Margaret Armstrong and Comcare
[2014] AATA 658
•10 September 2014
[2014] AATA 658
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3955
Re
Margaret Armstrong
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke Senior Member
Dr P. Wilkins, MemberDate 10 September 2014 Place Canberra The decision under review is affirmed.
......................[sgd]..................................................
RM Creyke Senior Member
Catchwords
COMPENSATION – Commonwealth employee – accepted aggravation of injury – wether applicant suffers a permanent impairment as a result of accepted condition – whether the impairment exceeds 10 percent whole person threshold
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), the salient provisions being section 4(1), 5A, 5B, 24, 27.
Cases
Re Carson and Comcare [2003] AATA 112
Re Milenkovic and Comcare [1993] AATA 17
Re Rees and Comcare [1996] AATA 104
Re Nelson and Comcare [2009] AATA 874.
Re Brice and Comcare (2007) 96 ALD 171Secondary Materials
American Medical Association Guides to the Evaluation of Permanent Impairment (5th edn, 2001)
Comcare, Guide to the Assessment of the Degree of PermanentImpairment (edn 2.1)
DW Black et al ‘The Iowa follow-up of chemically sensitive persons’ (933 Ann. NY Acad Sc, 2001) 48-56.
Macquarie Dictionary (6th rev’n, 2013)REASONS FOR DECISION
RM Creyke Senior Member
Dr P. Wilkins, Member
Ms Margaret Armstrong, born 1952, has an accepted condition of ‘aggravation of allergic rhinitis, cause unspecified’, described in the reviewable decision as ‘aggravation of multiple chemical sensitivity (MCS)’, with a deemed date of injury of 28 October 2011.
On 17 April 2013, Ms Armstrong sought compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for her accepted condition.
On 6 June 2013, the claim was rejected, a decision upheld on review on 2 August 2013.
Ms Armstrong sought further review by the Tribunal on 12 August 2013. The matter was heard in Canberra and by telephone to Orange, NSW, on 8 August 2014.
Background
Ms Armstrong was formerly employed by the Department of Human Services (agency), Orange, NSW as a Customer Services Adviser. She was invalidity retired from 30 April 2013.
Ms Armstrong attributed her condition to ‘constant exposure to perfumes/oils and chemicals’, a condition she first noticed in about 1995. The condition worsened slightly in the years between the mid-1990s and 2006, but markedly in late 2011 to early 2012.
The significant sensitivity increase occurred after the agency moved into a new air-conditioned and sealed building in late 2011, when Ms Armstrong was exposed to residual smells of new carpet, fittings, paint and glue, as well as perfumes. Formerly the agency had been housed in an older style building in which groups of staff had separate rooms, windows could be opened, and Ms Armstrong’s group had agreed not to wear perfumes. The new building was largely open-plan and there was no general agreement not to wear perfumes. Ms Armstrong says that it is exposure to perfumes which is the principal trigger for her condition.
Ms Armstrong lodged six incident reports between 24 October 2011 and 31 January 2012 concerning adverse reactions to chemicals and perfumes at work. One of these occasions occurred on 16 November 2011 when Ms Armstrong had to be taken by ambulance to the local hospital. She says she was experiencing nausea, disorientation, headaches, dizziness and chest pain.
She was tested at the hospital for exertional angina as she had told the hospital that she had been mowing the lawn not long before the episode. However, she was cleared. No diagnosis was made. At the hearing, Ms Armstrong also said on the day on which she was mowing, smoke had been around. There were no records on the day of her being affected by smoke but this may have been because her MCS had not then been diagnosed and she may not have realised this was a possible cause.
Ms Armstrong said she had another severe reaction in February 2012, but on this occasion she took herself outside the building for a period and after a while recovered. She then went home and has not subsequently returned to work.
Ms Armstrong said that although MCS remained a controversial diagnosis in many quarters, it has been accepted as a physical disease for inclusion in the WHO [World Health Organisation] International Classification of Diseases ICD – 10, and by the Austrian Health Department, and in Germany, Luxembourg and Japan.
