Holt and Comcare - [2001] AATA 1057

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 1057

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/35

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VIVIENNE HOLT
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date24 December 2001
PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – severe chronic asthma – aggravation of stress related asthma – whether applicant's employment contributed to underlying asthma condition – whether applicant is entitled to ongoing payment of compensation
Safety Rehabilitation and Compensation Act 1988 sections 16, 19

ORAL REASONS FOR DECISION

24 December 2001 Senior Member WJF Purcell

This is an application for review of a decision of the respondent (Comcare) of 3 January 2001, which affirmed a determination of 4 October 2000, that Comcare was no longer liable to pay compensation to the applicant, pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act), in relation to her accepted condition of "aggravation of stress-related asthma" which occurred on 4 April 1985.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and supplementary documents, together with exhibits tendered by the parties. The applicant, who was represented by Mr Randle, gave oral evidence, and called her husband, Mr Brendan Holt, Dr Susan Taylor, her treating General Practitioner, and Professor Alpers, Senior Director of the Respiratory Unit at Flinders Medical Centre, as witnesses. Mr Cole was Counsel for Comcare, which called Professor Goldney, Department of Psychiatry, University of Adelaide, and Dr Stevenson, Consultant Physician, as witnesses.
The applicant, who is 54 years of age, was born and grew up in Adelaide. She gave evidence that on some occasions during her childhood she would become wheezy and breathless, without apparent cause, but could not connect this to any particular activity or situation, such as exercise. She never consulted a doctor in Adelaide about asthma, nor did she have any form of treatment. It was not a significant health issue. She led a very active lifestyle, walking, canoeing, and kyaking. She left school after attaining her Intermediate Certificate and worked for an accounting firm for a short time, and then for a construction firm for nearly 10 years, in a clerical capacity.
In November 1971 the applicant married Brenton Holt, who had been a member of the Australian Public Service since August 1965. She joined the Public Service in July 1973, in Adelaide, and worked in the Department of Social Security as a Clerical Assistant Grade 1. In her statement (Exhibit A1) she said that at the time of her appointment to the Public Service, she was examined by a Commonwealth Medical Officer, and her mild asthma was not seen as a deterrent. She was accepted as a permanent officer and accepted into the superannuation fund. At that time, she says, she was told that severe asthma would have precluded employment in the Public Service, and also entry into the superannuation fund. The documentary evidence discloses however, that a Benefit Classification Certificate was issued under the Superannuation Act 1922, in regard to the applicant's asthma, and the term of her probation period was extended to 12 months.
In February 1974 the applicant and her husband transferred to Canberra. She was still on probation at that time. He was transferred as an Acting Class 5 in the Department of Aboriginal Affairs, and she as a Clerk Class 1, Pharmacy Earnings and Projects, with the Department of Health; having passed her matriculation and become eligible for appointment to the Third Division of the Public Service.
The applicant and her husband resided in hostel accommodation initially, and soon after arriving in Canberra, her general practitioner, Dr Fedoroff, diagnosed bronchitis and prescribed Ventolin. She returned to work after two weeks, by which time she had been promoted to an Acting Clerk Class 2/3 dealing with Ministerial correspondence, briefs and submissions. On her evidence, her asthma symptoms became worse. By March 1975 she was using Ventolin more and more frequently, and it was having less effect. On Saturday 23 March 1975, she collapsed at home in the evening, and was admitted to Canberra Hospital suffering from an acute asthma attack with pulmonary arrest. She remained in hospital until 5 April 1975. She was readmitted on 20 April 1975, and the hospital notes read, in part:
"Over-anxious 28 year old lady … probably hyperventilation … Anxiety stems from her last admission … Has had a cough and sputum production over the last 6/52. Chest tightness not characteristic of asthma." [Exhibit A1]

She was admitted again on 1 March 1976, and remained in hospital until 6 March 1976 with a diagnosis of pneumonia. There were two later admissions unrelated to respiratory problems and she continued to be under the care of Dr Faunce, Physician, and her treating General Practitioner Dr Fedoroff.

