Ryan and Comcare
[2004] AATA 112
•6 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 112
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1629
GENERAL ADMINISTRATIVE DIVISION
Re: KERRYN ANNE RYAN
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
G.D. Friedman, Member
Associate Professor J.H. Maynard, Member
Date: 6 February 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
COMPENSATION - chemical sensitivity - allergy to perfumes - exposure to fumes from fluorescent tube - whether objective evidence of physical problems - whether reported symptoms caused by reaction to chemicals - whether any injury arising out of, or in the course of, employment
Safety, Rehabilitation and Compensation Act1988
REASONS FOR DECISION
6 February 2004 Mr B.H. Pascoe, Senior Member
G.D. Friedman, Member
Associate Professor J.H. Maynard, Member
This is an application to review two decisions of the respondent dated 19 November 2001 which affirmed a prior determination to cease liability for compensation for "aggravation of sinusitis" from 22 August 2001 and to deny liability for compensation for a claimed condition of "chemical sensitivity".
At the hearing, the applicant, Ms K.A. Ryan, was unrepresented and the respondent was represented by Ms A. McMahon, of counsel. Evidence was given by Ms Ryan; Ms S. Lloyd, a clinical neruopsychologist; Mr N. Vallance, an ear, nose and throat surgeon; Dr C. Little, an allergist; and Dr D. Barton, a consultant occupational physician. In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Report of Dr Little dated 7 May 2002 Exhibit A1
Report of Dr Little dated 16 September 2002 Exhibit A2
Report of Dr M. Epstein, psychiatrist, dated 27 August 2002 Exhibit A3
Statement of Mr Ryan, undated Exhibit A4
Report of Ms Lloyd dated 25 June 2003 Exhibit A5
Report by Dr G. Wright, surgeon, dated 30 January 2003 Exhibit A6
Report by Dr Barton, dated 23 May 2002 Exhibit R1
Report by Dr L. Walton, psychiatrist, dated 3 October 2002 Exhibit R2
Pre‑employment medical report by Dr C. Webster
dated 5 August 1996 Exhibit R3
Blood test report of Ms Ryan dated 11 April 2001 Exhibit R4
Report of Dr J. Bishop, consultant allergist, dated 20 April 2000 Exhibit R5
Report of Dr G. Leber, ophthmalmic surgeon, dated 18 May 2001 Exhibit R6
Report of Dr M. Oldmeadow, consultant physician,
dated 12 October 2001 Exhibit R7
Report of Dr Oldmeadow dated 19 October 2001 Exhibit R8
Report of Dr Oldmeadow dated 23 December 2001 Exhibit R9
Report of Dr R. Campagnaro, respiratory physician,
dated 6 November 2001 Exhibit R10
Ms Ryan was born on 10 May 1963 and commenced work with the Family Court of Australia (the Family Court) in 1995. On 13 April 2000, Ms Ryan lodged claim for compensation for "exacerbation of asthma & sinusitis". She attributed the condition to an incident on 8 February 2000 when she was
assisting electrician in changing fluorescent light - after taking the light from him it knocked against the metal file compactus, it broke & the phosphorus sprayed back in my face.
In a statement attached to the claim form, Ms Ryan stated:
…
The following day my sinuses were affected and continue to be so, I also experienced some headaches from this. …
My sinuses started to clear up but never completely recovered. I have also had an ongoing problem over the last 3 years of a perfume allergy which developed in the work place after being exposed to a particular strong perfume worn by a colleague…this lead to other perfumes in the work place aggravating my condition.
…
On Sunday the 5th of March 2000 I developed asthma and saw my Doctor on the 6th of March. At this time my sinuses and ears were also blocked and I was placed on antibiotics…
…My sinuses and ears continue to be affected to varying degrees and during this time I have continued to experienced dizziness, at times feeling like I would black out and on a couple of occasions nausea.
In a determination dated 25 October 2000, the respondent accepted liability for compensation for the condition of "aggravation of sinusitis" sustained on 6 March 2000, the date on which treatment was first sought. Ms Ryan lodged a further claim for compensation dated 9 August 2001 for
Chemical Sensitivity
Particularly to perfume
Stress associated to the sensitivity disorder
And attributed to the exposure to perfume in 1997 referred to in her statement attached to the earlier claim.
Ms Ryan said that, after leaving school in 1978, she worked in an egg factory, in a Safeway store and in child care. She completed a two‑year course of study at a TAFE college for a Certificate of Social Science in Child Care in 1988. After several years working in child care and employment as a nanny, she was offered a temporary position as an administrative assistant with the Family Court at Dandenong in January 1995. In 1996, she was appointed to a permanent position as a child care officer. Her duties included caring for children at the Family Court and administrative duties. Ms Ryan maintained that she had been a healthy child and, prior to 1997, had suffered one or two bouts of sinusitis, one bout of chest pain, a broken finger at the egg factory and repetitive strain injury (RSI) from cash register operations at Safeway. She said that she had recovered from those conditions.
