Stubbings and Comcare
[2005] AATA 81
•25 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 81
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1057
GENERAL ADMINISTRATIVE DIVISION )
Re IRIS STUBBINGS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 January 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.....................[Sgd]...........................
RG Kenny
Member
CATCHWORDS
WORKERS COMPENSATION – benefits and entitlements – workplace aggravation of pre-existing asthma and sinusitis – no permanent impairment – compensation not payable for permanent impairment.
Safety, Rehabilitation and Compensation Act 1988 s4, 14, 24, 27, 28
REASONS FOR DECISION
25 January 2005 Mr RG Kenny, Member Background
1. Iris Stubbings was born on 2 February 1950 and has been employed by the Department of Defence in various capacities since 1981. She suffers from asthma and sinusitis. On 13 January 1998, Comcare (the respondent) accepted liability in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for aggravation of her pre-existing asthma and sinusitis. Initially, liability was accepted for the period from 1 December 1995 until 30 April 1998. In subsequent determinations, compensation was paid for short periods of incapacity in July 1999 and July 2001. On 9 August 2001, Mrs Stubbings made a claim for permanent impairment in accordance with section 24 of the Act. On 28 November 2001, the respondent rejected her claim on the basis that the level of impairment attributable to her conditions was less than the threshold level provided for in section 24 of the Act. On 22 October 2002, the decision that Comcare was not liable in relation to permanent impairment was affirmed on the basis of the level of impairment, as well as an absence of contribution to the condition from Mrs Stubbings’ employment and because she had not taken all reasonable rehabilitative treatment for her impairment at that time. Mrs Stubbings sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 2 December 2002.
Hearing
2. At the hearing, Mrs Stubbings was represented by Mr R King-Scott of counsel, and the respondent was represented by Mr D O’Donovan of counsel. Material prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) was taken into evidence as exhibit 1 (the T Documents – T1-T43) as well as the following:
exhibit 2a medical report, dated 20 January 2003, by Dr Robert Edwards, thoracic and sleep physician;
exhibit 3 medical reports, dated 8 February 2002, 24 September 2003 and 1 March 2004, by Dr Graeme Lim, ear nose and throat surgeon;
exhibits 4-6 statements, dated 24 January 2003, 13 May 2003 and 27 November 2003 by the applicant;
exhibit 7a non-economic loss questionnaire completed by the applicant on 14 June 2004;
exhibit 8a letter, dated 9 April 2003, by the applicant;
exhibits 9-10 email messages sent by the applicant on 30 November 2004 and 6 December 2004, respectively;
exhibits 11-13 medical reports, dated 9 May 1985, 19 June 1985 and 11 March 2004, respectively, by Dr Graham Solley, allergist;
exhibits 14-15 medical reports, dated 7 November 2003 and 2 September 2004, respectively, by Dr William Oliver, thoracic physician;
exhibit 16a medical report, dated 25 January 1996, by Dr Walter Mirosch, physician;
exhibit 17a bundle of medical reports;
exhibit 18lung function test results, dated 5 September 1997, provided by Dr Barry Hoffensetz; and
exhibit 19a project proposal, dated 3 May 1995, completed in part by the applicant.
Issues and Legislation
3. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. In sub-section 4(1) of the Act, the term injury is defined to include a disease and, in turn, that term is defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the person’s employment. The respondent has accepted that it is liable to pay compensation to Mrs Stubbings for the periodic aggravations of her underlying asthma and sinusitis and has made compensation payments to her in the past when these have caused her to be incapacitated for work. The respondent does not dispute that liability.
4. The issue for determination is whether the respondent is liable to pay compensation to Mrs Stubbings for permanent impairment under section 24 of the Act. Sub-section 4(1) of the Act defines impairment as “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”. The term permanent is defined as meaning “likely to continue indefinitely” and this must be read with sub-section 24(2) of the Act which is set out below. For Mrs Stubbings’ claim to succeed, there must be a worsening of her underlying asthma and sinusitis to a degree which is likely to continue indefinitely; and that degree of worsening of her condition must be related to her employment.
