Nelson and Comcare
[2009] AATA 874
•13 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 874
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2143; 2008/3094
GENERAL ADMINISTRATIVE DIVISION ) Re Gail Nelson Applicant
And
Comcare
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date13 November 2009
PlaceSydney
Decision The decision under review is affirmed ...................[sgd]...........................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – chronic fatigue syndrome – multiple chemical sensitivity – aggravation of conditions – whether applicant has suffered permanent impairment – whether applicant’s condition exists – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 14, 24 and 27
CASE LAW
Comcare v Mooi (1996) 69 FCR 439; 23 AAR 160
Macdonald v Comcare [2006] AATA 1012
Rees v Comcare [1996] AATA 104
Milenkovic v Comcare [1993] AATA 17Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523Comcare v Canute (2005) 148 FCR 232; 41 AAR 539
REASONS FOR DECISION
13 November 2009
Ms N Isenberg, Senior Member
Introduction
1. Ms Nelson, now aged 55, seeks review of the two decisions made under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”):
·The reviewable decision dated 23 February 2008 which affirmed the primary determination dated 1 November 2007 denying liability pursuant to section 14 of the Act for “aggravation of chronic fatigue syndrome” and “aggravation of allergy, unspecified, not elsewhere classified”; and
·The reviewable decision dated 10 June 2008, which affirmed the primary determination dated 26 March 2008 denying liability to pay compensation for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Act for “exacerbation of chemical sensitivity reaction”.
Background
2. From about 1986 to 1988, Ms Nelson worked at Steggles Chickens and there she first experienced symptoms of chronic fatigue syndrome. In 1988, at another job, her health deteriorated and she experienced problems with cognition, joints, tinnitus, insomnia and headaches and she felt as though her brain was “scrambled”.
3. In 1993, she joined the Australian Taxation Office (“the ATO”) and worked in its office in King Street, Newcastle. In 1996, the office underwent refurbishment, and she complained of “chronic fatigue exacerbated by multiple chemical sensitivity reactions”. In September 1996, Ms Nelson was re-located to another, older, building while the refurbishment continued at the King Street office, and her symptoms subsided. She returned to work in the refurbished building in February 1997 and claimed her symptoms increased.
4. In a medical certificate dated 21 May 1997, Dr Varipatis recommended that Ms Nelson be transferred to an old building with open windows and certified that she had suffered from chronic fatigue syndrome since 1989. Between April and November 1997, Ms Nelson was on leave, including recreation leave, unpaid leave and sick leave.
5. Ms Nelson has brought previous claims in respect of the claimed conditions. As a result, liability was accepted from 9 to 29 September 1996 for “exacerbation of chemical sensitivity reaction” and, from 24 February to 28 November 1997, for “exacerbation of multiple chemical sensitivity”.
6. In July 2001 Ms Nelson lodged an incident report regarding exposure to a chemical, possibly perfume, and in June 2003 reported an injury at work, being an increase in symptoms due to exposure to heavy perfume worn by colleagues. In September 2003, Ms Nelson reported a similar “injury” from working on the photocopiers.
7. Ms Nelson was absent from work on sick leave from February 2005, when she moved to the countryside outside Tamworth to live.
8. In December 2006, Ms Nelson completed a claim for workers’ compensation in respect of “multiple chemical sensitivities, chronic fatigue syndrome”. She stated that the injury developed in 1996 and affected her “brain, muscles, nasal passages, joints, eyes, throat, respiratory system, mind, short term memory loss, loss of words (nouns and adverbs), lethargy, inability to think properly”.
9. She stated that she was injured as a result of exposure to chemicals throughout the workplace including: the chemicals that other employees are able to use under the guise of fragrances, etc and the chemicals used in cleaning and the materials that were used in the 95-96 refurbishment and printer-fax smells. She said that she was highly sensitive to were throughout the entire workplace including Aldehydes, carpets, paint, new pineboard furniture.
10. Ms Nelson was retired on the grounds of invalidity on 7 May 2007.
Issues For Determination
11. The issues for consideration in this matter are as follows:
·Whether Ms Nelson suffers from “aggravation of chronic fatigue syndrome” and “aggravation of allergy, unspecified, not elsewhere classified”;
·If Ms Nelson currently suffers from either or both of these conditions, whether her employment with the ATO materially contributed to the conditions;
·Whether Ms Nelson suffers a permanent impairment as a result of an “injury” within the meaning of the Act;
·If Ms Nelson suffers from a permanent impairment as a result of an “injury”, whether her impairment exceeds the 10% whole person threshold prescribed by subsection 24(7) of the Act; and
·What, if any, is Ms Nelson’s entitlement to compensation pursuant to sections 24 and 27 of the Act in respect of “exacerbation of chemical sensitivity reaction.”
Applicant’s evidence
12. Ms Nelson gave evidence that after leaving school in 1979 she had a number of clerical jobs. In 1986, she commenced working at Steggles, collecting eggs. After about 12 months, her health started to deteriorate. She had sinus problems and shortness of breath. Her symptoms remained the same for the 6-7 months she continued worked there. Whenever she was away from work, her symptoms improved. She learned that formaldehyde granules were used to fumigate the nests, and she believed this was responsible for her condition.
13. By that time, she had been a smoker for about 15 years and smoked about 20 cigarettes per day.
14. In 1989, she underwent a hysterectomy but did not make the recovery she had expected.
15. In 1990, she worked at a kitchen manufacturing company, having previously worked there in 1978-9. While her role was clerical, the “dust fumes” from the factory floor could be smelt. She believed formaldehyde to be used in the manufacturing process. After about two months, she felt very fatigued; after about three to six months, she noticed headaches; after about seven months, she experienced muscle fatigue; after about 12 months, she experienced irrational thinking and loss of concentration. These symptoms improved on weekends and when she was away from work. She continued to have sinus problems, as she had had at Steggles, noticing that even on the weekend she was affected by people’s perfumes and deodorants.
