submissions by the Applicant that any “unidentified arbovirus” is, in the Applicant’s case, an occupational disease for the purposes of Ss 7(1) of the Act.

did the applicant suffer from an unidentified arbovirus

15.     An “arbovirus” is defined in the very helpful glossary attached to Dr Sutherland’s report of 25 June 2007 as:

A name derived from arthropod-borne viruses, as they are transmitted to humans by insect bites.  Now classified as alphaviruses.  Clinical manifestations include Ross River virus, Barmah Forest virus, Sindbis virus, and equine encephalitis.

16.     No issue is taken by the Respondent with the history given by the Applicant to the Tribunal in previous proceedings, and the transcript of his evidence to the AAT on that occasion became part of the supplementary s 37 documents lodged in these proceedings.

17.     Briefly stated, the Applicant’s evidence was that in late 2001 he was a member of a gang of workers employed by a subsidiary of the Respondent, Network Design and Construction Ltd, laying cables in the area around McLean to Yamba on the mid-northern New South Wales coast.  After Christmas, that is to say in early 2002, his work involved laying cables in areas of tidal swamp.  During this time the Applicant and his co-workers were continually bitten by mosquitoes.

18.     About the middle of February 2002, the Applicant began to feel unwell and fatigued.  On 18 March 2002, he attended his general practitioner who made a diagnosis of Ross River Fever.

19.     The Applicant was then absent from work for a period of three months.  He returned to work for a period of one month, but could not cope because of his debilitated state of health.  He has not worked since.

20.     We find that in the period February/March 2002, the Applicant did work in an area in which he and his co-workers suffered mosquito bites and that he suffered in that period a febrile illness.

21.     In his report of 25 June 2007, clinical immunologist Dr Sutherland took a history by the Applicant of his becoming ill over a period of one to two weeks.  He was troubled increasingly by malaise and fatigue, and then developed chills, rigors, headaches and stiff, sore joints.

22.     Dr Sutherland's opinions were summed up in a report dated 16 October 2007 in which he states:

In summary, there seems no doubt that Mr Hannaford suffered from an acute febrile illness in March of 2002, at a time when he had sustained numerous mosquito bites over a prolonged period, in the course of his employment.  That illness had the features of an arbovirus infection, and on the balance of probabilities this was the explanation for the episode.  As serological tests indicated past but not current or recent exposure to Ross River virus, and were negative for Barmah Forest virus, the infection must have been another arbovirus.  There seems little doubt that Mr Hannaford was incapacitated subsequently, and that he remains unfit for paid employment.

23.     That the Applicant became ill from an unidentified arbovirus is the opinion of rheumatologist Dr Mathers.  Although Dr Mathers’ primary concern is the Applicant's ongoing rheumatologic problems, he has had regard to their aetiology.  In examination in chief, he conceded that what the Applicant's illness in 2002 actually was is a matter of argument, but it did appear to be viral.  As he stated in his report of 28 May 2007:

In my opinion Mr Hannaford suffered an acute illness in March of 2002 which was most likely a viral illness and on probability most likely acquired occupationally.  As alluded to above, any more precise characterisation of that illness is not possible.

24.     In support of his opinion, Dr Mathers referred to a paper by MacKenzie et al entitled “Arboviruses in the Australian Region, 1990 to 1998”, which accompanied a report by Dr Sutherland of 8 July 2008.  In that report the authors write:

There is considerable anecdotal evidence suggesting that another, unknown arbovirus may be associated with polyarthritic disease in Australia.  During epidemics of RR virus disease over the past few years, a significant proportion of patients have presented with symptoms identical to RR virus infection.  However, the patients have been serologically negative to RR virus and to all other Australian arboviruses known to be associated with human infection.  Nevertheless this unknown virus has the same epidemiological pattern as RR virus.

25.     Associate Professor White is the associate professor in Virology at the University of New South Wales and consultant virologist to the Prince of Wales Hospital, Sydney.  In his report of 12 February 2008, he states quite unequivocally:

I do not agree that Mr Hannaford’s [condition] was suffered as a result of infection with an unknown, unidentified arbovirus for two main reasons.  The first is that unidentified arbovirus infections are extremely rare in Australia and no serological evidence was presented …

The second reason is that there is no documented evidence or literature to link Arboviruses to any ongoing chronic sequelae.  …

At page 7 of his report he states:

The presence of an unidentified arbovirus being responsible for Mr Hannaford’s condition, whilst plausible is unlikely.  Through my experience a number of unidentified viruses (i.e. those that do not react of antibodies to all the viruses described above) are sometimes (but rarely) detected through insect cell culture of crushed mosquitoes by the NSW Arbovirus Surveillance and Vector Monitoring Program.  These instances are extremely rare and there is no evidence that these viruses are pathogenic to humans.

26.     Although Professor White was influenced in his opinion against an arbovirus affecting the Applicant because of his ongoing debility, this opinion may need to be modified if Dr Mathers’ hypothesis of “deconditioning” due to a febrile illness is accepted.

27.     As pointed out by Professor White, further investigations could be carried out on the Applicant to more particularly test if one of the rarer viruses had affected him.  Although it is unlikely that the Applicant contracted an arbovirus it is not impossible, but his clinical symptoms were similar to those following infection by numerous other bacterial and viral infections.

28.     As we see it, the crux of this matter is that no definitive test was done at the time of the Applicant's illness.

29.     Of particular relevance in considering whether an unidentified arbovirus affected the Applicant, is the lack of any evidence of what might be termed public health issues.