5. Section 24 of the Act, in so far as relevant, reads:
“Section 24. Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(9) For the purposes of this section, the maximum amount is $80,000.”
6. The approved Guide referred to in section 24 of the Act is the Guide to the Assessment of the Degree of Permanent Impairment for which provision is made in section 28 of the Act. Where the requirements of section 24 have been met, compensation may also be paid for non-economic loss in accordance with section 27 of the Act.
History of Mrs Stubbings’ Condition
7. Mrs Stubbings began working for the Department of Defence in 1981 as a cleaner. She was hospitalised with acute asthma for periods in 1984, 1985 and 1986 and returned to work on each occasion. In 1987, she suffered a neck injury in a motor-vehicle accident and was unable to continue with her former duties because she was wearing a brace. She was redeployed as a telephonist until she was relocated to RAAF Amberley in 1989 where she worked in Building 410. She remained in reasonably good health until 1992. She had joined a gym, took frequent walks and was able to enjoy an overseas holiday. She underwent surgery for her sinus problems in 1992.
8. Building 410 at Amberley had three levels. For twelve months, she worked on the ground floor which was a hangar for aircraft maintenance. She then moved to the second floor where she stayed until November 1992 and then worked on the top floor of the building. During that time, she was exposed to an ineffective air-conditioning system as well as fumes from chemicals associated with aircraft use and maintenance and began again to experience symptoms. In January 1996 and in June 1997, she was hospitalised. In September 1997, she was moved to Building 382 which was opposite the main runway. There, her condition improved for a time but she again suffered from asthma and she believed that this was precipitated by the fumes from aircraft fuel Avtur. In 1998, after a workplace assessment, she was relocated to the RAAF School of Fire and Security Logistics which was some 5 kms from Amberley. Natural ventilation was available there for some of the time and, for a period, her condition improved. However, again, she began to suffer symptoms and she believed that this was a reaction to chemicals used in fire training and oils used for cleaning rifles. She was hospitalised for asthma in June 2001 and October 2004 and underwent further treatment for her sinus problems in November 1996 and September 2003.
9. Mrs Stubbings now works from her home which has been fitted out with security measures and in which she has a computer and facsimile machine. She is able to work her own hours and attends the RAAF fire school when she is able to. Typically, this is in the early morning and she stays until the building warms up and the air-conditioning system is activated. She then returns to her home.
10. Mrs Stubbings was treated by Dr Walter Mirosch, physician, in 1984 after an acute episode of asthma and, in a report dated 13 January 1984, he recorded a statement by her that she had asthma some 14 years previously. Mrs Stubbings denied that she had so advised him and said she might have told him that she had “the flu’”.
11. When she suffered from asthma in the 1980s, Mrs Stubbings did not, at the time, implicate chemicals in the form of floor strippers and sealers that she was using in the workplace as being responsible. She did not do so until years later. She said that this was because she had not associated her condition with the chemicals at that time.
12. After her hospitalisation in 1996, Mrs Stubbings made a claim for compensation and related it to the air-conditioning system at work. She nominated a period of three weeks prior to her claim as being the time when the air-conditioning was not working properly but said that she had been complaining of it earlier than that. She denied that her asthma was related to infection but believed that, if there was infection, she would have contracted that through the air-conditioning systems at her work. Prior to hospitalisation in 1997, Mrs Stubbings travelled to Newcastle and, whilst there, contracted an illness but she denied that she had deteriorated on her return to Brisbane and she denied that she had a fever as a result of the illness.
13. Mrs Stubbings agreed that she can experience asthma whenever she is exposed to a trigger and that the triggers are everywhere. Her most recent period of hospitalisation, in October 2004, was triggered by a range of factors including the presence of smoke in the atmosphere as a result of bush-fires.
14. Mrs Stubbings’ usual maintenance for her condition involves the use of puffer sprays and, when she suffers from a serious exacerbation, she takes prednisone which, when taken for long periods, has significant side effects. When in hospital, she takes cortisone intravenously.