16. Following her employment at the kitchen manufacturer, she went to work for an engineering company, where her headache marginally improved, but her muscle fatigue, irrational thinking and lack of concentration remained. She then had another job and her symptoms continued. She then worked for DEET and her symptoms also continued there. For a few months she then worked for an aluminum company where her symptoms worsened. She returned to DEET and her symptoms continued, and she gained weight because she was unable to exercise because of tiredness.
17. In 1993, she joined the ATO in its premises at the Hunter St Mall, Newcastle. Her symptoms worsened and she experienced headaches on at least a weekly basis, and they were more intense; her sinuses were a daily problem; her muscle fatigue was as bad as before; she was generally fatigued every day. She said, inconsistently, that she had not previously had trouble with other people’s “chemicals”. She also stated that her symptoms did not necessarily worsen during that time, but “became more apparent”.
18. She had tried alternative treatments and then in 1994 sought out Dr Varipatis, a general practitioner who had treated a friend of her mother’s. At that time, she did not attribute her symptoms to her workplace at the ATO, where she had worked for approximately eight months. She denied that she told the doctor that her symptoms had “come on gradually” over five years, as he had recorded in his notes.
19. At about this time, Dr Varipatis referred her to Dr Finlay-Jones, an ear, nose and throat specialist who diagnosed her as having Epstein-Barr virus.
20. Ms Nelson stated that Dr Varipatis was the first to diagnose chronic fatigue syndrome. He undertook a series of treatments over a period of six to ten weeks, including “chelation therapy”, and put her on a strict diet and exercise regime, with herbal supplements. By December 1994, her condition was “starting to turn”. All her symptoms improved. Her headaches, for example, went away completely. She was on a maintenance program.
21. During 1995, her condition improved, although the symptoms had not gone away completely. As to an entry in Dr Varipatis’ notes in December 1995 that her fatigue had increased, Ms Nelson thought he had made a mistake.
22. In June 1996, her work group was moved to the ATO’s King St premises at a time when it was undergoing refurbishment. She was able to smell chemicals and “fumes just seemed to ingratiate (sic) themselves within [her] whole system and [she] felt [her]self slipping back”, and “the fumes were getting into [her] body”. Immediately her eyes started hurting; after about a week, her irrational thinking returned, as before; she was having trouble relating to colleagues; and she was unable to stay awake at the computer. Her muscle fatigue returned within two weeks and her sinus problem also returned. Her headaches returned over the month and grew in intensity over that time. Overall, her symptoms were equally as bad as they had been previously.
23. After a month working at the ATO’s King St premises, she was moved back to the Hunter St Mall office on the advice of her doctor, where she remained for about 10 months. There her symptoms started to subside. It was an older building which, although air-conditioned, also had windows that could be opened.
24. In about March or April 1997, she was transferred, against her wishes, back to the refurbished King St office, where, almost immediately, her symptoms returned to their previous level. When she was away from work, her symptoms would improve, but it took longer than previously.
25. In October to December 1997, she took two months off work, only to have her symptoms return within a week of returning to work. By late 1997, she said she “couldn’t function”. As to the report of Dr Varipatis on 8 December 1997 that she had been back at work for a week and was “okay”, she thought he was so used to seeing her eyes and nose irritated that he did not record the relevant details. She said her problems must have arisen later than a week after her return.
26. In May 1998, she consulted Professor Wakefield, immunologist. Although she could not recall telling him that she felt much better, she agreed that her condition was much improved over her 1997 condition. She said that during 1998 she had periods when her health was up and down.
27. In 1999, there were other stressors in her life: her mother died; her daughter was diagnosed with depression; and she was experiencing marital problems. She agreed she had discussed those issues with Dr Varipatis. In October 1999, she was recorded as having told Dr Varipatis that she was grieving strongly for her mother and had suicidal thoughts and that there was discussion about counselling and stress management. In November 2000, she was recorded as having told Dr Varipatis she was having panic attacks.
28. She said that it took about three years for her to start to notice that there was some improvement in her health. The chemicals from the refurbishment had reduced, but she still had to face perfumes, deodorants, aftershaves, etc, as well cleaning products, printer toners and inks.
29. From 1999 up until 2004, when she took long leave from the ATO, her condition was generally the same: she had a headaches “most of the time” during the week; her sinus was as bad as it had previously been, if not worse; her eyes were “excruciatingly sore”; her thinking “never became clear” and her “fuzzy head” continued; and her muscles were very tired and weak.
30. She continued to have treatment: another form of intravenous drip which included hydrogen peroxide, and supplements. She moved to the Tamworth area for approximately two years, and her symptoms improved. She did casual work in the office at a supermarket after a year or so, and her symptoms returned. She noticed that a lot of her symptoms that had been caused by chemicals were better, but her fatigue levels were still high.
31. She returned to Newcastle in about May 2007, but was unable to resume work at the ATO. Recently she attempted three days of receptionist work but had immediate sinus problems and had constant nosebleeds. She thought this may have been due to an air freshener used in the reception area.
32. She continues to have sinus problems and sore eyes, and occasional headaches. Her lethargy is “reasonably good”, as is her confusion and irrational thinking. She no longer has dizziness, and only experiences some muscle fatigue. She doubted that she could return to work in an office unless there was very good ventilation.
