BUSHBY V SUPER BOARD - 1994/30813
IN
THE ADMINISTRATIVE APPEALS NO
1994/030813
TRIBUNAL OF VICTORIA
GENERAL DIVISION
AT MELBOURNE
APPLICANT : John Xavier Bushby
RESPONDENT : Emergency Services Superannuation Board
BEFORE : Deputy President, J M Galvin
DECISION : The 5th day of March 1997
THE DECISION OF THE TRIBUNAL IS THAT
The determination of the respondent is set aside and it is determined that the
applicant be paid an annual pension pursuant to Regulation 9(1) of the
Emergency Services Superannuation Scheme Regulations 1987.
JOHN M GALVIN
DEPUTY PRESIDENT
IN THE ADMINISTRATIVE APPEALS NO 
1994
/30813
TRIBUNAL OF VICTORIA
GENERAL DIVISION
AT MELBOURNE
APPLICANT : John Xavier Bushby
RESPONDENT : Emergency Services Superannuation Board
BEFORE : Deputy President, J M Galvin
REASONS FOR DECISION
The applicant who was born on 7 July 1950 commenced employment with the
Metropolitan Fire Brigades Board on 1 July 1977. He subsequently became a
member of the Emergency Services Superannuation Scheme. He ceased employment on
11 March 1991 and, on 25 April 1991, applied for a disability pension. Pursuant
to Regulation 11(1) of the Emergency Services Superannuation Scheme Regulations
1987 (the Regulations) a temporary pension was granted to him on 26 June 1991
for a period of 12 months.
On 8 July 1991, an employer's certificate of termination of service issued, the
date of termination being designated as 5 July 1991 and the ground nominated as
"Disability Retirement".
On 29 July 1992, the temporary pension was extended for twelve months subject
to referral to a psychologist for assessment of the possibility of undertaking
some kind of retraining programme. Notwithstanding that Regulation 11(3) of the
Regulations provides for only one extension of a temporary pension, on 30 June
1993, the applicant's temporary pension was further extended for twelve months
subject to a psychiatric assessment of psychometric functioning.
On 16 March 1994,
the respondent determined to pay a lump sum accrued benefit to the applicant
and, in effect, not to pay a disability pension to him. The respondent
confirmed its decision in that regard on 29 June 1994
and, in so advising the applicant, also notified him that his temporary pension
would expire on 6 July 1994,
the lump sum accrued benefit to be paid the following day.
Under section 23 of the Emergency Services Superannuation Act 1986
a person who is affected by a decision of the Board relating to entitlement to
a benefit may request reconsideration of the decision (s.23(1)). The applicant
sought reconsideration and on 31 October 1995, upon reconsidering its decisions
made on 26 June 1991, 29 July 1992 and 30 June 1993, the respondent reaffirmed
the first two decisions, set aside the decision of 30 June 1993 and determined
to pay a lump sum benefit.
In a letter to the applicant dated 31 October 1995 (a copy of which was filed
with the Tribunal), the Manager (Advisory and Compliance) of the Superannuation
Scheme said :
"Insofar as the decision made on 30 June 93 to continue the Regulation
11(1) temporary pension subject to psychiatric assessment of psychometric
functioning was beyond the power of the Board, the Board, upon reconsideration
of the decision, the evidence available at the time of the decision and the
further medical evidence in the form of the medical reports from Dr
Grainger-Smith and Dr Cole, resolved to set aside the decision and in its
place, determined to pay to you the accrued benefit as at 26 June 1993".
Section 23 of the Emergency Services Superannuation Act 1986 also
provides that on receipt of a request for reconsideration, the Board must
reconsider its decision and may confirm or vary it in any way it thinks fit
(s.23(4)). Section 23(6) provides for review by this Tribunal of the decision
upon reconsideration. The applicant has sought such review.
At the outset of proceedings, a preliminary issue arose as to the criteria to
be applied in determining disability and the Tribunal was asked to rule upon
that issue before proceeding to hear the application on the merits. The
Tribunal did so on 16 August 1996 determining that disability was to be
assessed in accordance with the definition in Regulation 3 of the Regulations
(in original unamended form). "Disability" was therein defined to
mean :
"the termination of employment of a contributor due to a continuous or
recurring injury, disease or infirmity which renders the contributor unable to
perform in any occupation for the employer for which in the opinion of the
Board the contributor is suited by training, education or experience or would
be suited as a result of re-training".