15. Mrs Stubbings is able to care for herself in her own home where she lives alone. She does not have chemicals there. She prepares her own meals but avoids tasks associated with fumes or smells such as mowing her lawn. Her home is fitted with a call button which provides an emergency link to an ambulance station in the event that she suffers an acute attack of asthma. It also activates the phone of a friend who can provide her with assistance if required. This has been done once in 2001. She has her own lung-function testing equipment at home and has been using this on a daily basis since 1996. She said that, when she is on leave from work, on holidays or on weekends, her peak flow readings improve and, on work days, the result at the end of the day is always worse than the morning reading.
16. Mrs Stubbings was referred to her claim for non-economic loss and her description of her symptoms and of the limitations on her activities. She said that the description given represented her situation at its worst and that she can also have good days. She said that she experiences coughing, which can occur during the day or night, associated with her condition.
Medical Evidence
§Dr Barry Hoffensetz
17. Dr Hoffensetz has been Mrs Stubbings’ general practitioner since October 1978. She presented to him with acute episodes of asthma in 1984, 1985 and 1986 and these were associated with chest infections. Dr Hoffensetz was not aware of any episode of asthma prior to April 1984. From 1986 to 1995, she suffered intermittent bouts associated with viral illnesses or chest infections. Since 1995, she has suffered multiple bouts of recurrent severe asthma and sinusitis. Dr Hoffensetz said that Mrs Stubbings’ sinusitis and asthma were not caused by her employment but were aggravated by a range of factors such as viral sources and environmental triggers including those in the workplace. He agreed that, because of her underlying asthma, she had a propensity to suffer from acute attacks from sources other than her employment. He said that she required hospitalisation for asthma on several occasions and treatment with prednisone and, whilst in hospital, cortisone by intravenous means. Dr Hoffensetz described her asthma as being permanent for about three or four years in the sense that she has been required to use medication to control her condition over that period. He arranged for specialist treatment for her sinus problems in 1992 with Dr Graeme Lim, ear, nose and throat surgeon and, for asthma, Dr Mirosch and Dr Ian Brown, chest physician.
18. Dr Hoffensetz was referred to an episode of asthma requiring Mrs Stubbings to be hospitalised in January 1996. He acknowledged that Dr Mirosch had referred to viral infection as the trigger on that occasion and he agreed that it would not be related to work. He said that, in 1997, the work-place had become implicated in the development of her symptoms. He said that the removal of Mrs Stubbings from one building to another and then off the base had not prevented the return of symptoms of asthma but, rather, she would experience an initial improvement for a while and then deteriorate due to triggering mechanisms in the new buildings. In 1997, he had taken daily spirometry readings which demonstrated a pattern of decline in capacity during the working day and an overall decline during the working week in her asthma and sinusitis. He said it was also noted that the symptoms improved in periods when she was not working over the weekends or on a break from work. He also said that these tests were dependent on the individual and that a person could inhibit their breathing so as to produce lower readings. He also agreed that a pattern of declining readings each day and over a week was what Mrs Stubbings wanted to demonstrate.
19. Dr Hoffensetz said that Mrs Stubbings had been in hospital in 2001 and in 2004 but that, on many occasions between those times, she had taken prednisone to achieve control and avoid hospitalisation. He said she would contact him to ensure that it was appropriate to use that drug. He said that she was compliant with the use of her medication and that the condition was well controlled. He agreed that the presentation in 2004 was related largely to smoke in the atmosphere from bush fires. He said that bronchial spasms were easily triggered in Mrs Stubbings, that the triggers for her condition were generally present in the environment and that, for example, the smell of cigarette smoke might be sufficient to bring it on. He said that if she never went to work her condition would continue and not improve.
