Messer and Australian Postal Corporation (Compensation) - [2022] AATA 1322

Messer and Australian Postal Corporation (Compensation) [2022] AATA 1322 (23 May 2022)
Division:GENERAL DIVISION
File Number: 2020/3750
Re:Lydia Messer
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:23 May 2022
Place:Brisbane

The decision under review is affirmed.
...................[SGD].....................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION — Chronic Fatigue Syndrome — Applicant diagnosed during adolescence — whether Applicant wilfully made false representation on her compensation claim form — whether Applicant suffered an injury or aggravation of a pre-existing ailment — whether employment contributed to, to a significant degree, the onset or aggravation of the ailment — whether Respondent liable to pay compensation — decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
CASES
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Bailey v Broadsword Marine Contractors Pty Ltd (2017) 257 FCR 549
Bird v Commonwealth (1998) 165 CLR 1
Campion and Comcare [2021] AATA 4310
Canute v Comcare (2006) 226 CLR 535
Cavanagh and Comcare [2021] AATA 499
Comcare v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth v Beattie (1981) 53 FLR 191
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; 9 AAR 206
Cosgrove-Kaye and Comcare [2019] AATA 1238
De Tarle and Comcare [2021] AATA 94
Federal Broom Co. Pty. Ltd. v Semlitch (1964) 110 CLR 626
Hopkins and Comcare [2016] AATA 742
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382
Newham and Australian Telecommunications Company (1990) 22 ALD 783
Owners of the ship ‘Sin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404
Repatriation Commission v Bendy (1989) 18 ALD 144; 10 AAR 323
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] 4774
Wuth and Comcare [2020] AATA 3625
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Deputy President J Sosso
23 May 2022
INTRODUCTION

Ms Lydia Messer (the Applicant) seeks a review of a decision of the Australian Postal Corporation (the Respondent) dated 18 May 2020 that affirmed a determination of 21 April 2020 denying liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for the claimed condition of Chronic Fatigue Syndrome (CFS) – Exhibit 1 T63 pp. 392 – 294, T75 pp. 447 – 450.
The Applicant is now aged 39 and is the mother of four children. She grew up in New Zealand and, upon leaving school, obtained a Certificate III in Logistics and Warehousing, a Multi-Combination driving licence, a Roller’s Certificate, a Dangerous Goods Carrying Certificate and a Forklift licence – Exhibit 1 T35 p. 153, Exhibit 4 p. 23.
The Applicant emigrated to Australia in 2011 and worked in a number of blue-collar roles, including as a Virgin Airlines plane cleaner, domestic airport caterer and a housekeeper for a hotel chain – Exhibit 4 p. 4. She was employed in each of these positions for more than a year.
Since 16 June 2015, the Applicant has been employed with StarTrack. This has involved driving a six-tonne box body truck and loading and unloading all goods by hand. The goods weighed between 1kg – 50kg, and the Applicant did not have the benefit of loading equipment – Exhibit 1 T35 p. 154. The Applicant was rostered for 38 hours per week; however, in the 12 weeks prior to the date of her claimed injury, she was working an average of 7 hours 26 minutes overtime per week – Exhibit 1 T57 p. 353.
On 18 December 2019, the Applicant signed a Claim for Rehabilitation and Compensation form in which she stated that she was suffering from CFS and that she had first noticed the condition on 23 November 2019. In response to the Question “Have you ever had a similar injury/illness?”, the Applicant ticked the “No” box – Exhibit 1 T43 p. 189.
In the Initial Assessment for Rehabilitation, the following account is given of the Applicant’s medical condition in the period leading up to November 2019 – Exhibit 1 T57 p. 353:
“Ms Messer reported that there was a lead up into her injury over a 3-6 month period where she reported working these excessive hours lead to her body ‘shutting-down’.
Ms Messer reported in this 3-6 month period prior to her initial day from work (Monday 25/11/2019), she began noticing unusual symptoms. Ms Messer reported that over the winter months and in busier periods she would notice a feeling of arthritis in her hands, similar to ones she had experienced years earlier (Ms Messer disclosed that she had an accepted workers compensation claim for bilateral carpal tunnel with a previous employer and underwent surgical release in 2012). Ms Messer reported being stubborn by nature and focused on ignoring the symptoms to ‘get on with the job’. Ms Messer reported she continued with this mindset for the next few months. Ms Messer reported that this did began to take effect on her body and at times she would only be able to manage travelling home, having a small meal for dinner and going to bed. Ms Messer described this period as ‘pushing her body past her normal limitations’.
Ms Messer reported that following work on Friday 15/11/2020 [sic] (one week prior to her date of injury) she travelled home from work and felt like her body had been crushed. Ms Messer reported that she couldn’t see straight, she was unable to walk and mentally felt foggy and exhausted. Ms Messer’s husband (Jason) asked to take her to the hospital, Ms Messer declined the offer.
Ms Messer reported that due to her family’s financial situation (Ms Messer reporting being the ‘breadwinner’ of the family – Ms Messer’s husband is currently unfit for work due to repeated shoulder surgery – 12 months ago through Department of Veterans Affairs), she was determined to attend work on Monday 18/11/2019. Records show that Ms Messer performed a 45 hour and 10-minute work week (7 hours and 10-minutes overtime).
On Friday (22/11/2019) Ms Messer reported to her supervisor that she was experiencing a shooting pain through her chest that travelled over her neck, through her head and into her eyeballs. Ms Messer advised her supervisor she would still be ok to continue work. That afternoon, Ms Messer drove home and collapsed from exhaustion. Ms Messer’s husband took her to Dr Cuong Luu (Treating General Practitioner) for assessment and advice. Ms Messer reports that Dr Luu requested a series of blood tests. (Ms Messer reports Dr Luu being the Family GP for the past 6-7 years).
Ms Messer reported for the next two weeks she was totally incapacitated. Ms Messer described her physical limitations restricted her to rest. Ms Messer reported that she could not get up, walk around or even shower herself.”
The Applicant was referred to Dr Matthew Rickard, General Physician, for examination and assessment. Dr Rickard saw the Applicant on 7 April 2020 and prepared a detailed report dated 9 April 2020 – Exhibit 1 T60 pp. 366 – 382.
Dr Rickard outlined the Applicant’s past medical history – Exhibit 1 T60 pp. 373 – 374:
“Ms Messer states prior to the onset of these current symptoms that she had excellent health however, she does elude to a past medical history of chronic fatigue syndrome diagnosed in 1995 which lasted for three years, settling after her first pregnancy.
Ms Messer states that she had eight pregnancies over the years and these pregnancies resulted in four live births.
Ms Messer had carpal tunnel syndrome in 2015 requiring surgery bilaterally, and a back injury at work three years ago. Both for the carpal tunnel and back injury, there were workers’ compensation claims.
Ms Messer specifically denied any previous accidents or motor vehicle accidents, hospital admissions or operative procedures other than what have been stated above.
Of note, there seems to be a significant history of psychosocial stressors in Ms Messer’s life. Although she diminishes this. She told me that she has four children to a previous husband and that there was an international custody battle with her husband following sustained and prolonged domestic violence. She met her first husband when she was sixteen and he was ten years her senior. Having had children to him, he is said to have abused her financially, with social isolation and with physical abuse. It is my understanding that her former partner is currently in jail in New Zealand on charges of assaulting his children. Ms Messer has been awarded full custody. I am told that this occurred approximately five years ago however, took many years to come to a conclusion.
In addition to this, Ms Messer stated that her current husband who is a Department of Veterans’ Affairs veteran has had significant health issues. He is currently the holder of a Department of Veterans’ Affairs Gold Card and has military support for management of his medical conditions. Once again, there have been significant stressors in obtaining the Gold Card and sorting out his medical treatment.”
Dr Rickard diagnosed the Applicant as suffering from a psychological disturbance which has manifested in symptoms of fatigue – Exhibit 1 T60 p. 378. The Applicant had experienced six months of symptoms which included sleep difficulties, fatigue and lethargy, multiple joint pains, headaches, unrefreshing sleep, malaise after exertion lasting greater than 24 hours, impaired concentration and short-term memory – Exhibit 1 T60 p. 378.
These are symptoms of CFS, and Dr Rickard opined that the Applicant’s significant life stressors impacted on her symptom profile – Exhibit 1 T60 p. 379.
In response to the Question whether the Applicant’s employment had contributed to the diagnosed condition, Dr Rickard opined as follows – Exhibit 1 T60 p. 379:
