Salerno and Comcare (Compensation)
[2022] AATA 196
•11 February 2022
Salerno and Comcare (Compensation) [2022] AATA 196 (11 February 2022)
Division:GENERAL DIVISION
File Number: 2019/1718
Re:Angelo Salerno
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:11 February 2022
Place:Melbourne
The Tribunal affirms the decision under review.
...[sgd].............................................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – accepted claim for allergy or sensitivity to volatile organic hydrocarbons (VOCs) – subsequent denial of liability upon reconsideration – nature of symptoms experienced – whether statutory tests for disease or injury satisfied – tests not satisfied – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
11 February 2022
BACKGROUND
Mr Salerno applied to the Tribunal on 27 March 2019 for review of a decision dated 20 March 2019 denying liability for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Mr Salerno had lodged a claim for compensation dated 13 December 2018 for a variety of conditions described as: sore back/neck/sides, migraines, skin and eye irritation, and shortness of breath. He stated in this claim that he first noticed these symptoms on 22 October 2018 and had not previously experienced similar symptoms.
Mr Salerno was and remains an employee of Note Printing Australia (NPA). He first had contact in his work with printed plastic sheets of Australian currency during the production process between 2014 and around mid-2015. Shortly after this time, in February 2016, Mr Salerno was promoted to the role of Vault Team Leader and in this role came into daily contact with NPA product, in particular, what are known as spoiled sheets. He was unfit for this work between 23 October 2018 and 5 January 2020, albeit undertaking unrelated work elsewhere for part of this time. He returned to his role in January 2020 and was still in that role at the time of the hearing.
Mr Salerno’s claim was initially accepted on 6 February 2019 as one for ‘allergy or sensitivity to volatile organic hydrocarbons (VOCs)’ with a date of injury of 22 October 2018. This designation arose from the nature of the production of currency at NPA and from Mr Salerno’s particular claim that when counting spoiled sheets on 22 October 2018, he experienced the stated symptoms from exposure to varnish and poor ventilation.
A Clinical Panel Review was undertaken during February 2019, and an employer Reconsideration Request was also lodged in the same month. Accordingly, the Respondent made the decision of 20 March 2019, concluding that: Mr Salerno had not been specifically tested for his tolerance to VOCs; a prior period of annual leave overseas may have contributed in some way to his medical situation; tests had not identified any physiological or pathological change; Mr Salerno had also claimed to suffer similar symptoms in previous years but had not reported these to his employer or medical practitioner; and there may have been a link to other unrelated medical conditions.
Mr Salerno lodged a Statement of Facts, Issues and Contentions (SFIC) and the following material was received from him at the hearing:
(a)Statement of Mr Salerno, dated 22 May 2020 (Exhibit A1);
(b)Reports of Dr Umberto Boffa, dated 18 May 2019 (Exhibit A2), 9 June 2019 (Exhibit A3), 21 September 2020 (Exhibit A4), and 7 May 2021 (Exhibit A6);
(c)Report of Dr Johnathon Burdon, dated 22 January 2019 (Exhibit A5);
(d)American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed, 2007) ch 5, ‘The Respiratory System’ (Exhibit A7);
(e)Department of Health, ‘Multiple Chemical Sensitivity: A guide for Victorian hospitals’, (State of Victoria, 2011) (Exhibit A8); and
(f)Review Article of A Martini et al, ‘Multiple Chemical Sensitivity and the Workplace: Current Position and Need for an Occupational Health Surveillance Protocol’ (2013) Oxidative Medicine and Cellular Longevity 1 (Exhibit A9); and
(g)Article of Fraser Thompson, ‘Multiple Chemical Sensitivity in the Australian Workplace’ (The University of Adelaide, November 2011) (Exhibit A10).
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), and a SFIC. A Tender Bundle (TB) was also produced comprising, primarily, medical records obtained under summons.
The following additional Respondent material was received at the hearing:
(a)Statement of Mr Denis Morovic, dated 8 October 2020 (with multiple attachments) (Exhibit R1);
(b)Tables listing finished product batches present in WIP2 between August and October 2018 (Exhibit R2);
(c)Tables listing embossed spoils transferred to consignment security between August and October 2018 (Exhibit R3);
(d)Email dated 16 December 2020 regarding airflow in three vaults (Exhibit R4);
(e)Reports of Dr David Barton dated 23 September 2019 (Exhibit R5), 17 December 2019 (Exhibit R6), and 21 April 2021 (Exhibit R7); and
(f)Research Article of Stuart M Brooks, ‘Irritant-Induced Asthma and Reactive Airways Dysfunction Syndrome (RADS)’ (2014) 5 Journal of Allergy & Therapy 174 (R8).
The hearing was initially conducted between 12–14 October 2020 and was adjourned when, in the course of the evidence of Dr Burdon, a significant variation in diagnosis emerged. The hearing continued briefly on 11 May 2021 and then on 12 and 13 July 2021. The parties lodged written closing submissions.
LEGISLATION
Section 14 of the Act is the key provision establishing liability for compensation for an injury if it results in death, incapacity or impairment.