Medical evidence
Dr Marja deJong
Dr deJong, a general practitioner, provided a medical certificate on 25 October 2011 certifying that Ms Armstrong was allergic to perfumes and she requested assistance from the agency to enable Ms Armstrong to avoid such exposure.
Dr Christine Willis
Ms Armstrong’s current general practitioner, Dr Christine Willis, in a medical certificate dated 1 February 2012, diagnosed the condition as chemical hypersensitivity syndrome. In a report dated 29 February 2012 she described Ms Armstrong’s impairments as ‘sinusitis, dizziness, headache and chest tightness’. In her view the ‘condition is an exacerbation of a pre-existing condition due to workplace environmental changes’.
In a further report dated 19 April 2013, Dr Willis found that the condition was ‘exacerbated by exposure at work’. However, she said ‘it is impossible to conclude with any certainly whether the increased irritant exposure of perfumes and new building chemicals have contributed to disease progression’, or whether ‘her condition would have deteriorated without this additional exposure’. She did find that the condition ‘was likely to continue indefinitely and was unlikely to improve to any significant extent’. She did not assess a percentage degree of impairment but said her ‘level of impairment is variable from mild to moderately severe’.
In a letter to Comcare dated 21 June 2013, Dr Willis said Ms Armstrong’s symptoms have:
… resulted in impairment of her daily activities including reduced social and leisure activities, and difficulty in performing routine activities such as attending church, shopping and attending appointments.
She also noted that ‘Patients with this syndrome only get symptom relief from avoidance of triggers, and that in general the illness is a chronic one’. Finally, she said Ms Armstrong was ‘seeing a psychologist to assist with the emotional and psychological strain’.
Dr Graham Pulley
Dr Pulley, a general practitioner with a particular interest in allergic disease, intolerances and hypersensitivities, said in a report to Dr Willis 15 February 2012, that Ms Armstrong had MCS and had a past history of depression. His report noted that her sister had difficulty tolerating some chemicals and smoke.
In a report to Comcare dated 22 February 2012, Dr Pulley said that testing of Ms Armstrong had indicated sensitivity to glycerine, phenol, petroleum products, sodium salicylate, and sodium benzoate. In practical terms these are found in essential oils, most make-ups, hand creams, cleaning products and some teas, with perfumes being the main offender. As he said ‘the only practical treatment for a condition such as this is avoidance of triggers’.
Dr Pulley considered Ms Armstrong was one of a small group of people who are highly allergic to chemicals. He concluded that the condition involved a severe chemical hypersensitivity, which was an aggravation of a pre-existing condition, but became worse in her workplace after the move of offices because it was sealed and air-conditioned and other staff continued to wear perfumes.
Dr Leon Le Leu
Dr Le Leu, occupational physician, provided a report for rehabilitation purposes, dated 21 February 2013, and a fitness for Duty Assessment, of the same date. His conclusions were that Ms Armstrong’s only work-related option was to withdraw from sensitising agents and in her case that meant from the workplace. He said she could develop a business from home but this was unlikely given her age. He agreed with Dr Pulley that antihistamines did not help, and desensitisation was ineffective, but the mechanism of the condition was not a classic allergic one.
In his second, fitness for duty, assessment Dr Le Leu conceded that MCS was a controversial diagnosis but in Ms Armstrong’s case he considered other possibilities had been exhausted. He recommended she be retired on invalidity grounds.
In a report to the agency dated 18 April 2012, Dr Le Leu said there was no prospect of work-related rehabilitation for Ms Armstrong in her current workplace while other officers continued to wear perfume. He said the only treatment was withdrawal from the noxious agent or the noxious environment. In his view she had no ‘psychosocial, motivational or other medical barriers’ to working.
Professor Paul Gatenby
Professor Gatenby, consultant allergist/immunologist, provided a report on 19 March 2012. He referred to the development of her condition culminating in her emergency visit to Orange Base Hospital when she had a severe headache, fullness in her sinuses, chest tightness and breathing difficulties. He noted that Ms Armstrong also had a history of depression, and suffers from irritable bowel syndrome.