33. She said she has not smoked since 1990. Her daughter, who had lived with her, had a cat from 1996 until recently.
Medical Evidence
34. Dr Emmanuel Varipatis, General Practitioner first saw Ms Nelson on 5 May 1994, and diagnosed ‘CFS (5 years)’, recording in his clinical notes that it was of gradual onset with initial fatigue and chronic sinusitis. He recorded at that time some 11 different symptoms:
1.Fatigue
2. Decreased memory
3. Increased weight
4. Anxiety
5. Blurred vision
6. Insomnia
7. Arthralgia/Myalgia
8. Dyspnoea
9. Bloating/Fat/Heartburn/Hiatial Hernia
10. Sinus congestion
11.PV thrush
35. Dr Varipatis provided reports dated 21 May 1997, 7 July 2000, 14 May 2002, 20 December 2004, 5 July 2006 and 25 March 2007.
36. In his first report, dated 21 May 1997, Dr Varipatis wrote that Ms Nelson had suffered chronic fatigue syndrome since 1989. He noted that Dr Baker had tested her for allergies and found a strong formaldehyde reaction. He wrote that this was consistent with her increased symptoms after workplace renovations.
37. In his report of 7 July 2000, Dr Varipatis noted that he had seen Ms Nelson on 39 occasions. He wrote that he had taken a history that she was previously well until working at a poultry processing plant between 1986 and 1988. He then wrote about her experience at the joinery, and that her symptoms had deteriorated, and another association was made between glues and formaldehyde as used in that industry. He considered that she fulfilled the criteria for chronic fatigue syndrome by 1990. He wrote that her condition continued to deteriorate after she joined the ATO, with progressive deterioration throughout the week, with some improvement over the weekend, time off, and especially on holidays. She noticed acute severe relapses in her chronic fatigue syndrome following the renovations. He recorded a secondary diagnosis of multiple chemical sensitivity.
38. In his report of 5 July 2006, he wrote that Ms Nelson‘s cognitive dysfunction had dramatically improved and that she then exhibited a very high order cognitive function.
39. On 8 December 2006, Dr Varipatis diagnosed Ms Nelson with depression and, on 11 December 2006, certified her as being totally and permanently incapacitated for work duties in any workplace.
40. In his final and most comprehensive report, dated 25 March 2007, Dr Varipatis wrote that Ms Nelson‘s chronic fatigue system had commenced in 1989 and had progressively deteriorated to 1994. As a result of a variety of interventions, her condition improved between 1994 and 1996. Following the ATO renovations which would have exposed her again to formaldehyde from the new material, all her symptoms deteriorated “rapidly and severely”. He observed that when he gave her a medical certificate for two weeks off work, there was a dramatic improvement. When she moved to the old building, her condition stabilised. On her return to the refurbished building, her condition deteriorated, and he gave her a total of four months off work during 1997. Her condition was stable, though, in early 1998. She was referred to a Prof Wynder who confirmed a “diagnosis” of multiple chemical sensitivity. By mid-1998, according to his clinical notes, she was slightly worse and had developed “spreading phenomena”, where an ever-increasing range of workplace chemicals, including perfumes and cleaning agents could produce debilitating symptoms. He wrote that this was common in multiple chemical sensitivity. She complained of headaches and sinus headaches and she has not improved since that time. In the report, he also recorded that she suffered fatty liver insulin resistance, obesity, anxiety, depression, chronic pain and dyspepsia/reflux.
41. Dr Varipatis’ clinical notes were tendered to the Tribunal as evidence. As previously noted, Dr Varipatis recorded on 5 May 1994 that her condition had been of gradual onset over the previous five years.
42. Dr Varipatis recorded in December 1994 that while Ms Nelson’s energy and moods had improved, her confusion and concentration had not, and her motivation had decreased.
43. In May 1995, Dr Varipatis recorded that although Ms Nelson was stable, there were no significant changes. In July 1995, she was recorded as having “relapsed”, and in August 1995 was “despondent”. In October 1995, he recorded that her concentration, sinus congestion, and binge eating had worsened. In December 1995, he recorded that her fatigue had increased.
44. In February 1996, Dr Varipatis recorded that Ms Nelson had shown improved memory, concentration, and cognitive ability. While she had complained in July 1996 about the refurbishments in her workplace, she reported in September 1996 that she had improved, only to “deteriorate strongly” with the “further refurbishments”. In November 1996, she had a persisting sore throat, blurred/sore eyes and dry skin.
45. In February 1997, her condition was described by Dr Varipatis as the same “as before deteriorating”. She experienced nausea, belching and flatulence, insomnia, shortness of breath and was overeating, with sugar cravings. Her fatigue though had reduced.
46. In April 1997, Dr Varipatis recorded that Ms Nelson’s condition had worsened, but did not elaborate on this. In July 1997, he recorded rashes, aching knees, wrists and elbows, arthralgia, a worsening of fatigue, shortness of breath and difficulty walking up stairs.
47. On 8 December 1997, Dr Varipatis recorded that Ms Nelson had been back at work for a week and that she was “okay”. In May 1998, Dr Varipatis recorded that she had been stable since her return to work. By July 1998, she was said to be slightly worse. Dr Varipatis referred to Professor Wynder’s diagnosis of multiple chemical sensitivity.
48. In May 1999, Dr Varipatis recorded that Ms Nelson experienced an increase in dyspepsia, reflux, and hiatus hernia. She had increased fatigue, decreased stamina and experienced “head pressure”.
49. In July 1999, there was no mention of workplace factors. In October 1999, though she was stressed and unhappy because of her mother’s death and marital discord, her energy and stamina had increased. Her multiple chemical sensitivity was unchanged, however. For most of 2000 she was away from work.
