Rooney and Comcare (Compensation)

[2017] AATA 1133

Rooney and Comcare (Compensation) [2017] AATA 1133 (21 July 2017)

Division:GENERAL DIVISION

File number:           2014/4740

Shannon Rooney

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr James Popple, Senior Member

Date:21 July 2017

Place:Canberra

Comcare’s decision on 7 July 2014 is affirmed.

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James Popple, Senior Member

CATCHWORDS

COMPENSATION — Applicant contracted viral illness after being deployed to participate in military exercise — whether applicant exhibited symptoms of viral illness during and after deployment before reporting symptoms to general practitioner — whether hospitalisation three weeks after deployment was in relation to viral illness contracted during deployment — whether applicant’s condition contributed to, to a significant degree, by employment — decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5B, 14

REASONS FOR DECISION

Dr James Popple, Senior Member

21 July 2017

Summary

1. The applicant was deployed to tropical Queensland, where she participated in a military exercise as part of her employment.  She says that during her deployment, and on and after her return, she exhibited symptoms of a viral illness.  Three weeks after her return, she was admitted to hospital suffering from a viral illness, and later developed chronic fatigue syndrome.  She made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), on the basis that her condition was due to a viral illness she contracted while on deployment.

2. Even accepting that the applicant contracted a viral illness during her deployment, on the balance of probabilities she had recovered from that illness before she exhibited symptoms of a separate viral illness (20 days after her return), and was hospitalised.  She did not contract that separate viral illness during her deployment.  Her condition was not contributed to, to a significant degree, by her employment.  Comcare is not liable to pay her compensation.

   Background

3. Ms Shannon Rooney was employed in Canberra by the Department of Foreign Affairs (the Department).[1]  In July 2013, she was deployed to Townsville and Rockhampton, where she participated in an exercise involving members of the defence forces of Australia and the United States of America.  After she returned to Canberra, she worked for three days, had a period of sick leave, then commenced a graduated return to work.

   [1]     Ms Rooney was employed by the Australian Agency for International Development (AusAID), which became part of the Department in 2013.

4. On 2 December 2013, Ms Rooney made a claim for workers’ compensation.  She said that she had been diagnosed with viral meningitis, which she claimed she had contracted while on deployment.

5. On 29 April 2014, Comcare denied her claim.  Comcare was not satisfied that Ms Rooney’s employment significantly contributed to the development of her illness.

6. On 30 June 2014, Ms Rooney requested a reconsideration of that determination.  On 7 July 2014, Comcare affirmed its determination.

7. On 12 September 2014, Ms Rooney applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

8. The decision under review is Comcare’s decision on 7 July 2014 affirming its determination that Comcare is not liable to pay compensation to Ms Rooney.

   Issue

9. The issue in this review is whether Comcare is liable, under s 14 of the SRC Act, to pay compensation to Ms Rooney in respect of her condition. That depends on whether her condition is a “disease” (and, therefore, an “injury”) for the purposes of the SRC Act: that is, whether her condition was contributed to, to a significant degree, by her employment by the Department (s 5B).

   Agreed facts

10. I make the findings set out in [11]–[14] below, on the balance of probabilities.  These findings are generally agreed between the parties.

11. Ms Rooney travelled from Canberra to Townsville on 7 July 2013.  Between 20 and 28 July, she was deployed in the Shoalwater Bay training area, near Rockhampton.  During deployment, she slept in a sleeping bag on a stretcher, beneath a piece of canvas.  There were no bathroom facilities: she (and others) used self-constructed toilet areas.  Ms Rooney returned to Canberra on 30 July 2013.

12. On 31 July, Ms Rooney saw an osteopath.  She reported pain in her neck and shoulders, which she attributed to having carried a heavy pack during her deployment.  On 7 August, Ms Rooney saw the osteopath again.  She reported that her neck and shoulders were better, but that she had pain under her left armpit when she changed gear while driving.

13. On 20 August, Ms Rooney saw Dr Cameron Webber, a general practitioner.  Ms Rooney reported having experienced a severe headache overnight, which was explosive in nature.  She reported vomiting and considerable pain, including lumbar pain.  Dr Webber noted a possible diagnosis of viral meningitis.