Injury carries a particular meaning in s 5A of the Act based on a finding as to the existence of one of a number of different possible states which are: a disease; an injury other than a disease; or an aggravation of an injury. The issue of reasonable administrative action dealt with in s 5A(2) does not arise in this matter.
A person’s injury takes the form of a disease if it satisfies the definitional test as an ailment or aggravation of an ailment, and a causative test. The test for causation is that the ailment or its aggravation was contributed to, to a significant degree, by the person’s employment. This is defined, specifically, in s 5B(3) of the Act, to mean a degree that is substantially more than material. Furthermore, certain matters are to be taken into account in making this judgment (and the consideration is not limited to these matters):
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
EVIDENCE
Applicant’s evidence
Mr Salerno confirmed the contents of his written statement dated 22 May 2020 (Exhibit A1). In summary, Mr Salerno states:
(a)he commenced work with NPA in a logistics role in November 2011;
(b)this role involved controlling the movement of product, all of which is stored in secure vaults, through various stages of the production process, including handling damaged sheets;
(c)he took leave for an overseas holiday over ten days in September 2018, and returned to work after a further period of ten days at home;
(d)approximately four-to-five days prior to the incident on 22 October 2018 he started experiencing ‘symptoms relating to intermittent headaches, eye and upper airway irritation’;
(e)on or about 22 October 2018 he was ‘required to process a large volume of finished product’ and, on entering a vault, he experienced a severe headache and nausea when exposed to intense fumes from varnish;
(f)he reported the incident and ceased work early that day and sought medical treatment;
(g)he was incapacitated for any kind of work from 23 October 2018 to 5 October 2019, after which he secured logistics work with another employer, then returning to NPA on or about 6 January 2020 in his prior role; and
(h)at the time of the incident, he experienced ‘constant headaches and piercing pain behind the eyes’ and, following the incident, his sleep was affected and he reacted to fumes elsewhere including alcohol, and chlorine when taking his children to swim.
In his oral evidence, Mr Salerno stated that there are several vaults for work in progress, one of which contains spoils and the fourth, known as WIP4, which contains finished product. The vaults are approximately four metres square, and the product is stored in secure perforated plastic containers on pallets. Mr Salerno explained that one batch is stored in two parts, on two pallets.
Mr Salerno stated that there is a drying time in between each production step, including after the application of ink and varnish, varnish being the second last step. He stated that odour is present at this step, but also sometimes at the ink stage.
Mr Salerno stated he had not previously experienced discomfort or difficulty in performing his duties. However, he also stated that several days prior to 22 October 2018, he had experienced symptoms being shortness of breath, a runny nose and sneezing.
Mr Salerno considered that he and co-workers were aware of odours at work, and that on returning to work on Mondays he had previously felt nausea. He stated:
… it’s noticeable and sometimes, like, when you return to work on the Monday after being away for the weekend, on the Monday when you open up the vault, again there’s – because the smells have been locked in for the weekend …
Asked to specify at which production step he experienced his reaction of stinging in the eyes and severe migraine, Mr Salerno stated he thought he was preparing pallets for transfer from WIP4. He then accepted that it could have been WIP2, as proposed in the statement of his supervisor Mr Morovic.
Mr Salerno confirmed that he considered there was a larger volume than usual on the day in question, stating that the product was ‘double stacked’. He had only experienced a similar intensity of smell on one previous occasion some years ago, and at that time the vault had been closed and breathing equipment was used to enter.
On the day of the incident, Mr Salerno stated he commenced work at 7.00 am but the odour was not noticeable. Given his prior evidence about the start of work on Mondays, I asked Mr Salerno to clarify when he developed symptoms; he stated ‘about one hour into the shift’.
Mr Salerno stated that ongoing symptoms included issues with breathing, sneezing, fogginess, migraines and stinging behind the eyes. He was also affected by chemicals, including at the petrol station. Mr Salerno stated that the symptoms became less noticeable around April/May 2019.
Mr Salerno stated that he had not experienced similar issues since his return to NPA in January 2020. He was not able to say what was now different, except that he tries to limit time in the vaults. He stated, consistent with his written statement, that he believed that new fans had been installed in vaults. Mr Salerno gave evidence that in the morning, at the start of work, operators open the vaults and turn the fans on.
In cross-examination, Mr Salerno agreed that, as described in medical reports, he was a reformed smoker having quit in 2011. He had previously smoked around twenty cigarettes a day, and smoked for a period of twenty years. He denied ongoing medical consultations about smoking that appeared to be recorded in clinical notes.
Mr Salerno was unable to specifically recall prior prescription of nasal spray but stated he had not suffered respiratory problems prior to 22 October 2018. Asked if he had suffered migraines or headaches, he stated ‘nothing similar to that’. When asked again about migraines over some years, Mr Salerno responded ‘not necessarily’ and denied having them on a regular basis. He was unable to recall prior medical examinations for migraines or for depression and anxiety.