Professor Gatenby concluded Ms Armstrong met the ‘proposed diagnostic criteria for Multiple Chemical Sensitivity (MCS)’, but noted there were ‘no validated diagnostic criteria’. He quoted Dr Willis that there is controversy as to whether the condition is a new illness or has a biological basis, and as to its cause and its treatment. In the view of Professor Gatenby, Ms Armstrong’s anxiety and depression contribute to what he described as a ‘nocebo effect’, that is a negative attitude to perfumes/oils and chemicals which was reinforced by recurrent exposure.
In his view Ms Armstrong’s condition originated in her personal sphere, when she began to be discomforted by her own perfumes. However, he acknowledged that ‘the aversion may have been sustained and worsened by the workplace experience’. As he concluded the condition was not ‘caused’ by her workplace, but was aggravated by it. [T23, 86] He said in the absence of ‘validated diagnostic indicators’, he could not comment on whether the condition was an ‘aggravation’ of a pre-existing or underlying condition. In his view the acceleration of the condition after November 2011, ‘appears to coincide with a not unreasonable hardening of the attitude of management and subsequent compensation action’. He also said there was no permanent damage.
In a supplementary report dated 28 February 2014, Professor Gatenby confirmed that Ms Armstrong did not have an allergic problem. He confirmed she had MCS, a ‘potentially very long lasting’ condition, ‘possibly permanent’, and that treatment ‘is removal from exposure to volatile chemical irritants’. He acknowledged that MCS is ‘a disturbance of a “person’s bodily or mental functions” and an impairment is a “malfunction of a bodily system”’. He agreed with Dr Willis that it ‘is impossible to conclude with any certainty whether the increased irritant exposure of perfumes and new building chemicals have contributed to disease progression’. He referred to a study from Iowa that some 55 per cent of patients with MCS recovered.[1]
[1] DW Black et al ‘The Iowa follow-up of chemically sensitive persons’ (933 Ann. NY Acad Sc, 2001) 48-56.
In a further report of 29 July 2014, Professor Gatenby commented on a letter from Ms Armstrong about the nature of MCS. He said he was inclined to accept her view that the symptoms were more akin to a disability than an impairment.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act), the salient provisions being section 4(1), 5A, 5B, 24, 27.
Section 28 of the Act provides for the issuance of the Guide to the Assessment of the Degree of PermanentImpairment (edn 2.1) (Guide).
Issues
The issues are:
· Whether Ms Armstrong suffers a permanent impairment as a result of her accepted ‘injury’ within the meaning of the Act;
· If so, whether her impairment meets or exceeds the 10 per cent whole person threshold contained in section 24(7) of the Act; and
· What, if any, is Ms Armstrong’s entitlement to compensation under section 24 and 27 of the Act in respect of ‘aggravation of MCS’?
Consideration
Ms Armstrong claims she is permanently impaired due to her accepted condition, ‘aggravation of multiple chemical sensitivity syndrome’.
The Act defines relevant terms as follows:
· ‘”impairment” means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’;[2]
· ‘”non-economic loss”, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairmentand of which the employee is aware;[3]
·‘”permanent” means likely to continue indefinitely’.[4]
Whether Ms Armstrong suffers a permanent impairment as a result of her accepted ‘injury’ within the meaning of the Act
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘impairment’.
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s4(1) – definition of ‘non-economic loss’.
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘permanent’.
On 5 April 2012, Comcare accepted that Ms Armstrong suffered from a compensable condition in accordance with section 14 of the Act. The condition was then described as ‘aggravation of allergic rhinitis, cause unspecified’, but this was changed later to MCS. The acceptance of liability was because Ms Armstrong’s pre-existing sensitivity was aggravated by employment. Her exposure to volatile chemicals, particularly perfume, in the work environment was apparently the trigger for the worsening of the condition. This followed the move to the new agency building. The Tribunal is satisfied that this concession is correctly made, and notes that the initial determination of liability is not in issue.
