Stroud and Comcare - [2002] AATA 350

DECISION AND REASONS FOR DECISION [2002] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A00/357

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JILLIAN STROUD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Air Marshal I B Gration AO, AFC, RAAF (Rtd), Member Dr M.D. Miller AO, Member

Date15 May 2002
PlaceCanberra

Decision      1. The decision under review is set aside. In substitution the Tribunal varies the determination of 22 June 2000 to provide: (i) Mrs Stroud is entitled to compensation for incapacity for work under s 19 of the Act for all periods she did not work between 11 February 2000 and 23 July 2001. (ii) From 24 July 2001 to 21 December 2001 Mrs Stroud is entitled to compensation calculated under s 19 on the basis that she was able to earn the amounts she earned for the hours she worked as set out in exhibit A9. (iii) From 22 December 2001 Mrs Stroud's entitlement to compensation is to be calculated on the basis that she continued to be able to earn the amounts she would have earned if she had worked 10½ hours per week, unless she in fact worked more than that in any week, in which case her actual earnings are to be taken into account. (iv) The costs of Dr Borody and of the faecal infusion treatment and the cost of supplements prescribed by Dr Turtle are compensable under s 16 of the Act. 2. The Tribunal orders under s 67(8) of the Act that Mrs Stroud's costs of these proceedings be paid by Comcare.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – compensable clostridium difficile infection – whether it lasted beyond closed period – whether hepatitis also an injury under the Act – cause of ongoing symptoms after successful treatment by faecal infusion – whether irritable bowel syndrome and chronic fatigue syndrome compensable conditions as resulting from clostridium difficile and hepatitis
COST OF MEDICAL TREATMENT – whether treatment by faecal infusion and whether prescribed supplements are "treatment which it was reasonable . . . to obtain" – whether faecal infusion treatment experimental and controversial – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14, 16(1), 19 and 62

REASONS FOR DECISION

15 May 2002 Mrs Joan Dwyer, Senior Member Air Marshal I B Gration AO, AFC, RAAF (Rtd), Member Dr M.D. Miller, Member

This was originally an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 28 August 2000 (T38 pp67-74). That decision affirmed a determination made on 22 June 2000 (T24 pp39-42) rejecting Mrs Stroud's claim for compensation in respect of "Clostridium Difficile" ("CD"). The reviewable decision-maker accepted that Mrs Stroud suffered from CD, which is a bowel infection, and that it was contributed to, in a material degree, by her employment as a Preschool assistant at Charnwood Preschool. As part of her duties she was required to change dirty nappies and to perform other tasks in caring for young children, which exposed her to the risk of infection. The claim was rejected on the basis of a report from Dr Clarke, dated 28 July 2000 (T33 pp57-58), stating that CD was not responsible for the symptoms which resulted in Mrs Stroud's incapacity.
Mrs Stroud described her symptoms in her claim for compensation lodged on 22 March 2000 (T6 p8) as:
Became very ill, diarrhoea, migraines, muscle pains/cramps, uncontrolled spasms, nausea, weight loss, jaundice, swelling of head.
Contracted – Clostridium Difficile
Became anxious/stress[ed] about my health and it's [sic] effect on family.
It was several weeks and as many Doctor[s] before I was diagnosed correctly.

Mrs Stroud added:

Am still recovering, ie have still muscle pain, headache, diarrhoea
Am on very strong Antibiotics
Very fatigue[d]