At the relevant time, Regulation 9(1) of the Regulations was in the following
terms :
"Upon the termination of service of a contributor before age 60 by
reason of disability there shall be payable to the contributor an annual
pension at a rate of one-twelfth of the sum of -
(a) the lump sum which would have become payable under sub regulation 8(1);
and
(b) if the disability is the result of traumatic bodily injury suffered in
the course of employment, the supplementary lump sum under sub-regulation 8(3),
if the contributor had died on the date of termination of service".
The Regulation is expressed in mandatory terms and requires payment of an
annual pension in the event that a contributor's service is terminated before
the age of 60 by reason of disability.
In the employer's Certificate of Termination of Service (a copy of which was
filed with the Tribunal at page 41 of the respondent's section 36 statement),
it is to be inferred from the ticking of the box designated "Disability
Retirement" that that was the basis of termination.
The core issue is whether the definition of disability was or was not satisfied
- more particularly stated, whether thee termination of the applicant's
employment was due to a continuous or recurring injury, disease or infirmity
rendering him unable to perform in any occupation for the Metropolitan Fire
Brigades Board for which he is suited by training, education or experience or
would be suited as a result of re-training.
Primarily, the applicant relied upon the medical opinion of his treating
doctor, Dr Colin Little (Little), who has seen him on a number of occasions.
Copies of his written reports and opinions from February 1990 to March 1996
were filed with the Tribunal and are included in the applicant's materials.
In the first report (1 February 1990) Little said :
"This man has been under my care for the past 3½ years. He has a number
of symptoms consistent with a `chronic fatigue syndrome' type of disorder.
These symptoms include impairment of concentration and recent memory, fatigue,
frontal headaches and irritability. These symptoms are of long standing, first
developing about 19 years ago. It is suspected that his symptoms are
attributable to sensitiveness to common airborne chemicals".
It was his recommendation that the applicant should not work in a position
where such chemicals were encountered. He added :
"In particular he should not work in office positions or other types of
work where there may be exposure to solvents or high levels of vehicle exhausts
or diesel emissions. Many office jobs may not be suitable for him if there is a
significant exposure to solvents in such a position. As may be inferred from
what is stated above, such solvents may be found in freshly printed materials,
photocopying fluids, marking pens, other stationery items as well as aerosols,
glues and paints".
In a report dated 22 August 1990, he said :
"Extensive testing has indicated he is sensitive to a range of common
environmental chemicals, exposure to which produces the above symptoms. To more
accurately define the extent to which he is affected by chemicals, I have
advised that he spend some time away from an urban environment".
In a subsequent report (23 April 1991), he commented that the applicant had
been shown to be sensitive to certain chemicals by testing carried out in his
rooms and that he had been admitted to the Environment Control Unit at Ainslie
Hospital where he was tested from 12 March until 11 April 1991. He was advised
to cease work several days before entering the Unit as part of the preparation.
He was tested over 25 foods and more than a dozen chemical challenges.
In a letter to the respondent dated 24 May 1991, Little said :
"This man has been under my care for the past seven years. His history
was that of long standing rhinitis with nasal obstruction and post-nasal drip.
He also complained of intermittent soreness of the throat. In addition, he had
many constitutional symptoms including impairment of the concentration and
short-term memory, fatigue, frontal headache and irritability. He also was
subject to epigastric discomfort after meals which was relieved by antacids. He
had intermittent nausea and constipation.
....
It was suspected that his various symptoms, particularly those of a
constitutional nature, were associated with a chronic fatigue syndrome type of
disorder. In such cases, there are reports of increased sensitivity to foods,
food additives or even airborne chemicals. We proceeded to test him to
determine whether such sensitivities were involved. An elimination diet was
tried and he was tested with chemical extracts. These approaches suggested food
intolerance and adverse reactions to certain chemicals such as vehicle
exhausts, diesel emissions and formaldehyde, the latter a chemical commonly
released within homes. He reported improvement when away from urban areas, in
relatively clean air, also suggesting a problem with airborne chemicals.
