TRGD and Comcare (Compensation)
[2021] AATA 2949
•12 August 2021
TRGD and Comcare (Compensation) [2021] AATA 2949 (12 August 2021)
Division:GENERAL DIVISION
File Numbers: 2016/0805; 2016/5501; 2019/2368; 2019/2370
Re:TRGD
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 August 2021
Place:Perth
1. The First Reviewable Decision is set aside and substituted with a new decision that:
(a)liability is accepted under s 14 of the Safety Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act) for strongyloides between 16 July 2010 and 2 November 2015 and post-infectious irritable bowel syndrome from 16 July 2010 onwards; and
(b)liability is not accepted under s 14 of the SRC Act for the remainder of the conditions that the Tribunal has determined are part of the First Reviewable Decision.
2. The Second Reviewable Decision, Third Reviewable Decision and Fourth Reviewable Decision are affirmed.
3. The Tribunal declines to exercise discretion to make a costs order under s 67(8) of the SRC Act.
..................[Sgd]......................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether an ailment – whether a disease – causation – whether ailments contributed to, to a significant degree, by employment – factors that are not “employment”, including the stress of the claims process and “litigation stress” – Applicant worked for a Commonwealth agency in a remote region of Western Australia – whether Applicant contracted infectious and parasitic diseases and sequelae from attending a cross-cultural program run at a remote Indigenous community – bartonella, strongyloides, Murray Valley encephalitis, Kunjin/West Nile virus, Ross River virus reinfection, post-infectious irritable bowel syndrome, chronic fatigue syndrome/fibromyalgia, post-infectious reactive spondyloarthritis with enthesitis, stress and anxiety and low testosterone (hypogonadism) and sexual dysfunction – whether conditions which have a collection of subjectively experienced symptoms, including chronic fatigue syndrome and fibromyalgia, are ailments – incapacity or impairment – First Reviewable Decision set aside and substituted to accept liability for strongyloides between 16 July 2010 and 5 November 2015 and to accept liability for post-infectious irritable bowel syndrome from 16 July 2010 onwards – Second, Third and Fourth Reviewable Decisions affirmed
PROCEDURE – expert medical opinion – concurrent evidence – Applicant unrepresented at hearing (and assisted by his mother and brother) but retained counsel to prepare written closing submissions – where Applicant’s new counsel sought to reformulate Applicant’s claim to expand the timing, location and nature of the injury – where written closing submissions made new submissions that were not advanced at or before the hearing – where no claim made under s 16, but Applicant’s counsel requested Tribunal make an order that Comcare should pay the Applicant’s medical expenses under s 16 – the scope of the Tribunal’s review – whether Tribunal has jurisdiction to determine certain conditions not specified in initial claim – additional conditions claimed in the Applicant’s reconsideration request – whether the scope of the Applicant’s claim included the conditions of insomnia, headaches, vitamin D deficiency and somatoform/somatisation disorder – the degree to which the Tribunal can rely on medical literature – whether Tribunal should exercise its discretion to award costs under s 67(8) of the SRC Act – Tribunal declines to exercise discretion to make costs order
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A, 25(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss s 4, 4(1), 5A(1), 5A(1)(a), 5A(1)(b), 5B, 5B(1), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c), 5B(2)(d), 5B(2)(e), 5B(3), 7(1), 7(2), 14, 14(1), 16, 19, 53(1), 54, 54(1), 60, 61, 62(1), 62(1)(a), 62(2), 62(3), 62(4), 62(5), 64, 67(8)
Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1) (Cth) – item 28
CASES
Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829Australian Postal Corporation v Burch (1998) 85 FCR 264; [1998] FCA 944
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173; [1985] FCA 385
Barry and Cleanaway Operations Pty Ltd [2021] AATA 369
Chu Yu Chee and Comcare [2018] AATA 1241
Comcare v Mooi (1996) 69 FCR 439; [1996] FCA 508
Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Frosch v Comcare [2004] FCA 1642
Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2
Hutchinson v Comcare [2018] AATA 4357
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45
KTKY and Comcare (2019) 167 ALD 151; [2019] AATA 1123
Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Mununggurr v Comcare [2020] FCA 1786
Re Prain and Comcare (2014) 142 ALD 393; [2016] AATA 459Re Hannaford and Telstra Corporation Limited [2008] AATA 879
Re Stroud and Comcare [2002] AATA 350
Re Walker and Comcare [1991] AATA 16
Re Walters and Comcare [2021] AATA 14
Re Williams and MRCC (2005) 40 AAR 447; [2005] AATA 477
Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129
Vo and Comcare [2005] AATA 773
Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464
Wuth and Comcare [2020] AATA 3625
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)
Sutherland and Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11th ed, 2018)
GLOSSARY
Contained in the annexure at the end of these reasons for decision
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 August 2021
SUMMARY
The Applicant is a 39-year-old man who was employed by the [redacted] (the Agency) as a [redacted] Service Officer (Officer), based at [redacted] (Regional Agency Office). He commenced his employment on 12 March 2007 and was retired due to medical invalidity in November 2015 (A3/file 3/28; 30–31).
The Applicant suffers from chronic ailments. The Applicant is firmly of the opinion that he contracted these ailments as a result of his employment with the Agency.
Specifically, the Applicant attended a leadership program called the [redacted] program (Cross-Cultural Program) on [redacted] (Claimed Location), near [redacted] (the Remote Area in the Northern Territory). He participated in cross-cultural events there, which required him to live in the community, to wear minimal clothing (a loin cloth) and to lie on the ground where his skin was exposed to the soil. During this program, on 16 July 2010, the Applicant became ill, experiencing severe vomiting, abdominal pain and diarrhoea, which required medical treatment at a medical centre near the Claimed Location (R2/T27/119).
The Applicant seeks review of four decisions of Comcare made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). All subsequent references to legislative provisions are from this Act unless otherwise indicated.
THE REVIEWABLE DECISIONS
By application 2016/0805, filed with the Tribunal on 15 February 2016 (R2/T2), the Applicant seeks review of a decision of a delegate of Comcare dated 3 February 2016 (R2/T2/13–19) (First Reviewable Decision). The First Reviewable Decision affirmed a determination of a delegate of Comcare dated 11 September 2015 (R2/T39/203). This determination “disallowed” the Applicant’s claim (that is, denied liability) under s 14 of the SRC Act for the Applicant’s claim for compensation for “parasitic infection ‘Strongyloides’, viral infections, stress and anxiety, further investigations ongoing / additional infections”, which he made on 26 March 2015 (R2/T14).
By application 2016/5501, filed with the Tribunal on 13 October 2016 (R3/T2), the Applicant seeks review of a decision of a delegate of Comcare dated 12 October 2016 (R3/T12) (Second Reviewable Decision). The Second Reviewable Decision affirmed a determination of a delegate of Comcare dated 14 September 2016 (R3/T8/114–118) which “disallowed” (that is, denied liability) for the Applicant’s claim for compensation under s 14 for “Bartonella Infection”, which he made on 14 July 2016 (R3/T5/57–63).
By application 2019/2368, filed with the Tribunal on 2 May 2019 (R4/T2), the Applicant seeks review of a decision of a delegate of Comcare dated 22 March 2019 (R4/T13/70–73) (Third Reviewable Decision). The Third Reviewable Decision affirmed a determination of a delegate of Comcare dated 8 February 2019 (R4/T9/57–58) which “declined” (that is, denied liability for) the Applicant’s claim under s 14 for “post infectious spondyloarthritis with enthesitis” which he made on 5 November 2018 (R4/T6/37–42).
By application 2019/2370, filed with the Tribunal on 2 May 2019 (R5/T2/5–7), the Applicant seeks review of a decision of a delegate of Comcare dated 22 March 2019 (R5/T13/62–65) (Fourth Reviewable Decision). The Fourth Reviewable Decision affirmed a determination of a delegate of Comcare dated 8 February 2019 (R5/T9/51) which “declined” (that is, denied liability for) the Applicant’s claim for “low testosterone/ hypogonadism” under s 14 (which Comcare referred to as “unspecified testicular dysfunction”) (R5/T9/51–52), which the Applicant had made a claim for on 5 November 2018 (R5/T4/13–18).
THE PARTIES’ SUBMISSIONS
The Applicant submitted that liability should be accepted by Comcare under s 14(1) with respect to all of his claimed conditions, which, the Applicant submits were contributed to, to the relevant degree, by his employment with the Agency. The Applicant noted that the Agency he worked for is also supportive of his claims. Indeed, the Applicant cited correspondence from the Agency which supports the view that the Applicant’s employment was a “significant contributing factor in the development of his medical conditions” (A1/2; A3/file 3/1–2).
Comcare accepts that the Applicant suffers or suffered from ailments. However, Comcare submitted that none of the Applicant’s ailments were contributed to, to a significant degree, by the Applicant’s employment with the Agency, and so Comcare should not accept liability under s 14(1) (R1/25).
THE OUTCOME
The Tribunal agrees that the Applicant undoubtedly suffers from chronic ailments. However, for the reasons set out below, the Tribunal does not have jurisdiction to decide several of the ailments which the Applicant seeks compensation for because they were not included in his original claims. Except for strongyloides and post-infectious irritable bowel syndrome, the Tribunal has found, for the reasons set out below, that the evidence does not support the conclusion that the ailments which the Applicant seeks compensation for were contributed to, to a significant degree, by his employment with the Agency.
MATERIAL BEFORE THE TRIBUNAL
The hearing of this matter took place between 7 September 2020 and 11 September 2020 by videoconference in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing in this manner.
The Applicant was represented by his mother and brother at the hearing. Mr PG Woulfe appeared as Counsel for Comcare, instructed by Mr L Woolley from Sparke Helmore Lawyers.
The Applicant gave evidence on day one, day two and day three of the hearing and was cross-examined by Mr Woulfe.
Dr P Hannay, who was one of the Applicant’s treating doctors, gave evidence on day three of the hearing. Dr D Gorman, consultant general physician, pain management specialist and medical oncologist, also gave evidence on day three of the hearing.
Dr M McManus, a microbiologist who has expertise in tick-borne diseases, gave evidence on day four of the hearing. The Tribunal also heard concurrent evidence from Professor M Beaman, and Professor T Korman, both infectious diseases physicians and clinical microbiologists, on day four of the hearing.
Dr L Reiter, rheumatologist, gave evidence on day five of the hearing.