§Dr Robert Edwards, Thoracic Physician
20. Dr Edwards examined Mrs Stubbings on 3 November 1997 and 11 March 2002. In his 1997 report in, he recorded that Mrs Stubbings had suffered from asthma since 1986 and that she began to have problems because of the air-conditioning in the workplace and developed wheezing and breathlessness in 1995 with hospitalisation for acute asthma in 1996. In that report, Dr Edwards recounted various peak flow rates that had been taken by Mrs Stubbings on a regular basis. These indicated that, when she was away from work, her peak flow rates varied between 450 and 470 litres per minute (l/m) but, when she went back to Building 410, they were in the range 330 to 400 l/m and on the weekend would be consistently above 400 l/m. He said that her peak flow rates increased to 400 l/m to 500 l/m after her removal to another part of the building. When he saw her, she had been moved to the new building and her peak flow rates at that time were above 500 l/m. He concluded in that report that her asthma appeared to be directly related to Building 410 in which she had been working.
21. In his second report of 14 March 2002, Dr Edwards noted that, since he last saw Mrs Stubbings, she had experienced further problems at Amberley and had been moved off the base. He said that her peak flow rates continued to be unstable and varied between 350 and 450 l/m. He noted Mrs Stubbings’ belief that her asthma was triggered at that time by any air-conditioning system and by any insecticide or other aerosol sprays or by cleaning agents. He described her post-bronchialodilator values at that time as being similar to those he recorded in 1997 but, because of their variability, he considered that her airway function was less stable. He concluded that the work environment was continuing to aggravate her asthma and that it would probably be in her best interest to stop working in that environment.
22. Dr Edwards gave results of lung function tests but amended these in a subsequent report dated 30 January 2003. There, he allocated 25% under table 2.1 of the Guide and 20% under table 13.1 of the Guide.
23. No reference was made by Dr Edwards in his reports to the episodes of asthma in 1984 or 1985 or to the presence of any viral infections at the time of the onset of asthma episodes then or in 1986. In his evidence, he said that he had not been told of these matters by Mrs Stubbings. He said that viral infections are a common trigger for an episode of asthma. He said that asthma usually responds well to treatment and, in the case where there is an identifiable irritant, the patient usually returns to normal functioning when that is removed. He said that regular consistent exposure to a trigger can sensitise the person to other triggers.
24. Dr Edwards said that the presence of asthma from 1984 onwards indicated that she had a high susceptibility to asthma and one which pre-existed the further development of symptoms at Amberley. He said that the absence of symptoms from 1989 to 1992 did not exclude Building 410 as being a factor in aggravation because it may have taken time for sensitisation to take place.
25. When referred to the continuation of the condition while working 5 kms away from the Amberley base, Dr Edwards agreed that this suggested a deterioration in her underlying asthma. He said that he was puzzled by the level of Mrs Stubbings’ symptoms over the last two years and said it was unusual that she improved when out of the building and off the base and then had a later deterioration. He said that this meant that not all of her impairment had an occupational relationship. He concluded that 20-25% of her impairment was related to work.
§Dr William Oliver, Thoracic Physician
26. Dr Oliver saw Mrs Stubbings on 7 November 2001 and provided reports dated 20 November 2001, 7 November 2001 and 2 September 2004. He conducted lung function tests which revealed that her lung capacity was in the normal range with both FVC and FEV1 measurements. He noted that she had taken the medication Seretide on the morning of his test and this meant that the results achieved were equivalent to a post-bronchodilator test. Dr Oliver said that this was the appropriate test to use for comparison purposes.
27. Dr Oliver said that Mrs Stubbings had well established asthma before she began working at Amberley and that her employment had not caused it. He said that the nature of the irritants to which she was exposed were not agents known to cause asthma and that, in any event, there needed to be close and long term exposure to any causal agent, such as if someone was working with chemicals inside a tank, for them to cause the condition. He said that the condition in Mrs Stubbings reflected a natural history of deterioration not unusual with asthmatics.