“I do not believe that Ms Messer’s employment has been a significant contributing factor to the symptoms exhibited. At most, the stress of work and overtime as required by her employer may have led to an exacerbation of her symptoms however, there was significant underlying pre-event psychologic stress. I suspect she had been close to breaking point for some time and the added stressors of her employment may well have tipped the balance in the direction of dysfunction however, it is difficult to accept that the issues citied [sic] at work by Ms Messer would be the sole or outright significant contributor to her current symptoms.”
Dr Rickard opined that the Applicant had significant psychosocial stressors, and physical features of such stress related disorders tend to take a long period of time to resolve; in the Applicant’s case, six months or more – Exhibit 1 T60 pp. 379 – 380.
On 21 April 2020, the Applicant’s claim for compensation was denied. The decision-maker referred to Dr Rickard’s report and concluded as follows – Exhibit 1 T63 p. 393:
“Based on the available medical evidence, I am not satisfied that your employment has contributed to your claimed injury to a significant degree…
I hereby determine under Section 14 of the above Act that Australia Post Group is not liable to pay compensation in respect of ‘chronic fatigue’ sustained on 23 November 2019.”
On 1 May 2020, the Applicant sought a reconsideration of this decision – Exhibit 1 T68 pp. 416 – 417. On the same day, the Applicant prepared a letter in which she outlined her complaints about the way that she and her husband had been treated by Dr Rickard and his staff on the day of her assessment – Exhibit 1 T68 pp. 421 – 422.
The Applicant provided to the Respondent a “Complete Record” of her condition prepared by her treating General Practitioner (GP), Dr Gary Deed, which contained medical records up to 22 April 2020 – Exhibit 1 T68 pp. 423 – 431.
In a part of the document headed “TO WHOM IT MAY CONCERN”, Dr Deed made these observations – Exhibit 1 T68 p. 424:
“I have attached my clinical notes on the two occasions I have assessed this lady. I note her history of ongoing fatigue and a past job as a delivery driver. I understand her frustration by physical limitations and also her insurance processes.
She does have comprehensive fatigue illustrated by:
Fatigue severity scale = 7
Brief Fatigue Inventory – as attached
…
I agree that she is suffering from Chronic fatigue syndrome in the absence of alternative causes. She has a possible reactive adjustment disorder from loss of function.”
Dr Deed had a surgery consultation the Applicant on 15 April 2020, and made the following notes – Exhibit 1 T68 p. 425:
“seeking a diagnosis of CFS
has been unwell since end of November
has had symptoms for over 1 year
started working too much in her current job – delivery driver at Startrack – working 6 am till 7 pm
weight would range between 1-50 kgs
Husband had shoulder reconstruction that failed – then a replacement over 1 year ago
needed to look after him as well
Fatigue – wakes tired – no better time of the day
mornings seem to be better tolerated
sleeps in the day
sleeping – staying asleep is an issue
not feeling depressed
has some PEM – sweeping the house or vacuuming
every muscle and every joint aches
has improved to a throbbing
had past carpal tunnel surgery in 2015
bowels – not regular
periods – regular and heavy with clots
had appendicectomy 26^th January
has had blood tests – past EBV infection
no thyroid disorder
gets dizzy posturally
has some joint hyper flexibility…”
In response to a request by the Respondent on 15 April 2020, Dr Rickard prepared a supplementary report dated 29 April 2020 – Exhibit 1 T62 pp. 384 – 391, T65 pp. 404 – 407.
The Respondent forwarded to Dr Rickard additional medical information provided by the Applicant:
·clinical records of Dr Cuong Luu;
·treatment and care summary from Dr Laura Allen dated 17 March 2020;
·document titled “Diagnosing and Treating MYALGIC ENCEPHALOMYELITIS/ CHRONIC FATIGUE SYNDROME (ME/CFS) dated August 2019 and prepared by the U.S. ME/CFS CLINICIAN COALITION;
·RACGP, “Busting the myths and redefining myalgic encephalomyelitis/chronic fatigue syndrome”.
Dr Rickard was asked to review the additional information and advise if it altered his previous report.
In his supplementary report of 29 April 2020, Dr Rickard provided the following updated diagnosis – Exhibit 1 T65 pp. 406 – 407:
“I stated in my Independent Medical Report, dated 9 April 2020, that it was my opinion that Ms Messer suffers from a psychological disturbance which has manifested in symptoms of fatigue.
In referencing the Guidelines to the Diagnosis of Chronic Fatigue Syndrome, otherwise known as myalgic encephalomyelitis, it is specifically stated that a diagnosis of chronic fatigue or myalgic encephalomyelitis cannot be arrived at if there are features consistent with external life stressors which could contribute to the symptoms described. In Ms Messer’s situation there are significant pre-event psychological stressors which, in my opinion, have the potential to impact significantly on the symptoms described by her. With this in mind, I am unable to arrive at a specific diagnosis of chronic fatigue in this case.
The other opinions expressed in my Independent Medical Report dated 9 April 2020 remain unchanged.”
On 18 May 2020, the Reconsideration Delegate affirmed the determination of 21 April 2020 – Exhibit 1 T75 pp. 447 – 450.
In reaching this conclusion, the Reconsideration Delegate referred to both reports of Dr Rickard, as well the medical reports of Dr Deed. The Reconsideration Delegate concluded as follows – Exhibit 1 T75 p. 449:
“Taking this [i.e. the supplementary report of Dr Rickard], as well as Dr Rickard’s initial report into consideration, I am satisfied that there is sufficient evidence to support that you have not suffered a condition arising out of, or in the course of, your employment. I am further satisfied that your employment has not contributed to, to a significant degree, to an aggravation of a pre-existing, or underlying condition, to make you eligible for compensation under the provisions of the SRC Act.”
(emphasis in the original)
POST REVIEWABLE DECISION MEDICAL EVIDENCE
Introduction
The Tribunal has been provided with a number of reports from Dr Deed and Dr Phillip Vecchio, as well a brief Treating Psychologist’s Report dated 25 March 2021 from Dr Ben McDarmont – Exhibit 9 pp. 1 – 3.
Dr McDarmont, in his brief report, diagnoses the Applicant with CFS and notes that she suffers from persistent significant fatigue, difficulty with concentration and activity limited by pain – Exhibit 12 ST4 pp. 12 – 14. Further, Dr McDarmont opined that, given the Applicant’ symptoms, she would be unlikely to significantly improve in the next two years (i.e. 2021 – 2022) – Exhibit 12 ST4 p. 14.
Reference is not made to Dr Deed’s very brief supplementary report of 1 September 2021 which deals, in a brief manner, with academic research on stressful incidents as a trigger to the onset of illness – Exhibit 11 pp. 1 – 2. This report is not of particular assistance to the Tribunal in the resolution of the matters in contention.
The remaining medical reports are dealt with below.
Dr Deed – report 10 June 2020
Dr Deed, in a report dated 10 June 2020, answered a series of questions about the Applicant’s medical condition and her prospects of returning to work – Exhibit 1 T79 pp. 459 – 461.
First, Dr Deed outlined the background to the Applicant’s medical condition – Exhibit 1 T79 pp. 459 – 460:
“Lydia attended initially on the 15^th April 2020 having been unwell for some months before having ‘crashed’ in November 2019.
She had been working extremely physically hard for more than 12 hours per day in her work as a truck delivery driver prior to the onset of her symptoms requiring bending lifting and carrying of weights up to 50 kilograms. Previous levels of sport involvement including table tennis, playing tennis, swimming and cricket were reduced due to their significant escalation of fatigue at this time.
Her symptoms were concentrated on severe fatigue, with waking up tired having no relief or a better time during the day. Even sweeping the house or vacuuming was associated with post exertional malaise involving muscle aches and pains. She felt sleepy during the day there was a sense of throbbing in her muscles. She describes joint pains and generalised hyperflexibility. She also stated she developed dizziness with postural change. She stated she has not been able to work since November 2019.
Relevant past history: I note reports mentioning previous family law cases but these had finalised more than five years prior to any presentation as currently documented. Therefore, I do not think it is relevant to her current presentation. There is a non-significant history of her husband having a significant a [sic] shoulder reconstruction but this doesn’t appear to be relevant to Mrs Messer’s current presentation.
When examination was completed and noted that she has had hyper-mobility of joints and this is been associated with chronic fatigue syndrome with escalation and aggravation of symptoms. When utilising several fatigue scales: Fatigue severity scale score of seven and brief fatigue inventory as attached, I am firm in my application of a diagnosis of ME/CFS.”
In response to a Question of the extent of the Applicant’s employment contributing to her diagnosed condition, Dr Deed opined as follows – Exhibit 1 T79 p. 460:
“Certainly her job descriptions requires Mrs Messer to be physically strong with repeated physical exertion. I note that the fatigue arose after a particularly extended period of long hours of work beyond her usual capacity. On her presentation, she describes very clearly post exertional malaise associated with, and aggravated by her work conditions, without any other clear contributor.”