Mr Salerno expanded on his work routine, stating that he first collected trolleys from the spoils vault and unloaded them in an office for processing. He stated the vaults are opened at the same time that he presents for work and that he himself does not open the vaults; this is done by two other staff.
Mr Salerno accepted the proposition in Mr Morovic’s statement that in total across a work-day, approximately 45 minutes was spent inside vaults. He considered that, depending on the work, he could be in vaults 10-15 times a day for short periods each time.
Mr Salerno agreed that he spent a short period of five or possibly ten minutes in the first vault and then processed the spoiled sheets. He stated the symptoms came on about two hours later after entering the ‘finishing room’, which was at about 8.30 am or 9.00 am. Mr Salerno agreed that modifications were made with the installation of carbon air filters due to complaints about air quality some years prior to the incident. He also agreed that NPA replaced pedestal fans with wall-mounted fans in these vaults more recently.
In response to a question from me, Mr Salerno stated that the processing of the spoiled sheets took place in a secure, partitioned office. Mr Salerno stated this office is approximately six by three and the processing is undertaken on work benches. His colleagues did not complain about the odour.
Mr Salerno accepted that he was fit to return to work in mid-2019, however, he stated that he was ‘not allowed to’. He agreed that he attended a meeting in October 2019 where he was advised that he could not return to alternative duties as the air quality was similar across different work areas.
Upon examination by Dr Burdon in January 2019, Mr Salerno stated that he was continuing to experience migraines and piercing pain behind the eyes. When he consulted Dr Barton in May 2019, his symptoms had cleared up. Mr Salerno stated that he had been treated with four courses of antibiotics and had also been prescribed anagraine on one occasion. He stated that the symptoms subsided over summer and had improved by March or April. Asked why Dr Boffa reported ‘constant tension headaches’, Mr Salerno replied that part of it was still there.
In re-examination, Mr Salerno confirmed that the symptoms arose on 22 October 2018 between 8.00-9.00 am when in the WIP2 vault when preparing to transfer finished goods to another area. He considered that he was cleared for full duties in May or June 2019. Following review by Dr Barton in Sept 2019, NPA took some time to respond to his further clearance. Mr Salerno agreed that he was offered reengagement in December 2019, returning in January 2020.
I addressed several questions to Mr Salerno arising from medical records in the T documents. Specifically, I sought his response to a number of different records indicating that he had experienced headaches and migraines on occasions predating the incident in October 2018. Mr Salerno accepted that he had reported experiencing headaches and migraines in 2011 and 2018. He stated that the experience following the incident was much more intense and more immediate. He described it as a strong headache that wouldn’t subside.
Mr Salerno was less certain about a record of a medical consultation dated 27 October 2018 noting ‘severe right sided headache for several weeks’ (TB, p 32) and stated that he did have sinus and respiratory issues. He had previously experienced migraines ‘intermittently’ but stated they were nothing like on the day of the incident.
Mr Dennis Morovic
Mr Morovic confirmed, consistent with his statement and its attachments, that the NPA product is produced in batches that are prepared for transfer for a finishing step. A batch normally consists of two pallets. He confirmed that on 17 October there were 21 batches processed and on 22 October, 26 batches.
Mr Morovic stated that the batches in question were stored in a vault known as WIP2, which he described as a very large room around 10-15 metres by 15 metres. Once a day, normally around 10.30 am, a quantity of perhaps four to five batches is moved across a corridor into the opposite ‘finishing’ vault. Mr Morovic stated that at the time in question the main vaults were opened at around 7.00 am.
Mr Morovic agreed that Mr Salerno would handle the processing of spoiled sheets in an office along with Mr Morovic and two others present. He stated that this process was undertaken in the morning and, for example, on 18 October there were a total of 31 spoiled sheets. These were taken by Mr Salerno and his colleagues from a cage. Mr Morovic stressed that no staff member was left alone with product at any stage due to NPA security procedures.
In re-examination, Mr Morovic was unable to state how many staff had complained in 2014 about the air quality in WIP2 and 4. He stated the crew had informed him that the smell was ‘overbearing’, ‘or something like that’. A crew consists of four to five staff. Mr Morovic stated that he definitely recalled that someone had said that their eyes were sore.
Mr Morovic further confirmed that complaints had been made in 2016 and he thought that ‘a couple’ had complained. He stated that while the results of testing came back ‘fine’, ‘you’ve always got to listen to people if they’ve got some irritation’.
Mr Morovic confirmed that no alterations were made to the workplace between 2014 and 2016. However, following the later complaints, the humidity, ventilation and air conditioning system was upgraded. He stated the system was primarily to maintain the integrity of the product during production. Carbon filters were also installed in the ‘old vaults’ (WIP2 and 4).
Mr Morovic confirmed that further complaints were made in November 2016, leading to the installation of industrial pedestal fans that ‘might help move the air around’. As a result of what Mr Morovic described as ‘ongoing murmurings’, it was agreed with HR to conduct further air quality tests in 2017.