Section 24(1) of the Act states that compensation is only payable in respect of a permanent impairment which ‘results from’ a compensable injury. Hence, the applicant is only entitled to be compensated for any permanent impairment resulting from MCS and even then, non-work factors contributing to the impairment must be taken into account. The expression ‘results from’ is defined in section 7(6). If, but for an injury, a person's impairment would not have occurred, would have been significantly less, or would have occurred at a later time, the impairment ‘results from’ the injury.[5]
[5] Re Carson and Comcare [2003] AATA 112.
Impairment
Whether Ms Armstrong suffers a permanent impairment is the key issue. The definition of ‘impairment’ refers to ‘the loss, the loss of the use, or the damage or malfunction’, of a part of the body, bodily system or function. Comcare argued that it was not an impairment since the condition was solely reactive and Ms Armstrong’s MCS was only symptomatic when exposure occurs.
In her workers’ compensation claim, Ms Armstrong claimed the condition affected her ‘sinus-lungs, head, stomach-nausea’. In her statement to Professor Gatenby, dated 30 October 2013, Ms Armstrong listed her symptoms post-October 2011 as: sinus pain, headaches, sore eyes, dry eyes, hoarseness, nausea, dizziness, shortness of breath, feeling faint, difficulty concentrating, digestive issues – irritable bowel syndrome worsened, mental confusion, difficulty remembering, tinnitus, chest tightness and urinary urgency. Dr Willis described Ms Armstrong’s ‘impairments’ as ‘sinusitis, dizziness, headache and chest tightness’.
These descriptions describe malfunctions of bodily systems in the head, and the respiratory system. They do not indicate a loss of those bodily systems but their temporary reduction in effectiveness, that is, their ‘failure to function properly’.[6] Ms Armstrong does suffer damage or malfunction to parts of her body and to bodily functions when she is experiencing symptoms.
[6] Macquarie Dictionary (6th rev’n, 2013) 893.
Where a person is suffering a pre-existing condition, and the claim is for an aggravation of that condition as a result of employment, it is only the impairment resulting from the aggravation that is to be assessed.[7]
[7] Comcare Guide to the Assessment of the Degree of Permnanent Impairment (edn 2.1) 11.
Permanent
Section 24(2) provides that:
24(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)The duration of the impairment;
(b)The likelihood of improvement in the employee’s condition;
(c)Whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)Any other relevant matters.
Ms Armstrong has a sensitivity to certain chemicals of which she has been aware since the mid-1990s. That sensitivity has been given a label – multiple chemical sensitivity (MCS).[8] There was a significant deterioration in her MCS in 2011. However the sensitivity is long-standing. The effects became more marked in the last three years. Ms Armstrong provided Professor Gatenby with a diary indicating that the impairing effects of her condition typically occur for approximately one tenth of her waking day.
[8] Re Milenkovic and Comcare [1993] AATA 17, Re Rees and Comcare [1996] AATA 104; Re Nelson and Comcare [2009] AATA 874.
Whether Ms Armstrong’s condition will improve is doubtful. Dr Willis said the condition was likely to continue indefinitely and was unlikely to improve. Professor Gatenby’s conclusion was more equivocal. He acknowledged that her condition was ‘possibly permanent’ but also noted that the acceleration from 2011 may have been prompted in part by a ‘hardening of the attitude of management and subsequent compensation action’. The implication from this opinion is that now that Ms Armstrong is no longer at work, and when her compensation action is over, her symptoms may subside.
At the same time, his evidence at the hearing was that Ms Armstrong has now had the condition for close to fifteen years, and its severity has not changed in the last three to four years. In his view, the longer a person suffers from the condition, the less likely it is to go away. However, he said the condition was ‘not chronic’. His final words were ‘but persistence may not reflect a likely longevity’. Professor Gatenby also referred to a small Iowa study which was one of the few longitudinal studies of the condition. The results indicated that some 55 per cent of participants had recovered. So the study does suggest that recovery is a possibility.