14. Dr Webber referred Ms Rooney to hospital, where she went the same day.  She reported the “worst headache ever”, fever, back pain and neck stiffness.  The hospital’s notes record that she first suffered the headache at 2:00 pm the previous day—that is, 19 August.  A doctor at the hospital noted a possible diagnosis of meningitis.  Ms Rooney was admitted to hospital on 21 August.  She was discharged on 27 August.  The discharging doctor noted that “[i]t is unclear what caused [Ms Rooney’s] presentation”.

15. Ms Rooney has not been definitively diagnosed as suffering from a specific viral illness in July or August 2013.  I consider the medical evidence in this case below and find that Ms Rooney suffered from a viral illness on and after 19 August 2013, and that she has since developed chronic fatigue syndrome.[2]  A precise diagnosis is not necessary in this case, given the conclusion I have come to about liability.[3]

    [2] See [35] below.

    [3] See [37] below.

    Ms Rooney’s condition before 19 August 2013

16. Comcare says that Ms Rooney did not exhibit any symptoms of a viral illness in the 20 days between her return to Canberra and 19 August 2013.  Comcare points to the fact that the osteopath (whom Ms Rooney saw the day after she returned from deployment and, again, a week later) made no note of any viral symptoms.  Comcare also points to the fact that Dr Webber made no note of Ms Rooney having reported (on 20 August) any history of such symptoms before 19 August.  And, Comcare points to the hospital’s clinical notes which indicate that (on 20 August) Ms Rooney reported that she had had “no recent illness”, and (on 21 August) she reported that her “problems began Monday” (that is, 19 August).  This is consistent with her compensation claim form, on which she indicated that the “initial onset of symptoms” was on 19 August.

17. Ms Rooney says that she suffered viral symptoms even before returning from her deployment.  She says that she felt unwell for most of the time that she was in Townsville and Rockhampton.  She says that she twice had to absent herself from the exercise because she was suffering exhaustion, severe migraine and nausea.  She says that she first became symptomatic on 16 July, and that the symptoms became more severe on 23 July.  She says that, towards the end of her deployment, she told family members by phone that she was unwell.  She says that, on her return to Canberra, she was “completely exhausted and very unwell” and that her parents looked after her.  She denies that her viral symptoms were first exhibited on 19 August (20 days after she returned from her deployment)—she says that her symptoms became more acute on that date.

18. In support of her claim, Ms Rooney provided corroborating evidence from:

    ·her parents;

    ·a colleague who went on deployment with her; and

    ·a gastroenterologist (a friend and former work colleague of her mother) with whom her mother (it is asserted) discussed Ms Rooney’s condition soon after she returned from her deployment.

19. Comcare says that I should reject the evidence that Ms Rooney relies upon, “given the contemporaneous evidence, and the circumstances and manner in which [her] evidence came into existence”.  Comcare says that the evidence of Ms Rooney and her witnesses “was created in the context of litigation involving disputed questions of fact”: that “it was created in circumstances where the incubation period for certain viruses represented a clear and difficult hurdle for [Ms Rooney] to overcome in an effort to support her claim”.  Comcare goes as far as to say that I should infer that Ms Rooney is “modifying evidence over time, and enlisting the aid of family and friends, in an effort to persuade a trier of fact to accept a particular case theory”.

20. As Ms Rooney says, this is a very serious allegation.  She denies it.  I make no findings about this disputed evidence.  I do not need to make any findings of fact about Ms Rooney’s condition before 19 August 2013 because of the conclusion that I come to, below, on the basis of the medical evidence in this case.[4]  I would come to the same conclusion about Comcare’s liability whether or not I accepted the evidence that Ms Rooney exhibited symptoms of a viral illness before 19 August.

    [4] See [35]–[36] below.