To clarify the situation further, he was admitted to an Environmental
Control Unit at Ainslie Hospital. This Unit has been especially established to
investigate patients where a sensitivity to various foods and chemicals is
suspected. The air is filtered in the Unit and the patients are only allowed
purified water, being initially fasted. The furnishings and other fittings in
the Unit are such that there is little exposure to chemicals from them. In this
Unit there was quite marked improvement in his symptom level. He was subsequently
challenged with a series of foods and then a range of chemicals.
With this approach he was found to be intolerant of only a few foods. He was
able to identify particular foods causing problems by double-blind testing.
With regard to chemicals, he developed symptoms following chemical challenge
with the following : phenol (1 part per million for 15 minutes), toluene (10
parts per million for 15 minutes), nitrogen dioxide (2.5 parts per million for
15 minutes) plasticisers such as those in soft vinyl plastics (15 minute
exposure), solvents in printing inks (15 minute exposure), components of
polyurethane foam (15 minute exposure) and chemical contaminants in tap water.
The symptoms which developed in relation to the challenges included musculo
skeletal pains, headaches, nasal congestion, mood alteration and fatigue. As is
apparent, these levels of exposure were relatively low and readily encountered
in everyday life. Earlier tests also indicated sensitivity to vehicle exhausts
and diesel emissions as mentioned above which was not tested for in the
Unit".
Later, he said :
"His work as a Fire Fighting Officer may incur exposure to chemicals to
which he is sensitive when attending fires as well as other chemicals such as
vehicle exhausts and diesel emissions at the fire stations. In view of his
marked sensitivity, I would not consider that this type of work is suitable for
him".
And later (in a letter to the applicant's solicitors dated 3 July 1991) :
"He has noted his symptoms to be more marked at work. On this basis I
would consider that his work as a Fire Fighting Officer at least aggravated his
chemical sensitivity problem, both before and after 1 September 1985.
At present Mr Bushby is only able to work in an environment where he incurs
minimal contact with chemicals to which he is sensitive. ....
It is apparent that he is not able to continue working as a Fire Fighting
Officer, this type of work inevitably incurring significant exposure to
chemicals to which he is sensitive. His chemical sensitivity problem is such
that most types of work would not be suitable for him".
In a further letter to the applicant's solicitors on 18 May 1989, he said :
"At this stage I would consider it highly likely he is sensitive to
hydro carbons which are found in vehicle exhausts, diesel fuel and a range of
solvents. To test him further I would suggest removal from an urban area for
about 10 days to be followed by exposure to a suitable form of hydro carbons
such as vehicle exhausts. This can be done under my supervision with a series
of measurements being performed by a neuro psychologist to record changes in
parameters such as reaction time and cognition after exposure. This would be
combined with a series of blood tests.
.....
At this stage I would feel that he should not work in situations where he
incurs significant exposure to hydro carbons such as vehicle exhausts and
diesel fuels as well as a range of solvents. This means that his work position
should not be near a busy road or associated with the regular movement of traffic.
There should not be exposure to solvents which may be found in a range of
agents including paints, glues, varnishes, photocopying fluid, liquid paper and
other materials associated with clerical work. His list of chemical
sensitivities has not been worked out because of difficulties in testing and it
is likely he is sensitive to other chemicals which may involve additional
restrictions on the type of work possible for him".
In a letter to the respondent of 12 April 1994,
Little said that he anticipated that the applicant's sensitivity to chemicals
would remain for an indefinite period of time. He added :
"The current problem shows no signs of abating to date and he may well
continue to be adversely affected by chemicals over many more years, perhaps
even until the age of 60".
This letter was written in support of an appeal against the determination to
pay a lump sum. The respondent considered the appeal on 27 April 1994
and agreed to obtain a further medical report. It sought an opinion from Dr J
Kelly, a dermatologist, who saw the applicant on 3 June 1994
and who reported to the respondent in a written report dated 6 June 1994.
In the report he expressed puzzlement as to why the applicant had been referred
to him as a dermatologist, most of his symptoms being unrelated to the skin and
outside his area of expertise. He found no evidence of serious skin disorder.
