Walters and Comcare (Compensation)
[2021] AATA 14
•14 January 2021
Walters and Comcare (Compensation) [2021] AATA 14 (14 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/1963
Re:Anita Walters
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:14 January 2021
Place:Canberra
The reviewable decision of Comcare, dated 7 December 2018, denying liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for a fatigue condition, is affirmed.
.......................................................................
Deputy President Gary Humphries AO
Catchwords
WORKERS COMPENSATION – chronic fatigue syndrome – whether chronic fatigue syndrome is a disease pursuant to section 5B of the Safety, Rehabilitation and Compensation Act 1988 – if so, whether chronic fatigue syndrome was contributed to, to a significant degree, by a viral infection contracted while the Applicant was posted in India – whether the Applicant’s employment contributed, to a significant degree, to the contracting of the viral illness – chronic fatigue syndrome not contributed to, to a significant degree by the Applicant’s employment – Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 486 considered – chronic fatigue syndrome does not satisfy the definition of an injury for the purposes of section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14
Cases
Australian Postal Corporation v Lucas [1991] FCA 612
Beezley v Repatriation Commission [2015] FCAFC 165
Comcare v PVYW (2013) 250 CLR 246
Comcare v Stefaniak [2020] FCA 560
Dring v Telstra Corporation Ltd (2020) 295 IR 329
Favelle Mort Ltd v Murray [1976] HCA 13
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Mununggurr v Comcare [2020] FCA 1786
Priestley and Comcare [2019] AATA 5456
Telstra Corporation Limited v Bowden [2012] FCA 576
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] AATA 4774
Wuth and Comcare [2020] AATA 3625
Secondary Materials
C Michael Bowers (ed), Forensic Testimony: Science, Law and Expert Evidence, cited at FOR DECISION
Deputy President Gary Humphries AO
14 January 2021
Anita Walters is an employee of the Department of Foreign Affairs and Trade (DFAT). She took up a posting at the Australian High Commission in New Delhi, India, in March 2015. However, she experienced several health complaints while there, and eventually returned prematurely from this posting in August 2017 on health grounds. She remained unwell, suffering in particular from fatigue, on her return to Australia, and in October 2018 her general practitioner diagnosed Chronic Fatigue Syndrome (CFS).
In August 2018 she submitted a claim for workers compensation for severe fatigue related to an illness contracted in India while on long term posting to New Delhi.[1] In October 2018 Comcare denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the fatigue condition, and affirmed that determination following reconsideration on 7 December 2018. In April 2019 Ms Walters sought merits review of that reviewable decision by this Tribunal.
[1] In this decision italics generally connote a direct quotation.
CONDUCT OF THE PROCEEDINGS
The course of these proceedings altered several times between the filing of statements of facts, issues and contentions (SOFICs) by the parties and the lodging of final submissions over the course of almost a year. The SOFIC lodged by Ms Walters in December 2019 argued that the claimed injury sustained by her could be considered either (or both) a disease pursuant to s 5A or an injury (other than a disease) (or injury simpliciter) pursuant to s 5B of the Act. However, at the commencement of the hearing in April 2020 she appeared to abandon the contention that it fell into the latter category. Then, after the conclusion of the hearing, the claim that the injury could be an injury simpliciter was revived in submissions by Ms Walters. At the April hearing Ms Walters pressed Comcare on whether it accepted that she suffered from CFS, or whether she was required to prove that; Comcare declined to do so.
Shortly before Prof Korman and Dr Reiter were to give evidence at the hearing in April 2020, a supplementary report of Prof Korman was filed. On the basis of its late arrival, the Tribunal adjourned the proceedings, but when they resumed Ms Walters called a new expert witness in the form of Prof Lloyd.
The hearing heard extensive evidence from Ms Walters about respiratory symptoms she experienced in 2016 and 2017, and about an injury to her shins in March 2017 resulting in an infection. At Singapore, during her return to Australia in August 2017, she was diagnosed with a viral infection. Extensive evidence was also given about that condition. However, in the closing submissions she indicated that she did not rely on either a respiratory condition or an infection from her shins in making her claim for workers compensation. Accordingly, the Tribunal has omitted from these reasons much of the evidence relating to the respiratory condition and the shin infection, on the basis that it is irrelevant.
MS WALTERS’ EVIDENCE
Ms Walters was born in December 1985 and was 34 years old at the time of the hearing. She commenced employment with AusAID, the Australian government’s international aid agency, in 2012. She became an employee of DFAT in November 2013 when AusAID was absorbed into that department.
On 5 March 2015 Ms Walters was posted by her employer to New Delhi, India, where she was employed for 37.5 hours per week. She worked at the Australian High Commission compound in New Delhi, where she had an apartment about 30-50m from her office. Her working day, typically, began at around 8am and finished at 6pm, with an hour off for lunch.
Over the next two years she experienced various breathing difficulties, and was variously treated for asthma, allergies, infections and respiratory conditions. In January 2017, Dr Trish Batchelor suggested that Ms Walters may well be rather susceptible to the pollution in New Delhi. In March 2017 she tripped on stairs and injured her shins, although the skin did not break. She was treated for cellulitis and flown to Singapore for treatment.
On 24 July 2017, following her return to India, Dr Batchelor supported Ms Walters’ early return to Australia on medical grounds. On 16 August 2017 she left New Delhi covered with what she described as a rash head to toe; she also was experiencing fever. In transit at Singapore Airport she saw a doctor who diagnosed Viral infection.
A statement of Ms Walters dated 26 February 2020 was tendered. In it she said:
When I returned to Australia at the completion of my mission on 16 August 2017, I was a complete wreck. I was covered in a red rash from head to toe and was forced to get a fit to fly certificate when I was [in] Singapore. My parents saw me in Brisbane in this state and were very concerned and shocked by my appearance having never seen me in such a state. This last return to Australia was unlike the other times I had returned to Australia from India as I would normally recover after the first week of coughing and breathing difficulties. This time I was almost delirious and my husband had to drive us both back from Brisbane as I slept in the car all the way from Brisbane to Canberra with some obvious stops along the way.
She told the Tribunal she had suffered from anxiety and depression all her life. She received psychological treatment following her return from India in 2017 to help herself manage while she was unable to work. Under cross-examination, Ms Walters said she had been prescribed Zoloft for her mental health condition while a teenager, but did not like it and did not take it. She was later prescribed Cymbalta, which she still takes.