Dr Clarke in his report of 28 July (T33 p57) wrote:
I would be extremely reluctant to ascribe her neurological symptoms such as dizziness, ataxia, parathesia and headaches to that infection. Nor would it be reasonable to ascribe the disturbance of liver biochemistry to that infection.
Clostridium difficile infections do not result in these symptoms which are almost certainly related to alternative pathology. My view, in view of the resolution of those problems, is that her condition was most likely due to an inter-current viral infection.
This begs the question of whether that viral infection could have been acquired at her place of employment and the answer to that is "Yes".
Mrs Stroud lodged her application for review on 19 September 2000. Prior to the matter coming on for hearing, the original reviewable decision had been twice reconsidered by Comcare on its own motion under s 62 of the Act, subsequent to the lodging by the applicant of her application for review by this Tribunal.
The first reconsideration decision of 28 September 2001 decided that Mrs Stroud's employment had materially contributed to her contraction of a hepatitis condition, but that she had ceased to suffer from that condition by 31 August 2000. Accordingly compensation was found to be payable to Mrs Stroud in respect of hepatitis from 11 February 2000 to 31 August 2000.
That decision was revoked in a second reconsideration-on-own-motion decision made on 13 February 2002. Comcare decided to accept liability to pay compensation to Mrs Stroud in respect of CD from 11 February 2000 to 31 August 2000.
Thus, when the matter came before the Tribunal, the primary issue was whether Mrs Stroud was entitled to compensation in respect of CD after 31 August 2000. There were further issues as to the explanation of her ongoing symptoms after the CD infection was successfully treated by faecal infusion, and as to whether the cost of certain treatment was compensable.
At the hearing Mr A. Anforth of Counsel appeared for Mrs Stroud. Mr S Pilkington of Counsel appeared for Comcare. Mrs Stroud gave evidence. Evidence on her behalf was given by her treating gastroenterologist, Dr Borody, and by her treating general practitioner, Dr Turtle. The respondent called Professor Gallagher, who had provided medico/legal reports in the matter, and Dr Clarke, who, in April 2000, had performed a colonoscopy on Mrs Stroud and who had also provided a number of reports. The Tribunal had before it the documents ("the T documents") numbered T1-T38 lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the additional documents attached to the letter from the respondent's solicitor, dated 13 February 2002, which were received by the Tribunal as further T documents. Those documents included copies of the two reconsideration decisions made under s 62 of the Act. The Tribunal also had before it the exhibits tendered during the hearing. Dr Borody and Professor Gallagher gave evidence over the telephone.
Mr Anforth, in opening, informed the Tribunal that Mrs Stroud had undergone faecal infusion treatment in March and April 2001 as suggested by Dr Borody, and that as from that time she no longer claimed to be suffering from CD. However, she did claim to suffer chronic fatigue syndrome (CFS) and irritable bowel syndrome (IBS), as a direct consequence of her CD and hepatitis. She claimed compensation in respect of those ongoing conditions from completion of the faecal transfusion in April 2001. Mr Anforth also informed the Tribunal that Mrs Stroud had returned to work in a part-time capacity from 24 July 2001. The Tribunal received in evidence a document setting out the hours she had worked from that date (A9).
Mrs Stroud claimed that she was entitled to compensation for incapacity for the periods she had not worked, including the period from 1-22 February 2002 during which she had been certified totally incapacitated by Dr Turtle (A6). Mr Anforth informed the Tribunal that there was also an issue as to whether or not Mrs Stroud was entitled to compensation for the cost of reasonable medical treatment provided in respect of the CD and any other ongoing condition. As the hearing progressed, it became apparent that there were two limbs to that issue. The first issue was whether or not Mrs Stroud was entitled to the costs of attendance on Dr Borody and any expenses associated with the faecal infusion treatment which he had recommended. The second was whether Mrs Stroud was entitled to the costs of certain supplements which she had been taking as prescribed by Dr Turtle.
The respondent's case was that Mrs Stroud was suffering from an anxiety condition prior to the onset of the compensable CD and the hepatitis type condition, and that both the CD, which was accepted as compensable, and the hepatitis had resolved well before 31 August 2000. The respondent contended that any subsequent problems were related to IBS, which it claimed is essentially due to emotional factors and which resulted from a pre-existing anxiety condition. The respondent also submitted that Mrs Stroud had been fit to work full-time from 1 September 2000 and that the faecal infusion, administered in March 2001 on the recommendation of Dr Borody, was not treatment which it was reasonable for Mrs Stroud to obtain. A similar submission was made in respect of the supplements certified by Dr Turtle as appropriate for Mrs Stroud to take on an ongoing basis. It was further submitted that the requirement for those supplements was due to chronic fatigue which was a consequence of the hepatitis-type infection, and thus they were not a compensable medical expense unless the Tribunal should find that the hepatitis was compensable.
was mrs stroud still suffering from cd after 31 august 2000?
The first question for determination is whether Mrs Stroud had ceased to suffer from the CD, which has been accepted as a compensable condition, by 31 August 2000. Mrs Stroud claims that she continued to suffer from that condition until it was successfully treated by faecal infusion in March 2001.
The respondent relied on the negative pathology results for CD testing from 3 April 2000 (see exhibit R6) as indicating that the CD had been eradicated by the course of Vancomycin which Dr Turtle had prescribed as soon as a positive CD test result was obtained. Exhibit R6 contains negative pathology tests for CD on 3 April 2000 and on 10 April 2000. There are also negative test results which do not specifically mention CD on 11 and 12 April 2000. The respondent's case was that from about April 2000 Mrs Stroud was clear of the CD bacteria, and that she should have fully recovered from the condition by 31 August 2000. Mr Pilkington referred to that as a generous approach to the issue.
According to the evidence Mrs Stroud first experienced symptoms, which were later described as resulting from CD and a hepatitis infection, on about 11 February 2000. She worked as a Preschool attendant. On that day she said that she had woken up feeling bad, although she had still gone to work. She said she felt really sick at work and was vomiting and had diarrhoea. She said she went home straight after her shift at the Preschool, missing a work lunch to do so, and went to her doctor, Dr Choong. Mrs Stroud explained that she had not been happy with Dr Choong's treatment and had then gone to Dr Vung and to Dr Trinh and to the Department of Mental Health. She also attended the Canberra Hospital and a neurologist, Dr Andrews, before seeing Dr Turtle for the first time on 11 March 2000. Mrs Stroud's evidence that she was not satisfied with the treatment suggested by Dr Choong, or with his diagnosis, is confirmed by the fact that she saw so many other medical practitioners in the following month.
Dr Turtle was the first doctor to arrange for investigations to see whether Mrs Stroud had hepatitis or CD infection. Those tests were carried out by Capital Pathology and showed non-specific hepatitis and a positive CD test (T35 pp63-64). Dr Turtle prescribed Vancomycin to treat the CD.
On 18 May 2000 Dr Turtle wrote a report (T19 pp28-30) to Comcare in which he said:
The diagnosis is of a Clostridium Dificile [sic] infection of the gastrointestinal tract with secondary toxic hepatitis. Mrs Stroud gives a history, as noted in your letter, of significant contact in her work as a preschool assistant with infants with oftentimes-soiled pants, clothes and hands etc. There is no other history of any particular potential source of the infection and it is most probable that the Clostridium infection was caught at her work from one of these children.

He added that a colonoscopy performed by Dr Clarke on 13 April 2000 had been normal. Dr Turtle wrote at paragraphs 10-13 (T19 p29):

10.The clearance of the Clostridium Dificile [sic] infection with the Vancomycin is complete. Mrs Stroud now needs to continue with treatment to help restore normal bowel ecology and function and to repair the toxic hepatic and general tissue damage. This includes using Nilstat and Diflucan as wall as Replete, Lactobac, Ultra Maintain, Minoporph, Glutathione, SF 88, C Plus, DEF, Pepep, Glutamine, Delux Scavengers and intravenous Vitamin C.
11.The prognosis is for a slow recovery of gut function and general health over the next few weeks to months. The time variability is due to the protracted initial infection before appropriate treatment was commenced as well as the inherent difficulty in restoring normal bowel ecology after such infections.
12.There are no extraneous issues, which would affect return to work.
13.Mrs Stroud is still currently significantly fatigued and unwell and unable to work at all. It is anticipated that she will be able to commence a return to work on a graduated basis within the next month.

