Hannaford and Telstra Corporation Limited

[2004] AATA 1250

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1250

ADMINISTRATIVE APPEALS TRIBUNAL      )           No N2003/2003                  

)                N2004/379

GENERAL ADMINISTRATIVE DIVISION		)
Re		RONALD HANNAFORD

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Senior Member M D  Allen  

Date26 November 2004

PlaceSydney

Decision The decisions under review are affirmed.

(Sgd)  M D Allen
   ..............................................

Senior Member   

CATCHWORDS

Workers Compensation: review of decision to cease liability together with decision to reject claim for permanent impairment resulting from Ross River Fever – Respondent’s reconsideration on own motion regarding liability varied original decision – Applicant suffered from arthritis and joint pain prior to employment with Respondent – blood tests taken by Applicant did not support diagnosis of Ross River Fever – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 s 7, 14, 24

Administrative Appeals Tribunal Act 1976 s 42D

Re Liu and Comcare (2004) 79 ALD 119

Power v Comcare (1998) 89 FCR 514

Comcare Australia v Hill (1999) 56 ALD 487

Re Carson v Telstra Corp (2001) 33 AAR 351

Plumb v Comcare (1992) 39 FCR 236

REASONS FOR DECISION

26 November 2004 Senior Member M D  Allen            

1.      By applications made on the 22^nd December 2003 and the 25^th of March 2004 the Applicant sought review of decisions by the Respondent firstly ceasing liability to pay compensation for the condition described as “specified infections and parasitic diseases (Ross River Fever)” and rejecting a claim for permanent impairment resulting from that condition.

2.      Subsequent to the decision of the Administrative Appeals Tribunal in Re Liu and Comcare (2004) 79 ALD 119, the Respondent acting on a direction made pursuant to s 42D of the Administrative Appeals Act 1975 reconsidered its decision regarding liability to pay compensation and on 26 July 2004 varied the decision dated 31 October 2003 so as to read:

“1. As at 31 October 2003 the Claimant’s ‘specified infections and parasitic diseases (ross river fever)’ has resolved and has ceased to result in incapacity for work and/or the requirement for medical treatment or impairment.

2. As at 31 October 2003, the Claimant is not entitled to compensation for medical treatment, or incapacity for work pursuant to section 16 and Part II Division 3 of the SRC Act in respect of ‘specified infections and parasitic diseases (ross river fever)“

3.      Consequently the decisions stated above, in paragraph 2 together with the decision of 9 March 2004 rejecting the claim for permanent impairment constitute the matters for determination in these proceedings.

4.      Although not specified in its amended Statement of Facts and Contentions dated 1 June 2004, the Respondent’s case before me was the Applicant has never suffered from a “Ross River Fever”.

5.      Although not revealed in its pleadings the Respondent’s case must have been clear to the Applicant. The argument that the Applicant had not suffered from Ross River Fever at the relevant time was made by Rheumatologist Dr Potter in his report of 7 May 2004 which was, in accordance with Tribunal practice, served on the Applicant‘s solicitors.

6.      In his report of 7 May 2004 Dr Potter referred to the result of pathology tests on blood taken from the Applicant and the fact that those blood tests could not confirm a diagnosis of Ross River Fever.

7.      Prior determinations by the Respondent had accepted liability pursuant to s 14 of the SRC Act for Ross River Fever and compensation had been paid. The Respondent did not seek to have those determinations set aside and recover any monies paid to the Applicant as a result of the said determinations. It did however, seek to maintain its determinations of 26 July 2004 refuting liability and of 9 March 2004 rejecting the claim for permanent impairment on the ground that the Applicant had not suffered from Ross River Fever.

8.      That such a cause was open to the Respondent is made clear by the Federal Court decisions of Power v Comcare (1998) 89 FCR 514 (mistitled as Comcare v Power) and Comcare Australia v Hill (1999) 56 ALD 487.

9.      In my opinion, the Applicant’s representatives should have been aware from the time they received a copy of Dr Potter’s report of 7 May 2004 and his subsequent reports that the diagnosis of Ross River Fever was to be called in question. In any event no request for an adjournment was made on behalf of the Applicant to seek rebutting evidence or on a claim to have been taken by surprise.

10.     The Applicant’s argument was that on the authority of Re Carson and Telstra (2001) 33 AAR 351, the decisions under review were not reviewable decisions dealing with the issue of liability pursuant to s 14 SRC Act but were made on the basis that any incapacity arising from Ross River Fever had resolved.