    Medical evidence

21. At the hearing, I heard from two witnesses with expertise in infectious diseases.

22. Ms Rooney relied on the evidence of Professor Paul Gatenby.  Professor Gatenby saw Ms Rooney on 19 February 2014.  On 5 March 2014, he reported that he thought that she had “a post-infectious fatigue syndrome”.  He added that Ms Rooney “obviously had quite a severe febrile illness which led to admission to hospital”.  On 12 June 2014, Professor Gatenby reported:

    [Ms Rooney’s] fatigue continues and I think she probably has post-infectious fatigue syndrome which followed her episode of viral or aseptic meningitis which in turn occurred when she was on an exercise related to her work …

23. Comcare relied on the evidence of Professor William Rawlinson.  Professor Rawlinson did not see Ms Rooney.  On 25 February 2015 he reported that Ms Rooney’s diagnosis “remains uncertain”, but that “the most likely diagnosis on the basis of documents supplied to me was severe migraine headache complicating a nonspecific viral illness, with no evidence of viral meningitis”.  He also reported:

    If Ms Rooney had a nonspecific viral illness such as adenovirus infection, influenza virus infection … CMV [cytomegalovirus] infection, EBV [Epstein-Barr virus] infection, or enteroviral infection (without viral meningitis), then these conditions are unlikely to have been a result to a significant degree of her employment, given that the mechanisms of transmission of these are the same in the community as during the conditions described in July 2013.  The only exception is enteroviruses, which may cause a systemic syndrome (that is fevers, joint pains, muscle pains, headache with or without viral meningitis) and such viruses are excreted in faeces.  Therefore if there were faecal-oral contamination during the exercise … then this would have increased the risk of enteroviral infection.

24. Professors Gatenby and Rawlinson gave concurrent evidence at the hearing.

25. Professor Gatenby said that Ms Rooney suffers from chronic fatigue syndrome which, he said, was essentially a diagnosis of exclusion and one which could not be conclusively made until six months after its putative starting time.  Professor Rawlinson accepted this diagnosis.

26. Professor Rawlinson said that, after returning from her deployment, Ms Rooney developed a non-specific illness, which remains undiagnosed, and that it was most likely caused by a viral agent.  At the hearing, he referred to the clinical notes from Ms Rooney’s hospitalisation:

    She has negative lumbar puncture, she has negative serology, her full blood count is unremarkable and her other tests are non-contributory.  So such tests are useful, for example, in ruling out the likelihood of viral meningitis.  As of 21 August she has a normal lumbar puncture.  On 22 August she has a throat swab which is negative for influenza.  There are many hundreds of viral illnesses that we don’t diagnose, and … no firm diagnosis was ever reached, either by her local doctor or subsequently.

    …

    She had on 19 August, Ms Rooney states that she had malaise, so she felt unwell, vomiting.  She states she had a fever, lower back pain and neck pain.  She also had a headache and some nausea.  Now, they’re non-specific symptoms in the sense that they could be due to a large number of elements and she has a presumptive diagnosis of viral meningitis.  It’s the middle of winter and she’s just been sleeping outside.  So, she could well have a viral illness because that’s the kind of illness at that time.  She could also have a large number of other conditions because her symptomatology is quite general.  This is on a background of a woman who has longstanding migraine.  Migraine can cause all of those symptoms and so this is one of the possibilities.

27. Professor Gatenby agreed with Professor Rawlinson that there was a range of possible causes of Ms Rooney’s symptoms:

    The patient’s C-reactive protein was elevated at the time as high as 40 and then fell subsequently and that’s the measure of inflammation, which doesn’t have to be infectious, but in the context of what went on and the fact that that recovered apparently spontaneously, the infection would be the most likely reason and a viral infection would be the most likely for the reasons that Professor Rawlinson’s already stated and she was also neutropenia.  That is the neutrophil count in her blood cell which, again, is something that would seem not uncommonly in viral infections particularly.  So, I don’t think this was just a bad migraine.  I mean I think the patient had an episode of inflammation which was, you know, 99 per cent likely to be infectious because I was asked about all the other causes that could have done that and time has shown that there are no other causes of inflammatory illness at that time.  I agree, we don’t know specifically what virus but I mean I still think it’s most likely a viral infection.