Mr Morovic stated that Mr Salerno complained to him on 22 October 2018 that he was not feeling well. He was unable to recall specifically the manner of the complaint but did not challenge the fact that in his written statement he describes Mr Salerno complaining about the odour in the vaults.
Mr Morovic stated that he knows Mr Salerno well and has never had any issues with him. He accepted that on the day in question Mr Salerno appeared obviously unwell. Mr Morovic stated: ‘… he came to me and he says “Look, I’ve got an issue with my eyes and that, is – are watery”, and I thought “Jeez, you don’t look well”’.
Mr Morovic confirmed that further complaints were made about the workplace in 2019. When asked, Mr Morovic stated that he considered the installation of carbon filters in 2016 was the most effective of the remedial measures undertaken.
In re-examination, Mr Morovic stated that other staff may also have complained around the time Mr Salerno experienced problems in October 2018. They did not leave the site, whereas Mr Salerno clearly did not look well. Other staff were moved to a new WIP6 which was a ‘new you-beaut vault that has got massive air circulation’, however the draught led the staff to move back to working in the office.
Mr Morovic confirmed that he was in the habit of checking the vaults on the occasions on which complaints were made. He himself, however, did not notice any difference in the odours when this happened.
Medical evidence
Dr Boffa
In his evidence, Dr Boffa stated that Mr Salerno gave a history of opening a vault and being immediately confronted by an odour, which was assumed to be lacquer or varnish. Mr Salerno experienced difficulty breathing and headaches which had subsided by the time of his consultation. Mr Salerno also complained of headache and reactions to other odours in his daily life. Dr Boffa also stated that headaches can be secondary to a psychological condition.
Dr Boffa confirmed that he first saw Mr Salerno in May 2019. He considered that the medication anagraine, which had been prescribed, was appropriate, and found nothing remarkable on his physical examination of Mr Salerno. In his opinion at that time, Mr Salerno was capable of normal work if protected from the varnish, with any alternative duties needing to last a matter of weeks only.
Dr Boffa confirmed that he considered in his second report the diagnoses by Dr Burdon of an allergy or sensitivity to VOCs. In Dr Boffa’s opinion VOC’s generally do not cause an allergy, a response takes time to develop , and Mr Salerno’s condition arose from a single high-dose exposure, and he had since been able to return to work.
Accordingly, Dr Boffa considered that Mr Salerno had developed a Reactive Upper Airways Dysfunction Syndrome (RADS). In his opinion, a respiratory reaction is typical in this situation and could last for months. Dr Boffa stated that it was relevant that Mr Salerno reported a reaction to chlorine and petrol smells as this was consistent with RADS. This, however, may have been due to a secondary psychological reaction.
Dr Boffa stated that he re-examined Mr Salerno for the purposes of his third report in 2020 in which he considered the opinion provided by Dr Barton. In Dr Boffa’s opinion, Dr Barton had failed to take a proper history of the incident but agreed with Dr Barton’s conclusion that Mr Salerno was able to return to work from September 2019.
In cross-examination, Dr Boffa stated he had not considered any particular level of VOC exposure and had accepted the circumstances of the incident as told by Mr Salerno. He was unaware that assessment of air quality had been undertaken but stated that a reaction would be dose-dependent, that is a higher reaction would be expected with a higher level of exposure. In his opinion, outside of an allergy, exposure would need to be significantly higher than the approved limit in order to have an irritant effect.
Dr Boffa stated that it can be typical in cases of RADS for symptoms to be developed after a single exposure. In his opinion, normal air quality levels do not preclude the development of RADS, although it would be very unlikely.
With reference to his observations about psychological factors, Dr Boffa noted that Mr Salerno had a past history of anxiety and depression and that a subsequent secondary mental injury is common. He stated that he would not expect such a reaction to last more than six months. In his opinion, anything that engenders an emotional response can also engender headaches.
Dr Burdon
Dr Burdon prepared a report for the Respondent, but was called as a witness by the Applicant. Dr Burdon stated that Mr Salerno’s history included reporting that he considered final varnishing had been an issue for some time. Dr Burdon confirmed that he diagnosed an allergy or sensitivity to VOCs, and that Mr Salerno had experienced symptoms again when attending the workplace, and when exposed to fumes in other situations.
Having had the opportunity to consider Dr Boffa’s report and Mr Salerno’s statement, Dr Burdon stated that the indication is that Mr Salerno does not have an allergy, but rather Multiple Chemical Sensitivity Syndrome (MCSS). Dr Burdon stated that this was because Mr Salerno reported reacting to chlorine which was not a volatile compound.
Asked how such a syndrome manifests, Dr Burdon explained that the inhalation of fumes affects the mucous membranes which become sensitive and can be inflamed. The fumes are readily absorbed into the blood and move through the body manifesting in headaches and other reactions. Dr Burdon stated that upon exposure, the substance switches on the symptoms which resolve on withdrawal from the substance, but recur on re-exposure.
Dr Burdon stated that he took into account the air quality reports prepared for NPA and that the concentrations allowed for workplaces are set to protect most workers. Dr Burdon stated that it is well recognised in respiratory circles that some people become ill when exposed to concentrations well below these standards. In his opinion there was a clear and significant connection with the workplace.