Ms Walters said she is presently working three days a week at DFAT. On other days she mostly rests. She is often affected at present by fatigue:
I have no memories, I can’t concentrate… I can’t hold down a conversation, I can’t remember, sometimes, even my husband’s name when I get really wiped.
She did not suffer these problems prior to going to India.
THE MEDICAL EVIDENCE
Ms Walters was treated for various medical conditions on her final return from India. On 25 August 2017, a routine post-deployment medical assessment by Dr Robin Yong noted Viral fever and rash with bodily aches 15.08.2017, with the fever lasting for a week, but the rash much improved. On 7 December 2017 a GP, Dr Barbara Thompson, noted fatigue post return from India posting and illness. On 14 February 2018 Dr Thomson noted still ongoing issues with fatigue: ? related to depression. In June and August 2018 she received medical certificates for reduced working hours due to medical condition relating to her posting in INDIA.
In October 2018 Comcare commissioned a report from Dr David Gorman, consultant general physician. On 15 October 2018, Dr Gorman wrote:
Ms Walters has had fatigue following a posting to India. This reached a crescendo in March 2018 but continues to improve, particularly over the last few months.
Overall, Ms Walters is genuine in her history and genuine in the fact that she did not have these symptoms prior to her posting in India. She has had symptoms worsening since her return to Australia. I believe overall one must conclude that, although we do not have specific diagnosis, her fatigue was caused by her posting in India.
In a report to Comcare dated 17 October 2018, Ms Walters GP, Dr Lyn Thew, wrote that she has developed Chronic Fatigue Syndrome with out any doubt… Her Immune system has not recovered from the impact of the events in India.
On 6 May 2019 Hamidatun Nunney, a psychologist at DFAT, wrote that Ms Walters suffered symptoms suggestive of a mood disorder which were associated with the significant negative health complications that she experienced whilst on posting in India.
Three doctors gave concurrent evidence at the hearing. The Tribunal will refer firstly to their written reports.
Dr Loretta Reiter
Dr Loretta Reiter is a consultant rheumatologist. She examined Ms Walters in September 2019, and in a report dated 3 October 2019 she wrote:
Ms Walters has features of chronic fatigue syndrome which overlaps with fibromyalgia. She meets the criteria for the 2010 American College of Rheumatology fibromyalgia criteria with a widespread pain index score of 7 and a symptom severity score of 6…
Although, the onset of her symptoms, correlates on history with multiple infections and allergies/asthma when in India, one needs to be cautious in drawing conclusions of causation from correlation, which is that the symptoms at or around the same time. Therefore, I draw from the literature in regard to causation.
I have recently done a recent literature search on Medline (website with access to all medical literature on-line) to assess if there is any recent/new evidence that supports or finds that infection and/or physical illness can cause fibromyalgia. There was no evidence or documentation to support this notion.
On 16 October 2019 the solicitor for Ms Walters wrote an email to MLCOA Victoria, the company through which Dr Reiter’s report was commissioned, saying:
It is difficult to know if Dr Reiter supports a diagnosis of CFS or Fibromyalgia. In fact the report as it is very damaging to my client and while I understand the expert code of conduct it is difficult to get past the fact that the report is confusing and has cost my client a significant amount of money without a definite result either way. To that end it should be either re written without further expense to my client or a supplementary provided as to the diagnosis of CFS in which there are several reports that Dr Reiter could have read that demonstrate support given the circumstances.
He also drew attention to what he called a number of factual errors in the report.
Dr Reiter then wrote a further report, dated 28 October 2019, in which she said:
… thank you for alerting me to the factual errors, which I accept as being true. They do not significantly affect my opinion…
Ms Walters meets the US Centre for Disease Control and Prevention (CDC) criteria for Chronic Fatigue Syndrome…
Given the sequence of events provided by Ms Walters, it is more than likely that her chronic fatigue syndrome was caused by her duties in India, as currently there is no evidence to indicate otherwise.
Prof Tony Korman
An infectious diseases physician, Prof Tony Korman, wrote a report for Comcare dated 9 March 2020. The report was commissioned on the papers, that is, without examining Ms Walters. In the report he said:
Chronic fatigue syndrome (CFS) is a complicated and controversial disease characterised by unexplained persistent and relapsing fatigue. Much of this is due to the lack of objective findings. It is primarily a disorder of young to middle aged adults. Most series report that CFS is about twice as common in women than men.
Clinical practice guidelines developed by the Royal Australian College of Physicians define CFS as “a descriptive term used to define a recognisable pattern of symptoms that cannot be attributed to any alternative condition”.
…
There are no specific physical signs that identify CFS. In addition, there are no diagnostic laboratory tests that can, as yet, confirm a diagnosis of CFS. The diagnosis of CFS is therefore made on the basis of a recognisable pattern of characteristic symptoms, and on the exclusion of other known causes. A positive diagnosis of CFS should be made after other known causes for the symptoms have been excluded and where the symptoms are causing functional impairment.
…
The cause of CFS is unknown, although several factors have been suggested, including immunological, genetic, infectious (including viral), neuroendocrine and psychological. There is increasing evidence that the condition is heterogeneous, and may not have a single or simple aetiology. It is best regarded as a spectrum of illness that is triggered by a variety of factors in people who have an underlying predisposition.
Infectious aetiologies of CFS are suggested by the characteristic history of a flu-like illness at the onset of what then becomes persistent illness. CFS may represent an immune disturbance triggered by an infection or that immune alterations in CFS permit reactivation of persisting pathogens.
…
CFS has been reported to occur following a variety of infections including viral infections (EBV, CMV, Ross River virus, other). There has been interest in whether certain viruses could be responsible for causing CFS, including EBV, xenotropic murine leukemia virus-related virus (XMRV) and enteroviruses. None has been proven to cause CFS.
…
It is unable to be ascertained when she “contracted” chronic fatigue syndrome (and indeed this suggests more of an infective aetiology, which has not been confirmed).
…
If Ms Walters has CFS, the cause is unable to be determined. There is insufficient evidence to support the conclusion that chronic fatigue syndrome was triggered by infection. [emphasis in original]
Prof Korman wrote a subsequent report in which he said:
Taking into consideration of all the evidence provided with this and the earlier briefing, I confirm that it is unlikely that the Applicant’s claimed chronic fatigue syndrome was triggered by an alleged infection that may have been acquired while in India.