28. Professor Rawlinson pointed out that one of the test results was hard to explain:

    The difficulty is then that when she’s in Canberra Hospital for her six days, the Canberra Hospital indicated that she did not have a fever.  So, I found that quite confusing and I wondered if her initial temperature was an error, either because of recording or because she’d had a hot drink immediately before the fever.  So, that is confusing …

    Nonetheless, he said that Ms Rooney’s “fever and … raised CRP [C-reactive protein] are indicative of the inflammatory or infection illness and the most likely thing is a viral infection”.

29. Professor Gatenby noted that “we don’t know what the illness was and we don’t know what the incubation period might have been”, but added:

    I think that it was a probable—it’s a plausible and probable sequence of events that the infection was acquired while on deployment and then manifests soon after.

30. On the assumption that Ms Rooney did not become unwell until 19 August 2013, Professor Rawlinson said:

    If that’s the case, then that’s almost three weeks following her deployment, then my view … is that it’s unlikely to be related to that deployment because three weeks is a very long time for a person to incubate a viral illness and particularly the sorts of things that people get in winter, which causes this kind of syndrome, such as norovirus or adenovirus would have an incubation period of less than 10 days.  So, it would not have been related to her deployment.

    …

    If we assume that she [had] an asymptomatic period following her deployment, so if we assume between the 30 July and the 19 August that she has no symptoms, … then she’s effectively well during that time, it’s too long to incubate common viruses and acute viral illnesses, due to the kind of infections we’ve been talking about, do not come and go over that period of time.

    Professor Gatenby agreed.

31. Professor Rawlinson also said:

    … if she has an infection, then a viral infection is required from close contact with other individuals.  Most of the things that I’ve referred to, and there are literally hundreds of viruses that we could talk about, but the most common one generally exposure is related to contact within a metre and certainly outbreaks in large scale military operations are well recognised but things like influenza is really with negative influenza with a reasonably sensitive test.  Adenovirus infection, for example, but they are typically clusters of infection and viral infection is spread by close contact, by respiratory contact, or they’re usually other intimate contact such as within the family or close contact within a metre or sharing of infected food where you get an outbreak.  Those things tend to occur in clusters.  Individuals can be infected, of course, if they contact someone, you know, in a community setting and a family setting and that’s when you tend to get individual infection and, again, those—such viral infections have an incubation period of about 10 days.  That is, it’s acquired and then usually about two or three days, but sometimes up to seven to 10 days, an individual then develops symptoms.

32. When asked to assume Ms Rooney’s version of events, Professor Rawlinson said:

    If she becomes symptomatic and developed her symptoms and they continue until the 19 August, then that would be consistent with her having contracted it during deployment.  The difficulty I have with that series of events is that she has no intermittent migraine headaches, which was known to be associated with those types of syndromes—those types of symptoms and her symptoms on the 19 August was malaise, vomiting, fever, lower back pain and neck pain, actually build upon those symptoms quite a lot.  So, she’s added in vomiting and she’s indicated that she’s got a fever.  …  But if that was the case, that would mean she had four weeks of a viral illness and then that continued through until she improved on the 27 August.  That’s one scenario.  I see that as less likely than her becoming acutely unwell in August because a viral illness of that duration, which either doesn’t resolve or doesn’t get worse quickly, is really very unusual.

    … it’s different between patients but most patients will recover from a viral illness within five days.  So, you have an incubation period say of three to five days.  Normally they develop the acute illness, for example, you know, a cold, that may persist for three, four, five days and then their recovery is usually a couple of days after that.  So, a total recovery time of—a total symptomatic and recovery time of seven to 10 days.  With more severe viral illnesses, such as influenza, adenovirus, which causes pharyngoconjunctival fever, then their recovery time can be, with fatigue, can take two to three weeks, although the acute symptoms resolve usually within a week.

33. On the assumption that Ms Rooney suffered symptoms during and immediately after her deployment, Professor Rawlinson was asked to comment on the headache that Ms Rooney reported on 19 August.  He said:

    I mean to me that’s a meaningless event.  It’s not a viral event.  Four weeks of viral illness … is extremely unusual.  In a healthy non-immune-compromised person who has an acute viral illness, we just don’t see it usually.[5]

    When asked to comment on this, Professor Gatenby said:

    … I agree that the duration of the illness is somewhat unusual but I still think it’s more likely it was one illness rather than two separate events.[6]

    [5]     In the transcript of the hearing, these words are attributed to Professor Gatenby.  In context, and from the audio recording of the hearing, it appears that these words were said by Professor Rawlinson.