The applicant also relies on a report of psychiatrist Dr Edward Cole (Cole) who
examined him for medico-legal purposes on 21 July 1995. In a report dated 3
August 1995, a copy of which was filed with the Tribunal, he expressed the
following opinion :
"There is a good deal of controversy as to whether the chronic fatigue
syndrome represents a distinct clinical entity. For my part, I believe that it
does, provided one observes certain strict diagnostic criteria. The underlying
cause is believed to be depression of the immune system following certain viral
infections which leaves the individual suffering from chronic malaise and other
symptoms suggestive of a low grade febrile illness accompanied by frequent
upper respiratory tract infections. Needless to say, there are many other
conditions that can give rise to chronic fatigue and the diagnosis of the
chronic fatigue syndrome is often embraced by people with emotional problems
who are not prepared to accept that their symptoms might have an emotional
basis and who are looking for some simple mechanistic explanation. Many of Mr
Bushby's symptoms would be consistent with his suffering from a chronic fatigue
syndrome, but I do not believe this to be the correct diagnosis, nor am I
satisfied that his condition whatever label one might attach to it, is the
result of chemical sensitivities. I am not of course competent to comment upon
Dr Little's views, except to say that they do not seem to be shared by all
physicians specializing in allergic disorders.
Mr Bushby has, I suspect, always been a more emotionally insecure and
obsessional person than most. In my opinion, he is suffering from a chronic
anxiety state of moderate degree in which his anxiety has become displaced upon
his body with the result that his pre-occupation with his symptoms, many of
which are of a rather nebulous nature, has come to approach a frankly
hypochondriacal level. He is the sort of person who would tend to deny to
himself the existence of any anxieties he thought inappropriate and I doubt
very much if he would accept my view, rather preferring to believe that his
condition has been brought about by exposure to chemicals. Be this as it may, I
have no doubt that his symptoms, whatever their cause, are real and that he is
genuinely indisposed.
I think it unlikely that he would benefit from psychiatric treatment even
supposing he were prepared to accept it and I would regard his condition as
stabilized.
I would accept that his work, social life and domestic situation have all
been affected in the ways that he described by his illness.
If one accepts his account, and I have no reason to question it, he would no
longer be capable of doing his former job and would be unemployable in any
other capacity. That is, he is not fit for normal duties, normal duties with
minor modifications or alternative duties. Further, he would be unable to
perform in any occupation for which he is suited by training, education or
experience or would be suited as a result of retraining".
A report was also provided from psychiatrist Dr Albert Kaplan (Kaplan) who
examined the applicant on 12 March 1996 for medico-legal reasons. In his report
of 13 March 1996 (a copy of which was filed with the Tribunal), he
said :
"Mr Bushby's perception of his symptoms appears genuine and in response
to his physical condition (assuming that his condition is organically based)
and the serious impact the condition had upon his life, he developed symptoms
of depression and associated anxiety. He felt intensely frustrated by his
debility and he would become irritable and this would affect his relationship
with his wife and at least contributed to and probably caused their final
separation. Mr Bushby's psychiatric condition has improved since he left work
and since his physical symptoms began to subside, however, he still becomes
mildly depressed at times. The prognosis of his psychiatric condition will be
determined by the outcome of his physical symptoms, and he is likely to
continue to suffer from mild symptoms of depression as long as his organic
condition persists and he remains disabled and is prevented from leading his
normally active life. Although his irritability may affect his capacity to
work, this capacity will be largely determined by the outcome of his physical
symptoms. He may benefit from a referral to a psychiatrist for supportive
psychotherapy where he would have an opportunity to express his underlying
feelings of frustration and grief, however, such treatment is unlikely to
substantially alter his condition".
Neuropsychologist Dr Maureen Molloy (Molloy) carried out a number of
psychometric tests upon the applicant. In her report dated 26 February 1996 (a
copy of which was filed with the Tribunal), she said :
"The findings from the psychometric tests present a variable picture.
There was no evidence to suggest loss in the formal aspects of intellect in
terms of knowledge and reasoning but on tests of memory there was a degree of
variability. He performed more poorly on tests involving verbal memory and
learning than on tests of a visual or figural nature where he tended to achieve
an average level of result. He performed better on learning tasks where he was
given the opportunity for repetition and rehearsal rather than in one off
situations. He showed some difficulty at the level of short-term memory in
keeping sequential items of information in mind".
She concluded that the applicant :
"presents as a person who has a weakness at the level of short-term
memory and attention in the overall memory domain. Insofar as it is possible to
separate out short-term from longer term memory, his problems appear to be more
related to the early stages of the information processing chain in the domain
of short-term or working memory. This is the most parsimonious explanation of
his difficulty in learning material under some conditions yet coping under
others where he has repetition or the context to help him remember.