As set out in Dr Turtle's report, Mrs Stroud had made an apparent recovery from the CD, as shown by negative CD tests, and from the hepatitis by 18 May 2000, although she had not yet fully regained her strength. However, in June 2000 Dr Turtle found that Mrs Stroud had a positive helicobacter pylori result and on 20 June 2000 she was treated with triple therapy. Dr Turtle, in his report of 27 January 2002 (A5), wrote that this treatment led to "little improvement in her overall condition". He described ongoing bowel problems and fatigue with depression caused by protracted ill-health.
After trying various dietary and nutritional treatment regimes, Dr Turtle referred Mrs Stroud to Dr Borody, a gastroenterologist specialising in bowel infections and altered bowel function and flora. Dr Borody first saw Mrs Stroud on 23 October 2000 (A1). He obtained a history that, following treatment of the helicobacter pylori infection, she had again developed CD diarrhoea.
In his report of 14 February 2001 Dr Borody wrote at paragraph 4 (A2):
Chronic c difficile is very difficult to cure. Once acquired it can continue lifelong. Essentially, for severe cases Flagyl, Vancomycin, Rifampicin, Lactobacillus GG, Questran, colestid, infusion of immunoglobulin, Saccromyces boulardi (Brewers' Yeast) hyperimmunised colostrum, and finally faecal enemas have all been used in therapy of chronic C difficile infection. The only therapy that is capable of permanently and recurrently curing the condition is the last treatment and this is distasteful and difficult to administer. (emphasis added)
Dr Borody also wrote in that report, paragraph 5, that the symptoms of CD can include either intracolonic symptoms or para-infective phenomena outside the bowel such as "fatigue, musculo-skeletal pain, and other symptoms which vary from patient to patient and Clostridium difficile strain to strain." He added:
In Jillian Stroud's case it appears that she has chronic tiredness and musculo-skeletal pains amongst other symptoms. These appear to be severe enough for her to be unable to work at this stage until she is able to eradicate C difficile permanently.

Dr Borody in his report (A2 paragraph 6) explained that, as C difficile is housed in the bowel, external to access by the immune system, it is likely to remain indefinitely and that the only possibility of eradication is with extreme forms of treatment. He attached to that report a document called "Ellen's case history" giving an example of a dramatic cure of chronic CD with natural treatment, namely a faecal infusion of the colon.

Dr Borody in his later report of 14 February 2002 (A8), and in his evidence, said that in his opinion the treatment for helicobacter pylori had caused a recurrence of Mrs Stroud's CD. He explained in evidence that CD spores are resistant to treatment and said that when he saw Mrs Stroud, on 23 October 2000, he diagnosed her as still suffering from recurrent CD.
Dr Borody explained in evidence that he has a particular interest in acute and chronic CD to the extent that some patients come to him for treatment from the United States. He consults to the CD Support Group web page. Dr Borody said that when he saw Mrs Stroud the history was of a positive test result and then treatment with Vancomycin which had not cured the condition. He suggested the use of dietary supplements like lactobacillus GG, clostridium butincon, yeast, colostrum. He said those supplements can suppress or eradicate the CD. He said that, if that does not resolve the situation, the only chance of eradication is by a bowel flora change. That requires pre-treatment with Vancomycin and then a washing out of the patient's flora by infusing with new flora from another person. He explained that the concept is that the incoming bacteria contain bugs that manufacture antibiotics that actually kill not only CD but also its spores. He said that treatment is 90-95 percent effective but is unpleasant and not commonly used in Australia.
Mrs Stroud underwent that treatment in March/April 2001. Dr Borody explained that it is more successful than antibiotic therapy because antibiotics do not kill the spores of the CD infection. He said the bacteria in normal gut flora do kill the CD spores although "we do not understand this mechanism of killing" (trans. p67).
Dr Borody saw Mrs Stroud on 2 May 2001 and again on 2 October 2001. He said that, when he saw her on 2 October 2001, he considered she had been cured of the CD infection by the infusions. He said he thought she would have been cured of the CD by mid to late May 2001.
In cross-examination Mr Pilkington explained to Dr Borody that, so far as he could find, Mrs Stroud had only ever had one positive CD test result: on 16 March 2000. Although Dr Borody had relied on a statement in a report of Dr Clarke (R4) saying that Mrs Stroud was found to be positive to CD toxin in April 2000, Mr Pilkington stated that was an error on the part of Dr Clarke. Dr Clarke himself was not so clear as to that. He maintained that he believed he had found more than one positive test. Dr Borody said that, even without that "road sign", he would not change his opinion. He explained that negative CD tests are "relatively useless" (trans. p79). Dr Borody said he had relied on a history of diarrhoea after discharge from hospital in April 2000, as given to him by Mrs Stroud and as also set out in Dr Clarke's report (R4 p3). Dr Borody did not agree with the proposition put to him by Mr Pilkington, that a normal colonoscopy was indicative of there being no problems with CD. He said you can have CD present in a person with carrier status or with recurrent diarrhoea and find no inflammation in the colon.
Dr Borody said that ongoing diarrhoea in an adult was unlikely to result from hepatitis. As to the issue whether Mrs Stroud still had diarrhoea on discharge from Canberra Hospital on 14 April 2000 - the day after her colonoscopy, Dr Borody explained that the preparation for a colonoscopy means that one would not expect diarrhoea for 24 or 48 hours after the colonoscopy.
Professor Gallagher had written a report dated 9 July 2001 (R1) in which he suggested that the positive CD test result might have been a false positive. He retracted that opinion in his third report (R3) and in his evidence. He agreed with a suggestion made by Mr Anforth that an adult person could be infected with CD spores but not have toxin present and not manifest symptoms. Dr Gallagher did not agree with Dr Borody's evidence that antibiotics do not always eradicate the CD spores. He said it was his opinion that the two courses of Vancomycin in March and November 2000 cured Mrs Stroud's CD, and that the symptoms of which she continued to complain were due to IBS. Professor Gallagher said he did not give any recognition to faecal enema or infusion as a curative technique (trans. p106). He said he did not regard faecal infusion as part of mainstream gastroenterology. When the published articles on the issue were pointed out to Professor Gallagher, he retracted his expressed opinion that they were not in quality journals and not in peer review medical literature.