11.     I do not accept the Applicant’s submissions based on Re Carson  (supra). The cases of Power v Comcare, Comcare Australia v Hill  (supra) and Plumb v Comcare (1992) 39 FCR 236, all make it clear that no estoppel exists in proceedings before the Administrative Appeals Tribunal and that it is open for a Respondent to defend a claim or determination that liability does not presently exist on the ground that the original decision accepting liability was wrong.

12.     The Applicant also claimed that liability existed pursuant to ss 7(1) SRC Act.  That subsections reads:

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 notice in writing as a disease related to the employment of a kind specified in the notice; 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 engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.”

13.     Item 28 of the Declaration made under ss 7(1) SRC 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 works

(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 part of such carcasses”.

14.     The words of the Schedule refer to “employment” 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.

15.     At the outset it must be noted that the credit of the Applicant in these proceedings was not challenged in any way and having seen him give evidence and be cross examined I have no hesitation in unreservedly accepting his evidence.

16.     So far as is germane to these proceedings the Applicant’s evidence was that he was originally employed by the Respondent in October 1998. Later he transferred to a subsidiary of the Respondent, Network Design and Construction Ltd (“NDC”).

17.     Prior to his employment with the Respondent the Applicant had been employed as a plumber both in his own business and as an employee of the Gunnedah abattoirs. Prior to his employment with the Respondent he had had no major illnesses and was passed medically fit to enter into employment with the Respondent. Some eight or nine years ago he had become sore in the knees and chest area but not enough to stop him from working.

18.     Although the Applicant’s home was and is in Gunnedah his work with NDC took him to sites throughout NSW.

19.     Prior to the end of the year 2001 the Applicant with others in his particular “gang” of workers were posted to Maclean on the mid Northern New South Wales Coast. They worked out of Maclean up until the Christmas break in that year. After returning to work in 2002 their work area was such that they were based in Yamba which is to the east of Maclean and were working back towards Maclean.

20.     At this time the work of the Applicant and his co-workers involved laying cables and in the course of this work traversed areas of tidal swamp. Whilst working in these swamps the Applicant and his co-workers were continually bitten by mosquitoes. The mosquito population was described in a statement to the Respondent by a co-worker as:

“This project was carried out in very wet, trying and stressful conditions in a swamp overgrown with mangrove and ti-tree and infested with mosquitoes in plague proportion. There were literally millions of them and all personal (sic) protection provided did little to alleviate the constant attacks of these insects.”

21.     About the middle of February 2002 the Applicant began to feel unwell. His work performance deteriorated to the extent that after commencing work at 0700 hours by 1000 hours he would have to lay down and would go to sleep. He suffered from fevers, headaches and generally felt ill. 

22.     The Applicant’s condition deteriorated but he did not report ill as his co-workers covered for him. The particular job finished on the 14^th of March 2002 and on 18^th March the Applicant attended his General Practitioner Dr Wall.

23.     Dr Wall made a diagnosis of Ross River Fever and the Applicant was absent from work for three months. He returned to work for one month but could not handle work because of his debilitated state of his health. He has not worked since. Ultimately he was dismissed from the employ of  the Respondent  on medical grounds.

24.     The Applicant is still severely disabled. He has pains in his joints and muscles and his arms and legs with particular severe pain in his chest and back. He rapidly becomes fatigued. He does very little around the house, twice a week he goes to a heated pool. He has received advice from his medical practitioners that he should walk 1km a day but does not always manage this. He takes analgesics for pain. He did receive relief from physiotherapy but can no longer afford this treatment.

25.     Cross examined, the Applicant conceded that prior to 2002 he had suffered from arthritis, with widespread pain. Although not conceded by the Applicant the notes of his general practitioner disclose that on 1 June 2002 his general practitioner recommended he be medically retired.

26.     In his report of 21 November 2002 Dr Mathers, Rheumatologist, took a history of the Applicant:

“He has had long-standing degenerative change.

This has been troubling him for the last ten or twelve years, affecting primarily the interscapular region of the thoracic spine and in his low lumbar region. The pains can be bad after use and also through the night. On occasions he will complain of pain radiating anteriorly to the chest wall.

His osteoarthritic problems, however, were understandable and predictable. They are related to activity and could be controlled by other physical modalities.”

And at page two of his report Dr Mathers stated “Investigations undertaken in March confirmed Ross River Exposure. I understand he was both IgG and IgM positive”.

27.     Cross examined the Applicant stated that he had told Dr Mathers that he had had problems for 10 to 12 years and that his joint pains had come on before his employment with the Respondent and that he had complained of tiredness to his general practitioner.    