The Tribunal admitted into evidence the following materials at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC), received by the Tribunal on 30 August 2020 (Exhibit A1);
(b)Applicant’s Response to Comcare’s Statement of Issues, Facts and Contentions, received by the Tribunal on 30 August 2020 (Exhibit A2);
(c)Applicant’s Hearing Bundle comprising the following files (Exhibit A3):
(i)File 1, consisting of 250 pages;
(ii)File 2, consisting of 321 pages;
(iii)File 1 and 2, consisting of 154 pages;
(iv)File 3, consisting of 467 pages;
(v)File 4, consisting of 465 pages;
(vi)File 5, consisting of 351 pages; and
(vii)File 6 and 7, consisting of 157 pages.
(d)Comcare’s Statement of Issues, Facts and Contentions, dated 7 February 2020 (Exhibit R1);
(e)section 37 documents for application 2016/0805, numbered T1 to T45, consisting of 323 pages (Exhibit R2);
(f)section 37 documents for application 2016/5501, numbered T1 to T13, consisting of 188 pages (Exhibit R3);
(g)section 37 documents for application 2019/2368, numbered T1 to T13, consisting of 72 pages (Exhibit R4);
(h)section 37 documents for application 2019/2370, numbered T1 to T13, consisting of 65 pages (Exhibit R5);
(i)Comcare’s Hearing Bundle, numbered 1 to 25, consisting of 745 pages (Exhibit R6);
(j)index to documents relied upon by Comcare, consisting of 17 pages (Exhibit R7); and
(k)Joint Report of Professor Tony Korman and Professor Miles Beaman (Joint Report), dated 3 September 2020 (Exhibit T1).
After the hearing, the parties filed the following written closing submissions:
(a)Comcare’s written submissions, dated 23 October 2020, comprising 40 pages (Comcare’s Closing Submissions);
(b)Applicant’s amended written closing submissions, undated but filed with the Tribunal on 2 February 2021, comprising 117 pages (Applicant’s Closing Submissions), with the original written closing submissions being filed on 27 January 2021; and
(c)Comcare’s written submissions in reply, dated 25 March 2021, comprising 35 pages (Reply).
Although the Applicant was represented by his mother and brother at the hearing, his closing submissions were prepared by Mr BL Nugawela of counsel who was retained sometime after the hearing. Mr Nugawela was instructed by Mr K Wong of Soul Legal, who filed a notice of representation with the Tribunal on 18 November 2020.
ISSUES
The issue that requires determination by the Tribunal is whether Comcare is liable to pay compensation to the Applicant, pursuant to s 14(1).
Broadly speaking, this requires a consideration of:
(a)the conditions that the Tribunal has jurisdiction to consider and the appropriate diagnosis of those conditions;
(b)whether each condition was contributed to, to the requisite degree, by the Applicant’s employment with the Agency; and
(c)if so, whether they resulted in incapacity for work or impairment.
There was also disagreement between the parties as to the scope of the Tribunal’s jurisdiction. This is discussed in the following section on “jurisdiction”. The Tribunal’s findings in that section further define the parameters of the issues stated in the previous paragraph and are summarised under the sub-heading of “clarification of what is before the Tribunal”.
JURISDICTION
Comcare’s liability to pay compensation is provided for in s 14(1):
14. Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753 (Lees), the Full Court of the Federal Court of Australia outlined the significance of a determination being made under s 14. In a joint judgment Wilcox, Branson and Tamberlin JJ stated, at 91–92 [34]–[35]:
[34]The definition of ‘determination’ makes it plain that it is part of the scheme of the Act for determinations to be made under the various sections referred to therein. In particular, the definition reveals that a determination may be made under s 14 of the Act. A determination under s 14 cannot amount to more than a determination that Comcare ‘is liable to pay compensation in accordance with this Act’ in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
[35]This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an ‘employee’ at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.
In summary, the Applicant submitted that Comcare should accept liability to pay compensation for the following medical conditions (A1/2–13):
1. Stress and Anxiety
Muscle contraction headaches, underlying anxiety syndrome and associated insomnia …
2. Flavivirus: Murray Valley Encephalitis and Kunjin/WNV Virus …
3. Re-infection with Ross River Virus. …
4. Vitamin D deficiency. …
5. Strongialoides steracoralis. …
6. Myalgic Encephalomyelitis / Chronic Fatigue Syndrome …
7. Fibromyalgia …
8. Post Infectious Irritable Bowel Syndrome …
9. Bartonella …
10. Post infectious reactive spondyloarthritis with enthesitis …
11. Low testosterone / hypogonadism / sexual dysfunction …
However, not all the conditions specified by the Applicant appear to have been through the statutory claims process set out in the SRC Act. This creates some doubt as to whether they are included in the reviewable decisions before the Tribunal. The Tribunal does not have a general or inherent jurisdiction to review certain categories of decisions. Rather, an enactment will give the Tribunal jurisdiction to review specific types of decisions (see s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth)).
By way of summary, this claims process requires a claimant to notify Comcare of the injury (s 53(1)) and to make a claim for compensation for the injury (s 54), then for a determination to be made by Comcare (s 61). Comcare may reconsider a determination of its own motion or may do so following a request for reconsideration by the claimant (s 62(1) and 62(2)). A reconsideration decision will then be made by Comcare to affirm, revoke or vary the determination (s 62(5)). The reconsideration decision is the reviewable decision for the Tribunal (ss 60 and 64). These statutory provisions will now be outlined in further detail before examining the specific claims made by the Applicant.
Statutory framework of Comcare claims
For the SRC Act to apply, an employee must first notify Comcare (the relevant authority) of any injury. Specifically, s 53(1) provides:
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; …
In Frosch v Comcare [2004] FCA 1642, at [8], Whitlam J stated that, “… the essential information to be imparted [in the notice of injury] under s 53 will be the nature of an injury or ailment and its connection with the employment”.
The SRC Act further provides that compensation cannot be paid unless the claimant has made a claim. Section 54 provides in part:
(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
(2)A claim shall be made by giving the relevant authority:
(a)a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph. …
(5)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.
In Abrahams v Comcare (2006) 93 ALD 147; [2006] FCA 1829 (Abrahams), Madgwick J at [21] stated that the notice of injury under s 53 should be “beneficially, broadly and practically interpreted”. In that case, the claim was originally for a “right carpal tunnel syndrome” but was later expressed more broadly as a right arm and shoulder condition. His Honour accepted that the description of the injury in the subsequent claim may change or evolve to better explain or justify an injury, provided that any amendment to the description of the injury should not be “sufficiently fundamental as to indicate that a different injury is being asserted”(at [18]), and “provided that the same symptoms, disability and timeframe were still being asserted” (at [23]).
In Szabo v Comcare (2012) 58 AAR 152; [2012] FCAFC 129 (Szabo), Mr Szabo made a claim for an injury that occurred on a specific date and time whilst undertaking a specific activity, but later sought to expand his claim to a more general one based on the general “nature and conditions” of his employment. The Full Court of the Federal Court of Australia upheld the Tribunal’s decision that it did not have jurisdiction to consider a nature and conditions claim because no such claim had been made, nor was there a determination, nor a reviewable decision relating to the nature and conditions of employment. Szabo illustrates that a claim for an injury arising on a specific date due to specific duties cannot be later transformed into a broader claim.
Additionally, as Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346 (Muir) demonstrates, a claimant cannot succeed in transforming a claim for an injury that occurred on a specified date to an earlier date. Flick J explained at [37] that:
Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010–2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.
Returning to the SRC Act, the next step in the claims process is that Comcare will then consider and determine the claim. This is provided for in s 61, which provides, in part:
(1A)The determining authority must consider and determine each claim for compensation under section 14 within the period prescribed by the regulations.
(1)As soon as practicable after a determining authority makes a determination, it shall cause to be served on the claimant a notice in writing setting out:
(a)the terms of the determination;
(b)the reasons for the determination; and
(c)a statement to the effect that the claimant may, if dissatisfied with the determination, request a reconsideration of the determination under subsection 62(2).
Comcare may reconsider a determination of its own motion (s 62(1)(a)). Otherwise, a request to reconsider the determination may be made by the claimant, the Commonwealth, or a Commonwealth authority (s 62(2)). Section 62(3) specifies what must be included in the request for reconsideration:
(3)A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
Sections 62(4) and 62(5) set out the procedure for when a reconsideration request is received. In summary, Comcare will reconsider the determination, and will make a decision:
(4)On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Section 60 defines a “reviewable decision” as “a decision made under subsection 38(4) or section 62”.
Section 63 provides that the claimant must receive a notice in writing of the “reviewable decision” and sets out the requirements of the notice:
As soon as practicable after a person makes a reviewable decision, the person shall cause to be served on the claimant a notice in writing setting out:
(a)the terms of the decision;
(b)the reasons for the decision; and
(c)a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
With respect to the current applications, s 64 of the SRC Act gives the Tribunal jurisdiction to review a “reviewable decision”, including a reconsideration decision made under s 62. It provides:
(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a)the claimant; or
(b)if the decision affects the Commonwealth—the Commonwealth; or
(c)if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d)if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
(3)Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
The scope of the Tribunal’s review powers was outlined by the Full Court in Lees at 93 [39]:
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions — that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers ‘[f]or the purpose of reviewing’ the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
The Tribunal will now examine the claims process for each of the Applicant’s applications to determine the conditions that are included in each reviewable decision, and therefore whether the Tribunal has jurisdiction to consider them.
First Reviewable Decision
With respect to the First Reviewable Decision, the Applicant gave notice and made a claim for compensation in a form dated 26 March 2015, pursuant to ss 53 and 54 (R2/T14/51). In response to the question, “[f]or what injury or illness are you claiming workers’ compensation?”, next to the sub-heading, “[d]iagnosed condition” the Applicant wrote (R2/T14/52):
Parasitic infection
“Strongyloides”
Viral infections – Stress and Anxiety
further investigations ongoing/
additional infections
In response to the question, “[w]hat part(s) of your body has been most affected by your injury or illness?”, next to the subheading, “[p]art(s) of body injured” the Applicant wrote (R2/T14/52):
Gastrointestinal
Mental state – Stress
Chest / Lungs
Rash / Dermatitis / Skin conditions
Fatigue – Lethargy
In his Claim for Workers’ Compensation form, the Applicant specified the date of his injury to be 16 July 2010, and the location of the injury to be the Claimed Location in the Northern Territory, citing “attendance at [the Cross-Cultural Program]”. He stated that he was “[p]articipating in a traditional Aboriginal ceremony in [the Remote Area in the Northern Territory]” when he was injured and that what actually injured him was “contracting a parasitic worm ‘Strongyloides’ and other viral infections” (R2/T14/52 and 54).