Dr Clarke is also a gastroenterologist. He performed the normal colonoscopy on Mrs Stroud in April 2000. He said that, in his opinion, the findings at colonoscopy and the negative CD toxin tests on 4 and 10 April showed that the treatment Mrs Stroud had received for CD had been effective in eradicating or substantially suppressing the organism, in that it was not present at that time in sufficient numbers to generate measurable quantities of toxin.
Dr Clarke said that he believed Mrs Stroud's ongoing symptoms were due to IBS, which he said commonly follows acute infections, such as a severe diarrhoea illness or other gastrointestinal illness. He said emotional factors or stress and anxiety are common accompaniments. He said most people with IBS are able to get on with their lives, although their symptoms are often a nuisance.
Dr Clarke, in cross-examination, said he believed there were two positive CD tests when he wrote his report. He said he put a lot of effort into preparing the report and believed he did find more than one positive test. He did not look through the hospital file thoroughly while giving his evidence. The Tribunal invited him to do so but Mr Anforth said he was not aware of a second positive test and Dr Clarke, on a quick look, did not find a second one.
Dr Clarke agreed with Mr Anforth that, if Mrs Stroud had a recurrence of diarrhoea after antibiotic treatment for helicobacter pylori, this could be because those antibiotics had suppressed the bacteria that would otherwise have kept the CD in control, and had allowed an upsurge in the level of CD.
Dr Clarke stated that Mrs Stroud certainly had ongoing diarrhoea through 2000, and that diarrhoea is more likely to result from CD than from hepatitis.
Dr Clarke also accepted that Mrs Stroud's symptoms improved after the faecal infusion therapy but he said, "I am not totally convinced that the two are related".
Dr Clarke said faecal infusion is certainly a treatment of last resort and the great body of opinion is that it is not proven and has theoretical hazards because of the risk of cross-infection. He said "most of us" would not recommend it to our patients, even those with significant ongoing problems due to proven CD. He said he considered it "clinically careless" to use a faecal infusion for treatment of an infection that has not been proven to be present immediately prior to the treatment.
The Tribunal has some concern about the fact that there was very little evidence before it as to the symptoms and history Mrs Stroud reported to Dr Borody before he made a clinical diagnosis of "relapsing CD not responding to Vancomycin". There was also very little evidence as to the number of attendances on Dr Borody or the other measures adopted before Mrs Stroud and her assistant were trained in the procedure for faecal transplant or infusion.
On the other hand, the Tribunal found Dr Borody to be a well-qualified gastro-enterologist, who is particularly interested in the treatment of recurrent CD. He satisfied us that he is well abreast of current developments in the treatment of CD internationally, not only in Australia, and that his expertise is recognised internationally. We found him to be an impressive and persuasive witness. We accept his evidence based on his clinical skills and judgment, and find that Mrs Stroud was still suffering from CD when she saw Dr Borody in October 2000. Bearing in mind his evidence, and the evidence contained in Mrs Stroud's bowel diary, (A3) from 15 February 2001 to 31 March 2001, and the evidence to the effect that the infusion of faecal matter cured Mrs Stroud's CD symptoms, we find that she did continue to suffer with CD until after that treatment. We find that, by the end of May 2001, Mrs Stroud was no longer suffering from CD.
Thus we find that Mrs Stroud was still suffering from CD after August 2000 and that she continued to be in a recovery phase until 1 June 2001.
what is the explanation of symptoms from which mrs stroud claims to have been suffering since 1 june 2001?
All three gastroenterologists who gave evidence were of the view that the symptoms Mrs Stroud has reported since 1 June 2001 are due to IBS. Dr Turtle shared that opinion, but he considered that Mrs Stroud also suffered from post- infectious CFS. He had certified Mrs Stroud fit to return to modified duties on a part-time basis from July 2001. He said it was CFS and IBS which prevented her working full-time.
Dr Turtle said he has a special interest in CFS, is the patron of the ACT CFS Society, and frequently lectures on CFS. He disagreed with the view that Mrs Stroud was fit to return to work prior to June or July 2001, but he agreed that her IBS is not debilitating to the extent of being unable to work. He said the incapacity was due to CFS. He said Mrs Stroud had decreased stamina and increased fatigue when he saw her on 1 February 2002, and he attributed those symptoms to the stress of the compensation proceedings in combination with her post-infective CFS and IBS.
Mr Pilkington sought to establish that Mrs Stroud's symptoms after 31 August 2000 were due to anxiety state. He cross-examined Mrs Stroud at length about entries in the notes of her treating doctors prior to her attending Dr Turtle. On 11 February 2000, the day on which Mrs Stroud claimed that she first felt the symptoms which were subsequently diagnosed as due to CD and to a hepatitis-type infection, she attended Dr Choong. Later she attended other doctors before first seeing Dr Turtle on 13 March 2000.
Dr Choong on 12 February 2000 recorded (R7):
[Complains of] recurrent episodes of anxiety states lasting up to 3-4 days since last Oct.
She claims the condition is often precipitated by her husband's health & children's problems.
During attacks she claimed to experience palpitation, "adrenalin" rush, exhaustion etc. No sleep problem.

