Juliana Corby and Comcare

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[2015] AATA 42

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/1655

2012/0134

Re

Juliana Corby

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President K Bean
Date 29 January 2015
Place Adelaide

The decisions under review are affirmed.

........... [Sgd] ..........................................

Deputy President K Bean

CATCHWORDS

COMPENSATION – Commonwealth employees – Claims for fibromyalgia, chronic fatigue syndrome, and pneumonia – Whether claimed conditions significantly contributed to by employment with ATO – Whether applicant suffered an aggravation of her conditions – Whether any aggravation resulted in incapacity or impairment – Decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7(6), 14

REASONS FOR DECISION

Deputy President K Bean

29 January 2015

  1. The applicant, Ms Corby, is 48 years old. She commenced working for the Australian Taxation Office (ATO) as a “pre-legal debt case manager” in August 2005.

  2. Although she had had significant health issues previously, unfortunately from approximately the middle of 2008 Ms Corby’s health began to deteriorate significantly, and in the first half of 2009 she was diagnosed with fibromyalgia (FM) and chronic fatigue syndrome (CFS).[1]

    [1]     Exhibit 1, T3/11.

  3. Part of Ms Corby’s case is that these conditions, or at least her CFS, can be traced back to a period in mid-2008 when she became acutely unwell and was diagnosed with viral pneumonia. Ms Corby contends that she contracted the illness diagnosed as viral pneumonia in her workplace, and by reason of that and other stressful events and conditions she was subjected to by her employer, the respiratory illness she suffered in mid-2008, as well as her FM and CFS, are all compensable conditions.

  4. On 21 September 2010, Ms Corby accordingly made a claim for compensation for the conditions of “chronic fibromyalgia”, “chronic fatigue syndrome” and “stress”.[2] On 26 July 2011, she made a further claim for compensation for a “cold/and/or pneumonia”.[3] Both of these claims were denied initially and upon reconsideration, and on 4 May 2011 and 12 January 2012 respectively, Ms Corby lodged applications with this Tribunal seeking review of the relevant decisions.[4]

    [2]     Exhibit 1, T23/53 - 68.

    [3]     Exhibit 2, T3/13 - 32.

    [4]     Exhibit 1, T1/2 - 5 and Exhibit 2, T1/2 - 4.

  5. In broad terms therefore, the issue before me is whether any of the claimed conditions are compensable under the applicable Act, being the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). As the answer to that question depends upon the application of a number of different provisions of the SRC Act, I will next set out the applicable statutory framework, before identifying the issues with more precision.

    THE STATUTORY FRAMEWORK

  6. The “gateway” provision of the SRC Act is s 14, which relevantly provides as follows:

    14  Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

  7. The term “injury” is defined in the Act to…

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Details
Case
[2015] AATA 42
Decision Date

CaseChat Overview and Summary

The case of Juliana Corby and Comcare involves a dispute regarding the claimant's claims for compensation for fibromyalgia, chronic fatigue syndrome, and pneumonia, which she alleged were significantly contributed to by her employment with the Australian Taxation Office (ATO). The case was heard by the Administrative Appeals Tribunal (AAT). The primary legal issues the court needed to decide were whether the claimed conditions were significantly contributed to by the claimant's employment, and whether any aggravation of her conditions resulted in incapacity or impairment that would give rise to compensation liability.

The court examined the evidence provided by the claimant's treating physician, Dr Kwiatek, who suggested that the claimant's conditions could have been triggered by a significant viral illness and workplace bullying. However, the court concluded that the claimant's employment did not make a significant contribution to the development of her fibromyalgia and chronic fatigue syndrome. The court also considered the claimant's argument that her employment contributed to the aggravation of her conditions, but found that it did not sufficiently demonstrate that any aggravation resulted in incapacity or impairment.

The court's reasoning was based on the evidence presented and the legal framework set out in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court found that the claimant's claims for compensation were not supported by the evidence, and affirmed the decisions under review.