The claim form does not refer to any additional attachments from the Applicant (except for “see attached” next to a question about whether the Applicant had been sent for a medical referral – R2/T14/52). However, it appears from two emails dated 5 August 2015 (R2/T27/102–104), where the Applicant re-forwarded documents to Comcare, that he included a document titled “Attachment A” with his claim form. In this document, the Applicant makes submissions collating the evidence in attached medical reports “as a body of proof to support [his] claim of illnesses being work related” (R2/T27/105). On page 9 of “Attachment A” (R2/T27/113), the Applicant referred to there being a “greater than normal frequency of mosquitoes, ticks and other dangerous animals/insects” at the particular location of the Regional Agency Office. In the Applicant’s Closing Submissions (at page 45 [106]), his new representative submitted that “[i]n his original claim and supporting documentation, the applicant tendered his opinion that infection with Ross River Virus was likely contracted at his workplace [the Regional Agency Office]”. However, the Applicant’s claim form clearly stated the date of injury to be 16 July 2010 and the location where the injury occurred to be the Claimed Location. It did not further refer to any attachments that would expand on or alter this date or location. Attachment A contained submissions and references to evidence in support of the Applicant’s claim. However, evidence and submissions in support of a claim are different to, and are separate from, the actual claim itself (Muir, at [19]–[23]). They are not part of the claim, and do not expand the claim, particularly when a different date and location were expressly stated in the claim form.
On 11 September 2015, Comcare made a determination pursuant to s 61, to “disallow” the Applicant’s claim, that is to deny liability to pay compensation to the Applicant under s 14 for his claim of “parasitic infection ‘Strongyloides’, viral infections, stress and anxiety, further investigations ongoing / additional infections” (R2/T39/203).
In the Applicant’s Closing Submissions (at page 7 [15]), the Applicant’s representative further submitted that in the determination dated 11 September 2015 Comcare acknowledged receipt of the Applicant’s “additional statement with supporting documentation including reports from [his] treating practitioners” (R2/T39/206). It was submitted that consequently, “Comcare was aware that the applicant was not merely claiming that all of his injuries were obtained during his [Agency]-sanctioned attendance at the [Cross-Cultural Program] on [the Claimed Location]”. However, as has just been discussed, the claim itself, which refers to a specific date and location of injury, contradicts this submission. Also, there was no acceptance of a broader claim by Comcare by virtue of this reference, which was in fact contained in the reasons attached to the 11 September 2015 determination and not the determination itself. Thus, a broader timeframe was not part of the claim, nor was it considered as part of the claim in the s 14 determination of
11 September 2015.
On 8 December 2015, the Applicant’s former solicitor wrote to Comcare to request a reconsideration the determination dated 11 September 2015 (incorrectly referred to as
21 September 2015) (R2/T42/254). However, the reconsideration request purported to add additional conditions to those in the original notice, claim and determination. Specifically, the reconsideration request letter asked Comcare to accept liability for the following conditions:
1. Muscle contraction headaches, underlying Anxiety Syndrome and associated Insomnia
2. Murray Valley Encephalitis
3. Kunjin/WNV Virus
4. Ross River virus reinfection
5. Vitamin D Deficiency
6. Chronic strongyloidiasis
7. myalgic Encephalomyelitis / Chronic Fatigue Syndrome / Fibromyalgia
8. Post-Infectious Irritable Bowel Syndrome
In summary, the listed conditions of muscle contraction headaches, insomnia and vitamin D deficiency were not part of the Applicant’s notice and claim dated 26 March 2015 and were not the subject of the determination dated 11 September 2015, notwithstanding the fact that insomnia was expressed in the reconsideration request to be associated with the anxiety syndrome.
As noted above, s 53 effectively provides that the SRC Act does not apply unless notice of the injury is given to Comcare. Section 54(1) further provides that compensation is not payable unless a claim for compensation has been made. No notice of injury or claim was made by the Applicant for the conditions of muscle contraction headaches, insomnia, and vitamin D deficiency and therefore these conditions are not before the Tribunal (Szabo). Even on a broad interpretation of the claimed conditions, these conditions appear to be different injuries that are additional to those in the notice and claim (Abrahams). The Tribunal does however note that headaches are a symptom of Kunjin virus (T1/3–4).
The conditions of Murray Valley encephalitis, Kunjin/West Nile Virus and Ross River virus reinfection, when “beneficially, broadly and practically interpreted” (Abrahams), are consistent with the Applicant’s claim which refers to “viral infections” and “further investigations ongoing/additional infections”. So too are the references to “chronic fatigue syndrome / fibromyalgia”, given the Applicant’s reference to “Fatigue – Lethargy” in his claim form and “Post infectious irritable bowel syndrome” given the stated part of his body affected included “Gastrointestinal”. Additionally, although “myalgic encephalomyelitis” was not stated in the original claim, chronic fatigue syndrome is sometimes referred to as “myalgic encephalomyelitis” (Sutherland and Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (Federation Press, 11th ed, 2018); see also transcript/52, 118, 452; and the evidence of Dr Gorman at transcript/338).
As outlined above, the Applicant’s notice and claim form also referred to “stress and anxiety” as one of the claimed conditions and was one of the conditions considered in the s 14 determination of 11 September 2015 and the determination dated 3 February 2016. Consequently, the condition of “stress and anxiety” (which on a broad interpretation would include anxiety and depression) is also before the Tribunal.
However, in the Applicant’s Closing Submissions (page 101), the Applicant submitted that “in the absolute alternative, if it is found that the applicant has suffered no compensable injuries/diseases whatsoever, then he nevertheless submits that his somatoform disorder is compensable in its own right” (original emphasis). It is difficult to see how the Tribunal could find that such a condition was related to the Applicant’s work if there are no other compensable ailments, but more fundamentally, no claim for a somatoform disorder was ever made, and it could not be characterised under the umbrella of “stress and anxiety, even on a broad reading. Although persons with this disorder have “very high levels or worry about illness”, a somatoform disorder is a specific disorder with different diagnostic criteria to anxiety and depressive disorders (see generally, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (DSM-5)).
Further, in his reconsideration request letter of 8 December 2015, the Applicant’s former solicitor referred to timeframes and circumstances that were different to those in the Applicant’s claim for compensation. For example, the letter refers to a period of 21 June 2010 to 8 April 2015, where officers of the Agency had made observations about “plagues of mosquitos” and the number of mosquitos in the Applicant’s office due to holes in the flyscreen door. The letter then compares the Applicant’s case to another “strikingly similar” workers’ compensation case, where a [redacted] became infected with Ross River virus “in the course of his duties”. It then refers to a medical opinion that the Applicant’s “work had contributed to his ongoing illness” (R2/T42/263). Thus, as was the case in Szabo, the reconsideration request letter apparently seeks to reformulate the Applicant’s claim more broadly, beyond a date of injury of 16 July 2010 at the Claimed Location, to the period of 21 June 2010 to 8 April 2015 at the Regional Agency Office. The Applicant’s claim stated that the injury occurred on a specific date and location. To change the date of injury from a specified date to a date range of approximately five years would be to reformulate the claim (Muir) as a “nature and conditions” of work type claim (Szabo).
As referred to above in the “summary” section of these reasons, pursuant to s 62(5), a reconsideration decision was made on 3 February 2016 (R2/T2/13; R2/T44/269), which is the First Reviewable Decision before this Tribunal. As the Full Court stated in Lees, in reviewing the First Reviewable Decision (and indeed all the reviewable decisions in this application), the Tribunal has the same powers and discretions as Comcare for the purpose of reconsidering a determination under s 62.
In summary, the issue with respect to the First Reviewable Decision can be particularised as whether the Applicant’s attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010 contributed to, to a significant degree, him suffering from the following ailments:
·strongyloides;
·Murray Valley encephalitis, Kunjin/West Nile virus; and/or
·Ross River virus reinfection;
and the sequelae ailments of:
·chronic fatigue syndrome (also known as myalgic encephalomyelitis);
·fibromyalgia;
·stress and anxiety; and/or
·post-infectious irritable bowel syndrome;
and if so, whether any such ailment or ailments resulted in incapacity for work or impairment.
Second Reviewable Decision
With respect to the Second Reviewable Decision, the Applicant gave notice and made a claim for compensation for “Bartonella infection” in a form dated 28 March 2016, pursuant to ss 53 and 54. The form stated that the condition affected his “whole body”, that he “[c]ontracted [the] disease whilst participating in an [Agency] sponsor Programme ([Cross-Cultural Program])” and that he first noticed symptoms in 2011 (R3/T5/60). An accompanying letter from the Applicant’s former solicitor stated that, “this disease was contracted when my client was deployed to [the Claimed Location] as part of his involvement in the [Agency] funded [Cross-Cultural Program]” and “[t]here is strong overall evidence that points to [the Applicant’s] [Agency] deployment to [the Claimed Location] to support the fact that he contracted Bartonella while on duty in 2010” (R3/T6A/67, 68).
A determination under s 61 was made by Comcare on 14 September 2016 to “disallow” (that is, to deny liability) compensation under s 14 to the Applicant for his claim of bartonella infection (R3/T8/115).
The Applicant’s former solicitor requested reconsideration of the determination on
19 September 2016 (R3/T9). The reconsideration request letter referred to evidence that the Applicant “contracted Bartonella most likely in his service on [the Claimed Location] with the [Agency]” (R3/T9C/139).
As also referred to above in the “summary” section of these reasons, pursuant to s 62(5), a reconsideration decision (the Second Reviewable Decision) was made on 12 October 2016 to affirm the determination of 14 September 2016 (R3/T12/148).
In the Applicant’s Closing Submissions, his new legal representative requested that the Tribunal also make a finding about whether the Applicant suffered a “Bartonella-like or Bartonella henselae-like infection or morbid condition” (page 116, para [272(2)(b)(ii)]). On a broad interpretation of the claimed conditions (Abrahams), it is open to the Tribunal to consider such a condition because no new condition is being added, but rather the existing claim is being expressed in slightly different, and possibly more accurate, terms. However, the Applicant’s new legal representative requested that the Tribunal also find that the Applicant suffers from a “mental injury, disease or morbid condition in the nature of stress, anxiety, depression or its/their aggravation” (see Applicant’s Closing Submissions at para [272(2)(b)(iii)]). Such a condition is not part of the original notice and claim, determination or reconsideration process, and therefore is not before the Tribunal as part of the Second Reviewable Decision.