He was also asked whether certain pre-existing medical conditions were likely to have predisposed Ms Walters to CFS. In relation to depression, he said:
Many symptoms associated with CFS may overlap with the symptoms of depression, which is important to exclude as a cause of fatigue prior to the diagnosis of CFS. In addition, secondary anxiety and depression may contribute to the impairment associated with chronic fatigue syndrome.
Prof Andrew Lloyd
Late in these proceedings, Prof Andrew Lloyd, a consultant infectious diseases physician, was commissioned to write a report for Ms Walters. In the report dated 1 May 2020 he observed:
The diagnosis is chronic fatigue syndrome. Her illness meets the international consensus diagnostic criteria for this condition
…
3In your opinion, when did the employee first suffer from clinically identifiable symptoms of the condition? Please provide details in respect of clinical signs, symptoms and a chronology of development which supports your opinion.
It is not possible to precisely date the onset, but it is evident she enjoyed good health prior to deployment in India in March 2015, but that during 2016 she became progressively troubled by sensitivity to the prevalent air pollution in New Delhi causing her to be ”unable to spend any significant amount of time outside without having difficulty breathing, getting headaches, a sore throat and becoming lethargic” (as reported by her husband). Her description first mentions fatigue following the febrile illness with rash which occurred upon departure in August 2017. The latter timeline is comparable to that reported by Drs Gorman and Reiter from the history of the illness they each obtained from Ms Walters.
…
From March 2017 when she injured her shins, she spent two months receiving various oral and short course intravenous antibiotics for soft tissue infection, culminating in an incision and drainage of an infected left pretibial haematoma in Singapore on 9 May 2017. She had some minor recurrent infection following the surgery in June 2017, and on medical advice sought permission to leave her position and return to Australia, which ultimately happened on 16 August 2017. At the time of travel she had developed new onset of fever and generalised rash of uncertain cause. She was profoundly fatigued at the time of travel, and has remained so since that time – with a slow course of improvement.
It is evident from this summary that she likely had symptomatic fatigue in mild degree during 2016, which became incapacitating during 2017, and was ultimately diagnosable as chronic fatigue syndrome in 2018.
Please note there are no clinical signs which contribute to the diagnosis of chronic fatigue syndrome.
4Please provide details of any relevant history, pre-existing or underlying conditions suffered by the employee, including any predisposition to stressors.
The reports of Dr Gorman and Reiter indicate that Ms Walters reported anxiety disorder prior to the posting to India and had been receiving therapy with Cymbalta. The reports also indicate that at the time of her initial posting she was both highly motivated and high functioning. The reports do not suggest that she developed anxiety disorder or mood disorder as a consequence of the fatigue syndrome, but that she did report anxiety regarding her reduced capacity to work as a consequence of the fatigue syndrome. On this basis I do not regard the premorbid anxiety as a contributor to the fatigue syndrome.
…
6In your opinion, what are the main factors (employment and non-employment) which have contributed to Ms Walters condition? Please provide specific tasks or duties that Ms Walters was undertaking during her posting that exposed her to any contributing factors.
The research evidence-base for factors contributing to the development of a chronic fatigue syndrome comes from studies generally seeking to identify an increased frequency of pre-morbid conditions, or other potential causative events, in patients with an established chronic fatigue syndrome in comparison to a suitably matched reference group without chronic fatigue syndrome - with the most definitive studies being prospective cohorts. For instance, although it is clear that mood disturbance is prevalent in patients with established chronic fatigue syndrome, premorbid psychiatric disorders are not more common in those who develop chronic fatigue syndrome than those who do not.2,3,4,5 By contrast, prospective studies following individuals from acute infection with both viral and non-viral pathogens, including Epstein-Barr virus (EBV), Ross River virus (RRV) and Coxiella burnetii (the causative agent of Q fever), have documented a prevalent post-infective fatigue state meeting diagnostic criteria for chronic fatigue syndrome.2,6 Whereas, a well-controlled longitudinal study in general practice found that patients presenting with minor symptomatic infections, such as common colds or gastroenteritis, did not experience post-infective fatigue.7
In relation to Ms Walter’s condition, it is probable that she acquired two infections of relevance as a trigger for the fatigue syndrome, firstly the initial presumed respiratory infection in 2016 and secondly the febrile illness with rash upon departure in 2017 which was also potentially infective in nature (please note that the soft tissue bacterial infection should not be considered a potential trigger).
Without clear documentation of the micro-organism causing these episodes, it is not possible to comment upon the circumstances of transmission (during employment or not, associated with specific tasks or duties), except to indicate they clearly occurred in India.
Please note that given the evidence cited above regarding links between certain acute infections (such as infectious mononucleosis) and the subsequent development of a chronic fatigue syndrome - with onset of symptoms during acute infection and then subsequent continuity of consistent symptoms for six months or more at which time a chronic fatigue syndrome is diagnosed, I disagree somewhat with the opinion expressed by Dr Reiter and supported by Dr Korman that “a recent literature search… does not support a causal link between infection… and fibromyalgia” (assuming that Dr Reiter largely equates chronic fatigue syndrome and fibromyalgia). In my opinion, it is generally accepted that certain acute infections such as infectious mononucleosis act as a trigger for the onset of a chronic fatigue syndrome.
7Do these factors still contribute to Ms Walters current condition? If yes, please provide specific details. If not, when did the effects of the contributing factor(s) cease?
No. If it is accepted that infection(s) acted as a trigger for the onset of the chronic fatigue syndrome in this case, it is not anticipated that the infectious agent would persist to continue to cause the ongoing symptoms. Multiple studies examining patients with well characterised post- infective chronic fatigue syndrome and matched control subjects who recovered uneventfully from the same acute infection, have not found evidence of abnormal persistence of viable organisms, non-viable pathogen residues, or nucleic acids, including in relation to Q fever, Lyme disease, or Epstein-Barr virus (EBV).
Concurrent Evidence
The three doctors referred to above gave evidence concurrently at the hearing, Professors Korman and Lloyd by videoconference and Dr Reiter by telephone. A conference of the three expert witnesses was held immediately prior to their giving evidence. Following the conference, the following testimony was given.
At the outset, Prof Lloyd summarised those matters on which all three experts were agreed. He summarises their position on the possible contribution made to CFS by either a respiratory infection or an infection arising from an injury to Ms Walters’ shins. In relation to the former, he said, [w]hether there was actually an infection or not we agreed was unresolvable. Re the latter, he said we resolved that [there was] no relationship to any subsequent illness manifestation.