Ms Ryan said that, in 1997, she began experiencing an allergic reaction to a perfume worn by a colleague. She commenced a course of anti‑histamine treatment. While she felt that she could tolerate the perfume, she became tired regularly, had outbursts of tears and found relief only away from the workplace. The colleague refused to cease wearing the perfume. After several discussions with her supervisor, Ms Ryan was moved to the administrative section on a different floor of the building in 1998, which provided a significant improvement in her health. Ms Ryan said that she enjoyed the change in duties until the incident with the broken fluorescent tube. She said that, following this, she developed sinus problems, headaches, nose bleeding and dizziness. She said that, by April 2000, she began reacting to more fragrances. This was always at work with no problems within her home environment. She said that, after management requested others not to wear perfume, she experienced considerable sarcasm and hostility from some members of staff and felt that she was becoming more and more isolated. She was referred to a Dr Bishop for allergy tests but was not happy with his attitude. She consulted a Dr Moss for oxygen treatment, which she had read of, but while helpful, was not as effective as she had hoped. She was referred also to Dr Vallance for treatment of her sinuses. During February and March, Ms Ryan had several periods off work.
In May 2001, Ms Ryan was moved to a different position with the Family Court, was provided with her own separate office and had a toilet designed for her sole use. She maintained that, while there was some improvement, the need for staff to come to her office and for her to move through other areas left her exposed to fragrances and continuing problems. She underwent various tests by Dr Little. In July 2001, a portable air purifier was provided to her. For much of July, August and September, Ms Ryan was off work and finally ceased work completely in September 2001. She said that, since then, there has been some improvement in her symptoms although she still suffers sinus symptoms, reduced memory and concentration, and lack of energy. She maintained that she still experiences a reaction if exposed to fragrances. In October 2002, she sold her house and moved to Bendigo with her mother. She believes that she could cope with part‑time employment in a suitable environment.
Ms Ryan acknowledged that her sister was seriously injured in a motor cycle accident in 1986, which caused the loss of one leg and brain damage. The applicant's sister he lives independently in a house adjoining her mother's house. In addition, her brother was murdered in 1988 with his attacker receiving a life sentence. She said that, while aware that the attacker had appealed the sentence, she was not aware that he had been released shortly prior to the commencement of her symptoms. She accepted that both were traumatic events but did not consider that they had caused any psychological problems. Ms Ryan accepted that she had suffered dermatitis as a child, had an allergy to shellfish and recalled one or two earlier symptoms of blocked sinus and rhinal conjunctivitis. She accepted, also, that a blood test in April 2001 showed that she had previously contracted Glandular Fever.
Ms Ryan acknowledged that she used the lunchroom at the Family Court for her lunch and did not seek to avoid others. She does her own shopping and, on occasions, attends a theatre. However, she maintained that she seeks to avoid the perfume or cosmetic sections in department stores and that she has suffered allergic episodes on social occasions and when in public areas. She said that she had undertaken considerable personal research through the Internet and libraries on allergies and the possible effects of mercury, which she believed, was used in fluorescent tubes. She said that, although Dr Little had recommended further tests, she did not intend to undergo such tests as they were expensive and her research had indicated that there was little or no treatment for chemical sensitivity.
Dr Little referred Ms Ryan to Ms Lloyd. She was examined over two sessions on 5 June 2003 and 16 June 2003 and a number of neuropsychological tests were administered. Ms Lloyd noted that Ms Ryan was primarily concerned at possible brain damage as a result of exposure to chemicals. In a report of 25 June 2003 addressed to Dr Little, Ms Lloyd said:
…
Ms Ryan is a 40 year old woman who presented following concerns that she may have an acquired brain injury as a result of exposure to fragrances/chemicals through her work environment. On current assessment, Ms Ryan was estimated to be of average abilities and while she continued to perform at that level across the majority of the tasks, she presented with a pattern of variable and fluctuating attentional abilities. These attentional difficulties subsequently impacted on her ability to readily acquire information that was presented in a one off manner and on tasks that had an attentional quality to them such as complex planning and organisational tasks. Her cognitive profile on current assessment was not suggestive of an underlying organic process.
Ms Ryan's physical reactions to fragrances are undoubtedly distressing and quite real, however while she presented with a pattern of fluctuating and variable attentional problems her current cognitive profile and performances were not consistent with the diffuse damage that is associated with chemical exposure. It was felt that the cognitive difficulties that Ms Ryan was reporting on current assessment were reflective of an underlying anxiety and of her current level of stress.
