Roberts and Comcare

[2006] AATA 165

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 165

ADMINISTRATIVE APPEALS TRIBUNAL      )              No.  N2005/514

)  

GENERAL ADMINISTRATIVE DIVISION )

Re JANICE ROBERTS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 February 2006

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.     N2005/514

)  

GENERAL ADMINISTRATIVE DIVISION )            

Re JANICE ROBERTS

Applicant

And COMCARE

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr MEC Thorpe, Member

Date  14 February 2006

Place                   Sydney

DecisionFor the reasons given orally at the conclusion of the hearing of this matter, the decision under review is affirmed.

(Sgd) M.D. ALLEN
  ..................................................
  Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION –application for a review a decision refusing compensation for ‘viral infection, post viral syndrome’ – applicant alleges cold conditions at work aggravated her viral infection – medical evidence points to a possibility of the work environment aggravating the applicant’s condition but it cannot be established on the balance of probabilities – decision under review affirmed.

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen; Dr M E C Thorpe,      Member

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Hearing  14 February 2006

Date of Decision  14 February 2006

Representative for Applicant      Self Represented

Counsel for Respondent             Mr B Kelly

Solicitor for Respondent              Sparke Helmore

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2005/514
By MR M.D. ALLEN, Senior Member; DR MEC THORPE, Member
JANICE ROBERTS and COMCARE
SYDNEY, TUESDAY, 14 FEBRUARY 2006

MR ALLEN:   By application made 5 May 2005, the applicant sought a review of a decision by the respondent which affirmed a prior determination that the applicant was not entitled to compensation pursuant to the Safety Rehabilitation Compensation Act 1988 for the disease described as “viral infection, post viral syndrome”. The facts are within a relatively small compass and we state at the outset that we have no reason to disbelieve any of the evidence given by the applicant.

It would seem that the applicant, who is employed at the Australian Tax Office, Hurstville, was in or about the second week of May 2004 moved from an office on the fifth floor to the ground floor.  It became very obvious to her that the ground floor of that office was extremely cold.  Indeed, evidence was given that the temperatures on the ground floor of the office were indeed monitored and ranged between 16 to 19 degrees. 

It is common ground between the parties and not disputed that at a later period the air conditioning was investigated and found to be faulty.  On the Queens Birthday weekend in 2004, the applicant became ill with a viral infection.  She took some period from work without seeking sick leave, but she then consulted her treating general practitioner and the first certificate of absence of leave is dated on 20 June 2004 for a period commencing from 21 June to 22 June and then there follows various certificates. We don't consider it necessary to go into the full details.

The applicant did return to work, but found that because of the cold conditions, she again became ill and it would appear that for a period extending between when she returned to work on 19 July  through to about 3 September, there were intermittent periods when the applicant would attempt to return to work, but again to find her symptoms increased so that she was unable to continue at work.  She blames this on the cold conditions existing at the Hurstville office.  Because of the continuation of symptoms, her general practitioner referred her to a Dr Chan, a specialist in infectious diseases.

The report of Dr Chan dated 16 August 2004 is document T12 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  That report reads, inter alia:

She dates her troubles from mid June after a viral presumably infection of the upper respiratory tract.

He states:

Ms Roberts related how the new office she works in is very cold.  When the engineering reviewed the air conditioning set-up, they found it to be unsatisfactory and alterations have been required and completed in the week just past. 

Dr Chan continued:

I do not know what is wrong with Ms Roberts.  I doubt that she has had a whole series of viral (presumably) infections.  Some of her symptoms may be due to such infections, but not all.  She may have some sort of post viral syndrome.  It is certainly possible that her symptoms may be aggravated by her work environment either from physical factors such as the temperature or humidity of the air from the air conditioning, or from some form of allergy.  It will be interesting to see if her symptoms improve or resolve with the recent maintenance and adjustments to the air conditioning.

He continued to state that he recommended that the applicant take time off work and:

If she recovers while away from work, but relapses on returning to work, it would suggest that her problems are related to the work environment.

The evidence is that the applicant did take time off work.  Indeed, she had three weeks of annual leave and a period of long service leave, amounting to four weeks in all when she was totally away from work.  On return to work, not only had she recovered, but of course the air conditioning had been repaired and she does not make any complaint of any further incapacity after that return to work. 

There is one further report and that is from her treating general practitioner, Dr Kurrle.  He simply states that at the date of the report, the applicant had seen him and most of her symptoms have improved with warmer work conditions.  The viral illness he states, was first noted on a consultation on 20 June.  What seems clear therefore is that the applicant did have a viral infection, Being a viral infection it cannot, per se, be attributed to her work conditions, but what she says is that she would have recovered earlier had not the temperature of the ground floor of the Hurstville Tax Office been faulty.

Disease is defined in the Safety Rehabilitation Compensation Act section 4 as meaning:

(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.

In this case therefore, what one is seeking is an aggravation, meaning the aggravation to the viral infection that was contributed to in a material degree by the applicant's employment.  In seeking to ascertain whether the aggravation was contributed to in a material degree in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 the Full Court of the Federal Court said:

The use of the word "material" in conjunction with the words "contributing factor" do not intend to add to the section any significance which is not already to be found in the words used by the legislature.  It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did, in fact and in truth, contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.

Now in this matter, there is certainly reason to consider that the applicant's aggravation of her post viral condition was caused by cold air, but it is a possibility as pointed out in the report by Dr Chan and it seems to us that the only specialist evidence we have in this matter points to a possibility, but not something that can be pointed to on the balance of probabilities and therefore it cannot be said that the aggravation was materially contributed to by the work conditions.  On that basis therefore, the decision under review is affirmed.

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