These weaknesses at the level of short-term memory functions were
accompanied by a degree of slowness in mentation which rendered his response
times slow, his carrying out of timed tasks was slow and generally there was anergic
aspect to his presentation as though he could not work any quicker. ...
To summarise the current findings, the picture is compatible with the
presence of some non-specific disturbance in cognitive function which is
related to attention and concentration and easily demonstrable with tests of
memory functioning. Such a picture could be consistent with the presence of a
low grade chronic encephalopathy as described by Dr Barrie Morley. Whilst it is
noted that stress or psychological factors can cause detriments in
neuropsychological performance, it seems unlikely that such factors were major
determinants in a clinical sense of the current test results obtained in this
assessment. This view is considered to be valid based on the very good
performances obtained in some tests, contrasting with poorer results which were
consistently found in other tests. ....
In relation to his capability to work, this issue was discussed with him and
the major problem seems to be his difficulty in escaping from exhaust fumes in
travelling to any work place. A further problem as he noted was the difficulty
in escaping from other fumes in that he has recently attended at a local
college, some pottery making and some lead lighting, all of which he was
assured did not involve any noxious substances. On the other hand some
chemicals were inevitably used and he found it necessary to open windows and
otherwise found it very hard to cope.
Consequently it is difficult to think of an environment in which he would be
able to work given his sensitivity to these substances but that aspect is
surely within the domain of your medical experts. In neuropsychological terms
he has an attentional difficulty and some slowness in mentation which in and of
themselves and when he is feeling well, would not prevent him from carrying out
work within a reasonably non-demanding environment. However, the reality of the
situation is that he has a multitude of complaints which continually act and
interact to prevent his memory from working effectively and to prevent his
concentration from functioning effectively so that he would overall, lack the
ability to cope with the working environment for a multitude of reasons.
Overall I think the reasons for him being unable to work are more heavily
weighted in the medical than in the neuropsychological domain".
The applicant filed a copy of a report from neurologist Dr J Barrie Morley
(Morley), who examined him for medico-legal reasons on 21 June 1991. In a
report to the applicant's solicitors, dated 26 June 1991 (a copy of which was
filed with the Tribunal), he said :
"Clinically his higher mental functions were normal. His neurological
examination was normal.
In my opinion, although your client shows no neurological signs on
examination, assuming that it is established that your client has suffered
significant exposure to environmental neurotoxins, he may have suffered two
neurological effects.
His unreliable memory may be due to a low grade chronic encephalopathy. This
could be documented with EEG and a neuropsychological examination, the latter
being the more sensitive procedure for this condition. Also, CT brain scan
would be useful, to exclude alternative causes for his memory complaints,
rather than to establish the presence of encephalopathy.
His thigh muscle tiredness and pain might be due to a chronic, low grade,
neuromyopathy. The presence of this could be investigated by muscle biopsy and
electromyographic studies.
....
In addition, with him having suffered such extensively debilitating
complaints over so many years, inevitably he has developed a secondary
emotional disturbance, leading to the formation of significant psychosomatic
components to his clinical picture. I use the term psychosomatic in both its
literal sense, ie, `.... having bodily symptoms of psychic, emotional or mental
origin' (Dorland); and its clinical sense ie, `.... the (physical) symptoms are
accompanied by demonstrable physiological disturbances of function which
distinguishes psychosomatic illness from psychoneurosis, particularly conversion
hysteria' (Oxford companion to the Mind). This is a controversial area of
medicine and there is no doubt that one reason for this is, as stated by
Professor B M Davies :
`The development of medicine has produced two separate methodologies : one
for studying physical and one for studying psychological phenomena. However the
patient is one person, and it is our methods of study that produces the
artificial distinction between the physical and psychological. Present methods
of medical education make it unusual for one doctor to be able to access the
physical and the psychological aspects of the patients on an equal basis ....'.
It is my view that this is the explanation for his headaches, ocular pains,
and neck pains; and is the partial explanation for his muscle complaints. This
is to say that these are physical manifestations of this continuing secondary
emotional disorder. Although he may have been predisposed to suffering this, it
has been engendered as a direct result of him having experienced the effects of
his suspected exposure to the environmental toxic substances".