The final orders of the court were to affirm the decisions under review, which determined that Comcare was not liable for the claimant's fibromyalgia and chronic fatigue syndrome, and that the claimant was not entitled to compensation for aggravation of her conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Of course, it follows from my conclusion that Ms Corby’s respiratory infection in 2008 was not attributable to her employment, that the argument outline at paragraph 9.2 cannot succeed. The argument outlined at paragraph 9.4 is directed to an exacerbation rather than the compensability of the conditions themselves, and I will return to that issue later in my Reasons. That leaves Ms Corby’s other two arguments, as outlined in paragraphs 9.1 and 9.3, each of which I will address in this section of my Reasons. Before doing so, however, I propose to briefly set out what I understand to be the most salient aspects of the evidence of Ms Corby’s treating Consultant Physician, Dr Kwiatek.Dr Kwiatek’s evidence as to the causes of CFS and FM In his report of 29 April 2013, Dr Kwiatek stated that:[T]he literature strongly suggests that physical injury, infection and psychosocial stress can act as environmental stressors contributing to the development of musculoskeletal pain syndromes, and indeed are increasingly recognised as risk factors for so-called functional somatic syndromes in general.[10]He went on to add that “The chronic fatigue literature contains quite high quality evidence that the severity of viral infections is the critical determinant of risk of developing post viral chronic fatigue syndrome …”.[11] And:[T]he literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … .[12][10] Exhibit 6, p. 58.[11] Exhibit 6, p. 59.[12] Exhibit 6, p. 69. With respect to Ms Corby’s circumstances and the likely contributors to her illness, he stated:With regards to the onset of her condition in mid 2008, Ms Corby reported that it was triggered by a significant viral illness, seemingly interpreted as viral pneumonia by one or more parties, and at least in part she had been predisposed to this, as she had been subject to extreme pressure from her managers to return to work early, despite having had inadequate time off work to convalesce, such that she was significantly unwell when she returned to work.[13]He continued:From the events as presented to me, it seems more likely than not that if Ms Corby did not have the significant viral illness of mid 2008 she would not have developed her overlapping fibromyalgia and chronic fatigue syndromes and would not be in her current predicament.[14]He added:I submit that it is generally accepted medical (and lay) practice that adequate rest is indicated for all individuals to enable successful recovery from significant infectious illness. I therefore suggest that there appears to be a prima facie case that Ms Corby inappropriately returned to work earlier than she should have in mid-2008. [15]And:With regards to Ms Corby’s general decline since 2008, my letter to general practitioner Dr Wade dated 18 November 2011 documents that Ms Corby had alleged that she was being subjected to workplace bullying. With regards to this, the literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … and I suggest that such work-related stress is highly likely to have contributed substantially to Ms Corby’s current status, whether only occurring in late 2011 and/or at other times.[16][13] Exhibit 6, p. 59.[14] Exhibit 6, p. 59.[15] Exhibit 6, p. 59.[16] Exhibit 6, p. 59.

Decision

Reasons for decision

In these circumstances, I am not satisfied that stress or distress resulting from having to call the UPL line during the period December 2008 to June 2009 made a significant contribution to the development of Ms Corby’s FM/CFS. Nor am I satisfied that any combination of the potential contributions I have discussed above, taken together, made a significant contribution to the development of Ms Corby’s FM/CFS.Conclusion It follows from my conclusions in relation to each of the potential work-related contributors to Ms Corby’s condition that I am not satisfied that any aspect of Ms Corby’s employment made a significant contribution to the development of her FM/CFS, and insofar as the decision under review determined that the respondent was not liable pursuant to s 14 of the SRC Act for either condition, I propose to affirm that decision. However, that still leaves the question of whether Ms Corby suffered any ‘aggravation’ of her condition for which the respondent is liable.DID MS CORBY SUFFER ANY COMPENSABLE AGGRAVATION(S) OF HER CFS/FM? As I have alluded to above, in the alternative to her argument that her employment contributed to the development of her CFS/FM, Ms Corby contends that it contributed to aggravations of the condition. She says the mechanism by which this occurred was the emotional distress caused to her by “some of the practices and processes at work”.[23] Ms Corby relies in particular upon the following events, practices and processes:[23] Submissions on behalf of the applicant dated 11 August 2014, [26].26.The applicant experienced emotional distress because of some of the practices and processes at work:26.1.The applicant found the process of explaining in a telephone call to the UPL line a very distressing experience. 26.2.She also considered some of the behaviour exhibited towards her by her colleagues and superiors to be in the nature of bullying; ie: 26.2.1.receiving two phone calls while in the ED at FMC demanding she come to work;26.2.2.constant phone calls to her at home when on sick leave;26.2.3.providing details of what was wrong; ie; ‘why can’t you move your legs?’;26.2.4.mocked and yelled at whilst at work, especially mocking her physical movements;26.2.5.denied access to the system codes and thus unable to work – there for a reduced time, leading to increase pressure to complete tasks in a timely manner;26.2.6.monitored toilet breaks – leading to humiliating hygiene accidents;26.2.7.excessive one on one meetings with team leader about work performance.[24][24] Submissions on behalf of the applicant dated 11 August 2014, pp. 12 - 13. This aspect of Ms Corby’s case raises a number of potential issues, including the question of whether any particular ‘flare-up’ in her symptoms should properly be regarded as an ‘aggravation’ within the meaning of the SRC Act, and whether any ‘aggravation’ resulted in incapacity or impairment, so as to potentially give rise to compensation liability[25]. However, I propose to first address the more fundamental issue of whether Ms Corby’s employment made a significant contribution to any aggravation of her condition before turning to these other issues to the extent necessary.Was any aggravation contributed to “to a significant degree” by Ms Corby’s employment?[25] SRC Act, s 14.Ms Corby’s contentions