In summary, the issue with respect to the Second Reviewable Decision can be particularised as whether the Applicant’s attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010 contributed to, to a significant degree, him suffering a “bartonella infection” or a “bartonella henselae-like infection”, and if so, whether any such ailment resulted in incapacity for work or impairment.
Third Reviewable Decision
The Applicant gave notice and made a claim for compensation for “post infectious reactive spondyloarthritis with enthesitis” in a claim form dated 5 November 2018, pursuant to ss 53 and 54. The form does not detail the parts of the body affected, what tasks the Applicant was doing when he was injured or what happened and how he was injured, with these sections of the form being filled out as “see attached”. This appears to be a reference to several attached medical reports. The Applicant however stated in this claim form that he first noticed the symptoms/injury on 16 July 2010 (R4/T6/39), which the Tribunal notes was the date of injury cited for the First, Second and Third Reviewable Decisions when he attended the program at the Claimed Location.
On 8 February 2019, Comcare made a determination under s 61 to “decline” the Applicant’s claim, that is to deny liability to pay compensation to the Applicant under s 14 (R4/T9/57).
The Applicant requested reconsideration of the determination on 26 February 2019 because he believed that Comcare did not take all relevant information, including medical evidence in support of his claim, into account (R4/T11.A/62). His reconsideration request letter included reference to an opinion from a Dr Mozayeni which refers to the Applicant’s “activity and deployment to various high risk areas around Australia as part of his official duties” and that “his conditions are … related to his occupation and deployments in an official capacity” (R4/T11.A/63). However, applying Muir and Szabo, a reference in the Applicant’s reconsideration request to evidence suggesting a broader date of injury and a broader range of locations to those in the original notice/claim and determination, cannot effectively reformulate the scope of the original claim.
Pursuant to s 62(5), a reconsideration decision (the Third Reviewable Decision) was made on 22 March 2019 to affirm the determination of 8 February 2019 (R4/T13/70–71).
Again, in his Closing Submissions, the Applicant’s new legal representative requested that, in addition to the “post infectious reactive spondyloarthritis with enthesitis” condition, the Tribunal should also find that the Applicant suffers from a “mental injury, disease morbid condition in the nature of stress, anxiety, depression or its/their aggravation” (page 117, para [273(1)(b)(ii)]). This condition is not part of the original notice and claim, determination or reconsideration process. Similarly, to the Second Reviewable Decision, the purported mental injury is therefore not before the Tribunal as part of the Third Reviewable Decision.
Therefore, the issue with respect to the Third Reviewable Decision is whether the Applicant suffered “post infectious reactive spondyloarthritis with enthesitis” which was contributed to, to a significant degree, by the Applicant contracting an ailment on 16 July 2010 while attending the Cross-Cultural Program at the Claimed Location, and if so, whether any such ailment resulted in incapacity for work or impairment.
Fourth Reviewable Decision
The Applicant gave notice and made a claim for compensation for the condition of “low testosterone / hypogonadism” in a form dated 5 November 2018, pursuant to ss 53 and 54 (R5/T4/15). Like the Third Reviewable Decision, the claim form stated that the Applicant first noticed the symptoms/injury on 16 July 2010. Similarly, the claim form states “see attached” next to the sections on the parts of the body affected, the tasks the Applicant was doing when he was injured and what happened and how he was injured. However, there is in fact an attachment titled “attachment – additional details for Comcare Workers’ Compensation Claim” with respect to this claimed condition (R5/T6). This attachment refers to the Applicant becoming seriously ill on 16 July 2010 whilst he attended the Cross-Cultural Program at the Claimed Location and that he was subsequently diagnosed with strongyloides, bartonella and post-infectious irritable bowel syndrome, and that it was “extremely likely” that the condition of “low testosterone / hypogonadism” was caused by these infections, his weight gain, medications, stress, anxiety and inability to exercise (R5/T6/24–27).
On 8 February 2019, Comcare made a determination under section 61 to “decline” the Applicant’s claim, that is to deny liability to pay compensation to the Applicant under s 14 for “unspecified testicular dysfunction” (R5/T9/51). It is unclear why Comcare renamed the claimed condition in this manner when the dysfunction was in fact specified.
The Applicant requested a reconsideration of the determination in a letter dated 26 February 2019 where he described the condition as “low testosterone/hypogonadism/sexual dysfunction” (R5/T11.A/57). As the symptoms of hypogonadism include sexual dysfunction (see R5/T5/21), the Tribunal considers that the inclusion of sexual dysfunction is nevertheless within the scope of the Applicant’s original claim because it is not a new injury (Abrahams).
On 22 March 2019, Comcare made a reconsideration determination under s 62 (Fourth Reviewable Decision) to affirm the determination of 8 February 2019 (R5/T2/8 and T13/62).
As with the Second Reviewable Decision and the Third Reviewable Decision, the Applicant’s new legal representative requested that the Tribunal make a finding that, as part of the Fourth Reviewable Decision, the Applicant suffers from a “mental injury, disease or morbid condition in the nature of stress, anxiety, depression or its/their aggravation” (page 117, para [274(1)(b)(iii)]). Again, this condition was not part of the claims process for the Fourth Reviewable Decision, and so it is not before the Tribunal as part of that application.
In summary, the issue with respect to the Fourth Reviewable Decision is whether the Applicant suffered “low testosterone/hypogonadism/sexual dysfunction” which was contributed to, to a significant degree by the Applicant contracting an ailment on 16 July 2010 while attending the Cross-Cultural Program at the Claimed Location, and if so, whether any such ailment resulted in incapacity for work or impairment.
Clarification of what is before the Tribunal
A consideration of the claims processes leading to the reviewable decisions is not only helpful in determining the conditions that are before the Tribunal, but also in determining the ambit of what the Tribunal has jurisdiction to review. In the Applicant’s Closing Submissions, the Applicant’s representative sought to expand upon the scope of the Tribunal’s review by expanding the location and timing of the injuries. For example, at page 40 [93] of the Applicant’s Closing Submissions there is a submission that the Applicant’s Murray Valley encephalitis and Kunjin virus infections “were also acquired in the course of [the Applicant’s] employment [with the Agency]”. Another example is a submission at page 49 [118], that “the applicant contracted Bartonella henselae in the course of his employment with the [Agency]”. However, as is evident from the above analysis of the claims process leading to each reviewable decision, the statutory framework setting out the claims process does not support these submissions.
Specifically, the above analysis of the claims process shows that the claimed date of the injuries was 16 July 2010 and that the injuries were specified to have been sustained by the Applicant during his attendance at the Cross-Cultural Program at the Claimed Location. It was this date and location that were specified in the notices and claims that were the subject of the determination and reconsideration processes. There was no claim, determination or reconsideration of any injury that occurred over a broader period of the Applicant’s employment with the Agency (for example, the period of 21 June 2010 to 8 April 2015, referred to in the reconsideration request letter of 8 December 2015 (R2/T42/263)) or with respect to the general “nature and conditions” of the Applicant’s work with the Agency. Nor was there any claim that includes other locations, such as the location of the Regional Agency Office where the Applicant was based or the various other locations that the Applicant was deployed to during his time at the Agency.
TESTS FOR DETERMINING THE CONTRIBUTION OF EMPLOYMENT TO AN INJURY
The SRC Act defines an “injury” to include a “disease” or an “injury (other than a disease)”.
An “injury” is defined in s 5A(1) as follows:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(Original emphasis.)
Section 5B defines a “disease” as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
(Original emphasis.)
A disease is defined in s 5B(1) to include an “ailment” or the “aggravation of an ailment”. Section 4 defines “ailment” as “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
The definition of an “ailment” in s 4(1) was discussed by Drummond J in Comcare v Mooi (1996) 69 FCR 439, 442; [1996] FCA 508 (Mooi):
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word — ‘a morbid affection of the body or mind; indisposition: a slight ailment’ (The Macquarie Dictionary) — that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
In Vo and Comcare [2005] AATA 773 (Vo) Senior Member Constance (now Deputy President Constance) and Member Miller discussed the meaning of an “ailment”, at [54]:
The definition of ‘ailment’ is very broad ... The terms ‘ailment’ and ‘morbid condition’ both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of ‘disease’ in the Act. In context the words ‘disorder’ and ‘defect’ should be interpreted accordingly. The definition of ‘ailment’ in section 4 is somewhat circular as it includes the word ‘ailment’ within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of ‘ailment’ includes ‘a morbid affection of the body or mind’ and ‘morbid’ includes ‘affected by, proceeding from, or characteristic of disease.’
The distinction between ss 5A(1)(a) and 5A(1)(b) is an important one, given that the classification of a condition as either a disease or an injury (other than a disease) will determine the applicable test for determining the contribution of work to an injury.
Specifically, for there to be an injury (other than a disease) (often referred to as an “injury simpliciter”), the injury must arise out of, or in the course of, employment (s 5A(1)(b)).
An injury simpliciter (within the meaning of s 5A(1)(b)) can be contrasted with a “disease” which, according to s 5B(1), must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 85 FCR 264, 268; [1998] FCA 944) than that required for an injury simpliciter.
In Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502, Katzmann J discussed the meaning of a “significant degree” in s 5B(3). Her Honour stated, at 201 [78] that:
A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.
(Original emphasis.)
Further, Katzmann J stated at 204 [93]:
There is no room for doubt that the purpose of the 2007 amendments [being the amendments which added s 5B into the SRC Act] was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial.
Katzmann J also indicated, at 204–205 [94], that although s 5B(2) states that certain matters “may” be taken into account, implying that the decision-maker has a discretion in evaluating the degree of contribution, a proper construction of s 5B(2) indicates that the matters contained in s 5B(2) should be taken into account:
Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters ‘may’ (not ‘shall’) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that ‘may’ means ‘shall’: see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222–223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38; 326 ALR 16 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal’s reasons to indicate that it carried out the kind of evaluative exercise required by the statute.
Determining the Applicable test
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 480–481; [2016] HCA 19 (May), French CJ, Kiefel, Nettle and Gordon JJ (the majority), discussed when a condition may qualify for characterisation as an “injury”, citing the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45. The majority stated:
45‘Injury’ in para (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word’ (emphasis added).
46That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.
47However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word.’
(emphasis added.)
(Original emphasis; footnotes omitted.)