Dr Deed also made these observations – Exhibit 1 T79 p. 460:
“Certainly, the stress of Mrs Messer’s employment and WorkCover tribulations have aggravated her chronic fatigue syndrome and that was found by a DASS assessment showing her elevated stress scores as a response to, rather than a causation of her chronic fatigue syndrome.”
Dr Vecchio – report 26 February 2021
Dr Vecchio, Consultant Rheumatologist, examined the Applicant on 24 February 2021 and prepared a report dated 26 February 2021 – Exhibit 4 pp. 1 –13.
In the part of the report titled “Relevant Medical History”, Dr Vecchio made the following observations – Exhibit 4 p. 3:
“Ms Messer indicates that she has experienced the symptoms and sign of fluctuating chronic fatigue syndrome since her early teenage years, at that time diagnosed by Dr Vallings in 1996. The condition was thought to have succeeded a viral infection, probably glandular fever, and managed expectantly, including pacing and restricting activity. She believes that her pregnancies were beneficial. Ms Messer indicated the condition never completely remitted but she was able, mostly, to override the mildly restrictive and fluctuating symptoms to engage in the various facets of her life to date, including dealing with many difficult situations, including the issues with family and spouse… emigration to Australia and working in blue collar employment.”
Dr Vecchio specifically dealt with the work circumstances the Applicant faced leading up to November 2019 – Exhibit 4 p. 4:
“Ms Messer realised that her workload was gradually increasing some months prior to mid-2019. She recalls experiencing hand pain, where x-rays did not reveal any arthritic process. As time progressed, additional muscle and other bodily pains, a feeling of profound exhaustion without restitution with sleep, non-refreshing sleep and cognitive disarray (with concentration and memory issues) became more and more problematic. Ms Messer indicates that she informed her supervisor that she felt that her workload was too high but this did not result in any changes to the situation. She withdrew from her job in November 2019 and has not worked since…”
In that part of the report titled “Current Symptoms”, Dr Vecchio outlines seven types of symptoms that the Applicant was experiencing in February 2021 – Exhibit 4 p. 5:
(a)pain present in many articular structures and muscles. The Applicant’s feet are painful and the thumb bases, back, knees and elbows are problematic;
(b)fatigue, which is not restituted by sleep;
(c)post exercise malaise;
(d)slow healing of body structures;
(e)dysregulation of body temperature, cold hands and feet;
(f)coordination issues; and
(g)cognitive disarray including problems concentrating and with memory.
In the part of the report titled “Summary and Assessment”, Dr Vecchio made the following observations – Exhibit 4 pp. 7 – 8:
“It is my my opinion Ms Messer suffers from chronic fatigue syndrome, which has been present for years with fluctuating symptom content…
I believe Ms Messer suffers from this condition and probably negatively impacts her life to a degree that results in numerous negative consequences for occupation, pleasure and interaction. The definitional criteria of chronic fatigue syndrome, without alternative explanation and lasting longer than 6 months, with the other symptoms reported above, are equally of value in supporting the diagnosis…
I cannot support the concept of a psychological basis to her symptoms, and acknowledge I am not in a professional capacity to do so regardless…
The ‘diathesis’ of chronic fatiguing conditions is difficult to implicate; it is known that recurrence of earlier symptoms may re-occur in the future after an initial illness years earlier, as it has occurred in this case.
It is impossible to state that the workload is the cause of the problem, rather than work and largely constitutional symptoms being parallel phenomena. In other words, outside of Ms Messer’s opinion of being overworked as the catalyst for the subsequent re-activation of her chronic fatiguing state, a fair and valid counter-argument is that the independently evolving and re-activated fatigue syndrome led to reduced endurance and lack of ability to conform with the requirements of the tasks. It is perfectly clear that Ms Messer has been capable of physical and other employments in the past. The record does not support a gradual demise in physical function prior to the acute events in late November 2019, which led to work termination and medical certification.
I am unable to endorse that the workload described was the instigating factor in the current chapter exacerbation of her chronic fatigue syndrome, and would state that it is irrelevant, coincidental and reflects the concept of attribution bias.
Therefor, I affirm that:
1.Chronic fatigue syndrome is the diagnosis, manifesting all the classic symptoms and meeting the international definitional criteria, and is unfortunately difficult to manage in the usual medical sense;
2.It is often occupationally-infringing, but her history indicates that an improvement in function may occur, with return to employment;
3.There is no evidence that this condition is caused by the work described within her employment at Star Track, and is independent of it.”
Dr Vecchio opined that the Applicant contracted CFS in her early teenage years with subsequent improvement, but incomplete remission with a fluctuating course – Exhibit 4 p. 9. He was of the view that the Applicant’s CFS was constitutional and usually contracted post-infection, and there were multiple potential sources for this. The Applicant’s CFS had been of lesser magnitude for some decades but had “recrudesced” in mid to late 2019. Dr Vecchio then stated – Exhibit 4 p. 10:
“This was self-attributed to employment but I cannot support this from a medical or aetiological perspective.
…
In my opinion, there is no relationship between her symptoms and her employment at Australia Post. With the records and evidence presented, I am able to conclude the work at Star Track was coincidental to the symptoms, diagnosed as chronic fatigue syndrome, and independent of it. I recognise the offered history of hard and escalating work, physical fatigue and associated symptoms, but these cannot influence physiology indefinitely.”
Dr Vecchio ruled out any voluntary or involuntary exaggeration by the Applicant of her symptoms and signs – Exhibit 4 p. 12:
“No. In my opinion this lady is genuine in her symptoms, has demonstrated a reasonable work ethic in the past and a resilience to multiple psychosocial stressors.
There was no indication of any exaggeration.”
Dr Deed – report 21 April 2021
Dr Deed was provided with a copy of Dr Vecchio’s report of 26 February 2021 and wrote a further report addressing the findings of Dr Vecchio – Exhibit 10 pp. 1 – 66.
First, Dr Deed agreed with Dr Vecchio’s diagnosis that the Applicant suffers from CFS which has been present for years with fluctuating symptoms – Exhibit 10 p. 1.
Second, Dr Deed agreed with Dr Vecchio discounting the concept of a psychological basis for the Applicant’s symptoms – Exhibit 10 p. 1.
Next, reference was made to Dr Vecchio’s list of symptoms the Applicant was experiencing, in particular, post exercise malaise, having to pace activities and continuously monitoring obligations to ensure she does not exacerbate her condition – Exhibit 10 pp. 1 – 2.
Dr Deed made the following observations – Exhibit 10 p. 2:
“Chronic fatigue syndrome is characterised by persistent and disabling fatigue exercise intolerance cognitive difficulties and musculoskeletal joint pain. Post exertional malaise is a worsening of the symptoms after a physical or mental exertion and is considered a central feature of this illness.”
Reference was made to these articles:
(a)Stussman, B. et al., ‘Characterization of Post-exertional Malaise in Patients with Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Frontiers in Neurology, 2020, 11(1025);
(b) Brown, A and Jason L.A., ‘Meta-analysis investigating post-exertional malaise between patients and controls, Journal of Health Psychology, 2020, 25(13-14) pp. 2053 – 2071; and
(c) Tack, M, Letter to the Editor (3 March 2019) concerning the paper ‘The relationship between chronic fatigue syndrome, burnout, job satisfaction, social support and age among academics at a tertiary institution’, International Journal of Occupational Medicine and Environmental Health, 2019, 32(3) pp. 417 – 419.
Dr Deed disagreed with Dr Vecchio’s finding that there was no relationship between the Applicant’s symptoms and her employment. Dr Deed observed – Exhibit 10 pp. 2 – 3:
“Clearly in his report on page 4 of 13, Dr Vecchio notes that Mrs Messer’s workload had gradually increased some months prior to mid 2019 and he lists a series of symptoms Mrs Messer suffered including hand pain muscle and body pains, severe exhaustion without restitution, sleep effects and cognitive effects. He also notes that Mrs Messer indicated to her employer and supervisor that she [sic] the workload was too high but there was no change in the workplace that occurred in response. He noted as well that she then withdrew from her job in November 2019 and has not since worked due to the acute and significant disabling symptoms that had occurred at that point in time.
Thus, it remains clear in my opinion that there is a clear relationship between Mrs Messer’s symptoms (the hallmark symptoms of post exertional malaise underpinning her diagnosis of chronic fatigue syndrome) with her employment. It is documented that Mrs Messer in her role description at Australian Post Corporation was required to load a truck with packages varying between one kilogram and 60 kg and was working between 10 to 12 hours a day delivering these parcels picking up other parcels and also driving. The very nature of her work would directly lead to aggravation of post-exertional malaise.
I also challenge Dr Vecchio’s own conclusion to question 3.7 that he would not consider that chronic fatigue syndrome has any relationship to employment at Australia Post. Again I reiterate the evidence is that the type of her employment is significant in the escalation and quantifiable disability Mr Messer has suffered. Notably is also the fact that there was no intervention despite her raising concerns that with her appropriate supervisor and employer.
So in summary, I am of the firm belief that Mrs Messer has a diagnosis of chronic fatigue syndrome. She has the internationally recognised cardinal symptoms of chronic fatigue syndrome particular post-exertional malaise. It is documented that Mrs Messer in role at the Australian Post Corporation was required to physical[ly] exert herself as outlined above. It is very clear that those symptoms of chronic fatigue escalated due to the workload she encountered working at Australia Post. Though, I do not believe that her work caused her chronic fatigue syndrome, it is clear that her work aggravated her chronic fatigue syndrome.”
(emphasis in the original)
Dr Vecchio – report 2 September 2021
Dr Vecchio was subsequently briefed with Dr Deed’s report of 21 April 2021 and asked if it caused him to alter his opinion – Exhibit 5 pp. 1 – 7.
In his supplementary report of 2 September 2021, Dr Vecchio noted that he and Dr Deed agreed that the Applicant’s CFS had been present for years and it always presents great difficulty in ascribing significance to nominated aetiological influences – Exhibit 5 p. 2.
Dr Vecchio also agreed that post exertional malaise is a feature of constitutional CFS and may be temporarily exacerbated by external demand – Exhibit 5 p. 3. However, Dr Vecchio then observed – Exhibit 5 p. 38:
“Post-exertional malaise is integral to the condition, not an effect of the job, and this is the hinge upon which Dr Deed’s argument is flawed.Also, the so-called aggravation of the fatigue cannot be permanent and must be temporary after any energy expenditure.This permanence was already well-entrenched before the diagnosis of chronic fatigue syndrome can be established. Any submission that the interpreted excessive and escalating workload (if it is a realistic and quantitative appraisal of the work conditions) results in a permanent ‘aggravation’, which persists above a pre-existing quantum of chronic fatigue, is an illusory correlation between two independent variables that have a brief and self-extinguishing association.”
(emphasis in the original)
Attention was then directed to the scholarly articles referred to by Dr Deed – Exhibit 5 pp. 3 – 4:
“I thank Dr Deed for providing the articles attached to his report, all of which reinforce the correct contention that Ms Messer’s employment is irrelevant to her constitutionally fluctuating and indefinite chronic fatigue syndrome. Stussman et al (2020) reinforce that post-exertional malaise is a ‘central feature of the illness’, as well as reinforcing its fluctuating and unpredictable course, triggered by minor (I interpret this to translate as ‘everyday’) stimuli. A similar argument is put forward by Brown and Jason (2020), acknowledging the ten-fold escalation of this trait (post-exertional malaise) in sufferers of chronic fatigue syndrome. The two articles are stating what is already rationally known: people with chronic fatigue syndrome do not tolerate exertion and it occurs frequently and randomly, regardless of intensity.
The third publication in Dr Deed’s bibliography, whilst only a letter to the editor of a cited journal dedicated to the environmental aspects of occupational medicine, states in the second paragraph that any ‘suggestion…. that CFS [chronic fatigue syndrome] is a work-related illness should be questioned’. Dr Tack goes on to state that case definitions of ‘[chronic fatigue syndrome] require that disability is ‘not the result of ongoing exertion and is not substantially alleviated by rest’’. This preamble is stating that focally-considered influences, such as workload, have little relevance to the concept of occupational overload, merging seamlessly with Tack’s conclusion that it is ‘improbable that CFS is related to work overload’. This aligns totally with the concept that perceived chronic fatigue syndrome aggravations, at least for more than a day or so, are unrelated to work tasks and perceived load.”
Dr Vecchio then noted that Dr Deed did not cite any of the Applicant’s medical record and her numerous presentations for a range of symptoms in the same timeframe, and he outlined a number of examples – Exhibit 5 pp. 4 – 5.
In conclusion, Dr Vecchio made these observations – Exhibit 5 p. 6:
“Workload is not the cause of Ms Messer’s chronic fatigue syndrome, aggravation, or otherwise. The condition is constitutional and longstanding, all apparent with the supplied documentation.
A balanced consideration, not offered by Dr Deed, is that the independently evolving and re-activated fatigue syndrome (from a multitude of possible contributors, including a viral illness or, as is well-known and cited by literature, for no reason at all) led to reduced endurance and lack of ability to conform with the requirements of the tasks. In other words, the underlying condition led to withdrawal, not work causing a worsening of her functional status.
The medical record proves the symptoms described by Ms Messer are constitutional, pre-existing and entrenched, the subject of numerous medical presentations, and so supports the overwhelming likelihood that they are independent of employment with StarTrack Express. It also does not support a gradual demise in physical function prior to the acute event(s) in late November 2019, which led to work termination and medical certification.
The literature cited by Dr Deed in his April 2021 report more supports the contention that it is the illness of chronic fatigue that is associated with the signature symptom of post-exertional malaise, not any particular environmental influence, that the condition is capricious and unpredictable and that its namesake is not diagnosable until the condition is chronic and unrestitutable. I have alluded to the importance of acknowledging biases in the consideration of nominated aetiology and to be more balanced in weighing up the possibilities versus probabilities.
The contention that Ms Messer’s employment contributed to her symptoms, occupational withdrawal or ongoing infirmity is untenable at every level.”
LEGAL PRINCIPLES
Section 14 “is the central provision of the Act so far as the liability of Comcare to pay compensation is concerned” – Lees v Comcare [1999] FCA 753 (Lees) at [27]. It creates a liability for Comcare to pay compensation for injuries suffered by employees resulting in death, incapacity for work or impairment. As the Full Court in Lees highlighted, liability is qualified in two ways:
1. liability is subject to the other provisions in Part II of the Act; and
2. the liability is “in accordance with the Act”, namely, “to pay compensation for which the statute provides, as required by the Act (see, for example, s17(3)(4) and s(5), s19, s20, s24 and s25) ” – Lees at [27].
In order for liability to accepted pursuant to s 14, the following findings are required:
(a) appropriate notice of injury has been given;
(b)a claim for compensation, in accordance with the Act, has been made;
(c)the claimant was an employee at the relevant time;
(d)the employee suffered an injury; and
(e)the injury resulted in death, incapacity for work or impairment – see Lees at [35].
The term “injury” is defined by s 5A to mean:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.”
At the outset, it is appropriate to refer to the following observations of the High Court in Canute v Comcare (2006) 226 CLR 535 at 540 about the concept of an “injury”:
“…First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of ‘the injury’. Secondly, the term ‘injury’ is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term ‘injury’ is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to ‘disease’ or ‘physical or mental’ injuries and, at least to that extent, it assumes that an employee may sustain more than one ‘injury’. The use in s 24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.”
It will be seen that the definition of “injury” comprises two main subsets, namely, “disease” and “injury (other than a disease)”, each of which comprises separate but related bases of liability. The third basis of liability is “an aggravation of a physical or mental injury (other than a disease)”.
As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May) at 482, the first task of the tribunal of fact is to determine if the employee is suffering a disease.
“Disease” is defined by s 5B of the Act to mean:
“(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”