28. Dr Oliver conceded that there was aggravation of the condition by irritants such as Avtur and oils in the work place. However, he said that they would not cause a permanent aggravation of the condition. He noted the 1997 tests of Dr Hoffensetz which reflected deterioration during a day at work and over a week at work. He agreed that this indicated aggravation due to workplace factors at that time but said that, three years later when he measured her functions, they were normal. He was not aware of any studies on whether low dose exposure over a period can result in permanent impairment but said that the removal of the irritant which caused aggravation would lead to improvement. He said that Mrs Stubbings was able to achieve normal respiratory function after being removed from various buildings at Amberley and he did not believe there was any permanent aggravation of her condition because of her employment.
29. Dr Oliver said Mrs Stubbings had “twitchy airways” which meant that she was sensitive to mechanisms such as dry air, cold air and various odours and would have exacerbations of asthma regardless of where she was. He said that her peak flows which measured 320 – 400 l/m in 1997 represented reasonable stability and he said that those figures were still achieved. He described that level of function as being very satisfactory.
30. Dr Oliver said that, in treating asthma patients, it was common to draw an asthma action plan with a standard peak flow of, say, 400 l/m and to accept a 20% variation on either side of that reading. In the event it fell to 320 l/m, this would indicate the need for oral steroids and if it fell below 200 l/m this would require emergency intervention.
31. Dr Oliver said that under table 2.1 of the Guide, the appropriate rating was zero and that, under table 13.1, the limitations on daily living would attract an impairment of 20%.
§Dr Graham Solley, Allergist
32. Dr Solley saw Mrs Stubbings in 1985 and described her as having an established asthma condition for at least two years at that time. He said that he was dependent, in preparing his reports, on what he was told by Mrs Stubbings and she told him then that she thought it was triggered by the weather and aerosol sprays. Tests conducted in 1985 revealed a flow rate of 320 l/m, and FEV1 of 2.2 ltrs and FVC of 3.2 ltrs. There was no significant change after Ventolin was administered.
33. Dr Solley saw her again in March 2004 when tests were also conducted and these revealed FEV1 of 2.05 ltrs and FVC of 2.9 ltrs as compared with predicted values of 2.4 ltrs and 3 ltrs, respectively. Dr Solley said that these ratings would indicate 15% incapacity under table 2.1 of the Guide and he described the overall condition as being mild.
34. Dr Solley said that many of the exacerbations of asthma in the applicant had been as a result of viral infections but that other forces such as fumes and weather changes would have had an impact. He said it was hard to agree that work was a contributor to her condition because of the number of occasions when it was triggered by non-work forces and he said that the spirometry tests were “not too bad” in her case.
35. In making an assessment under table 13.1 of the Guide, Dr Solley nominated 50% in his report. However, in evidence, he said that only a small component of this, perhaps at the level of 20%, was due to her conditions as there were other contributors to the rating under table 13.1 such as her unwillingness to carry out activities away from her home.
36. Dr Solley said that, when he conducted the tests on Mrs Stubbings in 2004, she had been taking prednisone for the previous four days but he said that the findings that Dr Oliver had made were consistent with his. He said that Dr Oliver’s reports revealed ratings in the normal range and he said that she should be able to get on with everyday activity in that situation. He conceded that she would need to have medication in the form of an inhaler to do that on a long term basis.
37. Dr Solley was referred to the record of readings of the peak flows that Mrs Stubbings had taken for herself. For the reading on 7 January 2003, measures were provided in the morning and the afternoon and the post-bronchodilator readings were 450 and 390 l/m, respectively. He described the morning reading as excellent and the evening reading as reflecting mild asthma. He referred to the other readings and to the reductions that occurred from morning to afternoon and he described them all generally as being minor variations. He also noted that, for each entry, reference had been made by the applicant to what she believed to be the trigger for particular manifestations of her asthma. By way of example, he referred to entries in March 2003 and to the exposure to Avtur fumes on 4 and 5 March with the presentation of some symptoms on that day but with severe symptoms on 7 March 2003. Dr Solley said that if the Avtur was the triggering mechanism for the severe bouts, it would have occurred almost immediately on exposure and not two or three days later.