50. When Dr Varipatis saw her again in February 2001, she complained of painful eyes. Her reflux had reduced, as had her depression. She fatigued easily and had painful knees, fluid retention and tinnitus. In April 2001, she reported no reflux unless she ate chocolate. She reacted to wheat, yeast and dairy. In August 2001, her multiple chemical sensitivity was said to have increased, but there were no details. In September 2001, her sore eyes had improved, but her fatigue and insomnia had increased. Her multiple chemical sensitivity (undetailed), however, was said to have decreased. In December 2001, her fatigue had increased and she was too tired to walk. She experienced dyspepsia, reflux and epigastric pain.
51. In May 2002, she reported smelling bleach at work for several months. By June, she had developed rosacea, and her arthritic knees were a problem. In November 2002, she reported persistent shortness of breath, heel pain and fluid retention.
52. In June 2003, she had reduced fatigue and increased stamina, but her cognitive function had worsened. In October 2003, she said she was exhausted by the end of the week before she took holidays, she had chest pains and her left arm tingled.
53. In May 2004, her rosacea had increased, as had her depression.
54. Dr Richard Baker first tested Ms Nelson for allergies in 1996 after having her case referred to him by Dr Varipatis. In his report of 12 February 1996, he found her to have tested positive to the following inhalants: formaldehyde, candida, house mite, cephalosporium and mould mix C. She tested positive for the following foods: cow’s milk, corn, cocoa with borderline reactions to brewer’s years and cane sugar. On examination, he found her symptoms to be consistent with allergic rhinitis.
55. Professor Denis Wakefield, Professor of Pathology, provided a report dated 15 May 1998 to Dr Varipatis, by whom Ms Nelson had been referred. He had taken a history that Ms Nelson developed the “insidious onset of a fatigue-like state” after working for Steggles. She did not actually become unwell with fatigue until she went to work for the kitchen company. He took a history in relation to her experience at the ATO: that on moving to the refurbished offices she became “quite fatigued, disoriented and unwell”. He thought the smell of fumes, glues and other solvents as part of the refurbishment probably led to mucosal irritation and a worsening her fatigue. He did not find her to have a properly defined multiple chemical sensitivity syndrome. She reported that her chronic fatigue syndrome was improving. On examination, he found her to be normal, other than obese, and able to resume work.
56. Dr Mark Donohoe, General Practioner, provided a number of reports dated 20 August 1997, 1 October 1997, 12 September 2006 and 1 July 2008.
57. In the report of 1 July 2008, Dr Donohoe diagnosed Ms Nelson with chronic fatigue syndrome which he considered developed during her employment with Steggles. He also diagnosed “multiple chemical sensitivity”. He considered the conditions were caused by her agency employment. Dr Donohoe reported that Ms Nelson’s current symptoms included mental impairment, slow neurological responses, muscle weakness, laboured breathing, insomnia and psychological distress alternating between anxiety and depression.
58. In relation to chronic fatigue syndrome, in his report of 12 September 2006 Dr Donohoe wrote of his experience: he has been consulted as an expert in the specific field of multiple chemical sensitivity by the WorkCover Authority of New South Wales and have been nominated for the New South Wales Parliament by the Minister for Industrial Relations as an expert in the field.
59. In further outlining his experience in dealing with and treating multiple chemical sensitivity, Dr Donohoe, in his report dated 1 July 2008, wrote of his being invited and participation in an international conference held in the United States to revise the case definition for multiple chemical sensitivity. He was subsequently appointed as a member of an ongoing twelve-person international committee to complete and publish the case definition and explanatory notes.
60. In the same report, Dr Donohoe wrote:
Multiple chemical sensitivity was originally defined in 1987 as “… an acquired disorder characterised by the current symptoms referable to multiple organ systems occurring in response to demonstrable exposure to many chemically unrelated compounds of doses far below those established in the general population to cause harmful effects. No single widely accepted test of physiologic function can be shown to correlate with the symptoms.”
…
It is now well reported in the medical literature that exposure in the work environment to such renovations and/or refurbishments can cause or worsen chemical sensitivity as well as the symptoms of chronic fatigue syndrome in susceptible subjects … (references omitted)
61. Dr Donohoe stated that he was unable to assess the conditions under the Comcare Guide without defining the conditions as psychiatric, which he considered was inappropriate. He stated that if Ms Nelson’s disability could be assessed under the Miscellaneous Table of the Guide, he would assess her at greater than 50%.
62. On 26 November 1997, a study was conducted by Dr Maurice Harden, medical adviser to Health Services Australia, in relation to the ATO’s King St premises in Newcastle. The air conditioning was found to have met the relevant Australian standard, and airflow appeared adequate. There was no significant use of any chemical in the workplace. At the same time, testing was conducted by Dr Peter Devey, occupational hygienist, who provided a report dated 21 November 1997. In summary, the tests failed to indicate any significant presence of formaldehyde or volatile organic compound in the office air. He found the office air to be comparable with the outside air.
63. On 23 January 2007, Dr Graham Vickery, psychiatrist, diagnosed Ms Nelson with acute adjustment disorder as a result of stressors in her personal life in 2006.
64. Dr Karl Baumgart, immunologist and immunopathologist, provided a report dated 19 September 2008. Dr Baumgart diagnosed Ms Nelson with depression, morbid obesity, hypertension, smoking induced airways disease, osteoarthritis, chronic rhinosinusitis (possibly allergic), glaucoma, rosacea, possible chronic fatigue syndrome and possible formaldehyde or volatile organic compound intolerance. He considered the duration of Ms Nelson’s absence from the workplace and excluded workplace formaldehyde exposure as the cause of her current symptoms. With the possible exception of depression, he did not consider the conditions were related to her employment.