Ratio Decidendi

Legal Principle Established

In a report to Comcare dated 1 November 2010, Dr Kwiatek also answered the questions put to him as follows:6.In your opinion, when did Mrs Corby first suffer from clinically identifiable symptoms of a psychological condition? Please provide details in respect of clinical signs and symptoms which support your opinion.Perusal of copies of my clinical notes indicates that Mrs Corby has been suffering from psychological distress throughout her time of association with me. It would appear that this is multifactorial, principally for marital reasons, as well as because of distressing physical symptoms.…8.In your opinion, is Mrs Corby’s current medical condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so, what is the nature of that aggravation?Not applicable, but it should be noted that in general excessive psychological distress can exacerbate the symptoms of both the fibromyalgia and chronic fatigue syndromes, setting up a positive feedback loop.…10.In your opinion, what are the main factors (both employment related and non-employment related) which have contributed to Mrs Corby’s claimed medical condition?It is in my opinion that Mrs Corby’s psychological condition of psychological distress have (sic) been triggered by the combined factors of lack of marital support and the distressing nature of her disabling physical symptoms. [45][45] Exhibit 1, T35/104. In his report of 18 November 2011, Dr Kwiatek stated:Upon review I learned that stress at home is vastly reduced as her two older sons have moved out of house. Work related stress came to a peak a week ago as she made a complaint about the manager who was bullying her. It seems that therefore motions are being set to invalid her out of the Commonwealth Public Service.[46][46] Exhibit 3, p. 129. On 5 April 2012, Dr Kwiatek also reported to the ATO that “Ms Corby did not improve historically with either modified duties or reduced hours”.[47][47] Exhibit 3, p. 156. In a report of 23 August 2012 he referred to the fact that Ms Corby’s “medical condition is easily aggravated by any stress”[48] and “it has been readily apparent on her recent consultations with me that this is significantly occurring”[49], and went on to state:Environmental stressors, whether physical (such as intercurrent infections) or psychological (including marital stress, workplace bullying and financial stress), have respectively caused exacerbations of her clinical state.[50][48] Exhibit 6, p. 46.[49] Exhibit 6, p. 46.[50] Exhibit 6, p. 47. In his report to Ms Corby’s solicitors dated 29 April 2013, Dr Kwiatek stated:The overall impression is that in recent years Ms Corby has continued to slowly deteriorate, more recently principally because of financial stresses but also the stress of taking on a Comcare claim.[51][51] Exhibit 6, p. 58. Later in his report he stated:With regards to Ms Corby’s general decline since 2008, my letter to general practitioner Dr Wade dated 18 November 2011 documents that Ms Corby had alleged that she was being subjected to workplace bullying. With regards to this, the literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … and I suggest that such work-related stress is highly likely to have contributed substantially to Ms Corby’s current status, whether only occurring in late 2011 and/or at other times.[52]And:From the evidence presented to me, Ms Corby’s psychological distress appears to be entirely related to the effects of her chronic fatigue overlapping with the fibromyalgia syndrome and do not predate June 2008, which appears to be Dr Stevenson’s interpretation of the sequence of events. However, it is acknowledged that a subgroup of patients with these disorders can develop them purely as a consequence of psychological issues (if they are genetically predisposed to do so).[53][52] Exhibit 6, p. 59.[53] Exhibit 6, p. 62.