The Director of Clinical Immunology of the Monash Medical Centre, Dr Neil Boyce
(Boyce), provided an opinion to the respondent for medico legal purposes. In a
report dated 8 July 1992 (a copy of which appears at pp.56 and 57 of the
respondent's s.36 materials), he said :
"(1) I think Mr Bushby suffers from a variant of what is sometimes
called chronic fatigue syndrome. I believe the variant he has is primary
psychological illness.
(2) I believe Mr Bushby's symptoms are classically psychosomatic. The
pathological basis for psychosomatic processes is currently not understood.
(3) Subjectively, Mr Bushby considers his symptom complex extremely severe.
There is no objective dysfunction to be quantitated.
(4) Because of his perceived subjective dysfunction Mr Bushby is
considerably incapacitated. He has given up work and significantly altered his
activities of daily living, although I note he (is) still well enough to go on
long walks in the bush and to perform household tasks. In my opinion, the
changes in his lifestyle have been at his election.
(5) In my experience the level of his subjective dysfunction will improve
with time. I believe in the coming 3-5 years he will continue to have considerable
improvement in his overall health status. It is unlikely that he will become
completely normal but the frequency and severity of his subjective dysfunction
will reduce.
(6) .....
(7) I believe it is unlikely that Mr Bushby will be successfully rehabilitated
into the workforce at this point in time. I would suggest that consideration be
given to obtaining psychological support services which would institute a
program directed at `self-help' to enable Mr Bushby to cope better with his
perceived ill-health.
(8) Mr Bushby is, I believe, physically fit for normal duties
but is unable to work because of psychological factors which make him
intolerant of work place exposures. I think any program aimed at returning him
to the workplace would be forced to make concessions to his perceptions
regarding chemical sensitivity. This would mean constructing a workplace
environment with no overt chemical exposure or his psychological intolerance of
perceived chemical exposure would result in a prompt exacerbation of his symptom
complex.
(9) I think it would be useful to have a formal assessment by either a
psychiatrist or psychologist as to his current psychometric functioning".
Boyce provided an additional medical opinion on 8 June 1993 (a copy of which appears
at pp 85-87 of the respondent's s.36 materials), in which he expressed the view
that the applicant was suffering from a psychological process which gives rise
to a variety of subjective symptoms. He found no evidence of dysfunction in any
of the applicant's body parts or system and he did not believe him to be
suffering from any formal psychiatric disorder. He considered that he had a
psychological illness superimposed upon "a very rigid and controlled
personality". He said :
"Mr Bushby feels that the symptom complex he has is quite severe. He
reports to me that there has been a gradual improvement over time in his
symptoms but he still feels severely incapacitated. All of his disorder is
subjective. There is no objective evidence of psychological dysfunction".
He expressed the view that he believed that the applicant would continue to
show gradual improvement over the next three to five years. As to his fitness
for work, he said :
"I believe Mr Bushby is physically fit for duties but remains completely
unable to work in his previous environment because of his belief that chemical
or microbiological agents in the workplace will adversely affect his health
status. Any attempt at returning him to the workplace would require concessions
to his fixed belief systems with minimal overt chemical exposure. I think the
practicable difficulties of constructing such a workplace may well render him,
from a pragmatic point of view, "unfit" (or, more properly,
`unsuited') for work. One should reiterate that this `unfitness' is on the
basis of a fixed belief system ie psychological aversion".
He expressed the belief that the superannuation scheme would define him as
suffering from "an infirmity" which effectively renders him
unable to perform in the emergency services area.
In a further report of 3 February 1994
(at p.124 of the respondent's s.36 materials), Boyce who saw the applicant
again on 24 January 1994,
said :
"In my interview with Mr Bushby and subsequent examination I find that
there is no change in his reported health status whatsoever from that described
to me in June 1993 (nor for that matter from that reported by Mr. Bushby on our
initial consultation back in 1992). He still has variable subjective ill-health
with a variety of symptoms. He remains with a very broad range of symptoms,
although they are perhaps slightly less severe than in 1992 and 1993. He
remains convinced that his health problem is in some way related to chemical or
food intolerances, although even he has some difficulty accurately relating
known exposures to exacerbations of his ill health".