Submissions
38. Mr King-Scott submitted that the factors in Mrs Stubbings’ employment which had been responsible for the aggravation of her asthma and sinusitis were exposure to a faulty air-conditioning unit while working at RAAF Base Amberley in 1996 and exposure to a range of chemicals there and at other defence facilities to which she has been redeployed from time to time. He submitted that the aggravation of the condition had reached the stage where it is permanent and that she met the requirements of section 24 of the Act. He accepted that Mrs Stubbings is now sensitive to a wide range of asthma triggers which arise both in and out of the workplace but maintained that the factors in the workplace were responsible for her current serious symptoms. He submitted that, if it was not possible to calculate the extent of the contribution from the workplace, then all of the aggravation should be recognised for compensation purposes.
39. Mr O’Donovan submitted that Mrs Stubbings was a long term asthmatic and had experienced episodes of the condition from 1970 onwards. He submitted that this underlying condition had not changed because of any association with the workplace. He conceded that she experiences aggravation of the condition from time to time but submitted that the triggers for the majority of these episodes of aggravation came from the environment generally and could not be identified as solely related to employment. In particular, he referred to various viral infections and illnesses that she had suffered at the time of the onset of the asthma attacks. Mr O’Donovan noted the contention that circumstances applicable to Building 410 in which she worked in Amberley were responsible for aggravation of her condition. However, he referred to her successive relocations to another part of the base, to a building off the base and then to her home environment, where she now is based, but with no long lasting improvement in her condition. He submitted that the inability of Mrs Stubbings to venture into shopping centres, to drive in air-conditioned vehicles or enter air-conditioned buildings demonstrated the generality of trigger mechanisms, including bush-fire smoke in the atmosphere, which operate on her.
40. Mr O’Donovan also submitted that Mrs Stubbings was an unreliable witness who had provided flawed histories to medical practitioners about her medical background. He also submitted that she had given a description of symptoms in her non-economic loss questionnaire which was not reflected in the reports of medical practitioners prepared at around the same time. Further, he submitted that she had become very focussed on the presence of chemicals and this was demonstrated in the extent to which she documented her exposure to these in the workplace.
Consideration
41. Mrs Stubbings suffers from asthma and sinusitis. The respondent has not accepted that these conditions resulted from her employment and that is not in issue before the Tribunal. Indeed, Dr Edwards and Dr Solley referred only to aggravation of asthma and Dr Oliver said that employment had not caused the condition. Dr Hoffensetz described a pre-existing propensity for asthma and also said that her sinusitis was not related to her employment. Periodically, Mrs Stubbings experiences acute episodes which are triggered by a wide range of environmental factors. When she has been incapacitated for work during periodic episodes of aggravation of her underlying conditions, the respondent has admitted liability and compensation has been paid to her. The issue for determination is whether she now has permanent impairment from the aggravation of asthma and sinusitis.
42. I have noted and accept as correct the submission by Mr O’Donovan about the unreliability of Mrs Stubbings as a witness. It is the case that she has not always made full disclosure of her medical history to the medical practitioners that she has seen. Dr Edwards was not made aware that she suffered viral infections before the onset of asthma in the 1980s. She told Dr Solley that her upper respiratory tract symptoms in Building 410 were related to exposure to chemical fumes yet her initial claim for compensation was based on the effects of cold air from air-conditioning. In March 2004, she told Dr Solley that, in 1982 when working as a cleaner, she “found” that she would develop acute symptoms whenever she was exposed to strippers and sealant fumes. However, when she saw Dr Morisch in the 1980s, no reference was made to these as a source of her problems. In his report, dated 28 October 1987, Dr Mirosch said that no clear-cut cause had been found. In 1985, she told Dr Solley that she believed that the conditions were related to tiredness, the weather and insecticides. In relation to chemical exposure, Mrs Stubbings underwent various forms of allergy testing which reflected a positive reaction to various chemicals. The practitioners who conducted these were not called to give evidence and both Dr Solley and Dr Oliver gave evidence that they did not accept the nature of those tests as being appropriate.