65. Dr Baumgart did not consider Ms Nelson suffered from multiple chemical sensitivity. He did not consider the condition to be a "diagnostic entity". He was unable to make an assessment of permanent impairment under the Guide.
66. Dr Patrick Carroll, a physician specializing in internal medicine, provided a report dated 10 October 2007, and gave evidence. Prior to his medical studies, he undertook a degree in civil engineering, winning the university medal. He is a specialist physician in internal medicine. He has a Masters of Public Health obtained from Harvard University. He has a special interest in occupational toxicology, and, for about the last 20 years, has provided medicolegal and environmental toxicology expertise.
67. Dr Carroll considered Ms Nelson had a significant number of health problems and diagnosed her with symptoms of obesity, hypertension, heart disease, glaucoma, rosacea, arthritis, probably osteoarthritis. He did not consider her current conditions were related to her employment, although he stated that her dissatisfaction with office work 'may have contributed to her long term dysfunction'. Dr Carroll considered Ms Nelson’s smoking up to 20-30 cigarettes a day until 1990 as also having affected her health condition.
68. Dr Carroll stated that multiple chemical sensitivity has no diagnostic listing and is not recognised by any authoritative medical organisation.
69. In his evidence, Dr Carroll stated that workplace exposure to chemicals is very low. He observed that there had been an occupational hygiene assessment in 1997 where the exposure was “essentially undetectable”. He considered her workplace exposure to be “probably million times lower in concentration than smoking.” He also noted Ms Nelson’s exposure to pets. As to formaldehyde exposure in particular, he noted that it was an issue of dose and observed that cigarettes release a significant amount of formaldehyde.
70. He considered the treatments provided to Ms Nelson by Dr Varipatis as being “potentially dangerous”: intravenous treatment for which he considered there was no evidence as to the basis of its use. He considered chelation therapy which
Dr Varipatis had provided to Ms Nelson to have a small but very clear role in the treatment of some forms of heavy metal poisoning.71. He knew there to be many studies of multiple chemical sensitivity. He referred to papers that reported that about 15% of the population believe they are intolerant to some chemical, and he thought that was a reasonable assessment. He thought that 0.1-0.3% of the population believe they have a broad chemical intolerance. An even smaller percentage may have an intolerance that would cause them to react to the office environment and hence a need to avoid it.
72. He confirmed that he had problems with the “label” of “multiple chemical sensitivity” – with every aspect of the condition, but most of all its fundamental existence. He observed that he had never seen any evidence in any orthodox medical journal or source to provide pathophysiological evidence for the label.
73. In relation to chronic fatigue syndrome, he said he said he was not aware of any scientific findings connecting the condition and exposure to multiple chemicals.
Consideration
74. Section 4 of the Act, as it was at the relevant date, provides the following definitions:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
75. Drummond J made it clear in Comcare v Mooi (1996) 69 FCR 439 at 443; 23 AAR 160 at 164 (Mooi) that the use of the word ailment signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones”. His Honour said a claim should not be rejected simply because the employee's condition cannot be identified as a recognised medical condition. However, his Honour added (at FCR 444; AAR 164-5) that it is:
...essential for...a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behavior
76. In the context of this matter, therefore, it is necessary only for the applicant to demonstrate that her condition is outside the boundaries of normal human functioning and behaviour. I accept Ms Nelson’s evidence that she continues to have sinus problems and sore eyes, and occasional headaches and some muscle fatigue. I find that these constellation symptoms, however described, are outside the boundaries of normal human functioning. To that extent, she suffers an ailment, as defined in the Act.
77. To determine if there has been an aggravation of the ailment or an aggravation that was contributed to in a material degree by her employment is more problematic.
78. I was referred to the Tribunal’s decision in Macdonald v Comcare [2006] AATA 1012 at paragraph 54, where Dr Campbell succinctly wrote:
While the symptom complex may constitute an ailment, the absence of any particular understanding of the underlying pathology and/or pathogenesis of the ailment, makes it extremely difficult for a decision-maker to conclude that a disease as defined by Section 4 of the Act exists. For a disease to exist as defined by the Act, Mr Macdonald’s employment must have contributed to, in a material degree, the ailment suffered, or an aggravation of that ailment.
79. In summary, Ms Nelson’s evidence was that, under Dr Varipatis’ care, her condition, which had started at Steggles, improved up until the commencement of renovations at the ATO in June 1996. Her evidence was that as part of that renovation process, formaldehydes, to which she is allergic, were used, and her condition deteriorated. She improved when she was away from the office, and deteriorated further when she returned again in 1997.
80. In 1996, Dr Baker found Ms Nelson‘s symptoms to be consistent with allergic rhinitis. He found her to be allergic to a variety of foods and also a number of inhalants, including formaldehyde. It was submitted that formaldehyde was the chemical to which she was exposed both at Steggles, and during the refurbishment process at the ATO, although it is not entirely clear if that were actually the case. I accept, though, that Ms Nelson was able to detect formaldehyde. It was submitted that this provided an objective basis to the complaints that Ms Nelson made about the various symptoms that she experienced at her various workplaces. Relying on the report of Professor Wakefield, Comcare had previously accepted that, for a period of time before 1998, Ms Nelson may have had an adverse reaction to chemicals during the renovations and paid her. Relevantly though, Professor Wakefield did support an ongoing assertion of a condition.