The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593:
“…‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co. Pty. Ltd. v Semlitch…”
It is important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on the timing of the onset of the compensable “injury”. The Act was amended in 2007, replacing the “material degree” test with the “significant degree” test.
Prior to 2007, the definition of disease was found in s 4, and it referred to an employment contribution of “a material degree”. Accordingly, it is not sufficient to simply establish the existence of a disease, for as French CJ, Kiefel, Nettle and Gordon JJ explained in May at 480:
“…The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.”
Reference can be made to the observations of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 for guidance in ascertaining the meaning of “material degree”:
“13. …the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14. What is problematic is identifying where that threshold lies. Treloar’s case 26 FCR 316 set its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar 26 FCR at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
15. There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is:
4. In a material degree; substantially, considerably.
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (10 AAR at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’’.
16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.”
It is important, in this context, to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”.
Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201 – 205/[78] – [95] per Katzmann J. In particular, the following guidance was given (at 201/[78]):
“A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”
(emphasis in the original)
In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment, s 5B(2) provides that the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment; and
(e) any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Subsection 7(7) of the Act provides as follows:
“A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.”
There is a considerable body of jurisprudence on the meaning of s 7(7); however, for present purposes, it is sufficient to refer to the judgment of Jenkinson J in Comcare v Porter (1996) 70 FCR 139 where his Honour made the following observations (at 150):
“…The clause ‘if the employee has...made a...false representation’ may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of ‘wilful’ in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease – a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.”
ISSUES
The parties agree that the Applicant suffers from CFS – Respondent’s Outline of Closing Submissions (ROCS) p. 4 para 10.
The Tribunal accepts that the Applicant suffers from CFS, as this is in accord with the preponderance of medical evidence; in particular, it is consistent with the diagnoses of both Dr Vecchio and Dr Deed.
The issues before the Tribunal are as follows:
(a)did the Applicant make a false and wilful representation that she did not suffer, or had not previously suffered from CFS, such that s 7(7) of the Act applies to exclude liability from being accepted under s 14; and
(b)if not, was the onset or aggravation of CFS contributed to, to a significant degree, by the Applicant’s employment?
THE HEARING
A Hearing was convened in Brisbane on 27 January 2022.
The Applicant was self-represented and gave evidence remotely.
The Respondent was represented by Ms Kate Slack of Counsel, who was instructed by Mr Matthew Hawker.
The Applicant gave evidence and was cross-examined. The Applicant called Dr Deed to give evidence and he was cross-examined by Ms Slack.
The Respondent called Dr Vecchio to give evidence. The Applicant chose not to cross-examine Dr Vecchio.
CONSIDERATION
Introduction
As noted above, the only issues before the Tribunal relate to the applicability of s 7(7) and whether the Applicant’s CFS, or aggravation thereof, was contributed to, to a significant degree, by her employment. Both of these issues are dealt with below.
Wilful and false representation – s 7(7)
The wilful and false representation claimed by the Respondent is the Applicant’s negative answer in the Claim for Rehabilitation and Compensation form to the Question whether she ever had a similar injury/illness to the claimed disease of CFS – ROCS p. 5 para 16.
The Respondent points out that the Applicant was, in fact, diagnosed with CFS in July 1995 when she was only 13 years of age, and it worsened throughout 1995 into 1996, and lasted for approximately three years – ROCS p. 5 para 17.
When giving evidence, the Applicant confirmed this was the case – Transcript (Tr.) 27.1.2022 pp. 7 – 8:
“...I was diagnosed with chronic fatigue syndrome by a paediatrician, along with a well-known medical practitioner, Dr Vallings, who is part of the committed [sic] that runs the internal medical criteria in diagnosing 50 thousand patients around the world with this illness. I was an extremely fit and athletic and very energetic person. I represented [m]y country in table tennis, along with playing almost every other sport. I represented them in some form, whether it be school or club, until I was forced to be bedbound. I was in that state for three years. Through trial and error, I begin my life again…”
The Respondent submitted that, at the time the Applicant completed the claim form, she knew that she had previously suffered with CFS and, as such, her answer was wilfully false – ROCS pp. 5 – 7 para 18. In support of this submission, the Respondent drew the Tribunal’s attention to the following matters:
(a)the Applicant conceded in cross-examination that she did not think it was relevant to her claim because she was asymptomatic;
(b)the Applicant reported to her treating GP, Dr Luu, on 14 June 2014 that she had a history of CFS;
(c)on 9 January 2020, the Applicant sent an email to Howick Health and Medical Centre which she was referred to as a patient 20 years ago when she was “diagnosed with ME/CFS”. The Applicant stated: “…I remember b12 injections helped but was given them 1 a week for 6 weeks they started working then they would stop so wouldn’t improve”. This, it was submitted, “demonstrates that the Applicant not only recalled being diagnosed with CFS as a teenager but the treatment that was administered to treat it”, and this occurred less than a month after completing the compensation claim form;
(d)a consultation note of 13 January 2020 refers to the Applicant’s symptoms being “better after Vit B12 injection”, which was the treatment she received in 1995 for CFS;
(e)on 16 March 2020, the Applicant participated in a telehealth consultation. The clinical note of the consultation states: “Lydia first became unwell in the 90s and was diagnosed by Dr Rosamund Vallings with CFS. Lydia made a full recovery and was symptom free for 25 years…”;
(f)Dr Rickard, in his report of 9 April 2020, noted that the Applicant “eluded [sic] to a past medical history of chronic fatigue syndrome diagnosed in 1995 which lasted for three years, settling after her first pregnancy”;
(g)the Applicant reported to Dr Vecchio that “the condition has been present for more than 20 years although she has been largely able to cope with the symptoms post adolescence.”; and
(h)in the Applicant’s submission to the Tribunal labelled “Lydia Messer timeline 1995” she stated:
“Diagnosed with Chronic Fatigue Syndrome by Dr Mike Watt in July 1995.
I pushed myself hard for another year to be able to represent my country in table tennis.
Spent next 3 yrs ‘crashed’. Trying every option including B12 injections which helped a bit with energy but not much.
Dr Ross Vallings was my treating medical practitioner.”
Noting the above matters, the Respondent submits that the inescapable conclusion is that, at the time the Applicant completed the compensation claim form, she knew she had previously suffered CFS, and therefore, knew she was providing a false answer – ROCS p. 7 para 19. In these circumstances, it is submitted, the criteria in s 7(7) are met, and the Tribunal should conclude that the Applicant’s claim is excluded – ROCS p. 7 para 22.
The Applicant made the following submissions – Applicant’s response to the Respondents Submissions (ARRS) dated 24 February 2022 p. 2:
“In response to the Respondents claim Sec 7(7), at the time of my proposed employment there was no questions regarding Chronic Fatigue Syndrome. I passed this medical which was specific to my capacity to do the work as per my job description. Is it up to the job applicant to report illnesses/injuries that are not asked or not thought to be related to her employment? Where would this end? How much history would have to be given to satisfy Australia Postal Corporation/Startrack? They need to accept that their pre-employment medical only covers the requirements they had set. The responsibility lies with them.
I DID NOT wilfully or falsely give misrepresentation as it was not asked.
I had been asymptomatic for over 20yrs. My personal opinion and mental thoughts were that I no longer had Chronic Fatigue Syndrome. With my knowledge as a lay person at the time, I was unaware that it was an illness that which may never go away. The last time I had any medical issues to do with Chronic Fatigue Syndrome were prior to the birth of my first daughter in 1999 at the age of 17, and I was informed a pregnancy can either fix it or make it worse. I thought it had gone as I had no symptoms at all.
As I had been symptom free for over 20yrs, including when I had my pre-employment physical assessment, I thought this was the case. My research over the past two years and seeking medical advice and treatment, it is obvious that this is an illness/disease that may be aggravated and exacerbated i.e., it gets worse if pushed.”
(emphasis in the original)
As will be seen, the Applicant addresses the wrong issue, assuming that the Respondent’s s 7(7) submission relates to the information she supplied when gaining employment, as distinct from the specific answer she gave on the compensation claim form as to whether she had ever been afflicted with CFS.
This confusion was mirrored in the testimony the Applicant gave at the Hearing. In reaching a sensible conclusion to the question whether s 7(7) excludes the Applicant’s claim, it is necessary to set out, at length, the answers the Applicant gave to both Ms Slack and the Tribunal under cross-examination.
First, Ms Slack asked the Applicant a series of Questions about her history of CFS, the impact it had on her life, and the reason why she denied having previously suffered from CFS in her compensation claim form – Tr. 27.1.2022 pp. 11 – 14:
“…You said in your evidence-in-chief that you recall being diagnosed with CFS when you were a teenager in 1995 and you talked about how it lasted for a number of years, three, you were bedbound for that period of time?---Correct.
And I understand that as part of that treatment you were recommended to undergo some B12 injections?---Yes.
And you had them at the time?---Yes, back then it was – well, it is similar to today's stuff as well. It is trial and error. Back then, what I understand from my medical reports. I can't exactly ask my mum, she passed away in 2012. She was my carer – you know, looked after me because I was a kid. It went for a six week period and – to see if it worked and then they’d stop it and by that six week period it was starting to help but they didn’t start it again but now I’ve actually – through, obviously, that previous doctor they said it and she has pushed it a lot more. Nowadays, I've actually been having those B12 injections now – and weekly and have been for at least two months.
Yes, sure. And I understand from your medical records that you sought them, you went to the doctor and asked for them, largely because you had somewhat (indistinct) offset a beneficial impact back in the '90s?---That was – yes, that was after I getting – I didn’t know that a[t] first but it was after obtaining, obviously, my medical records from Dr Vallings in New Zealand seeking the medical records. That’s what was suggested, so, yes, that’s what I thought.
And you talked about, you know – well, the records show, obviously, a very impressive sportsperson in your teenage years and that put an end to that for a period of time. So, it’s fair to say, isn’t it, that the CFS did have a very significant impact on your life when you were a teenager?---Yes, and from – from what I understand, it is, obviously, because I pushed – back as a child, I did a lot of sport. That’s what overexertion that caused that first initial problem but, yes.
And because of the significant impact that it had on your life, you know, it’s not something that you’ve forgotten over the years. You’ve also known that you suffered from CFS?---To be honest, I thought it had gone away.
Yes?---I honestly – I honestly – no, no, I honestly believed, because I didn't have any - - -
……..
MS SLACK: Yes, I’ll ask the question again. I’m not really concerned – you know, I understand that you say that you thought you’d gotten over it. That’s not really my question. The point is that you knew, and you understood, that you, in your past, had suffered from CFS?‑‑‑I’m not sure how much you understand about chronic fatigue syndrome but it affects your memory. It affects everything in your brain. I actually lost all of my childhood memories from when I first got sick and it – and, again, when I got sick this time around, it wiped out my short-term memory. I felt like I was – like a dementia – not dementia, a stroke patient that had lost my memories. I was losing what I’d done last week with my kids. I’ve lose – I – it was that severe when I first crashed in 2019 it affected my memory badly, so saying that - - -
It hasn’t – it didn’t affect your memory such that you forgot that you had CFS?---I’m not understanding where you’re going with this.
You don’t need to, you just need to answer my question. You didn’t ever forget that you suffered from CFS, did you?---As it – if this where you’re going regarding my claim, when I put in my claim, my memory wasn’t good. I can’t remember – no, I couldn’t remember, no.
But you must have remembered why it was that you suffered from memory problems?---No.
You don’t remember anything from your childhood whatsoever?---No, I don’t.
Nothing in your - - -?---You don’t know that much – how much – how much that upsets me, not being able to – because my mum passed away in 2012 and it upsets me to the point, I don’t have any memories of my mum. I don’t have any memories of growing up with my sisters. That’s how much it affects the memory. I have to rely on asking my sisters. I have to rely on my dad, my pictures from the past. It is not – I struggle with raising my kids because I can’t – they come and get me and say, you know, do you remember this?
…
Yes, all right. That’s an email from you dated 9 January 2020 to Ms Vallings’ reception and the first line is:
20-plus years ago I met you. I was diagnosed with ME/CFS. I was a teenager.
So, in January of 2020 you remembered that this person had treated you for CFS as a teenager, didn’t you?---Yes, because – do you how I had – from being severe and bedbound in November and December, it was coming to a moderate stage and because of all the groups that I joined up with, her face came up there.
Yes, so you remembered her?‑‑‑Her name – her name came up and I watched the videos.
Yes, and you remembered her?‑‑‑(Indistinct).
By her as a teenager?‑‑‑From those videos and from contacting my dad.
Yes. And this email also shows that in January of 2020 you remembered that you suffered from CFS when you were a teenager?---Because of the help of my dad.
Well, it doesn't saying anything - - -?---You’re having a go at my memory. No, I’m sorry, but you’re having a go at my memory. My memory comes and goes. As I said to you, it’s like a person that has had a stroke. It’s not choosing to remember. It’s not choosing to not remember events. I hate my life now. I hate the fact that I cannot remember things. Certain things trigger my memories. You know, just like someone that has just (indistinct) domestic violence. I ignored – I have chosen – obviously, to be strong for the psychological stuff that I had in the past but there’s certain triggers that – that do bring up snippets of it but I don’t actually remember the events. I don’t remember going to an office and seeing her. I don’t remember going to a paediatrician and being diagnosed. I don’t remember it and you’ll – I suddenly remembered it. I remember through the help of my family, my father, my sisters.
Well, at the bottom of this email - - -?‑‑‑(Indistinct).
At the bottom of this email you say:
I can't ask my dad. I asked her and my dad can't remember. He is 70 now.
So, it’s not the case that your dad told you?‑‑‑Well, so what? Okay, so – so someone told me, all right. Would that be my sister? Okay.”