The questions that the Tribunal must ask in order to identify whether a condition may qualify for characterisation as a disease or an injury simpliciter (and consequently to identify the applicable test for determining the contribution of employment) were further described by the majority in May at 481–482:
49… the Act requires the tribunal of fact to give consideration to ‘the precise evidence, on a fact by fact basis, ... accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.
50First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Secondly, if so, was that state contributed to in a material degree by the employee’s employment by the Commonwealth?
51If the answer to both those questions is ‘Yes’, there is a ‘disease’ within para (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.
52If there is not a ‘disease’ within para (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning’ in the cases from which it is derived, or without regard to the text and scheme of the Act.
53If there be an ‘injury’ in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth? If that question is answered ‘Yes’, there is an ‘injury (other than a disease)’ within para (b) of the definition of ‘injury’ in s 4(1) of the Act. In some circumstances, if the answer is ‘No’, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
(Footnotes omitted.)
In a separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for a condition to qualify for characterisation as an injury (other than a disease). His Honour stated at 487 [78]:
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
(Footnotes omitted.)
The test of employment contribution applicable to the current applications
At the hearing of the current applications, both parties proceeded on the basis that the claimed injuries fell within the “disease” provision under s 5B(1) (transcript/34, 48, 51, 116–119; see also Comcare’s Closing Submissions at [21] and [24]). Both parties made submissions and presented evidence as to whether the ailments or aggravations suffered by the Applicant were contributed to, to a significant degree, by his employment with the Agency.
However, in the Applicant’s Closing Submissions, his new representative stated the first issue for each application to be, in summary, whether the Applicant suffered an injury that was a “disease” or an “injury (other than a disease)” (page 12–13 [45]). Later in these submissions, it was submitted that, “contrary to the claim by the respondent (RC point 21, 24), there is no parties’ agreement that the applicant’s claim needs to be determined fully under the ‘disease’ provisions in section 5B of the SRC Act” (Applicant’s Closing Submissions/14 [49]). However, except for a submission that strongyloides had a sudden onset (Applicant’s Closing Submissions/14 [49]), no specific submissions were made on behalf of the Applicant as to why the Applicant’s conditions should fall within the provisions regarding an injury (other than a disease) under s 5A(1).
With respect to this change in the Applicant’s case, Comcare referred the Tribunal to the decision of Deputy President Humphries in Re Walters and Comcare [2021] AATA 14 (Walters) (Reply/8–9 [13.4]). At [37]–[41], the Deputy President stated:
37.Ms Walters claims that, pursuant to s 14 of the Act, she has suffered an injury which has resulted in incapacity for work and impairment. Sections 5A and 5B make it clear that an injury may be a disease, an injury (other than a disease) or an aggravation of one of these two categories of injury. A threshold issue is, which of these categories of injury does Ms Walters claim to have suffered?
38.A SOFIC lodged on her behalf in December 2019 appeared to suggest that her injury may be treated as either a disease or an injury (other than a disease) (also known as an injury simpliciter). The statement did not appear to suggest that her injury was an aggravation of a pre-existing condition.
39.At the outset of the hearing, however, counsel for Ms Walters told the Tribunal that the injury claimed should best be considered as a disease. No reference was made at that time to the possibility that the claim could be considered an aggravation. After the Tribunal had heard all the witnesses, it invited the parties to make their closing submissions by way of written submissions. In those subsequently lodged on behalf of Ms Walters, the contention originally mounted in her SOFIC of the previous December – that she suffered, in the alternative, from an injury simpliciter – was restored. Additionally, her claim was characterised – for the first time – in the alternative, as an aggravation. Specifically, it was contended that the viral infection which she was said to be suffering in August 2017 was aggravated by the circumstances of her travel from New Delhi to Canberra that month.
40.Counsel for Comcare contended in its closing submission that it would be procedurally unfair for the Tribunal to consider a claim for either an injury simpliciter or for an aggravation. This is because the claims were advanced without the opportunity for those characterisations to be put to the expert witnesses.
41.The Tribunal accepts the contention that procedural unfairness would be perpetrated by a substantial recasting of Ms Walters’ case after the evidence had been taken. Although Comcare was ‘on notice’ prior to the commencement of the hearing that the injury simpliciter contention would be run, that ‘notice’ was effectively withdrawn once the hearing commenced. The contention in relation to an aggravation was not raised at all until after the conclusion of the hearing. The Tribunal considers that the hearing is likely to have taken a different course had these matters been laid on the table at its inception. In those circumstances, the matters should not now be before the Tribunal: see Mununggurr v Comcare [2020] FCA 1786 at [80]; Wuth and Comcare [2020] AATA 3625 at [105] – [111].
(Emphasis added.)
Similarly, in Mununggurr v Comcare [2020] FCA 1786 (Mununggurr), at [80], Collier J referred, with approval, to the Tribunal’s refusal to consider an argument made during closing submissions and after the evidence was closed:
First, it is important to keep in mind that the Tribunal is not exercising its powers at large. As the Full Court pointed out in Lees, the powers of the Tribunal are powers for the purpose of reviewing the reviewable decision. The starting point for any exercise of power by the Tribunal is accordingly the reviewable decision, in this case that of the Senior Review Officer at Comcare. In this respect I also note the Tribunal’s statement at [19] of its reasons that the Tribunal was notified – for the first time – of the applicant’s intention to advance an argument for permanent impairment compensation under ss 24 and 27 of the SRC Act arising from an MDD ‘injury’ and to ventilate the jurisdictional issue during closing submissions after all of the evidence was closed. The Tribunal clearly took the view, on the basis of the material before it, that an MDD ‘injury’ had never been raised by the applicant before Comcare.
(Original emphasis.)
The observations from Walters and Mununggurr are applicable to the current application. The Tribunal agrees that it would be procedurally unfair to permit the Applicant to change his case at this late stage, particularly when the hearing and the evidence have been concluded. Similarly, if the argument had been put at the commencement of the hearing, the hearing is likely to have “taken a different course”, and the parties are likely to have presented their cases differently, including by putting the definitions of an injury simpliciter and a disease to the expert witnesses for comment in light of the medical evidence.
Consequently, the Tribunal declines to consider the submission of the Applicant’s new legal representative that the “injury” provisions of s 5A may apply to each application.
Notwithstanding this finding, the Tribunal considers that, based on the material before it and the steps identified in May, the Applicant’s claimed conditions are best characterised as “ailments”, with the Ross River virus reinfection being an aggravation of an existing ailment (May). The Applicant’s conditions meet the definition of an “ailment”, which covers a physical ailment or morbid condition and covers a range of physical and mental illnesses (Mooi), with “morbid” being a “characteristic of disease” (Vo).
Although an injury can include a “sudden physiological change resulting from a disease” (Kennedy Cleaning, per Gaudron J at 303; see also Gleeson CJ and Kirby J at 299), suddenness is not necessarily determinative (May at 481). The Tribunal is of the opinion that the viral and parasitic infections, including strongyloides, are better defined as a change in underlying pathology or as having a “disease pathology” rather than as being “a dramatic physiological change or disturbance of the normal physiological state” in the primary sense of an injury (Gleeson CJ and Kirby J in Kennedy Cleaning at 300).
The Tribunal also makes the general observation that viral infections, such as Ross River virus, chronic fatigue syndrome and bowel conditions have often been considered under the category of diseases (see, for example, Re Williams and MRCC (2005) 40 AAR 447; [2005] AATA 477; Re Hannaford and Telstra Corporation Limited [2008] AATA 879; Re Walker and Comcare [1991] AATA 16; Re Stroud and Comcare [2002] AATA 350). Caution does, however, need to be exercised in drawing analogies with other cases because the case law makes it clear that whether something is a physical injury or a disease must be determined on a case by case basis with reference to precise evidence (Gleeson CJ and Kirby J in Kennedy Cleaning at 294 and 300).
For completeness, in Comcare’s Closing Submissions (page 34, para [66.2]; see also Reply at page 22, para [50]), Comcare submitted that the conditions of chronic fatigue syndrome and fibromyalgia were not “ailments” because the medical evidence of Dr Reiter was that those conditions were a collection of subjectively experienced symptoms in the absence of a physiological change. Several authorities were cited in support including this Tribunal’s decision (with Deputy President Boyle) in Chu Yu Chee and Comcare [2018] AATA 1241 at [66]–[67] where the following was stated:
66.In Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ, in a joint judgment, cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.
67.Their Honours went on to state that, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury (at 381). That is, merely feeling unwell, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’ (Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369 per Gaegler J at 385).
(Emphasis added.)
The Tribunal disagrees with Comcare’s submission. There is conflicting medical evidence about the cause of the chronic fatigue syndrome and fibromyalgia. Some experts (such as Dr Reiter whose evidence is discussed below) opine that the conditions are a collection of symptoms with an unknown cause. However, others (including Dr Will and Dr Hamzah, also discussed below) are of the opinion that a viral infection could trigger these conditions, which does suggest some physiological change. However, even if these conditions are regarded as a collection of symptoms, as was contemplated in May, the symptoms are capable of being explained by a “known diagnosis”. If that diagnosis is made by a qualified medical practitioner, that is enough for there to be an “ailment”, an “injury (other than a disease)” or an “aggravation of an ailment” for the purpose of the SRC Act. An analogy can be drawn with mental health conditions such as depression and anxiety, which are recognised as “ailments” despite being a collection of symptoms with no underlying physiological cause (such as a hormonal or chemical imbalance in the body).
Additionally, Comcare has sought to do what it has criticised the Applicant as having done. That is, the submission that chronic fatigue syndrome and fibromyalgia were not “ailments” was not made at or before the hearing. It would therefore be procedurally unfair to the Applicant to permit Comcare to change its case in this manner in the weeks after the hearing.
The Tribunal has therefore proceeded on the basis that these conditions are, to put it simply, compensable. In any event, the Tribunal’s refusal to accept Comcare’s submission is not material to the outcome because the Tribunal has found below that the substantial contribution test could not be satisfied with respect to chronic fatigue syndrome and fibromyalgia.
Proceeding on the basis that the Applicant’s claimed conditions are “ailments”, the current applications need to be determined on the basis of the significant degree test, as set out in the “disease” provisions in s 5B of the SRC Act. The significant degree test, as it applies to each application, has been stated above in the sections pertaining to each reviewable decision.
Submissions on s 7(1) and (2) of the SRC Act
In the Applicant’s Closing Submissions, at paras [74]–[83], his new legal representative further sought to reformulate the Applicant’s case by raising a new argument based on ss 7(1) and 7(2).