By May 1982 the applicant had completed part-time study for her Arts degree. She was an Acting Clerk Class 8, and Executive Secretary to the Public Health Advisory Committee for the National Health and Medical Research Council. This work she says was onerous and responsible, and required the applicant to travel interstate on a regular basis, whereupon she was subjected to climate changes. She says that her office was air-conditioned, and the air was recycled due to climatic conditions, with very little admission of outside air because the outside air was colder in Canberra. Most of the people she worked with smoked, and at that time smoking was allowed in offices. She found that the smoke and perfumes affected her asthma.
In June 1982 she was offered the Clerk Class 8 Executive Officer position with the Royal Commission into the use and effects of Chemical Agents on Australian Personnel in Vietnam. There was disagreement between the applicant and her husband as to whether she should take the position – she says that was because her husband was a conscientious objector to the Vietnam War – he says in part, that he felt the Department/Commission had preconceived views and had already made up its mind; and that he could not see how the applicant with her asthma would handle the work with early flights out of Canberra. In any event, the applicant moved out of the home, and although on their evidence, they continued to share a bank account and pay the mortgage jointly, they did not reconcile until May 1985. In the meantime the husband had been "invalided out" of the Public Service, in March 1984 and in addition, was in receipt of compensation payments from Comcare. That situation continues.
On 23 April 1985 the applicant was admitted to the Canberra Hospital with a "history of wheeze and breathlessness for one day". The hospital notes read in part "Mild to moderate asthma attack. Marked improvement with ventilator". She was discharged from hospital on 27 April 1985. She said in evidence that she rang her husband soon after her release; and they reconciled thereafter. The applicant has not returned to work since this incident.
On 27 April 1985 Dr Faunce reported that a review of the applicant's medical state suggested that she be assessed/advised to retire from the Public Service on medical grounds. On 3 May 1985 she was examined by a Commonwealth Medical Officer for continued employment or retirement on invalidity grounds. The history recorded reads as follows:
"Clerk Class 8. Commenced A.P.S. 25/7/73. B.C.C. Asthma since early childhood – usually triggered by viral illness then. Was often on antibiotics and ventolin. Came to Canberra from Adelaide 1973 – feels asthma has been worse since then – more frequent attacks, more episodes of bronchitis, pneumonia and pleurisy.
Severe asthma attacks 3-4x/year. Milder attacks every night. Hospitalised usually about 1x per year. 1974 – cardiorespiratory arrest and nearly died. On regular Ventolin Nebuliser Steroids now (oral). Recent severe attack and hospitalisation 23/4/85. Feels work stress and Canberra climate are exacerbating her condition." [T6/18]
On 6 June 1985 the applicant lodged a claim for compensation for "aggravation of severe chronic asthma" as a result of "constant change of climate due to continuous (weekly) travel and severe stress due to the workload and responsibility of the duties". In her attached statement in support she stated that she had previously suffered from the disease in 1975. The statement reads in part as follows:
"Whilst I had made a satisfactory recovery from the earlier (1975) incident which occurred as a consequence of the move to the Canberra climate, I began to notice alarming symptoms in January 1984. To cope with the everchanging climate and the stress of the position I resorted to appropriate medication to alleviate the symptoms. Unfortunately, a lessening of the frequency of travel and a more equitable sharing of the duties and responsibilities were not possible. Consequently my condition worsened to the point where it was no longer possible for me to carry out the duties of my position." [T7/22]
On 4 September 1985 Comcare accepted liability for contraction of the disease "stress related asthma" with the deemed date of injury as 4 April 1985. On 31 January 1986, the relevant section 19 - Retirement Instrument - was signed by the delegate of the Secretary of the Department of Health with effect from 15 August 1985 (Exhibit R7). On 4 April 1986 the Benefit Classification Certificate, in relation to the applicant's asthma, was issued in accordance with section 184(2) of the Superannuation Act 1986, by the delegate of the Commissioner for Superannuation. The applicant continued to receive pension from the superannuation fund, and in addition, payments from Comcare, until the primary determination on 4 October 2000.
