Walters and Comcare (Compensation)

Case [2021] AATA 14

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

  1. 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).

  2. 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…

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AGLC
Walters and Comcare (Compensation) [2021] AATA 14
Case
[2021] AATA 14
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Walters against a decision by Comcare to deny her claim for workers' compensation. Ms Walters sought compensation for chronic fatigue syndrome (CFS), alleging it was contributed to, to a significant degree, by a viral infection contracted while she was posted in India for her employment with AusAID, which later became part of DFAT. The case was heard by Deputy Gary Humphries Ao P.

The primary legal issues before the court were whether chronic fatigue syndrome constitutes a "disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether Ms Walters' CFS was contributed to, to a significant degree, by a viral infection contracted during her employment in India. A further question was whether her employment contributed, to a significant degree, to her contracting that viral illness.

The court found that while Ms Walters met the diagnostic criteria for CFS, the condition did not satisfy the definition of a "disease" under section 5A of the Act. The court reasoned that CFS, as understood in the current state of the law, was a collection of subjectively reported symptoms without an accompanying identifiable physiological change or disturbance. Consequently, the court concluded that CFS did not meet the statutory definition of an injury for the purposes of section 14 of the Act.

Accordingly, the reviewable decision of Comcare, which denied liability under section 14 of the Act for Ms Walters' fatigue condition, was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONDoes 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.