Section 7(1) is a type of deeming provision which provides:
(1)Where:
(a)an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b)the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and
(c)the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.
The Applicant’s representative submitted that the relevant legislative instrument is item 28 of the Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1) (para [76]):
28
Occupational infectious or parasitic diseases.
Employment carrying a particular risk of contamination including:
(a) Health or Laboratory work;
(b) Veterinary work;
(c) Work handling animals, animal carcasses, parts of such carcasses, or merchandise which may have been contaminated by animals, animal carcasses, or parts of such carcasses.
Section 7(2) provides:
Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.
Again, these submissions are entirely new and amount to a “substantial recasting” (Walters, at [41]) of the Applicant’s case. They were only raised in the Applicant’s Closing Submissions received some months after the hearing. As such, they represent a significant post-hearing change in the Applicant’s case. In Heffernan v Comcare (2014) 218 FCR 1; [2014] FCAFC 2 (Heffernan) at 8 [39], Allsop CJ observed:
The courts have been careful and forceful to identify the great harm in the filing of submissions without, or outside, leave given: see generally, and only by way of example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [192]; and Bale v Mills (2011) 81 NSWLR 498 at [54]–[61]. The prompt and fair despatch of business in the Tribunal requires order and regularity in the provision of evidence and submissions for the Tribunal’s consideration. Nothing obliges the Tribunal to consider arguments sent to it after a hearing, without leave, and of which the other side has had no notice.
(Emphasis added.)
In Wuth and Comcare [2020] AATA 3625 (Wuth), the Tribunal declined to consider a submission made by Comcare at a late stage in the proceedings:
105.At a very late stage in these proceedings, Comcare submitted that Ms Wuth’s claim (which I take to mean, her claim for a work-related injury pursuant to s 14) is not compliant with the provisions of s 53, and as such is not covered by the provisions of the Act. …
108.The consequence of a finding that s 53 applies to a claimed condition is that the condition cannot be considered an injury for the purposes of the Act.
109.The Tribunal notes the extraordinary circumstances in which this submission is advanced. As far as it can tell, s 53 has not previously been relied upon at any stage in a process which began more than a decade ago. Indeed, Comcare accepted in a consent decision dated September 2012 that Ms Wuth suffered from a work-related headache condition. Aspects of her claims for compensation have been before the Federal Court twice and the Tribunal twice and it is only now, towards the very end of the second proceeding in the Tribunal, that the issue has been raised. It is far from apparent what it was that constrained Comcare from advancing this argument previously.
110.There is nothing at law which prevents Comcare, as respondent to an injured worker’s claim, from raising a relevant statutory bar to that claim at any stage in the proceedings. However, the Tribunal has a duty to observe procedural fairness. The issue of s 53 was not pleaded in Comcare’s Statement of Facts, Issues and Contentions, nor adverted to explicitly during the hearing. As such, the opportunity to take evidence on matters relevant to this submission (for example, matters relevant to the considerations in s 53(3)(c)) was lost.
111.Accordingly, the Tribunal declines to consider the submission of Comcare with respect to s 53, on the basis that to do so would perpetrate considerable procedural unfairness on the applicant.
(Emphasis added.)
In a letter to Dr Hannay dated 9 August 2016, Dr Ford identified that the Applicant had “depressive symptoms” including “poor concentration & memory”, “low mood”, “altered sleep cycle” and “anger” (A3/file 1/216). Dr Proud stated that the Applicant was “dealing with multiple issues at present with significant physical illness, multiple legal issues and [sic] well as significant financial stress in the setting of his ongoing Comcare claims”. Dr Proud also stated that the Applicant:
… is in severe pain and he sometimes wishes he was dead to escape from that but doesn’t seem to have active suicidal ideation. His mood is quite low and he has constant thoughts about his illness.
Dr Proud then outlined some of the difficulties that the Applicant had in his workplace (A3/file 1/217). These are similar to the submissions made in paragraph [328] above concerning various stressful events at the Applicant’s workplace:
In 2010 [the Applicant] took up a cross cultural … program which involved a master degree in [the Remote Area in the Northern Territory]. It was there that he went to [the Claimed Location] in 2010 and became very ill in the setting of some of the traditional ceremonies. This seemed somewhat flu like since then he has had ongoing symptoms of illness. He entered various deployments over that period but had constant illness. He discovered some Aboriginal descent and started to identify as such which he believes precipitated some racism in the setting of his employment. He then went on to experience increased difficulties from 2012 in his deployment to [the Town where the Regional Agency Office is Located]. This time he was getting sicker with a swollen tongue and lymph nodes, feeling more tired and fatigued. There was some difficulty getting diagnosed and I believe in 2013 he was diagnosed with Kunjin and Murray Valley encephalitis. This came on the back of the 2005 Ross River diagnosis. It didn’t explain his gastrointestinal symptoms and further investigations saw Strongyloides diagnosed in 2015.
In the setting of this he perceived a pattern of discrimination against him. He tells me he was banned from overtime with the idea of helping his recovery though at this point he hadn’t used all his sick leave, and this was costing him of the order of $40,000 a year. This overtime was redistributed amongst his officer in charge and his friends. He believes this was done to punish him. As soon as he made the claim that he required in Ivermectin treatment for a life threatening illness then the overtime ban was removed and he was given extended shifts and asked to delay his treatment which he again saw as an attempt to harm him. At this point he put in a Comcare claim which I believe was denied. I believe there has been an internal affair investigation of that claim because he believes the claim was sabotaged with only one third of the document[s] submitted. This was declined though I believe a subsequent claim has been made.
I believe there has been some difficulties with release of his medical information to peers and breaches of his privacy which have been supported by internal affairs. There are ongoing legal claims pending in relation to this matter. …
At interview [the Applicant] was obviously distressed when discussing these matters but delivered the information in a very clear fashion. There is nothing to suggest pervasive depressive disorder. Certainly there is a tendency to ruminate on his illness. He is high achieving by nature with some perfectionism and pride in his abilities which is perhaps causing him complications now.
In another letter to Dr Hannay, dated 23 September 2016 (A3/file 1/219), Dr Ford stated:
Issues
1. Significant physical illness - ? CFS / IBS
2. Major depression
3. Multiple legal issues
4. Significant financial stress in the setting of his ongoing, Compare [sic] claims.
I reviewed [the Applicant] via Skype on the 23rd of September 2016. In the six weeks since I last spoke to him it seems like his mood has decreased. He is feeling much lower and is seldom leaving the house. His confidence is down and certainly his somatic symptoms are a huge part of that. He is focused frequently on illness and has catastrophic thoughts about his future. This is consistent with a secondary depressive disorder related to his physical symptoms. I think it is likely that this will respond to antidepressant therapy.
(Original emphasis.)
In a subsequent letter to Dr Hannay dated 14 February 2017 (A3/file 1/220), Dr Ford stated:
Issues
1. Somatoform disorder CFS, IBS
2. Major depression/adjustment
3. Multiple legal issues
4. Significant financial stress
5. Recent loss of relationship and likely loss of house
[The Applicant] asked to contact me because of deteriorating function and I spoke to him by Skype on 10 February 2017. …
There is lots of worry about his finances as well as his health. He has got suicidal ideation particularly when in pain and this really relates to his pain and sickness.
It seems [the Applicant’s] issues really are in the line of adjustment to his chronic illness as well as some somatoform concerns. There is a possible major depressive component though I’m not convinced that this is all about psycho-pharmacological optimisation on its own. …
(Original emphasis.)
In a further letter to Dr Hannay, dated 27 March 2017 (A3/file 1/221), Dr Ford listed the same issues as he did at the commencement of his letter dated 14 February 2017. He continued:
I spoke to [the Applicant] by telehealth on 24 March 2017. Unfortunately he has some adverse news in relation to his legal case. He has been very disappointed in one of the independent medical reports and feels that it contains significant errors. He quite rightly associates this ongoing stress with a failure of his symptoms to resolve. He is troubled now by fairly global pain which hadn’t been such an issue previously. …
His mood has been stable but certainly suffering given the stressors on his parents and the financial issues.
His symptoms are much more in keeping with chronic fatigue at present.
Dr Proud, in a report dated 8 March 2019 (A3/file 1/236) stated:
As a result of his multiple physical problems, the alleged indifference of the [Agency] to his situation and his legal situation, he has developed secondary symptoms of anxiety and sadness with thoughts of suicide, but he has made no attempt to harm himself. He also has excruciating pain in his lower back going down his legs.
Dr Proud continued (A3/file 1/237):
What I can say is that [the Applicant] does not have a primary psychiatric illness that can account for all of his symptoms. He undoubtedly does have some secondary anxiety and depression, however they are secondary and not primary and not the cause of his symptoms.
He may indeed have a neuropsychiatric and physical chronic syndrome secondary to his viral and Bartonella infections. This is a controversial area. There will be true believers who take this to be the case and there will be sceptics who take it not to be true.
I can also say that [the Applicant] certainly believes that his [sic] all of his problems are secondary to all of his infections. He does freely acknowledge that he has a lot of anger and resentment from what has happened in the [Agency] but he certainly states that he is not malingering or fabricating his symptoms. It can be that his symptoms are secondary to an infection, or it can be that they have developed a life of their own, and if there had not been any medicolegal industrial issues they may have settled down. It is impossible to say.
Dr Lee, in a report dated 4 July 2019 (A3/file 1/230) stated:
I do not find that there is any psychiatric condition. His numerous somatic symptoms if unfounded to be due to any organic cause would certainly be consistent with a somatisation disorder. However, it is beyond my expertise to comment on whether those investigations and treatments were warranted or adequate. His beliefs regarding his somatic symptoms are not of a [sic] an unusual nature. They are not delusional. His reaction with low mood and frustration would be appropriate to a person who is frustrated and angry and limited by his physical symptoms as well as still having complicating medico-legal issues. However, the primary psychological perpetuating factor appears to be the perceived mistreatment from the [Agency] towards his physical symptoms. I would not diagnose a psychiatric condition. My impression is that his reaction is appropriate to his perceived physical symptoms; however, the validity of his physical symptoms would be beyond my expertise to comment on.
Although Dr Ford and Dr Proud were not definitive in their diagnoses of the Applicant, both believed that the Applicant was suffering from a psychological condition that was secondary to his physical illnesses. For example, Dr Ford referred to the Applicant having “a secondary depressive disorder related to his physical symptoms” and Dr Proud referred to the Applicant having “secondary anxiety and depression”. Dr Ford also referred to “some somatoform concerns”. Dr Lee did not diagnose the Applicant with a psychiatric condition, commenting that the Applicant’s “reaction is appropriate to his perceived physical symptoms”. Overall, this evidence suggests, and the Tribunal finds, that the Applicant does suffer from a secondary depressive disorder.