In relation to the claim of a viral infection arising shortly before she travelled from India to Australia in August 2017, Prof Lloyd gave the following evidence:
We agreed to (indistinct) that on August 15, so that’s the day immediately prior to departure for India, that Ms Walters became unwell, with a febrile (indistinct) so there was fever. And it’s clear that subsequently, she developed rash, which became generalised, and we reviewed the evidence of what the possible causative factors for that were.
We dismissed concurrent antibiotics, so a drug reaction, a possibility, because we were able to resolve that she had finished antibiotics by then. Then, with regard to the issue whether that was an infection, and whether it was a documented infection, we agreed that it was not a documented infection, as we couldn’t definitively say that it was an infection. Professor Korman felt that it was possibly an infection.
Dr Reiter and I felt that it was more probable than not that it was an infection... And we agreed, just stepping back from this particular case, that there is a good evidence base for a link between a number of different acute infections and post-infectious fatigue syndrome, or chronic fatigue syndrome.
…But we all agreed that Ms Walters meets the diagnostic criteria for chronic fatigue syndrome.
…And just for clarity, we agreed, as Dr Reiter had suggested in her report, that chronic fatigue syndrome and fibromyalgia are commonly overlapping conditions. So it’s not uncommon for patients to meet the diagnostic criteria for fibromyalgia and also for chronic fatigue syndrome, as appears to be the case here.
The other witnesses accepted the accuracy of Prof Lloyd’s summary of their position.
He went on to expand on his own (and Dr Reiter’s) position:
So, in my opinion, it is more likely that not that there was an acute infection and there has been good demonstration of continuity of symptoms (indistinct) onset, meet diagnostic criteria for chronic fatigue syndrome. So, my sense is, it is more probable that not that the whole illness was triggered by an acute infection that was acquired in India and subsequently led to (indistinct) or chronic fatigue syndrome.
Prof Korman elucidated his position as follows:
So, again, I agree that criteria for chronic fatigue syndrome had been met, that she had that condition. I also agreed that it was well established that infection can lead to chronic fatigue syndrome. However, in this case, I don’t think there’s enough evidence to support the conclusion that an infection, unspecified infection, led to her chronic fatigue syndrome.
His reluctance to attribute her condition to an infection was explored in cross examination:
MR PATTENDEN: Professor Korman, it is my understanding that you are, to some degree, slightly uncertain as to whether it was an infection or not?
PROFESSOR KORMAN: The documentation said that she had a fever and a rash. I think she may have visited some sort of medical person at the airport in Singapore, who then cleared her, that she wasn’t infectious and she could go on the plane. There wasn’t any subsequent medical review. Subsequent blood tests that were performed to try and elucidate the cause of the infection, which didn’t pinpoint a specific viral cause. So, I think my position is that it’s possible she had an infection, but there’s - it’s certainly would be more probably than not in my opinion.
MR PATTENDEN: Professor Korman, would you accept that the doctor who examined her, say, at Changi Airport, had a significant advantage over yourself, examining her at the time to make that (indistinct)?
PROFESSOR KORMAN: If I was in the same position and saw someone with a fever and a rash I would postulate that viral infection may be a cause. But again, it’s a possibility rather than confirmation of the diagnosis. And subsequently, even with the benefit of blood tests, et cetera, a viral infection was not able to be confirmed.
Prof Lloyd, in turn, was pressed on which viral pathogen had caused the infection which he said was likely to have triggered Ms Walters’ CFS. He said:
We agreed in the conclave that there’s a broad range of infections that have been implicated as causative factors for post-infectious fatigue. So, I wouldn’t get too hung up on EBV, Ross River and Q fever.
He went on to answer the following questions:
MR WOULFE: Essentially, you’re drawing an inference, or reaching a conclusion that there was a particular (indistinct) infection that could cause post-infectious fatigue. Is that right?
PROFESSOR LLOYD: No. The answer there was acute infection.
MR WOULFE: But you don’t know what it was, do you?
PROFESSOR LLOYD: Correct. This may come as a shock to you, but infectious disease practice is (indistinct) even in the hospital setting where we have access to all sorts of tests, it’s quite common for infections to go undiagnosed.
He added that the severity of a reaction to an infection was often a better indicator of its potential to trigger a subsequent fatigue syndrome than the identity of the specific pathogen.
Prof Lloyd provided some general evidence about viral infection, evidence which appeared to be the consensus of the panel. As to when any virus might have been contracted by Ms Walters, he said:
Some of those infectious diseases have incubation periods that are as short as a couple of days and some of them would have incubation periods from exposure to onset as long as a month.
Regarding the mechanics of viral infection, he said:
…in broad terms, the pathogen, the virus in this case, might be inhaled, inoculated by a mosquito, even plausibly penetrate through your skin and thence, it gets into the bloodstream and plausibly to its target organ, which for instance, might be the lungs and then it triggers an immune response in the person, which initiates an inflammation and then symptoms generally arise and that inflammatory and immune process is designed to control all the replication of the pathogen and to facilitate clearance and bring about resolution of the illness.
In relation to the infection he believes Ms Walters had acquired in India, he said how she acquired that, I think, I resolved is unable to be determined, in the absence of designation of the specific pathogen that was causing it.
LEGISLATION
Subsection 14(1) of the Act provides that:
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.
Injury is defined in ss 5A and 5B. Section 5A provides:
(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.
Section 5B, in turn, provides:
(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.
ISSUES BEFORE THE TRIBUNAL
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?
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.
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.
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.
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].
In any case, nothing turns on the contentions. As will be seen, the Tribunal considers that – by virtue of the application of Military Rehabilitation and Compensation Commission v May [2016] HCA 19 to the facts of this case – Ms Walters cannot succeed, irrespective of whether she is considered to have suffered a disease, an injury simpliciter or an aggravation.
Accordingly, the issues before the Tribunal are:
(a)Does Ms Walters suffer from CFS?
(b)If so, is CFS a disease pursuant to s 5B(1)(a)?
(c)If it is a disease, was it contributed to, to a significant degree, by a viral infection contracted in India?
(d)If it was, did Ms Walters’ employment by DFAT contribute, to a significant degree, to the contracting of the viral infection?