43. There were also inconsistencies in Mrs Stubbings’ evidence. She completed a non-economic loss questionnaire where she ticked several boxes including those that corresponded with “continuous and severe pain”, “uncontrolled by medication”, “treatment of no real help”, “severely restricted mobility (eg bed, chair, room)”, “dependent on others for assistance”. Those descriptions are not consistent with the medical evidence, with her ability to live alone or with her capacity to attend the RAAF Fire School in the mornings. In her evidence, she said that they reflected her situation when it was at its worst. She also attached to the questionnaire a detailed statement which more appropriately explained her health effects. Nevertheless, her evidence was very focussed on implicating the workplace with her health problems. In particular, she was reluctant to accept that she had a viral illness before physician Dr Mirosch treated her for asthma in hospital in January 1996. In his report, dated 25 January 1996, Dr Mirosch wrote that she had a viral infection “for a week prior to admission with nausea, fever, general ill health and muscle aches and pains”. He then wrote that her asthma began to affect her three days before admission. She conceded that she had been on leave from work for three weeks before she went to hospital and then claimed that she had the fever at work and that she would have contracted it through the air-conditioning. There was no to material before the Tribunal to support this claim and I do not accept her evidence in that regard.
44. Mrs Stubbings focus on the workplace was seen in the detailed records of the results of peak flow readings that she completed in early 2003. There, she also recorded what she believed to be the triggers for poor results. As noted above, one of these was an exposure to Avtur fumes on 4 and 5 March with the presentation of some symptoms on that day but with severe symptoms on 7 March 2003. I accept Dr Solley’s evidence that, if the Avtur was the triggering mechanism for the severe bouts, it would have occurred almost immediately.
45. Mrs Stubbings was evasive with responses in some aspects of her cross-examination indicating that she was not able to recall various matters including the frequency and timing of child-minding in which she had been engaged.
46. Mrs Stubbings’ giving of incomplete histories to medical practitioners, inconsistencies in her evidence and record keeping and some of her responses in cross examination cast doubt on her reliability as a witness in this matter.
47. Dr Mirosch referred to asthma as early as 1970. While it is difficult to accept that he would have taken an incorrect history in relation to asthma when it was that condition that he was treating, there is no other evidence that Mrs Stubbings suffered from the condition prior to the episodes in the 1980s. Dr Hoffensetz treated her from 1978 and was not aware of any earlier presentation of asthma symptoms.
48. Mrs Stubbings has had documented treatment since 1984 when she was seen by Dr Mirosch on referral by Dr Hoffensetz. She was hospitalised on that occasion. Dr Mirosch treated her in hospital again in 1996. In his report, dated 25 January 1996, he noted that Mrs Stubbings had a viral infection and he thought that her asthma had been precipitated by bronchitis. In earlier reports in 1984 and 1985, Dr Mirosch also referred to chest infections as being responsible for her asthma. In February 1996, she was seen by chest physician Dr Ian Brown who, in his report of 19 February 1996, described a viral illness earlier that year which resulted in a severe exacerbation of her asthma. She was hospitalised again in June 1997 for asthma and Dr David Careless, physician, in a report dated 30 June 1997, made reference to a suggestion that some of her asthma may be work-related but he also noted that she had a fever for about five days. Dr Brown saw her again in 2001 and, in his report of 15 June that year, reported a deterioration in her condition and attributed this to exposure to air-conditioning. Further exacerbations were noted by Dr Brown in 2002 and 2003 and, in his report dated 24 May 2002, he described the main aggravating factors as being air-conditioning, aviation gas fumes and various sprays.