In a determination dated 17 July 1986 Comcare stated that it had accepted liability for contraction of the disease, rather than an aggravation of an underlying disease, as diagnosed by Dr Faunce on 26 August 1985. The delegate amended the accepted condition to read "aggravation of stress-related asthma".
The applicant and her husband returned to South Australia in October 1987, and purchased a home at Aldgate. At the suggestion of her brother-in-law, a medical practitioner, she consulted Professor Alpers, who was at that time Associate Professor, Senior Director of the Respiratory Unit at Flinders Medical Centre. He subsequently provided a report dated 24 January 1989 (T52/90) in which he stated that he first saw the applicant on 5 November 1987. He noted that her asthma began at the age of two, and that she had recurrent episodes of bronchitis, pleurisy and pneumonia; and that she was hospitalised at the Royal Canberra Hospital, four times with pneumonia and asthma. Trigger factors had been identified as changes of temperature, exercise, cold, stress, house dust, cats, pollens, horses and possibly pine trees. Professor Alpers detailed the applicant's problems as severe asthma, on the basis of the history, nasal polyps, and psycho-social information. He noted that on the last occasion he saw her, 22 July 1998, the applicant was in good health, "particularly now that stress has been removed from her environment, and that air conditioned office accommodation is not a feature of her daily life". He considered, however, that the applicant was "incapacitated for stressful employment, and probably also for employment involving travel, air conditioned offices and uncontrolled dietary situations". He stated further that "it is not clear that the previous aggravating stressors of Commonwealth employment have caused permanent incapacity as she is certainly in good spirits and good respiratory health when last seen on 22 July 1988".
Professor Alpers in a subsequent report dated 1 June 1989 (T54/95) stated that in regard to aggravating aspects of stress on the applicant's asthma, it was clear that this is a continuing problem as witnessed by the recent stress of the applicant's mother's death. He said also that the applicant was unemployable at her previous level because of the stress involved. He considered it probable that the effect of past stressors while working for the Commonwealth Public Service (i.e. in 1985) had left her less able to cope with current non work related stressors in her life.
Dr Truman, Psychiatrist, examined the applicant at the request of Comcare, and provided a report dated 13 June 1989 (T59/106). She presented with a history of stress-related asthma, and that together with the aggravation of her asthmatic condition, she developed anxiety and tension symptoms. He stated that:
"…
The major stress factor in her life is the perceived victimisation of her case by Comcare. She talks of needless review of her condition and the selective interpretation of data already on her files. She has a sense of impotent frustration at not being able to resolve this conflict with Comcare.
…"
On 4 October 2000, Comcare determined to cease liability pursuant to sections 16 and 19 of the Act, on the ground that it was not satisfied that the applicant's previous employment still contributed to her underlying asthma condition. This decision was affirmed on 3 January 2001 by the decision under review. On 18 January 2001 the applicant applied to this Tribunal for review of that decision.
The applicant submits that she suffered from mild asthma from childhood, which was quiescent until she was placed under pressure at work in Canberra. When these pressures built up, the asthma which had been otherwise under control, became out of control, and lead to the collapse and hospitalization of March 1975. The applicant's asthma, she maintains, remained under control, until the work pressure again built up in April 1985 – leading to further hospitalization, and inability to continue working in such a stressful environment.
The applicant submits finally that the stress related aggravation of 1985 persists until today, and plays a role in her inability to go back tomorrow, into this type of work environment. The medical evidence supports a plausible and consistent scenario where stress was, and is, a factor which endures. The applicant is totally incapacitated for the work she was performing, and is entitled therefore to ongoing payment of compensation.
Comcare argues that the applicant had a history of asthma before she went to Canberra and that soon after her arrival in Canberra, she had some flair ups. It accepts that work stress aggravated her asthma symptoms in 1985, but maintains that it had no permanent effect, and that the symptoms which arose from these aggravations, have resolved. The applicant's asthma is either in a comparable position to her pre-Canberra state, or alternatively her current condition is the result of the natural course of her underlying condition of asthma. Any effects of the work related conditions had ceased by October 2000.