Mrs Stroud then saw Dr Choong again on 19 February 2000, another doctor at his clinic on 25 February 2000 and possibly 1 March 2000, and then Dr Choong again on 7 March 2000. On that visit Dr Choong noted:

Had panic attack last night BP 115/75
Anxiety state & tension – volatile.
Claimed the symptoms triggered by physical cond.(?)
Seeing Dr B White and C Andrews

During the period he was supervising Mrs Stroud's treatment, Dr Choong arranged for a number of blood tests and other investigations, but none of them came back positive. Mrs Stroud was not tested at that time for CD or hepatitis.

When Mrs Stroud was asked about the history of recurrent anxiety attacks recorded in Dr Choong's note, she said that she had only one anxiety attack and that it was provoked by anxiety about the non-delivery of a kitchen for which she had paid cash, and not by her family circumstances. She also said that she had reported some anxiety because she did not know or understand the symptoms which she was experiencing. In her own mind she thought that they could be due to anxiety.
The Tribunal did not receive in evidence any notes from Dr Vung or Dr Trinh. It did receive, as exhibit R8, a Canberra Hospital Emergency Department record relating to an attendance on 19 February 2000. Mrs Stroud had attended "re anxiety", reporting that she had seen Dr Choong a week previously for nausea and weight loss of three kilograms (in one week) and stressors.
In a second history taken at the hospital on 19 February 2000, Mrs Stroud is reported as having referred to "recent stresses with looking after her husband". She also reported having presented to her general practitioner one week previously for jitteriness, headaches, nausea, and vague abdominal pain. The record states "no vomiting". The note states that Mrs Stroud reported that her symptoms were resolving and that she was "virtually asymptomatic".
Chronologically the next record is a note for 25 February 2000, made by a doctor at Dr Choong's clinic. It recorded complaints of diarrhoea, which was watery and offensive, as well as nausea. The doctor suggested a test for giardia. Even before that date Mrs Stroud had seen Dr Trinh on 21 February 2000 and had reported multiple symptoms including increasing anxiety, palpitation and weight loss, loose bowel motions and abdominal pain. That note was referred to in evidence but was not actually put before the Tribunal.
The Tribunal does not accept Mrs Stroud's evidence that the only source of anxiety in her life shortly prior to 12 February 2000 was associated with the non-delivery of the kitchen she had ordered. We find on the balance of probabilities that Mrs Stroud had reported to Dr Choong, and to other doctors she saw after that date, that she did suffer anxiety in relation to her family responsibilities. However, we find that one cause of her anxiety was the symptoms she was experiencing of abdominal discomfort and diarrhoea. We do not find that the evidence as to some reports of anxiety, and attendances on doctors with complaints of anxiety, is sufficient to diagnose Mrs Stroud as having suffered from a pre-existing anxiety state prior to the onset of the symptoms which she began to experience on or about 11 February 2000. We note that the diagnosis of anxiety state was made by Dr Choong on 7 March 2000, some four weeks after the onset of the physical symptoms, and that Mrs Stroud is recorded at that time as having suggested that the physical condition contributed to her anxiety.
Mr Pilkington placed some emphasis on the fact that Dr Turtle's notes as to the first attendance by Mrs Stroud on him on 13 March 2000 did not refer to her having diarrhoea at that time, even though they did refer to loss of appetite and ongoing nausea. However Dr Trinh's notes recorded a complaint of loose bowel motions on 21 February 2000 and Dr Choong's notes of 25 February 2000 also refer to diarrhoea. During that first attendance, Mrs Stroud also gave Dr Turtle a detailed description of her bowel problems over the previous five weeks. That evidence seems to us to be perfectly consistent with Mrs Stroud's evidence as to the onset of the condition which was shortly to be diagnosed as CD, and which has been accepted by the respondent as a compensable condition.
The respondent sought to establish that Mrs Stroud's symptoms after 31 August 2000 did not result from CD, and that they were related to pre-existing anxiety. We have already set out our finding that Mrs Stroud continued to suffer from CD until the end of May 2001. There is nothing in the evidence of the medical attendances before 13 March 2000 which casts any doubt on that finding. Further, on 21 August 2000 Mrs Stroud first saw a psychiatrist, Dr Brian White, on referral from Dr Turtle. He obtained a history of Mrs Stroud having some unusual infections and being very run down. He said he had seen her in conjunction with her husband (who was a patient of his) earlier in the year and that, on 21 August 2000, "she had presented as having anxiety and depression secondary to the stresses of these infections and resultant physical debilitation" (emphasis added) (A12). Dr White wrote:
The onset of her condition had no features that indicated a psychological process as the primary illness. The onset was rapid and in the past she had not had stress- related bowel symptoms.
On the evidence we do not find that Mrs Stroud had an anxiety state prior to the onset of CD. Nor do we find that her symptoms after 31 August 2000 are attributable to an anxiety state.
In respect of IBS, we accept the evidence of all the medical witnesses and find that Mrs Stroud has, since 1 June 2001, suffered from IBS. There is agreement that the IBS developed at least in part as a consequence of the CD infection (see Borody p71, Gallagher p98, Clarke p133). It is not necessary to decide whether psychological factors also played a part in its development or whether they are simply a consequence of the various diseases.
Compensation is payable in respect of the IBS. Section 4(1) of the Act defines a disease as follows:
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; (emphasis added)

A disease is an injury as defined in s 4(1) and compensation is payable under s 14 if an injury results in incapacity for work. We find that the IBS was contributed to in a material degree by the CD.