The Tribunal, having listened carefully to the Applicant’s testimony, found her to be, at times, an unconvincing witness. The answers she gave were sometimes contradictory, and she was, throughout, defensive and, occasionally, argumentative. Instead of answering the Questions posed directly, the Applicant attempted to weave a narrative that would bolster her submissions. Having recounted, with some clarity, the circumstances that befell her in 1995, she subsequently, and implausibly, then denied that she had any memory of her childhood whatsoever – Tr. 27.1.2022 p. 13. Later, in her testimony, the Applicant qualified this answer by stating that her “memory comes and goes” – Tr. 27.1.2022 p. 14.
One example of the Applicant not directly answering a simple Question from Ms Slack and attempting to weave her own narrative is set out below. After questioning the Applicant about her memory, the following exchange occurred between Ms Slack and the Applicant – Tr. 27.1.2022 p. 15:
“Yes. But the fact of the matter is that you did remember that you had chronic fatigue syndrome for three years when you were a teenager?---You’re right but I’m not – I’m saying – you’re right when I first filled in my claims I was trying to – I did say my work caused it. It has since been fixed. I’m saying my work aggravated it, not caused it, and I’ve said that. So why going back - - -”
Subsequently, Ms Slack led the Applicant through the Claim for Rehabilitation and Compensation form that she completed on 18 December 2019. When Ms Slack reached the Question asking whether the Applicant has ever had a similar injury/illness, the following exchange occurred – Tr. 27.1.2022 pp. 17 – 18:
“Ms Messser [sic], if you scroll up to the top of the right-hand column. Thank you. Ms Messer, you see that in the middle of that top section you’re asked:
Have you ever had a similar injury/illness?
?‑‑‑Yes.
And the answer you give is ‘No’. Do you see that there?‑‑‑Yes.
Now, you knew at the time that you completed this claim form that you had suffered from CFS in the past, didn’t you?---At the time of this claim – to be honest right now, I was severely bedbound and my memory and cognitive brain function and brain fog - - -
Yes, you’ve accepted – earlier in your evidence you accepted that you’ve never forgotten that you did suffer from CFS, so it must be right that at the time that you completed this claim form you knew that you had previously suffered from CFS?---So, I don't understand where you’re going to go. Are you trying to make out that I lied, right? That’s what you’re saying.
(Indistinct) the question that I’m asking and answer that specific question?---Well, this is why things – I made sure before we’ve even got to the state that I put in that it was an aggravation of us. Because I – I realised that I’d – I’d stuff up. Yes. I’d stuffed up, putting – filling in that form incorrectly. Because I was not in the right state of mind.
Yes. And - - -?‑‑‑I had stuffed up.
And the reason why you - - -?‑‑‑And that is why it is an aggravation of this illness, not a cause of the illness.
I accept that. And - - -?‑‑‑Aggravation of a – yes, an aggravation of a pre-existing asymptomatic illness.
I understand that that’s what you want to tell the tribunal, but I’m asking the question - - -?---Yes, that’s what I want – but I have told – I have said that since I corrected it over a year ago. Before our previous mediation hearing in – was it March or April last year? It was corrected before then. This is not something that I’ve just changed my mind on up to this – right here where we have it right now. And if you want to pick on anything from back then, that’s horrible.”
As will be seen from this exchange, the Applicant was evasive and did not answer, clearly and directly, the simple and straightforward Questions posed by Ms Slack. Instead, the Applicant attempted to evade answering the Questions and expressed indignation that Ms Slack was suggesting that she was untruthful when she completed the compensation claim form.
After the above exchange, Ms Slack continued to ask questions relating to the negative answer in the compensation claim form, and, again, the Applicant gave evasive and argumentative answers. After some time, I intervened, and the following exchange occurred – Tr. 27.1.2022 p. 20:
“DEPUTY PRESIDENT: Ms Messer, this is the tribunal here. Perhaps I could just ask you one simple question?‑‑‑Yes.
When you saw that question, ‘Have you ever claimed compensation before for a similar’, sorry, it’s the next one above it. ‘Have you ever had a similar injury/illness?’ And you’ve put an ‘X’ in the ‘No’ box, why did you do that?---I don't remember why I did it. I honestly – I made a mistake and it should have been yes.
So you can’t recall why you’ve incorrectly ticked the ‘No’ box?‑‑‑No. It wasn’t out of malice, it wasn’t out of trying to lie. I don’t recall why I did it. I’m sorry”
The operation of s 7(7) is limited to cases where an applicant is deceitful about the same, or substantially the same, disease for which compensation would be payable if the claim was accepted. In short, s 7(7) is limited to only a particular kind of deceit which has a disentitling effect. Further, a wilful and false representation must be both objectively untrue, and consciously made, by the employee knowing it to be untrue.
Another issue also requires mention: the Act is beneficial in nature and should not be read down by narrow and technical submissions – see Bird v Commonwealth (1998) 165 CLR 1 at 9 per Deane and Gaudron JJ.
As Perry J pointed out in National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382 (Georgoulas) (at [53]/395):
“...s 7(7) requires clear and cogent evidence that the representation was wilfully false. A representation will be wilfully false only if there is evidence that the representation was made without any belief that it was true...”
(emphasis in the original)
In order for s 7(7) to be enlivened, it is necessary to find that an applicant made a wilful and false representation. That is a precise task and requires the tribunal of fact to identify with certainty and clarity the particulars of the wilful and false representation. It is not sufficient that the Tribunal is presented with evidence which is open to more than one interpretation. The test of “wilfulness” injects into this fact finding exercise a requirement that cannot be satisfied if an act or omission is objectively open, on the balance, to a more benign interpretation.
Consideration needs to be given to the Full Federal Court decision of Bailey v Broadsword Marine Contractors Pty Ltd (2017) 257 FCR 549 (Bailey). Although that case involved consideration of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (Seafarers Act), the exclusionary effect of s 10(7) of the Seafarers Act has the same exclusionary effect as s 7(7) of the Act.
Mr Bailey was required to make a disclosure about his prior medical conditions as a condition precedent to obtaining employment. Mr Bailey omitted to disclose that he had been diagnosed with the condition of adjustment disorder with associated depression and anxiety. Having completed the required documentation, Mr Bailey gained employment, but after commencing work, his previous mental health conditions resurfaced. Of particular importance is this extract from the joint judgment of Reeves and Derrington JJ (at [48]):
“On 26 June 2014, being about one month after completing the medical information form, Mr Bailey was signed off from the vessel on which he had been working. He ceased his duties as a result of sustaining a claimed injury. The circumstances surrounding the cessation of work are not unimportant in this appeal. In particular, the contents of an incident report made by a Mr Oliver, who was in a managerial position at the time when Mr Bailey ceased his duties, was critical to the findings of the Tribunal. Mr Oliver wrote in that incident report that Mr Bailey had told him that that he suffered from ‘manic depression’ and that he had received treatment for suicidal tendencies. He also recorded that Mr Bailey had informed him that he had previously been treated for suicidal tendencies and for serious depression and that he had not told Broadsword as he felt that it would be detrimental to his employment opportunities. Although, in his evidence Mr Bailey denied that the conversation occurred as recorded by Mr Oliver, the Tribunal accepted Mr Oliver's version of it.”
At the conclusion of their joint judgment, their Honours dealt with Mr Bailey’s submission that there was no evidence on which the Tribunal might have found that he had made a wilful representation. Their Honours said (at [153]):
“…There was more than sufficient evidence on which the Tribunal might have reached that conclusion. In its reasons it pointed to a number of matters including:
(a)That on 26 June 2014 Mr Bailey spoke of his pre-existing suicidal tendencies and depression. That tends to suggest that he would have been well aware a month before he filled out the form of the condition from which he had suffered;
(b) Mr Bailey's statement to Mr Oliver that he did not disclose his prior psychological condition to the respondent because it would have been detrimental to his employment opportunities;
(c) The Tribunal disbelieved Mr Bailey when he asserted that he had not been informed that he had been diagnosed with anxiety and depression in 2011;
(d) The medical records of Mr Farr recorded that Mr Bailey was advised on 25 May 2011 of his adjustment disorder condition;
(e)The Medical Information Form was not a form which Mr Bailey had casually completed. He had given evidence that he had ‘leant some thought’ to the information which he would provide in it. That was particularly so in the context that he understood that if he had included additional information it would be detrimental.”