It was not contentious that the CFS resulted in incapacity for work and impairment, pursuant to s 14. Accordingly, if the answer to the four questions above is “yes”, Ms Walters would be entitled to workers compensation.
A further issue, in fact a subset of the question in (b) above, is whether CFS can be considered a disease in light of the High Court’s decision in May.
CONSIDERATION
Does Ms Walters suffer from Chronic Fatigue Syndrome?
All three of the expert witnesses agreed that Ms Walters met the criteria for CFS. Accordingly, the Tribunal finds that she suffers from this condition.
Is CFS a disease contributed to, to a significant degree, by a viral infection contracted by Ms Walters in India?
It is apparent that there are two separate links in the alleged chain of causation here, demonstrated by these questions: did Ms Walters’ employment lead her to contract a viral infection? In turn, did such a viral infection result in her developing CFS? It is convenient to take the second of these questions first. The question is one that falls to be resolved substantially on the medical evidence.
Ms Walters contended that the evidence of Prof Lloyd and Dr Reiter – that it is more probable than not that her CFS was triggered by an acute infection – should be preferred. Relevantly, the day prior to her departure from India she became unwell with a fever and a rash which spread over her body. A suggestion from Prof Korman, in his report of 9 March 2020, that the symptoms might be attributable to an adverse drug reaction was unanimously rejected by the three doctors in concurrent evidence. The only doctor to examine her during her transit to Australia treated her for Viral infection.
She noted Prof Lloyd’s evidence that the severity of a patient’s reaction is a better indicator of a virus’s potential to trigger a fatigue syndrome than the identity of the pathogen responsible. In this respect she pointed to the severity of her rash, the persistence of coughing and breathing difficulties after she returned to Australia and the fact that for a period she was almost delirious.
Comcare, in turn, characterised her case as rising no higher than possibilities or conjecture. It contended that, in the absence of evidence as to what virus afflicted her, her case did not offer rationally probative evidence that a virus caused her to become permanently fatigued. It preferred the evidence of Prof Korman, who observed that the cause of CFS is unknown, and that several factors, of which viral infection is but one, have been suggested to be causative. He considered that it was possible, but not probable, that a virus caused the onset of CFS.
Resolution
It is true that the Tribunal must be positively persuaded that an applicant has suffered a compensable injury for him or her to succeed. If the evidence supporting a claim is ambiguous or scant, it is less likely to meet the statutory test of eligibility in the Act. If the Tribunal finds that the evidence for and against the existence of an injury is of equal weight, it is unlikely to consider that the test has been met: see the full Federal Court’s decision in Beezley v Repatriation Commission [2015] FCAFC 165 at [68]. Conversely, it is unnecessary for an applicant to prove conclusively the causal connection between employment and injury; a decision-maker need only be satisfied on the balance of probabilities that such a connection exists.
The three expert witnesses here provided two divergent assessments of the evidence concerning the link between a viral infection and CFS. All three emphasised that judgements in this area were afflicted by a lack of certainty; however none of them, as the Tribunal perceives it, suggested that the field of viral infection and CFS was devoid of probative evidence, or that valid judgements could not be made, on the balance of probabilities, on the limited evidence that was available.
Comcare argued that the process whereby several doctors concluded that Ms Walters contracted CFS because of her service in India was logically flawed. It characterised the opinion of Dr Gorman, who noted that she had no symptoms before her posting but worsening ones on her return, so that her fatigue was caused by her posting in India, as most likely an example of the logical fallacy post hoc ergo propter hoc (“after this, therefore because of this”). Similarly, Comcare accused Professor Lloyd and Dr Reiter of basing their evidence on correlation between events in India and her later illness, rather than a demonstrated process of cause and effect.
There is, perhaps, a fine line between post hoc reasoning and correlation, but it would be a mistake, merely on that basis, to dismiss correlation as an acceptable foundation for reaching conclusions on the balance of probabilities. Correlation is an example of inductive reasoning, where one moves from specific observations to more general ones, applying the theories suggested by observation of specific circumstances to broader situations. A key feature of induction is that generally it relies on accumulation of positive instances in order to verify a theory as correct.[2]
[2] C Michael Bowers (ed), Forensic Testimony: Science, Law and Expert Evidence, cited at >
Take the example of a man who smokes heavily for 40 years and then contracts lung cancer. It is not possible to prove empirically that one has led to the other, since some people smoke for 40 years and do not contract lung cancer, while others do not smoke at all and yet contract this illness. However, on the basis of a higher incidence of lung cancer among heavy smokers – i.e. a process of correlation, or inductive reasoning – it may be reasonable to conclude, on the balance of probabilities, that the smoking has contributed to the disease. By this process courts and tribunals have long awarded compensation to, for example, veterans with service-induced tobacco addiction who contract cardiothoracic diseases, despite the fact that no veteran has ever conclusively proven that smoking has caused his disease.
Professors Lloyd and Korman and Dr Reiter all agreed that there is a correlation between infection and CFS. As Professor Korman put it, I also agreed that it was well established that infection can lead to chronic fatigue syndrome. In the case of Ms Walters, he did not think that the evidence was sufficient to show that an infection led to her CFS, whereas Prof Lloyd and Dr Reiter did. There was evidence on which to base the latter’s opinion, including the acuity of her illness at the time of travel, the opinion of the doctor in Singapore and the severity of her post-viral condition in Australia. Assessing the extent to which these factors might implicate infection as the triggering condition is a matter of clinical judgement. There is no flaw that the Tribunal can discern in the logic used by any of those witnesses, notwithstanding that they reach different conclusions.
Comcare made extensive submissions in support of the contention that the evidence of Prof Lloyd and doctors Gorman and Reiter should be set aside or given little weight. Given that Ms Walters must ultimately fail in her compensation claim, it is unnecessary to address all of these contentions at length, but the Tribunal will address some to illustrate why it is unpersuaded by Comcare’s submissions in this respect.
·Comcare refers repeatedly to her alleged “chronic fatigue syndrome”.
Comcare appears to dispute that Ms Walters suffers from CFS. Comcare’s own witness, Prof Korman, said I agree that criteria for chronic fatigue syndrome had been met, that she had that condition. The other experts gave similar evidence. This evidence comfortably enables the Tribunal to find, on the balance of probabilities, that she suffers from CFS. Indeed, to do otherwise, in the absence of contradicting evidence, would be perverse. The difficulties which the decision in May give rise to with respect to whether CFS can be considered a disease pursuant to the Act does not absolve the Tribunal from making an appropriate finding, based on unanimous expert evidence, regarding the clinical label which her present condition should appropriately wear.