49. Mrs Stubbings has been able to return to work after each of the periods of incapacity recognised by the respondent and continues in employment albeit in a modified working environment. In between the episodes when Mrs Stubbings’ asthma and sinusitis become acute, her conditions are controlled by medication. Dr Hoffensetz said that the condition was well controlled with the use of inhalers and Prednisone and that she was compliant with the use of her medication. Dr Oliver described her level of functioning at the time when he saw her in 2001 as being normal and said that the aggravation of her conditions was not permanent. In his report of 3 June 2003, Dr Brown recorded that, following another exacerbation, her lung function had returned to her “usual better values”. Dr Solley was of the opinion that Mrs Stubbings’ records of her peak flow readings in 2003 did not reveal more than a mild form of asthma in the evenings and were excellent in the mornings. Again, that does not reveal any permanent impairment and is consistent with the evidence of Dr Edwards and Dr Oliver that removal of an identifiable irritant will usually result in a return to normal functioning. Both Dr Oliver and Dr Solley noted that Mrs Stubbings had taken medication before they tested her but each of them said that this did not invalidate their test results. I accept their evidence in that regard.
50. Clearly, a wide range of factors can be responsible for periodic exacerbations of Mrs Stubbings’ condition and these are found generally in the environment. There was consensus in the medical evidence that a viral infection can be a trigger for the condition and I am satisfied that most of her episodes of asthma have been related to such infections. I am also satisfied that episodes in and after 1997 have been contributed to by employment-related factors such as air-conditioning and chemicals and that the most recent episode was triggered by smoke inhalation. The exacerbations have continued despite her moving to new buildings at Amberley, to a place 5 kms from the base and, finally, to a home working environment. Dr Edwards said that it was unusual that she improved with each move to a new place and then suffered further episodes and agreed that this suggested that it was not work related. In that regard, his oral evidence differed from his reports. Indeed, he further qualified his opinion during his evidence by stating that only 20 to 25% was related to her employment.
51. The air flow readings taken by Dr Hoffensetz in 1997 showed a deterioration in lung function during a day at work and over a week of work. Dr Oliver noted those findings and said that they implicated work-place factors in the aggravation of the condition but not on a permanent basis. He referred to the tests that he did in 2001 and he described them as normal and said that the achievement of normal readings after successive relocations to new buildings meant that there was no permanent impairment from work-place exposure to irritants.
52. In relation to the specialist medical evidence in this matter, I found that of Dr Solley and Dr Oliver to be more consistent and persuasive than that of Dr Edwards. Both of them were of the opinion that there was no permanent impairment from the periodic aggravations of Mrs Stubbings conditions. Overall, Dr Solley described Mrs Stubbings’ asthma as being in the mild to moderate range. Dr Solley also noted the lung function test results recorded by Mrs Stubbings (exhibit 8). These were morning and afternoon readings taken from January to April 2003. He described the variations as being minor and indicative of the presence of mild asthma only. He noted the readings taken by Dr Oliver and said that they were consistent with his own. Dr Oliver said that he had seen the reports of Dr Mirosch including that dated 28 October 1987. There, Dr Mirosch described Mrs Stubbings as a severe asthmatic with recurrent symptoms of asthma and Dr Oliver said that the pattern of the disease appeared to be not much different than as described by Dr Mirosch and one which reflected the natural history of many asthmatics. On the evidence before me, I am satisfied that Mrs Stubbings’ underlying asthma and sinusitis have not been made worse by her episodes of work-related aggravations of those conditions.
53. Under section 24 of the Act, compensation is paid where an employee’s condition which constitutes an injury or disease has resulted in permanent impairment. The condition in this case is aggravation of underlying asthma and sinusitis. While I am satisfied that the underlying condition is of long standing and unlikely to improve, I am also satisfied that the aggravations are periodic and that they improve between episodic exacerbations. I am also satisfied that they have not contributed to any worsening of the underlying condition and that her injury has not resulted in permanent impairment.
Decision
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Camille Banks
Associate
Date/s of Hearing 8-10 December 2004
Date of Decision 25 January 2005
Counsel for the Applicant Mr R King-Scott
Solicitor for the Applicant D'Arcy's, Solicitors
Counsel for the Respondent Mr D O'Donovan
Solicitor for the Respondent Australian Government Solicitor
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