He reiterated his view that the applicant continued to suffer from an infirmity
rendering him unable to perform in the emergency services area. In a letter to
the respondent dated 22 February 1994,
he expressed the opinion that the applicant was currently suffering from a
disability which was not expected to persist to the age of 60.
On 15 July 1993, the applicant was assessed by Marika Spanos (Spanos), a psychologist
and vocational consultant with Work Fit, a vocational assessment body. For
purposes of the assessment, she had access to Boyce's reports of 8 July 1992
and 8 June 1993 and Little's report of 24 May 1991. She concluded in the report
of her assessment (a copy of which is at pp 98-105 of the respondent's s.36
materials) that the applicant's condition had improved to the level where
consideration of suitable alternative employment options was timely. She said :
"Although his symptoms appear to fluctuate markedly, some sustained
performance appears to be possible. Providing he is in an environment which has
been carefully selected, a gradual re-introduction to the workforce would be
appropriate".
She recommended that he be referred "for specific vocational counselling
and delineation of appropriate avenues for future work, with a view to him
being placed appropriately for a graduated resumption of employment". A
Rehabilitation Councillor of the same organization, Elissa Jackson (Jackson),
made a "Vocational Counselling Assessment" of the applicant on 31
August 1993 having before her at the time the two reports of Boyce and Little's
report of 24 May 1991 in addition to Spanos' assessment report of 15 July 1993.
She was of the view that it was "unrealistic and in fact futile" to
proceed with vocational counselling in view of the applicant's beliefs
regarding his condition "including his belief that the medical profession
is linked to chemical companies; his belief regarding his own `expertness' on
the subject; his belief that only by returning to `the wilderness' will his
health improve, and that in his current environment, his symptoms will be
unstable" and also having regard to the applicant's "anger
regarding his previous employer, doctors and subsequent legal claim". Jackson's
report appears at pp.112 to 114 of the respondent's s.36 materials.
Psychiatrist Dr Paul Grainger-Smith (Grainger-Smith) examined the applicant on
14 September 1995 and conducted a psychiatric assessment of him at the request
of the respondent. In his report of 18 September 1995 (a copy of which was
filed with the Tribunal and is at pp 160-163 of the respondent's s.36
materials), he stated that he had little to add to what was already known about
the applicant, that the diagnosis of chronic fatigue syndrome was appropriate
and that if, as Boyce suggested, the syndrome was basically a psychological
disorder, then it should be treated by psychological means. He commented :
"However, he is treated by Dr Little who believes that he is allergic
to a variety of chemicals found in the air, and in most places, and that his
allergies make a normal life impossible for this man, and indeed for all
similar suffers (sic)".
He added that whether the problem was psychological or physical, the result is
that the applicant was severely incapacitated. He commented :
"His dysfunctions are chronic and it would seem untreatable. I feel
that he is likely to stay much the same, and despite treatment will get neither
significantly worse or obtain significant benefit.
The time scale of recovery or deterioration is three years".
Leaving aside the position it adopted in relation to appropriate criteria to be
applied in determining disability, the respondent gave as its reasons for its determination
that the applicant was likely substantially to recover from injury, disease or
infirmity and was not suffering from a disability.
One element of the definition of disability is the presence of injury, disease
or infirmity. This is a case which raises medical problems both complex and to
an extent, uncertain. Little, Cole and Grainger-Smith all diagnosed chronic
fatigue syndrome. Boyce diagnosed "a variant" of the same condition.
Cole found the applicant to be suffering from "a chronic anxiety state of
moderate degree". Kaplan diagnosed "depression and associated
anxiety". Although not psychiatrists, Morley and Boyce considered that he
suffered from emotional disturbances with significant psychosomatic components.
Little who as the applicant's treating doctor had the benefit of observing him
over many years, held resolutely to the conviction that he suffered from
sensitivity to a number of commonly encountered chemicals and that that was a
major element of his health problems. Little has had a direct involvement in
the clinical testing of the applicant for allergic reaction including referral
to an Environmental Control Unit at Ainslie Hospital for the purpose of more
specific and intensive testing as a result of which, it would appear, that the
applicant does suffer from sensitive reaction to number of commonly encountered
chemicals and thereby from an allergic disorder.