With respect, Comcare’s argument conflates the test for an illness under the Act with the test for an illness based on clinical judgement. It is clear following May that there may on occasions be a divergence between these two things. Put another way, the suffering of a person with, say, migraine will be no less severe merely because their condition is not considered a disease pursuant to the Act.
·In her report of 3 October 2019, Dr Reiter noted the overlap between CFS and fibromyalgia. Following a literature search she said that the literature does not support a causal link between infection, psychological stress and Fibromyalgia. Responding to an email from Ms Walters’ solicitor complaining about uncertainty in this opinion, Dr Reiter wrote a second report in which she concluded that Ms Walters’ CFS was caused by her duties in India, as currently there is no evidence to indicate otherwise. In this way, Comcare asserted, Dr Reiter essentially reversed or changed her opinion, thereby failing to discharge her duties as an expert witness.
This assertion was put to Dr Reiter in cross examination. She explained that the literature does indeed fail to support a connection between infection and fibromyalgia, but it does support such connection between infection and CFS. Accordingly, if she had an infection before leaving India and then contracted CFS, in the absence of any other explanation it’s reasonable to assume that she got the CFS because of the infection. She rejected any suggestion that the email from the solicitor had influenced her clinical judgement, saying she was a little annoyed by it but was prepared to clarify her opinion specifically in relation to CFS.
Although it strikes the Tribunal as odd that Dr Reiter framed her original opinion in terms only of fibromyalgia, it is satisfied that the two opinions deal with different issues, and that there is therefore no discrepancy between them. It is not persuaded that Dr Reiter acted unprofessionally.
In any event, if the Tribunal accepts the proposition that a witness’s evidence should be discounted because their position has been reversed or changed, then it would have to discount Prof Korman’s evidence, since he originally concluded that an adverse drug reaction may be a possible cause of the illness Ms Walters suffered in August 2017, whereas in the course of concurrent evidence he dismissed that possibility.
·In his report of 1 May 2020 Prof Lloyd opines that it is probable that Ms Walters acquired an infection which acted as a trigger for the CFS. He was then asked by the solicitor commissioning the report Do these factors [i.e. the infection] still contribute to Ms Walters current condition? He responded No. If it is accepted that infection(s) acted as a trigger for the onset of the chronic fatigue syndrome in this case, it is not anticipated that the infectious agent would persist to continue to cause the ongoing symptoms. Comcare argued that these responses were internally inconsistent, in that he said that an infection triggered a chronic condition but that the infectious agent would not persist to continue to cause ongoing symptoms.
There is no inconsistency. Prof Lloyd’s written report aligns with his testimony that the infection, having triggered CFS, disappeared. The infection, on this evidence, does not cause ongoing symptoms, but its sequela, CFS, does. Prof Korman appears to take a similar approach to the ongoing role of the infection; he told the Tribunal that she probably had an infection on her return from India but that, despite blood tests, et cetera, a viral infection was not able to be confirmed.
·Prof Lloyd and Dr Reiter’s evidence proceeded on the basis of a misunderstanding in that they assumed that Ms Walters was engaged in employment for the whole of the period of her posting to India, when in fact she was not so engaged.
Prof Lloyd, at least, did not assume that Ms Walters worked continuously during her time in India. He readily conceded in cross-examination that he could not say whether the infection was contracted on a day she was at work or a day she engaged in recreational activity, etc. It must be doubted that any of the doctors imagined she worked without breaks. Rather, Prof Lloyd and Dr Reiter clearly gave their evidence on the assumption that an infection contracted while Ms Walters was posted in India was a condition attributable to employment. This issue, of course, is a matter of law for the Tribunal to determine. Their evidence is not to be discounted merely because they made that assumption about the legal position in which she found herself. Indeed, it is possible that Prof Korman’s evidence proceeded on the same assumption.
As an aside, had Ms Walters’ claim been for an injury simpliciter, their assumption would in fact have been correct, for the reasons which the Tribunal provides below.
·The error in Professor Lloyd’s approach was that he was unable to provide a specific diagnosis of any infection (viral or otherwise).
There is no requirement at law that a particular viral infection be diagnosed, particularly where the evidence of all the experts was that viral infection is often very difficult to diagnose. As Gageler J observed in May at [80]:
The Full Court was right to point out in the decision under appeal that the Act and the case law do not “preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion” and to observe that “[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case”.
See also Australian Postal Corporation v Lucas [1991] FCA 612 at [23].
The relevant context here is that all three doctors considered that it was probable she suffered from a viral infection of some description at the time of her return from India, all three agreed that viral infection can lead to CFS and all three considered that she now suffers from CFS.
·Epstein-Barr virus, Ross River virus and Coxiella burnetii were the only conditions which Professor Lloyd associated specifically with a documented post-infective fatigue state.
Not so. Prof Lloyd said a number of viral pathogens, including the three referred to above, have been associated with post-infective fatigue state.
·Professor Lloyd asserted that the applicant was “profoundly fatigued at the time of travel” in August 2017… careful consideration of the evidence submitted before Professor Lloyd became involved does not support that assertion.
Not so. In Ms Walters’ statement of 26 February 2020, which was before Prof Lloyd when he wrote his report, she said When I returned to Australia at the completion of my mission on 16 August 2017, I was a complete wreck… I slept in the car all the way from Brisbane to Canberra…
·Professor Lloyd asserted that the applicant’s “description first mentions fatigue following the febrile illness with rash which occurred upon departure in August 2017”. However, the contemporary notes of the applicant’s treating practitioners do not support that assertion. Further, the other evidence shows that the applicant was fatigued well before August 2017.
It is not clear what practitioners’ contemporary notes Comcare is referring to, nor what the other evidence is that shows that Ms Walters was fatigued well before August 2017. The Tribunal was unable to locate any documents to that effect among those tendered (except, possibly, in relation to other conditions such as respiratory illness and allergies). What is beyond dispute is that Ms Walters did not give any evidence, nor was it put to her in cross-examination, that she had been fatigued at any point before August 2017. In that context, Prof Lloyd’s assertion about the reported onset of fatigue appears to be correct.