As we have found that the CD resulted in, or contributed to, the IBS, it is not strictly necessary for a finding to be made as to the hepatitis. However, we will do so because it has some bearing on the CFS claim.
As set out earlier, the respondent, in its first reconsideration of own motion (28 September 2001), decided that the hepatitis condition should be accepted as compensable and that Mrs Stroud was entitled to compensation for incapacity in respect of the effects of that condition until 31 August 2000. All the medical witnesses had been informed of Mrs Stroud's elevated liver enzyme readings. On the basis of that material, all the medical witnesses agreed that Mrs Stroud had probably suffered from a viral hepatitis-type illness, as well as CD, during the early stages of her illness, until the liver enzymes were no longer elevated.
In accepting, in the reconsideration decision of 28 September 2001, the claim that the hepatitis was compensable, the delegate concluded that the weight of the medical evidence (namely, the reports of Dr Borody and Professor Gallagher) suggested that Mrs Stroud had probably acquired the hepatitis infection at work. The delegate noted that Dr Clarke also considered Mrs Stroud was at increased risk of contracting CD at work, although he did not agree that the increased risk was such that it was probable that Mrs Stroud had acquired the condition at work.
Dr Borody, in his report dated 14 February 2001 (A2), stated that he believed that Mrs Stroud had acquired her hepatitis condition at work. He wrote:
I believe that Mrs Stroud contracted both an unexplained hepatitis and the C difficile infection at Charmwood [sic] preschool as an assistant teacher.

In his evidence Dr Borody maintained the view that the hepatitis probably was contracted at the Preschool, although he did acknowledge that it was also possible that the hepatitis could have been contracted outside the workplace.

Mrs Stroud, in her statement of 30 June 2000 (T26 pp44-48), set out a number of incidents showing she was at risk of contracting an infectious disease from the children attending the Preschool. She gave examples of the lack of hygiene of a number of children attending the Preschool, including a child attending with wet pants and wearing the same clothes in which he had slept without being washed at home. Another child, a five year old boy arrived at school wearing a nappy. Children came who were so unhygienic that the staff had to teach them how to wash themselves as soon as they arrived, before playing with anything or anybody. Two children were unfamiliar with the use of toilet paper; another child defecated in his pants, and - if it had not fallen out of his underwear - would reach in and grab the stool and play with it with both hands. Mrs Stroud wrote that the Preschool also had a sibling of a child who suffered from Hepatitis A. She added that, during the week she became sick, a boy defecated a gross looking stool in his pants and came up to her to be cleaned up, with his pants around his ankles. She said that in cleaning him she came in contact with his clothing and stools. Another girl, whose mother was in and out of hospital with suspected liver problems, arrived with a heavy cold and nostrils filled with green mucus. Mrs Stroud said that she had to comfort her closely and, during that time, the child sneezed over her, covering her in mucus. Mrs Stroud pointed out in her statement that, during snack time, the staff ate with the children, and often the children asked for help to open their food packets or peel their fruit. The staff helped the children and continued eating their own food. She said that recently she had paid a short visit to the Preschool and within 10 minutes had seen two children place their hands down the inside and back of their pants, scratch their anuses, and then continue activities using preschool equipment with the same hands.
In his report of 28 July 2000 (T33) Dr Clarke wrote that the viral (hepatitis- type) infection could have been acquired at Mrs Stroud's place of employment. He did not qualify that in any way. We find it surprising that his unqualified statement was regarded as reason to reject Mrs Stroud's claim to have hepatitis accepted as a compensable condition. In his evidence, at transcript pages 132 and 137, Dr Clarke accepted that Mrs Stroud's work probably did increase her risk of acquiring an infection such as hepatitis.
On this evidence we think it probable that Mrs Stroud acquired not only the accepted CD, but also the hepatitis-type illness at her Preschool. We find that it was contributed to by Mrs Stroud's employment and thus it is a disease and an injury under the Act.
does mrs stroud also suffer from cfs?
In his report A5, Dr Turtle wrote at page 4:
There is no doubt, though that Mrs Stroud does still have significant symptoms of fatigue with loss of concentration and stamina as well as of variable nausea and altered bowel function. The most probable cause for these symptoms is a post infectious Chronic Fatigue Syndrome, whether specifically due to the Clostridium dificile [sic] or the viral hepatitis is impossible to be certain. That her symptoms and condition could be due to a depressive illness is unlikely but possible. As previously stated, Dr White has given the opinion that her initial illness had no hallmarks of a psychogenic cause. It is possible that a secondary depressive illness has developed, but, as an expert in Chronic Fatigue Syndrome and it's [sic] differentiation from Depression, I would state that the symptom complex is much more consistent with post infectious Chronic Fatigue Syndrome than Depression. It is also appropriate to state that either diagnosis would be a direct result of her employment initiated initial illness.

Dr Clarke, at R4 paragraph 7, wrote:

Many acute infections, particularly viruses, can be followed by a period of prolonged fatigue. It is also clear that psychological factors often play a role in contributing to a post-viral fatigue syndrome. The symptoms the applicant experienced from that illness could certainly be considered to be compatible with post-infectious fatigue syndrome.

Dr Borody in his report, A8 page 2 paragraph k, wrote:

Mrs Stroud was last reviewed by me on 2/10/01. She reported that her bowels were not completely improved soon after the faecal infusion but progressively improved. There was ongoing burbulance and wind at times but the symptoms were "nothing like that compared with what it was initially". She did complain of ongoing fatigue although this has been improving. She has been able to return to part time work. At that time I felt she may have had Irritable Bowel Syndrome, perhaps post-infective.

We find on that evidence that Mrs Stroud has been suffering from fatigue symptoms associated with her post infectious state.