30.     No evidence was adduced as to any other employee engaged in the same duties as the Applicant becoming ill with a febrile illness.  Likewise, no evidence was adduced as to the incidence of any arbovirus-caused illness reported to health authorities for the areas of Yamba, McLean and surrounds.

31.     Dr Schwarzer, Rheumatologist, in a report dated 30 August 2004 to the Applicant’s solicitors dealt with the issues raised and his report encapsulates the difficulties faced by the Applicant in maintaining his claim against the Respondent.  Dr Schwarzer, like Professor White, sees merit in further tests being performed.

32.     Dr Schwarzer opined:

The cause of Mr Hannerford's present symptoms is unclear.  Mr Hannerford has a history of spinal pain, knee pain and chest wall pain which may point to osteoarthritis.  The plain x-rays demonstrate if anything some degenerative changes.  However this in itself does not explain why he should remain symptomatic.  There are no clinical features to point to a particular diagnosis at present.  I do not wish to presume that I can provide an adequate explanation for Mr Hannerford's present symptoms.

…

I do not consider that there is evidence that Mr Hannerford contracted Ross River Fever in early 2002.  …

Whatever illness Mr Hannerford contracted in February 2002, it would seem to be during the course of his employment.  However one cannot specifically state that the illness was a result of his employment.  One can hypothesise that the heavy manual nature of his work may have brought on joint pain but this is speculative.  If there was some exposure to animals in the course of his work and he developed a parasitic or rickettsial infection then it is possible that his work contributed to his present problem.  However there is currently no evidence to suggest that his work with Network Designer [sic] and Construction was the cause of the acute illness nor the cause of his ongoing symptoms.

…  Therefore, I would have to say that Mr Hannerford’s ongoing symptoms cannot be attributed to Ross River Fever.  At present I cannot explain his ongoing symptoms.  As mentioned there is always the possibility of an undiagnosed other infection for which the appropriate investigations have not been done.

findings on arboviruses

33.     All that is known is that the Applicant suffered an acute febrile illness in early 2002 and he has continued to suffer debilitating aches and pains since that time.  Tests for Ross River virus and Barmah Forest virus were negative, although positive for past Ross River virus.

34.     Infection by an unknown form of arbovirus has been postulated but having regard to the reports of Professor White and Dr Schwarzer, all we can find is that infection by some otherwise unidentified arbovirus is a hypothesis that has not been proved on the balance of probabilities.

relation to employment

35.     Even if we were satisfied that the Applicant had been infected by an arbovirus, there is no evidence that it happened as a result of his employment.  As we have stated previously, there is no evidence that other members of his work unit were affected nor is there any evidence of the prevalence of viral diseases in the area in which the Applicant was then employed.  There may be some suspicion and conjecture as to infection caused by a mosquito bite whilst away from home and in the Yamba area, but there is no evidence to suggest that was in fact the cause of infection.

ongoing incapacity

36.     Strictly speaking, given our findings as to the failure to prove any arbovirus infection, it is not necessary for the Tribunal to consider questions regarding incapacity following the original illness.

37.     Dr Mathers is the Applicant’s treating rheumatologist and he is of the opinion that the illness was of such severity as to effect a “deconditioning” of the Applicant.

38.     When giving conjoint evidence in the previous proceedings, both Dr Mathers and Dr Potter (Rheumatologist) agreed that the Applicant had chronic pain.  The difference in their opinions was that whereas Dr Potter opined that the Applicant's current pain was not referrable to his illness in 2002, Dr Mathers believed it was as the illness led to a deconditioning.

39.     Dr Sutherland is uncertain as to the effect the Applicant’s illness had on his subsequent debility.  For example, at pages 11, 12 and 13 of his report of 25 June 2007, he deals with the Applicant’s previous complaints of pain and various investigations for other illnesses and at page 18 of that report, notes that the Applicant was not a particularly accurate historian.  At page 20 he states:

…  If however, Dr Wall reports that Mr Hannaford was incapacitated to the extent that he (Dr Wall) urged a medical retirement, and Mr Hannaford himself was considering changing to a more sedentary occupation, then Mr Hannaford's claim would be difficult to sustain.

For the reasons set out above, Mr Hannaford requires a re-assessment of his sleep disorder.  If his recent weight gain has led to significant obstructive sleep apnoea, then it could be argued that this is a consequence of his ongoing ill health.  …

40.     Dr Potter in a report dated 20 November 2007 refers to the Applicant suffering widespread aches and pains in the 10 years prior to 2002.  His opinion is that the Applicant has a widespread, chronic pain disorder but that disorder is not referable to any acute illness in 2002.

41.     We have previously referred to Dr Schwarzer’s opinion as set out in his report of 30 August 2004, where he states that he cannot provide an adequate explanation for the Applicant's present symptoms.

42.     Given the abovementioned material, we are satisfied that the Applicant’s current debilitating illness has not been caused, materially contributed to, aggravated or accelerated by his illness in February/March 2002.

43.     For the reasons stated above, the decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of MD Allen, Senior Member

Signed:   ............[sgd]................................................................
               T Aviram, Associate

Date/s of Hearing:  8 and 9 September 2008
Date of Decision:  3 October 2008
Solicitor for the Applicant:                  Bale Boshev Lawyers
Counsel for the Applicant:                 Mr M Vincent
Solicitor for the Respondent:             Sparke Helmore
Counsel for the Respondent:           Mr B Kelly