    [6]     In the transcript of the hearing, Professor Gatenby is quoted as saying: “I agree but the situation of the illness is somewhat unusual but I still think it’s more likely with one illness rather than two separate things”.  I have quoted him here based on the audio recording of the hearing.

1. With respect, I do not accept this part of Professor Gatenby’s evidence.  He and Professor Rawlinson agree that Ms Rooney was probably suffering from a viral infection on and after 19 August.  And they both agree that it is unlikely that she could have been suffering from the same viral infection when she was on deployment.  So, I do not understand how it could also be “likely” that she was suffering from “one illness” for that whole period.  I note that, later in the hearing, Professor Gatenby was asked to comment on Professor Rawlinson’s evidence that a person would usually recover from a viral illness within 10 days.  Professor Gatenby said:

   I have to take his word for it.  I mean I never—I don’t deal with people recovering from acute illnesses.  …  I see people who have prolonged illness after their viral illness, which is what’s happened in this case.[7]

   [7]     I take Professor Gatenby’s reference to a prolonged illness to be a reference to Ms Rooney’s chronic fatigue syndrome (see [25] above), and not to the illness that (on her version of events) she suffered during the weeks leading up to 19 August, and afterwards.

2. Having regard to the medical evidence, I make the following findings on the balance of probabilities.  Ms Rooney suffered from a viral illness on and after 19 August 2013.  She has since developed chronic fatigue syndrome.  If Ms Rooney exhibited symptoms of a viral illness during her deployment, and in the weeks leading up to 19 August, those were not symptoms of the same viral illness that she suffered on and after 19 August.  If Ms Rooney contracted a viral illness during her deployment, she recovered from that illness before 19 August.

3. Ms Rooney says that, applying principles of “common-sense causation”, I should be satisfied that she contracted a viral illness during her deployment and was suffering from that same viral illness on 19 August and while she was hospitalised. It is possible that that is what happened. But, for Comcare to be liable to pay Ms Rooney compensation, I must be satisfied, on the balance of probabilities, that her deployment contributed to her claimed condition. I think that it probably did not: if she contracted a viral illness during her deployment, it was probably not the same viral illness that she was suffering on 19 August. In coming to that conclusion, I have had particular regard to Professor Rawlinson’s evidence that a person would usually recover from a viral illness within 10 days,[8] and that there were some differences between the symptoms that Ms Rooney says she exhibited before 19 August, and those reported on 19 August and while she was in hospital.[9]  I have also had regard to the fact that Professor Gatenby deferred to Professor Rawlinson’s experience in relation to recovery from acute illness, as opposed to prolonged illness after viral illness.[10]

   [8] See [30]–[32] and [34] above.

   [9] See [32] above.

   [10] See [34] above.

4. It follows from my findings that the illness that Ms Rooney suffered on and after 19 August 2013 was not contributed to, to a significant degree, by her employment by the Department.  That means that Comcare is not liable to pay her compensation.

   Conclusion

5. Ms Rooney suffered from a viral illness on and after 19 August 2013. She has since developed chronic fatigue syndrome. Even if she contracted a viral illness during her deployment, and (as she says she did) exhibited symptoms of that illness before 19 August, she had recovered from that illness before 19 August. The illness for which she was hospitalised was not contracted during her deployment to Queensland. Her condition was not contributed to, to a significant degree, by her employment. Her condition is not a disease for the purposes of s 5B of the SRC Act. Comcare is not liable to pay her compensation under s 14.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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Associate

Dated: 21 July 2017

Dates of hearing:	14–15 July 2016 and 26 May 2017
Counsel for the Applicant:	Mr Allan Anforth
Solicitors for the Applicant:	Lander and Co, Solicitors
Counsel for the Respondent:	Mr Peter Woulfe
Solicitors for the Respondent:	Sparke Helmore, Lawyers