Margaret Armstrong and Comcare

Case [2014] AATA 658

[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, Member

Date 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 171

Secondary 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

  1. 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.

  2. 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.

  3. On 6 June 2013, the claim was rejected, a decision upheld on review on 2 August 2013.

  4. 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

  5. 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. 

  6. 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.

  7. 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.

  8. Ms Armstrong lodged six incident reports between 24…

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Details
AGLC
Margaret Armstrong and Comcare [2014] AATA 658
Case
[2014] AATA 658
Decision Date

CaseChat Overview and Summary

In the case of Margaret Armstrong and Comcare, the applicant, Ms Armstrong, sought review of a decision by the Administrative Appeals Tribunal (AAT) concerning her entitlement to compensation for a permanent impairment arising from her employment. Ms Armstrong, formerly employed by the Department of Human Services, attributed her condition to exposure to perfumes, oils, and chemicals, particularly after her workplace moved to a new building. She lodged multiple incident reports regarding adverse reactions to chemicals and perfumes at work, and was ultimately invalidity retired. The central legal issues before the court were whether Ms Armstrong suffered a permanent impairment as a result of her accepted injury and whether the impairment met or exceeded the 10 percent whole person threshold under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The court examined the statutory definitions of "impairment" and "permanent," as well as the principle that compensation is only payable for a permanent impairment resulting from a compensable injury. Comcare had accepted that Ms Armstrong's pre-existing sensitivity was aggravated by her employment, leading to the condition of multiple chemical sensitivity (MCS). The court concluded that the concession of liability was correctly made and focused on whether Ms Armstrong's impairment was permanent and resulted from her employment. Given the nature of MCS and the evidence provided by medical practitioners, the court found that Ms Armstrong's condition was likely to continue indefinitely, fulfilling the definition of a permanent impairment. However, the court determined that the degree of impairment did not exceed the 10 percent threshold required for compensation.

The court's reasoning was grounded in the statutory definitions and the principle that only impairments resulting from the compensable injury could be compensated. Despite acknowledging the severity of Ms Armstrong's condition, the court found that the degree of impairment did not meet the statutory threshold for compensation. Consequently, the court dismissed Ms Armstrong's application for further review.

Orders

Orders of the court

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Background

Background to the litigation

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 evidenceDr 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’.

Evidence

Evidence Before The Court

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 evidenceDr 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’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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