It is more likely than not that there is a substantial functional overlay
element in the applicant's medical condition and that his own conviction as to
his condition is itself a major health problem. Be that as it may, it appears
to be clear enough that his health problems are multiple and the boundaries of
his various conditions difficult to define. Suffice to say for purposes of this
application, that to some significant degree or other, he suffers from an
allergic disorder, chronic fatigue syndrome, anxiety, depression and emotional
disturbance with psychosomatic components. He thereby suffers from injury,
disease or infirmity.
Whatever the applicant's difficulties in establishing that his injury, disease
or infirmity was continuous, it appears abundantly clear that over a long
period of time, in one manifestation or another, it has been recurring. That is
evidenced not only by the contents of the various medical reports and written
opinions over a range of years but by the applicant's own evidence and that of
his wife. The word "continuous" and the word "recurring"
import an enduring or ongoing state of affairs as distinct from that which is
short term or isolated. In that regard, it is appropriate to consider whether
the applicant's condition of health is more probably than not susceptible to
resolution given appropriate treatment.
Little's opinion was that the applicant's chemical sensitivity would remain for
an indefinite period. Cole thought it unlikely that he would benefit from
psychiatric treatment and regarded his condition as having stabilized. Although
in 1992, Boyce anticipated some improvement within three to five years, in 1994,
he observed, upon re-examination, that there was no change. Grainger-Smith
considered that the applicant's dysfunctions were chronic and untreatable and
that with treatment, he would neither get significantly worse nor obtain
significant benefit. Up to the date of hearing, no significant improvement in
the applicant's health appears to have occurred. It is clear enough that to a
major extent, elements of the applicant's injury, disease or infirmity are of
an enduring nature and that his injury, disease or infirmity may be said to be
recurring.
It remains to consider whether the applicant's recurring injury, disease or
infirmity renders him unable to perform in any occupation for his employer for
which he is suited by training, education or experience or would be suited as a
result of retraining.
It was Little's view that he should not work in a position where he would
encounter chemicals to which he is allergic. These appear to include a number
of chemicals likely to be encountered in fire fighting duties and like
occupations. Cole considers him no longer capable of doing his job and added
that he was "unemployable in any other capacity". He specifically
stated that the applicant would be unable to perform in any occupation for
which he is suited by training, education or experience or for which he would be
suited as a result of retraining. Molloy who conducted extensive psychometric
testing, had difficulty in contemplating an environment in which the applicant
would be able to work. In her report of 13 March 1996, she
said :
".... the reality of the situation is that he has a multitude of
complaints which continually act and interact to prevent his memory from
working effectively and to prevent his concentration from functioning
effectively so that he would overall, lack the ability to cope with the working
environment for a multitude of reasons".
As at July 1992, Boyce was of the view that it was unlikely that he would be
successfully rehabilitated into the workforce but nevertheless contemplated the
possibility of a programme which might enable his return to work. Having opined
that his unfitness to work as at June 1993 was a consequence of his belief that
chemical and microbiological agents present in the workplace would impair his
health, he conceded that problems of constructing a benign workplace were such
as to characterize the applicant as unfit for work. He did not consider him
able to work in the emergency services area. Having regard to the applicant's
perception of his condition, Jackson considered that it was both
"unrealistic and in fact futile" to proceed with vocational
counselling.
Before commencing work as a fire-fighter in July 1977, the applicant's only
other work experience was in the printing industry. There having been no
persuasive evidence to the contrary, I am satisfied that by his training, education
and experience, the applicant is not suited to any occupation for his employer
or for which he would be suited as a result of retraining.
In the result I find that the applicant suffers from a disability. In that his
service was terminated before the age of 60, by reason of it, he is entitled to
an annual pension in accordance with Regulation 9(1) of the Regulations.
Accordingly, I set aside the determination of the respondent and determine that
the applicant be paid an annual pension pursuant to Regulation 9(1) of the
Regulations.
CERTIFICATE
I certify that this and the preceding 22 pages are a true and correct copy of
the reasons for decision of Mr J M Galvin, Deputy President of the
Administrative Appeals Tribunal.
REGISTRAR
APPEARANCES NO 1994/030813
FOR THE APPLICANT : Mr S McCredie instructed by
Messrs Slater & Gordon
FOR THE RESPONDENT : Mr M Flemming instructed by
Messrs Price Brent
DATE OF HEARING : 17 June 1996 and
22 January 1997