Against that, Dr Pulley characterised Ms Armstrong’s condition as ‘severe’ and also noted a familial history with a sister who had difficulty tolerating some chemicals and smoke. These factors suggest Ms Armstrong may be less likely to recover.
Comcare has accepted that there is no rehabilitative or other treatment available, other than removal from the environment. That is consistent with the medical reports of Dr Pulley, Dr Le Leu, Dr Willis, and Professor Gatenby. Their view is that the only treatment is avoidance of those volatile chemicals which trigger the condition. Dr Le Leu noted that there was no prospect of work-related rehabilitation for Ms Armstrong in her then workplace. Given Ms Armstrong’s age, and her need to work in an environment sheltered from contact with chemicals to which she is sensitive, Dr Le Leu also found that her ability to find alternative work was limited.
Ms Armstrong’s evidence is that she can prevent symptoms developing by avoiding those chemical substances to which she is sensitive or by removing herself from the chemical agent. For example, she indicated that her response to an incident at work in February 2012 when she had a severe reaction to something in the work environment, was to spend time outside the building when she slowly recovered. This indicates, as the medical evidence supports, that avoidance of triggers, or her removal from chemical agents to which she is sensitive, can prevent symptoms occurring or limit their adverse effects. The incident also indicates that at time she is asymptomatic.
On balance, given the familial history, the longevity and gradual increase in sensitivity of her condition, the absence of any improvement since 2012, and the severity of her symptoms, the Tribunal finds that Ms Armstrong’s underlying sensitivity condition of MCS is permanent and she is accordingly likely to continue to suffer recurring episodes of MCS in the future whenever she is in contact with chemicals to which she is sensitive. The Tribunal notes in this context that:
….applying the test for permanence as set out in McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6 it is not necessary to have a settled expectation of permanence, merely that indefinite duration is more likely than foreseeable termination.[9]
[9] Cited in Re Brice and Comcare (2007) 96 ALD 171 at [115] per MJ Carstairs, SM.
Permanent impairment assessment
Even if Ms Armstrong has an impairment, and the sensitivity which causes her to be impaired is likely to continue, that is not conclusive of her eligibility for compensation under the permanent impairment provisions of the Act.
Comcare argued that, as her condition is only reactive, it does not fall within the expression ‘permanent impairment’ and cannot be assessed under the Guide. Against that, the Tribunal notes that the first edition of the Guide contained a table (Table 13.1) covering intermittent conditions such as ‘asthma, migraine, tension headache, epilepsy etc’. In the current and relevant edition of the Guide, There is a table (Table 2.1) for ‘Asthma and other hyper-reactive airways diseases’. There is a notation that ‘For hyper-reactivity of airways due to occupational exposures, assessment of impairment is made after … exposure to the provoking factor is eliminated’. At least asthma of the listed conditions is also a reactive condition. There is an additional comment that ‘Permanent impairment should not be assessed until 2 years after cessation of exposure to provoking factors as severity may decrease during this period’, indicating that persistence of such conditions should be tested after a reasonable time away from the occupational provoking agents.
The other intermittent conditions listed in the first edition, are only referred to in the ‘Principles of Assessment’ section of the Guide under ‘Exceptions to use of Part 1 of this Guide’. That section prescribes that ‘In the event that an employee’s impairment is of a kind that cannot be assessed in accordance with the provisions of Part 1 of this guide, the assessment is to be made under the American Medical Association’s Guides to the Evaluation of Permanent Impairment 5th edition 2001’ (AMA Guides)’.[10]
[10] Comcare, Guide to the Assessment of the Degree of PermanentImpairment (edn 2.1) 13.
The implication from the inclusion of these listed conditions is that, to the extent that the list included some reactive conditions, such conditions have been accepted as compensable. Assessment can be undertaken either under specific tables in the Guide, including the current edition of the Guide, of under any relevant tables in the AMA Guides.