81. There are a number of aspects of the evidence that are important in considering Ms Nelson’s account:
·Dr Varipatis recorded in his clinical notes on 5 May 1994 that her condition had been of gradual onset over the previous five years, which is inconsistent with Ms Nelson’s account.
·In her evidence, Ms Nelson said that by December 1994 all her symptoms had improved and her headaches had gone away completely. In contrast, Dr Varipatis recorded at that time that while her energy and moods had improved, her confusion and concentration had not, and her motivation had decreased.
·A year before the refurbishments to the ATO office of which she complains, according to Dr Varipatis she had “relapsed”, and in August 1995 was “despondent”. In October 1995, her concentration, sinus congestion, and binge eating were worse. As to an entry in Dr Varipatis notes in December 1995 that her fatigue had increased, Ms Nelson thought he had made a mistake. I do not find her explanation to satisfactorily explain the doctor’s entry.
·While she had complained in July 1996 about the refurbishments, she reported in September 1996 she had in fact improved, only to “deteriorate strongly” with further refurbishments. By September 1996 however, she had already been moved out of the King St office. In November 1996, while still away from that office, she had a persisting sore throat, blurred/sore eyes and dry skin.
·In February 1997, her condition was described by Dr Varipatis as the same “as before deteriorating”. She had nausea, belching and flatulence, insomnia, shortness of breath and was overeating, with sugar cravings. Her fatigue, though, had reduced. At that stage, she had still not yet returned to the King St office.
·When she returned to the refurbished King St office, which appears to have been in about March 1997, she said her symptoms returned to their previous level almost immediately. In April 1997, Dr Varipatis recorded worsening but did not elaborate. In July 1997, he recorded only rashes, aching knees, wrists, elbows, arthralgia, and a worsening of fatigue, shortness of breath and difficulty walking up stairs.
·In about December 1997, she returned to work after a two-month break only to have her symptoms return, she said, within a week. Shortly beforehand, the study in relation to the King St premises found the air conditioning and airflow to be adequate and that there was no significant use of any chemicals in the workplace. Importantly, the tests failed to indicate any significant presence of formaldehyde or volatile organic compound in the office air at that time and that the office air was comparable with the outside air.
·Her evidence was that by late 1997 she “couldn’t function”. As to the report of Dr Varipatis on 8 December 1997 that she had been back at work for a week and was “okay”, she thought he was so used to seeing that her eyes and nose were annoying her that he did not record any relevant details. In view of his detailed observations, I find this unlikely. She said her problems must have arisen later than a week after her return.
·It was submitted that before 1996 Ms Nelson did not seem to notice the other chemicals, such as perfumes, toners, and the chemicals used in ink cartridges, but that after the renovations in June 1996, she had a sensitivity to those chemicals as well. In fact, her evidence was that at the kitchen company she not only continued to have sinus problems, as she had had at Steggles, but she noticed that even on the weekend she was affected by people’s perfumes and deodorants.
·Ms Nelson had two periods of time off work in 1997 and a further period of work off in 1998. As to how this correlated with Dr Varipatis’ clinical notes was unclear. I was invited to find that the most likely explanation was that reports of her improvement were when she was off work, and that when she was feeling worse she was at work. In fact, none of Dr Varipatis’ entries for 1997 record improvement at all, whether she was at work or not.
·As late as May 1998, Dr Varipatis recorded that she had been stable since her return to work and that she was much improved compared to her condition in 1997. Also, in May 1998, Professor Wakefield thought that her condition had considerably improved and that she was able to work without major problems. Her response, which I do not find persuasive, was that her condition fluctuated that year.
·Ms Nelson ‘s evidence was that between 1999 and 2004 her condition was generally the same: she had a headaches “most of the time” during the week; her sinus was as bad, if not worse; her eyes were “excruciatingly sore”; her thinking “never became clear” and her “fuzzy head” continued; and her muscles were very tired and weak. In May 1999, while she was not working, Dr Varipatis recorded an increase in dyspepsia, reflux, and hiatus hernia. She had increased fatigue and decreased stamina, and experienced “head pressure”. In July 1999, by which time she had returned to work, there was no mention of any workplace factors to Dr Varipatis. In October 1999 she was stressed and unhappy because of her mother’s death and marital discord. Her energy and stamina had increased. Her multiple chemical sensitivity (undetailed) was said to be unchanged. The doctor’s notes show that there were a number of different issues affecting Ms Nelson’s life: her daughter’s health, marital stress issues and the death of her mother. This is supported by Dr Vickery, who noted that Ms Nelson‘s psychological state was quite complex and diagnosed her with an acute adjustment disorder. Dr Varipatis’ clinical notes show psychological factors as being far more significant in the histories he took at that time than any allegations of chemical exposure. In fact, that is not a feature at all in the 1999 notes. Overall, the clinical notes of Dr Varipatis do not accord with Ms Nelson’s evidence about the period 1999 to 2004. In fact, there was no mention at all of headaches, nor her sinusitis. Her eyes did trouble her through 2001, however. She had fluctuating cognitive problems and fatigue issues. Dr Varipatis recorded a number of significant conditions to which Ms Nelson did not refer, such as depression, dyspepsia, reflux and epigastric pain, shortness of breath, and arthritis.
82. Ms Nelson had purported to be able to give a very detailed account of her condition as it varied over the years, especially as she was asked to detail her condition as far back as 1989, but having regard to Dr Varipatis’ clinical notes as to her complaints, I have reservations as to the accuracy of her recollections.