I understand that she has contacted CRS to assist her with a return to work programme and when she returns for feedback about the findings of this assessment I will explore her willingness to access Clinical Psychology for stress management. However, she may be unwilling to accept that psychological factors are underlying some of her symptoms and she is likely to terminate any contact if a link between her symptoms and psychological factors is stressed. It may be possible, however to get her to discuss problems in her life situation as long as no direct link to somatic symptoms are suggested.
As indicated above, while Ms Ryan's current cognitive profile is not suggestive of an acquired brain injury her physical symptoms and reactions to fragrances are undoubtedly quite real and distressing for her. Sensitivity to fragrances is an extremely difficult area to address in work place environments.
In her oral evidence, Ms Lloyd said that she had not taken a history of any earlier problems, nor the results of the blood test showing a past glandular fever. She believed that Ms Ryan was fit for work although would encounter some difficulties if exposed to perfumes. However, she believed that Ms Ryan should not seek to avoid low level fragrance.
Mr Vallance first saw Ms Ryan on 28 September 2000 and took a history of nasal difficulties and poor sleeping habits. Examination, a CT scan and a sleep study revealed nothing untoward other than moderate congestion of her turbinates. On 22 March 2001, he performed a partial turbinate reduction. Subsequent to this procedure, he was of the view that her condition of nasal obstruction had been corrected and had no other diagnosis of any physical condition. He was not certain that the incident of February 2000 was responsible for any ongoing complaints. He did accept that perfume or phosphorous from the fluorescent tubes could have caused irritation and rhinitis. Mr Vallance said that no testing of the turbinates or nasal secretion cytology was performed.
Dr Little saw Ms Ryan originally on 4 May 2000. Tests at that time were inconclusive for chemical or perfume sensitivity. A year later indicated sensitivity to two brands of perfume and, possibly, solvents and terpene. Subsequent testing in August 2001 indicated sensitivity to solvents, formaldehyde emissions from strongly scented flowers, shrubs and trees, and chemical contaminants in drinking water. Dr Little stressed that these were "open" tests and depended on the patient's report of symptoms. He concluded that there was some limited evidence to indicate that Ms Ryan was sensitive to some chemicals, including certain types of perfume. He proposed "double blind" tests but accepted that these were not useful where a substance, such as perfume, had an obvious odour. In a letter to Ms Ryan's solicitors of 7 May 2002, Dr Little stated that:
…In my clinical judgement there is a considerable emotional component to her symptoms, to some extent understandable in view of their perceived association with her former work environment.
In his oral evidence, Dr Little said that he accepted that Ms Ryan was not comfortable in her work environment and stress had contributed to her symptoms. He had suggested the use of anti‑depressants. He had not taken any history of problems outside the work environment. He agreed that, to some degree, Ms Ryan's reported symptoms could be seen as excessive.
Dr Little acknowledged that there had been limited studies on adverse reaction to perfume and a limited understanding of any related biology. He accepted that there were no suitable tests for confirmation of a stated allergy to perfume. He had not been aware of the blood test indicating previous glandular fever but noted that a high proportion of the population had at some time been infected with the Epstein‑Barr Virus. He did not believe that this was relevant to Ms Ryan's condition. Overall, and on balance, Dr Little did consider that Ms Ryan does have a reaction to perfume.
Dr Barton examined Ms Ryan on 22 May 2002 and provided a report dated 23 May 2002. In that report, he stated:
…
It is clear that this lady has a strong illness belief and has real concerns about her exposures to smells particularly perfumes.
The condition of multiple chemical sensitivity has failed to gain widespread acceptance in the medical community. There are a limited number of doctors "specialising" in this area who believes the condition has a straightforward physical basis. Despite a considerable amount of research and efforts to track down a physical basis for this condition, none has yet been identified.
It is clear from what has been published about multiple chemical sensitivity and the views expressed by various medical groups around the world, that psychological factors play a major part in this condition. I believe there are features about this lady's presentation that confirm a significant psychological basis to her complaints. She reports prior difficulties where she has had to cease work with medical conditions that either appeared fairly trivial or are also linked to significant psychological overlay. She described a broken finger which stopped her working the "egg factory" and 6 months of work as cash register operator at a supermarket led to the development of RSI with symptoms persisting for several years.
I do not believe it is medically rational or plausible to suggest that a period of exposure to one particular fragrance and a transient exposure to the powder from within a fluorescent tube, would cause any bodily abnormality that would produce the range of symptoms and "sensitivities" that this lady's claims have been a problems for some 5 years.