We do not, however, find that the most appropriate description of those fatigue symptoms is "chronic fatigue syndrome". We prefer to describe them as symptoms of "post infectious fatigue syndrome" as that explains the origin of the syndrome. As Mr Pilkington conceded at transcript page 155, "[I]f the Tribunal concludes that the hepatitis does have a workplace connection, then so does the chronic fatigue." We find post infectious fatigue syndrome to be a compensable disease.
is faecal infusion a treatment which it was reasonable for mrs stroud to obtain in the circumstances?
Section 16(1) of the Act provides as follows:
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

Mr Pilkington submitted that the faecal infusion was not reasonable treatment, on the basis of Dr Clarke's opinions set out in his report of 18 December 2001 in which he wrote that it was a "controversial experimental therapy" not widely accepted by the medical community. Mr Pilkington relied on the decision of Re King and Comcare (1998) 28 AAR 311 where the Tribunal at p316 said:
. In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would … ordinarily be regarded as unreasonable. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree. (error corrected by deletion of word 'not')
Dr Clarke's view is somewhat puzzling in view of the fact that, in his report (R4), he set out at pp3 and 4 a history of Mrs Stroud continuing to suffer very severe diarrhoea from April to September and October 2000, when she saw Dr Borody who recommended the "faecal transplant" therapy. Dr Clarke noted that she was reluctant to undergo that treatment and elected instead a prolonged course of Vancomycin therapy to try and eradicate the CD. According to the history noted by Dr Clarke, that was not successful and it was only after two courses of faecal infusions that Mrs Stroud began to make "slow but steady improvement", which had been maintained.
We find that the faecal infusion treatment recommended by Dr Borody was treatment which it was reasonable for Mrs Stroud to obtain. Dr Borody regards that treatment as the last resort. That is clear from his reports (A2, paragraph 6; A8, pages 4 and 5), and he said so in his evidence. It is also clear that, after Dr Borody discussed this treatment with Mrs Stroud in October 2000, she decided that she would prefer to try other options first, and that is why she had a second attempt at treatment with Vancomycin. Eventually, because of her bowel disorder being so troublesome, Mrs Stroud decided to undergo that unpleasant treatment. Since then she has reported a considerable improvement in her symptoms. All the medical practitioners seem to be of the view, and we have so found, that she no longer has CD but that she is now left with some symptoms of IBS and a post-infectious fatigue syndrome. In those circumstances we find that the faecal infusion treatment has done what it was intended to do. Its success must be one indicator of its reasonableness.
Another relevant issue must be the acceptance of faecal infusions by the medical profession. Even though Dr Borody may still be one of a minority in Australia using or advocating the faecal infusion treatment, one could not find that his "views are at odds with the rest of the medical profession". The material Dr Borody put before the Tribunal includes:
(i)An account of the use of faecal infusion treatment in March 1999 by a Swedish doctor, Dr Arvid Bjoerneklett, a specialist in colon problems at the Norwegian University hospital in Oslo. (From the CD Support Group Site attachment to A2).
(ii)Dr Borody's editorial (attached to his latest report of 14 February 2002 (A8)), in the American Journal of Gastroenterology Vol. 95, 11 2001, headed "Flora Power" – Fecal Bateria Cure Chronic C. difficile Diarrhea. In that editorial Dr Borody summarises eight reports of the use of this treatment, referenced as articles 3-10 to his editorial, and notes its "dramatic and curative effect", with an overall cure rate of 60 of 67 treated patients. Dr Borody, in the editorial, commented that generally those patients who failed to be cured were treated late and died from overwhelming pseudomembranous colitis.
(iii)The eight reports (reference numbers 3-10) relate to reports published in the following journals: Surgery, 1958; American Surgery, 1981; Lancet 1989; what appears to be a Norwegian Journal in 1991 and 1998; Medical Journal of Australia, 1994; and the Scandinavian Journal of Gastroenterology in 1998.
(iv)The report which prompted Dr Borody's editorial was published in the American Journal of Gastroenterology, 2000, reference 1 to Dr Borody's editorial.
When Dr Clarke and Professor Gallagher were taken to those published articles, they agreed that the journals were reputable peer review journals.
Professor Gallagher and Dr Clarke both said that they would not use the treatment. Dr Clarke added that he did not consider it to be a reasonable treatment because there were no scientific double blind studies showing it to be reasonable. Secondly, he felt it was not reasonable to use it when Mrs Stroud had not shown a positive CD test result shortly prior to the decision to undergo such treatment. We do not accept that only treatment which has been shown to be effective in a scientific double blind study is reasonable medical treatment. We considered that Dr Borody answered that point very well. He said, at transcript page 74:
Well, it was usually taken in the later eighties and nineties that there are several levels of evidence-based medicine. And the first level – the highest – is if you have double blind control trials done such that you have faecal transplantation in one group and you'd have a sham transplantation in another group. And such a therapy has not been carried out because the numbers of clostridium difficile patients are too low to be able to acquire enough numbers to be able to carry out such a trial. Nonetheless, evidence based medicine level 4 is case reports. And we must remember that nobody has ever done double blind control trials in the removal of an appendix for an appendicitis. This is an unproven experimental therapy equivalent to faecal implantations, as is blood transfusion. Have we ever heard of someone given nothing – placebo – versus blood to a bleeding patient?
And if we look at the case reports, what do you say they show?---Around 90 per cent eradication of c.difficile, and that's well documented, with spores absent.
As to Dr Clarke's second point, that the treatment should have been preceded by a pathology test seeking the C. difficile toxin, Dr Borody had not been asked why he did not administer that test. However, he did explain that the CD spores do not produce the toxin which gives a positive test result. We infer from his evidence that he considered that the clinical picture presented to him by Mrs Stroud was sufficient indicator of the fact that she was still suffering from CD. In any event, as she seems to have made a clear and significant improvement since the treatment was undergone, we find that the treatment was reasonable.
are the dietary supplements treatment which it was reasonable for mrs stroud to obtain?
As to the supplements, we see that certain supplements to encourage the maintenance or production of healthy gut flora were suggested by Dr Borody in his first letter to Dr Turtle (A1) 27 October 2000. Dr Borody was not asked whether he considered it appropriate for Mrs Stroud to continue to take those supplements, even though the CD has apparently been cured, but while she is still, in his opinion, suffering from IBS and fatigue- type symptoms. He said, at transcript page 70, that some people do find help in certain supplements, but that he is not an expert in that field and does not have experience using supplements.
Dr Turtle, who is still prescribing the supplements, referred to the use of supplements in his report of 27 January 2002, when referring to treatment prior to the faecal infusion. He explained the purpose of prescribing each supplement. He wrote (A5 p2):
Various dietary and nutritional treatment regimes were employed to try and improve her bowel symptoms as well as her general fatigue condition. These have included the Probiotic Lactobac, the pre and probiotic Replete, Brewers yeast to help restore gut function, Pharma liv, Glutathione and liver formula to improve her liver function, Minoporph to correct the mineral disturbance caused by the diarrhea, DEF and Bepep to improve digestion, Ultramaintain, vitamin C and Glutamine to help repair the gut wall, SF88 and co-enzyme Q 10 to help restore mitochondrial energy physiology, and IMI B forte to help energy metabolism. Results have been mixed with some improvements, including worsening symptoms off the treatment, but without significant help.
Dr Turtle is still prescribing the use of pre and probiotics and Glutomine and Ultra maintain. In November 2001 he also prescribed Minoporph, CQ10, SF88 and liparic acid for gut repair. He has expertise in the use of supplements. None of the gastroenterologists seemed to have that expertise. We find that the supplements which have been prescribed are treatment which it was reasonable for Mrs Stroud to obtain. We note that Dr Turtle in his report mentioned that the results of using the supplements have been mixed. We expect that, for the future, he will consider what have been shown to be the most effective supplements, and will prescribe the minimum supplements necessary to maintain and improve Mrs Stroud's current much improved state.
capacity for work
At the Tribunal's request we received a statement showing the hours worked by Mrs Stroud under her graduated return to work (A9). We note that she commenced a part-time return to work at Hawker College on low stress duties with no contact with infants in July 2001, after the successful faecal infusion treatment. She then increased her hours until she was working three and a half hours a day, three days a week, on modified duties as certified by Dr Turtle. In January there were school holidays so Mrs Stroud was not required to work. She said she was exhausted after pushing herself too much up to Christmas. She also said that she had given up taking her supplements, but she resumed them due to her exhaustion. Mrs Stroud was then certified unfit for work from 1 February to 22 February 2002, a period which covered the hearing of this matter. Dr Turtle was asked to explain the change in certification. He replied (trans. p123):
She was fit to be working, I think, it might have been six hours a week or a small number of hours [it was in fact 10½ hours] and she was struggling at that point in time with those hours. And her condition has not improved at all since then and in fact, with the considerable extra stress of these proceedings, which is a known aggravation for chronic fatigue syndrome, her condition has [been] worsening sufficiently that she's not currently fit to return to work.
Is it, in your view, the stress of these proceedings which has led to her being unfit currently?---It is an element, it is a factor, it is not – it is not the only issue.
Is it a major Factor?---No. I think if these proceedings were all wrapped up today, the underlying post-infectious chronic fatigue syndrome is still going to be present. She, you know, she will be able to return to a sort of a part time graduated return to work type program, you know, at some point in the next – in the next couple of months hopefully. But she's not going to instantly recover, I would assume, as soon as these proceedings are finished. It's not the nature of the condition.
Your expectation is though that once these proceedings are finished, she should, within a reasonably short period, be fit to resume the same sort of hours that she was working before Christmas, is that right?---Yes. Within – within a couple of months after the resolution of these proceedings and these stresses, I would – I would expect that she should be able to be returning to work on that sort of a part time basis.
So if you took these proceedings out of the equation?---Yes.