83. There was a concerning feature of Dr Varipatis’ notes: having adopted Professor Wynder’s diagnosis of multiple chemical sensitivity, Dr Varipatis did not elaborate upon its symptoms, referring to it independently of Ms Nelson’s other complaints. Conversely, at the time of his initial diagnosis of chronic fatigue syndrome, he identified Ms Nelson’s complaints, some of which were addressed in an ongoing manner.
84. As to chronic fatigue syndrome generally, although there remains some controversy, the balance of medical opinion accepts it as a condition. Clinical practice guidelines published in the Medical Journal of Australia, define fatigue as follows:
Patients who complain of persisting "fatigue" or "tiredness" may be describing any one of a diverse range of clinical phenomena, ranging from muscle weakness to dyspnoea or depressed mood. The initial task is to clarify the nature of the "fatigue". Fatigue, like pain, is intrinsically a brain-mediated sensation. As with pain, most people report that the fatigue is experienced as a peripheral phenomenon, apparently occurring in musculoskeletal regions. When questioned closely, most people with CFS [chronic fatigue syndrome] report that they also experience "mental fatigue", typically precipitated by complex neuropsychological tasks.
To differentiate the various causes of mental and physical fatigue, doctors should focus on the description of the complaint (Box 2.1). Fatigue in people with CFS is typically exacerbated by physical tasks previously achieved with ease, and recovery from periods of worsened fatigue can take hours or even days. Pathological fatigue can be differentiated from:
§ somnolence (or "sleepiness"), as it is not relieved by sleep;
§ neuromuscular weakness, as people with CFS can generate muscle strength and endurance when circumstances demand; and
§ the lack of motivation and loss of pleasure from usual daily activities that characterise depressive illness. [Footnotes omitted]
85. Chronic fatigue syndrome was described as follows:
“CFS” is a descriptive term used to define a recognisable pattern of symptoms that cannot be attributed to an alternative condition. The symptoms are currently believed to be the result of disturbed brain function, but the underlying pathophysiology is not known.
86. The diagnostic criteria identified at page 7 of the document are vague and from the description above, there is no consensus as to causation of the condition. The assertion by Dr Donahue and by Dr Varipatis that chronic fatigue syndrome is linked to chemical exposure does not command the general consensus of the medical profession. In discussing who may be at risk of chronic fatigue syndrome, the authors of the practice guidelines noted, amongst a number of inconclusive findings, that a study had found that individuals with confirmed Epstein-Barr virus infection developed a chronic fatigue state that was independent of psychiatric diagnoses. Dr Finlay-Jones had diagnosed Ms Nelson with Epstein-Barr virus before the refurbishments at the ATO office about which Ms Nelson complains.
87. Of concern too is that at the first consultation with Ms Nelson, Dr Varipatis diagnosed chronic fatigue syndrome notwithstanding that the Medical Journal of Australia specifies that chronic fatigue syndrome is a diagnosis of exclusion.
88. As to multiple chemical sensitivity, the tribunal has previously considered similar contentions, in at least two cases: Rees v Comcare [1996] AATA 104 and Milenkovic v Comcare [1993] AATA 17. In neither of those cases was the Tribunal satisfied that the complaints of the applicant were explicable on the basis of a multiple chemical sensitivity. Each case, however, turns on its own facts, and the available evidence.
89. There is a contest between the doctors as to whether the condition exists at all. In November 2008, the National Industrial Chemicals Notification and Assessment Scheme published a paper entitled A Scientific Review of Multiple Chemical Sensitivity: Identifying Key Research Needs. I do not accept, as the Applicant submitted, that the document has as its underlying premise an acceptance that there is a condition known as “multiple chemical sensitivity”, which needs to be investigated. The opening paragraph of the preface, to which I was particularly referred, reads:
Multiple chemical sensitivity (MCS) is one of the terms used to describe a complex array of symptoms where the underlying aetiology and cause(s) remain unclear and ill defined. There is uncertainty about the underlying biological events that lead to MCS symptoms. This has hampered the development of a clinical basis for the diagnosis and treatment of individuals with MCS. (My emphasis)
90. I was referred to the entry at pages 13 and 14 of a discussion about the World Health Organisation’s description of the condition as
an acquired disorder with multiple recurrent symptoms, associated with diverse environmental factors that are tolerated by the majority of people and that is not explained by any known medical or psychiatric/psychological disorder.
There are references throughout this document to various other entities that recognise the condition. Some Australian hospitals have developed draft protocols to deal, interestingly, with self-reporting patients.
91. In the executive summary, it reported as follows:
However, there are no standardised criteria for identifying cases of MCS [multiple chemical sensitivity] in clinical settings. The diagnosis of MCS is currently based on self-reported symptoms. No laboratory tests currently exist for diagnosing MCS. This lack of an accepted case definition and objective laboratory markers for MCS has significantly impeded treatment for patients and offers challenges to further research into MCS.
Further:
While numerous attempts have been made to define MCS, there is no unequivocal epidemiological evidence to quantity or quality exposure data to distinguish individuals with MCS from others experiencing symptoms such as fatigue, headache, dizziness, lack of concentration or memory loss and labeled with diagnosis such as Chronic Fatigue Syndrome.
In my view the report does not proceed on the basis that there is an established disease process known as multiple chemical sensitivity. The current situation would appear, based on the position espoused in that paper, that MCS is a term that is used, but it is not yet established on the basis of scientific evidence as a condition. Of special relevance, the study noted that causation for such a state has not been established. In particular, there was no research accepted by the committee that establishes it as an acceptable disease entity on the basis of exposure to chemicals. The study advocates more research.
92. Dr Carroll is a physician specializing in internal medicine and Professor Baumgart is a consultant physician in clinical immunology and allergy. Both were of the view that chronic fatigue syndrome is not a diagnosis that yet fits into formal diagnostic criteria.