Cross examination of Dr Burdon took place on the final day after resumption of the hearing. Dr Burdon stated there is no set list of symptoms relating to exposure to VOCs. They are very soluble in tissue and therefore respiratory symptoms are often seen. Most prominent, however, are neurological symptoms such as migraines, lethargy, balance issues, skin and eye problems and sometimes gastro-intestinal symptoms. Dr Burdon considered the point of entry to affect the nature of the symptoms, with many patients referred due to inhalation.
Dr Burdon agreed with the proposition that cardiac issues can also arise. He had considerable experience with respiratory and airway issues arising, including hay fever. Dr Burdon accepted that symptoms experienced by Mr Salerno including headache and eye complaints could relate to other conditions. He considered that he would refer a patient for further assessment if the symptoms were restricted to headache.
Asked whether chemical sensitivity could be diagnosed in the absence of contemporary clinical records about the existence of headache and eye problems, Dr Burdon stated that he diagnosed the condition on the basis of a fuller medical history. He also took into account Mr Salerno’s recurrence of symptoms on return to the workplace. Dr Burdon stated that Mr Salerno’s general medical history was common among the general population. However, in light of his employment history, clinical history and examination, he had probably experienced this sensitivity for several years.
Dr Burdon confirmed that he formed the view Mr Salerno should not return to his previous occupation, having a longstanding condition, but it was reasonable to conclude that he had recovered while undertaking other employment over approximately 12 months. Dr Burdon was not aware that Mr Salerno had now returned to his previous employment, and queried what equipment may have changed to bring this about. He maintained that his original opinion Mr Salerno could not return to his previous employment was reasonable at the time, and that some people with chemical sensitivity do manage to return successfully.
With reference to the air analysis at the workplace, Dr Burdon considered that the reported levels of volatile substances were well below industry standards, based on his experience. There is, he stated, a range of sensitivity and it was not uncommon for patients to respond to low levels of irritants and that he did not consider a battery of tests required to confirm his clinical diagnosis. He did not agree with Dr Boffa’s diagnosis of RADS.
Dr Barton
Dr Barton confirmed in his evidence that he conducted a review of research papers to confirm his own prior understanding of RADS. He stated that he had worked for some time in the chemicals industry, and had experience with RADS.
Dr Barton was familiar with the testing undertaken at Mr Salerno’s workplace and confirmed that the various substances listed in the reports were understood as VOCs. He considered the results to demonstrate the identified amounts to be below or well below specified limits.
In cross-examination, Dr Barton was asked to confirm the nature of the medical history taken from Mr Salerno. The witness was taken to specific elements of Mr Salerno’s evidence about events at the workplace and confirmed that his report and history do not record in detail what took place on 22 October. Dr Barton noted that he examined Mr Salerno some 12 months after the incident.
Asked why he described Mr Salerno’s symptoms as non-specific, Dr Barton responded that he meant that the symptoms complained of were also seen in many people in the population and were not specific to chemical exposure. He stated further his opinions that the symptoms were also not indicative of RADS which, in his view, sent people to hospital. Dr Barton further stated that he was not sure that having headaches for five months was attributable to chemical exposure and that ‘chemicals don’t hang around in the body’.
Given that the substance of Dr Barton’s reports was not elaborated in evidence in chief, I provide the following brief summary of his reports (Exhibits R4 and R5):
(a)Mr Salerno’s variety of symptoms were very non-specific and not indicative of any particular allergy or sensitivity;
(b)the five months it took for symptoms to settle points toward a non-physical basis to his complaints;
(c)the report of sensitivity to other substances does not support a diagnosis of sensitivity to workplace items;
(d)nothing in the information obtained and reported on by other doctors provides any clear medical diagnosis;
(e)a multitude of investigations have been undertaken into various symptoms predating October 2018 with nothing of note identified; and
(f)Mr Salerno has not developed any recognised medical problem.
Other medical evidence
Clinical notes of Mr Salerno’s general medical practice from October 2018 (TB2 and TB3, pp 7-32, and 132) indicate the Applicant:
(a)presented on 2 October 2018 for suspected food poisoning;
(b)subsequently attended on 17 October 2018 for nausea/headaches, apparently over the previous two days, and was prescribed anagraine;
(c)attended on 22 October 2018 stating ‘stressed and anxious claims the printing inks and chemical could cause headache’, with a subsequent note from 23 October 2018 that he had a long history of migraine, and diagnosis noted of ‘tension headache’;
(d)was prescribed antibiotics for a bacterial infection during October 2018;
(e)underwent a brain scan which found no abnormalities;
(f)was noted on 27 October 2018 as having ‘severe right sided headaches for several weeks now’ and displayed tender sinus and nasal congestion;
(g)reported his headaches were better on 30 October 2018 although his cough was not settling down; and
(h)underwent a chest scan in January 2019 with largely unremarkable results.