However, what is problematic for the Applicant is that the psychiatric evidence tends to suggest that there were multiple causes of any secondary psychiatric condition that the Applicant suffers from. These causes include:
(a)the Applicant’s multiple physical problems arising from his conditions, including being in ongoing pain;
(b)his perceptions of mistreatment at work (see paragraph [328] above) including racism, discrimination, problems with colleagues, perceived sabotage of his Comcare claim, breaches of privacy, and problems obtaining overtime and taking time off work to obtain medical treatment;
(c)frustration with the Comcare claims process including perceived errors in medicolegal reports;
(d)financial stress;
(e)the loss of a relationship; and
(f)concerns about the stress on family members.
This list of causes of the Applicant’s secondary psychiatric conditions includes causes that are not related to work (for example, frustrations with medicolegal issues or with the claims process, financial stress, the breakdown of his relationship, and concerns about family members) or which are outside the scope of the Applicant’s claim because they relate to his treatment in the course of his employment generally (for example, perceived mistreatment at work). An additional complication is that, as the Tribunal has found above, not all of the Applicant’s physical ailments were work-related, with the Tribunal finding above that it was only the Applicant’s strongyloides and post-infectious irritable bowel syndrome that met the significant contribution test. It is therefore difficult to ascertain the degree to which these ailments contributed to the Applicant’s depressive disorder. Consequently, the Tribunal finds that the Applicant has not been able to establish that his attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010 or any ailment he contracted there, contributed to his developing “stress and anxiety” (more appropriately a “secondary depressive disorder”), to a significant degree.
For completeness, as was discussed under the heading of the First Reviewable Decision, the Applicant’s Closing Submissions invited the Tribunal to find that the Applicant suffered from somatoform disorder. As was explained in that section above, this condition was not part of the Applicant’s claim, and was not considered in any part of the claims process. It is therefore not before the Tribunal as part of the First Reviewable Decision. As was also identified above, it is difficult to see how, if the Tribunal did not find there was any primary injury or disease, the Applicant could succeed solely on the condition of somatoform disorder. However, even if the Tribunal was to decide, for example, that the Applicant suffered from a secondary somatoform disorder instead of a secondary depressive disorder, the same issues with there being multiple possible causes (including non-employment related causes), as explained in the preceding paragraph, would exist.
Additionally, in the Applicant’s Closing Submissions, the Applicant referred to Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464 (Wiegand) (pages 92–93 of Applicant’s Closing Submissions). The submission was that the Applicant suffered a “primary mental ailment” due to:
one or more work stressors directly or organically causing stress/anxiety; and/or … his not unreasonable perception of bullying, racial discrimination, unfair delayed treatment, lack of concern for his welfare, or other unfair conduct in a Wiegand v Comcare [citation omitted] sense.
Comcare correctly points out in their Closing Submissions (page 29) that there was no evidence put forward as to whether these described incidents occurred (although the Tribunal does note that there was some evidence of the Applicant’s breach of privacy complaint: see A3/file 3/160–161). As was stated by the Federal Court in Wiegand, at page 797, para [31]:
[i]f the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
However, as well as there being a lack of evidence as to whether the various incidents (bullying, racial discrimination, leave and overtime being denied) occurred, more fundamentally, the Applicant’s submission seeks to reformulate his claim to cover a broader period of time and additional locations. Consequently, it cannot be concluded that the condition of “stress and anxiety” (which includes depression and anxiety) was contributed to, to a significant degree by his attendance at the Cross-Cultural Program at the Claimed Location in July 2010, or as a sequela of any ailment he contracted there.
Low testosterone (hypogonadism) and sexual dysfunction
The Applicant’s final claim, which is the subject of the Fourth Reviewable Decision, is a claim for low testosterone (also known as hypogonadism) and sexual dysfunction. The Applicant’s submissions concerning this claim are found in the Applicant’s Closing Submissions (pages 83–86). The submissions referred to an attachment to the Applicant’s claim (R5/T6/27) in which the Applicant stated:
It is critical to note that it is extremely likely that this condition is caused by the compounding effect of:
·Infections – work place contracted. As noted by Dr Hannay and Dr Taylor
·Weight gain – as opined by Dr Tuch 5 November 2012 (Report J) “He has also put on a fair amount of weight over the last year. He probably eats out of stress … and frustration more than anything else” due to work place stress. It also should be noted that weight gain is one of the main symptoms of low testosterone and I was already suffering from infections and using opioid medications for the pain symptoms of those infections
·Opioid medications – prescribed to relieve the severe ongoing pain associated with the infections (and post infectious complications) acquired in the workplace
·Workplace stress and anxiety
·Inability to exercise due to post infectious chronic pain and fatigue
The Tribunal will now review the medical evidence concerning this condition. Consultation notes recorded by Dr Hannay dated 9 September 2016 (R5/T6.C/32) recorded:
Libido issues,
previously mentioned to me penile and testicular sensations/ pain reported here before ,
Libido very poor,
reports less erectile episodes, disinterested,
Doesn’t know if full body illness affect, or id [sic] it the medication ??
lower to ejaculate, and more difficult, to get there
On 23 September 2016, consultant psychiatrist Dr Ford stated in a letter to Dr Hannay (A3/file 1/219):
One of [the Applicant’s] big concerns is loss of libido and sex drive. Interestingly his physiological erections are retained and I think it is clear evidence of secondary sexual dysfunction almost certainly related to the mood symptoms he is experiencing.
In a Comcare medical certificate for compensation dated 10 October 2016 (R5/T6.D/35), Dr Hannay stated a diagnosis of “sexual dysfunction as detailed as a compounding complication of the combination of physical illnesses, medication and Depression”.
Dr Hannay stated his view that the condition was caused by a “combination of physical illnesses - strongyloides, [indecipherable] viruses and Bartonella, medication [indecipherable] analgesia, Duloxetene, [sic] Colofac and depression”.
Consultation notes recorded by Dr Hannay dated 14 November 2016 (R5/T6.F/38) stated: “recently diagnosed with depression, and sexual dysfunction”.
Test results dated 16 June 2017 recorded “Low testosterone, with borderline Calculated Free Testosterone” (R5/T6.G/39).
A letter dated 10 July 2017 from Dr Andrew Taylor to Professor Tim Davis (R5/T6.H/41) stated that the Applicant, “has had numerous ineffective diseases that have possibly now led him to low testosterone levels”.
In a letter dated 17 October 2017, endocrinologist Professor Tim Davis, diagnosed the Applicant with low testosterone concentrations (R4/T6.I /42):
[The Applicant] has had two documented low serum testosterone concentrations (below 6 mmol/L) in association with an inadequate gonadotrophin response. As discussed informally, these almost certainly reflect his chronic opioid use in association with visceral obesity. I do not think they have anything to do with past infections as it is very likely indeed these have been treated effectively. This includes his Strongyloides and Bartonella infection is that were [sic] managed by Miles [sic] Beaman amongst others. …
he should start regular testosterone replacement and he has my endorsement for this given his biochemical results.
In a letter dated 8 February 2019 (A3/file 1/115), Dr Hannay wrote:
[The Applicant] also suffers from sexual dysfunction and has hypogonadism/low testosterone levels, which necessitates replacement hormone therapy injections every 10 weeks. Hypogonadism/low testosterone is usually divided into two categories; inherited (congenital) or caused by something that happens later in life (acquired) such as an injury or an infection. With concurrent illness the reproductive system can temporarily shut down due to the physical stress of an illness or surgery, as well as during significant emotional stress. Opioid medication is also known to cause testosterone levels to drop and [the Applicant] has been prescribed this medication to alleviate the daily pain he suffers due to the compounding effect of multiple infections.
The Applicant submitted that his hypogonadism and sexual dysfunction was “a sequela to the various infections and injuries that the applicant sustained in the [Agency] workplace” (page 84 of Applicant’s Closing Submissions). This, like various other submissions detailed above, is another example of the Applicant’s claim being reformulated more broadly, to cover the general nature and conditions of his employment over a broader period.
An additional problem for the Applicant is the evidence with respect to workplace contribution towards his low testosterone and sexual dysfunction. With respect to the Applicant’s sexual dysfunction, Dr Ford identified the cause as being his “almost certainly related to the mood symptoms he is experiencing”. However, the Tribunal has concluded above that the Applicant’s secondary psychological condition was not adequately associated with his employment because it did not meet the significant contribution test.
Further, with respect to the Applicant’s diagnosis of low testosterone (hypogonadism), endocrinologist Professor Davis believed that it was not caused by his ailments, including strongyloides and bartonella, which he had recovered from. It cannot then be concluded as being a sequela of the condition of strongyloides. Although the Tribunal has found that liability should be accepted for post-infectious irritable bowel syndrome, there is no connection identified in the medical evidence between post-infectious irritable bowel syndrome and low testosterone (hypogonadism). The causes of the Applicant’s low testosterone (hypogonadism) identified in the medical evidence outlined above included his weight gain (which Dr Tuch attributed to “stress” – see R4/T6.J/45) and his chronic opioid use (which Dr Hannay identified was “to alleviate the daily pain he suffers due to the compounding effect of multiple infections”). As noted in the preceding paragraph, the Tribunal has found that stress or “mood symptoms” are not sufficiently associated with the Applicant’s employment. As well as this, the Applicant’s opioid use was connected to his ongoing ailments, however, the Tribunal has determined that the Applicant had recovered from strongyloides in November 2015, that his bartonella was likely a false positive, and that his other ailments did not otherwise meet the substantial contribution test.
Consequently, it cannot be concluded that the Applicant’s sexual dysfunction and low testosterone (hypogonadism) were contributed to, to a significant degree, by his attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010, or as a sequela of any ailment he contracted there.