·These errors of Prof Lloyd suggest that he has engaged in impermissible advocacy. In the course of his evidence he attempted to act as advocate without making his assumptions clear, and thus the more cautious and impartial method used by Prof Korman should be preferred by the Tribunal to Prof Lloyd’s dogmatic approach.
The premises of this argument are not established. In fact nothing in Prof Lloyd’s evidence could plausibly be construed as advocacy for Ms Walters. The same is true of Dr Reiter (as it is, for that matter, of Prof Korman for Comcare).
·Professor Lloyd was not shown to have, by training, study or experience,
sufficient specialised knowledge to be able to reach a conclusion as to whether the applicant’s alleged infection fell into [the class of] infection/ pathogen [which is] known to have a documented prevalent post-infective fatigue state.
Prof Lloyd testified that he is a specialist infectious diseases physician with approximately 30 years of experience in clinical practice. He teaches infectious diseases topics at the University of NSW. He is a member of the Department of Infectious Diseases at the Prince of Wales Hospital in Sydney, and he leads a research program at the university studying the pathogenesis of infectious diseases, including post-infective fatigue syndrome and CFS. It is hard to imagine a better qualified witness on these topics.
·Ms Walters’ case theory was always one based on the effects of events which occurred long before any alleged viral illness in August 2017. Her SOFIC relied on air pollution and an unrelated skin infection. In addition, Ms Walters did not give evidence of the viral illness amounting to a watershed moment in her clinical history.
It is common practice in compensation litigation for the grounds on which the litigation is conducted to shift between the filing of SOFICs and the commencement of the hearing. Providing those shifts do not compromise procedural fairness, they are tolerated by the Tribunal. In these proceedings, Ms Walters abandoned claims relating to air pollution and skin infection at the outset of the hearing. This refinement of her position assisted the resolution of the issues. It little behoves Comcare to criticise a party for recasting its position after the filing of a SOFIC, since Comcare itself engages in this practice from time to time: see, for example, Wuth at [105] – [111].
What emphasis Ms Walters placed on the infection of August 2017 in her evidence is neither here nor there. The significance of the infection is established primarily by the medical evidence, not by her evidence. That she may not have appreciated that significance vis-à-vis other factors which she originally blamed for her illness has no bearing on the Tribunal’s deliberations.
·The evidence showed that psychological conditions have been suggested as a cause for [Ms Walters] chronic fatigue syndrome. Prof Lloyd did not properly contemplate the applicant’s lifelong history of anxiety and depression as being a potential cause of her alleged chronic fatigue syndrome.
Prof Lloyd did consider the evidence about a possible contribution from anxiety and depression to Ms Walters’ CFS. On the basis, inter alia, that she was both highly motivated and high functioning in India, he concluded that I do not regard the premorbid anxiety as a contributor to the fatigue syndrome.
On balance, the Tribunal prefers the evidence of Prof Lloyd and Dr Reiter to that of Prof Korman on the question of the contribution made by viral infection to the development of Ms Walters’ CFS. It is not difficult to find that she suffered such an infection soon before her departure from India (since this is the evidence of all three experts) and that she now suffers CFS (also the unanimous view of the experts). All three agreed that it was possible an infection could trigger CFS, though only two thought it probable in this case. The evidence of those two – in particular Prof Lloyd – was authoritative and persuasive, and seemed better grounded on the current state of clinical research than that of Prof Korman. They contended that the severity and continuity of her condition on her repatriation implicates the infection in the subsequent CFS. Relevantly, she was unwell with a fever and rash immediately before departing India and the doctor in Singapore considered viral infection the most likely cause. Accordingly, the Tribunal finds that she did suffer from a viral infection arising shortly before her departure from India and that this infection contributed significantly to the onset of CFS.
The other question to consider is, did Ms Walters’ employment lead her to contract this viral infection?
This question must be answered differently depending on whether her CFS is considered an injury simpliciter or a disease. If it is the former, the Tribunal would consider that her injury would fall within the category of those considered in cases such as Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, Comcare v PVYW (2013) 250 CLR 246 and Dring v Telstra Corporation Ltd (2020) 295 IR 329, that is, an injury sustained during an interval in an overall period or episode of work. The plurality in Hatzimanolis described the test at [16] as follows:
…Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen".
[References omitted.]
These circumstances, said the court, were more likely to arise when an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed (at [15]). In the Tribunal’s opinion this description covers the circumstances of Ms Walters’ service in India. Notwithstanding the uncertainty about precisely when or how she contracted the infection, there can be little doubt that she did so either while at work or in an interval between periods of work. Nor can there be any doubt that, during any such interval, she was injured by doing something which her employer encouraged her to do, i.e. breathe (or possibly touch something inadvertently which was infected with the virus).
However, the “injury sustained in an interval during a period of work” cases all involve an injury (other than a disease) pursuant to s 5A (or equivalent provisions). The essential enquiry in these cases is whether an injury has arisen in the course of employment. It is by no means clear that the same principles apply with respect to a disease, even one, as in the present case, which arose within a short and defined period of time, i.e. the month before Ms Walters’ departure from India. Her case – at least as it was presented during the hearing – is that her CFS is a disease. A disease, pursuant to s 5B, is an ailment contributed to, to a significant degree, by employment. It is necessary, under this test, for the Tribunal to be satisfied that there is a causal relationship between her employment and the contracting of the infection, a more focused test than the temporal relationship implicit in an injury occurring in the course of employment.
Establishing a causal relationship with employment is necessarily much more difficult when it cannot be established when or how Ms Walters contracted the infection. Subsection (2) of s 5B sets out matters which should be taken into account in determining whether employment has made a significant contribution to an ailment. Paragraph (d) refers to any activities of the employee not related to the employment. Considering time spent other than in employment, Comcare submitted that she contracted the infection, on the balance of probabilities, at a point in time when she was not working. This conclusion follows from the fact that she spent more of her time in India not working than working. In a typical work day, she told the Tribunal, she worked for approximately nine hours. Even allowing for some occasions when she would need to work outside business hours, her weekly hours of work would be substantially exceeded by her weekly hours of sleep and leisure, particularly taking into account weekends. (That view is not affected by the fact that her apartment was provided as part of her employment. Hours spent in employer-provided accommodation must be considered time outside employment unless she was actually working there.) It follows ineluctably that the apparently-random moment when she breathed in or absorbed the virus is more likely to have occurred when she was not working. That conclusion is even more inescapable if one accepts – as Comcare submitted – that she is less likely to have contracted the virus in the climate-controlled environment of her office than elsewhere.