28.     The comment by Dr Mathers that the investigations in March confirmed Ross River Exposure is correct. However the results of blood tests dated 18 March 2002 show that the Applicant tested positive for combined IgG/IgM antigens but IgM antigen was not detected. The pathology report reads “consistent with past, not current, Ross River Virus Infection”.   

29.     A later pathologist’s report dated 21 November 2002 again showed the Applicant’s IgM as negative and no sero-conversion.

30.     Both Dr Mathers and Dr Potter who was called by the Respondent agreed in evidence that the results of the blood tests were that the Applicant’s serology did not support a diagnosis of Ross River Fever.

31.     In order to make a diagnosis of Ross River Fever (or virus) the Applicant’s serology must show that both IgG and IgM antibodies as being positive. As the condition resolves the IgM reverts to negative but IgG will remain positive for the rest of the patient’s life.

32.     Dr Potter was strongly of the view that the Applicant had not suffered from Ross River Fever in February and March 2002. His opinion was summarised in his report of 7 May  2004 thus:

“Mr Hannaford presented with the clinical syndrome suggesting that he had in fact Ross River Fever and he has been led to believe that was a proven outcome. Such is not the case.

I had wrongly assumed that the interpretation from Dr Wall to the patient and from Dr Mathers was that the laboratory test was positive and now I have seen the results on two occasions and they are both negative.

All one can say, is that at some stage in Mr Hannaford’s life he has been exposed to the Ross River Virus Antigen.

We have no conclusive evidence that the patient suffered that disease in the time frame February March 2002 nor subsequently.

Therefore, to answer your questions, I confirm with you that I have read the new data.

I confirm with you that this new data does change my opinion. The nuclear and bone scan report from Dr Davidson only contributes to the knowledge of pre-existing degenerative change which is not relevant.

The final outcome therefore, is that the speculation of Ross River Fever is not proven.

It may have been a clinical judgement but even then Dr Mathers saw the patient eight months after the episode and had no clinical symptoms or signs to establish, convincingly, nor with laboratory convincingly, an established diagnosis but it remains a speculation ongoing.

The speculation remains valid but not biologically or otherwise proven in the laboratory.

The outcome is the patient still suffers chronic widespread pain.

Otherwise, the substance of my reports dated 8.9.03 and the interpretation 8.4.04 remain unchanged and the major pathology ongoing is chronic widespread pain.  

33.     Dr Mathers on the other hand whilst conceding that the Applicant’s serology did not support a diagnosis of Ross River Fever stated it was equally possible that the Applicant had been infected with Ross River Virus at some earlier time to February/March 2002 but  that the Applicant’s symptoms at the time were classical Ross River Fever. Dr Mathers held to his opinion that Ross River Fever had aggravated the Applicant’s pre-existing osteoarthritis.

34.     The evidence is quite clear that to support or confirm a diagnosis of Ross River Fever the Applicant’s serology must show that both positive IgG and positive IgM antibodies exist. Both rheumatologists agree that there was no positive IgM antibody.

35.     In cross examination, the Applicant admitted that he had attended on 31 August 2004 a Dr Schwarzer in Newcastle who said he would send a report to the Applicant’s solicitors. A reference to the Medical Directory of Australia 23^rd edition shows that Dr Anthony Schwarzer of New Lambton in Newcastle practices as a Rheumatologist. As the Applicant did not rely upon any report from Dr Schwarzer I can only conclude that Dr Schwarzer’s opinion would not have advanced the Applicant’s case.

36.     At the outset of the hearing in this matter I expressed the view that I would have been materially assisted by a report from a virologist. I adhere to that view. However both medical practitioners called expressed the opinion that whereas the Applicant’s serology results showed that he had had a past exposure to Ross River Virus they did not confirm a diagnosis of current Ross River Virus infection.

37.     I understand that the Applicant’s general practitioner made a working diagnosis of Ross River Fever on clinical grounds but that has been challenged and the required blood tests refute the diagnosis.

38.     It may well be that the Applicant suffered from some other parasitic infection but no evidence was led as to what that might be and it is not the task of this Tribunal to seek for itself alternative diagnosis. Whatever ailed the Applicant in February/March 2002 I am satisfied that on the basis of the blood tests performed it was not Ross River Fever. The decisions under review are therefore affirmed.    

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)                  .....................................................................................
  Associate

Dates of Hearing  17 November 2004
Date of Decision  26 November 2004
Counsel for the Applicant               Mr M Vincent
Solicitor for the Applicant                Bale Boshev
Counsel for the Respondent           Mr B Kelly
Solicitor for the Respondent           Sparke Helmore