Since publication of the edition 2.1 of the Guide, the Full Court of the Federal Court in Comcare v Broadhurst (2011) 120 ALD 228, confirmed that if the Guide, and the AMA Guides do not contain an appropriate table, an assessment of impairment was to be made using clinical judgment. That is consistent with the principle in the AMA Guides that:
In situations where impairment ratings are not provided, the Guides suggests that physicians use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.[11]
[11] American Medical Association Guides to the Evaluation of Permanent Impairment (5th edn, 2001) at 10-11.
The AMA Guides contains no table for MCS. There is a table for asthma, including occupational asthma, the description of the causes of which has some similarities to the sensitising agents as MCS. There is a table for asthma in both the Guide and the AMA Guides.
In these circumstances, assessment is a possibility for intermittent and in some cases reactive conditions in both the Guide and the AMA Guides. In the case of MCS, both the Guide and the AMA Guides do not contain a specific table. However, MCS can be taken to fall within the general category of other intermittent and reactive conditions, and reliance can be placed on clinical judgement to assess the degree of impairment when the AMA Guides also contains no tables.
Applying these principles, Dr Willis did not attempt that assessment, although she noted that Ms Armstrong’s ‘level of impairment is variable from mild to moderately severe’ and she said there was no certainty that her condition would have deteriorated without the exposure to volatile chemicals in the work environment. Dr Pulley and Dr Le Leu were not asked to make an assessment of percentage impairment.
Professor Gatenby acknowledged that there were no appropriate tables in the Guide. However, in his report of 28 February 2014, he did undertake an assessment, recorded as follows:
If Ms Armstrong reports disabling symptoms every 10 days – is this 10%? At least this amount [could be assessed], I believe because her life may be limited on more than once in 10 days attempting to avoid known circumstances in which exposure to volatiles may occur.
At the hearing, Professor Gatenby explained his reasoning. As he said Ms Armstrong had presented a diary of the occasions on which she said she was distressed and ‘I looked at the amount of time she said she had problems. It was about one tenth of the waking hours’. On that basis he said ‘The amount of time she reported being disabled was about 10%’.
The Tribunal accepts that asking a medical expert to come to a percentage whole person assessment with no criteria to guide them can be, as here, a daunting task. Professor Gatenby’s estimate based on Ms Armstrong’s diary is inevitably rough. Even if it is accepted to be an accurate reflection of the amount of time she is symptomatic, it would not be clear what proportion of that symptomatology was due to her aggravation by employment and what amount is due to activities outside the workplace.
Although Comcare referred to a contemporary file note (dated 4 January 2012), by Ms Armstrong’s rehabilitation case manager which recorded Ms Armstrong as saying ‘her condition does not affect her outside of the workplace’, the Tribunal is not satisfied that this statement was an accurate reflection of the position. A file note by the rehabilitation case manager following the person’s discussion with Dr deJong on 3 November 2011 recorded Ms Armstrong telling her that she is allergic to some flower smells, suggesting a perfume more likely to be encountered outside the workplace.
At the hearing Ms Armstrong referred to her sensitivity to wood smoke and to multiple cleaning and other household agents. She also mentioned experiencing a reaction when visiting offices and other places in her home town. So it is clear that a percentage of her symptoms are due to volatile chemicals she encounters outside her workplace.
Given the inevitably imprecise assessment provided by Professor Gatenby, the requirement that only the proportion of her impairment attributable to the workplace can be taken into account for assessment purposes, and the fact that the evidence indicates that at least some of the symptoms included in Ms Armstrong’s diary would have arisen from contact with volatile chemicals outside the workplace, the Tribunal is not satisfied that Ms Armstrong’s whole person impairment meets the minimum level of ten percent in the Act.[12] That means the claim is unsuccessful.
[12] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 24(7)(b).
The decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of RM Creyke Senior Member .......................[sgd].................................................
Associate: S. Wardell
10 September 2014
Date of hearing 8 August 2014 Applicant In person Counsel for the Respondent Andrew Dillon Advocate for the Respondent Loretta Tolland Solicitors for the Respondent SRC Legal, Comcare
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