Clinical notes also demonstrate a history from at least 2015 of chest issues, vertigo, gastroenteritis and sinus issues all involving repeat attendances. Mr Salerno was counselled about cessation of smoking in 2012, although the notes are ambiguous about whether he was still smoking at this time.
A report from OPSM dated 31 October 2018 (TB2, p 139) states that Mr Salerno had two haemorrhages behind his right eye.
The report of a respiratory specialist in March 2019 (TB2, p 133) indicates that Mr Salerno stated that the varnish formula had changed in October 2018, which led to a reaction. The report states Mr Salerno’s cough resolved after six weeks and that he had residual headache behind the eyes.
A subsequent report by another respiratory specialist from April 2019 (TB2, p 135) refers to symptoms of blurred vision, pain behind the eyes and frequent headaches arising in October 2018 due to varnish. However, Mr Salerno at the time of the report, exhibited no respiratory issues.
A needs assessment report prepared in respect of Mr Salerno’s work capacity dated 5 March 2019 (TB3, pp 211-213) states that Mr Salerno’s symptoms first began three years prior and included intermittent migraines, eye and airway irritation, vertigo and neck/shoulder/back aches. The document states that Mr Salerno ‘summarised that he now believes all of these symptoms were due to the inhalation of the varnish fumes in the vault’.
The same document goes on the record that Mr Salerno indicated the symptoms were still present while he was on leave in Vietnam prior to October 2018, and then progressed to constant severe headache, and uncomfortable pressure in his sinus and behind his eyes. It states that his symptoms at the time of the assessment included daily headaches (8/10 pain level), sinus pressure (5/10 pain level), and bleeding behind the eyes. It notes Mr Salerno was highly sensitive to ‘all smells’ and to ‘strong’ smells, had difficulty balancing and walking downstairs, and was unable to read or drink alcohol without developing a headache.
SUBMISSIONS
With respect to causation, it was submitted on the Applicant’s behalf that no substantive challenge had been made to Mr Salerno’s account of having experienced symptoms at work on 22 October 2018. It was conceded that this did not in fact occur at the start of his shift, as originally indicated.
The Applicant’s submissions also urge the Tribunal to consider complaints made by other staff and the remedial action apparently taken in response, to amount to a form of admission by the Respondent as to causation. It is also noted that the evidence indicates that Mr Salerno continued to experience symptoms in other settings outside the workplace.
As to the medical evidence it was submitted for the Applicant that:
(a)Dr Boffa was somewhat at odds with the balance of the medical opinion, however it was open to the Tribunal to make a finding that Mr Salerno experienced RADS;
(b)additional weight could be attributed to Dr Burdon’s evidence as he was originally engaged by the Respondent but was called as a witness by the Applicant;
(c)Dr Burdon considered that Mr Salerno suffered MCSS from volatile compounds and that some individuals react at levels lower than the acceptable industry standards;
(d)Dr Barton did not obtain a full direct history of the incident on 22 October and, while not certain what caused the symptoms, did not raise a challenge to causation, nor to MCSS as a condition;
(e)MCSS has been accepted by the Tribunal in at least one case, and has been identified as a condition in numerous publications; and
(f)the Respondent’s initial acceptance of liability is of significance, as is the fact that the expert who led the medical review leading to the denial of liability was not called to give evidence.
It was submitted on the Respondent’s behalf that while Mr Salerno was unfit for work following the incident, he had worked elsewhere as a storeman between 5 October 2019 and 3 January 2020. It was noted that following a medical clearance he had returned to normal duties in his previous role with NPA.
It was also submitted that Mr Salerno had an extensive medical history including migraines, breathing difficulties, chest complaints, and sinusitis. It was also submitted that his medical record reveals a history of smoking that suggested he continued this habit longer than claimed.
In summary, it was submitted that given the medical history, and given the variability in his accounts of the circumstances surrounding the incident at work on 22 October 2018, that the evidence of Mr Salerno should be treated with caution. Mr Salerno was, for example, being treated with antibiotics through to late October 2018, and the records prepared by NPA indicated that there was not an unusually high volume of product handled around the time of the incident.
The Respondent submitted that the diagnosis of MCSS is controversial, and that several Tribunal decisions recorded expert evidence to this effect. Accordingly, the Tribunal was urged to follow the opinion of Dr Barton. It was also submitted that, upon testing, the air quality in the workplace was satisfactory, and there was no substantive evidence as to similar issues arising with other workers.
In reply, it was submitted for the Applicant that: air quality reports were irrelevant as there was no testing contemporaneous with the incident; the proposition that Mr Salerno continued smoking was not fully tested in evidence; and that Dr Barton stands alone in his opinion that the symptoms experienced by Mr Salerno do not fit with a recognised occupational health condition.
The submissions overall, and the Applicant’s in particular, are somewhat cursory in respect of the specific findings the Tribunal should make in the context of the relevant statutory tests.