The applicant gave lengthy oral testimony. It must have been difficult for her to call to mind details of events that occurred many years ago; particularly in relation to her hospitalization in March 1975. I gained the impression however, that she was want to emphasise details favourable to her assertions, and to minimise unfavourable aspects of the history. I consider that she understated the level of symptoms of asthma she suffered prior to the condition being considered of sufficient significance by the Commonwealth Medical Officer, in 1973, to extend her probation period, and for a Benefit Classification Certificate to issue for the purpose of her eligibility for superannuation.
I consider that the applicant exaggerated the level of work stressors she was experiencing at the time of her first hospitalization in, Canberra, in March 1975. There was no assertion by her, even in 1985 when she applied for compensation for the April 1985 aggravation of her asthma, that the 1975 hospitalization was relevant to work conditions and stress. I consider that the alleged work related stress factors have been exaggerated for the purpose of these proceedings.
The applicant's husband gave oral testimony also. He claimed no knowledge at all, before Canberra, of any asthma condition suffered by the applicant. He had noted no symptoms at all in the 9 years he had known the applicant before they travelled to Canberra. Perhaps he does not have a good memory, but I find it difficult to accept that he observed no symptoms in the applicant over that 9 year period. I consider that in a manner similar to the applicant, he emphasized the positive aspects, whilst downplaying or denying, the negative aspects of the history.
In any event, much of the history of events in 1975 are peripheral only, in that the decision under review, in 1985, relates to a condition of "aggravation of stress related asthma" with an injury date of 4 April 1985. The question remains as to whether the effects of the work related injury persist beyond 4 October 2000.
The other witnesses were medical practitioners, all of whom gave objective and helpful testimony. I prefer the evidence, and views, of Dr Stevenson and Professor Goldney in any area of dispute in the medical evidence.
The applicant called Professor Alpers who in his evidence expanded upon his written reports. He has not been consulted by the applicant as a patient, since July 1988. Professor Alpers saw the applicant on 29 May 1989, for the purpose of preparation of the report for Comcare, and on 8 August 2000 for preparation of a further report in relation to these proceedings.
All the medical specialists gave evidence of the medical profession's changing views, over the last 20-30 years, of the effect of stress on the development or aggravation of conditions such as hypertension, stomach ulcers and asthma. Although the role of stress may be regarded by some researchers in the 1990's/2000, as less dominant a cause, all the medical specialists acknowledged that stress was, in effect, a relevant consideration.
Professor Alpers said in evidence, that stress does not cause asthma, but that asthma is a chronic illness, and patients have psychological difficulties coping with a chronic illness. This stress of coping with the condition, has been relieved by the applicant's return to South Australia, where she reported to him she had a stress-free environment, and no wheezing or breathlessness. Professor Alpers considers that the applicant's treating General Practitioner, Dr Taylor, has the condition well controlled. He said that drugs are used now as part of a regular and permanent regime of treatment. Such treatment is to prevent major occurrences, rather than treat a major event when it occurs. A different approach from the past, where a major event occurred and treatment followed.
Dr Taylor gave evidence that the trigger factors she considered relevant to the applicant's condition, included exposure to air conditioning, cigarette smoke, stress and anxiety, aerosols and perfumes, and rapid temperature changes. Viral respiratory infections also trigger the applicant's asthma. Dr Taylor considered the applicant's asthma was a chronic condition managed by preventative medicine, avoidance of trigger factors, and a restricted lifestyle. It was most unlikely that the applicant's condition would improve. Dr Taylor was under the mistaken understanding that Comcare had accepted liability for causation of the applicant's condition, rather than for an aggravation of an existing condition. Her views and evidence must be seen therefore in the light of that misunderstanding.