93. Dr Carroll concedes that there is a sizeable body of medical opinion which supports “multiple chemical sensitivity” as a diagnosable condition, but this, in my view, goes no further than the study. Dr Carroll said in his evidence that 0.1 to 0.3 per cent of the population believe they may have general broad chemical intolerance but that the percentage of the population unable to work in offices is dramatically smaller than that (My emphasis). While it was submitted that Ms Nelson is in that tiny portion of the population, I observe that Dr Carroll’s remarks were on the basis of the individual’s belief as to their chemical intolerance.
94. I note too the submission on behalf of the Respondent that terms such as “multiple chemical sensitivity” should be treated with care, because they imply a causation when that connection has not yet been proved.
95. The Applicant’s case relies on the opinions of doctors that stridently assert that work exposure is the cause of multiple chemical sensitivity. Professor Wakefield, an immunologist relied on by the Applicant, however, did not accept that multiple chemical sensitivity was the diagnosis of Ms Nelson‘s condition.
96. The issue of causation was addressed by Dr Donohoe in his report of 20 August 1997, where he concluded that there was a direct causal relationship between chemicals, especially formaldehyde in Ms Nelson’s workplace following the refurbishment and her worsening health problems:
Given these factors, I have little doubt that Ms Nelson’s deterioration in health has occurred as a direct result of her return to the refurbished workplace. She was relatively well in her previous unrefurbished workplace, meaning that it is certainly possible for her to work in an environment where exposure to formaldehyde and VOCs is below her threshold.
In his report of 1 July 2008, he again addressed the issue of causation:
Ms Nelson’s health deteriorated rapidly following exposure to chemicals used in the refurbishment, and the symptoms of both chronic fatigue syndrome and chemical sensitivity emerged at that time and would, mostly likely, have been caused by the refurbishment in the workplace. I could identify no other factors at that time in 1997 that would have contributed to the deterioration.
97. I observe that Dr Donohoe had proceeded on the basis (at p 2 of the earlier report) that Ms Nelson‘s symptoms had developed when she returned to the refurbished building in February 1997. According to Dr Varipatis’ notes, however, her condition was deteriorating before her return to the office. This, in my view, seriously undermines Dr Donohoe’s view.
98. Drs Varipatis and Donahue, both of whom, although only general practitioners, have a special interest in the field, may indeed be ahead of their time but, as it currently stands, their views are, I think, outside mainstream medical opinion. Having said that, I accept that Ms Nelson has found the treatment for her various symptoms, especially that provided by Dr Varipatis, to be beneficial.
99. I observe that Ms Nelson’s overall health is much more complex than her evidence would have suggested. She has numerous ailments, for example, obesity, hypertension, osteoarthritis, chronic rhinitis, smoking-induced airway disease, and various psychological conditions at various times.
100. The unchallenged evidence of Dr Carroll was that her exposure to formaldehyde was likely to be millions of times in excess of any workplace exposure because of her previous significant 20-year smoking history. I note that Ms Nelson had given up smoking shortly after working at Steggles, but Dr Carroll was aware of the lapse of time since she had smoked and her work at the ATO, and appears to have taken this into account in expressing his view.
101. The presence of animals in her home since 1996 is likely to be irrelevant to her condition, given that her allergy testing showed no positive result in that regard.
102. For an ailment to be a disease for the purposes of the Act it must be one that was contributed to in a material degree by the employment. The contributing factor must be either some event or occurrence in the course of the employment or, as is relevant in this matter, some characteristic of the workplace: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. The concept of “material contribution”, particularly with reference to the meaning of the phrase “in a material degree”, was further developed in Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523. In that case, Finn J at [12], endorsed the observation in Comcarev Canute (2005) 148 FCR 232; 41 AAR 539 at [67], that the changes brought about by the enactment of the Act “were intended to require that the contribution be ‘more than a mere contributing factor’” and that the inclusion of the term “material” imposes an “evaluative threshold below which a causal connection may be disregarded”. Finn J concluded at [16] that the correct test for the application of the section 4 definition of “in a material degree” required “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” and that whether this will be so, in a given case, “will be a matter of fact and degree”.
103. There are features of Ms Nelson’s evidence, when compared especially to the clinical notes of her treating doctor, which do not support her account of a pattern of exposure and worsening of her symptoms as she contends. Most significantly, there are periods where her symptoms appear to have deteriorated when she was not at the workplace at all, and there was some evidence of her symptoms being unaffected by the workplace. The most up to date evidence of her condition is that her only remaining complaints are of sinus problems, sore eyes, and some muscle fatigue. These are fewer symptoms than those of which she has in the past complained. Further, in the absence of a pathogenesis that is settled by medical science, I cannot be satisfied, on the balance of probabilities that a connection with the workplace exists to the necessary degree. I therefore cannot find that Ms Nelson suffers a disease as defined in section 4 of the Act.
104. Having come to that view it was unnecessary for me to consider whether Ms Nelson suffers a permanent impairment as a result of an “injury” within the meaning of section 4 of the Act.
Decision
105. The Administrative Appeals Tribunal affirms the decisions under review
I certify that the one hundred and five (105) preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...........................[sgd]....................................................
AssociateDate of Hearing 12 and 13 October 2009
Date of Decision 13 November 2009
Counsel for the Applicant Mr M Lawson
Solicitor for the Applicant Mr W Perram, Thomas Mitchell Solicitors
Counsel for the Respondent Mr G Elliot
Solicitor for the Respondent Ms E Ordiz, Australian Government Solicitor
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