I note the Applicant’s SFIC submits that Mr Salerno experienced ‘an injury and/or disease’ in the form of an aggravation, and that the workplace made a more than material contribution. More specifically, Mr Salerno’s application to the Tribunal states that his ‘symptoms are illustrative of a physical ailment due to irritation I suffer and therefore is consistent with the meaning of an “ailment” in the SRC Act’.
I note the Respondent’s SFIC, consistent with its closing submission, submits that no condition can be identified for which liability exists under s 14 of the Act, and that ‘something more than an assertion by the applicant that he felt unwell at work’ is required. The SFIC also includes passages from the decision of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May).
CONSIDERATIONS
Following from the preceding summary of submissions, it is helpful to state simply the issues for resolution. They are to identify the nature of Mr Salerno’s medical condition, and to determine whether it satisfies the statutory criteria for an injury or a disease. This involves more than understanding the medical situation, as I must find the requisite causal connection with employment.
There are elements of Mr Salerno’s evidence relating to the history of the incident on 22 October 2018, and in the wider body of material regarding his symptoms at various other times, that are imprecise, if not patently inconsistent. For example:
(a)the Applicant gave evidence about entering the vaults upon opening on Mondays and being confronted with a build-up of fumes;
(b)whether or not this was evidence about his own actions, which is unclear, it then emerged from the evidence that Mr Salerno did not open the vaults, and did not enter a vault at all until perhaps over an hour into his shift on 22 October 2018;
(c)Mr Salerno was initially somewhat unclear in his evidence as to which vault or vaults he entered and for which purpose;
(d)in his statement, Mr Salerno asserts a larger volume of product than usual was processed on or about 22 October, however the material provided by the Respondent suggests relatively consistent amounts being handled;
(e)there are conflicting accounts of when symptoms, particularly headaches, were first experienced including one account that Mr Salerno experienced them while on leave in Vietnam, another that he had headaches for some weeks prior to 22 October 2018, and another that they appeared on or around 15 October, and another that they began two days before the day in question;
(f)in yet another account, Mr Salerno appeared to report headaches for some years, while, in his own direct evidence, it took some time for Mr Salerno to acknowledge a history of headaches;
(g)at another point, Mr Salerno denied experiencing respiratory problems but later accepted when taken through his medical history that he had medical consultations for chest and sinus problems; and
(h)as noted in the background at the commencement of these reasons, prior to the reconsideration decision, both NPA and the Respondent were aware that Mr Salerno had not in fact been assessed for sensitivity to VOCs.
Further, limited attention was paid in evidence to establishing accurate details of the technical aspects of note production. There is a general acceptance as to the presence of certain substances (supported indirectly through the air quality reports) and Mr Salerno described in his evidence various production steps that he was involved in (notwithstanding the flaws just noted above). However, this was not addressed in any forensic way during the hearing.
Uncertainty could not be cured with the assistance of NPA because, due to security concerns on its part, the Respondent was unable to produce for the Tribunal a depiction of the layout of the workplace. The evidence does, however, include some relatively specific descriptions of various relevant spaces and, to some extent, their relationship to each other and the workflow. In at least one respect – the dimension of the relevant vaults – Mr Salerno’s evidence appears to conflict with that of Mr Morovic, in estimating a smaller size.
Finally, I have noted that the hearing itself was interrupted due to the emergence during oral evidence of a new diagnosis – MCSS – not previously the subject of specific specialist investigation or reporting.
Mr Salerno’s contention that he experienced some form of medical issue at work on 22 October 2018 would appear to be supported by Mr Salerno’s immediate supervisor. In his evidence, Mr Morovic indicated that he had no reason to doubt Mr Salerno and stated that he looked obviously unwell.
There is, however, rather scant evidence as to what Mr Salerno presented with when seeking medical help. He lists a wide range of symptoms in his claim form, but the contemporaneous medical record focuses virtually in its entirety on migraine and/or headache. It does not refer to eye problems, nor to his other claimed ailments. I accept that Mr Salerno’s evidence appeared to combine migraine and eye symptoms, but Mr Salerno’s concerns included watery or irritated eyes.
On this point, there is extremely limited information before me about this aspect of Mr Salerno’s symptoms. I note a brief report from an optometrist about the existence of bleeds in his right eye, but otherwise evidence and submissions (and indeed other evidence) did not address this further.
As to the wider physical symptoms complained of – neck and back pain – the medical record post-22 October 2018 is seemingly silent, and they were not addressed in evidence.
Mr Salerno was referred for further specialist medical assessment, over a period of time, in respect of his brain, chest and sensitivity to allergens. None of these investigations identified any underlying pathology or condition.
It was clear from the specialist evidence at the hearing that the weight of medical evidence does not support the diagnosis of an allergy. The weight of expert evidence also does not support the diagnosis of a specific kind of respiratory disfunction, being RADS.
On balance, I am also not satisfied that Dr Burdon’s diagnosis of MCSS is viable. While Dr Barton did not give evidence about this condition per se, Dr Barton did provide evidence contrary to that of Dr Burdon. That is, Dr Burdon considered that chemicals could, in a way, be ingested or absorbed in the body, and Dr Barton explicitly rejected this proposition, as I have noted above.