In Newham and Australian Telecommunications Company (1990) 22 ALD 783, a Full Bench of the Tribunal found that an applicant who incorrectly answered questions about her previous medical condition had not enlivened an equivalent provision to s 7(7), as the Members were not satisfied that the applicant had the necessary degree of knowledge, as opposed to suspicion, that her condition, at the time she completed the form, was Repetitive Strain Injury.
The various cases and determinations on s 7(7) or equivalent provisions, demonstrate the high factual hurdle that needs to be crossed to establish the basis for a finding of wilful and false representations.
In this matter, the question is whether the Applicant deliberately answered the Question incorrectly with the intention of obtaining a benefit.
There is considerable force in the submissions made by Ms Slack. It would be open, on one interpretation, to find that the Applicant did, indeed, deliberately answer the Question incorrectly for the express purpose of obtaining a benefit. Further, it is open to find that the Applicant did answer the Question in the way she did without any belief it was a true answer.
However, the testimony of the Applicant leads the Tribunal to reach a different conclusion. The Applicant’s evidence was, at times, meandering, repetitive, opaque and confusing. However, when I questioned her as to why she had answered the question in the negative, she answered that she “made a mistake and it should have been yes”. She then went on to testify that it “wasn’t out of malice, it wasn’t out of trying to lie. I don’t recall why I did it. I’m sorry” – Tr. 27.1.2022 p. 20.
If the Tribunal formed the opinion that the Applicant was giving truthful testimony, and that she didn’t recall why she answered the Question in the manner she did, and that, at the time she completed the compensation claim form, she was confused and did not intend to give a misleading answer, then the requirements of s 7(7) have not been met.
In this matter, the issue is resolved one way or the other by a finding of the Tribunal as to whether it believes that, on the balance, the Applicant gave truthful testimony.
In order to find that there has been a wilful and false representation, there must be “clear and cogent evidence that the representation was wilfully false” – Georgoulas at [53].
This matter can be distinguished from Bailey where there was evidence before the tribunal of fact that Mr Bailey had stated to another person that he did not disclose his medical condition because it would have been detrimental to his employment opportunities. In this matter, there is no evidence that the Applicant deliberately gave a false answer in order to bolster her chances of getting compensation.
The Tribunal finds, on the balance, that the Applicant gave a false answer on her compensation claim form, but there is not sufficient evidence that it was wilfully false, in the sense that she gave the answer without any belief that it was true. The Tribunal accepts, on the balance, that she was confused at the time she completed the compensation claim form, believing that she was asymptomatic, and she could answer the Question posed in the negative.
Was the onset or aggravation of the Applicant’s CFS contributed to, to a significant degree, by her employment?
The Respondent relies, primarily, on the evidence in medical reports and testimony of Dr Vecchio – ROCS p. 8 paras 24 – 26. As previously noted, in his supplementary report of 2 September 2021, Dr Vecchio opined – Exhibit 5 p. 6:
“Workload is not the cause of Ms Messer’s chronic fatigue syndrome, aggravation, or otherwise. The condition is constitutional and longstanding, all apparent with the supplied documentation.
…
The medical record proves the symptoms described by Ms Messer are constitutional, pre-existing and entrenched, the subject of numerous medical presentations, and so supports the overwhelming likelihood that they are independent of employment with StarTrack Express…”
The Respondent submits that Dr Vecchio is eminently qualified to give this opinion and, despite being given an opportunity to cross-examine him, the Applicant declined. As such, the Respondent submits, Dr Vecchio’s opinion remains unchallenged and wholly intact – ROCS p. 8 para 26.
The Applicant made the following submissions about Dr Vecchio’s evidence – ARRS pp. 2 – 3:
“The Respondent refers to Dr Vecchio as someone who specializes in Chronic Fatigue Syndrome/ME. Nowhere does it state in Dr Vecchio’s qualifications referring to anything of the sort.
Emerge Australia whom advocates/researches and assists with medical education and diagnostic services for people and the families of sufferers of Chronic Fatigue Syndrome/ME have never had dealings with Dr Vecchio.
Griffith University/NCNED whom have been doing research studies for over 20 years and continue to do so have never had any dealings with Dr Vecchio.
The Respondent has implied and made out Dr Vecchio has vast knowledge of Chronic Fatigue Syndrome/ME, well beyond that of Dr Deeds, yet he has failed to supply any medical research of his own showing without reasonable doubt that my illness was in fact not aggravated by the excessive workload brought on by Australia Postal Corporation/Startrack.
As per Dr Vecchio’s qualifications, he is a Com Care/Work Cover Doctor. Dr Vecchio is paid by Australia Postal Corporation so he is neither independent or unbiased.
The Respondent failed even to question Dr Vecchio on the day of the hearing about his medical opinion of my claim, rather they choose to seek his definition on certain medical words, Aggravation and Exacerbation.
Following this the Respondent asked Dr Vecchio what other doctors would say about these words. This line of questioning should be struck out given a third party/other doctors were not there to be questioned by either party on their medical definition of two words. No acceptable documentation was provided to support Dr Vecchio’s opinion.”
After quoting from an unnamed medical dictionary, definitions of “aggravation” and “exacerbation”, and claiming that these terms have the same meaning, the Applicant then submitted – ARRS p. 3:
“The Respondent has also claimed because I did not question Dr Vecchio, this must mean I must agree with everything he has stated.
This is incorrect and along with a lot of the Respondents claims/statements is further evidence of how they carry out their business. They are lawyers who twist the truth and put false words into people’s mouths.
I chose not to question Dr Vecchio because he offered nothing as a witness. I did not want to waste the courts time questioning someone that did not supply any medical research of his own and acted as though his opinion was the only one that counted but couldn’t back it up with any evidence.”
It is appropriate to deal, first, with the testimony of Dr Vecchio.
Ms Slack questioned Dr Vecchio about his qualifications and then asked if he had any amendments or corrections to his various medical reports relating to the Applicant which had been admitted into evidence. Dr Vecchio stated that he had no amendments or corrections to his reports – Tr. 27.1.2022 p. 41.
Ms Slack then asked if, in medicine, there is a difference between an exacerbation and an aggravation. Dr Vecchio testified that there was such a difference and gave the following testimony – Tr. 27.1.2022 p. 42:
“Could you please explain what each of them are?---An exacerbation is uniformly regarded to represent a time-limited, temporary and non-lineally significant worsening of a condition, that that returns to baseline. So, basically – and in simpler terms – it means that it is not significant beyond the expectation of resolution of whatever the problem was that was exacerbated. It’s non-permanent, it’s temporary and it’s not clinically significant in the long term. Aggravation, on the other hand – aggravation is an influence on the underlying condition that exerts, if not a pathological, a functional deterioration in the foreseeable and permanent future. So, it’s difficult to know what permanent means, but it is a pathological and enhancing worsening of the condition that is then unlikely to come back down to baseline. So they’re widely disparate and very much different terms. (Indistinct) they are misinterpreted by some clinicians and reporters as representing the same phenomenon.
And what you’ve just said – is that, to your knowledge and understanding, generally accepted by the wider medical community?---Oh, as long as I’ve been practicing medicine, and particularly report interpreters and medico-legal medicine, most definitely. That would be definitely the case in medico-legal medicine that those two concepts are parallel, disparate, and do not meet – they are different.”
The Tribunal will deal with the law regarding the aggravation of a disease below; however, it is important to note that the Applicant was given ample opportunity to cross-examine Dr Vecchio. Her characterisation of his evidence as quoted above is incorrect and her attempts to attack his qualifications and motives do not advance her cause.
Dr Vecchio, as would be expected, answered the questions he was asked in a professional manner and without adornment. Further, Ms Slack, quite properly did not unduly waste the Tribunal’s time by asking unnecessary questions but simply focused on whether Dr Vecchio stood by his reports and the diagnoses and opinions expressed therein. Insofar as Ms Slack went beyond this, she helpfully asked Dr Vecchio the difference between, in his learned opinion, an aggravation and an exacerbation.
The Applicant’s contention that she did not cross-examine Dr Vecchio because he did not supply any medical research of his own is not helpful. Dr Vecchio is a specialist with many years’ experience. I have observed him give evidence in numerous proceedings. He is a professional whose opinions are founded on years of specialist experience. For the Applicant to cast aspersions on his qualifications and his objectivity, without, it should be added, any objective evidence, does not advance her case.