Comcare called Dr Stevenson, Consultant Physician, who reported on 17 April 2001 (Exhibit R4) that the applicant had a well documented history of chronic bronchial asthma, which currently appeared under good control. He expressed the view in his evidence that her current condition was not caused or materially contributed to by the applicant's former employment with the Commonwealth. Dr Stevenson noted that in the past bronchial asthma was thought to be a psychosomatic condition significantly affected by emotional stress. The role of stressors has, however, been seen as less important in recent years, with better understanding of the pathology. Dr Stevenson stated that:
"…
It appears adequately documented that this lady had a substantial period of quite sever asthma in the 70s and 80s. The causes of the exacerbation are unclear. They could have represented infection, allergic reaction to pollens and grasses in the Canberra region or heightened reactivity to cold in the Canberra winters. Oesophageal reflux is now a well established cause for the worsening of asthma and there is also the possibility that some of the attacks represented laryngeal dysponoea due to anxiety. I note the conclusion of medical attendants that her asthma was worsened by stress. On current understanding, this proposition would seem to be relatively unlikely and allergic or seasonal factors may have been more important cofounders. However, in general terms, the effects of any extraneous stress could plausibly be seen not as causing or fundamentally altering the course of her asthma, but at most rather speculatively possibly precipitating the individual attacks. I would have to conclude that if there was any such aggravation, which appears unclear, it would now have resolved.
…"
Professor Goldney, Psychiatrist, provided a report to Comcare dated 15 June 2001 (Exhibit R1). He said in evidence, that when he saw the applicant, he did not consider that she had sufficient symptoms of emotional distress to warrant a psychiatric diagnosis. He considered that if the applicant had significant anxiety associated with her work, then it is probable that this would have resolved within months of her leaving work in contrast to other issues of an interpersonal nature. Professor Goldney noted that the Canberra Hospital notes recorded a number of issues relating to family and interpersonal stressors that were not referred to in the medical reports obtained by Comcare at the time liability was accepted. Professor Goldney was of the opinion that:
"These issues do not negate the possibility that work factors were contributing to Mrs. Holt's condition. However it does place any work related factors in a different perspective to that which appears to have been given in the documentation provided. Having noted the above, it is evident that if there has been a psychological component to Mrs. Holt's asthma, and I appreciate the contemporary views about such psychological components differ to the views of 15 years ago, any such psychiatric condition would appear to have been relatively transient or episodic."
In these brief reasons for decision, I am unable to outline in any greater detail the extensive evidence provided by the medical witness, all details of which I have taken into account in my deliberations. I have examined the whole of the evidence carefully and in detail and I have taken into account the parties' submissions.
I consider that on the whole of the evidence, the applicant's asthma is aggravated by change in temperature, exposure to air conditioning, perfumes and other factors, including stress, as outlined in particular, by Professor Alpers and Dr Taylor; but on the evidence also, the applicant has suffered asthma since childhood. Comcare accepted liability for aggravation of stress-related asthma, which occurred on 4 April 1985. The applicant continued to be compensated for this aggravation for 15 years, until 4 October 2000. In that 15 years she suffered no major asthma attack; she has not seen her treating specialist, Professor Alpers, for 13 years. Her treating General Practitioner, Dr Taylor, has monitored her condition and prescribed ongoing and regular medication to keep her symptoms at bay.
I accept the evidence of Professor Goldney and Dr Stevenson to the effect that any work-related stress was transient or episodic, and would have ceased some 15 years later, when the primary decision was made. I am satisfied on the evidence and find as a fact that any work-related aggravation of the applicant's condition of stress related asthma had ceased by 4 October 2000.
For these reasons the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  18-20 December 2001
Date of Decision  24 December 2001
Counsel for the Applicant        Mr M Randle
Solicitor for the Applicant         Randle & Taylor
Counsel for the Respondent    Mr S Cole
Solicitor for the Respondent    Sparke Helmore