A further difficulty arises in that the specialist material provided by Mr Salerno. Exhibit A9 states that aetiology and pathogenesis of MCSS is not clear. Dr Barton was also asked in evidence to consider aspects of a formal diagnosis, and did not consider it could be made out. Exhibit A8 explicitly avoids any clinically relevant observations, and Exhibit A7 does not refer to chemical sensitivity.
I have noted that more specific and targeted testing of Mr Salerno’s tolerance to VOCs was not undertaken. This was central to the observation in the medical review process undertaken by the Respondent, where it was noted that liability should not be based upon the non-specific alternatives ‘allergy or sensitivity’. It appears Dr Burdon came to consider MCCS as a diagnosis after having heard Mr Salerno’s history of apparent sensitivity to chlorine, said not to be among the class of VOCs.
Overall, I consider it appropriate to prefer the evidence of Dr Barton, in particular given his stated history of work in the chemicals industry, which I consider adds some weight to the opinions he expressed. While Dr Barton reported at some distance in time from the original incident, equally Dr Burdon was somewhat taken by surprise in cross-examination by the fact that Mr Salerno had successfully returned to his previous employment; something that he had previously considered not possible.
Accordingly, I do not consider there is adequate evidence upon which to make a finding that Mr Salerno developed MCSS. I do not consider it necessary to make any wider finding about MCSS. However, as I noted at the hearing, the condition is certainly not unequivocally supported in other decisions of the Tribunal. I also consider that the evidence overall does not substantiate some other kind of sensitivity falling short of this particular named condition.
The reference in the Respondent’s submissions to May is appropriate given that case essentially centres around the difference between an applicant feeling unwell, as opposed to suffering from a condition that is capable of definitive diagnosis.
I note that, strictly, May addressed only the question of injury in the primary sense and not disease, which are distinct heads of liability under the Act. I also note that the Applicant’s submissions, where indeed they are specific on this subject, are to the effect that the Tribunal should find that Mr Salerno suffered an aggravation of an ailment (ailment being the definition supplied in the Act for ‘disease’).
This approach may well fall, as it were, directly from the considerations of the High Court in May. This is because the absence of evidence demonstrating a physiological change in that case was critical in the outcome, being that the Tribunal was not in error in finding that there was no injury (see for example at [66]-[67], [78] and [82]).
I accept that in its consideration the High Court observed that it could be possible for there to be a finding as to injury without diagnosis of a medical condition or supporting pathology (see at [35] and [80]). These are not requirements under the Act. However, the Court also plainly preserved for the Tribunal the function of making the relevant finding on the basis of the evidence.
I consider that on the evidence overall, I cannot make a positive finding as to the existence of an injury, in the primary sense, nor of a disease, being an ailment. There is no evidence reliably identifying diagnosis of a condition explaining Mr Salerno’s symptoms. Beyond that, there is Mr Salerno’s self-reporting of some kind of reaction at work, possibly on one occasion, possibly on several occasions, and Mr Morovic’s evidence amounts to an observation that the Applicant did not look well.
Furthermore, the evidence demonstrates that Mr Salerno had recovered from his reported symptoms by April/May 2019, and he is now back in his former role.
It is well established that in arriving at the correct or preferable decision, the Tribunal must be positively satisfied on the basis of rational and probative evidence as to the critical matters in dispute. I consider that in Mr Salerno’s case, there remains a critical threshold judgment about the sufficiency of evidence required to support key findings which has not been met.
Furthermore, on the question of the next step of finding a causal link to employment, I consider the evidence overall to indicate that Mr Salerno was treated for the more limited range of symptoms which came to dominate the evidence, being migraine and respiratory and sinus problems, on numerous prior occasions. This fact alone renders the satisfaction of the tests for causation in respect of either of the heads of liability problematic, in the absence of evidence sufficient to support findings to the requisite standard.
There was a good amount of evidence arising in this matter about the state of air quality in the workplace at different times, and as to various measures undertaken apparently in response to complaints by other members of the workforce. There was also evidence given by Mr Morovic to the effect that he moved some of Mr Salerno’s colleagues into a different space on 22 October 2018 arising from Mr Salerno’s concerns.
This material does little more than confirm, according to the assumption underpinning the evidence in general, that it is an uncontested fact in this matter that the workplace and production process inherently involve exposure to VOCs.
It is true enough, as contended by the Applicant, that the state of air quality at various times does not demonstrate anything categorical about its state on 22 October 2018. It is equally reasonable, however, to observe that the underlying reality of the conditions of work do not in and of themselves serve to reinforce the Applicant’s case, in the absence of other evidence.
For these reasons, I am unable to come to any finding that supports an outcome different to that arrived at in the decision under review.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 22 February 2022
Dates of hearing: 12–14 October 2020, 11 May & 12–13 July 2021 Date final submissions received: 8 November 2021 Counsel for the Applicant: Mr John Perry Solicitors for the Applicant: Carbone Lawyers Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Statutory Construction
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Remedies
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