Turning now to the legal principles underpinning what constitutes an “aggravation” for the purposes of the Act, Ms Slack drew the Tribunal’s attention to Tippett v Australian Postal Corporation (1998) 27 AAR 40 (Tippett), a much-quoted judgment of Finkelstein J. His Honour made the follow observations at 43 – 44:
“In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition. In considering the meaning of the word ‘aggravate’ in the Compensation Act, which is the only one of the four words that appeared in the definition of ‘injury’ in the New South Wales statute considered in Federal Broom Co Pty Ltd v Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified: Commonwealth v Beattie (1981) 53 FLR 191. In addition, because ‘aggravation’ of an injury is defined to include the ‘recurrence’ of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.
What Beattie also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensation is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the symptoms of it that is not so for compensation law where it is fundamental that the symptom of an injury is a part of that injury.
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival at 179-180; 209-210. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Full Court, Fed CT, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533.
However, as was pointed out by the Full Court in Beattie, at 201 per Evatt and Sheppard JJ:
‘It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.’
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”
It is the final paragraph of his Honour’s judgment that focuses attention directly on the difference been an exacerbation and aggravation of an ailment.
Ms Slack invites the Tribunal to go further, and submits that, in order to for there to be an aggravation, there must be some identifiable physiological change or disturbance of the physiological state. She then refers to Dr Deed not pointing to any identifiable physiological change and only identifying the experience of symptoms that underpin his diagnosis of the pre-existing condition – ROCS p. 9 para 30.
Up until recently, there was a divergence of opinion within the Tribunal as to whether there was a need for there to be an alteration in the underlying pathology, as distinct from the experience of symptoms, for there to be an aggravation for the purposes of the Act. This became much more pronounced after the High Court decision of May.
The following Tribunal determinations found that, for an aggravation to exist where a pre-existing disease is present, there must be some identifiable physiological change or disturbance of the physiological state – Williamson and Comcare [2019] 4774 at [45], Millar and Comcare [2019] AATA 4973 at [145], Wuth and Comcare [2020] AATA 3625, Whitlock and Comcare [2020] AATA 1353, De Tarle and Comcare [2021] AATA 94 and Cavanagh and Comcare [2021] AATA 499.
Conversely, there are a number of Tribunal determinations that found the existence of a disease, or an aggravation thereof, did not require the existence of an identifiable physiological change – Hopkins and Comcare [2016] AATA 742, Cosgrove-Kaye and Comcare [2019] AATA 1238 and Campion and Comcare [2021] AATA 4310.
This divergence of opinion has recently been resolved by the Full Federal Court in Wuth v Comcare [2022] FCAFC 42 (Griffiths, Wheelahan and Snaden JJ).
Wheelahan J, writing for the Court, after comprehensively and carefully examining the case law, including, most importantly, May, made the following observations, which although lengthy are set out in full:
“104It is reasonably clear from the joint judgment in MRCC v May that the requirement that there be a physiological change is applicable only to ‘injury (other than a disease)’, and is not applicable to an ‘ailment’. The main indications are, first, that the court was not concerned with a claim by Mr May to have suffered a ‘disease’ that was contributed to in a material way by his employment, but a claim for an ‘injury (other than a disease)’, and that it was a claim of the latter type that was the subject matter of the reasons in the joint judgment. This is reflected in the attention that is given in the reasons to the fact that ‘disease’ and ‘injury (other than a disease)’ are separate bases of liability, and that the SRC Act ‘draws an important distinction between ‘disease’ and ‘injury (other than a disease)’’, and that ‘[e]ach limb deals with a separate basis for something being an ‘injury’’: see [59].
105 The second indication is that in posing the first and second questions at [50], there is no reference to any requirement that there be a physiological change in order for there to be an ‘ailment’. Rather, the second question that is posed is whether the employee's ‘state’ was contributed to in a material degree by the employee's employment by the Commonwealth. This is consistent with the definition of ‘ailment’ in s 4(1) of the SRC Act, which includes a ‘disorder, defect or morbid condition’. Those conditions are effects on an employee’s body or mind which, if employment contributed in a material degree, would constitute injuries in respect of which there is a liability to pay compensation: see, Canute v Comcare [2006] HCA 47; 226 CLR 535 at [10] (Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ).
106 The third indication is that the main focus of the judgment was to identify the characteristics of an ‘injury’ in the primary sense. On that question, [52] is central. Their Honours expressly refrained from laying down an exhaustive judicial formulation, but gave the guidance that, generally, the question whether there was an injury will be determined by asking ‘whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’. I do not consider that Gageler J described an ‘injury’ in materially different terms at [75] in stating (footnote omitted):
‘An injury, it has long been repeatedly explained, is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’.’
107 At [76], Gageler J distinguished an ‘injury’ involving a definite or distinct physiological change in the above sense from ‘any alteration from the functioning of a healthy mind or body’.
108 The fourth indication is [54], which states that there may be circumstances in which the identification of a physiological change, a disturbance of the normal physiological state or a psychiatric disorder may satisfy the definition of ‘ailment’. This picks up some of the language of [52], but shorn of ‘sudden and ascertainable or dramatic’, which were held at [47] not to be necessary conditions of ‘injury’ in its primary sense, but which were nonetheless relevant. I would therefore not understand [54] to venture into any sort of considered explanation of the defined term ‘ailment’. Instead, I would understand [54] merely to make the point that a condition that is a candidate to be an ‘injury’ in the primary sense may qualify as an ‘ailment’, but would not constitute a ‘disease’ if the relevant connecting condition is not satisfied, namely that the ailment or an aggravation was contributed to in a material degree by the employment.
109 The court’s reasons at [54] form an important part of the context in which [57] is to be understood. Other contextual features are the facts that were found by the Tribunal and which were summarised in the joint judgment; the heading above [57]; and the immediately succeeding paragraphs. On the facts found by the Tribunal, Mr May had subjectively experienced symptoms that were unaccompanied by physiological or psychiatric change, where no diagnosis could be made, and which the joint judgment characterised by the heading above [57], and in [67], as a state where Mr May felt ‘unwell’. All that the joint judgment is relevantly saying at [57] is that Mr May's condition of feeling unwell, where there had been no diagnosis, would not have resulted in an affirmative answer to the first question that was posed at [50]. Otherwise, the succeeding paragraphs of the joint judgment, and in particular [61]-[62], focus on ‘injury’ in its primary sense as a component of the phrase ‘injury (other than a disease)’. There was no discussion of the ambit of the defined term ‘ailment’, or of any necessary characteristics of its components, as Mr May had made no such claim.
110 The statutory definition of ‘ailment’ in s 4(1) of the SRC Act should be ‘approached on the basis that Parliament said what it meant and meant what it said’: Owners of the ship ‘Sin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420. The definition of ‘ailment’ refers to ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. These are words of ordinary meaning. A requirement that an ailment be ‘physical or mental’ corresponds to the elaboration of ‘injury (other than a disease)’ in s 4(1) as being ‘a physical or mental injury’ and should not be regarded as words of limitation. The key point which I would understand their Honours to identify by [57] of the joint judgment in MRCC v May is that even with an ailment, ‘there must be more than an assertion by an employee that he or she feels unwell’: at [62]. Even then, I would say that in relation to ‘ailment’ this statement would fall into the category of general guidance, and that the text of the SRC Act has to be applied to the circumstances of individual cases as presented by the evidence, which will vary immensely. In the case of the onset of migraines or chronic headaches, it might readily be accepted by a trier of fact in a particular case that such an ailment is not the product of ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’: cf, MRCC v May at [52]. Whether that is so will depend upon the evidence. However, there is nothing in the definition of ‘ailment’ that invites the application of these criteria, which have been developed to assist triers of fact in borderline cases to identify whether or not a condition is an ‘injury’ in the primary sense. Further, to require that there be an ‘identifiable physiological change’ as an element of an ‘ailment’ would distort the defined term ‘ailment’ by importing a characteristic that is the hallmark of an ‘injury’ in the primary sense, thereby narrowing the distinction between them.
111 It follows that in deciding that the applicant had not suffered an ailment on the ground that no physiological change could be identified, the Tribunal misdirected itself. The errors commenced with the Tribunal's statement that it was common ground between the parties that no physiological change could be identified, when the applicant had made no such concession. Further, reading the Tribunal's reasons as a whole I am left with the impression that the Tribunal equated the identification of physiological change as requiring evidence in the form of objective pathology or test results. I referred at [52]-[54] above to the evidence given to the Tribunal by A/Prof Darveniza. The tenor of that evidence was that there was a physiological change, but there was no test such as an MRI scan which could detect the change, which was the usual position in relation to migraines, and that medical science could not explain the change. But as A/Prof Darveniza stated, ‘because someone can’t describe it doesn't mean to say it doesn’t exist’. In evaluating whether there was a physiological change, which Comcare had argued was a necessary requirement, the Tribunal did not deal with this aspect of the evidence. On the assumption that demonstration of a physiological change was required, there was no exploration by the Tribunal of issues such as the ‘disordered neurotransmission’ to which A/Prof Garrick had referred, the fact that (unlike MRCC v May) there were medical diagnoses of the applicant’s condition and of its cause before the Tribunal, and of the evidence of A/Prof Darveniza about a new treatment that was potentially effective and appropriate in the case of the applicant to treat her migraines, namely monoclonal antibodies. However, to be clear, I do not consider that the identification of a physiological change in the applicant was required in order to engage the definition of ‘ailment’ in the SRC Act.
His Honour’s judgment represents a continuation of the jurisprudence which has underpinned this area of the law for decades. His Honour exposed the error of misreading the High Court’s decision in May, which, as Deputy President Humphries observed in Wuth and Comcare [2020] AATA 3265 at [77], threw into question an unbroken history of jurisprudence going back to Semlitch. Having exposed the error of misreading May, Wheelahan J, in his learned judgment, has restored orthodoxy in this area of the law.
The fact that Ms Slack has advanced some of the Respondent’s case on a view of the law that is, now, at odds with the Full Court decision in Wuth, does not dispose of the matter. All that the Full Court decision means in this matter is that the Tribunal does not need to be satisfied that there must have been an identifiable physiological change or disturbance of the physiological state in order for there to be an aggravation of an ailment. The Full Court did not decide that there is no difference between an exacerbation and an aggravation of an ailment. Nor did the Full Court disturb the jurisprudence on what separates an exacerbation from an aggravation of an ailment. At least two substantial questions, therefore, remain. Firstly, has there been an aggravation of the Applicant’s pre-existing CFS, and, secondly, was that aggravation contributed to, to a significant degree by her employment?
Turning now to the testimony of Dr Deed, he confirmed his diagnosis of the Applicant suffering from CFS – Tr. 27.1.2022 p. 25.
When asked by the Applicant about contributing factors that can aggravate CFS, Dr Deed testified that there are “predisposing factors”, including “genetic pre-disposition in some cases”. He went on to identify “exposure to infectious agents, including viral illnesses, certain bacterial infections, also severe trauma and injury…as well as undue psychological stress…” – Tr. 27.1.2022 p. 25.
In response to the Applicants Question “do you think the unreasonable workload that was put on me leading up to November 2019 was the main cause of my aggravation to my asymptomatic illness?”, Dr Deed gave a somewhat qualified reply which concluded as follows – Tr. 27.1.2022 p. 26:
“…stressors, including psychological stressors can be a (indistinct) onset of chronic fatigue syndrome and also increase the frequency and worsening of symptoms and relapses. So it is possible in somebody that you use the word ‘unreasonable’ workload. I mean, I’m not here to – I’m not an occupational physician so I can’t judge that particular word, but certainly there is literature to support the possibility that you have had aggravation from the nature of your work as you’ve described to us…”
It will be noted that Dr Deed testified that it is a possibility that the Applicant experienced an aggravation of her underlying condition. He did not testify that she actually experienced an aggravation.
Next, the Applicant asked Dr Deed that “even after performing suggested treatments and this length of time, that work-related aggravation can still exist and cause current symptoms?”. Again, the answer of Dr Deed was qualified – Tr. 27.1.2022 p. 26:
“…And, you know, it is reasonable to expect that someone may, if exposed to physical, emotional stress, having an exacerbation.”
Although Dr Deed refers to an exacerbation, the Tribunal works on the assumption that he is referring to an aggravation. In any event, he gave a qualified “may” answer.
I then asked Dr Deed a Question, and his response was enlightening – Tr 27.1.2022 p. 26:
“Sorry, Doctor, to interrupt you. Perhaps I might be able to assist. I think the question, putting it in simple terms is, in your opinion is Ms Messer still suffering from aggravation of CFS?---I haven’t physically assessed Mrs Messer to – in any reasonable capacity as a doctor to give an answer to that in the last – certainly in the last couple of months. But when I saw her she certainly had symptoms of ME/CFS at that point.”
Again, Dr Deed testified that the Applicant was experiencing symptoms of CFS when he last examined her (which he later testified was 25 August 2021), but he went no further.
The evidence presented leads the Tribunal, on the balance, to the following conclusions:
(a)the Applicant first suffered from an ailment, subsequently diagnosed as CFS, as a teenager in New Zealand;
(b)the Applicant’s CFS has been present for years with a protracted fluctuating course;
(c)the Applicant’s CFS reactivated at some time in 2019; and
(d)the severity of the symptoms suffered by the Applicant were of such a nature that it comports with the description of aggravation as explained by Finkelstein J in Tippett.
The ultimate question to be answered, then, is whether the reactivation of the Applicant’s CFS was contributed to, to a significant degree, by her employment.
Having carefully considered the medical reports presented to the Tribunal and listening to the testimony of Dr Deed and Dr Vecchio, the Tribunal concludes that the following diagnosis of Dr Vecchio more closely aligns with the evidence before the Tribunal – Exhibit 4 p. 10:
“In my opinion, there is no relationship between her symptoms and her employment at Australia Post. With the records and evidence presented, I am able to conclude the work at Star Track was coincidental to the symptoms, diagnosed as chronic fatigue syndrome, and independent of it…”