Various allergy conditions are well recognised as causing certain medical problems. The allergy problems that are well known and recognised include things like asthma, hay fever and allergy to drugs like penicillin. It is clear from these allergies that the problem is very much specific to one particular chemical agent. I do not believe that the argument that becoming sensitive to one particular chemical leads to similar symptoms occurring with other exposures when the only thing the agents appear to have in common is that they have an odour. There are numerous chemical agents that people are exposed to during their daily activities that do not have an odour and these are rarely if ever implicated as causes of symptoms broadly labelled as multiple chemical sensitivity.
Dr Barton did not believe that Ms Ryan was incapacitated for employment, nor warranted any particular work restrictions. He did not accept that her employment had caused, contributed to or aggravated any particular medical condition.
Dr Epstein examined Ms Ryan on 19 August 2002. In his report of 27 August 2002, he stated:
…
Kerryn Ryan has developed a mild Adjustment Disorder with depressed mood and anxiety which appears to have occurred in the context of the development of chemical sensitivities and Chronic Fatigue Syndrome which came on during the course of her employment. The whole question of chemical sensitivities and Chronic Fatigue Syndrome is a controversial area of medicine. I could see no evidence that her symptoms are primarily psychologically based however. She has developed a mild Adjustment Disorder with depressed mood in the context of struggling to cope with a chronic debilitating illness, no matter what the cause of the illness.
Dr Walton, who examined Ms Ryan on 11 September 2002, agreed with the diagnosis of mild adjustment disorder. He considered that the psychiatric symptoms were occurring as a reaction to physical symptoms and it would be necessary to establish that there was a work‑related physical injury to sustain a work‑related psychiatric injury. He noted several family‑related traumatic events in Ms Ryan's life and considered that these may have rendered her vulnerable to later adverse psychiatric reaction. Dr Walton felt that there was no incapacity for work on psychiatric grounds.
Dr Oldmeadow saw Ms Ryan on several occasions in October and December 2001. He considered that she had developed Chronic Fatigue Syndrome over the past few years, separate from other symptoms described and less clearly related to any specific toxic exposure. He felt that her family background was consistent with many patients with persisting fatigue and pain problems. Dr Oldmeadow had concerns about relating symptoms to perceived perfume exposure and did not consider it possible to attribute persisting fatigue to the episode with the fluorescent tube. He said that the work situation was unlikely to have been responsible for her continuing fatigue. Dr Campagnaro found no abnormal features on examination of Ms Ryan in November 2001. He considered that she had a degree of chronic fatigue type of syndrome.
We are satisfied on the evidence of Ms Ryan that she has a genuine belief that she has developed many and varied physical problems resulting from the development of an allergic reaction to strong fragrances and the incident of the broken fluorescent tube. However, an entitlement to compensation requires a finding that, on the balance of probabilities, she does suffer from a physical or mental injury which arose out of, or was in the course of, her employment with the Family Court. Apart from the evidence of Mr Vallance that there had been a need for partial turbinate reduction to correct some nasal obstruction, there was no objective evidence of any physical problems of Ms Ryan. Two psychiatrists diagnosed a mild adjustment disorder, but neither was prepared to attribute this to employment unless a work‑related physical injury could be identified. The dominant theme of the medical evidence was that it was more likely that Ms Ryan's physical symptoms were psychologically based. Other possibilities advanced were that she had suffered from chronic fatigue syndrome, that her symptoms were the result of having had glandular fever or that the symptoms were the result of an adverse psychiatric reaction to the traumatic events in relation to her family. Although Dr Little did believe that Ms Ryan did have a physical reaction to perfume, he accepted that there was a considerable emotional component to her symptoms which could be seen as excessive and that he was unable to provide any objective evidence to support an alleged allergy or adverse reaction to perfume. All medical evidence discounted any ongoing effects from the fluorescent tube incident. Both consultant physicians, Dr Barton and Dr Oldmeadow, who examined Ms Ryan, were firm in their views that the alleged incidents in the workplace had not contributed to any medical condition. We accept their evidence. No medical evidence provided considered that Ms Ryan was incapacitated for work.
While again confirming our acceptance that Ms Ryan was genuine in her beliefs of having significant medical problems and their causation, we cannot be satisfied that any physical or mental injury which she may have arose out of, or was in the course of, her employment with the Family Court. At best possibilities or hypotheses have been raised but the evidence falls far short of demonstrating probabilities. It is possible that there were some short‑term reactions from the fluorescent tube incident for which she received entitlement to compensation until August 2001. However, the medical evidence is against any effect of that incident beyond that date. Consequently, the decision under review should be affirmed.
I certify that the seventeen [17] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
G.D. Friedman, Member
Associate Professor J.H. Maynard, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 14 August 2003
Date of Decision: 6 February 2004
Solicitor for the applicant: Self‑representedCounsel for the respondent: Ms A. McMahon
Solicitor for the respondent: Australian Government Solicitor
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