Dr Turtle did not describe any aggravation of symptoms which caused him to certify Mrs Stroud totally incapacitated from 1 February 2002. We found his evidence and that of Mrs Stroud on the issue of her incapacity in February 2002 to be unconvincing. We do not accept that Mrs Stroud suffered any relapse in her compensable conditions for the month of the hearing. While we can accept that she felt exhausted at Christmas time, we find that Mrs Stroud could have resumed work after the rest over January were it not for these proceedings.

We consider that, putting aside Mrs Stroud's involvement in the litigation, she would have been able to continue working the ten and a half hours a week she had been working from November to December 2001. Stress or anxiety about compensation litigation is not compensable under the Act. We find that, from 24 July 2001 to 21 December 2001, Mrs Stroud had the capacity to work the hours she did work and that from 22 December 2001 compensation is payable on the basis that she continued to be able to earn as if she had worked ten and a half hours per week or such increased hours as she may have worked.
The decision under review will be set aside. In substitution the Tribunal will vary the determination of 22 June 2000 to provide:
(i)Mrs Stroud is entitled to compensation for incapacity for work under s 19 of the Act for all periods she did not work between 11 February 2000 and 23 July 2001.
(ii)From 24 July 2001 to 21 December 2001, Mrs Stroud is entitled to compensation calculated under s 19 on the basis that she was able to earn the amounts she earned for the hours she worked as set out in exhibit A9.
(iii)From 22 December 2001, Mrs Stroud's entitlement to compensation is to be calculated on the basis that she continued to be able to earn the amounts she would have earned if she had worked 10½ hours per week, unless she in fact worked more than that in any week, in which case her actual earnings are to be taken into account.
(iv)The costs of Dr Borody and of the faecal infusion treatment and the cost of supplements prescribed by Dr Turtle are compensable under s 16 of the Act.
The Tribunal will also order under s 67(8) of the Act that Mrs Stroud's costs of these proceedings be paid by Comcare.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Air Marshal I B Gration AO, AFC, RAAF (Rtd), Member and Dr M.D. Miller AO, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  18-19 February 2002
Date of Decision  15 May 2002
Counsel for the Applicant        Mr A. Anforth
Solicitor for the Applicant         Maliganis Edwards Johnson
Counsel for the Respondent    Mr S Pilkington
Solicitor for the Respondent    Phillips Fox