The Tribunal has preferred this diagnosis for the following reasons.
First, Dr Vecchio is an experienced Rheumatologist who has appeared before the Tribunal on many occasions. His medical reports have, in the experience of the Tribunal, always shown objectivity, and his diagnoses comport with the material presented. In short, Dr Vecchio is a specialist in the area of diseases such as CFS and his qualifications, specialist training and experience are of direct relevance to the diagnosis he has made in this matter.
The Tribunal notes that Dr Deed also has experience in the diagnosis and treatment of persons suffering from CFS. Despite forensic cross-examination by Ms Slack as to whether he was, in effect, an advocate for the Applicant and not a dispassionate medical witness, Dr Deed gave objective, reasoned and lucid testimony – Tr. 27.1.2022 pp. 36 – 37. In reaching a conclusion as to which diagnosis the Tribunal prefers, it must be noted that the Tribunal was impressed by the evidence of Dr Deed and formed the view that he was not acting as an advocate for the Applicant but, instead, was giving independent evidence to the best of his ability.
The Tribunal notes that in Dr Vecchio’s supplementary report of 2 September 2021, he made the following observations – Exhibit 5 p. 2:
“I appreciate Dr Deed’s 21.04.2021 support for his patient, Lydia Messer, and I respect his extensive experience in the chronic fatigue group of conditions.”
Ms Slack made the following submissions on the weight that should be placed on the respective diagnoses of Dr Vecchio and Dr Deed - ROCS p. 10 para 33:
“…Dr Vecchio is qualified and experienced in assessing and treating people suffering from CFS. Dr Vecchio’s qualifications, specialist training and experience outweigh those of Dr Deed. Dr Deed is a general practitioner and his resume does not reveal that he has a particular interest or specialist knowledge in CFS. It is not mentioned, at all, in the section about what his ‘passionate interests’ are. While his resume refers to him being a ‘Committee Member’ of the ‘NHMRC ME/CFS Advisory Committee’ from 2017 to 2019, in his oral evidence he confirmed that that was a position relevant to funding research into the condition and was not a clinical position. No clinical experience in treating CFS is referred to, at all, by Dr Deed in his resume. One article is listed as being authored by Dr Deed that appears to have any relevance to CFS. It was published 12 years ago in a naturopathy journal (i.e. not a clinical journal). The Tribunal should not accept that Dr Deed’s qualifications and experience are in any way commensurate to those of Dr Vecchio.”
Before proceeding, the Tribunal does not accept that Dr Deed does not have experience in treating patients with CFS, and this fact was specifically dealt with by Dr Vecchio in the quote set out above.
It is the case that a person suffering from CFS is usually referred to either a neurologist, rheumatologist or a specialist in sleep therapy. The treatment of persons suffering from CFS falls with the expertise of a qualified rheumatologist.
In Dr Vecchio’s case, he is currently Director of Rheumatology at Princess Alexandra Hospital, and has been practising in rheumatology since 1989 – Exhibit 4 p. 14. In short, Dr Vecchio has more than 30 years’ experience in this specialist area of medicine, and his views and diagnoses should, unless there is some particular reason to the contrary, be accorded significant weight.
In this matter, and with no disrespect to Dr Deed, the Tribunal gives greater weight to the assessment and diagnosis of Dr Vecchio to that of Dr Deed.
In reaching this conclusion, the Tribunal also took into account the testimony of Dr Vecchio.
Second, the Tribunal was presented with the briefing letters provided to Dr Vecchio by the Respondent. For example, in the briefing letter of 4 February 2021, 70 enclosures are listed, starting with the report of Dr Vallings of 23 November 1995 and including all of the Applicant’s medical history – Exhibit 4. When reaching his conclusions about the Applicant, Dr Vecchio not only had the benefit of the Applicant’s self-reporting, but a comprehensive overview from numerous treating doctors.
In contradistinction, the Tribunal has not been provided with any briefing material given to Dr Deed by the Applicant. Whilst this, of itself, is not a problem, it does necessarily raise the question of the degree of information Dr Deed had of the Applicant’s prior medical history, other than her self-reporting.
This potential information deficit was brought into sharp focus during the testimony of Dr Deed. During cross-examination by Ms Slack the following exchange occurred – Tr. 27.1.2022 pp. 28 – 29:
“I’m not really concerned about that aspect of the opinion, it’s really I’m just trying to get to the bottom of the way that you used the word ‘onset’, in terms of, is it onset of symptoms? As you’re saying, that could be in the context of an aggravation, but it could also be in the context of this is CFS and you’re saying that work is causing the CFS as a discrete condition, and I’m just seeking to ensure that your opinion is we’re in the realm of aggravation?---At that point in time I was not aware of any previous diagnostic work-up on chronic fatigue syndrome, number one, it’s important in the context. Number two is that, you know, it’s very clear that remission and re-aggravation of chronic fatigue can occur from precipitating factors, as I said in my previous discussion. So the onset of symptoms remains as – could be a re-onset of chronic fatigue, if you want to say that. But I didn’t have any previous history of previous chronic fatigue. So it is possible it could be (indistinct), I don’t disagree with that.
Yes. And when you say you didn’t have a history of previous CFS and you didn’t have that at the time of writing your report of 22 September 2021, so I take it that means at the time of all of your reports you weren’t aware of the previous diagnosis?
MS MESSER: That’s incorrect.
WITNESS: No, no, can I re – just set the facts right. Dr Vecchio did mention that in some of his reports, which I had access to, so because I don’t have the timeline in front of me so it’s only when I received the legal report from Dr Phillip Vecchio was I aware of those things. Just to make it grounded in (indistinct words).”
It is of some concern to the Tribunal that Dr Deed testified that he gained much, if not, most, or all, of the information about the Applicant’s history of CFS from reading the reports of Dr Vecchio. When comparing and weighing the reports of Dr Vecchio and Dr Deed, the Tribunal notes the above testimony of Dr Deed:
“…it’s only when I received the legal report from Dr Phillip Vecchio was I aware of those things...”
The Tribunal formed the view that, while Dr Vecchio’s diagnosis was based on a holistic view of all of the available evidence, the diagnosis of Dr Deed was based on a much narrower information base, and almost entirely on the self-reporting of the Applicant.
Third, Ms Slack points out that some of Dr Deed’s analysis is based on information provided by the Applicant about the events leading up to her “crashing” in November 2019, which is either not entirely correct, or omits other key information – ROCS p. 11 paras 37 – 38.
For example, Ms Slack points out that Dr Deed refers to the cause of the Applicant’s increased activity in the period prior to relapse in November 2019 to be entirely due to work. However, as Ms Slack points out, the Applicant had extensive caring responsibilities in addition to her employment. She is the mother of four daughters, three of whom then lived at home with her, and her then husband had shoulder replacement surgery in 2018 which required a substantial amount of care by the Applicant.
Ms Slack correctly submits that Dr Deed did not account for these other responsibilities which involved physical exertion in his assessment of causation – ROCS p. 12 para 39.
The Tribunal is not critical of Dr Deed, as he relied on the information he was provided and provided an assessment based on the factual matrix before him. However, insofar as he was not provided with all of the key information, or with partial and selected information, then his assessment and diagnosis necessarily has inherent structural defects. In comparison, Dr Vecchio had, before him, a much fuller and more comprehensive database of information, and he was better able to make a considered diagnosis.
Fourth, as Dr Vecchio convincingly demonstrates in his report of 2 September 2021, none of the articles cited by Dr Deed support the proposition that the Applicant’s employment is relevant to her constitutionally fluctuating and indefinite CFS – Exhibit 5 pp. 3 – 4.
The Tribunal, on the balance, agrees with Dr Vecchio’s diagnosis that – Exhibit 5 p. 41:
“Workload is not the cause of Ms Messer’s chronic fatigue syndrome, aggravation, or otherwise. The condition is constitutional and longstanding, all apparent with the supplied documentation.
…
…the underlying condition led to withdrawal, not work causing a worsening of her functional status.
The medical record proves the symptoms described by Ms Messer are constitutional, pre-existing and entrenched, the subject of numerous medical presentations, and so supports the overwhelming likelihood that they are independent of employment with StarTrack Express…
…
The contention that Ms Messer’s employment contributed to her symptoms, occupational withdrawal or ongoing infirmity is untenable at every level.”
It follows then, that the Tribunal is not satisfied, on the balance, that the aggravation of the Applicant’s ailment was contributed to, to a significant degree, by her employment.
DECISION
The decision under review is affirmed.

I certify that the preceding 163 (one-hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.................[SGD]......................................................
Associate
Dated: 23/05/2022

Date of hearing: 27 January 2022

Applicant:
Via Microsoft Teams

Date final submission received:
24 February 2022

Counsel for the Respondent:
Ms Kate Slack

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers

Date of hearing:	27 January 2022
Applicant:	Via Microsoft Teams
Date final submission received:	24 February 2022
Counsel for the Respondent:	Ms Kate Slack
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers