Sasha Hardcastle and Comcare

Case [2015] AATA 46

[2015] AATA 46

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4618

Re

Sasha Hardcastle

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Dr M Denovan, Member
Date 29 January 2015
Place Canberra

The Tribunal affirms the decision under review.


...........................[SGD].............................................

Dr M Denovan, Member

CATCHWORDS

WORKERS’ COMPENSATION – chronic fatigue syndrome – Coxsackie B virus – water drunk – decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14

CASES

Baranski v Comcare [2013] FCAFC 31
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

REASONS FOR DECISION

Dr M Denovan, Member

29 January 2015

INTRODUCTION

  1. Mrs Hardcastle, the applicant, was employed as a communications manager with the Commonwealth Scientific and Industrial Research Organisation (“CSIRO”). It is accepted by both parties that Mrs Hardcastle was diagnosed with chronic fatigue syndrome (“CFS”) in 2012. Mrs Hardcastle contends her employment at CSIRO significantly contributed to her contracting this condition. The basis of Mrs Hardcastle’s claim is that this condition was either caused or contributed to significantly by Coxsackie B virus infection, which she contracted when she attended a work approved course of study at the Rydges Capital Hill Hotel (“the Rydges Hotel”) on 20 to 22 March 2012. She claims faeces contaminated with Coxsackie B virus entered a water jug when it was filled from the tap located in the women’s toilets, and Mrs Hardcastle subsequently consumed water from that vessel.

  2. The diagnosis of CFS is not in dispute, though Mr Woulfe for the respondent does not accept that Mrs Hardcastle contracted Coxsackie B virus during the conference, or that her CFS was caused or significantly contributed to by Coxsackie B virus or any other factor related to her employment with CSIRO.

  3. I must decide whether Comcare is liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRCA”) for Mrs Hardcastle’s CFS. In order to make that decision, the issues I must consider are:

    (a)Did Mrs Hardcastle contract Coxsackie B virus, or any other infection whilst in  attendance at the course of study at the Rydges Hotel from 20 to 22 March 2012

    (b)If so, did that infection significantly contribute to the cause of her CFS?

    BACKGROUND

  4. Mrs Hardcastle attended a course at the Rydges Hotel from Tuesday 20 to


    Thursday 22 March 2012, inclusive. This course of study was approved by her work.

  5. Mrs Hardcastle reported onset of flu-like symptoms on third day of the conference, that is 22 March 2012.

  6. Mrs Hardcastle did not attend work on Friday 23 March 2012. Mrs Hardcastle emailed her supervisor that day and advised that she was unwell.

  7. Mrs Hardcastle attended work on Monday 26 March 2012 and possibly


    Tuesday 27 March 2012.[1]

    [1] In her statement (Exhibit 1) Mrs Hardcastle claims she did not attend work this day, however in the statement made by her husband (T11), it is said that she did attend.

  8. Mrs Hardcastle did…

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Details
AGLC
Sasha Hardcastle and Comcare [2015] AATA 46
Case
[2015] AATA 46
Decision Date

CaseChat Overview and Summary

In the case of Hardcastle and Comcare, the applicant, Mrs Hardcastle, sought compensation for chronic fatigue syndrome (CFS) under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central dispute was whether Mrs Hardcastle contracted Coxsackie B virus or another infection during a work-related course at the Rydges Hotel from 20 to 22 March 2012, and if this infection significantly contributed to her CFS. The court had to decide on the admissibility and weight of expert medical evidence regarding the virus's role in causing Mrs Hardcastle's condition.

The primary issue before the court was the causation of Mrs Hardcastle's CFS, specifically whether her employment at the Rydges Hotel contributed significantly to her condition. This involved evaluating the expert opinions of Dr Crawford, a consultant microbiologist, and Dr Korman, an infectious disease physician and medical microbiologist. Dr Crawford posited that the Coxsackie B virus could have caused Mrs Hardcastle's CFS, while Dr Korman argued against a viral causation, suggesting that the cause of CFS is likely heterogeneous and not predominantly viral.

The court found Dr Korman's evidence more persuasive, primarily due to his broader qualifications and clinical experience. The court accepted Dr Korman's view that the frequency of viral infection in CFS patients is no higher than in the general population. The court held that for compensation to be granted, it must be more likely than not that the virus significantly contributed to Mrs Hardcastle's CFS, a burden not met by the evidence presented. The court found no clear link between the virus and her condition, and thus affirmed the decision under review.

In conclusion, the court held that Comcare is not liable for Mrs Hardcastle's CFS under s 14 of the SRCA. The court rejected the applicant's claim based on the lack of a clear causal link between the alleged infection and her condition, affirming the decision that Comcare was not liable.

Orders

Orders of the court

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Background

Background to the litigation

I must decide whether Comcare is liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRCA”) for Mrs Hardcastle’s CFS. In order to make that decision, the issues I must consider are:(a)Did Mrs Hardcastle contract Coxsackie B virus, or any other infection whilst in attendance at the course of study at the Rydges Hotel from 20 to 22 March 2012 (b)If so, did that infection significantly contribute to the cause of her CFS?BACKGROUND Mrs Hardcastle attended a course at the Rydges Hotel from Tuesday 20 to Thursday 22 March 2012, inclusive. This course of study was approved by her work. Mrs Hardcastle reported onset of flu-like symptoms on third day of the conference, that is 22 March 2012. Mrs Hardcastle did not attend work on Friday 23 March 2012. Mrs Hardcastle emailed her supervisor that day and advised that she was unwell. Mrs Hardcastle attended work on Monday 26 March 2012 and possibly Tuesday 27 March 2012.[1][1] In her statement (Exhibit 1) Mrs Hardcastle claims she did not attend work this day, however in the statement made by her husband (T11), it is said that she did attend. Mrs Hardcastle did not attend work on Wednesday 28 March 2012. On that day, she consulted her regular general practitioner Dr Ayres. Dr Ayres certified her unfit for duties until 30 March 2012. Mrs Hardcastle did not attend work on Friday 30 March 2012. On that night she was taken by ambulance to Canberra Hospital. She complained of chest pain and was noted to have bradycardia (slow heart rate). She was sent home the same night; the cause of her chest pain was not determined. Mrs Hardcastle returned to the medical clinic on several occasions in April and in early May. On each occasion her general practitioner provided her with medical certificates for short periods, ranging from two to seven days. Mrs Hardcastle was reviewed by general physician Dr Terry Gavaghan on 14 June 2012. In a report dated 18 June 2012, Dr Gavaghan opined Mrs Hardcastle was suffering from ‘post infective fibromyalgia’, and ‘post infective chronic fatigue’. Dr Gavaghan ordered a number of blood tests. Serology for Cytomegalovirus (“CMV”), Epstein Barr virus (“EBV”) VCA (serological test for anti EBV antibodies), enterovirus (CFT titre) and Lyme disease was performed on 18 June 2012. The results were negative for Lyme disease. Mrs Hardcastle’s serology indicated past exposure to CMV, EBV and enterovirus. Mrs Hardcastle was seen by rheumatologist Dr Suren Jayaweera, on 18 July 2012. Dr Jayaweera diagnosed her with post viral fatigue and opined Coxsackie B virus was the likely virus that Mrs Hardcastle contracted, due to the history of bradycardia. Dr Jawaweera indicated that there were other possible explanations for the bradycardia, for example, it could have been due to a fainting episode. Dr Jayaweera opined Mrs Hardcastle’s chest pain was not typical of pericarditis. She noted that Coxsackie B virus can cause myocarditis and as a precaution, she recommended an ECG and echocardiogram.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Crawford said that where there is a history of a flu-like illness at the onset of what then becomes persistent illness, an infectious aetiology for CSF is suggested. Dr Korman said the temporal association does not necessarily imply aetiology. He explained that the association could be explained due to a number of possibilities. For example, it has been suggested that there could be an abnormality in a person’s immune system, which predisposes that person to both viral infections and CFS. This theory is supported by the fact that many persons who develop CFS have also recently suffered from a flu-like illness due to a virus, yet the same virus causes no symptoms in the majority of people. Mrs Hardcastle was involved in a motor-vehicle accident in 2010, and there is evidence that her recovery was somewhat protracted. Dr Korman suggested this is consistent with a conclusion that her immune system may have been compromised prior to her contracting a viral infection in March 2012. Mrs Hardcastle claims to have been well prior to the onset of her illness in March 2012. She gave evidence to the effect that she suffers less flu-like illnesses than most of her colleagues, and she claims that on one occasion her general practitioner commented on how infrequently she attends the surgery. It is beyond the scope of this decision to determine the state of Mrs Hardcastle’s immune system. I accept that it is possible that that she contracted a viral infection in March 2012 because her immune system was somewhat compromised. That may explain why she had an infection that she claims her doctor described as ‘severe,’ even though the likely causative agent usually causes no, or only mild symptoms in most people. CONCLUSION In order to be entitled to compensation under the SRCA, an employee must suffer an ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.[10] A ‘significant degree’ means a degree that is substantially more than material.[11][10] Safety Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).[11] Ibid s 5B(2). There is a large amount of authority as to what ‘material’ is and what is a ‘significant degree.’ The cause of CFS is unknown. This is not a case where the exact cause of CFS is not proven but the medical and scientific experts agree on what the likely cause is. Dr Korman was able to provide a detailed explanation about why viruses were once thought to play a role in the condition, and why now this is not the case. Dr Crawford disagreed, however he did not offer any reasoned explanation as to why, and was not able to tender any scientific journal articles that refuted the conclusions in those put forth by Dr Korman. Dr Crawford even pointed out that some doctors consider the diagnosis of CFS controversial. I accept Dr Korman’s evidence, which was that the cause of CFS is likely to be heterogenic and that the frequency of viral infection in those with CFS is no higher than that of the general community. This was not contradicted by Dr Crawford.

Ratio Decidendi

Legal Principle Established

Consultant Rheumatologist, Dr Kevat saw the applicant on 13 January 2014. He opined that, based on the symptoms Mrs Hardcastle reported and the usual incubation period for Coxsackie B virus, Mrs Hardcastle contracted the virus on the way to, or when she arrived at, the study course at the Rydges Hotel.CONSIDERATION The applicant’s case principally relies on the evidence of consultant microbiologist Dr Crawford. Although Dr Jayaweera and Dr Kevat made comments in their reports that appear to support aspects of the applicant’s case, neither doctor was made available for cross examination, and I am not in a position to evaluate the reasons behind their comments. The respondent’s case principally relies upon the evidence of infectious disease physician and medical microbiologist Dr Korman. In addition to their written reports the tribunal had the benefit of both doctors appearing by video at the same time at the hearing. Mr Woulfe submitted that I should prefer the evidence of Dr Korman. This is because of a number of reasons, not the least of which is that Dr Korman holds qualifications in science equal to that of Dr Crawford, and additionally, is a qualified medical specialist who has years of experience treating people. Dr Korman therefore has skills and experience relevant to the medical specialty discipline which are broader and more relevant than those of Dr Crawford, who is a research doctor, and has no medical qualifications nor clinical experience. It is undeniable that Dr Korman has additional qualifications that are relevant, particularly when issues relating to clinical matters are being considered. It would be a mistake however, if I were to make a decision based solely on the basis that I preferred Dr Korman’s opinion because of his superior qualifications and experience. Mr Anforth referred to the decision of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. In that matter, the primary judge was criticized for accepting the opinion of an expert, without critically evaluating the basis of that opinion.[2] [2] [2001] NSWCA 305 at [88], [102]. Mr Anforth submitted further that the standard of proof required by medical scientists to establish causation is very different to that required by decision makers under the Act. He referred me to the matters of EMI (Australia) Ltd v Bes [1970] 2 NSWR 238, and Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153. Mr Anforth contends that, using the reasoning in these cases, as long as the medical experts agreed it was possible that Mrs Hardcastle’s CFS was caused, or significantly contributed to, by Coxsackie B virus, and the virus was possibly contracted when she was at the Rydges Hotel attending the study course in March 2012, it is open for me to make a finding that the virus was the probable cause of Ms Hardcastle’s CFS. That these matters are possibilities only is not enough to make a finding in the applicant’s favour. I must be persuaded, not simply that it was possible, but that it is more likely than not that Mrs Hardcastle contracted Coxsackie B virus during her attendance at the Rydges Hotel conference, and also, that it is more likely than not that that virus significantly contributed to her CFS.