The “locality” cases discussed by Murphy J in Telstra Corporation Limited v Bowden [2012] FCA 576 at [40]-[56], referred to in Ms Walters’ closing submissions, are unhelpful to her in that they deal with injuries arising out of employment. Similarly, she is not assisted by the High Court’s decision in Favelle Mort Ltd v Murray [1976] HCA 13; this case involved an employee who contracted a viral disease while working in the United States, a disease which the court found to be compensable. However, the case concerned NSW legislation cast in terms different to the present Act, and the applicant there was employed in circumstances quite unlike those of Ms Walters. As Stephen J observed at 17:
…the respondent was employed on what was virtually a twenty-four-hour-day basis in the United States. The consequence was that he was able to prove that he contracted the disease in the course of his employment, a finding often beyond the reach of a worker who contracts a disease.
[Reference omitted.]
Given the statistical probability that her ailment arose from an infection occurring when she was not working, the Tribunal finds that her CFS was not contributed to, to a significant degree, by her employment by DFAT.
Does Chronic Fatigue Syndrome satisfy the test of an injury under s 14?
Even if the Tribunal found that employment had contributed significantly to the onset of her fatigue condition, it would be unable to find that this condition constituted a disease pursuant to s 5B.
Comcare contended that the High Court’s decision in May establishes that subjectively-experienced symptoms without an accompanying physiological or psychiatric change are not sufficient to establish the existence of either an ailment or an injury (other than a disease) for the purposes of ss 5A or 5B. This is because Ms Walters experienced no sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state: May at [52]. Thus, it said, CFS does not satisfy the test of an injury under s 14.
It is appropriate to quote at length from the High Court’s decision. Mr May was a member of the RAAF when he was said to suffer a condition described as vertigo after receiving vaccinations in the course of his employment. Although there was a temporal relationship between the vaccinations and the onset of vertigo, the Tribunal found that there was no causal evidence linking them and, since there was no pathology consistent with his symptoms, no diagnosis could be made. The Tribunal declined his claim of an injury under the Act because he had experienced nothing amounting to a sudden or identifiable physiological change in the normal functioning of the body (Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 298).
This decision was upheld by a single judge of the Federal Court but overturned by the Full Court, which found that the Tribunal had been in error to equate injury with sudden or identifiable physiological change. It held that there was no requirement that a diagnosis or medically ascertained cause be identified before an injury could be found to have occurred.
The High Court set aside this decision, deciding that Mr May had suffered neither a disease nor an injury (other than a disease) under the Act. Feeling unwell was insufficient, since the nature and incidents of the physiological [or psychiatric] change had not been established. The majority (French CJ, Kiefel, Nettle and Gordon JJ) explained why the absence of physiological change was significant in the scheme of the Act:
47 … 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.
48 That 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)
49 It is against that background that 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)".
50 First, 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? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
…
52 If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (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.
…
Not sufficient for an employee merely to feel unwell
57 The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "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" ... To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
58 That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".
59 Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.
60 Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".
61 Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.
62 The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
(References omitted, bold emphasis added.)
May has been interpreted to mean that conditions which are manifested by subjectively-experienced symptoms but which are not accompanied by an identifiable or diagnosable physiological or psychiatric change in an employee’s body cannot be considered an injury under the Act. It has been applied to disentitle applicants with subjectively experienced pain symptoms from compensation: Comcare v Stefaniak [2020] FCA 560; Williamson and Comcare [2019] AATA 4774; Whitlock and Comcare [2020] AATA 1353; Wuth at [70]-[79]; however, cf Priestley and Comcare [2019] AATA 5456.
The evidence given by the medical experts in these proceedings suggests that Ms Walters experienced no 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 (May at [57]). Prof Korman said in his report of 9 March 2020:
There are no specific physical signs that identify CFS. In addition, there are no diagnostic laboratory tests that can, as yet, confirm a diagnosis of CFS. The diagnosis of CFS is therefore made on the basis of a recognisable pattern of characteristic symptoms, and on the exclusion of other known causes.
[Emphasis in original.]
Prof Lloyd gave the following evidence:
DEPUTY PRESIDENT: …The question was put to Professor Korman that chronic fatigue syndrome is a collection of subjectively reported symptoms in the absence of an identifiable physiological change or disturbance. Do you agree with that summation of CFS?
PROFESSOR LLOYD: I would modify the statement just slightly to say, in the absence of any recognised or identifiable. That means, we’ve searched for pathophysiological disturbance, but not been able to find it, but that may be because we haven’t been looking in the right way or in the right place.
Dr Reiter testified to similar effect.
Ms Walters contended that CFS is a recognised medical diagnosis/condition which has a biological cause, although what it is is not known, save that it is recognised that acute viral and some non-viral infections are a trigger for the onset. The Tribunal in those circumstances should be satisfied that she suffers from an ailment. She further contended that the Tribunal’s decision in Wuth was in error, a matter presently before the Federal Court. This argument proceeded on the basis that the High Court’s requirement in May for accompanying and diagnosable physiological change applies to an injury (other than a disease) but not to a disease.
The Tribunal accepts that the High Court in May dealt with an appeal in relation to an injury (other than a disease), and that it was not explicitly stated that the requirement for physiological change applies also to a disease. As a matter of principle, however, it is difficult to understand why their Honours would so construct the relevant test as to require physical “evidence” of an injury (in the primary sense) but not of a disease. The philosophical underpinning for a differentiation in approach between the two categories of injury is not apparent to this Tribunal. However, it accepts that this question invites further clarification, and notes that the question is presently before the Federal Court.
As the Tribunal presently understands the state of the law, Ms Walters’ condition must be regarded as a collection of subjectively reported symptoms without an accompanying identifiable physiological change or disturbance, and as such the condition does not satisfy the definition of a disease under s 5A.
DECISION
The reviewable decision of Comcare dated 7 December 2018, denying liability under s 14 of the Act for a fatigue condition, is affirmed.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO
........................................................................
Associate
Dated: 14 January 2021
Date(s) of hearing: 1 April 2020
Date final submissions received: 17 November 2020 Counsel for the Applicant: K Pattenden Solicitors for the Applicant: David Healey Solicitors Counsel for the Respondent: P Woulfe Solicitors for the Respondent: Comcare
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