FURTHER MATTERS TO BE TAKEN INTO ACCOUNT UNDER s 5B(2)
In addition to the above discussion, with respect to whether the Applicant’s ailments were contributed to, to a significant degree, by the Applicant’s employment, the Tribunal has also considered the following factors contained within s 5B(2) of the SRC Act:
(a)Duration of employment (s 5B(2)(a)):
The Applicant commenced employment as an Officer with the Agency on 12 March 2007 (A3/file 3/28) and has not worked since November 2015 (A3/file 3/31). The Applicant’s claims were for injuries sustained on 16 July 2010 and so the duration of his employment raises the possibility that his injuries could have occurred at other times during his employment that were outside of the date of his claim;
(b)Nature of, and particular tasks involved in, the employment (s 5B(2)(b)):
The Applicant was stationed in the Town where the Regional Agency Office is Located, in a remote region of Western Australia. In his evidence at the hearing he described his role as being more “field based” for the “first several years”. This involved doing patrols in the area surrounding the Regional Agency Office on foot, bike or car over large distances, taking approximately two hours. He was also tasked with [redacted] (transcript/59). The Applicant undertook courses to progress his career and was promoted to a Supervisor/Team Leader position in approximately 2009 (transcript/60; A3/ file 3/36). As part of his role he was deployed to undertake duties in Perth and Canberra. Between 11 June 2010 and 18 June 2010, he participated in the Cross-Cultural Program at the Claimed Location in the Northern Territory. In June 2011, he was deployed to [redacted] for a month where he was second in charge. He participated in the second part of the Cross-Cultural Program at the Claimed Location from 10 July 2011 to 17 July 2011, and the third and fourth parts of the program between 8 July 2012 and 14 July 2012 and 8 July 2013 to 14 July 2013 at the Second Location of the Cross-Cultural Program in the Northern Territory (A3/file 3/29). Similarly to the preceding factor, the diversity of the locations where the Applicant worked raises the possibility that any injuries sustained by the Applicant could have occurred at a location other than at the Claimed Location. However, the Tribunal nevertheless remains of the opinion, based on the medical evidence discussed in detail above, that the Applicant contracted strongyloides whilst attending the Cross-Cultural Program at the Claimed Location on 16 July 2010.
(c)Any pre-disposition of the employee to the ailment or aggravation (s 5B(2)(c)):
The Applicant contracted Ross River virus in 2005 prior to his employment with the Agency. However, the Tribunal has accepted the evidence of Professor Beaman and Professor Korman that there was no reinfection of Ross River virus, as claimed by the Applicant. The Tribunal has also found above that the Applicant developed post-infectious irritable bowel syndrome as a result of his strongyloides. The Applicant had some history of childhood illnesses, however, based on the accepted medical evidence before the Tribunal, his extreme symptoms experienced during the Cross-Cultural Program at the Claimed Location on 16 July 2010 were not a continuation of any earlier symptoms. In addition, Dr Reiter’s evidence was that the Applicant had anxiety and depression in his medical history, and although these were amongst the risk factors for fibromyalgia, they were not causative, and his fibromyalgia was unrelated to his employment.
(d)Any activities of the employee not related to employment (s 5B(2)(d)):
As outlined above in the section on the Applicant’s evidence, he obtained permission from the Agency to undertake the role of safari tour guide in 2009 and 2011. In 2009 he undertook five days’ work, and in 2011 he undertook one day of work, as a safari tour guide (A3/file 3/28). The Applicant enjoyed undertaking outdoor recreational activities including boating, fishing, diving and motor bike riding (A3/file 3/36). In his expression of interest for the Cross-Cultural Program, the Applicant stated, “I have a passion for the outdoors and spend much of my leisure time in the bush” (R6/2). He also stated in his application that he was a member of a speleology group, which involved recording and logging new cave systems (R6/2; see also transcript/152). This evidence also raises the possibility that the Applicant may have contracted some of his ailments outside of his employment, with the exception of strongyloides which was established, on the medical evidence, to have been contracted by the Applicant in July 2010 at the Cross-Cultural Program at the Claimed Location.
(e)Any other matters affecting the employee’s health (s 5B(2)(e)):
As discussed above, the Applicant’s weight and his opioid use appear to have affected his diagnosis of low testosterone, however, these factors appear to be, from the medical evidence, due to stress eating and as a result of his ongoing medical conditions. As discussed above, a proportion of the Applicant’s stress and anxiety appears to be due to factors outside of his employment, such as the stress of his Comcare claim, financial stress (including worry about being unable to maintain his mortgage repayments) and worrying about the impact of his illness on family members.
Based on the above discussion of the factors in s 5B(2), and the detailed consideration of the evidence in the preceding sections of these reasons, the Tribunal concludes that the Applicant’s strongyloides ailment (which the Applicant suffered from between 16 July 2010 and 2 November 2015), was contributed to, to a significant degree, by his attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010. The Tribunal also concludes that the Applicant’s post-infectious irritable bowel syndrome is a sequela of his strongyloides that was contributed to, to a significant degree, by that ailment. However, his other claimed ailments do not meet the significant degree test.
INCAPACITY OR IMPAIRMENT
Additionally, for Comcare to be liable to pay compensation under s 14, the “injury” suffered by the Applicant must result in “death, incapacity for work, or impairment”.
As is evident from the medical evidence before the Tribunal, including numerous medical certificates written by Dr Hannay, the Applicant was incapacitated, or at the very least, suffered an impairment, as a result of his strongyloides and post-infectious irritable bowel syndrome. For example, Dr Will stated in a medical report dated 13 February 2017 (R4/T7.E/48, 49, 52):
He [the Applicant] went on prolonged sick-leave in February last year because of his inability to work due to a set of chronic symptoms including widespread pain, fatigue which is profound, nausea and frequent diarrhoea occurring up to ten times daily. …
The other significant problem since 2010 has been continuing diarrhoea with some bowel leakage on occasion, which interrupts his sleep at night. This has improved since he has been using Norspan. This helps him to get to sleep and he can have two to three hours of sleep, but he is usually woken at least three times a night. …
The other barriers affecting [the Applicant’s] ability to return to work include his post Strongyloides irritable bowel syndrome and his severe ongoing fatigue.
In conclusion, the Tribunal finds that the Applicant was incapacitated, or at the very least, suffered an impairment, as a result of his strongyloides and his post-infectious irritable bowel syndrome.
CONCLUSION
The Tribunal has found that the Applicant’s attendance at the Cross-Cultural Program at the Claimed Location on 16 July 2010, contributed to, to a significant degree, the Applicant suffering from strongyloides between 16 July 2010 and 2 November 2015, and from post-infectious irritable bowel syndrome, which he continues to suffer from. The Tribunal has found that these ailments resulted in the Applicant suffering from incapacity, or at the very least, impairment. Therefore, Comcare should accept liability to pay compensation under s 14 for these ailments.
More generally, there is no doubt that the Applicant suffers from chronic and debilitating medical issues that have rendered him incapacitated for work. However, unfortunately, the medical evidence before the Tribunal, together with the requirements of the statutory regime, including the level of workplace contribution required by the SRC Act, have resulted in a substantially negative outcome for the Applicant.
The Applicant will undoubtedly be disappointed and discouraged by the Tribunal’s decision after what has been a lengthy process since his initial claim was made. However, the Tribunal notes that he will now be able to submit further claims to Comcare for compensation for injuries resulting in incapacity under s 19 and for the medical expenses associated with his strongyloides and his post-infectious irritable bowel syndrome under s 16 (although the Tribunal notes that a claim for compensation in respect of medical expenses under s 16 is not dependent on liability being accepted under s 14; see Hutchinson v Comcare [2018] AATA 4357, where Deputy President Boyle stated at paragraph [35], “it is important that it be made clear that prior acceptance of liability for an injury, whether under s 14 or another section of the SRC Act, is not a condition precedent to liability under s 16 or s 20 of the SRC Act”). In making this observation, the Tribunal expresses no view as to the likely outcome of any such claims which will require determination by Comcare.
In the Applicant’s Closing Submissions, the Applicant’s counsel submitted that the Tribunal should also make an order that Comcare pay for the costs of medical treatment obtained by the Applicant under s 16 of the Act (see pages 116–117). However, s 16 is not a general liability provision and no claims for medical treatment are currently before the Tribunal. The Applicant will need to submit claims for his medical expenses for Comcare to determine. Until he does so, and until the entire claim process (requiring a determination and redetermination) is completed through Comcare, the Tribunal has no jurisdiction to make a decision with respect to s 16.
The Tribunal also acknowledges the efforts of the Applicant’s mother and brother to assist him. As noted above, the Applicant was legally represented by two consecutive law firms but became self-represented in the year prior to the hearing. The Applicant’s mother, despite having no legal experience, did her best to represent her son at numerous telephone directions hearings and to compile and file documentation on his behalf. The Applicant’s brother, who was also not legally qualified, undertook the role of his advocate during the hearing. The Applicant’s brother did a commendable job representing the Applicant at the hearing and his cross-examination and grasp of the medical evidence was at the very least equal to that of many legally trained persons who appear in the Tribunal.
DECISION
For the reasons outlined above, the Tribunal decides that the:
(a)The First Reviewable Decision is set aside and substituted with a new decision that:
(i)liability is accepted under s 14 of the SRC Act for strongyloides between 16 July 2010 and 2 November 2015 and post-infectious irritable bowel syndrome from 16 July 2010 onwards; and
(ii)liability is not accepted under s 14 of the SRC Act for the remainder of the conditions that the Tribunal has determined are part of the First Reviewable Decision.
(b)Second Reviewable Decision, Third Reviewable Decision and Fourth Reviewable Decision are affirmed.
As the Applicant has only been partially successful in one application (being the First Reviewable Decision), the Tribunal does not consider it appropriate to exercise its discretion under s 67(8) of the SRC Act to award costs. Therefore, the Tribunal refuses to award costs in this matter.
370. I certify that the preceding 369 (three hundred and sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.....[Sgd]...................................................................
Associate
Dated: 12 August 2021
Dates of hearing:
Date last closing submission filed:
7 September 2020 to 11 September 2020
25 March 2021
Applicant: Self-represented and assisted by his mother and brother; Applicant’s amended closing submissions prepared by B L Nugawela of counsel, instructed by Mr K Wong of Soul Legal
Counsel for the Respondent: Mr P G Woulfe, Blackburn Chambers Solicitors for the Respondent: Mr L Woolley, Sparke Helmore Lawyers ANNEXURE – GLOSSARY
371. Agency
[Redacted]
372. Claimed Location
[Redacted]
373. Cross-Cultural Program
[Redacted]
374. Officer
[Redacted]
375. Regional Agency Office
[Redacted]
376. Remote Area in the Northern Territory
[Redacted]
377. Second Location of the Cross-Cultural Program in the Northern Territory
[Redacted]
378. Third Location of the Cross-Cultural Program in the Northern Territory
[Redacted]
379. Town where the Regional Agency Office is Located
[Redacted]
0
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